- Earlier this month, Poland’s Supreme Court adopted a resolution in which it held that no court or other public authority is empowered to deem a Supreme Court judgment non-existent and to disregard its effects, and furthermore the Republic of Poland has not conferred upon the institutions of the European Union or any other international organization the power to establish rules governing the organization and functioning of the national judiciary.
- Reacting to this resolution, Justice Minister Waldemar Żurek threatened Supreme Court judges with unspecified consequences, and then issued a statement in which he challenged the resolution’s validity. The Minister’s actions raise serious doubts from the perspective of the constitutional principles of legality and the separation of powers.
- It is worth noting that during the session at which the resolution was adopted, the Supreme Court did not allow prosecutors seconded to the National Prosecutor’s Office by Dariusz Korneluk to participate, recalling that the lawful National Prosecutor is Dariusz Barski, as the replacement of the National Prosecutor in January 2024 was conducted in an unlawful manner by Justice Minister Adam Bodnar, who was Żurek’s predecessor in the Tusk government.
On December 3, 2025, the Polish Supreme Court, sitting as the combined Chambers of Extraordinary Review and Public Affairs and of Labor and Social Insurance, issued a resolution, bearing case number III PZP 1/25. This resolution unequivocally stated that:
1. No court or other public authority is authorized to declare a Supreme Court judgment null and void and to disregard its effects, even if this was to be done by invoking European Union law.
2. The Republic of Poland has not conferred on the institutions of the European Union or any other international organization the authority to enact rules governing the organization and functioning of the national judiciary, nor to determine the scope of their application. These powers are vested exclusively in the constitutional organs of the Republic of Poland and may not be transferred pursuant to Article 90(1) of the Constitution of the Republic of Poland; consequently, Article 91(2) and (3) in conjunction with Article 87 of the Constitution of the Republic of Poland do not apply in this respect.
With this resolution, Poland’s Supreme Court distanced itself from an earlier legal principle set out by a seven-judge panel only of the Labor and Social Insurance Chamber in the resolution dated September 24, 2025, case no. III PZP 1/25.
Concerns about the resolution of the Labor and Social Insurance Chamber
In that September resolution, the judges of the Chamber of Labor and Social Insurance stated that the judgments of the Chamber of Extraordinary Review and Public Affairs of the Polish Supreme Court, when rendered by a panel with the participation of even a single judge appointed since 2018, should be considered null and void (nonexistent).
This position reflects the ongoing dispute concerning a 2017 reform of the country’s judiciary by the then conservative parliamentary majority and was based on a highly controversial judgment of the Court of Justice of the European Union dated September 4, 2025, in case C-225/22 AW “T”. In it, the CJEU held that Polish courts may treat judgments of the Chamber of Extraordinary Control and Public Affairs of the Polish Supreme Court (which was created as part of the said reform) as null and void, if this is necessary to ensure the primacy of EU law.
This judgment, however, in the first place, clearly went beyond the principle of conferral, laid down in Articles 4 and 5 of the Treaty on European Union, according to which the European Union has competences only in those areas in which they have been conferred upon it by the Member States—and the organization of the judiciary is not such an area.
Secondly, even setting aside the above doubts, the CJEU judgment may apply only to specific cases in which EU law is applied. Meanwhile, the Polish Minister of Justice, Waldemar Żurek, decided to lead the public astray, suggesting that the judgment implies a general and abstract principle according to which judges appointed since 2018:
are not a court.
However, the CJEU is in no way empowered to determine such an effect.
Unfortunately, the above-mentioned panel of seven judges sitting in the Supreme Court’s Labor Law and Social Insurance Chamber decided to follow the Minister’s lead and, in the aforementioned resolution, failed to take the foregoing considerations into account.
Moreover, in that resolution it was stated that a lower court may not only completely ignore the Supreme Court’s ruling, which vacated that court’s judgment and remanded the case at play to it for reconsideration, but may even consider itself competent to hear the extraordinary appeal, which was filed in the case.
The above position clearly contradicts the principle of legality referred to in Article 7 of the Constitution:
Public authorities act on the basis of and within the limits of the law.
There is no provision of Polish law that grants ordinary courts the competence to hear extraordinary complaints. Pursuant to Article 92 of the Act on the Supreme Court, the only competent panel in this respect is one composed of 2 Supreme Court judges adjudicating in the Chamber of Extraordinary Control and Public Affairs and 1 Supreme Court lay judge, or, if the extraordinary complaint concerns a ruling issued by the Supreme Court, a panel of 5 judges of that Chamber and 2 lay judges. The consideration of such a complaint by a different panel, including in particular directly by a lower court, would result in nullity of the proceedings within the meaning of Article 379 point 4 of the Polish Code of Civil Procedure, or, in criminal procedure—in accordance with Article 439 § 1 point 2 of the Code of Criminal Procedure—would be subject to mandatory quashing by the appellate court.
