The Sejm Review Przegląd Sejmowy Third Special Edition 2007

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THE SEJM REVIEW PRZEGLĄD SEJMOWY THIRD SPECIAL EDITION 2007

THE SEJM PUBLISHING OFFICE EDITORIAL2 COMMITTEE

Editor-in-Chief Professor MIROSŁAW GRANAT Cardinal Stefan Wyszyński University, Warsaw Deputy Editor-in-Chief Professor PAWEŁ SARNECKI Jagiellonian University, Cracow Doctor MICHAŁ KRÓLIKOWSKI Director, Bureau of Research, The Chancellery of the Sejm Scientiﬁ c Secretary Professor ANDRZEJ SZMYT University of Gdańsk Editorial Board Professor LESZEK GARLICKI University of Warsaw JERZY GÓRAL Chief Chancellery of the President of the Supreme Administrative Court (NSA) Professor MARCIN KUDEJ Silesian University, Katowice Doctor WOJCIECH KULISIEWICZ Director, Sejm Library, The Chancellery of the Sejm Professor ZBIGNIEW WITKOWSKI University of Nicolaus Copernicus, Toruń Professor KRZYSZTOF WÓJTOWICZ University of Wrocław Professor MAREK ZUBIK University of Warsaw

Editors: URSZULA NAŁĘCZ-RAJCA, PIOTR ZIELIŃSKI

Translated by TADEUSZ Z. WOLAŃSKI Veryﬁ ed by ALBERT POL, MICHAŁ KRÓLIKOWSKI

© Copyright by Kancelaria Sejmu Warszawa 2007 ISSN 1230-5502 KANCELARIA SEJMU Przygotowanie, druk i oprawa: Wydawnictwo Sejmowe Wydanie pierwsze Adress: „Przegląd Sejmowy”, ul. Zagórna 3, 00-441 Warszawa, tel. 0-22 694-13-00 e-mail: [email protected] http://www.sejm.gov.pl/wydarzenia/przeglad/przeglad.htm TABLE OF CONTENTS

Introduction (Mirosław Granat) ...... 5

Paweł Sarnecki, Professor, Jagiellonian University, Cracow Cooperation of the Council of Ministers with the Sejm and Senate in the exercising by Poland of European Union membership rights ...... 7

Marian Grzybowski, Professor, Jagiellonian University, Cracow The Council of Ministers and government administration and Poland’s membership of the European Union (selected constitutional problems) . . . . . 27

Anna Więckowska, M.A., Silesian University, Katowice The right of veto of the President of the Republic of Poland in political practice after the coming into force of the new constitution ...... 39

Jerzy Ciapała, Doctor, University of Szczecin The issue of the legal responsibility of the President of the Republic of Poland 61

Roman Hauser, Professor, Adam Mickiewicz University in Poznań Andrzej Kabat, Professor, University of Warmia and Mazury in Olsztyn Questions of law as a procedure for the review of the constitutionality of law 83

Krzysztof Wojtyczek, Doctor, Jagiellonian University, Cracow The application of the accusatorial procedure to the review of legal norms before the Constitutional Tribunal in Poland ...... 105

Monika Haczkowska, M.A., University of Wrocław Legislative lawlessness as the manifestation of harm in the meaning of article 77 paragraph 1 of the Constitution of the Republic of Poland ...... 123

Andrzej K. Piasecki, Doctor habilitated, Pedagogical University of Cracow Direct democracy in Poland after 1989 ...... 145

A review of the principal reasons for selected judicial decisions issued by the Constitutional Tribunal in the years 1997–2006 (selected and preparaton Mar- cin Wiącek) ...... 165

Annex. Alphabetical list (by author’s name) of English summaries of articles contained in Sejm Review (“Przegląd Sejmowy”) from beginning of 2003 until 3rd No. 2007 ...... 201 4 Spis treści INTRODUCTION

“Przegląd Sejmowy” [Sejm Review] is a periodical published by the Chancellery of the Sejm of the Republic of Poland. The decision on its publication was taken at the end of 1992 by the then Chief of the Chancellery of the Sejm Ryszard Stemplowski. Since 1993 “Przegląd Sejmowy” has been published as a quarterly, and since 1996 as a bimonthly. Since then, 80 issues have been published. The regular appearance of “Przegląd Sejmowy” and its valuable substantive content is owed to many persons: the authorities of the Sejm and its administration, the editorial board, editors and, above all, authors who have submitted to us their texts and studies. From the outset, “Przegląd Sejmowy” has been, and still is, a scientifi c journal mostly dedicated to constitutional law and, in particular, the issues of Polish parliamentary law. The distinctive feature or the articles published in “Przegląd Sejmowy” is their orientation to the practical functioning of parliament. A relatively big space is given to the issues of bicameral nature of parliament, legislative procedure, lawmaking process, the status of a Deputy and a Senator, as well as relations between the Sejm and the Senate and other State organs. For many years, the problems of judicial review of constitutionality of laws are permanently present on the pages of “Przegląd Sejmowy”. This refl ects the growing role of the Constitutional Tribunal in the system of law of the Republic of Poland. And, fi nally, we readily publish articles on human rights and freedoms. Its our aim that each issue of our journal contains an article devoted to parliamentary law or a system of government of a different state. In the recent years, we often presented texts relating to Poland’s membership of the European Union. 6 The Sejm Review Third Special Issue / 2007

From the beginning of its publication, the composition of “Przegląd Sejmowy”, is — as a principle — permanent. Of the highest signifi cance is the fi rst part containing studies and articles. The second section is designed for publication of opinions connected with current work of parliament, as well as glosses analysing the most important judgments of the Constitutional Tribunal, the Supreme Court or other judicial organs. That section also contains reviews and notes. The third section is mostly of a documentary nature. It contains source material for studying Polish parliamentarism, as well as summaries of judicial decisions issued by constitutional courts in other countries. For many years, all articles published in “Przegląd Sejmowy” are available at the web pages of the Chancellery of the Sejm of the Republic of Poland . We invite our readers to the use this form of access to our journal. We also publish, even if not regularly, an English edition of “Przegląd Sejmowy”. It contains a selection of the most interesting articles and studies. Until now, two issues were published — in 1999 and 2002. The fi rst one was dedicated to a newly adopted Constitution of the Republic of Poland of 1997, the second addressed the most important matters of linked to the practical application of Poland’s Constitution of 1997. This issue presents a selection of articles published in the years 2002–2007 and description of most interesting, in our opinion, judicial decisions of the Constitutional Tribunal, considered from the point of view of constitutional law.

Editor-in-Chief Mirosław Granat 7

PAWEŁ SARNECKI PROFESSOR, JAGIELLONIAN UNIVERSITY, CRACOW

COOPERATION OF THE COUNCIL OF MINISTERS WITH THE SEJM AND SENATE IN THE EXERCISING BY POLAND OF EUROPEAN UNION MEMBERSHIP RIGHTS*

1. The response of Member States to the problem of “democratic defi cit” in the EU is, beside the broadening of the participation of the European Parliament (hereinafter EP) in the decision-making processes of the Union, also the reconstruction in this scope of the powers of national parliaments. Beside the traditional powers, consisting in their participation in the procedure of the ratifi cation by Member States of the international agreements shaping the Union, in particular countries there are also specifi c legal provisions concerning the competence of parliaments towards national executives (governments) infl uencing the conduct of the latter within the organs of the EU (in the European Council of and in the Council of the European Union). In different countries they exist at various levels: constitutional, statutory or rule provisions. It is essential to emphasise that this process is also stimulated by decisions made by the authorities of the EU themselves who are not indifferent to the way in which particular states represented in the organs of the EU arrive at their substantive positions. The fi rst step made by the EU in this direction was the declaration attached to the Maastricht Treaty and the next was the special protocol attached to the Amsterdam Treaty. A reference in this respect is also included in the “Declaration on

* This article was published in „Przegląd Sejmowy” No. 5(64)/2004. 8 The Sejm Review Third Special Issue / 2007 the future of the Union” accepted in Nice. Finally, a special “Protocol on the role of national parliaments in the European Union” was attached to the Constitutional Treaty of 2004. These successive international agreements witness an unequivocal trend towards extending the powers of parliaments in particular countries. However, no common position of all Member States have been reached and, within the framework of the aforementioned agreements, the solutions of particular states differ sig- niﬁ cantly in specifying the national parliaments’ scope of the inﬂ uence on the positions adopted by the representatives of these states in EU organs. 2. The above-mentioned European regulations and, subsequently, legal solutions adopted in particular countries with reference to them (and, sometimes, even preceding them) and also the general analysis of various aspects of the regulation of this issue in our country, conducted against the background of constitutional regulations and against the background of the regulations of EU law, have already become the subject of numerous studies, including those of a theoretical nature, and detailed expert opinions. Elaborations on these European regulations (in the form of synthesis) and also concrete opinions can be found, for example, in some editions of “Przegląd Sejmowy” [“Sejm Review”] especially devoted to European issues, particularly in its second number, in 2006. There would not, therefore, be any point in discussing once again all the general theoretical matters or in explaining all the doubts discussed therein. The need to face up to the demands of EU law and to match the regulations functioning in other Member States but also the authentic needs of strengthening the role of the Polish chambers of Parliament1 meant, however, that within a few months of becoming a member of the EU, on 11 Match 2004, an act was passed on the cooperation of the Council of Ministers and the Sejm and Senate on matters connected with the Republic of Poland’s membership of the European Union.2 Two weeks earlier, on 20 February 2004, the Sejm of the Republic of Poland made changes to its own rules of procedure3, introducing internal provisions connected with the implementation of this Act. The Senate, in turn, made the appropriate changes in its rules and regulations after the passing of the Act, on 22 April 20044. Both these changes included also some organisational transformations, namely the appointing of a Sejm Committee on European Affairs (KUE) and a Senate Committee for European Union Matters (KSUE) to deal with matters connected with Poland’s membership of the EU. At the same time the abolition took place of the Sejm’s European Committee whose scope of activity had included all matters connected

1 What is signifi cant is that the procedure for passing the act under discussion began from the introduction of three drafts with “parliamentary” authors but no other subject made use of this power. There were two drafts submitted by two clubs of Deputies and one by all the members of the Presidium of the Sejm and nearly all the members of the Council of Senior, obviously presented also formally as a Depu- ties’ bill. Government side presented an offi cial standpoint only after these drafts had been submitted and the government representatives then took an active part in the plenary and committee work. 2 Dziennik Ustaw, No. 52, item 515 (hereinafter referred to as “the Act”). 3 Monitor Polski, No. 12, item 182 (these rules of procedure are hereinafter referred to as the RS). 4 Monitor Polski, No. 18, item 302 (these rules of procedure are hereinafter referred to as RSt). Paweł Sarnecki: Cooperation of the Council of Ministers with the Sejm and Senate... 9 with the process of integration, and the appropriate transformation took place of the scope of activity of the Senate’s Foreign Affairs Committee. KUE and KSUE bore above all the hallmarks of the “appropriate organ on the basis of the rules of procedure of the Sejm (Senate)”, which term is used several times in the Act of 11 March 2004, which gave the so defi ned organs the appropriate powers in relation to the Council of Ministers. Because we are dealing here with the powers of parliamentary committees (as internal organs of both chambers) and the creation of duties of certain bodies external to the Sejm and Senate, these powers were expressed in a universally binding act. As it seems, however, provisions of the rules of procedure in themselves would have been enough since — in accordance with Article 112 of the Constitution — we are dealing here with the defi nition of “the manner of performance of obligations by state organs to the Sejm (Senate)”. This refers to the statutory duty of cooperation between the Council of Ministers and the Sejm and Senate on matters connected with the membership of the Republic of Poland in the European Union (cf. the title and Article 1 of the Act), and the provisions of the Act cover those issues which constitute the subject of the somewhat “exchangeable” regulation, either by statute or by rules of procedure5. Obviously, the very duty of cooperation should be established by statute but, because of the signifi cance of the problem, it can be postulated that it ought to be so established by the Constitution. The rank of statute law provides greater stabilisation of the competence of the KUE and KSUE and removes any possible doubts that would arise if the regulation of their rights were to take place exclusively through the rules of procedure of the chambers, which do not have the nature or the legal force of statute law. It also justifi es the more detailed treatment of these organs in other subordinate legal provisions, e.g. those concerning their composition or procedures. The amendments to the rules of procedure of the Sejm’s in this respect were made by the addition of a special chapter devoted to the KUE and refl ecting detailed decisions concerning its personal composition (membership not exceeding 46 Deputies, designated on the basis of proportionality by clubs and party alliances, appointed by the Sejm in a joint vote); the demands of subordinating its work to a special schedule established by the Marshal (Speaker) of the Sejm, specifi c decision-making procedures (granting the casting vote to the chairperson of the committee in the case of parity of votes cast for and against, which is not provided for in the general rule on voting in committees) and releasing its work from the requirements imposed by the principle of discontinuation. The most far-reaching specifi cs is, naturally, the set of powers of the KUE, of which more below. On the other hand, the relevant provision of the Senate’s rules is not so far-reaching. Admittedly, the KSUE also had a special chapter devoted to it but the structural and organisational elements of the KSUE do not distinguish it from other Senate committees. It must also be emphasised here that the KUE, apart from these detailed powers, also has at its disposal the whole series of rights available to

