Legal opinion on the consequences of the defectiveness of the proceedings on the nomination of judges to the Supreme Court in the context of the effectiveness of their appointment

This legal opinion applies to the assessment of compliance of the procedure of appointing judges to the Supreme Court with the Constitution of the Republic of Poland of 2 April 1997 [hereinafter: Constitution]. The starting point of the analyses conducted in this opinion is Article 179 of the Constitution, according to which judges are appointed for an indefinite term of office by the President of the Republic of Poland on the motion of the National Council of the Judiciary (NCJ). This formula unambiguously forejudges that the legal effectiveness of the proceedings on the nomination of judges to the Supreme Court is determined by premises related to the conduct of two authorities, namely the National Council of the Judiciary and the President of the Republic of Poland. At statutory level, this is governed by the provisions of the Act on the amendment of the Act on the National Council of the Judiciary and certain other acts of 8 December 2017 [hereinafter: Act on the NCJ], as well as the Act on the Supreme Court of 8 December 2017 [hereinafter: Act on the Supreme Court].

The sine qua non condition of verifying the constitutionality of the proceedings on the nomination of judges of the Supreme Court is therefore the prior assessment of compliance with the Constitution of both the current status of the National Council of the Judiciary to the extent that primarily applies to the method of forming its membership and the procedure of operation, as well as the assessment of the official acts of the President of the Republic of Poland that were issued during these proceedings, in terms of the requirements of their validity.

Likewise, the comprehensive assessment of the compliance of the procedure for nominating judges of the Supreme Court with the Constitution cannot disregard issues strictly related to the course of the proceedings on the appointment to the office of judge of the Supreme Court, which is governed by both the above Acts.

Opinion (pdf).