Case C‑448/23

European Commission

v

Republic of Poland

Judgment of the Court (Grand Chamber) of 18 December 2025

(Failure of a Member State to fulfil obligations – Article 2 TEU – Article 4(3) TEU – Second subparagraph of Article 19(1) TEU – Rule of law – Effective judicial protection in the fields covered by EU law – Principles of autonomy, primacy, effectiveness and the uniform application of EU law – Principle of the binding effect of the case-law of the Court – Judgments of the Trybunał Konstytucyjny (Constitutional Court, Poland) – Judgments of the Court and interim measures under Article 279 TFEU relating to the second subparagraph of Article 19(1) TEU – Rejection by the Trybunał Konstytucyjny (Constitutional Court) of those judgments and of those measures as ultra vires – National constitutional identity – Prohibition issued by the Trybunał Konstytucyjny (Constitutional Court) preventing all public authorities from applying Article 2 TEU and the second subparagraph of Article 19(1) TEU – Second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union – Requirement of an independent and impartial tribunal previously established by law – Improper composition of the Trybunał Konstytucyjny (Constitutional Court))

1. Member States – Obligations – Failure to fulfil obligations – Liability – Scope – Case-law of the constitutional court

   (Art. 258 TFEU)

   (see paragraphs 100, 101)

2. Member States – Obligations – Provision of remedies sufficient to ensure effective legal protection – Observance of the principle of judicial independence – Primacy and direct effect of EU law – Obligations of national courts – Obligation to disapply, of their own motion, any national provisions or national practice which might prevent a provision of EU law having direct effect from having full force

   (Art. 19(1), second subpara., TEU)

   (see paragraphs 113-117)

3. Member States – Obligations – Provision of remedies sufficient to ensure effective legal protection – Observance of the principle of judicial independence – Right to an independent and impartial tribunal previously established by law – Primacy and direct effect of EU law – Constitutional case-law hindering the application by national courts of EU law as interpreted by the Court – Not permissible

   (Art. 19(1), second subpara., TEU)

   (see paragraphs 121-125)

4. Member States – Obligations – Provision of remedies sufficient to ensure effective legal protection – Observance of the principle of judicial independence – Respect for the rule of law – Constitutional case-law refusing to recognise provisional measures ordered by the Court seeking to preserve the right to effective judicial protection before an independent tribunal – Manifest infringement of the Court’s jurisdiction – Not permissible

   (Art. 19(1), second subpara., TEU; Art. 279 TFEU)

   (see paragraphs 130-133, 138-141)

5. Member States – Obligations – Provision of remedies sufficient to ensure effective legal protection – Observance of the principle of judicial independence – Primacy and direct effect of EU law – Respect for the rule of law – Constitutional case-law rejecting the primacy of EU law over national constitutional rules – Not permissible – Concept of the national identity of a Member State – Breach of that concept on account of observance of the principles and values of the European Union – None

   (Art. 19(1), second subpara., TEU; Art. 279 TFEU)

   (see paragraphs 178-186, 191-195)

6. Member States – Obligations – Provision of remedies sufficient to ensure effective legal protection – Observance of the principle of judicial independence – Primacy and direct effect of EU law – Principle of the binding effect of the Court’s case-law – Obligations of national courts – Constitutional case-law ruling unilaterally and definitively on the extent of the competences conferred on the European Union – Not permissible – Case-law refusing to comply with the decisions of the Court and prohibiting all public authorities from applying EU law as interpreted by the Court – Not permissible – Concept of the national identity of a Member State – Breach of that concept on account of the interpretation of EU law given by the Court – None

   (Arts 4(1) and (2), 5(2), 13(2), and 19(1), 2nd subpara., TEU; Arts 267 and 344 TFEU)

   (see paragraphs 203-214, 218-233)

