European comparison: how other countries handled disputes over constitutional courts

Level of detail: Basics4 min read

Why compare Poland with other countries

A constitutional court checks whether laws comply with the constitution. In Poland this is the job of the Constitutional Tribunal (the Tribunal). Its judges are elected by the Sejm (the lower house of parliament) and take an oath before taking office. Since 2015 there has been a dispute over who sits on and leads the Tribunal.

Poland is not the only country with a dispute over its constitutional court. We studied twelve European cases from 2003 to 2025; the main ones are described below. For each case we say whether it resembles Poland's fully, partly, or only to a limited extent. We do not say which solution Poland should choose.

Slovakia: the closest case

In 2014 Slovakia's parliament chose six candidates for three vacant seats on the Constitutional Court. Under the constitution, the head of state (President Kiska) appoints judges from among them. He appointed one and refused the other five.

The candidates complained to the Constitutional Court. In 2015 and 2017 it ruled that the President had violated their rights, and in December 2017 it ordered him to appoint three judges. He criticised the ruling but complied. In 2020 Slovakia changed the constitutional rules for electing judges; they apply from 2021.

Other cases

• Albania (2018–2020). After a review of judges' assets and past (vetting), the court could not rule for almost three years. The President refused to take the oath of one judge, disputing how she had been appointed.
• Czechia (2003–2005). The Senate repeatedly rejected the President's candidates; for about 29 months the court lacked a full bench.
• Ukraine (2020–2022). The head of state revoked by decree the appointment of the court's president and of one judge. The Supreme Court held that he cannot withdraw a judge's appointment.
• Hungary (2010–2013). A coalition with two-thirds of the seats enlarged the court from 11 to 15 judges and narrowed its powers.
• Italy, Montenegro, Bulgaria, Spain. Parliaments left seats on courts or judicial councils empty for months or years. In Montenegro the court had too few judges to decide cases. In Poland the Sejm elected no Tribunal judges in 2024–2025.
• Germany (2024). Parliament wrote the court's basic rules into the constitution, added a fallback mechanism and cited the experience of Poland and Hungary.

What sets Poland apart

In no other country studied did parliament elect other people to seats already filled by the previous parliament. In Poland the outgoing Sejm elected five judges on 8 October 2015. On 2 December the new Sejm elected five others, three of them to seats filled in October. The next day, in judgment K 34/15, the Tribunal held that:

• the October election of three judges complied with the Constitution, and the President must take the oath of a judge elected by the Sejm without delay;
• the outgoing Sejm could not, however, elect two judges "in advance" for seats falling vacant in December, during the new Sejm's term.

The head of state (President Duda) did not take the oath of the three October judges. In 2026 the Tribunal held in judgment K 3/26 that the President has no duty to take the oath. Its bench included two people elected to seats held filled in K 34/15, and the government does not treat the judgment as binding.

In 2021 the European Court of Human Rights (ECtHR) found that benches of the Tribunal including one of the three people elected in December 2015 were not a "tribunal established by law". In 2025 the Court of Justice of the European Union (CJEU) found that the Tribunal does not meet the requirements of an independent and impartial tribunal established by law. The Tribunal disputes these findings. In judgment K 6/21 it held that the Convention cannot let the ECtHR assess the election of its judges; it says the CJEU lacks jurisdiction. No other country studied faced such judgments.

Governments have also not published Tribunal judgments. In 2016 Beata Szydło's government did not publish K 47/15, arguing that the Tribunal had bypassed a new Act's procedure. Since 2024 Donald Tusk's government has published none, treating the Tribunal in its current composition as an "unauthorised body".

Why it matters to citizens

Anyone's case can reach a constitutional court, for example through a constitutional complaint. When the court cannot rule, cases wait. When its composition is challenged, the status of its rulings becomes disputed too.

Level of detail: For followers11 min read

How to read this comparison

The research note behind this page covers twelve European disputes over constitutional courts between 2003 and 2025, plus the Icelandic case of Ástráðsson, which does not concern a constitutional court but is the source of the European Court of Human Rights (ECtHR) standard later applied to Poland's Constitutional Tribunal (the Tribunal).¹ For each case we assess comparability with Poland ("yes", "partly", "no") and give reasons; this research classification has no legal effect. Only Slovakia 2014–2017 is fully comparable: the head of state refused to appoint candidates chosen by parliament, and the dispute was settled through legal channels.^2,3

Slovakia 2014–2017 and 2019

Under Article 134(2) of the Slovak Constitution, judges of the Constitutional Court (Ústavný súd) are appointed by the President from candidates put forward by the National Council (Slovakia's parliament), which proposes twice as many candidates as there are seats.⁴

• On 3 April 2014 the National Council chose six candidates for three vacancies; on 2 July 2014 President Kiska appointed only Jana Baricová and refused the other five.^2,4
• On 17 March 2015 the court's Third Senate (III. ÚS 571/2014) held that the refusal violated three complainants' right of equal access to public office and ordered the President to reconsider, but did not order an appointment.^5,4
• On 6 December 2017 the First Senate quashed the refusals and ordered the appointment of three judges from among the proposed candidates.³
• On 13 December 2017 President Kiska swore in J. Laššáková, M. Mamojka and M. Duriš; he criticised the ruling but complied. The dispute lasted about 41 months, with the court sitting with 10 of 13 judges.²

In 2019, after 9 of 13 terms expired, the National Council took months to choose candidates, and until the end of May the court sat with 7 of 13 judges.⁶ Constitutional Act No. 422/2020 (mostly in force since 1 January 2021) introduced election by three-fifths of all members, falling to an absolute majority in later rounds; an open vote after a public hearing; a power for the President to appoint judges from candidates already chosen if parliament misses its deadline; and judges staying in office until their successor takes the oath.⁷

