On 15 June 2023 Jarosław Kaczyński – the leader of the ruling PiS party – announced that a referendum on the relocation of migrants would take place together with the upcoming general elections. It was only one day after the tragic Pylos shipwreck near the Italian coast in which over 500 persons had died. And it was his first time speaking in parliament in over 9 months. Referenda in Poland are rare and, according to Article 125 of the Polish Constitution can only be hold on matters of ‘particular importance to the State’. So, it could be expected that the migration referendum will be a driving factor of the election campaign. However, the referendum turned out not to be predominantly about migration and opposition parties have chosen to ignore the referendum questions. Their silence on the matter does however not stem from their alignment with PiS migration policies. Instead, it is their attempt to obstruct the ruling majority’s attempt to use the referendum as a tool in their electoral campaign.

A Migration Referendum With Few Migration Questions

It took the PiS government two months to announce the questions for the ‘migration’ referendum. The announcements started on 11 August 2023, in a very theatrical way: over the course of four days, each day one of the questions was announced by a prominent PiS politician in a short video. Despite the referendum’s ostensible focus on issues pertaining to migration, only two out of the four questions actually related to migration. The four questions were subsequently submitted to Parliament on the 14 August 2023 (already somewhat changed compared to what had been announced) and were adopted within three days.

The first question was announced by Jarosław Kaczyński himself: “Do you support the sale of state-owned enterprises?”. It was slightly changed in the request to the Parliament several days later to “Do you support the sale of state assets to foreign entities, leading to the loss of control by Polish women and men over strategic sectors of the economy?”. The second question, announced by former prime minister Beata Szydło, also did not concern migration: “Do you support raising the retirement age, including restoring the retirement age to 67 for women and men?”. The retirement age in Poland is currently 60 for women and 65 for men. The former government headed by Donal Tusk, who is now the leader of the biggest opposition party, decided in 2012 to raise retirement age to 67. However, he has since stated that he resigns from those plans and is in favor of leaving current retirement age.

The third question announced by Prime Minister Mateusz Morawiecki on the third day was – finally – a migration question. While mentioning that PiS was always against relocation and that agreeing to relocation means bringing danger to Poland, the Prime Minister announced the question: “Do you support the admission of thousands of illegal immigrants from the Middle East and Africa, in accordance with the forced relocation mechanism imposed by the European bureaucracy?”. The extremely biased question indicates numbers (“thousands”), where those persons are from (“Middle East and Africa”) and who will force Polish authorities to do relocate them (“European bureaucracy”). It fits well into PiS’s rhetoric, as the party has always spoken out against relocating migrants from other EU countries.

The final, fourth question, was announced by the minister of defense, Mariusz Błaszczak: “Do you support the elimination of the barrier on the border between the Republic of Poland and the Republic of Belarus?”. This relates to the wall built on the Polish-Belarusian border in response to the ongoing humanitarian crisis. Since August 2021 Belarusian authorities facilitate the arrival of migrants, including refugee seekers, at the Polish-Belarusian border, not allowing them to leave the area once they arrived. Polish authorities responded to the humanitarian crisis with force, including by building a ca 180 km long wall between January and June 2022. When introducing the referendum question on the wall, the minister did not mention migrants, but instead referred to the danger Putin poses to Poland’s eastern borders several times mentions – as if the “barrier” aims at being a defense from Russian invasion.

PiS has asked all Poles to vote “No” to those four questions, which clearly play on fears of the Polish public. Only two out of four questions concern migration and one of them was not even presented as being a question related to migration. This shows that while PiS might have envisioned the referendum to be a ‘migration’ referendum when announcing it, they did not treat migration as the primary focus.

The Opposition’s Tactical Silence

It is clear that the questions are not designed to allow Poles to weigh in on governmental policy. Instead, the referendum questions were posed to present PiS’s political program, attack the opposition and frame the electoral debate. Yet, it has had little success. Since their reveal, the referendum questions have neither been hotly debated nor explicitly opposed by the opposition bloc, with a few individual exceptions. For the most part, the opposition’s position has been to ignore the referendum questions and encourage Poles not to take part in the referendum. Donald Tusk has stated that the referendum is invalid and declared it void.

Only few politicians have actively opposed the two migration questions. For example, Janina Ochojska, a Polish humanitarian and member of the European Parliament, stated that the wall will eventually be abolished. Another example is the Polish-Belarusian activist Jana Shostak, a candidate in the current election, who openly stated that she is in favor of abolishing the wall.

From a human rights (and – with regard to the “wall” question – environmental) perspective, the silence of the opposition on those question is disappointing. While it is understandable that the parties do not want to get caught up in the referendum game organized by PiS, one could expect a more substantive engagement with questions that are of major importance for both Poland and the EU.

Turning the Table

By proposing the ‘migration’ referendum and in asking the two migration questions PiS was clearly aiming at attacking opposition parties – in particular Donald Tusk – by showing that they are stricter towards migration. However, Donald Tusk himself turned the table in July 2023 by attacking PiS for letting migrants from Arab and Muslim countries in. He did so while referring to the riots in France and warning that Poles must protect their own country. This was criticized by many, but Donald Tusk never backed out of this statement.

At the beginning of September 2023 news broke of the so-called visa scandal. An investigation by the daily Gazeta Wyborcza revealed that an 2020 amendment to the Act on Foreigners and certain other acts lead to huge increase of Schengen visas granted in Polish consulates and corruption. The bribery allegations were discussed on 2 October 2023 in the European Parliament. Several officials, including a vice-minister, have lost their jobs as a result. According to Gazeta Wyborcza, there is both a domestic and international investigation into the procedure; so far, the Ministry of Foreign Affairs only confirmed the domestic one. It is unclear if and how this scandal will influence the elections. Yet, it did provide the opposition parties with an opening to attack PiS for not being ‘strict’ enough in migration matters. Quite tellingly, the biggest opposition party promises in its plan for the first 100 days of ruling to “present an indictment against the persons in the Ministry of Foreign Affairs responsible for the uncontrolled arrival of migrants in Poland”, which is the only time migration is mention in the plan.

Polish Migration Politics On the Ballot

The lack of objections to the referendum questions and attacking the PiS government because of insufficiently strict migration policies could point to an overall increasingly nationalistic and racist approach to migration. Yet, in reality, most parties are not supporting the perspectives on migration PiS is bringing forward. This is evident also in the parties programs prepared for the elections: while PiS and Konfederacja (a far-right party which likely will make it into parliament) incorporated the protection from illegal migration prominent in their election programs, the so-called democratic opposition parties (the three main opposition blocks) remain silent on migration (see here, here and here). Moreover, in the light of previous statements and positions by the democratic opposition, it becomes clear that they are not pursue the same migration policies as PiS. Indeed, Donald Tusk and his party did previously support relocation, while prominent opposition politicians were also involved in helping migrants at the Polish-Belarusian border. Thus, the silence is not a sign of alignment of migration policies, but a conscious choice taken in the most important Polish elections since 1989. While this might not be visible in the election debate, the results of the October 2023 election will have a significant influence on migration politics in Poland, as the opposition block and PiS do not have the same approaches to migration.

The pivotal parliamentary election that will take place in Poland this Sunday may not mark the end of the country’s authoritarian chapter. In the coming days and weeks, several legal and constitutional provisions may be weaponized by the ruling PiS party to thwart the peaceful transfer of power. As Michael Meyer-Resende perceptively observed on this blog, discussing elections in hybrid regimes poses a challenge. Far too often, we use conceptual frames from democratic conditions to describe systems that work very differently in reality.

Meyer-Resende made this point in the context of unfair elections lost by democratic forces in Hungary or Turkey. But as the literature on electoral authoritarianism has always emphasized, it is possible, if not probable, for a democratic opposition to prevail even on a highly uneven electoral playing field. It increasingly appears that Poland may become a historic case in point. Reenergized by the former liberal prime minister and EUCO president Donald Tusk, the country’s democratic forces are well positioned to deliver a stunning upset on Sunday. If this indeed materializes, we must heed Meyer-Resende’s advice and resist the temptation to think of the critical post-election days and weeks as a regular democratic transfer of power. Instead, what will happen should be understood as an inherently perilous collapse of an authoritarian regime.

The Authoritarian Dilemma

Consider the political stakes that Poland’s de facto ruler, Jarosław Kaczyński, and his top lieutenants, including the nominal president of the country, Andrzej Duda, face. Tusk and the opposition have openly outlined their four-pronged electoral platform. After the victory (the first step), Tusk promised “a reckoning with evil” followed by a “redress of wrongs” – both, in his eyes, necessary for the final phase of “reconciliation among Poles.”

Tusk’s plan is understandable, given the brutal toll of the last eight years of the PiS regime. The wrongs include the murder of Gdansk mayor Paweł Adamowicz, mercilessly vilified in the PiS-controlled media; the death of a teenage son of an opposition MP who killed himself after PiS-controlled radio outed him as a pedophile victim; a number of women dying of pregnancy complications after the barbaric anti-abortion decision of the so-called “Constitutional Tribunal” fully captured by PiS; LGBT people (including teens) driven to suicide by methodical dehumanization by the government; dozens of refugees dying at the Polish-Belarusian border as a result of the government disregarding the Refugee Convention of 1951; victims of lethal police brutality (which, in the US, would trigger national outrage) and torture reported in Polish prisons. To that, we should add other evils, including the ruthless harassment of principled judges, widespread surveillance of the opposition, grotesque politicization of state-owned media, and omnipresent graft of the increasingly demoralized apparatus of power. And last but certainly not least, key PiS leaders have engaged in numerous instances of criminal abuse of power, often for personal or financial benefit – a crime punishable by up to a decade-long imprisonment under Article 231 Section 2 of the Polish penal code.

The sheer weight of the legal responsibility for all these wrongs creates a classic authoritarian dilemma. Brazen attempts to cling to power following a lost election may be met with both domestic and international condemnation. But can those risks really deter authoritarian rulers facing also dire legal consequences? History has seen a range of behaviors in such circumstances, from the peaceful yielding of power by Augusto Pinochet or Wojciech Jaruzelski to the extralegal or violent resistance of Donald Trump or Leonid Kuchma. It is fair to conclude that the authoritarian course of action in such cases is determined by several often idiosyncratic factors, which include the ruler’s assessment of the chances of their resistance, the subjective perception of their legitimacy, the advice they receive, attitudes of the leadership of the military and law enforcement agencies, and the intensity of the (path-dependent) reactions of the regime’s electoral base.

Three Roadblocks  for a Peaceful Transfer of Power

In short, it is impossible to predict how PiS and Andrzej Duda will behave in the instance of the opposition’s victory. The plausible scenarios range from the president matter-of-factly offering Donald Tusk the mandate to form the new government to a predetermined resistance. Poland’s Western European and American partners and the international legal community should hope for the best but prepare for the worst.

Legally, three main steps in the transition of power can go seriously wrong. The first one lies in the Supreme Court, which is tasked with declaring the validity of the election. As of now, the majority of judges in the Court have been appointed by the so-called “National Council of Judiciary,” unconstitutionally captured by PiS in 2018. To make things worse, as part of its legislative sweep, PiS assigned the competence of declaring the validity of the elections to the new Extraordinary Review and Public Affairs Chamber, fully controlled by the PiS-appointed judges.

This chamber has already demonstrated its political subservience by dismissing the concerns over the 2020 presidential election won by Mr. Duda. At the time, the gist of PiS’s manipulation was their decision to push through the election amidst the COVID pandemic despite clear provisions of Article 228 Section 7 of the Polish constitution that requires rescheduling of a national election during natural disasters and other emergencies. If three years ago, the unconstitutionally staffed chamber allowed PiS to ignore the above-mentioned constitutional norms, it raises questions as to whether this body can show more independence this time around. Especially given that the jobs of the very judges illegally appointed to the chamber may be at stake should the opposition take power.

The Role of the President

The second danger rests in the process of appointing the prime minister, outlined in Articles 154 and 155 of the Constitution. This process is divided into three stages. In the first, President Duda can nominate whomever he chooses as prime minister and, on the new premier’s motion, the entirety of the new cabinet. Duda will likely select a candidate proposed by PiS. A convenient justification may be that, although PiS may fall well short of the majority in Sejm, it may be the largest single caucus, given that the democratic opposition is running in three separate blocks.

The new cabinet must swiftly seek a vote of confidence in the Sejm. But importantly, it remains fully in power until the president appoints the next prime minister and the cabinet. This is crucial given the untested second stage of the constitutional process of government formation, which has never been used since the basic law came into force in 1997. Article 154 Section 3 of the Constitution states that if the cabinet appointed by the president in the first stage fails to secure the vote of confidence within 14 days, the Sejm itself “chooses” (or, in another translation, “elects”) the prime minister and the cabinet.

And here comes the critical twist: the chosen cabinet does not automatically take over from the cabinet appointed by the president in the first stage. The Constitution, instead, states that “the President of the Republic shall appoint the Council of Ministers so chosen and accept the oaths of office of its members.”

An Authoritarian Déjà Vu

For any observer of the Polish democratic collapse over the last eight years, this constitutional reference to a ministerial duty of the Polish head of state to formally appoint high officials chosen by Sejm should immediately ring an alarm bell. For it is precisely President Duda’s refusal to carry out an analogous duty that started Poland’s constitutional crisis. It was in the fall of 2015 when Duda declined to take oaths from three justices of the Constitutional Tribunal duly elected by Sejm. Duda has also repeatedly insisted on his prerogative not to appoint judges elected by the National Council of Judiciary, both before and after its illegal takeover in 2018.

It is therefore possible that the president may ignore his clear constitutional duty to appoint Donald Tusk as prime minister, even if the latter receives majority support in Sejm. Duda can instead try to force a move to the third stage of the constitutional process, in which he again has the right to pick the prime minister and the cabinet. If he, for instance, reappoints his allies from the first stage, that cabinet will likely fail to secure Sejm’s vote of confidence. However, in that case, Duda can claim that Article 155 Section 2 of the Constitution requires him to dissolve the parliament and call for a new election. In the meantime, his handpicked cabinet would remain in power. The mere repeat of Duda’s unconstitutional behavior from 2015 may give PiS a redo of the national election in early spring of 2024 while keeping the full power of the government.

Dismantling the Mafia State

If all those dangers fail to materialize and the opposition takes over, it will still face an extraordinarily challenging legal and political landscape. During its eight years in power, PiS has thoroughly captured the state institutions. The new government will need to make tough choices about what to do with a host of illegally appointed bodies, including the so-called “Constitutional Tribunal,” the majority of the Supreme Court, and as much as 30% of the general judiciary. The government will encounter diehard PiS loyalists at every level of the prosecution service, police and security services, public broadcasters, and state-owned enterprises. Only if the process of dissolving this “Mafia State,” to use Balint Magyar’s well-known expression, is achieved will we be able to conclude that the transfer of power to democratic forces has been complete.

The rule of law crisis in Poland consists of several elements – undermining the independence of courts, politicization of disciplinary proceedings against judges, and lack of legal certainty. None of them, however, raises so many doubts and concerns as the status of judges appointed or promoted upon the request of the politically captured National Council of Judiciary (NCJ).

In this blog post, we analyse the diverse composition of the group of judges appointed or promoted upon the motion of the NCJ from 2018. We also discuss the relevant jurisprudence of national and international courts and the current state of debate concerning this problem and possible solutions.

The role of the NCJ in the Polish rule of Law Crisis

The key element of the Polish rule of law crisis is inextricably tied to the problem of the National Council of Judiciary – a constitutional body responsible for protecting judges‘ independence. Its main task is to review the candidates for judges and present motions to appoint a judge by the President of Poland. The NCJ is composed of 25 members: 15 judges, 6 representatives of both parliamentary chambers as well as the President, Minister of Justice, and the Presidents of the two highest courts. Until 2018, the judges were appointed to the NCJ by their peers. However, at the end of 2017, the appointment power was transferred to Parliament, putting it in control of appointing of 21 out of 25 members of the NCJ.

The adopted changes and how quickly they were implemented revealed the NCJ’s lack of independence and raised concerns about the legality of its decisions. Consequently, in 2021 the NCJ was excluded from the European Network of Councils for the Judiciary (which, ironically, the same Polish Council helped establish). Furthermore, the NCJ’s lack of independence and irregularities in its composition were subjected to several rulings of both international and national courts (see point 3).

Nonetheless, the NCJ in its changed composition continues its work and prepares motions to appoint or promote judges, now referred to as neo-judges.

Who are the Neo-Judges?

Judicial nominations (expressed in the NCJ motions for appointments) are prepared after the process of evaluation of a candidate in an open contest for a vacant position in each court.  From the outside, the group of the neo-judges may seem homogenous, but it is very diverse.

Since 2018, the President has appointed over 2200 judges recommended by the NCJ. The actual number might be smaller as some judges could have been promoted twice. This group can be divided into three sub-groups. One is composed of lawyers who completed the training in the National School of Judiciary and Prosecution, passed the judges’ exams, served as judges-trainees (assessors), and then, within 36 months applied for appointment for the position of a judge. The other group are lawyers who did not complete the training for judges but are qualified for judgeships due to their professional legal experience as solicitors, advocates, or prosecutors as well as court clerks or judges’ assistants. Contrary to graduates of the National School of Judiciary and Prosecution, these lawyers are not mandated to apply for judgeships before the politically captured NCJ. There are also judges who were promoted to higher positions on the basis of the new NCJ’s recommendation.

A report of the Helsinki Foundation for Human Rights notes that since 2018 47% of judges appointed upon the NCJ’s motion were judges of courts of lower ranks whereas 34% previously occupied non-judicial positions such as e. g. courts’ clerks. 19% were previously judges-assessors. The biggest group of judges (almost 1.000) was appointed to the district courts (lower instance courts) [p.4].

Finally, there is a relatively small, yet significant group of judges appointed in 2018 to the Supreme Court. This occurred despite an interim measure issued by the Supreme Administrative Court and the Prime Minister’s missing counter-signature on the President’s appointment announcement. These deficiencies exacerbated the already legally dubious appointment process of this group of judges.

Consequently, five years after the NCJ was captured, neo-judges adjudicate daily in all branches of Poland’s court system (common and administrative ones) and all ranks (from district courts up to the Supreme Court and Administrative Supreme Court). In 2021 alone, Polish courts ruled over 14 million cases.

Looking for Hints in Strasbourg and Luxembourg

The Court of Justice (CJEU),the  European Court of Human Rights (ECtHR) and national courts including the Polish Supreme Court have all taken issue with the changes to the Council’s appointment process and the NCJ’s resulting lack of independence.

Already in 2019, the CJEU formulated criteria that domestic courts can utilize to assess the NCJ’s independence, as well as independence of newly established chambers of the Supreme Court (including the infamous Disciplinary Chamber).

Later, in January 2020, the Supreme Court elaborated on this problem, holding that a Supreme Court composed of neo-judges is unduly composed in the light of the civil and criminal rules of the court procedure. However, in the case of common courts, it held that the court composed of neo-judge is unduly composed when ‘a defect in the appointment process leads, in specific circumstances, to a breach of the standard of independence and impartiality’ in the light of the Constitution, EU Charter of Fundamental Rights and European Convention on Human Rights.

In 2021, in W.Ż. the CJEU discussed legal validity of decisions taken by a court consisting of a person unlawfully appointed be new NCJ. It found that disregarding procedural rules of appointment can undermine the integrity of appointment and create reasonable doubts concerning judicial independence. Decisions made by a court bench consisting of such unlawfully appointed persons can be found ‘null and void’ (especially when neo-judge is the only person on the bench). The Court did not give, however, direct guidelines on what should be done with those ‘unlawful judges’ in general. All neo-judges were selected by the new NCJ, but not all of them have been appointed with such a flagrant violation of domestic rules as the persons in W.Ż. or Getin Noble Bank cases.

At the same time, ECtHR judgements focused on the problems of courts composed of neo-judges. In Reczkowicz v. Poland, the ECtHR concluded that the panel of the Disciplinary Chamber of the Supreme Court (entirely composed of neo-judges) that heard the applicant case did not constitute an independent and impartial court as all the judges were appointed upon the request of the new NCJ. Furthermore, in  Advance Pharma the ECtHR ruled that there was a violation of Article 6 of the Convention because the Civil Chamber of the Supreme Court, which decided the applicant’s case consisted of unlawfully appointed neo-judges. The Court explained that ‘irregularities in the appointment process compromised the legitimacy of the formation of the Civil Chamber’.

The Polish authorities have not implemented any of these judgements. The Polish governing majority has no interest in complying with the courts’ decisions in this regard. Moreover, the proper implementation of these judgements would require determining the status of the neo-judges and the validity of their rulings- a notoriously complicated question.

Possible Solutions

Despite the consensus between international and national courts that neo-judges’ status is legally flawed, their jurisprudence does not offer much guidance how to redress it. Should they be treated as judges and enjoy all the guarantees assigned to judges’ position? Or should they be treated as lapersons who never became judges? The answer to these questions is likely more nuanced than a simple yes or no.

The Committee of Ministers has recommended the following to implement the Reczkowicz group of cases: 1. restore independence of the NCJ; 2. ‘address the status of all judges appointed in deficient procedures involving the NCJ as constituted after March 2018 and of decisions adopted with their participation’; 3. ensure effective judicial review of the NCJ’s resolutions proposing judicial appointments; 4. ensure examination of the questions as to whether the right to tribunal established by law has been respected. Their implementation are a minimum condition for Poland’s return to the rule of law. Another hint was suggested by AG Bobek in his opinion in Getin Noble Bank, who wrote that “the ‘removability’ of non-independent judges is as important as the ‘irremovability’ of independent judges” and that “a legal system must be able to enforce compliance with the principle of independence of the judiciary”. Deciding who is independent (and impartial), and who is not, seems to be the crucial element of future transition to the rule of law.

Some (including the Judges Association IUSTITIA) argue that since the NCJ was not an independent body it cannot make a valid motion to appoint a judge. Hence, the candidates never acquired the status of a judge and are not entitled to the protection this status would entail. Supporters of this view have presented a draft legislation that propose a mechanism of transferring all the neo-judges (with the exception of judges who first served as judges-trainees, assessor) to their previously occupied judicial positions. Notably, the draft law does not address what to do with judges who previously occupied non-judicial positions.

This solution has clear flaws. First, restoring the rule of law should not lead to further violations of rule of law. Depriving judges of their status (even if acquired in a legally flawed process) in an automatic procedure and without a right to appeal to the court.  It not only goes against the recommendations of the Committee of Misters in Reczkowicz case, but also further undermines legal certainty. Moreover, such a neo-judge could present a relatively strong case before the ECtHR. A potential ECtHR win of a neo-judge could compromise the entire rule of law restoration. Secondly, neo-judges who previously occupied non-judicial positions might not be able to be returned to their “previous post,” which might no longer be available. They might litigate their deprivation of status, leading to the state’s liability.  Thirdly, the draft does not address the problem of the status of judgements rendered by the neo-judges. Given that it assumes that neo-judges were never appointed for the judicial position, their decisions should also be deemed non existing. Yet, the authors of this solution claim that the judgements will remain in force unless a party petitions the court to reopen the proceedings. Nonetheless, this might still endanger legal stability.

Other solutions might be available. We share the approach taken by some scholars argue (including Marcin Szwed) that the legal defects in the appointment procedure do not automatically lead to the conclusion that the appointed candidate is not a judge. Undoubtedly the NCJ is not an independent body, and it does not guarantee the highest standards in the process of assessing the candidates for judges. However, the question remains whether the legal and procedural flaws in this process would amount to claiming that the persons subjected to this process never acquired the status of a judge. Because the legal situation of the neo-judges differs, the mechanism adopted to redress their flawed appointment must show nuance.

A carefully designed authorisation mechanism for neo-judges would be a safer approach. This could take the form of vetting or re-examining all appointments of neo-judges (including the appointment of former judges-trainees). This would avoid an automatic removal procedure and the organizational chaos and risk of legal instability this carries. However, selecting the criteria for this verification process as well as how the time it would take to undertake could undermine public trust in this solution.

Political Response

Despite the scope of the problem and its detrimental impact the vital interests of Polish citizens, the issue has not been discussed during the on-going election campaign. The Polish opposition parties have focused on different problems, with the restoration of rule of law remaining a problem discussed in narrow circles of lawyers, civil society organizations and academia.

The biggest opposition party, Civic Coalition, in its brief and underdeveloped political manifesto “100 concrete things” suggests the potential removal  of neo-judges (described as ‘double-judges’ – a term reserved for unlawfully appointed persons in the Constitutional Tribunal). Meanwhile, the leader of Law and Justice Jarosław Kaczyński already announced that if his party wins the elections for the third time, it aims to complete the reform of judiciary. He likely refers to the idea of “flattening the structure of judiciary” – an idea to remove one instance of courts (likely the appellate courts, the highest courts in Poland’s three rank structure) and to force all judges to undergo a procedure before the NCJ to acquire the ‘unified’ status of a judge of the common courts (right now judges have the status of the judge of the court in which they adjudicate).

While civil society and academia are busy discussing how to restore judicial independence and trust in courts, the current ruling party thus clearly has a plan – which will not be consulted with anyone –to make such a restoration exceedingly challenging, if not impossible.

One of the most critical challenges in the process of restoring the rule of law in Poland after the period of ‘Law and Justice’ rule will be regulating the situation in the Constitutional Tribunal. After the unlawful election of three judges by the Sejm in November 2015 and the subsequent recognition of their judicial status by the new President of the Constitutional Tribunal, Julia Przyłębska, the Constitutional Tribunal lost its independence and authority. Instead of defending the Constitution and the rule of law, the Constitutional Tribunal often legitimizes controversial Government actions and openly questions the European standards. Rebuilding the Constitutional Tribunal’s authority and restoring its proper functioning will undoubtedly be a challenging task. It must involve at least two actions: firstly, the removal of improperly elected individuals from adjudication and secondly, the regulation of the consequences of their judgments. In the following brief text, I will specifically address the latter issue, based on the report published by the Helsinki Foundation for Human Rights in June 2023.

The Uncertain Legal Effect of the Tribunal’s Judgments

In May 2021 in Xero Flor in Poland sp. z o.o. v Poland, the ECtHR declared that a decision by the Constitutional Tribunal to dismiss a constitutional complaint filed by a private company violated Article 6 of Convention because it was comprised of unlawfully elected judges. Because Article 6 guarantees, among other things, the ‘right to a court established by law,’ it requires that the court hearing a particular criminal or civil case consists of duly appointed judges.

The Polish authorities were obliged to implement the judgment since it became final in August 2021. Not only did this not happen, but in November 2021, the Constitutional Tribunal ruled that the ECtHR’s interpretation of the Convention, as applied in the Xero Flor case, was in conflict with the Polish Constitution. The lack of action by the Polish authorities prompted a response from the Committee of Ministers of the Council of Europe. In June and December 2022, the Committee issued decisions mandating the implementation of the Xero Flor judgment, and in June 2023, it adopted an interim resolution on the matter. In all these documents, the Committee emphasized the need to ‘address the status of decisions already adopted with the participation of irregularly appointed judge(s)’.

The Committee of Ministers did not provide detailed guidelines on how to regulate the effects of defective judgments, leaving the Polish authorities some latitude in addressing this issue. Consequently, various solutions may be considered, ranging from declaring all such judgments legally non-existent to more tailored approaches targeting specific judgments. To decide which option is the most appropriate, it is necessary to assess the extent of the problem and analyze the implications of each hypothetical method of regulation.

The Scale of the Problem

Between 2017 and 2022, the Constitutional Tribunal issued a total of 159 judgments, significantly less than in the period between 2011 and 2016 (367). Of these, 85 were delivered with improperly composed panels.

The subject-matter of these 85 rulings varied. Some of them legitimized controversial government actions. For instance, the Constitutional Tribunal upheld the reform of the National Council of the Judiciary, which vested the Sejm with the authority to appoint judges to its composition. Several other rulings compromised European standards on judicial independence. Thus, the Tribunal held that the Constitution prohibited examination of the legality of the judicial appointment process  and ruled that some provisions of the ECHR and EU treaties are partially unconstitutional. However, the Tribunal also rendered controversial rulings in matters not connected to the judicial independence, such as the judgment concerning the access to abortion in case of defects of foetus.

Nonetheless, many of the judgments issued by panels which included improperly elected persons do not raise serious controversies in terms of their substance. Some of them even led to the repeal of provisions detrimental to individual rights. Examples include the finding of unconstitutionality of unfair rules governing access to nursing care benefits for caregivers of persons with disabilities, a judgment concerning pre-retirement protection for employees, a ruling which struck down unwarranted restrictions on access to the courts, and one that struck down disproportionate rules for imposing administrative fines. As a result of these and other judgments, legal or administrative proceedings might have been reopened, and changes to laws that grant individuals certain rights have occurred.

To Void…

In its report, the HFHR identified several options regarding how to treat the judgments that were delivered by unlawfully elected members of the Tribunal.

The most far-reaching solution, proposed in the draft law prepared by the team of experts of the Stefan Batory Foundation, would be to declare all these judgments legally non-existent. It is based on the concept of non-existent judgments (sententia non-existens), according to which rulings tainted by the most serious legal defects are devoid of legal force. Before 2015, the concept was applied mostly in the context of rulings issued on civil or criminal procedure. It remains unclear whether there are theoretical grounds to extend it to the Constitutional Tribunal’s rulings issued in unlawful composition.

Yet, there are also practical ramifications that might accompany such a move. Determining that judgments stating the compatibility of contested provisions with the Constitution are devoid of any legal force would not have particularly dire consequences. This would only entail the necessity to rehear the cases by the Constitutional Tribunal with the correct panel, which is a manageable outcome. However, to declare judgments on the unconstitutionality of legal norms (there was 48 such judgments at the end of 2022) legally non-existent would be much more problematic.

The complications stem from the fact that, generally, when the Constitutional Tribunal declares a provision unconstitutional, the provision loses its legal force and is eliminated from the legal system. Consequently, if the judgments of the Constitutional Tribunal were rendered void, we would have to assume that the ‚repealed‘ regulations remained in force all along. This could lead to numerous problems because these judgments were treated as binding by both authorities and citizens, who often acted based on the legal framework shaped by them. Furthermore, in many cases, the Constitutional Tribunal’s judgments were substantively correct, meaning that declaring them void would result in the ‚reinstatement‘ of provisions harmful to individual rights. This could affect not only the resolution of new cases but also the rights already acquired by individuals, for example following to the abovementioned ruling on the nursing benefits. Moreover, many other judgments of the Constitutional Tribunal issued with participation of unlawfully elected persons could have served as a basis for, for example, reopening of judicial proceedings and so nullification of such rulings could also affect these new proceedings. Furthermore, in several instances, after the Constitutional Tribunal’s judgment, the Parliament modified laws by introducing new provisions. The HFHR has shown that in some cases, deeming the unconstitutional provisions as never effectively repealed by the Constitutional Tribunal would create a situation where two conflicting provisions coexist: the old one, declared unconstitutional by the Constitutional Tribunal, and the new one, enacted by the legislature after the ’non-existent ‚ [p. 43-44].

These are just some of the numerous complications that a decision to void all judgments issued by improperly composed panels could lead to. While some of these could be mitigated by introducing appropriate transitional provisions (such measures are indeed contained in the abovementioned draft law proposed by the Stefan Batory Foundation), it remains exceedingly challenging to determine all the effects certain Constitutional Tribunal judgments have had. Consequently, introducing provisions that sufficiently safeguard individuals from all potential negative consequences would be a very difficult task. Indeed, it would be even more difficult if the declaration of non-existence concerned not only the Tribunal’s substantive judgments but also procedural decisions such as admissibility decisions.

Or Not to Void?

