Opinion of the Advocate General — ECLI:EU:C:2025:165
Date: 2025-03-11
Language of the case: Polish

summary based on a few examples of case-law. 87. The first function of Article 4(2) TEU is as a tool for identifying an overriding reason in the public interest justifying a derogation from the application of a fundamental freedom. For example, and in that context, the Court has examined whether national rules aimed at preserving an official language could justify a derogation. (35) A second example of its application concerns restrictions on the right to freedom of movement of persons based on national rules limiting the possibility of using titles of nobility in a name. (36) A third example concerns the question whether the principle of human dignity, enshrined in Paragraph 1 of the German Basic Law (Grundgesetz), can justify a restriction on the freedom to provide services. (37) 88. The second function of Article 4(2) TEU is as a parameter for interpreting certain provisions of secondary legislation in a context relating to the fundamental structures or essential functions of Member States. (38) 89. However, and the essential element of the analysis lies in this fact, the case-law on the interpretation of Article 4(2) TEU does not allow, as suggested by the Trybunał Konstytucyjny (Constitutional Court), national identity to be regarded as an element capable of preventing full application of the principle of primacy. As follows from the foregoing analysis, the opposition between the primacy of EU law and the national identity of the Member States appears, in reality, to be a pseudo-conflict, since the two concepts fulfil distinct functions within the EU legal order. 90. Secondly, I consider it necessary to point out that Article 4(2) TEU cannot be regarded as being at odds with Article 2 TEU and the fundamental values enshrined therein. (39) As the Court has emphasised, ‘whilst they have separate national identities, inherent in their fundamental structures, political and constitutional, which the European Union respects, the Member States adhere to a concept of “the rule of law” which they share, as a value common to their own constitutional traditions, and which they have undertaken to respect at all times’. (40) It follows that the constitutional identity of a Member State cannot take precedence over the democratic foundations of the European Union and its Member States, or over the common values enshrined in Article 2 TEU. (41) A variable geometry approach to the rule of law cannot be acceptable where the application of EU law is concerned. As the Court has pointed out, if a constitutional court of a Member State considers that a provision of EU law, as interpreted by it, infringes the obligation to respect the national identity of that Member State, that constitutional court must stay the proceedings and make a reference to the Court for a preliminary ruling under Article 267 TFEU, in order to assess the validity of that provision in the light of Article 4(2) TEU. (42) 91. Ultimately, and at the risk of repeating myself, the central question raised by the present case concerns the application of the principle of primacy by the Court, whether raised implicitly or directly by the constitutional court where it challenges the Court’s authority to rule at last instance in cases of conflict between EU law and the constitutional identity of a Member State. That question can be answered only by reference to a fundamental consideration: membership of the European Union is conditional on the joining of ‘a legal structure that is based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that they share with it, the common values contained in Article 2 TEU, on which the European Union is founded’. (43) 92. It is true that a Member State cannot be compelled to accede to the European Union against its will. (44) However, once it has made the sovereign choice to accede, it must respect the ‘rules of the game’, in accordance with Article 49 TEU, which requires Member States to respect the values of the European Union after their accession – values which they have accepted freely and in full knowledge of the facts. (45) Sitting as a full Court, its most formal composition, the Court has recalled that ‘compliance by a Member State with the values contained in Article 2 TEU is a condition for the enjoyment of all the rights deriving from the application of the Treaties to that Member State …. Compliance with those values cannot be reduced to an obligation which a candidate State must meet in order to accede to the European Union and which it may disregard after its accession’. (46) 93. From that perspective, Article 4(2) TEU is not an obstacle, but invites fruitful dialogue between the EU legal order and the national legal orders. Far from imposing rigid uniformity, it makes it possible to build a European project which is not a fixed, monolithic structure, but a subtle, dynamic network in which recognition of specific national characteristics strengthens the cohesion of the whole. (47) However, in order to ensure the unifying force of EU law, it is essential that the Court ultimately retains the ‘last word’. 