The ever-growing fruits of a poisoned tree: from the transfer of Waldemar Żurek to a null and void divorce in Giżycko

On 12 January 2026, Sąd Rejonowy w Giżycku (District Court in Giżycko, Poland) issued a decision in which it refused to divide the joint (matrimonial) property of a couple divorced about two years before that. The reason was that the previous divorce decree, which had in the meantime become a final judgment, was issued by an irregularly composed chamber of the Regional Court in Olsztyn. The chamber included a judge who was previously appointed upon the nomination of the ‘renewed’ National Council of the Judiciary (Krajowa Rada Sądownictwa, referred to hence as the Judicial Council). The Court previously confirmedFootnote ⁵ that, post-2018, the Judicial Council in its new composition could no longer guarantee the independence of that body from the legislature and the executive. The District Court in Giżycko thus came ex officio to the conclusion that the decision of a Polish court that included an incorrectly appointed judge in its formation is null and void (sententia non existens). Therefore, the couple was still legally married and their matrimonial property could not be divided.Footnote ⁶

The decision was widely reported in the Polish media.Footnote ⁷ According to one Polish legal news site, the legal conclusion embraced by the District Court in Giżycko is not widely shared amongst Polish civil courts. But, according to the same source, it is not the first time this has happened either. Other Polish civil courts, such as for example some judicial formations of the District and Regional Court in Olsztyn, have reached the same conclusion in other cases. Out of precaution, family law lawyers started advising their clients to resolve the division of matrimonial assets before the divorce decree, since the latter could be later called into question.Footnote ⁸

In reaching that conclusion, the District Court in Giżycko primarily relied on provisions of Polish law. However, the case law of the Court as well as the European Court of Human Rights were equally referred to. That begs the question: could a civil court in Poland validly reach the legal position just outlined, and the rather extreme consequences for the individual litigants, under EU law?

Perhaps not directly. However, the solution embraced by the District Court in Giżycko is much closer to the case law of the Court than one might think, in particular as regards the sanction against a decision of an improperly composed national court, as well as the uncompromising stance towards the individual rights and legitimate expectations potentially concerned.

The ‘licence to disregard’ one’s own superior courts and their binding instructions issued in a given case that are incompatible with EU law – bestowed by the Court’s case law as a matter of primacy of EU law – is nothing new.Footnote ⁹ Even if it has indeed caused occasional intellectual unease in functional national legal orders,Footnote ¹⁰ that old line of case law has been imbued with new life in the rule of law crisis. It has become the tool of protecting ‘judicial dissidents’Footnote ¹¹ within the member states and keeping, realistically speaking for at least some time, the national judicial discourse alive in cases of backsliding or takeovers. However, in the context of the protracted Polish rule of law crisis that old case law gradually morphed into something else, both in terms of its scope and reach, but equally as far as the modalities of its application are concerned.

It started with the transfer of Waldemar Żurek in 2018 from one division of a court to another. Back then he was a judge at a regional (appellate) court; at present, he is the Polish Minister of Justice. Mr Żurek sought to challenge the transfer decision, which seemed very much like punishment for standing up to the government of the day. Jurisdiction for the review of such a transfer decision apparently fell to the then freshly established Chamber of Extraordinary Control and Public Affairs (Izba Kontroli Nadzwyczajnej i Spraw Publicznych) of the Polish Supreme Court. That Chamber was a constitutional aberration created by the then PiS government, to achieve what its name already implied: ‘Extraordinary Control’ of (not just) the Polish judiciary.

When his case came before the Supreme Court, Mr Żurek asked for the recusal of all the judges of the Chamber of Extraordinary Control from his case, because they had all been appointed following an incorrect procedure, thus not offering the required guarantees of independence and impartiality. Under Polish law, the motion for recusal of judges of the Supreme Court was to be decided as a preliminary matter before any decision on the merits of the case could be taken and, rather importantly, fell under the competence of the judges of the civil chamber of the Supreme Court.

