The Rule of Law à la Carte: How the European Commission Applies Different Standards to Poland Depending on Who Is in Power

The European Commission’s response to Poland’s constitutional crisis reveals a selective and politically driven application of rule-of-law standards. Aggressive scrutiny of previous conservative governments contrasts with the EU Commission's silence toward the current Tusk government’s actions. The obstruction of the Constitutional Tribunal, the irregular election and attempted swearing-in of judges, and the Commission’s failure to respond expose a deep instrumentalisation of EU rule-of-law mechanisms against governments disfavoured by Brussels.

by Jerzy Kwaśniewski, President of the Ordo Iuris Institute for Legal Culture, Warsaw

The European Commission has long presented itself as the guardian of the rule of law within the European Union. For years, Poland served as its principal case study in alleged democratic backsliding — subjected to the unprecedented procedure as per Article 7 of the Treaty on European Union (TEU)[1], threatened with the suspension of EU funds, and subjected to annual rule-of-law reports framed as indictments. Then, in December 2023, Donald Tusk returned to the office of Prime Minister in Warsaw. The Commission’s posture towards Poland changed with remarkable speed. Structural funds were unblocked, the Article 7 TEU procedure was terminated, and the 2025 rule-of-law report on Poland was transformed from a document of censure in the previous yearly editions into one of measured commendation — notwithstanding the fact that, in the interim, the Tusk government had embarked upon a course of conduct that systematically undermined the very constitutional architecture that Brussels had previously claimed to defend.

Recent events have brought this selective application of standards into sharp and unavoidable relief. What is occurring in Poland today with respect to the Constitutional Tribunal (Trybunał Konstytucyjny, TK) does not represent a consolidation of the rule of law. It constitutes one of the most consequential constitutional crises in the country’s post-1989 history. The European Commission’s continued silence in the face of it discloses the true character of its rule-of-law engagement.

I. The Tusk Government’s Systematic Obstruction of the Constitutional Tribunal

By way of background, it is necessary to recall that the Constitutional Tribunal in Poland is the supreme body of constitutional review, competent to adjudicate on the conformity of statutory acts with the Constitution of the Republic of Poland. Its judges are elected by the Sejm — the lower house of Parliament — by simple majority, and sworn in by the President for non-renewable nine-year terms of office.

Since taking office, the Tusk coalition has refused to publish in the official journal or give effect to the rulings of the Constitutional Tribunal. The Government has openly contested the Tribunal’s legitimacy, treating its judgments as legally inoperative. This is not a matter of procedural dispute susceptible of multiple reasonable interpretations; it is a categorical executive refusal to comply with the decisions of the highest court of constitutional review in the country. The practical consequence has been a fragmentation of the Polish legal order: some courts continue to apply Tribunal rulings in the absence of their official publication, on the basis that their binding force derives from their announcement by the Tribunal rather than their publication by the Government, while others decline to do so. Citizens’ rights have accordingly become dependent upon the interpretive posture of the individual judge assigned to their case.

Beyond the refusal to publish Tribunal rulings, the coalition sought to incapacitate the institution through the budgetary process. During the Sejm’s consideration of the 2024 budget, amendments were tabled in the Public Finance Committee that drastically reduced the appropriations of the Constitutional Tribunal, the National Council of the Judiciary (Krajowa Rada Sądownictwa, KRS), and other constitutionally established state organs. The chairman of that committee stated in terms that the purpose was to prevent the Tribunal’s judges from receiving their remuneration. Legal scholars of diverse political orientations have characterised such measures as bearing the hallmarks of an attempt to subvert the constitutional order.

II. The Election of Six Judges: Procedural Irregularities and Strategic Timing

For a period exceeding eighteen months, the ruling coalition deliberately withheld the appointment of judges to fill vacancies that had arisen on the Constitutional Tribunal during its term in office. The Polish Constitution, as interpreted by the Tribunal itself in its judgment of 3 December 2015 in case K 34/15, imposes an obligation on the Sejm to elect judges to the Tribunal as vacancies arise; it does not confer upon a parliamentary majority a discretion to delay such elections for strategic purposes. The Act on Proceedings before the Constitutional Tribunal further requires a minimum of eleven judges out of fifteen for the Tribunal to adjudicate in full bench, which is the composition required for the most significant constitutional cases. By allowing six seats to fall vacant simultaneously, the coalition rendered the Tribunal structurally incapable of convening in plenary formation for extended periods.

On 13 March 2026, however, the Sejm proceeded to elect six judges at once: Maciej Taborowski, Dariusz Szostek, Krystian Markiewicz, Anna Korwin-Piotrowska, Marcin Dziurda, and Magdalena Bentkowska. The circumstances in which this was done were themselves indicative of bad faith. A few days before opposition MPs had lodged a motion before the Constitutional Tribunal, challenging the constitutionality of the existing statutory procedure governing the election of its judges — proceedings registered as case K 3/26. Rather than await the outcome of those proceedings, the coalition moved to precipitate the election before a judgment could be rendered, thereby placing the matter beyond immediate judicial correction.

