—Noel Boy, Doctor in Public Law, University of Montpellier
On September 23, 2025[1], the Polish Constitutional Tribunal issued a ruling declaring unconstitutional the provisions of the law of July 20, 2000[2], which conditioned the effects of Constitutional Tribunal rulings on their publication by the Prime Minister in the Official Gazette. The possibility for the executive branch to deliberately refuse to publish Constitutional Tribunal rulings in order to block their effects thus constitutes a violation of the separation of powers and the rule of law. This latest development in the constitutional crisis that has been unfolding in Poland for almost ten years makes the significance of this ruling P3/25 particularly apparent in light of the current political context in Poland, which pits the executive branch against the Constitutional Tribunal.
The saga of the Polish constitutional crisis: a summary of previous episodes
In August 2015, the Polish presidential elections resulted in the victory of Andrzej Duda, candidate of the Law and Justice party (Prawo i Sprawiedliwość, hereafter PiS). This victory for PiS in the presidential elections foreshadowed the loss of the parliamentary majority for the Civic Platform party (Platforma Obywatelska, hereafter PO), then in power, in the parliamentary elections scheduled for October 25, 2015.
It was in this context of a majority party knowing it was losing power that the decision was made which triggered the constitutional crisis that the country is still experiencing today. Indeed, on October 8, 2015, this majority decided to appoint five constitutional judges to replace those whose term was ending at the end of 2015. These outgoing judges, all appointed during a previous legislature when PiS was the majority party, were thus to be replaced by individuals this time chosen by the parliamentary majority led by PO[3].
However, while three of the judges appointed by the Polish People’s Party (PO) were intended to replace those whose terms ended on November 6, meaning after the parliamentary elections but before the end of the previous legislative session, the other two appointments were to replace judges whose terms did not end until December 2015, after the start of the new legislative session. For this reason, none of these appointments were recognized by President Duda.
The consequences of this decision were quick to be seen. On October 25, 2015, the parliamentary elections resulted in a victory for Law and Justice (PiS), which thus obtained a parliamentary majority in the Sejm. This new legislature, led by PiS, in turn appointed five constitutional judges on December 2, 2015: three to replace judges whose terms had ended in November and two to replace judges whose terms were due to end in December. These five appointments, this time recognized by President Duda, were intended to replace the candidates previously proposed by PO.
In a ruling meant to resolve the conflict by appointing the correct number of judges for each legislature, the Constitutional Tribunal[4] upheld PO’s three appointments of judges whose terms were expiring in November and rejected the validity of the latter two[5]. However, this ruling was not accepted by the ruling majority, with President Duda refusing to recognize PO’s three appointments.
The five judges appointed by PiS thus found themselves joining the institution, despite the problems surrounding their appointments and the Constitutional Tribunal’s challenge to their status[6]. To prevent any resistance from the Constitutional Tribunal, an amendment to its procedures was adopted by the Sejm on December 22[7]. This amendment required the tribunal to sit with 13 judges and to vote by a two-thirds majority, all to prevent the tribunal from removing the five judges appointed by PiS. In March 2016[8], sitting without the five judges whose status was contested, the Constitutional Tribunal concluded that these changes were unconstitutional. In response, the government deemed the judgment invalid due to non-compliance with the conditions set by the amendment, refusing to publish it and thus preventing the verdict from taking effect.
Although other events followed, explaining these different stages of the constitutional crisis is already sufficient to paint a picture of the issues and obstacles present in the Polish constitutional landscape.
The ruling of September 23, 2025: the end of a cycle?
Following the parliamentary elections of October 2023, Law and Justice (PiS) lost its parliamentary majority to the Civic Coalition (Koalicja Obywatelska, hereafter KO), a coalition composed of several political parties, including Political Party PO. Led by Donald Tusk as Prime Minister, one of the actions announced by the new majority was to redress the attacks on the rule of law committed since the 2015 elections.
Among these attacks were, of course, the actions and changes implemented by PiS regarding the functioning and composition of the Constitutional Tribunal. Indeed, in 2023, the Tribunal was then entirely composed of judges appointed by the former PiS parliamentary majority between 2015 and 2023. Moreover, the legality of the appointments of three of these judges was contested, namely Julia Przyłębska[9], Justyn Piskorski, and Jarosław Wyrembak[10].