7. Member States – Obligations – Provision of remedies sufficient to ensure effective legal protection – Observance of the principle of judicial independence – Right to an independent and impartial tribunal previously established by law – Appointment of judges of the Constitutional Court and of its President taking place in manifest breach of fundamental rules governing the judicial system – Conditions of appointment giving rise to legitimate doubts on the part of individuals, as regards the independence and impartiality of those persons – Improper composition of that court – Not permissible

   (Art. 19(1), second subpara., TEU; Art. 258 TFEU)

   (see paragraphs 273-276, 279-281, 287-291, 293, 294)

Résumé

Hearing for the first time an action for failure to fulfil obligations concerning two decisions of a national constitutional court finding several provisions and principles falling within the constitutional framework of the European Union to be incompatible with the national Constitution, the Court, sitting as the Grand Chamber, upholds the action brought by the Commission against Poland. First, it reaffirms, in particular, the scope of the principles of primacy, autonomy and effectiveness of EU law and that of the binding effect of the case-law of the Court. Secondly, it rules on the consequences of the irregular appointment of members of a constitutional court on its status as an ‘independent and impartial tribunal previously established by law’, within the meaning of the second subparagraph of Article 19(1) TEU.

In October 2015, during the seventh parliamentary term, the Sejm (Lower Chamber of the Polish Parliament, Poland) elected five persons to judicial posts at the Trybunał Konstytucyjny (Constitutional Court, Poland). Three of those persons were to replace judges whose term of office expired on 6 November 2015, and two to replace judges whose term of office expired in December 2015. One month later, after the parliamentary elections of 25 October 2015, during the eighth parliamentary term, the Lower Chamber of the Polish Parliament adopted five resolutions declaring that that election had no legal effect, before electing five new persons to those posts in December 2015. Three of them, namely H.C., L.M. and M.M., were to replace judges whose term of office expired on 6 November 2015, and two to replace judges whose term of office expired in December 2015. Those five persons then swore an oath before the President of the Republic of Poland. However, the then President of the Constitutional Court refused to allow four of those judges who had been sworn in to sit until the question of the validity of their election by the Lower Chamber of the Polish Parliament was clarified.

In that context, the Constitutional Court delivered two judgments ( 1 ) in which it declared, in essence, that the election, during the seventh parliamentary term of the Lower Chamber of the Polish Parliament, of three judges to replace those whose term of office was to end on 6 November 2015 was valid, but that that chamber did not have the right to proceed, during the same parliamentary term, to elect two judges to replace those whose term of office was due to expire in December 2015, that is to say during the new parliamentary term. That court also observed that the President of the Republic of Poland was required to hear the oath of the three judges elected in October 2015 and had no discretion in that regard.

However, despite those decisions, none of the three persons elected in October 2015 took an oath before the President of the Republic of Poland or took up their duties in that court.

Next, on 20 December 2016, the judge J.P., who was then President of the Constitutional Court, authorised H.C., L.M. and M.M. to sit in that court.

On the same day, she convened a meeting of the General Assembly of Judges of that court, scheduled for the same day, in order to elect candidates for the position of President of the Constitutional Court and to present them to the President of the Republic.

Of the 14 judges of that court present at the General Assembly, only six, including H.C., L.M. and M.M., took part in the election of candidates for the position of President. Two candidates were then presented to the President of the Republic: the judges J.P., who received five votes, and M.M., who received one vote. The following day, the President of the Republic appointed J.P. to the position of President of the Constitutional Court.

On 14 July ( 2 ) and 7 October ( 3 ) 2021, the Constitutional Court handed down two judgments concerning the incompatibility with the Polish Constitution ( 4 ) of the Court’s case-law relating, in particular, to the obligation under the second subparagraph of Article 19(1) TEU to ensure effective judicial protection (‘the judgments at issue’).

Taking the view that, in the light of the judgments of the Constitutional Court, Poland had failed to fulfil its obligations under EU law, ( 5 ) the Commission brought an action for failure to fulfil obligations before the Court under Article 258 TFEU. ( 6 )

Findings of the Court

As a preliminary point, the Court recalls that, under Article 258 TFEU, a Member State’s failure to fulfil obligations may, in principle, be established whatever the agency of that State whose action or inaction is the cause of the failure to fulfil its obligations, including where the case-law of the constitutional court of a Member State is capable of constituting a failure by that Member State to fulfil its obligations under EU law.