5 Cf. L. Garlicki, Prawo konstytucyjne, Warszawa 2006, p. 132, 194. 10 The Sejm Review Third Special Issue / 2007 other Sejm committees, e.g. the power to order an inspection by the Supreme Chamber of Control (NIK), to submit legislative initiatives, to adopt desiderata, opinions, drafts of resolutions (including those of mandatory nature) of the Sejm. It is, after all, one of the permanent Sejm committees with all its attributes. Moreover, the committee may always refer the matter under discussion to the plenary sitting of the Sejm (as its parent body). Mutatis mutandi, this also applies to the KSUE. We must also remember those detailed powers of the committees of both chambers which are placed at their disposal by Article 16 paragraph 2 of the Act of 9 May 1996 on the Exercise of the Mandate of a Deputy and Senator6, i.e. the possibility of demanding information and explanations from members of the Council of Ministers. The text of the aforementioned act caused criticism from Senators because it has conferred signifi cantly fewer rights upon the second chamber (in comparison to the fi rst chamber) in the process of infl uencing by parliamentary bodies the various positions presented by the Council of Ministers at the EU. Making use of its constitutional rights, a group of Senators challenged that act before the Constitutional Tribunal. In judgment of 12 January 2005 (reference No. K 24/04) the Tribunal agreed with the presented arguments and found the Act of 11 March 2004 as not conforming (partly, in this aspect) with the Constitution. That is why the Polish Parliament amended the Act on 28 July 20057. The text below is concerned with the amended Act. In its legal basis so extended, Poland joined the group of countries possessing special legal provisions in the fi eld of cooperation between national governments and parliaments on EU matters. This fact should be given due recognition. It must, however, be added that neither of these committees has monopolised the entirety of committee work in relation to involvement of both chambers in EU matters. Other essential committees of the Sejm and Senate were left with powers concerning, above all, passing of bills implementing EU law. Such bills were considered by committees competent by subject-matter (with the generally accepted participation of special legislative committees) and not by the KUE or KSUE. The main subject of this study is an analysis of the aforementioned regulations. It must, however, be emphasised that beside the provisions contained in the above- -mentioned legal acts, the sources of binding law in this fi eld in Poland also include relevant provisions of the Protocol on the Role of the National Parliaments of EU Member States, attached to the Amsterdam Treaty and accepted by Poland in the Accession Treaty. The Act of 11 March 2004, however, goes considerably further than the provisions of the Protocol and practically duplicates the solutions of the Protocol on the Role of National Parliaments, attached to the EU Constitutional Treaty. On the other hand, with regard to the fact that the Constitutional Treaty (together with the additional protocols constituting its integral part in accordance with Article III-160) has not yet come into force, the particular powers of the Polish par-

6 Dziennik Ustaw, No. 73, item 350, as amended. 7 Dziennik Ustaw, No. 160, item 1342. Paweł Sarnecki: Cooperation of the Council of Ministers with the Sejm and Senate... 11 liamentary chambers contained in another Protocol attached to the Treaty and concerning the application of the principles of subsidiarity and proportionality do not have force of binding law. A defi ciency of this regulation is the lack of a clear constitutional basis (which obviously does not mean that it is not in conformity with the Constitution) which would ensure — with a force appropriate to its provisions — cooperation between the parliamentary chambers and the executive within the structures of the EU8. 3. The provisions of the Act discussed in this paper (and the rules of procedure whose texts derive from it) regulate this cooperation “in matters connected with the membership of the Republic of Poland in the EU” but do not confi ne its subject just to cooperation in the defence of the Polish national interest (or “Poland’s raison d’état”) in the Union. The representatives of the Republic of Poland within the structures of the Union will frequently have to act on matters not having a clear and direct reference to the Polish interests and to commit themselves more and more to the pan- -EU raison d’état. This is an evident attribute of the EU evolution, which should not however cause damage to the national interests. The “cooperation”, mentioned in title of the Act, should simply cover the entirety of EU activity in the scope that should be of interest to the Polish parliamentary chambers, notwithstanding the degree of its connection with Poland’s particular interests. The systematics of the Act allows for the statement that this cooperation covers four complex issues. First of all, the informing of Parliament by the Council of Ministers about the activity and course of actions in respect of all matters within the structures of the EU, which, given the fundamental nature of this issue, was even included in the “general principles” of the Act. From this it can be concluded that this informing ought to take place not only within the framework of particular procedures, specially created for this purpose, but also on the occasion of any contacts between the government and parliamentary offi cials, should there arise any reason for reference to EU matters. Secondly, it covers cooperation in the process of EU law-making, where — as is known — the main legislative role is played the Council of the EU. Thirdly, there is cooperation in the area of creating Polish laws which implement EU law. In this respect, the Act confi nes itself merely to establishing deadlines for the submission by the Council of Ministers of bills, whereas provisions added to the rules of procedure of both chambers establish different legislative procedures for such a case. It must be emphasised that this approach allows us to satisfy the constitutional requirement of the principle of autonomy of both chambers. Fourthly and fi nally, the Act regulates the cooperation in the area of nomination of candidates by Poland to the EU organs. This problem is also addressed in an additional provision of the Sejm’s rules of procedure. 4. Within the scope of the fi rst of these complex issues, the analysed provisions include, fi rstly, the duty of the Council of Ministers to inform generally the chambers

8 The need for basing the regulation of this problem on the Constitution was expressed in the parliamentary discussion during the work of this act; cf. most clearly Senator T. Liszcz (stenographic record of the 57th sitting of the Senate of the 5th term on 4 March 2004, p. 21). 12 The Sejm Review Third Special Issue / 2007 about the course of matters in the European Union, as seen from the point of view of Poland’s “participation” in the work of the European Union (cf. Article 3 paragraph 1). The meaning of informing national parliaments about the work of the EU is explained in all European treaties or additional protocols as an absolutely fundamental element of involving these organs in the sphere of activity of the Union itself. The frequency of providing information was set to be “at least” twice a year and is connected, as was emphasised in parliamentary discussions, with the cycle of work of the Union itself (the duration of the so-called Presidency). Practice, however, will show whether such a frequency of presenting this information will be suffi cient, in view of the enormous amount of work undertaken by the EU. Much will also depend on the accepted level of detail in the information, which should, however, remain (above all) information of a synthetic nature, enabling parliamentarians to have an overall understanding of the issue9. The participation of the Republic of Poland in the work of the EU determines the nature of this information: it should consist in portraying the work of the Union as seen through the eyes of representatives of the Republic of Poland themselves in its structures. As is known, the representatives of the Republic of Poland are authorized delegates of our state to the European Council and to the Council of the European Union. These are exclusively the holders of the appropriate functions within the executive of the Republic of Poland. Polish citizens operating in other organs of the EU, for example Members of the European Parliament, Commissioners of the EU or judges of the European Court of Justice are not, however, such representatives, irrespective of the procedure for their designation10. The Act does not exclude their own information and reporting activities within the framework of the structures of the EU but it simply does not regulate them by its own provisions. Obviously, the information from the Council of Ministers that is being discussed here, cannot ignore the activity of both the European Parliament and European Commission. Traces of this attitude of the authors of the Act can be clearly seen in its provisions. The information should include all important issues which are faced by the Union and which it is addressing, and not just those questions which are being resolved by bodies in which the Republic of Poland is offi cially represented. Moreover, this information has to address the most signifi cant achievements of all other EU organs (e.g. information about legislation adopted by the Commission, judgements issued by the European Court of Justice or statements made by the European Court of Auditors). This cannot, however, be simply information about the

9 It seems that this same intention was expressed by Deputy J. Łączny during the second reading of the bill: “In our opinion, this should be deepened and analytical information […] which should also embrace social, economic and fi nancial effects”. A similar postulate was expressed by Senator A. Wielowieyski during the Senate’s debate on the Act. 10 This is why the speech by Deputy M. Kotlinowski during the second reading, proposing the requirement for reports to be given by a member of the European Commission “designated by the Re- public of Poland” at the request of the Sejm, Senate or a group of 50 deputies, is unacceptable within the framework of Poland’s membership in the EU. Paweł Sarnecki: Cooperation of the Council of Ministers with the Sejm and Senate... 13 activities of these organs as seen through the eyes of the “Polish” members. The latter do not after all have any formal right to prepare the information being discussed there or to present, particularly with regard to the parliament, an offi cial assessment of Poland’s activity either in these organs or in any of the structures of the EU. This does not exclude, naturally, their inclusion in the process of informing about the activity of EU organs in other forms than those provided for by the Act, e.g. through the participation of “Polish” Deputies in the sittings of Sejm committees (cf. Article 154 paragraph 1a of the RS, which states that “they can participate in the discussion”) or Senate committees (Article 60 paragraph 2 of the RSt). The rules of procedure of the Sejm regulate the special procedure by which the Sejm considers and adopts its position on this information. On their basis the Marshal of the Sejm has been obliged to bring about its immediate delivery to Deputies and to the KUE. That committee, after reviewing the information (the sitting of the KSU should also be attended by representatives of the Council of Ministers), ought to prepare a draft of a resolution on its acceptance or rejection. This act of the Commission is adopted in accordance with a particular procedure, as mentioned above. Then, this matter becomes a separate point on the agenda of the plenary session of the Sejm, although the resolution of the Sejm does not have to be limited to just an acknowledgement of the information but it can be complemented by its assessment (Article 125a paragraph 4). It seems that such “assessment” should not in fact examine the correctness of the information itself (which ought to be a set of factual data), but rather be an assessment of the activity of the representatives of the Republic of Poland in the structures of the Union and, therefore, an assessment of these facts. This will naturally be an assessment of a political nature, in which the consequences of these activities for the national interest should unavoidably be considered, to which the Sejm is undeniably entitled. This additional “assessment”, included in the resolution of the Sejm on the acceptance (or rejection) of the information, may also be drafted by the KUE or it could arise as a result of the consideration by the Deputies of the information and of the position of the KUE, but only at a plenary sitting. In my opinion, we can also apply here the general provisions of the RS concerning minority motions (Article 43) calling for “reception of information” or for an additional “assessment”. The consequences of rejecting the information are nor defi ned, although this may naturally lead to the undertaking of further measures. On the other hand, the analogous provisions of the RSt are more modest and are limited to the requirement for immediate delivery by the Marshal of the Senate to the KSUE of (all) “documents” submitted to the Senate on matters connected with Poland’s membership of the EU and to their consideration. This is, therefore, the most general clause which covers all the documents referred to in the Act and, hence, also the analysed information (the latter is explicitly mentioned in paragraph 11a of the Appendix to the RSt). The rules and regulations of the Senate, providing for consideration by this chamber of the information from the Council of Ministers, does not, however, mention the possibility of adopting a resolution on the acceptance (or 14 The Sejm Review Third Special Issue / 2007 rejection) of this information or of adopting an “assessment” of such information and, thus, they do not mention the respective powers of the KSUE to draft them. This does not exclude, however, in my opinion, the possibility of discussing and adopting an analogous resolution at a plenary sitting of the Senate. Article 3 paragraph 1 of the Act after all, when specifying the aforementioned duty of the Council of Ministers, treats in an identical way both chambers of parliament and this statutory attitude ought to be decisive in this case. It is hard to accept that the information on such fundamental matters should be delivered to one parliamentary chamber and directed to its committee solely for its “consideration”, without the possibility of adopting a position on the information. The matter of the Senate’s powers in the context under discussion belonged to one of the most discussed issues in the process of passing the Act. Even if we accept without reservations the thesis, often mentioned there, that the Senate has no supervisory powers over the activity of the government, then in the case of Article 3 of the Act we, however, have to deal with the voluntary subordination of the government to such supervision. We can also refer to another provision of the RSt, and to the aforementioned Article 16 item 2 of the Act on the exercise of the mandate. Both in the case of a resolution of the Sejm and that of the Senate, we can talk solely about their political nature, and only in the case of a Sejm’s resolution can we additionally consider initiating the proceedings for political, or even constitutional, accountability. 5. Apart from the above-mentioned duty of the Council of Minister to present, at least bi-annually, comprehensive information about the participation of the Republic of Poland in the work of the EU, Article 3 paragraph 2 of the Act demands also the presentation of information of a more concrete nature, as maybe surmised, about individual matters within the framework of such participation. This concerns “information on matters connected with membership”, and not “information on the participation of the Republic of Poland in the work of the EU”. In the case of need, this second information can also be complemented by bi-annual information as foreseen in the preceding provision of the Act (such an opinion was expressed by the rappor- teur of the committee during the so-called second reading of the bill by the Sejm) 11. This does not come about, however, ex lege with procedures and dates established by the Act, but only on the request of each of the chambers of parliament or their organs appropriate on the basis of their respective rules of procedure. So, in this respect the parliamentary chambers are also treated in the same way. It results indisputably from the statutory regulation of this issue that the Council of Ministers cannot refuse to provide this kind of information. It presents it to the Speaker of the chamber, irrespective of whether the chamber itself or some other “appropriate organ” has re- quested the information. So, although there is no clear settlement of this question in the RS (none of its provisions specifi es the organ of the chamber which could de-

