- The Court of Justice of the European Union delivered a judgment that challenges the primacy of the Polish Constitution in Poland.
- According to the CJEU, Member States are not empowered to assess on their own whether EU institutions, including the CJEU itself, exceed the powers conferred on them by the Treaties.
- A practical example of how absurd the consequences of the CJEU’s position can be is a recent case involving Hungary, which brought a lawsuit before the CJEU against… the CJEU itself, over an extremely arbitrary judgment it had handed down.
- In its judgment against Poland, the CJEU also manipulates public opinion, overlooking the important nuances of the Polish dispute over the Constitutional Tribunal that has been ongoing since 2015.
Less than a week before Christmas, on December 18, 2025, the Court of Justice of the European Union issued a judgment in response to the European Commission’s complaint alleging a breach of EU treaties by the Republic of Poland. This breach was said to be reflected in the judgments of the Constitutional Tribunal of July 14 (case P 7/20) and of October 7, 2021 (case K 3/21), in which the Polish Constitutional Tribunal held that the CJEU, in adjudicating on the structure of the Polish judiciary, acted ultra vires (Latin: beyond one’s powers), that is, outside the scope of its authority.
As we have already reported, the CJEU agreed with the European Commission’s position and ruled that the Republic of Poland violated treaty provisions.
It should be noted that the ruling was greeted with satisfaction by representatives of Poland’s current governing coalition, as a blow against their predecessors:
The Polish government’s stance, while saddening, is unfortunately not surprising. It is particularly reprehensible that the government of Donald Tusk, campaigning under the banner of “restoring the rule of law,” continues its line of delegitimizing the Polish Constitutional Tribunal, whose task is to safeguard that very rule of law and to prevent the executive branch of government from enacting “statutory lawlessness”—normative acts that are contrary to the Constitution. Something that the government, especially lately, has been carrying out very actively with full support from the European Commission (as, for example, in the judgment of November 12, 2025 in case U 4/25, in which the unconstitutionality of a regulation partially abolishing the principle of random assignment of court cases was declared, or in the already numerous judgments declaring the unconstitutionality of restrictions imposed by the current Minister of Education on religion classes in public schools). Thus, the Tusk government, in the name of short-term gains in the ongoing political struggle, is actively contributing to reducing the level of protection of the constitutional rights and freedoms of Polish citizens.
However, this is not the only negative consequence of our government adopting such a confrontational approach to politics. Perhaps even more significant—and thus more reprehensible, or even disgraceful—is the government applauding another consequence that would result from adopting the CJEU’s position. And this consequence is a serious limitation of Poland’s sovereignty, but also the sovereignty of the remaining member states of the European Union.
What the European Union is and what it is not
To begin with, it’s worth recalling what the European Union actually is. Despite assurances by its supporters that it would be an unprecedented, “one-of-a-kind” entity in history, in practice it is simply an international organization of a special kind—a union of sovereign states, that is, a confederation. It was the nation-states that created it, and it was the nation-states that ceded some of their powers to it.
This fact is confirmed by the principle of conferral, as referred to in Articles 4 and 5 of the Treaty on European Union (TEU):
In accordance with Article 5, competences not conferred upon the Union in the Treaties remain with the Member States. […] The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality. Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.
The scope of these competences is set out in Article 3 of the Treaty on the Functioning of the European Union (TFEU), which lists the EU’s exclusive competences (those in which the Member States may act only if empowered by the EU), and in Article 4 of that Treaty, which sets out the shared competences (in which the Member States may act to the extent not regulated by the Union). Importantly—in none of these areas of competence can one find any that pertains to shaping the system of the judiciary.
In the CJEU’s case law, at a relatively early stage of its development, the principle of the primacy of EU law emerged. It should be noted here, however, that no such general principle exists in any of the EU treaties ratified by the Republic of Poland (nor by other Member States)! Article 2 TFEU merely states that, in the case of exclusive competences and shared competences, European Union law has primacy over the law of the Member States, which may take legislative action in such areas only, as indicated above, with authorization from the EU (in the case of the EU’s exclusive competences) or only to the extent not regulated by EU law (in the case of shared competences). However, as also indicated above – the organization of the judiciary does not fall within any of these areas.