The first complaint

As regards, in the first place, the alleged incompatibility between the second subparagraph of Article 19(1) TEU and the judgment of 7 October 2021, the Court recalls that that provision requires Member States to establish a system of legal remedies and procedures ensuring for individuals compliance with their right to effective judicial protection in the fields covered by EU law. The requirements which national courts must satisfy include the independence and impartiality of those bodies, thus giving concrete expression to the fundamental value of the rule of law enshrined in Article 2 TEU, compliance with which is binding both on the European Union and on the Member States.

It is for the Court to clarify those requirements in the context of the task entrusted to it by the first subparagraph of Article 19(1) TEU, which consists in ensuring that in the interpretation and application of the Treaties the law is observed.

In that regard, the Court observes that the second subparagraph of Article 19(1) TEU imposes on the Member States a clear, precise and unconditional obligation as to the result to be achieved, the direct effect of which entails, in accordance with the principle of the primacy of EU law, the disapplication of any provision, case-law or national practice contrary to that article.

Consequently, any national provision or practice which impairs the effectiveness of EU law by withholding from the national court having jurisdiction the power to do everything necessary at the moment of the application of that law to disregard national legislative provisions which could prevent directly applicable EU rules from having full force and effect is incompatible with the requirements which are the very essence of EU law.

According to the Court, the interpretation of the Polish Constitution given by the Constitutional Court in the judgment of 7 October 2021 precludes the requirements arising from the second subparagraph of Article 19(1) TEU, as interpreted by the Court in its case-law, ( 7 ) from being able to produce their effects in Poland and ensure the full effectiveness of that provision.

In the first place, by that judgment, the Constitutional Court rejected the effects, for the national courts, of the application of the second subparagraph of Article 19(1) TEU, as interpreted by the Court, by ruling out, in general, the jurisdiction of those courts to review the lawfulness of resolutions of the KRS proposing the appointment of candidates to judicial office. In the second place, that court ruled out the jurisdiction of the national courts to review the legality of procedures for the appointment of judges, including appointment decisions, in order to rule on the defective nature of the process for appointing a judge and, consequently, to find a decision delivered by a judge appointed by such a procedure null and void, where such a consequence is essential in the light of the procedural situation at issue. However, the Court states that the exercise by a national court of the tasks entrusted to it by the Treaties and compliance with its obligations under the Treaties, by giving effect to a provision such as the second subparagraph of Article 19(1) TEU, cannot, by definition, be prohibited.

In the last place, the Court concludes that, in so far as the judgment of 7 October 2021 precludes the Polish courts from being able to apply the second subparagraph of Article 19(1) TEU, as interpreted by the Court, and to implement any measure necessary to ensure the observance of the right of the individuals concerned to effective judicial protection in the fields covered by EU law, that judgment is manifestly incompatible with the requirements inherent in that provision, as interpreted by the Court in the exercise of its exclusive jurisdiction to provide the definitive and binding interpretation of EU law.

As regards, secondly, the alleged incompatibility between the second subparagraph of Article 19(1) TEU and the judgment of 14 July 2021, the Court observes that Article 279 TFEU confers on it jurisdiction to prescribe any interim measures that it considers necessary, in order to ensure the full effectiveness of a final decision to be taken and to ensure that there is no lacuna in the legal protection provided by the Court and to ensure the effective application of EU law. Accordingly, national provisions governing the organisation of justice may be subject to interim measures, ordered by the Court and aimed at, inter alia, the suspension of those provisions. That mechanism would be called into question if a provision of national law could preclude recognition of the binding effect of interim measures ordered by the Court and, consequently, prevent a national court hearing a dispute governed by EU law from giving effect to those interim measures.

