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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.
An advocate general at the Court of Justice of the European Union (CJEU) has issued an opinion finding that Poland’s Constitutional Tribunal (TK) has launched an “unprecedented revolt” and “frontal attack on the fundamental principles of the EU legal order”.
In response, the TK rejected the EU official’s finding, saying that he had himself made a “blatant encroachment on the exclusive competences of the Polish Constitutional Tribunal”.
#ECJ #AG Spielmann: The action brought by the @EU_Commission concerning the Polish Constitutional Court is well founded #RuleOfLaw 👉 https://t.co/ATb3CgbPxg
— EU Court of Justice (@EUCourtPress) March 11, 2025
The case in question was brought against Poland by the European Commission in 2023 and concerns two rulings issued by the TK in 2021 that disputed the compatibility of EU law and CJEU judgments with Poland’s constitution.
At that time, Poland was ruled by the national-conservative Law and Justice (PiS) party, which regularly clashed with Brussels. The TK was (and remains) stacked with PiS-appointed judges and is widely regarded as being under the political influence of the party, which is now in opposition.
In July 2021, the TK found that an interim order against Poland issued by the CJEU was “inconsistent with the [Polish] constitution”.
In October of the same year, the TK ruled – following a request from the PiS prime minister – that parts of European law are inconsistent with the Polish constitution, which takes precedence over them.
That prompted the European Commission to launch proceedings against Poland at the CJEU, saying that the TK had “violated EU law”. It also argued that three of the TK’s judges and its then-chief justice were unlawfully appointed under PiS, rendering the tribunal itself unlawful.
As is standard practice, ahead of the CJEU’s ruling on the case, one of the court’s advocates general, Dean Spielmann, issued an opinion. Such opinions are not binding but are usually followed by the court when it subsequently issues a judgment.
Spielmann believes that “the court should declare that Poland has failed to fulfil its obligations under EU law”, announced the CJEU. “In his view, the [TK] judgments at issue fundamentally depart from the case-law of the court concerning the guarantee of effective judicial protection.”
The Supreme Court has found that rulings made by the Constitutional Tribunal (TK) involving judges illegitimately appointed under the former PiS government are invalid.
One such ruling was the near-total abortion ban introduced by the TK in 2020 https://t.co/0tDuHNMQ2p
— Notes from Poland 🇵🇱 (@notesfrompoland) January 3, 2024
In unusually strong language, the advocate general described the TK’s actions as an “unprecedented revolt” and “frontal attack on the fundamental principles of the EU legal order and the authority of the judgments of the [EU] court”.
“Their infringement cannot in any case be justified by provisions of national law, including those of a constitutional nature,” added Spielmann. “Similarly, invoking the constitutional identity of the member state cannot call into question the fundamental principles of EU law.”
Referring to the question of the TK’s own status, the advocate general confirmed that three of its judges were appointed under PiS with “several irregularities which may be classified as manifest and serious”.
As a result, “the Polish constitutional court cannot be regarded as an independent and impartial tribunal established by law within the meaning of EU law”, he declared. Previous European and Polish court rulings have likewise found the TK to be unlawfully composed.
President Duda has refused to sign two bills passed by the governing coalition that would overhaul and depoliticise the Constitutional Tribunal (TK).
Instead, he has sent them to the TK itself for assessment, saying he believes them to be unconstitutional https://t.co/6AuQsUdzYt
— Notes from Poland 🇵🇱 (@notesfrompoland) October 8, 2024
In response to the advocate general’s opinion, the TK issued a brief statement on social media saying that in fact it is Spielmann whose “opinion is a blatant encroachment on the exclusive competences of the Polish Constitutional Tribunal”.
“All rulings issued by the Constitutional Tribunal were made in accordance with the binding constitution and other laws of Poland,” added the statement.
Despite PiS losing power in December 2023 to a more liberal, pro-EU coalition led by Donald Tusk, all judges on the TK remain PiS-era appointees. Tusk’s government has found its ability to overhaul the TK stymied by the ability of President Andrzej Duda, a PiS ally, to veto laws or send them to the TK itself.
That has resulted in a standoff in which the TK has regularly issued rulings theoretically overturning decisions made by Tusk’s government, which has in turn ignored them on the basis that the TK in its current form is unlawfully constituted.
— Trybunał Konstytucyjny (@TK_GOV_PL) March 11, 2025
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.
Image credits: Lukas Plewnia/Flickr (under CC BY-SA 2.0)
Daniel Tilles is editor-in-chief of Notes from Poland. He has written on Polish affairs for a wide range of publications, including Foreign Policy, POLITICO Europe, EUobserver and Dziennik Gazeta Prawna.