Albania 2018–2020

• Albania's Constitutional Court could not rule from March 2018, after judges left in the vetting process, until new appointments gave it the statutory quorum.⁸
• In opinion CDL-AD(2020)010 of 19 June 2020, the Venice Commission (European Commission for Democracy through Law, an advisory body of the Council of Europe whose opinions are not binding) found that an appointment deemed made "by presumption" after the President's inaction should not be treated as valid while the President contested the procedure, and that the refusal to take Arta Vorpsi's oath was justified.^9,10,11
• The Commission considered her attempt to take the oath before a notary defective, because an oath before the President is a constitutional precondition for taking office.^9,11
• On 23 December 2020 President Meta appointed the sixth of nine judges, making the court functional again.¹²

Czechia 2003–2005

Czech Constitutional Court judges are appointed by the President with the Senate's consent (Article 84 of the Constitution); according to a secondary source, between 2003 and 2005 the Senate rejected several of President Klaus's candidates, including Václav Pavlíček.¹³ The dispute ended politically, with a full bench in December 2005, no court ruling and no constitutional amendment.^14,13

Ukraine 2020–2022 and Moldova 2019

• On 27 October 2020 the Constitutional Court of Ukraine (CCU), in judgment No. 13-r/2020, struck down among other things the provision on false asset declarations; the Venice Commission found the reasoning incomplete and unpersuasive, but said the judgment had to be implemented and the court could not be punished for its decisions.^15,16,17
• On 27 March 2021 President Zelensky, by decree No. 124/2021, revoked the 2013 appointments of the CCU's president, O. Tupytskyi, and Judge Kasminin; according to Verfassungsblog, both Tupytskyi and the deputy chair, S. Holovaty, issued orders.¹⁸
• On 14 July 2021 the Cassation Administrative Court of the Supreme Court held the decree contrary to law and annulled it; the Grand Chamber held that the appointment act had been "exhausted" when the oath was taken.^19,18
• In Moldova in June 2019 the Constitutional Court suspended President Dodon and enabled the dissolution of parliament, then revoked those rulings, after which all its judges resigned; the Venice Commission found that the court had not respected its own procedures.^20,21

Hungary 2010–2013 and Romania 2012

• In Hungary, from 2010 the majority could elect judges without the opposition's consent, in 2011 the court was enlarged from 11 to 15 judges, and 11 of the 15 were elected by the votes of the Fidesz-KDNP coalition alone; the Fundamental Law restricted review of budget and tax laws and repealed the court's earlier decisions.^22,23
• The Venice Commission (CDL-AD(2013)012) found that repealing earlier case law breaks the continuity of principles, and that writing into the constitution rules previously struck down by the court threatens its role.^24,25
• In Romania, Emergency Ordinance GEO 38/2012 took away the Constitutional Court's (CCR) power to review parliamentary resolutions; the CCR held the law approving it unconstitutional (decision No. 738 of 19 September 2012).^26,27

Long vacancies: Italy, Montenegro, Bulgaria, Spain

• In Italy parliament elects 5 of the 15 judges by two-thirds, and by three-fifths from the fourth ballot; the seat left by S. Sciarra on 11 November 2023 was filled on 13 February 2025, at the 14th attempt, when the court was already at its statutory minimum of 11 judges.^28,29
• In Montenegro (two-thirds, then three-fifths in a second vote) the court had no quorum from September 2022; on 27 February 2023 parliament elected three judges with 77 of 81 votes.^30,31,32
• In Bulgaria two seats from parliament's quota were vacant from 2021 to January 2024; on 9 July 2024 the Constitutional Court ruled that the new judges would complete the original term rather than start a new nine-year one.^33,34
• In Spain the mandate of the General Council of the Judiciary (CGPJ) stayed expired for more than five years, until a PSOE–PP agreement of 25 June 2024 reached with the European Commission's involvement.^35,36,37

Germany 2024–2025

• On 19 December 2024 the Bundestag adopted an amendment to Articles 93 and 94 of the Basic Law (600 to 69), and the Bundesrat consented on 20 December; the constitution now sets, among other things, 16 judges, a 12-year term, an age limit and the binding force of decisions, while the two-thirds requirement for elections stayed in statute.^38,39,40
• The fallback: if the competent body does not elect a judge within three months of a proposal by the court's plenary, the choice passes to the other body; the reasons given cited the experience of Poland and Hungary.³⁸
• On 25 September 2025 the Bundestag elected three judges without the fallback being triggered.^41,42

Mechanisms and their documented effects

The table sets out the mechanisms discussed and what actually happened; it does not indicate which would suit Poland.^29,38,7

Poland as a point of reference

• On 8 October 2015 the 7th-term Sejm elected five judges, and on 2 December the 8th-term Sejm elected five other people. The next day, in K 34/15, the Tribunal held Article 137 of the 2015 Act consistent with the Constitution for the three seats vacated on 6 November and inconsistent for the two vacated in December (a Sejm cannot elect "in advance" to seats falling vacant in the next term), and held that the President must take the oath without delay.^43,44
• The President took the oath of none of the five people elected on 8 October.⁴⁵ In K 3/26 of 12 May 2026 the Tribunal – on a bench including two people elected to seats held filled in K 34/15 – held Article 4(1) of the Status Act unconstitutional insofar as read as obliging the President to take the oath; the government does not treat the judgment as binding.^46,47,48
• In March 2016 the Venice Commission – according to Demagog and Polish Wikipedia – said the conflict originated in actions of the previous-term Sejm and called for respect of the Tribunal's judgments.^49,50 In October 2016 it stated that, since the Tribunal had found the October election valid, there were no vacancies for the December election, and that publishing K 47/15 was indispensable to resolving the crisis.⁵¹
• In 2016 Beata Szydło's government did not publish K 47/15, arguing that the Tribunal had bypassed the procedure of the Act of 22 December 2015; it was published in 2018.^52,53 Since 2024 Donald Tusk's government has published no Tribunal judgments, and Council of Ministers Resolution No. 162 rules out publishing documents of an "unauthorised body"; in December 2024 the Venice Commission recommended publication, possibly annotated (as reported by Deputy Minister D. Mazur).^54,48,55
• In 2024–2025 the Sejm elected no Tribunal judge: according to Rzeczpospolita, in November 2024 nobody, PiS included, nominated candidates in time; according to the Chancellery of the Sejm, opposition MPs nominated Marek Ast and Artur Kotowski, who did not win support; Minister Adam Bodnar said filling the vacancies would legitimise the Tribunal's questionable functioning.^56,57,58
• In opinion CDL-AD(2026)031 the Venice Commission – according to TVN24 and Interia – found that the President should take the oath without delay and cannot review the election, and recommended that, if he refuses or delays, the oath be possible without his physical presence; the Commission's opinions are not binding.^59,60 The Constitution does not mention Tribunal judges' oath; statute provides for it, as the Tribunal also accepted in K 3/26.^61,46

