Versionsunterschiede von Informationssammlung Corona / Nachrichten




← Vorherige Änderung
NĂ€chste Änderung →


allow="autoplay" src="https://w.soundcloud.com/player/?url=https%3A//api.soundcloud.com/tracks/1052766943&color=%23ff5500&auto_play=false&hide_related=false&show_comments=true&show_user=true&show_reposts=false&show_teaser=true&visual=true">
Radio MĂŒnchen · Argumente gegen die Herrschaft der Angst – Dr. Wolfgang Wodarg im GesprĂ€ch


Libera Nos A Malo (Deliver us from evil)


|

===Rubikon==

Bitte gib einen Feed mit dem Parameter url an. (z.B. {{feed url="https://example.com/feed.xml"}}



===Peter Mayer==

Bitte gib einen Feed mit dem Parameter url an. (z.B. {{feed url="https://example.com/feed.xml"}}


<!markup:1:end> url="https://fetchrss.com/rss/613c9[...]f9cf360fa03e4b22.xml" max=5}}
===NZZ== XML

Feed Titel: Wissenschaft - News und HintergrĂŒnde zu Wissen & Forschung | NZZ


<!markup:1:end> max=5}}
===Cane==

Bitte gib einen Feed mit dem Parameter url an. (z.B. {{feed url="https://example.com/feed.xml"}}


<!markup:1:end> <!markup:2:begin>url="https://www.privacy-handbuch.de/blog-von-cane.rss" max="5"}}
<!markup:2:end>
===Verfassungsblog== XML

Feed Titel: Verfassungsblog


Patchwork Policing

Across Europe, police forces are gradually acquiring powers to deploy artificial intelligence (AI). In November 2025, the federal states of Baden-WĂŒrttemberg and North Rhine-Westphalia amended their state police laws to enable or expand the use of the US intelligence software Palantir – and thus triggered debate on AI use. In neighbouring France and Luxembourg, legislative debates have not yet escalated to the full regulation of automated data analysis, with both countries prioritising the authorisation of AI-supported video analysis in public spaces.

While the regulatory details may differ, the underlying dynamic is the same: legislatures are progressively expanding AI-assisted police powers without a coherent regulatory concept, exposing fundamental rights to uneven and unnecessary risks. Yet the use of AI by the police creates a variety of threats to the privacy and personal data protection of those (unwittingly) affected. There is also concern that new technologies, which law enforcement agencies do not control alone, will increase dependence on companies with sometimes questionable reputations. A joint regulation of police AI could both mitigate these risks and send a strong signal of Europe’s independent, rights-centred path distinct from that of the US.

Constitutional requirements for the use of automated data analysis

In Germany, the states of Hesse (in 2018 with Section 25a HSOG) and Hamburg (in 2019 with Section 49 HambPolDVG) were the first to establish powers for automated data analysis in their police laws – and constitutional complaints were filed against them. In February 2023, the BVerfG ruled on Hamburg (1 BvR 2634/20) and Hesse (1 BvR 1547/19), establishing the requirements for police powers to perform automated data analysis (see here and the following references). In doing so, the court demonstrated in an almost textbook manner that the severity of the interference with fundamental rights by automated data analysis can vary depending on the legal framework (para. 75 ff.). The legal requirements for constitutionally compliant data analysis must correspond to the respective severity of the interference, which the challenged provisions did not do.

This requires the interaction of various factors to be taken into account, such as the type and scope of the data involved (para 79 et seq.) and the methods of analysis and evaluation used (para 91 et seq.), which can both increase or reduce the intensity of the interference. Therefore, the legislature must, in particular when it comes to the prevention of crimes that do not yet pose a concrete threat, “lay down the essential principles for limiting the type and scope of the data and the processing methods themselves by law” (para. 112). The court thus laid the foundation for further constitutional debate on data analysis using artificial intelligence and, in particular, the controversial Palantir software.

