Poland’s Judicial Reform Before the European Courts: What Makes a Court a Non-Majoritarian Institution?

Table of Contents: 1. Introduction. – 2. Situating judicial reform in Poland in a broader context. – 3. The role of regional courts in establishing the European standard of a court as a non-majoritarian institution. – 3.1. Multi-layered constitutionalism, European courts, and the rule of law crisis in Poland. – 3.2. Judicial reform in Poland before the CJEU. – 3.2.1. Discriminatory changes that lowered the retirement age of the judges. – 3.2.2. The status of the Disciplinary Chamber. – 3.2.2. The judicial appointment procedure. – 3.2.3. The disciplinary liability regime. – 3.2.4. Forms of indirect systemic pressure on judges. – 3.3. Judicial reform in Poland before the ECtHR. – 3.3.1. Cases focused on the right to a court established by law. – 3.3.2. Cases focused on the right of access to a court in cases concerning domestic judges. – 4. Conclusions.

Abstract: The rule of law crisis in Poland underscores the importance of European courts and multi-layered constitutionalism in establishing a minimum standard that national courts must meet to function as non-majoritarian institutions. Analysing the case law of the CJEU and the ECtHR concerning judicial reform in Poland, the paper investigates whether and how the rulings of these two European courts on various aspects of the controversial judicial reform implemented in Poland during the Law and Justice government (2015-2023) can help define what qualifies a court as a non-majoritarian institution. In particular, this Article explores the role of European courts in shaping the political discourse surrounding judicial power in Europe, thereby promoting strong standards for effective, independent, and rule-of-law-compliant national courts. It claims that the judicial resistance of Polish judges was a key factor in the dynamic development of European courts’ case law on judicial independence and contributed to the more dynamic and comprehensive response of the European courts. Judgments of both European courts certainly provided significant argumentative support for common and administrative courts in their efforts to counteract the deepening crisis of the rule of law; however, their systemic effectiveness in compensating for the defective operation of the Polish apex courts turned out to be rather limited. This article is part of a contribution to a Special Section that critically analyses the role of non-majoritarian instruments and institutions with respect to three challenges that shape contemporary democracies in Europe: socio-economic inequality and discrimination, growing authoritarianism, and the pressing climate crisis.

Keywords: judicial independence – rule of law – CJEU – ECtHR – authoritarian populism – Poland.

1.   Introduction 

Non-majoritarian institutions are generally understood as entities that are not directly elected or managed by elected officials,[1]deriving their legitimacy from expert decision-making.[2] In the realm of contemporary public law, various types of non-majoritarian actors – such as central banks, regulatory authorities, public service providers, quasi-autonomous non-governmental organizations (quangos), and oversight bodies[3] – exist, with courts occupying a distinct position. Firstly, they are seen as protectors of marginalized minorities against the majority’s decisions in a system characterized by the separation of powers.[4] Secondly, although often criticized,[5] the rise of judicial activism tends to enhance the courts’ role in setting standards for the protection of fundamental rights. Lastly, within the framework of democratic separation of powers, courts uniquely possess the authority to check the actions of both the executive and legislative branches. However, even with their capacity to hold other branches of power accountable, courts are viewed as the least dangerous branch of government.[6]

This understanding of courts’ constitutional functions has evolved alongside recent trends attempting to decouple democracy from liberalism.[7] A notable aspect of the current dissensus over liberal democracy is the rise of contemporary populism. Jan Werner-Müller defines populism as a political movement characterized by anti-elitism and anti-pluralism, posing a threat to democracy since populists claim to be the only legitimate representatives of a pure, unified people.[8] Nadia Urbinati describes populism as a skewed form of representative politics that can significantly distort the functioning of democracy, even while nominally honouring its principles. As a movement seeking political power, populism drastically impacts both the manner and substance of public discourse, consequently distorting democracy.[9] Furthermore, a variant termed technopopulism urges all political players to embrace both technocratic and populist narratives and strategies.[10]

Populists in power confront liberal orders grounded in fundamental rights, the rule of law, and democracy.[11] Consequently, they often view courts as an ‘elitist’ hindrance to the ‘will of the people’ and might seek to weaken their independence and authority. This can occur in various forms, such as attempts to capture supreme courts, challenge judicial rulings, and erode the rule of law. Moreover, populist leaders may adopt rhetoric that depicts courts as disconnected from public opinion, which further erodes public trust. Such governments use a range of tactics to dominate and politicize the judiciary, thereby removing obstacles to often unconstitutional changes they want to implement in the nation’s political framework.[12] As Wojciech Sadurski correctly observes, populism has recently surged, leading to the rise of populist regimes that follow a largely uniform strategy for dismantling liberal democracy.[13] However, case study research unveils some variations among countries.[14] These may address a range of issues, including the national context of populists achieving power, the constitution’s role in political change – like the enactment of constitutional amendments – the strength of civil society resistance, courts’ resistance, and critically, the engagement of institutions within multi-layered constitutionalism, particularly international/supranational courts. This paper primarily focuses on the engagement of supranational courts, as well as the resistance of domestic courts. It aims to analyse the case law of the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) concerning the controversial judicial reforms instituted in Poland during the Law and Justice government from 2015 to 2023. As some of the examined cases were brought forth by judges themselves (individual complaints to the ECtHR) or initiated by courts (as preliminary references to the CJEU), the paper also showcases the judiciary’s internal mobilization in response to the crisis of the rule of law. Therefore, the article adopts a multi-layered constitutionalism perspective, highlighting the need to consider both the top-down and bottom-up aspects of assessing judicial reform in Poland by supranational courts.

