Judicial Secondments, Rule of Law Concerns and the Public Policy Exception: Commentary on Scully v Coucal (No. 2) [2025] IESC 51

1. Introduction

The Supreme Court’s decision in Scully v Coucal (No. 2) [2025] IESC 51 represents a significant Irish contribution to the developing EU jurisprudence on the rule of law, judicial independence, and the recognition of judgments under Regulation (EU) No. 1215/2012 (Brussels I Recast).

The appeal arises out of an Irish investor dispute litigated in Poland: Irish investors, having lost their investment in a Polish shopping centre project, assigned their claims to an Irish company, Coucal Ltd., which successfully sued Mr Michael Scully in Poland. The Polish Court of Appeal awarded Coucal over PLN 28 million (c. €6.37m), and Coucal sought to enforce that judgment in Ireland. Mr Scully resisted recognition and enforcement in Ireland under Article 45(1)(a) Brussels I Recast, which allows refusal where recognition would be “manifestly contrary to public policy” in the requested Member State.

The Supreme Court has already delivered a first judgment in the same appeal, Scully v Coucal Ltd (No. 1) [2025] IESC 20, rejecting Mr Scully’s argument that the assignments to Coucal were champertous and that this alone rendered recognition contrary to Irish public policy. The present, second judgment deals exclusively with the remaining issue: whether the composition of the Polish Court of Appeal – specifically the participation of a judge seconded by the Polish Minister for Justice under Article 77 of the Law on the Organisation of the Ordinary Courts – violated EU requirements on judicial independence to such an extent that the resulting judgment should not be recognised in Ireland.

Delivering the principal judgment, Hogan J (with whom the other members of the Court agreed) holds that:

secondment of judges under Article 77 of the Polish law is not, in itself, incompatible with Article 19(1) TEU and related EU rule-of-law guarantees, at least in civil cases such as this; and
even if systemic deficiencies existed in Poland’s judicial system, a party resisting recognition under Article 45(1)(a) Brussels I Recast must still show that those deficiencies concretely affected the independence or impartiality of the particular court/judge in their case – a two-step approach drawn from European Arrest Warrant case law.

The Court therefore concludes that recognition of the Polish judgment is not “manifestly contrary” to Irish public policy and that the judgment must be recognised in Ireland.

2. Summary of the Judgment

2.1 Issues before the Supreme Court

By the time of this second judgment, one issue only remained for determination:

The “rule of law” issue: whether the presence of Judge Anna Strączyńska, seconded by the Polish Minister for Justice from a lower court to the Polish Court of Appeal under Article 77 of the Law on the Organisation of the Ordinary Courts (27 July 2001), meant that the Polish Court of Appeal was not an independent and impartial tribunal as required by Article 19(1) TEU and Article 47 of the Charter. If so, did that defect make recognition of its judgment in Ireland “manifestly contrary to public policy” within Article 45(1)(a) Brussels I Recast?

Mr Scully argued that:

the secondment regime under Article 77 had already been found problematic in EU law, notably in the CJEU’s decision in WB (Joined Cases C‑748/19 to C‑754/19);
the secondment was therefore itself incompatible with Article 19(1) TEU and rendered the Polish Court of Appeal improperly constituted; and
this, without more, justified refusal of recognition on public policy grounds.

Coucal argued that:

the CJEU’s concerns in WB were specific to the criminal context, where the Minister for Justice also acts as Public Prosecutor General;
subsequent clarification by the CJEU in TB [Daka] (Joined Cases C‑422/23, C‑455/23, C‑459/23, C‑486/23 and C‑493/23) confirmed that secondment as such is not incompatible with EU law, provided certain safeguards are met;
this was a purely civil dispute in which the Polish state had no interest and in which the judge was randomly allocated; and
no concrete prejudice or lack of independence in this particular case had been shown.

