The Tribunal Explained · Poland's Constitutional Tribunal 1982–2026
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Europe and the Tribunal: Strasbourg, Luxembourg, Venice and Brussels

Status as of: 31 October 2026, 04:00 CET Last updated: 31.10.2026 Basics: 4 min read · For followers: 11 min read · Expert: 25 min read

What the ECtHR and the CJEU ruled on Poland's Constitutional Tribunal, what the Venice Commission advised and what the European Commission did, 2016–2026.

Level of detail
BasicsPlain language, the essential facts For followersNames, dates, votes, who says what ExpertProvisions, case numbers, benches, footnotes to sources

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Contents — Basics
  1. Two organisations, four institutions
  2. European court rulings
  3. The Venice Commission and the European Commission
  4. How the Tribunal responds
  5. Why it matters

Level of detail: Basics4 min read

Two organisations, four institutions

Poland belongs to two European organisations. Both have assessed its Constitutional Tribunal.

The Council of Europe's court, the European Court of Human Rights (ECtHR) in Strasbourg, checks whether states respect the European Convention on Human Rights. Its judgments bind the state concerned; the Committee of Ministers supervises their execution. Its Venice Commission, an expert panel, gives non-binding opinions.

The European Union's court is the Court of Justice of the EU (CJEU) in Luxembourg. The European Commission, which polices the EU treaties, can take a state to the CJEU or start the political Article 7 procedure of the Treaty on European Union (TEU).

European court rulings

  • 7 May 2021, ECtHR, Xero Flor, a Polish company's case. A Tribunal bench included a person elected in December 2015 to a seat already filled according to judgment K 34/15. The ECtHR held it was not a "tribunal established by law", meaning a court whose judges were appointed under the basic rules.
  • 14 December 2023, ECtHR, M.L. v. Poland. The Tribunal's abortion-law judgment of 22 October 2020 (K 1/20) was given by a bench including three persons elected to the disputed seats. The ECtHR found it fell short of rule-of-law requirements, so Poland violated the applicant's right to respect for private life.
  • 18 December 2025, CJEU, C-448/23. On the European Commission's action, the CJEU held that Poland had breached EU law and that the Tribunal is not an independent and impartial tribunal established by law, owing to irregularities in electing three judges in December 2015 and appointing its President in December 2016.
  • May 2026, ECtHR, Dziurda and Others v. Poland. On 13 March 2026 the Sejm elected six persons to the Tribunal. On 1 April the President received the oath from two. On 9 April all six swore in the Sejm, four for the first time; the Tribunal's President did not admit those four. The ECtHR's interim measure orders the authorities not to obstruct them.

The Venice Commission and the European Commission

In 2016 the Venice Commission twice urged implementing the Tribunal's judgments; according to Demagog and Wikipedia, it traced the conflict to the outgoing Sejm electing judges in advance in 2015. In December 2024 it reviewed the reform drafts: according to the European Commission, it backed their aim but advised milder measures than annulling every ruling given with disputed electees. In October 2026, according to TVN24, Interia and OKO.press, it called the President's role in the oath ceremonial: he should receive it without delay and may not review the Sejm's choice.

The European Commission started the Article 7 procedure in December 2017 and closed it on 29 May 2024. Its July 2026 report notes further progress but also unpublished Tribunal judgments.

How the Tribunal responds

Under Presidents Julia Przyłębska and Bogdan Święczkowski the Tribunal has disputed these findings, invoking constitutional supremacy. In K 6/21 (2021) it held Article 6 of the Convention unconstitutional insofar as it treats the Tribunal as a "court" and lets the ECtHR assess its judges' election. After the CJEU judgment it denied the CJEU's jurisdiction. In May 2026 (K 3/26), departing from K 34/15 of 2015, it held the President not obliged to receive the oath. Two persons elected to seats held filled in K 34/15 sat on the bench, and the government does not recognise it.

On the ECtHR measure, Prime Minister Donald Tusk and Justice Minister Waldemar Żurek said it must be obeyed; Zbigniew Bogucki of the President's Chancellery, that only the Tribunal can assess the dispute. On the Venice Commission opinion, the President's spokesman said it has no legal force, and Żurek that the President has no veto over those the Sejm elects.

Why it matters

Xero Flor and M.L. show that a party to a case before the Tribunal can complain to Strasbourg about the bench itself. Since 2024 the government has not published the Tribunal's judgments, citing the Sejm resolution and European court rulings, while the Tribunal says they still apply. Courts, offices and citizens face uncertainty. This site does not decide who is right.

Key events: 1 Jan 2016 – 31 Oct 2026
  1. Tribunal discontinues case U 8/15 on the Sejm resolutions on judgesruling
  2. President Rzepliński admits Przyłębska and Pszczółkowski to adjudicationleadership
  3. Judgment K 47/15: Act of 22 December 2015 held unconstitutionalrulingpublication
  4. Sejm elects Zbigniew Jędrzejewski as a Tribunal judgeelection
  5. PiS and PSL table bills for a new Tribunal Actlegislationpolitics
  6. Sejm passes the Constitutional Tribunal Act of 22 July 2016legislation
  7. Act of 22 July 2016 published in the Journal of Lawslegislationpublication
  8. Supreme Administrative Court first applies an unpublished Tribunal judgmentrulingpublication
  9. Judgment K 39/16 on the Act of 22 July 2016rulingpublication
  10. July Act enters into force; government publishes 21 pending rulingspublicationlegislation
  11. Judgment K 44/16 on the procedure for choosing the Tribunal’s Presidentruling
  12. Tribunal General Assembly lacks a quorumleadership
  13. Sejm passes the Acts on the Tribunal’s organisation and on judges’ statuslegislation
  14. Sejm passes the Implementing Provisions Act for the Tribunal Actslegislation

Full timeline (269 events in this period) →

Contents — For followers
  1. Two European systems
  2. The European Commission, 2016–2017
  3. The Venice Commission in 2016
  4. The ECtHR: Xero Flor and M.L.
  5. The Tribunal's answer: K 6/21
  6. The CJEU: from P 7/20 and K 3/21 to C-448/23
  7. The ECtHR in 2026: Dziurda and Others
  8. The Venice Commission in 2024
  9. The Venice Commission in 2026
  10. The European Commission, 2024–2026
  11. Supervision by the Committee of Ministers
  12. Who claims what

Level of detail: For followers11 min read

Two European systems

In the Council of Europe, the Committee of Ministers supervises execution of ECtHR judgments, and the Venice Commission (European Commission for Democracy through Law) gives non-binding opinions.1,2,3 In the EU, the CJEU hears the European Commission's actions against member states; the Commission ran the Article 7(1) TEU procedure against Poland and publishes an annual Rule of Law Report.4,5,6

The European Commission, 2016–2017

On 13 January 2016 the Commission opened its rule-of-law framework, a structured dialogue, and called for the Tribunal's judgments to be respected and for the oath to be received from properly elected judges.7,8 Its first Recommendation, (EU) 2016/1374 of 27 July 2016, found a systemic threat to the rule of law and gave Poland three months.9,10 The second, of 21 December 2016 (C(2016) 8950), found that three judges properly elected in October 2015 had not taken office while three elected without a valid legal basis were allowed to adjudicate. It asked for the December 2015 judgments to be implemented and the 2016 judgments published within two months.9

On 20 December 2017 the Commission submitted a reasoned proposal under Article 7(1) TEU (COM(2017) 835). It cited the absence of independent and legitimate constitutional review and recommended that the Tribunal's judges, President and Vice-President be elected and appointed in accordance with the law.5

The Venice Commission in 2016

In opinion CDL-AD(2016)001 of 11 March 2016, on the December 2015 amendments, the Commission found, according to TVN24's Polish translation, that a quorum of 13 of 15 judges went much further than European standards and that the changes taken together could seriously undermine the Tribunal's effectiveness. It described the oath as primarily ceremonial.11,12 According to Wikipedia and the fact-checking site Demagog, it also traced the conflict to actions of the Sejm of the previous, 7th term (2011–2015).8,7

In opinion CDL-AD(2016)026 of 14–15 October 2016, on the Act of 22 July 2016, it found that the judgment of 3 December 2015 required the October 2015 judges to join the Tribunal, and that because the October election was valid there were no vacancies for the December one.13,14 It called publication of judgment K 47/15 a precondition for ending the crisis and found that letting the President of the Republic pick the President of the Tribunal from three candidates gave him excessive leverage.13,14

The ECtHR: Xero Flor and M.L.

