Monthly Archives: March 2021

Today, the Court of Justice of the European Union has ruled that any successive amendments to the Polish Law on the National Council of the Judiciary effectively undermining judicial oversight of the Law and Justice (PIS) government’s appointments to the Supreme Court will be in breach of EU law.

The CJEU’s decision concerns a key element of the so-called judicial “reform” which the Law and Justice government successively pushed through since 2018. Following the reform, President Andrzej Duda was free to appoint multiple new judges to the Supreme Court. All his nominees, however, were pre-selected by the politicized National Council of the Judiciary (NCJ). The judges were appointed despite a decision of the Supreme Administrative Court (NSA) to suspend all recommendations of the disputed NCJ. The CJEU has now questioned the validity of these appointments.

-Successive amendments to the Polish Law on the National Council of the Judiciary (NCJ) which have the effect of removing effective judicial review of that council’s decisions proposing to the President of the Republic candidates for the office of judge at the Supreme Court are liable to infringe EU law. Where an infringement has been proved, the principle of the primacy of EU law requires the national court to disapply such amendments- reads the CJEU ruling.

Poland’s Supreme Administrative Court, which referred the case to the CJEU, will now be able to disapply the provisions introduced by the Law on the NCJ. Moreover, should it find that the amendments were adopted in breach of EU law, the court will also be free to dismiss “constitutional amendments” passed by the politicized Constitutional Court chaired by Julia Przyłębska.

“The principle of the primacy of EU law requires the referring court to disapply those amendments, whether they are of a legislative or constitutional origin, and to continue to assume the jurisdiction previously vested in it to hear disputes referred to it before those amendments were made” – the CJEU has found.

-Ordering Poland to disregard its own constitutional rule in matters concerning the organization of our judiciary is a violation of the treaties and yet another example of restricting our sovereignty- said the Deputy Minister of Justice, Michał Woś, commenting on the ruling.

Following the CJEU ruling, the Supreme Administrative Court will assess, among other things, whether the Law and Justice party actively intended to prevent it from referring questions to the European Court. Such an act would be a violation of EU law. Most importantly, however, the NSA will also examine whether the amendments affected the independence of the new Supreme Court judges appointed by the President.

“Such amendments would then be liable to lead to those judges not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society governed by the rule of law must inspire in subjects of the law” – the CJEU has also found.

Sylwia Gregorczyk-Abram, a lawyer associated with the Wolne Sądy (Free Courts) initiative, explained the legal consequence of the CJEU’s ruling on Twitter: “in case of doubts as to the compatibility of a domestic law with the European law, a national court (Supreme Administrative Court) may refrain from applying the amendments (ignore them)”.

A key issue for the Supreme Administrative Court to consider in this case will be the de-facto independence of the new National Council of the Judiciary (NCJ).

(2. 3. 2021 via wyborcza.pl)

A ruling by the EU’s top court that judges seeking to join Poland’s Supreme Court should have the right to challenge the decisions of a panel evaluating candidates is “unacceptable,” the Polish justice minister has said.

The Court of Justice of the European Union ruled on Tuesday that successive amendments to a Polish law regulating the work of the National Council of the Judiciary panel could infringe EU law.

“Where an infringement has been proved, the principle of the primacy of EU law requires the national court to disapply such amendments,” the court said.

Poland’s Justice Minister Zbigniew Ziobro, one of the main architects of the government’s judiciary reforms, said in a comment that the European court was overstepping its mandate and that its ruling was “unacceptable.”

He added that the Polish constitution “is the law of the highest rank,” not European law.

The judgement “goes beyond the European treaties and, in this sense, also violates them,” Ziobro stated, amid a protracted row over legal changes in his country.

He also argued that “the role of the court is not to create a political process” and that the EU court “has openly stepped out of its role.”

The top EU court in April last year ordered Poland to immediately suspend a disciplinary chamber within its Supreme Court that critics have said could punish judges for their decisions.

(3. 3. 2021 via thenews.pl)

In the first case of its kind, the Czech Republic is taking Poland to the Court of Justice of the EU to stop the expansion of a coal mine. The dispute threatens relations between the neighbours, and could have a significant impact on Polish energy security and environmental policy.