Legislative reforms in Germany and their shortcomings

New momentum has now been brought to the debate by legislative reforms in the two federal states of Baden-WĂŒrttemberg and North Rhine-Westphalia, both of which recently amended their state police laws to enable or expand the use of Palantir. When comparing the new provisions in Section 47a PolG BW and Section 23 (6), (6a) PolG NW, it is interesting to note that the two federal states take very different approaches. Baden-WĂŒrttemberg opted for a graduated approach, specifying which data categories are excluded, included, or, if necessary, added as supplementary information to the analysis. Data from residential surveillance and online searches – generally considered the most serious interferences with fundamental rights in police data collection law – are excluded by the law. Regularly included are case processing data (criminal complaints, investigation reports, notes with data from informants and witnesses), case data (mainly data on persons involved in criminal investigations and their contacts), and data from police information systems. In addition, telecommunication traffic data (e.g. who called whom, location data), data from evidence, data from non-state databases or from separately maintained state registers, and data from separately stored internet sources may be included on a supplementary basis, where necessary, in individual cases. The inclusion of traffic data from cell site queries and the content of monitored telecommunications is only permitted in cases involving a concrete or specific danger (Section 47a (3) PolG BW).

North Rhine-Westphalia, on the other hand, refrains from such detailed regulations and merely stipulates that data from residential surveillance or online searches may only be included if this is essential to avert a present danger to the life, body or liberty of a person (Section 23 (6a) Sentence 4 PolG NW). Otherwise, the state law does not contain any provisions. It even allows the use of self-learning systems, which had previously been prohibited, thereby further interfering with fundamental rights. With such carte blanche for automated data analysis, the parliament in North Rhine-Westphalia leaves it to the administration to regulate the essential requirements for the use of AI in internal guidelines. This does not comply with the constitutional requirements outlined above. This comparison shows how differently two states deal with the risks identified in the use of AI by the police, despite clear guidance by the Federal Constitutional Court. A look at other European countries confirms that legislation on police AI seems to be shaped more by current political events rather than by a coherent legal approach.

Police Use of AI in France and Luxembourg

The legislative frictions across Germany reflect a political will to make automated data analysis fit within constitutional boundaries. Although such political effort has not yet been observed in France and Luxembourg, recent legislative developments in both countries show a determination to integrate AI tools into policing – albeit through a narrower regulatory focus on automated video analysis.

France moved particularly fast in regulating police AI uses against the backdrop of a sustained terrorist threat that can be traced back to major attacks such as the 2015 Bataclan massacre. Ahead of the 2024 Olympic and Paralympic Games, the French legislature adopted the loi n° 2023-380 du 19 mai 2023 (“Loi JOP 2024”), which, among several exceptional security measures, authorised experimentation with algorithmic video-analysis for the purpose of detecting predefined security-relevant events in public spaces such as abandoned objects, unusual crowd movements, intrusions into restricted areas, or fire outbreaks.

This legal framework limited the experiment to image data only, explicitly excluding biometric identification and confining processing to a closed list of safety-related events. Although conceived as a short-term, narrowly circumscribed experiment, political momentum quickly shifted: both the Paris Police Prefecture and members of the government publicly endorsed extending the experiment until the end of 2027. The Constitutional Council blocked the extension, but only on procedural grounds, without examining the substance of the measure (unlike the German Federal Constitutional Court). In fact, it held that the extension amounted to a cavalier lĂ©gislatif (a “legislative rider”), as the initial law was adopted with the accelerated process and its extension was inserted into a bill with which the former had no connection. Crucially, the Council did not rule out a permanent application of algorithmic video analysis, thereby allowing the gradual normalisation of overly intrusive police powers.

Luxembourg has taken a more restrained approach, which reflects both the reportedly limited use of AI tools by the police and the country’s relatively low levels of complex crime. Its debate surrounding amendments to the 2018 police law focused on authorising the use of video surveillance systems in public spaces. The new article 43ter enabled the police, with the authorisation of the Ministry of Internal Security, to capture incidents in predefined zones, including through zooming and automated analysis.

