- On October 13, 2026, the Venice Commission published its opinion on the powers of the President of Poland in the context of the swearing-in of Constitutional Tribunal judges. The very next day, the parliamentary majority used it to stage, in the office of the Speaker of the Sejm, the “oath” of a candidate who until recently had been a minister in Donald Tusk’s government.
- The Commission describes the President’s role as primarily ceremonial, ignoring those findings of the Constitutional Tribunal’s K 34/15 judgment according to which the oath produces legal effects and may be postponed, inter alia, where the person elected lacks the capacity to take up the mandate.
- The Commission links the President’s obligation to receive the oath to persons validly elected by the Sejm. At the same time, it avoids answering who may assess whether an election was valid, and in what circumstances—merely stating that it cannot be the President.
- The Commission allows the oath to be taken in writing—openly admitting that this departs from the literal wording of the statute. In doing so, it steps into the role of Poland’s constitutional court.
- The opinion makes the Sejm the sole judge in its own cause and undermines the principle of the separation and balance of powers. The Commission has thereby flagrantly contradicted its own mission of promoting the rule of law.
The European Commission for Democracy through Law, better known as the Venice Commission, is a body of the Council of Europe established in 1990. Under Art. 1(1) of its Revised Statute, it is “an independent consultative body.” It issues opinions at the request of states and Council of Europe institutions, but those opinions are purely advisory: they are not a source of law, they bind no one, and Poland has never conferred any powers on the Commission by an international agreement, as Art. 90 of the Polish Constitution would require.
Since taking office in December 2023, Donald Tusk’s government has frequently requested opinions from the Venice Commission—but has followed them only selectively. In an opinion of October 2024, requested by Poland’s own Minister of Justice, the Commission stressed that judges appointed since 2018 with the involvement of the reformed National Council of the Judiciary (NCJ) cannot be removed from office en masse by statute: any review must be individual and carried out by a body independent of the government. In December 2024, it held that terminating the mandates of all Constitutional Tribunal judges would be unacceptable and that the government should publish all of the Tribunal’s judgments issued since March 2024, which—contrary to Art. 190(2) of the Constitution—have gone unpublished on the personal decision of Prime Minister Donald Tusk. Neither recommendation has been followed: the government still refuses to publish the Tribunal’s rulings, and in early 2026 it sent the Sejm a bill on the effects of NCJ resolutions adopted in 2018–2025 which provides for the removal of judges from office by operation of statute—without a court judgment—contrary to Art. 180(2) of the Constitution. Yet when the Commission’s October 2026 opinion suited the ruling camp, the government began putting its findings into practice within a day.
In substance, the opinion concerned the dispute over Poland’s Constitutional Tribunal.The ruling coalition has, as stated above, refused to recognize Poland’s Constitutional Tribunal since 2024 and for many months left its vacancies unfilled: between February 2025 and January 2026, the parliamentary majority repeatedly rejected the only candidates put forward, nominated by the opposition Law and Justice party, until six seats were vacant. On March 13, 2026, the Sejm, Poland’s lower house of parliament, finally elected six judges in a procedure whose regularity has been seriously questioned. President Karol Nawrocki swore in two of them on April 1, postponing the oaths of the other four pending clarification of his doubts, as the Tribunal’s case law allows. On April 9, however, those four read out the oath in the Sejm before the Speaker of the Sejm, with a notary present and without the President—even though Art. 4(1) of the Act on the Status of Judges of the Constitutional Tribunal requires the oath to be taken before the President. The President then asked the Constitutional Tribunal to resolve a competence dispute with the Sejm over this very question (case Kpt 1/26), and on May 12, 2026, the Tribunal ruled that the President has no absolute obligation to receive the oath. On September 4, 2026, the Sejm elected Maciej Berek, a former minister in Tusk’s government, to the Constitutional Tribunal, although the President’s office questions whether he meets the statutory requirement of ten years of practice as a legal adviser. On October 14—one day after the Venice Commission published its opinion—Berek took his “oath” in the Speaker’s office.