On Monday this week, the Czech government announced that it will file a lawsuit against Poland at the Court of Justice of the European Union (CJEU) over plans to expand operations at the Turów lignite mine on the Polish side of the border. Prague has accused the Polish government of violating EU law by extending a permit for the mine to operate without properly examining the environmental consequences.

According to a statement from the Czech foreign ministry, the lawsuit will be filed in late February or early March. The Czechs have also asked for the suspension of mining in Turów as an interim measure until a final verdict is handed down by the European court.

A fortnight ago, the Czech foreign minister, Tomáš Petříček, visited Warsaw in a last-ditch effort to negotiate a compromise. But the talks “did not turn out as hoped”, he announced on Monday.

The lawsuit will be the first of its kind, as no EU country has ever been taken to the Court of Justice by another member state over breach of environmental laws. The dispute may force the Polish government to speed up transition away from coal in the region. Along the way, however, it could lead to a loss of EU funds, disruptions to its energy supply and bruised relations with one of its few regional allies on energy matters.

Taken by surprise
The lawsuit caught Poland unaware. “It was a surprise for us, because our impression after the meeting was good,” Aleksander Brzózka, spokesman for Poland’s climate and environment ministry, told Notes from Poland. “There were proposals on the Czech side, we did not answer immediately, but we were and we still are willing to find a solution without a dispute in the court.”

The mine’s operator, state-owned Polish Energy Group (PGE), was equally taken aback. “We do not fully understand it”, said Sandra Apanasionek, the company’s spokeswoman, adding that the Czech side has been regularly consulted in the process of granting the mine its new permit until 2026.

While the decision to sue Poland may be surprising, the conflict had already been simmering for a while. The Turów mine is located close to the Czech and German borders, and the nearby regions have regularly complained about the open-pit mine’s impact on the local environment.

In September last year, the Czech Republic brought the issue to the European Commission, which in December said that, while environmental concerns were “unfounded”, Warsaw had indeed violated a number of EU laws by not properly consulting its neighbours before extending the mine’s permit.

“It was brewing for quite a while,” said Radosław Gawlik of EKO-UNIA, an environmental NGO. He listed numerous signs of an impending lawsuit: “citizens’ complaints, … involvement of the Czech government, visits, Czech media describing the situation, the September decision of the European Commission. Finally, they decided to go through with it.”

Polluting the neighbourhood
For citizens of Uhelná, a Czech village right across the border from Turów, the mine is a real worry. “If the wind goes from the mine to us it can be really noisy, to such a level that people don’t want to be outside,” said Milan Starec, a resident of the village who has been protesting the mine for years. In recent years, excavations have crept closer, with plans to come within 100 metres of the border.

While noise and air pollution are problematic, Czech and German officials and activists agree that the most serious issue is water supplies. For Starec, the rate of decline of groundwater reported recently by the national geological agency is “very scary”. Before announcing its intention to sue, the Czech government demanded compensation from Poland for groundwater loss, as well as financing investment in water supply to the villages neighbouring the mine.

Both Poland’s climate ministry and PGE have vehemently denied accusations that the mine lowers water levels.

“For a long time geologists from Poland and from the Czech Republic have been examining waters sources on the Czech side of the border, and the result of that research confirmed that the mine may have influence on just one water source on the Czech side,” said Apanasionek, adding that construction of an underground barrier is being finalised to prevent any possibility of groundwater loss in the future.

“Catastrophic” either way
The proceedings at the Court of Justice may take several years. If the CJEU sides with Prague, Warsaw may have to pay millions of euros in fines for breaching EU law.

But within just weeks after the lawsuit is filed, the court will decide whether or not to impose interim measures, which could halt the mine’s operations until the final verdict. Such measures have been used in the past, for example in the case of Białowieża forest in 2017, when the court ordered Poland to immediately stop logging.

“I cannot imagine such a scenario. The effects of such a decision would truly be catastrophic,” said Apanasionek. “The Turów plant provides around 5% of national electricity supply. Shutting down the mine would result in shutting down the electric plant.”

