Berek, who was elected by parliament last month, took the judicial oath on Wednesday in the presence of the Speakers of the parliament's two chambers.
He used wording referring to taking the oath "before the president," although Nawrocki did not attend the ceremony, state news agency PAP reported.
Berek then sent a written copy of his oath, bearing a notarised signature, to the president's office before going to the Constitutional Tribunal with other judges elected by the current parliament.
Tribunal head Bogdan Święczkowski, an ally of the opposition, said Berek had not entered into official service and would not be allowed to rule until Nawrocki responded on whether he recognised the oath as having been taken effectively.
Święczkowski appealed for calm amid a protest outside the constitutional court.
Nawrocki said Berek was not a Constitutional Tribunal judge, arguing that the oath could not have been taken "before the president" because he was not present.
"I don’t know before whom Minister Berek took the oath, but certainly not before the president," Nawrocki said. "If he did not complete this obvious formality ... then he certainly is not a Constitutional Tribunal judge."
Nawrocki also said that "defending the tribunal" on legal and social grounds was justified, adding that Poland's constitution and legal system determine "who is and is not a judge."
The dispute has pitted the president against the parliamentary majority over the procedure for appointing Constitutional Tribunal judges.
Parliament Speaker Włodzimierz Czarzasty defended Berek’s swearing-in, citing an opinion issued on Tuesday by the Venice Commission, the Council of Europe’s advisory body on constitutional law.
The commission said an oath could be completed without the president’s physical presence under certain conditions, including that it be taken in the prescribed form, properly verified and delivered to the president.
Czarzasty said those conditions had been met and argued that the parliament’s role ended with the swearing-in.
“The role of parliament ends at this point, but I want to say that the time has begun for the Constitutional Tribunal to operate normally and effectively,” Czarzasty said.
He also said the Venice Commission’s interpretation meant the president should receive the oath from judges elected by parliament without assuming powers to review the parliamentary election procedure.
Presidential spokesman Rafał Leśkiewicz said on Tuesday that the opinion had no legal force and that Poland’s sources of law were its constitution and statutes.
The dispute was accompanied by protests outside the court in central Warsaw.
Demonstrators from the so-called Border Defence Movement and the opposition-linked Gazeta Polska clubs tried to block access to the building, prompting police to remove barriers they had erected.
Among the protesters were Robert Bąkiewicz, leader of the Border Defence Movement, Gazeta Polska editor-in-chief Tomasz Sakiewicz and lawmakers with the opposition Law and Justice (PiS) party, which governed Poland from 2015 to 2023.
PiS leader Jarosław Kaczyński also joined the protest, accusing the government of staging a "coup d'etat."
When Berek and other recently elected judges arrived at the court, protesters tried to prevent their cars from entering. Police moved them away from the entrance.
Protesters shouted slogans including "Imposter" and "Coup d’etat" and sang the Polish national anthem.
After Berek's car left, protesters put the barriers back along the tribunal’s fence, broadcaster TVP Info reported.
Bąkiewicz said they would continue their protest.
Warsaw police said they were not taking any action against the Constitutional Tribunal or its independence.
They rejected reports describing their intervention as an "assault" on the tribunal.
Photo: PAP/Paweł Supernak
The dispute over the swearing-in of Constitutional Tribunal judges dates back to the spring.
In March, parliament elected six new judges. Nawrocki invited two of them, Magdalena Bentkowska and Dariusz Szostek, to take their oaths in his presence.
The other four—Krystian Markiewicz, Marcin Dziurda, Anna Korwin-Piotrowska and Maciej Taborowski—were not invited by the president. Presidential officials argued there had been procedural errors in their election.
The four took their oaths in parliament on April 9, using the formula referring to the president, and later submitted written copies to the president’s office.
They did not assume their posts. Święczkowski said their parliamentary ceremony could not be recognised as an oath taken before the president.
In June, parliament elected Sławomir Patyra as a Constitutional Tribunal judge. After being invited by Nawrocki, he took his oath in the president's presence in late July.
Patyra subsequently said he would not participate in any tribunal proceedings until the four judges elected in March were allowed to hear cases.
Berek was elected by parliament on September 4. He had previously served as a minister overseeing implementation of government policy.
Before Berek’s election, the president’s office raised questions about whether he met the formal requirement of having 10 years of professional experience as a legal adviser.
Berek has rejected the idea that the president has the power to verify parliament's decision to elect a Constitutional Tribunal judge.
He has said records from the regional chamber of legal advisers show that he was admitted to the profession in 2002 and has held professional qualifications since then.
Justice Minister Waldemar Żurek said on Tuesday that the state must do everything necessary to ensure that the Constitutional Tribunal "starts operating in accordance with the law."
On Wednesday, he said he expected the court to be "rebuilt as an institution serving citizens."
The Constitutional Tribunal dispute reflects a broader conflict over the rule of law and judicial institutions between the centrist government of Prime Minister Donald Tusk and the previous right-wing administration.
The Constitutional Tribunal is tasked with adjudicating on the compliance of laws with the country's constitution.
However, the panel has faced significant criticism in recent years. Its legitimacy has been questioned due to a series of contentious judicial appointments made under the previous government.
Several Polish judges' associations, along with some international judicial organisations and constitutional law experts, have labelled it a "puppet court."
Critics such as former tribunal head Andrzej Zoll have argued that some of these appointments violated the Polish constitution
Zoll contended that the tribunal's current composition includes individuals improperly selected, undermining its ability to function in a fully constitutional capacity.
In December last year, the Court of Justice of the European Union ruled that Poland's Constitutional Tribunal had violated fundamental principles of EU law and could not be considered independent or impartial.
The Luxembourg-based court said the tribunal had been compromised by "serious irregularities" in the appointment of three judges and its president, adding that those flaws undermined the rule of law.
Prime Minister Donald Tusk said at the time that the ruling by the EU's top court gives his government the green light to "try to fix" the tribunal after years of legal turmoil under the previous administration.
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Source: IAR/PAP, TVP Info