Poland's Constitutional Crisis: Who Judges the Judges in the European Union?
Independent courts are essential, but who gets to serve as a judge in Poland should be decided by Poles, not by an EU institution that answers to no one. Whoever judges others must be prepared to be judged as well. Events in Warsaw show how member states' sovereignty is quietly shifting to Brussels and Luxembourg: first through court interpretations, then through frozen funds.
Think of the EU as an apartment building. Every resident follows the house rules, but how they arrange their own apartment is up to them. The homeowners' board can step in if someone is tearing down load-bearing walls. What it cannot do is decide who runs the household inside an apartment, or lock the door until the resident complies.
Some will object that a domestic court also rules on disputes with the neighbors under the house rules, so the board must oversee it. But a shared arbiter for such disputes already exists: national courts can ask the EU Court of Justice how to interpret European law, and its answer is binding on them. An arbiter who explains how to read the house rules, however, is not a building manager who decides who gets to sit at the table in someone else's apartment.
On Friday, October 30, 2026, armed police surrounded Poland's Constitutional Tribunal in Warsaw. A judge whom the president had refused to swear in suspended the court's president. President Karol Nawrocki turned his plane around on the way to Senegal and confronted the judges inside the court building that night.
Donald Tusk's government also justifies its actions by pointing to rulings of European courts. This is where a question begins that goes far beyond Poland: who in Europe actually decides who may serve as a judge in a sovereign state? And who judges those who make that call?
A Power That Isn't in the Treaties
When Poland joined the EU in 2004, it signed treaties, not a blank check. The EU operates on the principle of conferral: it has only the powers that member states have expressly given it. Article 4 of the Treaty on European Union even promises that the Union will respect member states' national identities and their fundamental constitutional structures.
Nowhere do the treaties say that Brussels or Luxembourg may review how a country appoints its judges. The EU Court of Justice derived that power on its own. In 2018, in the case of the Portuguese judges, it read into the general provision of Article 19, which requires member states to ensure “effective legal protection,” a right to review the independence of national courts.
This is how powers in the EU are often transferred: not through referendums and signatures, but through interpretation. Citizens never voted on it. It was decided by judges none of us elected.
Who Oversees the Overseer?
The EU Court of Justice also decides where the limits of EU powers lie. When a dispute arises over whether the Union may regulate something, it is an EU institution itself that decides. There is no higher, outside judge.
When Germany's Federal Constitutional Court pushed back against this in 2020, it was called a dispute between courts. When Poland's Constitutional Tribunal did the same, it was called an attack on the EU legal order.
The treaties provide for the EU to accede to the European Convention on Human Rights, and thus to outside oversight by the court in Strasbourg. In 2014, the EU Court of Justice rejected the draft agreement, citing, among other things, its own autonomy. The institution that requires member states' courts to submit to outside review has itself refused outside review.
Meanwhile, an individual citizen has very limited ability to challenge an EU act directly: they must prove it concerns them directly and individually. For most people, that door is closed.
Money as Leverage
When legal arguments weren't enough, the EU reached for money. Over its judicial reforms, Poland was hit with more than half a billion euros in fines, deducted from its EU funds, and money from the recovery fund was frozen. Hungary had around 36 billion euros frozen over rule-of-law violations and corruption.
This money is not a gift. As Hungary's new prime minister, Péter Magyar, put it, EU funds are a reimbursement of the contributions Hungarians pay in. So citizens pay into a common budget, and Brussels withholds their money until their government does what it demands.
Look at the timeline. In Poland, the Commission released up to 137 billion euros in February 2024, just two months after the change of government. The Constitutional Tribunal at the time was exactly the same as before. In Hungary, Magyar won in April 2026; by the end of May he had agreed with Ursula von der Leyen to release 16.4 billion euros, and the first 4.2 billion arrived in September.
It's not only Euroskeptics who have doubts. Even legal experts who champion the rule of law warn that the Commission released Poland's funds too quickly, before the reforms were carried out. It's hard to shake the impression that, in Brussels' eyes, the rule of law improves the moment a government it likes comes to power.
Division at Home
Every outside intervention has consequences inside. Today, half of Poland invokes Luxembourg while the other half invokes the Polish constitution. The government says it is enforcing European rulings. The president says it is a coup. Protesters and police stood in front of the Constitutional Tribunal, and three people were detained.
When one side in a dispute has the power of Brussels behind it and the other has only its own constitution, the dispute is no longer on equal footing. A political fight that voters should settle moves into European courtrooms and budget spreadsheets.
Poland isn't alone. For years, Hungary was split between those who saw Brussels as a savior and those who saw it as a foreign power. Citizens who pay the same taxes and live in the same country are no longer just arguing about politics, but about who their country even belongs to.
Where Does This Road Lead?
Today, the European Commission cannot decide that we all go to war. Under the treaties, defense and national security remain exclusively in the hands of member states, and EU foreign policy requires the consent of every member. Any country can say no.
But twenty years ago, no one would have believed that Luxembourg would rule on who may sit on Poland's Constitutional Tribunal. Powers don't shift all at once but step by step, and each step is presented as necessary and logical.
The steps in defense are already here. In 2024, the EU got its first commissioner for defense. In 2025, it adopted a joint loan program for armaments worth 150 billion euros. There is increasingly loud talk of abolishing unanimity in foreign policy, so that a single country could no longer block decisions, including on Ukraine.
Once unanimity falls, questions of war and peace could be decided by a majority of countries, and the minority would have to fall in line. And if it resisted, the tools are already familiar: proceedings, rulings, and frozen funds.
A Europe of Nations or a Europe of Overseers?
Europe was founded as a community of sovereign states that freely chose to cooperate. In our building, the homeowners' board should never become the owner of every apartment.
Poland does not exist because of the EU. It existed for centuries before it and survived partitions, occupations, and communism. The right of Poles to decide on their own institutions was hard-won.
The question is not whether courts should be independent. They must be. The question is who is called to decide that: the citizens of a country and their institutions, or an institution that answers to no one. Whoever judges others must be prepared to be judged as well.
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