The Commission has made clear who is entitled to sit on Poland’s Constitutional Tribunal. It has yet to say whether a government may restore judicial independence through contested institutional manoeuvres, and that silence leaves the Union without a standard for repairing a captured court.

Late on Friday 30 October, a notice appeared on the website of Poland’s Constitutional Tribunal. Anna Korwin-Piotrowska, one of the judges the Sejm elected this year, had ordered a one-month break in the official duties of the court’s president, Bogdan Święczkowski, and his deputy, Bartłomiej Sochański, and declared herself acting head, invoking a statutory seniority rule. That evening the Tribunal’s account on X, still run by the old leadership, declared that she was not a judge at all. Riot police deployed to the grounds. Warsaw police said a Tribunal judge had called them there, that they stayed outside the building, and that they detained three protesters who climbed the fence. President Karol Nawrocki abandoned a flight to Senegal, entered the court after midnight, and was filmed forcing his way past Korwin-Piotrowska at the door, an encounter each side describes as an assault by the other. Shortly before 5 a.m. his chief of staff read a statement outside accusing the government of a forcible takeover of a constitutional body.

Brussels responded over the weekend. A Commission spokesperson told several outlets that the Polish authorities must let the Tribunal operate under the national constitution and the case law of the Court of Justice, that electing eight new judges lies within the Sejm’s powers, as the Venice Commission had confirmed, and that Strasbourg had told Poland in May to stop obstructing the judges chosen in March. The Commission also urged Nawrocki to swear those judges in. On Sunday Michael McGrath, the Commissioner for Democracy, Justice and the Rule of Law, restated that substance in a written statement, adding that it is for the Polish authorities to make the Tribunal work, but stopped short of endorsing Friday’s order. Each point reflected a position already established in European legal proceedings. None addressed the confrontation itself: Brussels has issued no formal statement or press release, and its only instruction went to the President.

That omission is the subject of this column. The Commission has set out a clear position on the entitlement of the newly elected judges to take their seats on Poland’s Constitutional Tribunal. It has said nothing about the methods a government may use to seat them or to displace a court’s leadership, and the Union’s credibility on the rule of law now turns on that second question more than the first.

The Legal Case for Restoration Is Strong

Begin with what the government’s defenders get right, because they get a great deal right. The capture of the court is not a partisan allegation. On 18 December 2025 the Court of Justice upheld the Commission’s infringement action in full, finding that irregular appointments, including that of the then president, meant the Tribunal no longer met the EU-law standard of an independent and impartial tribunal established by law. The European Court of Human Rights had questioned the bench’s composition as early as Xero Flor in 2021.

The appointments dispute points in one direction too. In an opinion adopted in October, the Venice Commission found that the head of state may not refuse or delay the oaths of judges elected by parliament, and that those judges may take office without him if he refuses unlawfully. The Tribunal reached that conclusion itself in 2015: in judgment K 34/15 it ruled that the President is obliged to receive a newly elected judge’s oath forthwith. Nawrocki is defying the doctrine of the very institution he now claims to protect.

Strasbourg then went further. Its interim measure in Dziurda and Others required Poland not to hinder four judges elected on 13 March 2026, Korwin-Piotrowska among them, from taking up their duties. Święczkowski kept them out regardless. This weekend four former presidents of the Tribunal, Marek Safjan, Jerzy Stępień, Bohdan Zdziennicki, and Andrzej Zoll, said there is no other route out of the crisis. Read together, these rulings make restoration an obligation under Articles 2 and 19(1) of the Treaty on European Union rather than a political preference. The legal scholar Alberto Alemanno has made exactly that argument, and on the substance he is right.

A Lawful End Does Not License Every Means

The difficulty lies in the step from duty to method. Three questions tangle together here, and they deserve separate answers, because the honest answer differs for each.

The election of the new judges is the clearest of the three. The Sejm chose them within its constitutional powers, the Venice Commission and Strasbourg have backed their right to sit, and the Tribunal’s own 2015 case law obliged the President to swear them in. Their entitlement is contested chiefly on political grounds, although Korwin-Piotrowska still holds her seat under an interim measure, not an appointment the head of state recognises.

The legality of Friday’s order is far less certain. Korwin-Piotrowska built it from two statutes. Article 130 of the law on the common courts allows an immediate break in an ordinary judge’s duties, and she applied it to the Tribunal’s president and vice-president. The Tribunal’s own procedural statute then supplied a successor: Article 12(4) provides that where it proves impossible to authorise the vice-president or another judge to exercise some of the president’s powers, the president is replaced by the judge described in Article 11(2), the one with the longest combined service. The second step stands only if the first does, and the first is disputed. Critics also read the cross-reference to Article 11(2), a provision written for a vacant presidency, as confining the substitute to cases where the post is empty. Whether a rule written for ordinary judges can reach the president of a constitutional court is an open question, and the doubts come from restoration’s allies as well as its opponents: the Helsinki Foundation for Human Rights has questioned the basis, and Alemanno concedes the point remains unsettled. No court has ruled on either question. Even a seat that the Venice Commission and Strasbourg have defended does not carry with it a power to suspend a colleague.