94. In the light of the foregoing, it must be concluded that the declaration by the Trybunał Konstytucyjny (Constitutional Court) that Article 2, the second subparagraph of Article 19(1) and Article 4(3) TEU and Article 279 TFEU are incompatible with the Constitution constitutes a manifest infringement, I would even go so far as to say one of the most direct, of the fundamental principles of the EU legal order. Those positions disregard not only the authority of the Court’s judgments, but also all the values and obligations which the Treaties impose on the Member States. Consequently, the interpretation adopted by the Trybunał Konstytucyjny (Constitutional Court) is seriously prejudicial to the primacy, autonomy, uniformity and effectiveness of EU law. 95. For the above reasons, I propose that the Court hold that the Commission’s second complaint is well founded. 3. The third complaint (a) Arguments of the parties 96. By its third complaint, the Commission criticises the Republic of Poland for failing to comply with the requirements of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter. Those requirements concern the independence, impartiality and legality of the Trybunał Konstytucyjny (Constitutional Court). 97. In particular, it considers that the Trybunał Konstytucyjny (Constitutional Court) no longer satisfies those guarantees on account of the irregularities in the appointment of judges in December 2015 and the election of its President in December 2016. In December 2015, the Eighth Legislature of the Sejm elected three persons (M.M., H.C. and L.M.) to replace judges whose terms of office had expired, even though the Seventh Legislature had already elected three other judges (R.H., A.J. and K.Ś.) to the same positions in October 2015. The Trybunał Konstytucyjny (Constitutional Court), in its judgments of 3 and 9 December 2015, ruled that the election of the three judges by the Eighth Legislature was contrary to the Constitution. However, the three unlawfully elected judges were sworn in and allowed to sit, while the lawfully elected judges were unable to take up their office. 98. Moreover, the Commission states that the procedure for selecting candidates for the post of President of the Trybunał Konstytucyjny (Constitutional Court), which led to the appointment of J.P. in December 2016, was vitiated by serious irregularities. 99. The Republic of Poland, while sharing the Commission’s view, states that the irregular nature of the composition of the Trybunał Konstytucyjny (Constitutional Court) is the main reason for calling into question the validity of its judgments. (b) Analysis (1) Relevant case-law of the Court 100. According to settled case-law, any national court or tribunal capable of ruling on questions relating to EU law must offer the necessary guarantees of independence and impartiality and must be established by law. (48) Those requirements derive from the principle of effective judicial protection enshrined in the second subparagraph of Article 19(1) TEU and the second paragraph of Article 47 of the Charter, according to which everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. 101. It is settled case-law that the guarantees of independence and impartiality require rules, including rules regarding the composition of the body and the appointment of its members, in order to dispel any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it. (49) 102. Moreover, the reason for the requirement relating to a ‘tribunal previously established by law’ is to ensure that the organisation of the judicial system does not depend on the discretion of the executive, but that it is regulated by law emanating from the legislature in compliance with the rules governing its jurisdiction. That phrase reflects, in particular, the principle of the rule of law and covers not only the legal basis for the very existence of a tribunal, but also the composition of