The Venice Commission issues its opinion
On October 13, 2026, the Venice Commission published its opinion on the powers of the President in the context of the oath-taking of the judges of the Constitutional Tribunal (CDL-AD(2026)031), adopted at its 148th plenary session on October 9–10. The opinion was requested by the Monitoring Committee of the Parliamentary Assembly of the Council of Europe (PACE). Like any position of the Venice Commission, the opinion is not a source of law and binds no one, as we have already stated above. The Commission can neither issue a binding interpretation of the Polish Constitution—de facto overriding judgments of the Constitutional Tribunal, which under Art. 190(1) of the Constitution “shall be of universally binding application and shall be final”—nor suspend the provisions of the Act on the Status of Judges of the Constitutional Tribunal. Yet the opinion contains solutions that point precisely in that direction.
Given that the ruling camp has turned this very opinion into an alibi for its actions, it is worth taking a closer look at what the Commission’s reasoning actually rests on—all the more so since, ahead of the plenary session, the Ordo Iuris Institute submitted to the Commission its analysis “The Role of the President of the Republic of Poland in the Procedure for Taking Up the Office of a Constitutional Tribunal Judge”, setting out the arguments for the President’s special position as guardian of the Constitution.
A reading of the opinion shows, however, that the Commission treats Polish case law selectively and in several key places is flagrantly inconsistent in its approach to the issues under discussion: some it develops in great detail, even proposing radical solutions such as departing from the text of a statute, while others it merely touches upon, without indicating any way of resolving them. At the same time, a careful reading of the opinion raises the question of whether Maciej Berek’s “oath” would be admissible even in the light of the opinion itself.
The Commission ignores key findings of the K 34/15 judgment while stepping into the Tribunal’s shoes
First, the Commission regards the President’s role in the oath-taking as primarily ceremonial (paras. 60–62), relying on the argument—irrelevant in this context—that the oath of Constitutional Tribunal judges is provided for by statute rather than by the Constitution. Yet the fact that an act is regulated by statute does not make it legally indifferent: statutes enjoy a presumption of constitutionality, and public authorities are bound by Art. 7 of the Constitution, which requires them to act only on the basis and within the limits of the law. In its judgment of December 3, 2015 (K 34/15)—issued before persons elected by a Sejm in which Law and Justice held the majority had gained a majority on the Tribunal—the Constitutional Tribunal examined at length the significance of the oath taken before the President in the procedure for assuming the office of a Constitutional Tribunal judge, stating concretely and unequivocally:
The taking of the oath of office before the President of Poland in accordance with Article 21(1) of the Constitutional Tribunal Act is not merely a solemn ceremony that is symbolic in character […]. […] the taking of the oath of office enables the judge to commence the exercise of judicial duties, i.e. the exercise of his/her mandate.
In the analytical part of the opinion, the Commission devotes essentially a single paragraph to K 34/15 (para. 70, briefly supplemented in para. 71), acknowledging that the Tribunal allowed the President to postpone the oath in extraordinary circumstances. It makes no mention, however, of the Tribunal’s finding that the oath is not merely a ceremony but an act of considerable legal significance. At the same time—without any justification—it states in the same paragraph that the circumstances identified by the Tribunal as potentially justifying such a postponement
do not appear to be present in the cases under consideration.
Yet one of those circumstances expressly identified by the Tribunal is the elected person’s lack of legal capacity to take up the mandate of a judge—precisely the issue raised by the doubts concerning Berek’s professional experience. The Commission was aware of those doubts, noting them in para. 27 of the opinion, yet it did not devote a single sentence of analysis to them.
Second, the Commission itself acknowledges (para. 79) that remedies for cases in which the President fails to invite elected judges to take the oath should be regulated by statute:
Clear legislative provisions to remedy the failure of the President to participate in the oath-taking procedure […] undoubtedly desirable from the perspective of legal certainty.
Barely two paragraphs later (para. 81 et seq.), however, it allows that in exceptional circumstances—such as the non-effectiveness of the constitutional remedy, or the President’s unlawful refusal to receive the oath or his delaying it for an unjustified period of time—the oath may be taken in writing, contrary to the text of the statute. And it openly admits as much:
Although such a solution would depart from the literal wording of the relevant statutes […].
