Weekend Edition Nº151

A CONVERSATION WITH POLISH AND EUROPEAN JUDGE

IGOR TULEYA

BY JOHN MORIJN

A CONVERSATION WITH POLISH AND EUROPEAN JUDGE

IGOR TULEYA

BY JOHN MORIJN

Igor Tuleya, a judge at the Warsaw District Court, has become one of Poland’s and Europe’s bestknown judges. He has been harassed and put under tremendous pressure by the Polish government for several years. is led to his disciplinary suspension by the now defunct Disciplinary Chamber of the Polish Supreme Court, which both the European Court of Human Rights (2) and the Court of Justice of the European Union (3) have declared did not constitute an independent and impartial court established by law – making any of its pronouncements null and void. Recently Igor Tuleya was reinstated. Tuleya is a member of IUSTITIA, the largest association of Polish judges He remains active and vocal forruleoflawprotection.

On 6 July 2023 Tuleya and his lawyers from the NGO (Free Courts), won a case Wolne Sądy brought before the European Court of Human Rights (4), which found violations of Articles 6(1), 8 and 10 of the European Convention on Human Rights (ECHR) in regard to the Polish disciplinary regime. On 13 July 2023, the Grand Chamber of the CourtofJusticeoftheEUalsoprovidedastronglyrule of law protective reply to preliminary questions Judge Tuleya had put before it (5) Tuleya had submied the questions minutes aer the Disciplinary Chamber of the Polish Supreme Court pronounced his suspension. We talked to him on 14 July 2023, the dayaerthesecondjudgment

1.JohnMorijnisprofessorinlawandpoliticsofinternationalrelationsattheUniversityofGroningenFacultyofLaw IgorTuleyaisajudgeinthecriminallawsection oftheWarsawDistrictCourt.

2. ,Reczkowiczv Poland(application no 43447/19,CE:ECHR:2021:0722JUD004344719).

JudgmentoftheECtHR of22July2021

3. , A K (Independence of the Disciplinary Chamber of the Supreme Court) (Joined Cases C-585/18, Judgment of the Court of Justice of 19 November 2019 C-624/18 and C-625/18, EU:C:2019:982) and , Commission v. Poland (Disciplinary Regime for Judges), Judgment of the Court of Justice of 15 July 2021 C-791/19,EU:C:2021:596.

4. ,Tuleyav Poland(applicationsnos 21181/19and51751/20,CE:ECHR:2023:0706JUD002118119

JudgmentoftheECtHR of6July2023

5. , YP and others (liing of immunity and suspension of judge), (Joined Cases C-615/20 and C-671/20, Judgment of the Court of Justice of 13 July 2023 EU:C:2023:562.

MIŁOSZ PIEŃKOWSKI CC BY-SA 4.0

John Morijn (JM): Speaking to you today is a special pleasure, Igor. I think you are the rst ever national judge to have rulings in their favour within the same week by the two highest European courts. is is not a regular interview. I am not a journalist– we met several times, and you did me the honour of writing the preface to my inaugural lecture last year. Let us have a chat about your two cases –not about the techniquebutaboutthecontext.Aboutwhatdrivesyouandwhatyou andotherPolishjudgesdotogetintouchwithPolishcitizens.And,nally,aboutcross-bordersolidarityindefendingtheruleoflaw.

Wherewereyouwhenyouheardabouttheverdictsinyourtwocases?

IgorTuleya(IT): Yesterday I was working as a judge. In between hearings congratulatory text messages started coming in e same happened with the judgment of the European Court of Human Rights. e outcome of both were, of course, a mystery to me, so I was nervous. Especially about the judgment of the Court of Justice. Scholars and authorities had no doubts about what rulings might come, but I was particularly anxious because I had asked a preliminary question once in 2018 and then the Luxembourg Court refused to answer, saying my concerns were hypothetical (6). Of course, this time the question was absolutely not hypothetical. You all were eyewitnesses as I asked these questions, because it was lmed for the documentary as the Supreme Court’s Discipli- Judges Under Pressure naryChamberwasstillinitshearingwhenIsentthem.

JM:InthedocumentaryyoumentionaboutreferringquestionstoLuxembourg that you did so ‘because it is the last thing I can do’? Did youhaveanyconcreteexpectations?