2.2 The Supreme Court’s main holdings

The Supreme Court holds that:

Secondment under Article 77 is not per se contrary to EU law in civil cases. Applying the CJEU’s reasoning in TB [Daka], and distinguishing the criminal context in WB, the Court finds no automatic incompatibility between such secondments and Article 19(1) TEU.
Mutual trust requires more than proof of abstract systemic deficiencies. Even if there were systemic rule-of-law problems in Poland, a party opposing recognition of a judgment must satisfy a two‑stage test: (a) show systemic or generalised deficiencies; and (b) demonstrate that, in their own case, those deficiencies give rise to a real risk of violation of the right to an independent and impartial tribunal. This test is drawn by analogy from Openbaar Ministerie (Independence of the issuing judicial authority) in the EAW context.
Mr Scully fails to show case‑specific prejudice. He points only to the fact of Judge Strączyńska’s secondment and does not allege, still less establish, any specific way in which her independence or impartiality was compromised in his appeal. Her participation, selected by random allocation in a civil case with no state party, is not sufficient to displace mutual trust.
No Article 267 reference is required. In light of the CJEU’s decision in TB [Daka], the Supreme Court considers the question to be acte clair within the meaning of Consorzio Italian Management (C‑561/19), and therefore does not refer any further question to Luxembourg.
Recognition is not “manifestly contrary” to Irish public policy. As neither the assignment of claims (dealt with in Scully (No. 1)) nor the judicial secondment undermines fundamental Irish or EU values in a manifest way, Article 45(1)(a) Brussels I Recast is not engaged. The Polish judgment is prima facie entitled to recognition and enforcement, and no valid exception has been established.

The Court accordingly declares that the Polish Court of Appeal judgment is entitled to recognition in Ireland and dismisses Mr Scully’s public policy objections. Hogan J also notes his agreement with a separate judgment to be delivered by Murray J.

3. Factual and Procedural Background

3.1 The investment project and alleged wrongdoing

Around 2006, Mr Scully promoted an investment scheme to 78 investors for the purchase of land and development of a shopping centre in Opole, Poland. The investors subscribed share capital in a Polish special purpose vehicle (SPV) which undertook the development. The centre opened in March 2009.

By July 2009, Mr Scully informed investors that their original exit strategy – refinancing the SPV’s loans so that they could exit with a profit – was no longer viable due to the global financial crisis. Later in 2010, he presented an alternative: exchanging their SPV shares for “D series” shares in another company, Alterco SA, which he said would offer profit and diversification advantages. The investors granted him powers of attorney to implement these transactions.

It is alleged that:

Mr Scully had secretly entered into a joint venture with Alterco to procure acquisition of the SPV shares;
the overall structure and pricing of the transactions were highly disadvantageous to the investors; and
as a result, the investors effectively lost the entire value of their investment.

3.2 Formation of Coucal and assignment of claims

To pursue redress, 63 investors (mostly Irish residents) formed an Irish company, Coucal Ltd. Under Polish law, they each entered into individual assignment agreements transferring their causes of action against Mr Scully to Coucal. It is common case that, as a matter of Polish private law, these assignments were valid. The company’s sole purpose was to litigate against Mr Scully in Poland on the investors’ behalf.

3.3 Polish proceedings and judgment

In August 2015, Coucal commenced proceedings in the Regional Court in Warsaw. It alleged that Mr Scully had defrauded the investors and sought:

a declaration of nullity of the agreements he had entered into using the powers of attorney; and
restitution of the purchase price of the SPV shares.

Coucal lost at first instance but appealed. The Polish Court of Appeal, in a judgment of 10 June 2021, reversed and awarded Coucal PLN 28,391,106 against Mr Scully, holding that he had wrongfully and without authority purported to enter into agreements on behalf of the shareholders.

On 7 July 2021, the Polish Court of Appeal granted leave to enforce its judgment in Ireland. Coucal then notified Mr Scully that it intended to commence Irish enforcement proceedings.