the bench in each case and any other provision of domestic law which, if breached, would render the participation of one or more judges in the examination of a case irregular, including, in particular, provisions concerning the independence and impartiality of the members of the court concerned. (50) 103. As regards an infringement of that requirement, the Court held, drawing, in that regard, on the case-law of the European Court of Human Rights, to the effect that an irregularity committed during the appointment of judges within the judicial system concerned entails an infringement of the requirement that a tribunal be established by law, particularly when that irregularity is of such a kind and of such gravity as to create a real risk that other branches of the State, in particular the executive, could exercise undue discretion undermining the integrity of the outcome of the appointment process and thus give rise to a reasonable doubt in the minds of individuals as to the independence and the impartiality of the judge or judges concerned. This is the case when what is at issue are fundamental rules forming an integral part of the establishment and functioning of that judicial system. (51) The Court thus stated that it follows from the case-law of the European Court of Human Rights that only those breaches that relate to the fundamental rules on the procedure for appointing judges and for judges to take up office are such as to infringe Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’). (52) (2) Application to the present case (i) The appointment of judges to the Trybunał Konstytucyjny (Constitutional Court) in alleged breach of the Constitution 104. It should be noted at the outset that the Trybunał Konstytucyjny (Constitutional Court) is a ‘court or tribunal’ for the purposes of the second subparagraph of Article 19(1) TEU, in so far as it may rule on questions relating to the application and interpretation of EU law. (53) That conclusion is, inter alia, confirmed by the judgments at issue, which are the subject of the first and second complaints in the present action. (54) 105. In the present case, on 2 December 2015 the Sejm of the Republic of Poland (Eighth Legislature) appointed three persons (M.M., H.C. and L.M.) to the Trybunał Konstytucyjny (Constitutional Court) in order to fill vacancies which had arisen on 6 November 2015. However, on 8 October 2015 the previous Sejm (Seventh Legislature) had already adopted resolutions on the election of three other judges (R.H., A.J. and K.Ś.) to the same positions. 106. In its judgment of 3 December 2015, K 34/15, (55) the Trybunał Konstytucyjny (Constitutional Court) confirmed, inter alia, that the Seventh Legislature of the Sejm was entitled to appoint three judges to replace those whose terms of office had expired on 6 November 2015. Moreover, the Trybunał Konstytucyjny (Constitutional Court) noted the obligation of the President of the Republic of Poland to swear in the three persons elected by the Seventh Legislature of the Sejm (R.H., A.J. and K.Ś.) to replace the judges whose terms of office had ended on 6 November 2015. Furthermore, on 9 December 2015, by its judgment K 35/15, (56) the Trybunał Konstytucyjny (Constitutional Court) invalidated Article 137a of the ustawa o Trybunale Konstytucyjnym (Law on the Constitutional Court) of 25 June 2015, (57) as amended by the ustawa o zmianie ustawy z dnia 25 czerwca 2015 r. o Trybunale Konstytucyjnym (ustawa zmieniająca) (Law amending the Law of 25 June 2015 on the Constitutional Court) of 19 November 2015, pursuant to which, in the case of judges of the Trybunał Konstytucyjny (Constitutional Court) whose terms of office expired in 2015, the deadline for submitting an application was seven days from the date on which that provision entered into force. The unconstitutionality concerned the election of judges to the Trybunał Konstytucyjny (Constitutional Court) to replace the judges whose terms of office had expired on 6 November 2015. 