The Method of Judicial Appointment Does Not Automatically Determine Judicial Independence – Remarks on the CJEU Judgment in Case C-521/21

https://doi.org/10.63189/BVGM8141

On 24 March 2026, the Court of Justice of the European Union (CJEU or Court) issued a judgment in Case C-521/21. The Court held – among other things – that an irregularity in the procedure for appointing a judge does not, by itself, lead to the conclusion that the judge is not independent. This ruling is part of the long-standing dispute over the rule of law in Poland and, at the same time, sets an important direction in European doctrine regarding judicial independence.

1. Facts and Background of the Reference for a Preliminary Ruling

The impetus for the issuance of the judgment in question was a preliminary ruling request from the District Court for Poznań-Stare Miasto, filed in the course of proceedings in a civil case concerning a claim arising from a service contract. The defendant filed a motion to recuse Judge S.C., citing the circumstances of her appointment: the judge’s candidacy was recommended to the President of the Republic by the National Council of the Judiciary (NCJ) in a composition formed following the 2017 amendment – a composition repeatedly challenged in the case law of both the CJEU and the European Court of Human Rights (ECtHR) as failing to meet the standards of independence from the executive and legislative branches.

The referring court encountered a structural obstacle arising from Art. 26 § 2 and § 3 of the Act of 8 December 2017 on the Supreme Court.^[1] Pursuant to § 2, every court was required to submit to the Extraordinary Control and Public Affairs Chamber (ECPAC)^[2] a motion to recuse a judge based on an allegation of lack of independence. However, § 3 required the same Chamber to leave such a motion unexamined if it involved an assessment of the legality of the appointment. The result was a vicious circle in the sphere of legal protection: the sole substantive basis for the recusal motion directed it to a body which, by virtue of an explicit provision of the Act, lacked the jurisdiction to examine it. The court therefore had reasonable doubts as to the compatibility of that provision with EU law and referred two questions to the CJEU for a preliminary ruling.

This issue went far beyond the scope of the individual case. As indicated by the data cited in the judgment’s reasoning (para. 58), approximately thirty percent of judges in Poland’s common courts – that is, over three thousand people – were appointed with the involvement of the NCJ in its new composition. Accepting the argument that the independence of this group is automatically called into question would disrupt the judicial system on a scale difficult to estimate. Conversely, completely disregarding the flaws in the nomination procedure would undermine the axiological foundation of the protection of the rule of law within the meaning of Art. 2 of the Treaty on European Union. The CJEU faced the need to develop a position that strikes a balance between these extremes.

2. Structure of the judgment: two legal principles and their relationship

The Court answered the questions referred for a preliminary ruling in reverse order from the way they were phrased – beginning with the second question, which was procedural and logically took precedence. Only after removing the formal obstacles did it proceed to a substantive assessment of the standard of independence.

2.1. Procedural rule: the obligation to set aside national jurisdictional limitations

With regard to the second question, the CJEU held that the legal framework resulting from the combination of Art. 26 § 2 and § 3 of the Supreme Court Act with the case law of the Constitutional Tribunal – in particular the Constitutional Tribunal’s judgment of 14 July 2021^[3] – had created a structural impossibility of obtaining legal protection. This is because no authority has been able to examine the merits of a motion challenging the validity of an appointment. This situation was classified as a violation of Art. 19(1), second paragraph, of the TEU, with reference to the judgment in case C-204/21. From this classification, the CJEU derived an unconditional obligation for the national court: the court to which the recusal request was submitted should set aside the limitations arising from the described legal situation –regardless of the rank of the provisions, whether statutory or constitutional – and independently examine the legality of the appointment of the judge in question

This ruling was also extended to the Constitutional Tribunal’s judgment P 7/20, which the CJEU – citing the judgment of 18 December 2025, in Case C-448/23 – classified as violating the principles of the autonomy, primacy, and effectiveness of EU law. The national court is therefore required to set aside that judgment without waiting for intervention by the legislature or the constitutional court. In doing so, the CJEU went beyond the scope of the individual case, deriving from Art. 19(1) TEU an obligation for Poland to establish a regulatory framework enabling a systemic assessment of the status of judges appointed through a flawed procedure. The form of this framework was left to the state’s discretion, provided it was based on objective criteria.

2.2. Substantive standard: the contextual independence test

The answer to the first question – concerning the substantive assessment of independence – was in the negative: a defect in the nomination procedure does not automatically preclude a judge’s independence. The CJEU structured its reasoning into three distinct stages.

