On 18 December 2025, the Court of Justice of the European Union (CJEU) handed down a momentous judgment, in which it found that the Constitutional Tribunal (CT) of Poland does not satisfy the requirements of an independent and impartial tribunal established by law, and also that through the decisions of that Tribunal Poland had failed to fulfil its obligations under the Treaty of European Union, as well as under the general principles of autonomy, primacy, effectiveness and the uniform application of EU law. It also found that Poland, through the actions of its CT, breached the principle of the binding effects of judgments of the Court of Justice.

As one can see from the very recital of the Court of Justice findings, the importance of the judgment cannot be higher. Its main significance at least for Poland, lies in the fact that, by now, two top European courts have declared that the “Constitutional Tribunal” (and from now on,  I will be placing these words in inverted commas advisedly) cannot be considered an independent, impartial court, under the two constitutive acts in the Council of Europe and the EU, respectively. Four years after the landmark decision Xero Flor v. Poland of the European Court of Human Rights, its counterpart in the EU, the CJEU, has found the Polish constitutional court to be an irregularly composed judicial body.

This is the main practical dimension of the recent CJEU’s decision, to which I will return in a moment. But I need to say a word about the second aspect of the judgment (captured in the Commission’s first two complaints, considered by the Court, related to the primacy of EU law, as violated through the “CT” judgments of 2021), which is much more “academic”, in both senses of the word.

Primacy of EU Law as a Moot Issue

It is “academic” in the sense that it has no practical consequences because, for all intents and purposes, the issue of denial of EU law’s primacy over domestic laws became moot. Since the Commission’s infringement action that triggered this judgment (15 February 2023), the government in Poland has changed hands, and it has now accepted the failure to fulfil its obligations alleged against it by the Commission in the present case. Nevertheless, the Court of Justice acted on the principle that it is for the Court to determine whether such failures exist, even if the State concerned does not deny them. True, the two outrageous judgments of the “Constitutional Tribunal” of 2021, which were the direct basis of the infringement action, are still theoretically valid, but they have no practical significance for a simple reason that no one, in Poland or in the EU, takes the current “CT” seriously. It is worth noting, as it may go down in the history of illegality in Europe, that the “Tribunal” in these two judgments of 2021 managed single-handedly to find unconstitutional (under the Polish Constitution) both some parts of certain articles of the TEU (notably, of Articles 1, 2, 4 and 19) and the CJEU’s case law interpreting these articles – thus committing an impressive double ultra-vires act!

But this aspect of the CJEU’s verdict of 18 December 2025 is also “academic” in another sense: legal scholars, especially those not directly concerned about Poland’s rule-of-law crisis, will find the reaffirmation of the meaning of EU law’s primacy and its relationship with “national identity” as referred to in Article 4(2) TEU, as giving them a tasty food for thought – even if the food in question is not particularly surprising or innovative. Perhaps the most important statement of a universal value in the long judgment is a restatement of the non-regression principle: “A Member State cannot … amend its legislation, or indeed its case-law, in such a way as to bring about a reduction in the protection of the value of the rule of law….” (para. 179). And this is precisely what Poland under PiS did, using the “Tribunal” as its tool for such a reduction, by preventing Polish judges from verifying the lawfulness of the procedure for appointing judges to the new, politically controlled, chambers of the Supreme Court.

A Defective Tribunal

But this short comment on the judgment of 18 December will focus only on the first, Poland-specific aspect (as captured in the Commission’s third complaint). This is what is of particular interest for Polish public opinion and political commentariat. The Court of Justice found, predictably, that the institution that refers to itself as “Constitutional Tribunal” cannot be characterized as “an independent and impartial tribunal established by law” as required by the Treaty on the EU (Art. 19(1) second subparagraph) and the Charter of Fundamental Rights (Art. 47). This is due to (1) the irregularity of appointment of three judges in 2015 (and, consequently, their successors, of which two are currently on the Tribunal), (2) irregularities in appointment of the President of the CT in 2016 (even though her successor recently replaced her). These combined irregularities, along with the absence of three properly elected judges on the bench since 2015, have contaminated (my word, not the Court) the entire court since then.

What will be the likely reactions in Poland, and in particular in political and legal elites, to the judgment? This is a relatively easy question to answer: in today’s extreme political polarisation, two opposing camps will respond by consolidating their positions. The right-wing political opposition centred around the PiS party, which ruled from 2015-2023, will cry foul and accuse the CJEU of “once again” (allegedly) overstepping its competences by “imposing” upon a Member State certain rules on the subject matter that were never (allegedly) conferred upon the EU. This is, of course, nonsense – while the specific structure of judicial bodies such as constitutional courts is not within the scope of EU law, fundamental principles such as the rule of law and judicial independence are of great concern to the Union as a whole. (It is nicely summarised in the judgment, paras 102-3).

This critique was anticipated, and eloquently responded to, in the Opinion by Advocate General Spielmann in this case: “It is true that a Member State cannot be compelled to accede to the European Union against its will. However, once it has made the sovereign choice to accede, it must respect the ‘rules of the game’ in accordance with Article 49 TEU, which requires Member States to respect the values of the European Union after their accession – values which they have accepted freely and in full knowledge of the facts” (para 92 of the Opinion, references omitted). Be that as it may, it is certain that the verdict of the CJEU will serve the right wing to accuse the Union of breaching Poland’s sovereignty and its main judicial body of acting blatantly ultra vires.

What will the democratic parliamentary majority and the government headed by Donald Tusk make of the judgment is more interesting – and uncertain. The legislature has already established, in a parliamentary resolution of 6 March 2024, and the government has restated it even more forcefully in its Resolution of 18 December 2024, that the “Constitutional Tribunal” in its present shape and with its present actions is not fulfilling its constitutional functions and that there is a need of a “new creation of the constitutional court” (the words of the parliamentary resolution) and that “repair actions must be taken aimed at restoration of the functioning of the constitutional court” (the words of the government’s resolution). But it was not followed by any practical legislative action due to the President’s hostility to the parliamentary majority (then Andrzej Duda), who has the power of legislative veto and the power to trigger constitutional scrutiny by… yes, the “Constitutional Tribunal”. This is precisely what President Duda did, and the “Tribunal” has, as expected, found the bill unconstitutional, thus breathlessly rejecting a principle “nemo judex in causa sua” (no one should be a judge in his/her own case).

What will the government do?

With the continuing erosion of the number of PiS-appointed judges on the “CT”, the government will likely wait until it can appoint a majority of the Court. But, with the judgment of the CJEU as its new argumentative asset, it may be willing to undertake a more radical action, and to convert its bark into a bite. Legislative changes are unlikely, due to the presidential veto, which is not overridable by the current majority. What would a “radical” action look like? “Extinguishment” of the current composition of the “Tribunal”, based on the combination of judgments of two top European courts, pronounced through a new parliamentary resolution and followed up by an executive action, is a possibility. But is it likely? I don’t think so. The government’s thinking about law oscillates between a muscular approach of disregarding the illiberal enclaves, which are the leftovers of the 2015-2023 PiS rule, and a formalistic legalism that requires scrupulous compliance with the letter of the law, whatever its pedigree or substance.