Moreover, in light of the Polish Constitution (as well as those of many other Member States), it is clear that EU law does not enjoy any abstract and absolute primacy over the Polish legal order. Whereas Article 90(1) of Poland’s Constitution allows, on the basis of an international agreement, for the transfer to an international organization of the competences of state authorities in certain matters, as a result of which, pursuant to Article 91(3), the law enacted by such an organization applies directly and takes precedence in the event of a conflict with national law, Article 8(1) unequivocally states that:
The Constitution shall be the supreme law of the Republic of Poland.
This statement was later repeatedly expressed by the Polish Constitutional Tribunal, also before 2015, i.e., before the Law and Justice government and the disputes over competences between Brussels and Warsaw—first in the judgment of May 11, 2005 (case K 18/04), which examined the constitutionality of the Accession Treaty, and then especially in the judgment of November 24, 2010 (case K 32/09), concerning the so-called Lisbon Treaty. Moreover—in the latest judgment, as recently recalled by Supreme Court Judge Aleksander Stępkowski, it was emphasized that the transfer of competences to the EU, in accordance with Article 90(1) of the Constitution
- may concern exclusively competence in certain matters,
- may not concern competences that constitute the essence of sovereignty, which also includes the judiciary,
- may not include consent to the unilateral expansion of this scope by the EU without Poland’s express consent, given through the procedure provided for in the Constitution.
Defense of member states against usurpation by the EU
Accordingly, it should come as no surprise that a number of Member States—led by the EU’s most important and largest founding states, France and Germany—have emphasized in their legal orders that any actions undertaken by the EU outside the scope of its competences are simply invalid and not legally binding. Such actions are referred to as ultra vires, that is, as noted above, as being undertaken “beyond one’s powers.” At the time, in 2021, as a kind of supplement to the aforementioned judgments of the Polish Constitutional Tribunal from that year, a detailed review of the constitutional case law of various EU countries was conducted in this regard by experts from the Ordo Iuris Institute.
The decisions of the Polish Constitutional Tribunal at issue, contested by the CJEU, fit squarely within this doctrine. Admittedly, the CJEU, in its judgment, cited the facts that:
As regards the question whether national courts are entitled to rule on the extent of the competences conferred on the European Union and on compliance with the limits of those competences, it is true that Article 5(2) TEU states, first, that, ‘under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein’ and, second, that ‘competences not conferred upon the Union in the Treaties remain with the Member States.’ That principle is also enshrined in Article 4(1) TEU.
In addition, under the first sentence of Article 13(2) TEU, each institution is to act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them.
However, the CJEU immediately countered these facts in the subsequent points, claiming that:
However, contrary to the view that the Trybunał Konstytucyjny (Constitutional Court) appears to take in the judgments at issue, the rules and principles recalled in the preceding two paragraphs do not permit national courts or tribunals to rule unilaterally and definitively on the extent of the competences conferred on the European Union or on compliance with the limits of those competences.
213 While the determination of the scope of the European Union’s competences, as well as the review of compliance with the limits of those competences, necessarily involves interpreting the provisions of the Treaties, the Court alone has jurisdiction to provide the definitive and binding interpretation of those provisions in the same way as for all other provisions of EU law.
214 In those circumstances, to recognise that national courts have jurisdiction enabling them to rule definitively on the extent of the competences conferred on the European Union and on compliance with the limits of those competences would be incompatible with the nature of EU law in several respects.
215 In that regard, first, it follows from settled case-law that the Treaties do not confer on national courts, in the complete system of legal remedies established by those Treaties, the power to declare acts of the EU institutions invalid or to give the definitive interpretation of EU law (see, to that effect, judgments of 21 December 2011, Air Transport Association of America and Others, C‑366/10, EU:C:2011:864, paragraph 47 and the case-law cited, and of 22 February 2022, RS (Effect of the decisions of a constitutional court), C‑430/21, EU:C:2022:99, paragraph 52 and the case-law cited).