11 Cf. The fi nal speech of the commentator of the committee during the second reading (stenographic report of the 68th sitting of the Sejm of the 4th term on 18 February 2004, p. 199). Paweł Sarnecki: Cooperation of the Council of Ministers with the Sejm and Senate... 15 mand such precise information), it is certain that this right is granted to the Sejm’s KUE on the basis of the said provision of the Act. In the case of the RSt, however, Article 67d clearly indicates the Senate’s KSUE as an appropriate organ. Obviously, the right of the chamber and the committee to consider such information in this situation — since its delivery takes place upon an appropriate request — does not arouse any doubts. On the other hand, neither the RS nor RSt make it the duty of the Marshal to deliver such information when it has been prepared at the request of the chamber, for the KUE or the KSUE in order to prepare the position of the chamber. There is no doubt, however, that the Marshal has such a possibility. The fundamental question is whether the rights of the chambers to accept or reject it and to formulate assessments also appear with regard to this kind of “information on matters connected with membership”. The legal basis for this, in the case of the Sejm, could not be Article 125a of the RS (cf. above), which unequivocally refers only to general “information about participation”. In my opinion, such a right exists, but its legal basis must be linked to the general provisions of the rules of procedure, in particular those concerning mandatory resolutions, declarations or desiderata of the chambers or their committees. 6. The most far-reaching possibilities of a positive, albeit indirect, infl uence of parliament on EU decisions appear within the framework of a second complex of issues, concerning cooperation between the Polish legislature and the Council of Ministers in the creation of European law. Depending on the solutions of positive law, there could here appear even a very far-reaching binding of the Republic of Poland’s representatives within the structures of the EU. It must be remembered that this matter was particularly thoroughly analysed in the studies and expert opinions which preceded the passing of the act. A. Its provisions introduce, fi rst of all, the requirement to transfer to both chambers of parliament all the EU documents which, in accordance with the provisions — and also with EU practice — require consultation with Member States, as well as assessments of these documents made by the competent institutions and organs of the EU designated to perform such assessments (Article 4 of the Act). This concerns assessments of both those EU documents already existing at the time of passing on and those successively coming in. The Act mentions here the transfer of these documents to the “Sejm and Senate”, but does not mention their committees, and there is no doubt that the inclusion of the KUE and KSUE is here absolutely permissible, which appropriate provisions of the rules of procedure implement. In turn, “assessments” formulated by the appropriate “institutions and organs of the EU” can be understood to include, e.g. the opinions of the Economic and Social Committee, the Committee of the Regions, the Employment Committee etc. As an example, but also undoubtedly as the most important documents of this type, Article 4 mentions: a) the so-called “white papers”; these acts are not defi ned in the Treaty provisions since they have been created in practice; these documents are produced by the European Commission [hereinafter the Commission], which has, in principle, a mo- 16 The Sejm Review Third Special Issue / 2007 nopoly to submit legislative proposals in the EU, white papers which present “the declared policy and legislative intentions of the Commission in a certain fi eld” 12, contained in offi cial EU publications; are prepared by the Commission with the participation of its numerous committees, in which participate also senior offi cials of the Member States and are — which is also provided for by the said article of the Act — offi cially delivered to the governments of Member States; so although there is no diffi culty in accessing these documents (they are also available on the Internet) and although Deputies (Senators) may inspect them without the need for the mediation of the Council of Ministers, the requirement for their offi cial presentation by the government of the Republic of Poland underlines the signifi cance of the document and to a greater degree encourages a certain reaction to them; “consultations” with Member States, referred to in that provision of the Act (i.e. the statutory law of EU Member State), must be understood in the most general sense: because they relate only to legislative intentions and it is the European Council itself that will perform legislative activity, the “consultative procedure” will be the preparation by the Council of Ministers of a position, on the basis of the “paper”, with regard to the matters presented therein; there does not exist, therefore, a formalised “procedure for consultation” with Member States, as the said article might suggest; b) the so-called “green papers”, namely “the presentation of the possibilities of legal solutions to current problems”13, thus documents of a more general nature, presented as the expression of some earlier stages of the legislative work of the EC; in practice their preparation by the Commission and then their delivery to national governments is the same as in case of the so-called “white books”; c) communications of the European Commission — these are the expressions of the policy adopted by this organ, enabling us to foresee how it will proceed in the exercise of its competence14; like above-mentioned types of documents, communications of the Commission are not explicitly mentioned in the Treaty provisions and, within the meaning of the Act, we should include all the other important documents of this organ15; d) Article 4 of the Act also mentions the presentation of “assessments” of all the above-mentioned documents, formulated by the competent institutions or organs of the EU. As the aforementioned “consultations” should be understood very generally, the term “assessment” used in this context should — like all attitudes of these subjects to the acts of the Commission — be regarded equally generally. Formally, according to the EU treaties, there do not appear formalised “assessments” of particular EU organs with regard, for example, to “white” or “green” papers.

12 Cf. Prawo Unii Europejskiej. Zagadnienia systemowe, ed. J. Barcz, Warszawa 2003, p. 227. 13 Ibidem. 14 Ibidem, p. 193. 15 Cf. ibidem, p.173, where the two expressions “communications” and “documents” are regarded as synonyms and deﬁ ned as “signiﬁ cant indicators for the shaping, interpreting and applying of Commu- nity law”. Paweł Sarnecki: Cooperation of the Council of Ministers with the Sejm and Senate... 17

It seems that it will depend practically on the Council of Ministers itself which of these types of acts of the organs and institutions of the EU it will qualify as requiring “assessment” and will present to the parliamentary chambers, particularly in doubtful situations. On the basis of the rules of procedure of the Sejm, the Marshal of the Sejm trans- fers all the above-mentioned documents to the KUE. It must once again be noted that, in possessing all the general powers of parliamentary committees specifi ed in the rules of procedure, the KUE may, when reviewing these documents, apply for participation in the sittings of the government representatives and demand from them explanations and information. Since neither the Act nor the RS provide for any specifi c powers of the KUE in the situation referred to in Article 4 of the Act, we may take into account such general rights as: discussion on these documents, taking note of them, passing desiderata or opinions, adoption of draft acts of the chamber, etc. In the case of the Senate we can say much the same on the subject of such general powers. In order to increase the signifi cance of a given issue, the chambers can also pass resolutions expressing their position on matters concerning the EU’s legislative intentions, as arising from the above-mentioned documents, particularly those prepared by the committees. On the other hand, Article 4, in my opinion, does not confer on the committees of the chambers any power specifi ed in Article 6 paragraph 3 of the Act and, thus, that related to opinions sui generis, concerning the draft of a particular EU act (cf. point C below). There have been no indications of such a need in the course of parliamentary work either. B. A similar institution (but now not concerned with documents “subject to consultations with Member States”) is established by Article 5 of the Act, which introduces the requirement for the Council of Minister to deliver to the parliamentary chambers: a) operational programmes of activities of the Council of the European Union; these are acts which are not directly mentioned in the provisions of the Treaties but are undoubtedly very signifi cant in order to familiarize oneself with the directions and dimensions of the activity of this principal organ of the EU; this power is strictly connected with the right of both committees to receive the agenda of each sitting of this organ and the report from the sitting, which, on the basis of Article 9a of the Act, the Council of Ministers delivers to both committees (KUE and KSUE); in this way the parliamentary chambers and their European committees can systematically follow the directions and dimensions of the activity of this organ, particularly in terms of law-making, and the promptness of the realisation of operational programmes of activities of that organ referred to in Article 5 of the Act are delivered to the KUE by the Marshal of the Sejm; the Act does not formally include the above- -mentioned programmes among the documents subject to consultation with Member States (which arises out from the juxtaposition of Articles 4 and 5 of the Act), but the very essence of this institution is the creation of the possibility of a discussion and taking decisions by the Council of the EU in relation to those issues not included in 18 The Sejm Review Third Special Issue / 2007 these programmes; that is why these questions can fi nd their expression in appropriate resolutions of the KUE, even though they will naturally be acts formally not binding upon the Council of Ministers in this respect. However, the Council of Ministers naturally can, and politically should, inform the KUE about the current events concerning these resolutions i.e. whether the operational programmes of the Council of EU fi nally underwent any changes; the possibilities of the Senate and its KSUE present themselves analogously; b) the legislative plans of the European Commission (passed annually) and their assessment by the European Parliament and the Council of the EU; also the preparation of these plans by the Commission and the completion of the aforementioned assessments by the European Parliament [hereinafter EP] and the Council of the EU are not known to the provisions of the treaties of the European Union; however, these are undoubtedly signifi cant acts due to the role that is played by the European Commission (practically possessing the monopoly to introduce legislative proposals); obviously, the presentation to the Sejm and Senate of just the assessments without the legislative plans of the Commission would be pointless, hence the above-mentioned solutions of the Act, even though there is no “offi cial” representative of Poland in the EU Commission; this should occur annually and, therefore, annually the Council of Ministers has to send the above-mentioned documents to the Sejm and Senate; it is practically not very diffi cult for the Council of Ministers to obtain the EC’s annual legislative plans with assessment of them by the EP; obviously, the Council of Ministers also possesses the assessments from the Council of the EU; according to the RS they are sent to the KUE which could formally, on the basis of its general powers, pass a resolution on the matter of assessment of these plans and, in particular, present its own views or accept the assessments made by the EP or the Council of the EU (the powers of the Senate and its KSUE are analogous); the addressees of these resolutions could not include the European Commission itself, since the committees of national parliaments do not have to date16 any legally established contacts; the addressee can only be the Polish Council of Ministers, with the aim of the possible exploitation of the assessments in exerting broad infl uence by the Council of the EU on the Commission within the framework of the EU legislation. C. On the basis of Article 6 of the Act (Articles 9 and 10 of the act are also of signifi cance) the Council of Ministers is obliged to present to the Sejm and Senate the most concrete documents, namely: — draft EU legal acts together with; — drafts of its own positions on these documents which it intends to present in the forum of the Union; paragraph 2 of this article also requires the position of the Council of Ministers to be accompanied by a wide-ranging substantiation, including legal, social, economic and fi nancial assessments;

16 Cf. the interesting speech by Senator G. Grabowska during the sitting of the Senate (stenographic report from the 57th sitting of the Senate, op. cit., p. 4). Paweł Sarnecki: Cooperation of the Council of Ministers with the Sejm and Senate... 19