In the present case, the interim measures ordered by the Court in the order in Commission v Poland ( 8 ) were intended to ensure the full effectiveness of the judgment to be delivered in the infringement proceedings brought by the Commission against Poland, thus making it possible to ensure there is no lacuna in the legal protection afforded by the Court under the second subparagraph of Article 19(1) TEU.

However, in its judgment of 14 July 2021, the Constitutional Court held that those interim measures had been adopted ultra vires, since the European Union was not empowered to rule on the organisation and jurisdiction of the Polish courts or on procedure before those courts. According to that judgment, those measures are therefore incompatible with the binding erga omnes and definitive nature of the judgments of that court resulting from Article 190(1) of the Polish Constitution. Thus, by adopting that decision, the Constitutional Court, first, called into question the very principle of Poland’s obligation to comply with the obligations arising from the second subparagraph of Article 19(1) TEU relating to the organisation of justice and, second, refused to recognise, in a general manner and in clear breach of the Court’s jurisdiction, interim measures ordered by the latter and intended to preserve the right to effective judicial protection before an independent tribunal in Poland, provided for in the second subparagraph of Article 19(1) TEU.

In those circumstances, the Court finds that, in the light of the interpretation of the Polish Constitution by the Constitutional Court in its judgments of 14 July 2021 and 7 October 2021, Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU.

The second complaint

As regards, in the first place, the infringement of the principles of autonomy, primacy, effectiveness and the uniform application of EU law, the Court recalls that the EU legal order has its own constitutional framework and founding principles, essential characteristics of EU law which have given rise to a structured network of principles, rules and mutually interdependent legal relations binding the European Union and its Member States reciprocally.

The Court observes that the principle of the primacy of EU law requires all Member State bodies to give full effect to the various EU provisions. Thus, a Member State’s reliance on rules of national law, even of a constitutional order, cannot be allowed to undermine the unity and effectiveness of EU law.

The Court points out that respect for the equality of the Member States before the Treaties, under Article 4(2) TEU, is possible only if the Member States are unable, under the principle of the primacy of EU law, to rely on, as against the EU legal order, a unilateral measure, whatever its nature. In the same context, the Court notes that the uniform application of EU law is a fundamental requirement of the EU legal order. Such a requirement is inherent in the very existence of a community based on the rule of law and is necessary in order to ensure respect for the equality of Member States before the Treaties.

The Court also recalls that the European Union is composed of States which have freely and voluntarily committed themselves to a set of common values, respect for and promotion of which being the fundamental premiss of mutual trust between the Member States. Compliance with those values, which are given concrete expression in principles containing legally binding obligations for the Member States, cannot be reduced to an obligation which a candidate State must meet in order to accede to the European Union and which it may disregard after its accession.

Even though, as is apparent from Article 4(2) TEU, the European Union respects the national identities of the Member States, inherent in their fundamental structures, political and constitutional, such that those States enjoy a certain degree of discretion in implementing the principles of the rule of law, it in no way follows that that obligation as to the result to be achieved may vary from one Member State to another. Whilst they have separate national identities which the European Union respects, the Member States adhere to a concept of ‘the rule of law’ which they share, as a value common to their own constitutional traditions, and which they have undertaken to respect at all times. Accordingly, the Member States are required to comply, first, with the requirement that the courts be independent stemming from Article 2 and the second subparagraph of Article 19(1) TEU and, secondly, with the principle of the primacy of EU law and the obligation to refrain from taking measures which disregard the autonomy of the EU legal order.

In addition, by ratifying its Act of Accession, Poland accepted the very concept of the European Union as a legal order common to the Member States and acceded to that legal order based, inter alia, on the principle of sincere cooperation laid down in the first subparagraph of Article 4(3) TEU.