The "tribunal established by law" test comes from the Grand Chamber judgment Guðmundur Andri Ástráðsson v. Iceland (no. 26374/18) of 1 December 2020. It asks whether there was a manifest breach of domestic law, whether it concerned a fundamental rule on appointing judges, and whether domestic courts failed to remedy it.15,16

In Xero Flor w Polsce sp. z o.o. v. Poland (no. 4907/18), a five-judge Tribunal bench with Mariusz Muszyński as rapporteur had discontinued the company's constitutional complaint by three votes to two.1 On 7 May 2021 the ECtHR found a violation of Article 6(1) of the Convention: a bench including a person elected by the 8th-term Sejm (2015–2019) in December 2015 to a seat held filled in K 34/15 was not a "tribunal established by law".1,15

In M.L. v. Poland (no. 40119/21), on 14 December 2023, the ECtHR noted that K 1/20 of 22 October 2020 was delivered by a 13-judge bench including Muszyński, Justyn Piskorski and Jarosław Wyrembak (§ 169). Per the Court, the latter two had been elected in 2017 and 2018 to the seats of persons chosen in the same defective procedure (§ 173).17 The judgment did not meet rule-of-law requirements, and the interference was not "in accordance with the law", in violation of Article 8 of the Convention (§§ 174–176).17

The Tribunal's answer: K 6/21

On 24 November 2021, on an application by the Prosecutor General, a five-judge bench presided over by Julia Przyłębska unanimously held Article 6(1), first sentence, of the Convention unconstitutional (K 6/21; K denotes abstract review). Insofar as it treats the Tribunal as a "court", it conflicts with Article 173 read with Articles 10(2), 175(1) and 8(1) of the Constitution; insofar as it lets the ECtHR assess the legality of the election of the Tribunal's judges, with Article 194(1) read with Article 8(1).18

The CJEU: from P 7/20 and K 3/21 to C-448/23

On 14 July 2021 the Tribunal (P 7/20, a question of law from a court) held Article 4(3), second sentence, TEU read with Article 279 TFEU unconstitutional insofar as, in the Tribunal's words, the CJEU "ultra vires" imposes interim measures on the organisation of Polish courts; primacy and direct effect (Article 91(1)–(3) of the Constitution) do not apply there.19 On 7 October 2021, on the Prime Minister's application, it held parts of Articles 1, 4(3) and 19(1) TEU unconstitutional to a specified extent, including on judicial review of appointments and of KRS resolutions (K 3/21).20

The Commission lodged its action on 17 July 2023, according to its 2024 Rule of Law Report; the Advocate General found it well founded on 11 March 2025.21,22 On 18 December 2025, in C-448/23 Commission v Poland, the CJEU held that Poland had failed to fulfil its obligations. The two 2021 judgments infringed effective judicial protection (Article 19(1), second subparagraph, TEU) and the autonomy, primacy, effectiveness and uniform application of EU law; constitutional identity cannot be invoked against the values in Article 2 TEU.4

The CJEU further held that the appointments of three judges in December 2015 and of the President of the Tribunal in December 2016 breached fundamental rules, so the Tribunal is not an independent and impartial tribunal previously established by law.4,23

The ECtHR in 2026: Dziurda and Others

Of the six persons elected by the Sejm on 13 March 2026, President of the Republic Karol Nawrocki received the oath from Dariusz Szostek and Magdalena Bentkowska on 1 April.24,6 On 9 April 2026 all six took the oath in the Sejm: Krystian Markiewicz, Marcin Dziurda, Anna Korwin-Piotrowska and Maciej Taborowski for the first time, Szostek and Bentkowska again.25,26 According to Prawo.pl, the President of the Tribunal, Bogdan Święczkowski, considered that he could not establish their service relationship until the President of the Republic confirmed it was an oath within the meaning of the statute.27

In Dziurda and Others v. Poland (no. 17392/26) the ECtHR ordered an interim measure requiring Poland to ensure that the competent authorities refrain from obstructing the applicants from taking up and exercising their duties.28,29

Prime Minister Donald Tusk said the Court had ruled unambiguously; Justice Minister Waldemar Żurek, that the measure was immediately enforceable. Zbigniew Bogucki, Head of the President's Chancellery, said the Constitution is the supreme law and only the Tribunal can assess the dispute; Tribunal spokeswoman W. Ścibor, that the ECtHR has no competence over Poland's constitutional order.29

On 12 May 2026, on an application by PiS MPs, the Tribunal delivered judgment K 3/26 by a five-judge bench including two persons elected to seats held filled in K 34/15; the six persons elected on 13 March 2026 had sought the exclusion of Święczkowski, Piskorski and Wyrembak, and the government does not treat the judgment as binding.30,31,32 It held Article 4(1) of the Act of 30 November 2016 on the Status of Judges of the Constitutional Tribunal unconstitutional insofar as it is understood as obliging the President to receive the oath of a person elected by the Sejm; Rafał Wojciechowski and Jarosław Wyrembak dissented.30 In 2015, in K 34/15, the Tribunal had held that the President must take the oath of a judge elected by the Sejm without delay.33,34

The Venice Commission in 2024

On 3 September 2024 Justice Minister Adam Bodnar requested an opinion on draft constitutional amendments and two draft laws on the Tribunal; CDL-AD(2024)035 was adopted at the 141st plenary session in Venice on 6–7 December 2024.3,35 According to TVN24, citing Deputy Minister D. Mazur, the Commission firmly opposed ending the terms of all sitting judges. It recommended ending by statute the terms of those elected to occupied seats while properly elected judges serve out their terms, and publishing judgments with an annotation.36 The Commission's 2025 report summarises the opinion as backing the aim but recommending milder measures than annulling all rulings given with irregularly appointed judges.37

According to M. Szwed (Verfassungsblog), the Venice Commission also criticised the government for no longer publishing the Tribunal's judgments and for leaving vacancies unfilled.38 Council of Ministers Resolution No. 162 of 18 December 2024 declared it impermissible to publish documents of an "unauthorised body" (organ nieuprawniony), citing Xero Flor and M.L.39 President Andrzej Duda referred the laws of 13 September 2024 for preventive review on 7 October 2024; they never entered into force, and on 29 July 2025 the Tribunal held them unconstitutional (Kp 3/24).40,37,41