In the Commission’s view, such a solution nevertheless would better preserve the constitutional allocation of powers. This passage deserves closer attention, because another important point follows from it. Here the Commission de facto discredits the government’s narrative—maintained in recent days by Maciej Berek as well—that the statutory phrase “before the President” requires neither the President’s presence nor his active receipt of the oath. On the contrary, the Commission openly admits that a written oath departs from the literal wording of the statute—in line with our analysis—and only then goes on to allow such a solution, seeking a basis for it not in the statute but in the Constitution. It must be emphasized once again, however, that the Commission has no authority to propose such solutions, since rebutting the presumption that a statute is constitutional—and thereby allowing it to be disapplied in whole or in part—falls within the exclusive competence of the Constitutional Tribunal. It is therefore only the Tribunal—in the competence dispute pending before it (Kpt 1/26), whose initiation by the President was, incidentally, proposed by attorney Jerzy Kwaśniewski, President of the Ordo Iuris Institute, in an analysis of March 31, 2026—that will be competent to decide whether a statutory provision may be departed from.
Returning to the opinion: on the one hand, the Commission finds that the conditions for what the Constitutional Tribunal expressly allowed—withholding the oath—are not met; on the other, it itself usurps the powers of the Tribunal by stating that in other exceptional circumstances the text of a statute may be ignored. Tellingly, in the same para. 81 it also treats the President’s application to the Constitutional Tribunal as a means of blocking judges from taking office—that is, recourse to the very procedure that Art. 189 of the Constitution provides for such disputes. Moreover, the form of written oath recommended by the Commission is modeled on a solution from a statute which—as the Commission itself admits in para. 83—never entered into force, because in its judgment of July 29, 2025 (Kp 3/24) the Constitutional Tribunal found, among other things, a written oath submitted to the Speaker of the Sejm to be unconstitutional. The Commission is thus recommending a solution that Poland’s constitutional court has already struck down.
The Commission sees no body that could review the Sejm
The contrast with another passage of the opinion is striking. In para. 65, the Commission itself acknowledges that questions may arise as to the legality of the Sejm’s election, the identification of the vacancy to which a judge was elected, or whether the elected judge meets the statutory requirements. It then reduces the matter to the question of which body is competent to decide such issues, in what procedure and with what legal effects—only to conclude:
The Constitution has not assigned this role to the President.
This time, however, the Commission does not even attempt to propose a remedy. When it came to limiting the President’s role, it was able to identify the steps to be taken in exceptional circumstances. When it comes to possible abuses by the Sejm, it offers nothing that could prevent them. Yet under Art. 126(2) of the Constitution, it is precisely the President who shall ensure observance of the Constitution, and who holds the prerogative of appointing judges of the common courts, the administrative courts and the Supreme Court (Art. 179 in conjunction with Art. 144(3)(17) of the Constitution). The Commission ignored both provisions and the role of the President that flows from them. It likewise disregarded the role of the Constitutional Tribunal, including the competence dispute pending before it, which it notes in para. 24 but entirely omits from the substantive part of the opinion.
The lack of any elaboration on this point—who may establish that the Sejm’s election procedure was flawed, and how—is all the more glaring given what exactly the Commission stated in para. 81, where the Commission justifies departing from the text of the statute as follows:
[…] in the prevailing circumstances of non-effectiveness of the constitutional remedy, strict adherence to the statutory requirement that the oath be administered before the President would enable the President, by refusing to act, or by applying to the Constitutional Tribunal to prevent the assumption of office by judges validly elected by the Sejm and thereby frustrate the constitutional distribution of powers.
The Commission’s entire construction thus rests on the assumption that the election was valid. A contrario, if the election was flawed, the justification for departing from the statute collapses. What is more, the Commission itself here calls the taking of the oath before the President a statutory requirement, which once again contradicts the narrative of the ruling camp.
Yet serious doubts about the regularity of the election procedure exist with regard to both Maciej Berek and the four persons who “took the oath” in the Sejm on April 9—doubts that were also set out in submissions to the Commission ahead of its session. Unfortunately, the Commission did not address them on the merits.
