AW ‘T’ (4.9.2025, C-225/22) is another ruling by the CJEU on the rule-of-law crisis in Poland and the consequences to be drawn of the fact that, because of serious flaws in the procedure for the appointment of its members, the Chamber of Extraordinary Review and Public Affairs (CERPA) of the Polish Supreme Court cannot be regarded as an independent and impartial court previously established by law (see, among others, Krajowa Rada Sądownictwa). This time, the issue was about the effects of a decision by the CERPA upholding an extraordinary appeal lodged by the Prosecutor General.
The facts of the case can be summarized as follows. In 2004, AW ‘T’ filed a lawsuit against other companies claiming infringement of industrial property rights and unfair competition related to crossword puzzle magazines. After years of litigation, the Cracow Court of Appeal issued a final judgment in 2006. However, in 2020, the Prosecutor General filed an extraordinary appeal against the 2006 judgment, arguing procedural violations. The CERPA upheld the appeal in 2021, overturned the 2006 judgment, and referred the case back to the Court of Appeal for re-examination. The Court of Appeal referred the matter to the CJEU, seeking clarification on whether EU law allowed it to disregard the CERPA’s decision because of the serious flaws in the procedure which had led to the appointment of its members, thus raising doubts about its independence.
In essence, the CJEU ruled that the principle of the primacy of EU law requires national courts to disregard national rules or decisions that conflict with EU law, including those of constitutional courts. Consequently, decisions by judicial bodies which do not meet the EU law requirements of independence, impartiality, and lawful establishment must be regarded as null and void by lower courts. Thus, the Cracow Court of Appeal should assess, in light of the criteria listed by the CJEU, whether the CERPA meets these requirements. If not, it is prevented under EU law from carrying out the re-examination ordered by the CERPA.
Interestingly, in Wałęsa v. Poland (23.11.2023, 50849/21), the ECtHR also had to deal with an extraordinary appeal lodged by the Polish Prosecutor General before the CERPA. This time, the CERPA had reversed a Court of Appeal judgment in favour of the applicant in a defamation case and had dismissed the latter’s claim. The applicant is a former leader of the “Solidarity” (Solidarność) trade union, a former President of Poland (from 1990 to 1995) and laureate of the 1983 Nobel Peace Prize.
AW ‘T’ and Wałęsa v. Poland thus provide a good opportunity to compare the Luxembourg and Strasbourg approaches on the legal consequences of the CERPA not being an independent and impartial court, which is an essential issue in the context of the rule-of-law crisis in Poland, with implications for similar constellations in other European countries.
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A first observation in this context is the consensus between the two European Courts on the fact that the CERPA lacks the necessary independence and impartiality for it to be considered a proper court for the purposes of the Convention and EU law.
In AW ‘T’, the CJEU recalled its ruling in Krajowa Rada Sądownictwa (C-718/21, 21.12.2023) in which it explicitly followed the conclusion reached by the ECtHR in Dolińska-Ficek and Ozimek v. Polandto the effect that because of the manner in which its members had been appointed, the CERPA could not have the status of an independent and impartial tribunal previously established by law, for the purposes of the second subparagraph of Article 19(1) TEU, read in the light of the second paragraph of Article 47 of the EU-Charter (§ 49).
In Dolińska-Ficek and Ozimek v. Poland, the ECtHR indeed concluded as follows:
“The breaches of the domestic law that [the ECtHR] had established, arising from non-compliance with the rule of law, the principle of the separation of powers and the independence of the judiciary, inherently tarnished the impugned appointment procedure. A procedure for appointing judges disclosing undue influence of the legislative and executive powers on the appointment of judges was per se incompatible with Article 6 § 1 of the Convention and, as such, amounted to a fundamental irregularity adversely affecting the whole process and compromising the legitimacy of a court composed of the judges so appointed. In sum, the breaches in the procedure for the appointment of judges to the CERPA of the Supreme Court were found to have been of such gravity that they impaired the very essence of the applicants’ right to a ‘tribunal established by law.’” (§§ 348-350)
Consequently, according to the CJEU, the competent panel of the CERPA had not met the requirements of effective judicial protection, as prescribed by the above provisions. Its composition was “such as to give rise to reasonable doubts, in the minds of individuals, as to the imperviousness of those judges and the panel in which they sit to external factors, in particular the direct or indirect influence of the national legislature and executive and their neutrality with respect to the interests before them. Those factors were thus capable of leading to a lack of appearance of independence or impartiality on the part of those judges and that body likely to undermine the trust which justice in a democratic society governed by the rule of law must inspire in those individuals” (§ 50).
Indeed, the presence, in the judicial body concerned, of a single judge appointed in such circumstances is sufficient to deprive that body of its status as an independent and impartial tribunal previously established by law (§ 57).
The remarkable consequence drawn from this conclusion by the CJEU is that, having regard to the primacy of EU law, the Court of Appeal should disregard, as being null and void, the decision by the CERPA ordering the Court of Appeal to re-examine the case in which the same Court of Appeal had already handed down a final judgment, regardless of the fact that this decision had the force of res judicata.
Accordingly, there was no need for the CJEU to engage in an assessment of the extraordinary appeal as such, as the decision of the CERPA to uphold it was null and void and could be disregarded. That was already the end of the story for the CJEU.
