- Continuing the dispute over the 2017 reform of Poland’s National Council of the Judiciary (NCJ), on June 29, the Presidium of the renewed National Council of the Judiciary adopted a position declaring that it does not recognize the positions taken by the two previous compositions of the NCJ, and announcing a review of the proceedings they conducted.
- This position rests on the claim that the two previous compositions of the NCJ were flawed. Yet those compositions were selected under exactly the same provisions and by exactly the same procedure as the current one.
- If the NCJ seeks in this way to undermine the motions of the previous compositions on the basis of which the President of the Republic of Poland appointed judges, this will amount to an attempt to circumvent Article 180 of the Polish Constitution, which permits the removal of a judge from office solely by a court ruling.
- Since the NCJ has no legal basis for actions of this kind, its members also risk liability for the unlawful processing of the personal data of candidates whose proceedings have already been concluded.
- NCJ members who engage in challenging the status of judges appointed by the President on the basis of the Council’s earlier resolutions expose themselves to disciplinary liability, including removal from judicial office.
On July 1, 2026, a communiqué on the position adopted by the Council’s Presidium the previous day was published on the website of Poland’s National Council of the Judiciary (NCJ). The communiqué is exceptionally brief, and its essence is expressed in the very first sentence:
At its meeting on June 29, 2026, the Presidium of the National Council of the Judiciary adopted a position in which it does not recognize the positions and assessments of legal acts adopted by the NCJ during the period from March 6, 2018 to May 15, 2026.
Despite this brevity, the communiqué contains two highly consequential and wholly unfounded assertions.
The NCJ challenges the legitimacy of its previous compositions, even though they were selected in exactly the same way as the current composition.
First, as its content makes clear, the position was adopted because of the:
flawed formation of the judicial component of the Council during the period from March 6, 2018 to May 15, 2026.
As we have written on many occasions, however, this is an entirely misconceived charge. The current composition of the NCJ was selected on the basis of exactly the same provisions — Article 9a et seq. of the Act on the NCJ — as in 2018 and 2022. This is expressly acknowledged in the Resolution of the Sejm of the Republic of Poland of May 15, 2026 on the election of members of the National Council of the Judiciary, published in the official gazette Monitor Polski.
It is worth noting that the dispute over the legitimacy of Poland’s National Council of the Judiciary was central to the rule-of-law dispute with the European Commission, which led the latter to withhold tens of billions of euros in funding for Poland for as long as the government of Mateusz Morawiecki remained in office.
If, however, the flawed formation of the previous NCJ compositions were to follow from the fact that they were selected on the basis of Article 9a(1) of the Act on the NCJ, according to which:
The Sejm shall elect, from among the judges of the Supreme Court, the common courts, the administrative courts, and the military courts, fifteen members of the Council for a joint four-year term.
— Then it would necessarily make the current composition no less flawed than the previous ones.
The fact that the Sejm elected the NCJ was indeed was indeed the basis for the claims raised by the leftist and liberal parties that were then in opposition and now form Poland’s ruling coalition, as well as by the European Commission itself regarding the KRS’s legality—but only for as long as the previous Law and Justice-led United Right coalition remained in power.
In reality, however, neither the previous nor the current compositions are in any way flawed on that ground. This fact was unequivocally confirmed by Poland’s Constitutional Tribunal in its judgment of March 25, 2019 (K 12/18), in which the Constitutional Tribunal expressly found the currently binding provisions of the Act on the NCJ, governing the manner of electing the judge-members of the NCJ, to be compatible with the Constitution of the Republic of Poland. This is hardly surprising, since the provisions of Article 187 of the Constitution should raise no doubts in this respect: while they expressly specify, in point 3 of paragraph 1, who elects the four members from among the Deputies (the Sejm of the Republic of Poland) and the two members from among the Senators (the Senate of the Republic of Poland), they nowhere specify who elects the 15 members referred to in point 2, from among the judges of the Supreme Court, the common courts, the administrative courts and the military courts. This means that the matter has been left to the discretion of the legislator.