 Populists’ attack on the Polish justice system has been the subject of extensive academic analysis, particularly in relation to the criticisms voiced by the CJEU and the ECtHR. Some studies have focused on specific aspects of the judicial reform and their impact on the Polish legal framework.[15] Others have provided case studies of individual rulings from the CJEU or ECtHR in response to these judicial changes.[16] Another group of publications has sought to comprehensively address the rule of law crisis in Poland, positing that the legislative amendments affecting the judiciary were a key element of this crisis, as well as factors that enabled further distortions of the constitutional system established in 1997.[17] Many previous analyses, particularly those examining supranational responses to the ongoing rule of law crisis in Poland, have highlighted how the controversial judicial reforms provided the CJEU and the ECHR with opportunities to refine their case law on Article 19 TEU and Article 6 of the Convention, respectively.[18] Consequently, the judgments issued by both European courts regarding the contentious changes to the judiciary introduced under the Law and Justice party (PiS) government have contributed to the evolution of European standards concerning the principles of effective judicial protection and the right to a fair trial. 

This article takes a broader perspective, examining the Polish judicial reforms and their assessment by both major European courts within the context of the current debate about the role of courts and judges as non-majoritarian actors amid the rising political dissensus in Europe. The central claim of this article is that the proper functioning of courts as non-majoritarian institutions is crucial for both the separation of powers and the protection of individual rights. It shows that the rule of law aspect of the populists’ attack on judicial independence is intertwined with the human rights dimension of it. Courts, as non-majoritarian institutions, not only serve as protectors of minority rights but can also act in a counter-majoritarian manner. Courts cannot operate properly without independent judges whose independence is also a subjective fundamental right inherent in the professional role they perform.[19]Only with a systemically guaranteed judicial independence can judges fulfil their role in a liberal democracy undisturbedly, which consists of the three main obligations indicated by Leslie Green: to apply the law, to improve the law, and to protect the law.[20]

The article also aims at answering two research questions: i) why exactly the Polish developments generated such an important activism by the European Courts, and how did the attitude of Polish judges influence this development? ii) Could the ECtHR and the CJEU effectively compensate for the defective operation of the Polish apex courts in light of the implementation of their judgments? 

This article unfolds as follows. After this introduction, Section 2 explores the origins and trajectory of judicial reform in Poland. While the reform was defended by targeting the so-called ‘juristocracy’ – which refers to the increasing dependence on courts and judicial methods for addressing fundamental political issues[21] – this section underscores the gap between this narrative and the real outcomes of the legislative efforts. It also highlights the dynamics of the populist government and parliamentary majority, as well as the systemic forms of resistance by independent judges. Section 3 investigates the supranational judicial reaction to Poland’s judicial reform, focusing on how the case law of the CJEU and the ECtHR co-shapes the standard of a genuinely non-majoritarian court. The non-majoritarian character of courts is crucial for defining what is effective judicial protection under Article 19(1)(2) TEU and the right to a fair trial as enshrined in Article 6 of the Convention. The article situates the case law of both courts within the broader framework of the growing significance of multi-layered constitutionalism amid democratic erosion. Lastly, the conclusion in Section 4 reflects on the role of European courts as non-majoritarian entities that shape the political dialogue concerning judicial authority in Europe, promoting robust standards for effective, independent, and rule-of-law-compliant national courts. It also contains answers to the two research questions posed above. While the answer to the first question corresponds mainly to the bottom-up aspect of the assessment of the judicial reform in Poland by both European courts, the answer to the second question concerns the effectiveness of the activities of international courts and, in this respect, is mainly related to the top-down aspect of the analysed European courts’ case-law. 

2.   Situating the judicial reform in Poland in a broader context. 

The right-wing Law and Justice (PiS) party in Poland began criticizing the judiciary and advocating for judicial reform prior to its 2015 parliamentary election victory. This criticism largely reflected public sentiments toward the courts and the judiciary’s negative reputation in Polish society.[22] However, PiS’s call for judicial reform should be viewed within the larger context of its political agenda, which had identified the need for constitutional change as early as 2010. The Polish right’s reluctance towards the current 1997 Constitution stems partly from the perception that right-wing parties were inadequately represented during its drafting.[23]When PiS first held power from 2005 to 2007, it displayed elements of populism and advocated a vision for a state that challenged the existing constitution. In 2005, PiS proposed a new constitutional draft, reflecting its vision characterized by conservatism, nationalism, and community-focused republicanism.[24] However, it lacked the necessary support in the Sejm (the lower chamber of the Polish parliament) to become law or be seriously debated. By 2010, under a centre-right coalition, PiS reviewed the draft but quickly removed it from its website as it geared up for the 2011 elections.[25] This action can be seen as a symbolic abandonment of the formal constitutional change idea, favouring instead unconstitutional outcomes through a series of statutory amendments outside the standard constitutional amendment process, effectively sidelining the constitution’s guardian. This approach, termed ‘statutory anti-constitutionalism’ by Maciej Bernatt and Michał Ziółkowski, was successfully executed between 2015 and 2023.[26]

Following its electoral win in 2015, Law and Justice renewed its efforts to implement its political goals. However, in both 2015 and 2019, the right-wing coalition lacked the majority needed to amend the constitution (requirement of a two-thirds majority in the Sejm and an absolute majority in the Senate). Consequently, from the outset, PiS’s leaders articulated a majoritarian view of democracy, emphasizing the nation’s sovereign power as declared in Article 4 of the Polish Constitution.[27] Their aggressive communication techniques included propaganda-like tactics to discredit opponents and increasingly harsh critiques of the judicialization of politics.[28] The legal changes branded as ‘reform’ of the justice system, which I will detail in subsequent paragraphs, were prefaced by a ‘Fair Courts’ billboard campaign targeting judges. Media outlets supportive of the government portrayed judges as a ‘caste’ and depicted them as an untouchable, elite group engaged in unscrupulous practices that tarnish the dignity of the profession.[29] These efforts aimed to undermine judicial authority and rationalize further legislative actions.[30]

