MAIN POINTS
1
The Polish Constitutional Tribunal holds that, in light of the provisions of the national Constitution, it is impermissible to interpret the provisions of the Code of Civil Procedure on judicial recusal to mean that all judges appointed since 2018 are, by operation of law, disqualified from adjudicating.
2
The Tribunal has emphasized that such an interpretation of these provisions would amount to unjustified differential treatment of judges. He has also recalled that no authority is empowered to challenge the validity of judicial appointments made by the President under the prerogative vested in him.
3
The Tribunal’s judgment has thus complemented its existing line of case law, according to which the disqualification of a judge upon a party’s motion citing the fact that the judge was appointed in or after 2018 has been deemed inadmissible.
On November 25, 2025, the Polish Constitutional Tribunal issued a judgment (P 7/23) in which it answered the following legal question:
whether Article 48 § 1 point 1 of the Act of 17 November 1964 – Code of Civil Procedure (Official Journal of 2021, item 1805, as amended) “understood as meaning that the circumstance of a judge’s appointment by the President of the Republic of Poland, upon a motion of the National Council of the Judiciary, to hold office constitutes a ground for the judge’s disqualification by operation of law,” is consistent with Article 179 in conjunction with Article 144(3)(17) and Article 190(1) of the Constitution.
In essence, the question concerned whether a court may rely on the provisions of the Code of Civil Procedure concerning the disqualification of a judge by operation of law to disqualify a judge solely and exclusively on the ground that the judge was appointed by the President of the Republic of Poland on the basis of a motion by the National Council of the Judiciary (KRS), elected under the rules in force since 2018 (that is, one whose members chosen from among judges, as referred to in Article 187(1)(2) of the Constitution, were elected by the Sejm).
Let us recall here that the change in the method of electing KRS members was one of the main fault lines in the conflict between the then-opposition, which now governs as part of a broad left-liberal coalition led by Prime Minister Donald Tusk, and the then-parliamentary majority led by Law and Justice (PiS). This reform was deemed unconstitutional by Donald Tusk’s camp and challenged by the European Commission, neither of which, however, had the authority to rule on the matter. The Polish Constitutional Tribunal had such powers and in the judgment of March 25, 2019 (K 12/18) found this reform to be consistent with the Polish Constitution. This, however, did not change the stance of Donald Tusk and his successive justice ministers, who do not recognize the legitimacy of the current Constitutional Tribunal and have consistently refused since spring 2024 to publish and enforce all of its rulings.
However, in the judgment of November 25 of this year Poland’s Constitutional Tribunal unanimously held that such an interpretation of the provisions of the Code of Civil Procedure (k.p.c.) referred to above is unconstitutional.
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Source of cover photo: Adobe Stock
