CJEU Puts Itself Above National Constitutions in Landmark Case Against Poland

The case decided today by the CJEU concerns two rulings of Poland’s Constitutional Tribunal issued in 2021 that found certain provisions of the EU Treaties to be incompatible with the Polish Constitution. In its first judgment, Poland’s Constitutional Tribunal held unconstitutional the jurisdiction of Polish courts to review the legality of judicial appointments (judgment of July 14, 2021, case no. P 7/20, Journal of Laws of 2021, item 1309), and in the second judgment—the competence of the Court of Justice of the European Union to suspend provisions of Polish statutes concerning the judiciary (judgment of October 7, 2021 (case no. K 3/21, Official Journal of 2021, item 1852).

As early as July 2021, the Ordo Iuris Institute published a compilation in Polish language of the case law of selected Member States of the European Union (Germany, Italy, Denmark, the Czech Republic, Spain, France, and Romania), which unambiguously indicates that these states recognize the primacy of the constitutional law of nation-states over EU treaty law. This analysis was later translated and published in English last November.

According to Poland’s Constitutional Tribunal, the Polish Constitution precludes examination of the legality of judicial appointments and states that even if irregularities occurred in the procedure, the President of the Republic of Poland’s decision appointing someone to judicial office cures them. Meanwhile, the Court of Justice of the European Union has for several years maintained that both it and national courts may review the legality of judicial appointments for compliance with EU standards on the independence of the judiciary from the government and parliament. Consequently, the CJEU has repeatedly held that Polish courts should examine the legality of the appointment of those who the current governing EU-backed coalition led by Donald Tusk call “neo-judges,” that is, judges who were appointed after 2018 under a new procedure instituted during the Law and Justice government. Until 2018, in the procedure for selecting the 15-member judicial component from among the total of 25 members of the National Council of the Judiciary, which is responsible for selecting candidates for judicial office, judicial circles played the key role; since 2018, they have been elected by the Sejm, which is the lower house of the Polish parliament. Both of these solutions are consistent with the literal wording of Article 187(1)(2) of the Constitution of the Republic of Poland. However, the CJEU has expressed doubts as to whether judges appointed in such a manner are independent of the legislative branch.

The Polish Constitutional Tribunal found that the CJEU, by expressing such views, exceeded its competences, because Poland has never conferred upon the European Union competences in the area of the organization of the judiciary. Because the Constitution of the Republic of Poland takes precedence over EU law, Poland is not, according to the Polish Constitutional Tribunal, bound by EU standards on the independence of the courts from the government and parliament.

In December 2021, the European Commission launched the so-called infringement procedure (Article 258 of the Treaty on the Functioning of the EU), under which it assessed whether Poland had failed to comply with its treaty obligations that establish standards for the independence of courts from the government and parliament.

In 2022, the Commission found that Poland had violated these standards and brought an action before the Court of Justice of the European Union, alleging a violation of the principle of the primacy of EU law, as well as the improper composition of the Polish Constitutional Tribunal.

Three years later, on December 18, 2025, the Court of Justice of the Eu upheld the Commission’s action, finding that Poland had infringed Article 19(1), second subparagraph, of the Treaty on European Union by:

1) challenging the primacy of EU law over national constitutions;

2) questioning the binding nature of CJEU judgments concerning the judiciary;

3) maintaining an improper composition of its Constitutional Tribunal.

In the first of these cases, the CJEU thus called into question the entire previous understanding of the treaty principle of conferral (Article 5(2) TEU: “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.”) with regard to the primacy of the constitutions of the Member States—hitherto reserved by those states, not only by Poland, as also demonstrated in the above-cited analysis by the Ordo Iuris Institute from July 2021.

