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On 7 October 2020, the Constitutional Tribunal of Poland declared the unconstitutionality of essential provisions of the Treaty on European Union, calling into question the principle of the primacy of EU law (judgment K 3/21). This decision is closely related to the Polish judicial reform that has been severely criticised by the CJEU for violating standards of judicial inde-pendence. This study first explains the process of political capture of the Polish Constitu-tional Court and then looks at the content of the K 3/21 judgment: the Polish Constitutional Tribunal attempt to reject the aforementioned case law of the CJEU on the grounds that the EU institutions have exceeded their competences. Secondly, this study aims to determine the extent of the Union’s competences in the area of the national judiciary, to explain the me-thods of resolving potential conflicts between national and EU laws and to analyse the conse-quences of the primacy principle. The key argument of this part of the article is that national judges have the faculty to examine, ex officio, the compatibility of a given national provision with EU law. This power cannot be limited by any national act, nor by the fact that there is a prior declaration of its constitutionality.
Electoral disinformation has become one of the most challenging problems for democratic states. All of them are facing the phenomenon of - both online and offline - dissemination of false information during pre-electoral period, which is harmful for individual and collective rights. As a consequence, some European countries adopted special measures, including summary judicial proceedings in order to declare that information or materials used in elec-tioneering are false and to prohibit its further dissemination. There are already three rulings of the ECtHR concerning this expeditious judicial examination provided in the Polish law. In December 2018 France passed complex regulation against manipulation of information that include similar mechanisms. This article, basing on the ECtHR’s case law and some national experiences, attempts to define the minimal European standard for measures targeted at electoral disinformation, especially judicial summary proceeding. It contains the analysis of the notion of electoral disinformation, defines the state’s positive obligations in this sphere, and indicates mayor challenges for the legal framework. The principal argument is that summary judicial proceedings – if adequately designed – cannot be questioned from the Convention standpoint and provide a partial solution to the problem of electoral dis-information.
In Central Europe, especially in Hungary and Poland, over the last years there are serious problems related to democracy, constitutional balance and the rule of law. In a short time, the illiberal political leaders put into practice an order that calls into question principles that form part of the axiological foundation of the European Union. This article explains why illiberalism has been so successful in this region and which techniques have been used to reinforce the political capture of various state institutions,especially the judiciary. The article also contains a critical analysis of the European Union’s attitude towards Hungarian and Polish illiberalism. The general hypothesis of this study is that Hungary and Poland have gone so far towards constitutional illiberalism, that it is extremely difficult to indicate the simple legal remedies for rapid return of these countries to liberal democracy.
Wolność wypowiedzi w Internecie: O roli mediów społecznościowych i pozytywnych obowiązkach państwa
(2022)
Modern online communication processes are characterized by the growing role of private entities (social media) and the emergence of numerous conflicts of a horizontal nature. This paper examines these issues from the standpoint of the ECtHR’s theory of positive obliga-tions. Consequently, it analyses the impact of new technologies on the freedom of expres-sion, the paradigm shift in communication, and the State’s positive obligations to prevent horizontal abuses. The article also analyses the existing and planned legal framework (national and EU). The main argument of this article is that public control over social media should be strengthened. Limiting their discretion to ensure adequate protection of rights and freedoms does not mean, however, the freedom of forum, understood as an unlimited right of access to the platform in order to express opinions.
In the judgment of 24 June 2019, Commission v. Poland (Independence of the Supreme Court), C-619/18, EU:C:2019:531, the Court of Justice of the European Union ruled on the retirement of Polish Supreme Court judges, declaring that the mechanism of arbitrary lowering the retirement age was not compatible with the European Union law. This commentary analyses the latest changes in the Polish judicial system and the CJEU's arguments. The study is focused in the change in European case-law and the development of instruments available to the EU institutions for monitoring judicial independence. The paper discusses also the elements of the judicial independence indicated by CJEU and the rules on the retirement of judges.
The article presents legal (constitutional) aspects of the emergency situation concerning the first wave of the Covid-19 pandemic.
In the case, Brzeziński v. Poland, the European Court of Human Rights for the third time addressed the issue of the summary electoral proceedings in the Polish legal system. The last judgement is an excellent opportunity to examine if the provisions of the electoral law concerning these proceedings are well designed and correctly interpreted by the Polish courts. There is no doubt that free elections and freedom of expression together form the bedrock of any democratic system. The two rights are inter-related and operate to reinforce each other. For this reason, it is particularly important in the period preceding an election that opinions and information of all kinds are permitted to circulate freely. On the other hand, national authorities are legitimised to create special proceedings in order to ensure the proper conduct of the electoral campaign by preventing the dissemination of false information. As a consequence, it is possible to verify factual statements contained in the materials pertaining to an electoral campaign. Special proceedings should not apply to the value judgements. If such comments and opinions infringe the candidate’s personal rights, he or she may seek redress under the general rules of protection of individual rights.
The purpose of this article is the general vision of judicial independence in the EU and its defence mechanisms. The article analyses the ways of the protection of this principle, as well as its development and substantial content in the context of the recent CJEU jurisprudence on the status of the judiciary in Poland. The first part of the article explains the techniques (of a political and legal nature) to guarantee judicial independence in the EU. The objective is to demonstrate how the procedure based on the Article 7 TEU, as well as the preliminary rulings (Article 267 TFEU) and infringement procedures (Article 258 TFEU) increment the enforceability of judicial independence. In the second part the article develops the concept of judicial independence and the detailed guarantees in this field, including rules for judicial appointments, the retirement regime, disciplinary responsibility and remuneration.