European courts and constitutional courts in flawed compositions

• The standard comes from the ECtHR Grand Chamber judgment in Guðmundur Andri Ástráðsson v. Iceland of 1 December 2020: a manifest breach of domestic law, a breach of a fundamental rule of the appointment procedure, and no effective domestic review.¹
• In Xero Flor w Polsce sp. z o.o. v. Poland (no. 4907/18) of 7 May 2021, the ECtHR found that a bench of the Tribunal including one of the three people elected by the 8th-term Sejm in December 2015 to seats already filled was not a "tribunal established by law"; the judgment did not decide the fate of the Tribunal's earlier rulings.^1,62
• Supervising execution of that judgment, the Committee of Ministers of the Council of Europe called in December 2023 – according to the Secretariat's notes – for the judges elected in October 2015 to be allowed to sit, the irregularly elected persons to be excluded and the status of decisions taken with their participation to be regularised.⁶³
• The Court of Justice of the European Union (CJEU), in its judgment of 18 December 2025 (C-448/23 Commission v. Poland), found that because of the election of three judges in December 2015 and the appointment of the President of the Tribunal in December 2016, the Tribunal does not meet the requirements of an independent and impartial tribunal previously established by law.⁶⁴
• In May 2026, in Dziurda and Others v. Poland (no. 17392/26), the ECtHR applied an interim measure: the authorities are not to obstruct the four applicants, elected by the Sejm on 13 March 2026, from taking up and performing their duties; the Tribunal's spokesperson stated that the ECtHR has no competence in the matter.^65,66
• The Tribunal disputes these rulings. In K 6/21 of 24 November 2021 (on the Prosecutor General's application) it held Article 6(1) of the Convention unconstitutional insofar as it treats the Tribunal as a "court" and allows the ECtHR to review the lawfulness of the election of Tribunal judges; to C-448/23 it replied – according to the European Commission's 2026 report – that the CJEU has no jurisdiction and that the judgment does not affect its functioning.^67,68
• In none of the other countries studied did the ECtHR or the CJEU question a constitutional court's composition; in Slovakia the court itself settled the dispute, and in Albania the court did not rule without a quorum.^2,8

Comparability table

Level of detail: Expert33 min read

Scope, sources and method

The research note (as of 31 October 2026) covers twelve cases: Slovakia, Albania, Czechia, Hungary, Romania, Spain, Italy, Bulgaria, Montenegro, Germany, Ukraine and Moldova, and in addition Ástráðsson v. Iceland, which it classifies not as a constitutional-court case but as the source of the standard later applied to Poland's Constitutional Tribunal (the Tribunal).¹ The comparability assessment ("yes", "partly", "no/limited") is a research classification with no legal effect; the note treats only Slovakia 2014–2017 as fully comparable.^2,3

The server of the Venice Commission (an advisory body of the Council of Europe whose opinions are not legally binding) was unavailable during the research; the content of its opinions was reconstructed from Council of Europe press releases, a mirror copy of the full text of CDL-AD(2012)026, and the official Polish translation of the opinion of 14 October 2016 published by the Tribunal.^4,5,6 Data on Czechia and Moldova come partly from Wikipedia as a secondary source, and paragraph numbers that could not be checked against the source texts are omitted.^7,8

Slovakia: rules, rulings, reform

Legal basis of the dispute

Article 134(2) of the Slovak Constitution, as worded before 2021, provided that the President appoints judges of the Ústavný súd on a proposal from the National Council, which puts forward twice as many candidates as there are seats; Article 102(1)(s) gives the President the power of appointment, and Article 30(4) guarantees access to public office on equal terms and formed the basis of the candidates' complaints.⁹

Chronology of the rulings

By resolution of 3 April 2014 the National Council chose six candidates for three vacancies (Volkai, Fulcová, Bernát, Duriš, Sopoliga, Baricová); on 2 July 2014 President Kiska appointed only Jana Baricová.^2,9

By a nález (finding) of 17 March 2015 (III. ÚS 571/2014), the Third Senate held that the decision of 2 July 2014 violated the complainants' (Fulcová, Sopoliga, Duriš) rights under Article 30(4), quashed it and ordered the President to reconsider, without ordering an appointment; the senate's presiding judge, R. Tkáčik, dissented.¹⁰ Judge L. Mészáros later pointed out that a senate ruling binds only the parties to the proceedings (inter partes).⁹

In May 2015 the President maintained that 40 days on he had still not received the ruling; the court's president, Macejková, set its dispatch for 13 May 2015.¹⁰

By a plenary resolution of 28 October 2015 (PL. ÚS 45/2015), the court rejected the President's request for an interpretation of whether a candidacy lapses after a final refusal; in its reasoning the majority said the President could and should revoke the refusals concerning two candidates (Bernát, Volkai) and choose two judges from the five remaining candidates.^9,11 The judge rapporteur, Mészáros, dissented, taking the view that the candidacies had lapsed and that the majority's suggestion went beyond the scope of Article 127 of the Constitution.⁹

On 2 December 2015 the National Council chose two further candidates (Mamojka, Laššáková); the President still appointed no one and refused again in 2016.^2,3