Shortly after the first legislative actions regarding the judiciary introduced by the PiS parliamentary majority in 2016 and 2017, it became evident that the then parliamentary majority was determined to introduce profound systemic changes through ordinary laws, even if they were inconsistent with the prevailing constitutional interpretation. The judicial reform led to the dismantling of the constitutional checks and balances system, with the primary goal being to subordinate judicial power to the executive rather than combat the judicialization of politics itself. The first target was the Constitutional Tribunal (CT) as the judicial review body.[31]After several measures aimed at rendering the CT powerless to curb arbitrary power (such as the adoption of new laws concerning the CT that made it procedurally more difficult, and often impossible, to issue any judgment, or the refusal to publish the CT), described by Sadurski as a ‘paralysis’ stage,[32] the parliamentary majority began using the effectively captured CT against the opposition and in support of the ruling party. Therefore, in contrast to the traditional counter-majoritarian role of constitutional courts, the CT has transformed into an active supporter of the parliamentary majority. The government has found this useful for legitimizing its power and has also legitimized the CT by activating it with its own motions. Moreover, on their merits, the CT judgments served to aid PiS’s legislative and political agenda.[33]

The next goal was the subordination of the National Council of the Judiciary (NCJ). This constitutional body is intended to safeguard the independence of the courts and plays a crucial role in the judicial appointment process in Poland. The NCJ reviews candidates for judge positions, while the President of Poland formally appoints judges based on the NCJ’s recommendations. The NCJ comprises 25 members: 15 judges, 6 representatives from both parliamentary chambers, the President, the Minister of Justice, and the Presidents of the two highest courts. Until 2018, the judges were appointed to the NCJ by their peers. However, at the end of 2017, the appointment power was transferred to Parliament, giving it control over the appointment of 21 out of 25 NCJ members.[34] The procedure for appointing judges as NCJ members was politicized in this way, allowing the parliamentary majority to control new appointments and judges’ promotions. Simultaneously, the Supreme Court (SC) reform was introduced. The amendment of the statutory regulation regarding the retirement age of SC judges aimed to eliminate many politically independent and experienced judges from the so-called ‘old’ chambers of the SC, distinguishing them from the two ‘new chambers’: the Disciplinary Chamber (currently the Chamber of Professional Liability) and the Chamber of Extraordinary Review and Public Affairs. Both ‘new chambers’ consist solely of new judge-members supported by the politicized NCJ. Concerning common and administrative courts, the reform occurred in two ways. Firstly, PiS focused on personnel changes; the Minister of Justice, overseeing the judiciary from an administrative perspective, implemented significant changes to the positions of Presidents and Vice-Presidents of courts at various levels of the judiciary. This made it easier for the executive to exert indirect pressure on issues related to adjudication. This pressure took various forms, such as a formal ‘recommendation’ to ignore the SC resolution that implemented one of the CJEU judgments related to the judiciary reform in Poland, or a request to send information about ‘rulings of common courts concerning in any respect the issue of the status of judges appointed by the President of the Republic of Poland at the request of the politicized NCJ’.[35] Secondly, at the end of 2019, the parliamentary majority passed a controversial amendment to the Act on the System of Common Courts.[36] It was quickly dubbed ‘the muzzle law’ since it was designed to increase limitations on the Polish judiciary. This controversial piece of legislation intended to bar judges from questioning judicial appointments made by the president (at the request of the politicized NCJ), thereby restricting their ability to apply the Constitution and EU law directly. The muzzle law also prohibited judges from engaging in political activity.[37] The act also obliged judges to submit membership declarations in associations and societies. As legal self-governments, associations of judges, and the Ombudsman argued, introducing such an obligation was questionable from the perspective of constitutional compliance with rights and freedoms. It could be used as a means of general vetting of the public activity of judges and prosecutors. In many cases, making information about them public can also lead to the disclosure of their worldviews, beliefs, and even sexual orientation (this is how membership in organizations defending the rights of LGBT people can be interpreted). Meanwhile, the Constitution clearly prohibits obliging citizens to disclose this type of data.

Additionally, six months before the muzzle law took effect, Justice Minister Zbigniew Ziobro appointed the Disciplinary Commissioner for ordinary court judges along with two deputies to investigate potential disciplinary violations by judges. They initiated disciplinary proceedings against those who criticized the contentious alterations in the judiciary.[38] Gradually, it became evident that, contrary to the claims made by the Law and Justice party, the new disciplinary processes did not promote greater judicial transparency. Instead, they were weaponized, and as F. Zoll and L. Wortham noted, served as a ‘silver bullet’ to undermine the constitutional safeguards of judicial independence shrouded in autocratic legalism.[39]

In 2023, following eight years under the United Right government, and just prior to the parliamentary elections won by the democratic opposition, the status of the Polish judiciary was intricate. Although initially criticized, apex courts (CT and SC), once effectively taken over, turned into institutions that significantly legitimized and enhanced populist power. Concurrent with the ongoing politicization of the highest courts, there was a notable shift in populist rhetoric regarding the judiciary. The narrative surrounding juristocracy faded into obscurity. Despite earlier criticisms of supposed judicial activism and the politicization of the judiciary, apex courts became central to shaping public policy through their decisions.[40] At this juncture, the primary target of criticism transitioned to individual judges who spoke out against judicial reforms, rather than the courts themselves. This shift contributed to the submission of preliminary questions to the CJEU and individual complaints to the ECtHR regarding judges facing various forms of indirect systemic pressure, thereby activating multi-layered constitutionalism. Within ordinary and administrative courts, aside from those judges legally appointed or promoted prior to 2018, the number of individuals appointed to judicial posts with the support of the politicized NCJ steadily increased. From 2018 to August 2023, the President appointed 2,204 ‘neo-judges’ – a term used in independent media to differentiate them from legally appointed judges – across all court types.[41]