IT: It seems to me that Polish citizens and lawyers, in this initial phase of the Rule of Law crisis in Poland, had a sense of loneliness and oblivion before the European institutions. We had tremendous support from Europeans, for example from the Dutch, while the European institutions were turning away from us. I had the impression that it was difficult for us to convince EU institutions that Poles feel European, that Poland is part of Europe and Polish courts are European courts. I even oen repeated this sentence: just as in 1939 Europe didn't want to die for Gdansk, so now in 2020noonewilldieforthePolishRuleofLaw.

Polish citizens and lawyers, in this initial phase of the Rule of Law crisis in Poland, had a sense of loneliness and oblivion before the European institutions

6. ,MiastoŁowicz(JoinedCases558/18andC-563/18,EU:C:2020:234. JudgmentoftheCourtofJusticeof26March2020

PHOTO CREDIT, JOHN MORIJN, 10 OCTOBER 2021

We hoped that other European judges would someday also be able to use these rulings we were initiating, that this Polish example could also be some kind of memento, a warning to other European countries

JM: Can you explain what brought you to go to both Strasbourg and Luxembourg? Was the motivation the same for bothcases?

IT: Polish judges have been ling many complaints to Strasbourg and preliminary questions to Luxembourg ey have been trying to show internationally how this Polish situation is, how the Rule of Law is being destroyed. So, the motivation was similar. Especially since our complaints to the Strasbourg or preliminaryquestionsarequitesimilar

ere are close to 400 complaints in Strasbourg Many preliminary questions asked by Polish courts are quite similar too. So much so that the judgment that came down in Luxembourg yesterday was an answer to two questions, mine and my colleague Judge Gąciarek’s, as they were related. We hoped that, if someday the European courts would start answering our questions or examining these complaints, it could also be a benet for European judges. Just as we in Poland constantly cite the 2016 Strasbourg judgment concerning Hungarian judge Baka (7), or the 1999 ruling in Wille vs. Liechtenstein (8). We hoped that other European judges would someday also be able to use these rulings we were initiating, that this Polish example could also be some kindofmemento,awarningtootherEuropeancountries.

JM:Howdoyoufeelabouthavingwonbothcases?

IT: ese rulings do not concern me as an individual winner. Sure, this is my satisfaction. On the other hand, I am convinced, and I have been repeating this publicly for a week, that this is a joint victory of citizens in Poland, who for eight years have been defending the courts and lawyers Without this European and civic support in our country, the courts would have long been subordinated to politics. is is the right method and the answer to how to defend the rule of law in any country It must be the cooperation of citizens, lawyers, aorneys, prosecutors, judges plus, of course, the support of the scientic world and the support of the defenders of the rule of law abroad.

7. ,Bakav Hungary(application no.20261/12,CE:ECHR:2016:0623JUD002026112).

JudgmentoftheECtHR of23June2016

JudgmentoftheECtHR of18October1999

8. ,Willev.Liechtenstein(application no.28396/95,CE:ECHR:1999:1028JUD002839695).

JM: We talked about the present, I would like to go back to the past. Do you remember when, for the rst time, you had a feeling there was a real tension between what your conscience and professional judgmenttoldyouandwhatwasexpectedbypoliticalorotheractors?

IT: It seems to me that such situations accompany every judge from the beginning of his career. Practically from time immemorial I have heard some comments from disgruntled politicians and the media about judgments But, of course, in recent years there has been a total aack. Politicians of the ruling party had no brakes to either aack the selement or directly say what the verdict should be. Sure enough, the paerns resembled what is happening in Turkey. Judges who ed Turkey and live in Europe said it looks similar there. A politician gives a sign, the government media picks up the aack, a social media aack goes parallel. ere is also aggression in publicplaces,onthestreets,buses,andsoon.

JM:Iamcuriousaboutthethoughtprocessgoingoninyourhead.Didyoutalkaboutthatwithothers,or didyoujustfollowyourowncompassintuitively?

IT:eindividual,whenconfrontedwiththeState,ishelpless.Evenifwewerethesmartestlawyerbutactedalone, we would lose. e strength lies in such team action. Teamwork and such as I described –citizens, lawyers andabroad.

e individual, when confronted with the State, is helpless. Even if we were the smartest lawyer but acted alone, we would lose. e strength lies in such team action

JM:Istheresomethingthat,orsomeonewhoinspiredyoutotakeastand?

