Prerogatywa Prezydenta RP do powoływania sędziów (uwagi o art. 144 ust. 3 pkt 17 i art. 179 Konstytucji)
Prerogative of the President of the Republic of Poland to Appoint Judges (Comments on Article 144, para. 3, subpara. 17 and Article 179 of the Constitution)

Summary/Abstract: The organisational and functional structure of EU institutions is based in the fundamental principleof institutional balance. As a result of the reforms made by the Treaty of Lisbon, it shows explicitreferences to the principle of separation of powers (in both subjective and objective aspects) which has a prominent place in the national constitutional orders of the Member States. The purpose of thi sarticle is to identify those provisions of primary law codifying the powers of the European Council, which — when incorporated into the constitutional orders of the Member States — could be attributed to one of the traditional functions of the legislative power, thus proving the inclusion of the youngest EU institution in the realm of the EU legislative authorities, against the explicit negation of its lawmaking function. The article deals with the prerogatives of the President of Republic to appoint judges on the motionof the National Council of the Judiciary. Its aim is to give arguments in favor of the thesis that neitherArticle 179 nor Article 144, para. 3, subpara. 17 of the Constitution cannot provide a basis forthe President’s decision refusing to appoint the judge. In a democratic state ruled by law and implementingthe principle of legality in the exercise of powers of public authorities, one cannot unquestioningly accept the thesis that the prerogative is a personal privilege of the President, which may beenjoyed irrespective of the constitutional regulation of rights and without a specific legal procedure. Article 179 in conjunction with Article 144 para. 3, subpara. 17 of the Constitution provides a basisfor the reconstruction of two norms: a competence norm and a norm requiring President to make useof the powers granted to the him. This provision cannot provide a basis for the president’s decisionrefusing to appoint the judge. The National Council of the Judiciary, due to its constitutional authorityto safeguard the independence of courts and judges, is competent to carry out a detailed and substantiveevaluation of the candidate for the position of judge. However, in view of the limitations ofArticle 10 in conjunction with Article 173 of the Constitution, the President may apply to the NationalCouncil of the Judiciary to reconsider the case.

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