The European Law Institute (ELI) has recently welcomed Poland’s (compromised) Supreme Court and Supreme Administrative Court as its latest institutional members, less than two years after adopting a set of standards on judicial independence and urging “European governments and institutions to align their systems with these Standards”. Beyond this professional network, two judicial networks known as the Conference of European Constitutional Courts (CECC) and the Network of the Presidents of the Supreme Judicial Courts of the EU (NPSJC) have similarly failed – through inaction – to take account of CJEU and ECtHR rulings as regards their Polish members.

This post will look at the negative spillover effects created by these networks’ membership (in)action and the different justifications they offered to rationalise their (in)action. It will further query whether their failure to play their part in preserving the EU’s rule of law ecosystem by removing or keeping at bay those directly engaged in the systemic undermining of judicial independence should not lead to practical consequences. In the case of the CECC and NPSJC, their status as privileged stakeholders for the purposes of the EU’s annual rule of law report may be questioned. In the case of the ELI, its eligibility for EU funding may be jeopardised.

Poland’s Captured “Courts” and Irregularly Appointed “Judges”: State of Play

To date, Poland’s “Constitutional Tribunal” continues to be a full member of the CECC notwithstanding the CJEU judgment of 18 December 2025. In this ruling, the CJEU found this body to no longer satisfy the requirements of an independent tribunal previously established by law as a result of serious irregularities in the procedures for the appointment of three of its members and its President in December 2015 and 2016 respectively. Prior to this CJEU ruling, the ECtHR had repeatedly held, starting with a judgment of 7 May 2021, that the mere presence of any of the irregularly appointed “judges” is “by itself capable of vitiating the legal force” to be attached to any “judgment” issued by the Constitutional Tribunal.

With respect to Poland’s Supreme Court (SC), multiple CJEU and ECtHR judgments have established multiple violations of EU and ECHR rule of law requirements over many years during the period of 2015-2023. Without being exhaustive, both the CJEU and ECtHR have found the two new chambers created during Poland’s rule of law crisis (the Extraordinary Review and Public Affairs Chamber and the Disciplinary Chamber) not to be lawful courts. The ECtHR has simultaneously held that every person appointed to Poland’s SC post-2018 cannot lawfully adjudicate. In the words of the ECtHR,

all the judges appointed to two entire chambers of the Supreme Court – the Disciplinary Chamber and the CERPA, as well as judges appointed to the Civil Chamber on the reformed NCJ’s recommendation – do not meet the requirements of an “independent and tribunal established by law” […] By implication, the same applies to other Supreme Court judges so appointed. This situation raises grave concerns as to the continued functioning of the Supreme Court […] as a court which is “lawful” under the Convention.

In the case of the former “President” of Poland’s SC, whose term came to an end in May 2026, the ECtHR found this person in February 2022 to have been appointed in manifest breach of domestic law. Following two CJEU judgments in 2024 and 2025, the former and recently appointed new SC president – also an illegal judge – cannot lawfully adjudicate cases as a matter of EU law as well. More generally speaking, the mere presence of a single “neo-judge” is enough to deprive any adjudicating formation of its status as a lawful court, on account of the fundamental irregularities which characterise their defective appointments.

Finally, as regards Poland’s Supreme Administrative Court (SAC), a number of pending applications have been communicated by the ECtHR starting in 2022 in relation to the neo-judges defectively appointed to it (see e.g. application no. 29320/22). While there is no judgment on the merits yet, the Strasbourg Court’s approach in respect of Poland’s SC is applicable to the neo-judges sitting on SAC benches. In short, their appointment suffers from the same systemic problem repeatedly identified by the ECtHR, i.e., the defective procedure for judicial appointments involving Poland’s National Council of the Judiciary (NCJ) as established in 2017. Notwithstanding the absence of any CJEU judgment directly addressing the presence of “neo-judges” on the SAC, its ruling of 24 March 2026 also makes clear that they belong to the group of 3,000 “persons irregularly appointed to judicial posts” in Poland.

European Judicial and Professional Networks’ (In)Action

Notwithstanding the above, the dominant reaction has been to ignore the problem or hide behind arguably spurious justifications regardless of the networks’ professed commitment to the rule of law.

The Conference of European Constitutional Courts

To begin with the CECC, its statute provides that it “shall take steps to enhance the independence of constitutional courts as an essential factor in guaranteeing and implementing […] the rule of law”. In addition, the status of a full member is subject, inter alia, to judicial activities being conducted “in accordance with the principle of judicial independence”.

In response to a query from the present authors regarding how the CECC intends to comply with relevant ECtHR judgments and most recently, the CJEU judgment of 18 December 2025, we were merely told “that issues relating to membership are within the competence of the responsible bodies provided by the Statute, namely the Congress of the CECC and, where applicable, the Circle of Presidents”.