The Venice Commission in 2026

Opinion CDL-AD(2026)031 (No. 1294/2026) on the President's powers regarding the oath of the Tribunal's judges was requested by the Monitoring Committee of the Council of Europe's Parliamentary Assembly. It was adopted on 9 October 2026 and published on 13 October; its content is known only from press reports.42,43,44 According to TVN24 and Interia, the Commission found the President's role ceremonial, though the oath has legal significance; he should receive it without delay and may not claim to review the Sejm's choice.43,45 If he refuses or delays, it recommended allowing the oath without his physical presence, keeping the prescribed form, proper verification and delivery of the act to him.43

President's spokesman Rafał Leśkiewicz said the opinion has no legal force and the President acts under the Constitution and statutes; PiS MP B. Wróblewski said the Commission lacks competence.45,46 Żurek said the President has no veto over judges elected by the Sejm; Święczkowski said he cannot recognise the four judges.45,43

The European Commission, 2024–2026

In February 2024 Minister Bodnar presented an Action Plan covering the KRS, the Supreme Court and the Tribunal.47 After the member states agreed on 22 May 2024 (Hungary objected), the Commission announced on 29 May 2024 that it was closing the Article 7 procedure, as there was no longer a clear risk of a serious breach of the rule of law; not all reforms had been implemented, it noted.48,49,47

The 2024 Rule of Law Report (SWD(2024) 821, 24 July 2024) noted M.L., described the Sejm's resolution of 6 March 2024 on the Tribunal as not legally binding and made no Tribunal-specific recommendation.21 The 2025 Report (SWD(2025) 921, 8 July 2025) noted unfilled vacancies and that the government, regarding the Tribunal as not legitimate, had not published its judgments since March 2024; it recommended continuing the Action Plan, including on the Tribunal.37 The 2026 Report (SWD(2026) 921 final, 17 July 2026) records C-448/23 and the Tribunal's reply that the CJEU lacks jurisdiction and the judgment does not affect its functioning.6 It finds "some further progress" and makes no separate recommendation on the Tribunal. It notes that the Tribunal's interim order of 12 May 2026 (K 7/26) was issued by a bench including a judge elected in 2017 to an occupied seat, raising an issue under Article 6 of the Convention.6

Supervision by the Committee of Ministers

According to Secretariat notes of September 2024 (not adopted decisions), the Committee of Ministers, which supervises execution of Xero Flor, called in December 2023 for admitting the October 2015 judges for a full term, excluding those irregularly elected and regularising the status of decisions taken with them. According to the Secretariat, the 2024 Polish drafts broadly responded to these concerns; the state of supervision in October 2026 is not documented.2

Who claims what

Claim Who Legal basis invoked Counter-position Who Basis invoked What courts / Venice Commission said Status
The ECtHR may assess whether a Tribunal bench was a "tribunal established by law" the applicants in Xero Flor and M.L. Articles 6(1) and 8 of the Convention Article 6(1) does not cover the Tribunal; the ECtHR may not assess its judges' election the Prosecutor General (applicant in K 6/21) Articles 8(1), 173 and 194(1) of the Constitution ECtHR: violations of Article 6 (Xero Flor, 2021) and Article 8 (M.L., 2023); Tribunal (K 6/21, 2021): Article 6 unconstitutional to that extent Xero Flor is final and under Committee of Ministers supervision (ongoing in September 2024); the Tribunal rejects the ECtHR's power; the dispute continues1,17,18,2
P 7/20 and K 3/21 breached EU law; the Tribunal is not an independent tribunal established by law European Commission (action) Article 19(1), second subparagraph, and Article 2 TEU; primacy of EU law The CJEU has no jurisdiction; its judgment does not affect the Tribunal's functioning Tribunal (statement, per the Commission's 2026 report) lack of jurisdiction (no detail in sources); in P 7/20 and K 3/21, Articles 2, 7, 8 and 90(1) of the Constitution CJEU (18 December 2025): failure to fulfil obligations; the Tribunal is not an independent and impartial tribunal established by law judgment delivered; non-compliance can lead to a new action and penalties4,6,19,20
The authorities must not obstruct four persons elected on 13 March 2026 from taking up duties the applicants (Dziurda and Others, no. 17392/26); D. Tusk, W. Żurek the Convention; Żurek: immediately enforceable The ECtHR has no competence over Poland's constitutional order; only the Tribunal can assess the dispute Tribunal spokeswoman W. Ścibor; Z. Bogucki (President's Chancellery) the Constitution as supreme law; the President's application in a competence dispute ECtHR (interim measure, May 2026): do not obstruct the applicants; Tribunal (K 34/15, 2015): duty to receive the oath without delay; Tribunal (K 3/26, 2026, bench including two persons elected to seats held filled in K 34/15): no such duty no information on extension; competence dispute Kpt 1/26 undecided as far as known29,28,30
The President's role in the oath is ceremonial; if he refuses, the oath must be possible without him Venice Commission (CDL-AD(2026)031, as reported); W. Żurek not known (full text unavailable) The opinion has no legal force; the Commission lacks competence R. Leśkiewicz (President's spokesman); B. Wróblewski (PiS) the Constitution and statutes; non-binding nature of opinions Tribunal in K 34/15 (2015): duty to receive the oath without delay; in K 3/26 (2026): no such duty advisory opinion; dispute continues43,45,34,30
The Tribunal's judgments should be published, if need be with an annotation Venice Commission (2024, per Deputy Minister D. Mazur) not given in the report; 2016 opinion: validity of a judgment cannot depend on the executive Publishing documents of an "unauthorised body" is impermissible Council of Ministers (Resolution No. 162, 18 December 2024) Article 7 of the Constitution; Sejm resolution of 6 March 2024; ECtHR (including Xero Flor, M.L.) and CJEU judgments cited in the preamble Venice Commission (2016): judgments take effect when delivered, regardless of publication judgments still unpublished (2026 report)36,39,13,6