Switching off 5% of Poland’s electricity supply overnight would hit the Polish grid – which is already overstretched to meet the growing energy demand – hard. Poland has increasingly imported electricity, with 13 TWh coming from neighbours in 2020 – mostly from Germany.

The climate ministry did not want to comment on the possibility of the imposition of interim measures before the lawsuit is submitted to the CJEU.

Tough choices ahead
In order to solve this conflict, the Polish government faces some difficult choices: it can either press on with the current strategy of kicking the can down the road, or speed up its green transition and face the anger of workers and companies in the coal sector.

“No matter how this ends, we need to bring forward the decision to shut down the plant, for example in ten years,” said Gawlik, adding that the closure of the mine is inevitable due to increasing pressure to switch to renewable energy sources.

Yet, while PGE’s extended permit for the mine expires in 2026, the climate ministry is already considering a new one that would last until 2044, when the coal is forecast to run out.

The utilities giant has confirmed that it will transition to the green energy sources eventually, but Apanasionek says “we need time to transform the region in a way that will have the least impact for the local society. Along with the mining, we will develop a number of investments in renewables. We will build solar and wind farms.”

Regardless of the result of the upcoming legal dispute, the Turów mine has already cost the region access to EU funds. An EU official confirmed to Notes from Poland that it will not have access to a new Just Transition Fund, which is supposed to support green transition in coal-heavy regions, if it does not demonstrate that it is weaning off coal this decade.

In Brussels, Poland and the Czech Republic have often spoken in unison on energy matters, for example advocating for the inclusion of gas and nuclear energy on the list of the EU’s sustainable investments. But bad blood over the Turów mine may weaken that alliance and leave Poland – the only country that has not accepted EU’s climate neutrality goal – even more isolated than before.

(25. 2. 2021 via notesfrompoland.com)

The EU is set to sanction the authorities responsible for the jailing of opposition leader Alexei Navalny in Russia, German Foreign Minister Heiko Maas said.

Individuals in Russia’s judiciary could face EU sanctions in the coming days, German Foreign Minister Heiko Maas said on Monday.

“The EU will not be silent” about the persecution of anti-corruption crusader Alexei Navalny, Maas told reporters following a meeting of top diplomats from the bloc.

“Relations (with Russia) are certainly at a low — there is no other word for it,” Maas said, while also referring to a recent Moscow visitby EU foreign policy chief Josep Borrell.

“Therefore, we decided today to impose further sanctions and list specific persons,” he added. Though Maas did not provide names, he said the new measures would be focused on Russian officials “from the judiciary.”

Visa bans, asset freezes
Previously, diplomatic sources said the foreign ministers had agreed to impose sanctions on four top Russian officials.

The agreement came after France, Germany, Poland and the Baltic countries urged the bloc to take steps against the Kremlin.

EU diplomats also told reporters that the meetings did not address specific names.

But officials will now start drafting the framework of restrictions, including asset freezes and visa bans against individuals responsible for the repressive actions against protesters and Navalny himself.

Germany’s Maas spoke to the press before the meeting, expressing his support for sanctions as well as keeping dialogue channels with Russia open.

“I am in favor of ordering the preparation of additional sanctions, of listings of specific persons,” Maas said on his arrival to the talks.

“At the same time, we need to talk about how to keep up a constructive dialogue with Russia, even as relations certainly have reached a low,” he added.

How did Russia respond?
In a statement Monday, Russia’s Foreign Ministry said the EU sanctions are “unlawful,” “disappointing” and adopted under a “far-fetched pretext.”

The Foreign Ministry called demands for Navalny’s release “unacceptable” and “absurd,” as the arrested opposition leader was “convicted by a Russian court” on Russian territory in “accordance with Russian law.”

Sanctions, according to the statement, amount to “interference in the internal affairs of a sovereign state.

EU, Russia on a collision course
Eight EU foreign ministers, as well as several EU ambassadors, met with two of Navalny’s close allies on Sunday evening ahead of the talks.

Leonid Volkov, a close aide of Navalny’s, told DW that the bloc should focus on sanctioning Russian President Vladimir Putin’s inner circle.

“The strongest answers that could be given would be personal targeted sanctions against Putin’s closest allies, the most important parts of the repressive machine he’s built,” Volkov said.