Hence, a more moderate approach appears preferable. This might entail reopening proceedings before the Constitutional Tribunal that concluded with judgments issued with participation of unlawfully elected persons. This would avoid many complications related to the abovementioned automatic revival of provisions deemed unconstitutional in irregular proceedings. However, current legislation does not provide for the reopening of proceedings before the Constitutional Tribunal. Moreover, Article 190(1) of the Constitution stating that judgments of the Constitutional Tribunal are ‚final‘ has traditionally been interpreted as prohibiting the introduction of mechanisms that allow challenges to the Tribunal’s decisions. Other questions pertain to whether such a mechanism should be a permanent institution or limited to the period of restoring the rule of law, how to regulate the procedural aspects of these proceedings (e.g., initiation of proceedings by application or ex officio), and what the implications of judgments issued through this process might be. For example, would it result in the reinstatement of provisions wrongly deemed unconstitutional in irregular proceedings?

Other solutions are also conceivable. The most conservative one would be to refrain from legislating on the effects of judgments and instead declare irregularities in the Constitutional Tribunal’s actions through a non-binding resolution of the Sejm. Additionally, the legislature could reinstate regulations deemed unconstitutional by the Tribunal by re-enacting relevant laws or change those laws which were found by the Constitutional Tribunal to be in conformity with the Constitution. In addition, relevant authorities could once again challenge regulations previously upheld by the Constitutional Tribunal, under questionable circumstances. However, such an approach may not align with the recommendations of the Committee of Ministers of the Council of Europe. Furthermore, it fails to address the situation of individuals whose rights have been violated as a result of, for example, the discontinuation of proceedings on constitutional complaints by the Constitutional Tribunal in an improperly composed panel (as in the Xero Flor case). It also leaves open how to treat Constitutional Tribunal judgments on the alleged unconstitutionality of the ECHR or EU treaty provisions in the absence of a legislative response.

Towards a Middle Ground

When determining how to regulate the legal consequences of Constitutional Tribunal judgments issued by unauthorized individuals, the authorities should consider any potential effects on the legal system, legal certainty, individual rights, and trust in the legal framework. After all, the process of restoring the rule of law in Poland should adhere to the principle of the rule of law and legal certainty is undoubtedly one of its essential parts.

We have to keep in mind that the Constitutional Tribunal has been rendering judgments involving unlawfully elected individuals for nearly seven years. These judgments now number close to a hundred, and it would be challenging to assert that all these rulings simply do not exist. For years, they have been treated as existing by both state authorities and individuals. Moreover, many of these judgments have led to effects that cannot be easily reversed.

Effectively regulating the legal status of these judgments is a complex task, and there is no ideal solution. A suitable approach should involve mixed measures that harness the strengths of the various proposals available while avoiding or limiting their weaknesses. For instance, one could envision the introduction of a reopening procedure for constitutional complaints that were declared inadmissible or unfounded. Such rulings, unlike those declaring provisions unconstitutional, do not have extensive legal consequences, making their nullification less complicated. Yet, from an individual rights perspective, the possibility of reopening proceedings in cases concluded unfavorably for the individual applicant is of utmost importance. After all, this is precisely the type of case the ECtHR judgment in the Xero Flor case pertained to. The reopening procedure could also be an acceptable mechanism for rulings which declared the unconstitutionality of laws, provided it precludes the revival of the previously repealed provision. This would avoid the abovementioned risk of legal chaos. Simultaneously, nothing would prevent the legislature, even before the Tribunal’s reexamination of the case, from taking step to reinstate or amend certain provisions erroneously assessed by the Constitutional Tribunal in judgments passed in unlawful composition.

On a cold night of 25 November 2015, several activists and lawyers spontaneously gathered in front of the Polish Parliament to protest against the ongoing dismantling of the independence of the nearby Constitutional Tribunal. I am among them. Like my colleagues, I am convinced that this is a fundamental moment for the rule of law in Poland. It will only get worse later.

Eight years later, our fears have sadly proved to be correct. The political co-optation of the Constitutional Tribunal has eliminated its role in Poland’s checks and balances. The judges, although associated with the ruling party, are conflicted and some of them refuse to rule, the number of proceedings has fallen dramatically, and the Tribunal’s authority has all but disappeared. It is not enough now to pick it up, shake it off, straighten it out, and put it back to where it was in 2015. Instead, if the opposition wins the election, it must rebuild an institution that is both an effective constitutional player, capable of checking the government and a trustworthy and reliable avenue for Polish citizens to assert their constitutional complaints.

Resurrecting A Flawed Institution                                                                                                    

The current Constitutional Tribunal enjoys, to put it mildly, low public confidence.  It is viewed positively by just over 20% of citizens and negatively by over 40%. The worst rating since the beginning of this millennium was given in 2021 when 60% of the public rated it badly [p.7]. Compared to the previous measurement in 2016, 6 years later, trust in the institution has fallen by as much as 13 percentage points, while distrust increased by 14 points. This is a measure of decline, likely linked to the fact that the Tribunal is often seen as acting in the ruling party’s interests.

For example, its decision to restrict the right to an abortion caused great public indignation, with there being massive street protests. Some suggested that the government made this unpopular change at the hands of the Tribunal in order to shrug off its responsibility and criticism of abortion law change. Yet, it also backed the government’s narrative regarding the primacy of Polish law over EU law, even going as far as ruling that Article 6 of the European Convention on Human Rights was incompatible with the Polish Constitution insofar as it allowed to question the legal status of judges elected by the improperly appointed National Council of the Judiciary. At the same time, the Tribunal has also definitely decreased its activity. In 2022, it issued 14 judgments. This is the least in 24 years. More verdicts were issued by the CT even during the COVID-19 pandemic: 24 in 2020, 19 a year later.

At the same time, the positive ratings of around 40-50% expressed before 2016 should hardly be considered a success. Notably, while we can’t compare problems that the Tribunal faced before 2015 with the ones from 2023, it would be intellectually dishonest to paint it as having a flawless record. In particular, the Tribunal was historically criticized for its undue and excessive formalism that rendered it an ineffective avenue of redress for citizens with constitutional complaints. Thus, in rendering a complaint, the individual could only challenge the provision based on which the lower court had, at first instance, ruled on the freedoms, rights or duties of the individual. This restriction led to the de facto impossibility of challenging a provision that was the source of unconstitutionality simply because it was not referred to in the operative part of the decision of the public authority or the lower court. As a result, a citizen, feeling wronged by the state, would send in good faith a complaint to the Tribunal, which often already at the so-called pre-court stage refuses to proceed with the case.

Another problem pertained to the limitation on the scope of cases that employers‘ organisations or trade unions could refer to the Tribunal. Again, the Tribunal’s restrictive interpretation meant that anything not directly related to employee-employer relations was rejected at the pre-court stage. This means that situations in which the right of the members of an employers‘ organization were violated due to an excessive restriction of economic freedom went unchecked. An example is the discontinuance in 2004 of a constitutional complaint by the Polish Confederation of Private Employers against selected provisions of the Copyright and Related Rights Act. The Tribunal reasoned that according to the scope of its legitimacy under art 191 of the Constitution an employers‘ organisation is not entitled to refer to it a proposal for legislation relating to economic activities outside the sphere of labour relations. As such, it simply ignored the constitutional arguments the Confederation brought forward to challenge the Act’s abolition of the regulation of the „statutory licence“ for cable network operators without preserving the appropriate vacatio legis.

Given the Tribunal’s track record of disappointing citizens’ constitutional complaints and letting constitutional violations persist, it is hardly surprising that the Polish public might not have been as eager to defend an institution that has not served them well.

Restoring the Rule of Law without Violating It

These examples should be born in mind when considering how to rebuild the authority of the Tribunal. Yet, given the changes that have occurred since 2015, we must also find a solution to the bigger challenge of restoring the rule of law itself. The options available in this regard will differ, depending on whether the opposition takes full political power including the presidency, or whether it gets a small majority in parliament. Irrespective of the precise electoral outcome, we must agree on the principle that the rule of law must be restored not by legal violence, but precisely by legal and democratic means.

A core issue, in this respect, pertains to how to redress the political disfigurement of the Tribunal’s current membership. Some of the sitting judges are so-called understudies (or doubles) because they took the places of those judges who were lawfully elected in 2015. With them, the situation seems clear: they have no right to continue holding their place and can only come to the Tribunal building as an audience. Others might have been legitimately elected but have, to put it mildly, undermined the dignity of the office. It is not even a matter of taking part in issuing peculiar verdicts as in the case declaring article 6 of the ECHR incompatible with the Polish Constitution. Instead, they have manipulated the Tribunal’s composition and delivered favorable rulings for the government’s agenda.

If elected, should the opposition repeat what Law and Justice MPs did on that cold November night in 2015 and recall every current judge by a Sejm resolution and appoint new ones?  While the objective might be to appoint better and more independent judges, such a move would violate fundamental principles of the division of power and the protection of judiciary independence. Many support this move. They cite the exceptional circumstances, and the fact that the rule of law must be fought for, including with means that might violate it. This ignores that it would clearly set a dangerous precedent for each successive government, such that with each new term parliament and government, politicians might feel emboldened to change the composition of the constitutional court. There is also the further risk that the current judges of the Constitutional Tribunal, removed in this way, will return from Strasbourg a few years later clutching a verdict stating that Poland has violated Article 6 of the Convention and claim they were victims of “democratic” oppressors.

Visions for a New Constitutional Tribunal

A Team of Legal Experts operating at the Stefan Batory Foundation (in particular Prof. Sławomir Patyra and Dr. Tomasz Zalasiński) have tried to come up with a reform proposal that addresses both these challenges. In particular, they did not limit themselves to developing a concept to restore the rule of law, but also considered the Tribunal’s successes and failures over the last 30 years. They agreed that an entirely new draft law on the Constitutional Tribunal should be created to tackle the issues connected with the Tribunal’s excessive formalism, the outsized role played by the President of the Tribunal, and others. A separate draft includes introductory provisions to address the problem of transitioning from a quasi-institution devoid of authority to a constitutional court enjoying respect and operating based on the rule of law.

Their core assumption was that the draft legislation must comply with the current Polish Constitution (as well as all international, binding legal documents). This is a realistic stance, both because the opposition is unlikely to gain the necessary majority to amend the Constitution, and even if they did, the last thing Poland and its polarised society currently need is a debate about the fundamental rules of the state.

The authors make the further assumption, based on a ruling by the then still independent Tribunal that the so-called „doubles“ and those who took their place ought to be automatically removed from the bench. For the remaining judges who have misappropriated the dignity of a judge, disciplinary proceedings conducted within the Constitutional Tribunal should be initiated. To this end, they propose that retired judges of the court should also be included in the conduct of disciplinary proceedings. This will introduce a greater deal of objectivity and simplify proceedings that are supposed to involve those currently sitting on the Tribunal’s bench. The change is intended to be permanent to render future disciplinary proceedings more effective [p. 9 of the draft law on the Constitutional Tribunal].

According to the draft introductory provisions, judgments of the Constitutional Tribunal issued with the participation of “doubles” shall be deemed invalid and do not produce legal effects as provided for in Article 190(1) and (3) of the Polish Constitution. The draft also introduces the obligation to repeat all procedural actions in which persons not authorised to adjudicate participated. In the name of the rule of law and building trust in the Tribunal, this measure must avoid that citizens whose cases have been brought before the Tribunal over the last 8 years will suffer. For this reason, the draft stipulates that with regard to constitutional complaints and legal questions, the invalidity of a judgment of the Constitutional Tribunal does not entail consequences for the validity of rulings issued in individual cases. This exception applies when following a judgment of the Constitutional Tribunal, issued with the participation of the “doubles”, court proceedings have been resumed or a judgment or administrative decision has been issued in an individual case.

Moreover, to reduce the Tribunal’s President outsized role in determining if and how it chooses to resolve complaints, the draft of Law on the Constitutional Tribunal recommends granting greater powers to the Assembly of all judges. This would render the management of the Court’s work more collegial. To ensure greater transparency in the functioning of the constitutional court, the draft also recommends the adoption of a principle of openness for all hearings, and to include a public hearing phase with the participation of non-governmental organisations when selecting judicial candidates. To address the Tribunal’s perceived problems from before 2015, the draft also suggests strengthening the principles of active legitimacy of Civil Society Organisations and to broaden the scope of the constitutional complaints [art.35 of the draft law on the Constitutional Tribunal].

Conclusion

The attack on the Tribunal was like the first brick taken out from the rule of law wall. As such, its “renaissance” must be on the top of the agenda once the new democratic government is elected. Any reform that is undertaken must, however, not just ensure that the rule of law is restored without legal violence, but also redesign the Tribunal so it serves Polish citizens effectively. Because you will only defend the rule of law if you feel that institutions are governed by law, common sense and empathy.

Ensuring the integrity of elections is a foundational concern for any democratic state. Yet, it faces a grave challenge in Poland, emanating from the Chamber of Extraordinary Control and Public Affairs of the Supreme Court. Created in 2018 following controversial changes to the national judicial system and tasked with reviewing the validity of parliamentary elections, the Chamber fails to meet the essential criteria of an independent court. Confirmed by rulings of the European Court of Human Rights and the Supreme Court itself, the Chamber’s flawed origin and staffing, dependent on political influence and in departure from established rules of law, undermines its capacity to authenticate the fairness and legitimacy of elections. This echoes beyond Poland’s borders as well, since the Chamber’s defective status fails to meet European standards of effective judicial protection, thus raising concerns in the context of European integration. The following analysis delves into the Chamber’s position, examines its role in validating electoral process and its impact on the democratic legitimacy of Poland’s Parliament.

The Supreme Court’s Role in Validating Electoral Results

Parliamentary elections are democracy’s most essential ingredient, the primary means of exercising a nation’s sovereignty. It shapes the personal composition of parliament, provides it with a mandate to operate, and legitimizes its actions as well as those of the government that parliament sets up. Because elections are an indispensable institution of democratic life, they must both be fair and embody ‘to the greatest extent possible, […] the will of the Nation’ (judgment of the Constitutional Tribunal of 20 July 2011, case K 9/11, section III.2). In a functioning democracy, their integrity should be secured by adequate safeguards, protecting the conduct and outcome of elections from manipulation and unlawful interference.

The 1997 Constitution of Poland permits the Supreme Court to judicially review the validity of parliamentary elections through two separate avenues (Article 101 of the Constitution). One avenue takes the form of voters’ protests against the validity of elections. Designed to protect the subjective right of an individual voter, they are examined on request, and allow challenging both the entire election results as well as election of individual members of the Sejm and the Senate. However, they are limited in scope and require the occurrence of either (i) criminal offenses against elections, that have an impact on voting or determination of the results; or (ii) breaches of the Election Code that have an impact on the outcome of elections and relate to voting or determination of the results (cf. Articles 241 and 258 in conjunction with Article 82(1) of the Election Code of 5 January 2011).

By contrast, the general determination of the validity of the elections is of a systemic nature. It is carried out ex officio, has a broader scope, and only permits challenging the entire election. It occurs independently of whether any election protests have actually been filed. The Supreme Court, on the basis of the election report submitted by the State Election Commission and the opinions issued upon examination of protests, eventually decides on the validity of the election.

Exclusive jurisdiction to decide in both avenues is entrusted to the Supreme Court, and within it to the Chamber of Extraordinary Control and Public Affairs. However, the Chamber is incapable of carrying out genuine judicial review since it is not an ‘independent and impartial court established by law’, as confirmed both by ECtHR and by the Supreme Court itself on 23 January 2020. Created for political reasons in 2018 in a wave of changes in the judicial system in Poland, packed with people supported by the ruling majority, the Chamber cannot conduct fair, impartial examination of the elections’ integrity. A body that itself was appointed contrary to the law, in an inherently deficient procedure, is incapable of ensuring the fair exercise of judicial functions and authenticate the electoral process and lend legitimacy to its outcome.

A European problem

Poland’s supranational integration into the European Union, and accession to the ECHR renders the threat to democracy and the rule of law that emanate from the Chamber not just a matter of domestic concern.

The ECtHR considers democracy a fundamental element of the ‘European public order’ [para. 67], while the right to free elections is crucial to an effective and meaningful democracy governed by the rule of law [para. 58]. Accordingly, the national system should be adequately safeguarded against arbitrariness in the electoral process [para. 63], and provide for an effective examination of individual complaints and appeals in matters concerning electoral rights [para. 81]. This is key to preserve the integrity of the election and the electorate’s confidence in Parliament, guaranteeing its legitimacy and enabling it to act without its composition being contested [para. 87].

Union law may apply to national parliamentary elections only when a link between the national situation (the elections) and that law is established. While Article 2 TEU embraces the value of democracy, which all acceding member states are obliged to respect (Article 49 TEU), there is so far little case law on it by the CJEU.

The Commission’s reasoning in the recently initiated infringement procedure against the so-called lex Tusk provides helpful guidance on such a link. In the context of the upcoming parliamentary elections, the ruling majority created a Committee for Investigating Russian Influence, designed to target the opposition leader, Donald Tusk. Invoking, inter alia, the principle of democracy and Articles 2 and 10 TEU, the Commission held that such a committee could unduly interfere in the democratic process. The committee’s activities, including investigations and public hearings, risk gravely damaging the reputation of candidates in elections, and the committee’s ruling that a person acted under Russian influence, is likely to curtail the effectiveness of political rights of those democratically elected.

In its grounds, the Commission cited Article 10(1) TEU, founding the functioning of the Union on representative democracy, which gives concrete form to the value of democracy (C-502/19 Junqueras Vies, para. 63). In line with Article 10(2) TEU, Member States are represented in the European Council by their heads of state or government and in the Council by their governments. Yet, those very heads and the governments are also democratically accountable to their national parliaments or citizens. The link between national elections and the principle of democracy at the EU level would therefore lie in the nationally elected representatives designating the authorities, which then make and legitimize decisions at EU level. The CJEU signalled this in Case C-157/21 Poland v. Council by linking, in the context of democratic values of Article 2 TEU, the voting in the Council of the EU with the need to ensure that the Council’s decisions be sufficiently representative of both the Member States and the EU’s population.

If such a linkage is established, other key mechanisms of Union law apply, most notably, the non-regression principle espoused in the C-896/19 Repubblika ruling (para. 63-64), which we believe could also come to apply to the value of democracy and not only to the value of the rule of law.

Furthermore, in the context of judicial nature of the review of electoral process, there is an important role for the Union’s principle of effective judicial protection and the Court’s jurisprudence concretizing the value of the rule of law under Article 2 TEU and setting standards of judicial independence under Article 19(1)(2) TEU and Article 47 of the EU Charter of Fundamental Rights. Under Article 52(3) of the Charter, these standards are directly linked to the standard set by the ECtHR’s case law.

Neither Independent, nor Impartial

In Dolińska-Ficek and Ozimek, the ECtHR ruled that the Chamber was not an ‘independent and impartial court established by law’. The Court found a manifest breach of domestic law, as the appointment procedure for judges to the Chamber involved the National Council of the Judiciary (NCJ), which was found to lack the necessary independence from the legislative and executive powers following its political co-optation. Thus, while the selection was previously made by judges themselves, in 2017 it was entrusted to the Sejm. This not only violated existing constitutional practice but conferred the ruling majority to nominate 23 of the 25 NCJ’s members. Furthermore, the President of the Republic manifestly violated the law when appointing judges to the Chamber in deliberate disregard of a binding Supreme Administrative Court order suspending the execution of the NCJ’s resolution recommending these candidates.

In the resolution of 23 January 2020, the Polish Supreme Court – in its legitimate composition – reached the same conclusion. Acting in implementation of the CJEU judgment in A.K. and Others, which indicated the criteria and methodology for assessing judicial independence, the Court held that a court formation is unduly appointed and unlawful when it includes a person appointed to the Supreme Court on recommendation of the National Council of the Judiciary as re-constituted in 2018. In particular, it was clear from that resolution that the judges sitting in the Chamber of the Extraordinary Control and Public Affairs cannot be recognised as impartial and independent. Even more so, all rulings issued by them after 20 January 2020 were to be considered as voidable in the Polish legal system.

The CJEU took a similar direction in C-487/19 W.Ż.. Despite being an interpretative preliminary ruling, it opened the door for the Supreme Court to recognize that the Chamber’s members do not meet the requirements of Article 19 TEU and Article 47 EUCFR. Moreover, the CJEU stated that judgments of such judges cannot be considered as binding for other formations of the Supreme Court [para. 161]. Yet, it was eventually left to the Supreme Court itself to decide this issue. While the files of this case were returned to the Supreme Court following the preliminary ruling in 2021, as of today, no final ruling has been issued in the case. However, the panel who should decide that case has been changed and is now composed of judges having a comparable problem with their nomination procedure as described in Dolińska-Ficek and Ozimek.

Clear, conclusive rulings of the Supreme Court and the ECtHR, show that the Chamber neither meets domestic nor European requirements of an independent and impartial court established by law, thus failing to fulfill the basic constitutional premise for reviewing the election validity, having it done by a ‘court’. Hence, its resolution on the matter will not add any legitimacy to the electoral process.

A Bad Track Record

The Chamber’s existing practice in assessing the validity of elections itself substantiates doubts about its ability to maintain integrity and thoroughness in the assessment. In a resolution of 3 August 2020, the Chamber confirmed the validity of the 2020 presidential election, which brought Andrzej Duda to a second term, despite multiple violations of the Constitution in its ordering, preparation and conduct.

First, the presidential election were held at a time that did not comply with Constitution’s rules. Originally ordered for 10 May 2020, the elections were ultimately held on 28 June (first round) and 12 July (second round). While the original date was determined in line with the Constitution, requiring the election date to be set for a day between 75 and 100 days before the end of the ongoing term (this was 6 August 2020), the setting of the new election date for 28 June was made without a legal basis, and was outside the constitutionally prescribed time limits.

Second, the rules for the preparation and conduct of presidential elections were amended several times during the electoral process, despite there being a constitutional ban on major changes to the electoral law at least six months before the election (cf. case 31/06, judgment of Constitutional Tribunal of 3 November 2006, Section III.6.5; case Kp 3/09, judgment of Constitutional Tribunal of 28 October 2009, Section III.2.3).The ruling majority changed the voting method (traditional v. correspondent voting), and switched the authorities responsible for preparing elections, setting the template of ballots and administering their printing (the State Electoral Commission ­– an independent  body v. the Minister of State Assets – a member of the government).

Third, electoral laws were amended in an emergency situation and for ad hoc political purposes, despite an express constitutional prohibition thereof (cf. case K 9/11, judgment of Constitutional Tribunal of 20 July 2011, Section III.2). The election was to be held during the ongoing Covid-19 pandemic, and because of it, the government introduced first a ‘state of epidemic emergency’ and then imposed a ‘state of epidemics’ – both unknown to the Constitution. Yet, the circumstances and effects of their introduction resulted in restrictions on the rights and freedoms of individuals. While this made them functionally identical to the ‘state of emergency’ provided for in the Constitution (Article 228 et seq.), this provision specifically precludes amending the electoral laws and holding elections. Thus, by imposing extra-constitutional ‘epidemic states’, the ruling majority circumvented the Constitution. They deliberately avoided the emergency regime established therein, although – by introducing the ‘epidemic states’ – at the same time they did admit that ‘ordinary constitutional measures are insufficient’, which was indeed the constitutional premise to introduce a ‘state of emergency’. It was clear, the supreme value was to hold elections at all costs to consolidate their own power.

Fourth, in considering the individual election protests, which were filed after the 2020 elections in the number of 5847, the Chamber was particularly restrictive in assessing the formal admissibility and substantive legitimacy of many of the applications. Approximately 88% of protests were left without consideration, including, those concerning financing the election campaign, the way candidates were portrayed in the public media, the course of legislative process, and the compliance of legislation and actions of state bodies with the Constitution (cf. Resolution of the Supreme Court of 3 August 2020, p. 5). However, the Chamber itself admitted the differentiation of candidates as to the length of the election campaign and the limits on election expenditure, the unequal access of candidates to the mass media, or the violation of standards for a neutral approach by public authorities to the election campaign [p. 11]. Nonetheless, without any in-depth analysis or argumentation, thus indeed arbitrarily, the Chamber concluded that these circumstances did not restrict the free choice of candidates and did not affect the validity of the elections [p. 11].

The Chamber’s Shattered Legitimacy

The last elections were ordered at an unconstitutional date, conducted on the basis of unconstitutional legislation adopted in circumvention of the Constitution, with unequal treatment of candidates, and overwhelming support of the government-controlled media for the candidate of the ruling party. The elections therefore manifestly did not meet the required standard of fairness and thus could not confer proper democratic legitimacy on the person so elected. Nonetheless, the Chamber confirmed their validity, putting again into power the very person who had previously appointed the Chamber’s members in an unconstitutional manner, in manifest breach of domestic law, the EU law and ECHR. It did so while the presidential challenger, Rafał Trzaskowski, announced a review of the defective judicial appointments to the Supreme Court. The Chamber’s members, therefore, had a personal interest in the continuation of the presidency of the person who had appointed them and guaranteed their continued tenure as Supreme Court judges. This circumstance alone undermined their impartiality in reviewing the validity of elections and was a legitimate ground for recusing them from ruling on the issue.

The Chamber of Extraordinary Control and Public Affairs is a defective body that does not operate independently and impartially. It has already authenticated elections run in clear violation of the Constitution and electoral rules. Its existence and operation both mirror and the contribute to Poland’s distorted democracy and shattered rule of law.

The effect of Van Gend en Loos was to take Community law out of the hands of politicians and bureaucrats and to give it to the people. Of all the Court’s democratising achievements none can rank so highly in practical terms

– Former Judge of the Court of Justice the Late Federico Mancini

As we gear up for the most consequential elections in Poland since 1989, the situation on the ground after 8 years of the paranoid polarizing and no-holds-barred politics, forces all those concerned about the future, to ask where Poland is heading. On 13 October 2023, we must understand that POLEXIT is much more than a mere dispute over institutions, rule of law, judicial independence, etc. What is at stake now is incomparably greater. It is the defense of a certain way of life, values and belonging to a community of law and values, a civic Poland in Europe and Europe in civic Poland and finally of “Me and You” as part of Europe.

Polexit. What’s really in a name?

The European Union’s liberal foundations are challenged by one country, something that no one saw coming in 1952. The ruthless logging in the Białowieża Forest was the first step towards POLEXIT, as I have already predicted in August 2017. Attacking the preliminary ruling procedure, initiating disciplinary proceedings against judges who apply EU law, failing to implement the judgments of the Court, and openly ridiculing the Court, this is already, unfortunately, POLEXIT. In the past eight years, Poland has offered an aggressively and unilaterally antagonistic understanding of the initial decision to come together. Ad hoc politics and the irrepressible lust to maintain power per fas et nefas (the volte-face on Ukraine is the clearest evidence of this political degeneration and of the shameless pandering to the electorate) are more important than our membership in the Union and the image of the country. According to PiS rhetoric, “We Poles” are unique in that we differ fundamentally from others in our understanding(s) of constitutional essentials, since even the rule of law or judicial independence allegedly mean something different in Poland than elsewhere, and there is no consensus in this regard at the core level with other Europeans. Europe is being told that according to the Polish “understanding” of the rule of law, judges and prosecutors can be dismissed/transferred by fax from the ministry, there are disciplinary proceedings for referring questions to the Court of Justice and that the decisions of the Court can be ignored as allegedly imposing on us “foreign” legal standards and values. In such a situation, the core values stabilized at the level of the European Union member states in contrast to our “understanding” of the community and its values, must lead and have led to an inevitable clash.

A challenge to the community of citizens

The attacks on the Court of Justice and contempt for the Union not only marginalize Poland within the community and ultimately push Poland out of the Union, but also turn the Polish citizen back into a servant of the state and a second-class European citizen, deprived of the protection afforded to citizens in other countries by European law and the independent courts. This is a return to a world in which we the citizens are cast in the old role of somebody to shine only through the reflected light of the state and to obey its will. The citizen is to live in the shadow of the “constitution of fear”. Here we come to the essence: what should it mean for a citizen to be part of the integrated Europe? Thanks to European integration, the citizen no longer belongs solely to the territory demarcated by the borders of “his” state of origin. He makes his own choices and decides where he wants to work or buy a car. European law has survived precisely because it has been and is being applied in the individual citizens’ cases in the local courts of the member states. The spirit of integration, captured by the opening words of Judge F. Mancini, has been to liberate the citizen from the strait jacket of the all-powerful state, in whose shadow the citizen has hitherto lived. The contradiction between the European vision and ideal and the doctrine according to which PiS lives and breathes is thus fundamental. While, according to PiS narrative, the citizen is supposed to live under the shadow of a “constitution of fear”, which allows the state unlimited discretion to interfere in his rights and life, post-war Europe has promoted a constitutional culture of restraint and limitation. While the vision of the state adhered to by PiS seeks to handcuff the citizen, the Union frees us from this statal framework and opens up new possibilities. While European law offers a chance to win over the powerful state (the recovery of excise tax by Polish importers of used cars is one of many examples), PiS narrative understands “a good citizen” as a controlled citizen, convinced that the state’s decisions are always good for him, and meekly accepting them. From captured state to captive mind …

Before our eyes, a spectacle is playing out in Poland, with everyone playing their part on a political game board called “How to manipulate the law and institutions” and “How to destroy the law and institutions when they resist”. This spectacle of hatred is played out to the accompaniment of sovereignty war rhetoric, and the soloists are government representatives who outdo each other with ignorance, repeated contempt of court and tearful scenes of martyrdom in the hope that their electorate will see and appreciate it. One dreads to think what will happen when citizens buy (have they already bought?) this politically orchestrated spectacle and, on October 15, 2023, forget the last eight years of contempt shown by the state to the law, the Constitution and themselves.

However, this spectacle becomes a historical drama when questions about Poland’s participation in the Schengen area are increasingly heard in the background. Here it is no longer about the Court, the Supreme Court, the courts, etc. It is about all of us citizens, about our freedoms and liberties that European law guarantees us, which we will lose when POLEXIT becomes a ghastly fact. That’s why it’s the citizens who must ask today about the far-reaching European consequences (for themselves) of the paranoid policies of PiS, where everyone is our enemy plotting to the detriment of Poland – the chosen one among the nations –, where Poland repeatedly questions the foundations of the Union, rejects the authority of the courts and court rulings, and has turned disdain for the political adversary, corruption and insolence into “virtues of governance”. The citizens must understand that with the election of a party that rejects the separation of powers, tolerance of others, promotes chauvinism, division, and elevates distrust and pettiness, there is also a European price to be paid one day.

The Union is only enforcing the terms of the contract we have voluntarily signed in 2004. Europe will not defend itself unless each of us is ready to defend it here and now. Recalling the foundations therefore rises to crucial importance. We cannot take Poland’s membership in the EU for granted and as part of our everyday life. Freedom to travel, to work, to shop in Berlin, to vacation in Greece – all this cannot be taken as given. Have we forgotten that the border separated us from Europe only 19 years ago, and that a passport was essential to travel? When we give up on the community that we are part of, we must also be ready give up this opening and all the opportunities that come with it.

The power of dissent

Being part of the community of values and law to which the generation of my grandparents, parents and mine too aspired to, and dreamed of, means that its members voluntarily adopt certain rules of conduct that bind everyone as a condition of living side by side as equal partners and neighbors, no longer perfect strangers. Diversity (the perspective of member states) is constantly seeking an accommodation with the pursuit of uniformity (the perspective of the Union). For that to happen, though, an element of good faith must always be present, and this is where Poland has failed the Union … and is now failing us. Today we live in a state devoid of any checks and balances, where power is uncensored and can, and in fact does, do anything. The actions of the last 8 years to take over independent institutions are coming to a ghastly logical close at the worst possible time for both Europe and our civil rights and liberties. When laws and institutions begin to serve ruthless politics instead of civilizing and restraining it, one of the cornerstones of the post-war European order is destroyed: the belief that any political power must be a power limited and controlled by institutions independent of it, primarily the courts. Let us therefore be aware of what is at stake in the uncompromising political game. It is our continuance in the European community of law and values, whose rules and principles we voluntarily accepted in 2004 and which were the dream and aspiration of entire generations of Poles after 1945, or … a definitive POLEXIT.

