Introduction
The judgment delivered on 21 December 2023 by the Grand Chamber of the European Court of Justice in LG v Krajowa Rada Sądownictwa (LG) represents a significant development in the evolving and contested jurisprudence of the Court concerning judicial independence and the definition of a national court under Article 267 TFEU. At its core, the judgment exposes a fundamental dilemma in the Court’s case law: whether to preserve the openness and inclusiveness of the preliminary ruling mechanism, even at the risk of legitimising flawed judicial bodies, or to safeguard the integrity of judicial review and uphold strict judicial independence standards in the EU, though this may result in excluding entire formations of national courts from judicial dialogue with the Court. In LG, the Court opted for the latter option and ruled that the Chamber of Extraordinary Control and Public Affairs (the Chamber) of the Polish Supreme Court does not qualify as a ‘court or tribunal’ within the meaning of Article 267 TFEU. Consequently, the Chamber’s request for a preliminary ruling was declared inadmissible.
This outcome must be situated within the broader and controversial trajectory of the Court’s jurisprudence on judicial independenceFootnote 1 under both Article 267 TFEU and Article 19(1) TEU, in conjunction with Article 47 of the Charter of Fundamental Rights. As will be illustrated, over recent years the Court’s case law has oscillated between formalism and more assertive enforcement of judicial independence requirements. Those tensions can also be seen in the sharp divergence between the Opinion of Advocate General RantosFootnote 2 in this case and the annotated judgment. While the Advocate General supported a flexible and pragmatic interpretation, expressing concern that a rigid application of independence criteria could exclude large parts of the Polish judiciary from the preliminary reference mechanism, the Court opted for a stricter reading of judicial independence. Hence, the LG judgment constitutes a landmark decision, advancing towards more robust standards of judicial independence that must be met by referring national courts.
The annotated judgment further illustrates the culmination of issues arising from the contentious and widely debated judicial reforms implemented under the Prawo i Sprawiedliwość (PiS) government in Poland,Footnote 3 particularly their compatibility with EU law requirements on judicial appointments. These issues have been frequently highlighted through preliminary questions posed by various Polish courts and several infringement proceedings initiated by the European Commission.Footnote 4 Notably, the judgment also explicitly aligns with the European Court of Human Rights’ established position on the Chamber’s lack of independence. Finally, the LG judgment sends a clear signal for the ongoing debate in Poland on the status of tens of hundreds of judges appointed with the involvement of the highly politicised National Council of Judiciary (Krajowa Rada Sądownictwa, the Council), which opines on judicial nominations and presents proposals to the President of Poland for judicial appointments.
This case note discusses the LG judgment and places it within the broader context of judicial developments under the PiS government, as well as the Court’s increasingly refined case law on the meaning of judicial independence. The discussion proceeds as follows. First, prior to engaging in the legal analysis, we briefly outline the controversies and dilemmas surrounding the contested Chamber that define the case at hand. Second, we address the factual and legal background of the preliminary reference and the procedure before the Court. Third, we briefly discuss the Opinion of Advocate General Rantos. Subsequently, we elaborate on the main points of the Court’s judgment. The annotation then comments on the most significant aspects of the judgment, focusing on the concept of a court or tribunal under Article 267 TFEU and the relationship between the judgment and the stance presented by the European Court of Human Rights in its steadily growing case law on the matter.
Setting the scene: what makes the Chamber of Extraordinary Control and Public Affairs special?
The Chamber of Extraordinary Control and Public Affairs is a chamber of the Polish Supreme Court that was created in 2018 as part of a series of judicial reforms in Poland under the PiS government and possesses extensive adjudicative powers.Footnote 5 The Chamber is responsible for highly sensitive cases, among other things, for ruling on the validity of national elections, challenges concerning the validity of national or constitutional referendums as well as disputes relating to the protection of competition, energy regulation, telecommunications and rail transport, or complaints concerning the excessive duration of proceedings before national courts.Footnote 6 The appointment of judges to the Chamber was fraught with controversy, as they were selected based on recommendations from the newly restructured National Council for the Judiciary (also referred to as the neo-KRS). The independence of the neo-KRS has been widely contested and has already been the subject of case law by the Court. As observed by the Court in W.Ż., the reform of the Council reduced the term length of certain Council members, originally set at four years by the Polish Constitution, and shifted the election of its 15 judicial members from peer selection to parliamentary appointment.Footnote 7 As a result, 23 of the 25 members of the neo-KRS were designated by the Polish executive and legislative branches or are members of those branches.Footnote 8 As the Court stated in A.K., the extent to which the Council is independent from the legislative and executive branches in carrying out its functions under national law, particularly as the body tasked, under Article 186 of the Polish Constitution, with safeguarding judicial independence, may be relevant when assessing whether the judges it appoints can satisfy the requirements of independence and impartiality under Article 47 of the Charter.Footnote 9 Moreover, the Court emphasised that, considering all combined circumstances, doubts may be cast on the independence of a body involved in the procedure for the appointment of judges.Footnote 10
As the Court noted elsewhere, all the changes to the functioning of the Council coincided with significant alterations to the functioning of the Supreme Court, including the introduction of new chambers and a reduction in the retirement age for judges.Footnote 11 Moreover, Article 44 of the National Council of Judiciary Law, governing judicial challenges against Council nominations to Supreme Court judicial positions, underwent significant revisions alongside earlier legislative changes, which in turn compromised the effectiveness of existing judicial remedies.Footnote 12 As a result, the Supreme Court comprised judges appointed under the previous procedure as well as new judges, also referred to as neo-judges or ‘fake judges’,Footnote 13 appointed by the neo-KRS. These new judges were also part of the panel that referred the preliminary questions at hand.