— the anticipated effects in Poland of the adoption of these acts by the EU authorities (obviously this position is not formally presented to any of the EU authorities); apart from this substantiation the Council of Ministers is obliged to present at the same time; — information about the kind of procedure for the adoption of these acts and about the procedure for voting within the Council of the EU. As the above-mentioned provision of the Act is contained in the chapter on cooperation in EU law-making, the conclusion must be drawn from this fact that the Council of Minister’s duty is extended only to the drafts of EU legislative acts and obviously those enacted by those EU organs in which the government of the Republic of Poland is represented by its delegates. In accordance with this, the Act ought to use the term “legislative (law-making) act” rather than the term “legal act”. This concerns, in accordance with Article 249 of the Treaty establishing the European Community, drafts of: — regulations, directives and decisions (the latter when dealing with decisions of a normative nature) issued by the Council of the EU together with the EP (in principle, on the initiative of the EC); — regulations, directives and decisions (the latter when dealing with decisions of a normative nature) adopted by the Council of the EU, being the principal legislative organ of the EU and, therefore, without the participation of the EP (but also on the initiative of the EC). The above legislative acts are adopted by the appropriate organs, in accordance with established procedures, in situations prescribed in European treaties. In the context of the Act, this means drafts of legislative acts of the Council of the EU and not those of the European Commission (although, as a rule, they are drafted by the EC). On the other hand, it should be assumed that Article 6 of the Act does not cover drafts of acts of the European Council, since its strategic functions in the EU (cf. Article 4 of the Treaty of the European Union — TEU) allow its acts to be characte- rized as fundamental political decisions, and not as normative acts. The above-mentioned documents (“drafts of legal acts” and “positions of the Council of Ministers”) are sent also to the KUE and KSUE, but in this respect the rights of these organs go signifi cantly further than in the situations discussed hither- to. This concerns particularly the powers of the KUE, whereas the powers of the KSUE are more modest. Generally, however, it could be stated that in relation to the most concrete documents the powers of the parliamentary bodies are also the most far-reaching. On the basis of Article 6 paragraph 3 of the Act (and the provisions of the rules of procedure of both chambers o parliament) the KUE and KSUE are entitled to pass “an opinion on legislative proposals” within 21 days of the delivery of the Council of Ministers’ draft position. They can, therefore, formally refrain from issuing such an act and, thereby, tacitly approve the intended government action. On the other hand, the Council of Ministers itself is additionally obliged to obtain the opinions of the KUE and KSUE, i.e. apply to them offi cially for such an opinion “be- 20 The Sejm Review Third Special Issue / 2007 fore the consideration of the draft of the legal act in the Council of the EU” (Article 9 paragraph 1 of the Act). In such a situation, therefore, it should be supposed that both committees are under obligation to accept it. These opinions are, however, treated by the Act in a differentiated way, in accordance with the general differentiation of the functions and positions of the Sejm and Senate in the Constitution of the Republic of Poland. Only the opinion of the KUE, in accordance with Article 10, paragraph 1 of the Act may constitute a basis for the position of the Council of Ministers — which should be understood as a substantial position taken in the course of European proceedings, initiated for the purpose of passing these legislative acts. Without mentioning in this context the opinions of the KSUE, the Act refers to the secondary role of the Senate in the realisation of all legislative functions of the Polish state. The shape of the aforementioned opinion of the KUE is further described in Article 148c of the RS, which states that the content of the opinion of the KUE is, fi rst of all, an assessment of the proposal and also an opinion on the position that the Council of Ministers intends to take in these proceedings. Apart from an assessment of the draft and an expression of acceptance (or its lack) of the intended position of the Council of Ministers, the opinion of the KUE can also include a “recommendation” to the Council of Ministers — paragraphs 3a of the Appendix to the RS defi nes this very forcefully, i.e. as “the formulation of recommendations to the Council of Ministers regarding the position that the Council of Ministers is to take during the consideration of the proposal in the Council of the EU”. These recommendations can naturally take place in the case of both approval and disapproval expressed by the KUE. From Article 10 paragraph 2 of the Act it transpires, however, that the Council of Ministers has no obligation of taking this opinion into consideration and adopting in the legislative works of the EU a position which is at least directionally consistent with the position of the KUE. Such a statutory solution is consistent with the majority of expert opinions concerning this issue, including references to the constitutional principle of a separation of powers. It also gained the support of a majority of parliamentarians taking part in the creation of the Act (and the representatives of the Council of Ministers), although it is worth mentioning that one of the initial drafts of the Act included the provision that “the opinion on the draft of the position of the Council of Ministers may include recommendations which should be taken into consideration by the Council of Ministers”17, while another one provided merely for the passing of an “opinion” by the KUE on these proposals18. The only concession towards the KUE is the requirement in Article 10 paragraph 2 that if the Council of Ministers does not take the opinion of the KUE into consideration, a representative of the government should without delay explain on the forum of the KUE the rea-

17 Cf. Sejm Paper No. 2377, Article 12 paragraph 2; in the course of parliamentary works this standpoint gained further support; cf. for example the speeches by deputies J. Zych and M. Kotlinowski during the second reading of the bill (stenographic report from the 68th sitting of the Sejm of the 4th term of 18 February 2004, p. 204 and 206). 18 Cf. Sejm Paper No. 2371, Article 6 paragraph 2. Paweł Sarnecki: Cooperation of the Council of Ministers with the Sejm and Senate... 21 sons for such a situation (the forum of the KSUE is not mentioned here). What is more, for “organisational” reasons, i.e. on account of the organisation of the work of the EU organs, the Council of Ministers (that is, its representatives obviously) may in the course of the legislative work in the EU take position even without seeking opinions from the KUE and KSUE, simply presenting instead without delay the reasons for this defi ciency to both committees (Article 9 paragraph 3 of the Act). This, however, does not apply to situations in which the Council of the EU acts unani- mously and to matters which impose signifi cant burdens upon the budget of the Polish state. Seeking an opinion of the KUE and KSUE must then take place even at the cost of a collision with the organisational work of the EU. Even then, however, this opinion does not assume any other character. In the course of parliamentary discussion it has been indicated that a different solution would be in collision with the constitutional function of the government to conduct foreign policy of the Republic of Poland (Article 146 paragraph 1 of the Constitution19). The procedure specifi ed in Articles 9 and 10 of the Act together with Article 148c of the RS applies only to the expression of “opinions on draft legal acts” within the meaning of these provisions, i.e. a legislative act. It does not apply to opinions on other kinds proposals (e.g. those named in Article 7 of the Act, cf. below). At the end of deliberations on this point, it has to be indicated that the above-mentioned powers of the KUE and KSUE and the silence on the subject of the possibilities of determining the position of the Council of Ministers at the plenary sitting of the Sejm gave rise to criticism during parliamentary work, as establishing a too far-reaching delegation of the powers of the Sejm to its own committee20. In reply, the main point made was the limitations on time which forced such a delegation of powers. It seems, however, that the Act ought to allow the plenary sitting of the chamber to adopt a position on the most important proposals for European legislation. The general possibility of the committee, as provided for in the rules of procedure, to refer certain matters falling in its scope of activity to be considered at a plenary sitting does not appear here to be suffi cient, and above all such a “reference” would not mean the taking over by the plenary sitting of the powers of the KUE specifi ed in Articles 9 and 10 of the Act. It seems that this defi ciency is not recompensed either by the delivery of Council of Ministers information under Article 3 of the Act to all Deputies (Article 125a paragraph 2 of the RS), or even by the possibility of the Sejm and the Senate passing formal resolutions on acceptance of this information.

19 Cf. in particular, the speeches by a representative of the Council of Ministers during the second reading of the bill in the Sejm and during the discussion on the Act in the Senate; as Deputy J. Protasie- wicz mentioned during the second reading of the bill, the ultimate statutory solution gained government approval “despite the doubts multiplied by the government” (stenographic report from the 68th sitting of the Sejm of the 4th term, op. cit., p. 201). 20 Cf. particularly the speech by Deputy K. Ujazdowski during the second reading of the bill. After the amendment of the Act in 2005 analogous objections could be raised against the position of the Senate and its KSUE, ibidem, p. 203. 22 The Sejm Review Third Special Issue / 2007

D. There is a strict connection between the aforementioned solution and the issue regulated in Article 8 of the Act. On its basis, the Council of Ministers informs the Sejm and Senate about: — “progress in the process of EU law-making” and — “the positions taken by the Council of Ministers in the course of this process”, which obviously covers also the information on the results of succeeding stages of the process. Where Article 6 paragraph 2, subparagraph 2 concerns informing about the treaty procedure for the adoption of a given normative act and the initial intentions of the Council of Ministers in this regard, then the information specifi ed in Article 8 of the Act deals with possible changes in, or the maintenance by it of, the initial standpoint during work in the EU. They, therefore, allow both chambers to follow systematically the legislative work of the EU and the evolution of positions taken by the representatives of the State. The provisions of the parliamentary rules of procedures regulate the transfer of this information, in turn, to the KUE and KSUE. As this is information about already existing facts, it cannot provide the basis for any substantial resolutions of these organs pro futuro, and can only possibly be the basis for the political responsibility of the Council of Ministers. 7. Article 7 of the Act signifi cantly increases (when compared to Article 4) the catalogue of EU documents presented by the Council of Ministers to the Sejm and Senate, both those with a defi ned signifi cance for the process of making EU law (and Poland’s participation in it) and solutions of a different character. These documents are as follows: a) drafts of international agreements, to which the parties are to be the EU, European Communities or their Member States; this provision concerns both agreements of the EU itself (or Communities) and the so-called mixed agreements, to which the parties are both the EU (Communities) and Member States; as far as the last of the above-listed categories of acts is concerned, it is the Council of Ministers which should present to both parliamentary chambers those drafts of agreements of other countries with non-EU subjects which have a certain signifi cance for the functioning of the EU and, in particular, could affect Polish interests in the EU; the duty of the Marshal of the Sejm to refer them to the KUE arises from the rules of procedure of the Sejm; in this respect there do not appear any particular powers of the KUE or of those of the whole chamber and, therefore, they have only the general powers specifi ed in the Act, as mentioned above; the case with the Senate and the KSUE is analogous. b) drafts of decisions to be taken by representatives of the governments of Member States assembled in the Council of the EU; these are acts undertaken admittedly by designated persons — not, however, on behalf of the Union (then they would be EU acts per se) but on behalf of all the Member States; these acts are mentioned many times in particular provisions of the primary EU law21 and they often have great