In the first stage, the Court recalled established case law regarding the standard of assessment. The independence of a court is measured by its ability to dispel, in the minds of individuals, any reasonable doubt as to its resistance to external influences. The procedure for appointing judges is an element of the concept of a court established by law; however, significantly, not every irregularity in this procedure automatically undermines independence. The breach must be of such a nature and gravity as to create a real risk of impermissible interference by the executive or legislative branches. This assessment requires a comprehensive examination of all relevant circumstances surrounding the appointment.

In the second stage, the CJEU analyzed both circumstances identified by the referring court – separately and in conjunction. The mere recommendation by the NCJ in its new composition is not sufficient to call into question a judge’s independence. Similarly, the mere absence of an effective remedy does not automatically lead to such a conclusion – though the Court emphasized that an appeal to the ECPAC was merely a sham remedy, since the Chamber itself, composed exclusively of judges recommended by the same NCJ, did not meet the requirements of an independent court within the meaning of EU law.^[4] Both circumstances together constitute a necessary condition for an in-depth review, but do not predetermine its outcome.

In the third stage, the CJEU applied the established criteria to the circumstances concerning Judge S.C. It was taken into account that her candidacy had received a positive opinion from the Regional Court’s College and the Assembly of Judges’ Representatives, that the other participants in the nomination proceedings did not challenge the appointment, and that the referring court did not point to any other circumstances that might raise doubts. In light of these facts, the Court found no significant contextual elements that, when considered together with the procedural defect, would undermine the judge’s independence or impartiality. The operative part of the judgment formulates this principle in general terms: EU law does not preclude a panel in which a judge appointed under the conditions indicated is sitting from being regarded as independent, provided that there are no other relevant contextual circumstances of such a nature and gravity that, taken together, could call into question the judge’s independence or impartiality.^[5]

3. The Relationship Between the Luxembourg Standard and the Strasbourg Methodology

One of the most significant aspects of the judgment in case C-521/21 is its relationship to the case law of the ECtHR, and in particular to the Grand Chamber judgment of 1 December 2020, in the case of Guðmundur Andri Ástráðsson v. Iceland.^[6] That judgment is considered a milestone in shaping the ECHR standard for the right to a court established by law and set a benchmark for all subsequent cases concerning the irregularity of judicial appointments –including proceedings involving Poland.

A comparative analysis of both approaches reveals a significant methodological divergence. The ECtHR employs a three-step test in this area: it examines whether there has been a violation of an explicit provision of domestic law governing the appointment of judges; whether this violation was subject to effective judicial review in accordance with the requirements of the ECHR; and whether the violation was of such a nature and gravity as to undermine the very essence of the right to a court established by law. In assessing this third element, the ECtHR explicitly excludes the possibility of taking into account factual circumstances such as the judge’s subsequent professional history – this element may be relevant only in a separate assessment of impartiality under Art.6(1) of the ECHR, not in determining whether the court was established by law.

The CJEU, however, adopts a contextual approach, which, in the judgment in question, has been formalized more explicitly than in previous case law. The assessment by the national court should take into account all the circumstances surrounding the appointment, and the decisive criterion remains whether an objective observer would have reasonable doubts about the judge’s immunity to external influences.^[7] Of particular importance, the Court permits, at this stage, the consideration of factual elements concerning the course of the judge’s career after taking office. In this way, the CJEU intentionally shapes the conceptual autonomy of EU law vis-à-vis the ECtHR standard,^[8] a fact the Court itself acknowledges, though it does not regard this divergence as a problem requiring resolution within the framework of the judgment.

This discrepancy is not merely academic. It gives rise to a practical risk of differing rulings on the same facts, depending on which standard the national court applies. An identical case may be assessed as failing to meet the requirement of a court established by law under the ECHR, while at the same time meeting it within the meaning of Art. 47 of the Charter of Fundamental Rights of the EU. The issue is further complicated by the Strasbourg ruling in Wałęsa v. Poland,^[9] to which the CJEU refers in its reasoning in Case C-521/21. Both courts agree on the systemic nature of the problem of flawed judicial appointments in Poland, yet they propose different tools for assessing it. This divergence requires clarification in future case law – both national and European.

4. Systemic Implications and the Political Paradox

Judgment C-521/21 is consistent with the position expressed in the Venice Commission’s Opinion CDL-AD(2026)002 of 12 March 2026, concerning the Polish draft law on the restoration of the right to an independent court. The Commission welcomed the drafters’ decision to abandon the concept of ex tunc effect – that is, the retroactive annulment of appointments – recognizing, in line with the logic of the judgment in question, that the mere participation of a body lacking guarantees of independence in the nomination procedure does not justify the automatic removal of a judge from office. As the Ombudsman pointed out, however, the draft bill under consideration may be subject to some tension to the extent that it relies on automaticity – judgment C-521/21 explicitly and unequivocally rejects such automaticity.