The next ‘move’ of the member(s) of the Chamber of Extraordinary Control was, by all accounts, extraordinary indeed: a single judge of that chamber, without waiting for the decision on his recusal, without possessing the judicial file for the case (which was with the judges of the Civil Chamber pending their decision on recusal), and without allowing for any submission from the parties, made an order dismissing the appeal as inadmissible.Footnote ¹²

That singular context of the case had to be outlined in detail in order to understand the (equally strong) conclusions reached by the Court in W.Ż. At the outset the Court recalled the Luxembourg and Strasbourg case law stating that not every irregularity in the appointment of a judge automatically taints the ensuing judicial decision,Footnote ¹³ and that the assessment of individual cases is a matter for the national court. The Court nevertheless went on and provided specific indications for the referring court as to the application of those principles to the concrete case. In the context of the onerous and combined violations that occurred in W.Ż., the Court came to a twofold conclusion. First, the civil chamber of the Supreme Court that submitted the request for the preliminary ruling ‘must, in accordance with the principle of the primacy of EU law, declare the order at issue to be null and void’ and, second, that ‘no consideration relating to the principle of legal certainty or the alleged finality of a decision can, in the present case, be successfully relied on in order to prevent a court such as the Sąd Najwyższy (Izba Cywilna)) (Supreme Court (Civil Chamber)), sitting as a panel of three judges, from declaring such an order to be null and void’.Footnote ¹⁴

It was the constellation of three extraordinary factors that led the Court to that conclusion. First, the case directly concerned the judges in the politically exposed ‘Extraordinary Chamber’ of the Polish Supreme Court, the very appointments of whom were being contested. Second, a putative decision was issued by those judges hastily and in violation of their own competence under national law.Footnote ¹⁵ Third, the procedure was full of further onerous procedural violations, all of them with the clear purpose of ‘getting rid of the case’.

So much for W.Ż., which got close to the traditional understanding of nullity, i.e. a putative decision taken by somebody who does not have the competence to do so at all. Subsequent case law, if devised using ‘cluster citation’, has the unfortunate tendency of stripping nuance and extending specific findings beyond their intended scope. In AW ‘T’,Footnote ¹⁶ the fourth chamber of the Court repeated the findings of the Grand Chamber in W.Ż., but enlarged their reach. That happened perhaps not as a matter of intent, but as one of context: two out of the three case-specific circumstantial elements just outlined in the previous paragraph were missing in AW ‘T’. All that remained was the legal status of a decision rendered by a panel of irregularly appointed judge(s), namely those at ‘Extraordinary Chamber’ of the Polish Supreme Court, deciding at the level of a court of last instance.

However, in AW ‘T’, the Court repeated that:

The judgment in AW ‘T’ is remarkably open-ended. Contextually, the judgment presumably aimed at the domestic status of the decisions of the Polish Constitutional Tribunal and the Chamber of Extraordinary Control and Public Affairs of Polish Supreme Court. However, its wording is in fact much broader.

First, the judgment refers to any ‘judicial body of last instance’, not just to the two abovementioned ‘judicial bodies’. That former notion, by reference to standard case law of the Court interpreting the same wording contained in Article 267 TFEU,Footnote ¹⁸ is a functional definition of courts of last instance, encompassing all the courts against whose decisions there is no ordinary remedy under national law in each individual case. Thus, an appellate or even a first instance court can become ‘courts of last instance’ if there is no further remedy in the given case against their decisions.

Second, the wording of the judgment does not in fact require an explicit declaration from either the Luxembourg or the Strasbourg court that the specific judicial body or the judge is not impartial and independent. It is not stated that the lack of independence of the given judge has been found ‘in’ or ‘by’ a judgment of the Court. It is merely required that there is ‘a situation where it is found, on the basis of a decision of the Court of Justice, that a judicial body of last instance does not satisfy the requirements …’.Footnote ¹⁹ ‘On the basis of a decision of the Court’Footnote ²⁰ includes situations where a national court, applying the criteria set out in a previous decision of the Court, itself reaches the conclusion that another national judge or judicial body, not previously and specifically addressed by the Court itself, lacks independence and impartiality. Indeed, that is nothing surprising in systemic terms. That is the way the preliminary ruling procedure is supposed to operate.