Namely, the three members of the contested Chamber were appointed in October 2018, on the basis of the Council’s Resolution No. 331/2018 (Resolution 331/2018).Footnote 14 The resolution was legally contested at the timeFootnote 15 resulting in the Polish Supreme Administrative Court suspending its enforceability on 21 September 2018. Moreover, in November 2021, the European Court of Human Rights, in its judgment Dolińska-Ficek and Ozimek v Poland, held that the breaches in the procedure for the appointment of judges to the Chamber were of such gravity that they impaired the very essence of the definition of ‘tribunal established by law’.Footnote 16 This breach was due to the appointment process, based on Council Resolution 331/2018, of the members of two panels of three judges of the Chamber.Footnote 17
The preliminary reference and the procedure before the European Court of Justice
The dispute in question involved L.G., a judge from the Regional Court in K., who sought to continue his judicial duties beyond the statutory retirement age of 65. Under Polish law, judges who reach retirement age may continue to hold judicial office if they submit a request to the Council within a statutory time limit. However, the Council declined to review L.G.’s application because it was submitted after the deadline. L.G. challenged the Council’s resolution before the Supreme Court. On 20 October 2021, the Chamber, now competent under the amended Law on the Supreme Court, stayed the proceedings and requested a preliminary ruling from the European Court of Justice on two issues.Footnote 18 The two preliminary questions essentially asked whether Article 19(1) TEU prevents national laws that require judges to receive authorisation to continue working after retirement age, and whether EU law prevents interpretations that make late declarations by judges to continue working ineffective, regardless of the reasons for the delay.
During both the written and oral procedure, however, the Commission, supported by L.G. and the Belgian and Dutch governments, contended that the referring panel did not meet the criteria of a ‘court or tribunal’ under Article 267 TFEU. The Commission argued that there are doubts regarding the appointment of the three members of the contested Chamber, contending that the Council’s independence had been questioned on numerous occasions, including in several key judgments of the Court itself.
Not surprisingly, the referring Chamber, supported by the Council and the Polish Government under the PiS administration, sought to confirm its status as a court.Footnote 19 It argued that the suspension of the resolution’s enforceability was not communicated to relevant parties, and at the time of the judges’ appointments, national law provided no basis to question the judges’ independence. In particular, the Chamber raised the point that the above-mentioned order of the Supreme Administrative Court suspending the enforceability of Resolution 331/2018 had not been formally served upon either the President of Poland or the individuals whose appointment to a judicial post in the Chamber was proposed in the resolution. As a result, it did not hinder the process of appointment of judges. Under Article 44(1b) of the National Council of Judiciary Law at that time, an unchallenged resolution would attain finality and become enforceable. Furthermore, at the time of the appointment of the judges making up the referring body, no preliminary ruling procedure had yet been initiated for the purpose of establishing the possible incompatibility of that national provision with EU law. Finally, it was argued that the process of judges’ appointment to the concerned judicial posts was not enough to call into question their independence or that of the panel, as confirmed by the case law of both the Court of Justice and the Supreme Administrative Court.Footnote 20
Regarding the present case, one may validly question the genuine motivations of the respective judges in referring their preliminary questions, given their awareness of their contested status. In the previous Getin Noble Bank case, the independence of the referring Supreme Court judge, who sat in a single-judge formation, was also questioned by the Ombudsman and, to ‘a lesser extent’, by the Commission.Footnote 21 As pointed out by Filipek with respect to that judgment:
[t]he reference made by the said irregularly established judge led to the suspicion that the questions posed were not really made in order to obtain an interpretation of EU law to assist in the resolution of the domestic dispute, but rather in order to ‘authenticate’ him as a judge of the Supreme Court; challenge previous judicial appointments as a ‘counterbalance’ to the questioning, by other judges, of the status of ‘new’ judges appointed since 2018; as well as to support the Government’s claim of the need to ‘decommunise’ the Polish courts as a rationale for changes in the judiciary.Footnote 22
Similarly, in the LG case, some of these reasons appear plausible. Neo-judges, particularly those sitting on the Supreme Court, seek legitimacy and validation of their status. One way to achieve this is by having their preliminary questions answered by the Court, which, in doing so, implicitly acknowledges that the referring court meets the judicial independence criteria. This, in combination with the increasing complexity and significant disarray of the legal system resulting from various reforms introduced under PiS government and numerous Court judgments contesting them, culminated in the present referral.