The role of the executive is a distinct matter again. Waldemar Żurek, who serves as both justice minister and Prosecutor General, had asked police on Friday to give the Tribunal’s security special attention, and officers on the grounds kept Święczkowski out, as they did again on Sunday morning. Before Friday night was over, Żurek said he would seek to lift Święczkowski’s immunity from prosecution. The requests he has since filed as Prosecutor General, covering both men, have reached the Tribunal, where the leadership claimed by Korwin-Piotrowska says it will consider them under the applicable rules. The statute leaves that decision to the Tribunal’s General Assembly, which as a general rule adopts resolutions only with at least two-thirds of the Tribunal’s fifteen judges present, and only in the presence of its president. Both conditions are now contested. The judges elected this year number fewer than ten, the others are staying away, and the statute admits to membership those judges who took their oath before the head of state, wording the two camps read differently. If a quorum does form under Korwin-Piotrowska, the judges who sidelined the pair would also rule on whether they can be prosecuted. The old leadership did the mirror image last year, when an assembly chaired by Sochański refused to lift Święczkowski’s immunity. On Saturday evening Donald Tusk told the nation that some matters admit no compromise and that police had protected the Tribunal from its attackers. Even if the order proves sound, an attempted change of a court’s leadership carried out with prosecutors and police in support, and a criminal process opening in parallel, would deserve examination on its own terms.

Run together, these questions blur, and the blur is what Święczkowski’s camp exploits when it speaks of a coup. Friday’s events need not be described as a coup to warrant serious scrutiny. What they established was a method, and methods outlive the people who first use them.

Szymon Hołownia, whose Poland 2050 movement sits in Tusk’s coalition, warned that trying to repair the court by force would only deepen its decline. His unease has company. Maciej Berek, sworn in on 14 October, was until recently the minister coordinating the cabinet’s legislative programme. A government pledged to depoliticise the bench has placed one of its closest officials upon it.

A Toolkit Built for Capture, Silent on Repair

Brussels’ own record explains its reticence. On 29 February 2024 the Commission adopted two decisions that, in its own words, paved the way for Poland to access up to €137 billion in recovery and cohesion funds. They restored eligibility without paying out the money, and they rested largely on reform commitments still to be delivered. On 29 May that year it withdrew its 2017 reasoned proposal, closing the Article 7(1) procedure on the finding that no clear risk of a serious breach remained. Human Rights Watch called the decision premature and warned it could look like favouritism. The paralysis of Poland’s Constitutional Tribunal two and a half years later is the bill for that haste.

Having declared Poland on the mend, the Commission shows little appetite for examining how the mending is done. It built Article 7, the conditionality regulation, and the infringement procedure to restrain governments that dismantle checks on their power. None of them offers a vocabulary for a government that rebuilds those checks by irregular means. The weekend’s remarks filled the vacuum by restating the merits and leaving the procedure unexamined.

Why Poland’s Constitutional Tribunal Is a European Question

Three considerations make this Brussels’ business rather than Warsaw’s alone. First, Luxembourg has already ruled on the Tribunal’s composition. Whatever bench of Poland’s Constitutional Tribunal emerges from this confrontation will decide questions touching the primacy of Union law, so its legitimacy belongs to the Union’s legal order as much as to Poland’s.

Second, judicial cooperation across the Union, from the European Arrest Warrant to the mutual recognition of judgments, rests on trust in national courts. That trust is hard to rebuild on a contested overnight change of leadership broadcast live on television.

Third, and weightiest, Poland holds a parliamentary election in 2027, and any future government will study what this one was allowed to do. The precedent would not stay confined to the Tribunal. A future majority could apply Friday’s template to any court or institution it found inconvenient: a statute borrowed from another body to sideline its head, prosecutors moving the same night, police deciding who passes the gate. That is why the question should trouble even those who share the present government’s aims. If the Commission has said nothing about method, a returning nationalist majority will claim the same latitude in reverse, and Brussels will have surrendered the standing to object. For a decade critics argued that the Union moved too late against capture. The new danger is that it says too little about restoration, and so hands the next captor a precedent bearing a European stamp.

A European Standard for Judicial Restoration

The Commission need not choose between Tusk and Nawrocki. On appointments it has rightly made its choice. What it lacks is a standard for restoration, and four tests would supply one. Any suspension or removal of a judicial office-holder should rest on a statute written for that body, not one borrowed from another. It should be open to review by a court whose own independence is not in question, including through a preliminary reference to Luxembourg. Police should keep public order and play no part in deciding who enters a courtroom. Prosecutors, finally, should not move against judges in step with institutional manoeuvres against them. None of these tests exists as binding law in this form. They are a proposal, but each rests on principles European courts apply today: that a tribunal be established by law, that judges be shielded from pressure by the other branches, and that measures against them be open to independent review. Writing them down would turn principles the Union invokes against captors into a standard it could apply to restorers.

The first test comes on Tuesday 3 November. Korwin-Piotrowska has summoned a General Assembly of the Tribunal’s judges for that day to adopt the court’s draft budget for 2027, a task the statute assigns to the assembly. Święczkowski, in an order dated 31 October that disputes the legal effect of hers, has declared 3 to 6 November paid non-working days for the Tribunal’s staff and says the judges he recognises will stay away. Neither order settles anything by itself, since each draws its force from a claim to the presidency that the other side rejects. The First President of the Supreme Court, Zbigniew Kapiński, who went with Nawrocki to the Tribunal that night, has called an extraordinary assembly of his own court’s judges for Tuesday afternoon to discuss what he describes as threats to the constitutional order and to adopt a resolution. Two practical moves would follow. Brussels could encourage the Parliamentary Assembly’s monitoring committee, which requested the October opinion, or the Polish government itself to seek an urgent Venice Commission opinion on Friday’s order. No one in Brussels can impose such an opinion, and its findings would be advisory, but an independent legal reading would give every side something firmer than assertion. The Commission, for its part, could give the methods of restoration a dedicated chapter in next year’s Rule of Law Report, with Poland’s Constitutional Tribunal as the first full case. Neither step requires a new instrument. Both require the Commission to accept that the rule of law binds its friends as firmly as its opponents.

Poland’s Constitutional Tribunal was captured by procedure bent to political ends. It will not be redeemed by the same habit in better hands. The Union answered the first question in Luxembourg last December. It has yet to answer the second, and Warsaw will not wait.