Third, in reaching that conclusion, the national court shall apply the criteria established in the case law of the Court. But what exact criteria are to be applied if the test itself is contextual, directing the national court each time to examine the concrete, specific circumstances of each case, whatever those might be, in order to establish, whether in the minds of individuals, there could be reasonable doubts as to the impartiality or independence of the judge(s) in question? The actual threshold for entertaining doubts in this regard is rather low. Incidentally, in both cases, W.Ż. as well as AW ‘T’, the Court ends up running the test in concrete cases itself.Footnote ²¹

Fourth, if a national court reaches the conclusion that, under the doctrine of appearances, there could be reasonable doubt in the minds of individuals about the impartiality and independence of the judges in question, then on the basis of the case law of the Court, there appears to be only one possible ‘sanction’ against the decision in question: the declaration of nullity of the decision rendered by such a judge, as a matter of primacy of EU law. No further questions asked and, as clearly stated by the Court itself in the excerpts above,Footnote ²² no balancing in those particular cases allowed.Footnote ²³

On the basis of such state of the case law, would it far-fetched for the District Court in Giżycko to embrace the same logic with regard to incorrectly appointed judges who are deciding matrimonial cases in another civil court? Only two further argumentative steps would be needed.

First, if the automatic sanction of nullity of a decision rendered by a last instance court can be triggered because its judges have been appointed in an incorrect procedure, and the national court comes to the conclusion that that in itself triggers absence of impartiality under the doctrine of appearances, then the same must be true for all judges appointed in the same procedure, but then just assigned to the post in a lower court. Indeed, without there being any further relevant distinctions, they are all the ‘fruits’ of the same poisoned tree.

Second, the scenarios under EU law discussed so far concerned situations when appellate courts were revolting against their decisions being annulled by last instance courts within the same proceedings. The decision of the District Court in Giżycko extends the same logic to subsequent procedures before other civil courts of the same level, which takes as its basis a decision issued by an incorrectly composed court. But similarly to the previous point: how exactly is that situation to be distinguished from incorrect instructions from a superior court in an ongoing dispute? Because in the case in Giżycko, the previous divorce decision was final? But as repetitively underlined by the cited case law of the Court, finality of ‘tainted’ judgments is no defence against drawing full consequences from the primacy of EU law.

In the newest episode of the Polish judicial saga, issued after the decision of the District Court in Giżycko, the Grand Chamber of the Court indirectly confirmed that lower judges could also be ‘tainted’ in a similar way to the last instance courts, but added a further procedural twist. Case MJ, decided on 24 March 2026,Footnote ²⁴ concerned the situation of the recusalFootnote ²⁵ of a first instance civil judge, who herself was appointed in 2019 following the proposal of the Judicial Council in its new composition. For that reason, the two ‘original sins’ relating to flawed appointments in Poland – i.e. the new Judicial Council not being independent of the political power, and there being no independent appeals against the nomination resolutions of the Judicial Council – were equally applicable to her appointment. However, apart from being ‘a fruit’ of the same ‘poisoned tree’ in terms of her appointment, there was apparently nothing else in the file before the Court indicating any direct political engagement that would cast doubts on her impartiality.

In MJ, the Court clearly wished to put the brakes on its own previous case law. It is, however, not entirely clear exactly how. On the one hand and rather importantly, the Court stated that the fact that a (lower court) judge was appointed in the same flawed procedures is not enough to draw the automatic conclusion as to her lack of impartiality and independence. Instead, a contextual assessment of each individual case is called for. Following such an examination of the concrete case, the Court came to the conclusion that the original sin in the case of the judge under consideration was not enough to call into question her independence and impartiality.Footnote ²⁶

On the other hand, following that clarification, a reader of the case law might become somewhat puzzled.Footnote ²⁷ What was enough in AW ‘T’ to entail the automatic sanction of nullity of a judicial decision rendered by a last instance irregular court, with no need for any contextual examination of each case, is not enough for a mere recusal of a first instance judge in MJ, where individual examination is always needed? Is there in fact a silent assumption that if a PiS judicial appointee accepted the ‘ticket’ to a court of last instance, s/he must be ‘irreparably damaged judicial goods’, thus no individual examination is even necessary, whereas appointments to lower courts under PiS were apolitical ‘business as usual’? Is there now supposed to be a bifurcated regime for the examination of independence of national courts, with Polish last instance courts on the one hand, where no individual assessment takes place and every judge appointed is a villain,Footnote ²⁸ and lower instance courts on the other, where those judges might still be ‘saved’? Or even more fundamentally, was MJ supposed to overrule AW ‘T’, with just W.Ż. being potentially distinguished on its extreme facts?