21 Cf. the examples indicated in Prawo Unii Europejskiej..., p. 199. Paweł Sarnecki: Cooperation of the Council of Ministers with the Sejm and Senate... 23 signifi cance for the process of EU law-making; in essence these drafts remain at the disposal of the Council of Ministers; the necessity of referring them to the KUE arises from the rules of procedure of the Sejm; there do not appear any particular powers of the KUE or the Sejm in this respect; the same applies to the Senate. c) drafts of acts of the EU which do not have the force of law, among which the Act names, as particularly important, proposals for guidelines adopted in the sphere of economic and monetary union and in the sphere of employment; apart from enacting provisions of a binding nature, in various forms and of various natures of this bond, various organs of the EU (and under various procedures) are entitled also to issue acts of a non-binding nature, clearly defi ned in this way by Article 249 of the TEU and called there “recommendations” and “opinions”; it should be supposed that all of them are available to the Council of Ministers, so that it could fulfi l the duty being discussed in this paper; in turn, the “economic union sphere”, “monetary sphere” and “employment sphere” are, as it should be supposed, vivid descriptions indicating the most important practical areas of cooperation among the EU Member States and do not refer exclusively to the issues mentioned in Titles VII and VIII of the TEC; these kinds of acts are adopted by various organs of the EU under various procedures; the referred provision of the Act calls them generally “guidelines”, which is, as it would seem, a meaningful and collective term for the acts which are formally non-binding but which are nor devoid of signifi cance and certain consequences in the case of their non-observance (even though the text of the Treaty establishing the European Community [TEC] itself also mentions expressis verbis these “guidelines”, cf. for example Article 128); particular competences of the parliamentary chambers and their committees do not appear in the situation described here; d) acts of the EU having signifi cance for the interpretation or application of EU law; leaving aside the drafts of acts which were indicated earlier, i.e. those without force of law but which may have signifi cance for the interpretation of European law, the judgments of the European Court of Justice and the Court of First Instance have particular interpretative nature; the chambers and the committees do not have any specifi c powers in this case. 8. The third complex of matters included in the Act covers the cooperation of the Council of Ministers and the Sejm in adopting Polish laws implementing EU legislation. As is obvious, we are talking here generally about the implementing of EU directives, its normative decisions and international agreements, provided that the latter are not of a self-executing nature. In the light of the constitutional system of the sources of law, it must be assumed that each implementation of European law should begin with the adoption of a law (statute). There cannot, therefore, be directly adopted regulations or orders, and it would be very diffi cult to imagine resolutions of the Council of Ministers in this context. The aim of the Act of 11 March 2004, as well as the aim of the amendments of the rules of procedure of both chambers of parliament, is to provide for certain departures from general procedures of the legislative process. It seems that the fi rst change 24 The Sejm Review Third Special Issue / 2007 of this kind, and one of a fundamental nature, is the introduction of the exclusive powers of the Council of Ministers to submit approximating bills. The Act does not mention this directly, but if we consider that EU law is created almost exclusively by the Council of the EU which is the organ to which the Council of Ministers exclusively designates its representatives and that these representatives are in the grip of the infl u- ence of parliamentary bodies (in a form specifi ed by the analysed Act), then the natural role of these representatives is, next, to steer the process of implementation of the thus established law. Other subjects having the right to introduce legislative proposals (the President of the Republic of Poland, the Senate, Deputies, not to mention the citizens), which are not directly involved in the process of European law-making, are not capable of drafting a law conveying the intentions of EU legislation at the time of its implementation. Taking into consideration the indicated premises, a conclusion in the form of granting the Council of Ministers exclusivity in submitting approximating (implementing) acts seems justifi ed (it is worth adding that the amended RSt is silent on the particular power of this chamber to submit approximating bills). The Council of Ministers also has the duty to declare clearly such a nature of a bill (Article 95a paragraph 2 of the RS). Such a conclusion would be, however, in contradiction with Article 95a paragraph 3 of the RS, added by the amendment, according to which the Marshal of the Sejm has to decide — with regard to bills coming from other organs than the Council of Ministers and which contain a clause about their approximating character with regard to EU law — whether they are bills of an implementing nature with regard to EU law. From this provision it would appear, therefore, that other subjects could also introduce bills implementing EU law. Despite this, I personally up- hold the above conclusion and I consider Article 95a paragraph 3 of the RS as a provision of only a regulatory nature. It is worth noting that it is something else to require bills to be consistent with European law: the requirement for all subjects of legislative initiative to demon- strate, in the reasons attached to each bill, that it is consistent with European law (in the sense of not being contradictory) or to state that the drafted regulation does not affect the sphere of this law, has not been removed from the RS. This is, however, a different situation from the case where we are talking about approximating bills. In the case of doubts as to the consistency of any bill with European law, the RS states that the Marshal of the Sejm (after seeking the opinion of the Presidium of the Sejm) refers the bill to the Legislative Committee which, by a majority of 3/5 of votes, may give an opinion that the draft is inadmissible, i.e. to fi nd it to be inconsistent with EU law. It seems that this is tantamount to a demand for the Marshal of the Sejm to return the bill to the proposer. A fundamental statutory duty of the Council of Ministers is the requirement to submit an approximating bill no later than 3 months before the deadline for the implementation of the European directive or decision. The legislative procedure of the Sejm and Senate observes, as a principle, all the provisions of their rules of procedure concerning the legislative process. On the other hand, dissimilarities, included Paweł Sarnecki: Cooperation of the Council of Ministers with the Sejm and Senate... 25 in the added Chapter 5a of Part II of the RS, apart from shortening certain time limits, include: a) the duty of the Marshal of the Sejm to establish the schedule of work on the bill: it must be accepted that this schedule is binding on both the Sejm committees and the Presidium of the Sejm when establishing the agenda of Sejm sittings; the rules of procedure of the Sejm establishes in connection with this that the Sejm committees should establish the timetable of their work within the framework of this schedule; b) granting the right to introduce amendments to bills in the course of committee work to a group of at least 3 Deputies (instead of the right of each Deputy); also only the same number of Deputies, being the proposers of a rejected amendment, can demand its treatment as a minority motion; a minority motion may be included in the committee report only when it specifi es the consequences of its adoption for the bill; it is worth adding in this context that Article 45 of the RS, also amended at that time, limits the right to introduce amendments during the second plenary reading of all bills to a group of 15 Deputies (instead of one Deputy); c) the acceptance by the committee of a motion to reject the bill may only take place by an absolute majority of votes. Formally, therefore, all these dissimilarities provide some acceleration of legislative work, at the same time limiting the rights of the Deputies. On the other hand, the amended RSt do not introduce any noteworthy departures during a consideration of approximating bills by the second chamber. 9. The fourth and last complex of statutory regulations consists of the rights of the Sejm’s KUE to give opinions about candidates designated or appointed by the Council of Ministers, in accordance with the provisions of European law, for 8 posts in EU organs and institutions. This concerns, above all, members of the European Commission but also judges of the Court of Justice and members of the Court of Auditors. It is worth emphasising that during parliamentary work on the Act the number of these posts underwent a signifi cant increase. In this area no rights were accorded to the Senate. On the basis of Article 148b paragraph 1, subparagraph 11 of the RS, the Marshal of the Sejm has to refer the appropriate proposals without delay to the KUE and also to establish in this case a schedule of work. Neither the Act nor the RS are precise about the particular consequences in the case of a positive or negative opinion expressed by the KUE. This confi rms the conclusion, arising from the general systemic premises, about the solely political signifi cance of this procedure; nothing, however, stands in the way of the Council of Ministers giving up the promotion of a certain candidate as a result of a lack of approval from the committee. During parliamentary work on the draft of the Act, it was also recognised that this institution belonged to the sphere of parliamentary control over government activity, which resulted in the granting of the above-mentioned rights solely to the organ of the Sejm. 10. At the end of this paper, it is worth returning to certain general considerations. Earlier, there were presented certain detailed means of cooperation of the Council of 26 The Sejm Review Third Special Issue / 2007

Ministers and the Sejm and Senate in “European” matters. It must, however, be recognised that they cannot exhaust the entirety of the requirements for cooperation of government and parliamentary bodies in this respect. Article 2 of the Act imposes the general requirement of this cooperation and this duty ought to be taken into account by the government in the entirety of its activity and in the entirety of its contacts with parliamentary bodies. The integration of Poland in European structures is, after all, a factor that to such a great degree determines the functioning of our country in so many dimensions that these issues cannot be ignored in the whole course of the activity of both parliament and government. As far as possible, particular problems connected with integration ought to be solved by the mutual effort of both branches of power. Its exploitation for the conduct of confrontational activities would be particularly reprehensible. The requirements arising from the principle of a democratic state ruled by law should constitute further premises for the desired cooperation. Another constitutional premise is formulated in the preamble to the Constitution, declaring Poland to be a state “based on [...] cooperation between the public powers”. That is why all the instruments of parliamentary law — the constitution, statutory law and the rules of procedure — should also serve the cooperation between the Council of Ministers, the Sejm, the Senate and all other authorities of the Republic of Poland in making our contribution to the development of the European Union. 27

MARIAN GRZYBOWSKI PROFESSOR, JAGIELLONIAN UNIVERSITY, CRACOW

THE COUNCIL OF MINISTERS AND GOVERNMENT ADMINISTRATION AND POLAND’S MEMBERSHIP OF THE EUROPEAN UNION (SELECTED CONSTITUTIONAL PROBLEMS)*

I. THE PERFORMANCE OF CONSTITUTIONAL FUNCTIONS AND TASKS BY THE COUNCIL OF MINISTERS IN THE CONTEXT OF POLAND’S MEMBERSHIP OF THE EUROPEAN UNION The Council of Ministers, is one of the two constitutional organs which exercise executive power in Poland (the other one is the President of the Republic). In accordance with Article 146 paragraph 1 of the Poland’s Constitution, the Council of Ministers “shall conduct the internal affairs and foreign policy of the Republic of Poland” and, according to paragraph 2, these include “the affairs of State not reserved to other State organs or local government”. The wording of these provisions (raising doubts about its normative character and legislative correctness1) already provokes several questions within the context of Poland’s membership of the European Union. The ﬁ rst question concerns the competences delegated to international organisations (of which the European Union is one) as a result of the signing and ratiﬁ cation

* This article was published in „Przegląd Sejmowy” No. 3(68)/2005. 1 One could discuss the precision of the defi nition and the normative content of the linguistic expression “conducts policy […]” and also the legal meaning of the expression that it is to the Council of Minis- ters that these “affairs belong” (it might be more appropriate to write “The scope of activities […] covers the issues […]” or “The scope of duties of the Council of Ministers includes the […]”). 28 The Sejm Review Third Special Issue / 2007 of the agreements specifi ed in Article 90 paragraph 1 of the Constitution. The essence of the question might be to ask: should the delegation of competence referred to in Article 90 paragraph 1 of the Constitution in “certain matters” be regarded as being equivalent to the “reservation” of such matters to “other organs”, as provided for in Article 146 paragraph 2. The correlation of the provisions quoted above is far from being unambiguous; Article 90 paragraph 1 makes use of two categories: “competence” and “affairs” (i.e. substantive areas of activity) while Article 146 paragraph 2 has only the one category: “affairs”. One could have doubts whether the delegation of competence under Article 90 paragraph 1 refers — in the case of the Council of Ministers — to the sphere of its powers and obligations (that is competence) or to the scope of its activities (subject matter jurisdiction under the court law) or whether it collectively (ultimately) covers both spheres: tasks and powers. The constitutional defi nition of the functions (political roles), tasks and competence of the Council of Ministers2 is an exemplary enumeration of a “demonstrative” nature (indicating the elements regarded as the most signifi cant by the authors of the Constitution). One can, however, consider whether, in the face of such a catalogue of tasks and areas of competence, the transfer of competence in accordance with Article 90 paragraph 1 of the Constitution concerns only the possible reduction of the competence of the Council of Ministers (or organs of government administration) in accordance with the wording of Article 90 paragraph 1, or whether it also relates to the reduction of the list of tasks (a transfer of competence in “certain matters”). By way of digression, it is worth noting that the provisions of Article 146 paragraph 1 do not facilitate (for at least two reasons) the transfer of competence from the Council of Ministers to the authorities of the European Union (Communities). These reasons include the “task-based” approach to specifi cation of (a signifi cant range of) the presumed activity of the Council (“ensure the implementation of statutes”, “protect the interests of the State Treasury”, “ensure internal security […] and public order”, “ensure external security […]”); and the defi nition of its role within the organisational system, or within a functional regime (“coordinate and supervise the work of the organs of government administration”, “supervise the implementation of the State Budget”, “exercise general control in the fi eld of national defence”). Such wording governing only a segment of powers (competence) makes the above transfer diffi cult and — as a rule — does not signify the assumption (in favour of Union structures) of the entirety of the constitutional task or of the systemic function of the Council of Ministers. It must be added that not all the functions and the tasks of the Council of Ministers are in equal degree susceptible to the possibility of being transferred to the “level” of Community (Union) institutions, due either to their signifi cance for the essence (“core”) of the sovereignty of the state or due to their nature and orientation. As an example — in the fi rst group — one should indicate the protection of “the interests of the State Treasury”, “control in the fi eld of relations with other states and international organisations” (subject to limitations imposed by Community policy)

2 Specifi ed in Article 146 paragraph 4 as based on the principle of “multiple lines of business”. Marian Grzybowski: The Council of Ministers and Government Administration and Poland’s Membership... 29 or “the exercise of general control in the fi eld of national defence”. The second group includes, for example, “coordination and supervision of the work of the organs of government administration” and the fundamental task of ensuring “internal security and public order” (the Union/Communities do not have in this fi eld appropriate executive instruments at their disposal). There also belong here (in terms of competence) the passing of: the draft of the state budget, the settlement of state accounts and the passing (and submitting) of reports on the implementation of the budget. In analysing the effect of membership of the European Union on the scope of duties, “competence and the principles of the functioning of the Council of Ministers”, our attention should be concentrated on the conduct of foreign policy and on the following systemic roles serving this activity: a) conducting general control in the fi eld of international relations, b) ensuring external security3 and c) general control in the fi eld of the defence of the country. In this context, a new interpretation may be required for the provisions of Article 146, paragraph 4, subparagraph 10, in accordance with which the Council of Ministers “concludes international agreements requiring ratifi cation as well as accepts and re- nounces other international agreements”. It is almost certain that the freedom with which the Council of Ministers exercises its “treaty capability” has been, since accession to the European Union, signifi - cantly limited. This limitation is, fi rst and foremost, of a substantive nature: a) The Council of Ministers cannot exercise its right to shape treaty relations with other states and organisations in fi elds which contradict, or prevent the execution of, obligations towards the European Union (Communities); b) The Council of Ministers cannot negotiate and conclude international agreements in matters where the competence have been delegated to Community (Union) organs; this concerns the extent in reference to which the appropriate form of shaping external relations remains Community agreements (within the meaning of Article 300 of the European Community Treaty4); the Council of Ministers also does not have full freedom to enter into agreements in areas in which the Communities previously enjoyed their authority to establish contractual relations with the “third” countries. In view of the constitutional reservation that the delegation of competences — in this case to Community (Union) organs — can occur only “in certain cases”, it becomes inadmissible to delegate them in respect of the “entirety of matters”5. From

