l’aspide

There’s a lot of confusion around Poland’s Constitutional Tribunal crisis. Here’s what you must know: 1. The Polish Constitutional Tribunal is not a lawful court The CJEU has ruled that it is not a tribunal previously established by law, owing to serious irregularities in the appointment of three judges and its President (C-448/23, 18 Dec 2025). The ECtHR (Xero Flor v Poland, 2021) and the Venice Commission reached the same conclusion. 2. Restoring judicial independence is a legal obligation, not Tusk's caprice Articles 2 and 19(1) TEU require every Member State to guarantee independent courts, because: (i) National courts are part of the EU’s system of judicial protection, (ii) their decisions affect all Europeans. The President’s refusal to receive the oaths of four of the six judges elected by the Sejm in March 2026, and the Tribunal leadership’s refusal to let them sit, prompted an ECtHR interim measure in May requiring that nothing hinder them from taking up and exercising their functions. 3. EU law offers no blueprint, but the Commission and the EU courts can check the chosen methods Appointing Maciej Berek, a minister until weeks earlier and Tusk’s “right-hand man”, to the bench contradicts the government’s pledge to depoliticise the Tribunal. The Friday suspension of the Tribunal’s president and vice-president, ordered by one judge and accompanied by a police presence outside the building, is not in itself a “coup”: the stated aim is to restore a lawfully functioning court. But restoring the rule of law must itself be done lawfully. 4. The EU has weakened its own leverage. In February 2024, it released up to €137bn in suspended funds on the strength of promises, before durable change was secured. What the EU could do is to reopen an Article 7 TEU procedure against Poland. 5. No: this is not a two-sided, symmetrical dispute If the Polish government is trying to repair an institution captured under PiS, its opposition is striving to retain some control through illegal means. Bottom line: restoring judicial independence is a legal duty, and the methods chosen by the Polish government deserve scrutiny. Equating the two sides, or reading that scrutiny as opposition to restoring the Tribunal, is, therefore, deeply misleading.