Notes

  1. [ECtHR] HUDOC, nagłówek wyroku. hudoc.echr.coe.int (accessed 31.10.2026) ↩
  2. [Council of Europe] rm.coe.int/0900001680b16bc8 „Ministers’ Deputies”. rm.coe.int (accessed 31.10.2026) ↩
  3. [Council of Europe] KW, event 3713. coe.int (accessed 31.10.2026) ↩
  4. [CJEU / EU law] TSUE, komunikat prasowy cp250157pl, 18.12.2025. curia.europa.eu (accessed 31.10.2026) ↩
  5. [EU institution] Parlament Europejski, OEIL: streszczenie procedury 2017/0360(NLE) (wniosek KE z 20.12.2017, art. 7 ust. 1 TUE). oeil.europarl.europa.eu (accessed 31.10.2026) ↩
  6. [EU institution] KE, 2026 Rule of Law Report, rozdział PL, SWD(2026) 921 final, s. 9, przyp. 48 (Council doc. ST 11674/26 ADD 22). data.consilium.europa.eu (accessed 31.10.2026) ↩
  7. [press] Demagog. demagog.org.pl (accessed 31.10.2026) ↩
  8. [encyclopedia] pl.wikipedia „Kryzys wokół TK". pl.m.wikipedia.org (accessed 31.10.2026) ↩
  9. [EU institution] Zalecenie Komisji Europejskiej z 21.12.2016 r. w sprawie praworządności w Polsce, C(2016) 8950 final — European Commission, Commission Recommendation of 21 December 2016 regarding the rule of law in Poland complementary to Recommendation (EU) 2016/1374, C(2016) 8950 final (copy on astrid-online.it). www.astrid-online.it (accessed 31.10.2026) ↩
  10. [expert / organisation] ruleoflaw.pl. ruleoflaw.pl (accessed 31.10.2026) ↩
  11. [press] TVN24, polskie tłumaczenie opinii Komisji Weneckiej CDL-AD(2016)001 („Przeczytaj całą opinię Komisji Weneckiej”, część 1) — TVN24, Polish translation of Venice Commission opinion CDL-AD(2016)001 of 11 March 2016 (part 1, up to approx. para. 107–109). tvn24.pl (accessed 31.10.2026) ↩
  12. [Council of Europe] CDL-AD(2016)001-e. coe.int (accessed 31.10.2026) ↩
  13. [Constitutional Tribunal] Opinia KW z 14 X 2016, trybunal.gov.pl (PDF). trybunal.gov.pl (accessed 31.10.2026) ↩
  14. [Council of Europe] Komisja Wenecka, CDL-AD(2016)026, opinia o ustawie z 22.07.2016 r. o TK (kopia na stronie Sądu Najwyższego Ukrainy; tekst ucięty na pkt 105) — Venice Commission, Poland – Opinion on the Act on the Constitutional Tribunal, CDL-AD(2016)026, adopted at the 108th Plenary Session, 14–15 October 2016 (mirror on supreme.court.gov.ua; metadata: coe.int/fr/web/venice-commission/-/cdl-ad-2016-026-e). supreme.court.gov.ua (accessed 31.10.2026) ↩
  15. [expert / organisation] Verfassungsblog, M. Leloup, 10 V 2021. verfassungsblog.de (accessed 31.10.2026) ↩
  16. [ECtHR] 001-206582. hudoc.echr.coe.int (accessed 31.10.2026) ↩
  17. [ECtHR] M.L. p. Polsce, nr 40119/21, §§ 15–16, 21, 39, 169. hudoc.echr.coe.int (accessed 31.10.2026) ↩
  18. [Constitutional Tribunal] TK (en), K 6/21. trybunal.gov.pl (accessed 31.10.2026) ↩
  19. [Constitutional Tribunal] TK (en), P 7/20. trybunal.gov.pl (accessed 31.10.2026) ↩
  20. [Constitutional Tribunal] TK (en), K 3/21. trybunal.gov.pl (accessed 31.10.2026) ↩
  21. [EU institution] KE, 2024 Rule of Law Report, SWD(2024) 821 final, 24 VII 2024, rozdz. PL, s. 10, przyp. 49. data.consilium.europa.eu (accessed 31.10.2026) ↩
  22. [EU institution] DORIE. dorie.ec.europa.eu (accessed 31.10.2026) ↩
  23. [CJEU / EU law] TSUE, komunikat prasowy 157/25, C-448/23. curia.europa.eu (accessed 31.10.2026) ↩
  24. [press] NfP, 1.04.2026. notesfrompoland.com (accessed 31.10.2026) ↩
  25. [press] TVN24, „Sędziowie TK złożyli ślubowanie w Sejmie i pojechali do TK”, 9.04.2026. tvn24.pl (accessed 31.10.2026) ↩
  26. [press] Prawo.pl, 10.04.2026. prawo.pl (accessed 31.10.2026) ↩
  27. [press] Prawo.pl, 23.04.2026. prawo.pl (accessed 31.10.2026) ↩
  28. [ECtHR] ECHR, 6.05.2026. echr.coe.int (accessed 31.10.2026) ↩
  29. [press] NfP, 6.05.2026. notesfrompoland.com (accessed 31.10.2026) ↩
  30. [press] Prawo.pl, 12.05.2026. prawo.pl (accessed 31.10.2026) ↩
  31. [press] Prawo.pl, 13.05.2026. prawo.pl (accessed 31.10.2026) ↩
  32. [press] NfP, 13.05.2026. notesfrompoland.com (accessed 31.10.2026) ↩
  33. [legislation] Dz.U. 2015 poz. 2129 (sentencja). eli.gov.pl (accessed 31.10.2026) ↩
  34. [Constitutional Tribunal] K 34/15, tekst (trybunal.gov.pl). trybunal.gov.pl (accessed 31.10.2026) ↩
  35. [Council of Europe] KW, CDL-AD(2024)035. coe.int (accessed 31.10.2026) ↩
  36. [press] TVN24, 6 XII 2024. tvn24.pl (accessed 31.10.2026) ↩
  37. [EU institution] KE RoL 2025, SWD(2025) 921 final, 8 VII 2025, s. 1, 4, 6. data.consilium.europa.eu (accessed 31.10.2026) ↩
  38. [expert / organisation] Verfassungsblog, M. Szwed, 20 XII 2024. verfassungsblog.de (accessed 31.10.2026) ↩
  39. [legislation] M.P. 2024 poz. 1068, eli.gov.pl (PDF). eli.gov.pl (accessed 31.10.2026) ↩
  40. [press] Notes from Poland, 8 X 2024. notesfrompoland.com (accessed 31.10.2026) ↩
  41. [Constitutional Tribunal] TK, „Judgments – Kp 3/24”, trybunal.gov.pl (EN). trybunal.gov.pl (accessed 31.10.2026) ↩
  42. [Council of Europe] coe.int – strona dokumentu. coe.int (accessed 31.10.2026) ↩
  43. [press] TVN24, „Jest opinia Komisji Weneckiej…”. tvn24.pl (accessed 31.10.2026) ↩
  44. [Council of Europe] rm.coe.int. rm.coe.int (accessed 31.10.2026) ↩
  45. [press] Interia. wydarzenia.interia.pl (accessed 31.10.2026) ↩
  46. [press] wiadomosci.pro (streszczenie AI z prasy, źródło pomocnicze). wiadomosci.pro (accessed 31.10.2026) ↩
  47. [official] gov.pl/sprawiedliwosc. gov.pl (accessed 31.10.2026) ↩
  48. [press] Notes from Poland, 29 V 2024. notesfrompoland.com (accessed 31.10.2026) ↩
  49. [EU institution] KE – przedstawicielstwo FR, 29 V 2024. france.representation.ec.europa.eu (accessed 31.10.2026) ↩
Contents — Expert
  1. Scope and legal nature of the acts
  2. The Venice Commission in 2016
  3. The European Commission, 2016–2017
  4. The ECtHR: Ástráðsson, Xero Flor, M.L.
  5. The Tribunal's answer: K 6/21 and K 7/21
  6. The CJEU: C-448/23 Commission v Poland
  7. Supervision of execution by the Committee of Ministers
  8. The Venice Commission in 2024: CDL-AD(2024)035
  9. The European Commission, 2024–2026
  10. The ECtHR in 2026: Dziurda and Others v. Poland (no. 17392/26)
  11. The Venice Commission in 2026: CDL-AD(2026)031
  12. Disputed points
  13. Evidentiary gaps

Level of detail: Expert25 min read

Two separate European organisations are involved. The Council of Europe is the framework of the European Convention on Human Rights, the European Court of Human Rights (ECtHR, Strasbourg), the Venice Commission and the Committee of Ministers. The European Union is the framework of the Court of Justice of the European Union (CJEU), the European Commission and the Article 7 TEU procedure.1,2,3,4 This level covers five kinds of act that must not be merged: ECtHR judgments, ECtHR interim measures, a CJEU judgment in an action for failure to fulfil obligations, Venice Commission opinions, and European Commission recommendations, proposals and reports.5,1,2,6,7

