The judgment of the Court of Justice of the European Union (CJEU) of December 18 constitutes one of the most far-reaching examples of a European Union institution exceeding its competences in the history of European integration. The CJEU not only ruled outside the scope of powers conferred upon it by the Treaties, but went so far as to intervene directly in the constitutional order of a Member State, challenging the status of Poland’s constitutional court and arrogating to itself the role of a court of “final authority” in matters that were never transferred to the European Union.
Formally, the judgment concerns an action brought by the European Commission against Poland in response to rulings of the Polish Constitutional Tribunal delivered in 2021, in which the Tribunal affirmed the supremacy of the Polish Constitution over EU treaties insofar as EU institutions exceed their conferred competences and intrude into Poland’s constitutional domain. Those rulings were themselves a reaction to repeated ultra vires acts of the CJEU, which—by disregarding the principle of conferred powers—had begun to claim authority over the structure of the Polish judiciary.
The CJEU acted in a juristocratic mode, performing legal contortions and engaging in judicial law-making in order to support Poland’s liberal political circles in their struggle against a conservative government. That government, led by Law and Justice (PiS), enjoyed full democratic legitimacy: A majority in both chambers of parliament and the presidency. It undertook a fundamental—though only partially successful, due to interference from Brussels—reform of the judiciary. The aim was to democratise the system and dismantle the absolute power of a left-liberal, post-communist judicial oligarchy that had long controlled judicial appointments, promotions, and the allocation of cases.
That system of juristocracy guaranteed—regardless of the outcome of democratic elections—a built-in safety valve: Judges prepared to issue rulings contra legem whenever it was necessary to protect the interests of left-liberal elites.
Leaving aside the Polish-specific circumstances of the CJEU’s ruling, the dispute ultimately revolves around a fundamental question: Does the European Union remain a community of sovereign states, or is it transforming into a centralised entity in which national law—including constitutions—applies only conditionally, subject to the approval of central institutions? And who has the final say: The societies of European states, or fifteen officials of the Brussels elite, devoid of democratic legitimacy, selected through opaque procedures and disguised in judicial robes?
In its latest judgment, the CJEU has embraced the European Commission’s position almost in its entirety. It declared that no one—including the constitutional courts of Member States—has the right to review its rulings for possible ultra vires action. In doing so, the Court in Luxembourg granted itself a power not provided for in any Treaty: The power to determine the limits of its own authority. In the constitutional order of sovereign democratic states, such a position of an international body is fundamentally incompatible with the supremacy of the constitution, democracy, and popular sovereignty.
Particularly outrageous is the part of the judgment in which the CJEU directly intervened in Poland’s constitutional order by assessing the legality of the composition of the Polish Constitutional Tribunal. The Court asserted that the appointment of three Constitutional Tribunal judges in December 2015 violated “basic rules governing appointment procedures,” and that, as a result, the entire Tribunal fails to meet the standard of an independent and impartial court established by law.
This is an unprecedented intervention. An international tribunal has questioned the status of a constitutional organ of a Member State on the basis of its own political interpretation of an internal constitutional dispute—one that never unfolded in the manner suggested by the CJEU. The Court in Luxembourg thus not only acts ultra vires in the most blatant way imaginable, but also simply misrepresents the facts and their legal assessment.
To understand the nature of this left-liberal falsehood, one must return to 2015. Following the loss of the presidential election and in anticipation of an imminent parliamentary defeat, the liberal parliamentary majority attempted to pre-emptively fill five of the fifteen seats on the Constitutional Tribunal, even though the terms of those judges were due to expire only after the scheduled parliamentary elections. In haste, a special statute was adopted and the appointments were made at the final sitting of the outgoing parliament.
This action was unprecedented and raised serious constitutional doubts. The President of Poland refrained from administering the oath of office. Once the new parliament convened, the unfinished appointment procedure—under the well-established constitutional principle of discontinuity—had to be restarted. On December 2, 2015, the new parliamentary majority appointed five Constitutional Tribunal judges.
The following day, on December 3, 2015, the Constitutional Tribunal ruled that the statute adopted by the liberals was unconstitutional insofar as it allowed the early appointment of two judges, while constitutional with respect to the remaining three. However, one day earlier, the parliament—now with a conservative majority—had already completed a new appointment process from the beginning, selecting five new candidates.