3.   The role of regional courts in establishing the European standard of a court as a non-majoritarian institution. 

3.1.  Multi-layered constitutionalism, European courts, and the rule of law crisis in Poland

The analysis of CJEU and ECtHR case law in matters related to judiciary reform requires viewing these judgments through a broader lens that considers the involvement of institutions in multi-layered constitutionalism in countering the rule of law crisis in Poland. European courts, like domestic courts, safeguard liberal limits on majoritarianism, making them frequent targets of criticism from populists. Populist backlashes against international courts often arise following attempts to curb domestic courts, usually for similar reasons.[42] Nonetheless, despite these attempts, regional courts, as non-majoritarian institutions of multi-layered constitutionalism, possess systemic potential to impose constitutional limits on populist-driven changes within domestic legal systems. In the case of judicial reform in Poland, both the CJEU and the ECtHR, as European apex courts, have participated in shaping the legal standards that ensure the proper functioning of courts as non-majoritarian institutions, which is crucial for both the separation of powers and the protection of individual rights. This paper examines this phenomenon from both bottom-up and top-down perspectives.

The first perspective underscores the significance of the changes in the Polish political and legal system post-2015, with judicial reform being one of the key elements. These changes have resulted in a crisis of the rule of law, evidenced predominantly by the diminishing significance of constitutional norms in political practice. Autocratic legalism, characteristic of contemporary populist governments, encompasses the non-application, abuse, or selective enforcement of laws and the constitution, which pertains to the erosion of the constitution’s standing within the political system. Pablo Castillo-Ortiz describes this as the ‘denormativisation’ of the constitution.[43] A notable aspect of this ‘denormativisation’ in Poland was the effective capture of the CT. Consequently, the absence of a lawfully operating judicial review body at the national level became a primary reason for the shift towards multi-layered constitutionalism and European courts. This transition towards supranational institutions was accompanied by a change in the perception of EU law, albeit to a lesser extent and largely secondary regarding the legal system of the Council of Europe. The previously somewhat restrained behaviour of Polish judges and courts toward the preliminary procedure and the application of EU law – despite a gradual evolution towards a more open stance – has experienced qualitative and, to a lesser extent, quantitative change.[44] Rule of law activists, NGOs, and certain judges opposing controversial legislative changes have also recognized the significance of supranational institutions amid the rule of law crisis in Poland.[45] The acknowledgment of supranational constitutionalism by various social actors resulted in a transformation of legal culture. European courts, including the CJEU and the ECtHR, began to be recognized as quasi-constitutional courts by Polish courts. European standards, which align axiologically with the Polish constitution, are now viewed as a means to restore the political and legal significance of the national constitution.

The top-down perspective, conversely, allows us to regard the rule of law crisis in Poland as an opportunity for supranational institutions to enhance the importance of European norms. This opportunity was initially recognized, and to some degree, seized by EU institutions, particularly the CJEU. The CJEU swiftly identified the rule of law crisis in Poland (and in other EU countries, such as Hungary and Romania) as a pivotal moment for EU constitutionalism, utilizing it to fortify the role of Article 19(1)(2) TEU and Article 2 TEU within the EU legal framework. The ECtHR, as a regional international court with established and broadly uncontested competence to define the standards of fundamental rights protection applicable within the Council of Europe legal system, only indirectly addresses violations of the rule of law. From the ECtHR’s viewpoint, the judicial reform in Poland did not significantly impact its ability to expand previous jurisdiction. Nonetheless, regarding ECtHR jurisprudence connected to the judicial reform in Poland, the systemic issues that Polish judges have grappled with since 2015 imply that individual complaints related to the judiciary reform in Poland have significantly developed the previously established Strasbourg standard of a national court as a genuinely non-majoritarian institution. 

The two perspectives are complementary and consistent. While it might initially seem that the top-down approach is solely focused on strengthening supranational institutions, it actually aims to uphold the effectiveness of the national constitution, supported by the axiological coherence between national and supranational legal orders. Thus, analysing the judicial reform in Poland in the light of European courts involves more than the primacy of EU law over national laws and the effectiveness of Strasbourg’s fundamental rights standards. Primarily, it addresses the multi-layered safeguarding of the national constitution and the formation of a coherent European standard for courts as non-majoritarian institutions, which can counter majority rule during periods of constitutional populism.

3.2.  Judicial reform in Poland before the CJEU 

The analysis of the CJEU case-law on judicial reform in Poland must take into account the wider EU rule of law toolbox, which encompasses both preventive and corrective measures. This toolbox features various legal and political mechanisms: firstly, proceedings before the CJEU, primarily those initiated under the infringement procedure in Article 258 TFEU; secondly, the process under Article 7, which addresses violations of the common values highlighted in Article 2; and thirdly, the rule of law conditionality mechanism, allowing for the suspension of EU funding to a Member State that breaches the rule of law. These mechanisms have all been employed in relation to Poland during the tenure of the Law and Justice government.