Constitutional practice to date contradicts the Commission’s position
The Commission’s position is also wholly at odds with Polish constitutional practice to date. The case closest to the present situation is that of Lidia Bagińska, elected to the Constitutional Tribunal on December 8, 2006. President Lech Kaczyński postponed receiving her oath because doubts had arisen as to whether she met the requirements for taking office. She took the oath only three months later, on March 6, 2007, before the President. No one at the time suggested that she could take it before the Speaker of the Sejm. Prof. Piotr Winczorek, who believed that Bagińska had lost the moral qualifications to hold office, even stressed that until she had taken the oath before the President, she was not yet fully a judge.
A similar situation befell Roman Hauser, Andrzej Jakubecki and Krzysztof Ślebzak. Elected in October 2015, they never took the oath, and no one—including the Constitutional Tribunal in the K 34/15 judgment, which concerned them directly—suggested that they could do so in some substitute form.
To sum up this point, the opinion leaves a great deal to be desired from the standpoint of the separation of powers (Art. 10 of the Constitution). It makes the Sejm the sole judge of the regularity of the election of those whose very task is to review whether the Sejm’s actions comply with the Constitution. We have already written— most notably in our analysis submitted to the Commission—about how absurd this is. A body that itself elects judges, itself assesses the legality of that election and itself receives their oaths ceases to be subject to any oversight at all—the very negation of checks and balances.
Conclusion
The Venice Commission’s opinion cannot serve as grounds for disregarding statutory provisions or judgments of the Constitutional Tribunal—and not only because it is non-binding. The Commission ignores those parts of the K 34/15 judgment that do not fit its thesis of a ceremonial role of the President, while recommending a solution that the Tribunal already found unconstitutional in Kp 3/24. Nor does the opinion change the fact that in its judgment of May 12, 2026 (K 3/26), the Tribunal ruled that the President has no absolute obligation to receive the oath.
Moreover, the dispute over whether the power to receive the oath belongs exclusively to the President has been pending before the Tribunal since April in case Kpt 1/26. Until it is resolved, proceedings before the bodies party to the dispute are—under Art. 86(1) of the Act on the Organization of and Proceedings before the Constitutional Tribunal—suspended by operation of law, as the Commission itself noted in para. 24 of its opinion. Accordingly, any “oath” taken without the President, even one invoking the Commission’s authority, produces no legal effects. At least in the view of some legal scholars, it may even be treated as a refusal to take the oath before the President, which under Art. 4(2) of the Act on the Status of Judges of the Constitutional Tribunal is tantamount to resigning the office.
In this light, it is hard to escape the impression that an opinion meant to help resolve the dispute over the Tribunal has in practice exacerbated it. Instead of pointing to a way of resolving the dispute through the competent body—the Tribunal itself—the Commission handed the ruling camp a pretext for further action in disregard of the statute. The Venice Commission, which so often reminds states of the principle of the separation of powers, has this time handed one branch of power—the Sejm—the key to overseeing itself. It is hard to imagine a more telling example of double standards. Such a solution would certainly be contrary to the rule of law—the very principle whose promotion is one of the Venice Commission’s main objectives under Art. 1 of its statute.
Instead of following the Commission’s position, we therefore once again recommend that the authorities turn to the solutions proposed in the aforementioned Ordo Iuris analysis “The Role of the President of the Republic of Poland in the Procedure for Taking Up the Office of a Constitutional Tribunal Judge” (in Polish), which are grounded in the case law of the Constitutional Tribunal:
- if the President has doubts as to whether a given person meets the criteria for taking up the office of a Constitutional Tribunal judge, he should withhold receiving the oath until those doubts have been clarified;
- those doubts may be resolved by requesting clarification from the Speaker of the Sejm and, should that prove insufficient, by submitting an appropriate application to the Constitutional Tribunal;
- under no circumstances, however, is it permissible to replace the oath before the President with any other act, including a written oath.
Equally reprehensible is the hypocrisy of the government, which simply ignored the Venice Commission’s opinions whenever they were inconvenient. Yet when an opinion suited it, the government implemented it in less than a day—even though the status of each of these opinions (non-binding, not amending statutes and not overriding judgments) was exactly the same.
Once again, it is plain that slogans such as “international standards,” “judgments of European courts,” “Venice Commission opinions” and, ultimately, “the rule of law” itself matter to Donald Tusk’s government only insofar as they can serve as weapons in a political dispute.
Source of cover photo: Wikipedia