3.4 Irish proceedings: High Court and Court of Appeal

On 30 July 2021, Mr Scully issued High Court proceedings seeking, under Articles 45 and 46 Brussels I Recast, an order refusing recognition and enforcement of the Polish judgment in Ireland. He advanced two main grounds:

The assignment issue: The assignments of bare causes of action to Coucal were said to be champertous/maintenance in Irish law, and therefore so offensive to Irish public policy that recognition should be refused.
The rule-of-law issue: The Polish Court of Appeal was allegedly improperly constituted because one judge (Judge Strączyńska) sat by virtue of a ministerial secondment under Article 77 of the Law on the Organisation of the Ordinary Courts, said to be contrary to the EU principle of judicial independence.

The High Court (Owens J) refused relief (11 November 2022), holding:

the assignment did not infringe any fundamental Irish principle so as to justify refusal; and
no sufficient evidence of systemic deficiency or of actual interference with judicial independence in the present case had been shown.

The Court of Appeal (Donnelly J) reversed (30 April 2024: Scully v Coucal Ltd [2024] IECA 104), but on the assignment issue alone. It found that the assignments were of bare causes of action and unenforceable if litigated in Ireland, and concluded that enforcing the Polish judgment would be contrary to public policy. It did not address the rule‑of‑law argument and, given a pending CJEU reference from the Polish Supreme Court on related appointment issues, declined to engage with it or to make a reference itself.

3.5 The first Supreme Court judgment and extension of leave

The Supreme Court granted leave to appeal under Article 34.5.3° of the Constitution on the assignment issue only ([2024] IESCDET 133), as the Court of Appeal had not decided the rule‑of‑law ground. In Scully (No. 1) [2025] IESC 20, the Court allowed Coucal’s appeal, holding that recognition could not be refused on champerty/public policy grounds.

Subsequently, by a ruling of 17 July 2025, the Supreme Court held that it had jurisdiction to extend the grant of leave so as to encompass the rule‑of‑law issue. It decided that, in the interests of finality, it should determine that issue itself. The present judgment is the result.

3.6 The broader Polish rule-of-law context

Hogan J situates the case against the backdrop of the now‑well known controversies over judicial reforms in Poland. Two major developments are highlighted:

Recomposition of the National Council of the Judiciary (KRS): Before 2018, judicial members of the KRS – the body involved in judicial appointments – were nominated by judges. A 2018 reform transferred nomination to the Sejm (Polish Parliament), creating doubts as to the independence of judges appointed thereafter.
The 2017 Law on the Supreme Court: Article 29 of that law effectively prevented the Supreme Court from questioning the legality of judicial appointments. After adverse CJEU and ECtHR decisions (e.g. AK and Grzeda v Poland), 2022 legislation created an ad hoc panel procedure to review judicial appointments for compliance with independence standards.

In this particular dispute, there is also a separate, ongoing line of litigation concerning the composition of a panel of the Polish Supreme Court hearing Mr Scully’s cassation appeal against the Court of Appeal judgment. An objection under Article 29 of the 2017 Supreme Court Law to the presence of a judge (“JG”) resulted in a five-judge panel and eventually in a reference to the CJEU in Case C‑748/23 C Ltd v MS, with Advocate General Emiliou delivering an opinion on 1 August 2025. That reference, concerning judges appointed on KRS resolutions later annulled by the Polish Supreme Administrative Court, is, however, distinct from the secondment issue before the Irish Supreme Court and serves only as background.

4. Precedents and Authorities Cited

4.1 CJEU’s Polish judicial independence case law

4.1.1 AK (Independence of the Disciplinary Chamber of the Supreme Court)

In AK (Joined Cases C‑585/18, C‑624/18 and C‑625/18), the CJEU examined whether the Disciplinary Chamber of the Polish Supreme Court, created in the context of the reforms and staffed via the reconstituted KRS, met the standards of independence and impartiality required by Article 19(1) TEU and Article 47 of the Charter. The Court established a structured test focusing on:

the manner of appointment of judges;
the role of the executive and legislature in that process; and
objective guarantees against external pressure.

AK laid the foundation for later decisions scrutinising Polish judicial reforms, and underpins the Irish Supreme Court’s acceptance that EU law can require domestic courts to treat certain bodies as lacking the requisite independence.