As regards the statements of the Constitutional Court in its decisions that, first, Article 2 and the second subparagraph of Article 19(1) TEU and, second, Article 4(3) TEU and Article 279 TFEU, as interpreted by the Court, are contrary to various principles enshrined in the Polish Constitution and undermine Polish constitutional identity, the Court holds that the requirements flowing from respect for values and principles such as the rule of law, effective judicial protection and judicial independence are not capable of affecting the national identity of a Member State, within the meaning of Article 4(2) TEU. Therefore, the latter provision, like Article 4(3) TEU and Article 279 TFEU, cannot exempt the Member States from the obligation to comply with those requirements.

In the second place, as regards the infringement of the principle of the binding effect of the case-law of the Court, the Court notes that Poland’s obligations ( 9 ) also apply to the rules governing the EU judicial system and, therefore, the allocation of jurisdiction between the Court of Justice and the national courts, as laid down in the Treaties.

In that regard, the Court observes that, under the first paragraph of Article 267 TFEU, it is for the Court alone to rule on the validity of EU acts and to provide the definitive and binding interpretation of EU law. The obligation on national courts against whose decisions there is no judicial remedy under national law to refer questions to the Court of Justice for a preliminary ruling, as set out in the third subparagraph of that provision, is intended, inter alia, to prevent a body of national case-law which is not in accordance with the rules of EU law from being established in any of the Member States and is thus the corollary of the exclusive jurisdiction of the Court in that regard. That exclusive jurisdiction is, moreover, confirmed by Article 344 TFEU, according to which Member States undertake not to submit a dispute concerning the interpretation or application of the Treaties to any method of settlement other than those provided for therein.

In addition, the Court points out that the rules and principles set out in Article 4(1), Article 5(2) and the first sentence of Article 13(2) TEU do not authorise national courts to rule unilaterally and definitively on the extent of the competences conferred on the European Union or on compliance with the limits of those competences. The determination of the extent of the European Union’s competences, as well as the review of compliance with the limits of those competences, necessarily involves interpreting the provisions of the Treaties, the final and binding interpretation of which is a matter for the Court in the same way as for all the other provisions of EU law.

Moreover, nor can the possibility for national courts to rule on the extent of the jurisdiction conferred on the European Union be reconciled with the necessary coherence of the system of judicial protection established by the Treaties. It is indeed for the national courts having jurisdiction to interpret the constitution of the Member State to which they belong and to determine any limits which that constitution imposes on the accession of that Member State to the European Union. However, from the date of its accession to the European Union, a Member State is bound without any reservation, with the exception of those which may be provided for by the Act of Accession, by all the provisions of primary law and by the acts adopted by the EU institutions before accession, as interpreted by the Court.

Accordingly, if a national court is uncertain as to the extent of the competences of the European Union in a given area or has doubts as to the validity of an act of EU law, on the ground that it goes beyond the sphere of the competences of the European Union or that it disregards the requirement that the European Union respect the national identities of the Member States, inherent in their fundamental political and constitutional structures, it is for the Court alone, in the context of a reference for a preliminary ruling, to provide the definitive and binding interpretation of the provisions of EU law at issue and, where appropriate, to declare that act invalid.

Thus, a court of a Member State cannot, on the basis of its own interpretation of the provisions of EU law, validly hold that the Court has given a decision disregarding the limits of the jurisdiction conferred on the European Union and refuse to give effect to that decision or prohibit the public authorities of the Member State of that court from complying with the case-law of the Court of Justice or applying provisions of EU law, as interpreted by the Court. The same applies to a decision of a constitutional court or supreme court of a Member State refusing to comply with a decision of the Court of Justice, in particular on the ground that the Court exceeded its jurisdiction or that that decision disregarded the constitutional identity of the Member State concerned, in the light of Article 4(2) TEU.

The Court observes that the latter provision has neither the object nor the effect of authorising a constitutional or supreme court of a Member State to disapply a rule of EU law, on the ground that that rule disregards the national identity of that Member State as defined by that constitutional or supreme court. Article 4(2) TEU, which must be interpreted having regard to the structure and objectives of the European Union, does not confer on the Member States the power to derogate unilaterally from the provisions of EU law by relying on that national identity.