Opinion of Advocate General Rantos: ‘flexible interpretation’ of the concept of independence
In his Opinion of 2 March 2023, Advocate General Rantos generally disagreed that the contested Chamber does not qualify as a ‘court or tribunal’ under Article 267 TFEU. By adopting a ‘functional approach’, he posited that the referring court qualifies as a ‘court or tribunal’ within the scope of Article 267 TFEU, allowing the Court to address the referred questions.Footnote 23
The Advocate General reminded that to determine whether a body qualifies as a ‘court or tribunal’ under Article 267 TFEU, the Court considers factors such as its legal establishment, permanent nature, compulsory jurisdiction, inter partes procedure, whether the body applies the law, and whether it is independent. The Advocate General highlighted both the external and internal aspects of independence, including autonomy from external influences and impartiality.Footnote 24 He submitted that, despite the general presumption that national courts, such as the Supreme Court, typically meet the criteria of independence, as established in the Getin Noble Bank case,Footnote 25 this presumption can be rebutted if there are additional factors undermining the independence and impartiality of the court. These factors, which extend beyond the personal circumstances of the judges formally submitting a request for a preliminary ruling, must be confirmed by a national or international court. The Advocate General proposed to distinguish between a ‘flexible’ interpretationFootnote 26 of the principle of independence within the context of Article 267 TFEU and the distinct examination of the same principle required by the second subparagraph of Article 19(1) TEU and Article 47 Charter.Footnote 27 He advocated for functional and ‘minimalist’ assessment under Article’s 267 TFEU to maintain the essential role of the preliminary ruling procedure in protecting individual rights under EU law, despite concerns about judicial independence within member states like Poland.Footnote 28 Too strict an approach could restrict access to the preliminary ruling procedure for the majority of new Polish judges appointed under the new regime, excluding them from the EU’s judicial framework.Footnote 29 The Advocate General concluded, somewhat controversially, that ‘the robe makes the judge’.Footnote 30
The Advocate General also reminded that the Court has previously stated that involving non-judicial bodies in judicial appointments does not automatically breach judicial independence, provided it does not compromise the judges’ autonomy or neutrality.Footnote 31 Legislative or executive involvement in the process of appointing a judge does not necessarily create a dependent relationship with those authorities or give rise to doubts as to the judge’s impartiality, provided that the person concerned is not subjected to any pressure and does not receive instructions in the performance of his or her duties.Footnote 32 Therefore, if the appointed judges are qualified for the office and expected under the rules to decide cases independently, the body should count as an ‘independent court or tribunal’ under Article 267 TFEU.Footnote 33
The Advocate General observed that the contested Chamber was established amid recent and contested judicial reforms in Poland. While the neo-KRS is considered a ‘captive institution’ controlled by the executive, this alone does not necessarily violate the principle of judicial independence, provided the judges can perform their duties impartially and without undue influence.Footnote 34 The Supreme Court is generally presumed to be independent, a presumption that can be challenged but is not necessarily negated in this case. In his view, the judgment in Dolińska-Ficek concerns the right to effective judicial protection under Article 6(1) of the European Convention on Human Rights and subsequently can impact Article 47 Charter, but not necessarily Article 267 TFEU.Footnote 35 The Advocate General did not address the fact that one of the judges involved in the Dolińska-Ficek case also sat on the Chamber panel that referred the preliminary questions in LG.Footnote 36
Judgment of the Court: Chamber of Extraordinary Control and Public Affairs not a court under Article 267 TFEU
The Court decided to depart from Advocate General Rantos’ functional approach, and rebutted the presumption previously elaborated on in Getin Noble Bank that the Supreme Court satisfies the requirements of a ‘court or tribunal’ within the meaning of Article 267 TFEU.
The Court began by recalling the criteria for ‘court or tribunal’ under Article 267 TFEUFootnote 37 and emphasised that the Supreme Court is generally presumed to meet these criteria.Footnote 38 However, this presumption can be challenged if a final ruling handed down by a court or tribunal of a member state or an international court or tribunal confirms that the judge constituting the referring court lacks independence and impartiality and had been not established by law for the purposes of the second subparagraph of Article 19(1) TEU, read in the light of Article 47 Charter.Footnote 39 This argument is then directly linked to the decision of the European Court of Human Rights in Dolińska-Ficek and the judgment of the Supreme Administrative Court of 21 September 2021, both concerning the contested appointment of the Chamber judges under Resolution 331/2018.
