The scope and mode of considering the application to examine the fulfilment of the requirements of independence and impartiality by an administrative court judge SK 68/25
Ref. No. SK 68/25
JUDGMENT
IN THE NAME OF THE REPUBLIC OF POLAND
Warsaw, 25 February 2026
The Constitutional Tribunal, composed of:
Jarosław Wyrembak – Presiding Judge
Stanisław Piotrowicz – Judge Rapporteur
Bogdan Święczkowski
Rafał Wojciechowski
Andrzej Zielonacki,
Recording Clerk – Agnieszka Krawczyk,
having considered, at the hearings on 19 and 25 February 2026 – in the presence of the complainant – Ms A.D.’s constitutional complaint lodged with the Constitutional Tribunal for it to consider the conformity of:
1) Article 5a(1), (10) and (11) of the Act of 25 July 2002 on the Organisational Structure of Administrative Courts (Journal of Laws – Dz. U. of 2024, item 1267) – construed in the way that “it is permissible for the application to examine a judge’s fulfilment of the requirements of independence and impartiality to be considered by the court that fails to meet the requirements of independence and impartiality, for the said court is composed of:
– judges who were appointed to judicial offices with the involvement of the National Council of the Judiciary (hereinafter: the NCJ) in the appointment procedure, where the NCJ had been constituted by bypassing the principle under Article 4 of the Polish Constitution – in accordance with which every public authority was required to obtain democratic legitimacy – and where the NCJ had acted on the basis of legal provisions deemed inconsistent with the Constitution by the Constitutional Tribunal in its judgments issued in the cases with the following reference numbers SK 43/06, SK 7/06, K 25/07, K 40/07, SK 57/06, K 62/07, and K 5/17 as well as
– judges who challenge the way of constituting the NCJ’s composition on the basis of the Act of 17 December 2017 as well as question the status of the judges appointed as of March 2018, and also are – as members of the Codification Commission, which is an internal body of the Council of Ministers – directly subordinate to the Prime Minister and the Minister of Justice” – to Article 45(1) in conjunction with Articles 2 and 7 of the Constitution;
2) Article 5a(10) and (11) of the Act on the Organisational Structure of Administrative Courts – construed in the way that “it is permissible to consider the application to examine a judge’s fulfilment of the requirements of independence and impartiality, without providing the judge with procedural guarantees granted to the judge as a participant in the proceedings on the judge’s fulfilment of the said requirements by: infringing the principle of a party’s active participation in proceedings; infringing the principle of openness and transparency in terms of the procedure for drawing lots to select an adjudicating panel on the basis of publicly known and clear criteria as well as in terms of the methods applied; and depriving the judge in question of the possibility of being heard and taking recourse to a remedy, which entails the infringement of the right to a fair trial” – to Article 45(1) in conjunction with Articles 2 and 7 of the Constitution;
3) Article 5a(18) of the Act on the Organisational Structure of Administrative Courts – construed in the way that “it is permissible to consider the application to examine a judge’s fulfilment of the requirements of independence and impartiality without providing the judge with procedural guarantees, by excluding the mutatis mutandis application of provisions on appeals in those proceedings” – to Article 45(1) in conjunction with Articles 2 and 7 of the Constitution;
4) Article 5a(1), (5) and (6) of the Act on the Organisational Structure of Administrative Courts – construed in the way that “it permits the abstract examination of a judge’s fulfilment of the requirements of independence and impartiality, bypassing specific negative prerequisites for admitting the application, namely: ‘the circumstances of a given case’, ‘the circumstances concerning the eligible person’, ‘the nature of the case’, as well as the assumption that the lack of evidence confirming the impact of the possible lack of impartiality and independence on ‘the circumstances of the case in question’, ‘the circumstances concerning the eligible person’ and ‘the nature of the case’ does not prevent the application in question to be considered on its merits” – to Article 60 in conjunction with Article 31(3), in conjunction with Article 2 as well as Article 178(1), Article 179 and Article 180(1)–(2) of the Constitution;
5) Article 5a(1), in conjunction with Article 5a(5) and (6) in conjunction with Article 5(1c) of the Act on the Organisational Structure of Administrative Courts – construed in the way that “it permits challenging the independence and impartiality of an administrative court judge due to the circumstances of the judge’s appointment, permits the substantive assessment of the NCJ’s legally binding resolution which was the basis of the judge’s appointment” – to Article 60 in conjunction with Article 31(3), in conjunction with Article 2 as well as Article 178(1), Article 179 and Article 180(1) and (2) of the Constitution;
6) Article 5a(1) of the Act on the Organisational Structure of Administrative Courts – construed in the way that “it permits challenging the independence and impartiality of an administrative court judge solely on the basis of ‘the circumstances of the appointment’, and permits the substantive assessment of the NCJ’s legally binding resolution, by assuming that ‘the circumstances of the appointment’ are set out in the NCJ’s legally binding resolution, as well as permits challenging the independence and impartiality of an administrative court judge solely on the basis of the circumstances indicated in the resolution, bypassing the eligible person’s statutory obligation to prove the existence of the above-mentioned deficiencies and link them with the relevant case and the circumstances of the applicant” – to Article 60 in conjunction with Article 31(3), in conjunction with Article 2 as well as Article 178(1), Article 179 and Article 180(1) and (2) of the Constitution;
7) Article 5a(1), (5) and (6) of the Act on the Organisational Structure of Administrative Courts – construed in the way that “in the case concerning the assessment of the independence and impartiality of an administrative court judge, it permits devising extra-statutory conditions for taking up the office of a judge of the Supreme Administrative Court” – to Article 60 in conjunction with Article 32(1), in conjunction with Article 7 of the Constitution;
8) Article 5a(1) of the Act on the Organisational Structure of Administrative Courts – construed in the way that “in the case concerning the assessment of the independence and impartiality of an administrative court judge, it permits examining the act of appointment to a judicial office, issued by the Polish President” – to Article 60 in conjunction with Article 31(3), in conjunction with Article 2 as well as Article 178(1), Article 179 and Article 180(1) and (2) of the Constitution,
adjudicates as follows:
Article 5a of the Act of 25 July 2002 on the Organisational Structure of Administrative Courts (Journal of Laws – Dz. U. of 2024, item 1267) is inconsistent with Article 60 in conjunction with Article 31(3) in conjunction with Article 2 as well as with Article 178(1), Article 179 and Article 180(1) and (2) of the Constitution of the Republic of Poland.
Moreover, the Tribunal decides:
to discontinue the proceedings as to the remainder.
The ruling was adopted by a majority vote.
Jarosław Wyrembak
Stanisław Piotrowicz
Bogdan Święczkowski
Rafał Wojciechowski
Andrzej Zielonacki (dissenting opinion)