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.

The ruling by the CJEU in WS and Others v. Frontex (C-679/23 P, 18.12.2025), given on an appeal against a judgment by the General Court (T-600/21), represents a clarification of the fundamental rights obligations of the European Border and Coast Guard Agency (Frontex), with significant implications for the Convention protection system.

The facts underlying this ruling involve a Syrian Kurdish family consisting of two parents and four children who arrived on the Greek island of Milos in October 2016. Shortly after their arrival, they were transferred to a reception and identification centre, where they expressed their desire to apply for international protection. The family was nonetheless deported to Turkey, via a joint return operation coordinated by Frontex.

The family alleged that this removal occurred without any written or enforceable return decisions being issued by the Greek authorities, which they argued violated the principle of non-refoulement and their fundamental rights.

The family sued Greece before the ECtHR, resulting in a friendly settlement where Greece agreed to pay the family a total of 75,000 euros for damages.

In September 2021, the family brought an action for damages against Frontex in the General Court, seeking approximately 136,000 euros for material and non-material harm.

The current ruling by the CJEU arose from the family’s appeal after the General Court had dismissed their claim, primarily on the grounds that there was no direct causal link between Frontex’s actions and the family’s damages. The CJEU disagreed with these findings and referred the case back to the General Court.

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One of the main findings of this ruling on which this post will concentrate is that, contrary to what the General Court had considered, Frontex (European Border and Coast Guard Agency), as an Agency of the EU created in order to improve the integrated management of the external border of the EU (Hamoudi v. Frontex, § 66), cannot escape all extra-contractual liability when it cooperates with Member States to ensure the return of asylum seekers.

In the case at hand, the liability invoked by the appellants mainly concerned a) their inclusion in a return operation from Greece to Turkey without them having been the subject of written return decisions, and b) infringements of their fundamental rights committed during their return flight to Turkey, notably the principle of non-refoulement.

The General Court had denied the existence of a direct causal link between the alleged damage and Frontex’s actions, considering that the latter were of the sole responsibility of Greece. In its opinion, Frontex only had to provide technical and operational support to the Member States (§ 92). It had no obligations in respect of joint return operations organized by the Member States (§ 124).

However, the CJEU is of a different opinion. Referring to Article 51(1) of the EU-Charter and the relevant provisions of Regulation 2016/1624 on the European Border and Coast Guard – now replaced by Regulation 2019/1896 – it comes to the conclusion that “in the light of the specific obligations which Regulation 2016/1624 imposes on Frontex in the context of the coordination of joint return operations, that agency is required to verify that such decisions exist for all persons whom a Member State intends to include in such operations, in order to ensure that they comply with the requirements arising from that regulation and with the fundamental rights of the persons concerned, and in particular the principle of non-refoulement.” (§ 102)

As regards the damage allegedly incurred by the appellants as a result of their forced return to Turkey, the CJEU ruled that while, under Article 42(1) of Regulation 2016/1624, the host Member State is in principle to be held liable for any damage caused by members of the European Border and Coast Guard, Frontex is nonetheless under a set of obligations intended to ensure respect for fundamental rights in the context of joint return operations. It can therefore not be excluded a priori that a breach of those obligations by its departments or staff in the context of a particular operation may have contributed to infringements of fundamental rights taking place during a return flight (§ 132).

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From a Convention point of view, this ruling is particularly interesting in that it confirms that the hybrid structure of the European Border and Coast Guard (EBCG), resulting from its institutional and operational association of national and EU components, also produces a hybrid form of non-contractual liability for breach of fundamental rights, with Frontex bearing part of that liability, along with the Member States. As Recital 6 of Regulation 2016/1624 puts it, the European integrated border management is a matter of shared responsibility of Frontex and the national authorities responsible for border management.

In this respect, the EBCG bears some resemblance with the European Public Prosecutor’s Office (EPPO), which is another hybrid EU entity operating on the basis national and EU authorities cooperating on the ground (see An Elephant in the Room: the European Convention on Human Rights and the EPPO).

EBCG and EPPO represent a challenge for the Convention system in that they both rely in part on EU entities and officers which, because the EU is not itself a Contracting Party to the Convention, are not subject to the latter (on this, see Bosphorus v. Ireland, § 152), whereas the national components of EBCG and EPPO are. This results in a legal duality as regards the fundamental rights applicable to the actions which these two bodies undertake. Consequently, potential victims of these actions must base their claims on different sets of fundamental rights. Not only does this represent a heavier burden for these persons, it is also a challenge to legal certainty and legal coherence. The impact of the EPPO hybrid structure on the application of the Convention has been described in detail in No case to answer for the EPPO?.

WS and Others is a perfect illustration of this duality and of the resulting increased complexity. Indeed, before going before the General Court with their claim against Frontex based only on EU law, the appellants had filed an application against Greece with the ECtHR, which gave rise to a friendly settlement, based on the sole Convention (§ 35). In this connection, the CJEU also makes it clear that the non-contractual liability to be assumed by Frontex is under EU law only (§ 127).

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. (Bosphorus v. Ireland, §§ 137 and 152).

In the specific context of Europol, which is another hybrid entity, the CJEU even acknowledged a form of joint and several liability between Europol and a Member State, allowing a claim for compensation for a breach of the confidentiality of personal data to be brought in its entirety either before the EU courts or before the national courts, at the claimant’s choice (Kočner v. Europol).

In response to these concerns, one may of course refer to the EU-Charter and its Article 52(3) which is designed to ensure coherence between the EU and Convention protection levels. However, in spite of this Article 52(3), which is meant to guarantee compliance with the Convention as minimum protection level under EU law, this compliance in practice turns out to be purely optional in the case-law of the CJEU, resulting in some significant protection deficits (see A logical response to the optionality of the Convention).

Moreover, this “patchwork coverage” clashes with the principle according to which “Article 1 [of the Convention] … does not exclude any part of a Contracting Party’s ‘jurisdiction’ from scrutiny under the Convention” (Bosphorus v. Ireland, § 153). With hybrid EU entities ensuring part of the law-enforcement in the Member States, part of what is taking place within the “jurisdiction” of the Member States now falls outside the scope of the Convention and is therefore no longer subject to the external scrutiny by the ECtHR.

Yet, this external scrutiny by the ECtHR has always been seen as an essential component of an effective protection of fundamental rights in Europe. This is also why the European legislature in Art. 6(2) TEU enjoined the EU to accede to the Convention. The rise of EU hybrid entities is one more good reason for the EU to go ahead with this accession, as it would put an end to the patchwork coverage by the Convention in this area, by making the EU and its entities subject to the Convention, on an equal footing with the Member States (on the current state of the accession process, see The European Commission requests an opinion by the CJEU). In the meantime, however, the patchwork coverage will continue. It can therefore only be hoped that the optionality of the Convention in EU law will not.