By a nález of 6 December 2017, the First Senate, ruling on complaints lodged on 5 and 13 September 2016 and joined by the plenary on 12 October 2016, held that the President had violated the rights of the candidates (Bernát, Duriš, Fulcová, Sopoliga, Laššáková), quashed the refusals and ordered the appointment of three judges from among the proposed candidates; the President was represented by J. Mazák, and the Venice Commission, which the President had consulted, did not give a clear answer.³

On 12 December 2017 President Kiska announced his decision, and on 13 December 2017 he took the oath of J. Laššáková, M. Mamojka and M. Duriš, criticising the ruling but complying with it; the Speaker of the National Council, Danko, protested that Laššáková and Mamojka had been candidates for the same vacancy.² The dispute lasted from July 2014 to December 2017 (about 41 months), and throughout that time the court worked with 10 of its 13 judges.²

The 2019 crisis

In mid-February 2019 the terms of 9 of the 13 judges expired; the National Council was due to choose 18 candidates but failed to do so for months; around April 2019 President Kiska appointed three judges from eight candidates, saying he was acting in a state of emergency, and declined further appointments until ten candidates were put forward, so that until the end of May the court worked with 7 of 13 judges.¹²

Constitutional Act No. 422/2020

The reform (mostly in force since 1 January 2021) introduced:¹³

• Article 84(5): electing a candidate requires the consent of at least three-fifths of all members, and if the required number is not elected in a repeat vote either, an absolute majority suffices in subsequent votes;¹³
• Article 134(2): the National Council votes openly after a public hearing; if it does not choose the required number of candidates within two months of a term's expiry (six months for other vacancies), the President may appoint judges from candidates already chosen;¹³
• Article 134(3): the term is 12 years, and a judge remains in office until the successor takes the oath;¹³
• Article 138(3): an age limit of 72, which under Article 154g(2) does not apply to judges appointed by 31 December 2020;¹³
• Article 125(4): the court does not rule on whether a constitutional act complies with the constitution;¹³
• Article 154g(9): terms staggered in groups of 4/4/5 (ending in 2037, 2041 and 2045).¹³

Albania: paralysis after vetting and opinion CDL-AD(2020)010

Albania's Constitutional Court (Gjykata Kushtetuese) lost its ability to rule from March 2018, after judges resigned or were dismissed in the vetting process, and regained it once two new members were appointed, providing the necessary statutory quorum.¹⁵

Venice Commission opinion CDL-AD(2020)010, adopted on 19 June 2020 at the request of parliament and the President, states, according to the Council of Europe press release and Exit.al, that:^4,16,17

• the 2016 constitutional model had been interpreted correctly by the Assembly, but could not function with an exceptional number of vacancies after vetting and a lack of cooperation between institutions;^4,16
• an appointment deemed made "by presumption", after the President's inaction, should not be treated as valid while the President contested the interpretation of the procedure;^4,16
• the refusal to take Arta Vorpsi's oath was justified, and her attempt to take the oath before a notary was defective, because an oath before the President is a constitutional precondition for taking office;^4,16
• the President, the Assembly and the Supreme Court should agree on an interpretation, the model should be simplified by abolishing the sequencing rule, and judges should receive full nine-year mandates.⁴

On 22 December 2020 Altin Binaj, elected by parliament, took the oath, and on 23 December President Meta appointed Përparim Kalo, the sixth of nine judges; the Justice Appointments Council (KED) had sent the President two candidates and parliament one, which was alleged to breach the requirement of three-person lists.¹⁸ The US and EU ambassadors welcomed the unblocking of the court as meeting a condition for opening accession negotiations.¹⁸

Cross-reference: opinion CDL-AD(2026)031

On 13 October 2026 the Venice Commission published an opinion on the powers of Poland's President of the Republic in the context of the oath-taking of the Tribunal's judges and other judicial appointments (CDL-AD(2026)031); the full text could not be retrieved.²² According to TVN24 and Interia, the opinion (Opinion No. 1294/2026) was adopted on 9 October 2026 at the request of the Monitoring Committee of the Parliamentary Assembly of the Council of Europe.^23,24 According to the same reports, the Commission described the President's role in the oath as ceremonial, said he should take the oath without delay and may not review the election, and recommended that, where he refuses or delays, the oath be made possible without his physical presence, while preserving the prescribed form, proper verification and service on the President; the Commission's opinions, like the one on Albania, are not binding.^23,24

The President's spokesman, R. Leśkiewicz, said the opinion has no legal force, while W. Żurek said the President has no right of veto over the Tribunal's judges elected by the Sejm.²⁴

Czechia 2003–2005

According to an encyclopaedic (secondary) source, Article 84 of the Czech Constitution provides for 15 judges with ten-year terms, appointed by the President with the Senate's consent, while the plenary requires at least 10 judges present and striking down a statute requires at least 9 votes.⁷

The court was incomplete from July 2003 to December 2005; the Senate rejected President Klaus's candidates Aleš Pejchal (twice, including on 10 September 2003), Václav Pavlíček (22 of 76 votes), Vladimír Balaš (30 of 78), Klára Samková (29 of 77) and Milan Galvas (25 of 70); the President criticised the Senate's position, and the Senate said it had not been consulted.⁷

On 7 May 2004 the court had four vacancies, and after J. Malenovský left for Luxembourg it had 10 judges; its president, Rychetský, said the plenary could not decide more complex cases, and the President had made 14 nominations since taking office.²⁵ On 20 May 2004 Mejstřík, quoted by epravo.cz, said the court had been incomplete for 15 months.²⁶

The resolution was purely political: the President put forward candidates acceptable to the Senate (2004: Židlická, Balík, Janů; 2005: Kůrka and Formánková), and the bench was complete in December 2005, after about 29 months, with no court ruling and no constitutional amendment.^27,7

