Articles for category: Polen

Poland’s Sham ›Migration‹ Referendum

On June 15, 2023, Jarosław Kaczyński, leader of Poland's PiS party, announced a rare referendum, ostensibly to allow the public to weigh in on crucial elements of Polish immigration policy, alongside the general elections. Yet, in reality, the referendum had little to do with migration and the opposition parties largely ignored the referendum's questions to avoid its deployment as an electoral campaign tool. As such, whatever voters will decide on Election day, it will tell us little about the state of Polish migration politics.

11. Oktober 2023

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Europe’s Sick Success Child

Poland's rule of law crisis, spurred by the ruling coalition under Jarosław Kaczyński, has caused severe damage to its legal system and democratic foundations. The European Union has responded with infringement proceedings and withholding of funds, leading to some concessions from the Polish government. Yet, Poland's legal community and civil society have shown resilience, challenging these attacks in courts, advocating for democratic values, and maintaining a robust private media. As parliamentary elections loom, the question arises: can this resilience lead to a restoration of the rule of law?

11. Oktober 2023

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Migrant Instrumentalisation: Facts and Fictions

The last two years have seen recurring efforts to introduce the concept of instrumentalisation of migration into EU asylum law on a permanent basis. This post will demonstrate why the ‘instrumentalisation of migration’ is an overly simplified and generalised term that does not capture the complexities of the situation on the ground. Its adoption into EU asylum law thus threatens both to undermine legal certainty and bear far-reaching consequences for the Rule of Law in the EU.

21. September 2023

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Poland’s Elections: Free, perhaps, but not Fair

Poland’s upcoming parliamentary elections will be the country’s most important vote since the historic elections of 1989. Indeed, the momentous character of the elections might be the only thing upon which the governing PiS (Law and Justice) party and the opposition might agree. If the elections in October were fair, PiS’ defeat might be plausible though by no means certain. Yet, the preceding sentence identifies a condition we already know will not occur. In this analysis, I map the multiple ways in which the system has been rigged in favour of the incumbents. While I will only describe the most striking aspects of this unfairness, they all form parts of a system and thus should not be looked at in isolation. Kaczyński is a shrewd politician. There’s a method to his (apparent) madness. For the opposition to win is thus a Herculean task. Herculeses do appear in politics – but not that often.

20. September 2023

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Direct Democracy and Indirect Electoral Campaign

In a last-minute attempt to grow voter presence at the booths on the 15th of October, Poland’s ruling party announced it would be combining the upcoming parliamentary elections with a referendum vote on not one, but four issues. This provides the governing powers with an additional electoral campaign just for them – misnamed as the referendum – to draw public attention to the questions asked. After all, they were drafted by those seeking reelection and focus on matters most used in their political agenda.

1. September 2023

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Contesting the Ultimate Leverage to Enforce EU Law

By now it has become clear that Poland is not willing to discharge the definitive judicial penalties of over EUR 600 million which the European Court of Justice (ECJ) has ordered it to pay for failing to observe coercive interim measures. When the Commission announced it would proceed to set off the outstanding amounts against money due to Poland from the EU budget, the Polish government vowed to fight the recovery ‘with all legal means’. Recently, Poland has put its money where its mouth is. It has brought four cases before the General Court to challenge the recovery. These actions have thus far evaded closer scrutiny in the legal blogosphere. However, they contain a significant challenge to the EU’s powers to enforce judicial penalties against Member States, namely as regards recovery by offsetting. As the cases raise issues which may have repercussions beyond these proceedings, this post casts a closer look at Poland’s applications and analyses their potential broader significance.

12. Juli 2023

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Why Europe Must Never Forget about the Polish Constitutional Court

 In 2023, we should have been celebrating the 41st anniversary of the establishment of Polish Constitutional Court. “Should” is used advisedly here because as is well known Poland no longer has a constitutional court. Undoubtedly, the technical question of how to rebuild the Court is important, yet we should also understand why its rebuild must be the first order of the day after the present dark days of total capture. I argue, in this respect, that the EU would do well to remember the central role constitutional courts have played in the particular form of constitutionalism that emerged in the aftermath of Europe’s experience with totalitarianism, and the laudable way in which the Polish Constitutional Court took up this task.

10. Juli 2023

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Poland’s Extended Disciplinary System

The judgement of the European Court of Justice (ECJ) on June 5, 2023 (C-204/21) has added a new chapter to the rule of law crisis in Poland. The outcome was largely expected given the well-established jurisdiction of the ECJ on matters of the rule of law. However, a close reading of the judgment demonstrates that it recognizes the more insidious ways in which Poland has undermined judicial independence. Specifically, I argue that the ECJ's ruling paves the way for a legal response to the suppression of judicial independence through public intimidation and stigmatization of judges.

2. Juli 2023

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How to Rebuild Poland’s Rule of Law

Ahead of the next parliamentary elections, a core question is whether and if so how we can restore Poland’s rule of law. While the current effort is understandably focused on resurrecting the Constitutional Court and rebuilding an independent judiciary and prosecution, a purely institutional approach won’t be enough. Instead, it is imperative to mobilize and build lasting defiance on the ground.

24. Juni 2023

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Doing Justice to Poland’s Muzzle Law

On 5 June 2023, the Court of Justice issued its fourth infringement judgment in relation to yet another Polish piece of legislation – informally known as the muzzle law – which aimed to dissuade or punish Polish judges for applying and upholding EU rule of law requirements. As anyone with any basic understanding of EU law could have predicted, the law rushed into force by Poland’s ruling coalition in December 2019 did not survive judicial scrutiny in Luxembourg. As long as the Commission fails to demand full compliance with CJEU case law and decisively address the issue of judicial usurpers, however, just chipping away at the arbitrary disciplinary changes Polish authorities have made will always fail to solve Poland’s fundamental and systemic issues.

11. Juni 2023

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