“There are no provisions in EU law that define the procedure for selecting judge-members of a national body such as the National Council of the Judiciary (KRS)” — this is the position of the European Commission presented before the Court of Justice of the European Union (CJEU). This statement effectively shatters the narrative about “neo-judges” appointed after 2017.
Judges appointed by the KRS formed after 2017 have been referred to as “neo-judges” by members of the current government and allied legal associations. According to them, such judges should not be adjudicating due to a supposed lack of independence. This narrative was based on alleged EU standards – which now appear to have collapsed.
The Polish Supreme Court reviewed the impartiality and independence of a judge appointed after 2017 in case C-719/24. As part of this process, it submitted a preliminary question to the CJEU. In response, the European Commission presented its position. Contrary to claims made by many Polish legal professionals, the Commission explicitly stated that there are no EU legal provisions prescribing how judge-members of a national body like the KRS should be selected. Moreover, it proposed the following interpretation for the CJEU to offer the Polish Supreme Court:
Article 19(1), second subparagraph of the TEU, in conjunction with Article 2 TEU and Article 47 of the Charter of Fundamental Rights, should be interpreted as meaning that as long as judicial nomination procedures in a Member State provide sufficient guarantees to eliminate any reasonable doubt regarding the independence and impartiality of the appointed judges, they do not, in principle, preclude national legislation allowing judges on a judicial appointment body - such as the KRS - to be selected by the national parliament.
According to a statement from the Polish Supreme Court, “By order dated April 30, 2025, the President of the CJEU - after considering the observations submitted on behalf of the European Commission and in relation to the Supreme Court’s request dated March 27, 2025 - decided to remove case C-719/24 from the Court’s register.”
“A Blow to the Very Foundation”
Judge Kamila Borszowska-Moszowska of the District Court in Świdnica believes that the European Commission’s position strikes “at the very foundation of the thesis promoted by certain judicial associations and parts of the political establishment – namely, that the mere fact that judge-members of the KRS are chosen by the Sejm automatically ‘taints’ the entire judicial appointment process and renders judicial nominations invalid.”
“The Commission clearly states: what matters are the guarantees of independence, not the specific electoral mechanism – which can very well be parliamentary,” she emphasized.
She recalled that “it was precisely the circles around associations such as the Association of Polish Judges ‘Iustitia’ and the Association of Judges ‘Themis’ that built their public campaign around the claim that any decision made by the ‘new-type’ KRS automatically violated EU standards.” – “The European Commission has just removed this thesis from the catalog of legally justified arguments,” she noted.
“In other words: the doctrine of the ‘original sin of the KRS’ has collapsed, and with it – the long-standing construct of the alleged ‘lack of legal courts’ in Poland. This position should become a turning point in the public debate – and a warning against further instrumental use of EU law in internal political and personnel battles,” she said.
Time to Restore Lawfulness at the Prosecutor’s Office?
The “Ad Vocem” Association of Prosecutors highlighted another key aspect of the Commission’s stance. It concerns the allegedly unlawful takeover of the National Prosecutor’s Office by Adam Bodnar and the removal of Prosecutor Dariusz Barski from his role as National Prosecutor.
“The judges who issued the resolution on September 27, 2024 – stating that Prosecutor D. Barski was lawfully reinstated to active service and could serve as National Prosecutor – were, as we have always claimed, judges in the constitutional sense of the word,” emphasized “Ad Vocem.”
“Therefore, Prosecutor General D. Barski must be restored full and unrestricted access to the building of the National Prosecutor’s Office and allowed to carry out his duties. This would bring an end to the state of lawlessness that has persisted since January 12 of last year. The same applies to Deputy Prosecutors General who opposed the legal violations and, as a result, were subjected to disciplinary proceedings, transfers, and other personnel actions in violation of the Law on the Public Prosecutor’s Office,” the lawyers stressed.
They added: “The longer some people pretend otherwise and try to bend reality – as if believing the Earth is flat – they should remember: the Copernican breakthrough is coming. And then what? The Moon, Mars…? Maybe Venus?”