IT: (inks for a while). I would probably be able to identify such people. But probably the most important thing now is that inner voice. at the moment I would act against my own conscience, if I were afraid to make some kind of ruling that is in accordance with the law, that is in accordance with my conscience, but I am aware thatthiswillinvolveanaackonme,ifIwereafraidofthis,Icouldnotbeajudge.

JM:Backtothepresent:Whatareyoudoingnow?Areyoufullybacktowork?

IT:Iwasfortunateenoughtoreturntomypost,butothercolleaguesarestillnotallowedtoadjudicateoraresubjected to other harassment. Judge Juszczyszyn is still not adjudicating, Judge Gąciarek, who was unsuspended aer being suspended by the irregular Disciplinary Chamber, has been moved to clerical work. I am adjudicating, but it feels like I am siing on a powder keg. I have no doubt that today the Polish government does not applythisrepressionasopenlyasitdidearlyon,becauseitisstillcountingonEuropeanmoney.Itisonlyamaer oftimewhensuchastrongaackwilloccuragain.Ihavenodoubtshere.

PHOTO CREDIT: PJOTR WIESE, 24 JUNE 2022

JM:Youspendalotofyourfreetimeparticipatingwithotherjudgesinthe‘ ’.Whatkindofpro-TourdeKonstytucja jectisthat?Whatarethequestionsyougetmostfromcitizens?

IT: Even before the ‘Constitution Tour’ there was the concept of the Citizen Judge, who does not close his activity to the courtroom but goes out to the citizens and talks to them Not feeling and behaving only ex cathedra but listening more to how citizens see the justice system, what they would changeinit.e‘ConstitutionTour’cameupasanideathreeyears ago and it is a citizen initiative. e questions are diverse. People want to talk about legal institutions, civil, criminal, administrative law, which they don't understand. ey ask about constitutional issues. On the other hand, the third edition of the tour, the one that is ongoing, has to do with election law. Only we, of course, do not do politics, do not agitate, but explainthenuancesofelectorallaw.

JM: Has participation in this project changed your perspective on the challenges to Polish and European societies in terms of defending liberal democracy, and if so, whatway?

IT: Certainly. e current situation in Poland made me and many Poles realise that democracy is something fragile. You must take care of it and think about it every day e Polish example shows that 30 years of democracy is very short, too short for democracy to take root It is necessary to ght for this democracy and talk about it, educate. It seems to me that precisely this education was lacking earlier in Poland. Comparing Poland with Israel, the protests there have already lasted for months, they are numerous is proves that Israeli societyismoreeducatedwhenitcomestodemocracy.

JM: I want to ask you about cross-border solidarity to defend the Rule of Law. What is most supportive to you and your colleagues in terms of helping you from outside of Poland?

e current situation in Poland made me and many Poles realise that democracy is something fragile. You must take care of it and think about it every day

IT: Help and support are very important Without it we would not be able to cope I am talking both about the support of Europeans and the support of scholars and judges from all over Europe, but also about the aitude of some European countries. Scholars like you John, or Laurent Pech, provided us with arguments, legal ammunition. European lawyers also supported us. We were also hugely impressed by the aitude of the Netherlands and the Scandinavian countries. I myself was in Luxembourg at one hearing, when representatives of these Member States spoke, and it was a rousing speech by these aorneys. You could see that they did not come to this hearing at the tribunal because they had to tick off hours at work. ey put their hearts and souls into these speeches. erefore cross-border assistance is not only substantive but also emotional. A big plus of these past years is the establishmentofdirectcontactswithjudgesandlawyersfromoutsidePoland.

JM: ank you very much. Is there any question that this amateur journalist should have asked, but didn't?

IT:Idon'tthinkthereissuchaquestion,John.

JM:Wonderful.ankyouverymuch/Bardzodziękujemy,Igor.