In sum, following W.Ż., it could have been discussed whether the Court wished to lay down a new type of ‘remedy’,Footnote ²⁹ or rather a systemic sanction against a decision of an improperly composed national court, and how exactly that was supposed to go beyond the extant consequence of setting aside any national measure incompatible with EU law. However, from the subsequent case law of the Court, it appears indeed that just an individual inter partes setting aside of one particular decision of the superior court in ongoing proceedings is not enough. Instead, what are required as a matter of the same principle of primacyFootnote ³⁰ are declarations of nullity of final judgments, issued by improperly composed national courts. And they are to be raised ex officio by any national court that touches upon a decision tainted by such an irregularity. Such declarations ought to have effects, since they concern nullity, presumably erga omnes.

Whose rights?

There is another element of the above outlined series of case law following W.Ż., which is troubling: there is no mention of the fate, the rights, and the legitimate expectations of individual litigants concerned by those cases. They are apparently not worthy of judicial consideration.

Even though in MJ the Court eventually called for individualised review, that individualisation concerns the examination of the ‘professional reputation’ of the irregularly appointed judges in question – not the individual rights of litigants concerned by their decisions. Thus, what was of importance to the Court in MJ was that, apart from being put through the incorrect procedure for her own appointment, the candidate herself appeared to be a decent person. Before her appointment, she served as judicial clerk at the Regional Court in Poznan to overall satisfaction. She received a favourable opinion of the court where she previously served. No other candidate challenged her appointment.Footnote ³¹

What remains striking is the absence of any consideration for the parties and litigants before such irregular judges. Did they know of the irregularity in the appointment procedure? Did they, in any way, wish to profit from it? Or were they simply innocent bystanders, who went through a ‘Polish judicial lottery’ and landed in front of a wrongly appointed judge, who they obviously did not choose? Could they in any way influence whether or not they would become parties to the proceedings? Apart from a potential irregularity in the appointment procedure of a given judge years before, was there any impropriety in the procedure that led to the decision itself? Any indication of illegality or politicisation in the actual proceedings that led to the, now final, judgment?

It is rather clear from the extracts quoted in the previous section of this contribution that the absence of consideration for individual litigants in the Polish rule of law-equation is no omission. The Court repetitively underlined that ‘no consideration based on the principle of legal certainty or linked to the alleged finality of the judgment can … be relied on in order to prevent a [national court] from declaring such a decision to be null and void’.Footnote ³² However, while such a sweeping approach can be understood in the context of a decision issued in the review of the transfer of a judge, where the parties concerned will remain just that judge and the member state, and the entire process is in fact abusive targeting of national judicial opponents, such as in W.Ż., the same absolutism becomes indefensible once – at first sight innocent third parties – individual litigants enter the scene.

This unfortunate result is perhaps due to three factors. First, it is the already mentioned mechanical extension of the same dictum to other cases without due consideration given to different factual circumstances. Second, equally striking is the disregard for the passage of time. A solution embraced in October 2021 (for facts from 2018-2019) in the extreme circumstances of W.Ż. and within the ‘hot phase’ of national judicial battles still ongoing, is simply repeated as a generalised one in September 2025 (for facts from 2021) in AW ‘T’, apparently without further reflection relating to considerably changed circumstances ‘on the ground’.

Third, much has been written about the advent of Article 19(1) TEU, as well Article 2 TEU and the direct justiciability of EU values.Footnote ³³ However, the rise of Article 19(1) TEU as the provision for adjudicating cases on judicial independence in the member states also brought about the departure from the traditionally understood condition of a case being within the scope of EU law. That, amongst other things, normally meant that there were individuals seeking to vindicate EU law-based rights before the national court. Article 19(1) TEU has been liberating in terms of such traditionally conceived competence of the Court. With that came, nonetheless, a shift in focus, moving away from individual litigants, their rights and interests before the national judge, to more structural issues. That in turn allowed for a previously unseen degree of judicial infighting, with ‘the guardians’ turning themselves into the ‘right-holders’, and judges beginning to (directlyFootnote ³⁴) contest other judges. Indeed, in the traditionally conceived scope of EU law, could there suddenly be an EU law-based subjective right of a national judge to be appointed or remain a judge, or any and all organisational matters of the national judiciary, as a matter of EU law?Footnote ³⁵

This is not to suggest that the opening of Article 19(1) TEU was not structurally necessary. It is rather to explain how the ‘rule of law adjudication’ shifted its focus from the individual to the structural, and how individual rights of actual litigants became somewhat sidetracked in that process. Within such detached procedures, making sweeping claims for ‘flawless legality’ and ‘procedural purity’, typically at a relatively high level of abstraction, comes easy, unchecked by the visible fates of actual litigants and their rights that come to the fore only later.

