An error or ultra vires action. The CJEU’s judgement C-448/23 against Poland

https://doi.org/10.63189/CTLA8789

On 18 December 2025, the CJEU delivered the C-448/23 judgment, in which it held that Poland infringed EU law. This refers to the judgments of the Constitutional Tribunal (hereinafter: the CT) ref. nos. P 7/20 and K 3/21 declaring the inconsistency of EU law with the Constitution of the Republic of Poland (hereinafter: the RP).^[1] The CT stated that the CJEU’s case law, as indicated in those judgments, was delivered ultra vires and violated the state’s constitutional identity.^[2]

The CJEU held that Poland (through the interpretation of the Constitution by the CT) infringed:^[3]

·  firstly, the obligations flowing from Art. 19(1), second paragraph, of the TEU, because:

- it created a loophole in the process of effectively applying EU law, by blocking an interim measure and the CJEU’s judgment;

- the CT did not satisfy the requirements of an independent and impartial tribunal previously established by law.

· secondly, the obligations under the general principles of autonomy, primacy, effectiveness and the uniform application of EU law and under the principle of the binding effect of judgments of the CJEU.

Two kinds of consequences follow from this judgment: those individual and specific in nature, as well as those general and abstract in nature.

The first case relates to the direct effects of the CT’s action which were assessed as an infringement of the Treaties. Poland’s obligation here is (theoretically) to eliminate them. In practice, this is impossible. The judgment concerns the legal situation that occurred ten years ago and the de facto situation on the day on which the European Commission delivered its reasoned opinion (15 September 2022). Everything has changed since then: the legal bases (statutes) concerning the CT as well as the composition of that body. In the system of Polish law, there is no procedure for impacting the CT’s composition (dismissing judges before the expiry of their term of office), and the adoption thereof would require a constitutional amendment, which for political reasons is unattainable today.

Also, both CT’s judgments at issue as well as other judgments delivered in a composition held to be inconsistent with EU law have been already promulgated and have produced constitutional effects. And there is no procedure in Poland for derogating promulgated judgments of the CT. In turn, a renewed legislative procedure reversing the regulations derogated by those judgments would require the political consent of all participants of that procedure. This is impossible considering the political context as well as unfeasible due to a high number of judgments.

Therefore, the main consequences for relations between the EU and Poland, or even broader, for relations between the EU and all Member States, arise from the general and abstract effects of the said judgment.

As we know, judgments of international courts, including those determining an individual infringement of law, also have a broad, law-creating effect. It follows from the fact that international law is a system with a complicated construction and often imprecise provisions. Hence, it is necessary to specify its provisions at the level of law-application, including the stage of dispute-resolution. And in this way, the jurisprudential activity of international courts acquires a law-creating nature. And it affects the understanding of a provision, that is, also its future application. Judgment becomes the actual law-making.^[4] In EU law, which is an autonomous regime of international law, this refers to every formula of the CJEU’s judgments, not only to preliminary judgments.

From that perspective, the C-448/23 judgment marks a significant breakthrough in the European integration process. There are many contexts that are worth discussing, but the formula of this publication enforces restraint on the author. The crucial contexts are:

· including the CT of the Republic of Poland within the realm of EU law as a national court within the meaning of Art. 267 TFEU;

· encroaching on the systemic authority of the President of the RP and attempting to enforce EU standards in that regard;

· setting a boundary for the state’s constitutional autonomy (sovereignty);

· consolidating the impact of the Charter of Fundamental Rights (hereinafter: CFR) on the state system;

·  strengthening the justiciability (operability) of the axiological standards contained in Art. 2 TEU.

1. In accordance with the CJEU’s case-law,^[5] national courts may effectively fulfil the function of an EU court within the meaning of Art. 19(1), second paragraph, TEU and Art. 267 TFEU (i.e. apply EU law and make references for a preliminary ruling) only if they satisfy the standards arising from Art. 2 TEU (rule of law) and Art. 47 CFR. In this way, the administration of justice is included within the scope of EU law in the institutional context.

In the judgment C 448/23, the CJEU recognised the CT of the Republic of Poland as a national court within the meaning of EU law.^[6] It manipulated here the CT’s constitutional position, which in accordance with Art. 10(2) of the Constitution, is an organ of judicial power, but does not implement the administration of justice. In accordance with Art. 175(1) of the Constitution, the administration of justice is implemented by (…) the Supreme Court, common courts, administrative courts and military courts.