Resolution of the Joint Chambers of Poland’s Supreme Court
In this context, it is not surprising that the Polish Supreme Court decided to distance itself from the above legal principle, acting pursuant to Article 88 of the Supreme Court Act, all the more so because, when issuing the September resolution, the Labor and Social Insurance Chamber also violated an institutional norm set out in Article 82 § 2 of the Supreme Court Act, under which the legal issues concerning judicial independence or the independence of a court fall within the jurisdiction of exclusively the entire Chamber of Extraordinary Control and Public Affairs of the Supreme Court.
According to the notice published on the Supreme Court’s website, the combined chambers did not, however, focus on the above procedural concerns, but rather on more fundamental issues, namely the constitutional limits on the transfer of powers to the European Union. It was emphasized that:
the organization of the judiciary falls within the field in which the Member States—including the Republic of Poland – have not conferred competences on the European Union, and thus these are areas in which—in accordance with Article 5 TEU—it is not the Union but the Member States that have exclusive legislative competence. CJEU rulings issued beyond the scope of conferred competences (ultra vires) […] undermine the constitutional stability of the Member States. They therefore do not produce the effects characteristic of CJEU judgments in areas of regulation that the Member States have conferred on the European Union (conferred competences).
Professor Aleksander Stępkowski, a judge and former spokesperson of the Supreme Court (SN) and a member of the panel that issued the resolution of the combined chambers, emphasized this point even more strongly. In a press interview, he stated, referring to the high-profile Constitutional Tribunal ruling of November 24, 2010 in the case concerning the Lisbon Treaty, that Poland not only never transferred to the EU powers concerning the organization of the judiciary, but indeed, in light of the Polish Constitution, could not do so:
Article 90(1) of the Constitution of the Republic of Poland provides for the possibility of transferring the Republic of Poland’s powers to international bodies in certain matters. The term “certain” is extremely important here. Later, in 2010, the Constitutional Tribunal, while examining the constitutionality of the Treaty of Lisbon, devoted a great deal of attention specifically to this limitation on the ability to transfer. Matters concerning the organization of the judiciary were indicated very clearly and directly as those matters in which not only did we not transfer any competences, but indeed the Republic of Poland cannot transfer those competences, because these are matters that belong directly to the very essence of the sovereignty of the Republic of Poland. If we handed them over, we would lose sovereignty; we would not be a sovereign state.
Returning to the resolution of the joint chambers of the Polish Supreme Court, it also stated that maintaining the September resolution adopted by seven judges of the Chamber of Labor and Social Insurance within the legal order would in fact prevent the application of EU legal norms in many areas, due to the inability to file extraordinary complaints in such cases, when these complaints are, after all, intended to ensure compliance with the law.
The joint chambers of the Polish Supreme Court also recalled that, especially in light of the judgment of March 25, 2019 (K 12/18), in which the country’s Constitutional Tribunal expressly found the currently binding provisions of the Act on the National Council of the Judiciary (KRS), governing the manner of electing judge-members of the KRS, to be consistent with the Constitution:
Granting the Sejm of the Republic of Poland the competence to elect judges to the KRS cannot constitute a violation of constitutional norms, for the Constitution of the Republic of Poland does not specify the manner of selecting the judicial component of the KRS, and in this respect that act grants exclusive competence to the ordinary legislator. Accordingly, there is no reasonable basis for raising objections to the lawfulness of the appointment of Supreme Court judges with respect to individuals appointed on the basis of motions from the National Council of the Judiciary (KRS), which operates under the currently binding Act on the National Council of the Judiciary.
Thus, such was the Polish Constitutional Tribunal’s stance on the dispute around the 2017 reform of the National Council of the Judiciary. And in the present case, in accordance with Article 87 § 1 of the Act on the Supreme Court, the resolution of the combined chambers acquired, upon its adoption, the force of a legal principle. As per Polish law, contrary to the 7-judge panel’s September resolution that was supported by Donald Tusk’s Justice Minister, it is binding on all panels of the Supreme Court, which, in light of Article 88 of the Act on the Supreme Court, could depart from it only if a new resolution were adopted by the same combined chambers or by the full bench of the Supreme Court.
Response from the Ministry of Justice
Shortly after the resolution was adopted, Minister of Justice Waldemar Żurek sharply reacted to it, stating that Supreme Court judges may face some consequences for adopting the resolution:
The state has every right to impose such consequences. And I, as the Prosecutor General, represent the state on this front. I won’t specify what those consequences might be. I prefer to act rather than talk.
Unfortunately, this is yet another recent instance of the Justice Minister in the EU-backed governement of Donald Tusk making an unlawful threat against the Supreme Court.
In the statement by the Ministry of Justice published a few days later, a somewhat less confrontational tone was adopted, noting at the outset that:
The Ministry of Justice’s position is based on the CJEU judgment and the resolutions of the lawfully composed panels of the Supreme Court, and is not an objectively settled state of the law.