“Unlike sectoral sanctions against [the] Russian economy,” he added, “these personal sanctions couldn’t be deemed by Russian propaganda for their favor.”

Gabrielius Landsbergis, the foreign minister of Lithuania, which organized Sunday’s discussion, said “the biggest hope for [Monday] is that we will make a unanimous decision about the list” of people to be sanctioned.

Relations between Russia and the European Union have continued to break down despite a recent visit by EU foreign policy chief Josep Borrell to Moscow, which was widely considered to have been a catastrophe.

Borrell himself admitted as much before Monday’s meeting. “It’s clear that Russia is on a confrontational course with the European Union,” he said.

Years of EU sanctions against Russia
The EU imposed sanctions on a series of individuals, including close allies of Putin’s, back in October, after the poisoning of the Navalny with the Soviet-era Novichok nerve agent. Russia responded with its own individual sanctions and the expulsion of three EU diplomats, which was announced during Borrell’s trip.

Speaking to the UN-backed Conference on Disarmament, US Secretary of State Antony Blinken accused Moscow of having “used chemical weapons to try to assassinate its own people,” including Navalny,

Russia had already been hit with sanctions following its 2014 annexation of Crimea and its backing of insurgents in Ukraine.

But the Kremlin has also seen a wave of protests after police arrested Navalny on his return to the country in January. The political activist has been sentenced to almost three years in prison. The European Court of Human Rights has ruled that Navalny’s sentencing was unlawful.

(22. 2. 2021 via dw.com)

The threat to the country’s private broadcasters and publishers poses another test of relations with Brussels

For 30 years, Poland’s Radio ZET has served its audience a mix of music, current affairs and occasional humour. But Poles tuning into the station on February 10 were met with something rather different. Instead of normal programming, a terse message, played on a loop, informed listeners that Poland’s government wanted to “destroy the independent media”.

“We are protesting so that you can convince yourselves what Poland will look like without independent media,” the message ran. “We apologise to you, our listeners and business partners, for the change to today’s schedule. But we have no choice.”

Radio ZET was not alone. For 24 hours, much of Poland’s private media united in protest against a plan to impose a tax on advertising revenues, which they see as a serious — and targeted — threat to independent journalism. Broadcasters replaced TV shows with black screens with the message “This is where your favourite programme was supposed to be”; internet portals blocked access to articles; and 43 media groups signed an open letter branding the plan “extortion”. They warned that its introduction would lead to the “weakening, or even liquidation” of some Polish media companies, whose budgets have already been shredded by the coronavirus pandemic.

Politicians from Poland’s ruling Law and Justice party (PiS) say the levy — in the range of 2 to 15 per cent, depending on the size of advertising revenues, the type of media and the product advertised — is meant to help the country’s health system recover from the pandemic. They initially dismissed the protests as a self-serving move by companies that pay too little tax. But as criticism of the plan began to spread, with both PiS’s junior coalition partner and several US politicians expressing concerns, officials changed tack and said parts of it would be amended. The levy would not, they insisted, target small, local Polish players, but instead rein in “international giants”.

Few media executives, however, think that the battle is over. Many see the proposed tax as the latest in a series of steps by PiS to curb independent journalism. These include the capture of the state broadcaster, and a squeeze on advertising by state bodies in publications that do not toe the government line. For now, Poland has a strong independent media market, but the trends are worrying: since PiS took office in 2015, the country has tumbled from 18th to 62nd place in the World Press Freedom Index — below Niger and Armenia.

Some Polish journalists fear that the EU’s fifth biggest state could end up following a similar path to Hungary, where Viktor Orban’s government has suffocated much of the country’s independent media.

Poland has been one of the EU’s big success stories over the past three decades, but the stand-off over private media is the latest in a series of disputes that have put it at the centre of a contest about Europe’s political and cultural values.

The renewed focus by PiS on the media follows a bitterly contested overhaul of the judiciary which critics say threatens the rule of law in Poland, as well as a fierce debate over abortion after a controversial court ruling that all but outlawed terminations.

