It took more than 50 preliminary ruling requests from Poland for the Court of Justice (CJEU) to fully confront what the European Court of Human Rights (ECtHR) has described as the country’s primary (rule of law) problem: the defective procedure for judicial appointments involving the NCJ as (re)established under the 2017 Amending Act (“neo-NCJ” afterwards).

According to the ECtHR, this is a systemic defect which inherently and continually affects the independence of any person so appointed (as of today, more than 3,000 persons have been irregularly appointed to judicial posts in Poland, i.e., approximately 30% of the judges of that country). For the CJEU, however, the involvement of the neo-NCJ – notwithstanding its manifest lack of independence the Court had previously established – does not suffice in and of itself to call into question the independence or impartiality of such irregularly appointed persons. At the same time, and for the first time, the CJEU has called for a “legislative framework” to remedy this systemic problem and restore public trust in Poland’s judicial system in its judgment of 24 March 2026 in Case C-521/21.

Until such time, the CJEU has ruled that neo-judges attached to ordinary courts may only be recused on a case-by-case basis, requiring the country’s lawful judges tasked with doing so to consider all relevant “circumstances”. However, and this is an important qualification, such individual assessment is not required for the neo-judges appointed to courts of last resort (fake or otherwise) as they may already be considered not to meet the requirements of an “independent and impartial tribunal previously established by law” on account of existing ECtHR and CJEU case law. Their decisions may be furthermore held “null and void”.

In addition to being (excessively?) complex, the CJEU’s twofold approach prioritises, in essence, system stability over the individual right to effective judicial protection. As the Court’s short-term solution (circumstances-based assessment of each neo-judge) is bound to produce inconsistencies while the Court’s long-term solution (new “legislative framework”) will not see the light of day anytime soon, litigants will continue to endure a 30% probability of having their disputes adjudicated by defectively appointed “judges”. So much for the rule of law but this is what happens when you let systemic violations fester for years (in this instance, it took the Court a total of 1,674 days to issue a preliminary ruling but the real culprit remains the Commission as it has failed to launch an infringement action targeting the neo-NCJ for years).

Systemic or not systemic, that is the question

The judgment is compelling in the Court’s interpretation of EU law in respect of Poland’s legislation conferring on a body, which is not a lawful court, exclusive jurisdiction to adjudicate an application seeking the recusal of defectively appointed neo-judges. Hereto, the Court reiterates its previous case law regarding Poland’s bogus “Chamber of Extraordinary Control and Public Affairs” and “Constitutional Tribunal”.

In short, the CJEU makes clear once more that national courts must disregard this piece of legislation and the outputs of these two bodies as they are not proper courts. Polish authorities must furthermore “ensure that there is effective judicial review enabling, where appropriate, the lawfulness of the judicial appointment procedure to be reviewed”. It follows that a national court must be able, where relevant, “to ascertain whether an irregularity vitiating the procedure for the appointment of a judge could have led to an infringement of the fundamental right to an effective remedy before an independent and impartial tribunal previously established by law”. No court, let alone a body masquerading as a constitutional court, can prohibit any (lawful) court from ascertaining whether another body meets EU rule of law requirements.

So far, so good.

The CJEU’s reasoning becomes more difficult to follow when it gets to the situation of the 3,000+ persons irregularly appointed to judicial posts, the possibility to recuse them, and the broader issue of whether they should be allowed to continue to perform their judicial duties.

Using euphemisms (e.g. “new composition”), the Court begins by minimising the grossly unconstitutional nature of the neo-NCJ and its sustained involvement in anti-rule of law activities, which resulted inter alia in its unprecedented expulsion from the relevant European network in 2021. It is striking, for instance, to see the CJEU referring to the case law of the ECtHR yet simultaneously omitting its most severe findings. In brief, the ECtHR has repeatedly stressed that the involvement of the neo-NCJ in any appointment procedure amounts to a systemic and fundamental defect which inherently undermines the independence of and impartiality of any court consisting, in part or in whole, of irregularly appointed “neo-judges”. For the Strasbourg Court, however, the effects of this systemic defect can vary depending on the type of court and its position within the judiciary. While the Strasbourg Court has yet to clarify what this approach means beyond the neo-judges irregularly appointed to courts of last resort such as Poland’s Supreme Court and who cannot lawfully adjudicate, the ECtHR has not required any individual assessment of the circumstances pertaining to each of Poland’s 3,000+ defective judicial appointments. The CJEU has, however, decided to follow a different twofold approach, which ultimately leads it to tying itself in knots.

The Court’s long-term solution: remedial legislative action

Considering the “systemic nature” of Poland’s irregular judicial appointments according to the Court itself, the CJEU holds for the first time that “a case-by-case assessment of compliance with the requirement of a ‘tribunal previously established by law’, in procedures for recusal on the basis of the circumstances in which the judges in question were appointed, cannot, in principle [emphasis added], suffice to ensure full compliance” with this requirement.

The judgment is particularly striking when the Court enumerates the multiple and serious consequences flowing from “the existence of systemic or generalised interferences with the independence of the national judiciary resulting” from Poland’s irregular appointments. The Court rightly stresses that this situation undermines inter alia the EU’s system of remedies, the full effect of EU law, and the “effectiveness of the functioning of justice”.