Nevertheless, the Ministry, entirely without basis, stated that:
Resolution of the Supreme Court dated December 3 of this year. (I NZP 7/25) is, in the Ministry’s assessment, contrary to the Constitution of the Republic of Poland and European Union law, and in light of the case law of the CJEU and the ECtHR should be treated as legally flawed and non-binding.
At the same time, in the final part of the Ministry’s position, a rather unexpected political angle appeared:
It is also important to emphasize the political dimension of this matter. This resolution is anti-European in nature and serves to foster hostility towards the institutions of the European Union and the Council of Europe. The authors declare their intention to distance Poland from the rule-of-law standards associated with European Union membership. These practices threaten the independence of the courts and Poland’s very position in the EU.
In other words, the Ministry indirectly stated here that political considerations, such as Poland’s positive relations with EU bodies, are more important than the issues of the Republic of Poland’s sovereignty and the supreme role of its Constitution in the Polish legal order – a stance that is clearly at odds, for example, with the judgment of the Constitutional Tribunal of October 7, 2021. Moreover, Poland’s Justice Ministry seems to suggest here that there is no alternative to Poland’s membership in the EU under the current rules and that a negative assessment of the current functioning of EU institutions is inadmissible. Such statements raise serious doubts from the standpoint of freedom of expression, guaranteed in Article 54 of the Constitution.
First and foremost, however, the very fact of issuing such a position, in which the Justice Ministry claims for itself the authority to assess the validity of the Supreme Court’s resolutions, raises very serious doubts from the standpoint of the principle of legality and the separation and balance of powers (as set out in Article 10 of the Polish Constitution). Attorney Jerzy Kwaśniewski, President of the Ordo Iuris Institute, therefore rightly noted that the Ministry’s actions may constitute an offense of abuse of authority (Article 231 of the Criminal Code) or even exerting influence on the court’s official acts (Article 232 of the Criminal Code).
Position of the Supreme Court Regarding the Legitimate National Prosecutor
During the session at which the Supreme Court adopted a resolution of the combined chambers, another significant ruling was also rendered. Pursuant to Article 85 of the Act on the Supreme Court, the Prosecutor General, that is, Justice Minister Waldemar Żurek, was notified of the session, and he appointed as his deputies two prosecutors seconded to perform duties at the National Prosecutor’s Office. These prosecutors were however not allowed to participate in the meeting, because they were delegated to the National Prosecutor’s Office by Dariusz Korneluk, who falsely claims to be the National Prosecutor, in place of Dariusz Barski, whom Minister Bodnar and Prime Minister Donald Tusk unlawfully barred from performing his duties as of January, 2024 (one month after Donald Tusk was sworn in as prime minister).
According to media reports, Supreme Court judge Paweł Czubik stated on this occasion:
According to the resolution of the Criminal Chamber, Dariusz Korneluk is not the legitimate National Prosecutor and there is no doubt about it. We cannot recognize your authority. You have not been successfully delegated to perform your tasks in the National Prosecution office. This concern is preventing you from participating in the session.
The Independent Association of Prosecutors “Ad vocem” pointed out on this occasion that the resolution of the combined chambers, which found it impermissible to treat Supreme Court judgments as nonexistent and to ignore their effects, implies the need to implement the aforementioned resolution of the Criminal Chamber and thus to enable Dariusz Barski to resume his duties.
Summary
The new December resolution of the joint chambers of the Supreme Court constitutes an extremely important voice in the debate on the limits of the powers transferred by Poland to the European Union. It should be noted that in Poland, the Supreme Court is the country’s cassation court, and it is separate from the Constitutional Tribunal. In the past, Poland’s Constitutional Tribunal itself has several times stated the supremacy of the Polish constitution over EU law and, in particular, the CJEU’s case law. The last time was in 2021 when it declared the measures applied by the CJEU to the Polish judiciary as enacted ultra vires (beyond its powers) and, thus, producing no legal effects in the Polish legal system. It is extremely telling that the issue of Polish sovereignty was not addressed at all in the Ministry of Justice’s statements responding to the resolution.
It is also extremely regrettable that the Ministry, which pays lip service to restoring the rule of law and the independence of the judiciary, openly disavows court rulings unfavorable to it, calls for them to be disregarded, and threatens the judges who issued them with unspecified consequences. Everything indicates that the use of unlawful threats against the judiciary has permanently entered the repertoire of Minister Żurek’s statements. One can only hope that, under the appropriate circumstances, he will be the one to bear the just consequences of these actions.
What is also very telling in this situation is Brussels’ continued support for the Tusk government—unsurprisingly reflected in this year’s rule-of-law report issued by the European Commission. The Polish case demonstrates beyond any doubt that the rhetoric about defending the rule of law in member states (notably in Poland from 2015 to 2023, and in Hungary to this day) is a sham and serves other purposes.
See also:
- Case Law in Selected EU Member States on Constitutional Supremacy over EU Law
- Do the September 2025 Amendments to the Slovak Constitution Violate International and European Law?
Source of illustration: IStock.
