After G.K. and Others and EPPO (judicial review of procedural acts), Mincu Pătrașcu Brâncuși v EPPO (C-328/24 P, 16.4.2026) is another case in which the CJEU clarified the particular structure of the European Public Prosecutor’s Office (EPPO), as provided by Regulation 2017/1939 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (“the Regulation”).

The importance of this case lies in the fact that it confirms, through detailed reasoning, the key role played by national courts in ensuring an effective judicial review of procedural acts by the EPPO which produce legal effects vis-à-vis third parties.

In the present case, the appellant challenged Article 42(1) of the Regulation, the first sentence of which provides that procedural acts of the EPPO that are intended to produce legal effects vis-à-vis third parties shall be subject to review by the competent national courts in accordance with the requirements and procedures laid down by national law.

The appellant had brought an action before the General Court against a decision by the EPPO referring his case to trial. The General Court dismissed the action on the ground that, having regard to Article 42(1) of the Regulation, it lacked jurisdiction to hear and determine it. Before the CJEU, the appellant challenged that dismissal. He contested Article 42(1), arguing that denying the General Court jurisdiction over such EPPO acts violated his right to an effective remedy and to a fair trial, as guaranteed by Article 47 of the EU-Charter.

The CJEU dismissed the appeal. After emphasizing that Article 86(3) TFEU expressly allows the EU legislature to determine the rules applicable to the judicial review of procedural measures taken by the EPPO, it noted the substantial level of integration of the EPPO within the Member States’ systems of criminal procedure (§ 70). Because the legal effects of EPPO acts were largely determined by national law, national courts were “best suited” to carry out judicial review of these procedural acts (§ 82). Article 42 thus established a specialized system in which national courts review procedural acts, while EU courts retain exclusive jurisdiction over administrative decisions, data protection issues, and decisions to dismiss a case (where challenged on EU law grounds).

Accordingly, Article 42(1) was held to be fully consistent with the complete system of legal remedies and procedures designed to ensure judicial review of the legality of EU acts, as established by the TFEU (§ 100). In particular, this provision was found to respect the right to effective judicial protection guaranteed by Article 47 of the EU-Charter, since it ensured the procedural fairness and the rights of the defence of persons affected by the procedural acts of the EPPO (§ 98).

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Having regard to the hybrid structure of the EPPO system, the repeated reference by the CJEU to the “complete system of legal remedies and procedures designed to ensure judicial review of the legality of EU acts” (§§ 66 and 100) would appear to take on a special significance. In the highly specific context of hybrid EU institutions which rely extensively on national institutions applying national law, one may legitimately question whether the system of judicial protection concerning EPPO acts, as described by the CJEU, is in fact as complete as the CJEU suggests.

This question arises because the CJEU’s description entirely omits the impact of the European Convention on Human Rights on domestic judges applying their own national law by virtue of Article 42 of the Regulation, thereby implicitly suggesting that the completeness of judicial protection in this field results solely from the interaction between national law and EU law.

The reality, however, is different. As the CJEU itself emphasizes, the reason why national courts have jurisdiction over the procedural acts covered by Article 42(1) of the Regulation lies in the substantial level of integration of the EPPO within the Member States’ systems of criminal procedure (§ 70). In practice, national courts are likely to be involved far more frequently than EU courts in litigation concerning EPPO acts, since Article 42(1) of the Regulation grants them exclusive jurisdiction over all procedural acts of the EPPO affecting persons directly targeted by those acts. As expressly provided by Article 42(1), their review is to be conducted in accordance with the requirements and procedures laid down by national law.

Procedural fairness and the rights of the defence can be expected to play a central role in this type of litigation (§ 98). Yet, at national level, these matters are to a very large extent governed by the Convention, in particular Article 6 thereof, which constitutes a mandatory minimum level of protection that Member States remain free to enhance, including in response to EU law requirements.

First, national judges remain bound by the Convention when applying EU law and are therefore required to interpret and apply EU law consistently with the Convention (see, among others, Bivolaru and Moldovan v. France, § 103). Pending confirmation by the ECtHR, there is no reason why this would be any different when they apply their own national law pursuant to Article 42(1) of the Regulation.

Secondly, the Strasbourg case-law concerning the criminal limb of Article 6 of the Convention, developed over more than seventy years, is clearly far more extensive and detailed than the case-law so far developed by the CJEU on the basis of EU law, including Article 47 of the EU Charter and the Directives on procedural rights in criminal proceedings. For an overview of that case-law, see the Guide on Article 6 (criminal limb) by the Registry of the ECtHR.