As in France, the authorised processing is limited to image data expressly for prevention, detection and prosecution purposes. Yet supervisory authorities warned that these statutory limits were not sufficient to prevent broader interferences with fundamental rights. Both the National Data Protection Authority and the Consultative Commission of Human Rights raised concerns (here and here, respectively) about e.g. the absence of explicit purpose limitation tied to police missions, the lack of detailed criteria for designating surveillance zones, as well as the fact that the text regulates camera deployment but not the software operating them, leaving room for later functional upgrades (including AI-supported analysis) without renewed authorisation. While the Parliament addressed only part of this criticism, the adopted text remains flexible to accommodate future technological developments, signalling the political interest in equipping police with new powers and the use of AI-driven tools.

EU dynamics vs. Member State practices

The examples of France and Luxembourg show that the lawful scope of AI use by the police is so far determined by the interplay between targeted application of narrow frameworks and constitutional review – often in fragmented ways that fall short of human rights standards. However, examples from the German states also show that even well-founded rulings by the constitutional court do not automatically lead to uniform legislative practice. It seems that it is the task of national parliaments to strike an appropriate balance here.

At the national level, debates remain relatively hesitant and inconsistent, mainly because the implications of the EU AI Act for law enforcement are still unfolding. Once fully implemented, the Regulation is expected to clarify the conditions under which commercial and in-house tools may be used by the police, while prompting Member States to revisit their domestic legal frameworks. Eurojust’s recent mapping confirms that currently, national approaches differ among Member States. Some favour the adoption of new statutory laws, others lean towards non-binding guidelines, while a third group considers existing laws sufficient to absorb AI-driven policing. The fragmentation is not surprising given the current lack of concrete EU-level guidance. The only exception is the European Parliament’s 2021 Resolution on AI in criminal law and its use by the police and judicial authorities in criminal matters, which, though useful, remains non-binding and predates the AI Act. The Commission’s forthcoming Guidelines (as per Art. 6 (5) EU AI Act) on high-risk AI systems, expected in February 2026, may therefore play a significant role in limiting divergence among Member States.

In any foreseeable scenario, EU data protection laws – the General Data Protection Regulation and particularly the Law Enforcement Directive – will remain central, already providing a harmonised framework for processing personal data by law enforcement authorities. As such, they are solid ground for safeguarding the rights to privacy and data protection. We should closely observe if this ground will remain solid once the AI Act becomes fully operational, and as the saga of the Commission’s recently introduced (and critically seen) Digital Omnibus Package concludes.

The post Patchwork Policing appeared first on Verfassungsblog.

The Battle over the Sacred and the Profane

Sexual and reproductive rights in Europe are increasingly part of an intense struggle. This includes legal contestation through litigation and third-party interventions at, in particular, the European Court of Human Rights. It is however important to recognize that contestation also takes place in other, political and public, arenas. Interconnected actions, forming part of a broader European conservative right mission, includes political and legal action in many other arenas, including in the European as well as national parliaments.

This struggle is about a political and religious backlash to a largely secular, progressive cultural and human rights revolution. It confronts opposing sides of (transnational) civil society, who both make moral, “sacred” claims, while profaning the opponent. Here, I will first discuss the European conservative right’s mission, the sacred dimensions to this mission, and its increasingly dense transnational network. I will then exemplify cases of struggle by turning to initiatives both on the European level (the promotion of a right to abortion as part of the European Charter and the ECI campaign My Voice, My Choice) and domestic parliamentary debates (the Netherlands).

The European Right’s “sacred” mission

Struggles around sexual and reproductive rights pit more liberally, progressive-oriented or “frontlash” actors against other, including non-liberal, often radical-conservative “backlash” organizations. In the actions of the latter, religion is an explicit and core dimension. The European Right – linking a variety of right-wing populist actors with radical, religious-conservative ones – is active on various fronts in order to promote an alternative vision to what are often indicated as “woke liberalism”, ”progressive ideology”, “gender ideology”, and the alleged European liberal hegemony. The supranational project of European integration and its complex human rights regimes, both in terms of the European Union and the Council of Europe, are a core target of these groups.