The same disconnect also helps to explain why, at present, even if the Court keeps repeating that the null and void declarations are to be carried out in the name of individual rights and effective protection of them at the national level, the actual solution adopted, in particular the one in AW ‘T’, gives the impression that individuals are used in a very utilitarian way. Individual right of access to an independent and impartial tribunal and the corresponding doctrine of appearances are there to justify why individual rights are best protected by ex officio declarations of nullity of their own final judgments, no questions asked about the actual interests and wishes of the parties concerned. But the first duty of any judicial system, even a defective one plagued with irregularities, is arguably still to serve the individuals, to settle social conflicts and protect individual rights, not to itself become the source of legal chaos and a vehicle for individual score-settling amongst the judges.

By way of historical contrast and diachronic comparison: a couple of decades earlier, countries within the same region were emerging from Communist rule. The transition back to democracy after 1989 was based on discontinuity of values with the previous regime, but in terms of law and individual decisions, on actual legal continuity in the realm of positive law and individual administrative/judicial decisions (but for which individual justified exceptions were foreseen).

Certainly, the choice of specific solutions and approaches to how to deal with the past differed across the region.Footnote ³⁶ But even in the areas most exposed to judicial abuses by the previous Communist regime, such as past criminal convictions, it was for the individual to take action if she wished a previous decision revised. The system of judicial ‘rehabilitations’ chosen in the Czech Republic, for example, was based on an individual petition to revisit a previous conviction. It led to the re-examination of the circumstances of each individual case before a ‘tainted judgment’ could potentially be set aside. Even if it was clear that all previous criminal convictions, but in fact all judicial decisions issued by the Communist judiciary were rendered by persons who could hardly be seen as ‘independent and impartial’, due to the way they were selected and appointed,Footnote ³⁷ nobody proposed that the ‘retransition’ to a liberal democracy should start by declaring all judgments rendered by such persons (or just those issued by the Supreme Court) null and void.

In areas where older decisions had to be revisited, such as setting aside political criminal convictions, or restitution of property previously confiscated by the Communist regime, the stress was put on (re)weighting of the circumstances of each individual case. The protection of individual rights was to be weighted against the mere systemic interest in ‘erasure’ of past decisions adopted by ‘tainted’ servants of the previous regime. As, for instance, aptly summarised in one of the (many) Czech property restitution cases before the European Court of Human Rights:

In sum, the buzzwords became ‘fair balance’ and due weighting of individual rights and legitimate expectations in processes individually launched by the applicant concerned. Past wrongs were not to be ‘remedied’ by creating new ones. Incidentally, the European requirements for finding fair balance and protection of individual rights were not articulated only with regard to rehabilitation or property restitution cases, but were to be considered equally in other regimes of ‘dealing with the past’, which did not include setting aside past judicial decisions, such as lustration laws.Footnote ³⁹

Some uneasy truths: just a small irregularity in need of a quick fix?

A long discussion could unfold on how far the comparison made in the previous section is even possible. Can one draw any useful parallels from ‘Transition 1.0’, i.e. the one happening in Central and Eastern Europe after 1989,Footnote ⁴⁰ and ‘Transition 2.0’, i.e. the one potentially launched following the fall of populist kleptocracies in some of the countries within the same region, such as Poland, Hungary, or Slovakia?

Whatever hybrid regimeFootnote ⁴¹ has been or is in place in such states, it can hardly be compared with a totalitarian state. Therefore, any comparison between the two transitions can be just geographical (both happening within the same region and one not so long after another), but not really functional. The social, political, and indeed historical contexts of the (re)transitions to rule of law governed liberal democracy in the two cases were so significantly different that it is not really possible to draw analogies. But if that were to be the case, then the incomparability thesis provides for an even stronger argument. If, in the case of much more deeper reaching retransitions based on genuine value discontinuity with the previous regime after 1989, the consequence of automatic nullity of official/judicial decisions were not embraced, such a solution would then be a fortiori outlandish in cases of retransitions remaining within the same, even if deficient, democratic and constitutional framework, because it happened after a lost election.

