On 10 April 2025, Advocate General Dean Spielmann of the Court of Justice of the European Union presented his opinion in case C-225/22 ‘R’ S.A. v. AW ‘T’ sp. z o.o. In this case, the CJEU is to answer a question referred for a preliminary ruling by the Court of Appeal in Krakow concerning the judgment of the Chamber for Extraordinary Control and Public Affairs of the Supreme Court of 20 October 2021, file no. file I NSNc 45/21. This judgment, issued in response to an extraordinary complaint filed by the Attorney General, overturned the judgment of the Court of Appeal in Krakow of 9 November 2006, in which the court prohibited a certain entrepreneur from distributing crossword magazines with covers displaying the numbers “100”, “200”, “222”, “300”, “333”, “500” and “1000”, similar to those used by magazines distributed by another entrepreneur.
According to Article 252 of the Treaty on the Functioning of the European Union: The duty of the Advocate General is to make, in complete impartiality and independence, reasoned submissions on matters relating to cases on which the Court of Justice of the European Union is required to act, in order to assist the Court in the performance of its duties. In other words, the role of the Advocate General is to assist the Court by preparing an opinion analysing the factual and legal circumstances of the case. Such an opinion is in no way binding on the CJEU, but the Court often does take its proposals into account.
In the present case, the Court asked the Advocate General to propose an answer to the following questions asked by the Court of Appeal in Krakow:
- Should [the relevant provisions of EU law] be interpreted as meaning that a common court that fulfils the requirements imposed on a court within the meaning of EU law is not bound by a judgement of a court of last instance – composed of members appointed to the office of judge in gross violation of national law governing the procedure for nomination to the office of judge of the Supreme Court, with the result that that court does not meet the requirement of an independent and impartial court established by law and providing effective legal protection to individuals – issued as a result of an extraordinary remedy (extraordinary appeal), overturning the final decision and referring the case back to the general court for reconsideration?
- If the answer to the previous question is in the affirmative, should these provisions be interpreted to mean that lack of binding force means that
- a decision issued by a court of last instance, established in the manner described in the third question, is not a decision in the legal sense (it is a non-existent decision) within the meaning of European Union law, and an assessment in this respect may be made by a common court meeting the requirements set for a court within the meaning of EU law,
- or is the decision issued by the court of last instance, established in the manner described in question three, an existing decision, but is the common court hearing the case again entitled and obliged to refuse to apply the provisions of national law concerning the consequences of this decision, to the extent necessary to ensure effective legal protection for individuals?
These questions can be summarised as follows:
- Is the Extraordinary Control and Public Affairs Chamber of the Supreme Court an independent court under EU law?
- If not, what should a lower court do with a decision of this chamber that overturns a judgement of that lower court?
What should be emphasised (and which was, in fact, mentioned by the Ombudsman in his opinion) is that the Polish government (the previous one, before the change that took place on 13 December 2023) in response to the case being brought, raised the objection of lack of jurisdiction of the CJEU to rule, due to the fact that the organisation of the judiciary is the exclusive competence of the Member States. It should be clearly emphasised here what Professor Anna Łabno recently reminded us of on our website:
[The action of the Advocate General of the CJEU] proves […] an unprecedented violation of treaty norms. These norms clearly define the limits of the European Union’s competences, which are based on the principle of conferral. According to Article 5 of the Treaty on European Union, the Union shall only exercise those competences which have been conferred on it. Furthermore, it is understood that Article 5 should be applied in accordance with the principle of respect for the national identities of the Member States (Article 4(2) TEU) and the principle of sincere cooperation (Article 4(3) TEU). Competences not conferred upon the Union in the Treaties remain with the Member States (Article 4(1) TEU). Furthermore, each EU institution acts within the limits of the powers conferred on it in the Treaties (Article 13(2) TEU). Thus, actions of the Union that have no basis in the Treaties are inadmissible.