In the second case, as noted above, the CJEU—despite lacking competence to assess the constitutionality of statutory changes—questions whether the 2017 change in the procedure for selecting the 15 members of the National Council of the Judiciary, from a “judicial” to a “Sejm-based” mode, complies with the Constitution of the Republic of Poland. However, this is not the first time it has done so, and therefore, in this specific respect, the judgment is not groundbreaking, unlike in the other two cases, although should once more be recalled that only a country’s constitutional court—not the Court of Justice of the European Union—has the power to rule on the compliance of national laws with that country’s constitution.

The third case concerns the improper appointment of Julia Przyłębska as President of the Polish Constitutional Tribunal in 2016, as well as the improper appointment of three so-called “duplicate judges” elected in 2015 by the Eighth-term Sejm (during the Law and Justice government) to seats already filled by the Seventh-term Sejm (during the PO-PSL government). The legality of the composition of the Constitutional Tribunal is a contentious issue in Poland: some believe that the Sejm majority, dominated by Law and Justice deputies, had the right by a resolution of November 25, 2015 (Monitor Polski 2015 item 1135) to invalidate the election of judges to the Constitutional Tribunal effected by the resolution of 8 October 2015. (Monitor Polski 2015 item 1042) by the Sejm majority from the previous term, dominated by PO-PSL deputies, since this selection had not yet been confirmed through an official appointment by the President of the Republic of Poland, while others believe that it had no such right. In a controversial ruling dated December 3, 2015 (case no. K 34/15, Official Journal of 2015, item 2129) Poland’s Constitutional Tribunal found that the legal basis for the election of two of the five judges elected by the resolution of October 8, 2015, was unconstitutional, while it did not find the same with respect to the legal basis for the election of the other three judges. However, by resolutions of December 2, 2015 (Monitor Polski 2015 items 1182, 1183, 1184, 1185, 1186), the Sejm of the 9th term elected new individuals to all five positions. As for the appointment of Julia Przyłębska, the crux of the allegations is that, under the Polish Constitution, the President of the Constitutional Tribunal is appointed by the President of the Republic of Poland upon a motion by the General Assembly of Judges of the Constitutional Tribunal—whereas in her case the General Assembly did not adopt a formal resolution endorsing her candidacy, because a slim majority (8 of the 14 judges present) refused to take part in the vote. As a result, Julia Przyłębska simply sent the President of the Republic of Poland a list of the voting results, in which she received the support of a minority of the judges (5 out of 14), and the President appointed her. Since then, her status as President of the Constitutional Tribunal was contested. As of November 29, 2024, Julia Przyłębska is no longer the President of the Constitutional Tribunal (TK), and since December 9, 2024, she has been a retired judge. None of the five judges of the Constitutional Tribunal elected on December 2, 2015, still sits on the Tribunal (two died in 2017, and three—including Przyłębska—completed their nine-year terms in 2024), which renders the CJEU judgment purely historical in nature and without bearing on the Tribunal’s current composition, notwithstanding the CJEU’s lack of jurisdiction to take a position on this type of domestic legal dispute.

Today, the CJEU ruled that it alone will decide which competences have been conferred on the Union. If Poland fails to do so, the Commission will be able to bring another action before the CJEU, which this time could impose financial penalties on Poland for failure to comply with its judgment, under Article 260(2) of the Treaty on the Functioning of the European Union.

“The Court of Justice has just declared the European Union’s sovereignty over the Member States. This is a significant overreach of the CJEU’s treaty-based powers. The Treaties grant the CJEU the authority to render judgments within the limits of the competences conferred on the EU by the Member States. Today, the CJEU ruled that only the CJEU will decide which competences have been conferred on the Union. The CJEU adds that a Member State and its authorities may not assess the Union’s actions for compliance with the Treaties. If a national court (even a constitutional one) dares to assess the CJEU, it will cease to be a court. This is the end of the principle of conferral of competences; it’s the end of sovereignty, emphasizes Advocate Jerzy Kwaśniewski, the President of the Ordo Iuris Institute.

Judgment of the Grand Chamber of the Court of Justice of the European Union of 18 December 2025, C-448/23.