The anti-sovereignty course in the post-liberal European Union – the example of Poland

https://doi.org/10.63189/AGTH8961

This is an unprecedented rebellion! This statement, reminiscent of the words of King George III of England when he learned of the proclamation of the American Declaration of Independence in 1775, is an excerpt from the reasoning of Dean Spielmann, Advocate General of the Court of Justice of the European Union, in a case concerning the assessment of the possibility of reviewing the Treaties. These words perfectly reflect the current situation in the European Union, whose institutions are clearly seeking to deprive member states of their sovereignty and powers not transferred to the Union in the Treaties. Poland is currently a testing ground and a case study in the use of fait accompli to give European law precedence over the constitutions of member states without the sovereign Polish nation having a say in the matter.

In order to make it clear to readers why the recent CJEU ruling of December 18, 2025, in case C-448/23^[1] concerning the European Commission's complaint against Poland seeks to deprive Poland of its sovereignty and has caused such a stir, we must start with a fundamental issue. The CJEU is one of the bodies of the European Union, which is an international organization operating on the basis of the Treaty on European Union^[2] and the Treaty on the Functioning of the European Union^[3]. In these international acts, individual member states in Europe agreed to transfer very specific powers to EU bodies in order to harmonize the market and streamline the process of economic cooperation. According to Article 5(2) of the Treaty on European Union, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Any powers not conferred on the Union in the Treaties remain with the Member States. Poland, like other countries, has transferred specific powers to the EU (e.g., in customs law, competition law, consumer protection, and environmental protection). It has never transferred to the EU competences relating to the organization of the courts, family law, or constitutional justice. These are internal matters for sovereign states, which are regulated at the level of national constitutions and laws in accordance with the will of the people.

The CJEU is the judicial body of the EU, which consists of persons selected after nominations by individual national governments for specific judicial terms. The candidates are supervised by a special committee^[4], which can block Eurosceptic candidates, i.e. those who do not take a creative approach to the interpretation of EU law and do not seek to extend Brussels' non-treaty powers. The task of the Court in Luxembourg is to interpret the treaties and assess EU law, as well as to settle disputes arising from EU law (e.g., between EU bodies and member states, or between states themselves). The Court is the armed wing of the Union, as it can impose certain financial penalties on member states (a high-profile case was the attempt to force Poland to close the lignite mine in Turów in 2021^[5], issued solely by a judge Rosario Silva de Lapuerta from Spain, and the imposition of penalties on Poland in connection with this).

For many years, the CJEU has been systematically seeking to expand the EU's powers and go beyond the permissible issues set out in the Treaties. To this end, it has formulated the concept of the so-called the primacy of EU law over national law, which was not included in the Treaty of Lisbon in 2007 after opposition from countries that feared this principle would be used to deprive them of their sovereignty. Despite this, the CJEU's case law has become increasingly bold in areas not transferred to the EU by member states, which has been criticized by the constitutional courts of individual countries, which recognize the primacy of national constitutions over EU law. The ruling of the Federal Constitutional Court in Germany in 2020^[6] was very controversial, when the Court explicitly refused to apply the ruling of the Court in Luxembourg, writing that it had been issued ultra vires, and therefore outside its powers. A year later, the French Council of State^[7] made a similar statement, saying it would not take the CJEU ruling into account. Earlier, a similar ruling was issued by the Supreme Court of Denmark.

During the period of rule by the sovereignist and conservative party in 2015-2023, Poland became an excellent testing ground for the scope of possible interference by European Union bodies in Poland's internal affairs, which was supported by the then opposition from the party of the current Prime Minister Donald Tusk, which was very strongly entrenched in the EU structures. The assessment of legal changes made under laws in accordance with the Polish Constitution of 1997 ceased to be carried out exclusively at the national level by the Polish Constitutional Tribunal, but also rose to the European level through the ruling of the CJEU in Luxembourg^[8]. This mainly concerned the issue of the judiciary in Poland, which is regulated by the Polish Constitution. The CJEU, supported by the European Commission, derived its competence to deal with such matters from Article 2 of the Treaty on European Union, which contains very general statements on the values on which the Union is based (e.g., respect for human dignity, freedom, democracy, equality, the rule of law, etc.). Of course, such general principles do not imply that EU bodies can comment on issues concerning the structure of Polish courts, the possibility of delegating judges by the Minister of Justice, or the method of selecting members of the Polish National Council of the Judiciary. Nevertheless, it is precisely in these areas that the CJEU has systematically issued judgments that have served the then opposition and certain judges supporting it to undermine the law legally enacted by the Polish parliament. A dichotomy arose in Poland: the Polish Constitutional Tribunal ruled that the legal changes were in line with the Constitution^[9], while the CJEU questioned these changes as being incompatible with European law.