In essence, the CJEU’s position undermines any effectiveness of the principle of conferral, completely reversing the relationship between the Union and the Member States. Since, according to the CJEU, only the EU institutions themselves may assess the limits of the competences conferred on them by the states, this means that—once they have agreed to transfer to the EU competences only in certain matters—the states in effect agree to transfer to it competences in any matter that the CJEU deems appropriate, thereby completely losing control over the future transfer of competences to the EU.
Agreeing to such a decision would mean agreeing to recognize the European Union’s sovereignty over its member states. All the more so because, in the same judgment, the CJEU, invoking the extra-treaty (as indicated above) principle of the absolute primacy of EU law, stated (in paragraph 171) that:
Thus, by virtue of the principle of the primacy of EU law, a Member State’s reliance on rules of national law, even of a constitutional nature, cannot be allowed to undermine the unity and effectiveness of EU law. In accordance with settled case-law, the effects of the principle of the primacy of EU law are binding on all the bodies of a Member State, without, inter alia, provisions of domestic law, including constitutional provisions, being able to prevent that (judgments of 21 December 2021, Euro Box Promotion and Others, C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, paragraph 251, and of 16 January 2024, Österreichische Datenschutzbehörde, C‑33/22, EU:C:2024:46, paragraph 70 and the case-law cited)
The CJEU’s position is not only contrary to the position of the Polish Constitutional Tribunal, as expressed in a 2010 judgment—well before any controversies regarding its composition and case law—but also directly contrary to Article 8(1) of the Constitution of the Republic of Poland (and contrary to the constitutions of most, if not all, other member states of the European Union). It is all the more reprehensible that the government of Donald Tusk is praising this ruling.
Just how absurd it is to adopt the position advanced by the CJEU (according to which that Court would be the final instance in every case, leaving Member States completely defenseless) is evident in a very recent case in which Hungary lodged a complaint with the CJEU… against a CJEU judgment!
Specifically, in its judgment of June 13, 2024 (in case C‑123/22), the CJEU, in response to the European Commission’s complaint requesting that a financial penalty be imposed on Hungary for failure to fulfill its obligations as a Member State, in an extremely arbitrary manner and without any basis, increased the amount of that penalty, which had been set by the Commission on the basis of the communication laying down the rules for calculating those penalties, to an absurdly high level, significantly exceeding the upper range of penalties provided for in the communication.
Unfortunately, the only EU body that will ultimately adjudicate this complaint is the CJEU itself (first at first instance through its General Court, and, in the event of an appeal, directly by the Court of Justice itself).
As Jacek Saryusz-Wolski, a Polish diplomat, Member of the European Parliament (MEP) from June 2004 and former vice president of the European Parliament (2004–2007) rightly points out, in this context it is not only advisable but indeed necessary to have a procedure under which it would be possible to challenge unlawful acts committed by the CJEU, including ensuring its compliance with the principles of conferral and subsidiarity. As long as EU law itself does not provide for such a procedure (if it would even be capable of ensuring it effectively), this role must be performed by the judiciaries of the individual Member States, in particular their constitutional courts.
CJEU manipulation regarding the dispute over the Polish Constitutional Tribunal
As a side note to the foregoing considerations regarding the relationship between EU law and national law, it should also be observed that, in its judgment, the CJEU mischaracterizes the facts surrounding the dispute over Poland’s Constitutional Tribunal. This dispute has been ongoing since 2015 and, in essence, continues to this day. It is precisely this dispute that has been used by the European Commission and the CJEU to establish a precedent that serves the ongoing transformation of the European Union through case law.
In the operative part of its judgment, the CJEU states that:
Since the Trybunał Konstytucyjny (Constitutional Court) does not meet the requirements of an independent and impartial tribunal previously established by law, on account of irregularities in the procedures for the appointment of three of its members in December 2015 and of its President in December 2016, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU.
Setting aside the fact that the above remarks are of a strictly historical nature (since neither the court’s president nor the three judges referred to in this point no longer sit on the Constitutional Tribunal), it should be emphasized that invoking Article 19(1) TEU here is manifestly unwarranted. This provision reads as follows:
The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties the law is observed. Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.
Meanwhile, as indicated above, the issue of the organization of the Polish judiciary, including the organization and composition of the Polish Constitutional Tribunal, does not, of course, fall within the scope of fields covered by Union law.