The Court recalled that in Dolińska-Ficek the European Court of Human Rights held that, for a ‘tribunal established by law’ under Article 6(1) of the European Convention on Human Rights, clear judicial appointment rules are required to shield the judiciary from undue influence and safeguard independence and impartiality which are essential for the rule of law.Footnote 40 In Dolińska - Ficek, the European Court of Human Rights identified manifest violations of essential national judicial appointment norms in appointing members to the Chamber. This was evidenced by a series of decisions from the Supreme Court, particularly following the Court’s ruling in case A.K. and Others regarding the independence of the Disciplinary Chamber.Footnote 41 The European Court of Human Rights noted that Article 9a changes to the National Council of the Judiciary Law significantly eroded its independence. Consequently, appointments under Resolution 331/2018 violated constitutional principles, rendering the judges neither independent nor impartial.Footnote 42 Moreover, the Court recalled that, as highlighted in Dolińska – Ficek, the President of Poland proceeded with the appointment of the judges despite the suspension of Resolution 331/2018 by the Supreme Administrative Court on 27 September 2018. This is considered by the Court to constitute
an utter disregard for the authority, independence and role of the judiciary and deliberately sought to interfere with the effective course of justice, with the result that they had to be regarded as constituting a flagrant breach of Article 6(1) ECHR and were manifestly incompatible with the principle of the rule of law.Footnote 43
The European Court of Human Rights considered this particular breach severe, considering the critical and sensitive nature of the responsibilities assigned to the contested Chamber.Footnote 44 Although only one of the six judges in question was part of the panel requesting the current preliminary ruling, the Court noted that the European Court of Human Rights’ assessment applies equally to all judges appointed under Resolution 331/2018.Footnote 45 With respect to the mentioned judgement of the Supreme Administrative Court of 21 September 2021, the Court reminded that the respective court overturned Resolution 331/2018, which had recommended appointing these judges.
The Court, relying on its case law on Article 19(1) TEU and Article 47 Charter, along with the findings in Dolińska – Ficek and the concerned ruling of 21 September 2021, concluded that the Chamber lacks the status of an independent and impartial tribunal previously established by law. Consequently, this panel of judges does not qualify as a ‘court or tribunal’ as defined by Article 267 TFEU.Footnote 46
The Court stressed the fundamental connection (‘inextricable links’) between judicial independence, impartiality, and the right to access a tribunal established by law for ensuring a fair trial.Footnote 47 The Court emphasised that judicial appointment is critically important for the judiciary’s proper operation and legitimacy in a democratic state governed by the rule of law and is a core part of the ‘tribunal established by law’ concept under Article 47 Charter, as a tribunal’s independence can partly be measured by its members’ appointment methods.Footnote 48
In essence, the Court determined that the Chamber does not satisfy the fundamental requirements of an independent and impartial court previously established by law for the purpose of the second subparagraph of Article 19(1) TEU, read jointly with Article 47, second paragraph of the Charter. As stressed, this lack of appearance of independence or impartiality marked by the inappropriate influence from the legislative and executive branches over the selection process of three concerned judges is likely to ‘undermine the trust which justice in a democratic society governed by the rule of law must inspire in … individuals’.Footnote 49 While a council for the judiciary largely chosen by the legislature does not in itself undermine judicial independence, concerns arise when that composition, together with other factors, casts doubt on that independence.Footnote 50
The Court emphasised that the settled case law requires courts to uphold standards of independence and impartiality, with clear rules on court structure and member appointments to prevent external influence.Footnote 51 The imperative for courts to maintain independence constitutes an essential aspect of the right to effective judicial protection and the fundamental right to a fair trial. This significance lies in safeguarding EU law rights and upholding the common values among member states set out in Article 2 TEU, particularly the rule of law.Footnote 52 In the W.Ż. judgment,Footnote 53 the Court ruled that a single judge panel of a contested Chamber appointed in clear violation of fundamental judicial appointment rules, cannot be considered independent or impartial under Article 19(1) TEU, especially if the appointment compromises the integrity of the process, casting doubt on the judges’ impartiality.Footnote 54
The Court noted that the revised appeal process in the neo-KRS law lacked real effectiveness and functioned merely as a nominal remedy which, together with other factors surrounding the Supreme Court appointments, could give rise to serious doubts about the independence and impartiality of the appointed judges.Footnote 55
Next, the Court, building on its judgment in W.Ż., reminded that when a member of the Chamber was appointed based on Resolution 331/2018, the Supreme Administrative Court had suspended its effects during a legal challenge on 21 September 2018. This situation, similarly emphasised in the Dolińska-Ficek, applies to the appointment of the three judges from the same Chamber that requested the current preliminary ruling. Despite the suspension of the respective Resolution, the President of Poland proceeded with the appointments.
Therefore, expediting appointments under the suspended Resolution 331/2018, without awaiting the Supreme Administrative Court’s detailed reasons, significantly breached the separation of powers principle, as also concluded in Dolińska-Ficek.Footnote 56
The Court noted that even though Resolution 331/2018 was under challenge before the Supreme Administrative Court, which had stayed the case pending the Court’s ruling in A.B. and Others, the Polish legislature nonetheless adopted the Law of 26 April 2019. In the Court’s view, these changes indicate that the Polish legislature deliberately aimed to shield the Council’s judicial appointments from judicial scrutiny. Lastly, the Supreme Administrative Court annulled Resolution 331/2018 on 21 September 2021. Subsequently, the Court noted that although the Chamber indicated in its order that this decision from 21 September 2021 does not affect the legitimacy and effect of the presidential appointment decrees, it is crucial to remember, as the European Court of Human Rights stated in the Dolińska-Ficek, that according to Article 179 of the Polish Constitution, the Council’s nomination of a candidate for a judicial position at the Supreme Court is a necessary step for the President to make such an appointment.Footnote 57
For these reasons, the Court concluded that the systemic and situational factors that influence the appointment of the three judges that make up the referring panel undermine the Chamber’s status as an independent and impartial tribunal under the second subparagraph of Article 19(1) TEU and Article 47 Charter. Those different factors cast doubt on the integrity and neutrality of the involved judges, expose them to possible legislative and executive influence, and thereby weaken public confidence in a judiciary that must appear independent and impartial in a democratic state governed by the rule of law.Footnote 58
Therefore, the Court concluded that the contested Chamber, which made this preliminary ruling request, does not qualify as a ‘court or tribunal’ under Article 267 TFEU. Consequently, the Court deemed this request inadmissible.
