Protesters with signs reading "Constitution" outside the Supreme Court building in Warsaw in October | Jakub Kaminski/EPA-EFE EU court passes judicial independence decision back to Poland The EU’s top court questions the independence of a new judicial chamber.

The EU's top court questioned whether a new disciplinary body created by Poland's ruling Law and Justice (PiS) party would undermine judicial independence, but on Tuesday threw the issue back to Poland's Supreme Court.

The Court of Justice of the EU (CJEU) said the Polish court will have to determine whether the newly created disciplinary chamber for judges is independent of political control.

Three Supreme Court justices had asked the EU court to determine if the disciplinary chamber offered “sufficient guarantees of independence under EU law” to rule whether judges should be reinstated from early retirement.

The verdict is significantly more nuanced than a non-binding opinion issued in June by the EU court's advocate general, Evgeni Tanchev.

In that opinion, Tanchev said the chamber “does not satisfy the requirements of judicial independence under EU law,” as the body that chooses its members, the National Council of the Judiciary (NCJ), is dependent on the executive and legislative branches of government. He added that the way the NCJ is appointed "discloses deficiencies that appear likely to compromise its independence from the legislative and executive authorities."

The verdict is significantly more nuanced than a non-binding opinion issued in June by the EU court's advocate general, Evgeni Tanchev.

But Tuesday's final verdict doesn't go that far. It says that "the Supreme Court must ascertain whether the new Disciplinary Chamber of the Polish Supreme Court is independent in order to determine whether that chamber has jurisdiction to rule on cases where judges of the Supreme Court have been retired.”

It gives the Polish court directions on how it can test the chamber by checking if the NCJ is under political influence, or if the disciplinary chamber is "free from influence or pressure."

If the Polish court finds that the disciplinary chamber is not independent, "the principle of the primacy of EU law" requires it to "disapply" the ability of the chamber to hear such cases.

“As a general point, the Court reiterated on several occasions that, although each of the factors examined, taken in isolation, is not necessarily capable of calling into question the independence of that chamber, that may, however, not be true once they are taken together,” the EU court said.

That hands the issue back to the Polish judicial system.

“The CJEU gives the Supreme Court homework to do. It’ll have to assess on its own the independence of the disciplinary chamber,” said Barbara Grabowska-Moroz, an academic at the University of Groningen.

She added that the judges in Luxembourg might be more willing to issue a concrete judgment on the independence of the chamber when they rule on an infringement case brought to the CJEU by the European Commission in October. That case also concerns judicial independence and whether Polish judges face reprisals for issuing verdicts

Michał Dworczyk, the head of Poland's prime minister's office, told Polish TVN television before the judgment was announced that the government would check the legality of the verdict. “Of course we will treat this judgment as all the other judgments. under the condition it’ll be in line with the EU law and Polish Constitutions.”

He also said that “there’s a possibility” that the judgment would have to be analyzed by the Constitutional Tribunal, Poland's highest judiciary body.