- In its judgment in case C‑521/21, the Court of Justice of the European Union (CJEU) held that a judge appointed in Poland under the rules in force since 2018 (following the judicial reform implemented by the Law and Justice government and contested by the European Commission and the then Polish opposition) cannot automatically be regarded as lacking “independence and impartiality.” This thesis challenges the position of Waldemar Żurek, the Minister of Justice in Donald Tusk’s government, who calls for removing the vast majority of such judges from office and annulling the judgments they have issued until now.
- At the same time, the CJEU suggested that Polish courts may disregard the binding national provisions (as well as the judgments of the Polish Constitutional Tribunal relating to them) concerning the lack of possibility of recusing a judge due to the timing of the judge’s appointment. On this occasion, the CJEU again affirmed the primacy of EU law over the Polish Constitution and arrogated to itself the right to adjudicate on matters concerning the organization of the judiciary in the Member States, which the Polish Constitutional Tribunal had previously deemed ultra vires actions of the CJEU.
- It should indeed be clearly emphasized once again that the European Union has no competence to decide on the organization of the Polish judiciary or of the judiciary of any other EU member state and that such CJEU decisions should not be applied by Polish courts.
On March 24, 2026, the Court of Justice of the European Union delivered the judgment in Case C‑521/21. The judgment was a response to the request for a preliminary ruling from the Poznań-Stare Miasto District Court in Poznań, made in the context of a civil dispute. The presiding judge of the adjudicating panel was Judge Bartłomiej Przymusiński, the current president of the judges’ association “Iustitia.” This association is known for having been involved for years in a political dispute on the side of the current government against the judicial reforms passed by the Polish parliament in 2017.
The questions asked essentially concerned two issues:
- whether judges appointed since 2018 (i.e., upon the motion of the National Council of the Judiciary—NCJ—whose judicial members are elected by the Sejm of the Republic of Poland) are judges under EU law;
- Does EU law allow judges to ignore the laws in force in Poland and the rulings of the Constitutional Tribunal that limit the ability to examine a judge’s “independence and impartiality,” and thus allow them to examine those attributes on their own without an explicit legal basis?
Challenging the narrative about “neo-judges”
The CJEU’s response in the first case may, at first glance, come as a pleasant surprise. Specifically, the CJEU held that:
[EU law provisions] must be interpreted as not precluding classification as an ‘independent and impartial tribunal’ of a judicial panel consisting of a single judge who was appointed to that post following an appointment procedure characterised by the fact that, […] that judge’s candidature was recommended by a body that does not provide sufficient guarantees of independence to dispel all reasonable doubt in the minds of individuals as to the regularity of procedures for the appointment of judges in which that body is involved, […].
As noted above, this question essentially concerned whether judges appointed in Poland since 2018, on the recommendation of the NCJ, which, according to the current ruling camp, has “lost its constitutional identity,” can be regarded as judges under EU law at all. The answer to the question as posed was therefore positive: it does not follow from the mere fact that a judge was appointed on a motion by the NCJ, the majority of whose members were elected by Parliament, that such a judge automatically cannot be independent and impartial.
It is worth emphasizing at this point that this is not a new position. As early as in the judgment of 22 February 2022 in Joined Cases C-562/21 PPU and C-563/21 PPU, the CJEU held that:
Thus, the fact that a body, such as a national council of the judiciary, which is involved in the procedure for the appointment of judges is, for the most part, made up of members chosen by the legislature cannot, in itself, give rise to any doubt as to the independence of the judges appointed at the end of that procedure (see, to that effect judgment of 9 July 2020, Land Hessen, C-272/19, EU:C:2020:535, paragraphs 55 and 56).
A similar position with regard strictly to the Polish National Court Register (KRS) was also taken by the European Commission.
In light of the above, it is once again confirmed that the narrative of the current government about the “loss of constitutional identity” by the NCJ and, consequently, about depriving judges appointed by the President of the Republic of Poland at its request of the status of judges within the meaning of the Polish Constitution is entirely unfounded, since not only does it lack support in domestic law (including, in particular, in the Constitution, as the Constitutional Tribunal unequivocally stated in its judgment of March 25, 2019), but it also lacks support in EU law (leaving aside for the moment the lack of competence of the European Union in matters of the organization of the judiciary in EU Member States).
One would therefore expect that Donald Tusk’s government will, without delay, withdraw the draft law, currently being processed by Parliament, “on restoring the right to an independent and impartial court established under the law by regulating the effects of the resolutions of the National Council of the Judiciary adopted in 2018-2025”, which provides for the removal of the majority of judges appointed since 2018 from their offices by operation of law—in violation of the unambiguous wording of Article 180 of the Constitution, which states:
1. Judges shall not be removable.
2. Recall of a judge from office, suspension from office, transfer to another bench or position against his will, may only occur by virtue of a court judgment and only in those instances prescribed in statute.
The CJEU encourages judges to act without a legal basis and challenges the primacy of the Polish Constitution.