The Court consequently holds that, where a question relating to the scope of the European Union’s competence or the legality of an act of secondary law is raised before a national court, that court is bound, where that question relates to the interpretation of EU law and irrespective of the ground of invalidity relied on, to respect the exclusive jurisdiction of the Court, which is a fundamental characteristic of the judicial system of the European Union.

More specifically, if a constitutional or supreme court of a Member State considers, first, that a provision of secondary EU law, as interpreted by the Court, infringes the obligation to respect the national identity of that Member State, that court must stay the proceedings and make a reference to the Court for a preliminary ruling, under Article 267 TFEU, in order to assess the validity of that provision in the light of Article 4(2) TEU, the Court alone having jurisdiction to declare an EU act invalid.

As regards, secondly, primary law, where a court of a Member State considers that the Court’s interpretation of a provision falling within that law fails to comply with requirements arising from Article 4(2) TEU, it cannot, on the basis of its own interpretation of EU law, validly hold that the Court has given a decision exceeding its jurisdiction and, therefore, refuse to give effect to that decision. In such a case, it must, if necessary, make a request for a preliminary ruling to the Court in order to enable it to assess any effect on that interpretation of the need to take into account the national identity of the Member State concerned.

The Court concludes that, in the light of the interpretation of the Polish Constitution by the Constitutional Court in the judgments at issue, Poland has failed to fulfil its obligations under the principles of autonomy, primacy, effectiveness and uniform application of EU law and under the principle of the binding effect of the case-law of the Court.

The third complaint

First, the Court examines the circumstances surrounding the procedure for the appointment of H.C., L.M. and M.M. to the Constitutional Court in December 2015. In that regard, in the light of the obligation on the part of the Member States to establish a system of legal remedies and procedures ensuring for individuals compliance with their right to effective judicial protection in the fields covered by EU law, the Court notes that the Constitutional Court, as a court or tribunal, within the meaning of EU law, may rule on questions concerning the application or interpretation of EU law. Accordingly, it must meet the requirements of effective judicial protection, in particular the requirement relating to a tribunal previously established by law. That requirement and the requirement of independence include the process of appointing judges and require compliance with the fundamental rules relating to the procedure governing their appointment.

The Court points out that the independence and impartiality of a judge are not called into question by every error that might take place during the procedure for the appointment of that judge. However, the requirement for a tribunal previously established by law is infringed where, on the basis of an overall assessment, in particular the nature and gravity of that irregularity create a real risk that other branches of the State, in particular the executive, could exercise undue discretion undermining the integrity of the outcome of the appointment process and thus give rise to reasonable doubt in the minds of individuals as to the independence and impartiality of the judge or judges concerned. That is the case where what is at issue are fundamental rules forming an integral part of the establishment and functioning of that judicial system.

In that context, referring to the case-law of the European Court of Human Rights, ( 10 ) the Court concludes that the appointment of three of the members of the Constitutional Court and the taking up of their duties took place in manifest disregard of the fundamental rules relating to the procedure for the appointment of judges of that court as an integral part of the establishment and functioning of the Polish judicial system. Those circumstances are such as to give rise to reasonable doubts, in the minds of individuals, as to the imperviousness of those judges to external factors, their neutrality with respect to the interests before them, and their independence and impartiality, those doubts being such as to undermine the trust which justice in a democratic society governed by the rule of law must inspire in individuals.

Turning, secondly, to the alleged irregularities surrounding the appointment of the President of the Constitutional Court in December 2016, the Court observes that the person occupying that position plays a fundamental role in the functioning of that court in that he or she directs its work, represents it and performs other functions provided for by law. Accordingly, it is particularly important that, when performing his or her duties, he or she acts objectively and impartially and that the fundamental rules governing the procedure for appointment to that post are designed and observed in such a way that they cannot give rise to any legitimate doubt as to the use of the President’s prerogatives and duties as an instrument to influence the judicial activity of that court or even to exercise political control over that activity and, more generally, as to the imperviousness of that court to external factors and its neutrality with respect to the interests before it.

