In administrative procedure (considered primarily in terms of the provisions of the Code of Administrative Procedure Act of June 14, 1960,[1] hereinafter referred to as “KPA”), the principle of objectivity (also referred to as the principle of impartiality) plays an important role. This principle refers to the public administration’s formal and material attitude during the proceedings.

From a formal standpoint, to satisfy the principle of objectivity, the legislator explicitly introduced in Articles 24 and 25 of the KPA grounds for recusing an entire public administration body, as well as an employee of that body (colloquially speaking: an official), from adjudicating in specific proceedings.

In legal practice, it is rare to encounter actual “permanent lines of case law.” However, when assessing a violation of the provisions regarding the recusal of an employee and the implications of the procedural effects of such violation, the Supreme Administrative Court (hereinafter referred to as the “NSA“) remains consistent, as emphasized in the judgment of April 1, 2025, in case ref. No. II OSK 253/25 (hereinafter referred to as the “Judgment“).

When and why is an employee of an authority subject to recusal

As commentators rightly point out, an employee of a public administration body is subject to recusal from participating in any case that is already pending before a public administration body, irrespective of the type and nature of the case.[2]

At the same time, the meaning of “exclusion from participation in the proceedings” should be clarified. The doctrine assumes that participation in the proceedings of a case involves an employee of a public administration body undertaking procedural actions as specified in legal provisions, which are necessary to resolve the case through a decision. If the employee is authorized to issue decisions on behalf of the public administration body or performs the functions of the body, they also resolve the case through a decision. Therefore, an employee recused from participation in the case cannot undertake procedural actions[3] unless these actions meet the definition of “actions that are urgent due to the public interest or important interests of the parties” (see: Article 24 § 4 of the Code of Administrative Procedure).

In the Judgment, it was rightly emphasized that earlier, in the resolution of the 7-judge bench of July 22, 2007 (case ref. No.: II GSP 2/06), the Supreme Administrative Court clearly indicated that the essence of this regulation, similar to the corresponding grounds for recusal of a judge in civil procedure (Article 48 § 1 Point 5 of the Code of Civil Procedure) and in criminal procedure (Art. 40 § 1 Point 6 of the Code of Criminal Procedure), is to eliminate all reservations regarding impartiality and objectivity when examining a particular case, as also emphasized by the Constitutional Tribunal in its case law (e.g., judgments of July 20, 2004, SK 19/02 – OTK ZU No. 7/A/2004, item 67 and of December 13, 2005, SK 53/04 – OTK-A 2005/11/137).

Recusal of an employee of a public administration body from the proceedings – a list of premises and limits of impartiality according to Article 24 of the Code of Administrative Procedure

Article 24 of KPA specifies a list of situations in which a public administration body employee is recused from handling a case.

The recusal should take place in the case of:

1. in which an employee of the authority is a party or is in such a legal relationship with one of the parties that the outcome of the case may affect his or her rights or obligations;
2. the spouse and relatives and relations by marriage of that employee up to the second degree (provided that the reason for exclusion continues to exist even after the termination of the marriage);
3. a person related to an employee of the body by virtue of adoption, care, or tutelage (where the reason continues to exist even after such relationship has ended);
4. in which an employee of the authority was a witness or expert or was or is a representative of one of the parties, or in which the representative of the party is one of the persons mentioned: the employee’s spouse, relative, in-law or a person related by virtue of adoption, care or guardianship);
5. in which an employee of the authority participated in the issuing of the contested decision;
6. on the grounds of which an official investigation, disciplinary or criminal proceedings were initiated against an employee of the body;
7. in which one of the parties is a person in a relationship of superiority over an employee of the body.

Importantly, however, in accordance with Article 24 § 3 of the Code of Administrative Procedure, the employee’s direct supervisor is obligated, at their request or at the request of a party or ex officio, to recuse the employee from participation in the proceedings if it is likely that there are circumstances not listed in Article 24 § 1 of the Code of Administrative Procedure (the reasons presented in the points above) that may (even potentially) give rise to doubts regarding the employee’s impartiality.