News Highlights

17 July to 21 July 2023

CourtofJusticetoruleonpotentialdiscrimination in the taxation of dividends for Gibraltar-resident companies

Monday 17 July

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Official publication was made of a request for a preliminary ruling brought by the Varhoven administrativen sad (Bulgaria) concerning the taxation of dividends distributed to companies resident in Gibraltar compared to companies in Bulgaria or other EU Member States: Entain Services (Bulgaria) (case C-287/23)

Zentiva and Zentiva Pharma challenge Commission Implementing Decision amending the marketing authorisation granted for ‘Tecdera — Dimethyl fumarate’

Monday 17 July

Official publication was made of an action for annulment brought by Zentiva and Zentiva Pharma against Commission, concerning the Commission Implementing Decision C(2023)3067(nal) of 2 May 2023 amending the marketing authorization granted by Decision C(2014)601(nal) for ‘Tecdera — Dimethyl fumarate’, a medicinal product for human use: Zentiva and Zentiva Pharma v Commission (Case T-278/23).

General Court to hear case against a grounding ban, in the context of Russia’sinvasionofUkraine

Monday 17 July

An action for annulment brought by Global 8 Airlines against an individual measure, adopted by the European Commission, regarding the inclusion of two light business jets owned by the applicant in the list subject to a grounding ban under Council Regulation 833/2014 concerning restrictive measures in view of Russia’s actions destabilizing the situation in Ukraine, was officially published in the OJ: Global 8 Airlines v Commission(T-277/23).

General Court to rule on challenge to compatibility of State aid granted to PostDenmark

Monday 17 July

Official publication of an action, whereby the annulment of Commission Decision C(2022) 5706 on the State aid implementedbyDenmarkconcerningcompensationforPostDenmark’s universal service obligation (USO), was made in the OJ: Dansk Avis Omdeling Distribution v Commission (T-195/23).

EU intensies efforts to mitigate shortages of antibiotics in the upcoming winterseason

Monday 17 July

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e European Commission, the Heads of Medicines Agencies(HMA),andtheEuropeanMedicinesAgency(EMA)issued recommendations for actions to avoid shortages of key antibiotics used to treat respiratory infections for European patientsinthenextwinterseason

Court of Justice to rule on the direct effect of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society: Can state-controlled entitiesbechallengedinnationalcourts?

Tuesday 18 July

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ArequestforapreliminaryrulingfromtheOndernemingsrechtbank Gent, afdeling Gent (Belgium) which seeks clarication from the Court of Justice, essentially on whether an entity, REPROBEL, entrusted by the State to collect and distribute fair compensation for copyrighted material, can be challenged by an individual in defense of the incompatibility of a national provision with EU law, was officially published: ReprobleSCRLvCopacoBelgiumNV(CaseC-230/23,Reprobel).

ECtHR: Violation of Article 10 ECHR in case concerning a penalty to a judge who disclosed prematurely the reasons forherdissentingopinioninMoldova

Tuesday 18 July

Court of Justice to rule on appeal concerningCommission’srefusaltopaydefaultinterestforlatepaymentofECBrenancingrate

Monday 17 July

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An appeal brought by the European Commission against the judgmentoftheGeneralCourtinCampineandCampineRecycling v Commission (T-94/20) was officially published in the OJ: Commission v Campine and Campine Recycling (C-306/ 23P).

EU-LAC Joint Declaration on a Digital Alliance: A Common Vision for InclusiveDigitalCooperation

Tuesday 18 July

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e EU and a group of Latin American and Caribbean (LAC)countriesforgedtheEU-LACDigitalAlliance,aiming to deepen their partnership and cooperation in the digital sphere, by, among other things, fostering regular bi-regional dialogue on various digital issues, including policy, internet governance, data protection, articial intelligence, and digital trade.

Preliminary references regarding the compatibility of separation of certain economic activities with freedom to provideservices,publishedintheOJ

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e ECtHR delivered its judgment in Manolev theRepublicof Moldova (no 26360/19) concerning the applicant’s dismissal from her duties as judge for having informed the press of the reasons for her dissenting opinion in a case she had heard, prior to publication of the full text of the decision rendered by theCourtofAppeal

Tuesday 18 July

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Two preliminary references concerning the compatibility of national legislation and legal situations with provisions of EU law on the freedom of establishment and, primarily, the free provision of services were published in the OJ: Tecno*37 (C-242/23);INTERZEROandOthers(C-254/23).