Faced with the situation within the institution, the Sejm adopted a directive on March 6, 2024, “on eliminating the effects of the 2015–2023 constitutional crisis within the framework of the activities of the Constitutional Tribunal”. In this text, numerous acts marking the various stages of the constitutional crisis[11] are identified as having been adopted “in flagrant violation of the law, in particular the Constitution of the Republic of Poland and the Convention for the Protection of Human Rights and Fundamental Freedoms”. Finally, faced with the impossibility of modifying the organization of the Constitutional Tribunal due to the opposition expressed by President Andrzej Duda[12], and because of the risk of seeing the control of constitutionality instrumentalized either by the President of the Republic or by parliamentarians affiliated with PiS, the government chose to resort to the same method as the previous PiS government when it faced the judgment K 47/15 of March 9, 2016, namely refusing to publish the judgments of the Constitutional Tribunal in order to deprive them of their effects.
The ruling P 3/25 of September 23, 2025, thus comes in this context of political tensions. At the heart of the case is the conviction of an individual to a lifetime driving ban. However, this conviction was based on legislative provisions deemed unconstitutional by the Constitutional Court in 2024[13], a ruling that had not been published by the Prime Minister. Consequently, faced with this legal conundrum, the Zamość District Court referred to the Constitutional Court the question of the constitutionality of Article 21, paragraph 1, point 1, in conjunction with Article 9, paragraph 1, point 6 of the Law of July 20, 2000, which makes the Constitutional Court’s rulings conditional upon their publication by the Prime Minister in the Official Gazette. By a vote of three to two, the Court ruled that these legislative provisions are incompatible with Articles 2, 10, 45(1), and 173 of the Constitution, namely, Poland’s status as a democratic state governed by the rule of law, the principle of the separation of powers, the right to a fair trial, and the principle of judicial independence from other branches of government.
In its judgment, the Court invoked provisions relating to concepts that are far from unrelated to the constitutional crisis that the country has been experiencing for years, and indeed, more broadly, to the crisis of the rule of law affecting several states as well as European international organizations such as the European Union and the Council of Europe.
Thus, the confrontation between the government formed by a parliamentary majority and the Constitutional Tribunal pits two camps against each other, ostensibly fighting for the same objectives: protecting the rule of law, the separation of powers, and the independence of judges. Moreover, this ruling of September 23, 2025, brings the situation full circle, as the current Constitutional Tribunal, considered to be under the influence of PiS, condemns the executive branch’s practice of evading the Constitutional Court’s oversight by refusing to publish its rulings. This practice was notably present at the beginning of the constitutional crisis in 2015, when the PiS government refused to publish the ruling issued by the Tribunal of the time which had settled the dispute concerning the appointment of new constitutional judges. The constitutional crisis has thus returned to its starting point, albeit with the roles of the protagonists reversed.
And now, revolution or resolution?
The opposition between the government and the Constitutional Tribunal seems, for the moment, to be heading for a new revolution centered on the rule of law and the separation of powers. However, while the form remains the same, the stakes of this conflict are no longer the same as at the beginning of the crisis. Indeed, the government’s refusal in 2015 to publish the Constitutional Tribunal’s ruling, as well as its challenge to the authority of this Court, are actions that perfectly align with the populist PiS policy aimed at neutralizing actors who might restrict its exercise of power[14]. Conversely, the government led by Donald Tusk justifies the non-publication of the Constitutional Tribunal’s rulings by stating that, according to the directive of March 6, 2024, “violations of the Constitution of the Republic of Poland and of the law in the activities of the Constitutional Tribunal have reached such a scale that they prevent this body from carrying out its systemic missions of reviewing the constitutionality of laws, including the protection of human and civil rights”. For the government, cooperating with the Constitutional Tribunal in its current state would ultimately amount to recognize, or at least to tolerate, the actions and changes made to the institution by the previous government, and thus turning a blind eye to the abuses committed against the rule of law.