In addition, it might be equally added that it is unfair to compare a fully fledged, legislatively designed transition after 1989, where the national constitution-maker and then legislator did have the luxury of duly weighting and deliberating all the consequences, with a full range of options before them to choose from, with – by their very nature – circumscribed, ad hoc pronouncements the Court may issue under Article 267 TFEU.Footnote ⁴²

With all those allowances made, the unpleasant truth is that in view of the changed circumstances some ten years later in the case of Poland, and sixteen with regard to Hungary, the overall approach must change from an ‘ongoing primacy battle’ where individual rights become collateral damage to the greater good of primacy of EU law, to, essentially, measures of sensible and rather small-scale transitional justice-policing, since it is happening within the same constitutional system and with full legal continuity. Certainly, such vision cannot be limited to turning back the clock and returning to the previous system. Instead, it ought to include adaptation, transformation and innovative solutions, increasing the overall resilience of the future system. Above all, however, any retransition will have to take the present system as its starting point.

There are facts that cannot be wished away. As the Court itself recently acknowledged, more than 3,000 judges – about 30% of the judges in Poland – have been appointed in the past decade on a proposal of the post-2018 Judicial Council in its new composition.Footnote ⁴³ Assuming that a Polish judge decides (as a single judge or participating in a larger judicial formation) about 10 cases a month on average, there might be hundreds of thousands of such ‘tainted’ decisions issued annually. The total number of decisions that could be potentially declared null and void following the broad logic of AW ‘T’ could at present lie in the realm of higher hundreds of thousands, or even one million, cases.Footnote ⁴⁴

It can certainly be counterargued that if such a ‘retreat’ were accepted, the ‘bad guys’ would effectively have won. The way they have altered the Polish judicial system would have durable effects and could no longer be remedied. Unfortunately, and even if harbouring zero sympathy for the previous regime and its systemic ‘endeavours’, one has to acknowledge the sad truth. With every passing day and every new decision under the new rules adopted, the originally abnormal becomes the new normal, impossible to change with a quick sweep. It becomes untenable to suggest that 10 years of ‘operation’ of such a captured system is just one simple constitutional aberration that can be erased with the stroke of a brush.

But it is nothing new either. Nobody ever claimed that transitional justice was an easy discipline. It includes decisions and trade-offs that are likely to be unsatisfactory for everybody involved.Footnote ⁴⁵ The ‘harmed’ will be unhappy. They sought full retribution that did not materialise. The ‘bad guys’ will be unhappy because there will be at least some consequences, and they will be side-lined in the future. The story might become even more twisted: the ‘bad guys’ can be strategic about the individual rights of people, holding their rights and their fates hostage. They might have even previously adopted certain measures knowing full well that those are illegal, but counting on the fact that whoever comes next will be too afraid to annul those decisions. The cost of the ensuing legal chaos would be impossible to bear politically and socially.

Sad as that might be in moral terms, the weight of the facts of the matter naturally limits the range of sensible options in transitional justice. Thus, even if clearly seeing and acknowledging all the uneasy truths just outlined, as well as personal harms done to concrete persons still within the system by the previous regime, the primary duty of a system of administration of justice is again to its ‘users’, i.e. to individual litigants and their rights,Footnote ⁴⁶ not to the aim of retribution and personal judicial vindication and score-settling. Putting individual (acquired, legitimate) rights and their protection at the centre of legal (re)transition might be considered a (short-term) weakness. But venerating abstract legality and procedural purity ultimately leading into ‘fiat iustitia, pereat mundus’Footnote ⁴⁷ is hardly a good recipe for the future, in particular for a durable constitutional settlement that might outlive the next election.

Therefore, as far as dealing with the legal consequences of improperly composed courts in a member state is concerned, the logic of an uncompromising primacy battle must be quickly complemented with the protection of individual rights of actual individual litigants. That means that the ‘ex officio null and void’ sanction ought to be replaced, if need be, by the possibility of revisiting individual decisions rendered by improperly composed courts, indeed potentially outside the statute of limitations, but following the petition of one of the parties in that case, clearly substantiating how precisely the ‘original sin’ of improper appointment of the judge in question translated into the decision in that actual case.Footnote ⁴⁸

How exactly this happens in terms of reasoning is secondary. It might be, as in the past with other considerations worthy of protection, that the tenets of transitional justice might be elevated to ‘general principles of EU law’. Alternatively, the acquired rights and legitimate expectations of individuals concerned might be ‘re-discovered’ as naturally limiting the reach of primacy of EU law in the individual cases, as the EU’s own internal values. In both cases, the ensuing balancing becomes an internal EU law one,Footnote ⁴⁹ thus allowing for a face-saving exit for everybody. In view of the changed realities at the national level, such a change in tack must happen rather quickly, since legal chaos at the national level is unlikely to win many hearts and minds, eventually undermining the very legitimising foundation of the EU’s intervention into rule of law-backsliding in the member states.

