The Court of Appeal in Warsaw (with its President sitting on the adjudicating panel) questioned a first-instance judgment because the judge allegedly failed to guarantee impartiality. The Supreme Court set that ruling aside, stating that it was “destructive to the constitutional order” and based on an “illusory constitutional foundation.” Instead of focusing on a substantive re-examination of the case, the Court of Appeal challenged the authority of the Supreme Court judge, referred preliminary questions to the Court of Justice of the European Union (CJEU), and suspended the proceedings indefinitely. Naturally, in the name of the rule of law.
Judge Łukasz Piebiak brought legal action against the editor-in-chief of the Onet portal, seeking rectification of an article published in 2023.
The Regional Court in Warsaw partially upheld Judge Piebiak’s claim, but in June 2024, the case was referred to the Court of Appeal, which set aside the judgment, finding that the first-instance judge, Artur Grajewski, allegedly failed to guarantee impartiality. The reasoning relied on the argument that Judge Grajewski had been defectively appointed on the recommendation of the National Council of the Judiciary (KRS) following the 2017 reform, as well as on his purported ties to Judge Piebiak when the latter served as Deputy Minister of Justice.
Judge Piebiak lodged an appeal with the Supreme Court, which in January 2026 set aside the appellate court’s ruling. The judges of the Warsaw Court of Appeal, Marzena Konsek-Bitkowska, Marzanna Góral, and Dorota Markiewicz (serving as Acting President of the Court of Appeal in Warsaw since March 2024), faced severe criticism. The Supreme Court reproached them for questioning judicial appointments and effectively accused them of attacking the Constitution.
Crushing Criticism of the Court
Supreme Court Judge Mariusz Załucki stated that the Court of Appeal had exceeded its powers and committed a “usurpation of authority,” as it had no right to assess on the merits whether the KRS had selected an “appropriate” candidate. He also pointed to interference with the prerogatives of the National Council of the Judiciary and the President of the Republic of Poland, concluding that the Court of Appeal had “violated the balance of powers and the constitutional foundations (Articles 179, 144, 10, 4, and 8 of the Constitution of the Republic of Poland).”
The Supreme Court emphasized that “no provision grants a common court the competence to assess the manner in which a judge has been appointed,” and that attempting to assume the KRS’s evaluative role constitutes “interference with the constitutional mechanism for filling judicial offices.”
In conclusion, it stated that such practice leads to “jurisdictional chaos,” whereby any losing party would be able to challenge judicial nominations.
According to the Supreme Court, the actions of the second-instance court align with a narrative questioning the foundations of the state, are “destructive to the constitutional order,” and are based on an “illusory constitutional foundation.”
Counterattack
In accordance with procedure, the case was returned for reconsideration by the same panel that had issued the contested judgment. However, instead of proceeding with a substantive examination, on 26 February of this year, the Court of Appeal in Warsaw, again, with its current President sitting on the panel, decided to challenge the legality of the appointment of Supreme Court Judge Mariusz Załucki. It referred five preliminary questions to the CJEU and suspended the proceedings.
The Court of Appeal held that the Supreme Court’s ruling was defective because, in its view, Judge Załucki “does not meet EU standards of independence.”
At the same time, it asked the CJEU whether the Supreme Court, with a judge recommended by the “new” KRS, is independent within the meaning of Article 19 TEU, and, if not, whether a court of appeal should ex officio disregard such a ruling.
Interestingly, it also asked whether, in such circumstances, Polish law may be set aside and the case referred to a “proper” Supreme Court, despite evident procedural obstacles.
Assuming the possibility that the Supreme Court might be unable to provide an “independent panel,” it further asked whether the court of appeal should assume its role, or whether that obligation falls upon the “old” judges of the Supreme Court.
Finally, it asked the CJEU whether, in this situation, a new appellate panel should be designated, disregarding Polish statutory provisions.
In its reasoning, the Court of Appeal relied on the case law of the CJEU, the European Court of Human Rights (ECtHR), and the Supreme Court, pointing to a “crisis of independence” in the Polish judiciary following the justice system reforms.