The CECC’s inaction may be contrasted with the prompt suspension of Poland’s NCJ by the European Network of Councils for the Judiciary (ENCJ) in September 2018. This was done within a few months following the entry into force of the law re-establishing a wholly captured NCJ. Prior to this, the ENCJ had publicly and repeatedly voiced its grave concerns about the relevant Polish draft law.

The Network of the Presidents of the Supreme Judicial Courts of the EU (NPSJC)

Similarly, the response of the Network of the Presidents of the Supreme Judicial Courts of the EU (NPSJC) to Poland’s rule of law crisis was initially strong. For instance, the Network published in 2017 a statement denouncing “a threat to the independence of the Supreme Court”. In 2019, the NPSJC President co-authored a letter to Ms. von der Leyen which decried how “the separation of powers between the executive branch and the judicial branch” was “being dismantled” in several EU countries. Following the capture of Poland’s Supreme Court, however, the NPSJC has failed to take any action regarding its member concerned by the ECtHR’s judgment of 3 February 2022. In this judgment, the ECtHR established that the NPSJC Polish member was appointed in a defective procedure characterised by manifest irregularities in breach of domestic law.

In reply to our memorandum outlining how NPSJC was disregarding CJEU and ECtHR rulings, the NPSJC informed us on 5 May 2026 that in the absence of an internal suspension procedure, “the Board has decided to put a proposal before the General Assembly of the Network in June to consider these matters further and, if agreed, to make amendments to the Articles of Association of the Network”. In other words, the lack of allegedly adequate internal rules is used to justify further delay action regarding their Polish member (or their Hungarian member) – an excuse reminiscent of the Venice Commission’s rationale. The problem, however, is not going to go away as yet another illegal judge – elected only with the votes of other irregularly appointed “judges” – has just been appointed the new First President of Poland’s Supreme “Court”.

The European Law Institute (ELI)

By contrast to the previous two judicial networks, the ELI consciously decided to welcome Poland’s SC and SAC as institutional members. In other words, a network dedicated to European Law has welcomed two courts being compromised by individuals who cannot lawfully adjudicate as a matter of European Law, most of whom are due to be removed.

This decision was justified on two main grounds: (i) “the decision concerned the institutions as such, rather than their current composition or individual officeholders”; (ii) “these courts remained recognised within the European legal framework and had not been excluded from comparable international networks”. The first ground not only ignores the reality of court capture; it hollows out the concept of court and disregards European case law regarding the requirements national courts must comply with in terms of composition and individual judicial appointments. The second ground embodies an abdication of leadership – one that results in an organisation with sufficient expertise to adopt and promote standards on judicial independence but unwilling to apply them just because others have failed to do so.

This development was all the more surprising as it happened at a time when a Forum on the Resilience of Legal Systems and the Rule of Law was in preparation, with this network’s annual conference being furthermore dedicated to “Europe and the Rule of Law: Cultural Engagement and Legal Resilience”.

Negative Spillover Effects of Membership (In)Action

Beyond the direct reputational damage, the presence of compromised (or bogus) courts and illegal judges in judicial or professional legal networks raises the issue of these networks’ compliance with their own constitutional documents and the genuine nature of their professed attachment to the rule of law.

As far as judicial networks are concerned, a failure to police membership is also bound to indirectly and more broadly undermine the reputation of all the national judiciaries represented in these networks. Another indirect effect follows from the inclusion of illegal judges: By legitimising them at a supranational level, judicial and professional networks not only hinder rule of law restoration efforts within the relevant Member State, they also undermine efforts to uphold the rule of law in all EU Member States, by sending the message that leisurely, if not à la carte, compliance with CJEU and ECtHR rulings is acceptable.

Failure to control membership furthermore entails a precedential effect for other judicial or professional networks, who could be tempted to align themselves with a negligent example. Indeed, in the case of the ELI, inaction from other networks was used as cover to embrace the membership applications of Poland’s SC and SAC. This is why proper enforcement by the relevant networks of their own membership standards is important, as it would facilitate rule of law restoration efforts in Poland and elsewhere by making clear that lawlessness – and those benefiting from it – will not be tolerated both legally and professionally.

Temporary suspensions or the outright rejection of membership applications ought to be the default setting for bodies/individuals whose situation has already been addressed by the ECtHR and/or the CJEU. Conversely, a failure to suspend/expel bodies and individuals masquerading as courts and judges respectively – or worse, welcoming them – could have consequences for the relevant networks.

In the short term, the European Commission should consider removing the NPSJC and the CECC from its list of key stakeholders to be consulted prior to the publication of its annual rule of law report, until they take due account of relevant judgments of the CJEU and the ECtHR in respect of their membership. A financial conditionality type approach should also be considered. EU funding schemes typically require adherence to Article 2 TEU values. Where, for instance, a network seeks EU funding to undertake rule of law-related activities, while simultaneously disregarding European case law, eligibility for EU funding may be doubtful.

The European judicial and professional networks mentioned in this post have played a key role in promoting the rule of law, an aspect they are keen to emphasise. The time has come for them to also walk the walk when it comes to their own membership.