107. Despite the finding of the irregularity of the appointment made in December 2015, the three judges concerned were sworn in before the President of the Republic of Poland, and, on 20 December 2016, Judge J.P., ‘the judge carrying out the functions of President’ after the retirement of President A.R., authorised them to sit on the court. The three judges elected in October 2015 were never able to take up their office, as they had not been sworn in. 108. As noted by the Commission, the appointment and taking up of office within the Trybunał Konstytucyjny (Constitutional Court) of the three abovementioned judges constitutes a manifest disregard of the constitutional principle concerning the appointment of judges to the Trybunał Konstytucyjny (Constitutional Court), which is an integral part of the organisation and functioning of the Polish State. The Commission also states, without being contradicted by the Republic of Poland, that, from the expiry of the period for replying to the Commission’s reasoned opinion of 15 July 2022 (that is to say 15 September 2022) to date, neither of the two judgments of the Trybunał Konstytucyjny (Constitutional Court) of 3 and 9 December 2015 has been implemented, and Judge M.M. continues to sit on the Trybunał Konstytucyjny (Constitutional Court). 109. I also consider it useful to note that the European Court of Human Rights, in its judgment of 7 August 2021, Xero Flor w Polsce sp. z o.o. v. Poland, (58) confirmed that that situation infringed a fundamental principle governing the appointment of judges to the Trybunał Konstytucyjny (Constitutional Court), undermining the right to a ‘tribunal established by law’ within the meaning of Article 6(1) ECHR. It follows that the independence and impartiality of the Constitutional Court are seriously jeopardised, even though Article 19 TEU and Article 47 of the Charter impose such guarantees on national courts. (ii) The alleged irregularities vitiating the procedure for appointing the President of the Trybunał Konstytucyjny (Constitutional Court) 110. I also consider that there were serious irregularities in the procedure for appointing the President of the Trybunał Konstytucyjny (Constitutional Court). 111. In particular, with the approach of the expiry of the term of office of the previous President of the Trybunał Konstytucyjny (Constitutional Court) (on 19 December 2016), the Polish legislature radically revised the procedure for selecting candidates. A new post of ‘judge carrying out the functions of President’ – which is not in the Constitution, Article 194(2) of which refers only to the President and Vice-President – was created. On 20 December 2016, that is to say the day after the departure of the previous President of the Trybunał Konstytucyjny (Constitutional Court), the President of the Republic of Poland appointed J.P. to that newly created position. On the same day, J.P. authorised the three irregularly appointed judges to sit and convened the general assembly. Of the fourteen judges present, eight refused to take part in the vote, demanding a postponement to allow a fifteenth judge to attend. That request was rejected, and J.P. was elected as President of the Trybunał Konstytucyjny (Constitutional Court) with just five votes out of the fourteen members present, including those of the three judges whose appointment was already contested. (59) On 21 December 2016, she was appointed, by the President of the Republic of Poland, President of the Trybunał Konstytucyjny (Constitutional Court). 112. That series of events demonstrates, in my view, the direct and specific influence of the legislative and executive powers on the composition and functioning of the Trybunał Konstytucyjny (Constitutional Court), creating a high risk of political interference. The integrity of the appointment process, the confidence of individuals in the independence of that court and observance of the guarantees provided for in Article 19 TEU and Article 47 of the Charter are profoundly undermined as a result. 113. Moreover, as stated by the Commission, it would have been reasonable to expect the Trybunał Konstytucyjny (Constitutional Court) to adopt a cautious attitude in order to dispel the doubts raised by those irregularities. Instead, M.M. sat in cases directly calling into question the legality of her own appointment, thereby infringing the requirement of impartiality. (60) 114. In the final analysis, and in the light of the foregoing, there can be no doubt that the Trybunał Konstytucyjny (Constitutional Court) cannot be classified as an independent and impartial ‘tribunal established by law’, as required by the second subparagraph of Article 19(1) TEU, and reinforced by Article 47 of the Charter. That failure undermines the legitimate expectations of individuals in the ability of national courts to apply EU law in accordance with European standards, and thus undermines the integrity and effectiveness of the EU legal order. 