Brussels, which has spent the last four years locked in a battle with both Poland and Hungary over the rule of law, has made it clear it is following the proposed levy closely. But while some European politicians have warned against creeping authoritarianism, the EU remains deeply divided over how to defend what it sees as its core ideals in member states.

Says one senior Polish media executive: “What we really want is to send a signal both to the Polish public, but also internationally, that this is a serious matter . . . that the independence of the media, and free speech in Poland, is really under threat.”

Opposition from US
Since sweeping to power, PiS, a conservative-nationalist group with strong ties to Poland’s influential Catholic Church, has made no secret of the fact that it believes Poland’s media is in need of an overhaul. Led by veteran firebrand Jaroslaw Kaczynski, the party has long argued that foreign groups, such as the Swiss-German Ringier Axel Springer or the US’s Discovery, own too much of Poland’s media, and that it is biased against conservatives.

“We have to have our own media. In our country, non-Polish media should be an exception,” Kaczynski, now deputy prime minister, said in an interview with wPolsce.pl last month. “Maybe that is not easy, and it is certainly not a short path, but it is the only way to defend our freedom, our sovereignty.”

Over the past five years, PiS and its allies have frequently raised the prospect of passing legislation to redraw the media landscape, either by imposing limits on foreign ownership, or by restricting the market share that can be owned by a single group. But, amid disagreements within the ruling camp, no legislation has yet been put forward.

One problem is that it would be hard to reconcile such legislation with EU law. Another is that the US — PiS’s most important international ally — has long made clear that it would fiercely oppose any moves that damage US-owned groups, including Discovery’s TVN, Poland’s largest independent broadcaster, and PiS’s bete noire.

In the absence of legislation, PiS politicians have urged state-controlled companies to buy up foreign-owned Polish media. In December, PKN Orlen struck a deal to buy Polska Press from Germany’s Verlagsgruppe Passau, in a move that will give the state-owned oil refiner, run by a close ally of PiS, control over 20 of Poland’s 24 regional newspapers, and almost 120 local weeklies.

Orlen said at the time that the deal would strengthen its “retail sales, including non-fuel sales”, and that access to Polska Press’s 17.4m users would help it improve its big data tools and win new clients. The oil refiner also insisted it would not interfere in newsrooms, and compared the transaction to Amazon founder Jeff Bezos’s purchase of the Washington Post in 2013.

However, the deal has provoked consternation among journalists at Polska Press’s titles. “The mood is lousy,” says Krzysztof Zyzik, editor-in-chief of NTO, a regional news group from Opole in southern Poland, adding that two of his 20 staff have left since the deal was announced.

In Zyzik’s 27 years at NTO, it has been through Norwegian, British and German ownership. But this change-of-hands, he says, feels different — and more akin to Gazprom’s purchase of Russian media groups for Vladimir Putin, than to Bezos’s purchase of the Washington Post. “This is the first time in the history of our title where we feel that we are at a turning point,” he says. “And of course on top of this, there are other things linked to the reduction of journalistic freedom, like [the advertising tax]. These are all steps on the road to the Orbanisation of the Polish media.”

‘Making politics’
Politicians from the ruling camp dispute this. Andrzej Duda, Poland’s president and a close ally of PiS, says Orlen’s purchase of Polska Press was a “business transaction carried out in compliance with all legally required procedures”.

“The one who buys is the one who can afford it. It’s as simple as that,” he says, arguing that Poland’s disrupted 20th century history meant that private Polish groups had simply not had time to build up the capital to complete such deals.

“As long as we as Poles are arguing, and it is us who have influence over the media and journalists, and those are our internal disputes in which no one is intervening, then everything is fine,” he says. “However, if it turns out that certain political processes are happening via the activities of the media which are in the hands of foreign capital, then there is a problem.”

Part of the reason that Orlen’s takeover of Polska Press provokes such concern among journalists is the state of Poland’s state media. To a greater or lesser extent, Polish governments of all stripes have sought to exert influence over the state broadcaster TVP. But critics say PiS has gone far further than anyone else.

“I wouldn’t paint a beautiful picture of the pre-2015 media landscape,” says Marek Tejchman, deputy editor of Dziennik Gazeta Prawna. “Previously you could argue that [some coverage at state media] was biased, that some information was too subjective. But right now, their main purpose is not producing news any more, but rather making politics, and that’s the biggest difference.”