Finally, in 2021, in two separate rulings, the Polish Constitutional Tribunal ruled^[10] that the legal basis on which the Court in Luxembourg derives its competence to interfere in internal Polish affairs and in matters decided by a democratically elected parliament is inconsistent with the 1997 Constitution, which, according to Article 8, is the supreme law of the Republic of Poland. This was nothing that had not already been stated by the constitutional courts of other European countries concerned about the extra-treaty expansion of the powers of EU institutions. It was also the implementation of the fairly unambiguous case law of the Court in Warsaw since 2005. These rulings prompted a reaction from the European Commission, which in 2023 lodged a complaint against Poland with the Court in Luxembourg. It was in this case that the actions of the Polish Constitutional Court were described by the Advocate General of the CJEU as an unprecedented rebellion, and in its judgment of December 18, 2025, in case C-448/23, the Court found Poland's actions to be contrary to EU law, assessing the composition of the Polish Constitutional Tribunal and... finding that it is not an impartial and independent court within the meaning of European law! According to the Court in Luxembourg, this breach undermines the legitimate expectations of individuals regarding the ability of national courts to apply EU law in accordance with European standards, and thus undermines the integrity and effectiveness of the EU legal order. In its judgment, the CJEU emphasized that Poland cannot invoke its constitutional identity to evade respect for the common values enshrined in Article 2 of the EU Treaty, such as the rule of law, effective judicial protection, and the independence of the judiciary.

In other words, the EU Court ruled that the constitutional identity of the Polish state cannot justify a refusal to apply what the EU authorities consider to be in line with the very general values of the Union enshrined in Article 2 of the Treaty. Shortly before that, the Court in Luxembourg issued a judgment in case C-713/23 as a preliminary ruling, in which it stated that, under EU law, Poland is obliged to recognize same-sex marriages concluded in other EU countries, even though Polish law and the case law of administrative courts, and the practice of public authorities refused to do so, citing Article 18 of the Polish Constitution, which defines marriage as a union between a woman and a man. In doing so, the European Court violated Article 4(2) of the EU Treaty, which requires the Union to respect the national identities of its Member States.

The situation in Poland at the end of 2025 clearly shows the direction in which the European Union is heading. The reaction to the opposition of individual countries to changes in EU treaties towards centralization (not to be confused with federalization) and oligopolization of the EU, in which all matters will be decided by Germany and France, and not by second-class EU countries such as Poland, Hungary, the Czech Republic, Slovakia, or Portugal, is precisely the increasingly bold jurisprudence of the EU Court, which deprives Poland of its sovereignty and takes over the competences of sovereign nation states. Our readers in particular should understand how important it is to have their own sovereign constitutional judiciary, as well as respect for the national constitution, which is an expression of the will of a sovereign nation. Wasn't one of the reasons for convening the American First Continental Congress in 1774 the protests against the necessity of sending appeals against colonial court judgments to London?

^[1] Judgment published on the website: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:62023CJ0448 (online 30.03.2026).

^[2] Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, Official Journal 2012/C 326/01.

^[3] Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, Official Journal 2012/C 326/01.

^[4] The so-called “Committee 255,” named after the article of the Treaty on the Functioning of the European Union that describes its tasks:

A panel shall be set up to issue an opinion on the suitability of candidates to perform the duties of judge and Advocate General of the Court of Justice and the General Court before the governments of the Member States make the appointments referred to in Articles 253 and 254.

The panel shall comprise seven persons chosen from among former members of the Court of Justice and the General Court, members of national supreme courts, and lawyers of recognized competence, one of whom shall be proposed by the European Parliament. The Council shall adopt a decision establishing the panel’s operating rules and a decision appointing its members. It shall act on the initiative of the President of the Court of Justice.

^[5] Judgement C-121/21 R.

^[6] Judgment of the Federal Constitutional Court (BVerfG) in Karlsruhe dated May 5, 2020 (Case Nos. 2 BvR 859/15, 2 BvR 1651/15, 2 BvR 2006/15, 2 BvR 980/16): https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2020/05/rs20200505_2bvr085915en.html.

^[7] Decision of the Council of State (Conseil d'État), no. 393099.

^[8] See e.g. judgements of the CJEU from 29 March 2022: case no. C-132/20, from 21 December 2021, case no. C-718/21, from 4 September 2025, case no. C-225/22.

^[9] Judgement of the Constitution Tribunal from 25 March 2019, case no. K 12/18.

^[10] Judgement of the Constitution Tribunal from 7 October 2021, case no. K 3/21.