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Not so in Wałęsa v. Poland. The res judicata at stake here was not, as in AW ‘T’, the one attaching to the decision of the CERPA but the one attaching to the final judgment of the Court of Appeal which was set aside by the CERPA. Thus, the issue before the ECtHR was not only, as for the CJEU, the independence and impartiality of the CERPA, but whether there had been an abuse of the extraordinary appeal by the CERPA, making that appeal an ordinary appeal in disguise.
This difference has everything to do with the different position of the ECtHR and the different timing of its intervention in the judicial process, as pertinently observed by Advocate General Spielmann in paragraph 82 of his Opinion in AW ‘T’:
“The role of the Court of Justice when giving a preliminary ruling is to give national courts ex ante indications on how to apply EU law and not to determine ex post the existence of an infringement in a specific case, as is the case with the European Court of Human Rights. Thus, with regard to the requirements relating to an independent and impartial tribunal previously established by law, the Court has entrusted the national courts, as ordinary courts operating under EU law, with the task of monitoring compliance with those requirements and, where necessary, restoring the effectiveness of judicial protection in the Member States concerned.”
In other words, in AW ‘T’, the preliminary ruling by the CJEU disqualifying the CERPA prevented, at the level of the Cracow Court of Appeal, the extraordinary appeal from having any effect. By contrast, in Wałęsa v. Poland, the extraordinary appeal led to a judgment by the CERPA overturning the final judgment of the Court of Appeal and dismissing the applicant’s claims. The ECtHR was therefore called on to rule on the use and the effects of the extraordinary appeal in this case.
The ECtHR did not prohibit in the abstract any use of extraordinary appeals. Neither did it consider the composition of the CERPA as automatically entailing an abusive use of an extraordinary appeal. Rather, the flawed composition of the CERPA was only one aspect to be taken into account by the ECtHR, next to other criteria such as the public bodies authorised by law to lodge an extraordinary appeal, the grounds for lodging an extraordinary appeal, the time-limits for lodging an extraordinary appeal and the powers and characteristics of the adjudicating body (§§ 228-239).
In light of these criteria, the ECtHR found that the extraordinary appeal procedure as currently operating in Poland was incompatible with the fair trial standards and the principle of legal certainty under Article 6 § 1. This was because the circumstances of the case indicated an abuse of the extraordinary appeal by the State authority in pursuance of its own political opinions and motives. Accordingly, the ECtHR found no circumstances of a substantial and compelling nature that would justify the departure from the principle of res judicata in respect of the overturned judgment (§§ 254-255).
However, in contrast with the CJEU judgment in AW ‘T’, where the overturned final judgment was protected in the end, the judgment in Walesa v. Poland does not (yet) have the effect of restoring the overturned judgment.
It may nonetheless have a wider impact, since in view of the systemic nature of the violations found, the ECtHR decided to apply the pilot-judgment procedure (Rule 61 of the Rules of Court) as well as Article 46 of the Convention. Under the latter provision, the ECtHR indeed gave rather clear indications on the measures to be taken by the Polish government in order to remedy the situation on a larger scale, under the supervision of the Committee of Ministers of the Council of Europe (§§ 328-332).
This approach resulted from the fact that, in the ECtHR’s opinion, the violations found of Article 6 § 1 of the Convention originated in the interrelated systemic problems connected with the malfunctioning of domestic legislation and practice caused by several factors, including (a) a defective procedure for judicial appointments involving the National Council of the Judiciary, (b) the resulting lack of independence on the part of the CERPA, (c) the exclusive competence of the CERPA in matters involving a plea of lack of independence on the part of a judge or a court, (d) the defects of the extraordinary-appeal procedure, and (e) the exclusive competence of the CERPA to deal with extraordinary appeals.
Interrestingly, the deficiencies thus identified to a large extent stem from the Polish laws which, in Commission v. Poland (Indépendance et vie privée des juges) (5.6.2023, C-204/21), the CJEU found in infringement proceedings to be in breach of EU law. One may therefore expect, as in the cases of Ilva and Cordella (see Two Courts, Two Paths: Comparing Europe’s Environmental Jurisprudence), some “synergies” between the European Commission and the Committee of Ministers of the Council of Europe in their efforts to bring the Polish judiciary in line with their common European standards.
Meanwhile, on 17 November 2025, the processing of currently about 1100 applications pending before the ECtHR concerning the “rule-of-law crisis” in Poland has been further adjourned until 23 November 2026, at the request of the Polish government, to give it more time to adopt general measures following the Wałęsa v. Poland pilot judgment (see the press release to that effect).
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When asking what the bottom line of the above considerations is, the following considerations come to mind.
- Both European Courts are determined to fight populist agendas aiming at weakening the rule of law and judicial independence. They agree on the substance of the requirements which these values entail (on this, see also Populism on Trial: The European Courts’ Response to a Common Challenge).
- The AW ‘T’ ex ante approach seems like a quick fix, protecting the res judicata of judgments being challenged through extraordinary appeals. From an applicant’s perspective it represents a preventive and therefore higher protection standard, which is entirely compatible with the Convention (see Art. 53). It may however leave the national judges applying the AW ‘T’ doctrine and disregarding judgments of a higher court in a somewhat delicate, unprotected position in the Polish judiciary.
- By contrast, the Strasbourg ex post approach is slower but more comprehensive, thus benefiting a greater number of victims of the abuse of the extraordinary appeal. Indeed, 1100 applications concerning this systemic problem are currently pending before the ECtHR. However, this approach is also requiring a higher level of cooperation by the domestic authorities.
- Both approaches in the end reinforce each other and are therefore to be welcomed.