So when I think of Poland in 2023 two days before the parliamentary elections, I return yet again to a poignant poem about the power of dissent and the courage to speak out in times of trial by K. Cavafy, Che Fecce … Il Gran Rifiutto:

“For some people the day comes when they have to declare the great Yes or the great No. It’s clear at once who has the Yes ready within him; and saying it, he goes from honor to honor, strong in his conviction. He who refuses does not repent. Asked again, he’d still say no. Yet that no – the right no – drags him down all his life”.

On 13 October 2023, I revisit Cavafy’s words and search for my own civic great “YES” and/or “NO”. Understanding the consequences of the devastating and hateful politics of resentment and exclusion that is pushing our country and us citizens into the abyss of POLEXIT must be the first and necessary civic step. Therefore, I make my own when I speak up to defend what I hold dear by shouting out: “This is My Poland in Europe and Europe in Poland”.

What and How will you choose on 15 October 2023?

In the last eight years Poland experienced an illiberal shift. Key elements of constitutional democracy were undermined. The story is well-known to public law scholars, particularly with respect to judicial reforms. However, off most people’s radar have been the changes which increased the role of state-controlled and state-owned firms (SOEs) in the Polish economy which have supported Poland’s illiberal tendencies. The pre-election period is illustrative in this respect, with the ruling majority having benefited from various kinds of support from SOEs which undermined a level playing field. The Polish experience arguably sheds light on constitutional democracies’ weaknesses in effectively addressing the links between political and market power which can increase democratic backsliding. In this blogpost, I will highlight why the existing legal framework, in particular remedies available in law aimed at imposing limits on the use of market power, i.e. competition law, are insufficient to address this risk and why a broader debate in public law is necessary in this respect.

Looking Back

Poland’s post-1989 transformation affected not just its political system. In parallel to democratic change, a rule of free and open markets (in place of a state-commanded economy) was introduced and many former state enterprises were privatized and sold to foreign investors. Since 2015, however, the role of state-owned or state-controlled firms (SOEs) started growing significantly. While this process was already under way from 2011 onwards with privatization slowing down significantly, the scope and depth of post-2015 change was unprecedented. Privatization stopped completely, with the state regaining control over previously privatized companies. The re-nationalization processes have involved the banking and energy sectors and followed the Law and Justice (PiS) party’s political agenda. The first spectacular re-nationalization process involved the state-controlled large insurance group PZU, along with the state investment fund PFR, buying a controlling stake in Poland’s second largest bank, Pekao SA, from the UniCredit bank group. Another prominent example involved the acquisition by PGE, the largest, and state-owned, electricity producer in Poland of EDF Polska, a subsidiary of French EDF, the owner of an energy plant in Rybnik, the fourth-biggest producer of electric energy in Poland and the only one not controlled by Polish state-capital. As a result, SOEs dominate these two sectors today.

Another central development has been the increase of market power of already powerful SOEs. Orlen, a Polish oil refiner, has emerged as a key actor by acquiring control over its competitors and entering new markets. Post-2015 transactions involved Orlen’s acquisition of its primary competitor, Lotos, in the fuel market, and the acquisition of Energa and dominant PGNiG in the natural gas market. Most controversially, Orlen entered the regional media market by acquiring Polska Press, the owner of several leading regional newspapers, and the press distribution market by acquiring Ruch. These transactions created the most powerful company in Poland and one of the most powerful in Central Europe with unparalleled economic power. Orlen’s close alliance with the ruling party is due not just due to the state-treasure controlling assets in Orlen and its supervision by the relevant ministry but also due to direct personal links to PiS, including Orlen’s CEO declaring himself directly to be a PiS member. Orlen is an example of a broader trend that has seen the reduction of SOE’s decisional autonomy and their transformation into a financial resource for the ruling party, with well-paid jobs in these firms being dished out as rewards for party loyalists.

The Limits of Competition Law

Competition law appears well-suited to limit the increase and potential abuse of market power by SOEs in countries like Poland. Indeed, competition authorities review mergers which may lead to significant impediment of effective competition and are entitled to intervene when firms enter into anticompetitive agreements or abuse dominant position on the market. However,  an extensive study on Poland and Hungary (and on the EU response) has shown that competition law has not remained unaffected from the broader illiberal trends characterizing the countries ruled by populist governments. Competition authorities operate in an increasingly hostile environment as both the government and most powerful state-controlled firms steer the country’s economic system into one in which SOEs are favored. The idea of open markets with effective competition, which competition authorities are supposed to pursue, is not high on the governmental agenda. What’s more, the independence of competition authorities is under challenge and resources are not sufficient. As a result, competition authorities are increasingly involved in selective enforcement: cases which have the support of the government are opened, while those which could lead to political backlash are not (or are subject only to light touch review). In such a hostile environment, the limits of competition law also become more evident. For the last few decades, competition law has predominantly been interpreted narrowly as an area of law concerned only with firms’ behavior undermining price-measured consumer welfare. This makes it difficult for the competition authorities to protect other constitutional values or to intervene when adverse effect on prices is unclear. Moreover, enforcement of competition law at the EU level, i.e. by the European Commission, only rarely fills the gap left by politically constrained competition authorities of EU Member States .

The UOKiK’s Track Record

The Polish developments mentioned above well-illustrate the challenges the national competition law system faces. The Polish competition authority (“the UOKiK”) cleared the acquisitions by SOEs either unconditionally or subject to conditions which can be deemed insufficient (see here for the analysis of EDF’s acquisition by PGE). The European Commission was close to prohibiting the acquisition of Lotos by Orlen but eventually opted for clearance on condition that Orlen will sell 80 % of Lotos petrol stations and 30% of assets in Gdansk refinery. As a result, the Hungarian MOL (Magyar Olaj) and Saudi Aramco entered the Polish market. This coincided with the invasion of Ukraine, rendering national energy security a key issue. The UOKiK also cleared the takeover of Polska Press by Orlen. Despite journalist’s associations and the Ombudsman arguing that the protection of media plurality fell within its remit, UOKiK thought it not to be value which could be protected within competition law’s consumer welfare paradigm. It also fell short in screening in depth for classic anticompetitive risk of foreclosure which is an uncontroversial task of any competition authority. It thus ignored potential risks of exclusion of Polska Press’s competing titles from press distribution networks owned by Orlen which later materialized.

UOKiK scrutiny’s of any abuse of the SOE’s dominant position has also been light in recent years, having adopted only two commitment decisions. This contrasts with earlier periods, where SOEs were often punished for abusing dominant position. After 2015, no infringement decision with fine in abuse of dominance case was adopted against the SOE, despite their significant increase in market power and other warning signs. For example, UOKiK could have scrutinized more in depth the alleged manipulation of gasoline prices by Orlen. Instead, it did not find sufficient grounds to open in-depth proceedings in the alleged case of excessive prices of gasoline at the end of 2022, and denied to even open a preliminary proceedings in an alleged case of below-cost prices, which risked the exclusion of Orlen’s competitors from the Polish market in September 2023.

Notably, the European Commission has (so far) also not been particularly eager to pick-up cases which can be politically sensitive at the national level. Indeed, even though Poland’s systemic rule of law violations are believed by the EU General Court to be able to undermine effective legal protection in competition proceedings in Poland, the Commission refused to open an investigation in the Sped-Pro case, in which a competitor claimed that the Polish SOE engaged in anticompetitive behavior in the rail-freight market. According to the GC, before rejecting the complaint the Commission should have assessed whether the complainant’s rights will be sufficiently protected in the proceedings before the UOKiK. The question about rule of law violations in Poland and the safeguards of UOKiK independence have been considered by the GC to be relevant in this context.

Market Power and (Un)Fair Elections

The increase of market power of SOEs (or private but politically-linked firms as evidenced in the Hungarian KESMA media merger case) which is not subject to sufficient check by state authorities has a negative consequence for democracy. In practice, SOEs seem to work as government agents taking actions which are perceived to benefit the ruling majority. To the extent they do so in the run-up to elections, it puts the fairness of the elections into question. In the Polish case, SOEs have been involved in the policy of financing government-linked initiatives and financial support for pro-government media. Thus, SOE’s have lent financial support to PiS’ campaign in favor of the government-initiated national referendum which will be held jointly with the national elections on 15 October. On top of it, board members of SOEs generously support the ruling party through individual donations. Special funds such as the Polish Forest Enterprise fund are also seemingly used to finance initiatives beneficial for  the ruling coalition. Certainly, the influence of SOE’s is well visible on the media market. Polish Public Television (TVP) and Polish Radio, which receive hefty state support for the realization of its public mission every year, are effectively a channel of pro-governmental message, while regional media controlled by Orlen deny the publication of promotional materials of opposition parties claiming that they go against their editorial line. Finally, SOEs may be inclined to adopt economically irrational market policies which are aimed to please consumers before elections. For example, Orlen has kept the prices of gasoline artificially low, despite high inflation and rise of global gasoline prices, as well as Polish currency fluctuations.

Constitutional Democracies’ Toolbox

These are just a few examples of how market power of state-linked firms can be used to undermine not only competition on the market but also the democratic order. Currently, constitutional democracies appear unequipped to address this risk. Regional organizations such as the EU are also not doing enough to help Member States address such risks. Competition law, while it certainly has a potential, cannot on its own address these challenges. Effective protection against corruption and the protection of merit-based character of public procurement are also key elements. Yet, both have been under attack in countries ruled by populist governments. The EU, while increasingly concerned with the negative knock-on effects this carries for its own financial interests, should do more to address these developments in the systemic manner. Moreover, policies in other areas of law such as energy, telecommunication or data protection that render the enforcement of the law ineffective must be subjected to more intense scrutiny. These include the limitation of operational independence of state regulators and the abandonment of professional character of civil service.

There is an urgent need for broader reflection among public law and EU law scholars on how constitutional law could help in addressing the challenges described. Discussion about the independence of the judiciary is not enough. We must also ask how public law can address the challenges that the political instrumentalization of market power poses for the health of democracy and the rule of law. On the institutional side, a helpful step could be to consider the constitutional entrenchment of regulatory agencies and their mission, including adding constitutional safeguards of their independence and rules concerning their accountability. We should also consider democratizing procedures in the field of economic regulation to limit the risks of regulatory capture by business interests and to enable the voices of various civil society groups to be heard. At the EU level, the rule of law challenges in Member States must be considered in a more holistic manner to better understand its various dimensions, including how it bears on the field of economic regulation.

To sum up, the toolbox of constitutional democracies does not seem to be sufficient today to tackle the interconnections between market and political power which currently converge to undermine the liberal-democratic order. An important first but on its own insufficient step is to acknowledge that connections between public law, politics and markets exist and that empirical, market-oriented studies are necessary in order to better grasp the existing interrelations.

From a systemic point of view, the Polish Public Prosecutor’s Office is very peculiar. This is especially true if one considers the changes accompanying its functioning over the past two decades. The Polish Constitution does not provide for the Prosecutor’s Office as a distinctive constitutional body, such as the Supreme Court, the Supreme Chamber of Control, or the Ombudsman. The only potential anchor for a prosecutorial body is Article 146(4) of the Constitution, which states that the Council of Ministers shall ensure the internal security of the State and public order. This establishes the government as the constitutionally responsible authority for policing and law enforcement.

For years, there has been a debate about making the Prosecutor’s Office an authority that is arguably located between the classic uniformed services (the police), public administration (tax offices), and the judiciary. In Polish scholarly discourse, two positions prevail regarding the place of the prosecutor’s office in the system of state organs – subordination to the executive, or quasi-independence based on an organic statute with the strong influence of parliament. In this blog, I will explain how PiS has exploited Poland’s adoption of the former model, and evaluate the promise and perils of a proposal to cure the current defects by rendering the prosecutor’s office (more) independent.

An Uncertain Systemic Role

Following a short period where the functions of the Minister of Justice and the Prosecutor General were separated, Poland returned in 2016 to its old model of complete systemic subordination of the prosecutor’s office to the executive, manifested in the personal union of the Minister of Justice and the Prosecutor General. Aside from the political advantages of this model, the reform’s author, Zbigniew Ziobro, pointed out that there must be a strong and democratic-based supervision over such an important authority as Prosecutor’s Office. The executive has its legitimacy from the parliamentary majority, thus is the most suitable to effectively perform that task.

However, it is still not entirely clear what the systemic status of the Public Prosecutor’s Office is. It is certainly not just an office subordinate to the Ministry of Justice. Rather, given its procedural role and its competencies, it constitutes a sort of a  „super-office“ or „super-reviewer“ of other bodies of the executive. Thus, it is not only responsible for conducting criminal investigations and filing indictments, but also participates in civil or administrative proceedings, given that the Public Prosecutor can participate on the rights of a party or participant in any proceeding conducted by the authorities and public administration, courts and tribunals.

To fulfill its role, the Public Prosecutor’s Office must retain a certain level of independence from the politics of the day. Yet, throughout Law and Justice’s rule this has been strategically hollowed out, utilizing Office’s staffing hierarchy and personnel decisions. This has been achieved by abusing the already present mechanisms of official supervision in this hierarchical structure, and new legal grounds have been added to allow, among other things, the arbitrary deprivation of investigations from prosecutors.

Undermining Prosecutorial Independence

A prosecutor shall be independent in performing the activities provided for by law. However, at the same time, they are obliged to carry out the orders, directives, and instructions of a supervising prosecutor. The supervisor has the right to change or revoke the decisions of their subordinates and may take over their cases and perform their activities. One such high-profile case occurred in the case of the so-called “envelope election”, the unsuccessful attempt to hold presidential elections at the peak of the COVID-19 pandemic in mid-2020 using a postal vote system. On April 23, prosecutor Ewa Wrzosek of the Warsaw-Mokotów District Public Prosecutor’s Office opened an investigation regarding the crime of creating a danger to the life and health of a large number of people by taking steps to hold presidential elections during the pandemic period.  On the same day, the investigation was closed by her supervisor, prosecutor Miroslawa Chyr. A day later, the National Prosecutor ordered disciplinary proceedings against Wrzosek for „obvious and flagrant violations of the law.“

Prosecutors as Informants

What is more, the supervisor prosecutors can provide information on specific cases to any person or entity, including the media, without obtaining the consent of the prosecutor responsible for a particular investigation. The law also ensures that the Treasury will bear any potential claims arising from such activities. Newsweek journalists found that the Prosecutor General has exercised this power, and in 2017, for example, the president of the ruling party, Jaroslaw Kaczynski, received information about 13 pending cases. As a result, politicians of the ruling party or journalists working in the pro-government media could have unfettered access to investigations and their secrets. And when someone suffers damage because of this – the Treasury is responsible, not the prosecutor who disclosed the information.

Rewarding Loyalists, Punishing Dissenters

All personnel decisions in the Prosecutor’s Office are subordinate to the Prosecutor General (politician) and the National Prosecutor (trained prosecutor). They have almost unlimited freedom in allocating the Prosecutor’s Office staff. Among other things, they may delegate a prosecutor to the Ministry of Justice or another organizational unit subordinate to the Minister of Justice, to another organizational unit of the Prosecutor’s Office (for more than six months per year only with the consent of the Prosecutor), and due to staffing needs, without his consent for 12 months per year to the Public Prosecutor’s Office in the locality where the delegate resides. The lack of specific criteria for the indicated delegation (as well as for its revocation) means that this power has become a tool for rewarding the faithful and punishing recalcitrant prosecutors.

One of the most notorious cases is that of Mariusz Krason, an experienced prosecutor from Krakow. In 2019, he was sent from the regional prosecutor’s office (highest level) in Krakow to the district prosecutor’s office for Wroclaw Krzyki-Zachód (lowest level) about 300 kilometers from Krakow. After six months, he should have returned to the most critical investigations in the regional prosecutor’s office in Krakow. Instead, he was sent to another assignment – to the district prosecutor’s office in Krakow’s Prądnik Biały (lowest level). He worked there until July 2020. In January 2021, he received a decision on another transfer to the prosecutor’s office in the Podgórze District of Krakow (lowest level). He was known for his criticism of the actions of the current leadership of the prosecutor’s office and his activities in the association of professional prosecutors, Lex Super Omnia (LSO), which was critical of the changes in the prosecutor’s office under Zbigniew Ziobro. He eventually won in court, which ruled that the transfers were illegal and discriminatory. Meanwhile, other LSO prosecutors were treated similarly – for example, Lex Super Omnia head Katarzyna Kwiatkowska was moved from the capital city of Warsaw to the small town of Golub-Dobrzyń.

The LSO produced a detailed report on demotions, transfers, and other methods of formal and informal pressure on prosecutors and its mirror image, a report on rewards and benefits (transfers to higher units and instant promotions) for prosecutors sympathetic to the new power in the prosecutor’s office.

The New Amendments

The Polish Parliament, with the votes of the ruling majority, has just recently introduced amendments to the Law on the Public Prosecutor’s Office that immeasurably strengthen the role of the National Prosecutor at the expense of the Prosecutor General. This follows a resolution that requires the President’s consent to appoint and dismiss the National Prosecutor and other Deputy General Prosecutors. Taken together, these changes mean that little will change. In a situation in which the president comes from the political environment of Law and Justice – the political influence of this group on the Prosecutor’s Office remains.

The above-described „evils“ of the current political oversight of the Prosecutor’s Office are well documented and analyzed.

An Independent Office?

To remedy this state of affairs, it is not enough to once again separate the functions of the Prosecutor General from the Minister of Justice. However, it is not a miraculous cure for the Prosecutor’s susceptibility to political co-optation but a mostly a symbolic statement. A deeper reflection on the systemic position of the Prosecutor’s Office is also necessary.

In this respect, the LSO has advanced a far-reaching and comprehensive draft amendment designed to strengthen the Prosecutors Office’s independence. It recommends the Prosecutor General be appointed by the President for a six-year term; to abolish the subordination of prosecutorial units; to restrict the transfers of prosecutors between units; to improve transparency in appointments and promotions; and to place limits on the issuance of guidelines, orders, and instructions to subordinate prosecutors. The project is comprehensive and contains strategic to concrete solutions related to the daily experience of prosecutors „on the front line.“

It clearly recognizes the need to change current features of the Public Prosecutor’s Office that are incompatible with the demands of a democratic constitutional state. In particular, the current subordination of criminal policy and the conduct of individual prosecutions to ad hoc political goals and the use of arbitrary (or even non-existent) criteria does not build citizens‘ trust in the state. An individual prosecutor must face real consequences for their conduct (whether disciplinary or criminal) if they abuse their function or, more importantly, perform it in an unreflective or questionable (from the merits perspective) manner.

However, its basic premise, i.e., the statement that the Public Prosecutor’s Office shall be a part of the administration of justice independent from the legislative and executive authorities leaves open who should be responsible for overseeing the Prosecutor’s actions/ functions. To make the Public Prosecutor’s Office completely independent of politicians would create a body whose independence is only guaranteed by the statutes (not by the Constitution) while performing an essential function of the state (the prosecution). In doing so, it undeniably shares responsibility in the sphere of ensuring public order with the executive. The model envisioned by the LSO might create some fundamental tensions, which may undermine the entire path of making the office less prone to ad hoc political demands. In particular, the executive may have different criminal policy priorities and a different view of the dangers to society from a particular type of crime than an independent Prosecutor General. This tension could undermine the effective and rational pursuit of a cohesive internal security policy.

The Fact and Threat of Polarization

The biggest obstacle to reforming the Prosecutor’s Office, however, is the vast polarization within the structures of the Prosecutor’s Office (prosecutors loyal to the current leadership and the so-called recalcitrant ones from associations such as the LSO). Undoubtedly, any move (especially in terms of personnel) will be perceived by one side as political/personal revenge. On the other hand, one cannot ignore the clerical mentality of the prosecutors, who have been brought up in a system designed by hierarchical subordination and lack of effective responsibility for individual procedural decisions. Specific problems can certainly be remedied, at least nominally, by implementing most of the LSO’s demands outlined above. Still, their practical application and verification will require not only goodwill but also a severe change in the mentality of those involved in the possible transition process to the new model.

Democracy’s victory over populism?

Good news for democracy from Poland? It appears that in the recent general elections, the right-wing populist Law and Justice party (PiS), won most seats but not enough to allow it to form a coalition. Donald Tusk’s Civic Coalition has a better chance of forming a coalition, which might put an end to PiS‘ eight years of rule. This, prima facie, seems like a victory of democracy over populism. Prof. Daniel Ziblatt, the author (together with Steven Levitsky) of How Democracies Die (2018) & Tyranny of the Minority (2023), twittered that „Look to Poland today to see the power of majority rule: how the hard work of cobbling together majorities can defeat an authoritarian minority faction.“

While this is certainly true, in this post we wish to flag certain warning signs that this possible democratic rotation is not the end of the struggle for democracy but merely the beginning of this process. This is because, as we claim in a recent paper (in-process), even when populists are voted out of office, their legacy – at least partially – persists.

In recent years, the populist movement was able to significantly strengthen its political achievements, but in some countries such as the United States, Brazil, and Israel (only temporarily, so far), anti-populist political forces were able to take the power away from the populists, and win the elections.

What happens to politics when anti-populists return to power? On its face, the answer to this question is simple: post-populists present themselves as the complete opposite to the populist politics, both in rhetoric and action. The best articulation for this was given by President Biden, when he was asked why he could not issue more executive orders on gun safety. The President answer was: “What I don’t want to do, and I’m not being facetious, I don’t want to emulate Trump’s abuse of the constitution and constitutional authority…. I often get asked: ‘look, the Republicans don’t play it square, why do you play it square?’ But if Democrats follow suit, our democracy would literally be in jeopardy.”

However, we believe that the answer is much more complex than that.

Populism shifts politics and the relationship between the different branches of government, in ways that transcend the populist ideology. The politicians who win office from a populist leader now act within this changed political field. Hence, even if their ideology is anti-populist, their policies can often be described as post-populism. By post-populism we mean the mechanisms of governance adopted by governments or coalition that achieve the task of taking power by democratic means from a populist regime. We focus especially on the mechanisms of governance that come close, and dangerously so, to those used by the previous populist regime

Importantly, we are not completely equating post-populist politics with populism. But we do identify several areas in which populist mechanisms persevere in post-populist era. These are, first, the Schmittian “us versus them” political divide. Second, the aggrandizement of executive power, and third the willingness to change the “rules of the game” by changing the constitution or ignoring accepted constitutional conventions, to make political gains.

That is not to say that post-populist politicians explicitly, or even implicitly, adopt the populist rhetoric or its constitutional project. Post-populists have, for example, more respect for judicial decisions, civil servants and generally do not attack elites as fiercely as populists. As important as these differences are, they cannot cover the political reality: often post-populist leaders cannot ignore the temptation to use populist policies or tools in order to entrench their political power.

The anti-populist coalition – The Case Study of Israel

In the summer of 2021, after four consecutive election campaigns in which no party was able to form a stable government, a new coalition emerged in Israel. It relied on an unprecedent coalition of parties that range from the Muslim Arab Party and left-wing parties to right-wing parties. In both their rhetoric, and the unique formation of the coalition, the new coalition seemed to present Israelis with a classis anti-populist alternative. Instead of negative portrayal of the other parties, the coalition party’s spoke of what they are for. Instead of bashing of minorities, the coalition presented its ideology as inclusive – especially of the Arab minority, which for most of Israel’s History was excluded from the coalition. The government included an Arab minister, a minister with special needs, and generally presented itself as the opposite of its populist predecessor: a government that will not allow the undermining of the state’s legal institutions as the attorney general or the judiciary. Indeed, the government’s colloquial name was “the Government of Change” precisely in order to portray that it would be the complete opposite of Netanyahu’s previous governments.

At first blush, the Israeli story is that of an anti-populist parties’ success at blocking a populist movement. A careful look, however, reveals a more complicated picture. Clearly, because the government did not last more than 18 months, and after a fifth round of elections the most far-right and religious government Israel ever had, had won the elections. That government initiated a far-reaching judicial overhaul, met with world-famous, unprecedent civil protest.

Notably, during its short term in power, the government of change had to rely on some strategies commonly associated with populist project.

First, among these is the use of us versus them characterization of politics. Representatives of the government routinely characterized their predecessors in office as incapable rulers, and as using office to promote narrow personal and political interests over public interest. This was most evident with regards to former Prime Minister Netanyahu but was evident with regards to almost every member of Netanyahu’s party, the Likud. But if, in the previous government of Netanyahu, the opposition was characterized as an enemy of the Jewish identity of the state, the current coalition characterizes Netanyahu as the enemy of the democratic identity of the state. Explicitly, the potential return of the right-wing coalition to power was portrayed as a clear and present danger for Israel’s democratic nature – a prophecy that, in retrospect, proved to be correct.

One important distinction is that while populist leaders refer to all those who do not conform with the populist agenda as either detached elites or enemies, in the post-populist government, the rhetoric was mainly aimed at the politicians, while the post-populist leaders went out of their way to emphasize that they are the leaders of everyone – an inclusive rather than exclusive rhetoric.

Second, the coalition did not shy at changing the rules of the game when it fitted its political interest. For example: Naftali Benet and Yair Lapid came to an agreement alternating the Premiership of the coalition after a year and a half. Explicitly to cement this agreement, Basic Law: The Government was changed, in a way that would penalize the Prime Minister if he caused an early election before handing over the premiership according to the agreement.  Basic Law: The Knesset, was changed in order to allow more Members of Knesset to resign their posts as MK when appointed as Ministers, while preserving their ability to return to their posts as MK’s if they left the government. So, the instrumental use of constitutional laws, which is a main characteristic in the populist constitutional project, and especially in Israel in recent years, continued.

A third policy was the politization of professional offices in public service. Hence, the government appointed the former leader of the Labor Party, Amir Peretz, to the office of one of Israel’s largest government owned corporations (Israel Aviation Industries) even though he was declared an inappropriate political appointment by the special committee approving with senior appointments in public service. The process of appointment of Israel’s attorney general became a political struggle, when the professional committee appointed to nominate the attorney general was controlled by representatives of the Minister of Justice, and used political maneuvers to nominate the Minister’s preferred candidate.

A fourth occurrence was the fact that the opposition did not participate in important legislative work. Most importantly, the opposition did not formally join in the Knesset’s various committees. Indeed, the real motivation of the opposition for this move was their on-going policy of delegitimizing the government, but the coalition greatly assisted this policy by offering the Opposition less than their fair share of members of committees. The participation of opposition-Members in committees preserves the Knesset’s independence vis-à-vis the government, since it allows MK to create ad-hoc coalitions transcending the formal divide, Without the opposition’s participation, the Government only strengthened its grip on the Knesset.

Lastly, several parties within the coalition promoted bills directed against Netanyahu personally. Most important was the attempt to forbid a person under a criminal indictment to form a government, and for „term-limits“ for a prime minister. These bills, while presented as principled, were clearly directed at Netanyahu, whose corruption trial is still ongoing, and who has been Israel’s longest serving prime minister.

Explaining post populism

For sure, the post-populists have a different ideology than their populist predecessors. Many of them, though certainly not all, genuinely believe in pluralism, diversity, and in the need to limit the power of the majority in politics by respecting the decisions of the courts, and strong checks and balances. And yet, it should not be ignored that post-populism resembles populism in many important aspects. There are, we believe, several explanations for this:

First, once the “populist toolbox” is available for politicians, the temptation to use it is simply too strong to ignore. If one can control the media, gatekeepers, courts, etc’, and through that capturing to govern ‘more effectively’, why not do so (from a post-populist politicians’ perspective)? The various tools of governing that populists used in recent years – such as ad hoc constitutional reforms for narrow political interests – are still available, and the urge to use them is enormous.

Second, the glue that holds the anti-populist coalition is the existence of the populist camp, and the threat it will return to power. To survive politically, the anti-populist must use the same enemy-friend rhetoric and style of governing that characterized the previous regime. Populism entails a moral division of politics and society between the “good people” and the “corrupt elite.” Categorizing one group as good while the other is not, means that one is legitimate the other is not. In post-populism, there is a moral division between the “good people” – the anti-populists and the corrupt populists, the former legitimate and the latter is illegitimate.

Third, polarization is central not only for maintaining the enemy-friend distinction but studies show that in a context of affective polarization, partisans may excuse executive aggrandizement and would accept the weakening of checks on the power of the executive, in order to advantage their party and disadvantage the opponent.

Fourth, the social, economic, and national divides that were at the root of the rise of the populist movement have not vanished. They go deeper than any momentary political movement. And without solving the deep problems and tensions, the fears, insecurity and other feelings upon which populism flourishes, post-populist movements will fail in ending populism.

Conclusion

Post-populists might want to explain their use of questionable policies as one that was simply forced upon them by the continued actions of the populists from the opposition, or because of the real malice of populists when they were in government, or because of external circumstances. In some cases, this might be true. Yet, the overall picture is that the post-populists have more in common with populists than they would care to admit. Post-populist politics is different – but not very different – from populist one. Even if post-populists usually mean well, their mechanisms of governance might lead them in a route that while not identical to the populist one, might come dangerously close to it.

That is why we need to be cautious about the illusion that once the anti-populist coalition wins and populist leaders loose, politics would be back to normal. Populism is here to stay. Populists uncovered serious flaws in democracy, and until we manage to solve these flaws, we cannot completely defeat populism by mere victory in elections. Winning the elections, therefore, is merely the beginning – not the end – in the journey against populism.

Over the last ten years, PiS has not only systematically dismantled Poland’s rule of law, but also strategically corroded the country’s media freedom. Thus, it has successfully politicized Poland’s media regulators, abused public service media for propaganda purposes, captured private media outlets and supported friendly private media, and created regulatory, legal and political obstacles for private media which criticized it.

In this blogpost, I will detail three core steps that must be taken to restore media freedom in Poland in conformity with European standards. In particular, I argue for the restoration of the National Broadcasting Council (KRRiT), the constitutional media regulator, as an independent body; the dissolution of the „bonus” media regulator introduced by PiS, the National Media Council; and for reforming the status of Poland’s private media and the government’s approach to the media in general.

While Sunday’s elections are likely to produce a government with a sufficient parliamentary majority to enact the proposed legislative changes, President Andrzej Duda, who formally remains independent but hails from the Law and Justice (PiS) party, can veto the laws passed by the parliament. This could ultimately threaten the prospect of any real reforms.

The Capture of the National Broadcasting Council

Article 30 of the Audiovisual Media Services Directive (AVMSD) requires EU member states to ensure that media regulators are functionally independent of their governments and of any other public or private entity. The European Media Freedom Act (EMFA), recently adopted by the European Parliament, references this standard in Article 7. Currently, Poland’s constitutionally mandated regulator, the National Broadcasting Council (Krajowa Rada Radiofonii i Telewizji—KRRiT) which supervises public and private media does not meet this requirement of independence. Thus, since 2016, PiS has staffed KRRiT with people having close links to the governing majority and President Andrzej Duda, thereby laying the groundworks for Poland’s backsliding in media freedom. Over the last 7 years, KRRiT has arbitrarily penalized private media critical of government with large fines for alleged violations of the Broadcasting Act and threatened them with not renewing their broadcast licenses. It has also shielded state broadcasters, which were turned into government propaganda machines, from accountability for hateful, manipulative or plainly false content. This remains in stark contrast with the pre-2016 independent KRRiT which found that the state broadcaster one-sidedness violated the Broadcasting Act. Finally, it has failed to exercise effective oversight over public television, allowing its leadership to infringe upon the law through the content they present. Thus, it has dismissed complaints from the commissioner for human rights or citizens about the hateful or biased content in the state media, especially in news programs. Current KRiTT members are also likely to have violated Article 214.2 of the Constitution which mandates, inter alia, that they cannot engage in public activities incompatible with the dignity of their office. While the latter criterion allows for a wide spectrum of meanings and applications, some actions of current members can be reasonably construed as having violated it. For example, KRRiT chairman Maciej Świrski engaged in a systematic attack on private broadcasters, including TVN and radio stations TOK FM and Radio Zet, arbitrarily imposing significant fines for their programming in the run up to the parliamentary election in 2023.

