The Rule of the Courts

The Role of the Courts in the Protection of the Rule of Law and of Fundamental Rights

in the European judicial network on the other. When the lack of independence of a judicial body becomes apparent, the Court of Justice, as a rule, excludes it from the dialogue. Hence, in the case of the controversial extraordinary chamber of control and the disciplinary chamber as special adjudicatory bodies within the Polish supreme court, the European Court of Justice followed the case law of the European Court of Human Rights 43 and denied the judicial quality of these chambers. 44 As these chambers were not meeting the necessary basic requirements of impartiality and independence from legislative and executive influence in the appointment of their judges and in their organisation, they cannot be considered a court or tribunal under article 267 TFEU and therefore are not entitled to refer questions to the CJEU. At the same time, the Member state infringes its obligations under article 19 TEU. This verdict even hit the Polish constitutional tribunal, which was the first court in Poland to suffer from a manipulated appointment of judges. 45 It is therefore no partner in the dialogue with the European Court of Justice any longer. According to the case law of the European Court of Justice and the case law of the European Court of Human Rights, the Polish constitutional tribunal in its current form and composition is not an impartial and independent court. Owing to the irregularities in the appointment of its judges, it does neither comply with the requirements of article 19 TEU, 46 not does it retain its status as a lawful judge within the meaning of article 6 ECHR. 47 These rather severe consequences can have an isolating and potentially incapacitating effect for the highest court of the state. The Polish constitutional tribunal, on its turn, tried to dissociate Polish law from its European obligations and entered into a major conflict with 43 ECtHR, 8 November 2021, nos. 49868/19 and 57511/19 – Doli ń ska-Ficek and Ozimek v. Poland. 44 CJEU (GC), 21 December 2023, Case C-718/21 – L.G. v. Krajowa Rada S ą downictwa. 45 See, e.g., Czarny , OER 2018, 5. 46 CJEU (GC), 18 December 2025, Case C-448/23 – Commission v. Poland. 47 ECtHR, 7 May 2021, no. 4907/18 – Xero Flor v. Poland, §§ 252 et seq.; see Burgorgue Larsen , AJDA 2021, 1907 (at 1904 et seq.); Milano , JCP 2022, 71 (at 73-4). The breach of the impartiality and independence of the judiciary constitutes a violation of article 6 ECHR. See ECtHR, 29 June 2021, nos. 26691/18 and 27367/18 – Broda and Bojara v. Poland; 8 November 2021, nos. 49868/19 and 57511/19 – Doli ń ska-Ficek and Ozimek v. Poland.

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