Ukraine 2020–2022

On 27 October 2020 the Constitutional Court of Ukraine (CCU), in judgment No. 13-r/2020, struck down among other things Article 366-1 of the Criminal Code (false asset declarations) and the powers of the NAZK to verify declarations; President Zelensky convened the National Security and Defence Council.²⁸

The Venice Commission's urgent opinion on the reform of the CCU (CDL-AD(2020)039), published on 10 December 2020 at the President's request of 25 November 2020, found the judgment's reasoning incomplete and unpersuasive and pointed to the failure to deal with motions to recuse judges; at the same time it stated that the rule of law required the judgment to be implemented and that "The Constitutional Court cannot be 'punished' for its decisions".^29,30 The Commission recommended changes to the law on the CCU concerning its working methods; the detailed recommendations were not verified.²⁹

According to S. Lashyn (Verfassungsblog), at the end of 2020 the President suspended the CCU's president, O. Tupytskyi, in connection with criminal proceedings, and by decree No. 124/2021 of 27 March 2021 revoked President Yanukovych's 2013 decrees appointing Tupytskyi and Kasminin, citing national security in the preamble.³¹ Security staff barred Tupytskyi from the building, the deputy chair, S. Holovaty, took over day-to-day management, both issued orders and the secretariat registered both sets; on 17 August 2021 decree No. 365/2021 announced a competition for the "vacancies".³¹

According to the same author, Article 149-1 of the Constitution of Ukraine contains a closed list of grounds for ending a CCU judge's mandate early, including dismissal by the CCU itself by a two-thirds majority for a disciplinary offence, and gives the President no power of dismissal.³¹

On 14 July 2021 the Cassation Administrative Court of the Supreme Court held decree 124/2021 contrary to law and annulled it; the Grand Chamber dismissed the President's appeal, holding that the appointment decree (No. 256/2013 of 14 May 2013) was an individual act that had been "exhausted" when the oath was taken on 15 May 2013, and that the President, who appoints six judges, cannot withdraw that appointment.^32,31

Moldova 2019

According to a secondary source, on 7 June 2019 Moldova's Constitutional Court ruled that, absent a government formed within 90 days of the validation of the election, new elections were required; on 9 June it suspended President Dodon and designated P. Filip as acting president, who dissolved parliament; on 15 June the court revoked its own rulings of 7–9 June, on 20 June its president, Mihai Poalelungi, resigned, and on 26 June all judges announced their resignation.⁸

In an opinion adopted on 21 June 2019 at the request of the Secretary General of the Council of Europe, the Venice Commission stated that on 7–8 June 2019 the conditions for dissolving parliament had not existed and that the court had respected neither its own procedures nor the equality of the parties; in its view a constitutional court should keep an equal distance from all branches of power.³³

Hungary 2010–2013

According to the Hungarian Helsinki Committee, in 2010 the nomination procedure was changed so that the majority could elect judges without the opposition (whose consent in the nominating committee had previously been required), in 2011 the court was enlarged from 11 to 15 judges, and in 2012–2013 the term was extended from 9 to 12 years and the age limit of 70 abolished; 11 of the 15 judges were elected by the votes of the Fidesz-KDNP coalition alone.³⁴ A study of 23 cases by three NGOs (the Eötvös Károly Institute, HHC and HCLU), published on 25 March 2015, reports that before judges elected by the coalition's votes alone formed a majority all 10 decisions went against the government, and afterwards 10 of 13 went in its favour.³⁴

The Fundamental Law provides that the court may review it and its amendments only on procedural grounds (Article 24(5)–(6)); that its 15 members are elected by parliament by a two-thirds majority for 12 years, and that parliament also elects its president (Article 24(8)); that while public debt exceeds 50% of GDP, budget and tax laws may be struck down only for violating listed rights (Article 37(4)); and that decisions of the court taken before its entry into force are repealed, without prejudice to their effects (Closing Provisions, point 5).³⁵

Venice Commission opinion CDL-AD(2013)012 on the Fourth Amendment (95th plenary session, 14–15 June 2013) states that repealing earlier case law breaks the continuity of principles, that systematically blocking review by writing into the constitution rules previously struck down threatens the court's role as guardian of the constitution, that the restrictions in budget matters were maintained, and that the governing majority treats the constitution instrumentally; paragraph numbers were not verified.^36,37

Romania 2012

According to Venice Commission opinion CDL-AD(2012)026 (93rd plenary session, 14–15 December 2012), Government Emergency Ordinance GEO 38/2012 took away the Constitutional Court's (CCR) power to review parliamentary resolutions, at a time when a law with the same content was already before the CCR.^5,38 In decision No. 727 of 9 July 2012 the CCR described this as "unconstitutional and abusive behaviour towards the Constitutional Court", and in decision No. 738 of 19 September 2012 it held the law approving the ordinance unconstitutional.⁵

GEO 41/2012, published on 5 July 2012, abolished the turnout threshold in a referendum on removing the President, but the CCR, in decision No. 731 of 10 July 2012, upheld the quorum requirement; on 6 July 2012 parliament suspended President Băsescu, giving the CCR 24 hours for an advisory opinion.⁵ In the referendum of 29 July 2012, 87.52% of voters backed removal, but turnout fell short of the threshold, and the CCR, by Hotărârea (decision) No. 6 of 21 August 2012, declared the referendum invalid.⁵ In the same period the Ombudsman was dismissed (resolution No. 32 of 3 July 2012), as were the presidents of both chambers, and there were public calls to dismiss CCR judges (§§ 61–66 of the opinion).⁵

Italy, Montenegro, Bulgaria, Spain: long vacancies

Italy

Article 135 of the Italian Constitution provides that 5 of the 15 judges are elected by parliament in a joint sitting; Article 3 of Constitutional Law No. 2/1967 requires two-thirds of members in the first three ballots (403 of 605) and three-fifths from the fourth (363); a statute requires at least 11 judges for the court to sit (the provision number was not verified).^40,41