The Court’s first (but broad) endorsement of the ECtHR pilot-judgment of 23 November 2023 in Wałęsa v. Poland is yet another positive feature. While there is no such pilot-judgment procedure in EU law, one paragraph in the CJEU judgment may be misconstrued as amounting to a de facto (possibly unprecedented) EU pilot-judgment as the Court explicitly calls for remedial action in the form of a legislative framework that enables, in view of the nature and gravity of the irregularities committed during the judicial appointment procedure, an assessment of the possibilities for persons irregularly appointed to judicial posts to continue to perform their duties.

Without debating whether such a remedial call goes beyond the limits of the Court’s preliminary ruling jurisdiction, it is remarkable to see the CJEU going beyond the issue of recusal and calling upon “the national legal order” to essentially get its act together. While unsurprisingly recognising that Poland has broad discretion considering the obvious lack of a “single model” when it comes to correcting “systemic irregularities in the appointments to judicial posts”, the Court does constrain this discretion by holding “that only those irregularly appointed persons who have provided sufficient guarantees of independence and impartiality may continue to perform their duties” (emphasis added).

This means, a contrario, that a legislature may address the situation of irregularly appointed persons by not providing these guarantees en bloc, including by removing them from the judiciary. A word is indeed noticeable by its absence: irremovability. And while the notion of “sufficient guarantees” is not self-explanatory, this may yet be understood as opening the door to Poland’s current draft law which distinguishes between different categories of irregularly appointed individuals, a draft law broadly endorsed by the Venice Commission last month: (i) the “green group” (i.e., novice judges); (ii) the “yellow group” (i.e., judges transferred or promoted via the neo-NCJ but who had been appointed as judges before March 2018); (iii) the “red group” (i.e., individuals appointed by the neo-NCJ, some of whom in open breach of domestic court orders, who had not previously held any judicial position).

Having repeatedly acknowledged the systemic nature of Poland’s irregular judicial appointments and called for a systemic (legislative) solution, the Court moves on to the immediate, practical issue raised by the referring court: Can a party require the recusal of an ordinary court neo-judge on account of his/her irregular appointment in the absence of remedial legislative action? Here, the Court’s stop-gap solution fails to convince.

The Court’s short-term solution: case-by-case assessments

Instead of adopting the judicial hierarchy-based approach favoured by the Strasbourg Court (i.e., the independence of all of the neo-judges has been systemically affected but the effects of this systemic defect may be differently assessed depending on the type of court and its position within the judiciary), and/or the complementary category-based approach favoured by Poland’s current legislature outlined above, the CJEU has decided to ask lawful judges to follow a case-by-case approach until a “legislative framework” is adopted.

This means that Poland’s lawful judges are being (t)asked to undertake – some of them already are – a time-consuming case-by-base assessment of all relevant circumstances pertaining to each irregularly appointed neo-judge prior to being able to decide whether an adjudicating panel consisting of/including such a person, is still a lawful court. This approach is however difficult to reconcile with the Court’s earlier finding that “in view of the systemic nature of irregular appointments, a case-by-case assessment (…) in procedures for recusal (…) cannot, in principle, suffice to ensure full compliance” with the EU law requirement “that cases coming within the scope of EU law be examined by independent courts or tribunals”.

Yet a case-by-case assessment is precisely what the Court is requiring Poland’s lawful judges to do until a legislation is adopted to sort out the situation of the country’s “unlawful judges”. To better justify this approach, the Court simultaneously – and arguably unnecessarily – minimises the grave irregularity caused by the participation of an unconstitutional body in every single judicial appointment (or promotion) procedure post-2018.

Bottom line, the CJEU accepts that grave systemic irregularities exist and that there is an urgent need to restore public trust in the Polish judicial system as a whole. As the CJEU is simultaneously of the view that this may only be achieved via remedial action of a legislative nature, national (lawful) judges are asked to do what they can on a case-by-case basis even though the Court accepts this cannot ensure full compliance with EU rule of law requirements. The adjective “messy” may come to mind.

In the present instance – notwithstanding the limits of its jurisdiction under Article 267 TFEU – the Court has furthermore deemed it helpful to do the individual assessment for the referring court. And for the Court, the neo-judge who is the subject of a recusal motion cannot be recused as “it does not appear that any other factual and legal circumstance such as to call into question the independence or impartiality of that judge can be established”.

Stability is preserved but this is achieved at a significant cost, with the litigants’ right to effective judicial protection taking a back seat. There is, however, only so much the CJEU can do in a context where the Commission and the Council have persistently failed to demand remedial action before declaring “mission accomplished” in 2024 and closing inter alia Poland’s Article 7(1) TEU procedure. Fast forwarding to 2026, the CJEU was forced to acknowledge that “irregular appointments to judicial posts are systemic in Poland” and do the Commission and Council’s job. Looking beyond Poland, this sorry episode may well convince would-be autocrats that one is better off just going big and going fast when seeking to capture a country’s judiciary via thousands of illegal judges. The EU just won’t stand in the way of lawlessness that much.