ECtHR and CJEU judgments are rulings of courts in cases to which Poland was a party; the Committee of Ministers supervises the execution of ECtHR judgments.8,2 Venice Commission opinions are advisory and not binding, a point the President's side stressed in reacting to the 2026 opinion.9 Positions of the Constitutional Tribunal (the Tribunal) are attributed to its leadership at the time: K 6/21 and K 3/21 were delivered under the presidency of Julia Przyłębska, and the 2025–2026 statements under that of Bogdan Święczkowski.10,11,7

The Venice Commission in 2016

CDL-AD(2016)001 (11 March 2016)

The opinion concerned the 2015 amendments. Its content is known from the Polish translation published by TVN24 (first part, up to about para. 109); the numbering of the conclusions has not been verified.12,13 According to that translation, the Commission found that a quorum of 13 of the 15 judges went much further than the European standard and risked blocking the Tribunal (paras. 67–71). A two-thirds majority is not a general rule (para. 79), and Article 190(5) of the Constitution requires a simple majority (paras. 81–82).12

The combined effect of the changes could seriously undermine the Tribunal's effectiveness (para. 88), and European standards require judgments to be respected (para. 43). The oath is primarily ceremonial (para. 108), and the judgment of 9 December 2015 holding that a judge's term runs from election should be respected (para. 109).12 The opinion (para. 42) records the government's position that it would not publish rulings issued by a bench and procedure inconsistent with the Act of 22 December 2015.12,14

According to Wikipedia and Demagog, the Commission said the conflict originated in actions of the Sejm of the 7th term (2011–2015), which had elected judges "in reserve" ("na zapas"), and called for dialogue and respect for the Tribunal's judgments.15,16

CDL-AD(2016)026 (14–15 October 2016)

The opinion was adopted at the 108th plenary session at the request of the Secretary General of the Council of Europe, Thorbjørn Jagland, dated 12 July 2016. The rapporteurs were Cleveland, Frendo, Grabenwarter, Scholsem and Tuori; the Polish government sent no representative (paras. 1–8).17 According to the copy on trybunal.gov.pl, the President had refused the oath of the three judges elected in October 2015 but accepted it from those elected in December. Full respect for the judgment of 3 December 2015 would have meant the October judges joining the Tribunal (§ 104), and since the October election was valid there were no vacancies for the December election (§ 107).18

The Act of 22 July 2016 required cases to be assigned to the three December judges who, according to the Tribunal's case law, had been elected in breach of the Constitution (para. 103).17 The mechanism for choosing the President of the Tribunal (the General Assembly of Judges presents three candidates, the President of the Republic chooses) gave the President of the Republic excessive leverage; the Commission recommended that each judge have as many votes as there are candidates (§§ 26–31, 30, 124).18 The validity of a judgment cannot depend on the executive or the legislature (§ 77), and judgments take effect from delivery regardless of publication (§ 99).18

The European Commission, 2016–2017

The rule-of-law framework was opened on 13 January 2016; the Commission called for the Tribunal's judgments to be respected and for the oath to be received from properly elected judges.16 Recommendation (EU) 2016/1374 of 27 July 2016 (OJ L 217 of 12.8.2016, pp. 53–68) found a systemic threat and set three months (footnote 1 and recitals 5–8 of the December 2016 Recommendation).21,22 The government replied on 27 October 2016, disagreeing on every point (recital 17).21

The Recommendation of 21 December 2016 (C(2016) 8950) describes, in recitals 25–26, the admission of the three December judges on 20 December, a General Assembly with six judges voting and the appointment of Julia Przyłębska on 21 December 2016. Point 61 finds the procedure for choosing the President of the Tribunal and the institution of an acting president seriously flawed.21 Points 65–66 recommend, among other things, not appointing a new President of the Tribunal before the judgments are published and the October judges take office; point 68 sets two months.21 Its publication as (EU) 2017/146 (OJ L 22 of 27.1.2017) has not been checked in EUR-Lex. unverified

According to Wikipedia, a third Recommendation was adopted on 26 July 2017. unverified On 20 December 2017 the Commission submitted reasoned proposal COM(2017) 835 (procedure 2017/0360(NLE)). It pointed to the absence of independent and legitimate constitutional review, recommended that the Tribunal's independence as guarantor of the Constitution be re-established, and found that Poland had not taken adequate action within the deadline.4,15 The key conclusion of the part on the Tribunal is, approximately, that the Tribunal's independence and legitimacy are seriously undermined and the constitutionality of Polish laws can no longer be effectively guaranteed. unverified A fourth Recommendation, C(2017) 9050, was issued the same day.23 In March 2018 the European Parliament supported the procedure in a resolution.15 It had earlier adopted resolutions on 13 April 2016 (according to Demagog, calling for implementation of the Tribunal's judgments of 3 and 9 December 2015) and 14 September 2016.16,21

The ECtHR: Ástráðsson, Xero Flor, M.L.

The Ástráðsson test

In the Grand Chamber judgment Guðmundur Andri Ástráðsson v. Iceland (no. 26374/18) of 1 December 2020, the ECtHR adopted a three-step test: a manifest breach of domestic law, concerning a fundamental rule of the appointment procedure, and the absence of effective review and redress by the domestic courts. Paragraph numbers have not been verified.24,25

Xero Flor w Polsce sp. z o.o. v. Poland (no. 4907/18)

The First Section judgment of 7 May 2021 (deliberated on 30 March 2021) sets out the facts: the President did not receive the oath from any judge elected on 8 October 2015 (§§ 9, 29); in K 34/15 the Tribunal upheld the election of three judges to seats vacated on 6 November 2015 (§§ 23–26, 28) and held that the President was obliged to receive their oath (§ 27).5 The Tribunal bench with Mariusz Muszyński as rapporteur (§ 96) discontinued the proceedings by three votes to two (§ 98); Judge Piotr Tuleja, dissenting, pointed to Muszyński's election to a filled seat (§ 106). The Article 6 complaint was declared admissible (§§ 154–155).5,26

According to the literature, the conclusion that a bench including Muszyński was not a tribunal established by law is in §§ 289–291 unverified; that part of the text was not retrieved.5,25 According to M. Leloup (Verfassungsblog), the ECtHR found all three limbs of the test met: the Tribunal itself had held three of the five December 2015 elections unconstitutional; the rule that a judge is elected by the Sejm of the term in which the vacancy arises was breached, aggravated by disregard of the Tribunal's judgments; and no domestic review or remedy existed. In his reading, the effect extends to any bench including one of the three persons elected in December 2015 to filled seats.25

M.L. v. Poland (no. 40119/21)

The First Section judgment of 14 December 2023 (deliberated on 21 November 2023) concerned judgment K 1/20 of 22 October 2020. That judgment was adopted by 11 votes to 2, concerned Article 4a(1)(2) of the Family Planning Act and took effect on 27 January 2021 (§§ 15–16, 21, 39).27 The ECtHR referred to Xero Flor: the irregularities in Muszyński's election were so serious that they undermine legitimacy (§§ 170–171), and the participation of such a judge may in itself undermine the legal force of a judgment (§ 172).27

