Rulings of illegitimate Polish Supreme Court chamber “null and void”, finds EU’s top court

Sep 5, 2025 | Business, Law, Politics

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Notes from Poland is run by a small editorial team and is published by an independent, non-profit foundation that is funded through donations from our readers. We cannot do what we do without your support.

The Court of Justice of the European Union (CJEU) has issued a new ruling confirming that a Supreme Court chamber created by Poland’s former Law and Justice (PiS) government is illegitimate and its judgements should be regarded as “null and void” due to its judges being unlawfully appointed.

The ruling has been welcomed as “extremely important” by Poland’s current justice minister, Waldemar Żurek. He says it highlights how illegitimate judges are still populating Polish courts, including the Supreme Court, and that it is time for the government to “finally put things in order”.

The ruling in question has rather unusual roots, stemming from a 20-year-old dispute between two Polish publishers over a crossword magazine. That case was settled by a court judgment issued in 2006.

However, in 2021, the Supreme Court’s chamber of extraordinary oversight and public affairs ordered that the 2006 ruling be set aside and that the case be sent back to the lower civil court for reexamination.

The oversight chamber was created under the former PiS government as part of its radical and contested overhaul of the judiciary. In 2023, the CJEU found that the chamber is “not an independent and impartial tribunal established by law”.

That is because the chamber is filled with judges nominated by the National Council of the Judiciary (KRS) – the body responsible for choosing judges – after it was overhauled by PiS in a manner that rendered it no longer independent of political influence.

 

After the civil court was asked in 2021 by the Supreme Court’s oversight chamber to reexamine the crossword dispute, it turned to the CJEU for clarification on whether it should comply with the request, given the chamber’s disputed status.

In its ruling on Thursday, the CJEU said the lower court must take into account that the oversight “chamber does not satisfy the conditions of independence, impartiality and previous establishment by law established by EU law”.

Therefore, in cases where a national court finds that “the decision to refer the case back for re-examination was delivered by a judicial panel that does not comply with the requirements of EU law, that decision would have to be declared to be null and void”, added the CJEU.

Poland’s own constitutional court, which remains stacked with PiS-era judges, has previously found that the CJEU does not have the authority to issue such rulings.

However, in its latest judgement, the EU court hit back, noting that “the principle of primacy of EU law, and the binding effects of decisions of the [EU] Court, mean that such verification [of judges] cannot be prevented either by national legislation or by the case-law of the Polish Constitutional Court”.

The CJEU’s decision could also have wider implications, given that around 2,500 judges at various levels of the court system were appointed through the KRS after it was rendered illegitimate by PiS.

“The presence, on the panel concerned, of a single judge whose appointment does not satisfy the requirements referred to is sufficient to deprive it of its status as an independent and impartial tribunal previously established by law, within the meaning of EU law,” wrote the EU court on Thursday.

Jakub Jaraczewski, a legal expert at Democracy Reporting International, notes that the new ruling highlights how Poland’s rule-of-law crisis is not just about high-profile cases of judges fighting back against mistreatment at the hands of the former PiS government.

The fact that “this case came from a crossword business fight underscores how” it is often “very mundane businesses and situations” that are impacted by the legal chaos and uncertainty, Jaraczewski told Notes from Poland.

Poland’s current government, a broad coalition led by Prime Minister Donald Tusk that replaced PiS in December 2023, has pledged to reverse PiS-era reforms and restore the independence and legitimacy of the judiciary.

However, progress in that direction was stymied by opposition from former President Andrzej Duda, who was aligned with PiS and wielded the presidential power to veto legislation. His successor, Karol Nawrocki, who is also aligned with PiS, is likely to continue blocking the government’s reforms.

Commenting on yesterday’s CJEU ruling, Żurek, the justice minister, said that “this judgement is extremely important for each of us” as it reiterates that “individuals who do not have the status of [judges] still sit on the Supreme Court”.

“We must finally put things in order,” declared Żurek, who also warned that “those who don robes knowing that they are not [judges] will have to pay from their own pockets the compensation” that Poland is ordered to pay by European courts.

The Supreme Court’s oversight chamber has drawn particular attention this year because of its role in confirming the validity of elections and settling any challenges to the conduct and results of elections.

The chamber’s disputed status has led some, including certain figures from Tusk’s ruling coalition, to suggest that it could not legally validate Nawrocki’s election. However, critics noted that Tusk’s own government came to power in elections validated by the same chamber.

Artur Nowak-Far, a law professor at the Warsaw School of Economics, told news website Gazeta.pl that, because elections are a national matter and “do not fall under the scope of EU law”, the CJEU cannot adjudicate on whether the chamber has the competence to rule on Polish elections.


Notes from Poland is run by a small editorial team and published by an independent, non-profit foundation that is funded through donations from our readers. We cannot do what we do without your support.

Main image credit: Transparency International/Flickr (under CC BY-NC-ND 2.0)

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