Regarding the Court of Justice of the European Union (CJEU) case-law on judicial reform in Poland, including preliminary rulings, its effectiveness has been hindered by the inherently slow pace of court proceedings, particularly in contrast to the rapid violations of the rule of law committed by national authorities. Furthermore, the remedial measures enacted by national authorities have often appeared superficial. Additionally, the politicized Constitutional Tribunal (CT) has not only obstructed the enforcement of the CJEU’s preliminary rulings on judicial reform[46] but has also issued unprecedented judgments in the context of European constitutionalism, calling into question the alignment of primary EU law provisions, such as Article 19(1)(2) of the CJEU, with the Polish Constitution.[47] Nevertheless, the actions of the populist government and the compromised constitutional court underscore the importance of the analysed CJEU jurisprudence. This jurisprudence represents a vital judicial voice at the EU level, setting the standards that national courts must uphold to operate as truly non-majoritarian judicial institutions.[48]

Without a doubt, the primary normative reference for defining the EU standard for national courts as comprehensive non-majoritarian bodies has been Article 19(1)(2) TEU (effective judicial protection).[49] Its increasing normative importance in shaping the model of an independent national court, especially when compared to Article 47 of the Charter (right to an effective remedy and to a fair trial), was evident in the landmark Associação Sindical dos Juízes Portugueses (ASJP) case.[50] This case afforded the CJEU a significant opportunity to express the principle of effective judicial protection as a vital tool for upholding the values and principles enshrined in Article 2 TEU,[51] and it has profoundly influenced the dynamics of the European dimension of Poland’s rule of law crisis.[52]

The CJEU has faced various facets of judicial reform in Poland: i) the discriminatory changes that lowered judges’ retirement ages; ii) the status of the Supreme Court’s Disciplinary Chamber; iii) the judicial appointment process; iv) the regime for disciplinary liability; v) forms of indirect systemic pressure on judges, such as transfers to different courts or between divisions of the same court. Each of these controversial aspects of systemic changes in the Polish judiciary has served as a reference point to help shape the EU standard for national courts as non-majoritarian institutions. 

3.2.1.   Discriminatory changes that lowered the retirement age of the judges

The CJEU first examined the discriminatory changes made to the law governing ordinary courts and the Act on the Supreme Court, which reduced the retirement age for judges. These changes were among the initial aspects of the judiciary reform reviewed by the CJEU. Despite the Polish authorities revising these regulations due to pressure from EU institutions, and reinstating judges who had previously been removed under these rules, the CJEU decided to proceed with the cases. In its judgments in cases C-619/18[53] and C-192/18,[54] the CJEU emphasized that independence (including the irremovability of judges) and the rule of law are vital for ensuring effective judicial protection. Consequently, the CJEU determined that by implementing the aforementioned changes, the Polish authorities did not meet their obligations under Article 19(1) and (2) TEU.  

3.2.2.   The status of the Disciplinary Chamber

The second aspect of the reform examined by the CJEU involved the status of the Disciplinary Chamber of the SC, which possesses distinct competencies and a unique standing within the SC. This aspect also indirectly pertains to the NCJ due to its vital role in the judicial appointment process, including that of the Disciplinary Chamber. In the much-awaited ruling A.K. in joined cases C-585/18, C-624/18, and C-625/18,[55] the CJEU concentrated on the independence of the Disciplinary Chamber. The preliminary references originated from one of the older chambers of the SC: the Labour and Social Insurance Chamber, before which the cases were pending. The referring court assumed a substitute role, as the cases were brought before it only because the Disciplinary Chamber, intended to handle similar matters, had not yet been established. The referring court aimed to clarify with the CJEU whether the future Disciplinary Chamber and its members would ensure adequate guarantees of independence and impartiality.

The CJEU based this traditional preliminary judgment on the ‘test of independence’, which necessitates evaluating and weighing all contentious circumstances surrounding the appointment of judges – specifically, those appointed to the Disciplinary Chamber – and determining whether these collectively justify reasonable doubts among citizens regarding the court’s independence. As M. Krajewski and M. Ziółkowski highlight, ‘this concept is rooted in the understanding that, since it is impossible to ascertain the profound and genuine motives behind judges’ decisions, the most we can do is, among other things, establish a procedure for judicial appointments and removals that ‘cannot give rise to reasonable doubts, in the minds of individuals, as to the imperviousness of the judges concerned to external factors and as to their neutrality concerning the interests before them, once appointed as judges’.[56]

The CJEU’s methodology in this ‘holistic approach’ to judicial independence was undoubtedly influenced by concerns about the systemic ramifications for the EU as a whole, based on the opinion of AG Tanchev.[57] Nevertheless, as a classic preliminary ruling offering a nuanced interpretation of EU law, the A.K. judgment was relatively easy to challenge at the domestic level. The SC issued two rulings intended to implement the A.K. decision, applying the independence test to the Disciplinary Chamber and concluding that it does not fulfil the required standards for an independent and impartial judicial body, as it fails the independence criteria established by the CJEU in the A.K. ruling (the SC judgment of 5 December 2019[58] and the resolution of three combined (old) Chambers of the Supreme Court of 23 January 2020).[59] However, the legitimacy of these rulings has been challenged by the captured CT.[60]

The judicial appointment procedure

The third reform element examined by the CJEU was the NCJ and judicial appointment procedure. This issue was central to case A.B. C-824/18, which was referred by the Supreme Administrative Court (SAC). The domestic court’s case involved an appeal against NCJ resolutions, in which the NCJ chose not to recommend five candidates for judicial positions in two of the Supreme Court’s three ‘old’ chambers. During the appeal process, the SAC ordered a suspension of the resolutions. Nonetheless, the President proceeded to appoint the candidates proposed by the NCJ to the SC. On 25 March 2019,[61] the captured CT ruled that a provision in the Act on the NCJ, which granted the SAC the authority to consider appeals against resolutions concerning individual SC judge appointments, was unconstitutional. The CT’s ruling led to a modification of the Act on the NCJ, eliminating judicial review from the Supreme Court judge appointment process altogether.[62] The amended Act stipulated the termination of proceedings related to appeals against NCJ resolutions for individual Supreme Court judge appointments that had begun but were not finalized, effective by law. However, the SAC maintained its preliminary questions to the CJEU. The referring court sought the CJEU’s interpretation of Article 19(1)(2) TEU (the principle of effective judicial protection of rights under EU law) and Article 267 TFEU (the ability of national courts to initiate the preliminary ruling process) in relation to Polish law.