Thus, the CT is not a national court within the constitutional meaning, and the individual right to lodge a constitutional complaint with the CT is not the exercise of the right to a court.^[7] There is consent in that regard in Poland in the CT’s jurisprudence^[8] and among scholars.^[9] However, contrary to the Constitution, the CJEU included the CT within the national administration of justice. This constituted manipulation on its part, as it could have stretched the scope of Art. 19 TEU over the CT, and through this article squeeze the CT within the framework of Art. 2 TEU and Art. 47 CFR. And that, in turn, opened to it the possibility to review procedures for electing judges of the CT and appointing the President of the CT as well as to interfere with the CT’s jurisprudence.

2. Manipulation with the CT’s position also enabled the CJEU to interfere with the authority of the President of the Republic of Poland. This concerns taking the oath by the person elected to the position of a judge of the CT in the presence of the President of the RP.^[10] Taking the oath finalises the procedure for electing a judge of the CT and makes it possible to assume the office of a judge. As of 1997 the oath is taken in the presence of the President, which is unambiguously regulated in further numerous statutes concerning the CT and its judges.

The CJEU included the procedure for hearing the oath within the constructional scope of the right to a court within the meaning of Art. 2 TEU in conjunction with Art. 47 CFR. Failure to hear the oath of persons elected by the Sejm was deemed by that court to be contrary to the fundamental national rules governing the appointment of judges to the CT,^[11] and thus contrary to the Union’s understanding of the rule of law.

The CJEU invoked the judgment of the ECHR of May 2021 (Xero Flor v Poland), which in turn referred to the CT’s assessment made in the judgment K 34/15.^[12] And in the latter we read that the statute creates the President’s immediateobligation to hear the oath.^[13]

The CJEU’s assessment is faulty. This paragraph of the CT’s judgment is not normative, but interpretative in nature. And let me remind that in Poland the CT does not have the power to provide the universally binding interpretation of statutes. It lost that power in 1997. Therefore, this assessment may not be recognised as the fundamental national rules.^[14]

By the way, let me add that this assessment is also faulty as to its substance. The statute literally mentions taking the oath of office by elected persons in the presence of the President. It thus does not express the obligation, consent or refusal of the President to hear the oath of office,^[15] but the necessity of the President’s presence while taking the oath. The President acts here as a witness whose presence is necessary for the legal effectiveness of the oath. The statute imposes on elected persons the obligation to take the oath of office, and the provision is addressed to them. As the guardian of the Constitution,^[16] the President has discretion to decide whether he agrees to witness taking the oath of office. This is a matter of his will, not of his obligation. Especially, if he has doubts as to the very election, both personal as well as procedural in nature.

3. The CJEU also stated that the autonomy of EU law, and particularly the principles of primacy, effectiveness and uniformity are of such a fundamental nature that they may not be subject to the CT’s review.^[17] Therefore, only the CJEU has the power to determine the scope and limits of competences transferred by states to the EU level. It ultimately broke the state’s constitutional sovereignty. Even on such a fundamental issue.

We teach students that legal systems of the Member States and EU law are autonomous vis-à-vis each other. However, the CJEU has never really confirmed that formula, as this formula does not consider how significantly the EU order affects national law and even suggests some national independence. Therefore, the CJEU has always only confirmed the autonomy of EU law.^[18]

In the judgment C-448/23, the CJEU consolidated the context of that issue. Not only did it remind of its case law in accordance with which the Member States’ constitutional autonomy, that is, constitutional sovereignty, ends where the primacy, effectiveness and uniformity of EU law are endangered.^[19] It blurred here the next boundary between EU law and national law. It initiated the systemic Europeanisation of the Member States’ constitutional standards. It reversed the substance of Art. 2 TEU. The content of this provision was previously interpreted as stemming from the Member States’ constitutional traditions. And we read in the judgment that, in choosing the respective constitutional model, the Member States are required to comply with the standards of EU law.^[20] They stem from Art. 2 TEU, and it is the CJEU that defines them. Hence, it is not the national constitution that gives substance to Art. 2 TEU, but it is Art. 2 that shapes constitutional standards. And this unequivocally breaks the state’s constitutional identity, which the EU is obliged to respect.^[21] The CJEU wants to examine this identity from the perspective of its relation to integration standards^[22] and autonomously decide what is more important.

And because the said identity is understood from the perspective of the state’s political and constitutional structures,^[23] the EU – through the CJEU – created for itself the possibility to interfere with the foundations of the state’s constitutional structures if it considers that they are incompatible with the principles on which the integration process is based.

4. Moreover, redefining the role of the CFR reached the next level. This process has been going on for years, and it makes us forget that the CFR is not a treaty. Thus, it does not fulfil the constitutional requirements to bind Poland. Its formal position is not elevated by the provision introduced to the Treaty of Lisbon stating that the Union recognises the rights, freedoms and principles set out in the CFR, which shall have the same legal value as the Treaties.^[24]

The CFR emerged as a catalogue of the Union’s fundamental rights. It was supposed to be “the Union’s shield” for individuals based on the formal limitations of its Art. 52. However, the CJEU turned it into a sword for actively transforming the Member States’ bodies.