This means that specific provisions may outline other reasons for recusing an employee from participation in the proceedings.[4] Additionally, the factual circumstances in a particular case may “go beyond” the premises literally specified in the provisions. However, due to the purpose of recusing an employee, these circumstances may still serve as a basis for excluding that employee from participation in the case. As P. Przybysz points out, it is not always about determining the employee’s bias, but about the probability of the existence of circumstances that allow for doubting the employee’s impartiality.[5]

Consequences of not recusing an employee from the consideration of a case

The recusal of an employee from consideration of a case should be made as a decision that is not subject to appeal.

It should be clearly stated that the issuance of a decision by an employee subject to recusal under the commented provision constitutes a basis for reopening the proceedings (see: Article 145 § 1 Point 3 of the Code of Administrative Procedure).

The Judgment clearly indicated (and in principle confirmed) that the institution of employee recusal is procedural, ensuring that the party receives an objective resolution of the case by subjecting it to control in administrative proceedings and then to judicial review. Except in cases where urgent actions are necessary due to the public interest or significant interests of the party (Article 24 § 4 of the Code of Administrative Procedure), an employee who is subject to recusal may not take other actions necessary to resolve the case in the form of a decision or participate in them, nor may they issue decisions on behalf of the public administration body or act in that capacity. The Court agreed that the recusal of an employee under Article 24 § 1 Point 5 of the Code of Administrative Procedure (i.e., recusal from a case in which they participated in issuing the contested decision) also extends to an employee adjudicating in extraordinary proceedings who previously participated in issuing a decision subject to review in extraordinary proceedings (especially in the process of reopening the proceedings or determining the invalidity of a decision).

Irregularities must be addressed efficiently, often already during the proceedings.

The obligation to perform official duties without bias is a fundamental responsibility of an employee in a public administration body, tied to the obligation to perform these duties reliably and diligently.[6] This inherently upholds the principle of impartiality (objectivity) concerning all activities of the public administration body.

Of course, there may be situations where failing to recuse an employee from the body (i.e., a situation where such an employee ruled despite valid grounds for recusal) and, as a result, reopening the proceedings could be beneficial for the party for some practical reason (e.g., it may involve a case resolved to the detriment of that party). However, failing to recuse an employee from ruling may also have negative consequences for the party, such as leading to duplication (repeating) of proceedings or activities during the case or causing delays in proceedings where a positive and timely resolution is in the party’s best interest.

Therefore, in administrative proceedings, particularly those with a considerable level of complexity or in (potentially) multi-stage or multi-instance cases, it is advisable to engage the services of a professional representative, primarily an attorney-at-law or advocate, who will protect the rights and interests of the party and will be capable of highlighting inaccuracies, irregularities, errors, or excessive delays in the actions of the administrative body on time.

[1] Journal of Laws of 2024, item 572.

[2]A. Wróbel [in:] M. Jaśkowska, M. Wilbrandt-Gotowicz , A. Wróbel, Komentarz aktualizowany do Kodeksu postępowania administracyjnego, LEX/el. 2025, art. 24.

[3] A. Wróbel [w:] M. Jaśkowska, M. Wilbrandt-Gotowicz, A. Wróbel, Komentarz aktualizowany do Kodeksu postępowania administracyjnego, LEX/el. 2025, art. 24.

[4] The Judgment of the Supreme Administrative Court in Cracow of December 19, 1985, ref. No. SA/Kr 1483/85.

[5] P.M. Przybysz [in:] Kodeks postępowania administracyjnego. Komentarz aktualizowany, LEX/el. 2024, Article 24.

[6] A. Wróbel [in:] M. Jaśkowska, M. Wilbrandt-Gotowicz, A. Wróbel, Komentarz aktualizowany do Kodeksu postępowania administracyjnego, LEX/el. 2025, Article 24.