Articles for category: Polen

Polish Re-Democratisation as “Building Back Better”

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 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.

16. Februar 2024

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Unveiling Democracy

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. 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.

5. Februar 2024

Too little, too late

A few weeks after the ECtHR first stepped into the ring for the fight against rule of law backsliding in Poland via its Xero Flor judgment, it has now dealt a new blow to the Polish judicial reforms. In its Broda and Bojara ruling, the issue at hand was not the composition of the Constitutional Court, but the termination of judges’ mandates as court (vice) president. In its judgment, the Court showed once more its commitment to the safeguarding of domestic judges and the procedural protection they should enjoy. Yet, one can wonder whether the judgment will really have an impact and if it is not too little too late.

26. Januar 2024

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Militant Rule of Law

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.

20. Dezember 2023

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Not Just Abortion

On 14 December 2023, the European Court of Human Rights 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. 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. Nevertheless, the ECHR made significant findings regarding Polish rule of law violations.

20. Dezember 2023

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Why Poland Should Join the European Public Prosecutor

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. 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 planned by the democratic opposition.

12. Dezember 2023

We Are Not Helpless

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?

6. Dezember 2023

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Regulating Political Advertising

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.

31. Oktober 2023

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