The ECtHR noted that Justyn Piskorski and Jarosław Wyrembak had been elected in 2017 and 2018 to the seats of persons elected in the same defective procedure (§ 173). The ECtHR found that K 1/20 did not meet the requirements of the rule of law, without examining the complaints concerning Julia Przyłębska and Krystyna Pawłowicz (§ 174). The interference was not "in accordance with the law", including for lack of foreseeability (§ 175); Article 8 was violated (§ 176).27 The applicant claimed EUR 1,220 in pecuniary and EUR 50,000 in non-pecuniary damage (§ 178); the vote and the amounts awarded have not been verified, and separate opinions exist.27,28

The Tribunal's answer: K 6/21 and K 7/21

K 6/21 (24 November 2021) was decided on an application by the Prosecutor General by a bench of Julia Przyłębska (presiding), Zbigniew Jędrzejewski, Bartłomiej Sochański, Wojciech Sych (rapporteur) and Michał Warciński, unanimously.10 Point 1: Article 6(1), first sentence, of the Convention, insofar as it treats the Tribunal as a "court", is incompatible with Article 173 read with Articles 10(2), 175(1) and 8(1) of the Constitution. Point 2: insofar as it allows the ECtHR to assess the legality of the election of the Tribunal's judges, it is incompatible with Article 194(1) read with Article 8(1). Point 3: proceedings discontinued as to the remainder.10 None of the persons elected to seats held filled in K 34/15 sat on the bench.10

K 7/21 concerned review, under Article 6(1), first sentence, of the Convention, by national or international courts of whether statutes on the judicial system, the jurisdiction of courts and the National Council of the Judiciary (KRS) comply with the Constitution and the Convention (title of the Tribunal's page).33 Its date (10 March 2022), bench, operative part and publication have not been verified. unverified

The CJEU: C-448/23 Commission v Poland

Background: P 7/20 and K 3/21

P 7/20 (14 July 2021) was a question of law from the Supreme Court, heard by Stanisław Piotrowicz (presiding), Bartłomiej Sochański (rapporteur), Zbigniew Jędrzejewski, Justyn Piskorski and Jakub Stelina, by a majority.34 K 3/21 (7 October 2021) was heard on an application by the Prime Minister by 12 judges presided over by Przyłębska (rapporteur Sochański), including Muszyński, Piskorski and Wyrembak; Piotr Pszczółkowski and Wyrembak dissented.11 The Tribunal held, among other things, that Article 19(1), second subparagraph, read with Article 2 TEU is incompatible with Articles 2, 8(1), 90(1), 179, 144(3)(17) and 186(1) of the Constitution insofar as it concerns review of judicial appointments and KRS resolutions.11

Procedure

Reuters reported on 15 February 2023 that the Commission was taking Poland to the CJEU; the Sejm resolution of 6 March 2024 also gives that date.35,29 The 2024 Rule of Law Report states that the action was lodged on 17 July 2023.36 The Advocate General's opinion, finding the action well founded, was delivered on 11 March 2025; Notes from Poland reported that the opinion described the Tribunal as leading a frontal attack on the EU legal order.37,38,39 Judgment was delivered on 18 December 2025 (press release no. 157/25; full text: CELEX 62023CJ0448).2,40

Holding

The CJEU upheld the action in full. It found breaches of Article 19(1), second subparagraph, TEU, of the principles of autonomy, primacy, effectiveness and uniform application of EU law, and of the binding effect of CJEU judgments; Poland may not rely on constitutional identity (Article 4(2) TEU) against the values in Article 2 TEU.2,41 The Tribunal fails to meet the requirements of an independent and impartial tribunal previously established by law for two reasons. First, in December 2015 three persons were elected to seats already filled in October 2015 and allowed to adjudicate, while those elected in October were not. Second, there were irregularities in presenting the candidate for President of the Tribunal in December 2016.41 According to the press release, 8 of the 14 judges then present refused to vote, and the candidate received 5 votes, including 3 from persons whose appointment is contested.2

The press release recalls that presenting candidates not backed by a majority of the judges had previously been held unconstitutional.41 This presumably refers to the Tribunal's judgment K 44/16 of 7 November 2016. unverified According to W. Sadurski's commentary on Verfassungsblog, the judgment sets out a non-regression principle (para. 179) and defines the scope of EU law (paras. 102–103).42 If the judgment is not complied with, a new action and financial penalties are possible.2

Supervision of execution by the Committee of Ministers

The source is the Secretariat's notes CM/Notes/1507/H46-22 for the 1507th (human rights) meeting of 17–19 September 2024; they are not adopted decisions. According to them, at its 1483rd meeting in December 2023 the Committee expressed deep regret at the lack of analysis of options for restitutio in integrum.8 It called for measures to ensure a lawful composition of the Tribunal: admitting the October 2015 judges for a full nine-year term, excluding those irregularly elected, regularising the status of decisions taken with their participation and preventing undue influence in future elections.8

The Secretariat noted that Muszyński's term ends in December 2024 and that the two persons elected in 2017–2018 to seats vacated by the deaths of persons elected in December 2015 need to be excluded. It pointed to protecting the rights of third parties acting in good faith in any reopening of cases.8 It considered relevant: a temporary bar on active politicians, a wider range of bodies nominating candidates, a higher majority and a 14-day deadline for the President to receive the oath; in its view Poland's 2024 drafts broadly responded to the concerns.8

Among Polish measures, the notes list the Sejm resolution of 6 March 2024 and the draft laws of the same day (three-fifths majority, oath within 14 days, re-filing of discontinued complaints within three months).8 The resolution (Monitor Polski 2024, item 198) states that Muszyński, Piskorski and Wyrembak are not judges of the Tribunal; in judgment U 5/24 of 28 May 2024 (U denotes review of a resolution) the Tribunal held it unconstitutional, and that judgment has not been published.29,31 M.L. is supervised under the enhanced procedure together with Tysiąc and P. and S.43

The Venice Commission in 2024: CDL-AD(2024)035

The request came from Justice Minister Adam Bodnar by letter of 3 September 2024 and concerned draft constitutional amendments and two draft laws. The reference documents are CDL-REF(2024)037 (draft Tribunal Act) and CDL-REF(2024)038 (draft implementing provisions).44,45,46 The opinion was adopted at the 141st plenary session in Venice on 6–7 December 2024; its opinion number has not been verified.47

The researchers did not read the text of the opinion. According to TVN24, citing Deputy Minister D. Mazur, the Commission: (a) firmly opposed ending the terms of all sitting judges, citing irremovability; (b) recommended ending or interrupting by statute the terms of judges elected to occupied seats; (c) recommended that properly elected judges serve out their terms; (d) recommended publishing judgments with an annotation.32 It had no objection to a four-year cooling-off period for holders of government posts but was not fully convinced by exclusion on the ground of party membership alone; it considered constitutional amendments politically unlikely.32 The European Commission's 2025 report (p. 6, fn. 24) summarises the opinion as supporting the aim while recommending milder measures than annulling all rulings given with irregularly appointed judges.38

According to the European Commission, the drafts provided, among other things, for annulling rulings given by irregular benches, ending the term of the President of the Tribunal, annulling the appointment of three judges to occupied seats and giving the remaining judges one month to retire.36 In Kp 3/24 (Kp denotes preventive review before signature) the Tribunal held that treating those persons as not entitled to adjudicate would shorten terms of office and require a constitutional amendment, and that nullity of rulings ex tunc would retroactively strip judges of their status.48,49