Invoking, in this regard, the requirements of an independent and impartial court previously established by law is also inadmissible. No treaty provision provides for such requirements. They are referred to only in Article 47 of the Charter of Fundamental Rights of the European Union. At this point, however, it should be noted that by adopting the Treaty of Lisbon, Poland acceded to the so-called British Protocol, which constitutes an integral and legally binding part of that treaty. Article 1(1) of this Protocol provides that:
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.
Accordingly, the CJEU’s reliance, with respect to Poland, on such extra-treaty requirements, which in fact originate in the Charter of Fundamental Rights (even though it is not expressly cited in the operative part of the judgment), constitutes a gross overstepping of the treaty law binding on the EU.
Furthermore, it is also obvious that the CJEU has no jurisdiction to rule on whether the procedure for appointing judges to Poland’s Constitutional Tribunal complies with the Polish legal order. The CJEU, perhaps aware of this fact, attempts, in a way, to circumvent this problem by referring, in paragraph 240, to the case law of the Polish Constitutional Tribunal:
As confirmed, in particular, by the judgments of the Trybunał Konstytucyjny (Constitutional Court) of 3 and 9 December 2015, the election of H.C., L.M. and M.M. on 2 December 2015 and their taking office at the Trybunał Konstytucyjny (Constitutional Court) on 20 December 2016 were contrary to that provision.
The dispute over Poland’s Constitutional Tribunal, which served as a pretext for the CJEU’s assault on national sovereignty
However, it should be noted here that the CJEU manipulates readers when it comes to the actual content of the Polish Constitutional Tribunal’s rulings from the initial period of the dispute over its composition. Indeed, in none of those judgments did the Constitutional Tribunal explicitly state the thesis attributed to it by the CJEU. First of all, in its key judgment dated December 3 (in case K 34/15), the Constitutional Tribunal held that the transitional provision of the then Constitutional Tribunal Act, which introduced a special deadline for submitting nominations of candidates for Constitutional Tribunal judgeships for the seats to be vacated by Constitutional Tribunal judges whose terms were to expire in 2015:
- To the extent that it concerns judges of the Tribunal whose terms of office expire on November 6, 2015, it is consistent with Article 194(1) of the Constitution,
- To the extent that it concerns the judges of the Tribunal whose terms of office expire on December 2 and 8, 2015, respectively, it is inconsistent with Article 194(1) of the Constitution.
The Tribunal, while correctly holding that it follows from Article 194(1) of the Polish Constitution that the right to elect judges to the Constitutional Tribunal vests in the Sejm of the term during which the term of office of the particular judge expires, stated:
In 2015, the terms of office of five judges of the Tribunal expire—those of three of them on November 6, and those of the other two on December 2 and 8. Accordingly, the terms of office of three judges of the Tribunal expired during the term of the Seventh Sejm, and those of the remaining two judges during the term of the Eighth Sejm.
While the reasoning with respect to the judges whose terms were expiring in December (later expanded, moreover, to include considerations of alternative scenarios regarding the dates for calling the elections and convening the first sitting of the Sejm of the next term) cannot be faulted, the reasoning concerning the judges elected by the Sejm of the Seventh Term for terms commencing on November 7 is decidedly unsatisfactory. November 7 was the day that marked exactly four years since the beginning of the seventh term of the Sejm. Of course, pursuant to Article 98(1) of the Constitution, the Sejm’s term of office may be extended beyond the strictly understood four years, since it ends only on the day preceding the day on which the Sejm of the next term convenes for its first sitting. At the same time, however, pursuant to Article 109(2) of the Constitution, the President of the Republic of Poland convenes the first sitting of the Sejm for a date falling within 30 days of election day. At the time the judges were selected, it was already known that the elections had been scheduled by the President for October 25, 2015.
It was not known, however, when the President would schedule the first sitting of the Sejm of the eighth term. Admittedly, according to the prevailing view in legal doctrine, this should not occur earlier than after the expiration of the previous Sejm’s four-year term, i.e., on November 8; nevertheless, in light of the literal wording of Article 109(2) of the Constitution, especially in conjunction with Article 98(4) of the Constitution, one can also argue for the permissibility of convening the first sitting of the Sejm before that date, for example on November 6.
