–Noel Boy, Doctor in Public Law, University of Montpellier
In a previous article about the Polish constitutional crisis, we ended our demonstration saying that “the protagonists change, positions are exchanged, but the balance of power remains”. In this regard, the ruling K 3/26 of the Polish Constitutional Tribunal issued on the 12th of May 2026 further entrench this statement, giving a new illustration of the tensions paralysing the Polish political and constitutional spheres since 2015, in what is now commonly referred to as the Polish constitutional crisis.
For a quick brush of a context, the Polish parliamentary elections of October 2023 have seen the Civic Coalition (hereafter KO) succeed to Law and Justice (hereafter PiS) which was in power since 2015. The new government, led by Donald Tusk, set itself the mission of redressing the violations committed by the previous government toward the rule of law, which included the resolution of the constitutional crisis – a summary of this crisis can be found in our previous article. The actions taken by KO, whether through the Sejm or through the government, however faced significant resistance from the PiS aligned President of Poland, Karol Nowrocki, as well as from the Constitutional Tribunal itself, whose members have mostly been elected by the PiS majority. This political standoff, between the current majority in power on one hand and actors aligned with the previous majority, on the other hand, form the background in which is situated the ruling K 3/26.
In early February 2026, a group of deputies from PiS filed a motion to the Constitutional Tribunal to review provisions of the Act of 30 November 2016 on the status of the Judges of the Constitutional Tribunal. Among the contested articles, they asked the Tribunal to examine the compliance of the article 4 section 1, “insofar as it imposes on the President of the Republic of Poland the obligation to give the oath of office to a person elected by the Sejm”. This question found a practical application on the 13th of March 2026 when the Sejm elected 6 persons to become constitutional judges. Following these nominations, the President refused to swear in office 4 of these elected judges on the basis that there were “serious flaws concerning the procedure of appointing these judges”. Facing the persistent refusal of the President to be sworn in office, the remaining 4 elected judges decided to take their oath before the parliamentary speaker. This ceremony that took place on the 9th of April 2026 was, however, rejected by the President of the Constitutional Tribunal, Bogdan Święczkowski.
Two judicial decisions, each involving a different aspect of the Polish constitutional crisis, stemmed from this situation of contested nominations of constitutional judges. The first one, related to the interim measures issued by the European Court of Human Rights on the 5th of May 2026 – following a request made by the 4 refused judges – and its dismissal by the Polish President, concerns the international facet of this crisis opposing national authorities to international organisations and will not be examined here as it deserves its own commentary. Instead, this article analyses the ruling K 3/26 made by the Polish Constitutional Tribunal, which constitutes a new illustration of the internal aspect of this crisis.
The Ruling of May 12: A Decision with Unstable Footing
In its ruling K 3/26, the Constitutional Tribunal declared that the interpretation of article 4 section 1, as setting forth an obligation for the President to swear in office candidates nominated by the Sejm, was unconstitutional. The Press release further explain that
“In the light of the reasoning presented in the Tribunal’s judgment in the case K 34/15, the obligation to give the oath of office to a person elected by the Sejm to the office of a judge of the Constitutional Tribunal is not of an absolute nature.
(…)
The giving of the oath of office by the Polish President should be conceived of as the said President’s exercise of the constitutional and statutory powers of the head of state, based on his/her discretionary powers as the guardian of the Constitution. Consequently, the said President may not be obliged to act without being granted – as the head of state – the time necessary to perform the tasks incumbent on him/her (…) When imposing this special responsibility on the said President, the constitution-maker could not – in the light of the principle of appropriate legislation – have assigned the President with duties that are mutually contradictory. Therefore, the President may not be obliged to act “automatically” at a time that prevents him/her from ensuring that the action s/he takes is in accordance with the Constitution.
The Polish President’s duties specified in Article 126 (1)–(3) of the Constitution, may therefore entail the necessity for the said President to refrain from giving the said oath of office, due to the occurrence of an extraordinary, objective and unambiguous situation”.
Among the two parts of this case, underlined supra, that are of particular interests, the first and most obvious one is the reference made to the case K 34/15.
For those familiars with the Polish constitutional crisis, this reference to the case K 34/15 will certainly ring some bells as it offered a solution to the political and judicial standoff related to the events that started the crisis, namely the controversial nominations of constitutional judges, first by the outgoing majority then by the newly elected one. Thus, beyond a simple reference to a previous case law, this can be seen as a way for the current Tribunal, composed of members named by PiS, to use a decision made by a Tribunal then mostly aligned with the Civic Platform party (later part of KO) in order to answer the current conflict opposing the KO majority to the PiS aligned president in favour of the latter one. The instrumentalization, and the alienation, of the case K 34/15 is further attested when we look at the actual ruling of 2015, in which the Tribunal stated that the contested article – which wording was almost the same as the article examined by the Court in 2026 – “interpreted other than that the President of the Republic of Poland is obliged to give the oath of office forthwith to a judge of the Constitutional Tribunal who has been elected by the Sejm – is inconsistent with Article 194 (1) of the Constitution”. In the following Press release, this point is asserted with even greater clarity, stating that the disputed article “imposes an obligation on the head of state to give the said oath of office forthwith. Any other interpretations of the provision are unconstitutional”. Considering the clear rejection, in 2015, of any form of decision-making power in the hand of the President in regard to the election of constitutional judges, the demonstration of the Tribunal in 2026 fail to explain how the obligation of the President to swear in newly elected constitutional judges is not absolute and can suffer exceptions. While a court can develop, evolve or even change its positions in order to adapt to the evolution of society, we can nevertheless question how the Tribunal, in 2026, managed to extrapolate a “maybe”, from a 2015 ruling that clearly stated “no”. Moreover, beside this first element noted in the Tribunal’s argument, the article of the Constitution used by the judges in order to recognise some leeway to the President also raises some interrogations.
