- The Court of Justice issued a ruling granting lower courts the right to ignore the rulings of the Extraordinary Review and Public Affairs Chamber of the Polish Supreme Court issued in response to extraordinary appeals.
- The CJEU has exceeded the scope of its powers, granted to the European Union by Poland in the treaties, which has already been explicitly stated by the Constitutional Tribunal in a similar case.
- Furthermore, CJEU rulings can only have an effect on matters covered by EU law (i.e. primarily economic matters) and not on the entire Polish legal system.
- However, the Minister of Justice issued a statement suggesting that the CJEU ruling implies that the Extraordinary Review and Public Affairs Chamber of the Polish Supreme Court is not a court even when it adjudicates on a matter not covered by EU law.
- Applying the CJEU ruling would not only be contrary to the Constitution, but would also deprive a number of citizens of the possibility of pursuing their rights by way of an extraordinary appeal, which is often the only legal remedy available to overturn the most scandalous court rulings.
The CJEU rules beyond its powers
Today, 4 September 2025, the Court of Justice of the European Union issued a judgment in case C-225/22 AW ‘T’, in practice concerning whether a common court may ignore a ruling of the Extraordinary Review and Public Affairs Chamber of the Polish Supreme Court issued in the context of an extraordinary appeal. We have already reported on this case at the stage of the opinion of the Advocate General of the CJEU, issued on 10 April 2025. The Advocate General, in his role, argued at the time that the Court should give an affirmative answer. It should be added that this position did not in any way refer to the merits of the case adjudicated by the Extraordinary Control and Public Affairs Chamber of the Supreme Court, concerning the graphic design of the covers of crossword puzzle magazines (one of the entities producing such magazines considered that another entity was using covers too similar to those used by it), but only to the circumstances in which the Chamber was appointed.
Unfortunately, in today’s judgment, the CJEU agreed with the Advocate General’s proposal. However, the Court’s ruling raises significant doubts as to its compatibility with the Polish Constitution. This is because the Court has de facto granted common courts the power to independently examine and decide on the status of higher courts. The press release states:
It will therefore be for the national court to examine the regularity of the appointment of the judges sitting in the panel, which issued the judgment of 20 October 2021. The presence in the relevant panel of even one judge whose appointment does not meet the specified requirements is sufficient to deprive that panel of its status as an independent and impartial court established by law within the meaning of EU law. The principle of the primacy of EU law and the binding effect of the Court’s rulings require that both national regulations and the case law of the Polish Constitutional Tribunal do not prevent such verification from being carried out. If a national court finds that a decision to refer a case back for reconsideration was issued by a panel that does not meet the requirements of EU law, that decision must be considered null and voidif this is necessary to ensure the primacy of EU law.
However, the interpretation presented by the CJEU is incompatible with Article 8(1) of the Polish Constitution, according to which:
The Constitution is the supreme law of the Republic of Poland.
– and thus takes precedence over any international agreements, including those in which Poland agreed to transfer certain competences to the European Union. This position was confirmed by the Constitutional Tribunal shortly after Poland’s accession to the EU in its judgment of 11 May 2005 (K 18/04), and then repeatedly confirmed in subsequent rulings. Thus, it is unacceptable for the CJEU to call on Polish courts to ignore the rulings issued by the Constitutional Tribunal, including in particular the judgment of 7 October 2021 (K 3/21), the operative part of which explicitly states that:
The second subparagraph of Article 19(1) and Article 2 of the Treaty on European Union, insofar as, in order to ensure effective legal protection in the fields covered by Union law and to ensure judicial independence – confer on national courts (common courts, administrative courts, military courts and the Supreme Court) competence to:
(a) review the legality of the procedure for appointing a judge, including examining the legality of the act of appointment of a judge by the President of the Republic of Poland, are inconsistent with Article 2, Article 8(1), Article 90(1) and Article 179 in conjunction with Article 144(3)(17) of the Constitution,
b) review the legality of the resolution of the National Council of the Judiciary containing a request to the President to appoint a judge, are inconsistent with Articles 2, 8(1), 90(1) and 186(1) of the Constitution,
c) the finding by a national court that the process of appointing a judge was flawed and, as a result, the refusal to recognise a person appointed to the office of judge in accordance with Article 179 of the Constitution, are inconsistent with Article 2, Article 8(1), Article 90(1) and Article 179 in conjunction with Article 144(3)(17) of the Constitution.