4.1.2 W.Ż. (Chamber of Extraordinary Control and Public Affairs – Appointment)

In W.Ż. (C‑487/19), the CJEU considered the status of the Extraordinary Control and Public Affairs Chamber of the Polish Supreme Court. It held that where a judicial body was not independent and impartial, national courts – applying the principle of primacy of EU law – must treat its decisions as void. This case is referenced in WB and TB [Daka] for the proposition that disciplinary and organisational measures affecting judges can infringe EU law if they operate as instruments of political control.

4.1.3 Commission v Poland (Disciplinary regime for judges)

In C‑791/19, the Commission challenged the disciplinary regime for Polish judges, alleging that it could be used as a mechanism of political influence. The CJEU found that various aspects of the regime were incompatible with Article 19(1) TEU. This case is cited in WB and by Hogan J in discussing the risks when the executive can influence career‑impacting measures affecting judges.

4.1.4 WB (Joined Cases C‑748/19–C‑754/19)

WB is central to Mr Scully’s argument. The CJEU examined secondments of judges by the Polish Minister for Justice to higher criminal courts under Article 77 of the Law on the Organisation of the Ordinary Courts. The Court accepted that secondments can be legitimate tools of judicial organisation, but identified several serious concerns:

the Minister’s broad, non-transparent discretion in deciding on secondment and its termination;
the power to terminate secondments at any time, including those fixed-term, without stated reasons;
the cumulative effect of this on judges’ sense of dependence on the Minister, undermining irremovability; and
the particularly problematic fact that the Minister also acts as Public Prosecutor General, thereby controlling both prosecutors and seconded judges in a given criminal case.

Taking all these elements together in the criminal context, the Court held that such secondments could breach Article 19(1) TEU. Mr Scully sought to transpose this conclusion wholesale to the civil context.

4.1.5 TB [Daka] (Joined Cases C‑422/23 etc.)

TB [Daka], a 2025 judgment of the CJEU, is decisive for the Supreme Court’s reasoning. It concerned five civil cases before the Polish Supreme Court’s Civil Chamber, where judges from the Labour and Social Insurance Chamber had been temporarily assigned by the First President of the Supreme Court, and specific cases were allocated by the President of the Civil Chamber. Both presidents had been appointed under contested conditions via the reformed KRS.

Key points from TB [Daka] as relied on by Hogan J include:

Internal organisational measures – including temporary assignments between chambers – are generally a matter for national law and can be essential for the proper administration of justice and compliance with reasonable time requirements.
Not every organisational measure taken by a non‑independent president automatically taints the resulting judicial panel. Nullity is reserved for decisions where the body itself is not an independent tribunal and the decision terminates proceedings.
Assignments may violate independence/impartiality only if they:
- have lasting effects on judges’ powers, careers, or professional standing (e.g. demotion);
- appear to retaliate for particular judicial decisions or positions (e.g. criticism of reforms); or
- are targeted, discretionary measures raising legitimate doubts in litigants’ minds.
Where assignments are temporary, justified by workload, based on long‑standing statutes, not career‑damaging, and applied broadly (not selectively), they are not incompatible with Article 19(1) TEU, even if adopted without judges’ consent and without a specific remedy.

Hogan J analogises from TB [Daka] to conclude that Article 77 secondments in a civil context are not in themselves objectionable.

4.2 Mutual trust and systemic deficiencies: Openbaar Ministerie (EAW context)

In Openbaar Ministerie (Independence of the issuing judicial authority) (Joined Cases C‑354/20 PPU and C‑412/20 PPU), the CJEU considered whether systemic rule‑of‑law problems in a Member State justified automatic refusal to execute European Arrest Warrants.

The Court reaffirmed a two‑step approach:

The executing court must determine whether there is, in the issuing Member State, a real risk linked to systemic or generalised deficiencies in the judiciary that could affect the fairness of trials.
If so, the executing court must then assess whether, in the specific case, the person concerned faces such a risk, taking into account their individual circumstances and the particular court or judge involved.