Although the CJEU’s judgment of 2 March 2021 in case A.B. is framed as a typical guidance case, as categorized by Tridimas,[63] it strongly articulates the minimum standards for judicial appointment procedures in Member States under Article 19(1)(2) TEU, which are essential for the functioning of an independent court as a non-majoritarian body.[64] In response to this ruling, the SAC annulled the NCJ’s decision. However, it also clarified that the ruling’s effects do not affect the systemic validity and efficacy of presidential acts regarding judicial appointments.[65]

The disciplinary liability regime

The fourth element of the judicial reform assessed by the CJEU was the new disciplinary liability regime and the ‘muzzle law’, which, however, also referred to the status of the Disciplinary Chamber of the SC to a great extent (and therefore partially overlaps thematically with the first of the issues discussed). 

The first ruling that addressed this issue was the judgment of 15 July 2021 in case C-791/19. It was delivered during exceptional dynamics in the judicial dimension of the dispute over the reform of the judiciary in Poland, emphasizing the nexus between Article 19(1)(2) TEU and the rule of law.[66] The CJEU found all five allegations made by the European Commission in the case at hand to be well-founded, which further led to the conclusion that the Disciplinary Chamber of the SC, principles of disciplinary liability of judges, and the other elements of the disciplinary regime did not comply the EU law and required either profound changes or nullification.[67] The CJEU, among others, declared that Poland failed to guarantee that disciplinary cases were examined by a tribunal ‘established by law’ by conferring discretionary power on the President of the Disciplinary Chamber to designate the disciplinary tribunal with jurisdiction at first instance in cases concerning judges of the ordinary courts. This strong statement demonstrates that the CJEU acknowledged a significant connection between systemic measures to ensure the independence of the judicial body and the standard of the court ‘established by law’. 

In the judgment of 5 June 2023, the CJEU once again addressed the issue of the disciplinary liability regime for judges in Poland. Although the case outcome was largely expected, the decision was notable for recognizing some of the more insidious ways Poland has undermined judicial independence. The CJEU pointed out that the ‘muzzle law’ was intended to limit the possibility for national courts to use a preliminary procedure and reiterated that the Disciplinary Chamber was a body violating Article 19(1)(2) TEU.

Forms of indirect systemic pressure on judges

The final element of the judicial reform that came under scrutiny by the CJEU concerned indirect systemic pressure on independent judges, which manifested as transferring judges without their consent to another court or between two divisions of the same court. In the judgment of 6 October 2021 in case C-487/19 W.Ż. concerning dissenting judge Waldemar Żurek, the CJEU ruled that such transfers may violate the principles of irremovability and independence of judges. The case was referred to the CJEU by the Civil Chamber of the Supreme Court, which requested a ruling on the president of the Regional Court of Krakow’s decision to transfer Judge Waldemar Żurek from one court division to another without his consent. Nevertheless, the CJEU also included a more surprising and, in a sense, groundbreaking, statement in its decision. It found that a decision by which a body adjudicating in the last instance and a single judge’s bench dismissed the appeal of a judge transferred against his will should be considered null and void if the appointment of that single judge occurred in flagrant violation of the fundamental norms concerning the structure and functioning of the judicial system in question. As R. Mańko and P. Tacik note, this statement addresses the complex issue of what status should be ascribed to rulings issued by persons whose judicial appointments are deemed irregular. The CJEU’s decision in case W.Ż. can be read as developing the principle of primacy to the point where it necessitates, in certain situations, considering rulings issued by persons appointed irregularly to judicial office as legally non-existent under EU law.[68] However, this far-reaching interpretation of the CJEU ruling is not coherent with the CJEU’s somewhat hesitant approach to preliminary questions submitted by judges who have been incorrectly appointed.[69]

It is also worth noting that, to date, the CJEU has not yet ruled on Case C-448/23,[70] which was brought on appeal in connection with the controversial rulings of the politicized Court of Justice in Cases P 7/20[71] and K 3/21.[72] In both rulings issued with the participation of so-called ‘double judges’, the CT ruled on the scope of the unconstitutionality of EU primary law. Both cases were initiated as a direct response to the judgments and interim orders of the CJEU in cases related to the reorganization of the Polish judiciary. 

3.2.   Judicial reform in Poland before the ECtHR

The ECtHR, as an international court safeguarding fundamental rights, plays a distinct systemic role compared to the CJEU.[73] This fact has led to a more rights-oriented and less rule-of-law/systemic-oriented approach by the ECtHR to judicial reform in Poland. The ECtHR has developed the standard of a fully-fledged non-majoritarian national court based on Article 6 of the Convention. Individual complaints about judicial reform in Poland can be divided into two groups. The first focuses on the right to a court established by law, whereas the second refers to the right of access to a court in cases concerning domestic judges. Both groups of cases made significant contributions to developing the standard that national courts must meet to be considered genuinely non-majoritarian institutions.

3.3.1.   Cases focused on the right to a court established by law

In cases focused on the right to a court established by law, the ECtHR has extensively relied on the Ástráðsson case,[74] which marks a turning point in the ECtHR’s case law related to this element of Article 6 of the ECHR.[75] The Ástráðsson case regarded the severe irregularities in appointing one of the judges who heard the domestic case. The ECtHR ruled that these procedural flaws resulted in a violation of Article 6(1) of the ECHR. The impact of the Ástráðsson test on the jurisprudence of the ECtHR about judicial reform in Poland can be compared to the significance of the ASJP judgment in developing the CJEU’s case law, as discussed in the previous subsection. The right to a court established by law pertains to the requirement that a court’s operations be consistent with the law. This, in turn, is a prerequisite for safeguarding that national courts are fully-fledged, non-majoritarian institutions. 