S. Sciarra's term expired on 11 November 2023; on 24 July 2024 President Mattarella called the delay a "vulnus alla Costituzione"; by 19 September 2024 six ballots had failed, and in December 2024 the terms of Barbera, Modugno and Prosperetti expired, leaving four vacancies and a bench at the statutory minimum.⁴¹ On 13 February 2025, at the 14th attempt, F. S. Marini (500 votes), R. Cassinelli (503), M. Luciani (505) and M. A. Sandulli (502) were elected, and they took the oath on 19 February 2025.^40,42,43

Earlier precedents: in 2015, three vacancies, 30 failed ballots and an election on 16 December 2015, with the court close to the minimum of 11 and kept above it by prompt appointments by President Napolitano; in 2008, an election at the 21st ballot after about 18 months; in 2002, 17 months and 11 ballots; in 1995–1997, up to 20 months; and the longest, more than 20 months, in 2016–2018 (election on 19 July 2018).⁴¹

Montenegro

Article 91 of Montenegro's Constitution requires, for electing judges, two-thirds of all members in the first vote and three-fifths in the second, held no earlier than a month later; Article 153 provides for seven judges with 12-year terms (two proposed by the President, five by a parliamentary committee after a public call), and the court's president is elected by the judges for three years.⁴⁴

According to Freedom House, the court lost its quorum in mid-September 2022, with three of seven judges; as a result electoral complaints (Podgorica, Zeta) went unheard, the constitution of local authorities was blocked and laws went unreviewed, while the EU made accession progress conditional on unblocking the court.⁴⁵ On 27 February 2023 parliament elected three judges (D. Đuranović, S. Armenko, M. Tesić) with the votes of 77 of 81 members, a fourth candidate failed to obtain two-thirds, and the bench was complete in November 2023, when about 3,000 constitutional complaints were pending.^46,47

Bulgaria

Bulgaria's Constitutional Court has 12 judges serving nine-year terms without re-election; four each are chosen by the National Assembly, the President and a joint assembly of judges of the two supreme courts, and four judges are replaced every three years.⁴⁸ Two seats from parliament's quota were vacant from 2021; on 19 January 2024 the National Assembly elected D. Atanasova and B. Belazelkov to them for nine years.^49,48

On 9 July 2024 the court, on a request from President Radev and a group of opposition members, annulled the part of parliament's resolutions setting a nine-year term – the new judges will serve out the remainder of the term, to 2030; it rejected the request to annul the election itself (on grounds of alleged political bias and lack of qualifications), holding that assessing qualifications is solely a matter for the electing body.^50,51 After K. Penchev's mandate expired on 12 November 2024 the court sat with 11 judges; on 15 November 2024 the judges unanimously elected P. Panova to a second term as president, and on 27 March 2025 Orlin Kolev, elected by parliament to Penchev's seat, took the oath after a vacancy of about 4.5 months.^48,52,53

Spain

The mandate of the General Council of the Judiciary (Consejo General del Poder Judicial, CGPJ) remained expired for more than five years, from December 2018; on 25 June 2024 PSOE and PP reached an agreement in Brussels, with European Commission Vice-President V. Jourová taking part, on the immediate renewal of the CGPJ in line with the Commission's Rule of Law Reports of 2022–2023, a package that also covered filling a vacant seat on the Constitutional Court.⁵⁴

By order ATC 177/2022 of 19 December 2022, issued on an amparo appeal (No. 8263/2022) lodged by PP members, the Court's plenary, relying on Article 56(6) of the Organic Law on the Constitutional Court (exceptional urgency), suspended the Senate's handling of amendments Nos. 61 and 62 to an organic bill, which would have changed how the Court's judges chosen by the CGPJ are selected; the reasons given were the amendments' lack of homogeneity, the merely declaratory effect of a later amparo, and the possibility for the Cortes to adopt the changes by another route.^55,56 The order was adopted 6–5; according to EFE, it was the first time in more than 40 years that the Court had suspended a legislative procedure, and the Senate passed the law without the challenged amendments.⁵⁷

Germany: the December 2024 Basic Law amendment and the 2025 elections

The bills amending Articles 93 and 94 of the Basic Law (Drucksache 20/12977) and the Federal Constitutional Court Act (BVerfGG) with an accompanying act (Drucksache 20/12978) were tabled by the SPD, CDU/CSU, Greens and FDP; the first reading took place on 10 October 2024 and a hearing on 13 November 2024, and the Legal Affairs Committee's report is Drucksache 20/14302.^58,59 In the roll-call vote of 19 December 2024, 600 members voted in favour, 69 against and none abstained (the two-thirds threshold was 489); the AfD voted against.^58,59

The new Article 93 anchors the court's status as a constitutional organ, two senates of eight judges, a 12-year term, an age limit, a bar on re-election and the court's autonomy over its rules of procedure, while Article 94 sets out its powers and the binding force of its decisions; half of the judges are elected by the Bundestag and half by the Bundesrat, and the two-thirds requirement stayed, at the CDU/CSU's request, in the BVerfGG.⁵⁸

Under the fallback mechanism, if the competent body does not elect a successor within three months of a proposal by the court's plenary (which may make proposals after two months – § 7a BVerfGG), the choice passes to the other body; the reasons given were the experience of Poland and Hungary and, in the words of Lindholz (CDU/CSU), the risk of a one-third minority in the Bundestag blocking elections.⁵⁸ The Bundesrat consented on 20 December 2024, with Brandenburg abstaining; according to LTO, the aim was protection against "extremistischen Bestrebungen" (extremist endeavours).⁶⁰

On 11 July 2025 the Bundestag took the election of three judges off its agenda after part of the CDU/CSU opposed the SPD's candidate, F. Brosius-Gersdorf; under § 7a BVerfGG, once the deadline passes, the oldest member of the election committee asks the court for non-binding proposals (three per seat), and three months after the proposals the Bundesrat may elect instead, also by two-thirds.⁶¹ On 25 September 2025 the Bundestag, by secret ballot, elected Sigrid Emmenegger (446 votes), Ann-Katrin Kaufhold (440) and Günter Spinner (424), with a threshold of 409 of 613 votes cast; the CDU/CSU–SPD coalition together with the Greens holds 413 seats, seven short of two-thirds of the total, and Spinner was first on the court's list of proposals of May 2025.⁶²