3 Article 146 paragraph 4 subparagraphs 8, 9 and 11 of the Constitution of the Republic of Poland. 4 Cf. K. Wójtowicz, Konstytucja RP z 1997 r. a członkostwo Polski w Unii Europejskiej [“The Consti- tution of the Republic of Poland of 1997 and Poland’s Membership of the European Union”], [in:] Prawo Unii Europejskiej. Zagadnienia systemowe [“The Law of the European Union. Systemic Problems”], ed. J. Barcz, Warszawa 2002, p. 416. 5 At this point, it is worth paying attention to the subtle difference between the defi nition used here and the expressions applied in the literature on the subject (e.g. cf. the quoted work by K. Wójtowicz, Konstytucja RP…, p. 419), where it was most often emphasised that “the delegation of the whole competence is out of question”. The constitutional expression “in certain matters” refers to a set of “matters” and not to the set of “competence”. 30 The Sejm Review Third Special Issue / 2007 the point of view of the competence (or tasks) of the Council of Ministers, there can be distinguished two models for of drawing the demarcation between those matters “delegated” and those “not delegated” to Community institutions. The fi rst model would come down to indicating (expressis verbis or by way of interpretative actions) the scope of matters which cannot be delegated o the Union6. These are mostly matters belonging (as held by the Italian Constitutional Tribunal) to the “fundamental principles of the constitutional order” or (as considered by the French Constitutional Council) those connected with “respect for the institutions of the Republic” and “essential conditions for exercising national sovereignty”. The second model comes down to a treaty- or constitution-based defi nition of the principles and values which the European Union must defend whenever it exercises its competence delegated to it by member states7. Since this question is left open, the Polish systemic practice can only refer to more general constitutional clauses, among which the most important signifi cance appears to be had by the enumeration of the values to be safeguarded by the Republic of Poland. This catalogue is formulated by Article 5 of the Constitution of 1997. The extent to which the Council of Ministers exercises its right to conclude international agreements requiring ratifi cation or to conclude (amend) and renounce other agreements depends therefore on the scope of matters delegated to European Communities (the European Union) and Community institutions in the accession agreement, in the treaties concluded to date, as well as in agreements concluded and ratifi ed additionally according to the principles specifi ed in Article 90 of the Constitution. It is on the content of these agreements, although very indirectly, that there depend the scope of legislative initiative enjoyed by the government, some conditions for creating and passing the draft budget and — in particular — the external conditions for implementing the budget act. The generally understood function of conducting internal and foreign policy is performed — from the moment of the attainment of membership status — taking into consideration not only the country’s internal economic, social and legal conditions but also the necessity of respecting Community policy and the provisions of European law.

II. THE PARTICIPATION AND INFLUENCE OF THE COUNCIL OF MINISTERS ON THE FUNCTIONS OF THE EUROPEAN UNION (SELECTED SYSTEMIC ASPECTS) The Council of Communities (The Council of the European Union), the main legislative and decision-making organ of the Union, was initially formed as a forum

6 This solution was used in § 5, chapter 10 of the Swedish Act on the Instrument of Government, in accordance with which “no right of decision-making relating to matters concerning the enactment, amendment or abrogation of fundamental law, the Riksdag Act or a law on elections for the Riksdag, or relating to the restriction of any rights and freedoms (referred to in Chapter 2) may be thus transferred”. 7 This is the approach taken in the provisions of Article 23 of the Basic Law of the Federal Republic of Germany, which provides that the Union, when exercising its delegated competence, must respect democratic, social and federal principles, the rule of law, the principle of the subsidiarity and should also guarantee the protection of basic rights at a level comparable to that afforded by the German Basic Law. Marian Grzybowski: The Council of Ministers and Government Administration and Poland’s Membership... 31 for agreements between the governments of the member states, based on the formula of either unanimity or qualiﬁ ed majority. Its further development, as was rightly emphasised by Zdzisław Brodecki and Sylwia Majkowska8, is heading towards the taking over by the Council of the Union, and its formations, of specialised Community tasks, i.e. those delegated to the Union as a result of treaties signed by and between its member states. The current institutional structures of the Council of the Union and its specialised formations present themselves as follows:

Council = representatives of the governments of member states at ministerial level (depending on the subject under discussion)

General Affairs and External Relations (Prime Ministers and/or Ministers of Foreign Affairs)

Agriculture Committee of Permanent Representatives Economy and fi nance (Ecofi n) of Governments of Member States Employment and social policy (ambassadors) COREPER I and II Working Environment and groups Transport Special Committee on Agriculture and Telecommunications Economic and Financial Committee (with Fisheries the participation of representatives of the Energy central banks of the member states) Internal market Justice and home affairs Industry Development Scientifi c research Education Budget Consumers Culture and audiovisual media Health Tourism Youth Civil defence

Source: Z. Brodecki, S. Majkowska, Polska w zreformowanych strukturach instytucjonalnych Rady Unii Europejskiej [“Poland in the Reformed Institutional Structures of the Council of the European Union”] [in:] Przystąpienie Polski do Unii... [“The Accession of Poland to the European Union…”], p. 170.

8 In the study Polska w zreformowanych strukturach instytucjonalnych Rady Unii Europejskiej [“Po- land in the Reformed Institutional Structures of the Council of the European Union”] [in:] Przystąpienie Polski do Unii Europejskiej. Traktat akcesyjny i jego skutki [“The Accession of Poland to the European Union. The Accession Treaty and its Consequences”], ed. S. Biernat, S. Dudzik and M. Niedźwiedź, Kraków 2003, p. 168–169. 32 The Sejm Review Third Special Issue / 2007

Within the system of the main organs of the Communities (the European Union), the Council of the Union is perceived as the representation of the interests of the member states9. It must be remembered that in the legal sense the institutions (organs) of the European Union do not have at their disposal the competence of a general nature or that suggested by constitutional implication. Their powers derive from the delegation of competence arising from treaties. The Council of the Union, the European Commission and the European Parliament operate on the basis of the principle of institutional balance, which implies that each institution (including the Council of the Union) has to act in accordance with the powers conferred on it by the Treaties10. As a principle, the Council of the Union adopts resolutions by a majority of the votes of its members, who are at the same time members of the governments of the member states of the European Union. The voting system has three forms: simple majority, qualifi ed majority, unanimity; the choice of one of these forms is regulated by Community laws (and is, therefore, not dependent on a decision of the Council itself). Members of the governments of particular countries — in the case of absence from a particular meeting of the Council — can transfer their right to vote to another member of the Council; provided that a Council member can take over the vote of only one member absent from the meeting11. The composition of the Council of the Union is thus a function of the composition of the governments of the member states and changes with the change of their governments. The members of governments, including the Polish Council of Ministers, while fulfi lling their functions in the Council of the Union, act on the basis of a mandate obtained from their own government. It must be assumed that the mandate is either institutional and based on holding of a given position (the management of a defi ned administrative department) within the government, or is granted by the Council of Ministers ad hoc, in order to represent the government during a particular session. The granting of the mandate (the authorisation to represent the Council of Ministers) in a personal sense is linked with the competence of the Council of Ministers to formulate instructions and guidelines concerning the actions of an authorised member of government in the Council of the Union, including the substantive direction of voting. These guidelines and instructions are binding on the representatives of the government (in the political and legal sense). Despite the fact that they operate within the composition of the Council of the Union, which is

9 The European Commission, conversely, is treated as an organ safeguarding, above all, the Commu- nity interests. (Cf. J. Rideau, Droit institutionnel de l’Union et des Communautés européennes, Paris 1996, p. 267). 10 Cf. Judgement in case C-70/88, Parliament versus Council, [1990] ECR, p. 2041. 11 K. Michałowska-Gorywoda, Podejmowanie decyzji w Unii Europejskiej [“Undertaking Decisions in the European Union”], Warszawa 2001, p. 87–88. Marian Grzybowski: The Council of Ministers and Government Administration and Poland’s Membership... 33 a Community institution, they still remain representatives of their particular states and governments and are obliged to defend the interests of the member states they represent. Moreover, their participation in the work of the Council of the Union imposes additional obligations to inspire actions and solutions aimed at fulfi lling common goals, as defi ned by treaty provisions and by agreements between member states, inter alia, at the forum of the European Council. In practice, the governments of the member states are relatively frequently represented at the meeting of the Council by secretaries of state, i.e. political deputies of the minister, who are not formally members of the government. The participation of members of the government or their authorised representatives in the work of the Council of the Union brings about several questions of a constitutional and systemic nature, to which we need to fi nd answers. The fi rst question relates to the need to ensure cohesion between the line of actions at the Council of the Union (as an organ of a decision-making nature) and other European institutions associated with the Council, and the entirety of the foreign policy of the state as conducted by the Council of Ministers12. This requirement makes it necessary to create a decision-making system, where decisions taken at the “national” are coordinated, on a day-to-day basis, with decisions issued by decision-making organs of the European Union, including — fi rst of all — the Council of the Union13. The multi-subject nature of the cooperation between member states and the decisions taken by the Council of the Union (of which just one part — within the framework of the so-called third pillar — concerns the “classic” foreign policy), and the participation in the works of the Council by the representatives of various administrative departments, as appropriate to the problems being discussed, make it diffi cult to coordinate the work of the Council of the Union (and its supportive base) with the actions of the Council of Ministers and the Foreign Minister14 within the scope of “remaining” areas of foreign policy.

12 J. Galster drew attention to the government’s limitations in the area of drafting legal acts and developing the “normative dimension” in Teoretyczne aspekty obowiązywania, stosowania i przestrzegania prawa wspólnotowego w porządku krajowym [“Theoretical aspects of the operation, application and observance of Community law in the domestic order”], [in:] Implementacja prawa integracji europejskiej w krajowych porządkach prawnych [“The implementation of the law of European integration in domestic legal orders”], ed. C. Mik, Toruń 1998. 13 The indispensability of such a system of agreements was emphasised by G. Rydlewski, Rządowy system decyzyjny w Polsce. Studium politologiczne okresu transformacji [“The government decision- -making process in Poland. A political science study of the period of transformation”], Warszawa 2002, p. 61. 14 The Council of the Union, although it is institutionally one organisation, may meet “in different confi gurations”. One of these confi gurations is the Council for General Affairs, within which Ministers of Foreign Affairs operate. This Council has an infl uence on the shape of the remaining confi gurations (in the sense of establishing their list) but upon taking of institutional decisions, it no longer infl uences the subject matter, course of action and results of the work in other “confi gurations” of the Council of the Union (cf. K. Michałowska-Gorywoda, op. cit., p. 88). 34 The Sejm Review Third Special Issue / 2007

Another problem connected with the question of the participation of particular members of the Council of Ministers in the work of the Council of the European Union is the relations within the Polish government: individual ministers — Minister of Foreign Affairs — the Committee for European Integration. During the pre-accession period, the draft reforms proposed by the Government Centre in December 1995, provided for the creation of a new government institution — the Committee for European Integration — as an organ competent in the fi eld of planning and coordinating policy in matters connected with the integration of the Republic of Poland with the European Union; actions adapted to European standards, and also actions of the government administration related to the use of pre- -accession support funds15. Beginning with Włodzimierz Cimoszewicz’s government, the offi ce of president of the Committee for European Integration was assumed by the Prime Minister, which in practice could increase the effi ciency of its coordinating function and its operational effi ciency. This course of action was not, however, continued in the cabinet of Jerzy Buzek (1997–2001), where the duties of chairing this committee were assumed by a member of the Council of Ministers (which, due to political affi lia- tions of the holder of this offi ce, brought about certain diffi culties in the actions directed towards rapprochement with the European Union). An additional factor com- plicating the coordination of the government’s work connected with pre-accession preparations was the adoption, as the basis, of the concept of the fl exible (department-based) structure of the government. In the period of negotiations on Poland’s accession to the European Union, the composition of the Prime Minister’s Chancellery was extended to include the Offi ce of the Government’s Plenipotentiary for Negotiations on Poland’s Membership in the European Union16. The plenipotentiary himself became a kind of intermediary between the Council of Ministers and the institutions of the Union (above all, the European Commission). Within the framework of Poland’s membership of the European Union and its participation in the work of the Council of the Union (since 1 May 2004), it has become an important issue to harmonise the fl exible formula for the participation of members of the Council of Ministers in the meetings of the Council of the Union (depending on the subject matter of the discussion) with the coordination of the management of contacts with the Union within the Council of Ministers. It seems that from the organisational (and personal) point of view it is possible to accept the following model solutions: a) contacts with the Union are coordinated (and “combined into a whole”) by the Committee for European Integration presided over by the Prime Minister or by one of his deputies;