In the Xero Flor case, the ECtHR applied the Ástráðsson test while deciding on the improper composition of the CT and unanimously ruled that the composition of the CT in the applicant’s case did not meet the requirement of a ‘court established by law’.

The ECtHR reached similar conclusions in Reczkowicz,[76] Dolińska-Ficek and Ozimek,[77] Advance Pharma,[78] Tuleya,[79]Juszczyszyn,[80] and, last but not least, the Wałęsa[81] cases. In all of them, the ECtHR was confronted with flaws in judicial appointments resulting from the political capture of the NCJ. 

In the Reczkowicz case, which concerned the status of the Disciplinary Chamber of the SC, the ECtHR noted that grave irregularities in appointing judges to the Disciplinary Chamber constituted a manifest breach of domestic law. The ECtHR pointed out that the recommendation of candidates for judicial appointment to the Disciplinary Chamber – a prerequisite for appointment by the President of Poland – had been entrusted to the NCJ, a body that lacked sufficient guarantees of independence from the legislature and the executive. Such a fundamental irregularity significantly impacted the entire process and compromised the legitimacy of a court composed of judges so appointed. In Dolińska-Ficek and Ozimek case the ECtHR focused on the Chamber of Extraordinary Review and Public Affairs, nevertheless, noted that the consequences of the current status of the NCJ might ‘systematically affect future judicial appointments not only in the other chambers of the Supreme Court but also in the ordinary, military and administrative courts’.[82] In the Advance Pharma case regarding the status of the so-called ‘neo-judges’ adjudicating in the Civil Chamber, it was emphasized that the continued functioning of the NCJ in its unchanged constitutional form will perpetuate the systemic dysfunction identified and could potentially result in repeated violations of the right to a court established by law in the future.[83] This warning has been implemented in the Tuleya and Juszczyszyn cases. The pilot judgment in the Wałęsa case, brought by former Polish President Lech Wałęsa against the Polish government, focused on the extraordinary complaint as an extraordinary appellate measure considered by the Chamber of Extraordinary Review. Besides reiterating previous findings concerning systemic flaws in the judicial appointment procedure that affect the Chamber of Extraordinary Review composition, the ECtHR also ruled that the extraordinary complaint posed a risk of becoming a politicized mechanism for executive oversight of judicial decisions. 

3.3.2.   Cases focused on the right of access to a court in cases concerning domestic judges

The second group of cases related to judicial reform in Poland pertains to the right of access to court in cases involving domestic judges and broadly defined employment disputes between the authorities and Polish judges. Those disputes concerned matters such as the dismissal of presidents and deputy presidents of courts by the Minister of Justice (Bojara and Broda)[84] and the termination of the term of office of judges-members of the ‘old’ NCJ (Grzęda[85] and Żurek).[86] In each case, the ECtHR applied the Eskelinen[87] test. As M. Leloup points out, the ECtHR has established a new approach to this test, which considerably raises the bar for excluding judges from access to a court when disputes concern their status or career.[88] The cases above resulted in the ECtHR declaring the dismissal of presidents and deputy presidents of courts, the termination of the term of office of judges-members of the ‘old’ NCJ, and harassment of judges who criticized the reorganization of the judiciary carried out by the Law and Justice government to be incompatible with Article 6 of the ECHR. In Bojara-Broda, the ECtHR highlighted that the special bond of trust and loyalty required of public servants and judicial independence are not easily reconcilable. The complex nature of the service relationship between members of the judiciary and the State requires that the judiciary be sufficiently separated from other branches of the State in the exercise of its functions. Therefore, it would be illusory to believe that judges can uphold the rule of law and implement it effectively if domestic law deprives them of the protection afforded by the ECHR in matters directly concerning their independence and impartiality.[89] In Grzęda, the Grand Chamber held that judicial independence should be understood inclusively and thus should not only apply to Judges in their adjudicating role but also to other official functions that they may be called upon to perform, which are closely connected with the judicial system.[90] Therefore, the procedural protection that the applicant Judge should enjoy did not only concern his judicial position as such, but also his mandate as a judicial member of the NCJ.[91] This position was upheld in Żurek, where the ECtHR decided not only that Poland violated the Convention by the instrumental and illegal removal from the NCJ. In Żurek, ECtHR also found that the actions taken against the appellant had a ‘chilling effect’ and were intended to deter not judge Żurek, but also other members of the judiciary. Finally, the ECHR also noted that the general right to freedom of expression of judges to address matters concerning the functioning of the justice system may be transformed into a corresponding duty to speak out in defence of the rule of law and judicial independence when those fundamental values come under threat.[92]

4.   Conclusions

The judicial reform in Poland has been a catalyst for significant growth in the case law of European courts, establishing standards for national judiciary as genuinely non-majoritarian institutions. Between 2019 and 2023, the CJEU and the ECtHR (the latter in 2021 with the Xero Flor judgment) decided numerous cases addressing various aspects of the contentious reform. These include the altered retirement age for Supreme Court judges, the status of the SC’s Disciplinary Chamber, the disciplinary accountability framework for judges, irregular judicial appointments due to the politicization of the NCJ, and issues surrounding individuals improperly appointed as CT judges. Additionally, they covered access to courts in broadly defined employment disputes between state authorities and Polish judges, and the extraordinary review process that has been structured to permit political misuse. These rulings have enhanced the role of European courts as critical non-majoritarian actors in shaping the political dialogue on judicial authority in Europe, advocating strong standards for effective, independent, and rule-of-law-compliant national courts.

