Poland: Brussels assigns to the Sejm the choice of the eight constitutional judges

The European Commission has intervened in the Polish institutional dispute over the composition of the Constitutional Tribunal, citing Article 194 of the Polish Constitution and EU case law on the choice of the eight constitutional judges, a choice that the Commission attributes to the Sejm, the lower house of the Polish parliament. This is reported by Sbircia la Notizia, citing a European Commission communication dated 31 October; this is currently the only available source on the matter.

The Commission’s statement shapes the European Union’s political position on the issue, but does not by itself bring about the actual installation of the judges: the Commission has no direct power to impose the appointment, and its position thus remains a political direction rather than an immediately binding act.

On the ground, the situation remains suspended: five judges are still not exercising their functions within the Constitutional Tribunal, a condition arising from the interplay between contested oaths on one side and rulings by European courts on the other.

In examining the matter, the Commission’s communication took into account a set of distinct legal acts: the opinion of the Venice Commission, the advisory body of the Council of Europe on constitutional matters; a measure adopted in Strasbourg; the ruling of the Court of Justice of the European Union identified as C-448/23; and a Polish ruling indicated as K 3/26.

This set of references — an advisory opinion, a European measure, a ruling by the Court of Justice and a national ruling — makes up the legal framework on which the Commission built its position of 31 October. The convergence of sources of different standing, from advisory to judicial, reflects the complexity of a matter that intertwines Polish constitutional law with the European Union’s legal order.

The concrete question of how and when the five judges still excluded will be able to resume exercising their functions remains open at present, a step that will depend on institutional developments within the Sejm rather than on Brussels’ stance alone.