Restoring the National Broadcasting Council’s Independence

To restore KRRiT as an independent and effective media regulator, the body’s composition should be changed. Comprised of five members appointed for a 6 year term, its current members were appointed in 2022 by the Senate, the Sejm and the President. Currently, KRRiT members may only be removed before the end of their term by the body that appointed them, inter alia, following a conviction for a deliberate criminal offense or making a false lustration statement, and for violating the provisions of the law as determined by a decision of the State Tribunal (Article 7.6 of the Broadcasting Act). The latter is a constitutional judicial authority responsible for enforcing accountability among the highest government bodies and officials for violations of the Constitution or laws, in connection with their positions or during the course of their official duties. Pursuing cases before the State Tribunal is permissible within a period of ten years from the commission of the act, unless the act constitutes a criminal or fiscal offense. The new Sejm will select members of the State Tribunal for the new term.

Because the President can veto any amendment to the Broadcasting Act which could change the rules for removing KRRiT members, the new governing majority may want to bring KRRiT members before the State Tribunal instead. This avenue for accountability has rarely been used thus far, not least because the initiation of proceedings against the President or members of the Council of Ministers require resolutions to be adopted by qualified supermajorities in the Sejm, with the presence of at least half of the statutory number of MPs. However, to bring a member of the KRRiT before the State Tribunal, only an absolute majority is required. The KKRiT’s constitutional role is to safeguard freedom of speech, the right to information, and the public interest in radio and television (Article 213.1 of the Constitution).

Once the State Tribunal finds that a KRRiT member has committed a constitutional tort can they be dismissed by the body which appointed them. This would grant the parliamentary majority in the Sejm theoretically an opportunity to remove two members of KRRiT.

Introducing New Safeguards

The new parliament should also amend the Broadcasting Act in order to bolster safeguards against the abuses witnessed during the PiS government’s tenure from 2015 to 2023.

One of these issues was the abuse of a politicized KRRiT to impose penalties on television and radio stations for their coverage of significant events of public interest, including protests and visits of foreign heads of state. Under the current legal framework, the KRRiT can initiate proceedings and impose penalties based on the provisions of the Broadcasting Act. However, it is not required to provide a comprehensive and transparent analysis of why a broadcaster’s actions meet the criteria to start such actions. In recent years, and especially in the months leading up to the parliamentary elections, this has led to an abuse of power by the KRRiT in targeting private broadcasters that criticize the government. The amended Broadcasting Act should require KRRiT not to take arbitrary, nontransparent decisions.

Moreover, it is essential to ensure that KRRiT cannot exert pressure on broadcasters by arbitrarily extending the issuance of licenses. For example, at the time when PiS targeted TVN with legislation on ownership, KRRiT also arbitrarily prolonged renewing licenses to its channels TVN24 and TVN7. The Committee of Ministers of the Council of Europe advises that the regulations governing the broadcasting licensing procedure should be clear and precise and should be applied in an open, transparent and impartial manner. The EMFA requires that any national measure affecting operations of media, including granting licenses, should be justified, proportionate, reasoned, transparent, objective and non-discriminatory. Moreover, the Broadcasting Act in Article 35a currently only imposes a time requirement for submitting applications for the renewal of a broadcasting license 12 months before the license’s expiration. An amendment to the Broadcasting Act should also introduce time limitations for KRRiT to make decisions, for example three months before the license expires. This idea has been supported by parties that will form part of the new government.

Abolish the National Media Council

In 2016, PiS created the National Media Council (RMN), in addition to the already existent constitutional media regulator (KRRiT). The RMN consists of 3 members appointed by the Sejm and 2 by the President. RMN supervises state media, despite this being KRRiT’s task. The Constitution does not explicitly prohibit the establishment of such a body, but it is entirely unnecessary as they have the same function. Neither have been functionally independent from the government. The RMN took an active role in facilitating the backsliding of media freedom in Poland. In violation of the Constitution and the (at the time still independent) Constitutional Tribunal judgment from December 2016, the RMN, instead of KRRiT, was put in charge of public service media management. The RMN under PIS dismissed and appointed the head of the state television without informing the public of the circumstances and reasons for such decisions.

Ahead of the general election Reporters without Borders rightly called on the future authorities in Poland to abolish the RMN and implement the Constitutional Tribunal’s judgment. In its stead, a sufficiently independent KRRiT should be put back in charge of public service media management. In 2020, the Senate, dominated by then-opposition, presented a draft bill to dissolve the RMN. The Sejm for more than two years has not assigned the draft bill a number, and has not proceeded with the project. However, the abolition of RMN would require President Duda not to veto a law dissolving it. An alternative would be to nullify the Sejm resolutions appointing the three RMN members. In their place, the Sejm could elect new members.

Public Service Media Independence

According to the OSCE/ODiHR’s election observation mission, Poland’s governing party enjoyed a clear advantage through its undue influence over, amongst other things, the public media. Partiality of the public broadcaster in favor of the governing majority and against opposition parties is a violation of the Broadcasting Act that requires the programmes of the public service media to be “pluralistic, impartial and well-balanced” (Article 21.1 ). Yet, to return captured state media into proper public service media is legally difficult. An option could be to remove the current public media managers, who are PiS loyalists appointed by RMN. However, this cannot occur through the RMN, as this would constitute a violation of a ruling by the independent Constitutional Tribunal from 2016, thus undermining the rule of law. Instead, it would have to occur following a restoration of an independent KRRiT. Others have suggested that the Culture Minister should put the public media companies into liquidation and appoint provisional administrations to oversee them. However, commercial law experts explain that the Broadcasting Act (Article 26) mandates that the public broadcaster’s legal form is „Telewizja Polska – Joint Stock Company”. A resolution to dissolve this company can be challenged in court by board members and supervisory board members of the public broadcaster.

It is, however, encouraging that following the elections, there has already been a change in the tone of public television, which is no longer attacking parties other than PiS as aggressively as before.

Unwind State Capture of Private Media

Drawing inspiration from the process that took place in Hungary under the rule of Fidesz, PiS also engaged in the capture of private media. In 2021, the government-controlled company, PKN Orlen, the largest oil and gas company in Central and Eastern Europe, acquired the Polska Presse group, which includes, among other assets, 20 out of 24 regional newspapers. After the takeover, the editor-in-chief was changed in 19 of them. In the supervisory board of Polska Presse, a journalist known for her sympathies towards PiS was appointed.

Changing Polska Presse’s board and editors in chief is indicative of PiS’s widespread practice of appointing party loyalists to the boards of state-owned enterprises and other lucrative positions. To redress this issue, the centrist party, Poland 2050, demands the creation of a registry of individuals who serve both in state-owned enterprises and public positions and the introduction of a cooling-off period for transitioning from political to corporate roles. This idea would certainly increase transparency. The Civic Coalition (KO), led by Donald Tusk, promised new transparent and merit-based appointments to the state controlled companies’ boards. The Left proposed the creation of a Competency Council, which would appoint the boards of state-owned companies. Whichever way is chosen, depoliticizing the management of these companies is essential to ensure that media groups owned by government-controlled entities engage in fair market competition and maintain editorial independence, a key demand advocated by EMFA in Article 5.

For years, Association of Local Newspapers, Chamber of Press Publishers, the Commissioner for Human Rights, Helsinki Foundation for Human Rights have also raised concerns over local governments owning private media outlets, arguing it violates local government neutrality and distorts media market. To remedy this problem, the Press Act of 1984 should be amended to prohibit local government to publish media.

Re-Imagining Media Regulation in Poland

Poland’s new administration must create conditions in which the private media market can develop in accordance with the principles of pluralism and the EU internal market. They should refrain from creating regulations that target specific media outlets or media groups, for example, under the pretext of restricting majority ownership by companies from outside the European Economic Area in Polish media in the vein of the bill targeting TVN station, which was eventually vetoed by President Duda.

The authorities should also ensure the effectiveness of the State Labor Inspection and guarantee the protection of workers‘ rights in the media industry, including combating the use of precarious employment contracts instead of regular employment agreements. Unjustified lawsuits (SLAPP) aimed at intimidating and silencing media owners, journalists, or individual commentators must cease, and the temptation of using spyware against journalists must be categorically resisted. Nor should public authorities continue to engage in slanderous campaigns against journalists.

All of these were methods the ruling PiS authorities have employed in recent years in Poland to the detriment of media freedom. Poland’s new government must resist the temptation to continue using them for their own advantage. Moreover, when crafting legislation, the new administration should consider the opinions of civil society partners, including transnational media associations and local media organizations like the newly formed Rada Polskich Mediów (Polish Media Council), as well as media professionals‘ trade unions. Naturally, the authorities should also adhere to standards established by the Council of Europe and European Union legal norms and good practices.

To conclude, to restore media freedom in Poland is a challenging task that will require a great deal of self-restraint, an understanding of the role of media in democracy, and a genuine commitment to healing Polish democracy and public discourse.

The issue of financing political campaigns has been a topic of discussion for a while, especially against the background of the ongoing deliberations within the EU surrounding the adoption of the draft Political Advertisement Act (PAA). The recently concluded Polish parliamentary campaign and the assistance offered by State Owned Companies, along with the weak level of oversight on these actions, have highlighted certain shortcomings in the proposed framework that remain unaddressed in the current EU draft legislation. In particular, I argue that the PAA does not adequately regulate the methods and extent of financing for political campaigns such as microtargeting and mistakenly assumes the independence of regulatory bodies tasked with enforcing its requirements. An independent institutional system warranted by the European Commission to enforce the proposed rules is pivotal for PAA to achieve its goals.

The PAA’s Purpose and Framework

First published by the European Commission in 2021, the PAA’s Trilogue process began in March 2023. The PAA aims to contribute to the proper functioning of the internal market for political advertising by introducing rules that ensure a high level of transparency in political advertising and related services. Additionally, it seeks to safeguard the privacy of individuals by establishing guidelines for the utilisation of targeting and amplification techniques in the realm of political advertising. It is justified by concerns that the internal market may not possess the necessary capabilities to deliver political advertising with a high degree of transparency, thereby ensuring a fair and open democratic process across all Member States [p.1].

The PAA lays down harmonised transparency obligations for providers of political advertising and related services to retain, disclose and publish information connected to the provision of such services.

It applies to

“political advertising prepared, placed, promoted, published or disseminated in the Union, or directed to individuals in one or several Member States, irrespective of the place of establishment of the advertising services provider, and irrespective of the means used.” [Art. 1 (2)]

Article 2 (2) PAA introduces a broad definition of ‘political advertising’ to include the preparation, placement, promotion, publication or dissemination, by any means, of a message either linked with a political actor (except for its private or commercial messages); or which can potentially impact the results of an election or referendum, a legislative or regulatory process, or voting patterns.

The PAA introduces several transparency obligations with respect to political advertising, including identification of political advertising services, their sponsor and a transparency notice, record-keeping and information transmission, and periodic reporting on political advertising services. It obligates advertising publishers to enable individuals to notify them, free of charge, that a particular advertisement they have published does not comply with this Regulation.

These obligations are checked by competent national authorities who must have the power to request that a provider of political advertising services transmit the information on fulfilling specific obligations (see below).

The Polish elections have laid bare two fundamental flaws in this framework as far as the regulation of political advertising goes.

Financing of Political Advertising

On the one hand, PIS conducted an aggressive political advertising campaign. It devoted a disproportionate amount of funds to that purpose, using both direct and indirect means of funding. According to Okopress (as of 30 September), PiS has spent at least 4 million Polish zloty on their internet campaign, setting a record. Komisja Obywatelska (the Civic Coalition – the major opposition party), on the other hand, allocated around 1.4 million zloty for this purpose. As indicated in the report by the Batory Foundation from the beginning of the campaign until October 9th, PiS spent over 4 million złoty only on advertisements on YouTube, while all other committees combined spent only 1.35 million zloty.

To this we must add some 300 million zloty that the TVN24 channel revealed were funneled into 10 foundations run by SOEs in 2022. These were then supported the referendum campaign. In particular, 14 foundations belonging to SOEs had registered as entities authorised to participate in free broadcasts on public media, which were produced by them and aired as part of the referendum campaign. Moreover, they also campaigned via other channels. Their involvement was permitted by the Act on the Nationwide Referendum which granted authorised entities the right to conduct a referendum campaign on programs of public radio and television broadcasters [Art. 48 (1)]. The reason officially indicated by those entities was to support participation in the referendum. In reality, the referendum questions were used as a pretext to financially support PiS’ electoral campaign.

By way of example of how this worked, the State of Poland Foundation (SPF), associated with the Bank Gospodarstwa Krajowego, the State-owned bank bought 25 advertisement slots. Displayed from September 25th to 27th on Facebook, these promoted the following message:

This is what a hybrid attack on Poland looked like. On October 15th, vote in the referendum: Do you support the removal of the barrier on the border of the Republic of Poland with the Republic of Belarus?

The video content featured archived footage depicting disturbances at the Polish-Belarusian border in Kuźnica, contrasted with serene scenes following the erection of the border wall.

Notably, the broadcast of these advertisements were targeted at the very local level. As was noted on X (former Twitter) profile @Polityka_wSieci:

Each county (powiat) receives a different message specific to the region. All video materials are tailored to the region’s characteristics (perhaps assisted by AI). Millions of local portal viewers, as well as local content consumers, will often see PiS materials online for the first time.

So far, no party since 2014 has conducted such a broad and complex process of fragmenting the Polish internet for electoral purposes.

The PAA’s Blindspot on Financing

The PAA framework includes such microtargeting within its definition of political advertising.

In particular, the PAA defines ‘targeting or amplification techniques’ as

techniques that are used either to address a tailored political advertisement only to a specific person or group of persons or to increase the circulation, reach or visibility of a political advertisement;

It prohibits the use of targeting or amplification techniques that entail the processing of personal data as mentioned in Article 9(1) GDPR and Article 10(1) of Regulation (EU) 2018/1725 for political advertising purposes. For certain exceptions, specific transparency obligations are imposed on controllers. However, the scope of this prohibition is still debated.

Nothing so far indicates that PiS’ microtargeting concerned so-called sensitive data and would be illegal under data protection rules. Yet, PiS deployed these techniques to a far greater extent than other political parties. It could afford to do so because it managed to access disproportionately more funds than other parties for that purpose. Part of the disproportionality arose from their use of indirect means of funding their campaign through the use of state-owned enterprises. This, in turn, created a comparative competitive advantage for them.

This problem is not caught by the current draft of the PAA as it primarily focuses the problem microtargeting poses to data protection, rather than examining the methods and extent of its financing. As a result, it does not include any mechanisms to redress the competitive advantage that follows if one party can access disproportionately large amounts of money for the purpose of political advertising. Yet, it is precisely the access to ample financial resources that can empower political parties to target very specific voter groups and thereby influence a democratic process.

Presuming Independence and Competence

A second problem with the PAA pertains to its oversight framework. Instead of proposing the establishment of new authorities or bodies within Member States, it assigns the responsibility of overseeing and enforcing its rules to the relevant competent national authorities (NRA). Member States can appoint existing sector-specific authorities, equipping them with authority to oversee and enforce the Regulation’s provisions, such as those appointed pursuant to Article 51 GDPR, Article 52 of Regulation (EU) 2018/1725 or Digital Service Coordinators nominated under Digital Services Act. Member States are accountable for ensuring that these authorities have the required capabilities to safeguard citizens‘ rights in the realm of transparent political advertising.

Under the PAA, each competent authority must possess structural independence and be free from sectoral influences, external interference, or political pressures. It shall operate with complete autonomy, effectively monitoring and taking necessary and proportionate actions to ensure compliance with the PAA [Art. 15].

The independence of national regulatory authorities is crucial for effectively enforcing the rules they are competent to enforce. Independence is not a goal itself but rather a means to achieve an unbiased decision-making process. In this context, the term independence means

the capacity of the NRA to resist pressure, or act without interference, from politicians and their ability to maintain autonomy from stakeholders, mainly market participants. The independence of regulatory authorities is not limited to a lack of interference from those actors, but also includes a lack of consideration of those actors’ preferences.[p.20]

The need to prevent undue influence implies that ensuring the independence of regulatory authorities in a merely formal (de jure) manner is insufficient. The degree of independence is equally shaped by the actual practices of the regulatory authority and how these authorities themselves perceive their independence (de facto).

The Reality of Regulators in Illiberal Democracies

Kati Cseres and Judit Bard indicated that in respect to the EMFA, there is a presumption of independence regarding the media supervisory bodies. The PAA is based on the same assumption. This ignores that over the last 8 years, Poland has increasingly undermined the independence of its media and their regulators, with the European Media Freedom Act (EMFA) Impact Assessment noting similar issues across several Member States. In Poland, the very institutions the PAA designates as competent to enforce its requirements, including NRAs in the data protection and electronic communications, have been politically captured. There are several examples of the lack of impartiality of the acting head of the Polish Data Protection Authority, especially in highly sensitive political matters.

What is striking is that the Commission has not opened infringement proceedings against the Polish Data Protection Authority, even though the Polish Supreme Administrative Court has called the DPA’s actions „typical for authoritarian and fascist regimes”. Nor has it decided to open the infringement proceedings against Poland when it shortened the term of the National Electronic Communications supervisor back in 2020 for breach of EU law that guarantees the independence of the national telecommunications regulator. This might be reflective of the Commission’s general reluctance to take action in politically sensitive cases, as it is illustrated, e.g. by Sped-Pro case or state aid for public broadcasters.

The PAA’s failure to recognize the reality of captured NRA’s and the Commission’s refusal to remedy them is particularly relevant in the light of reservations concerning broad definitions included in the PAA as well as unclear tests of necessity and proportionality. In particular, there are no safeguards – especially those that could be carried out in a timely manner during electoral campaigns – against these bodies applying pressure on opposition parties and civil society by alleging that they have not adhered to the responsibilities outlined in the PAA.

The PAA can only serve its stated goals with proper scrutiny by the Commission on the fulfilment of the existing obligations under EU law as to the independence of NRAs. Imposing new obligations on NRAs without warranting the independent institutionalised framework in Member States makes those new rules toothless.

The current debate on how to restore the standards of a democratic state under the rule of law in Poland reminds me of the dilemma faced by King Rex, as described by Lon L. Fuller. Like the king constantly falling into a trap we equally seem to be trapped. We know what should be done and what compliance with the rule of law means, yet we try to convince each other that every conceivable way out is bad. So do we need to refrain from taking any action and look in frustration at the systematic deformation of mechanisms that have worked quite well in Poland for a quarter century and protected us from pathology and the abuse of law?

To consider that nothing can be done until the end of President Duda’s term of office would be tantamount to admitting full-scale failure. All our thoughts, ideas and laborious institution building after 1989, the development of effective fundamental rights protection, the independence of the judiciary and the balance of powers would prove to be a house of cards that can be brought down easily by a new political arrangement adhering to a different legal axiology. We would also tell all those who, over the past few years, have not given up in their heroic efforts to uphold the ethos of the rule of law, often paying a high price (I think above all of many judges and prosecutors) that their fight was useless because we cannot do anything today.

I do not share the view that restoration of the rule of law is impossible. The legal system – its general principles and values – makes sense when it can fulfil its function as a guarantee: It is not just a beautiful idealist story of individuals having fundamental rights and freedoms, but both the foundation and an instrument for a healthy democratic life.

We spent decades in the traps of the communist system, which used decorative, not to say bombastic, language to create an illusion of equality, participation in democratic elections, freedom of expression and assembly, freedom of conscience and religion. These rights were enshrined in the People’s Republic’s Constitution of 1952. Of course, nothing derived from this since, in respect of guarantees for the individual, the Constitution did not work and the recourse to it was ineffective and risky. Many young people were even imprisoned in March 1968 because they demanded respect for the Constitution.

The Remedy is in the Constitution

After 1989, we entered a new phase of thinking about the constitution, fundamental rights and legally enshrined principles. Constitutional norms have shown great potential if only they are taken seriously – with reference to Dworkin’s work ‘Taking Rights Seriously’ – and if they are thought of as a binding norm that give rise to certain responsibilities for public power, and guaranteed rights for individuals.

May I recall how many ‘discoveries’ the Constitutional Tribunal has made after 1989 on the basis of the principle of a democratic state governed by the rule of law. From that principle, hitherto unincorporated constitutional rights were derived such as, for example, the protection of private life and private property, effective judicial protection, and the protection of citizens’ trust in the rule of law and legitimately acquired rights, as well as the prohibition of retroactivity etc. This shows how much an open, democratic legal reasoning referring to the historical achievements of old democracies has been able to infer from the content of constitutional principles!

Today we have a constitution with a modern approach to the concept of a democratic state governed by the rule of law, based on generally recognized principles such as that of checks and balances, with a chapter on fundamental rights, including the right to an effective remedy before an independent court. I thus fail to see why, with such an extensive instrument at our disposal, we should feel helpless and tolerate that our State functions in profound violation of the rule of law, just because the Constitution does not explicitly provide remedies to combat such systemic deformation.

We Have Done it Once Before

Our situation is easier today than it was in 1989, when everything had to be remade from scratch. Today, in addition to the Constitution itself and its guarantees, we have an extensive legal infrastructure with a developed case-law of the courts applying our principles and values and defining the limits of constitutional guarantees. We are part of the European Union’s legal space with its own guarantees for the principles and values that make up the axiology of a democratic state governed by the rule of law, the Charter of Fundamental Rights and the generally applicable case-law of the European Courts. Maintaining in this situation a state of deep unconstitutionality, that is to say, a State that does not ensure the independence of courts, a judiciary of genuine, rather than sham-judges, the functioning of fundamental institutions (such as, in particular, the National Council of the Judiciary, the shape of which is in direct breach of the Constitution), appears to be absurd by law.

I am not a legal nihilist nor would I profess a revolutionary upheaval theory as a way to change the legal system. Fortunately, we do not need to resort to such instruments. On the other hand, I am a judge with long-standing constitutional practice and I know how much depends on a rational, reasonable and well-substantiated interpretation of the law if we want to use the latter in accordance with its function and purpose. Only such an approach to the application of the law at a constitutional level – which refers to the fundamental principles of the system as its real foundation and essence – can nowadays serve as a generally recognised method. At the level of European law, this method is a lever for the development of this right, ensuring that it is systematically developed and adapted to changing external conditions without the need for a continuous revision of the Treaties.

Today, in Poland, much depends on the legal community, on its imagination and on a correct definition of values and their hierarchy. We have a plethora of arguments, starting with the text of the Constitution itself, the interpretation given by the Polish Constitutional Tribunal before 2016, the Supreme Court, the Supreme Administrative Court, as well as the European Courts. This makes it possible to think constructively about the repair of the rule of law in Poland through various instruments which are not just of a legislative nature. It would be a tremendous mistake and a blow to civil society and our constitutional and legal culture if we chose omission and passivity over our Constitution’s potential.

I often hear that the current feeling of helplessness is fueled by caution and respect for the Constitution and the laws in force. This implies that any solution allowing Poland to emerge from its structural crisis should be criticized as violating the law. We are indeed walking on a thin line over the abyss where the anti-law demons are hiding and risking the very existence of the rule of law in the future. But the alternative to such risky migration is to wait and do nothing. This, however, would lead to permanent unconstitutionality, violations of fundamental rights and of the axiology of a democratic state governed by the rule of law. That is why we do not have a choice.

After the Polish parliamentary elections, the question of rebuilding the rule of law in Poland has been frequently raised in academic debate. The discourse is largely dominated by the status of the so-called neo-judges and the legal effects of rulings of the politically appropriated Constitutional Tribunal. We would like to highlight another problem that the new government will have to deal with – the functioning of the public prosecutor’s office occupied by people associated with the Law and Justice party (PiS). There is a great risk that high-level prosecutors may effectively block or obstruct investigations into the irregularities committed under the PiS government.

We believe that a partial solution to this problem might come from Poland’s quick accession to the European Public Prosecutor’s Office (EPPO) planned by the democratic opposition. The EPPO is an independent body of the EU, responsible for conducting investigations, bringing, and supporting charges against individuals who have committed offences against the financial interests of the EU (offences regulated by the Directive 2017/1371). The entity was set up by Regulation 2017/1939 (EPPO Regulation). To date, 22 EU countries decided to join the EPPO.

If a country joins the EPPO, the competence to prosecute offences against the financial interests of the EU is transferred from a domestic prosecutor’s office to the body. Investigations are carried out by the European Delegated Prosecutors (EDPs) who are appointed at the EU level and operate outside the structure of the national prosecutor’s office. Therefore, Poland’s accession to the EPPO will transfer the competence to investigate irregularities that have occurred under the PiS government, related to the improper spending of EU funds by public institutions, from the Polish prosecutor’s office to the highly independent EDPs. Moreover, joining the EPPO would demonstrate the new government’s commitment to EU values, and strengthen the rule of law by raising the standards of the transition process.

The post argues why Poland should join the EPPO in three steps. Firstly, it briefly presents the takeover of the Polish prosecutor’s office and the difficulties arising from its functioning. Then, it provides a closer look at the EPPO. Finally, it discusses the implications of joining the EPPO for the conduct of investigations into misuse of EU funds and more generally for the rule of law standards.

Takeover of the Public Prosecutor’s Office

Only a few months after taking power, PiS changed the structure of the public prosecutor’s office, adopting a model of complete systemic subordination of the prosecution service to the executive. Since 2016, the position of the Prosecutor General has been held ex officio by the Minister of Justice (Zbigniew Ziobro) who is an active politician. The new legislation gave the Prosecutor General almost unlimited powers over prosecutors, which in practice led to the suppression of the independence of the prosecutor’s office.

The changes were also linked to a large-scale replacement of staff. More than 100 experienced prosecutors from the highest levels of the prosecutor’s office were dismissed overnight without any explanation. In addition, 160 prosecutors decided to retire, believing that the changes made to the prosecution service undermine their independence. The vacant positions were filled by people with connections to the Prosecutor General and the milieu of PiS politicians. Meanwhile, independent prosecutors opposing the changes were subjected to systematic repression.

The politically controlled prosecutor’s office has been actively used for political reasons since 2016. Prosecutors pursued cases involving political opponents of PiS and refused to initiate proceedings in cases involving politicians from the ruling party. A particular example is the refusal to open an investigation into the alleged fraud of European Parliament funds by the Solidarna Polska party led by Zbigniew Ziobro.

The Old Public Prosecutor’s Office and the New Government

Anticipating the possible loss in the parliamentary elections, in mid-2023 PiS prepared amendments to the organisation of the prosecutor’s office. The changes were aimed at strengthening the position of the high-level prosecutors associated with PiS. They transferred to the National Prosecutor – who is a first deputy of the Prosecutor General – most of the competences of the latter. Consequently, the National Prosecutor was awarded control over the entire structure of the public prosecutor’s office. The amendments stipulate that the National Prosecutor and other high-level prosecutors may be dismissed by the Prime Minister at the request of the Prosecutor General after obtaining a written consent of the President. Hence, the new government and the new Prosecutor General will have to cooperate with the prosecutor’s office occupied by people associated with PiS. In fact, it seems unlikely that President Andrzej Duda, whose term of office expires in 2025, will agree to the dismissal of the high-level prosecutors.

The prosecutor’s office being taken over by people associated with PiS will impede the transition from the hybrid regime towards democratisation of the country. Firstly, the National Prosecutor is likely to come into conflict with the new Prosecutor General (his de iure superior). Moreover, the high-level prosecutors, may effectively block or obstruct investigations into the irregularities committed under the PiS government. We believe that the problem of polarisation of the prosecutor’s office (prosecutors loyal to the current leadership and those opposed to it) will be one of the most serious challenges of the transition.

One possible solution to this situation would be to amend the law organising the prosecutor’s office in Poland. This change would most likely be prevented by the President as the democratic parties do not have the majority to overturn a potential presidential veto. Another solution that the new government should, in our view, immediately benefit from is Poland’s accession to the EPPO.

Structure of the EPPO

The EPPO is a decentralised entity operating on two levels. The central level is constituted by the College, the Permanent Chambers, the European Chief Prosecutor (currently Laura Kövesi), her Deputies, the European Prosecutors and the Administrative Director. The decentralised level, on the other hand, is composed of the EDPs. The EDPs are elected in a two-tier procedure (national and EU level). They are nominated by the Member States and then appointed by the College. The EDPs shall demonstrate independence beyond doubt and shall possess the necessary qualifications and relevant practical experience of their national legal system. The number of EDPs in the Member States is agreed between a national government and the European Chief Prosecutor (at least two).

The EDPs bear the main burden of the EPPO’s activities. Indeed, they conduct on behalf of the EPPO investigations into offences against the financial interests of the EU in the Member States. In principle, the EDPs have the same competences as domestic prosecutors in terms of conducting pre-trial investigations and bringing and supporting charges against alleged perpetrators.

Article 6 of the EPPO Regulation provides the EPPO with guarantees of independence both at central and decentralised levels. The EDPs act completely independent from a national prosecutor’s office. They do not operate within the framework of the domestic prosecution service and do not follow instructions of national prosecutors. The EDPs only receive instructions and recommendations from the European Prosecutor and the Permanent Chambers. The EDPs shall be free from any political pressure.

The EPPO in Action

The EPPO has been extremely transparent in its practice. Pursuant to Article 94 of the EPPO Regulation, the body provides the European Parliament, the Council and the European Court of Auditors with a report on budgetary and financial management, and publishes annual reports on its activities. As the 2022 report shows, 3318 crime reports were processed that year. Moreover, the EPPO opened 865 new investigations in 2022, with a total of 1117 active investigations pending for an estimated damages of €14.1 billion. In contrast, in its report for 2022, OLAF has indicated that the value of reported fraudulent breaches of the EU financial interests fluctuated around €1.77 billion. The difference in these two reports demonstrates the effectiveness of the EPPO in combating the offences in its competence.

The number of initiated investigations confirms the effectiveness of the EPPO. The vast majority were initiated by reports from national authorities as in line with Article 24 of the EPPO Regulation, they are obliged to report any criminal conduct for which the EPPO could be competent. In 2022, 16 EDPs in Italy received 330 reports about possible irregularities only from state institutions. Consequently, they opened 265 new cases with estimated damages of €2 billion. Moreover, the EPPO performs outstandingly in cases where the suspects are public officers. This illustrates that the EPPO operates completely independently and free from political pressure.

Poland has so far been reluctant to cooperate with the EPPO – no Working Agreement has yet been concluded. Moreover, Poland has also repeatedly refused to collaborate with the EPPO in already ongoing investigations. The European Chief Prosecutor has sent a letter to the European Commission regarding this matter.

Implications of joining the EPPO

Firstly, the EPPO could get involved in investigating irregularities that have occurred under the PiS government, related to the improper spending of EU funds by public institutions (e.g. irregularities in distributing grants by the National Centre for Research and Development). According to OLAF’s annual report for 2022, Poland ranks third (behind Italy and Hungary) in the number of investigations initiated into misuse of EU funds.