115. Consequently, and on the basis of facts which are not contested, I consider that the procedure for the appointment of the three judges in December 2015 and of Judge J.P. to the post of President of the Trybunał Konstytucyjny (Constitutional Court) was characterised by several irregularities which may be classified as manifest and serious. 116. In the light of the foregoing, I propose that the Court declare that the Republic of Poland has failed to fulfil its obligation under the second subparagraph of Article 19(1) TEU, in failing to ensure that the Trybunał Konstytucyjny (Constitutional Court) satisfies the requirement of an independent and impartial tribunal previously established by law. 117. For the above reasons, I propose that the Court hold that the Commission’s third complaint is well founded. VI. Costs 118. Pursuant to Article 138(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 119. According to the solution I propose, since the Commission has applied for costs against the Republic of Poland and the latter has been unsuccessful, it must be ordered to pay its own costs and those of the Commission. VII. Conclusion 120. In the light of the foregoing, I propose that the Court should: (1) declare that, in the light of the interpretation of the Konstytucja Rzeczypospolitej Polskiej (Constitution of the Republic of Poland) made by the Trybunał Konstytucyjny (Constitutional Court, Poland) in its judgments of 14 July 2021 and 7 October 2021, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU; (2) declare that, in the light of the interpretation of the Constitution of the Republic of Poland made by the Trybunał Konstytucyjny (Constitutional Court) in its judgments of 14 July 2021 and 7 October 2021, the Republic of Poland has failed to fulfil its obligations under the general principles of autonomy, primacy, effectiveness and uniform application of EU law and has disregarded the binding effect of the Court’s judgments; (3) declare that the Trybunał Konstytucyjny (Constitutional Court) does not satisfy the requirements of an independent and impartial tribunal previously established by law as a result of irregularities in the procedures for the appointment of three judges to that court in December 2015 and for the appointment of its President in December 2016, and, therefore, that the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU; (4) order the Republic of Poland to bear its own costs and to pay those incurred by the European Commission. 1 Original language: French. 2 Pescatore, P., L’ordre juridique des Communautés européennes: étude des sources du droit communautaire, 2nd edition, Presses universitaires de Liège, Liège, 1973, p. 227. 3 See, inter alia, order of the Corte costituzionale (Constitutional Court, Italy), No 24/2017, of 26 January 2017 (IT:COST:2017:24). 4 Dz. U. of 2021, item 1309 (‘the judgment of 14 July 2021’). 5 C‑791/19 R, ‘the order in Commission v Poland’, EU:C:2020:277. 6 Dz. U. of 2021, item 1852 (‘the judgment of 7 October 2021’). 7 Levade, A., ‘Identités constitutionnelles et hiérarchies’, Annuaire international de justice constitutionnelle, Economica, Presses Universitaires d’Aix-Marseille, 2011, p. 455. 8 See judgment of the Ústavní soud (Constitutional Court, Czech Republic), Slovenské důchody XVII (Slovak Pensions XVII, Holubec case), Pl. ÚS 5/12, of 31 January 2012, delivered following the judgment of 22 June 2011, Landtová (C‑399/09, EU:C:2011:415). See, also, judgment of the Højesteret (Supreme Court, Denmark), Dansk Industri (DI) acting for Ajos A/S v The estate left by A, No 15/2014, UfR 2017.824 H, of 6 December 2016, delivered following the judgment of 19 April 2016, DI (C‑441/14, EU:C:2016:278). See also, as regards the Bundesverfassungsgericht (BVerfG) (Federal Constitutional Court, Germany), judgments of 5 May 2020, 2 BvR 859/15 et al. (PSPP), Europäische Grundrechte Zeitschrift, 2020, p. 246, and of 21 June 2016, 2 BvR 2728/13 et al. (OMT II), Europäische Grundrechte Zeitschrift, 2016, p. 440. As regards the Conseil constitutionnel (Constitutional Court, France), the constitutional court is authorised to verify that transposing legislation which reproduces the exact terms of a directive does not contradict express provisions of the French Constitution or ‘the rules and principles inherent in the constitutional identity of France, unless the Constitution so permits’ (decisions No 2004-96 (DC) of 10 June 2004, JORF of 22 June 2004, p. 11182, text No 3, and No 2006-540 (DC) of 27 July 2006, JORF of 3 August 2006, p. 11541, text No 2). 