The Supreme Court in Scully (No. 2) adopts this structure and applies it by analogy to the recognition of civil judgments under Brussels I Recast, emphasising that both instruments are grounded in mutual trust between Member States’ courts.

4.3 Duty of last-instance courts to refer: Consorzio Italian Management

In Consorzio Italian Management (C‑561/19), the CJEU revisited the obligation of courts of last instance to make preliminary references under Article 267(3) TFEU. It clarified that such a court may decline to refer where:

the question is not relevant to the outcome;
the provision has already been interpreted by the CJEU; or
the correct application of EU law is so obvious as to leave no scope for reasonable doubt (acte clair), having regard to CJEU case law, the specific features of EU law, and the different language versions.

Hogan J explicitly cites this standard and concludes that, after TB [Daka], the compatibility of civil secondments under Article 77 with Article 19(1) TEU is acte clair, and thus no further reference is required.

5. The Supreme Court’s Legal Reasoning

5.1 The legal framework: Brussels I Recast and public policy

Under Brussels I Recast:

Judgments given in one Member State are to be recognised in others without any special procedure (Article 36(1)).
Recognition may, however, be refused on limited grounds, including where it would be “manifestly contrary to public policy” in the Member State addressed (Article 45(1)(a)).

Hogan J reiterates that:

The starting point is a strong presumption in favour of recognition – an expression of mutual trust.
The public policy exception is to be interpreted narrowly; it is reserved for exceptional cases where recognition would offend fundamental principles of the legal order of the Member State addressed.

In Scully (No. 1), the Court had already concluded that the assignment of bare causes of action, although generally impermissible in Irish law because of champerty concerns, did not meet this high “manifestly contrary” threshold when they were valid under the lex causae (Polish law) and were being enforced as part of a foreign judgment. The question now is whether alleged defects in the Polish appellate bench’s composition cross that threshold.

5.2 EU rule-of-law guarantees and judicial independence

The Court frames the rule-of-law argument through the lens of EU law:

Article 2 TEU enshrines the rule of law as a foundational value of the Union.
Article 19(1) TEU requires Member States to provide remedies sufficient to ensure effective legal protection in fields covered by EU law, including through independent and impartial courts.
Article 47 of the Charter guarantees the right to an effective remedy before an independent and impartial tribunal.

Irish courts, when applying EU instruments such as Brussels I Recast, must take these provisions into account. Recognition cannot be granted to a judgment originating from a “court” that does not satisfy the minimum standards of independence required by EU law.

5.3 Distinguishing WB: criminal context and the role of the Minister

Hogan J carefully distinguishes the WB ruling relied on by Mr Scully. While WB examined the same Article 77 secondment power, several critical features there do not exist in Scully:

Criminal vs civil proceedings In WB, seconded judges were sitting in criminal proceedings. There, the Minister for Justice also serves as Public Prosecutor General, exercising hierarchical control over prosecutors. The CJEU held that combining control over prosecution and over the judicial composition of the appellate bench created a serious risk of executive influence on criminal adjudication.
Direct involvement of the State The Minister (as head of the prosecution service) had a direct stake in criminal outcomes. By contrast, in Scully, the Polish state is not party to the litigation; the dispute is essentially between private parties, albeit in Poland.
Targeted vs random allocation In Scully, Judge Strączyńska’s presence on the Court of Appeal panel resulted from random IT-based allocation. There is no allegation, much less evidence, that the Minister engineered her presence on this particular appeal.

Thus, while acknowledging the concerns expressed in WB about the potential for abuse of Article 77 in the criminal sphere, the Supreme Court declines to read that case as establishing that secondment per se – in all contexts – violates Article 19(1) TEU.