Today’s judgment of the Court is, unfortunately, another example of a ruling in which the CJEU acts beyond the scope of the powers conferred on the Union by the Member States. Dr Bartosz Lewandowski rightly drew attention to this problem:
In which provision of the Treaties and the Constitution of the Republic of Poland was the CJEU granted the power to assess the judicial system in Poland? In particular, in criminal cases where courts rule on the basis of Polish law, not European law? Because this is not a competence conferred on the EU, and the CJEU has been ‘pushing’ its competences for many years, which has been repeatedly criticised by the constitutional courts of Member States (e.g. Germany).
Indeed, among the exclusive competences set out in Article 3 of the Treaty on the Functioning of the European Union, or the shared competences set out in Article 4 of that Treaty, it is impossible to find one that refers to the shaping of the judicial system. On the other hand, one of the guiding, or even the most important and fundamental principle on which the European Union is based as a union of states rather than a federal stateis the principle of conferral, as defined in Articles 4 and 5 of the Treaty on European Union
Article 4
1. In accordance with Article 5, competences not conferred upon the Union in the Treaties remain with the Member States.
2. The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.
[…]
Article 5 (ex Article 5 TEC)
1. 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.
2. 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 . […]
In the preliminary ruling requested by the Court of Appeal in Krakow, which initiated the proceedings in which today’s judgment was issued, another legal basis was cited – Article 47 of the Charter of Fundamental Rights of the EU:
Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.
Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.
Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.
It should be noted here, however, that regardless of the otherwise rather general wording of this provision, which by no means explicitly gives the CJEU the right to examine the nuances of the judicial systems of Member States, as Dr Lewandowski rightly pointed out, Poland, by adopting the so-called Treaty of Lisbon, which, among other things, established the Charter of Fundamental Rights, acceded to the so-called British Protocol, which is an integral and legally binding part of that treaty.
This Protocol states that:
Article 1
1. The Charter shall not extend the ability of the Court of Justice of the European Union or any court or tribunal of Poland or the United Kingdom to find that any legislative, regulatory or administrative provisions, practices or administrative actions of Poland or the United Kingdom are incompatible with the fundamental rights, freedoms and principles set out therein.
2. In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom, except where Poland or the United Kingdom has provided for such rights in its domestic law.
Article 2
Where a provision of the Charter refers to national legislation and practices, it shall apply to Poland or the United Kingdom only in so far as the rights and principles contained in that provision are recognised by the legislation or practices of Poland or the United Kingdom
In other words, in light of the protocol, EU institutions may not invoke the Charter of Fundamental Rights against Poland in order to assert any rights or obligations that are not provided for in Polish national law.
Recognising the actions of the CJEU, when it exceeds the competences granted to the Union by Poland in the treaties, as contrary to the Constitution and thus non-binding within the Polish legal system, can already be considered an established position of the Polish Constitutional Tribunal. In addition to the aforementioned judgment of 7 October 2021, the Constitutional Tribunal expressed a similar opinion in a relatively recent judgment of 10 June 2025 in case K 10/24, concerning the establishment of an emissions trading system (the so-called ETS) in violation of the rules of the EU legislative procedure. This is in line with constitutional case law in other countries, including in particular Germany.
The Minister of Justice issues a misleading statement
However, the entire above context was completely omitted in a surprisingly short statement, considering the importance of the matter, which the Minister of Justice, Waldemar Żurek, posted on the ministry’s profile on platform X:
Apart from the fact that the term used by the Minister:
People who put on robes even though they know they are not a court
– is most applicable to the members of the State Tribunal who yesterday (3 September 2025) stormed the judges’ bench, even though they had been excluded from the case, the suggestion contained therein that the CJEU could have stated in an abstract and general manner that the Extraordinary Review and Public Affairs Chamber of the Polish Supreme Court is not a court is simply incorrect. Even if we were to leave aside all the issues described above, which indicate that the CJEU ruled beyond the limits of its competence, we must bear in mind the scope of the Court’s judgment.