Polish EDPs, due to the need for approval at the College level, would certainly not be people with any political connections – whether with PiS or the new government’s milieu. Indeed, candidates for EDPs must demonstrate independence beyond doubt to be appointed. Thus, Poland’s accession to the EPPO would ensure that investigations into the misappropriation of EU funds by the previous government would be carried out transparently and free from political influence and biases. The EDPs act independently and cannot receive any instructions from the head of the national prosecutor’s office. Therefore, the actions of the EDPs could not be associated with the will of the new government and the Prosecutor General to retaliate against politicians and people who cooperated with PiS. In this way, the presence of the EPDs would strengthen standards of the transition out of hybrid regime and towards democratisation.

Furthermore, adopting a broad perspective, joining the EPPO would be a clear signal of Poland’s commitment to EU values: the rule of law and democracy. It would also symbolise the end of the politicisation of the public prosecutor’s office in Poland by PiS, which used to refuse to cooperate with the EPPO. By joining the EPPO, the new Polish government would demonstrate its willingness to hold its predecessors to account transparently and without political biases.

Moreover, the functioning of the EPPO in Poland would provide a model for the organisation of an independent prosecution service from which domestic prosecutors could benefit. The new Prosecutor General and independent national prosecutors, in accordance with the obligation under Article 24 of the EPPO Regulation, would report to the EDPs any criminal conduct for which the EPPO could be competent. This cooperation could certainly not be disrupted by a bunch of high-level prosecutors associated with PiS. They would simply have no impact on the work of the EDPs and could not prohibit domestic prosecutors from reporting alleged crimes. The Polish prosecutor’s office headed by the new Prosecutor General, through robust cooperation with the EDPs, would strengthen public trust and its legitimacy in the Polish society, where 64% of its members trust the EU.

Conclusions

In the current political situation, it is difficult to expect changes in the structure of the prosecution service in Poland. For the moment, we do not know how the management of the prosecutor’s office by the new Prosecutor General will look in practice. Some scholars (e.g. Marek Chmaj) point out that the Prosecutor General may effectively manage the prosecutor’s office and that the President’s consent is not necessary for the dismissal of the National Prosecutor. Irrespective of future events, we believe that the new government’s priority and one of its first decisions should be Poland’s accession to the EPPO. Firstly, it would be a symbolic return of Poland to the cluster of democratic countries that share EU values. It would guarantee transparent and politically unbiased investigations into the misuse of EU funds under the PiS government. We believe that joining the EPPO will be one of the core elements of a successful transition out of the hybrid regime with respect for the rule of law standards.

On 14 December 2023, the European Court of Human Rights (“ECHR”)  ruled in the case M.L. v. Poland. The ECHR decided that the restrictions on abortion rights that Poland had violated Article 8 (right to respect for private and family life) of the European Convention on Human Rights (“Convention”). The judgment is one more step and, surely, not the last in the rather intense battle over abortion law in Poland. On 22 October 2020, the Polish Constitutional Court (“CC”) restricted the already narrow right to abortion in Poland. The CC’s decision resulted from right-wing legal mobilization, and it ignited counter-mobilization by women’s rights advocate groups that turned to the ECHR for protection. The 14 December decision is thus the result of a string of mobilizations within which NGOs, populist power, law and religion, constitution, and the rule of law clash. However, contrary to the hopes of the initiators of the case, this is not a European Roe v. Wade moment. The ECHR again refused to affirm that Article 8 can be interpreted as conferring a right to abortion, as it did in the case of A., B., and C. v. Ireland. Nevertheless, the ECHR made significant findings regarding rule of law violations and claimed that the Polish CC did not meet the requirements of an independent court. Thereby, the ECHR indicated a desirable direction for further reforms in Poland.

Dynamics of legal mobilization against abortion

The judgment of the Polish CC banning abortion on the grounds of fetal abnormalities is one of the most influential and commented on in the history of the court. It caused mass protests across the country, and resulted in a practical abortion ban. Because of the chilling effect, in a few situations, doctors were afraid to terminate pregnancies for fear of criminal consequences. As a result, several women died in the hospitals due to sepsis caused by abortion abandonment. The judgment was the result of years of right-wing legal mobilization, relying on citizens’ initiatives, pressure on policymakers and led by fundamentalist organizations with significant support from the Polish Catholic Church. It seems that, at the time, the abortion ban itself was not the goal of the Polish populist government. Changing the abortion law through parliament would have provoked protests and a negative effect on the electoral outcome. Instead, the Law and Justice Party members of parliament decided to switch the parameters of the issue from political to legal and use the CC, packed by judges elected by the party-controlled majority.

After the CC decision, the activists’ attention turned to the ECHR. However, any intervention by the ECHR would require recognition that the right to abortion is a human right protected by the Convention, which historically judges have refused to do. Federa, the prominent NGO in the field of reproductive and abortion rights in Poland, initiated a campaign called “Skarga Kobiet” (Eng. Women’s Complaint) to direct complaints by Polish women who felt affected by the CC decision. Federa created a webpage where they posted a ready-made template and instructions for filling out the complaint. In effect, women sent more than 1,000 complaints. This was the first complaint in the history of the ECHR to be filed in such large numbers by a social movement coordinated through social media by human rights lawyers. It resulted in two ECHR judgments.

Tale of two ECHR abortion judgments

In the first judgment on 6 June 2023, in the case A.M. v. Poland, the ECHR ruled that eight abortion rights cases were inadmissible. All the applicants did not have to terminate their pregnancies but were afraid that they would not receive adequate medical care from the state if the fetus was found to have defects. ECHR argued that applicants did not provide enough medical evidence, thus, “consequences for the applicants were hypothetical and were too remote and abstract.”

The second ECHR judgment, in the case M.L. v. Poland, issued on 14 December2023, also concerned a woman affected by the CC’s “abortion judgment.” An applicant had an appointment at the hospital to terminate a pregnancy due to a fetal defect (Down’s syndrome), which was canceled as CC judgment came into effect. Then, she had to travel to a private clinic in the Netherlands for the procedure. The applicant claimed that this situation violated Article 3 (prohibition of inhuman and degrading treatment) and Article 8 (right to respect for private and family life). The ECHR found that Poland had violated only Article 8 in this situation. Its decision was based on two arguments – an incorrectly selected panel of the Polish CC and the direct effect of the judgment on the applicant.

In its reasoning, the ECHR emphasized that since the Convention is a constitutional instrument of the European public order, States Parties are obliged to ensure a level of control over compliance with the Convention that at least preserves the foundations of that public order. One of the fundamental components of European public order is the principle of the rule of law, and the entire Convention is inspired by it. The ECHR replicated its reasoning from the judgment Xero Flor vs. Poland of 2021, claiming that the constitutional judges who ruled were elected improperly and illegally, and their presence meant that this judgment was an illegal interference. Arbitrariness and irregularities in the procedure for the selection of constitutional judges have negatively affected the legitimacy of the CC in democratic society, so its decision does not meet the rule of law requirements. Since the CC does not meet the requirements of an independent and impartial court, the judgment of 22 October 2020 cannot be considered to have been made in accordance with the law.

The second main argument of the ECHR was a claim that although the applicant was not a party to the proceedings before the CC, the judgment had a direct negative impact on the applicant, particularly her right to respect for private life. The applicant was, therefore, directly affected by the CC judgment and later legislative change. It was, thus, not a complaint in abstracto. The violation was actual and direct. The ECHR also referred to the socio-political context and pointed out that the CC’s judgment sparked mass protests. Although it should be a standard, the Polish CC, in its judgments on abortion, ignored the real consequences of its judgments. Also, the Polish government in the present case (as a party) indicated that the case did not directly concern the applicant and should not be considered. Thus, ECHR judgment is a reminder on adjudication standards, including consideration of a social context.

The applicant claimed that the CC judgment caused her severe and real emotional suffering, which is a violation of Article 3. Despite the ECHR agreeing it could cause psychological and emotional suffering, it considered the given circumstances were not sufficient to violate Article 3 of the Convention. At the same time, the ECHR still refrained from directly indicating a right to abortion that could set a European standard. Although in the commented case, ECHR claims that “the prohibition of abortion in Poland on the grounds of fetal malformation, where abortion is sought for reasons of health and well-being comes within the scope of the applicant’s right to respect for her private life,” at the same time stated that “Article 8 cannot be interpreted as conferring a right to abortion.” Right-wing organizations often use this argumentation in the legal mobilization against reproductive rights – for example, in the described case, Ordo Iuris and the European Centre for Law and Justice were third-party interveners and underlined that there is no written right to abortion.

The impact of the ruling

Although the December ECHR judgment is more about the rule of law than abortion itself and does not set a European standard in this area, it may have practical consequences and set the course for the new Polish government.

First of all, the judgment can be an excuse for the new government to liberalize abortion laws. Lawyers representing claimant M.L. and human rights activists Agata Bzdyń and Kamila Ferenc already pointed out at a press conference that Polish abortion law must be changed as soon as possible. Since the ECHR recognized a human rights violation, Poland must ensure that such violations are no longer occurring. Therefore, it is not enough to restore legal abortion in a case of fetal defects as it was before the CC judgment. In their opinion, it is necessary to bring it up to the European standard – to provide access to abortion regardless of the reason until the 12^th week of pregnancy. Thus, the ECHR judgment could contribute to the most significant liberalization of abortion law in Poland in 30 years. The government has already commented on the judgment – new Equality Minister Katarzyna Kotula said she is convinced that the judgment shows that Poland must move in the direction of liberalizing abortion law. At the same time, she announced inspections of hospitals and demanded fines for refusing legal abortions.

A liberalization of abortion law is also expected by Polish society – the CC’s judgment, which drastically restricted abortion, not only triggered some of the largest mass protests in Poland since 1989 in 2020 but also unleashed an intense public abortion debate, which may have also led to high support (83.7 percent) for liberalizing the abortion law. Moreover, according to Poland’s parliamentary elections exit poll abortion and women’s rights were the second most important issues for voters (only the economic situation was more significant), and women’s turnout was the highest in history at 73.7 percent.

Secondly, we can interpret the ECHR judgment as a signal to the new Polish government on how it could resolve the problem of the CC as an obstacle to the restoration of the rule of law. After elections, there are ongoing debates on what should be done with the CC – whether to remove judges defectively elected, or leave them, which will ensure their legitimization, and can lead to a blockade of new government changes. The CC has already issued a problematic judgment stating that fines by the Court of Justice of the European Union against Poland violated the constitution. The fines related to the refusal to suspend the Turów mine and the activities of the disciplinary chamber for judges. The CC announced another ruling (in January) on the possibility of dissolving the public media, which scholars and the new government often describe as not independent and propaganda. In the abortion judgment, the ECHR hinted at what to do, and we can interpret it as a signal that the CC composition could be changed again.

Finally, the judgment may be of great value in the doctrinal and theoretical conceptualization of the relation between the rule of law and human rights. The European debate on the rule of law tends to frame the issue through the lens of judicial independence, which can sound somewhat abstract to citizens. Showing the material effects of taking away and limiting a fundamental right through politically controllable courts can stimulate civic identification with the judiciary. In this sense, despite the lack of constitutionalizing of the European right to pregnancy termination, the ECHR’s ruling is an important step in the public debate.

Recall the words of Odilon Barrot, Prime Minister under President Napoleon in 1849: La légalité nous tue (Legality kills us). Once again, this comes true. Or, at least, it is paralyzing the rule of law and those who would like to stand up against arbitrariness. In 1849 the statement was made to justify exceptional measures against extremists. In December 2023 the EU Commission decided to unfreeze about 10 billion Euro to Hungary, being (perhaps) convinced that Hungary has satisfied the rule of law requirements of the conditionality mechanism, because  this was dictated by the rule of law: “We could keep freezing the funds, but then we would be bending the rule of law”, as an official has stated. The conditionality conditions regarding the administration of justice seem to be cosmetic interventions by design, without significant impact on the distortions accumulated in more than a decade.

The rule of law is “an unqualified human good.” But the rule of law can be easily highjacked and turned into rule by law; it is also a technique of those who grabbed state power lawfully to impose their will in a seemingly legitimate manner. Moreover, it is often self-defeating or unable to provide guidance especially where political and politicized actors would like to abuse the legal loopholes (see the paralysis regarding the Spanish Constitutional Court, the Supreme Court and the Council for the Judiciary ). In the monthly Rule of Law nonsense competition the birthplace of the rule of law deserves honorable mention: the United Kingdom. “Unfortunately, altering the Ulez scheme for the purpose of exporting vehicles to Ukraine is not possible within the current limits of the GLA [Greater London Authority] Act.” (Ulez is a project to help clear London‘s air.) The export, badly needed for Ukraine, could “not go ahead as it did not meet the “legal threshold” that requires the scheme to benefit Londoners from an “economic, social and environmental perspective”.”

To use Raz’s paradigm: rule of law based norms are like a sharp knife. The cutting capacity of the knife that matters. But knives are dangerous: in the hands of knaves they become the assassins’ choice, and in the hands of children a threat to children’s well-being. Here are a few examples of the December harvest of rule of law self-destruction:

• The Thuringia Project indicates that a mechanical application of the laws in the spirit of legality will help sinister political forces in Germany in their democratic journey to power at least at Land level.
• In the US doomsday scenarios of a second Trump presidency indicate the vulnerabilities of the legal system in a great democracy. This is largely the result of complicit decades of extension of imperial presidential power.
• 48 hours before the new (hopefully) anti-populist Polish government took the oath the Polish Constitutional Tribunal, relying on the Constitution, held the 2023 amendment of the Supreme Court Act unconstitutional. Thus the Tribunal blocked the reform requested by the EU on the basis of CJEU judgments which found the Disciplinary Chamber not to satisfy the requirements of a court established by law, given the appointment of the members of the Chamber. Unless a lawful solution is found (including the possibility of dismissing the Tribunal, a no-go from the perspective of a narrow understanding of irremovability) Poland will be forced to continue to pay a hefty fine and live in the limbo of a non-EU-conform state. Theoretically all legislation could be constitutionally paralyzed. Before the end of the same week the Tribunal issued a (hotly contested) interim measure to prevent planned changes in the management of the fully politicized, pro PiS public broadcaster.

Respect of the rule of law apparently blocks measures to restore the rule of law, at least in the eyes of those who follow the adage of the Hungarian Constitutional Court facing a statute of limitation issue in the context of calling to account perpetrators of state crimes under communism: “the rule of law cannot be built in violation of the rule of law”. Another situation where “legality kills us”.

Legal Theory’s Shortcomings

The cobblestones of the road to despotism are made of porous rule of law bricks. A simplistic understanding of the rule of law common to definitely not simple minded lawyers and politicians paralyses action against the future usurpers. For the same reason action against illiberal democracies is declared illegal or impossible (see the futility of the EU conditionality mechanism, aggravated by political compromise). Such attitudes become the tool of illiberal power consolidation (see rule by law in Hungary or in Venezuela under Chavez).  Undoing the illiberal regime once the political opportunity emerges becomes suspect at best.

Legal theory is short of an answer and interest that would counter this self-incapacitating tendency of the rule of law. Perverted legal systems are neglected. It is believed that a) this can’t happen here; or b) once democracy returns there will be proper correction through ordinary legislation and court activity. But evil law is a fact of life and most legal systems are imperfect even if not evil but bad enough. This lack of interest is exemplified by Dworkin, who was of the view that “the puzzle of evil law” is of “almost no practical importance” because judges will disregard it. Legal theories discuss models of countries which are in “reasonably good working order”. Joseph Raz discounts the relevance of imperfect legal orders: “Since the claim [of laws having authority] is made by legal officials wherever a legal system is in force, the possibility that it is normally insincere or based on a conceptual mistake is ruled out.”  (Resistance to evil remains possible, even appropriate but only on moral grounds.)

The real world of legal imperfections, abused by sinister political forces, necessitates a rule of law based theory and action plan that satisfies the demands of legal positivism. One could of course rely on public morals to mobilize against evil legal systems which, according to Radbruch, are void because they contradict supra-statutory law. But judges are not socialized to become moral arbitrators, and even less moral heroes. As to society: a considerable number of citizens of plebiscitary leader democracies do not find the legalized turpitude morally troubling and don’t resent the abuse of the rule of law. It is the legal profession (eminently, but not exclusively, judges) that is called to uphold the rule of law: this is the tradition and culture they are inculcated to observe, and this is what gives them legitimacy, authority and self-confidence – and protection. The legal profession cherishes legality. Most lawyers believe that properly enacted laws and precedents are valid and therefore legally binding. Legality is crucial to temper state arbitrariness, but a self-blinding respect of anything coming from the official gazette comes at a price.

To protect the rule of law based legal system against abusive use of the loopholes, imperfections, contradictions of the law, to avoid legal inertia legal positivist arguments are needed to convince and mobilize the legal mind. The same applies when the blind fortune of democracy provides the opportunity to erase the legally enthroned injustice and domination of illiberal regimes. When it comes to legal enactments that serve legal cheating the rule of law must respond to systemic abuse of the law and that requires and justifies a rule of law based exceptionalism and a systemic remedy.

An Exception to Confirm the Rule

This is why we need a militant rule of law. The term refers to the aggressive use of tried-and-tested rule of law standards and rules tailored to specific circumstances. Militant rule of law allows for exceptions to the rule of law which are already recognized in rule of law standards and a principled reinterpretation of rule of law precepts. When it comes to reliance on the recognized exceptions of the rule of law, it is vital that these exceptions be temporary, subject to proportionality and independent control.

Militancy applies both to preventive and restorative situations. Preventive militant rule of law presupposes a systematic revision of the existing institutional and doctrinal arrangements of the legal order and the abuse-restrictive application of rule of law doctrines in a proactive way.

Militant rule of law is to some extent comparable to militant democracy. However, militant democracy limits certain fundamental rights in order to preserve democracy against forces that aim to obtain control through democratic means, only to then permanently destroy democracy itself. In the case of the rule of law, militancy in most respects remains within the confines of accepted standards. Militant rule of law – unlike militant democracy in certain scenarios – does not contradict the fundamental principles of what it seeks to protect.

For illiberal democracies in the European Union, the name of the game is still “rule of law”. The rulers themselves are “partial prisoners of the law’s rhetoric, the law inhibiting the actions of the rulers.” The authorities continue to purport to observe the rule of law, or at least a version to their liking and making.

In a belated, rather timid and often contradictory way transnational European courts move in the direction of militant rule of law. The ECtHR found a workaround to the sacrosanct principle of judicial irremovability stating that a court with the participation of unlawfully appointed judges does not satisfy the requirements of a tribunal established by law. Removal of judges appointed on the basis of a law that disregards judicial independence satisfies the rule of law. The CJEU found that judicial impartiality is an enforceable norm of the Treaty (though sometimes “non-judges” are treated as judges). Moreover, it has innovatively “found” a principle of non-regression that prohibits EU member states to regress in their laws on the organization of justice.

Of course, where the rule of law is sacrificed to bureaucratic inertia and political deals (as it happens in the case of Hungarian conditionality horse trading) rule of law will be compromised. Moreover, the international courts will legitimize populist despotism in case they continue to uphold national idiosyncrasies (aka “constitutional identity”) which restrict fundamental rights departing from European consensus and accepted solutions of the rule of law. It is vital for militant (or any) defense of the rule of law status quo that international (and constitutional) courts be aware of the ripple effect of their more lenient (aka “deferential”) or delayed judgments.

There are many rules and maxims of the rule of law that can be mobilized in a militant concept, such as legislative intent analysis and the robust application of reasonableness review applied to laws even outside fundamental rights. These would enable the positivist lawyer and judge to stand up against illicit legislative intention resulting in unreasonable decisions (as cheating in the law inevitably leads to non-sense and arbitrary decisions).

Important as trust is, abandoning the presumption of legislative good faith is not contrary to the rule of law. Bad faith is the normal assumption when the systemic abuse of the law is demonstrated. It is a recognized principle of law (see Art. 18 of the European Convention on Human Rights) that restrictions of rights shall not be applied for any purpose other than those for which they have been prescribed. A militant understanding of this principle extends it to all areas of law.

Another militant concept is the anti-formalistic understanding of legal validity. A law that is enacted formally correctly is not necessarily valid even according to many legal positivists adhering to the source theory, as long as the prevailing assumption in the legal community contains expectations regarding the rule of law being part of the rule of law.

Judges have considerable interpretive possibilities within the rule of law, and there is nothing in legal positivism that would preclude a militant use of such possibilities. After all, illiberal democracies mandate at the level of their constitutions respect of the rule of law. (In self-referential constitutional tradition many constitutions declare that the state is a Rechtsstaat. Le Rechtsstaat c’est moi.  Well, if they say so…)

Militant rule of law cannot accept the Befehl ist Befehl tradition in the name of academic value neutrality.  “The man has been trained for the rules of the game but the game has been changed so what now is the man.” We should not wait for the gamechanger.

Vorab: Uns wird in diesem Jahr die Ehre zuteil, von der Theodor-Heuss-Stiftung mit einer Medaille “für vorbildliches demokratisches Handeln” ausgezeichnet zu werden. Das hat die Stiftung in dieser Woche bekannt gegeben. Mit unserem Thüringen-Projekt werde “das Verständnis für demokratische Abläufe geschärft”, so die Begründung. Uns ist diese Auszeichnung eine große Freude und ein Ansporn, unseren Kampf gegen autoritär-populistischen Verfassungsmissbrauch mit allen Kräften fortzusetzen.

Eine der zentralen Schauplätze, an denen dieser Kampf seit acht Jahren geführt wird, ist Polen. Dass der Kampf trotz des Wahlsiegs der Opposition über die PiS-Regierung im Oktober letzten Jahres nicht zu Ende ist, hat sich in dieser Woche mit drastischer Deutlichkeit gezeigt. Was sich da zugetragen hat und wie es dazu kam, ist nicht ganz leicht zu durchschauen. Ich habe daher unseren Freund und Autor Jakub Jaraczewski gebeten, die Fäden ein bisschen zu entwirren. Hier das Interview:

MS: Zwei ehemalige Regierungsmitglieder im Gefängnis und im Hungerstreik, beide begnadigt und gleichzeitig nicht begnadigt (oder bald doppelt begnadigt?), beider Mandat als Abgeordnete im Sejm durch den Obersten Gerichtshof beendet und gleichzeitig nicht durch den Obersten Gerichtshof beendet – Polen gab in dieser Woche das Bild eines wahren Rechtsstaatlichkeits-Pandämoniums ab. Wie ist es dazu gekommen?

JJ: Die einfachste Antwort wäre, dass sich die verschanzten Elemente der früheren Regierungspartei den Versuchen widersetzen, Polen zur Rechtmäßigkeit zurückzuführen. Nach einem rechtskräftigen Gerichtsurteil vom Dezember letzten Jahres, in dem zwei PiS-Politiker, Mariusz Kamiński und Maciej Wąsik, mehrerer Straftaten für schuldig befunden wurden, die sie während ihrer Amtszeit als Leiter und stellvertretender Leiter des Zentralen Antikorruptionsbüros in der ersten PiS-Regierung (2005-2007) begangen hatten, kam es zu einer Reihe von Ereignissen, die zeigen, wie schwierig es sein wird, die Rechtsstaatlichkeit in Polen wiederherzustellen.

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MS: Was haben sie verbrochen, und warum waren die polnischen Gerichte nicht in der Lage, das zu tun, was ein Gericht tut, nämlich in einem fairen Prozess und mit einem für alle Parteien verbindlichen Ergebnis über ihre Schuld zu entscheiden?

JJ: Kamiński und Wąsik wurden bereits 2015 in erster Instanz wegen Machtmissbrauchs und Urkundenfälschung verurteilt. Unmittelbar nach diesem nicht rechtskräftigen Urteil hat der neue polnische Staatspräsident Andrzej Duda die beiden umstrittenerweise begnadigt, bevor die Berufung in ihrem Fall in zweiter Instanz verhandelt wurde. Meiner Ansicht nach war diese Begnadigung unwirksam, und diese Ansicht vertrat auch der Oberste Gerichtshof Polens, der die Begnadigung im Jahr 2017 prüfte. Auf das Urteil des Obersten Gerichtshofs reagierte der Sejm-Sprecher (von der PiS) mit einer Klage beim Verfassungsgericht, in der er geltend machte, dass es zu einem Kompetenzstreit zwischen dem Präsidenten und dem Obersten Gerichtshof in der Frage komme, ob der Oberste Gerichtshof die Begnadigung durch den Präsidenten prüfen könne. Der Oberste Gerichtshof setzte sein weiteres Verfahren aus, wie es in solchen Situationen üblich ist, und wartete auf eine Entscheidung des Verfassungsgerichts. Das Verfassungsgerichts, das zu diesem Zeitpunkt bereits politisch kompromittiert war, befasste sich sechs Jahre lang mit dem Fall und brachte ihn nicht voran, da es nicht im Interesse des regierenden Lagers lag, die Angelegenheit zu klären. Letztes Jahr beschloss der Oberste Gerichtshof, nicht länger zu warten, und nahm das Verfahren wieder auf. Das Verfassungsgericht reagierte, indem es dem Obersten Gerichtshof zuvorkam und feststellte, dass der Oberste Gerichtshof die Befugnis des Präsidenten zur Begnadigung nicht prüfen könne. Der Oberste Gerichtshof ließ sich davon nicht beirren, verhandelte den Fall trotzdem und wies die zweite Instanz in Warschau an, den Fall Kamiński und Wąsik erneut zu verhandeln, was diese auch tat und am 20. Dezember beide Herren für schuldig befand. Dieses Urteil ist ab sofort rechtskräftig, da Kamiński und Wąsik keine Berufung beim Obersten Gerichtshof eingelegt haben (obwohl sie angedeutet haben, dass sie dies tun werden).

MS: Warum ist eine Begnadigung durch den Präsidenten, bevor das Gericht ein endgültiges Urteil fällt, rechtsstaatlich so problematisch?

JJ: Die polnische Verfassung von 1997 ist leider recht vage, was die Befugnis des Präsidenten zur Begnadigung und deren Ausübung angeht, aber die meisten polnischen Wissenschaftler sind sich einig, dass der Präsident erst nach einem rechtskräftigen Urteil begnadigen kann, da erst dann das volle Ausmaß der Schuld und der Strafe von den Gerichten festgestellt wird und der Präsident somit vollständig darüber informiert ist, wer begnadigt wird, für welche Verbrechen und wie hoch das Urteil ausfällt. Diese Ansicht wurde vom Obersten Gerichtshof in der Entscheidung von 2017 geteilt und vom Verfassungsgerichtshof in seiner aktuellen Form angefochten.

MS: Eine Begnadigung vor der endgültigen Verurteilung ist ein Eingriff in ein ordnungsgemäßes Verfahren, während eine Begnadigung danach eine Begnadigung ist?

JJ: Es geht um mehr als das. Eines der zwingenderen Argumente des Obersten Gerichtshofs war, dass eine solche Einmischung in ein laufendes Strafverfahren gegen die Gewaltenteilung und das Gleichgewicht der Gewalten verstößt. Der Präsident mischt sich in ein Gerichtsverfahren in einer Weise ein, die sich auf das Gleichgewicht zwischen Exekutive und Judikative auswirkt und eine Intervention ermöglicht, die das Gericht in seinem Versuch stört, Recht zu sprechen und damit auch die ordnungsgemäße Verwirklichung des Rechts auf ein faires Verfahren zu gewährleisten.

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MS: Während der Präsident und das Verfassungsgericht darauf bestehen, dass es der Oberste Gerichtshof ist, der in die Befugnisse des Präsidenten eingreift?

JJ: Ja. Präsident Duda ist im Allgemeinen der Ansicht, dass seine präsidialen Befugnisse, wie die Befugnis zur Begnadigung oder die Befugnis zur Ernennung und Beförderung von Richtern (auf Empfehlung des problematischen “neuen” Nationalen Justizrates), von einer gerichtlichen Prüfung ausgenommen sind, und das Verfassungsgericht hat wenig überraschend diesen Standpunkt bisher geteilt. Dies steht auch im Einklang mit dem Argument des Verfassungsgerichts, dass der EuGH und der EGMR die Ernennung von Richtern in Polen nicht prüfen können, da die Unterschrift des Präsidenten unter einer Richterernennung alle möglichen Unregelmäßigkeiten auf dem Weg dorthin bereinigt.

MS: Die PiS-Verfassungspolitik ist also bei den Parlamentswahlen in Wahrheit gar nicht abgewählt worden, was die verbleibenden PiS-kontrollierten Institutionen betrifft?

JJ: Ja. Polen erlebt jetzt einen Zusammenstoß zwischen der neuen Regierung und den verschanzten Elementen der vorherigen Herrschaft – das Verfassungsgericht, der Justizrat und Teile des Obersten Gerichtshofs bleiben alle PiS-treu und werden jetzt mobilisiert, um sich den Versuchen zu widersetzen, die Rechtsstaatlichkeit im Land wiederherzustellen. Wie wir sehen, hat die neue Regierung in einigen Bereichen die Handschuhe ausgezogen und setzt sich brutal durch – etwa bei der Wiedererlangung der Kontrolle über die staatlichen Medien. Im Bereich der Gerichte und der Justiz scheint der neue Justizminister/Generalstaatsanwalt Adam Bodnar sehr viel vorsichtiger und überlegter vorzugehen; die Frage ist, ob das ausreicht, um den anhaltenden Schaden zu stoppen, der durch politisch kompromittierte Institutionen verursacht wird.

MS: Welche Schritte werden unternommen, um das Problem der zahlreichen rechtswidrig ernannten Richter und der Gerichtskammern zu lösen, die nicht als gesetzlich anerkannte Gerichte gelten?

JJ: Adam Bodnar hat einen Entwurf für ein Dekret vorgelegt, wonach “neue” Richter nicht mehr den Status und die Unabhängigkeit anderer “neuer” Richter prüfen sollen, und er hat angedeutet, dass er keine freien Stellen für richterliche Beförderungen mehr ausschreiben wird, was den Justizrat von einer seiner problematischsten Tätigkeiten berauben würde, nämlich der Organisation von Auswahlverfahren zur Besetzung solcher Stellen und der Empfehlung an den Präsidenten, Richter zu befördern. Weitergehende Maßnahmen würden eine Gesetzgebung erfordern, was bis zum Ausscheiden von Präsident Duda aus dem Amt im Jahr 2025 unwahrscheinlich ist, da dieser wahrscheinlich sein Veto gegen die meisten Gesetze zur Wiederherstellung der Rechtsstaatlichkeit einlegen würde. Außerdem hat Bodnar die Abordnung mehrerer Richter an das Justizministerium und an höhere Gerichte aufgehoben, darunter “neue” Richter und solche, die an der Verfolgung von Juristen, die der PiS-Regierung kritisch gegenüberstehen, beteiligt waren. Er hat den Staatsanwalt Dariusz Barski, einen alten Freund und Schützling von Zbigniew Ziobro (Bodnars Vorgänger und Architekt der PiS-Justizpolitik, d.Red.), entlassen und einen Gesetzentwurf über den Nationalen Justizrat vorgelegt, der darauf abzielt, dass Richter wieder in den Rat gewählt werden. Das passiert aber alles, während wir hier sprechen, und ist noch in voller Bewegung, so dass es zu früh ist zu sagen, wie das am Ende alles ausgehen wird.

MS: Wenden wir uns der Legislative zu und kehren wir zu Kamiński und Wąsik zurück. Beide sind Abgeordnete im Sejm – oder doch nicht? Was hat es damit auf sich?