In the first place, according to the Court, both J.P. and M.M.’s presentation to the President of the Republic of Poland as candidates for the position of President of the Constitutional Court and J.P.’s appointment to that position were made in breach of the fundamental rule relating to the procedure for the appointment of that President. ( 11 )

In that regard, even though the presentation of J.P. and M.M. as candidates for the post of President of the Constitutional Court might appear to have been made in accordance with that fundamental rule, the Court notes that the three judges whose appointment was vitiated by a manifest infringement of Article 194(1) of the Polish Constitution and by a failure to comply with the requirements arising from the second subparagraph of Article 19(1) TEU, namely H.C., L.M. and M.M., were among the six judges who participated, during the General Assembly, in the election of candidates to the position of President of the Constitutional Court. Accordingly, both their participation in the General Assembly and their votes cast with a view to the selection the candidates for that position of President were irregular, with the result that J.P. did not lawfully obtain the five votes required by the Law laying down introductory provisions.

In the second place, the Court finds that J.P.’s appointment was also made in manifest breach of Article 194(2) of the Polish Constitution, ( 12 ) which is a fundamental rule of the procedure for appointment to that position, since that provision precludes the presentation to the President of the Republic of Poland of candidates proposed by minority groups or by certain judges only.

The Court thus concludes that those irregularities are capable of giving rise to reasonable doubt, in the minds of individuals, as to J.P.’s use of the powers and functions associated with the position of President of the Constitutional Court as an instrument for influencing the judicial activity of that court or for the political control of that activity and, therefore, as to the independence and impartiality of that court.

Furthermore, the Court observes that the decisions in the adoption of which H.C., L.M., M.M. and J.P. took part continued to exist in the Polish legal order on the date of expiry of the period laid down in the reasoned opinion.

In the light of those findings, the Court holds that, since the Constitutional Court does not satisfy the requirements of an independent and impartial tribunal previously established by law on account of irregularities in the procedure for the appointment of three of its members in December 2015 and of its President in December 2016, Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU.

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( 1 ) Judgments of 3 December 2015 (Case K 34/15) and of 9 December 2015 (Case K 35/15).

( 2 ) In the judgment of 14 July 2021 (Case P 7/20), the Constitutional Court examined the compatibility with the Polish Constitution of the interim measures imposed on the Republic of Poland by the Court of Justice, in particular the measure requiring it to suspend the application of the legislative provisions conferring on the Izba Dyscyplinarna (Disciplinary Chamber) of the Sąd Najwyższy (Supreme Court, Poland) jurisdiction in disciplinary cases relating to judges. The Constitutional Court concluded that, in so far as the Court imposed ultra vires obligations on Poland, pursuant to the second subparagraph of Article 4(3) TEU, read in conjunction with Article 279 TFEU, by adopting interim measures relating to the organisation and jurisdiction of the Polish courts and to the procedure before those courts, the case-law interpreting those provisions was contrary to the Polish Constitution. Furthermore, according to the Constitutional Court, ‘the norms created by the Court’ should not benefit from the principles of primacy and direct effect of EU law. That judgment had ex tunc effects and was addressed to all those applying EU law in the territory of the Republic of Poland.

( 3 ) By its judgment of 7 October 2021 (Case K 3/21), the Constitutional Court held that, in so far as EU bodies exceed the powers transferred by the Republic of Poland and in so far as the Polish Constitution ceases to constitute the supreme norm of the national legal order, thereby jeopardising the exercise of Polish sovereignty, the first and second paragraphs of Article 1 TEU, read in conjunction with Article 4(3) TEU, are contrary to the Polish Constitution. The interpretation of the second subparagraph of Article 19(1) TEU, conferring on national courts the power to disregard provisions of the Polish Constitution or to base their decisions on provisions repealed by the legislature or declared unconstitutional by the Constitutional Court, would also infringe the Polish Constitution. Furthermore, Article 2 and Article 19(1) TEU are contrary to the Polish Constitution, in so far as they confer on national courts powers to review the legality of the procedure for appointing judges, to review the lawfulness of resolutions of the Krajowa Rada Sądownictwa (National Council of the Judiciary, Poland; ‘the KRS’) submitting proposals for appointment to the President of the Republic, or to call into question the status of a judge.