15 Cf. G. Rydlewski, op. cit., p. 99. 16 The actions of the plenipotentiary were supported by the Negotiating Team for Poland’s Member- ship of the European Union appointed by the Prime Minister on 27 March 1998. Marian Grzybowski: The Council of Ministers and Government Administration and Poland’s Membership... 35

b) contacts with the Union are coordinated and harmonised with the rest of the “external policy” of the state by the Committee for European Integration, presided over by the Minister of Foreign Affairs; c) the sphere of contacts with the Union is entrusted to the Committee for European Integration whose president is awarded the status of minister-member of the government; d) the Minister for European Integration — as the coordinator of European policy — is appointed within the Council of Ministers. Each of the above-mentioned model solutions seems to have both positive features and certain weaknesses (counter-indications). The fi rst solution benefi ts the effi ciency of coordinating actions, but it can even absorb the head of the government excessively (and thus bring about the fragmentation of the attention around selected aspects of European policy, in accordance with the hierarchy of signifi cance adopted by the Prime Minister or Deputy P.M.). The second solution potentially supports the consistency of the external policy of the state (the harmonisation of its “European” and “non-European” segments) but it does leave a question-mark over the “capability” of inducing the effect of coordinating activities (as the remaining members of the government retain the legal status equal to that of the Minister of Foreign Affairs). The third solution benefi ts the coherence in the government’s European policy but it also carries the danger of a certain double-tracking between the “European” policy and the foreign policy in non-Union matters as well as concerns about the effi ciency of the coordination actions. The fourth solution helps to make more specifi c the re- sponsibilities for the policy towards the Union within the Council of Ministers, but it also cumulates the weaknesses of the second and third solutions.

III. CONSTITUTIONAL ASPECTS OF THE COORDINATION OF GOVERNMENT POLICY TOWARDS THE EUROPEAN UNION The establishment of systematic contacts with the European Union — by way of the Europe (Association) Agreement of 16 December 1991 — gave rise to the need to create a government administration entity responsible for the preparation, maintenance and coordination of cooperation with the Union. The fi rst institution of this type was the Offi ce of the Government’s Plenipotentiary for European Integration and Foreign Aid, created within the structure of the Offi ce of the Council of Ministers in 199217. Among the tasks of the Offi ce mentioned here, the most important was the coordination of the preparation for pre-accession aid within the framework of the PHARE project. This task became even more important after the application for membership of the European Union was made by Poland and Hungary in 1994.

17 Cf. A. Nowak-Far (in cooperation with A. Michoński), Krajowa administracja w unijnym procesie podejmowania decyzji [“National administration in the EU process of undertaking decisions”], Warszawa 2004, p. 141. 36 The Sejm Review Third Special Issue / 2007

After the so-called Copenhagen Criteria (required to be met by candidate countries) were formulated at the meeting of the Council of the European Union in Copenhagen, the task of the Council of Ministers and of its auxiliary offi ce, the Offi ce of the Government’s Plenipotentiary (and the Plenipotentiary himself) was to prepare programmes which would allow the aforementioned criteria to be met. The year 1994 also brought (albeit belatedly) the ratifi cation of the Europe (Association) Agreement, which then gave rise to the obligation of the progressive harmonisation of Polish law with the standards of Community law. All of these undertakings made it indispensable to perform a division of the tasks aimed at adapting Polish economy and public administration to the needs of membership and to prepare a timetable of adaptation activities. The direction of such activity was defi ned — on the part of the Union — by the white paper on the state of preparations of the associated countries of Central and Eastern Europe to integration with the internal market of the European Union18. The diffi culties in forcing through the timely execution of the tasks defi ned in the special “Timetable for Adjustment Actions” revealed the weaknesses of the methods hitherto employed in the conduct of European policy by the government. They provided the basis for establishing an organ of a decision-making nature — the Committee for European Integration (accompanied by the simultaneous creation of the supporting Offi ce of the Committee for European Integration, being the clerical and expert “resource base” and the apparatus for “servicing” the Committee). The Committee for European Integration was set up on the basis of the special Act of 8 August 199619. This Act imposed on the Committee tasks aimed at coordinating the adjustment and integration processes, giving opinions about draft legal acts from the point of view of their conformity with Community law, supervising the adjustment processes as well as initiating and conducting activities in support of integration (in the areas of conceptualisation, coordination and information). The Committee assumed, in its entirety, supervision of the implementation of the association agreement. The subordination of the Committee directly to the Prime Minister (together with the entrusting to him of the presidency of the Committee for European Integration) meant that the Minister of Foreign Affairs was practically excluded from the supervision of relations with the European Union. In effect, there appeared a double-tracking in the external actions of the government, i.e. a division into the sphere of activities in relation to the European Union and the remaining sphere of foreign policy. In the period of the accession negotiations, a positive dispute about

18 The European Council adopted the White Paper at its meeting in Cannes in June 1995 (cf. the text of the White Paper published by the Representative Offi ce of the European Commission in Poland), Warszawa 1995. 19 Act of 8 August 1996 on the Committee for European Integration (Dziennik Ustaw [Journal of Laws of the Republic of Poland], 1996, No. 106, item 555). Marian Grzybowski: The Council of Ministers and Government Administration and Poland’s Membership... 37 competence arose. The coordination of negotiations was aspired to by both the Committee for European Integration (in particular, the Offi ce of the Committee) and the Ministry of Foreign Affairs. This resulted in moving of the centre for the coordination of negotiations to the Chancellery of the Prime Minister, and the Government’s Plenipotentiary for Negotiations on Poland’s Membership of the European Union was located within the structure of this Chancellery20. He could draw equally upon the expertise of two institutions: the Offi ce of the Committee for European Integration (in particular the Department for the Servicing of Accession Negotiations) and the Foreign Ministry (and the European Union Department operating within its structures). One of the elements of the “inter-departmental coordination” (or more accurately: inter-ministry coordination) was the setting up a Negotiating Team, composed of more than twenty members, which included all deputy ministers of the ministries involved in integration. Any disputes over competence were to be settled by a two-person “presidium” composed of the deputy chair of the Team (a representative of the Ministry of Foreign Affairs) and the Team secretary, representing the Offi ce of the Committee for European Integration. The Committee for European Integration retained its substantive powers, particularly to determine negotiating positions21. The prospects for the participation of a representative of the Council of Ministers in the works of the Council of the European Union necessitated the working out of the procedure for the adoption a Polish position for the meetings of the Council and all its preparatory bodies (COREPER I and II, the Special Committee on Agriculture, the Political and Security Committee). In this respect, the coordination duties were assumed by the European Union Department of the Foreign Ministry. The intention to entrust the leadership of the Committee for European Integration (in Marek Belka’s government) to the Foreign Minister made the Ministry the main command centre. This did not mean, however, the release from joint responsibility of the Committee for European Integration and the Offi ce of the Committee (which still at that time retained responsibility for the coordination of sectoral policies)22. Poland’s membership of the European Union, since 1 May 2004, meant the Council of Ministers was faced with the task of working out the positions to be presented at the meetings of the Council of the Union and in contacts with the European Commission and the European Parliament. The Polish government obtained the right for its representatives to participate in the work of the organs preparing the decisions of the Council of the EU: COREPER I and II, the Special Committee on

20 Cf. the Regulation of the Council of Ministers of 24 March 1998 (Dziennik Ustaw [Journal of Laws], 1998, No. 39, item 225). 21 The initial version of the negotiating positions was prepared by the Inter-ministerial Team for the Preparation of Accession Negotiations with the European Union, made up of 37 negotiating sub-teams. It prepared 29 “negotiating chapters” and adopted positions in relation to the so-called horizontal issues (of inter-ministerial dimension). 22 A. Nowak-Far, A. Michoński, Krajowa administracja..., p. 148. 38 The Sejm Review Third Special Issue / 2007

Agriculture, the Political and Security Committee, and, moreover, within the framework of the working groups and committees of the Council of the EU. It is worth emphasising also the obligation for the Prime Minister to participate in the work of the Council of the EU and the obligation for ministers (secretaries of state) to participate in the meetings of the EU Council (in its nine formations). In practice, this meant the participation of members of the government in over one hundred meetings a year (not counting the participation of representatives of government administration in preparatory committees and working groups). 39

ANNA WIĘCKOWSKA M.A., SILESIAN UNIVERSITY, KATOWICE

THE RIGHT OF VETO OF THE PRESIDENT OF THE REPUBLIC OF POLAND IN POLITICAL PRACTICE AFTER THE COMING INTO FORCE OF THE NEW CONSTITUTION*

I. INTRODUCTORY REMARKS The provisions of the basic law of our country and the practice of the functioning of the offi ce of the President of the Republic of Poland make this organ of state authority an active participant in the legislative process. The aim of this study is to investigate the potential that the President of the Republic of Poland has to infl uence the process of making law and the shape of promulgated laws by making use of the right to refuse to sign acts passed by Parliament, that is the use by the head of state of the right of veto in the course of the legislative process. The basis of the President’s competence in this respect is provided by Article 22 paragraph 5 of the Constitution of 2 April 1997. In this provision, the authors of the Constitution applied the model of presidency consistent to that previously established. The retention of the power of presidential veto had been the subject of discussion in the Constitutional Committee of the National Assembly [hereinafter CC NA]. The intention of the CC NA was to defi ne the function of the President of the Republic of Poland, belonging to the executive branch of power, as an arbiter and moderator; this function corresponds with the strengthening of his corrective role in regard to the

* This article was published in „Przegląd Sejmowy” No. 6(59)/2003. 40 The Sejm Review Third Special Issue / 2007 legislative system. The classical instrument for balancing the legislature by the executive is the control over bills that have been passed into law. Taking into consideration the signifi cance of the power of presidential veto, the CC NA devoted considerable time to discussing the issue and to achieving optimal legal regulation in this respect. The CC NA formulated an unambiguous defi nition of the mutual relations between the two legal tools which the President may use in response to a bill passed by parliament, i.e. the legislative veto and the application to the Constitutional Tribunal for adjudication on the conformity of the bill to the Constitution. It was acknowledged that the treatment of these as alternate tools is inconsistent with the function of the President as arbiter and moderator, since this would create the danger that fi rst he would be able to use one kind of veto and, if this did not bring about the desired effects, he would be able to halt the legislative process with the help of the other tool. Such actions would obstruct the work of Parliament1. The President, recognized as the guarantor of legislative effi ciency2, is equipped by the Constitution of 1997 with both the powers he had thereto possessed with respect to questioning a bill, but now these are alternative tools, where the decision of which to use falls within the discretionary power of the head of state. During the discussion in the CC NA a question appeared about the nature of the legislative veto. There were different views whether this ought to be an absolute veto or a postponing one and, bearing in mind the scope of its subject matter, whether a total or selective (partial) one3. In the end, the model of a total veto with a postponing effect was accepted. The next problem which the Committee had to solve was to determine the size of the majority that was required for the Sejm to overrule the presidential veto. The conclusions drawn from the practice up to that time and the memories of the confl icts in this area were not without signifi cance here. It must be remembered that the strength of the legislative veto is of key signifi cance for the position of the offi ce of the President of the Republic in the system of Polish government, ensuring at the same time a balance between the legislature and the executive. The starting point was a two-thirds majority of Deputies, required by the constitutional provisions at that time. During the discussions in May 1995, Deputy Aleksander Kwaśniewski [Union of the Democratic Left — SLD], chairperson of the CC NA, noticed that the require-