The bottom-up approach, one of the two perspectives discussed in this paper, enables an examination of this phenomenon from the perspective of national courts and judges facing challenges to their independence and the separation of powers. This perspective sheds light on the judicial resistance of Polish judges, which was a key factor in the dynamic development of European courts’ case law on judicial independence. As Ł. Bojarski points out, judicial resistance[93] is institutionally related to the concept of ‘self-defence of the institutions’.[94] In contrast, on the individual level, it is associated with the ‘virtue-centered model’ of a judge.[95]Especially on-bench resistance in the form of referring to CJEU preliminary questions relevant to judicial crisis, by the Supreme Court, the Supreme Administrative Court, and common courts judges, ended with important judgments on the interpretation of Article 19 TEU. Independent judges upheld EU law, even when faced with governmental opposition to the ‘European interpretation’.[96] Sometimes judicial resistance of both on-bench and off-bench nature also resulted in repressions towards judges. This, in turn, accelerated the dynamics of the ECtHR case law on Article 6 of the ECHR, resulting from the increasing number of individual complaints from Polish judges who fought for fundamental rights, closely tied to their roles as judges within national authorities. For these reasons, judicial resistance can be considered as one of the main factors that influenced such a dynamic development of European court decisions in Polish cases, compared to cases concerning other countries struggling with the rule of law crisis and populists’ attacks on judicial independence (such as Hungary or Romania). 

The top-down approach enhances understanding of the distinct narratives presented by both European courts regarding judicial reform in Poland, but also raises the question of whether the CJEU and the ECtHR judgments can effectively compensate for the defective operation of the Polish apex courts in light of their implementation. The distinctiveness of the CJEU and the ECtHR approach is primarily a consequence of the different systemic roles these two courts play in the European legal space. The narrative surrounding the EU’s standard for courts as fully non-majoritarian institutions is somewhat intricate and less uniform than that established by the ECtHR. This complexity is tied to the range of issues addressed by the CJEU, from judges’ retirement age to the disciplinary accountability system. The multifaceted nature of this narrative is also partially due to the dual-track process for initiating cases before the CJEU as laid out in Articles 267 and 258 TFEU. Conversely, the ECtHR’s approach is more coherent, owing to its single-track procedure for case initiation, which centres on two aspects: the NCJ’s involvement in judicial appointments and safeguarding the right to a court in specific cases. Although the ECtHR’s approach is also multifaceted, it distinctly identifies two main dimensions of the Strasbourg standard regarding national courts as non-majoritarian entities amid Poland’s judicial reforms. These dimensions encompass the systemic ramifications of the NCJ’s politicization, including its role in judicial appointments and ensuring access to the courts in disputes between Polish authorities and judges. Notable differences exist between the CJEU and ECtHR’s case law concerning judicial appointment irregularities involving the politicized NCJ. The CJEU tackled this issue in the A.K. case, introducing the judicial independence test as the foundational measure against the systemic effects of flawed judicial appointments. On the other hand, the ECtHR has developed comprehensive yet consistent case law on this issue, based on the establishment test, which reflects the ECtHR’s standard for courts established by law. Despite their distinct approaches, the case law from the CJEU and ECtHR concerning judicial reform in Poland should be viewed as interrelated and complementary, particularly regarding the systemic effects of recent political shifts that have undermined judicial independence and the separation of powers. 

The different systemic roles of both major European courts should also be juxtaposed with the constitutional position of the apex Polish courts. The instrumental abuse of both the CT and the SC by the Polish populist government raises an issue regarding the effectiveness of the mechanisms of supranational constitutionalism in compensating for the defective operation of the Polish apex courts. The analysis of the CJEU and ECtHR case law presented in this article indicates only limited effectiveness of these mechanisms. In the case of the CJEU, this limited effectiveness is particularly evident in relation to preliminary rulings, the implementation of which largely depends on national courts. In particular, the domestic resonance of the A.K. judgment did not prevent further activity of the Disciplinary Chamber. Judgments issued under Article 258 TFEU, financial penalties for failing to comply with the EU law, and enforcing interim measures have also not always proved effective at the national level. Nevertheless, in at least one case (the retirement age of judges), the government decided to take a step back after the CJEU judgment. The ECtHR judgments, despite greater uniformity, have also not proved to be an effective compensation for the defective operation of the Polish apex courts. Nonetheless, the analysed judgments of both European courts certainly provided significant argumentative support for common and administrative courts in their efforts to counteract the deepening crisis of the rule of law.

Recent developments in case law regarding judicial reform in Poland, as addressed by the CJEU and the ECtHR, hold broader implications than merely addressing the rule of law crisis under the PiS government. Both the CJEU and the ECtHR recognized from the outset that the progressively evolving case law on Poland’s judicial reform would need to reference prior landmark judgments. Furthermore, they understood that their rulings involving Polish courts and judges would have ramifications on the development of judicial systems in other EU member states and states bound by the European Convention. Additionally, the reciprocal references illustrate how the CJEU and ECtHR sought to establish a unified standard for domestic law that influences judicial power.

The court’s portrayal as a genuinely non-majoritarian institution derived from the analysed jurisprudence of both European courts is intricate. The proper appointment of judges is depicted as a prerequisite for ensuring the integrity of an institution capable of resisting political pressures from majoritarian governance structures. Additionally, the independence test plays a crucial role, as it necessitates evaluating and balancing all contentious factors surrounding judicial appointments to determine if they raise objective concerns about the judiciary’s independence. Nonetheless, other requirements relating to a judge’s specific institutional and procedural standing regarding disciplinary accountability and interactions with state authorities, relevant to their professional functions, remain essential in guaranteeing a truly non-majoritarian judiciary. Ultimately, a non-majoritarian court must maintain sufficient institutional and procedural separation from the executive branch.