5.4 Applying TB [Daka]: organisational measures in civil cases

The Court instead considers TB [Daka] as the closer analogue. There the CJEU:

accepted that internal organisational measures – including temporary assignments – are not inherently contrary to EU law;
insisted on examining whether such measures:
- materially affect judges’ status, career, or independence; or
- appear to target specific judges, e.g. in retaliation for their prior decisions or positions;
ultimately found that temporary, workload-driven assignments that do not demote judges, do not remove them from their original posts, and are applied broadly do not breach Article 19(1) TEU, even if the assigning president’s own appointment is defective.

Hogan J then applies this reasoning, mutatis mutandis, to the Article 77 secondment regime in the context of a civil appeal:

Secondment has long been a feature of the Polish judiciary and is not inherently suspicious.
The present secondment did not engage any interest of the Polish state; the case is essentially a private civil dispute.
The judge’s allocation to the appeal panel occurred randomly, not as a targeted decision aimed at influencing the dispute.
There is no evidence that the secondment affected the judge’s status, career, or workload in a way that could be equated with a disciplinary penalty or demotion.

In light of TB [Daka], the Court concludes that the use of Article 77 in a civil setting of this kind is not, in itself, incompatible with EU requirements of judicial independence.

5.5 Mutual trust and the two‑stage test from EAW jurisprudence

A key aspect of the judgment is the explicit borrowing of the EAW “systemic deficiencies + individual risk” framework from Openbaar Ministerie into the Brussels I Recast setting.

Hogan J recognises that, in the context of EAWs, the CJEU has held that:

proof of systemic or generalised deficiencies in the issuing Member State’s judiciary is not enough on its own to justify refusal to execute a warrant; and
the executing court must still assess whether, in the specific case, the requested person faces a real risk that their fundamental right to an independent tribunal will be violated.

The Supreme Court sees the underlying logic – mutual trust between Member States’ courts – as equally applicable to Brussels I Recast. Both instruments:

rest on the presumption that other Member States’ courts are independent and impartial; and
allow only limited, exceptional departures from automatic recognition/execution.

Therefore, Hogan J rejects Mr Scully’s contention that EAW jurisprudence is inapposite because of the different subject-matter (criminal surrender vs civil enforcement). The critical point is that both schemes presuppose, and are designed to reinforce, mutual trust.

Even if one assumes, arguendo, that Article 77 secondments reveal a “systemic deficiency” in Poland’s judiciary:

that does not permit Irish courts to conclude that every Polish judge is compromised; and
it remains necessary to show that, in this specific case, the composition of the Polish Court of Appeal created a real risk of lack of independence or impartiality.

Mr Scully did not, and on the evidence could not, make such a showing.

5.6 Absence of case-specific prejudice

On the facts, Mr Scully’s challenge rests solely on the abstract fact of secondment. The Supreme Court notes:

All experts agreed that secondment had long been a feature of Polish judicial practice.
Judge Strączyńska’s status as a seconded judge was well known and not objected to at the time of hearing.
The IT-based random allocation system meant that her inclusion on the panel was essentially a matter of chance.
There is no suggestion that she had any personal, political, or institutional interest in the outcome, nor that she was subject to any form of external pressure in this case.

Crucially, Mr Scully:

does not allege that the Minister terminated or threatened to terminate the secondment in relation to his case;
does not claim that the secondment had any specific disciplinary, demotional, or retaliatory dimension; and
advances no evidence of actual or apparent bias on the part of the judge.

He instead argues that her secondment status, combined with the CJEU’s criticism of Article 77 in WB, is sufficient to satisfy the second limb of the systemic-deficiency test.

The Supreme Court disagrees: TB [Daka] makes clear that secondment/assignment in civil cases is not per se incompatible with Article 19(1) TEU. Without specific evidence of prejudice, a mere allegation of structural concerns does not meet the very high threshold required to override mutual trust and invoke the public policy exception in Article 45(1)(a) Brussels I Recast.

5.7 No need for a further Article 267 reference

The Court concludes by addressing its duty, as a court of last instance, to refer questions of EU law to the CJEU. Relying on Consorzio Italian Management, Hogan J identifies the question at issue as: whether Article 19(1) TEU and Article 47 of the Charter preclude recognition of a civil judgment where one member of the foreign appellate court was seconded under a ministerial regime such as Article 77.