The European Right’s “sacred” mission is grounded in religion and religious claims. Religion – in the form of distinctive interpretations or utilisations of Christianity – is of strategic value and is instrumentalised in variegated courses of action. It forms the background for proposals for fundamental reform of the European institutions, it is used as a justification for strengthening national sovereignty, it serves as a fundamental value basis for contesting progressive rights promotion, and it provides a key legitimation for the restriction of rights on the domestic level. Regarding rights, there are roughly five areas where radical-conservative counter-movements are predominantly active, in particular in terms of third-party interventions, but not only: a) Right to family, parental authority; b) Sexual/gender identity; c) Reproductive practices; d) Euthanasia, and e) Freedom of expression. In recent years, these areas have become increasingly contested.

The sacred and the profane

The argument here follows a cultural- and political-sociological approach, and is inspired by Durkheim and later sociologists building on his work. From this sociological perspective, radical-conservative actors seek to construct an alternative to liberal understandings of rights, by the profaning or desacralising of what they see as hegemonic, liberal understandings of rights. Contemporary “backlash movements” put the hegemonic sacred (etym. “sacer, holy, dedicated to a god”) and profane (etym. “outside of the temple”) distinctions on their heads, by criticising “sacred” civil, liberal characterisations of rights – such as the liberal emphases on universalism, individualism, equality, and emancipatory rights extensions for minority groups – and turn them into profane – i.e. polluted, impure – ones (as promoting hyper-individualism, endorsing non-natural, “deviant” forms of behaviour that defy “natural” ones). In this, radical conservatives claim the status of victims for those who hold religious, that is, Christian views.

Radical-conservative actors might be understood as heterodox movements, in that they contest the alleged hegemony of secular, liberal understandings of rights, and their main forms of institutionalisation. One often repeated argument from the radical-conservative right is that liberalism undermines the religious dimensions of societies. In this, they lay claim to their “sacred”’ commitments (“deeply held values that are non-negotiable”) and the sacrality of their positions, which denies such “sacred” status to the positions of the opposition (including liberal, pro-choice standpoints).

What is ”sacred” or “absolute” is expressed in recurrent claims in both judicial and political contexts. This includes an insistence on subsidiarity and national sovereignty, not least to protect national value (Christian) communities from European intervention. The radical-conservative right further stresses (“sacralises”) the collective over the individual, for instance, in terms of “sacrificial motherhood” (the subjection of the role of the mother to the “needs” of society, including in demographic terms), relating children’s rights and the status of the family to the best interest of the whole society, claiming euthanasia is not a strictly private matter, or safeguarding the majority’s (religious) feelings against blasphemous statements by individuals in the public sphere.

The networked European right

The “sacred” mission of radical-conservative actors is transnationally organised in various networks. One instance is a network called “Agenda Europe”, which has links to various radical-conservative actors that engage in political and legal mobilisation. In its key statement, Restoring the Natural Order (original version: 20141)), the religious, sacred dimension is justified through natural law, strongly endorsed as an antidote to the “Cultural Revolution” of the 1960s which has allegedly led to a “process of de-civilisation”. Natural law is put forward as a civilising force, while human rights are profaned as at best a pseudo-religion: “human rights documents are no absolute truths, but the outcome of a political process”. Natural law is instead ”independent of politics, or of the human will”. In fact, “[t]here is a Natural Law, which human reason can discern and understand, but which human will cannot alter” (italics added). In relation to the right to abortion, the preface of the document states that “[t]he culture of life associated with Christianity has been largely abandoned and replaced by a veritable ‘culture of death’, which, out of inner necessity, will destroy from within any society that accepts and allows it”.

A right to abortion in the EU Charter

Understood in Restoring the Natural Order as an “encouraging” recent development, one clear point of rupture in relation to the right to abortion is the reversal of the Roe v. Wade judgment (1973) by the United States Supreme Court, in Dobbs v Jackson Women’s Health Organisation (2022). In this judgment, the Supreme Court pushed the right to abortion into a more restrictive, conservative direction by rejecting abortion as a constitutional right and leaving authority to regulate to individual states. This constitutes a major turning point in the US, but equally provoked a reaction on the other side of the Atlantic, prompting attempts to safeguard achievements around the right to abortion in European states (culminating for instance in France in the constitutionalisation of the right to abortion in 2024).