Despite the positive reactions the Tribunal’s first response may elicit, one definitely cannot say the same about the second, which cannot simply be glossed over. The CJEU held that:
[provisions of EU law] must be interpreted as precluding legislation of a Member State and case-law of that Member State’s constitutional court interpreting that legislation that confer exclusive jurisdiction on a body to adjudicate on an application seeking the recusal of a judge on the basis of the circumstances in which that judge was appointed, while depriving that body of the power to examine that application if it challenges the lawfulness of the procedure for the appointment of that judge. It is for the national court hearing such an application for recusal to disapply that legislation, as interpreted in that case-law, and to examine the lawfulness of that judge’s appointment, in particular by ascertaining whether that judge meets the requirement of a “court previously established by law” and, as the case may be, by ruling that that judge should be recused where any potential irregularities vitiating that appointment entail a failure to meet that requirement.
In essence, the CJEU held that Polish courts could simply ignore Poland’s currently binding provisions, under which (e.g., Article 42a of the Law on the System of Common Courts), the assessment of whether a judge meets the requirements of independence and impartiality is possible only in the case of:
if, in the circumstances of the particular case, this may lead to a breach of the standard of independence or impartiality that affects the outcome of the case, taking into account the circumstances relating to the entitled person and the nature of the case.
Furthermore, such a motion may be filed only within one week from the date on which the person entitled to file the motion is notified of the composition of the adjudicating panel. A motion filed after this time limit shall be left unexamined.
An attempt to disqualify a judge from adjudicating on the basis of general provisions—whether ex officio or upon a party’s motion—solely on account of the timing of his appointment, disregarding the foregoing requirements—has been repeatedly found inadmissible by the Polish Constitutional Tribunal.
Meanwhile, the CJEU, invoking the extra-treaty “principle of the primacy of EU law,” under which EU law should take precedence even over the constitutions of the Member States, held that Polish courts should simply ignore the judgments of the Polish Constitutional Tribunal and, independently, in a highly arbitrary manner, assess the independence and impartiality of other judges:
Thus, […] the principle of the primacy of EU law requires national courts that are called upon to apply EU law, in the exercise of their jurisdiction, to disapply, of their own motion, the provisions of national law […] whether they are of a legislative or constitutional origin, and it is not necessary for those courts to request or await the prior setting aside of such provisions by legislative or other constitutional means […]. In the present case, […] that court must disapply the Polish legislation, as interpreted in particular by the Trybunał Konstytucyjny (Constitutional Court), that prohibits it from examining the lawfulness of that appointment […] in order for that referring court to carry out that examination itself and draw the appropriate inferences, by ruling, as the case may be, that the judge in question should be recused.
Thus, the European Court once again encouraged Polish courts to act contrary to both Article 8(1) of their country’s Constitution The Constitution shall be the supreme law of the Republic of Poland– and its Article 7 – The organs of public authority shall function on the basis of, and within the limits of, the law.
Compliance by courts with the above theses of the CJEU would not only be unlawful, but would also plainly lead to significant divergence in case law as to when a judge’s recusal is permissible on the above basis, and consequently to significant prolongation of proceedings, in which the counsel for a party seeking to delay the issuance of a judgment could, as a tactic, file motions to recuse judges appointed since 2018 solely to lengthen the proceedings.
Summary
The CJEU judgment does not constitute a significant breakthrough in the dispute between the Republic of Poland and the European Union as to who has competence in matters concerning the organization of the judiciary. On the one hand, this judgment (which, incidentally, is fully consistent with the opinion of the CJEU Advocate General Dean Spielmann prepared in this case, which we commented earlier) points to the groundlessness of the most egregious claims and demands of the current Polish Minister of Justice or of the judges’ association “Iustitia,” according to which judges appointed since 2018 are not judges within the meaning of either the Constitution or EU law – and thus they can be deprived of their offices and their judgments can be set aside by operation of law.
On the other hand, in this judgment the CJEU maintains its position on the primacy of EU law over the Constitution of the Republic of Poland (and, consequently, over the constitutions of the other Member States) and calls on Polish judges to ignore the Constitutional Tribunal’s rulings, as well as suggesting that they may independently examine the circumstances of the appointment of other judges without an express legal basis. The CJEU also invokes in particular the Charter of Fundamental Rights of the EU, while completely ignoring the so-called British Protocol to the Treaty of Lisbon – legally binding on both Poland and the EU – according to which:
The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.
Thus, this judgment constitutes another step by the EU leading to the deepening of the crisis in the Polish judiciary and may be applied in a way that contributes to the restriction of the right to a court, as referred to in Article 45 of the Constitution, including, in particular, with respect to the aspect of the right to:
a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court.
It is therefore appropriate at this point to recall once again what the Polish Supreme Court so emphatically stated in its resolution of December 3, 2025:
The Republic of Poland has not conferred on the institutions of the European Union or any other international organization the authority to enact rules governing the organization and functioning of the national judiciary, nor to determine the scope of their application.
Image source: iStock.
