Polish non-appointments to the Court of Justice

For years, Poland has refused to appoint judges to the Court of Justice of the European Union (CJEU), leaving the 27th seat of the European Court of Justice (the Court) empty since January 2024. While this has gone largely under the radar, it marks a clear effort from Poland's Law and Justice party (PiS) to undermine the CJEU, and is a somewhat unprecedented affair in the history of the Court.¹

Though dramatic, Poland's obstructionist agenda appears to have been cut short by a stubborn past appointee refusing to give up his position to power play at the hands of PiS, as well as the 2023 Polish election where PiS finally lost power.

In this post I explore first what Poland's policy of non-appointment has meant for it judges at the CJEU, followed by a discussion of what this means — and what it could have meant — for the CJEU itself. I argue that while the Poland's reluctance to appoint judges has gone widely unnoticed, PiS was setting the stage for what could possibly have been an unprecedented instance of backlash against the Court, cut short by PiS' election loss in 2023 and the Polish judges' reluctance to leave their positions.

The extended term of Marek Safjan

The last appointed Polish judge to the Court of Justice, Marek Safjan, started his career at the Court in 2009. In 2015, the same year PiS started their eight-year rule, he was reappointed for a six-year mandate ending in October 2021.

In spite of this mandate never being renewed or extended, Safjan ended up serving at the Court until January 2024; he thus served as a judge at the Court for more than two full years with no official mandate in the form of an active appointing decision by the member state governments.²

This is made possible through a simple technicality found in the Statute of the Court: While judges are appointed for limited terms, their "duties" only end when they are replaced by their national successor.³ As Safjan was never replaced, his term never formally ended before he voluntarily stepped down.

Safjan therefore represented Poland at the Court of Justice until he retired in January this year. Despite the change of government, a successor has yet to be successfully appointed, leaving Poland currently without a judge at the highest court of the EU.

This is not to say that the CJEU is left entirely without Polish representation. Poland remains represented by the Polish Advocate General, Maciej Szpunar, who was appointed as late as in 2018 and whose term was only supposed to end this October. With the recent expiration of his mandate, he has just recently started working "overtime" without an active appointing decision. The lack of re-appointment does not seem to hinder Szpunar's career at the Court, where he is currently the First Advocate General.

The situation is similar in the first instance General Court, where the final two Polish appointments were made in March 2016. One is Krystyna Kowalik-Bańczyk, who was appointed with a term set to end in 2022. The other is Nina Półtorak, who was only appointed for a five-month term, scheduled to end in August 2016.

With no successor appointed, both are still active at the General Court. Again, the lack of government support does not appear to be a hindrance, and Kowalik-Bańczyk was made President of the Seventh Chamber in September 2022 ­— the month after the expiration of her original mandate!

Półtorak, on her side, is beating records for the longest time spent at the bench without an active appointing decision, at eight years and counting.

A futile attempt at resistance, or a dodged bullet?

The lack of Polish appointments appears to come out of self-censorship, rather than a procedural challenge for Poland to get judges appointed. The suitability of judge nominees to the CJEU are assessed by the so-called 255 panel, ensuring a working knowledge of the French language as well as EU law.⁴

Poland has not had its nominations blocked by this panel; the PiS government has merely been uninterested in nominating any candidate who could stand a chance of being considered fit. Instead of trying their luck with a government-backed candidate, they simply refused to make any nominations at all.

This should by all likelihood be seen as an attempt to undermine the credibility of the Court, which derives its legitimacy in part from consisting of judges appointed by the member states. It is tempting to compare Poland's efforts to the Trump administration's blocking of appointments to the WTO Appellate Body, which rendered the Appellate Body entirely incapable of fulfilling its mandate.

In contrast to the disastrous impact of non-appointments on the WTO Appellate Body, Poland's resistance against the CJEU appears completely unsuccessful. The refusal of a single member state to appoint judges to the European court appears to have constituted no significant threat to the European judicial order, and even after the Polish seat was left empty in January 2024 the Court seems to suffer few practical consequences; the whole incident has, instead, passed by largely unnoticed. Poland's strategy at first glance appears only self-defeating, as it has weakened its potential influence while providing no effective push-back against the Court itself.

One must, however, wonder what would have happened had PiS remained in power after last year's election. We would, with little doubt, have seen cases arise before the CJEU questioning Poland's judicial independence.⁵ Had this come to pass, there is little doubt that the Polish government would have attempted to undermine the legitimacy of the Court by pointing to the lack of Polish representation at the bench.

While the Polish policy of non-appointment has so far passed by without much of a fuzz, it is therefore very likely that the 2023 Polish elections spared the Court of a coordinated attack on its legitimacy that has been years in the making.