On the European level, it mobilised political forces in the European Parliament to adopt a resolution that called for the recognition of the right to abortion in the European Charter of Fundamental Rights, and which explicitly stated it acted against a pushback on gender equality and SHRH [sexual and reproductive health and rights] backsliding and to constitutionally protect the rights that are under attack. In the related parliamentary debate, the initiators (of Renew) called for the entrenchment of the right to abortion in the European Charter, while opposing, right-wing actors claimed that the European Union should defend the right to life as well as children’s rights, and not promote a (profane) “culture of death”.

Rights contestation in domestic arenas

The campaign for a European right to abortion equally triggered reactions in domestic arenas. Let us take as an example the Netherlands, a country that until recently was considered a pioneer in the advancement of progressive rights. Here, two motions, initiated by the conservative-Calvinist SGP, and supported by radical-conservative and populist parties, were adopted by the Dutch parliament in March 2025. The government was asked to evaluate the consequences of the abolition of a 5-day period of reconsideration for women who want to abort, as of January 1, 2023. The second motion asked to anticipate the evaluation regarding abortion procedures (currently planned for 2028). While for the SGP the motions were to investigate into an explosive increase in abortions, according to the centre for sexual expertise “Rutgers”, the two motions could have negative implications for the right of self-determination of women.

In reaction, Dutch left-progressive actors put forward a parliamentary motion for the recognition of a right to abortion in the European Charter of Fundamental Rights as well as in the UN Covenant of Civic and Political Rights in September 2025. The intention was to safeguard (“sacralise”) the right to abortion in a world in which it is increasingly endangered. This motion provoked a further counter-move by conservative, religious political groups, to urge the government to prevent the adoption of the right to abortion in European treaties (insisting on the national prerogative to regulate abortion). According to them, countries ought to retain the sovereign right to regulate abortion in ways they see fit, while the EU allegedly is trying to impose its (profaning) values on member states in areas such as marriage, sexuality or abortion.

My Voice, My Choice Initiative

Returning to the European level, the European Citizens’ Initiative My Voice, My Choice was equally a reaction to the developments around Roe v Wade in the US, as well as to the situation in certain European countries with de jure or de facto restrictions on abortion. The ECI managed to collect over a million signatures, meaning it was successful. On 2 December, the European Parliament held a hearing with the My Voice, My Choice campaigners. And on 17 December, the Parliament voted – with 358 votes – in favour of a related motion.

The visibility of the campaign provoked a clear reaction from radical-conservative forces. In preceding months, Agenda Europe had claimed on its blog that it is “in fact a resounding defeat for the abortion lobby”, not least because the earlier “diametrically opposed” ECI One of Us gathered 1.7 million signatures in 2014. One of the promoters of this ECI claimed that “[t]his result proves once again that Europe is pro-life at its core”. The ECI depicted the liberal-progressive position in profane, impure terms, denouncing abortion as “prenatal child murder”, a call for EU-funded “abortion tourism”, and a “normalisation of baby-killing”, while understanding human dignity in the sacred terms of including the dignity of all human beings, ostensibly including “children in utero”. In the Netherlands, the pro-life organisation Schreeuw om het leven (Cry for Life) organised a petition campaign to be presented to the Dutch Commissioner Wopke Hoekstra. And in the run-up the December hearings and vote, various counter-events were organised at the EP, such “Real Choice Means Real Support” and “My Voice My Choice: A Legal, Moral and Financial Fraud”. The pro-abortion motion was accompanied 4 other motions against abortion, tabled by radical-conservative right-wing MEPs and party groups, stressing the principle of subsidiarity, the lack of EU competence, respect for national identity, and “motherhood as an essential contribution to society”.