9 See, inter alia, Nagy, C. I., ‘The Rebellion of Constitutional Courts and the Normative Character of European Union Law’, International and Comparative Law Quarterly, Vol. 73, No 1, 2024, pp. 65-101. That author proposes a critical rereading and an assessment of the nascent rebellion of European constitutional courts against the unconditional supremacy of EU law. The article also gives an account of the emerging ultra vires challenge, identifies its origin and development, and then proposes an in-depth analysis and approaches for reform. It shows that the real issue is not so much the primacy of EU law as the interpretative primacy entrusted to the Court. The author argues that the ‘rebellion’ was triggered by the perception that the Court’s case-law is losing its normative character in favour of an increasingly political character. Without calling into question the principle of primacy as such, the author nevertheless criticises ‘extensive’ interpretation beyond what was constitutionally ‘envisaged’ by the Member States (see, in particular, pp. 97-101). 10 See, in particular, points 82 to 93 of this Opinion. 11 See judgments of 14 September 2017, Commission v Greece (C‑320/15, EU:C:2017:678, paragraph 21), and of 15 March 2018, Commission v Czech Republic (C‑575/16, EU:C:2018:186, paragraph 105). 12 See points 32 and 39 of this Opinion. 13 See judgment of 20 April 2021, Repubblika (C‑896/19, ‘the judgment in Repubblika’, EU:C:2021:311, paragraph 45 and the case-law cited). 14 See, to that effect, judgment of 21 December 2021, Euro Box Promotion and Others (C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, ‘judgment in Euro Box Promotion and Other’, EU:C:2021:1034, paragraphs 220 and 221 and the case-law cited). 15 See judgments in Repubblika (paragraph 48) and of 29 March 2022, Getin Noble Bank (C‑132/20, EU:C:2022:235, paragraph 88). 16 C‑824/18, ‘the judgment in A.B. and Others’, EU:C:2021:153. 17 Judgment in A.B. and Others (paragraphs 149 and 150). 18 C‑487/19, ‘the judgment in W.Ż.’, EU:C:2021:798. 19 The judgment in W.Ż. (paragraph 161). 20 See section 6.4 of the judgment of 7 October 2021. 21 Judgment of 17 December 1970 (11/70, EU:C:1970:114). 22 Judgment of 22 February 2022 (C‑430/21, ‘the judgment in RS’, EU:C:2022:99). 23 On the relationship between the principle of primacy of EU law and the prinicple of equality, see Kokott, J., and Hummel, D., ‘Der Vorrang des Unionsrechts als Ausdruck des Gleichheitsprinzips ? – Zu einem neuartigen Begründungsansatz der Einschränkung einer Ultra-vires-Kontrolle durch die Gerichte der Mitgliedstaaten’, Europäische Grundrechte-Zeitschrift, 2024, pp. 1-7. 24 The Court has also held that those essential characteristics of the EU legal order and the importance of compliance with that legal order were confirmed by the ratification, without reservation, of the Treaties amending the EEC Treaty and, in particular, the Treaty of Lisbon, as is apparent in particular from Declaration No 17 concerning primacy, annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon, signed on 13 December 2007. This also applies to the Court’s case-law following the entry into force of the Treaty of Lisbon (see judgment in Euro Box Promotion and Others, paragraphs 248 and 250). 25 See judgments in RS (paragraph 52), and of 5 June 2023, Commission v Poland (Independence and private life of judges) (C‑204/21, EU:C:2023:442, paragraph 79). 26 Judgment of 5 June 2023, Commission v Poland (Independence and private life of judges) (C‑204/21, EU:C:2023:442, paragraph 77). 27 Judgment in Euro Box Promotion and Others (paragraph 249). 28 Judgment in Euro Box Promotion and Others (paragraph 252). 29 See judgment in RS (paragraph 70). 30 See judgment of 5 June 2023, Commission v Poland (C‑204/21, EU:C:2023:442, paragraph 72). 31 See judgment of 5 June 2023, Commission v Poland (C‑204/21, EU:C:2023:442, paragraph 73). 32 In particular, according to the Trybunał Konstytucyjny (Constitutional Court), ‘there is no legal basis for the CJEU’s creation of a rule according to which a national court may disregard those legislative amendments and rule on the basis of the previously applicable (repealed) provisions. That approach by the CJEU is tantamount to urging national courts and allowing them to apply a law other than the one adopted by parliament in accordance with the Constitution. That rule is therefore incompatible with the stated review criteria and in particular with Article 8(1) of the Constitution’ (section 8.3 of the judgment of 7 October 2021). The Trybunał Konstytucyjny (Constitutional Court) also held that ‘the rule inferred by the CJEU from the second subparagraph of Article 19(1) and Article 2 TEU, in so far as, in order to guarantee effective legal protection in the fields covered by EU law and the independence of judges, it grants national courts the power to find defects in the process for the appointment of judges and, consequently, to refuse to recognise as a judge a person appointed to that office under Article 179 of the Constitution, is contrary to Article 2, Article 8(1), Article 90(1) and Article 179, read in conjunction with Article 144(3)(17) of the Constitution’ (section 8.4 of the judgment of 7 October 2021). 