Conclusion: the Union’s legitimacy and the (re)transition of a member state

The last decade has demonstrated what role the Union and in particular the Court, alongside other international bodies like the European Court of Human Rights and the Venice Commission, can play in keeping a member state ‘within the orbit’ of the rule of law.

The sad development of some of its member states sliding into varieties of autocratic populism provided the Union with a new real-life legitimising source. The ‘democratic deficit’ of the Union, long considered a major weakness and the object of endless critical treaties,Footnote ⁵⁰ suddenly turned into a strength. A supranational community that is not, certainly not immediately, responsive to the popular will of its citizens is no longer the structure found wanting, endlessly ‘democratising’ itself to no avail for winning further popular support and correlating legitimacy. Instead, it starts being presented as the effective construct for safeguarding the liberal, democratic, and rule of law governed statehood in its constituent units, the member states.Footnote ⁵¹

In this way, the focus and the search for the legitimacy source for the Union itself moves, yet again, from the level of the Union to the level of its constituent parts, the member states. The Union shall be judged not on how far it itself lives up to the idea of liberal, democratic, rule of law governed statehood, but how far it is able to safeguard that ideal within its constituent units. Leaving aside the glaring paradox of Brechtian proportions of ‘we who fight for democracy cannot ourselves be democrats’,Footnote ⁵² the problem of output or regulatory legitimacy is that it does not, in contrast to its input varieties,Footnote ⁵³ tolerate failures. Or rather: failures in individual delivery immediately pose legitimacy problems for the entire structure,Footnote ⁵⁴ since the legitimacy source is not the process through which a certain outcome was reached, but the quality of that outcome.

By robustly entering into the rule of law battles and no doubt equally having (or rather already having) a say in a (re)transition in a member state, the Court and the Union will (co-)own the results. The key legitimacy issue for the next stage, for ‘Transition 2.0’ will boil down to a simple question: ‘Will all the limitations and the lists of measures a rule of law governed state cannot do be equally applicable to the “good guys”’?Footnote ⁵⁵

Over the years, the ‘rule-of-law case law’ of the Court established numerous substantive ‘red lines’ as to what is or is not permissible in a rule of law governed state.Footnote ⁵⁶ In contrast to the judicial pronouncements delivered in Strasbourg, which concern a concrete case and the (non)violation of the Convention rights in that specific case, the judicial pronouncements delivered in Luxembourg on preliminary rulings tend to be much more general. Stated at a higher level of abstraction, the common denominator for a number of those red lines set out would be that sudden, abrupt changes to the judicial or legal systems are impermissible. Mandates must run to an end; the political power cannot interfere with ongoing judicial business.

But wishing to undo certain steps of the previous regime is likely to mean breaking or at least cracking some (or even the same) eggs. Some people will need to be fired, some mandates might need to be shortened, some decisions in some areas revisited. In terms of justifying such measures, it will certainly matter whether some sort of ‘original sin’ can be identified. Were those measures legal back in their time? Revisiting ‘tainted’ decisions or appointments might be easier than undoing those that were (certainly formally) lawfully made, since mandates or terms of office run naturally to their ends.Footnote ⁵⁷

Providing one concrete example in this regard: lowering/introducing an age limit for judges, even the one pursuing legitimate social policy objectives, is inacceptable if introduced for a person who had the well-founded expectation that they would remain in office under the conditions applicable to them when appointed. National legislation that abruptly lowers the age limit for such persons, without providing for transitional measures protecting the legitimate expectations of those persons, violates EU law.Footnote ⁵⁸ Does that case law and those seemingly general statements equally preclude the (re)introduction of the 70-years age limit for constitutional judges in Hungary in order to ‘restore’ true independence of that court?Footnote ⁵⁹ Or does it mean that, because it was carried out in the process of the ‘good restoration’, all limits are off?

Extreme reactions at the European level might be theoretically imagined in this regard. On the one hand, full applicability of all the prohibitions previously announced as ‘generally applicable’ could amount to the effective impossibility of any (sudden) reforms. On the other hand, a full ‘switching off the lights’ for the process of transition, with no rules or limitations being applicable in that process, and then restarting once all has been done, is also difficult to contemplate.