Conclusion

The battle over the sacred and profane is evidently not a new phenomenon in Europe (just think of the debates over the preamble of the European Constitution or the Lautsi v Italy case). What does seem novel is the intensity, visibility, and active engagement in multiple arenas of increasingly well-organised radical-conservative actors, greatly facilitated by an ever more hostile international environment.

References[+]

References
↑1 In a second edition of this document, published in 2024, and made public on the organisation’s website, it is claimed in a new preface that the document was originally intended for private use of the network, and that the document was illegitimately made public by “criminal computer hackers”.

The post The Battle over the Sacred and the Profane appeared first on Verfassungsblog.

The CJEU Versus the Constitutional Tribunal in Poland

On 18 December 2025, the Court of Justice of the European Union (CJEU) handed down a momentous judgment, in which it found that the Constitutional Tribunal (CT) of Poland does not satisfy the requirements of an independent and impartial tribunal established by law, and also that through the decisions of that Tribunal Poland had failed to fulfil its obligations under the Treaty of European Union, as well as under the general principles of autonomy, primacy, effectiveness and the uniform application of EU law. It also found that Poland, through the actions of its CT, breached the principle of the binding effects of judgments of the Court of Justice.

As one can see from the very recital of the Court of Justice findings, the importance of the judgment cannot be higher. Its main significance at least for Poland, lies in the fact that, by now, two top European courts have declared that the “Constitutional Tribunal” (and from now on,  I will be placing these words in inverted commas advisedly) cannot be considered an independent, impartial court, under the two constitutive acts in the Council of Europe and the EU, respectively. Four years after the landmark decision Xero Flor v. Poland of the European Court of Human Rights, its counterpart in the EU, the CJEU, has found the Polish constitutional court to be an irregularly composed judicial body.

This is the main practical dimension of the recent CJEU’s decision, to which I will return in a moment. But I need to say a word about the second aspect of the judgment (captured in the Commission’s first two complaints, considered by the Court, related to the primacy of EU law, as violated through the “CT” judgments of 2021), which is much more “academic”, in both senses of the word.

Primacy of EU Law as a Moot Issue

It is “academic” in the sense that it has no practical consequences because, for all intents and purposes, the issue of denial of EU law’s primacy over domestic laws became moot. Since the Commission’s infringement action that triggered this judgment (15 February 2023), the government in Poland has changed hands, and it has now accepted the failure to fulfil its obligations alleged against it by the Commission in the present case. Nevertheless, the Court of Justice acted on the principle that it is for the Court to determine whether such failures exist, even if the State concerned does not deny them. True, the two outrageous judgments of the “Constitutional Tribunal” of 2021, which were the direct basis of the infringement action, are still theoretically valid, but they have no practical significance for a simple reason that no one, in Poland or in the EU, takes the current “CT” seriously. It is worth noting, as it may go down in the history of illegality in Europe, that the “Tribunal” in these two judgments of 2021 managed single-handedly to find unconstitutional (under the Polish Constitution) both some parts of certain articles of the TEU (notably, of Articles 1, 2, 4 and 19) and the CJEU’s case law interpreting these articles – thus committing an impressive double ultra-vires act!

But this aspect of the CJEU’s verdict of 18 December 2025 is also “academic” in another sense: legal scholars, especially those not directly concerned about Poland’s rule-of-law crisis, will find the reaffirmation of the meaning of EU law’s primacy and its relationship with “national identity” as referred to in Article 4(2) TEU, as giving them a tasty food for thought – even if the food in question is not particularly surprising or innovative. Perhaps the most important statement of a universal value in the long judgment is a restatement of the non-regression principle: “A Member State cannot 
 amend its legislation, or indeed its case-law, in such a way as to bring about a reduction in the protection of the value of the rule of law
.” (para. 179). And this is precisely what Poland under PiS did, using the “Tribunal” as its tool for such a reduction, by preventing Polish judges from verifying the lawfulness of the procedure for appointing judges to the new, politically controlled, chambers of the Supreme Court.