Mechanisms: an overview of documented effects

Poland as the reference point: the Venice Commission in 2016 and 2024

The March 2016 opinion CDL-AD(2016)001 called on the majority and the opposition to find a solution fully respecting the Tribunal's judgments; according to Demagog and Polish Wikipedia, the Commission also said in it that the conflict originated in actions of the previous-term Sejm.^64,6,65,66 Opinion CDL-AD(2016)026 of 14–15 October 2016 noted that the President had refused to take the oath of the three judges elected in October 2015 while taking it from the persons elected in December 2015 (§§ 103–107), that full implementation of the judgment of 3 December 2015 would have meant admitting the October judges to the Tribunal, which did not happen (§ 104), and that since the Tribunal had held the October election valid, there were no vacancies for the December election (§ 107).⁶

In the same opinion the Commission stated that replacing all the judges would breach European standards even with a constitutional majority (§ 14), that the mechanism for choosing the President of the Tribunal gave the President of the Republic "excessive leverage" (§§ 26–31), that the validity of a judgment cannot depend on the executive or the legislature (§ 77), that judgments take effect when delivered regardless of publication (§ 99), and that publishing judgment K 47/15 was essential to resolving the crisis (§ 19).⁶

In opinion CDL-AD(2024)035 (6–7 December 2024), prepared at Minister Adam Bodnar's request on the 2024 bills, the Commission – as reported by Deputy Minister Dariusz Mazur – opposed ending the terms of all judges and recommended ending by statute the terms of persons elected to occupied seats, leaving properly elected judges to the end of their terms and publishing judgments with an annotation.^67,68,69

The ECtHR, the CJEU and the Committee of Ministers on courts in flawed compositions

The standard is set by the ECtHR Grand Chamber judgment in Guðmundur Andri Ástráðsson v. Iceland (no. 26374/18) of 1 December 2020, concerning a court of appeal (Landsréttur) where the minister departed from the evaluation committee's list and parliament voted on the candidates en bloc; the ECtHR set a test of a manifest breach of domestic law, a breach of a fundamental rule of the appointment procedure, and no effective domestic review and remedy (paragraph numbers not confirmed in HUDOC).¹

In Xero Flor w Polsce sp. z o.o. v. Poland (no. 4907/18) of 7 May 2021, final since 8 August 2021, the ECtHR found a violation of Article 6(1) of the Convention because a bench of the Tribunal including a judge elected by the Sejm of the 8th term in December 2015 was not a "tribunal established by law".^1,70,14 According to M. Leloup's commentary, the ECtHR found (1) a manifest breach of domestic law, since the Tribunal itself had found some of the December elections unconstitutional; (2) a breach of a fundamental rule, under which a judge is elected by the Sejm of the term in which the vacancy arose, compounded by disregard of the Tribunal's judgments; and (3) the absence of a domestic review procedure; the consequence applies to any bench including one of the three persons elected in December 2015, and the judgment does not decide the fate of the Tribunal's earlier rulings.¹

The notes of the Secretariat of the Committee of Ministers (CM/Notes/1507/H46-22, 1507th meeting, 17–19 September 2024) are not adopted decisions; they report that in December 2023 (1483rd meeting) the Committee expressed "deep regret" at the lack of analysis of options for restitutio in integrum and called for measures ensuring a lawful composition of the Tribunal: admitting the October 2015 judges for a full term, excluding irregularly elected persons, regularising the status of decisions taken with their participation and preventing undue influence in future elections.¹⁴ The Secretariat considered that the Polish bills broadly responded to these concerns, noted that two persons elected in 2017 to seats freed by the deaths of persons elected in December 2015 needed to be excluded, and listed as relevant, among other things, a temporary bar on active politicians, a higher majority and a 14-day deadline for the President to take the oath.¹⁴

According to the same notes, on 6 March 2024 the Sejm adopted a resolution stating that three persons are not judges of the Tribunal and that rulings with their participation are flawed, and a bill of 6 March 2024 provided for a three-fifths majority in the Sejm, an oath within 14 days and the option of refiling discontinued complaints within three months; the Sejm passed the law on 24 July 2024.¹⁴ According to M. Szwed (Verfassungsblog, 20 December 2024), President Duda referred the September 2024 laws to the Tribunal for preventive review, so they did not enter into force, the government stopped publishing the Tribunal's judgments, and vacancies were not filled – both practices criticised by the Venice Commission; M.L. v. Poland (no. 40119/21), concerning judgment K 1/20, is supervised under the enhanced procedure.^71,14

In its judgment of 18 December 2025 in C-448/23 Commission v. Poland, the CJEU found that the election of three judges of the Tribunal in December 2015 and the appointment of the President of the Tribunal in December 2016 breached fundamental rules of the appointment procedure, so that the Tribunal does not meet the requirements of an independent and impartial tribunal previously established by law (second subparagraph of Article 19(1) TEU); when the candidate for President was chosen, 8 of the 14 judges present declined to vote, and the candidate received 5 votes, 3 of them from persons whose status is contested.⁷² The CJEU also found that the Tribunal's judgments of 14 July 2021 (P 7/20) and 7 October 2021 (K 3/21) breached the principle of effective judicial protection and the primacy of EU law, and that Poland cannot invoke constitutional identity (Article 4(2) TEU) against the values of Article 2 TEU.^72,73