Comments
The Court’s approach in the LG judgment is seminal, as it challenges the presumption of Supreme Court independence and demonstrates the European Court of Justice’s willingness to thoroughly evaluate the independence of the referring Chamber. This evaluation takes into account various legal and circumstantial factors, as well as developments in Polish case law and in the decisions from the European Court of Justice and the European Court of Human Rights. Also, the LG judgment is yet another significant milestone in the Court’s jurisprudential development concerning the intrusive judiciary reforms introduced by the PiS government and the broader rule-of-law backsliding observed in Poland during its tenure. The judgment should be viewed in light of the Court’s existing case law on the matter, which has already garnered massive attention from scholars and practitioners throughout the years of the PiS government and, therefore, will only be discussed further when directly relevant.Footnote 59 Simultaneously, the judgment constitutes a remarkable shift in the Court’s case law regarding the definition of a ‘court or tribunal’ under EU law, potentially carrying significant implications for judicial dialogue under Article 267 TFEU. Specifically, the Court seeks to reconcile the diverse criteria and approaches developed in jurisprudence on the concept of independence under both Article 267 TFEU and Article 19 TEU in conjunction with Article 47 Charter. The judgment is also significant in that it aligns with the European Court of Human Rights’ established position on the ongoing judicial reforms in Poland. These three key points will be addressed individually in the subsequent discussion.
Robes do not make judges: rebutting the presumption of a court or tribunal
The evolution of Court’s jurisprudence concerning the concept of a ‘court or tribunal’ under Article 267 TFEU, which subsequently influences the eligibility of national bodies to engage in judicial dialogue with the Court through the preliminary ruling procedure, has a longstanding history but is characterised by ambiguities and inconsistencies. This topic has also been quite thoroughly explored in scholarly literature.Footnote 60 According to the EU Treaties, only courts and tribunals from member states have the authority to submit questions regarding the interpretation and validity of EU law to the European Court of Justice. Rather than leaving it to individual member states to determine which judges can employ the preliminary ruling procedure, the Court has chosen to establish an autonomous conceptFootnote 61 of a ‘court or tribunal’ through its case law. This development began with the 1966 Vaassen-Göbbels judgment,Footnote 62 where five cumulative criteria for defining a court or tribunal were established, and was further expanded in later cases such as Pretore di Salò,Footnote 63 which introduced the criterion of independence, and subsequent judgments that refined this standard, for instance the Corbiau Footnote 64 case or Joined Cases C-74/95 and C-129/95Footnote 65 and subsequent case law of the Court.Footnote 66
In Syfait I, the Court summarised the six criteria: the body must be established by law; be permanent; apply rules of law; have compulsory jurisdiction; follow inter partes procedure; and be independent.Footnote 67 As argued, the Court in its case law has shown a predisposition towards what is commonly referred to as the functional aspect of the concept of a courtFootnote 68 but some Advocates General have argued that this is too flexible and inconsistent.Footnote 69
A notable point of contention has been the criterion of independence. Historically, the Court addressed this factor in a permissive manner,Footnote 70 often accepting preliminary references from entities with only formal guarantees of independence.Footnote 71 This approach resulted in a wide range of bodies, including those with administrative functions or lacking robust independence safeguards, being allowed to refer preliminary questions,Footnote 72 as seen in judgments such as Köllensperger and Atzwanger Footnote 73 and Gabalfrisa.Footnote 74 As argued by Bogdanowicz and Taborowski, this inclusive approach by the Court aimed to enhance the uniform application of EU law across the member states.Footnote 75 However, at the same time, it also introduced ‘unpredictability and inconsistency’ regarding which bodies could access the preliminary ruling procedure.Footnote 76
In recent years, concerns over the rule of law backsliding and erosion of judicial independence in several member states have prompted the Court to reconsider and clarify the independence requirement, particularly in response to preliminary references from Polish courts.Footnote 77 This has raised the fundamental question whether the standards of judicial independence developed under Article 19(1)(2) TEU and Article 47 Charter should also apply when determining whether a body qualifies as a court or tribunal under Article 267 TFEU. Moreover, this re-evaluation constitutes a relatively long process during which the Court of Justice’s approach to the judicial independence requirement has evolved from somewhat reserved to much more stringent and clear-cut, as illustrated in the annotated judgment.