It is therefore unsurprising that the CJEU relies extensively on Strasbourg case-law when interpreting these Directives and seeking to fill their numerous lacunae. Examples include VB II, Stachev, K.B. and F.S., Politseyski organ pri 02 RU SDVR, HYA and Others, HN and DD, Spetsializirana prokuratura, IS and the Opinion of Advocate General Ćapeta in European Commission v. Hungary and European Commission v. Czech Republic).

Thirdly, such reliance on the Convention is mandated by Article 52(3) of the EU-Charter, which imposes the Convention minimum standard across EU law, and by the non-regression clauses contained in those Directives..

Accordingly, the detailed minimum standards resulting from Strasbourg case-law in the field of criminal proceedings constitute an essential component of the “complete” protection of fundamental rights ensured at national level in respect of procedural acts of the EPPO which, however, the CJEU attributes solely to Articles 47 and 48 of the EU-Charter.

To disregard the contribution of the Convention in the context of hybrid institutions — where that contribution is not only indirectly required under EU law but is also necessary because of the lacunae of EU law in this field — is therefore even more problematic than elsewhere. More than in any other context, hybrid institutions demonstrate that the effects of EU law cannot adequately be understood in isolation from those of the Convention.

In other words, if the Convention is omitted from the description of the system of judicial protection, that system can be regarded as “complete” only in a very formal sense and from the perspective of EU law alone. From a substantive and holistic domestic perspective, however, it remains incomplete, thereby creating a risk of misunderstanding.

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That said, as long as the EU will not have acceded to the Convention (on this accession, see The European Commission requests an Opinion by the CJEU), the protection afforded by the Convention will itself remain incomplete with regard to hybrid institutions involving EU officials operating within a domestic legal context. As noted in a previous post concerning W.S. and Others v. Frontex:

From a Convention perspective, these hybrid constructions operating within the territory and jurisdiction of the Member States represent a new situation. It is no longer a Bosphorus-type scenario in which national authorities are the sole bodies responsible for applying EU law and thereby ensuring the full application of the Convention to all actions undertaken by them, even when those actions are based on EU law. Instead, full coverage by the Convention is being replaced by a “patchwork coverage”, with gaps in the Convention’s applicability emerging where actions within the jurisdiction of the Member States are carried out by EU entities or officers acting on behalf of the EU itself and therefore not subject to the Convention.

This marks the end of the complete Convention protection as described by the ECtHR in the following terms:

“Article 1 of the Convention requires the High Contracting Parties to “secure to everyone within their jurisdiction the rights and freedoms defined in … [the] Convention”. Article 1 makes no distinction as to the type of rule or measure concerned, and does not exclude any part of the member States’ “jurisdiction” from scrutiny under the Convention.” (among many others: Matthews v. the United Kingdom, § 29).

These new gaps in the Convention protection make the case for accession by the EU to the Convention even more compelling (see Accession of the EU to the ECHR: a logical response to the optionality of the ECHR in EU Law, p. 11 et seq.).

Rzecznik Praw Obywatelskich (Recusal of a judge of ordinary jurisdiction) (C-521/21, 24/03/2026) represents another instalment in the sequence of judgments addressing the rule of law crisis in Poland. This time, however, the focus is not on the procedure for the appointment of judges, but on the recusal of a judge appointed by a procedure which both the CJEU and the ECtHR have found to be incompatible with the right to an independent and impartial tribunal established by law.

The particular background to this ruling is the challenge resulting from the fact that currently around 30 % of the Polish judiciary – some 3,000 judges – have been appointed according to that same irregular procedure (§ 58). The present ruling is an attempt by the CJEU to come to terms with the consequences of this situation for the Polish judicial system in general and for the proper functioning of the preliminary ruling mechanism in particular. The CJEU thereby invokes the case-law of the ECtHR but in a way which perhaps raises more questions than it answers.

The CJEU’s ruling

In the course of the main proceedings, which concerned a claim under a contract for services, the defendant applied for the recusal of Judge S.C. He argued that the judge was not validly appointed because the resolution for her appointment had been adopted by the National Council of the Judiciary (KRS) in its new composition, the latter being at the root of the lack of independence of the judges appointed according to this procedure. The referring court expressed doubts about this appointment and about its own jurisdiction under EU law to deal with this recusal request.

In substance, the CJEU ruled that EU law and the principle of primacy preclude national legislation and constitutional case-law which grant exclusive jurisdiction to a body to adjudicate on recusal applications while depriving that body of the power to actually examine the lawfulness of the appointment. The national court hearing the recusal application must disapply these restrictions and carry out the examination itself to determine if the judge meets the requirement of a tribunal previously established by law.