The alleged “usurpation” or “illegality” of the appointment of three judges has since been portrayed by liberals as the “original sin” of the conservative governments of 2015–2023. Let us examine that claim more closely. It quickly becomes clear that the narrative of an allegedly “illegal” appointment is a political myth—a “original falsehood” of the globalist rebellion against the democratic choices of the Polish people, now echoed by the CJEU.
First, as noted, the conservative-led parliament restarted the appointment process because the previous one had not been completed: The President had not administered the oath before the end of the parliamentary term, and constitutional doubts remained unresolved until after the term expired. This is precisely how the principle of discontinuity operates in Poland and has long functioned as a constitutional custom.
But that is not all. The Constitutional Tribunal never declared the parliamentary resolutions of December 2, 2015 appointing the judges to be invalid—because it lacks the competence to do so. In Poland, the Constitutional Tribunal reviews norms, not individual acts. Indeed, in January 2016, the Tribunal itself—then dominated by liberal judges—refused to examine a motion by the Civic Platform party challenging the validity of those resolutions, fully aware that it had no authority in that regard.
The Tribunal’s December 2015 rulings concerned legal norms only, not individual appointments. Moreover, under Polish constitutional law (Article 190(4)), even a hypothetical finding of unconstitutionality does not operate retroactively and does not automatically annul decisions already taken. Such a ruling merely opens the possibility of reopening proceedings under a specific statutory procedure—which, in the case of Constitutional Tribunal judges, does not exist.
Most importantly, however, none of this is ultimately relevant for one simple reason: The legal basis for the appointments made on December 2, 2015 was never challenged or declared unconstitutional! Those appointments were not made under the provisions questioned by the Tribunal at all. These facts are known to every lawyer acting in good faith. The CJEU nevertheless chooses to ignore them, relying instead on political assessments and false premises.
The narrative of an “illegal” appointment is therefore a political construct, not a legal one. Yet it has served as a convenient pretext for systematically undermining the status of the Constitutional Tribunal—first by the left-liberal opposition and sympathetic media, then echoed by the European Court of Human Rights in the Xero Flor judgment of 2021, and now repeated by the CJEU.
After December 2023, this globalist founding falsehood became a cover for the lawlessness pursued by Donald Tusk’s government. That government, effectively operating as a minority administration incapable of enacting statutory reforms without presidential consent, embarked on a process of profound constitutional destabilisation: Unlawful takeovers of public media, the prosecution service, and supervisory institutions; open disregard for rulings of the Constitutional Tribunal, the Supreme Court, the National Broadcasting Council, and the National Council of the Judiciary; and systemic changes imposed through faits accomplis.
In this context, the Constitutional Tribunal became one of the last effective mechanisms for protecting the legal system. In a series of rulings, it declared, among other things, the illegality of the appointment of the current head of the prosecution service, the unlawfulness of placing public media companies into liquidation, the statutory incompatibility of shortening the terms of court presidents, and the illegality of disabling the random allocation of cases to judges. Each time, the government refused to recognise these rulings—invoking the alleged “defective” appointment of three judges—and in 2024 even slashed the Tribunal’s budget in an attempt to break it financially.
The CJEU’s judgment fits seamlessly into this process. Brussels juristocracy—a system of power built on unaccountable courts and legal elites—has handed the left-liberal government in Warsaw an external justification to continue dismantling the Polish Constitution and ignoring Constitutional Tribunal rulings, seizing institutions to which it is not entitled, and reshaping the legal system in the spirit of neo-Marxist woke ideology.
Since 2015, Poland has been one of the main battlegrounds between a globalist political project and forces defending sovereignty, security, and national identity. Since 2023, Poland has become a laboratory of left-liberal lawlessness. The CJEU’s judgment shows that this conflict is entering a new phase. The stake is no longer a single reform or institution, but the fundamental question of whether the constitutions of Member States still mean anything in the European Union.
For EU citizens, this is a clear warning: if the CJEU can today delegitimise Poland’s Constitutional Tribunal, tomorrow it can do the same to any other state that dares to say “no” to centralisation of power, zero-emissions dogma, woke ideology, or mass Islamic migration. Poland, as a sovereign state built on Christian foundations, has always stood in the way of constructing a neo-Bolshevik “brave new world”. This is not merely a Polish problem—it is a test of the limits of the European project itself.
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
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