Nor can the factor distinguishing the legality of the NCJ elected in 2018 and 2022 from the current NCJ be, under any circumstances, the so-called “judicial primaries” held in April of this year. First, they were entirely informal in character and devoid of any legal basis, and therefore cannot be regarded as a legally relevant act. Second, they were by no means either transparent or universal — suffice it to say that many judges, and indeed entire courts — chief among them the Supreme Court, the Supreme Administrative Court and the regional administrative courts — did not take part in them at all. According to calculations by the Lawyers for Poland association, only 40% of judges took part in this sort of “judicial primaries” whose goal was to let judges choose the ruling coalition’s candidates to the NCJ.
It should also be added that these “primaries” were inconsistent with international standards. As it happens, in Spain — where, incidentally, a system of parliamentary election of the judicial council, very similar to the Polish one, is currently in force — a change to a system in which judges would elect the council’s members from among themselves was under consideration. The proposal put forward in this respect, resembling in many ways the “primaries” held in Poland, was very clearly criticized by the Venice Commission. The Commission warned in particular of the risk of internal politicization of the judicial community and of the domination of the elections by judicial organizations linked to political circles, which is exactly what happened this year in Poland.
Indeed, the Polish “primaries” became the exact fulfillment of what the Venice Commission had warned against — they were completely dominated by a single judicial association that made no secret of its sympathy for the current authorities, while independent candidates were harassed for the mere fact of taking part in them.
A signal of further challenges to the status of judges appointed by the President?
The position of the renewed NCJ’s Presidium is therefore entirely groundless. Nonetheless, this did not prevent the NCJ’s Presidium from drawing from these erroneous premises declarations that are very real and extremely alarming. The position announced:
the establishment by the Chairman of the NCJ of a team whose task will be to carry out an analysis of the positions and an assessment of legal acts concerning the judiciary, as well as of the proceedings conducted by the so-called neo-NCJ.
This last statement is particularly significant — one may read into it a signal of an attempt to undermine the proceedings conducted in 2018–2024 for the examination and assessment of candidates for judicial office and the subsequent submission to the President of the Republic of Poland of motions for the appointment of judges. It must be clearly emphasized here that such action on the part of the current NCJ would be entirely unlawful. Once a judge is appointed by Poland’s President, pursuant to Article 179 of the Constitution, the entire procedure is closed and cannot be reopened in any way. In turn, under Article 180 of the Constitution, a judge, once appointed, may be removed from office only by a court ruling and only in the cases specified by statute.
Might the NCJ be attempting to circumvent this requirement, by seeking to repeal the resolutions submitting to the President of the Republic of Poland motions for the appointment of judges? If so, this will be wholly unlawful action, and thus devoid of any legal effect. No provision of law authorizes the NCJ to take decisions of this kind, and this is yet another attempt by Premier Donald Tusk’s ruling coalition, this time through its new appointees in the National Judicial Council, to question the legitimacy of all the judges that were appointed after the 2017 reform of the National Council of the Judiciary.
The draft act on restoring the right to an independent and impartial court by regulating the effects of the resolutions of the National Council of the Judiciary adopted in the years 2018–2025 is, after all, a similar, unconstitutional attempt to circumvent — or rather to outright breach Article 180 of the Polish Constitution. As we noted in our opinion, also presented during a public hearing in the Sejm of the Republic of Poland, the draft provides for the removal of judges appointed since 2018 from their current judicial posts by operation of law, without a court ruling. Moreover, in its latest form, it limits its scope to judges appointed on the basis of motions adopted by the National Council of the Judiciary acting during the period from March 7, 2018 to May 13, 2026, even though the legal basis of the NCJ operating after May 13, 2026 remains the same!
Summary
If the Poland’s National Council of the Judiciary actually attempts to circumvent Article 180 of the Polish Constitution by repealing the resolutions issued by the two previous compositions of the NCJ, then all of its previous actions and positions, despite their equally clear unlawfulness, will clearly pale by comparison. In such a situation, the imposition on its members of disciplinary liability, culminating in the most severe penalty — removal from judicial office — appears to be the only possibility. This, in turn, would also result in their loss of the mandate of NCJ members, pursuant to Article 14(1)(5) of the Act on the NCJ.
As for the judges who might potentially be affected by the consequences of the NCJ’s actions — they should rest easy: action of this kind, being manifestly contrary to Article 180 of the Polish Constitution, cannot produce any legal effects. And should the government attempt to enforce it, this can end in only one way — very high compensation payments from the State Treasury.
Source of cover photo: iStock.