The parliamentary procedure employed to hasten the election of judges was marked by multiple irregularities, each documented in the analysis published by the Ordo Iuris Institute on 30 March 2026[2]. First, the seven-day interval between the submission of candidates and the vote, prescribed by Article 30(4) of the Rules of Procedure of the Sejm, was shortened by the Speaker of the Sejm, Włodzimierz Czarzasty, through the tacit consent procedure — without the approval of a formal Sejm resolution, as required by the Constitutional Tribunal’s own jurisprudence on the binding force of parliamentary procedure. Second, and of direct consequence for the outcome, the rapporteur member of parliament — MP Patryk Jaskulski — failed to disclose to the plenary that the Sejm’s Justice and Human Rights Committee had issued a positive opinion with respect to one of the opposition-nominated candidates, Michał Skwarzyński. That candidate, duly vetted and favourably assessed by the Committee, secured only 172 votes in favour, with 253 against — an outcome that, according to established doctrine, raises legitimate questions as to whether the Sejm was in a position to exercise an informed collective judgment.

While the analysis of the Ordo Iuris Institute concluded that it was not possible to determine with finality that the election was procedurally void, it nonetheless established that the irregularities were sufficient to justify the President’s decision to defer the administration of the oath of office pending the Constitutional Tribunal’s judgment in case K 3/26, and pending clarification of the outstanding legal doubts.

This episode bears a structural resemblance to the events of 2015, which gave rise to the earlier constitutional controversy. In that year, the outgoing parliamentary majority formed by Donald Tusk’s Civic Platform and the Polish People’s Party (Polskie Stronnictwo Ludowe, PSL), anticipating defeat in the October 2015 elections, amended the relevant statutory provisions to enable the election of judges for five Constitutional Tribunal seats whose terms were due to expire after the new parliament had been constituted — that is, after the incoming majority had assumed its own right of appointment. The Venice Commission’s opinion of 12 March 2016 recognised, though with insufficient prominence in subsequent Brussels discourse, that the constitutional crisis had its origins in the conduct of the outgoing liberal majority. It is a matter of record that the European Commission proceeded nonetheless to treat the incoming conservative government as the exclusive author of the constitutional rupture, and ultimately initiated Article 7 proceedings against Poland.

III. The Unlawful Swearing-In Ceremony and Its Legal Consequences

President Karol Nawrocki, who assumed office in August 2025, acted with constitutional propriety in declining to immediately administer the oath of office to all six elected judges. The Constitutional Tribunal’s judgment of 3 December 2015 in case K 34/15 had confirmed that the President may, in extraordinary circumstances, extend the period within which the oath is administered, without this constituting a refusal. Indicating that two seats only had become vacant on the Constitutional Tribunal under his tenure, President Nawrocki did, on 1 April 2026, administer the oath to two of the elected judges — Bentkowska and Szostek — in order to ensure that the Tribunal would be composed of at least eleven members, as required by law. He did not at any stage indicate that he would refuse to administer the oath to the remaining four.

The Government’s response was to organise a ceremony on 9 April 2026 in the Column Hall of the Sejm building, presided over by Speaker Czarzasty and attended by the Speaker of the Senate, Małgorzata Kidawa-Błońska, as well as a notary public. All six individuals elected on 13 March 2026 were present. The President of the Republic was absent. He had not consented to participate. The elected candidates had dispatched a letter to the Chancellery of the President announcing that they intended to take the oath in the Sejm "in the absence of any response from the Chancellery of the President" — a formulation that reveals an implicit acknowledgment that no proper invitation had been extended and no acceptance received.

The Chancellery of the President responded by invoking Article 4(1) of the Act on the Status of Judges of the Constitutional Tribunal, which confers upon the President, and upon no other authority, the competence to administer the oath of office to an elected judge of the Tribunal. The Chancellery further invoked Article 4(2) of the same Act, which provides that a refusal to take the oath before the President constitutes a resignation from the office of judge of the Tribunal. In the view of the Chancellery, the conduct of the four individuals who had not previously taken a valid oath — by purporting to take it in the Sejm building, in the absence of the President, before a notary — was to be treated as equivalent to such a refusal, with the consequence that they are no longer eligible to assume judicial office on the Tribunal. The two judges who had already validly taken the oath on 1 April and who nonetheless participated in the Sejm ceremony face the risk of disciplinary proceedings under Article 24 of the Act on the Status of Judges of the Constitutional Tribunal, for conduct unbecoming the dignity of the judicial office. Speaker Czarzasty, who assumed joint responsibility for organising the ceremony, may face criminal liability for exceeding his official powers under Article 231 of the Criminal Code.

President Nawrocki subsequently filed with the Constitutional Tribunal a motion to resolve the competence dispute that has arisen between the President of the Republic and the Sejm with respect to the constitutional allocation of authority over the oath of office of Constitutional Tribunal judges.