The methodology is simple. The content of the CFR, to a large extent, embraces the general principles of EU law, which is confirmed not only by their construction, but explicitly by Art. 6(3) TEU.^[25] The CJEU, through its case law, fills out these principles with specified content. And it does so in an extending and in a context-based manner. Additionally, it links the CFR with the Member States’ constitutional traditions and with Art. 6 ECHR.^[26] And it considers all this while interpreting Art. 19(1), second paragraph, TEU.

The said provision requires the creation of effective legal protection in areas covered by Union law. This content expressly refers to the Member States’ competences. The CJEU does not negate it at all.^[27] It only states in numerous judgments that, in exercising their powers, the Member States are obliged to do so in compliance with EU law, because they may not escape obligations stemming therefrom.^[28] In addition, it defines by itself the term areas covered by Union law. And consequently, if the CT is, according to the CJEU, a national court within the meaning of Art. 267 TFEU and fulfils the obligation of Art. 19 TEU, then it should satisfy the requirements arising from Art. 2 TEU and 47 CFR regarding the right to a court flowing from the Union’s understanding of the rule of law (independence, impartiality, established by law). And if the EU is a legal community, then those requirements may not depend on national interpretation, nor even on the national interpretation of EU law which does not conform to the CJEU’s interpretation.^[29]

And as regards the CT, this is no longer a dispute over common judiciary. This is interference with the status and role of the guardian of the hierarchy of law, that is, an attack on the foundation of the state system.^[30] What is more, the CJEU is thus encroaching on the systemic position of the President of the RP.

5. The next element is redefining the axiological standards contained in Art. 2 TEU so that they acquire a justiciable (operative) formula.

Art. 2 TEU, in accordance with its literal wording, determines the catalogue of values on which the Union is founded. They constitute the features of the integration process. The fulfilment of those standards is a requirement that not only enables to become a member of the EU, but also determines the state’s further membership in that process and use of all Treaty-based rights.^[31] The said values define the Union’s identity as a common legal order.^[32]

Therefore, according to the CJEU, Art. 2 does not express political will but a legally binding obligation that needs to be fulfilled by the Member States. And the manner of fulfilling it may not be different among them.^[33] In the event of a danger, the Union should have the possibility to protect those obligations, by relying on its Treaty-based rights.^[34]

Until recently it was recognised that the procedure for protecting those values is stipulated in Art. 7 TEU. After delivering the C-157/21 and C-448/23 judgments, two additional formulas were developed:

·      the Treaty-based competences of different EU bodies, as specified in the enactments of secondary legislation, attributing to those bodies the competence to review, declare and punish infringements of those values;

·      an imperative addressed to the Member States’ courts to consider EU law in accordance with the principle of primacy.

The first case also embraces the CJEU’s competences arising from Art. 258 TFEU. An example here is the case C-769, based on the Commission’s action against Hungary for violating rights of the LGBT community.^[35] The second one refers to the authorisation granted to national courts to act for the sake of the effectiveness and uniformity of EU law. In this context, the CJEU creates in its jurisprudence appropriate instruments: blocking legislation, defining the powers of state organs contrary to relevant statutes, granting the right to refuse to recognise the ruling of a different court as well the judgment of the CT.^[36] In view of differing national constitutional standards, it creates deep conflict and uncertainty in national legal orders. The current situation in the Polish justice system may serve as an example.

The conclusion of this article is short. The C 448/23 judgment marks a breakthrough in relations between a Member State and the EU. The CJEU crossed with it the boundary of protecting state sovereignty that is based on constitutional autonomy. It also opened for itself the way to “Europeanise” the Member States’ constitutional systems. And although its ruling was based on mistakes, manipulations and ultra vires actions, it will probably continue to go down this road. And this is the direct path towards limiting the sovereignty of member states.

Therefore, although this judgement was directed against Poland, other EU member states will have to respond it, because  it is fundamentally contrary to the case law of the constitutional tribunals of many Member States and to their understanding of the basis for the validity and application of EU law. And first critical reaction came immediately. From Germany. This is the opinion of Bundestag’s legal services from December 2025.^[37] So the reaction at the political level. Now is the time for Bundesverfassunggericht (Federal Constitutional Court).

^[1] C-448/23, para. 100.

^[2] The judgments of the CT: P 7/20 and K 3/21.

^[3] C-448/23, the operative part.

^[4] Lauterpacht, 1934, pp. 155-226.

^[5] Eg. C-585/18; C-487/19C-558/19; C-615/20 and C-671/20.

^[6] C-448/23 para. 261.

^[7] The judgments of the CT K 35/15 and K 10/17.