As argued by Bogdanowicz and Taborowski, in particular the Banco de Santander judgment of January 2020 marked a shift towards a more stringent interpretation of independence under Article 267 TFEU, emphasising the necessity for entities to exhibit unequivocal guarantees of independence to initiate preliminary references.Footnote 78 In this case, the Court determined that the Spanish Central Tax Tribunal failed to meet the external and internal aspects associated with the independence criterion and the referred preliminary questions were deemed inadmissible. The Court highlighted the importance of entities exercising their functions wholly autonomously, without hierarchical constraints, external interventions, or pressures that could impair the independent judgement of their members.Footnote 79 However, it has been argued that while the judgment aimed to elevate the standards of judicial independence, it did not fully resolve ambiguities around the application of this criterion, leaving room for varied interpretations.Footnote 80 This shift toward a stringent approach also raised further questions about the future accessibility of the preliminary ruling procedure and its implications for the effective and uniform application of EU law.Footnote 81 The fact that the accessibility to the preliminary ruling mechanism could be limited due to a more stringent approach towards the criterion of independence under Article 267 TFEU, is also highlighted by the Opinion of Advocate General Rantos discussed above. Clearly, the Advocate General was concerned about a stricter approach, arguing that it could limit access to the preliminary ruling for all Polish ‘neo-judges’.Footnote 82 Therefore, the Advocate General recalled that the Court had articulated earlier that the mere involvement of a non-judicial entity, such as an administrative body, in judicial appointment processes does not automatically breach the independence of the appointed judges.Footnote 83
In a previous case, Advocate General Tanchev had emphasised in a similar vein that the assessment for the purpose of Article 267 TFEU should be ‘a qualitatively different exercise’ than the assessment under Article 19(1) TEU and Article 47 Charter.Footnote 84 This, in view of the Advocate General, was necessary to guarantee judicial dialogue and the uniform interpretation of EU law.Footnote 85 Shortly after Banco de Santander, the Court in van Land Hessen stated that the independence criterion for admissibility of preliminary questions may be assessed solely in light of Article 267 TFEU,Footnote 86 without reference to the criteria developed for Article 47 Charter and Article 19(1)(2) TEU. However, the Court’s reasoning in that judgment appeared to conflate these different standards, adding to the confusion.Footnote 87
Conversely, in the following and controversialFootnote 88 judgment of March 2022 in Getin Noble Bank, the Court took again a more formalistic approach. When analysing the admissibility of the preliminary questions submitted by a one-judge panel of the Civil Chamber of the Polish Supreme Court, it departed from the more stringent stance seen in Banco de Santander. While it was submitted before the Court that the request for a preliminary ruling should be found inadmissible on account of the flaws in the appointment of the judge that referred the respective questions and the doubts which may arise as to his independence and impartiality,Footnote 89 the Court held that it is not its responsibility to determine whether the referral was made in accordance with the rules of national law governing the organisation of the courts and their procedure.Footnote 90 The Court, therefore, found that it was bound by a referral made by a court or tribunal of a member state, unless the referral is revoked through a legal remedy available under national law.Footnote 91 Thus, in Getin Noble Bank, the Court introduced a new presumption that requests for preliminary rulings from national courts, such as the Polish Supreme Court, are admissible, simply assuming that these bodies do meet the necessary criteria of a court under Article 267 TFEU, regardless of the actual composition of the courtFootnote 92 and without an autonomous assessment of the independence of referring judges.Footnote 93 However, the Court clarified that this presumption is limited to the admissibility of preliminary references and does not extend to the assessment of independence under Article 19(1)(2) TEU or Article 47 Charter.Footnote 94 Also, the Court noted that a final decision by a national or international court can rebut the said presumption if that court concludes that the referring judge is not an independent and impartial tribunal under Article 19(1)(2) TEU and Article 47 Charter.Footnote 95
The Court highlighted the fact that the preliminary ruling procedure constitutes the keystone of the EU judicial system as it has the object of securing uniformity in the interpretation of EU law, its consistency, its full effect and its autonomy.Footnote 96 As argued by Filipek, the highly formalistic approach of the Court presented in Getin Noble Bank sought to preserve judicial dialogue but did so at the expense of the rule of law and judicial independence.Footnote 97 Soon after, the Court confirmed its stance on the matter in another two judgments in response to preliminary questions referred by a Polish regional court in W.J. and by the Supreme Court in Gmina Wieliszew. Footnote 98 In the meantime, other preliminary questions from Polish courts regarding the status of a tribunal established by law were lodged at the Court, reflecting the deepening problem and increasing legal chaos related to wrongfully appointed judges in Poland.Footnote 99
It appears that in the LG case, the Court attempts to further reconcile the diverse criteria and approaches developed in its jurisprudence, while striving to maintain coherence with its previous case law. While the Court first underscores its concept of a court or tribunal and the presumption developed in Getin Noble Bank that the Supreme Court meets the requirements attached to the notion of a court,Footnote 100 it also strongly reiterates that this presumption may be rebutted. Subsequently, it thoroughly scrutinises different judgments by the European Court of Human Rights and the Supreme Administrative Court to consider whether the contested Chamber does not have the status of an independent and impartial tribunal previously established by law. Consequently, the Court considers that panel of judges does not satisfy the requirements to be classified as a ‘court or tribunal’ within the meaning of Article 267 TFEU.Footnote 101 The Court examines whether the contested Chamber indeed fulfils the criteria based on the standards outlined in Article 19 TEU and Article 47 Charter. In that sense, the Court ties the different provisions together, emphasising the independence requirement under Article 19(1) TEU, which aligns with the guarantees provided under Article 47 Charter concerning the right to an effective remedy and to a fair trial.Footnote 102 All systemic and circumstantial factors characterising the appointment of the three concerned judges bring the European Court of Justice to the conclusion that the contested Chamber does not meet the criterion of an independent and impartial tribunal previously established by law. Consequently, the presumption established in the Getin Noble Bank case must be rebutted, and the contested Chamber does not qualify as a court under Article 267 TFEU.