The European Commission, 2024–2026

Closure of the Article 7 procedure was announced on 7 May 2024; on 22 May the member states supported it (Hungary objected), and on 29 May 2024 the Commission declared it.50,51,52 Commission spokesperson Eric Mamer said there was no longer a clear breach of the rule of law in Poland; the Commission noted that not all reforms had been implemented. The closure followed the Action Plan presented by Minister Bodnar in February 2024.53,54

The 2024 Report (SWD(2024) 821 final, Council doc. ST 12605/24 ADD 21) records M.L. and the Tribunal's rulings K 8/21 and Kp 1/23 (11 December 2023), Ts 9/24 (15 January 2024), Ts 32/24 and competence dispute Kpt 1/24 (pending). It states that from 13 December 2023 the government published judgments with an explanatory note and, after the resolution of 6 March 2024, stopped publishing all of them; in the Commission's view the resolution is not legally binding.36 The 2025 Report (SWD(2025) 921 final, ST 11482/25 ADD 22) states that the Sejm and the government stopped taking part in proceedings before the Tribunal. Its footnote 27 wrongly dates the Council of Ministers decision to 18 December 2022 (the annex gives 2024).38

The 2026 Report (SWD(2026) 921 final, Brussels, 17 July 2026, Council doc. ST 11674/26 ADD 22) covers the Tribunal on pp. 8–9. It records C-448/23 (fn. 43) and the Tribunal's response that the CJEU lacks jurisdiction (fn. 44), the non-publication of SK 68/25 (fn. 45; SK denotes a constitutional complaint), the oaths of 9 April in the Sejm with notarised copies lodged with the President's Chancellery that day (fn. 47), the ECtHR measure of 5 May 2026 (fn. 48) and the increased budget of the Tribunal (fn. 49).7 On p. 6 (fn. 20) it cites M.L. (§§ 169–174) and finds that K 7/26 was issued by a bench including a judge elected in 2017 to an occupied seat, raising an issue under Article 6 of the Convention. The overall assessment is "some further progress"; the recommendation is to continue implementing the Action Plan.7

The ECtHR in 2026: Dziurda and Others v. Poland (no. 17392/26)

The applicants are Krystian Markiewicz, Marcin Dziurda, Anna Korwin-Piotrowska and Maciej Taborowski, represented by S. Gregorczyk-Abram.57 The measure requires Poland to ensure that the competent authorities refrain from obstructing the applicants from taking up and exercising their duties; the ECtHR press release says it was granted on an interim basis.1,58 The government was asked to provide information.57 Justice Minister Waldemar Żurek stated that seven judges took the decision unanimously; this is information from a party to the dispute.58

The Tribunal's spokeswoman, W. Ścibor, also said the Tribunal was not aware of domestic proceedings in the matter and had received no formal notification.58 The Head of the President's Chancellery, Zbigniew Bogucki, said that until the President's April application is decided, all questions are suspended.58 That application (Kpt 1/26; Kpt denotes a competence dispute) asks the Tribunal to find that the Sejm has no power to organise acts replacing the personal oath before the President.59

On 12 May 2026 the Tribunal delivered K 3/26 on an application by a group of PiS (Law and Justice) MPs of February 2026, represented by Marcin Warchoł. The bench was Bogdan Święczkowski (presiding), Bartłomiej Sochański (rapporteur), Justyn Piskorski, Rafał Wojciechowski and Jarosław Wyrembak. The six persons elected on 13 March 2026 had asked for Święczkowski, Piskorski and Wyrembak to be excluded.60,61 According to the Tribunal, an oath "before the President" (wobec Prezydenta) means in his physical presence. Wojciechowski, dissenting, wrote that the ruling widens the head of state's powers contrary to the Tribunal's earlier case law; Wyrembak called it a dangerous precedent for filling public offices.60,62 Government spokesman A. Szłapka said the Constitution clearly provides that judges are elected by the Sejm.63

The Venice Commission in 2026: CDL-AD(2026)031

The document is titled "Poland – Opinion on the powers of the President in the context of the oath-taking of the judges of the Constitutional Tribunal and of other judicial appointments", CDL-AD(2026)031, Strasbourg, 13 October 2026, original in English. The number, title and date come from metadata; the PDF could not be downloaded.6,64,65 A supporting document was CDL-REF(2026)022rev of 22 September 2026 (extracts from Polish legislation).66 According to the press, the opinion is No. 1294/2026 and was requested by the Monitoring Committee of the Parliamentary Assembly of the Council of Europe.67,9

According to OKO.press, the opinion was adopted at the 148th plenary session on 9–10 October 2026 unverified, on a request from the Monitoring Committee's chair, Elvira Kovács, dated 29 June. unverified The Venice Commission's page on Poland lists a request for an opinion dated 13 March 2026, without details.3,68

According to TVN24, the President's role is ceremonial, although the oath has legal significance and the President's presence gives it the character of an institutional ceremony (para. 62). The recommendation in para. 98 is to apply the oath provisions in line with their purpose and, if the President refuses or delays, to allow the oath without his physical presence, with the prescribed form, verification and delivery. For other judicial appointments, safeguards against arbitrariness are needed, including judicial review (para. 92).67 These paragraph numbers come from the press report, not from the text.67

Interia reports that taking the oath before the President does not entitle him to examine the grounds of the election, and that the procedure may not undermine the Sejm's competence.9 RMF24, quoted by zero.pl, refers to confirmation by a notarial deed presented to the head of state.69 OKO.press reports that the President is obliged to receive the oath without delay and that, if he refuses, the judges may complete the formalities without him and begin adjudicating.68,70

Other 2026 opinions concern ordinary judges and the KRS, not the Tribunal. Urgent joint opinion 1238/2025 of 27 February 2026 assesses a draft law on the status of judges appointed or promoted in 2018–2025. Opinion 1276/2026 concerns the President's draft law on restoring the right to a court ("o przywróceniu prawa do sądu").3,7 On the oath opinion, President's spokesman Rafał Leśkiewicz said it has no legal force and that Maciej Berek, elected by the Sejm on 4 September 2026, cannot become a judge without meeting the formal requirement. PiS MP B. Wróblewski said the Commission lacks competence.9,73 Żurek said the President has no right of veto over judges elected by the Sejm; Adam Bodnar, that refusal is purely a matter of ceremony. Marshal of the Sejm Włodzimierz Czarzasty said patience had run out, and Święczkowski that he cannot recognise the four judges.9,67

Disputed points

  • Whether Article 6(1) of the Convention covers the Tribunal and whether the ECtHR may assess the election of its judges: the ECtHR ruled that it does in Xero Flor and M.L., while the Tribunal in K 6/21 held the opposite under Articles 8(1), 173 and 194(1) of the Constitution.5,27,10
  • Primacy of EU law in matters of judicial organisation: the CJEU in C-448/23 found a failure to fulfil obligations, while the Tribunal states that the CJEU lacks jurisdiction; earlier, in P 7/20, the Tribunal held Article 91(1)–(3) of the Constitution inapplicable in that area.2,7,34
  • Consequences for the Tribunal's earlier rulings: the Committee of Ministers calls for their status to be regularised, the Sejm in 2024 declared them affected by a defect, and the Tribunal in U 5/24 held the Sejm resolution unconstitutional.8,29,31
  • Scope of the remedy: the Venice Commission (2024) favoured ending by statute the terms of three persons, not of all judges; the 2024 drafts went further; the Tribunal in Kp 3/24 held the laws unconstitutional.32,36,49
  • Publication of the Tribunal's judgments: the Venice Commission recommended publication with an annotation, whereas the Council of Ministers (Resolution No. 162) declared publication impermissible for an "unauthorised body".32,30
  • The President's role in the oath: the Venice Commission (advisory opinion) and the ECtHR (interim measure) on one side, K 3/26 and the President's Chancellery on the other; K 34/15 (2015) and K 3/26 (2026) read the President's duty differently.67,1,60,19
  • Binding nature of the interim measure: the government treats it as immediately enforceable, while the Tribunal's spokeswoman and the Head of the President's Chancellery dispute the ECtHR's competence.58