A Defective Tribunal

But this short comment on the judgment of 18 December will focus only on the first, Poland-specific aspect (as captured in the Commission’s third complaint). This is what is of particular interest for Polish public opinion and political commentariat. The Court of Justice found, predictably, that the institution that refers to itself as “Constitutional Tribunal” cannot be characterized as “an independent and impartial tribunal established by law” as required by the Treaty on the EU (Art. 19(1) second subparagraph) and the Charter of Fundamental Rights (Art. 47). This is due to (1) the irregularity of appointment of three judges in 2015 (and, consequently, their successors, of which two are currently on the Tribunal), (2) irregularities in appointment of the President of the CT in 2016 (even though her successor recently replaced her). These combined irregularities, along with the absence of three properly elected judges on the bench since 2015, have contaminated (my word, not the Court) the entire court since then.

What will be the likely reactions in Poland, and in particular in political and legal elites, to the judgment? This is a relatively easy question to answer: in today’s extreme political polarisation, two opposing camps will respond by consolidating their positions. The right-wing political opposition centred around the PiS party, which ruled from 2015-2023, will cry foul and accuse the CJEU of “once again” (allegedly) overstepping its competences by “imposing” upon a Member State certain rules on the subject matter that were never (allegedly) conferred upon the EU. This is, of course, nonsense – while the specific structure of judicial bodies such as constitutional courts is not within the scope of EU law, fundamental principles such as the rule of law and judicial independence are of great concern to the Union as a whole. (It is nicely summarised in the judgment, paras 102-3).

This critique was anticipated, and eloquently responded to, in the Opinion by Advocate General Spielmann in this case: “It is true that a Member State cannot be compelled to accede to the European Union against its will. However, once it has made the sovereign choice to accede, it must respect the ‘rules of the game’ in accordance with Article 49 TEU, which requires Member States to respect the values of the European Union after their accession – values which they have accepted freely and in full knowledge of the facts” (para 92 of the Opinion, references omitted). Be that as it may, it is certain that the verdict of the CJEU will serve the right wing to accuse the Union of breaching Poland’s sovereignty and its main judicial body of acting blatantly ultra vires.

What will the democratic parliamentary majority and the government headed by Donald Tusk make of the judgment is more interesting – and uncertain. The legislature has already established, in a parliamentary resolution of 6 March 2024, and the government has restated it even more forcefully in its Resolution of 18 December 2024, that the “Constitutional Tribunal” in its present shape and with its present actions is not fulfilling its constitutional functions and that there is a need of a “new creation of the constitutional court” (the words of the parliamentary resolution) and that “repair actions must be taken aimed at restoration of the functioning of the constitutional court” (the words of the government’s resolution). But it was not followed by any practical legislative action due to the President’s hostility to the parliamentary majority (then Andrzej Duda), who has the power of legislative veto and the power to trigger constitutional scrutiny by
 yes, the “Constitutional Tribunal”. This is precisely what President Duda did, and the “Tribunal” has, as expected, found the bill unconstitutional, thus breathlessly rejecting a principle “nemo judex in causa sua” (no one should be a judge in his/her own case).

What will the government do?

With the continuing erosion of the number of PiS-appointed judges on the “CT”, the government will likely wait until it can appoint a majority of the Court. But, with the judgment of the CJEU as its new argumentative asset, it may be willing to undertake a more radical action, and to convert its bark into a bite. Legislative changes are unlikely, due to the presidential veto, which is not overridable by the current majority. What would a “radical” action look like? “Extinguishment” of the current composition of the “Tribunal”, based on the combination of judgments of two top European courts, pronounced through a new parliamentary resolution and followed up by an executive action, is a possibility. But is it likely? I don’t think so. The government’s thinking about law oscillates between a muscular approach of disregarding the illiberal enclaves, which are the leftovers of the 2015-2023 PiS rule, and a formalistic legalism that requires scrupulous compliance with the letter of the law, whatever its pedigree or substance.

 

The post The CJEU Versus the Constitutional Tribunal in Poland appeared first on Verfassungsblog.