^[8] The judgment of the CT SK 40/01.

^[9] Garlicki, 2022, p. 375; Gregorczyk, Weitz, 2016, Nb 66; Bisztyga, 2001, p. 60.

^[10] Art. 4(1) of the Act of 30 November 2016 on the Status of the Judges of the CT.

^[11] C-448/23 paras. 271-272.

^[12] Para. 5 of the judgment of the CT, 2129; see C-448/23 paras. 53, 61-63.

^[13] C-448 paras. 271-273.

^[14] C-448/23 para. 271 in fine.

^[15] C-448/23 para. 62.

^[16] Art. 126 of the Constitution.

^[17] C-448/23, paras. 124-125 and para. 126 and 141.

^[18] C-448/23, paras. 166-167.

^[19] C-448/23, paras. 170-173.

^[20] C-448/23, paras. 181-182.

^[21] C 448/23 paras. 222, 226-227, 229.

^[22] C-488/23 paras. 232-233.

^[23] Art. 4(2) TEU.

^[24] Muszyński, 2009, pp. 157-171.

^[25] Art. 6(3) TEU.

^[26] C 448/23 paras. 106-107.

^[27] C-448/23 para. 260.

^[28] Eg. C-438/05, para. 40; C‑896/19, para. 48; C‑204/21, para. 63; C 585/18, para. 75; C 192/18, para. 102; C-791/19, para. 102; C-615/20, para. 40; C- 157/21 para. 269 and C-448/23, para. 102.

^[29] C-448/23 para. 110 and 238.

^[30] C-824/18, para. 39; C-791/19, para. 57; C-718/21 para. 46, 58, 60, 77; C-448/23, paras. 106, 107, 110, 239.

^[31] C-157/21, paras. 144-145.

^[32] Until the Treaty of Lisbon, Art. 2 was outside the scope of the CJEU’s competence.

^[33] C 157/21, paras. 264-266.

^[34] C-157/21, paras. 265-268.

^[35] The case C 769/22 – the opinion of Advocate General T. Capeta (conclusions).

^[36] C-448/23, paras. 118-120.

^[37] Wer hat das letzte Wort in der Europäischen Union? Urteil des EuGH in der Rechtssache C-448/23 (Kommission/Polen). Deutscher Bundestag - Dokumente der Wissenschaftlichen Dienste (16.01.2026).

References

Legal acts

Konstytucja RP, Traktat o UE, Traktat o funkcjonowaniu UE.

ustawa z 30 listopada 2016 r. o statusie sędziów TK. Dz. 2016 poz. 2073 z póź. zm.

Literature

Bisztyga, A. Polska skarga konstytucyjna czy dopełnienie systemu ochrony praw jednostki? [w:] A. Nowak (red.), Wokół problematyki cywilnoprocesowej. Studium teoretycznoprawne. Księga pamiątkowa dla uczczenia pracy naukowej Profesora Kazimierza Korzana, Katowice 2001, p. 47-70.

Garlicki, L.,  Polskie prawo konstytucyjne. Zarys wykładu. Warszawa 2022;

Gregorczyk, P. Weitz, K. Komentarz do art. 45, [w:] M. Safjan, L. Bosek (red.) Konstytucja RP. Tom I. Komentarz do art. 1-86, Warszawa 2016.

Lauterpacht, H., The Development of International Law by the International Court. Being A Revised Edition of „The Development of International Law by the Permanent Court of International Justice”, London 1934.

Muszyński, M. Der polnische Vorbehalt. Status der Charta der Grundrechte der EU für Polen nach dem Vertrag von Lissabon [w:] Lex divina et civitatis. Księga Jubileuszowa na 75-lecie urodzin Prof. H. Schambecka, red. B. Banaszak, J. Machnacz, Wrocław 2009, p. 157-171.

Case law of CT of Poland

wyrok z 14 lipca 2021 r., sygn. P 7/20, OTK A/2021/49.

wyrok z 7 paźdiernika 2021 r. sygn. K 3/21, OTK A/2022/65.

wyrok z 9 grudnia 2015 r., sygn. K 35/15, OTK ZU nr 11/A/2015, poz. 186.

wyrok z 11 września 2017 r., sygn. K 10/17, OTK ZU A/2017, poz. 64.

wyrok z dnia 12 listopada 2002 r., sygn. SK 40/01, OTK ZU nr 6/A/2002, poz. 81.

ECHR case law

Case Xero Flor v. Poland, no 4907/18.

CJEU case law

C-438/05; C 192/18; C-585/18; C-824/18;C-487/19; C-558/19; C-791/19; C‑896/19; C-615/20 i C-671/20; C‑204/21; C- 157/21; C-718/21; C-448/23; C 769/22 (opinia Rzecznika Generalnego T. Capety).