Court of Justice to rule on Ticket Resale Regulations in France: Preliminary Ruling Request in Le Procureur de la République de Paris v VGG AG and Others(C-190/23)

Wednesday 19 July

Official publication was made of a preliminary ruling request fromtheTribunalJudiciairedeParis(France)lodgedon17February 2023 concerning judicial investigation of ticket resale websites for sporting, cultural, and commercial events, aer strong or concordant evidence that the companies could have commied or been complicit in the commission of misleading commercial practices and unlawful resale of tickets: Le Procureur de la République de Paris v VGG AG and Others (C-190/23).

ECtHR: Failure of authorities to enforce court order aiming at protecting asylum seeker’s human dignity violates righttoafairhearing

Wednesday 19 July

e ECtHR held, in Camara v. Belgium (application no. 49255/22), that there had been: a violation of Article 6 (right toafairhearing)oftheECHR,acaseconcerninganapplicant for international protection who complained that he had been le without accommodation in Belgium, between July and November 2022, despite the decision by which the Brussels French-Language Employment Tribunal had ordered the Belgian State to grant him material assistance and provide himwithaccommodation.

Head of DG Competition accepts withdrawalofFionaScoMortonfrompositionofChiefEconomist

Wednesday 19 July

e European Commissioner for Competition, Margrethe Vestager, accepted the withdrawal of Professor Fiona Sco MortonfromthepositionofChiefEconomistatDGCompetition

EU-CELAC Summit concludes with a renewed and comprehensive cooperationbetweentheregions

Wednesday 19 July

On 17 and 18 July, the European Union and the Community of Latin American and the Caribbean states (‘CELAC’) held their 3rd Summit in Brussels, which gathered Heads of State and Governments of the EU Member States and of the 33 CELACstates.

Preliminary ruling request on ne bis in idem principle and administrative infringements in natural gas market regu-

lations

Wednesday 19 July

A preliminary ruling request from the Tribunalul București (Romania), lodged on 28 March 2023, concerning a report nding and imposing a ne to Engie România SA for administrative infringements, drawn up by the Autoritatea Națională de Reglementare în Domeniul Energiei (ANRE) (the National Energy Sector Regulatory Authority) was officially published:EngieRomânia(CaseC-205/23)

EFTA Court rules that Article 28 EEA precludes indirectly discriminatory taxation based on the criterion of residence

Wednesday 19 July

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e European Free Trade Association Court issued a judgment in Case E-11/22 RS v Steuerverwaltung des Fürstentums Liechtenstein (Liechtenstein Tax Administration) regarding the interpretation of the Agreement on the European Economic Area concerning the tax assessment of RS, a German national residing in Switzerland, for the 2019 tax year when he worked intheLiechtensteinpublicservice

Council adopts common position on proposalforcyberresilienceact

Wednesday 19 July

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e representatives of the Member States (Coreper) reached a common position on the proposed legislation regarding horizontal cybersecurity requirements for products with digital elements (cyber resilience act), aiming to ensure that products with digital components, such as connected home cameras, smart fridges, TVs, and toys, are safe before entering themarket.

EBAissuesGuidelinesforORCinrecovery planning for EU nancial institutions

ursday 20 July

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e European Banking Authority (EBA) has issued guidelines on the overall recovery capacity (ORC) in recovery planning for credit institutions and investment rms in the EU, aiming to provide a harmonized approach to determine and assess the ORC, which represents an institution's ability to restore its nancial position in severe macroeconomic and nancialstressscenarios.

Notice of open competition for administratorsintheeldofintellectualproperty,publishedintheOJ

ursday 20 July

Provisional agreement reached on EU CapitalMarketsUnion:modernizingalternative investment funds rules and theframeworkforUCITS

ursday 20 July

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Negotiators from the Council and the European Parliament reached a provisional agreement on new rules aimed at improving European capital markets and bolstering investor protectionwithintheEU

EDPB informs stakeholders on data transfers to the U.S. and reviews Japan adequacydecision

ursday 20 July

e European Data Protection Board took signicant actions during its latest plenary session to address data transfers and adequacydecisionsinrelationtotheU.SandJapan.

