The imperious ECJ tells Poland that all rulings from its upper courts can be ignored

On 4 September, in case C-225/22, the Court of Justice of the European Union (CJEU) declared that Polish courts must disregard rulings of higher courts if these are deemed insufficiently independent, even if this requires defying constitutional provisions and judgments of the Constitutional Court. In doing so, Luxembourg judges openly questioned the legitimacy of the Supreme Court’s Chamber of Extraordinary Control and Public Affairs, effectively denying it the attribute of a court.

This ultra vires ruling has no legal effect in Poland. The Treaties contain no principle of EU law supremacy, yet the CJEU once again claimed sweeping powers to interfere with the organisation of a Member State’s judiciary, in violation of the principle of conferred powers enshrined in Article 5(2) TEU. It relied on Article 47 of the Charter of Fundamental Rights, despite the Charter – under Article 51 and the British Protocol – not extending the competences of either the CJEU or national courts.

The double standards are glaring: In many EU states, judges are appointed entirely by political bodies, yet only Poland’s moderate reform of 2017 is targeted.

This ruling extends a line of CJEU cases on Poland’s judiciary, from challenges to the Disciplinary Chamber and judicial appointments to questioning the validity of decisions by the Chamber of Extraordinary Control. In 2021, the Polish Constitutional Court responded firmly, ruling that Article 19 TEU cannot be stretched to justify EU interference in national judicial organisation—an explicit rejection of treaty-breaking, ultra vires judgments. The CJEU has now taken yet another step further.

Beyond the extra-treaty nature of the latest ruling, the fact remains that it addresses a specific case in a way that is impossible to implement, since Polish procedural codes recognise no such institution as a “non-existent judgment.” Even in theory, such a ruling could only have limited effect, namely in areas governed by EU law and only where strictly necessary to safeguard the primacy of Union law. In practice, however, matters are quite different.

Immediately after the judgment, the Minister of Justice declared that judges of the contested Supreme Court chamber should resign, threatening them with criminal prosecution. Pro-government, politicised judges’ associations likewise undertook aggressive actions along similar lines. Conversely, the Chairwoman of the National Council of the Judiciary, independent of government, together with numerous independent judges and lawyers persecuted by the authorities, voiced a firm objection.

This storm in Poland is no accident. The “politicians in robes” in Luxembourg went beyond partisan skirmishes to actions resembling a constitutional coup, unlawfully targeting the state’s highest organs. The judgment is clearly directed at President Karol Nawrocki, whose election Tusk and Civic Platform tried to discredit with fabricated claims of fraud—claims even their own prosecutors could not prove. The notion that an opposition, stripped of resources and illegally suppressed, could have falsified an election against the candidate of the entire state apparatus and globalist government is patently absurd. Still, they sought to block his inauguration by arguing that the Supreme Court chamber validating elections was not a court, a move that would have blatantly violated both the Constitution and the Penal Code. For this they needed a pretext—and found it in an ultra vires ruling of the CJEU.

In late July, the Speaker of the Sejm – from a liberal-centrist coalition party – admitted he had been urged by politicians and lawyers to stage what he himself called a coup d’état by blocking the president-elect’s swearing-in. Though he later backtracked, his words reflected the modus operandi of the ruling coalition. Indeed, since February an investigation has been under way into an attempted constitutional coup, involving ministers, MPs, and senior officials accused of trying to subvert the state order and coerce constitutional bodies by force and unlawful threats. The case, stripped from an independent prosecutor, has not been closed—its gravity makes that impossible. It is only one of many: Numerous criminal complaints against the government await a lawful National Prosecutor.

The current officeholder, unlawfully imposed in defiance of statute and a Constitutional Court ruling, prosecutes opposition figures on fabricated charges while shielding Tusk’s allies. One such case concerned the siphoning of more than PLN 90 million (€21 million) from the listed company Polnord, a scheme attributed by prosecutors to Roman Giertych, a close associate of Tusk and now a member of parliament. His case was scandalously dropped in January 2025, with prosecutors absurdly blaming his bodyguard and concealing their reasoning for months. It is Giertych who masterminded the campaign against President Nawrocki’s election, and later reprised the role after the September CJEU ruling.

These circumstances are essential to understanding why the CJEU delivered such a judgment at precisely this moment. It provides a ready-made weapon for the Polish government and politically-engaged judges fighting to restore privileges lost in 2017, enabling them to contest President Nawrocki’s assumption of office. The method is well rehearsed: Since December 2023, in all decisions flouting the rulings of the Constitutional Court or Supreme Court, they have invoked – without legal basis, but as narrative ornamentation – the jurisprudence of the CJEU or the ECHR. This is a strategy of sowing chaos and dismantling the state. But it must be remembered that Tusk’s circle is fighting not merely for power but for freedom: Not only in relation to past scandals such as Giertych’s Polnord affair, but above all to escape accountability for a multitude of grave official and state crimes committed since December 2023, crimes carrying penalties of up to life imprisonment.

The number of such offences is vast, as Tusk’s politicians and senior officials acted as if their power would last forever. They quickly discovered otherwise. The victory of Karol Nawrocki marked the beginning of the end of their rule. Without their own president, they cannot enact laws – they lack the majority to override his veto. Hence, they will stop at nothing to depose him and escape justice.

From a purely praxeological perspective, these steps are understandable; yet Tusk’s allies in government, courts, and offices are only compounding their liability. What is striking, however, is the degree of involvement from Tusk’s allies in the robes of CJEU judges. Their power, like the supposed omnipotence of the EU establishment, is anything but permanent. Those who still believe otherwise remain trapped in the paradigm of the “end of history” – which not only never arrived but is now accelerating dramatically.

Marcin Romanowski is a Doctor of Law, university lecturer,  former Deputy Minister of Justice in the Law and Justice government, currently a Member of the Polish Parliament in exile in Hungary and Director of the Hungarian-Polish Institute of Freedom in Budapest