—Adam Bodnar, Professor of Law at SWPS University in Warsaw
[Editor’s Note: This is one of our ICONnect columns. For more information on our 2026 columnists, see here.]
The Polish Parliament has just elected 15 judicial members of the National Council of the Judiciary. This step may be a milestone in efforts towards the rule of law recovery. At the same time, however, it illustrates numerous problems in a country undergoing such recovery process, and which is torn by political and legal polarization.
The National Council of the Judiciary (NCJ) in Poland is a constitutional organ responsible for safeguarding judicial independence. It plays a crucial role in judicial appointments. It selects judges who should be later confirmed and sworn in by the President of Poland. The NCJ is a hybrid organ – it is composed of 25 members who are: 15 judges, the President of the Supreme Administrative Court, the President of the Supreme Court, the representative of President of Poland, the Minister of Justice and 6 members of Parliament. In order to guarantee its role as the guardian of judicial independence, most of the members are judges. This conformation of the NCJ was designed in 1989, just after Polish democratic transition started, and later embedded in the Constitution of 1997.
Since its creation, the 15 judicial members of the NCJ have, as a rule, been elected by peers – judges themselves. However, on 8 December 2017 the Parliament adopted new legislation. The ruling majority of “Law and Justice” party used an ambiguous constitutional provision (“15 judges chosen from amongst the judges”) and claimed that judges on the NCJ could be elected by the Parliament, not necessarily by peers. As a result, the 15 judicial members of the NCJ were elected in 2018 by the parliamentary majority. It was clear that those, who decided to be candidates had (often vague) ties or loyalties with politicians. Thus, the balance between the two branches of power has been tilted. This political move constituted a “primary sin” of Polish judicial reforms in illiberal times. It was highly consequential – it resulted in flawed judicial appointments to courts of different levels, including the Supreme Court. Those judges are commonly named in a public discourse as “neo-judges”, and their adjudication can be legally questioned. This politicized process of judicial appointments was strongly criticized in numerous judgments of the Court of Justice of the EU (e.g. A.K. and others),[1] and of the European Court of Human Rights (most notably Wałęsa v. Poland).[2]
After the parliamentary elections of 15 October 2023, the new ruling majority took on the effort of repairing the NCJ. First, on 12 June 2024 a law was passed that aimed to give back to the judges the right to elect their peers as the NCJ judicial members.[3] They were going to be elected in a procedure supervised by the National Electoral Commission. However, President Andrzej Duda – loyal to the previous regime – decided not to sign the law. He asked the politicized Constitutional Court[4] for pre-emptive review, and thus the law could not enter into force.[5] So, the NCJ continued in its politicized composition and, continued the flawed process of the judicial appointments. On 23 January 2026, the Parliament adopted another law on the NCJ – this time the new President of Poland Karol Nawrocki, also loyal to the previous regime, decided to veto the law. So, the 2017 Law on the NCJ prevailed, including the process of electing the NCJ judicial members by the Parliament.
In May 2026, the 4-year-long term of judicial members of the NCJ (elected in 2022) came to an end. So, the ruling majority was faced with a dilemma of how to proceed in such a situation. The question was whether it is justified to use existing legislative provisions, adopted during the illiberal era, to elect new judicial members. Elections undertaken by Parliament could still be interpreted as politically motivated, and thus undermine the NCJ’s independence.
The parliamentary majority decided to use existing provisions, but at the same time openly declared self-restraint in election of judicial members. In a parliamentary resolution of 27 February 2026,[6] it stated that the role of the Parliament would be limited only to the election of those judges who were previously selected and approved by all judges in Poland. Meaning that the competence to elect 15 judicial members would remain in the hands of the Parliament, however, it would be restricted on the basis of this political declaration. This method of action was popularly named as “Scenario B” – the ruling majority tried to make the best of what was a convoluted situation, made harder by the lack of cooperation from the Polish President regarding the change of the NCJ judicial members’ selection.
In March 2026, 60 judges turned their candidacies to the Speaker of the Parliament. Most of them were affiliated with specific judicial associations. In April 2026, the presidents of appellate courts organized general assemblies of judges, in order to make their selection of the best 15 NCJ candidates. The turnout was approximately 60%. Judges indicated that they should be represented by those candidates who were affiliated with a coalition of judicial associations that played important roles in the fight for judicial independence between the years 2015 and 2023 (including the “Iustitia” and “Themis” associations). Some of them were widely known figures for their courageous fight, for example Dariusz Zawistowski and Monika Frąckowiak. All selected candidates gained between 3.300 and 4.200 votes from fellow judges.
One could presume that after such flurry of judicial candidates to the NCJ, the task for the Parliament was just to elect them. However, it appeared that by virtue of the 2017 Law on the NCJ, it is a right of every parliamentary club (including opposition clubs) to select at least one candidate to the NCJ. So, this time the dilemma was whether this competence should be complied with or ignored. The latter would give a safe excuse for the President of Poland to undermine the operation of the NCJ in its new composition. The ruling majority decided to follow strictly the legislative line. In consequence, opposition parties – “Law and Justice” and “Konfederacja” indicated two highly controversial judges as their “representatives” in the NCJ. One of them – Łukasz Piebiak – was the architect of judicial reforms in illiberal times. Media also reported that he orchestrated hate campaigns against other judges.[7] On 15 May 2026, the Parliament elected 15 new judicial members of the NCJ, including 13 members indicated as a result of internal elections among judges and 2 indicated by opposition parties.