( 4 ) Konstytucja Rzeczypospolitej Polskiej (Constitution of the Republic of Poland; ‘the Polish Constitution’).

( 5 ) The Commission maintains, first, that, in the light of the interpretation of the Polish Constitution made by the Constitutional Court in its judgments of 14 July 2021 and 7 October 2021, Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU. Secondly, in the light of those judgments, Poland has failed to fulfil its obligations under the general principles of autonomy, primacy, effectiveness and uniform application of EU law and under the principle of the binding effect of judgments of the Court. Thirdly, the Commission also asserts that, since the Constitutional Court does not satisfy the requirements of an independent and impartial tribunal previously established by law on account of irregularities in the appointment procedures of three of its members in December 2015 and of its President in December 2016, Poland has also failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU.

( 6 ) In its rejoinder, Poland fully accepted the complaints raised by the Commission. In such a situation, it is nevertheless for the Court to determine whether or not the alleged breach of obligations exists, even if the State concerned does not deny or no longer denies that breach.

( 7 ) In particular, the judgments of 2 March 2021, A.B. and Others (Appointment of Judges to the Supreme Court) (C‑824/18, EU:C:2021:153) and of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment) (C‑487/19, EU:C:2021:798).

( 8 ) Order of 8 April 2020, Commission v Poland (C‑791/19 R, EU:C:2020:277).

( 9 ) In accordance with the principle of sincere cooperation laid down in the first subparagraph of Article 4(3) TEU, and, pursuant to the second subparagraph of Article 4(3) TEU.

( 10 ) By judgment of 7 May 2021, Xero Flor w Polsce sp. z o.o. v. Poland (CE:ECHR:2021:0507JUD000490718, § 290 and 291), the European Court of Human Rights, hearing a case brought by a company whose constitutional complaint had been dismissed by the Constitutional Court, held that the appointment within that court of the judge M.M., one of the judges who had sat on the panel which had examined its constitutional complaint, had been vitiated by grave irregularities that impaired the very essence of the right to a ‘tribunal established by law’ enshrined in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950. That court concluded that the applicant had been deprived of that right on account of M.M.’s participation in the proceedings before the Constitutional Court. See also judgment of 15 March 2022, Grzęda v. Poland (CE:ECHR:2022:0315JUD00435721, § 277).

( 11 ) Article 21(7) and (8) of the ustawa przepisy wprowadzające ustawę o organizacji i trybie postępowania przed Trybunałem Konstytucyjnym oraz o statusie sędziów Trybunału Konstytucyjnego (Law laying down introductory provisions in the Law on the organisation of the Constitutional Court and procedures before it and the Law on the status of judges of the Constitutional Court) (‘the Law laying down introductory provisions’) provides: ‘7. The General Assembly shall propose as candidates for the position of President of the [Constitutional Court], in the form of a resolution, all judges of the [Constitutional Court] who have obtained at least five votes in the vote referred to in paragraph 5. 8. If the number of votes required under paragraph 7 has been obtained by one judge of the [Constitutional Court] only, the General Assembly shall propose as candidates for the position of President of the [Constitutional Court], in the form of a resolution, the judge of the [Constitutional Court] who obtained the required minimum number of five votes and the judge of the [Constitutional Court] who received the most support from among the judges of the [Constitutional Court] who did not reach the required number of at least five votes.’

( 12 ) Under that provision, the President and Vice-President of the Constitutional Court are to be appointed by the President of the Republic of Poland from among the candidates presented by the General Assembly of Judges of the Constitutional Court.