No possibility for a case to be considered by the Constitutional Tribunal en banc (with the participation of 11 judges of the said Tribunal) K 8/23
On 15 July 2025, the Constitutional Tribunal delivered its ruling issued with regard to the Prime Minister’s application concerning the provisions specifying a quorum for the Constitutional Tribunal sitting en banc.
The Constitutional Tribunal adjudicated that Article 37(2), first sentence, of the Act of 30 November 2016 on the Organisation of the Constitutional Tribunal and the Mode of Proceedings Before the Constitutional Tribunal (Journal of Laws – Dz. U. of 2019, item 2393) – due to the fact that the challenged provision takes away the Constitutional Tribunal’s power (granted to the Tribunal by the constitution-maker) to adjudicate as a panel composed of all its judges with regard to whom there are no factual or legal impediments to their participation in adjudication and who fulfil their legal obligations to participate in adjudication – is inconsistent with Article 188, Article 189 and Article 197 of the Constitution of the Republic of Poland (hereinafter also: the Constitution) as well as with the principle of diligence and efficiency in the work of public institutions, expressed in the Preamble to the Constitution, in conjunction with Article 8(1) and Article 7 of the Constitution.
As to the remainder, the Tribunal discontinued the review proceedings.
The ruling was adopted by a majority vote.
There was one dissenting opinion, filed by Constitutional Tribunal Judge Rafał Wojciechowski.
The Constitutional Tribunal (hereinafter also: the Tribunal) emphasised that the principle of the continuity of the state requires ensuring the continuity of the functioning of public institutions, from which one should derive the prohibition against creating implicit or explicit obstacles to those institutions’ diligent, efficient and continuous work. In particular, in the light of the axiology underlying the Constitution, it is hard to overestimate the significance of diligence and efficiency in the Tribunal’s work.
Articles 188 and 189 of the Constitution of the Republic of Poland – by the constitution-maker’s will – grant the Constitutional Tribunal the powers to adjudicate on the types of cases set out in those provisions and to resolve the types of disputes specified therein. Also, those provisions impose on the Constitutional Tribunal the obligation to adjudicate on the said cases and resolve the said disputes.
The Tribunal recalled that the wording of the Constitution does not mention the concept of ‘the Constitutional Tribunal en banc’, but merely stipulates, in its Article 194(1), that the Constitutional Tribunal shall be composed of 15 judges. The Constitution does not link the adjudicatory powers of the Constitutional Tribunal with any limits concerning the number of judges participating in adjudication.
Pursuant to Article 8(1) of the Constitution of the Republic of Poland, the Constitution is the supreme law of the Republic of Poland. This entails, in particular, that the adjudicatory powers granted to the Constitutional Tribunal by the Constitution may not be taken away, or restricted, by means of mechanisms and constructs devised at the level of other legal acts, including the statutory level.
On no account may statutory regulations which entail voiding or restricting the Constitutional Tribunal’s adjudicatory powers be deemed as falling within the scope of the legislature’s competence to determine the Tribunal’s organisation and the mode of proceedings before the Tribunal. The Constitutional Tribunal’s adjudicatory powers which have been granted to the Tribunal by the constitution-maker may not be restricted, by any authorities, on the basis of criteria which are absent from the Constitution. The Constitutional Tribunal’s obligation to perform the tasks and functions assigned to the Tribunal by the constitution-maker, may not be lifted from the Tribunal, by any authorities, on the basis of criteria which are absent from the Constitution. The Constitutional Tribunal always maintains full adjudicatory powers in all cases, adjudicating composed of all its judges with regard to whom there are no factual or legal impediments to their participation in adjudication and who fulfil their legal obligations to participate in adjudication.
The provision challenged by the applicant may result in the Constitutional Tribunal’s paralysis and its lack of capacity to perform its constitutional tasks and functions. The concept category of ‘the Constitutional Tribunal en banc’ used in that provision constitutes only a statutory category, and it may not void or restrict the Constitutional Tribunal’s adjudicatory powers. In addition, the said category may be perceived as “a matter of arrangement” due to the fact that over the last few decades there has been considerably varied legislative practice in that respect, in accordance with which, during different periods, the phrase ‘the Constitutional Tribunal en banc’ implied adjudication by 9, 11, or 13 judges of the Constitutional Tribunal. The very practice may, at least potentially, pose a threat to the autonomy and independence of the Constitutional Tribunal’s [adjudicatory] powers, whereas – by virtue of the Constitution alone, due to the wording of Article 173 thereof – the Tribunal’s [adjudicatory] powers must remain separate from, and independent of, the powers of the other branches of government, including the legislature. Being strictly linked with a specified quorum – regardless of the fact at which level the said quorum is determined – the concept of ‘the Constitutional Tribunal en banc’ may, contrary to the Constitution, entail restricting, or even voiding, the Constitutional Tribunal’s adjudicatory powers. The said restriction or voidance may arise from the accumulation of justified circumstantial factors that cause the inability of a larger number of the Tribunal’s judges to participate in adjudication (e.g. due to the existence of grounds for recusal from adjudication). Moreover, the said restriction or voidance may also result from unlawful actions. However, unlawfulness, and even more so – blatant unlawfulness, may neither void nor restrict the Constitutional Tribunal’s ability to perform its tasks and functions, as assigned to the Tribunal in accordance with the constitution-maker’s will expressed in the Constitution of the Republic of Poland.
The adjudicating panel in the present case comprised the following judges of the Constitutional Tribunal: the Vice-President of the Constitutional Tribunal, Judge Bartłomiej Sochański as the Presiding Judge; Judge Jarosław Wyrembak as the Judge Rapporteur; Judge Krystyna Pawłowicz; Judge Justyn Piskorski; and Judge Rafał Wojciechowski.