JJ: Wenn Du mich fragst, ist keiner von beiden mehr Abgeordneter im Sejm. Das polnische Gesetz besagt eindeutig, dass eine rechtskräftige Verurteilung wegen einer Straftat, wie sie Kamiński und Wąsik zur Last gelegt wird, den sofortigen Verlust des Parlamentsmandats zur Folge hat. Natürlich gibt es auch hier Widerstand, diesmal von Seiten des PiS-treuen Teils des Obersten Gerichtshofs, was dazu führte, dass der Fall Wąsik von der “neuen” Außerordentlichen Kammer für Kontrolle und öffentliche Angelegenheiten des Obersten Gerichts verhandelt wurde, die die Erklärung des Sejm-Sprechers über die Beendigung des Mandats von Wąsik für ungültig erklärte. Dieselbe Kammer hat genau dasselbe im Fall Kamiński getan, aber dieser wurde gleichzeitig auch von der “alten” Kammer für Arbeitsrecht und soziale Sicherheit verhandelt, die feststellte, dass der Präsident des Sejm zu Recht verkündet hat, dass Kamiński nicht mehr Abgeordneter ist. Der Sprecher des Sejm hat bisher darauf reagiert, indem er der Kammer für Arbeitsrecht und soziale Sicherheit folgte und erklärte, dass Kamiński kein Abgeordneter mehr ist und dass er die Entscheidung einer “richtigen” Kammer des Obersten Gerichtshofs im Fall Wąsik abwartet.

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MS: Was wird also passieren, wenn sie im Sejm erscheinen, um ihre Stimme abzugeben?

JJ: Der Parlamentspräsident sollte Kamiński an der Stimmabgabe hindern, was technisch recht einfach ist, da er ihre Stimmkarten sperren kann. Im Fall von Wąsik würde ich sagen, dass der Parlamentspräsident dasselbe tun sollte, aber ich kann verstehen, dass der Parlamentspräsident Szymon Hołownia eine (seiner Meinung nach) felsenfeste Rechtsgrundlage auf Basis einer Entscheidung einer rechtmäßigen Kammer des Obersten Gerichtshofs haben möchte, um dies zu tun.

Das Üble am autoritären Populismus ist, dass er einen, egal was man tut, dazu zwingt, sein Narrativ zu bestätigen, wonach letztlich alle Institutionen politisiert sind und die Verfassung das ist, womit man davonkommt, und das Gesetz nur ein weiteres Instrument für die Machthaber ist, um damit gegen ihre Gegner vorzugehen. Ist es das, was die PiS hier zu erreichen versucht, und wenn ja, sind sie erfolgreich?

Ich bin kein Politikwissenschaftler, aber nach allem, was ich höre, hat die PiS die Unterstützung von 25-30 % der Wähler, die mit allem einverstanden sind, was Jarosław Kaczyński tut, und die das für legal halten. Die gute Nachricht ist, dass die Wahlen im Oktober gezeigt haben, dass es in Polen eine bedeutende Gruppe von Wechselwählern gibt, die nuancierter sind und nicht zwischen der PiS und ihrem Erzfeind, der Bürgerkoalition von Donald Tusk, polarisiert worden sind.

In einer früheren Version dieses Artikels wurde der Name von Jakub Jaraczewski falsch geschrieben, ich bitten den Fehler zu entschuldigen; er ist mittlerweile korrigiert.

Die Woche auf dem Verfassungsblog

Vor dem Internationalen Gerichtshof wurde in dieser Woche über die Klage von Südafrika gegen Israel wegen des Gaza-Kriegs verhandelt. ITAMAR MANN preist die Klage, weil sie offenlegt, was in Gaza gerade passiert, worüber man in Israel kaum etwas erfährt, aber kritisiert, dass sie die aktive Rolle der palästinensischen Seite nicht thematisiert – der abwesenden eigentlichen Konfliktpartei. In einem weiteren Post analysiert ITAMAR MANN, was die Nominierung des ehemaligen Präsidenten des israelischen Obersten Gerichtshofs und Holocaust-Überlebenden  Aharon Barak zum Ad-hoc-Richter am IGH in dem Fall für Implikationen haben könnte. CHRISTIAN WALTER fordert die Bundesregierung auf, in dem Verfahren die Nebenintervention an der Seite Israels zu erklären (was diese mittlerweile angekündigt hat). Dass der Konflikt in die Bahnen des Rechts gelenkt werden soll, sei sehr zu begrüßen, dass dafür nur der Vorwurf des Völkermords zur Verfügung steht, dagegen nicht.

Unbeirrbare Unterstützung für Israel als deutsche Staatsräson – was soll das eigentlich genau heißen? Dieser Frage geht ANTJE WIENER nach und findet weder in ihren geschichtlichen Wurzeln noch in ihrem Gebrauch in den Medien noch in der Forschung eine befriedigende Antwort. Was bleibt, ist die Einladung zum kritischen Dialog, was der Inhalt dieser Norm ist und sein soll: “For only a contested norm can ever be perceived as a legitimate norm.”

Der israelische Obersten Gerichtshof hat am Neujahrstag die Unterjochung der Justiz in Israel durch die Netanyahu-Regierung für verfassungswidrig erklärt, obwohl die Regierung dafür eigens das Grundgesetz geändert hatte. Dass die Justiz keinerlei Vernünftigkeitsmaßstab mehr an irgendeine Entscheidung der Regierung anlegen dürfen solle, verletze die Rechtsstaatlichkeit und die Gewaltenteilung und damit die demokratische Identität Israels. AEYAL GROSS analysiert das 738 Seiten lange Urteil: Die Entscheidung, so Gross, zeige den Effekt der Aufklärung über die Methoden des autoritären Populismus, die in den letzten Jahren stattgefunden hat. Anders als in Ungarn und in Polen gab sich niemand in Israel der Illusion hin, das seien alles bloße Technizitäten, über deren Änderung sich höchstens irgendwelche abgehobenen Eliten aufregen.

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Einseitig besetzte Verfassungsgerichte wie das in Polen können ein großes Problem sein, das auch noch weiterwirkt, wenn die Regierung, die die Gewichte innerhalb des Gerichts zu ihren Gunsten verschoben hat, gar nicht mehr an der Macht ist. Zu dem deutschen Artikel von GERTRUDE LÜBBE-WOLFF dazu, der im November erschienen ist, kommt jetzt die im Detail ergänzte englische Version.

In Thüringen hat die CDU gemeinsam mit AfD und FDP gegen die rot-rot-grünen Minderheitsregierung eine Gesetzesänderung beschlossen, die den Ausbau der Windenergie im Wald erschwert. Die politischen Auswirkungen dieses gemeinsamen Handelns mit der AfD sind die eine Sache, die Rechtslage eine andere. CHRISTOPH REINSCHMIDT hält es für zweifelhaft, dass das Land dafür überhaupt die Gesetzgebungskompetenz hatte.

Was darf der Bund bezahlen – und wie sehr sich dafür verschulden? Das Bundesverfassungsgerichtsurteil zur Schuldenbremse in Zeiten des Klimawandels sorgt weiter für intensive Diskussion. CHRISTINE LANDFRIED sieht in dem Urteil eine Überschreitung der richterlichen Kompetenz und fordert die Ampelkoalition zu mehr verfassungsrechtlicher Risikofreude auf.  SIMON DIETHELM MEYER argumentiert in die entgegengesetzte Richtung und findet, dass auch Individuen mit einer “Schulden-Verfassungsbeschwerde” die Einhaltung der Schuldenbremse beim Bundesverfassungsgericht einklagen können sollten. In Niedersachsen stehen unterdessen wegen des aktuellen Hochwassers große Gebiete unter Wasser. Darf der Bund den Wiederaufbau mit finanzieren? LUCA STEINBECK meint, dass das Grundgesetz die Frage mit Nein beantwortet.

Die Entscheidung des Bundesverfassungsgerichts, dass die Bundestagswahl in Berlin teilweise wiederholt werden muss, analysiert WINFRIED KLUTH: Diese “Entscheidung in der zweiten Halbzeit” zeige einmal mehr, dass das Wahlprüfungsrecht reformiert werden sollte. Auch HALINA WAWZYNIAK leitet aus dem Urteil akuten Reformbedarf für die Überprüfung von Wahlfehlern ab.

Darf die Europäische Union das Vergewaltigungsstrafrecht in den Mitgliedstaaten harmonisieren? Deutschland ist dagegen und sieht keine Kompetenzgrundlage. DILKEN CELEBI, LISA MARIE KOOP und LEOKADIA MELCHIOR halten das für falsch.

Die EU-Kommission hat eine Untersuchung gegen t.c.f.k.a. Twitter wegen Desinformation eingeleitet. Twitter setzt auf sog. community notes, um mögliche Desinformation zu kennzeichnen. Ob das rechtlich ausreicht, untersucht MARC BOVERMANN.

Ein Jahr nach Qatargate liegen verschiedene Vorschläge auf dem Tisch, wie man der Korruption in der EU weiter entgegenwirken kann, und die sind allesamt eher enttäuschend. LOLA AVRIL und EMILIA KORKEA-AHO fragen nach der Beitrag der Wissenschaft zu diesem Befund: Warum gibt es so wenig und so fragmentierte Forschung zu Lobbyismus, Drehtüreffekte und Interessenkonflikte? Warum interessieren sich so wenige dafür, mal über Transparenzverpflichtungen hinaus zu denken? Solange das so ist, sei es heuchlerisch, die EU dafür zu kritisieren, dass sie die Empfehlungen der Wissenschaft nicht ernst genug nimmt.

Das wär’s für diese Woche! Ihnen alles Gute,

Ihr

Max Steinbeis

On 11 January, Advocate General Richard de la Tour delivered his Opinions in two cases, against the Czech Republic and Poland, which cautiously uncover part of the core of the EU value of democracy. The Commission launched these infringement cases against the two Member States back in November 2012 and April 2013 respectively. They were part of the Commission’s push to remove obstacles in EU citizens’ exercise of their electoral rights guaranteed by the Treaties. The action, against eleven Member States initially, sought to ensure that EU citizens living in another Member State could join or establish a political party. Whereas the Commission found solutions with most of the Member States, as they clarified or adjusted their laws, it continued the procedures against the Czech Republic and Poland. After reasoned opinions issued in 2014, it shelved these cases for a long time, only to restart them in 2021.

Infringement procedures are normally lengthy, but it is rare for them to span over a decade between the initial letter of formal notice and the Court procedure. Perhaps the Commission sees these cases as an opportunity to strengthen the understanding of democracy within the EU legal order. Now that the rule of law is a well-established principle of EU law, these cases present themselves as a chance to focus on a less explored value enshrined in Article 2 TEU. They allow the Court to construct a foundation to address prospective questions regarding democratic principles.

Political Parties as Fundamental to Democratic Life

The cases concern the Czech and Polish national legislation on political parties. Both laws still stipulate that only nationals can join a political party. The Commission argues that this violates EU law. Articles 20(2)(b) and 22 TFEU guarantee EU citizens active and passive suffrage in European Parliament and municipal elections ‘under the same conditions as nationals of that state’. Therefore, national legislation limiting political party membership to nationals conflicts with their right to stand for election. The Member States contend that a non-national can still stand as a candidate for these elections, something not impeded by their preclusion from political parties. Moreover, the relevant Directives detailing the arrangements for ‘mobile’ Union citizens to participate in European and municipal elections do not impose obligations to permit political party membership.

In his Opinions, AG de la Tour sides with the Commission’s broader reading of Article 22 TFEU, by acknowledging the fundamental role played by political parties in the exercise of political rights. The AG and Commission refer to the Venice Commission and ECHR case law recognising this role of political parties. Key to one’s electoral prospects is the possibility of engagement in democratic life in the relevant Member State. Political parties have the resources to promote this engagement. In response to the narrower reading of the EU legislation, AG de la Tour maintains that the Directives do not set out the only conditions to ensure the electoral rights of European citizens. In fact, Article 22 TFEU prohibits ‘any barrier to the exercise of electoral rights […] on the basis of nationality’.

Linking Democracy to Citizenship

The Commission limits its argumentation to the citizenship articles found in the TFEU as well as the right to freedom of expression and assembly as guaranteed in Articles 11 and 12 of the Charter. By contrast, AG de la Tour steers this case towards the fundamental value of democracy. His assessment brings to the fore Articles 39 and 40 of the Charter, provisions that enshrine European citizens’ right to vote and stand for election. These rights link to the principle of representative democracy, which provides the foundation of the Union’s functioning, as stipulated in Article 10 TEU. This principle, in turn, relates to the EU’s founding value of democracy stipulated in Article 2 TEU.

Although Krappitz rightly points out that the Opinions fail to comprehensively integrate Article 2 and 10 TEU (see here), there is some attempt made by AG de la Tour to do so. The Court of Justice, in its judgement on this case, could provide for a more thorough analysis in this regard. However, the link established between citizenship and electoral rights, as well as the link between political parties and electoral rights, are steps to expose a common understanding of democracy.

Adding Another Stone

The importance of this case might lie beyond simply allowing non-nationals in the Czech Republic and Poland to join political parties. It has been suggested (see for example here, here and here) that the Court could use Article 10 TEU to prevent or tackle violations of democratic principles in Member States. The Court already established that Article 10 TEU gives ‘concrete form to the value of democracy referred to in Article 2 TEU.’ Beyond this, the provision seems too vague to be justiciable.

As I have argued previously here, there is limited legal substance when it comes to the value of democracy. If the EU wants to intervene and prevent the erosion of democracy within Member States, there needs to be a more solid understanding of what this value entails. Moreover, addressing questions that touch upon fundamental values in a constitutional context poses a challenge for the EU Court. Cases of a constitutional nature are politically sensitive. Yet, the CJEU has a tactic for dealing with these types of complex cases.

The Court builds up its reasoning in a progressive fashion. This ‘stone-by-stone’ approach allows it to tackle issues of constitutional importance gradually. Instead of drawing unexpected conclusions on a delicate topic, ground-breaking cases are therefore preceded by case law that provide a foundation for the answer. Von Bogdandy and Spieker show here that the Court took this same approach to operationalising a different Article 2 value: the rule of law. The Court incrementally builds up relevant rule of law principles; Koncewicz traces this process here. In this manner, the Court operationalised the EU value, turning it into enforceable principles.

Possible future developments

These cases on political party membership are suitable to contribute to an incremental approach in operationalising democracy. They have a discernible European dimension, but also entail broader national implications. They are not likely to trigger backlash from other Member States, as the vast majority of them allow non-nationals to join political parties. As AG de la Tour shows, the cases allow for making links between legal concepts, which can deepen the value of democracy. These links could be relevant in possible future cases that might not fall within the scope of Article 22 TFEU.

By recognising the work of the Venice Commission and the ECtHR case law, the Opinions further consolidate the connection between the EU’s value of democracy and the contributions of these institutions. Although the Strasbourg Court often affords a broad margin of appreciation when it comes to electoral matters, it is vigilant in protecting individual electoral rights. The ECtHR imposes a stringent proportionality test if a signatory state deprives individuals or groups from the right to vote, for instance in cases of citizens under guardianship or convicted prisoners. Moreover, the Venice Commission has long been developing a common core of European democracy. In its Code of Good Practice in Electoral Matters it emphasises fundamental principles of universal, equal, free, secret and direct suffrage.

The link drawn between European citizenship and the exercise of democratic rights can justify the Union’s involvement in other aspects of electoral matters. For instance, one can imagine that if there are indications that municipal or European Parliament elections are not free in a certain Member State, this also affects ‘mobile’ European citizens from exercising their democratic rights in that Member State. If the forthcoming judgements follow the AG Opinions, these cases would confirm that the national provisions relevant to municipal and/or European Parliament elections fall within the scrutiny of the Court of Justice.

Another conceivable possibility is that the CJEU could eventually be asked to rule on political party bans. If the CJEU sticks to the reasoning that political parties serve an essential function to guarantee electoral rights, a party ban at the national level would also affect the electoral rights guaranteed by EU law. Political parties often operate at local, regional, national and European levels (as European political parties are typically composed of national parties). Therefore, a party ban would prohibit them from engaging in local and European Parliament elections.

An Open-Ended Story…

Aside from the cases discussed, where the Member States in question are arguably not undermining the very essence of democracy, the EU is facing a complex challenge with Member States backsliding on the Union’s values. Through an incremental approach, the CJEU has developed a way to address violations of the rule of law. However, the line of reasoning used in those cases cannot apply to all aspects of constitutional regression. Therefore, the Court needs to lay new foundations to deal with cases that fall within the scope of democracy. To see how the Court will further develop this EU value, keep an eye out on its judgements in these cases against the Czech Republic and Poland.

Since the new Polish government took power, it has taken first steps to restore the rule of law. These have been quite different in nature, from the soft appeals to comply with the case law of the CJEU to more uncompromising and confrontational measures, like taking control of the public broadcasting TVP. It is too early to comprehensively understand the overall strategic vision of the Polish government in remedying the situation. However, it is clear that restoring a damaged liberal democracy requires a different mindset than fighting its demise. While the latter aims to strategically delay the anticipated undemocratic endeavours, the former must constructively rebuild. I call this ‘Building Back Better’, akin to the UN risk-reduction approach employed to avoid future disasters. In the following, I elaborate on the nature of re-democratisation as a new challenge distinctive from confronting backsliding. Moreover, I suggest an approach to Building Back Better in Poland in three steps: sifting (step1), selecting and sequencing (step 2), and swallowing (step 3).

Re-democratisation: the new noble cause

Just a few months ago warriors against Polish rule of law backsliding were united. They called out the national and European legal incompatibilities and devastating societal consequences of the PiS populist playbook. They successfully mobilised cross-border solidarity and European courts. Their noble actions very likely slowed the speed and extent of the damage. But these did not prevent backsliding. The consequences of the PiS-years have been dramatic. The public prosecutor’s office was fully politicised, the Constitutional Tribunal and various parts of the Supreme Court were populated by people who according to norms of EU and ECHR law, and according to European apex courts (see also here), are not courts/judges. Public media’s independence was killed off. Public resources were consistently misused to intimidate opponents. The Polish President has not stepped up, and still does not act on his sworn duty to uphold the Polish Constitution, which plainly includes compliance with European standards. Illegitimately composed (parts of) the Polish Supreme Court /Constitutional Tribunal continue to issue statements which in turn get overturned in judgments by (another part of the same national) apex court.

One would wish that eggs could be unscrambled. That those who now irregularly occupy positions could simply be removed or demoted with the stroke of a pen, without backlash or new complications causing new work. That winning an election, in short, would come with a time machine and a blank sheet of paper. But the infuriating reality is that entrenchment has occurred and often cannot be easily undone overnight except through draconian measures that may themselves, according to authoritative Polish human rights actors, be in strong tension with the rule of law that needs saving. The political reality is that that approach would effectively write the playbook for day 1 of any future PiS-led government if it were to regain power. More problematically, such actions to roll back backsliding would end up destroying sustainable separation of powers in the future, as any winning political power forming the new legislative and executive would “bring its own judiciary”.

If indeed we want to avoid this scenario, as we should, we need to accept that in embarking on our new noble cause, re-democratisation, the consequences of the previous regime cannot be fully eradicated overnight without the real risk of durably damaging something even more profound. We need to accept that anti-backsliding weapons and methods are not necessarily well tailored to approaching the unknown terrain of resuscitating a patient, ensuring she does not only survive but will also be inoculated against a copy-paste bout of future backsliding.

How to do this is an open question. There is no playbook. I would suggest that it would require (1) sifting the countless problems, particularly taking account of Poland’s  multi-level European embeddedness, (2) selecting and sequencing what problems to attack (3) swallowing the need of non-action on blatant further problems in a conscious effort to prioritise delayed gratification over instant action.

Step 1: Sifting – mobilising European law and European institutions

Poland’s rule of law problems can be put into three buckets.

There are some things that the Government can immediately discontinue. Public resources should no longer be used to sue opponents by way of SLAPP cases. One-sided laws, like the LexTusk, can simply not be applied. Doing nothing is all that is needed. Except, perhaps, drawing attention to the fact that you have stopped suppression (including to make the European Commission conclude that its infringement action can be dropped).

All other issues can be sifted through based on a simple criterium: does this have anything to do with EU(ropean) law? The reason is, as Kim Lane Scheppele has explained, that EU(ropean) law, which has been widely relied upon to slow down and call out backsliding can now also be weaponised to “escape the constitutional prison”. It is now a separate, outside source of norms binding on Poland to justify restorative steps. The aforementioned appeal to Polish judges by the Minister of Justice, which respects the separation of powers but shows the way, is an example of it. But it is also conceivable that the Polish government asks EU(ropean) institutions, such as the European Commission or the Venice Commission, for more concrete help. After rightly pointing out all the legal complications following from backsliding, it is now, as Hillion has explained, also their responsibility to facilitate Building Back Better in the awareness that the window of opportunity is narrow. One example: the Commission and Court of Justice could fast-track their handling of the infringement action dealing with the Constitutional Tribunal.

This “European bucket” would contain particularly everything related to judicial independence (composition of courts, separation of the function of Justice Minister and prosecutor general, etc., but perhaps also issues like the manning of agencies with an important role in executing EU law, like the Ombudsman Office and Data Protection Agency). After all, countless judgments by European courts deal with this. It is also these problems that threaten sound financial management of EU funds and have therefore led to suspending large sums.

All other challenges, like political positions occupied by PiS politicians, and their veto powers over legislation, are in the “national bucket”. These issues need to be solved by the Polish government on its own. This will require strategic preparation and planning depending on political opportunity and brinkmanship.

Step 2: Selecting and sequencing: developing and planning measures to Build Back Better

There will, of course, be a temptation to fix everything, all at once in buckets two and three. Yet given the time restraints the key question is: what subset of issues should be acted upon, and in what order? And what topics absolutely need fixing with a view to Building Back Better, including with a view to counter-entrenching measures that would safeguard liberal democracy in the future?

In that regard, it is helpful to formulate the end goal we would want to work towards. Here is a first attempt: four years from now Poland should have a National Council of the Judiciary that appoints qualified independent and impartial persons (aka: judges), and that cannot be re-politicised. It should have apex courts that consist of judges, and district and regional courts with presidents that are judges. It should have a Prosecutor-General Office that is separate from the Minister of Justice and guarantees that that will remain the case. It should have guarantees that management of publicly financed media is chosen based on independence rather than party-affiliation. This would also need to be ascertained for leadership of independent bodies such as the Ombudsoffice and the Data Protection Agency.

Of course, this is a hopelessly incomplete list of rule of law issues. But realism should trump purism here. Within one electoral cycle you just cannot undo each backsliding step in the reverse order from which they occurred, like play-acting a film projected in reverse. Moreover, with many parts of the Polish constitutional fabric still captured, particularly the Presidency and the Constitutional Tribunal, time plays a role in different ways.  First, legislation can only be adopted after the President is gone in 2025. Second, activities by institutional remnants from backsliding that are still active (such as the captured Constitutional Tribunal and parts of the Supreme Court, which will continue issuing statements) will require permanent “managing”, meaning time.

Most of this will indeed need to be laid down in legislation and Constitutional changes, which can be pre-prepared and pre-consulted with EU(ropean) partners so that they can be tabled the day after a new President takes office. It will all need careful coordination and orchestration. And perhaps strict confidentiality, so as not to radio intentions to anti-democratic forces. But one thing is certain: failing to plan, is planning to fail.

Step 3: Swallowing – the art of self-restraint

Oscar Wilde once wrote: “To do nothing at all is the most difficult in the world, the most difficult and the most intellectual”. There are plenty of Polish rule of law problems that are eyesores legally and an affront to a reasonable sense of justice. Yet, many may simply need no legislative or   immediate solving for reason that the problems they cause can be mitigated in better ways, because of capacity restraints, or because resistance against any corrective measures would suck away time, energy and political capital better used for Building Back Better within the golden opportunity of this electoral cycle.

One example: thousands of irregularly appointed people now populate Polish lower courts in places where only judges should sit. Rolling back their appointments or promotions, as the judges’ umbrella Iustitia has proposed, would be extremely disruptive and time-consuming. In considering whether this disruption would be justified it is important to observe that these individuals are still a minority. So other solutions may work better. Lower court presidents, within their existing discretionary powers, can probably simply isolate these non-judicial individuals in composing chambers while allocating cases, never having them sit without a judge alongside of them. Moreover, on the assumption that national apex courts would soon be fully populated again by judges, what comes out of lower courts could always be double-checked on appeals anyways, so that the right to a fair trial would be guaranteed.  Of course, this is hard to stomach. But the prize here is long-term legitimacy and the legal and moral high ground.

There will be many other irregularities and illegalities that will remain deeply annoying yet do not touch the basic, minimal fabric of a Build Back Better-plan. Managing rather than directly confronting them is “the most difficult and the most intellectual”. Yet swallowing solutions that are imperfect and incomplete may simply be necessary for re-democratisation efforts.

Re-democratisation as a balancing act between instant and delayed gratification

None of this is easy. Indeed, everything will be infuriatingly hard: the legal aspects, the policy challenges, the politics, the required self-restraint. Executing this will permanently feel like rewarding past criminal behaviour and walking a tightrope between instant and delayed gratification. In the end re-democratisation is about consciously finding a balance between a minimum set of measures that can remedy the biggest problems now, finding a way to deal with, manage and keep in check the imposters that the previous backsliding brought, all while continuously keeping the eyes on the biggest prize: a new and stable Polish liberal democracy inoculated against new takeovers copy-pasted from the past.  Rule of law defenders should all refuel, retool, and get ready to help out with this European enterprise.

This is an extended version of a speech given in the European Parliament’s Civil Liberties Committee during a rule of law hearing on 15 February 2024.

The question of how to restore the fallen and degenerated body that once was the Polish Constitutional Tribunal is finally to make its way to the Parliament this week. The stakes are clear: If we get lost in legalese and accept half-baked solutions, it will taint all ambitions and legislative projects aimed at restoring the rule of law in Poland. To avoid this mistake, the “fake court” should be “zeroed out” and newly appointed.

Laying the groundwork and “thinking out of the box”

Under normal circumstances, the law is interpreted “here and now” albeit with an eye on the past. However, there are times when one needs to go beyond this pattern and show greater interpretive creativity and conceptual openness in seeking a solution that also looks to the future. In his recently published book Reading Law Forward, American historian Peter Charles Hoffer describes the jurisprudence of several American judges who proposed just such a forward-looking model of constitutional interpretation. It may be worthwhile to draw on these experiences in the process of restoring the rule of law in Poland. As we argue for the restoration of the rule of law to stay within the four corners of the Constitution and its values it must take into account the adverse consequences that would persist if the current majority opted for some half measures, fearing (without constitutional justification as we explain below) that going all the way would be unconstitutional.

Freeing oneself from the constraints of the legalistic box is possible only if we have the imagination and willingness to critically reevaluate our existing language. Restoring the rule of law is similar to the actions of a sapper. Sometimes the mere safe and sterile removal of the fuse is not enough to defuse a mine, but sometimes the sapper will have to detonate it. Will detonation in defense of the constitution be an action tainted by illegality? Legalism = the letter of the law can sometimes kill the Constitution, but those who want to restore the rule of law just like sappers, cannot be suicidal just as the Constitution cannot be interpreted as a suicide pact. Some of the measures to restore the rule of law in Poland will be legalistic as compliance with the letter of the law, and some will have to go beyond the letter of the law in order to protect constitutional values and the integrity of the constitutional document humiliated for so long. Not every interpretation that goes beyond the wording of a provision is unlawful for that reason alone. If a literal interpretation leads to results and consequences that are absurd and obviously unjust, we are ready to break such a linguistic interpretation to exclude absurdity or injustice. It is exactly going beyond the traditional conceptual box that can contribute to the intellectual liberation needed to restore the true “practice of legalism”.

The discussion about what to do with the “Przyłębska court” proves that schematic thinking is still going strong. While lawyers agree that “the body” in Warsaw is no longer a constitutional court in the sense of the Constitution and rightly ask the question of what to do about it, they momentarily begin to fall into very dangerous legal sophisms. They begin to justify the thesis that we must accept the … unconstitutional status and we must muddle through and simply wait until the usurpers and collaborators go. And here their irrational attachment to a purely legalistic and deceptively simplistic approach comes to the fore and leads the whole discussion on the restoration of the rule of law astray. However, a lawyer who thinks in terms of the rule of law cannot stop at just a text, a paragraph, but must look at the context and calibrate his restoration methods through the prism of the consequences of actions taken or not taken.

Building a case

Our idea of “zeroing out” whatever is left of the Tribunal is firmly anchored in the Constitution. Indeed, the body under the political leadership of Ms Przyłębska has already “zeroed out” itself with its composition, its internal organization, its political disposition and, eventually, its sustained anti-constitutional jurisprudence. The Constitution has been torn to shreds and discarded by the very judges who should have been protecting it. We believe that extinguishing the fake court can be done by a solemn parliamentary resolution without the need to amend the Constitution. This is, of course, a very bold thesis, and some argue that such a move lacks a legal basis. But we find support for it in Articles 4, 7, 8 and 10 of the Constitution. Art. 4 declares that “Supreme power in the Republic of Poland shall be vested in the Nation” (para 1) and that “The Nation shall exercise such power directly or through their representatives” (para 2). Art. 7 says that the organs of public authority shall function on the basis of, and within the limits of, the law. Article 8 proclaims that the Constitution is the supreme law (para. 1 ) and is directly applicable (para. 2). Article 9 mandates that the Republic of Poland abides by international law. And finally, Art. 10 constitutionalizes the separation and balance of powers.

According to traditional thinking, the undefined and autonomous constitutional term “functioning on the basis of, and within the limits of, the law” is understood restrictively as meaning “only within the limits set out by the statutes”. To ensure the internal coherence of the constitutional text the correct interpretation, however, should rather read: “… on the basis of, and within the limits of the Constitution as the supreme law of the land and of the law” to which art. 7 refers. Here it is the Constitution that ultimately takes center stage and becomes, and rightfully so, our main point of reference. With the Constitution being the supreme law, the resolution as advocated here, should be passed by citing these articles as its legal basis. Moreover, a preamble should be inserted to explain to the citizens why we are doing what we are doing by way of the resolution in the name of the Constitution, its survival and in the name of the nation (art. 4).

There may be, of course, voices of discontent and counter arguments that one day the future political majority will readily take advantage of such a precedent. We reject this line of thinking. If one day a political force of Kaczyński’s evil ilk will be bent on a devastation of the Constitution as it has occurred in recent years, the argument of the precedent set will be only of secondary importance. Such a force hostile to the Constitution will cut wide, far, and deep regardless of whether today we reach a resolution of the Sejm as advocated above or rather adopt an incidental amendment to the Constitution. Superchairman Kaczyński and chief unconstitutional arsonist has already announced as much when he said on TV: “We will have recourse to special and extraordinary measures.”

Crucially, our choice of the solemn resolution, rather than an episodic amendment of the Constitution, is justified by our rejection of the narrative of those who once kept violating the Constitution at will and who now rather cynically plead for its amendment. We must not let the arsonists dictate our choices, path, and pace. After all, the constitutional devastation between 2015 and 2023 did not occur through the amendment of the Constitution, but through relentless anti-constitutional actions of a factual nature, unconstitutional resolutions of the Parliament and repeated hostile interpretations by the “fake court”. Therefore, we argue that with the unamended and always prevailing Constitution of 1997, an actus contrarius is required and sufficient – a resolution that restores the state of play in accordance with the Constitution. The adoption of the solemn parliamentary resolution as proposed here does not create a new legal system in Poland, but simply restores what the Constitution mandates, and what we do not have: a constitutional court in line with what the Constitution demands. Therefore, it is not the Constitution that must be changed but rather constitutionality and constitutional practice on the ground must be restored. The elections of 15 November 2023 were won on the promise to restore the Constitution and our representatives should perform this by way of a resolution (Article 4 of the Constitution). Dithering and procrastinating on the part of the Parliament will only prove that we have not learnt much from the debacle of 2015-2023.