Given the detailed guidance provided by WB and, in particular, TB [Daka], he finds that the correct application of EU law to these facts is sufficiently clear – i.e. the answer is acte clair. The Court thus:

does not refer a further question to the CJEU in this case; and
proceeds to apply EU law as interpreted in existing CJEU case law.

6. Impact and Significance

6.1 Clarifying the effect of Polish rule-of-law problems on civil judgment recognition

The decision sends an important message: while Irish courts are fully cognisant of, and take seriously, the CJEU and ECtHR’s rule-of-law concerns regarding Poland, they will not:

treat all judgments emanating from Polish courts as tainted; or
refuse recognition merely because a Polish judge was appointed or seconded under mechanisms that have attracted broader criticism.

Instead, the Court insists on:

an evidence-based assessment of whether the particular court in the particular case lacked independence or impartiality; and
a stringent application of the “manifestly contrary to public policy” standard.

This reassures parties enforcing Polish judgments in Ireland (and, by persuasive influence, in other Member States) that:

the existence of systemic rule-of-law debates in Poland does not automatically block recognition of their judgments; and
Irish courts will look closely at the specific circumstances and CJEU guidance, not just the general political context.

6.2 Extending the EAW two-step approach to Brussels I Recast

By explicitly relying on Openbaar Ministerie, the Supreme Court effectively:

transposes the two-step “systemic deficiency + individual risk” analysis from the EAW domain into civil judgment recognition under Brussels I Recast;
affirms that mutual trust is a structural principle of EU judicial cooperation across both civil and criminal justice; and
signals that, in future, parties seeking to resist recognition or enforcement on rule-of-law grounds will face a demanding evidential and analytical burden.

This cross-fertilisation of EAW and civil cooperation jurisprudence is doctrinally important. It aligns the Irish Supreme Court with a broader EU trend: system-wide concerns about the rule of law are relevant, but they do not by themselves justify a collapse of mutual trust or a blanket refusal of cooperation.

6.3 Practical guidance for litigants challenging foreign judgments

Scully (No. 2) offers clear practical lessons:

Mere structural critique is insufficient. Citing reports about systemic issues or high-level rulings on judicial reforms will not, by itself, prevent recognition.
Concrete, case-specific evidence is essential. A challenger must show:
- how the specific judge or court in their case was appointed/assigned in a manner contrary to EU independence standards; and
- how that created a real risk of biased adjudication, e.g. via targeted disciplinary threats, demotion-like measures, or executive pressure.
Procedural conduct in the foreign proceedings matters. Where a party was aware of a judge’s status and did not timely object, it may weaken later attempts to treat the composition as fundamentally defective.

6.4 The limited, but real, role of the public policy exception

The ruling also refines Irish understanding of Article 45(1)(a) Brussels I Recast:

Public policy remains a safety valve for extreme cases – e.g. where the judgment emanates from a body that is demonstrably not a court in the EU sense, or where the particular composition is patently incompatible with Article 19(1) TEU.
But it cannot be used to re‑litigate foreign proceedings, to correct every procedural irregularity, or to express disagreement with another Member State’s judicial reforms in the abstract.

This confirms that Irish courts will exercise restraint, in line with CJEU jurisprudence, in invoking public policy to block recognition.

6.5 Role of the Irish Supreme Court as an EU court of last resort

Finally, Scully (No. 2) illustrates the Supreme Court’s approach to its obligations under Article 267(3) TFEU:

It is attentive to the CJEU’s guidance in Consorzio Italian Management.
It is prepared to undertake a detailed comparative analysis of CJEU case law (including very recent judgments like TB [Daka]) and, where appropriate, to treat the law as acte clair.
At the same time, it demonstrates a willingness to engage deeply with EU rule-of-law jurisprudence, rather than avoiding or minimising it.

This confirms the Court’s role as both a national constitutional court and a key node in the EU’s judicial network.