IV. The European Commission’s Selective Approach to the Rule of Law

The contrast between the Commission’s conduct in 2015–2016, concerning rule-of-law issues in Poland, and its conduct today admits of no principled legal explanation. In 2016, when the Law and Justice government declined to publish a Tribunal ruling that had been rendered in circumstances that were themselves legally contested — a question on which respected constitutional scholars reached divergent conclusions — the Commission initiated a structured rule-of-law dialogue, demanded compliance, and proceeded to launch the Article 7 TEU procedure. Resolutions were passed by the European Parliament. Poland was characterised in the international press as exhibiting authoritarian tendencies.

The present situation is incomparably more serious. The Tusk government has refused to publish dozens of Constitutional Tribunal rulings over a period of approximately two years. It has sought to reduce the Tribunal’s budget to the point of functional incapacity. It deliberately withheld the election of judges for over eighteen months in order to accumulate vacancies. It then conducted a rushed election of judges in violation of the Sejm’s own procedural rules. And it staged an unlawful ceremony in the Sejm building, presided over by the Speaker of the Sejm, purporting to swear in four individuals as judges of the Tribunal without the participation or consent of the President of the Republic.

The Commission has initiated no special procedure in response to any of these events. No structured dialogue has been announced. No Article 7 TEU motion has been filed. The Commission’s 2025 rule-of-law report on Poland is, as the analysis published by the Ordo Iuris Institute[3] has documented, a document replete with commendation for the government’s stated "commitments" and "plans for reform" — while maintaining complete silence on the forced displacement of public broadcaster management, the unlawful substitution of the National Prosecutor without presidential approval, the unlawful replacement of the presidents and vice-presidents of many courts across the country without the required approval of those courts’ colleges of judges or of the National Council of the Judiciary, the attempted starvation of constitutional organs, and the ongoing subversion of the Constitutional Tribunal’s independence and integrity.

The concept of the rule of law remains largely undefined in European Union law. This definitional openness is not an unintentional gap. It permits the Commission to apply the concept in a manner calibrated to political preference rather than legal consistency. The Commission’s own rule-of-law conditionality mechanism — under which NextGenerationEU funds were withheld from Poland for years, and released within weeks of Donald Tusk’s return to office, in advance of any structural legal reform — is the most visible expression of this instrumentalisation. Prime Minister Tusk himself, speaking on 10 September 2024, stated that "we have a need today to act in these terms of militant democracy. I mean, we will probably make mistakes more than once, or commit acts that, according to some legal authorities, will be incompatible or not fully in accordance with the provisions of the law, but nothing relieves us of the responsibility to act every day. I, daily, have to make decisions that can be very easily criticized and challenged from the legal side, but without these decisions it would actually make no sense at all for me to take on the responsibility of running the work of the government. (…) I, in any case, will continue to make such decisions with full awareness of the risk that not all of them will meet the criteria of full rule of law from the point of view of, for example, purists in the good sense of the word."[4] The Commission has chosen not to comment on this declaration by the head of government of a member state.

Conclusion

What is occurring in Poland is not a consolidation of the rule of law. It is its deliberate dismantlement, carried out by a government that deploys the rule of law as a discursive instrument while repudiating it as a binding constraint on its conduct. The European Commission, which for years overstepped its competences and subjected Poland to intensive scrutiny on grounds of alleged threats to judicial independence, has chosen a policy of silence in the face of conduct that is objectively more injurious to constitutional order than anything it previously condemned.

That silence cannot be attributed to ignorance. It discloses a consistent pattern: the Commission’s rule-of-law framework operates not as a neutral mechanism of legal supervision, but as a political instrument available to those who share Brussels’ vision of European integration and are willing to transfer sovereign competences to European institutions. The citizens of EU member states — and all those committed to genuine constitutional democracy and the sovereign equality of nations — are entitled to expect that the institutions of the Union apply the law without regard to the political identity of those against whom it is applied. On the evidence available, that expectation is not presently being met.

Jerzy Kwaśniewski is a Polish attorney and President of the Ordo Iuris Institute for Legal Culture in Warsaw. He is the lead author of the Ordo Iuris analysis on the March 13, 2026, election of Constitutional Tribunal judges.

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[1] A procedure providing for the possibility, where the Council — acting unanimously, excluding the representative of the Member State concerned by the procedure — has determined that a serious and persistent breach of the values referred to in Article 2 TEU exists, of deciding, by qualified majority of that same Council, to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of that Member State's government within the Council.

[2] See: Constitutional Tribunal Appointments in Poland: Rule-of-Law Implications of a Flawed Sejm Vote, https://ordoiuris.pl/en/analyses/the-polish-sejm-finally-elected-constitutional-tribunal-judges-by-violating-its-own-rules/

[3] See: When Defending the Rule of Law Serves Politics: The European Commission’s Report on Poland, https://ordoiuris.pl/en/comments/when-defending-the-rule-of-law-serves-politics-the-european-commissions-report-on-poland/

[4] Statement made by Polish Prime Minister Donald Tusk on September 10, 2024, at the conference “Ways out of the Constitutional Crisis”