A surge in referrals from Polish courts to the Court of Justice of the European Union reveals a financial sector strategy to terminate domestic proceedings and evade unfavorable legal interpretations.
A Procedural Hypnosis
Narratives circulating on social media claim that Polish courts are bowing to pressure from law firms, allegedly leading to an “infamous” record number of referrals to the Court of Justice of the European Union (ECJ). This criticism, however, ignores the reality that these legal challenges are rooted in financial products that found fertile ground in Poland.
The suggestion of “pressure from law firms” is particularly curious. It implies that Polish judges are being manipulated by mysterious entities. If such firms truly possessed the power to hypnotize the judiciary into filing referrals, they would be the most sought-after practitioners in the legal market.
Sisyphian Referrals
The high number of referrals is actually a side effect of judges attempting to patch legal loopholes while the financial sector actively seeks to dismiss cases before the ECJ can rule. Under Article 100 of the Rules of Procedure of the Court, proceedings before the ECJ continue only as long as the case remains pending in the national court.
Financial institutions frequently use tactics such as withdrawing lawsuits or reaching settlements to force the closure of domestic cases, thereby causing ECJ proceedings to lapse. This forces courts in cities like Krakow, Lodz, and Poznan to repeat questions multiple times before a definitive ruling, such as the one recently delivered in the Wlodawa case, can be achieved.
A Balkan Procedural Embargo
This challenge is not unique to Poland; courts in Bulgaria are facing similar obstruction. A Bulgarian district court has referred case C-136/26 to the ECJ, asking whether EU law prohibits national rules that allow a party to withdraw a lawsuit simply to terminate a pending ECJ referral.
The Bulgarian court is specifically questioning whether a national judge must refuse to dismiss a case if they identify an abuse of process by the party withdrawing the lawsuit. Furthermore, they are seeking clarity on whether a national court can conclude a case while maintaining the procedural validity of a referral already sent to Luxembourg.
Awaiting a Systemic Fuse
Whether the ECJ will provide definitive answers or if these cases will also be terminated remains to be seen. These developments highlight an urgent need for systemic changes within the European Union to effectively curb these procedural evasions in the future.