Particular attention should be paid to the constitutional paradox revealed by the ruling. For years, the current ruling coalition has questioned the legality of the NCJ as constituted after 2017, citing, among other things, the case law of the CJEU and the ECtHR in its arguments. After taking power, however, the new Sejm will elect members of the NCJ based on the same provisions of the NCJ Act, which – in light of this argument – were the source of the previous Council’s defects and judges’ appointments defects. The CJEU challenged the previous NCJ not because of its political composition, but because of the legal framework for electing its members, which precluded independence from political power as such. If this structure remains unchanged, the structural argument remains valid. Should the independence of the new NCJ ever become the subject of a review before the CJEU, the Court would be obliged to apply the same test – and the outcome would depend on whether a change in the body’s personnel, carried out while maintaining the same legal basis for its election, is sufficient to meet the standard of structural independence.

5. Conclusions

The judgment of the CJEU of 24 March 2026, in case C-521/21 is a landmark decision for the development of standards of judicial independence within the European legal order. On the procedural level, the Court ordered the disregard of national regulations – both statutory and constitutional – that create a structural impossibility of fairly adjudicating a motion to recuse a judge, deriving from Art. 19(1) TEU the obligation for Poland to establish a systemic framework for verifying the status of judges appointed through a flawed procedure. On the substantive level, the Court introduced a model of contextual, individual assessment of independence in place of automatic disqualification – a solution that is legally coherent and practically indispensable given the scale of the phenomenon.

At the same time, the judgment raises questions that it does not resolve. The contextual methodology differs significantly from the test applied by the ECtHR, which creates a risk of divergent rulings in identical factual situations depending on the reference system applied. The divergence between the Luxembourg standard and the Strasbourg approach regarding the right to a court established by law poses a serious interpretive challenge for national courts and requires clarification in future case law of both courts, or through dialogue between them. Meanwhile, Polish courts must apply both standards in parallel, without certainty as to their mutual relationship.

The implications for the national legal order are far-reaching. The multitude of individual review proceedings involving more than 3,000 judges raises serious questions about legal certainty and the stability of the system. The statutory framework – which the CJEU explicitly ruled has to be established – thus becomes, in this context, not merely a proposal de lege ferenda, but a requirement of European law. Judgment C-521/21 thus marks the next stage in the ongoing dispute over the model of judicial independence in Poland – a dispute in which a normative resolution remains open.

And one final thought. Since the CJEU – by adopting a methodology of individual, context-based assessment – implicitly acknowledges that the flaws in the nomination procedure are neither absolute nor uniform. If the assessment were binary (the procedure was flawed, so every judge is by definition deprived of independence), constructing a complex contextual test would make no sense. The fact that the Court constructs such a test indicates that it itself recognizes a gradation: there are appointments where the context is so serious that independence is genuinely undermined – and others where, despite the formal defects of the procedure, the judge’s actual independence does not raise legitimate doubts.

This is a paradox that the judgment in case C-521/21 reveals but does not resolve. European law classifies the nomination procedure as incompatible with the requirements of independence, yet at the same time refuses to draw automatic consequences from this classification regarding individual judges. It does so for practical and systemic reasons – but thereby raises a question that is difficult to dismiss with silence: if the effects of “defectiveness” require verification on a case-by-case basis and may prove insignificant, then how serious was this defectiveness in reality? And does that mean it made sense to systematically undermine, for many years, the status of all of the judges appointed by the President at the recommendation of the NCJ, which was established under the provisions of the 2017 Act?

The manner of a judge’s appointment does not automatically determine their independence. This may be an uncomfortable conclusion – but it follows directly from the ruling’s logic.

^[1] Journal of Laws of 2024 item 1571, as amended.

^[2] It is one otf the chambers of the Supreme Court in Poland.

^[3] OTK ZU A/2021, item 49.

^[4] Cf. CJEU judgments in cases C-585/18 A.K. and Others and C-487/19 W.Ż.

^[5] Cf. paras 90–92 of the judgment in case C-521/21.

^[6] Application No. 26374/18.

^[7] Cf. paragraphs 77–78 of the judgment in case C-521/21.

^[8] Cf. paragraph 43 of the judgment in case C-521/21.

^[9] Application no. 50849/21, pilot judgment of 23 November 2023.