Restoration as a constitutional fidelity

Acts of hostile interpretation of the Constitution by the judges that were elected to protect the very Constitution, must be unequivocally named, stigmatized, never rewarded, or swept under the rug. Our response must be decisive and tailored to the gravity of the perversions committed, and always remain faithful to the Constitution. It is the “fidelity to the Constitution” that must be the keyword of today, tomorrow and the day after tomorrow and become the meta signpost for resolving issues “here and now”. “Constitutional fidelity” means not what the Constitution does to me, but what I do to myself and around me to be and remain faithful to it. Such fidelity is an attitude of commitment, dedication, and submission since I as a citizen and a politician submit to the discipline of the constitutional document and pledge to obey and defend it. The restoration of the rule of law must pursue the primary goal of restoring meaning to the key elements of our civic vocabulary that have been stripped of meaning, manipulated in the service of ruthless politics: Constitution – constitutional court – rule of law – integration – respect – authority of the law – dignity and authority of institutions – separation of powers.

Restoration as “Reading the Constitution forward”

There are indeed times when interpretation of the Constitution requires not only prudence but also courage in line with Nec temere, nec timide – the motto which the city of Gdańsk has lived by for ages. We agree with A. Sajó that “by getting rid of the shackles of legal formalism we can contribute to the intellectual liberation needed for the return to the much-needed routine of legalism. Imagination is what animates change”. In 2015-2023 we have been warned. When misconstrued by narrow and formalistic reading, legalism can indeed become today a recipe for a collective constitutional suicide and bury our constitutional document for good. Are we finally ready to free ourselves from the self-imposed legalistic box and move forward courageously, but not rashly?

Thinking about where we are, where we want to go and what we are doing to constitutionally anchor our proposition, we have paused upon reading the opening sentence of the book Reading Law Forward:

“Classical jurisprudence asks: ‘What is the function of law?’ How are judges supposed to decide cases? Modern jurisprudence adds: What is the relationship between law and society, and how can law improve that relationship?”

If this is the essence of reading law forward, it is highly pertinent for the discussion of the restoration and future of the Polish Constitutional Tribunal. For it is not only about reversing the process of legal delegitimization of this body that it was subjected to 2015-2023. It is also as much about restoring its social legitimacy. The latter aspect probably goes beyond just the turmoil surrounding the Constitutional Tribunal but is just as critical for the successful restoration of the rule of law in Poland. While American judges were concerned with interpreting specific laws on the basis of specific facts, in our case we deal with something far more complex and difficult: “reading the Constitution and law forward” in the context of our entire political-legal-socio system which has been damaged in ways that our traditional legalistic box can neither comprehend nor adequately capture and express. Imagination and courage must drive the change now.

No one in Poland has ever doubted that cleaning up after the Law and Justice Party’s (PiS) eight years (2015-2023) in power will be an easy task. After almost three months in power, the new governing coalition led by Donald Tusk’s Civic Platform (PO) has decided to take on the Polish equivalent of the Augean stables, the Constitutional Tribunal (CT). Adam Bodnar, the Minister of Justice, took on the Herculean task. Like the mythological hero, though, he has mighty odds against him: constitutional constraints and political opposition. Changing the Constitution requires a parliamentary majority that the new coalition does not enjoy. Whereas changing statutory laws requires the approval of Polish President Andrzej Duda, a politician coming from the PiS party. It seems that Minister Bodnar might be facing a Sisyphean task instead of a Herculean one, after all.

Our blog post reviews changes proposed by the Minister of Justice. In particular, we examine proposals to reset (‘zeroing out’) the CT and introduce new rules for the election of judges. We also reflect on why the proposals for change have been put forward so late and who benefits from the CT’s current situation. Overall, we conclude that the political reality in Poland will impede the effective implementation of the proposed package. However, it does not mean the drafters should be considered politically naïve. The introduction of the package serves its own political purpose. It demonstrates the coalition government’s good intentions and highlights that the present CT is not legitimate. This gives the coalition government the freedom to disregard the CT and ignore its actions.

What is wrong with the Constitutional Tribunal?

The breakdown of the CT is one of the hallmarks of the Polish rule of law crisis. During the PiS government rule, the CT – from an institution upholding the Polish Constitution and the rule of law – has become a puppet institution dependent on the ruling party politicians and actively involved in political disputes. In its infamous rulings, the CT undermined the very fundamentals of the European Convention on Human Rights (e.g. K 6/21; K 7/21) and Poland’s membership in the European Union (e.g. K 3/21, K 8/21). Academics describe the institution as the fallen and degenerated body that used to be the Polish CT. Irregularities in its functioning were identified by the ECtHR, and the European Commission decided to refer Poland to the CJEU for violations of EU law by the CT.

The CT, which is composed of 15 judges, who all have been appointed by PiS, faces two major internal issues. First, three judges who were appointed in violation of the Constitution remain in the CT, the so-called double judges. Second, there are legal doubts about the legality of the election and the prolongation of the term of the CT’s President, Julia Przyłębska, who is a friend of the PiS Party’s leader – Jarosław Kaczyński.

Bodnar’s restoration package

On 4th March 2024, Justice Minister Adam Bodnar, together with representatives of coalition parties and a panel of legal experts, presented the package aimed at restoring the CT. The package consists of four elements:

• the draft resolution of the Sejm (lower chamber of Parliament) on remedying consequences of the constitutional crisis of 2015 – 2023 in the context of the CT’s activity;
• the draft of the law on the CT (internal restructuring of the institution to rebuild the system of constitutional review);
• the draft of the law introducing the law on the CT (transitional provisions);
• and the draft amendments to the Constitution (foreseeing a constitutional reset and the establishment of a new CT).

A. The Sejm’s resolution

The resolution of the Sejm was already adopted by the votes of the ruling coalition (simple majority requirement) on 6^th March 2024. Resolutions of the Sejm do not have a binding force: their role is to call on state institutions to take a specific one-off action as indicated in the resolution (art. 69 of the Sejm Regulations). Similarly to Sejm’s “Resolution calling for the restoration of public media impartiality” from 19th December 2023, the coalition government seeks to use the resolution as a legal justification for further action. In essence, the resolution is a political declaration of the ruling coalition.

The Sejm makes three main statements in the resolution.

First, the appointment of the three double judges was made in flagrant violation of the Constitution. There are individuals appointed to judicial posts already occupied and regarding whom the ECtHR has ruled that their presence in the CT violates the right to a fair trial. Therefore, the Sejm considers that Mariusz Muszyński, Justyn Piskorski, and Jarosław Wyrembak are not judges of the CT and that numerous decisions of the CT issued with their participation are legally defective.

Second, the resolution declares that the CT President’s office is held by an unauthorised person, as Julia Przyłębska was elected without the legally required resolution of the General Assembly of Judges.

Third, the Sejm concludes that there have been significant violations of both the Constitution and ordinary laws by the CT. These violations have become so widespread that the CT can no longer perform its constitutional duties of reviewing the constitutionality of laws and protecting human and civil rights. Therefore, the Sejm believes that CT should be re-established following constitutional principles. The resolution urges the judges of the CT to voluntarily step down and participate in the democratic transition process. Thus, the current judges would allow the establishment of a new CT which would enjoy public confidence and be a true guardian of the Constitution.

B. Law on the CT and law introducing the law on the CT

The draft of the law on the CT and the draft of the law introducing the law on the CT, which are complementary and inextricably intertwined, were primarily based on a project prepared by civil society. Members of the Stefan Batory Foundation’s Team of Legal Experts and 17 prominent scholars worked on the drafts. Additionally, the project received support from 48 NGOs, including the Polish Judges Association “Iustitia” and the Association of Prosecutors “Lex super omnia”.

The drafts stipulate the annulment of rulings made with double judges. These judgments shall have no legal effect, and the project introduces an obligation to repeat all procedural actions in which unauthorised adjudicators took part. However, the project foresees the protection of the legal effects of judgments rendered in individual cases as a result of a constitutional complaint or legal questions. The invalidity of a CT judgment does not entail consequences for the validity of judgements and administrative decisions issued in individual cases.

The draft law on the CT proposed by civil society introduces several new solutions regarding the selection of CT judges and its functioning. CT judges will be elected by the Sejm with a qualified majority of three-fifths of the vote. The circle of entities that can nominate a candidate was extended to include, among others, other apex courts in Poland and professional legal associations.

The draft law states that a judge of the Court shall remain in office upon the expiry of their term until a successor is elected. A person between 40 and 70 who has outstanding legal knowledge and possesses the qualifications required to be a judge of the Supreme Court or the Supreme Administrative Court may be elected as a judge. Current and former (with a 4-year gap required) MPs, senators, MEPs, and members of the Council of Ministers cannot be candidates.

Finally, the project foresees a change from the principle of one-person leadership of the CT to the principle of collegiality. Therefore, many competencies of the CT president will be transferred to the General Assembly of Judges.

C. Constitutional amendment

The proposed draft of constitutional amendments seeks to establish a new CT. This would involve a constitutional reset, meaning that the current members of the existing constitutional court would be removed. On the date the amendments come into effect, the incumbent CT judges’ term of office would expire, but they would remain in office until their successors are elected.

Within two weeks of the amendments taking effect, the Sejm will elect new judges by a three-fifths majority. However, if the election cannot be concluded within two months, then the Sejm will elect 15 members of the CT by an absolute majority. If the new judges are elected, the current members of the CT will be able to benefit from the right to retire. They will be eligible to use the title of a ‘retired judge of the CT’. This privilege does not apply to double judges as they have never been properly appointed to judicial positions.

The draft introduces a staggered election: five judges will be elected for a term of 3 years, five for a term of 6 years, and five for a term of 9 years. In short, this idea is intended to prevent the Sejm of one term (4 years in office) from electing the majority of the CT judges. Additionally, the proposed amendments aim to introduce mechanisms to strengthen the independence and impartiality of the CT. Similarly to the draft law on the CT, the proposed change to the Constitution also introduces the requirement that candidates for the judges of the CT should not have been MPs, senators, MEPs, or members of the Council of Ministers for at least four years. Moreover, the draft strengthens the decentralised constitutional review by incorporating expressis verbis the competence of national courts to apply the Constitution directly.

To leave the politics out

The guiding principle of the package is to depoliticise the institution compromised by internal and external politicking. This is evident through the changes to the procedure of electing the judges, the ban on candidates with recent political activity, and the decentralisation of the CT’s internal management. However, we remain sceptical that the package goes far enough to fulfil the goal while not giving way to new potential dangers.

The longstanding peculiarity of the Polish constitutional system is the Sejm’s monopoly on electing all the judges of the CT by the absolute majority. In effect, a parliamentary majority may choose their candidates without referring to the preferences of other state institutions or political actors. The deficiencies of this method have been known before and have only been accentuated with the beginning of the Polish constitutional crisis. The proposal to introduce the 3/5 threshold, both in the law on the CT and in the proposed amendment to the Constitution, may appear as a way to force political parties to find agreeable candidates. At the same time, it underappreciates the threat of blockages of judicial appointments. Although the draft law provides for the incumbent judges to stay up until their replacement is elected, the political actors may still be incentivised to block an appointment. Other European jurisdictions experienced such tribulations, such as Hungary before the 2011 Constitution and Spain. Even in Poland, the public witnessed a similar deadlock when electing a new Ombudsman (in that case, the Sejm’s candidate required consent from the upper chamber of the Parliament). The drafters also cannot expect judges to remain in their post in perpetuity.

If the drafters wish to guarantee the plurality of voices within the CT fully, they may instead consider implementing a mixed selection of constitutional judges. This method involves two or more political actors/branches in appointing or nominating candidates for judges. For instance, the Lithuanian Constitution stipulates that the Seimas (Parliament) shall appoint judges from the candidates submitted by the President of the Republic, the Speaker of the Seimas, and the President of the Supreme Court. In Bulgaria, judges are appointed in equal parts by the National Assembly (Parliament), the President and jointly by the Supreme Court of Cassation and the Supreme Administrative Court.

This method also works better with another idea introduced by the drafters, that of the staggered elections. If the Sejm’s monopoly is kept, the chance that the Sejm will elect the majority of judges during a single term is relatively high. In fact, should the constitutional amendment be introduced this year, the Sejm may even elect the majority of judges during the term 2027-2031 (one group in 2027, one group in 2030). Distributing the competence to elect judges to various institutions could decrease the probability that all judges will be introduced by one political camp. The other benefit is that the 3/5 threshold becomes redundant, and with it, the threat of electoral deadlock.

CT judges’ terms of office in relation to the Sejm’s terms if the constitutional amendment is approved this year

But the politics stay anyway

The political reality makes the package’s possible implementation doubtful at present. It seems that from the onset, the package was devised as a form of a two-pronged attack: the changes in statutory law were the plan minimum, and the constitutional changes the plan maximum. Despite these efforts, the package will most certainly be blocked.

The simple parliamentary arithmetic precludes any attempt at changing the Constitution without cooperation with the PiS Party: the constitutional threshold is high and requires a 2/3 majority. Such cooperation has already been refuted by PiS leader Jarosław Kaczyński.

Although the ruling coalition could successfully put the statutory changes through the Parliament, it must face the President next. Currently, the ruling coalition does not have a 3/5 majority to override a potential President’s veto. Moreover, the changes may be challenged by the CT itself, which is dominated by the judges elected by PiS.

Why the hassle, then?

Finally, considering that civil society prepared much of the package beforehand and the chances of its implementation are low, it all begs the question – why now?

The coalition government led by Donald Tusk is facing a legal conundrum. On the one hand, it promised the voters to restore the rule of law damaged during the PiS Party’s years in power. On the other hand, any legal changes can be blocked by the CT by President Duda. While the coalition government can wait until President Duda’s term ends in 2025, it cannot afford to do the same with the CT. In this situation of ‘legal impossibilism’ (ironically, the term was coined by Kaczyński himself), the coalition government sees no other option but to delegitimise the CT. A delegitimised CT is an institution that can and should be disregarded.

In the last three months, we have observed this struggle when the coalition government attempted to take over the public media and the National Public Prosecutor’s Office. Since the normal legislative pathway is politically implausible, the course of action chosen by the coalition government trod on the edge of legality. This left many – even voices usually sympathetic to the ruling coalition, such as the Helsinki Foundation for Human Rights – concerned. However, more importantly, the CT announced multiple interim measures to halt the takeovers; they were all ignored by the coalition government.

The effectiveness of the coalition government’s strategy is dependent on delegitimising the CT. The package is paradoxically the tool to accomplish that goal. First, through the Sejm’s resolution, it declares the CT to be a defective institution and calls public institutions to treat it as such. Second, the coalition government proposes a plan for its restoration that would involve all the political parties (hence, the principle of a 3/5 majority for choosing judges) and, by doing so, shows good faith. If the constitutional reset fails, it is the PiS Party’s and President Duda’s fault. The blockage of the reform may serve as yet another proof that the current CT lacks legitimacy and that the coalition government is right to ignore its decisions.

No justice for the people 

With the continued fight over the CT, the Polish constitutional system appears to be in danger of splitting in two. Depending on which political force controls what institution, state bodies now declare each other not legitimate and cease to respect each other’s legal acts. The potential ramifications of such are easy to predict: legal chaos that will affect every sphere of life. While Adam Bodnar’s proposals for a constitutional reset are not ideal, we desperately need a new constitutional opening that would lead to a new set of principles agreeable to all sides of the political spectrum. Sadly, in the meantime, the true victims will be the citizens, who now lack recourse to constitutional justice.

For almost a decade now, the European Union (EU) has been struggling with the erosion of the rule of law in some of its Member States. To explain these multifarious distortions in the EU, the IEP explored the various pillars of the rule of law resilience, culminating in the recent RESILIO report. Based on data from 27 Member States, unsurprisingly, the independent judiciary and effective public administration prove to be key for the functioning of the rule of law. To remain resilient, the rule of law needs a solid democratic political culture anchored in a robust civil society, independent media, and a sound public debate. Henceforth, a long-term investment in democracy is the best way to strengthen the resilience of the rule of law.

Problems with the rule of law resulted from the dismantling of democratic foundations

The rule of law has become a buzzword in recent years due to the conflict between the European Union and its Member States Poland and Hungary. This led European institutions to introduce the conditionality mechanism and eventually freeze EU funds. Nonetheless, time will tell how effective these new defence mechanisms are.

The governments of both countries, led by Viktor Orbán and Beata Szydło and later Mateusz Morawiecki, respectively, were defending their reforms in the name of national sovereignty. The capture of the public national media by individuals or institutions close to the ruling parties, the flow of public funds to the so-called GONGOs (government-organised non-governmental organisations), nepotism in state-owned companies and interference in the EU’s single market rules, or even intrusion in university curricula and the independence of science was met with criticism home and abroad. However, it was the assault on the systemic foundations of the state − the separation of powers and the independence of the courts − that brought the Hungarian and Polish governments on a collision course with EU institutions and made the rule of law a mainstream topic.

In a nutshell, the dispute over the rule of law began in earnest when the United Right government in Poland followed the footsteps of Fidesz in dismantling the democratic foundations of the state. Accordingly, the rule of law crisis became a systemic problem for the EU. Article 7 of the Treaty on European Union (TEU), which allows for suspending voting rights in the Council of the European Union, was first triggered against Poland by the European Commission in December 2017. Paradoxically, the same procedure against Hungary was followed at the request of the European Parliament only in September 2018. Arguably, the past membership in the largest group in the European Parliament − the European People’s Party − extended the safety umbrella over Orbán.

Defending the rule of law from the EU level: preventive and corrective measures

For almost a decade, the European Commission, the European Parliament, and the Council of the European Union have tried to influence both governments and set an example for potential copycats. In the meantime, the EU’s rule of law toolbox has grown considerably. The European Union is not only an economic project but also a union of values. As the guardian of the Treaties, the European Commission should act whenever EU law is broken, including the values and principles enshrined in Article 2 TEU. The initial reluctance to resort to hard measures and the scarcity of specific tools dedicated to rule of law problems suggest it never crossed the minds of the founding fathers and mothers of the EU that, having gone through the arduous accession procedure, and in view of the many benefits of EU membership, any Member State could ever go backwards in its democratic standards.

The instruments to uphold the rule of law include preventive measures (which aim to identify risks in order to prevent actual breaches of EU law) and corrective measures (which aim to prevent further breaches of the rule of law in a Member State). Preventive measures include reporting (the EU Justice Scoreboard or annual Rule of Law Reports) and formal channels of political dialogue. Corrective measures are legal tools (infringement procedures before the European Court of Justice) and financial tools (penalties and the recently introduced conditionality mechanism). Article 7 falls in between, containing both a deterring element (initiating a procedure and calling for a corrective action) and a sanctioning element (which can end up in suspension of a member state’s voting rights).

None of the above instruments is a silver bullet for intentional rule of law breaches, as the applied measures follow the principle of proportionality depending on the scale of identified problems. Their goal is also primarily to act as deterrents when the severity of the consequences outweighs ad hoc political gains of possible rule of law violations. The effectiveness of the conditionality mechanism is yet to be tested. However, it seems that direct attacks on the rule of law are only a symptom and not the cause of the problem, which is the autocratisation and erosion of democracy.

The rule of law resilience through democracy

A broader definition of the rule of law, also adopted by the European Union, requires “all public authorities to act within the limits set by the law, in accordance with the values of democracy and respect for fundamental rights (…) and under the control of independent and impartial courts”. It also means legal certainty, prohibition of arbitrariness of power, transparency, and pluralism in law-making. However, when the rule of law is violated, how can one protect it?

While the rule of law is the backbone of any democratic system, the erosion of democracy makes it vulnerable to attacks. Wannabe autocrats often invoke democratic justifications to legitimise attacks on the rule of law that constraints their claim to express “the will of the people”. If democratic erosion can lead to attacks on the rule of law, then – vice versa – its resilience depends on many factors that contribute to a functioning democracy. Systemic foundations, social phenomena, and contextual circumstances can strengthen or weaken the resilience of the rule of law. According to the recently published report “What makes the rule of law resilient? Evidence from EU27”, summarising the 2-year-long research project “RESILIO” carried out by the Institut für Europäische Politik in Berlin and funded by Stiftung Mercator and the Citizens, Equality, Rights and Values Programme of the European Commission, the rule of law resilience is grounded both in sound legal and institutional foundations of the state and the condition of democracy. The study did not focus on the functioning of the rule of law but on its resilience from the perspective of a wider democratic system. It aimed to identify factors supporting the resilience of the rule of law in EU member states. The conceptual model, which builds on three resilience dimensions (the systemic, the subsidiary, and the contextual one) and comprises nine empirically measurable resilience factors, was filled with data for EU27 obtained through desk research: existing databases and indicators. A standardised ordinary scale was developed to measure the rule of law resilience on a spectrum from zero to ten, when 0 meant no resilience at all and 10 stood for perfect resilience. The analysis not only ranked EU Member States according to the rule of law resilience, but also gave an overview of the strength of different resilience factors across the EU.

Unsurprisingly, the most important resilience factors turned out to be institutions: public administration and the judiciary that adhere to the principles of independence from political pressure, good governance, transparency of appointments, and absence of corruption. However, the resilience of the rule of law also requires something more. The agency proactively addresses violations. The responsiveness to react immediately. And bouncing back to defend and rebuild the weakened rule of law. Civic space – understood as informed, active citizens and freedom of association and assembly – is an essential foundation for protecting the rule of law, as the Polish experience has shown.

Other key resilience factors are independent and pluralistic media and a sound public discourse. The media not only protect the quality of public debate but can also perform a monitoring function as watchdogs, ensuring access to information and accountability of the authorities. These factors were crucial in Poland after 2015 when the rule of law made its way into the public debate and mobilised opposition voters. Political pluralism and a functioning electoral system that enabled the change of power also played an important role. In contrast, the growing concentration of media markets in the EU and specifically in Hungary threatens the space for public deliberation and accountability. Henceforth, to protect the rule of law, one must safeguard access to information, raise the rule of law awareness, exercise political pressure from the bottom up on decision-makers, and mobilise the voters to enable democratic rotation and transition of power. Finally, the most crucial factor in defending the rule of law turns out to be the attitudes and reactions of people: citizens, judges, journalists, and politicians.

The RESILIO report provides food for thought not only at the national level but also at the European level. The defence of the rule of law has so far responded to specific attacks on independent courts, the division of power, and legal certainty. However, one should not forget long-term efforts to strengthen its democratic bedding: civic education, creating space for independent civic initiatives, supporting the independent media, and countering disinformation in the public debate.

Today, problems with the rule of law are emerging in other EU Member States, not only in Hungary, where the consequences of democratic backsliding for the rule of law are painfully vivid. Slovakia, Italy, and Greece reveal some worrying trends and the rule of law issues appear in France and Spain, too. The recovery from the rule of law crisis in Poland will be slow for legal reasons and due to political obstacles. In view of the enlargement plans, according to which the EU would prospectively grow to more than 30 Member States in the near future, these issues should be addressed as soon as possible. The defence and strengthening of the rule of law in EU Member States should be the priority for the new European Commission after the 2024 EP elections, especially in view of the growing popularity of populists with autocratic inclinations in many European countries.

Es gibt verschiedene Metaphern, mit denen man den polnischen Staat beschreiben kann, wie ihn die Partei „Recht und Gerechtigkeit“ (PiS) nach ihrer Regierungszeit in den Jahren 2015 bis 2023 hinterlassen hat. Eine davon ist „vermintes Gelände“. Andere Umschreibungen schließen die Begriffe „Falle“ oder „Hinterhalt“ ein. Das beliebteste Wort im Polnischen ist das Adjektiv zabetonowany, das mit „verhärtet“ übersetzt werden kann, „zementiert“ ist wohl treffender. Alle diese Begriffe beschreiben die Situation in Polen, in welcher der Machtwechsel nicht ein normaler Übergang von einer Regierung zur anderen ist. Vielmehr findet er in einer Situation statt, in der sich das ancien régime tief im Staatswesen verankert hat, und zwar durch einfach-gesetzliche Maßnahmen und Vorkehrungen. Diese sind jedoch ihrerseits nicht ohne weiteres durch einfache Gesetze der aktuellen gewählten Regierung lösbar oder umkehrbar.

Die Aufgaben, vor denen die neue Regierung unter Donald Tusk steht, erinnern wiederum an bekannte Figuren der griechischen Mythologie. Etwa Herkules, der seine fünfte Arbeit verrichtet: die Säuberung des Augiasstalls. Eine eher pessimistische Anleihe wäre Sisyphos. Welche Metapher man auch favorisiert, es ist ein harter Job für den unermüdlichen Justizminister Adam Bodnar.

Drei Arten von Fallen

Der polnische Machtwechsel unterscheidet sich von einem normalen Machtwechsel nach regulären Wahlen. Es handelt sich nicht um einen Fall von „Übergangskonstitutionalismus“ wie bei postkommunistischen und anderen postautoritären Regimewechseln. Letzteres ist es nicht, denn die Herausforderung besteht nicht darin, ein neues System zu „erfinden“, dass das schlechte, alte Regime ersetzt. Es handelt sich aber auch nicht um eine reguläre Machtübergabe, weil das Erbe aus der autoritären Zeit im polnischen Recht tief „verankert“ ist. Dieses einfach-gesetzliche Erbe hindert die neue Regierung an wirksamen Reformen innerhalb des bestehenden verfassungsrechtlichen Rahmens.

Die „Verankerungen“ wurden durch einfaches Recht vorgenommen. Im Unterschied zur ungarischen Fidesz unter Orban verfügte die PiS nicht über die Mehrheiten, derer es zur Änderung der Verfassung bedurft hätte. Da der PiS-nahe Präsident Andrzej Duda, dessen zweite und letzte Amtszeit in der zweiten Jahreshälfte 2025 endet, über ein Vetorecht gegen Gesetze verfügt, haben diese gesetzlichen Verankerungen de facto verfassungsähnliche Wirkung. Ein Veto des Präsidenten kann durch eine Mehrheit überstimmt werden, über die die demokratische Koalition derzeit jedoch nicht verfügt. Darüber hinaus können der Präsident und die PiS-Parlamentarier den „Verfassungsgerichtshof“ anrufen (aus Gründen, die weiter unten erläutert werden, sind die Anführungszeichen hier mit Bedacht gesetzt). Der Verfassungsgerichtshof ist ausschließlich mit PiS-Kandidaten besetzt und kann jedes einfache Gesetz für ungültig erklären, das der PiS-Minderheit im Parlament nicht zusagt.

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Am Lehrstuhl von Prof. Dr. Jochen von Bernstorff, LL.M. (Universität Tübingen) ist ab sofort die Stelle eines wissenschaftlichen Mitarbeiters (M/W/D) zur Leitung des Projekts „Refugee Law Clinic – Human Rights Law in Practice“ zu besetzen. Der Umfang der Stelle beträgt 50 %; ab dem 01.07.2024 ist für bereits promovierte Bewerber auch 100 % möglich. Zu den Aufgaben zählt die fachliche und organisatorische Betreuung des Ausbildungsprogramms. Gelegenheit zu Promotion oder Habilitation wird gegeben.

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Die von der alten Regierung gelegten „Landminen“ oder „Fallen“ sind vielfältig und infizieren (um die Metapher zu ändern) fast jeden wichtigen Aspekt der Regierungsführung in Polen. Der Einfachheit halber bilde ich drei Fallgruppen, wobei ich jedoch darauf hinweisen möchte, dass die Taxonomie bei weitem nicht umfassend ist und die Zuordnung zu einer der Fallgruppen willkürlich: Jede kann gleichzeitig als „institutionell“, „personell“ oder „verfahrenstechnisch“ dargestellt werden. Aber eine solche Einordnung verdeutlicht das Bild. Um Platz zu sparen, werde ich für jede Kategorie nur ein repräsentatives Beispiel anführen:

1. Institutionelle Fallen. Das zentrale Gremium des polnischen Justizsystems, der Nationale Justizrat (polnische Abkürzung: KRS), der für alle Entscheidungen über Ernennungen, Beförderungen, Degradierungen und Entlassungen von Richtern entscheidet, wurde 2017 umstrukturiert, um der PiS-Mehrheit die alleinige Kontrolle über 23 der 25 Mitglieder des Rates zu sichern. Mit einer gesetzlich garantierten Amtszeit bis 2026 kann der KRS (oder, wie seine Kritiker ihn nennen, der Neo-KRS) die von der PiS initiierte Aushöhlung der richterlichen Unabhängigkeit aufrechterhalten, indem er sich allen Versuchen widersetzt, Nominierungen und Ernennungen für PiS-Loyalisten im Justizwesen rückgängig zu machen.
2. Verfahrensrechtliche Fallen. Der zweitwichtigste Beamte im System der Strafverfolgung in Polen (der erste ist der Generalstaatsanwalt, der von Amts wegen der Justizminister ist) ist der Nationale Staatsanwalt (Prokurator Krajowy). Nach einem von der PiS verabschiedeten Gesetz aus dem Jahr 2016 wird der Nationale Staatsanwalt vom Premierminister auf Vorschlag des Justizministers und unter Berücksichtigung der nicht bindenden Stellungnahme des Präsidenten ernannt. Präsident Duda nimmt jedoch für sich in Anspruch, dass die Berücksichtigung seiner Stellungnahme eine Voraussetzung für eine gültige Ernennung sei. Gleichzeitig enthält er sich jeglicher Stellungnahmen.
3. Personelle Fallen. Die Besetzung der obersten Gerichte, vor allem des Verfassungsgerichts und des Obersten Gerichtshofs (und in geringerem Maße des Nationalen Verwaltungsgerichts), ist das deutlichste Beispiel für diese Art von Fallstricken. Da die Ernennung von Richtern bekanntermaßen schwer zu widerrufen ist (wie es im Normalfall auch sein sollte), wurden diese Obergerichte mit PiS-Loyalisten „zementiert“. Sie stellen nun 100 Prozent der Mitglieder des Verfassungsgerichts und etwas mehr als 50 Prozent des Obersten Gerichtshofs.

Zur Erinnerung: Dies sind nur einzelne repräsentative Beispiele für juristische überall tief vergrabene Landminen. In ihrer Gesamtheit machen sie die Position der neuen Regierung besonders unhaltbar. Die Einhaltung der von der alten Regierung erlassenen Gesetze, mit denen diese Vorkehrungen getroffen wurden, würde jeden nennenswerten Schritt nach vorn praktisch unmöglich machen. Würden sie ignoriert, müsste sich die Regierung den Vorwurf gefallen lassen, dass sie dieselben Verstöße gegen die Rechtsstaatlichkeit begeht, die die derzeit regierenden Politiker ihren Vorgängern in den Jahren 2015 bis 2023 vorgeworfen haben. Kann man denn das System der Rechtsstaatlichkeit wiederherstellen, wenn man genau die Rechtsstaatlichkeit verletzt, zu der man sich bekennt?

Radbruchs Vermächtnis

1946 veröffentlichte der große deutsche Rechtsgelehrte Gustav Radbruch einen Artikel über die Kluft zwischen gesetzlichem Unrecht und übergesetzlichem Recht, der für das post-autoritäre Denken über die Rechtsstaatlichkeit gleichsam kanonisch wurde. Ich bin weit davon entfernt, die „gesetzliche Rechtlosigkeit“ des Dritten Reiches mit der des PiS-Regimes zu vergleichen. Aber, toutes proportions gardées, der Gedanke, dass ein Gesetz nicht das letzte Wort darüber sein darf, welches Recht legitim ist und als gültig angesehen werden sollte, ist allgegenwärtig und begegnet uns in jedem Kontext, in dem die Machthaber formaljuristische Mittel in willkürlicher, unkontrollierter und repressiver Weise einsetzen.