The Polish non-appointment policy, although seemingly unsuccessful, should be interpreted as an act of backlash against the CJEU. For years, the Polish government made an active effort to undermine the Court's legitimacy and prepared for the challenge its decision-making based on the non-appointment of members. This type of resistance is unprecedented in the history of the CJEU: In his 2020 review of backlash against international courts, Erik Voeten did not find a single instance of clear backlash against the European court.⁶

Of course, there is no guarantee that Safjan would have chosen to retire had this threat remained active; the judges of the Court were, without a doubt, aware of the political power play it was being subjected to.

At the end of the day, little seems to have come of Poland's attempt at resisting the European court. One might even speculate that their obstructionist strategy benefited both Poland and the CJEU in the long run, giving Polish judges long and seemingly successful tenures despite the turbulent political situation at home.

The story furthermore underlines the institutional robustness built into the CJEU through its policy to maintain the duties of judges appointed to the bench until their successors are appointed, rather than ending these duties at the end of their formal appointment. The pressure member state governments can put on the Court through non-appointments is, as a consequence, severely limited.

This is perhaps reflected in Hungary's decision not to follow the Polish strategy of non-appointment. Hungary has continued to make successful appointments to the court, most recently Zoltán Csehi to the Court of Justice in 2021, and Krisztián Kecsmár and Tihamér Tóth to the General Court in 2022. It seems there is no inherent impossibility for authoritarian-leaning governments to make successful judicial appointments to the CJEU, even after the introduction of the 255 panel in 2010.

What's next?

PiS of course lost the elections in 2023, and one would expect the situation to ease up as a result — Safjan, after all, only retired in January 2024. However, while Polish appointments to the CJEU are made by the government, they are approved by the president. The presidency, of course, is still held by PiS, and president Andrzej Duda has shown no interest in signing off on the appointment of new European judges.⁷

The filling of the 27th seat of the Court of Justice may therefore very well hinge on the outcome of next year's presidential election in Poland.

In either case, with the new Polish government being more favourable to the established European legal order, it seems the risk of Poland successfully weaponizing non-application of judges to mobilise a backlash against the CJEU has significantly deteriorated for now. What is left is a lesson in the design of robust international institutions, the awareness of non-appointments of a potential threat to the CJEU, and an empty seat at the Court's bench.

1. It is not completely unprecedented for the Court to be left a judge short; it happened most famously in the "Rueff Affair" starting in 1958 but gaining significance in 1959, when the French judge Jacques Rueff resigned to pursue other duties leaving the then small Court with an even number of members. See Antonin Cohen (2013) "Juge et expert: L'Affaire Rueff ou la codification des règles de la circulation internationale".↵

2. Appointing decisions are published in EUR-lex; see for example Decision 2015/578 appointing Safjan for his final term at the Court of Justice. While the appointing decision clearly states that Safjan is appointed as judge "to the Court of Justice for the period from 7 October 2015 to 6 October 2021", the end date is not binding (see the note below).↵

3. Exceptions are defined in article 5 of the Statute of the Court: "Apart from normal replacement, or death, the duties of a Judge shall end when he resigns". Article 6 of the Statute furthermore elaborates that a judge may be deprived of her office only if "in the unanimous opinion of the Judges and Advocates General of the Court of Justice, he no longer fulfils the requisite conditions or meets the obligations arising from his office". The duties of the judge therefore does not end at the expiration of her mandate.↵

4. Named after Article 255 of the Treaty on the Functioning of the European Union, from which it has its mandate. See for example Tomáš Dumbrovský, Bilyana Petkova, and Marijn Van Der Sluis (2014) "Judicial appointments: The Article 255 TFEU Advisory Panel and selection procedures in the Member States". Both the French language barrier and the test of EU law knowledge are known to provide significant barriers of entry for aspiring judges.↵

5. The way for such a case was paved by the European Court of Justice in its Portugese judges decision (C-64/16), where it established itself as having the mandate to safeguard judicial independence in European member states.↵

6. Erik Voeten (2020) "Populism and Backlashes against International Courts" in Perspectives on Politics 18(2). See in particular the overview of recorded instances of backlash on page 410, from which the CJEU is entirely missing. Note that Voeten does not consider Brexit to be an instance of backlash against the CJEU, but against the European Union as a whole.↵

7. When writing about the restoration of the rule of law in Poland in December 2023, Safjan urged his readers not to embrace helplessness. "To consider that nothing can be done until the end of President Duda’s term of office", he wrote, "would be tantamount to admitting full-scale failure". It seems likely he was writing with his mind not only on his Polish colleagues, but also in consideration of his own term that would reach its end with his resignation the following month. See Marek Safjan (2023) We Are Not Helpless: How Poland can restore the Rule of Law by referring to its constitutional foundations in the Verfassungsblog.↵