Evidentiary gaps

  • The full text of CDL-AD(2026)031 was not retrieved (403); paras. 62, 92 and 98 are known only from TVN24, and the plenary session number and the date of the Parliamentary Assembly's request are unconfirmed.64,67,3
  • The text of CDL-AD(2024)035 was not read; its content is known from a deputy minister's account and from the Commission's report, and its opinion number is unknown.47,32
  • The conclusions of the 2016 opinions with paragraph numbers were not fully retrieved: the Ukrainian copy breaks off at para. 105, and the TVN24 translation at about para. 109.17,12
  • The texts of COM(2017) 835 and of the 2016–2017 Recommendations in EUR-Lex were not retrieved; the date of the third Recommendation is unconfirmed.4,15
  • The concluding paragraphs of Xero Flor, the paragraphs of Ástráðsson, and the vote and amounts in M.L. were not confirmed in HUDOC.5,24,27
  • Full text of C-448/23: the press release is known, and paragraph numbers come from a commentary.40,42
  • The full text of the decision in Dziurda and Others is not available; there is no information on communication of the case to the government or on any extension of the measure.1
  • The state of Committee of Ministers supervision as of October 2026 (HUDOC-EXEC) has not been established.8
  • Further ECtHR judgments on other Polish courts (including Reczkowicz and Wałęsa) and earlier CJEU cases appear in the research only from general knowledge; they are not described here.43
  • No European Commission position on the 2026 Venice Commission opinion, or on the oaths of 9 April 2026 beyond its report, was found.7
  • The reasoning of K 6/21, P 7/20 and K 3/21 was not retrieved: the Tribunal's arguments are known from the operative parts, while the reasoning of the ECtHR and the CJEU is also known from commentaries (Leloup, Szwed, Sadurski); no analyses by authors supporting the Tribunal's position (for example Ordo Iuris or the Institute of Justice) were found.10,34,11,25,43,42

Discrepancies between sources

  • Date of the Dziurda measure: 5 May 2026 (Commission's 2026 report, Polsat News) versus 6 May 2026 (ECtHR press release, OKO.press, Prawo.pl); this text uses 5 May as the date of the decision and 6 May as the date of the press release.7,74,1,57
  • Basis of the measure: one source describes it as a Rule 39 measure (Rule 39 of the Rules of Court), but the press release as read by the researchers does not name the rule; this text does not state the basis.1,57
  • Date Xero Flor became final: 7 August 2021 (HUDOC header) versus 8 August 2021 (Committee of Ministers Secretariat notes).5,8
  • Numbering in CDL-AD(2016)026: the duty to publish K 47/15 appears at paras. 16, 76 and 86 in the Ukrainian copy and at § 19 in the copy on trybunal.gov.pl; this text gives numbers that match in both copies (§§ 103–104, 107).17,18
  • Composition in C-448/23: one research note gives the Grand Chamber, another marks the composition as unverified.40,2
  • Case number K 3/26: given by Prawo.pl ("K 3/2026"), treated as unconfirmed in another note, and written "K 323/26" by Notes from Poland; this text uses K 3/26.61,63
  • The Commission's 2026 report gives 1 April 2026 for the election of the judges in fns. 46–47 but 13 March 2026 in the main text; 1 April is the date of the oath before the President.7
  • Content of the 2026 opinion: TVN24 presents the oath-without-the-President mechanism as a recommendation for the future, OKO.press as an option already available.67,68

Notes

  1. [ECtHR] ECHR, 6.05.2026. echr.coe.int (accessed 31.10.2026) ↩
  2. [CJEU / EU law] TSUE, komunikat prasowy cp250157pl, 18.12.2025. curia.europa.eu (accessed 31.10.2026) ↩
  3. [Council of Europe] NIEZWERYFIKOWANE: numer sesji plenarnej; nazwiska sprawozdawców; data wniosku PACE – strona KW dla Polski wymienia „13 Mar 2026: request for an opinion” bez szczegółów — [coe.int/venice-commission/poland. coe.int (accessed 31.10.2026) ↩
  4. [EU institution] Parlament Europejski, OEIL: streszczenie procedury 2017/0360(NLE) (wniosek KE z 20.12.2017, art. 7 ust. 1 TUE). oeil.europarl.europa.eu (accessed 31.10.2026) ↩
  5. [ECtHR] HUDOC, nagłówek wyroku. hudoc.echr.coe.int (accessed 31.10.2026) ↩
  6. [Council of Europe] coe.int – strona dokumentu. coe.int (accessed 31.10.2026) ↩
  7. [EU institution] KE, 2026 Rule of Law Report, rozdział PL, SWD(2026) 921 final, s. 9, przyp. 48 (Council doc. ST 11674/26 ADD 22). data.consilium.europa.eu (accessed 31.10.2026) ↩
  8. [Council of Europe] rm.coe.int/0900001680b16bc8 „Ministers’ Deputies”. rm.coe.int (accessed 31.10.2026) ↩
  9. [press] Interia. wydarzenia.interia.pl (accessed 31.10.2026) ↩
  10. [Constitutional Tribunal] TK (en), K 6/21. trybunal.gov.pl (accessed 31.10.2026) ↩
  11. [Constitutional Tribunal] TK (en), K 3/21. trybunal.gov.pl (accessed 31.10.2026) ↩
  12. [press] TVN24, polskie tłumaczenie opinii Komisji Weneckiej CDL-AD(2016)001 („Przeczytaj całą opinię Komisji Weneckiej”, część 1) — TVN24, Polish translation of Venice Commission opinion CDL-AD(2016)001 of 11 March 2016 (part 1, up to approx. para. 107–109). tvn24.pl (accessed 31.10.2026) ↩
  13. [Council of Europe] CDL-AD(2016)001-e. coe.int (accessed 31.10.2026) ↩
  14. [encyclopedia] pl.wikipedia, „Kryzys wokół Trybunału Konstytucyjnego w Polsce”. pl.wikipedia.org (accessed 31.10.2026) ↩
  15. [encyclopedia] pl.wikipedia „Kryzys wokół TK". pl.m.wikipedia.org (accessed 31.10.2026) ↩
  16. [press] Demagog. demagog.org.pl (accessed 31.10.2026) ↩
  17. [Council of Europe] Komisja Wenecka, CDL-AD(2016)026, opinia o ustawie z 22.07.2016 r. o TK (kopia na stronie Sądu Najwyższego Ukrainy; tekst ucięty na pkt 105) — Venice Commission, Poland – Opinion on the Act on the Constitutional Tribunal, CDL-AD(2016)026, adopted at the 108th Plenary Session, 14–15 October 2016 (mirror on supreme.court.gov.ua; metadata: coe.int/fr/web/venice-commission/-/cdl-ad-2016-026-e). supreme.court.gov.ua (accessed 31.10.2026) ↩
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