Limiting the access of the Chamber of Extraordinary Control and Public Affairs to the preliminary ruling procedure and its broader repercussions
The Court addresses the aforementioned issues and excludes the Chamber from the judicial dialogue within the EU, despite the fact that, in Poland, the Chamber is the highest authority in areas such as competition protection, energy regulation, telecommunications, and rail transport, which are closely linked to EU law. A brief screening of preliminary referrals from the Supreme Court preceding the LG judgment reveals, however, that, as of 2018, the Supreme Court had been notably inactive in referring preliminary questions within these specific fields and in engaging in judicial dialogue with the European Court of Justice. Consequently, it has not significantly contributed to the further development of a uniform interpretation of EU law in these critical areas. Following LG, the European Court of Justice will no longer accept preliminary references from the contested Chamber. This development not only halts judicial dialogue but is also likely to further exacerbate legal uncertainty for economic operators. For undertakings, the exclusion of the Chamber from the preliminary ruling mechanism illuminates the escalating deficiencies within the system of legal protection and necessitates seeking alternative judicial venues to have their EU law-related cases heard. Moreover, in a highly polarised society like Poland, where changes to the functioning of the judiciary have been highly contested, the judgment further deepens the perceived existing ‘dualism’Footnote 103 in the judiciary system (i.e., the legitimacy of neo-judges versus ‘old’ judges) and undermines even further citizens’ trust in the legal system.
At first sight, it may seem that the conclusion regarding the Chamber might have limited consequences as it applies to specific judges at a specific chamber of the Supreme Court, limiting their access to the preliminary ruling mechanism. However, the conclusions of the Court could in fact have much greater consequences. Meanwhile, there is an abundance of case law from the European Court of Human Rights indicating that different neo-judges sitting in various formations of the Supreme Court were appointed in manifest breach of the law.Footnote 104 Drawing a parallel, this suggested that potential future referrals made by other panels of the Supreme Court, consisting of defectively appointed judges, would also be deemed inadmissible by the Court.Footnote 105 This prediction soon materialised in practice, as reflected in several subsequent judgments and orders, where the Court, similarly to its reasoning in LG, found preliminary ruling referrals from various formations of the Supreme Court inadmissible due to the lack of independence of the referring panels, stemming from the flawed appointment procedures of the respective judges.Footnote 106
It remains to be seen whether the judgment in LG will induce a chilling effect on the participation of neo-judges from Polish lower courts in judicial dialogue with the European Court of Justice, as their appointments might also come under the scrutiny. Since 2018, more than 2,500 neo-judgesFootnote 107 have been appointed or promoted under the new rules, which inevitably leads to serious doubts about their status. Consequently, their referrals could also potentially be deemed inadmissible by the European Court of Justice.
Towards genuine judicial dialogue: alignment with the European Court of Human Rights and Polish last instance courts
In addition to tying the concept of a court under Article 267 TFEU with the independence requirements under Article 19 (1)(2) TEU and Article 47 Charter, the Court finally aligns with the existent stance of the European Court of Human Rights and the Polish highest courts. Despite the Polish government and Council’s defence, the Court decided to scrutinise the concerned appointments in light of the Dolińska-Ficek judgment and different rulings of the Polish Supreme Court and the Supreme Administrative Court.
Previously, the European Court of Justice somewhat inconsequently disregarded the case law from the European Court of Human Rights regarding irregular judicial appointments. In particular, in Getin Noble Bank, the Court answered questions referred by a single judge of the Supreme Court whose lack of independence was clearly confirmed by the European Court of Human Rights in 2021.Footnote 108 Despite the earlier European Court of Human Rights judgment regarding the referring judge, the Court refused to make an assessment of his independence. In Getin Noble Bank, the Court took ‘a rigid temporal stance’Footnote 109 and decided not to take the Strasbourg judgment into account in its own considerations,Footnote 110 while later in the same judgment it actually confirms its awareness of the respective Strasbourg decision.Footnote 111 In LG, the Court reconciles the formalistic approach adopted in Getin Noble Bank with a more functional one by carefully engaging with and meticulously analysing the Strasbourg case law and arguments with respect to the presumption formulated in Getin Noble Bank. As observed, this convergence between the Strasbourg and Luxembourg courts, even though based on slightly different reasoning, is of great significance and its importance can scarcely be overstated.Footnote 112 In a similar vein, in LG, the Court explicitly confirms the case law of both Polish supreme courts on the matter. This again departs from the earlier approach in Getin Noble Bank in which the Court as a matter of fact disregarded the judgment of the Supreme Court and Supreme Administrative Court, ironically implementing the Court’s own judgments in cases A.K. and A.B respectively.Footnote 113 In those cases, the Supreme Court held that where a formation of the Court includes a judge appointed on the recommendation of the neo-KRS, that formation must be regarded as unlawful, while the Supreme Administrative Court annulled the neo-KRS’s recommendation that had served as the basis for the appointment of a judge to the Supreme Court.Footnote 114 The explicit recognition of the existent case law of Polish courts on the matter and the detailed, dialogical involvement with it, can only be applauded. In doing so, the Luxembourg Court shows its willingness to listen to and engage with national courts, provided they themselves satisfy the standards of judicial independence. It thereby affirms their status as partners in the European judicial architecture and contributes to genuine judicial dialogue, both within the framework of the preliminary ruling procedure and beyond.