This politics takes various forms. When thousands of women joined anti-government protests last year following a court ruling that all but outlawed abortion, a programme on state TV recalled that in medieval times, women in one part of Poland who caused an argument in public had to walk around the main town square with a stone on their neck.

“Who knows whether similar rules would not be worth introducing in the public life of today?” the narrator mused. A few months earlier, a scandal erupted after a state-controlled music station allegedly censored a song critical of Kaczynski.

The state broadcaster’s bias was also on display during last year’s presidential election, when TVP mixed unremittingly positive coverage of Duda with relentless attacks on his liberal challenger Rafal Trzaskowski. In a report on the vote, the Office for Democratic Institutions and Human Rights, the election-monitoring arm of the Organization for Security and Co-operation in Europe, said TVP had “acted as a campaign vehicle for the incumbent and frequently portrayed his main challenger as a threat to Polish values and national interest” and “failed in its legal duty to provide balanced and impartial coverage”. Some reporting, it added, “was charged with xenophobic and anti-Semitic undertones”.

“If you watch Wiadomosci [the main evening news programme on TVP1] it is not news . . . It just shows that PiS is the best and the opposition is all bad,” says Mariusz Kowalewski, a journalist with TVP from 2016 to 2019. “In those three years, I saw the situation getting more radical. Suddenly only commentators from one political side could appear, from rightwing media like Gazeta Polska or Do Rzeczy. Others weren’t invited. It was information passed on by word of mouth by directors, who can be invited and who can’t.”

Squeeze on independents
As Poland’s government has captured the state media, state-controlled companies have increasingly diverted their advertising spending to media that toe the government line. A report published this month by Tadeusz Kowalski, a professor at the University of Warsaw, found that advertising by state-owned companies in a host of pro-government media outlets, including Sieci, Do Rzeczy and Gazeta Polska, had surged since PiS came to power in 2015. By contrast liberal titles, such as Polityka and Newsweek, received no advertising at all from state-owned companies last year, even though both have a circulation of more than double Sieci, Do Rzeczy or Gazeta Polska.

“The structure of total spending [by state-owned companies] shows a weak correlation between the level of advertising expenditure and the market position of the medium,” Kowalski concluded.

The International Press Institute, a Vienna-based media watchdog, is blunter. “State resources . . . continue to be weaponised to starve certain media of public advertising revenue,” it wrote in a recent report. “Since 2015, state institutions and state-owned and controlled companies stacked with PiS loyalists have ceased to subscribe to or place advertising in independent media, cutting off an important source of funding in a policy of economic strangulation. Though politicisation of state advertising is nothing new in Poland, it has reached new levels under PiS.”

Media groups are watching closely to see how the battle over the advertising tax and the independence of Polish media play out. Despite the pressures, some journalists remain relatively sanguine about the sector’s prospects. Boguslaw Chrabota, editor of the centrist newspaper Rzeczpospolita, says that 80 per cent of Poland’s private media took part in last week’s protest, and that this solidarity, the presence of foreign investors in the market and the background of senior journalists in battling communist authorities, will help the industry survive the current squalls.

“If we were strong enough to fight for freedom of the press under communism, we can survive today. So that is why I am optimistic. The massive investment, the solid titles, the prestige [and] solidarity among journalists mean that it is very hard to break us down. They can hurt us with some activities, such as using fiscal policies, but to break us down is really difficult,” he says, adding that fears that the private media in Poland suffer a similar fate to their counterparts in Hungary are misplaced. “There is no Budapest here in Warsaw.”

Others, however, are less bullish, and fear their ability to work freely could yet come under threat. “Looking at all the actions of these authorities towards the free media, I am convinced that there is an attempt to suppress free speech and democratic holding to account [of the government],” says NTO’s Zyzik, who will assess how Orlen’s ownership of Polska Press pans out.

“I am doing my job, and waiting for developments. But I am ready to resign if I feel that free journalism cannot be done under our new owner,” he says.

(22. 2. 2021 via ft.com)