33 See sections 6.8 and 6.10 of the judgment of 14 July 2021. 34 See Guastaferro, B., ‘Beyond the Exceptionalism of Constitutional Conflicts: The Ordinary Functions of the Identity Clause’, Yearbook of European Law, Vol. 31, No 1, 2012, p. 290. See also Bay Larsen, L., ‘Libres réflexions sur l’équilibre entre égalité des citoyens et diversité constitutionnelle dans la jurisprudence de la Cour relative au principe de primauté’, EUnited in diversity – The Rule of Law and Constitutional Diversity, proceedings of the International Conference in The Hague, the Netherlands, 31 August to 1 September 2023, Court of Justice of the European Union, 2024, pp. 109-120, in particular p. 115 et seq. 35 See judgments of 2 July 1996, Commission v Luxembourg (C‑473/93, EU:C:1996:263, paragraph 35); of 12 May 2011, Runevič-Vardyn and Wardyn (C‑391/09, EU:C:2011:291, paragraph 86); of 16 April 2013, Las (C‑202/11, EU:C:2013:239, paragraph 26); and of 7 September 2022, Cilevičs and Others (C‑391/20, EU:C:2022:638, paragraph 68) (see, in particular on the latter judgment, Lenaerts, K., and Adam, S., ‘Le dialogue préjudiciel entre la Cour de justice et les juridictions suprêmes et constitutionnelles des États membres’, in Mortier, R. et al. (ed.), La Cour de cassation en dialogue / Het Hof van Cassatie in dialoog, Larcier-Intersentia, Brussels, 2024, p. 649). 36 See judgment of 2 June 2016, Bogendorff von Wolffersdorff (C‑438/14, EU:C:2016:401, paragraph 64); see also, even before Article 4(2) TEU was incorporated into EU primary law, judgment of 22 December 2010, Sayn-Wittgenstein (C‑208/09, EU:C:2010:806, paragraph 83), concerning rules on surnames. 37 See judgment of 14 October 2004, Omega (C‑36/02, EU:C:2004:614, paragraph 32). 38 By way of illustration, in a case concerning the organisation of working time, the Court held that the legislation concerned had to be applied in such a way as not to hamper the ability of the armed forces to carry out their missions (judgment of 15 July 2021, Ministrstvo za obrambo (C‑742/19, EU:C:2021:597, paragraphs 43 to 46). See, also, judgments of 12 June 2014, Digibet and Albers (C‑156/13, EU:C:2014:1756, paragraph 34), and of 21 December 2016, Remondis (C‑51/15, EU:C:2016:985, paragraphs 40 to 47), on use by the Court of the division of powers within Member States, as provided for by Article 4(2) TEU, in the field of public procurement and the regulation of games of chance. 39 See also Zinonos, P., ‘Le principe de respect des identités nationales comme garantie systémique des noyaux constitutionnels nationaux’, Identité(s) transnationale(s) de l’Union européenne, Bruylant, Brussels, 2023, p. 533; Faraguna, P., ‘On the Identity Clause and Its Abuses: “Back to the Treaty”’, European Public Law, Vol. 27, No 3, 2021, p. 429. 40 See judgment of 16 February 2022, Hungary v Parliament and Council (C‑156/21, EU:C:2022:97, paragraph 234). 41 See von Bogdandy, A., and Schill, S.W., ‘Overcoming Absolute Primacy: Respect for National Identity Under the Lisbon Treaty’, Common Market Law Review, Vol. 48, No 5, 2011, p. 1430. 42 See judgment in RS (paragraph 71). 43 See judgments of 16 February 2022, Hungary v Parliament and Council (C‑156/21, EU:C:2022:97, paragraph 125), and Poland v Parliament and Council (C‑157/21, EU:C:2022:98, paragraph 143). 44 See judgment of 10 December 2018, Wightman and Others (C‑621/18, EU:C:2018:999, paragraph 65). 45 Concerning Article 49 TEU and the non-regression obligation which it establishes with regard to respect for the values of the European Union by the Member States, see, inter alia, Fartunova-Michel, M., ‘Le renvoi préjudiciel et l’article 19 TUE’, Revue des affaires européennes, No 1, 2023, p. 47 et seq. 46 See judgments of 16 February 2022, Hungary v Parliament and Council (C‑156/21, EU:C:2022:97, paragraph 126), and Poland v Parliament and Council (C‑157/21, EU:C:2022:98, paragraph 144). 