7. Complex Concepts Explained

7.1 “Manifestly contrary to public policy” (Article 45(1)(a) Brussels I Recast)

This phrase sets a very high threshold. It does not allow a Member State to refuse recognition simply because:

its law differs from that of the state of origin; or
its courts would have decided the merits differently.

Rather, the foreign judgment must:

strike at a fundamental principle of the legal order of the recognising state; and
do so in a way that is clear, serious, and intolerable (manifest).

Examples might include judgments obtained in flagrant denial of the right to a fair trial, or enforcing obligations that grossly violate basic constitutional values (e.g. discrimination or denial of due process).

7.2 Judicial independence and Article 19(1) TEU

Article 19(1) TEU obliges Member States to provide remedies sufficient to ensure effective legal protection in fields covered by EU law. This includes having courts that are:

institutionally independent from the executive and legislature; and
impartial as between the parties.

Key sub-elements include:

Security of tenure (irremovability): judges cannot be arbitrarily removed or penalised.
Protection against external pressure: arrangements that make judges depend on political authorities for their career, salary, or assignments can endanger independence.
Appearance of independence: justice must not only be done but be seen to be done; the public must have reason to trust the court.

7.3 Secondment of judges

“Secondment” refers to temporarily assigning a judge from one court or post to another, often to:

address workload imbalances;
provide specialised expertise; or
support reforms or pilot projects.

Per the CJEU, secondment is not inherently problematic. It becomes an independence issue if:

the executive has wide, opaque, and revocable control over secondment;
termination of secondment can be used as a disciplinary or retaliatory tool; or
in criminal cases, the same authority controls both prosecutors and seconded judges.

Scully (No. 2) confirms that none of these factors, on the facts, justified refusal of recognition.

7.4 Mutual trust

Mutual trust is an EU law principle that:

presumes Member States respect fundamental rights and the rule of law; and
requires each Member State’s courts to, in general, accept the decisions of courts in other Member States.

Exceptions are possible but must be:

strictly construed; and
supported by robust evidence of a real risk to fundamental rights in the specific case.

7.5 Acte clair

Acte clair is a doctrine whereby a court of last instance may decline to refer a question to the CJEU if:

the correct interpretation of EU law is so obvious that there is no reasonable doubt; and
this clarity holds when considering all language versions of the relevant EU text and existing CJEU case law.

In Scully (No. 2), the Supreme Court regards the compatibility of civil assignments/secondments under Article 77 with Article 19(1) TEU as acte clair after TB [Daka].

8. Conclusion

Scully v Coucal (No. 2) [2025] IESC 51 is a carefully calibrated judgment that both respects the CJEU’s serious concerns about the Polish rule-of-law situation and preserves the core EU principle of mutual trust.

The Supreme Court makes three particularly important contributions:

It confirms that the Article 77 Polish secondment regime is not, in itself and without more, a basis for treating civil judgments as emanating from a non‑independent court for EU law purposes.
It imports the two‑stage “systemic deficiencies + individual risk” approach from EAW case law into the context of civil judgment recognition under Brussels I Recast, raising the bar for litigants seeking to resist foreign judgments on rule‑of‑law grounds.
It illustrates how a national supreme court, acting as an EU court of last resort, can apply and internalise evolving CJEU jurisprudence – in particular WB and TB [Daka] – without flooding Luxembourg with further references where the law is already clear.

In practical terms, parties enforcing Polish judgments in Ireland can take comfort: systemic debates over judicial reforms in Poland do not, by themselves, preclude recognition. Those resisting recognition, conversely, must now come armed with detailed, case-specific evidence of compromised independence or impartiality. The public policy exception remains available, but as the Court emphasises, it is reserved for truly exceptional and manifest violations of fundamental principles, not for generalised concerns about another Member State’s legal system.

In the broader EU legal landscape, Scully (No. 2) stands as an example of nuanced judicial engagement with the Union’s rule-of-law crisis: vigilant against genuine threats to judicial independence, but equally vigilant in protecting the integrity and functionality of mutual recognition mechanisms on which the EU’s area of freedom, security and justice depends.