The improvement of the KRS awaits the signature of the President

The amendment of the Act of 20.8.1997 on the National Judicial Council (Journal of Laws of 2024 item 1186; hereinafter: KrRadSądU) is to reconstruct constitutional standards for the election of members of the National Court of Justice of the European Union and to bring national rules into line with the standards proposed in the judgments of the Court of Justice of the European Union and the European Court of Human Rights, as well as the ultimate Court and the ultimate Administrative Court.

Current legal status

The primary function of the KRS, in accordance with Article 186(1) of the Constitution of the Republic of Poland, is to uphold the independency of courts and the independency of judges. Article 187(1) of the Constitution of the Republic of Poland indicates that the National Judicial Council consists of 25 members:

1. First president of the ultimate Court, Minister of Justice, president of the ultimate Administrative Court and individual appointed by the president of the Republic,
2. 15 members elected from among the ultimate Court judges, universal courts, administrative courts and military courts,
3. four members elected by the Sejm from among Members and 2 members elected by the legislature from among Senators.

It is precisely paragraph 2 of Article 187 of the Polish Constitution that has been the subject of a political dispute over the way the members of the KRS are elected, which is not explicitly indicated here, leaving the anticipation of regulating this issue by law. The Constitutional Court, in its judgement of 18.7.2007, K 25/07, Legalis, ruled that they should be elected by representatives of the judiciary community, ensuring their independency from the legislative and executive authority.

The Act of 8.12.2017 amending the Act on the National Judicial Council and certain another laws (Journal of Laws of 2018 item 3; hereinafter: ZmKrRadSądU18) introduced Article 9a of the KrRadSądU, according to which the Sejm elects 15 members of judges from the SN judges, universal, administrative and military courts.

The regulation has for years sparked a lively discussion about the state of the regulation of law in Poland, besides outside its borders. Concerns about the failure of a real influence by the judiciary on the functioning of the KRS for the legislative and executive authority were expressed in its rulings by the TEU, ETPCz, NSA and SN. For the same reason, the KRS was stripped of its membership of the European Network of Judicial Councils (ENCJ) on 28.10.2021.

Procedure for the selection of judges

The amendment of the Court of Justice introduces fundamental changes to the selection procedure for members of the judges of the KRS. The elections shall be managed by the State Election Commission by a resolution no later than 4 months before the expiry of the joint word of office of the Council.

In accordance with the proposed Article 11f(1), the members of the National Courts shall be elected by judges in direct elections and secret ballots, carried out in the buildings of courts utilizing electoral urns. The composition of 15 members of the Council is as follows: 1 justice of the ultimate Court, 2 Judges of the Court of Appeal, 3 Judges of the territory Court, six Judges of the territory Court, 1 justice of the Military Court, 1 justice of the ultimate Administrative Court, 1 justice of the Provincial Administrative Court.

The right to apply for a candidate is granted to a group of 50 judges, the Chief Bar Council, the National Council of Legal Advisors and the National Notary Council.

A candidate for a associate of the Council may be a justice who, on the day of the vote, remains active, with at least a 10-year stint in the position of judge, including at least a five-year stint in the current position of justice SN, SA, SO, SR, military territory court, military garrison court, NSA or WSA. The first version of the task did not include the request to stay active, which was added in the course of the seismic work.

All ultimate Court judges, general courts, military and administrative courts who stay active on the day of voting may vote for members of the National Courts. Each may cast 15 votes reflecting the proportion of the representation of the judges of the individual courts in the Council.

The selection process for members of the KRS judges is supervised by the PKW, which besides organises a mandatory public proceeding of candidates, broadcast online, during which citizens can ask questions.

New body – Social Council

The Social Council will be appointed on the basis of the proposed Article 27a of the KrCouncil. As an opinion body to the KRS, he will be tasked with ensuring that the nomination process of judges and asessors is monitored. Failure by the National Court registry to take its opinion into account will consequence in the request for detailed justification.

The Social Council, whose word of office will last 4 years, will include persons designated by: the Chief Bar Council, the National Council of Legal Advisors, the National Notary Council, the National Chamber Council, the Central Council of discipline and Higher Education, the Ombudsman, the National Council of Prosecutors at the lawyer General, and 3 representatives of NGOs designated by the Public Interest Council.

Legislative phase

The bill was adopted by the legislature at its gathering on 28.1.2026 and submitted to the president of Poland for signature. It is to enter into force 14 days after the date of publication.

Article 2 of the amendment states that the PCW will order the first elections on fresh terms, no later than 4 months before the end of the joint word of office of persons elected by the Sejm under the provisions of 2017. The right of candidate will not then be granted to persons elected to the National Court registry by the Sejm on the basis of the repealed Article 9a(1) of the Court of Justice.