This stance by the government, however, raises a major difficulty, considering that while restoring the rule of law is clearly a legitimate objective, the means employed to achieve this result are open to question. Indeed, even if it can claim to be acting for a laudable reason, the current Polish government is nevertheless resorting to actions similar to those used by the previous government, actions that were, back then, denounced by the party now in power. Thus, when the Constitutional Tribunal declared on September 23 that making the effects of its rulings conditional upon their publication in the official gazette is contrary to the separation of powers, the rule of law, and the principle of judicial independence, its position is undeniably valid. This possibility for the Prime Minister to manipulate the publication of Constitutional Tribunal rulings to deprive them of their effects can indeed be seen as a breach of the separation of powers, as it grants the executive branch control over the judiciary.
On the one hand, by resorting to actions already condemned for their negative impact on the rule of law and the separation of powers, the government ultimately finds itself fighting fire with fire, seeking to restore the rule of law through a measure likely to undermine it. On the other hand, legitimizing the instrumentalization of the publication of the Court’s judgments based on the objective pursued by this action would constitute a slippery slope that could lead to justifying any behavior, however harmful, provided it is done for a just cause. Such reasoning would prove not only risky for the stability of the legal system, but also highly dependent on determining what could be recognized as a sufficiently valid cause to excuse, for example, a violation of the rule of law or the separation of powers.
* * *
In conclusion, a resolution to the current impasse between the Constitutional Tribunal and the government still seems a long way off. One solution to this deadlock, proposed by the current government, would be a process of democratic change involving the complete renewal of the Constitutional Tribunal and a modification of the appointment procedures to also include the views of opposition political parties. This option, however, appears compromised given its rejection by the opposition parties, as well as existing tensions between the current government and the newly elected President of the Republic, Karol Nawrocki, suggesting a possible veto should such a law be adopted. The constitutional crisis thus continues in Poland. The protagonists change, positions are exchanged, but the balance of power remains. And so, as Jonathan Sims recounts in an episode aptly titled “Revolutions,” “So turn with the turn of the merry-go-round and dance to its jolly old song”.
Suggested citation: Noel Boy, A New Step in the Polish Constitutional Crisis : Should Fire be Fought with Fire? Analysis of Ruling P3/25 of the Polish Constitutional Tribunal, Int’l J. Const. L. Blog, Dec. 11, 2025, at: http://www.iconnectblog.com/a-new-step-in-the-polish-constitutional-crisis-should-fire-be-fought-with-fire-analysis-of-ruling-p3/25-of-the-polish-constitutional-tribunal
[1] Polish Constitutional Tribunal, Case P3/25, 23 September 2025.
[2] Act of the 20 July 2000, art.21 al 1.1 and art.9 al 1.6.
[3] Replacing these five judges would then have resulted in a constitutional tribunal composed of fourteen out of fifteen members appointed by PO.
[4] We can point out that in this ruling, the formation was composed of 5 judges, all of whom were appointed by PO.
[5] Polish Constitutional Tribunal, Case K34/15, 3 December 2015.
[6] Indeed, the President of the Constitutional Tribunal, Andrzej Rzeplinski, announced that these new arrivals would not participate in the work of the Tribunal until their situation was regularized.
[7] Act of 22 December 2015 amending the Constitutional Tribunal Act.
[8] Polish Constitutional Tribunal, Case K47/15, 9 March 9 2016.
[9] In the case of Judge Julia Przyłębskadont, it was her appointment as President of the Constitutional Tribunal in 2016 that was considered irregular.
[10] They replaced the deceased judges Henryk Cioch and Lech Morawski, who were among the five judges appointed by PiS in November 2015.
[11] Among these acts, we find in particular the decisions and texts listed previously.
[12] Following the recent presidential elections, Karol Nawrocki succeeded Andrzej Duda as President of the Republic of Poland. However, the new President appears to be adopting the same course of action as his predecessor, casting doubt on any possibility of a change in the situation.
[13] Polish Constitutional Tribunal, Case SK22/21, 4 June 2024.
[14] This had notably been the case during the previous PiS mandate, during which the Constitutional Tribunal had strongly restricted the actions of the Kaczyński government.