The CJEU also held that the appointment of a judge recommended by a non-independent body, i.e. the KRS, and the lack of an effective judicial remedy for other candidates does not, in itself, preclude the judge from being considered an independent and impartial tribunal. For such an appointment to fail the requirements of EU law, there must be other relevant contextual factors attending the procedure that are of such gravity that, when taken together, they call into question the judge’s independence or impartiality.

Observations

From a Convention point of view, this ruling calls for two series of observations, on the methodology applied by the CJEU and on its approach in respect of the systemic nature of the irregular judicial appointments in Poland.

On the methodology: context-based approach or essence-based approach?

To date, judicial independence has been an area in which a high degree of harmony could be observed between the two European Courts. This convergence is particularly visible in their approach to the ongoing rule-of-law crisis in Poland, including their understanding of the core requirements of such principles as the rule of law, the separation of powers, effective judicial protection, and the independence and impartiality of judges (see W.Ż). These foundational principles are restated in paragraphs 41 to 50 of Rzecznik.

The CJEU and the ECtHR also agree on the need not to be overly formalistic in assessing compliance with these principles, emphasizing that not every procedural or legal error should automatically entail consequences (§ 76; Guðmundur Andri Ástráðsson v. Iceland, § 246, quoted below).

However, some differences appear as regards the methodology flowing from this premise. The CJEU indeed goes for an overall assessment of the impugned appointment procedure which takes into account the broader context in which the alleged breaches occur, thereby having regard to their nature and gravity. It comes down to finding out whether taken together, the factors making up the context of an appointment as judge create in the minds of individuals a reasonable doubt as to the imperviousness of that judge to external factors (§§ 77-78).

Thus, according to the CJEU, the appointment of a judge recommended by a non-independent body, i.e. the KRS, and the lack of an effective judicial remedy for other candidates does not, in itself, preclude the judge from being considered an independent and impartial tribunal. For such an appointment to fail the requirements of EU law, there must be other relevant contextual factors attending the procedure that are of such gravity that, when taken together, they call into question the judge’s independence or impartiality.

The CJEU itself applied this methodology to the case of the judge being recused before the referring court, thereby also considering such factual circumstances as the absence of judicial challenges to the impugned appointment and the professional record of the judge since his/her appointment (§§ 89-92).

With this context-based approach, the CJEU seems to be shifting from its previous position which more closely relied on the Strasbourg approach, as in W.Ż. The ECtHR indeed goes for an essence-based approach, which comes down to finding out, through a three-step methodology, whether the very essence of the right to a tribunal established by law has been irretrievably undermined by a judicial appointment. Factual circumstances are not among the criteria used by the ECtHR in this context. In Guðmundur Andri Ástráðsson v. Iceland the ECtHR stated:

“Breaches of a purely technical nature that have no bearing on the legitimacy of the appointment process must be considered to fall below the relevant threshold. To the contrary, breaches that wholly disregard the most fundamental rules in the appointment procedure – such as, for instance, the appointment of a person as judge who did not fulfil the relevant eligibility criteria – or breaches that may otherwise undermine the purpose and effect of the “established by law” requirement, as interpreted by the Court, must be considered to contravene that requirement.” (§ 246; to the same effect, see also Dolińska-Ficek and Ozimek v. Poland).

Thus, while Strasbourg and Luxembourg have the same concerns, they differ in their methodology. Do these differences really matter? At any rate, even if they do not seem radical, they have at least the potential to create some confusion in the minds of national judges – who are indeed bound to apply EU law in conformity with the Convention (see, to that effect, inter alia Bivolaru and Moldovan v. France, § 103) – as to the criteria which are decisive in assessing whether an irregular judicial appointment undermines or not the independence and impartiality of a judge.

For example, one striking difference in this context is the role played by appearances. Whereas, in assessing the independence and impartiality of judges, the CJEU does rely on the role of appearances and on the importance of reasonable doubts created by these appearances (§§ 70, 71, 74, 76, 78), the ECtHR here follows a different line of reasoning. While it very much relies on appearances in assessing the impartiality of judges (see most recently Tsatani v. Greece, § 65), it adopts a different approach when assessing the independence of courts. In Guðmundur Andri Ástráðsson v. Iceland, § 247, the ECtHR indeed stated:

“The Court accordingly takes the view that only those breaches that relate to the fundamental rules of the procedure for appointing judges – that is, breaches that affect the essence of the right to a “tribunal established by law” – are likely to result in a violation of that right … In particular, as the Chamber rightly pointed out, the Court “must look behind appearances and ascertain whether a breach of the applicable national rules on the appointment of judges created a real risk that the other organs of Government, in particular the executive, [could exercise] undue discretion undermining the integrity of the appointment process to an extent not envisaged by the national rules in force at the material time.”