The Tribunal disputes these rulings. In K 6/21 of 24 November 2021 it held Article 6(1) of the Convention unconstitutional insofar as it treats the Tribunal as a "court" and allows the ECtHR to review the lawfulness of the election of Tribunal judges, and in K 7/21 of 10 March 2022 it examined review of statutes on the judicial system carried out under Article 6(1) of the Convention.⁷⁴ To C-448/23 the Tribunal replied – according to the European Commission's 2026 report – that the CJEU has no jurisdiction and that the judgment does not affect its functioning.⁷⁵ In May 2026, in Dziurda and Others v. Poland (no. 17392/26), the ECtHR applied an interim measure concerning four persons elected by the Sejm on 13 March 2026: the authorities are not to obstruct them from taking up and performing their duties; the Tribunal's spokesperson stated that the ECtHR has no competence in the matter.^76,77

In the other countries studied there are no ECtHR or CJEU judgments questioning a constitutional court's composition: in Slovakia the court itself settled the dispute and the rulings of its ten-member bench were not challenged; in Albania the court did not rule without a quorum; in Montenegro and Italy the law sets a minimum bench; in Hungary the Venice Commission's criticism concerned powers and the way seats were filled, not the legality of the bench.^{2,15,44,41,36}

Disputed points

• Slovakia: Judge Mészáros, dissenting in PL. ÚS 45/2015, considered that the majority's suggestion went beyond Article 127 of the Constitution; President Kiska criticised the 2017 ruling, although he complied with it; the Speaker of the National Council, Danko, objected to the appointment of two people who had been candidates for the same vacancy.^9,2
• Albania: the Venice Commission sided with the President on procedure while also finding that the Assembly had interpreted the 2016 model correctly; the Justice Appointments Council was alleged to have breached the requirement of three-person lists.^4,18
• Spain: ATC 177/2022 was adopted 6–5 with dissenting opinions; motions to recuse judges whose terms had expired were rejected (according to a Deia headline); a critical commentary is titled "Un auto político" (its content was not retrieved).^57,63,82
• Germany: the two-thirds requirement was kept in the statute rather than the constitution at the CDU/CSU's request; the AfD voted against the amendment; Verfassungsblog hosted a debate on the "resilience risk" (text not retrieved).^58,83
• Bulgaria: President Radev asked the court to annul the election of 19 January 2024, alleging political bias and lack of qualifications; the court rejected that request, holding that assessing qualifications is a matter for the electing body.^50,51
• Ukraine: the Venice Commission criticised the reasoning of judgment 13-r/2020 but also said it had to be implemented; the President cited national security, and the Supreme Court held the decree contrary to law.^29,31,32
• Poland, opinion CDL-AD(2026)031: the President's spokesman says the opinion has no legal force, while W. Żurek says the President has no right of veto over judges elected by the Sejm.²⁴
• Poland, the ECtHR and the CJEU on the Tribunal: the ECtHR (Xero Flor) found that benches including one of the three persons elected in December 2015 are not a "tribunal established by law", and the CJEU (C-448/23) that the Tribunal does not meet the requirements of an independent tribunal; in K 6/21 the Tribunal held that the ECtHR may not review the election of Tribunal judges, and on C-448/23 it maintains that the CJEU lacks jurisdiction. Venice Commission opinions are advisory.^1,72,74,75

Evidentiary gaps

• Slovakia: the case number of the ruling of 6 December 2017 and the content of its reasoning were not confirmed in the court's database.³
• Slovakia: no source was found on how the court's bench was completed in 2019 or on the dates of those appointments.¹²
• Czechia: no primary Senate documents were retrieved, and the data come from Wikipedia; there is a discrepancy over when the bench became incomplete – July 2003 according to Wikipedia versus "15 months" in a statement of 20 May 2004.^7,26
• Albania: constitutional article numbers and the 2019 chronology come only from press releases; the length of the paralysis differs – from March 2018 according to the court versus "more than three years" according to Exit.al; we use about 33 months.^15,18
• Ukraine: the source gives neither the date nor the case number of the Supreme Court Grand Chamber ruling; the detailed recommendations of CDL-AD(2020)039 were not verified.^32,30
• Moldova: the Council of Europe press release does not give the number of the Venice Commission opinion of 21 June 2019.³³
• Spain: neither the constitutional basis of the majority required for the CGPJ nor the 2023 election of the Constitutional Court's president was confirmed in the sources retrieved; the content of amendments 61 and 62 is known from a secondary source.^54,55
• Italy, Bulgaria, Hungary: the number of the provision on the minimum of 11 judges, the case number of the ruling of 9 July 2024 and the paragraphs of CDL-AD(2013)012 remain unverified.^41,50,36
• Germany: the date of promulgation of the amendment in the Federal Law Gazette and the exact wording of the new Article 93(2) were not retrieved.^58,60
• ECtHR and CJEU: the paragraphs of Ástráðsson and Xero Flor were not confirmed in HUDOC, the full text of C-448/23 was not retrieved, and the state of the Committee of Ministers' supervision as of October 2026 is unknown.^1,72,14
• Romania: the opinion's text once dates decision No. 6 to 21 September and twice to 21 August 2012; following the chronology, we use 21 August.⁵
• Discrepancy between notes: the comparative note lists the newer Venice Commission opinion on the President's powers regarding the oath as unidentified (probably from 2025), while the note on 2026 identifies the same document as CDL-AD(2026)031 of 13 October 2026; we follow the better-documented second version.^84,22
• Discrepancy between notes on that opinion: the note on legal texts gives the 148th plenary session and a request of 29 June, while the note on 2026 treats the session number and the request date as unverified.^85,23
• Discrepancy between notes on CDL-AD(2020)010: the note on 2026 says the oath before a notary was considered defective because the dispute over the selection procedure was unresolved, while the comparative note says it was because an oath before the President is a constitutional precondition for taking office; we follow the comparative note, which is based on the Council of Europe press release.^4,16
• C-448/23: the comparative note describes the breach as concerning the appointment of the President of the Tribunal in December 2016, while the note on legal texts describes irregularities in presenting the candidate; the full judgment was not retrieved.^72,73
• Croatia, Lithuania and Portugal were not studied.