The Supreme Administrative Court (NSA) has dismantled theories alleging defects in judicial appointments made after 2018 and the presumed lack of impartiality of the National Council of the Judiciary. It also drew attention to the problem of “absolutizing CJEU rulings” and dismissed a motion by the prosecution seeking the recusal of judges. The judges’ association Aequitas highlighted the decision, stressing that it should serve as an example of “how the law is applied, rather than being turned into a blunt instrument for political combat.”
The order was issued in connection with a motion by the National Prosecutor to exclude two judges. The applicant based the request on an interpretation presented by the Court of Justice of the European Union (judgment C-225/22), according to which the Extraordinary Control and Public Affairs Chamber of the Supreme Court—adjudicating in a panel that includes even a single judge appointed under circumstances similar to those of the chamber’s original composition—“is not a court within the meaning of EU law.” The applicant sought to apply this thesis by analogy to proceedings before the NSA. The court, however, took a different view.
Key issues
In its reasoning, the NSA addressed a number of significant points, including:
- a logical flaw in the motion—simultaneously challenging a judge’s status while seeking that judge’s recusal;
- the legality of judicial appointments after 2018 as an issue repeatedly resolved in the NSA’s established case law;
- the absence of any presumption of lack of impartiality based solely on a recommendation by the “new KRS”;
- loyal cooperation and dialogue between the NSA and the CJEU as the proper model for their relationship.
The NSA also emphasized the reciprocity of the dialogue between the NSA and the CJEU, meaning that the CJEU should take into account the settled position of the highest court within a given jurisdictional branch; the limits of EU-conforming interpretation—namely, the primacy of explicit constitutional norms; the problem of the “fetishization” of preliminary questions and the absolutization of CJEU judgments; and the nature of a CJEU judgment, which is not a legal norm but the result of applying the law.
On 8 December 2025, the Supreme Administrative Court, composed of: Presiding Judge—Justice Jacek Brolik; Justices Tomasz Zborzyński and Tomasz Kolanowski (rapporteur), after considering—at a closed session in the Financial Chamber—the National Prosecutor’s motion to exclude NSA judges Wojciech Stachurski and Paweł Borszowski, in a case arising from a cassation appeal by A. sp. j. seated in G. (now: A. Limited Liability Company seated in G.) against the judgment of the Voivodeship Administrative Court in Gorzów Wielkopolski of 7 July 2022 (file no. I SA/Go 192/22), concerning a complaint against the decision of the Director of the Tax Administration Chamber in Zielona Góra of 18 March 2022 (no. 0801-IOD.4104.28.2021; UNP: 0801-22-016307) regarding tax on civil-law transactions—decided to dismiss the motion, as stated in the order.
The order was issued by a panel consisting of Jacek Brolik as presiding judge (an NSA judge since 1994 and former president of the Voivodeship Administrative Court in Łódź), Tomasz Kolanowski as rapporteur (an NSA judge since 2011), and Tomasz Zborzyński (an NSA judge since 2010 and vice-president of the board of the Polish Judges’ Association Iustitia).
“Perhaps it is worth listening to the arguments of such judges, instead of the defamation and petty politicking practiced in the media and courtrooms by some judges associated with Iustitia and Themis?” Aequitas asks.
Zaradkiewicz: “Legal cretinism”
Supreme Court Justice Kamil Zaradkiewicz commented: “The NSA is obviously right—put plainly: there are few greater instances of legal cretinism than the theory of excluding a judge because he or she is a judge. Perhaps only overturning a judgment for the same reason ranks higher. Apart from the fact that this is plainly unlawful.”