The competent court’s determination of the existence or non-existence of a judge’s service relationship K 24/20
The Constitutional Tribunal adjudicated that Article 189 of the Civil Procedure Code – insofar as it provides that the court’s determination of the existence or non-existence of a legal relationship or right requires taking account of the commencement of a judge’s service relationship as a result of the judge’s appointment by the President of the Republic of Poland upon the recommendation of the National Council of the Judiciary – is inconsistent with Article 179 and Article 180(1)-(2) of the Constitution of the Republic of Poland.
The ruling was unanimous.
The Constitutional Tribunal assessed the constitutionality of applying Article 189 of the Civil Procedure Code as a basis of legal action brought to determine the status of judges and to verify whether they had been legitimately appointed. The Tribunal pointed out that the legal action to have the court determine the existence of a legal relationship constituted an appropriate tool for civil-law disputes arising from private-law relationships, i.e. those that might be considered in traditional court proceedings. However, cases concerning judicial appointments and judges’ exercise of their judicial functions are strictly systemic in nature and they fall outside the category of civil cases.
The Tribunal stressed that the appointment of a judge on the basis of Article 179 of the Constitution constitutes a public-law act, whereby the judge takes up the office and is authorised to permanently exercise judicial powers. The appointment of a judge may not be treated as an outcome of a contract or civil-law relationship. The Polish President’s prerogative in that respect is autonomous and is excluded from judicial review, although the exercise thereof depends on the recommendation of the National Council of the Judiciary, which is responsible for assessing judicial candidates.
The Tribunal also clarified the meaning of Article 180 of the Constitution, which enshrines the principle that judges shall not be removable. The said principle serves to safeguard the stability of the administration of justice, and any departures therefrom are admissible only in the circumstances specified by statute and solely on the basis of a court’s ruling. A judge’s service relationship combines elements of an employment relationship with certain systemic elements, yet the latter are dominant, and hence the whole relationship may not be categorised as a civil-law one.
Therefore, the Tribunal deemed that Article 189 of the Civil Procedure Code may not be invoked for the purpose of verifying whether a particular judicial appointment is valid, or whether a judge thus appointed is authorised to exercise judicial functions. Permitting such practice would infringe the Polish President’s prerogative, lead to common courts’ interference with systemic matters, and distort the constitutional separation of powers.
Consequently, the Tribunal held that Article 189 of the Civil Procedure Code – insofar as it was invoked for determining the status of judges – is inconsistent with the Constitution. Indeed, the stability of judicial appointments constitutes the foundation for the functioning of courts, citizens’ trust and the proper administration of justice. Therefore, the said matters remain excluded from common courts’ jurisdiction.
The adjudicating panel in the present case comprised the following judges of the Constitutional Tribunal: Judge Wojciech Sych as the Presiding Judge; Judge Justyn Piskorski as the Judge Rapporteur; Judge Krystyna Pawłowicz; the Vice-President of the Constitutional Tribunal, Judge Bartłomiej Sochański; and Judge Michał Warciński.