In 2015, the Constitutional Tribunal examined, as it was asked to, the compliance of the article 21 paragraph 1 of the Act of 25 June 2015 on the Constitutional Tribunal to the article 194 paragraph 1 of the Constitution, which details that “the Constitutional Tribunal shall be composed of 15 judges chosen individually by the Sejm…”. However, in 2026, when asked to examine the compliance of the article 4 section 1 of the Act of 30 November 2016 to the articles 2, 190 sec. 1, 194 sec.1 and 197 of the Constitution, the Tribunal answered using the article 126 in conjunction of the article 2 of the Constitution. While article 2 of the Constitution refers to the democratic form of the State, the rule of law and the principles of social justice, the article 126 is part of the chapter V dedicated to the President of the Republic of Poland, stating that he shall “be the supreme representative of the Republic of Poland”, “ensure observance of the Constitution”, and “exercise his duties within the scope and in accordance with the principles specified in the Constitution”. By dismissing the Sejm specific provisions, especially the one explicitly referring to its role in the nomination of constitutional judges, and focusing instead on broadly worded articles to recognise such a right to the President, the demonstration hold by the Tribunal in 2026 appears considerably weaker than its 2015 reasoning. Nevertheless, this shift is more understandable in light of the different nature of the opponents facing each other in 2026, compared to the situation in 2015. In its ruling K 34/15, the Constitutional Tribunal had to resolve a situation somehow “internal” to the Sejm, which could explain the dismissal of any intervention made by the President, the Tribunal instead concluding in favour of its own competence to resolve this question. However, in 2026, the President of the Republic is no longer a third party in the case but instead in direct opposition to the Sejm. While this difference between the facts of case K 34/15 and case K 3/26 can explain why the judges could not simply replicate the 2015 solution, it does not justify the decision reached to cede to the President a competence that was clearly stated by the Constitutional Tribunal as being its own. Indeed, while it was concluded in 2015 that “any potential doubts that the head of state may raise as to the constitutionality of legal provisions on the basis of which judges have been elected to the Constitutional Tribunal may only be addressed by the Constitutional Tribunal”, the same Court – though not composed of the same judges – relinquished this exclusive role in 2026, allowing instead the President to act in its place. Among the leads that could explain this shift in the Tribunal’s position, the idea of some sort of handover of power in particular is the one that receives our preference in regard to the way this ruling can be understood as a whole.
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In our view, the effects of the ruling K 3/26 are threefold, each aimed at a different moment in time. Firstly, using and bending the ruling K 34/15 could be understood as a way for the Tribunal to alter the past and complicate the understanding of the Polish constitutional crisis, using a decision made by a version of itself whose legitimacy and authority was not (yet) contested in order to blur the distinction made toward it between a past self that would be legitimate and its present state criticised by the ruling majority. Secondly, this 2026 ruling can be viewed as yet another step in the Polish constitutional crisis, as the most recent example of the political clash between the ruling majority and the previous one. Thirdly, the decision K 3/26 of the Polish Constitutional Tribunal issued on the 12th of May 2026 could also be seen as the display of an intention of the Tribunal to grant the President of the Republic of Poland the tools necessary to slowly act in its stead. Considering that the nomination of new constitutional judges means the replacement of the PiS chosen judges with ones elected by KO, this 2026 ruling could be seen as a way for the Polish Constitutional Tribunal to strengthen the President, handing him over competences and powers before its political shift rends it unable to do so anymore.
Suggested citation: Noel Boy, The Decision of the Polish Constitutional Tribunal about the Principles and Procedure for Electing Constitutional judges: Less an Exchange of Blows and More of an Exchange of Weapons – Analysis of Ruling K 3/26 of the Polish Constitutional Tribunal, Int’l J. Const. L. Blog, May 11, 2026, at: http://www.iconnectblog.com/the-decision-of-the-polish-constitutional-tribunal-about-the-principles-and-procedure-for-electing-constitutional-judges-less-an-exchange-of-blows-and-more-of-an-exchange-of-weapons-analysis-of-ruling-k-3-26-of-the-polish-constitutional-tribunal/