„Der Positivismus“, so Radbruch, „mit seinem Grundsatz ‚Gesetz ist Gesetz‘, hat die deutsche Rechtswissenschaft faktisch wehrlos gemacht gegen willkürliche und kriminelle Gesetze“. Es ist diese Art von Positivismus die dieser Tage in Polen vorgebracht wird, um der Regierung einen Verstoß gegen die Rechtsstaatlichkeit vorzuwerfen. Wenn man aber Rechtsstaatlichkeit als die Herrschaft des „übergesetzlichen Rechts“ begreift, wie Radbruch klugerweise forderte, dann wird der Inhalt der zu befolgenden Regeln durch die polnische Verfassung und das europäische Recht bestimmt und nicht durch jene Gesetze, die gerade mit dem Ziel erlassen wurden, die demokratischen Nachfolger der Autoritären zu entmündigen. Die polnische Verfassung enthält genügend Mittel, um diese juristischen Fallen zu beseitigen: Artikel 8 sieht den Vorrang und die unmittelbare Wirkung der Verfassung vor. Dieser Gedanke spiegelt sich ganz allgemein im Titel eines Artikels zweier polnischer Rechtswissenschaftler der jüngeren Generation, Maciej Bernatt und Michał Ziółkowski, wider: Statutory anti-constitutionalism, also „gesetzmäßige Verfassungsfeindlichkeit“. Gesetze können ein Instrument für verfassungsfeindliche Änderungen sein, wenn der wichtigste institutionelle Wächter ausgeschaltet ist.

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Die Fachhochschule für Verwaltung und Dienstleistung in Schleswig-Holstein (FHVD) sucht zum nächstmöglichen Zeitpunkt für den Fachbereich Allgemeine Verwaltung eine/n Hochschullehrer/-in (m/w/d) für Öffentliches Recht, insbesondere Ordnungsrecht Wertigkeit bis BesGr. A 15 SHBesG / EG 15 TVöD-VKA, in Teil- oder Vollzeit, (Lehrverpflichtung Vollzeit: 18 LVS / Woche)

Auf Ihre Bewerbung freuen wir uns bis zum 17 April 2024.

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Das bringt uns zum Problem des Verfassungsgerichtshofes, der Mutter aller juristischen Landminen in Polen: Mit der vollständigen Kolonisierung des Gerichts durch die PiS gibt es keinen unparteiischen institutionellen Schiedsrichter in einem System, das ursprünglich mit einem Kelsen‘schen Verfassungsgericht im Zentrum konzipiert wurde. Ich habe seit langem– auch auf diesem Blog – argumentiert, dass die polnischen Entscheidungsträger in den sauren Apfel beißen und den Gerichtshof in seiner jetzigen Form abschaffen sollten, da er jeden Anschein von Legitimität verloren hat. Ich werde meine Argumente hier nicht wiederholen – und auch nicht auf die Gegenargumente meiner Kritiker eingehen, die ich respektiere, mit denen ich aber offensichtlich nicht übereinstimme.

Was ich jedoch betonen möchte, ist, dass die Regierung und die Mehrheit der Legislative ohne eine solche Abschaffung (oder zumindest ohne die Schaffung eines strengen cordon sanitaireum den Gerichtshof und die grundsätzliche Nichtbefolgung seiner Urteile) immer wieder in die zahlreichen Fallen, Hinterhalte und Minen tappen werden, die ihre Vorgänger absichtlich gelegt haben.

Das Rechtsstaatlichkeits-Dilemma

„Das rechtsstaatliche System befolgen und dabei gegen Rechtsnormen verstoßen“ ist eine Maxime, die unheilvoll klingt. „Die Verfassung zu befolgen und dabei einzelne gesetzliche Bestimmungen zu verletzen“ ist ein annehmbarerer Vorschlag, vor allem, wenn wir die EU-Verträge und die Europäische Menschenrechtskonvention in die Verfassung mit einbeziehen, wie wir es tun sollten. Die Geltung einer Verfassung ohne Verfassungsgericht ist kein Widerspruch. Sie zieht lediglich eine notwendige Konsequenz aus der faktischen Nichtexistenz eines Verfassungsgerichts und überträgt die verfassungsrechtliche Verantwortung auf den Gesetzgeber, die gewählte Regierung und die ordentlichen Gerichte.

Wie John Morijn kürzlich auf diesem Blog einräumte „ist die traurige Realität, dass die Verankerung [in Polen] stattgefundenhat und oft nicht einfach über Nacht rückgängig gemacht werden kann, außer durch drakonische Maßnahmen, die selbst (…) in starker Spannung zu der Rechtsstaatlichkeit stehen, die es zu retten gilt.“

Das ist in der Tat traurig und ärgerlich. Aber im Widerspruch zur Rechtsstaatlichkeit? Ein Staat wie Polen nach dem 15. Oktober 2023 kann sich nicht den Luxus leisten, das System der Demokratie und der Rechtsstaatlichkeit wiederherzustellen und dabei getreu den Buchstaben der von den Autokraten erlassenen Gesetze zu folgen. Vielmehr könnte etwas wie Andras Sajós „streitbare Rechtsstaatlichkeit“ vonnöten sein. Die größte Herausforderung für die demokratischen Reformer wird es sein, dafür zu sorgen, dass diese sich nicht selbst perpetuiert. Aber das ist nicht das Problem, mit dem die polnischen Demokraten im Moment konfrontiert sind; jedenfalls noch nicht.

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Die Woche auf dem Verfassungsblog

Am 28. März 2024 erließ der IGH seine dritte vorläufige Maßnahme in der Rechtssache Südafrika vs. Israel. Der Gerichtshof wies Israel an, die Bereitstellung humanitärer Hilfe im gesamten Gazastreifen zu gewährleisten. TAL MIMRAN untersucht die vorläufigen Maßnahmen unter verfahrensrechtlichen Gesichtspunkten und geht der Frage nach, ob das Recht auf Anhörung während des Verfahrens ausreichend gewährleistet wurde. Er kommt zu dem Schluss, dass der IGH seine Entscheidung auf internationale Berichte stützte, die keiner der Parteien zur Verfügung gestellt wurden, bekannt waren oder berücksichtigt wurden.

Ein festgenommener Ex-Vizepräsident, ein zerrüttetes diplomatisches Verhältnis und ein Kontinent in Aufruhr: Die Erstürmung der mexikanischen Botschaft in der ecuadorianischen Hauptstadt Quito hat nicht nur für politische Spannungen gesorgt, sondern wird auch den Internationalen Gerichtshof beschäftigen. MANUEL BRUNNER und ERICK GUAPIZACA erläutern die völkerrechtlichen Hintergründe.

In Bosnien und Herzegowina schlägt der Hohe Repräsentant Christian Schmidt erneut zu. Im März 2024 nutzte er wieder seine “Bonner Befugnisse” im Rahmen des Friedensabkommens von Dayton und erzwang eine längst überfällige Reform in Bezug auf Transparenz und Entpolitisierung des Wahlprozesses. MAJA SAHADŽIĆ erklärt den komplexen Kontext hinter diesem Schritt und zeigt, wie diese wünschenswerte politische Reform, die den politischen Stillstand in dem multiethnischen Land überwindet, gleichzeitig weitere politische Spaltungen schafft.

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Die Fachhochschule für Verwaltung und Dienstleistung in Schleswig-Holstein (FHVD) sucht zum nächstmöglichen Zeitpunkt für den Fachbereich Allgemeine Verwaltung eine/n Hochschullehrer/-in (m/w/d) für Öffentliches Recht, insbesondere Kommunalrecht Wertigkeit bis BesGr. A 15 SHBesG / EG 15 TVöD-VKA, in Teil- oder Vollzeit, (Lehrverpflichtung Vollzeit: 18 LVS / Woche)

Auf Ihre Bewerbung freuen wir uns bis zum 17 April 2024.

Weitere Informationen entnehmen Sie bitte unserer Homepage unter www.azv-sh.de.

Die Stellenausschreibungen finden Sie hier: Ausbildungszentrum für Verwaltung AZV (azv-sh.de)

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Diese Woche hatten wir auch einige Digitalthemen. Es ging los mit FRANZISKA KATHARINA MAURITZ, die der Frage nachging, welche Regeln jetzt nun eigentlich genau bestimmen, was ‘illegal’ auf Social Media ist. Gar nicht so einfach im neu geschaffenen DSA-Regime, dessen Definition des Illegalen ist nämlich denkbar weit. Noch vollkommen unklare Normenkollisionen sind die Folge.

Es tut sich was, wenn sich die Granden der deutschen Staatsrechtslehre Brüsseler Digitalpolitik zuwenden. Vielleicht wird MARTIN NETTESHEIM’s Text mal als derjenige gelten, der motivierten unionalen Datenschützer:innen eine Grundsatzdebatte über Sinn, Form und Legitimation europäischer Integration einbrachte. Wie in anderen Rechts- und Politikbereichen (Stich- bzw. Reizwörter sind hier EZB, Kartellrecht, Klimaschutz) entwickelt sich nämlich die Digitalpolitik zunehmend zum Vehikel alle möglichen sozial- und wirtschaftspolitischen Ideen voranzutreiben.

Weiter ging es mit einem willkommenen Zuruf der Kartellrechtler DANIEL ZIMMER und JAN-FREDERIK GÖHSL. So viel und gerne das europäische öffentliche Recht momentan über den Digital Services Act redet, so schnell setzt die Kommission mit empfindlichsten Ermittlungen die im Digital Markets Act verfassten Wettbewerbsregeln ins Werk. Vielleicht ist das schärfste Schwert nicht die vermeintliche ‘Digitale Verfassung’ Europas, sondern der Griff in die Geldbörse der Digitalkonzerne?

Und auch die Diskussion um resilientere Verfassungsgerichte ist nicht zu Ende. RAVEN KIRCHNER lenkt den Blick auf einen bisher zu kurz gekommenen Aspekt: die Befolgung von Entscheidungen des Bundesverfassungsgerichts. Nicht nur der Blick ins Ausland zeigt, dass es an dieser Stelle zu Gefährdungen kommt. Der Autor legt dar, wie besser dafür gesorgt werden kann, dass die Entscheidungen des Bundesverfassungsgerichts durchgesetzt und befolgt werden.

Am Beispiel des Thüringer Verfassungsgerichtshofes diskutieren FABIAN WITTRECK und JULIANA TALG, wie Blockaden von Richter:innenwahlen gelöst werden können. Ihr Vorschlag hat den Vorteil, dass er allen drei Schmerzpunkten – Pluralismusschutz, Vermeidung von Blockaden und der demokratischen Legitimation – Rechnung trägt. Als letzten Ausweg bringen sie die Organleihe ins Spiel.

Die Diskussion zum Gewaltbegriff geht ebenfalls weiter: FLORIAN SLOGSNAT verteidigt die Zweite-Reihe-Rechtsprechung, nach der sich wegen Nötigung strafbar machen kann, wer Autos an der Weiterfahrt hindert. Er wendet sich damit gegen den letzte Woche auf dem Verfassungsblog erschienenen Beitrag von Siegmar Lengauer und setzt sich mit dessen Argumentation auseinander.

Gewerkschaften und Klimaaktivismus – geht das zusammen? Geht es nach einigen, so stellt der Streik des Bündnisses von ver.di und Fridays for Future einen verbotenen politischen Streik dar. Grund genug, sich noch einmal mit der Geschichte und Rechtfertigung des Verbots politischer Streiks zu beschäftigen. THERESA TSCHENKER berichtet über die Mär der Trennung von Tarifvertrag und Politik.

Umweltrechtlich ging es in Peru voran: Dort erkannte erstmals ein Gericht die Rechtssubjektivität eines Flusses an, dem Marañón. FRANCA EMILIA LORBER nimmt auseinander, was westliche Rechtssysteme von den Strategien der indigenen Kläger:innen der Kukama lernen können.

BERNHARD WEGENER bezieht anlässlich der Klimafälle vor dem Europäischen Gerichtshof für Menschenrechte klar Stellung gegen die „zuckersüße Illusion von Climate Justice“.

UMBERTO LATTANZI zeigt auf, dass der erste italienische Klimafall hinter den hohen sozialen Erwartungen zurückgeblieben ist. Er liefert eine Bewertung innerhalb der breiteren transnationalen Klima-Bewegung und zeigt die vorhandenen rechtlichen Grenzen auf.

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Verfassungsblog sucht eine kaufmännische Geschäftsführung

Für den organisatorischen Aufbau und die Weiterentwicklung vom Verfassungsblog möchten wir unsere Geschäftsführung zu einer Doppelspitze ausbauen. Maximilian Steinbeis wird künftig als politischer Geschäftsführer weiterhin die inhaltliche Verantwortung übernehmen. Für die neu zu schaffende Position der kaufmännischen Geschäftsführung suchen wir noch bis zum 17. April eine teamfähige, kreative, temperamentvolle und engagierte Person, die sich mit uns für Demokratie, Rechtsstaatlichkeit und Menschenrechte einsetzt und die Lust hat, unsere wachsende Organisation zu leiten und voranzubringen. 

Hier geht’s zur Stellenausschreibung.

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Und auch auf Seite der Symposien gibt es neues.

In einer spektakulären und weitreichenden Entscheidung hat der Europäische Gerichtshof für Menschenrechte zum ersten Mal entschieden, dass der Schutz vor dem Klimawandel ein Menschenrecht ist. Das Gericht gab der Klage des Vereins der Schweizer KlimaSeniorinnen statt, wies zugleich aber eine Klage portugiesischer Jugendlicher sowie eines Bürgermeisters einer französischen Gemeinde ab. Was in den Urteilen steht, was sie bedeuten und wie es nun mit dem Klimaschutz in Europa weitergeht, diskutieren wir in einem Blog-Symposium gemeinsam mit dem Sabin Center for Climate Change Law der Columbia University. Diese Woche ging es los mit Beiträgen von MAXIM BÖNNEMANN und MARIA ANTONIA TIGRE, SANDRA ARNTZ und JASPER KROMMENDIJK, CHRIS HILSON und ARMANDO ROCHA. Zahlreiche weitere Texte folgen ab dem Wochenende.

Nicht minder spannend geht es in unserem zweiten Blog-Symposium zu, das wir ebenfalls in dieser Woche gestartet haben. 10 Jahre BJP-Regierung unter Narendra Modi in Indien haben ihre Spuren hinterlassen – in der Gesellschaft, in den Institutionen und im Recht. Wie sich der indische Verfassungsstaat seit 2014 verändert hat, das lotet unser Symposium zu “Indian Constitutionalism in the Last Decade aus”. Los geht es mit Texten von ANMOL JAIN und TANJA HERKLOTZ, INDIRA JAISING, LOUISE TILLIN, MAANSI VERMA, FARRAH AHMED, ABHINAV SEKHRI und RATNA KAPUR.

Auch im Blog-Symposium über Parteiverbote in Deutschland und Europa gab es noch Debattenbeiträge. ANDREW O’DONOHUE und CEM TECIMER zeigen am Beispiel der türkischen AKP, warum Parteiverbotsverfahren nach hinten losgehen können. KATHARINA HÖLZEN und NINA ALIZADEH MARANDI rücken den ständigen Ruf nach einer starken Zivilgesellschaft ins Licht – und nehmen den Staat als Schützer und Förderer in die Pflicht. CENGIZ BARSKANMAZ argumentiert, dass die anhaltende Diskussion über das AfD-Verbot den Rassismus der sogenannten Mitte externalisiert.

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Das wär’s für diese Woche! Ihnen alles Gute,

Ihr

Verfassungsblog-Editorial-Team

There are various metaphors which can be used to describe the Polish state as it has emerged from Law and Justice party (PiS) rule 2015-2023. One is “minefield”. Another may refer to “traps” or “ambushes”. The most popular word, in Polish, is the adjective “zabetonowany” which translates as “concreted” but perhaps “cemented” or “hardened” sound better. They all are meant to capture the situation in Poland in which alternation of power is not a regular transition from one government to another. Rather, it occurs in a situation of deep entrenchment – largely by statutory means, but not open to easy statutory changes – of the remnants of the ancien régime.

In turn, the tasks that the new government, presided over by Donald Tusk faces, evoke familiar figures of Greek mythology.  A heroic-positive prefiguration of Hercules performing his fifth labor: cleaning up the Augean stables. A dispirited and pessimistic analogy would be to Sisyphus. Either way, it’s a hard job, so spare a thought for the indefatigable Minister of Justice, Adam Bodnar, and take your pick.

Three types of traps

The Polish transition is unlike any regular transfer of power within democratic rules of alternation after regular elections. It is not an instance of “transitional constitutionalism”, as in post-communist and other post-authoritarian regime changes. It is not the latter because the challenge is not to “invent” a new system replacing the bad old regime. But neither is it the former (regular transfer of power) because of the “minefield”, “traps” or – to put it more legally – various entrenchments of remnants of the authoritarian period: remnants which disable the new government from effective reforms within the existing constitutional framework.

Those entrenchments have been established by statutes – PiS had not enjoyed, in contrast to Orban’s Fidesz in Hungary, a supermajority which would allow it to change the text of the Constitution. But with PiS’s anointed President Andrzej Duda, in office until late 2025 (the end of his second term, with no right to seek reelection), having the power to veto statutes, those statutory “traps” are de facto entrenched with near-constitutional force. The Presidential vetoes of statutes are overridable by a supermajority which the democratic coalition currently does not have. In addition, the President and parliamentarians of PiS may use the “Constitutional Tribunal” (inverted comas deliberate, for reasons explained below) which, staffed entirely with PiS nominees, will invalidate any statute the PiS minority in Parliament does not like.

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Am Lehrstuhl von Prof. Dr. Jochen von Bernstorff, LL.M. (Universität Tübingen) ist ab sofort die Stelle eines wissenschaftlichen Mitarbeiters (M/W/D) zur Leitung des Projekts „Refugee Law Clinic – Human Rights Law in Practice“ zu besetzen. Der Umfang der Stelle beträgt 50 %; ab dem 01.07.2024 ist für bereits promovierte Bewerber auch 100 % möglich. Zu den Aufgaben zählt die fachliche und organisatorische Betreuung des Ausbildungsprogramms. Gelegenheit zu Promotion oder Habilitation wird gegeben.

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The “landmines” are multiple and basically infect (to change the metaphor) almost every important aspect of the governance of Poland. To simplify, I will divide them into three categories, though I should warn that the taxonomy is far from comprehensive, and characterization of any given “trap” as one or another category is arbitrary: each can be represented as, at the same time, “institutional”, “personnel” or “procedural”. But such a classification may clarify the picture. In order to save space, I will provide only one representative example for each category, but with the provison that they are a legion:

1. Institutional traps. The central body of the system of justice, the National Council of Judiciary (Polish acronym: KRS), crucial in all decisions concerning appointments, promotions, demotions and discharges of judges, was restructured in 2017 so as to guarantee the PiS majority exclusive control over 23 out of 25 members of the Council. With a term of office statutorily guaranteed until 2026, the KRS (or, as its critics call it, neo-KRS) can keep maintaining the PiS-established erosion of judicial independence by resisting any attempts to undo any nominations and appointments for PiS loyalists in the judiciary.
2. Procedural traps. The second-most important official in the public prosecution system (the first being the Prosecutor General, ex officio the Minister of Justice) is the National Prosecutor (Prokurator Krajowy). Under a PiS-enacted statute of 2016 the National Prosecutor is appointed by the Prime Minister on the recommendation of the Minister of Justice/Prosecutor General, and with consideration of the (non-binding) opinion of the President. However, President Duda maintains, consideration of his opinion is a prerequisite for a valid appointment, and abstains from issuing any opinion.
3. Personnel traps. Court-packing of the top courts, mainly in the Constitutional Tribunal and the Supreme Court (and, to a lesser degree, the National Administrative Court), is the clearest example of this type of landmine. With judicial appointments notoriously difficult to revoke (as they normally should be), these apex courts have been “cemented” or “concreted” with PiS loyalists. They now include 100 percent of the membership of the constitutional court and just over 50 percent of the supreme court.

Remember: these are just single representative instances of legal landmines: the field is full of them. Taken together, they render the position of the new government particularly unpalatable. To respect the laws promulgated by the old government establishing these traps would make any significant steps forward virtually impossible. To ignore them, exposes the government to the predictable objection that it engages in the same rule of law violations as the currently ruling politicians accused their predecessors of, in 2015-2023. After all, can you restore the rule of law system while violating the very rule of law you profess?

Radbruch’s legacy

In 1946, the great German legal scholar Gustav Radbruch published an article which became canonical for post-authoritarian thinking about the rule of law, on the rift between statutory lawlessness (gesetzliches Unrecht) and supra-statutory law (übergesetzliches Recht). I am far from comparing the “statutory lawlessness” of the Third Reich to that of the PiS regime. But, toutes proportions gardées, the idea that a statute may not be the last word on which law is legitimate and should be considered valid, is ubiquitous and confronts us in any context in which the powers that be use formally legal means in an arbitrary, uncontrolled and repressive manner.

“Positivism”, Radbruch argued, “with its principle that ‘law is law’, has in fact rendered the German legal profession defenceless against statutes that are arbitrary and criminal”. This type of positivism is being marshalled in Poland these days to accuse the government of breaching the rule of law. But if the rule of law is properly viewed as the rule of “supra-statutory law”, as Radbruch wisely urged, the substance of the rules to follow is determined by the Polish Constitution and European law, rather than by those statutes which were enacted precisely with the aim of incapacitating the democratic successors of authoritarians. The Polish Constitution contains sufficient resources to set aside those legal traps: Article 8 provides for supremacy and direct effect of the Constitution. This idea, more generally, is reflected in the very title of an article by two Polish legal scholars of a younger generation, Maciej Bernatt and Michał Ziółkowski: “Statutory anti-constitutionalism”. Statutes may be an instrument of anti-constitutional revisions when the main institutional guardian is de-activated.

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Die Fachhochschule für Verwaltung und Dienstleistung in Schleswig-Holstein (FHVD) sucht zum nächstmöglichen Zeitpunkt für den Fachbereich Allgemeine Verwaltung eine/n Hochschullehrer/-in (m/w/d) für Öffentliches Recht, insbesondere Ordnungsrecht Wertigkeit bis BesGr. A 15 SHBesG / EG 15 TVöD-VKA, in Teil- oder Vollzeit, (Lehrverpflichtung Vollzeit: 18 LVS / Woche)

Auf Ihre Bewerbung freuen wir uns bis zum 17 April 2024.

Weitere Informationen entnehmen Sie bitte unserer Homepage unter www.azv-sh.de.

Die Stellenausschreibungen finden Sie hier: Ausbildungszentrum für Verwaltung AZV (azv-sh.de)

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Which brings us to the problem of the Constitutional Tribunal, which is the mother of all legal landmines in Poland: with the complete colonization of the Tribunal by PiS, no impartial institutional arbiter exists in a system, originally designed with a Kelsenian constitutional court at its epicenter. I have long argued – also in this blog – that Polish decision-makers should bite the bullet and extinguish the Tribunal as it now exists because it has lost any pretense to legitimacy. I will not rehearse my arguments here – nor evoke the counterarguments by my critics, whom I respect but with whom I obviously disagree. What I need to emphasize, though, is that without such extinguishment (or, at the very least, without creation of a tight cordon sanitaire around the Tribunal, with principled non-compliance with its judgments), the government and the legislative majority will keep falling victim to the multiple traps, ambushes and landmines set deliberately by their predecessors.

The rule-of-law dilemma

“Pursuing the rule of law system while violating legal rules” is a maxim which sounds unwholesome. “Obeying the rule of the constitution while violating individual statutory provisions” is a more palatable proposition, especially if we incorporate the EU treaties and the European Convention of Human Rights into the meaning of the constitution, as we should. Giving effect to a constitution without a constitutional court is not a contradiction in terms. It simply draws a necessary conclusion from the de facto non-existence of a constitutional court, and places the constitutional responsibility on the lawmakers, the elected government and regular courts.

As John Morijn has recently admitted in this portal, “[T]he infuriating reality is that entrenchment [in Poland] has occurred and often cannot be easily undone overnight except through draconian measures that may themselves (…) be in strong tension with the rule of law that needs saving”. Infuriating indeed. But antithetical to the rule of law? A state such as Poland post-15 October 2023 does not have the luxury of restoring the system of democracy and the rule of law while faithfully following the letter of statutes enacted by the autocrats. Rather, something like Andras Sajó’s “militant rule of law” may be needed. Making sure that it will not become self-perpetuating will be the main challenge for the democratic reformers. But that is not the problem that Polish democrats face right now; not just yet.

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The Week on Verfassungsblog

On March 28, 2024, the ICJ issued its third provisional measures order in South Africa v Israel. The Court ordered Israel to ensure the provision of humanitarian aid throughout Gaza. TAL MIMRAN examines the provisional measures from a procedural point of view, investigating whether the right to be heard during the proceedings has been sufficiently guaranteed. He concludes that the ICJ based its decision on international reports that were not provided, known, or considered by either of the parties.

A detained former vice president, a strained diplomatic relationship, and a continent in turmoil: The raid of the Mexican embassy in the Ecuadorian capital, Quito, has not only caused political tensions but will also occupy the International Court of Justice. MANUEL BRUNNER and  ERICK GUAPIZACA explain the international legal background.

In Bosnia and Herzegovina, the High Representative Christian Schmidt strikes again. In March 2024, he once again used his “Bonn powers” under the Dayton Peace Agreement and imposed a long-due reform concerning transparency and depoliticization of the electoral process. MAJA SAHADŽIĆ explains the underlying complex context, showing how this desirable political reform, overcoming political stalemate in the complex multi-ethnic country, concurrently creates further political cleavages.

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Die Fachhochschule für Verwaltung und Dienstleistung in Schleswig-Holstein (FHVD) sucht zum nächstmöglichen Zeitpunkt für den Fachbereich Allgemeine Verwaltung eine/n Hochschullehrer/-in (m/w/d) für Öffentliches Recht, insbesondere Kommunalrecht Wertigkeit bis BesGr. A 15 SHBesG / EG 15 TVöD-VKA, in Teil- oder Vollzeit, (Lehrverpflichtung Vollzeit: 18 LVS / Woche)

Auf Ihre Bewerbung freuen wir uns bis zum 17 April 2024.

Weitere Informationen entnehmen Sie bitte unserer Homepage unter www.azv-sh.de.

Die Stellenausschreibungen finden Sie hier: Ausbildungszentrum für Verwaltung AZV (azv-sh.de)

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This week we had quite a few digital topics. We started with FRANZISKA KATHARINA MAURITZ, who explored the question of what rules actually determine what is ‘illegal’ on social media. Not so easy in the newly created DSA regime, whose definition of what is illegal is extremely broad. The result: a somewhat chaotic collision of norms.

Something is happening when the grandees of German Staatsrechtslehre turn their attention to Brussels’ digital policy. Perhaps MARTIN NETTESHEIM’s text will one day be seen as the one that brought about a big debate on the meaning, form and legitimacy of European integration among motivated European data protection advocates. As in other areas of law and politics (keywords here include the ECB, antitrust law and climate protection), digital policy is increasingly becoming a vehicle for advancing all kinds of social and economic policies.

It continued with a welcome intervention from antitrust lawyers DANIEL ZIMMER and JAN-FREDERIK GÖHSL. As much as European public law scholars are currently talking about the Digital Services Act, the Commission is quickly putting the competition rules set out in the Digital Markets Act into action with the most sensitive investigations. Perhaps the sharpest sword is not Europe’s supposed ‘digital constitution’, but going after digital corporations’ wallets?

Furthermore, the discussion about more resilient constitutional courts is moving forward. RAVEN KIRCHNER draws attention to an aspect that has so far been neglected: compliance with decisions of the Federal Constitutional Court. Not only a look abroad shows that there are dangers at this point. The author explain how to better ensure that Federal Constitutional Court decisions are enforced and complied with.

Using the example of the Thuringian Constitutional Court, FABIAN WITTRECK and JULIANA TALG discuss how obstructions to the election of judges can be resolved. Their proposal has the advantage that it takes into account all three weak spots – protection of pluralism, avoidance of blockades and democratic legitimation. As a last resort, they discuss the option of the Federal Constitutional Court jumping in.

FLORIAN SLOGSNAT contributes to the ongoing discussion surrounding the concept of force (‘Gewalt’) within the scope of the offense of coercion. He defends the stance of the German jurisprudence, which holds individuals criminally accountable for engaging in a sit-in blockade that obstructs the passage of vehicles. This position contradicts the argument presented by Siegmar Lengauer in a recent contribution on Verfassungsblog, where Lengauer, from an Austrian perspective, rejected the principles of German jurisprudence.

Unions and climate activism – can they go hand in hand? According to some, the strike led by the alliance of the German union ver.di and Fridays for Future constitutes a prohibited political strike. Reason enough to revisit history and justification of the ban on political strikes in Germany. THERESA TSCHENKER rereads the tale of the separation between collective bargaining agreements and politics.

Another win for environmental law occured in Peru: The first Peruvian court acknowledged the legal personhood of a river, the Marañón. FRANCA EMILIA LORBER unpicks what Western legal systems can learn from the strategies of the indigenous Kukama claimants.

BERNHARD WEGENER takes a clear stand against the “sugary illusion of climate justice” on the occasion of the climate cases before the European Court of Human Rights.

UMBERTO LATTANZI shows how the first Italian climate case has fared and provides for an assessment within the broader transnational movement carrying high social expectations and at the same time legal limitations.

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Verfassungsblog sucht eine kaufmännische Geschäftsführung

Für den organisatorischen Aufbau und die Weiterentwicklung vom Verfassungsblog möchten wir unsere Geschäftsführung zu einer Doppelspitze ausbauen. Maximilian Steinbeis wird künftig als politischer Geschäftsführer weiterhin die inhaltliche Verantwortung übernehmen. Für die neu zu schaffende Position der kaufmännischen Geschäftsführung suchen wir noch bis zum 17. April eine teamfähige, kreative, temperamentvolle und engagierte Person, die sich mit uns für Demokratie, Rechtsstaatlichkeit und Menschenrechte einsetzt und die Lust hat, unsere wachsende Organisation zu leiten und voranzubringen. 

Hier geht’s zur Stellenausschreibung.

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In a spectacular and far-reaching decision, the European Court of Human Rights has ruled for the first time that weak protection against climate change violates human rights. The court upheld the complaint of the Swiss KlimaSeniorinnen Association, while rejecting the complaints of Portuguese youth and a mayor of a French municipality. We discuss what the judgments say, what they mean, and what the future holds for climate protection in Europe in a blog symposium together with the Sabin Center for Climate Change Law at Columbia University. This week started with contributions from MAXIM BÖNNEMANN and  MARIA ANTONIA TIGRE, SANDRA ARNTZ and JASPER KROMMENDIJK, CHRIS HILSON and ARMANDO ROCHA. Many more will follow.

Not less exciting is our second blog symposium, which we also launched this week. 10 years of BJP government under Narendra Modi in India have left their mark – on society, institutions, and the law. Our blog symposium on “Indian Constitutionalism in the Last Decade” explores how Indian constitutionalism has changed since 2014. It kicks off with articles by ANMOL JAIN and TANJA HERKLOTZ, INDIRA JAISING, LOUISE TILLIN, MAANSI VERMA, FARRAH AHMED, ABHINAV SEKHRI, and RATNA KAPUR.

In the latest episode of our blog symposium on party bans in Germany and Europe, ANDREW O’DONOHUE and CEM TECIMER use the example of the Turkish AKP to illustrate why party banning procedures can backfire. KATHARINA HÖLZEN and NINA ALIZADEH MARANDI shed light on the constant call for a strong civil society – and hold the government accountable to protect and promote democracy. CENGIZ BARSKANMAZ argues that the ongoing discussion about an AfD ban externalises the racism of the so-called center.

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That’s all for this week. Take care and all the best,

the Verfassungsblog Editorial Team