Conclusion
The judgment in the LG case marks a significant step in the Court’s series of rulings on judicial reforms introduced under the PiS mandate and their compatibility with EU law. It underscores the Court’s commitment to upholding the value of the rule of law while simultaneously attempting to reconcile the nuances and divergences that emerge within its evolving jurisprudence on judicial independence. The judgment finally resolves the prolonged, complex, and contentious debate regarding the legal status and independence of the Chamber and its qualification as a court or tribunal within the meaning of EU law. By explicitly refusing to engage in the judicial dialogue with the respective panel of judges constituting the contested Chamber, the Court sent a clear and straightforward message regarding the legality of the appointment of the neo-judges at the Polish Supreme Court. At the same time, by aligning with the pre-existing case law of the European Court of Human Rights and Polish (pre-neo-KRS) supreme courts, the Court showed willingness to conduct a genuine judicial dialogue with them. The verdict is also a good and highly desirable step in putting a halt to the process of multiplication of judicial independence standards induced by the Court which is so immensely criticised in academic literature.Footnote 115 In the meantime, the Court’s stance in the LG case can be regarded as fully validated and firmly established, as evidenced by the Court’s consistent rejection of subsequent referrals from the contested judicial panels of the Supreme Court. However, this approach further illuminates the escalating deficiencies within the system of legal protection in Poland as an increasing number of courts are being excluded from judicial dialogue with the Luxembourg Court, and a growing number of individuals lack assurance that their rights derived from EU law will be adequately enforced. The unequivocal confirmation that the respective Polish courts do not possess the status of an independent and impartial tribunal previously established by law also sends a clear and significant signal to the judiciaries in other EU member states. This ruling underscores again that if judicial independence is compromised, mutual trust cannot be presumed. Such trust is, however, indispensable for the effective operation of instruments like the European Arrest Warrant, the mutual recognition of judicial decisions or cooperation between National Competition Authorities.Footnote 116 The erosion of judicial independence in any member state thus poses further threats to the cohesion and functionality of those mechanisms.
Finally, it must be underscored that judgments from the European Court of Justice and the European Court of Human Rights regarding judicial independence significantly influence the ongoing debate in Poland on how to reverse the disastrous effects of judicial reforms. They constitute another stimulus for the Polish legislature to address the legal chaos created in the judiciary under the PiS mandate. Since the change of government in October 2023, the domestic debate on the restoration of judicial independence standards has been particularly intense and polarised. In this context, successive reform initiatives have been launched to address, inter alia, the status of judges appointed on the recommendation of the neo-KRS. The LG judgment and subsequent case law of the European Court of Justice, together with the pronouncements of the European Court of Human Rights, are central to this debate. They are regularly invoked by governmental actors, courts, scholars, and international bodies when discussing both the modalities of restoring judicial independence and the benchmark for sufficient restoration. On 24 September 2025, the Labour and Social Insurance Chamber of the Supreme Court has even held, referring, inter alia, to the LG case, that rulings issued by the contested Chamber should be regarded as non-existent owing to the participation of unlawfully appointed judges.Footnote 117 Although the current government has announced draft legislation that would ultimately abolish the Chamber of Extraordinary Control and Public Affairs, the problem has not yet been resolved in practice. The Chamber continues to exist formally within the institutional structure of the Supreme Court, its decisions remain a source of legal uncertainty, and the execution of the relevant Strasbourg and Luxembourg judgments is still ongoing.
Acknowledgements
The authors would like to thank the editors and the anonymous reviewers for their valuable and constructive comments on earlier drafts of this case note. The authors wish to acknowledge the considerable efforts of individual Polish judges who, through all legitimate avenues, seek to raise awareness within European civil society of the importance of judicial independence. The authors also acknowledge the Montaigne Centre for Rule of Law and Administration of Justice at Utrecht University for its continued commitment to research on the rule of law. Finally, the authors acknowledge that AI-assisted tools (Grammarly, ChatGPT, and Microsoft Copilot Chat) were used solely for language editing, such as grammar and phrasing. No new content or data were generated by these tools; they were only used to suggest refinements to the existing wording. All remaining errors are the authors’ own responsibility.
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