The Minister of Justice’s Regulation amending the Regulation on the Rules of Procedure for Common Courts; a departure from the statutory mechanism of allocating cases to judges by means of a draw U 4/25
On 12 November 2025, the Constitutional Tribunal considered the joined applications, lodged by the National Council of the Judiciary and the President of the Republic of Poland, with regard to the Minister of Justice’s Regulation amending the Regulation on the Rules of Procedure for Common Courts, which provided for a departure from the statutory mechanism of allocating cases to judges by means of a draw.
The Constitutional Tribunal adjudicated that:
1. § 1(5) and (7), § 2 and § 3 of the Minister of Justice’s Regulation of 29 September 2025 amending the Regulation on the Rules of Procedure for Common Courts are inconsistent with Article 41(1) of the Act of 27 July 2001 on the Organisational Structure of Common Courts in conjunction with Article 92(1) in conjunction with Article 7 of the Constitution of the Republic of Poland.
2. § 1(2) and (3) of the Amending Regulation referred to in point 1 is inconsistent with Article 47a of the Act referred to in point 1 in conjunction with Article 92(1) of the Constitution.
3. § 1(6)(b) of the Amending Regulation referred to in point 1 is inconsistent with Article 47b of the Act referred to in point 1 in conjunction with Article 92(1) of the Constitution.
As to the remainder, the Tribunal discontinued the review proceedings.
The ruling was unanimous.
The Constitutional Tribunal adjudicated on the applications submitted by the National Council of the Judiciary and the President of the Republic of Poland.
In the first place, the Tribunal assessed the conformity of the impugned provisions by examining to whether they were issued in compliance with the provisions on the procedure for issuing executive regulations on the basis of [statutory] authorisation. The constitutional procedural requirements pertaining to the issuance of regulations are set out out in Article 92(1) of the Constitution. Moreover, in accordance with the priciple of legality expressed in Article 7 of the Constitution, every public authority may only function on the basis of, and within the limits of, the law.
Pursuant to Article 41(1) of the Act on the Organisational Structure of Common Courts, the Minister of Justice shall – by issuing a regulation – specify the rules of procedure for common courts, upon consultation with the National Council of the Judiciary [hereinafter: the NCJ]. Thus, consultation with the NCJ constitutes a statutory obligation and concerns all matters to be regulated in the said rules of procedure. Although the Minister of Justice consulted the NCJ in the course of work carried out on the Amending Regulation, the said consultation only covered the draft Amending Regulation of 14 August 2025, which subsequently underwent considerable substantive changes – as regards the content of § 1(5) and (7), § 2 as well as § 3 thereof – in contrast to the original draft submitted for consultation. Therefore, the Tribunal deemed that the provisions which had not been consulted with the NCJ are inconsistent with Article 41(1) of the Act on the Organisational Structure of Common Courts in conjunction with Article 92(1) of the Constitution in conjunction with Article 7 of the Constitution. The Tribunal also examined the other impugned provisions, as to whether their content was consistent with the relevant statutory and constitutional provisions. The Tribunal concluded that the provisions of § 1(2) and (3) of the Amending Regulation, impugned by the NCJ and the Polish President, are inconsistent with the statutory rule that cases are allocated to judges by means of a draw, whereas § 1(6)(b) was deemed inconsistent with the statutory rule that adjudicating panels remain unchanged. In both of those instances, there was an infringement of Article 92(1) of the Constitution, which sets forth the prerequisites for issuing executive regulations.
The rules for allocating cases to judges are regulated in Article 47a of the Act on the Organisational Structure of Common Courts; the said provision was introduced on 12 July 2017 and established the mechanism of allocating cases to judges by means of a draw. Consequently, cases – within particular categories – are assigned by means of a draw to: judges; assistant judges; and competent court officials authorised to carry out limited judicial tasks. What constitutes an exception to that rule is the allocation of cases to a judge who is “on call” [i.e. who, during specified duty hours, deals with urgent cases, e.g. those which are required by law to be determined within 72h]. By contrast, § 1(2) and (3) of the impugned Amending Regulation entrusted the chair of a court division with the competence to designate judges to adjudicating panels – as an alternative to the case allocation by means of a draw. Therefore, it ought to be deemed that those provisions are inconsistent with Article 47a of the Act on the Organisational Structure of Common Courts in conjunction with Article 92(1) of the Constitution.
Article 47b of the Act on the Organisational Structure of Common Courts provides for the rule that adjudicating panels remain unchanged as well as specifies exceptions to that rule. The composition of a particular adjudicating panel may be changed only where there is no further possibility of, or where there is a lasting impediment to, considering a given case by the adjudicating panel as it has been composed so far. Introduced in impugned § 1(6)(b) of the Amending Regulation, the competence of the president of a court to change the composition of adjudicating panels exceeded the range of statutorily specified exceptions to the rule that adjudicating panels remained unchanged. Therefore, it should be deemed that § 1(6)(b) of the Amending Regulation is inconsistent with Article 47b of the Act referred to in point 1 in conjunction with Article 92(1) of the Constitution.
The adjudicating bench of the Constitutional Tribunal in the case was composed of: Vice-President of the Constitutional Tribunal, Judge Bartłomiej Sochański – Presiding Judge; Judge Michał Warciński – Judge Rapporteur; and Judge Wojciech Sych.