The Parliament’s decision should end the saga of the NCJ’s reform and selection. But such a scenario would be too easy for a state torn by strong legal and political polarization. In the meantime, the “Law and Justice” party decided to request the Constitutional Court to undermine the constitutionality of the procedure of selecting the NCJ organ. The same political party adopted the said law in 2018, but – interestingly – after 8 years it has decided to challenge it. Moreover, one of the justices was Stanisław Piotrowicz, who at the time of adoption of 2017 Law on the NCJ was a member of the Parliament and head of the relevant parliamentary committee. On 12 May 2026, the Constitutional Court recommended an interim measure aimed towards blocking the selection of the NCJ judicial members.[8] In fact, it wanted to create a pretext for further non-recognition of the NCJ by the President of Poland. However, it appears that the Constitutional Court made a mistake in its political gambit. It challenged the provision concerning the election of the NCJ by the simple parliamentary majority, and not the provision requiring the 3/5 majority. The procedure created in 2017 Law on the NCJ provided for a two stage election by the Parliament. If a 3/5 majority is not reached, then the absolute majority applies (50%+1). However, in the case of the last election in 2026, the 15 judicial members were elected by 3/5 majority in the Parliament. Why? Because the “Law and Justice” party decided to boycott these elections and therefore the 3/5s majority was easily achieved. Thus, the “Law and Justice” and politicized Constitutional Court outsmarted themselves, as the interim measure concerned only the absolute majority provision, which was not in fact used.
Nevertheless, the start of the operation of the NCJ depends on one more legal action: by virtue of the 2017 Law on the NCJ, the NCJ in its new composition should be convened for the first time by the First President of the Supreme Court. Just a few days ago, the President of Poland Karol Nawrocki decided to select Zbigniew Kapiński to serve in this capacity. But, he was selected out of five candidates indicated by the General Assembly of Supreme Court judges – all of them are so-called “neo-judges”, appointed to the Supreme Court after 2018.[9] So, his election to this position, taking into account the CJEU and ECtHR jurisprudence could be questioned, as was the position of his predecessor – Malgorzata Manowska. As of now, it is not clear whether Z. Kapiński will decide to convene the first meeting of the NCJ.
Even in the case of a positive scenario – final completion of “Scenario B” – there is still a fundamental concern of prospects regarding good cooperation of the NCJ with President Karol Nawrocki. He has already declared that he is not going to automatically accept nominations for judicial positions made by the NCJ. His arbitrary power in this respect may run against constitutional principles and also against the recent judgment of the ECtHR in Sobczyńska and others v. Poland[10]. Thus, it may lead towards further deterioration of the judiciary, which needs new, fully lawful and unquestionable judicial appointments like parched land needs rain after years of drought.
There is hope that “Scenario B” method of selection of the NCJ, despite all the difficulties and procedural obstacles, will be approved by international organizations, including the Venice Commission[11] and the European Commission. Nevertheless, the process shows that even if the current majority is using existing legislation to make real and effective changes, adopts self-restraint to promote judicial independence, and guarantees the rights to the opposition, it is still facing enormous hurdles made by those who would like to keep their positions and protect remnants of the illiberal order.
Suggested citation: Adam Bodnar, The National Council of the Judiciary in Poland: Breakthrough or Stalemate?, Int’l J. Const. L. Blog, May 29, 2026 at: http://www.iconnectblog.com/the-national-council-of-the-judiciary-in-poland-breakthrough-or-stalemate/
[1] Joined Cases C-585/18, C-624/18 and C-625/18 AK and others ECLI:EU:C:2019:982
[2] Wałęsa v Poland, application no. 50849/21, judgment of 23 November 2023.
[3] See on this draft law ‘Urgent Joint Opinion of the Venice Commission and the Directorate General of Human Rights and Rule of Law of the Council of Europe on the draft law amending the Law on the National Council of the Judiciary’ Opinion no 1181/2024, CDL-AD(2024)018.
[4] See Xero Flor v Poland, application no. 4907/18, judgment of 7 May 2021; C-448/23 Commission v Poland, judgment of 18 December 2025, ECLI:EU:C:2025:975.
[5] Judgment of the Constitutional Court of 20 November 2025, Kp 2/24.
[6] Uchwała Sejmu Rzeczypospolitej Polskiej z dnia 27 lutego 2026 r. w sprawie przywrócenia konstytucyjnych standardów wyboru członków Krajowej Rady Sądownictwa wybieranych spośród sędziów (The resolution of Sejm of 27 February 2026 on restoring the constitutional standards regarding the selection of the National Council of Judiciary members elected out of judges), Monitor Polski of 4 March 2026, item 259.
[7] Marek Strzelecki, Top Polish Official Accused of Campaign Harassing Judges Resigns, Bloomberg, 20 August 2019.
[8] Order of the Constitutional Court of 12 May 2026, No. K 7/26.
[9] Please note that the vast majority of “lawful” judges of the Supreme Court, appointed before 2018, decided not to participate in the General Assembly of Judges and not to legitimize the process of selection of the Supreme Court’s First President .
[10] Sobczyńska and others v. Poland, applications no. 62765/14, 62769/14 and 62772/14, judgment of 21 May 2026.
[11] In fact, the Venice Commission in its opinion issued on 27 February 2026, concerning the status of Polish judges predicted that the “Scenario B” could be implemented in Poland and preliminary assessed its consequences. It stated that: “described scenario of de facto election of judicial members by their peers could represent a step in the right direction. Fair elections within the judicial community would provide a factual basis for distinguishing the status of the new NCJ from that of the current one.” (para. 62 of the opinion). See ‘Urgent Joint Opinion of the Venice Commission and the Directorate General of Human Rights and Rule of Law (DGI) of the Council of Europe on the draft law concerning the status of judges appointed or promoted between 2018 and 2025 and other related matters’, Opinion No. 1238/2025, CDL-AD(2026)002-e.