As Professor Ireneusz Kamiński rightly pointed out, and as is clear from the judgment itself, its scope of application concerns only issues covered by European Union law (i.e. mainly economic law). In matters not covered by this scope, such as the issue of ruling on the validity of elections, but also criminal cases, this judgment has no effect, regardless of whether it was issued in excess of its powers or not.
This judgment cannot therefore constitute a basis for removing judges of the Extraordinary Review and Public Affairs Chamber of the Polish Supreme Court from office by means of a statute, let alone a resolution or even as part of forceful actions by the executive. This would be in direct contravention of Article 180 of the Constitution, which limits the grounds for removing a judge from office to a court ruling and only in cases specified by law.
The application of the CJEU ruling will limit citizens’ ability to assert their rights
It should also be emphasised here that if the courts and other public authorities decided to apply today’s CJEU ruling, contrary to the unequivocal position of the Constitutional Tribunal, they would not only be violating the Constitution, but would also directly contribute to lowering the standard of protection of constitutional rights and freedoms in Poland.
The ruling implies that, in matters falling within the scope of EU law, lower courts would be able to ignore the rulings of the Extraordinary Review and Public Affairs Chamber of the Polish Supreme Court issued in response to an extraordinary appeal, regardless of the substantive content of those rulings. Let us recall that the institution of extraordinary complaints is regulated by Article 89 of the Act on the Supreme Court, according to which:
§ 1. If necessary to ensure compliance with the principle of a democratic state governed by the rule of law and implementing the principles of social justice, an extraordinary appeal may be lodged against a final ruling of a common court or military court concluding proceedings in a case, provided that:
1) the ruling violates the principles or freedoms and rights of human beings and citizens set out in the Constitution or
2) the ruling grossly violates the law through its incorrect interpretation or improper application, or
3) there is an obvious contradiction between the relevant findings of the court and the content of the evidence gathered in the case
– and the ruling cannot be overturned or amended by other extraordinary appeal measures.
In other words, it is an institution that allows for the removal from legal circulation of the most grossly unlawful court rulings, which should even be considered judicial injustice. In this context, the Ombudsman, Professor Marcin Wiącek, spoke very positively about it, as we reported at the time:
Aware of these doubts, many citizens nevertheless turn to the Ombudsman with a request to lodge an extraordinary appeal. As we know, under the current legal framework, extraordinary appeals to the Supreme Court are examined by the Extraordinary Review and Public Affairs Chamber, and if I agree with the allegations made in such letters from citizens, I lodge an extraordinary appeal. Of course, in such a complaint, I point out the problems I have mentioned, presenting my position on the matter. I must say that in most cases, the Ombudsman’s extraordinary complaints are upheld by the Polish Supreme Court, and the rulings of the Extraordinary Review Chamber are enforced.
This aspect was also highlighted by Deputy Attorney General Robert Hernand, who, in a radio interview, pointed to examples of cases in which the prosecutor’s office had used the institution of extraordinary appeal:
We tried to protect the rights of citizens, for example in the case of a usurious loan in the amount of PLN 500. Imagine that the total amount to be repaid was PLN 200,000! Imagine the scale of the violation of civil rights! We also helped people who had taken out Swiss franc loans. These cases were won by the Attorney General before the Extraordinary Review and Public Affairs Chamber, which is now under such attack.
Once again, it turns out that the government’s fight to restore the rule of law is taking place at the expense not only of judges and officials who served during the previous government, but even ordinary citizens whose rights are being restricted, regardless of their political sympathies or any, even the most dubious, faults.
Summary
Finally, as a side note, it is worth mentioning that the whole situation is made even more interesting by the fact that Minister Żurek, who so eagerly refuses to grant the status of judges to those appointed since 2018, citing ‘European courts’, does not consistently apply this narrative when it is personally beneficial to him. As Dr Lewandowski pointed out today, the Minister does not question the validity of a favourable ruling he obtained in his private case, even though it was issued by just such a judge.
It would be difficult to find a more telling example of how lawless the current government’s fight for the rule of law really is.
Image source: Adobe Stock.
