On 23 February 2026, acting on the basis of Article 83 § 1 of the Act of 8 December 2017 on the Supreme Court (Journal of Laws of 2024, item 622, as amended; hereinafter: the “Supreme Court Act”), the First President of the Supreme Court, Dr habil. Małgorzata Manowska, submitted an application requesting that the Supreme Court, sitting as a full bench, resolve a divergence in the interpretation of law appearing in the case-law of the Supreme Court with regard to the following legal issue:
“Can the participation, in an adjudicating panel, of a judge appointed by the President of the Republic of Poland to judicial office under the nomination procedure laid down in an act which has been found by the Constitutional Tribunal to be inconsistent with the Constitution of the Republic of Poland, or with respect to which the Court of Justice of the European Union or the European Court of Human Rights has found an infringement of EU law or of the Convention for the Protection of Human Rights and Fundamental Freedoms, constitute a sufficient basis for:
– challenging the composition of the court as a court that does not meet the standard of an independent and impartial tribunal established by law;
– finding that the judgment was delivered in circumstances constituting nullity of proceedings or that it constitutes an absolute ground of appeal;
– recognising a judgment delivered by such a panel as non-existent (legally null and void).”
The issue covered by the application concerns determining whether the fact that a judge was appointed under a procedure considered, in a certain scope, to be defective results in excluding such a judge from adjudicating. The purpose of submitting the application is to end the escalating dispute over the status of judges appointed after 2017. It is worth recalling that this matter has repeatedly been the subject of rulings by both the Constitutional Tribunal and the Supreme Court. The need for the above issue to be resolved by the Supreme Court sitting as a full bench arises from divergent assessments of this matter in the Supreme Court’s case-law, as well as from challenges to a settled and consistently adopted position formulated after 1997 with respect to unchanged normative foundations determined at the constitutional level.
In the reasoning of the submitted application, the First President of the Supreme Court indicated that the cited legal issue emerged against the background of multifaceted and complex divergences in the interpretation of Article 379(4) of the Code of Civil Procedure, Article 439 § 1(2) of the Code of Criminal Procedure, Article 45(1) of the Constitution of the Republic of Poland, Article 47 of the Charter of Fundamental Rights of the European Union, Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, and Article 19 of the Treaty on European Union. These interpretative divergences not only appear to undermine certain elements of constitutional content that is supreme and binding on courts (including the Supreme Court), but also result in a far-reaching lack of uniformity in the case-law. Pursuant to Article 83 § 1 of the Supreme Court Act, if divergences in the interpretation of provisions of law forming the basis for adjudication emerge in the case-law of common courts, military courts, or the Supreme Court, the First President of the Supreme Court or the President of the Supreme Court may, in order to ensure uniformity of case-law, submit an application for the Supreme Court to resolve a legal issue sitting as a panel of seven judges or another appropriate formation.
In light of the above, it became necessary for the First President of the Supreme Court to submit the application in question.
The above text is a translation of an application that was published in Polish at: https://www.sn.pl/aktualnosci/SitePages/Wydarzenia.aspx?ItemSID=1177-0dc69815-3ade-42fa-bbb8-549c3c6969c5&ListName=Wydarzenia
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