However, the Advocate General did not agree with this approach. He stated: This argument can easily be dismissed. According to established case law, although the organisation of the justice system in the Member States is indeed within their competence, in exercising that competence, however, Member States are obliged to fulfil their obligations under Union law; this may concern, in particular, national provisions concerning the adoption of decisions on the appointment of judges and, where appropriate, provisions concerning adequate judicial review in the context of such appointment procedures. The Ombudsman considered Article 19(1), second paragraph, of the Treaty on European Union (TEU) to be a sufficient treaty basis in this respect, which states: Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.
The Polish government also emphasised that, in its opinion, the legal issues raised in the question are fictitious, irrelevant or hypothetical, as the proceedings before the Extraordinary Control and Public Affairs Chamber did not violate the right to a court previously established by law, nor were the guarantees associated with that right violated.
The Advocate General also disagreed with this position, stating: The Court’s answer seems necessary to enable the referring court to decide whether it should proceed to reconsider the case in the main proceedings, in circumstances where the decision on which that reconsideration is based was issued by a body which cannot be considered to have been previously established by law within the meaning of the case law of the European Court of Human Rights.
Turning to the answer to the questions referred for a preliminary ruling, the Advocate General relied on the current position of the CJEU (expressed in particular in the judgments of 6 October 2021 in case C-487/19 and of 21 December 2023 in case C-718/21), according to which the Chamber of Extraordinary Control and Public Affairs does not have the status of an independent and impartial court previously established by law within the meaning of EU law. The main reason for this decision was that the judges of this chamber were appointed by the National Council of the Judiciary, a body which, in its new composition resulting from the implementation of amendments to the Act on the National Council of the Judiciary, does not provide sufficient guarantees of independence from the legislative and executive branches.
However, it should be noted here that the CJEU does not apply a uniform standard when assessing whether individual countries meet the standard of independence of judges from the executive branch. For example, in the judgment of the CJEU of 9 July 2020 in case C-272/19, the Court stated, as recalled by Dr Bartosz Lewandowski, that the judges of the national courts of Hesse – a German federal state – appointed and promoted by the Minister of Justice of the government of that country, are sufficiently independent within the meaning of the second paragraph of Article 19(1) TEU.
Returning to Case C-225/22, however, an important novum of the case, which, as the Advocate General pointed out, has not yet been the subject of a ruling by the CJEU, is whether a lower court can verify the status of a higher national court. The Advocate General suggested that the Court should answer the question referred by the referring court in this regard as follows: the national court should be able to examine whether the higher court meets the requirement of an independent and impartial court previously established by law within the meaning of that provision in circumstances where respect for that requirement could give rise to doubts, since, in the Advocate General’s opinion, this is in line with the existing case law of the CJEU.
If the Court agrees with the Ombudsman’s proposal, it will mean very serious chaos in the Polish legal system. Lower courts will simply be able to ignore the rulings of higher courts, which after all rule on the correctness of previous rulings of lower courts. In other words, citizens will be deprived of the possibility of effectively reviewing the legality of decisions made in proceedings concerning their rights and obligations. Such a situation not only does not serve the implementation of the right to a court, but is a blatant denial of this right! How else can one describe a situation in which, for example, the Regional Court can simply ignore a ruling of the Supreme Court in which the latter finds a serious violation of the law in a judgment just handed down by the Regional Court?
The Advocate General also stated in his opinion that the obligation to recognise the decision of the Chamber for Extraordinary Control and Public Affairs of the Supreme Court as non-existent (described by the Advocate General as the implementation of effective legal protection) must take precedence over the principle of res judicata (i.e. in this case, that, under Polish law, there are no legal remedies against rulings of the Supreme Court). In this regard, the Ombudsman explicitly acknowledged that what he is proposing may conflict with the judgment of the European Court of Human Rights of 1 December 2020 in the case of Ástráðsson v. Iceland, stating: It seems to follow from the judgment in Ástráðsson v. Iceland that that the irregularities in the appointment of judges, which constitute a violation of the right to a lawful court, do not affect the very existence of the decisions rendered by the defective judicial body and do not necessarily lead to the obligation to annul the decision rendered by that judicial body, especially when those decisions enjoy the force of res judicata.