One may wonder whether the European Courts, by adopting such conflicting positions, ultimately undermine rather than reinforce fundamental rights, as their joint application becomes increasingly difficult for national judges.

On the systemic nature of the irregular appointments: the power of the facts vs. the power of the law?

However, the bigger novelty of Rzecznik would appear to be the approach proposed by the CJEU for addressing the systemic nature of the problem arising from the around 3,000 Polish judges who have been irregularly appointed, such as Judge S.C. in the present case, making up some 30 % of the current judiciary in that country.

At the heart of this issue is a fundamental tension. On the one hand, there is the need to uphold the principle of separation of powers and to ensure compliance with the requirements of judicial independence. On the other hand, however, there is a pressing concern to preserve the continuity and effectiveness of the administration of justice in a situation characterised by the fact that 30 % of the current judges have been irregularly appointed. This latter consideration is particularly salient with regard to the preliminary ruling mechanism, the proper functioning of which risks being seriously affected, if nothing changes, by the jurisprudence declaring inadmissible requests originating from improperly composed courts, such as the CERPA (§§ 61, 63, 85).

As a way out of this dilemma, the CJEU now interprets the second subparagraph of Article 19(1) TEU as imposing on the Polish “legal order” an obligation to establish a legislative framework enabling an assessment, having regard to the nature and gravity of the procedural defects, of whether individuals irregularly appointed to judicial office may continue to exercise their functions. While this obligation goes with a broad margin of discretion for national authorities, it is not without limits: the assessment must be guided by objective criteria and must ensure sufficient guarantees of independence and impartiality (§§ 63-65).

The direction of travel seems clear: the independence requirements should be softened to avoid the permanent exclusion of significant parts of the Polish judiciary from access to the preliminary ruling mechanism, with consequences for the interpretation of EU law in Poland.

Though perfectly understandable, this approach raises quite a few questions, not least on the substantive content of such criteria, the determination of which is left in the hands of the national “legal order”, even though this is about an EU law issue. Yet, it may be assumed that the contextual factors referred to by the CJEU in relation to Judge S.C. (§§ 91-92) are intended to inform this national determination.

In any event, the CJEU’s reasoning appears to open the door to a shift in paradigm: from institutional and procedural guarantees of independence towards an assessment of factual circumstances, such as the personal professional conduct of the judge concerned, as a potential substitute or corrective mechanism. The power of the facts vs. the power of the law?

Interestingly, in support of this approach, the CJEU relies on the pilot-judgment procedure applied by the ECtHR in Wałęsa v. Poland under Article 46 of the Convention (§ 62). However, a closer look reveals that the two European Courts do not entirely converge on this point.

In Wałęsa, the ECtHR endorsed the indications given to Poland by the Committee of Ministers of the Council of Europe following previous judgments against Poland. In this context, the Polish authorities are ordered to adopt measures addressing “the status of all judges appointed in the deficient procedure involving the [KRS] as constituted under the 2017 Amending Act and of decisions adopted with their participation” (§ 329). Thus, the ECtHR and the Committee of Ministers are less explicit than the CJEU on whether the envisaged legislative framework should specifically aim at allowing irregularly appointed judges to continue to perform their duties. Not least because the ECtHR has no preliminary ruling mechanism to preserve as the CJEU has.

The ECtHR also emphasised: “It goes without saying that the Polish State must ensure that the issues pertaining to the independence of judges are determined by a court or courts which are themselves an ‘independent and impartial tribunal established by law’ in the light of the Convention standards.” (§ 330)

Most importantly, under the Strasbourg pilot-judgment mechanism, compliance by the State with its obligations under Article 46 of the Convention is monitored by an external European body, the Committee of Ministers. One may wonder about the existence of any external supervision of compliance by Poland with its obligations flowing from the Rzecznik jurisprudence. Will this be a task for the European Commission or for the CJEU itself?

Finally, it should also be noted that the implementation of the ECtHR’s judgment in Wałęsa has been postponed: the initial deadline for the adoption of the required measures has been extended by the ECtHR, at the request of the Polish Government, until 23 November 2026 (see Comparing AW ‘T’ with Walesa v. Poland). Consequently, the coming into being of any legislative framework requested by the European Courts is likely to take more time.

In the interim, in the absence of a comprehensive legislative solution, the question arises whether the ordinary Polish judges dealing with recusal requests will find a way to combine the Luxembourg context-based approach with the Strasbourg essence-based approach. The importance of their challenging task can hardly be overestimated. What is at stake is nothing less than the future of judicial independence in Europe.