The reality is likely to lie somewhere in the middle, with European oversight of the process of (re)transition becoming perhaps a sort of ‘control light’. A greater leeway for the adoption of more intrusive measures is conceivable, in particular if those measures are directly and proportionately tied to the correction of a previous illegality under the rules in place already at the time when the decision was adopted or appointment made. In such instances, it can be plausibly maintained that the ‘transformers’ are not breaking new eggs, just repairing those that are already broken.

However, when carrying out any such restorations, three golden rules inferred from the previous transitions should be kept in mind. First, the primary aim must remain the protection of ‘innocent bystanders’, their rights and legitimate expectations, as this contribution has sought to demonstrate on the basis of one specific illustration. Second, sanctions, exclusions and similar measures imposed ought to be based on individualised assessment of the persons in question. Overly broad measures implying or even outright assuming group guilt are unlikely to survive external scrutiny, unless of course they are based on very solid evidence. Third, at the structural level and in the longer term, proportionate and thus necessary milder solutions might be advisable rather than immediate and full retribution, with the system seeking to adapt and to move forward from its present predicament instead of just going back in time.Footnote ⁶⁰

The role and the added value of European oversight in such situations ought to lie in distance, both emotional as well as geographical. Somebody else, not directly and personally concerned by the injustices of the previous regime, can reflect on the tools and means chosen. That will, however, again mean that the legitimacy of the Union and the Court will be measured on the quality of the results reached.

There is one more onerous, structural question. Why should the Union act as a ‘hesitant and gentle brake’, not the ‘avid facilitator’ of retransition back to the rule of law in the member state? It could certainly be suggested that if a ‘wayward child’ has finally found its way back ‘to the flock’ of countries adhering to EU values, the EU itself must act as an accelerator of that process. All limits are off and, as happens occasionally in the Union, noble ends justify whatever means.

That naturally goes to the very heart of the question: is a supranational entity supposed to be more of an impartial guardian, policing the rules of the game at the national level, or a direct actor playing only on one team? In the past, the frequently invoked justification for the Court’s pronouncements on the quality of national judiciaries was the rule of law and the imperative of impartiality and independence of the courts from the national political powers. But are courts that wholeheartedly embrace just one vision of policy and politics and, after their national victory speedily launch whatever wave of new ‘transformative adjudication’ that the political power (of course, this time the ‘right one’) asks of them,Footnote ⁶¹ genuinely impartial?

That directly translates into the Union’s long term legitimacy: is the European Union that fosters ‘asymmetric rule of law’, with heavy limitations applicable to some, while none are applied to others, a genuine ‘rule of law community’? What lies at the roots of the notion of the rule of law is the supremacy of regular laws applicable in equal ways to everybody without distinctions or derogations: legality, equality, and judicial review.Footnote ⁶² At present, a number of other ideas and values tend to be inserted into the notion of the ‘rule of law’. Nonetheless, is a malleable, almost dialectic rule of law, constantly being substantively reinterpreted in order to suit the instant goals and values of its interpreter, still rule of law worthy of the name? Moreover, values translated into directly justiciable standards outside of a democratic process and participation have the unfortunate consequence of being exclusionary. Actors, powers and visions that do not feel accommodated within a given structure, with certain choices becoming supra-constitutionalised at a supranational level and therefore impossible to change, might have the tendency to head for the exit.

Contrary to what might be suggested in reaction to these statements, this contribution is very, very far from moral relativism. It merely demonstrated, on the basis of a concrete example, why sweeping, binary choices made within a complex area of law, where there are too many personal wrongs still in living memory, making any discussion about the subject a thorny one, are perhaps not the best way forward. Extreme approaches are bound to cause extreme reactions, not beneficial to the legitimacy of the Union in the longer run.

Closing in this regard with the example that opened this contribution: it might not be easy to explain to that Polish couple in Giżycko that, while having had the unquestionable privilege of personally contributing to safeguarding the primacy of EU law at the national level, for the (for them assumingly rather abstract) reason of the change of the composition of the National Judicial Council back in 2018, their divorce is now null and void, which is likely to mean that some of the ensuing decisions in their personal sphere that depended on that divorce are potentially null and void as well, and that if they were (un)lucky enough to have married a new partner in the meantime, they are now bigamists.