ESA takes four independent actions in connection to Norway’s EEA obligations

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Official publication was made of the European Personnel Selection Office’s (‘EPSO’) organization of an open competition, based on qualications and tests, to draw up a reserve list from which the European Union Intellectual Property Office (‘EUIPO’) located in Alicante, Spain, may recruit new members of the civil service as ‘administrators’ (function group AD).

ursday 20 July

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Inadditiontoissuingtworeasonedopinionsovertheincorrect implementation and application of rules in the nancial sector, ESA referred Norway to the EFTA Court following its failure to fully implement EEA rules on supplementary pension rights, issued a leer of formal notice for introducing unjustied and disproportionate restrictions on the use of temporary agency workers, and closed a complaint case following changesmadetolegislationgoverningthetaxiservicesmarket

Commission takes action to ensure timely transposition of Directives by MemberStates

ursday 20 July

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In a move to guarantee the timely and complete transposition of EU directives into national law, the Commission took action against Member States that have not communicated theirmeasuresappropriately

Annual key statistics on the functioning of the European Arrest Warrant published by the European Commission

ursday 20 July

e European Commission published its annual key statistics ontheoperationoftheEuropeanarrestwarrant(EAW),focusing on the number of warrants issued and the average amountoftimeittookforthesurrenderproceduretobecompleted

Council renews, without amendments, theEU’sterroristlist

ursday 20 July

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e Council renewed, without changes, the EU terrorist list, which sets out persons, groups, and entities subject to restrictivemeasurestocombatterrorism.

Commission Communication regarding Guidelines on the applicability of Article 101 TFEU to horizontal cooperationagreements,publishedinOJ

Friday 21 July

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In a move to guarantee the timely and complete transposition of EU directives into national law, the Commission took action against Member States that have not communicated theirmeasuresappropriately

Post-Cotonou: EU Council approves new Partnership Agreement with African,Caribbean,andPacicStates

ursday 20 July

e European Council gave the green light to a new Partnership Agreement between the European Union (EU) and the Organisation of African, Caribbean, and Pacic States (OACPS), which aims to enhance relations between the EU and its Member States and 79 African, Caribbean, and Pacic countries, covering a broad spectrum of areas such as sustainabledevelopment,humanrights,peace,andsecurity.

State aid approval decisions in the OfficialJournal

Friday 21 July

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Information on the European Commission’s decisions pursuant to Articles 107 and 108 TFEU not to raise objections against the following State aid measures was published in the OJ.

Counciladoptsandrenewsseveralsanctionspackages

ursday 20 July

Insights, Analyses & Op-Eds

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e Court of Justice, reads and the DMA: Meta’s Processing of Personal DataintheEUandAbroad

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Op-Ed on the Court of Justice’s ruling in Meta Platforms and Others(C-252/21),which,accordingtotheauthor,canbeassessed in the light of two main pillars: a national competition authority’s capacity to decide on a breach of the GDPR; and the interpretation of the legal bases under Article 6 of the GDPR, in the context of the operations undertaken by a digitalplatform

by Nathan de Arriba-Sellier

Op-Ed on the scope of application of European Climate Law and the far-reaching obligations it sets, particularly in regards to the European Central Bank and, more generally, to the exclusive competence of the European Union, namely monetarypolicy.

From permanent residence to irregularity? e loss of long-term residence in the context of intra-EU mobility (C-829/21&C-129/22) READ

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by Panagiotis Zinonos

Op-Ed on the Opinion of Advocate General Manuel Campos Sánchez-Bordona in Lin (C-107/23 PPU), which, according to the author, while following an adamantly clear structure of reasoning,groundedontheaimofguaranteeingaveryhighlevel of protection of fundamental rights, fails (most probably refuses) to address directly and unambiguously why and how a potential risk of impunity, liable to arise from the applicationofthelexmitiortothedetrimentofvalidprovisionsofEU law,couldandshouldbetoleratedinsomecases.

Compensation Claims between Banks and Consumer Borrowers of Foreign Currency Mortgage Loans under the Unfair Terms Directive aer Bank M (C-520/21)

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Articulating the requirement of dissuasive penalties to protect EU’s nancial interests and the retroactive application of the lex mitior: Another missed opportunity?

– AG Opinion in Lin (C-107/23PPU)

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