MAIN POINTs
1
On September 22, 2026, Poland’s Constitutional Tribunal held unanimously (case K 21/26) that the provisions establishing the so-called test of a judge’s independence and impartiality — in the common courts, the military courts and the Supreme Court — are incompatible with the Constitution.
2
The Tribunal held that the constitutional right of access to public service covers not only the possibility of taking up an office but the real ability to exercise it. A judge deprived of the ability to adjudicate is therefore deprived of the very substance of that right.
3
The test examines not independence or impartiality but the circumstances of a judge’s appointment, and so inverts the idea of recusal: what is said to undermine impartiality is not the circumstances of the case but general circumstances beyond the judge’s control. Since recusal already exists, the test is superfluous and fails the requirement of necessity under Article 31(3) of the Constitution.
4
The mechanism duplicates — and in practice allows the circumvention of — the constitutional procedure for removing a judge from office, and carries a chilling effect: a judge may hesitate to rule in an “inconvenient” way for fear that the test will be used against him.
5
In practice the test was applied only to judges appointed from 2018 onward, and refused as against judges whose first appointment came from the Council of State of the communist-era Polish People’s Republic. An institution conceived as a tool of compromise turned out to be a tool of political selection.
6
The judgment covers every remaining provision on the test and completes the line of case law opened by the ruling of February 25, 2026 (SK 68/25), which eliminated the analogous mechanism in the administrative courts.
Background for international readers
The provisions struck down by this judgment were not a Polish invention. They were drafted under direct pressure from the European Commission.
From 2017 onward the Commission pursued a sustained campaign against the judicial reforms of Poland’s then Law and Justice government: it triggered the Article 7 procedure in December 2017, brought a series of infringement actions before the Court of Justice of the European Union (CJEU), and obtained interim measures and financial penalties against Warsaw — while declining to apply comparable scrutiny to member states with similar arrangements, Spain among them, whose parliament likewise elects members of its judicial council.
When Poland’s National Recovery Plan — the Polish chapter of NextGenerationEU — was negotiated, the Commission made disbursement conditional on a set of judiciary “milestones.” One of them required that “the Polish courts can initiate verification procedures on whether a judge meets the requirements of independence stemming from the Article 19 TEU on rule of law.” That milestone is the direct origin of the mechanism at issue here: the test of a judge’s independence and impartiality, introduced by the amendment to the Law on the Supreme Court of June 9, 2022, which entered into force on July 15, 2022. The government of Mateusz Morawiecki enacted it as the price of access to the money.
However, the money did not follow. The Commission kept the funds blocked for the remainder of that government’s term and released the first payments almost immediately after Donald Tusk took office in December 2023, closing the Article 7 procedure on May 29, 2024 by reference to the new government’s stated intentions rather than to any completed reform — a pattern described as a rule of law “à la carte.” The institution Poland had been required to create then turned out, in practice, to serve a different purpose: not protecting judicial independence, but screening judges by the date of their appointment.
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Source of cover photo: iStock