47 As early as 1963, Pierre Pescatore described the Court’s complex role in that regard, which combines its function as ‘supreme arbiter’ in the interpretation of EU law with that of an authority attentive to the legitimate interests of the Member States. He thus highlighted that ‘the Court of Justice, in disputes of that kind, must perform and reconcile two functions at the same time: on the one hand, it is the guardian of the interests of all central institutions and of their prerogatives; in that respect, we must, as Europeans, desire a courageous and strong Court of Justice which can impose Community authority on States which have remained sovereign and are all too readily inclined, as such, to take back with the left hand what they conceded with the right hand in signing the European Treaties. However, at the same time, those Member States must find in the same Court of Justice a guarantee of their legitimate interests, a guarantee also of their residual sovereignty, against the attacks of a central authority which could become invasive; in that respect, as citizens of a Member State, we each desire a Court of Justice imbued with that federal spirit which can reconcile the need for unity with a profound respect for the legitimate prerogatives of domestic authorities.’ (Pescatore, P., ‘La Cour en tant que juridiction fédérale et constitutionnelle’, Dix ans de jurisprudence de la Cour de Justice des Communautés européennes, Rapport général au Congrès européen, Cologne, 24-26 April 1963, Carl Heymann Verlag, Cologne, 1963, pp. 520-553, reproduced in Pescatore, P., Études de droit communautaire européen 1962-2007: avec une liste bibliographique complémentaire, Collection droit de l’Union européenne – Grands écrits, Bruylant, Brussels, 2008, pp. 87-88). 48 See judgments in A.B. and Others (paragraph 112) and Commission v Poland (Disciplinary regime for judges) (C‑791/19, EU:C:2021:596, paragraph 55 et seq. and the case-law cited). 49 See judgments in W.Ż. (paragraph 128) and in Repubblika (paragraph 53 and the case-law cited). 50 See judgment of 26 March 2020, Review Simpson v Council and HG v Commission (C‑542/18 RX-II and C‑543/18 RX-II, EU:C:2020:232, paragraph 73 and the case-law cited). 51 See judgment in W.Ż. (paragraph 130 and the case-law cited, as well as paragraphs 152 and 153). 52 See, to that effect, judgment of 29 July 2024, Breian (C‑318/24 PPU, EU:C:2024:658, paragraph 83), referring to the judgment of the Grand Chamber of the ECtHR of 1 December 2020, Guðmundur Andri Ástráðsson v. Iceland (CE:ECHR:2020:1201JUD002637418, §§ 246 and 247). 53 See, in that regard, judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2018:117, paragraphs 38 to 40). 54 The Commission also cites other decisions of that court, as well as the judgment of 7 March 2017, RPO (C‑390/15, EU:C:2017:174), which was delivered in a reference for a preliminary ruling from the Trybunał Konstytucyjny (Constitutional Court). 55 Dz. U. of 2015, item 2129. 56 Dz. U. of 2015, item 2147. 57 Dz. U. of 2015, item 1064. 58 CE:ECHR:2021:0507JUD000490718. 59 More specifically, on 20 December 2016, the general assembly of the judges of the Trybunał Konstytucyjny (Constitutional Court), by six votes, out of the fourteen judges present, selected two candidates: J.P. with five votes and M.M., namely the judge appointed to the Trybunał Konstytucyjny (Constitutional Court) on 2 December 2015 in breach of Article 194(1) of the Constitution, with one vote. 60 In particular, as noted by the Commission, the Trybunał Konstytucyjny (Constitutional Court) also gave rulings as judicial panels which included Judge M.M. in cases directly concerning the legality of the appointment of the three judges of the Trybunał Konstytucyjny (Constitutional Court) (including M.M.) on 2 December 2015, although the Seventh Legislature of the Sejm had already elected other judges (see, for example, judgment of 24 October 2017, K 1/17, Dz. U. of 2017, item 2001, paragraphs 145 to 159, in which the Trybunał Konstytucyjny (Constitutional Court) examined the constitutionality of a provision allowing cases to be assigned to judges of the Trybunał Konstytucyjny (Constitutional Court) irregularly appointed on 2 December 2015 to posts already filled. The application of the Rzecznik Praw Obywatelskich (National Ombudsman, Poland) for the recusal in this case of M.M. and H.C., members of the judicial panel examining the constitutionality of the provision which directly concerned their status, had been dismissed). See also, in that regard, judgment of the ECtHR of 7 May 2021, Xero Flor sp. z o.o. v. Poland (CE:ECHR:2021:0507JUD000490718, § 273).