In this judgment, the ECHR stated that: The finding that a court is not a ‘tribunal established by law’ can undoubtedly have serious consequences for the principles of legal certainty and the irremovability of judges, which principles must be carefully observed, bearing in mind the important purposes they serve […]. As in all cases involving a clash of fundamental principles of the Convention, a balance must be struck in such cases in order to determine whether there is a pressing need – of a substantial and significant nature – justifying a departure from the principle of legal certainty and res judicata […] and the principle of the irremovability of judges where appropriate, depending on the particular circumstances of the case. The Grand Chamber notes that, although the Chamber did not express it, it did indeed attempt to strike such a balance by introducing a ‘flagrant breach’ test, according to which only the most serious breaches of the rules governing judicial appointments would constitute a violation of the right to a court established by law, thus raising the threshold beyond which a breach of such rules would amount to a violation of Article 6(1) of the Convention. […] as time passes, as part of the necessary balancing of interests, the preservation of legal certainty will become increasingly important in relation to the right of a litigant to a ‘statutory court’. It goes without saying that the difficulties of proof that arise over time and the statutory time limits for bringing actions that may apply under the domestic law of the Contracting Parties must also be taken into account.
In the conclusion of his opinion, the Advocate General made the following recommendations to the CJEU:
- The national court should be able to examine whether the higher court meets the requirement of an independent and impartial court previously established by law within the meaning of that provision in circumstances where respect for that requirement might raise doubts;
- A national court which has delivered a judgment that is set aside by a higher court which has subsequently heard the case on appeal and referred it back to that court should disregard the decision of that body or, where such a consequence is indispensable to safeguard the primacy of Union law in the procedural position of the case, should declare the decision of the body to be non-existent if it cannot be regarded as a decision of an independent and impartial tribunal previously established by law within the meaning of the second paragraph of Article 19 1) TEU.
If the CJEU agrees with the Ombudsman’s position, it will constitute yet another interference by the Court in a matter falling within the exclusive competence of the Member States, namely the possibility of shaping their own state (including judicial) system.
This was aptly emphasised by the association for Poland in its message on platform X:
In Poland, the Constitution is binding, not the opinions of European officials. And it is the Constitution that forms the basis of our law – including the organisation of the judiciary and elections. Attempts to undermine this order should be treated as an attack on the democratic foundations of the state.
The Independent Association of Prosecutors ‘Ad vocem’, on the other hand, commented on the Advocate General’s position in a more blunt manner:
In that case, the national court should examine whether the CJEU meets the requirements of a court established by law, since it is the governments of individual states that appoint judges and they are bound by their terms of office. If it is found that the CJEU does not meet these requirements, the national court should have the right to disregard its rulings. Test after test. The behaviour of the Advocate General of the CJEU is strange, especially before the elections in Poland. A coincidence? No! It is rather part of the so-called pseudo-democratic shield, which is supposed to ensure that power is only in the hands of those who have a specific political and ideological profile.
Dr Bartosz Lewandowski, mentioned above, took the floor in a similar vein:
I am very sorry, but the fact that the independence of Polish judges in legal assessment is already being deprived and they are being obliged to ignore the rulings of the Supreme Court is a higher level of impudence on the part of the Advocate General of the CJEU. And what is the legal basis in the EU treaties that allows the CJEU to order Polish judges to do anything?
In the public domain, some concerns have also been expressed as to whether the position of the Advocate General and a possible CJEU ruling – especially if it is issued in the same vein – will not be used by the current Polish government to question the competence of the Chamber of Emergency Control and Public Affairs to rule on the validity of the upcoming presidential elections, and, as a consequence, perhaps even to question the result of the upcoming presidential elections. However, Dr Oskar Kida has clearly spoken out against this possibility, emphasising that the rulings of the CJEU can only apply to cases where EU law is applicable, and the presidential elections do not fall under this category.
In conclusion, the adoption of the Advocate General’s position will undoubtedly not help to resolve the crisis of the rule of law that we are currently facing in our country, but will instead deepen it. It should be recalled once again that in the judgment of 25 March 2019 (file ref. K 12/18), the Constitutional Tribunal clearly and definitively ruled that the current method of electing judge members of the National Council of the Judiciary by the Sejm of the Republic of Poland is in accordance with the Constitution.