The foregoing considerations were not, however, addressed at all by the Constitutional Tribunal in the judgment of December 3. It can therefore be said that the Tribunal conducted a review of the constitutionality of Article 137 of the Constitutional Tribunal Act, in effect ex post, taking into account circumstances of which the legislature was not aware at the time the Act was adopted. This, however, raises certain doubts as to whether making the conformity of statutory provisions with the Constitution contingent on a future and uncertain event can be reconciled with the principle of a democratic state governed by the rule of law. Such doubts were raised in particular by Professor Robert Gwiazdowski.
Returning to the position expressed by the CJEU, it should be emphasized that one may get the impression that the Polish Constitutional Tribunal at the time quite deliberately avoided stating explicitly the legal status of Constitutional Tribunal judges elected by the 8th-term Sejm to replace judges elected by the 7th-term Sejm for terms beginning on November 7. Indeed, in its order of January 7, 2016 (in case U 8/15), the Constitutional Tribunal discontinued the proceedings to examine the constitutionality of the resolutions of the Eighth-term Sejm on recognizing the resolutions of the Seventh-term Sejm on the election of judges and on electing new judges in their place—stating that these are not normative acts and, as such, fall outside the Tribunal’s jurisdiction.
Regardless of the legal doubts, it should be stated here that the conduct of the Sejm of the Seventh term dominated by a coalition already led by the party of current PM Donald Tusk—preemptively electing judges nearly a month before the nearest terms were due to expire, essentially just to prevent the Sejm of the next term, already basically known at the time to be formed with a completely different composition, from doing so—should certainly be assessed decidedly negatively from the standpoint of political culture. At this point, it is also worth recalling two parallel historical situations.
First—and this was noted in legal scholarship in connection with the dispute at the time—the Sejm of the Third Term acted quite differently in 1997. Under the recently adopted Constitution, the number of judges of the Constitutional Tribunal was to be increased from 12 to 15 at that time. The Constitution was to enter into force on October 17, while elections were held on September 21, the result of which also heralded a completely different composition of the Sejm in the next term. Nevertheless, the Sejm of the Third Term did not attempt to elect judges to fill three new seats on the Constitutional Tribunal (TK). This was only done by the Sejm of the Fourth Term, whose first sitting was scheduled for October 20–November 6. Thus, for about a month and a half, three seats on the Constitutional Tribunal remained vacant.
Secondly—entirely at odds with that positive precedent—the actions of the Sejm of the Seventh term in the fall of 2015, by contrast, recall the infamous decision of the President of the United States of America, John Adams, who, after losing the election, during the final dozen or so days of his tenure, secured the passage of the Judiciary Act of 1801, on the basis of which he subsequently appointed judges to newly created positions. The final appointments were made on the night of Adams’s last day in office, hence the act was referred to by its political opponents as the “Midnight Judges Act.” In the legal literature, clear parallels were pointed out between the dispute over appointments to the Constitutional Tribunal in Poland in 2015 and that situation. In the U.S. case, ultimately those judges whose nomination process had not been fully completed before President Adams’ successor took office did not take office,the U.S. Supreme Court issued a landmark ruling in Marbury v. Madison, in which, although the legality of last-minute judicial appointments was not itself questioned, it was nevertheless stated that they had no legal remedy that could compel the new administration, which refused to complete it, to finalize the process.
It is regrettable that, in Poland’s case, instead of reaching a similar compromise, in 2015 both the Constitutional Tribunal and the then ruling majority, together with the President who supported the latter, chose a sharp confrontation—one that has ultimately, in the long term, harmed most—at least for now—Poland’s sovereignty, and in fact the sovereignty of all European Union member states.
How the CJEU is destroying the European Union
Indeed, when Poland, no longer governed by Law and Justice but by Donald Tusk’s Brussels-backed left-liberal camp, voluntarily cedes its sovereignty by submitting to an unlawful CJEU ruling, the CJEU is counting on thereby setting a precedent for all EU member states.
However, sooner or later there will certainly be countries that will not want to comply with it. If some countries refuse to comply with CJEU rulings in some cases, others will begin refusing in different cases.
That is how confederations unravel.
Image source: iStock.