1 Here one could cite the practice applied by President Lech Wałęsa, whose ineffective vetoing of the act on amending the Act on the duties and rights of deputies and senators led to its questioning — this time effectively — before the Constitutional Tribunal. 2 The defi nition from the statement by the expert witness of the CC NA, Paweł Sarnecki, during the sitting of the CC NA on 30 May 1995, “Komisja Konstytucyjna Zgromadzenia Narodowego. Biuletyn” (hereinafter “CC NA Bulletin”) Booklet XX, p. 35. 3 For theoretical considerations on the subject of differences between particular kinds of legislative veto, vide J. Zaleśny, Partycypacja głowy państwa w ostatnich etapach procesu legislacyjnego, Warszawa 1999, p. 19–21. Anna Więckowska: The Right of Veto of the President of the Republic of Poland in Political Practice... 41 ment of a 2/3 majority “creates the need for such a shaping of the government coalition that it will have also at its disposal a majority of 2/3 votes in parliament, which in current European practice is almost impossible”. The majority coalition should have the possibility of operating effectively and supporting the policies of the government and the veto should be effective with regard to those propositions of systemic solutions “which provoke discussion within the government circles” and which could lead to a division in the coalition camp. The acceptance of a proposal for the Sejm to overrule the presidential veto by an absolute majority of votes would cause, according to Kwaśniewski, “in the situation of the existence of a parliamentary majority, the veto would be merely a threat and not a real tool that could be practically applied”4. In view of divergent opinions on this issue voiced by members of the CC, two variants were included in the homogeneous draft of the Constitution prepared at that time: an absolute majority and a 2/3 majority, with the choice of one of them left to be made later. During its sitting on 16 October 1996, the CC arrived at the conclusion that it would not be diffi cult to obtain an absolute majority of votes in the Sejm in many instances, and the presidential veto is of great signifi cance when it comes to a difference of opinion between the legislature and the executive. Senator Kazimierz Działocha (SLD), citing Article 10 of the draft Constitution, which deals with the principle of the separation of powers, argued that recognising the President as an organ of the executive power has certain consequences for the system of the separation of powers and their checks and balance relationship; this fact, in his opinion, would bring about the necessity of raising the threshold of diffi culty for the Sejm to overrule the veto of the President. Senator Działocha supported the proposition of at least a 3/5 majority being required to overrule the veto. At that sitting, the Committee accepted a 2/3 majority of votes as being required to overrule the presidential veto (in the presence of at least half the statutory number of Deputies)5. The CC NA once again considered the issue at the sitting on 14 January 1997. Deputy Aleksander Bentkowski [Polish Peasants’ Party — PSL] proposed that the 2/3 majority be replaced by a 3/5 majority. The representative of the President of the Republic of Poland, Ryszard Kalisz, presented the viewpoint of the head of state on this subject: “Bearing in mind the actions undertaken, which resulted in a political agreement, President Aleksander Kwaśniewski, wishing to emphasise that any solution of that kind should be considered without reference to any particular person who might at that time be holding the offi ce of President of the Republic of Poland, expresses at the same time his opinion that he is ready — within the framework of con- ciliation — to accept a majority of 3/5 of votes when the bill is to be repassed”. Soon afterwards, the Committee, acknowledging that a qualifi ed majority must be required

4 Speech by Aleksander Kwaśniewski during the sitting of the CC NA on 30 May 1995, “CC NA Bulletin” booklet XX, p. 43. 5 Vide “CC NA Bulletin” booklet XL, p. 63–64. 42 The Sejm Review Third Special Issue / 2007 to overrule the legislative veto, and that the size of such majority must be smaller than that in the thereto existing constitutional provisions, expressed itself in favour of the solution that a qualifi ed majority of at least 3/5 of votes cast in the presence of at least half of the statutory number of Deputies be required for the repassing of the bill by the Sejm6. To sum up the above remarks, it must be added that the presidential power of veto is not subject to the requirement of a counter-signature by the Prime Minister or the government. The power under discussion is one of the alternative legal tools enabling the head of state to initiate modifi cation of bills passed by Parliament (next to the application to the Constitutional Tribunal for the adjudication about the conformity of a bill to the Constitution). The requirement of obtaining a 3/5 majority in the presence of at least half of the statutory number of Deputies makes the right of veto a real measure of infl uencing the outcome of the legislative process in which Parliament has to take into account the opinion of the President on the law that is being made. When analysing the issue of the presidential veto, the scope of its subject matter must also be considered. In accordance with the basic law, the President has the right to veto the decided majority of bills but he does not have the right to challenge under this procedure only the Budget Act (cf. Article 224 paragraph 1) and also bills amending the Constitution, in relation to which he does not have any power of review (cf. Article 235 paragraph 7). The next problem requiring consideration is the situation in which the Sejm has not managed, before the end of its term, to complete the legislative proceedings initiated as a result of the President’s motion for the further consideration of the bill. In accordance with the principle of discontinuation, accepted in the work of Parliament, the end of the Sejm’s term brings with it the necessity of halting the work on those bills (with the exception of bills submitted by citizens) which are under consideration. This principle applies also to applications by the President for reconsideration of the bill. This approach was upheld by the Legislative Committee which at the sitting on 16 November 1993 considered the matter of the grounds for the Sejm of the 2nd term to deal with the veto of the President of the Republic of Poland against bills passed by the Sejm of the previous term. The Committee expressed the view that “together with the end of the term of the Sejm, there also ex- pires the legislative process with reference both to bills submitted and to bills already passed but remaining at further stages of the legislative process”7. This custom has lost none of its relevance in the new constitutional order, since it is written into the specifi c nature of the work of Parliament, which, as the result of the electoral act, has changed its personal composition and becomes a different body from its predecessor, also from the political point of view.

6 Vide “CC NA Bulletin” booklet XL, p. 63–64. 7 The opinion of the Legislative Committee in the matter of the President’s veto with regard to acts passed by the Sejm of the previous term, quoted after “Przegląd Sejmowy” 1994, No. 1, p. 87. Anna Więckowska: The Right of Veto of the President of the Republic of Poland in Political Practice... 43

The next important matter that cannot be ignored when discussing the structure of the presidential veto is the necessity for the head of state to justify his application for reconsideration of a bill. In Article 122 paragraph 5, the authors of the Constitution made it clear that “If the President of the Republic has not made reference to the Constitutional Tribunal in accordance with paragraph 3, he may refer the bill, with reasons given, to the Sejm for its reconsideration”, thereby imposing upon the head of state the obligation of presenting to Parliament the reasons for the necessity of a further analysis of the legal regulation included in the bill passed. The obligation to justify the application for reconsideration of an act of Parliament is, therefore, a fundamental premise of the constitutional structure under discussion. The authors of the Constitution, when establishing the tool of the legislative veto, did not give the person holding the offi ce of President of the Republic of Poland any instructions on when to use it. Marcin Kudej put forward the thesis that “the proper holding of this offi ce ought not to be connected with the opposition to the policy of the government and its parliamentary majority”8. In view of the fact that in Article 146 paragraph 2 of the Constitution the legislator establishes the principle of the assumed competence of the Council of Ministers to conduct the affairs of state not reserved to other state organs, this approach appears to be legitimate. In response to the question under what circumstances the President of the Republic of Poland ought to interfere in the legislative activity of Parliament, the doctrine provides — with reference to the legal tool of the veto — that the justifi cation of the President’s application ought to be concentrated around the general tasks of the head of state as specifi ed in the Constitution of the Republic of Poland9 and, in accordance with Article 126 paragraph 2, “The President of the Republic shall ensure observance of the Constitution, safeguard the sovereignty and security of the State as well as the inviolability and integrity of its territory”. At this point it is worth recalling the view of Ryszard Balicki who remarked that the President, making use of the right of veto as a personal prerogative, places his offi ce in confl ict with the government and the majority supporting it in Parliament. In his opinion, the head of state may, thanks to this, participate in current political events as a supporter of the parliamentary minority and at the same time make it diffi cult for the Council of Ministers to conduct the internal policy of the state. In order for the Council to govern effi ciently, it must have a 3/5 majority in the Sejm or origi- nate from the same political camp as the President. Balicki suggested imposing limi-

8 M. Kudej, Postępowanie ustawodawcze w Sejmie RP, Warszawa 2002, p. 119. 9 Vide ibidem. Vide also P. Sarnecki, Prezydent Rzeczypospolitej Polskiej. Komentarz do przepisów, Kraków 2000, pp. 88–89. (This author noticed that the President’s supervision can cover not only the constitutionality of an act but also its appropriateness; “in particular this supervision should concern checking whether there had been a breach of the values as whose guardian the Constitution has appointed the offi ce of the President”.) 44 The Sejm Review Third Special Issue / 2007 tations upon the president’s power of veto by introducing the requirement of obtaining a counter-signature10. As concerns this proposition, it should be noticed that if the intention of the authors of the Constitution was to introduce a parliamentary-cabinet system of government mixed with some elements of presidential one and based on the principle of a balance of powers, then it seems legitimate to confer on the President of the Republic of Poland the right of veto which would not be illusory but a real instrument enabling him to infl uence the legislative decisions of Parliament. It should be remembered that both Parliament (a collegiate body) and the President of the Republic (a single-person agency) are elected in general elections. The legitimacy of the President is the same as that of Parliament, or maybe even stronger. When electing the head of state, the voters after all pay particular attention to the qualifi - cations and personal qualities of the candidate and his political reputation; his affi - liation to a concrete political grouping is not always a decisive factor. The voters choose the person who, in their opinion, will represent Poland with due dignity on the international stage. The theoretical premises indicated above for the use of the right of veto are currently being verifi ed in the institutional practice of Aleksander Kwaśniewski, the fi rst President of the Republic of Poland to hold the offi ce after entering into force of the new Constitution. His presidency will be of key importance for establishing of the constitutional custom in relation to the presidential veto — in view of the re- strained legal regulation of this tool in the basic law. There will also take place a more precise defi nition of the content and constitutional meaning of the notion of justifi ed application. Bearing in mind the current political practice, it will become possible to adopt a standpoint on the matter of whether the undertaking of actions intended to “eliminate” the presidential powers from the Constitution is justifi ed. In analysing the effects of over one year’s work (up to the end of 1998) of the fi rst President to hold offi ce after the coming into effect of the new Constitution, Balicki put forward the thesis that “we are witnesses of the creation of a new constitutional tradition based on the premise that the head of state does not hinder the performance of the statutory tasks arising from the electoral programme of the ruling coalitions”11. Only from the perspective of political practice will it become apparent whether this good, as it would seem, tradition of non-interference in the policy line of the government and the parliamentary majority supporting may become a stable element of the exercise the offi ce of the President of the Republic of Poland.

10 Vide R. Balicki, Weto prezydenckie jako element postępowania legislacyjnego, “Przegląd Sej- mowy” 1999, No. 3, p. 52–53. 11 Ibidem, p. 53. Anna Więckowska: The Right of Veto of the President of the Republic of Poland in Political Practice... 45

II. THE USE OF THE LEGISLATIVE RIGHT OF VETO After the coming into effect of the Constitution in 1997, President Aleksander Kwaśniewski submitted to the Sejm 29 applications for reconsideration of bills (these data are for the period to the end of November 2003). The analysis of the argumentation included in these applications is of great signifi cance in establishing of a certain characteristic of the use of this tool and actual practice in this respect. The analysis of selected applications by President Kwaśniewski for reconsideration of bills, in the context of the role of the President of the Republic of Poland as the arbiter who ensures the observance of the Constitution, is the subject of my further considerations. I am trying, in particular, to examine whether the head of state is abusing his right of veto and whether he is “over-interpreting” the provisions of the Constitution and whether he is aware of the signifi cance of the basic law in the building up state democratic structures. The problem of the conformity of certain provisions of the Act of 18 December 1997 on the revalorization of certain remunerations, retirement pensions and disability pensions and on the amendment of some acts (in their part concerning the principles of the revalorization of service pensions and disability pensions of professional soldiers and offi cials of state organs, referred to in Article 1 paragraphs 2 and 3 of that Act) with the principle of the protection of rights justly acquired as inferred by the Constitutional Tribunal from the principles of a “rule of law” and from the confi - dence of citizens in the state was the subject of assessment by the President in the justifi cation of the application for reconsideration of that Act. The way in which the legislator changed the principles of revalorization of service pensions and disability pensions of the uniformed services was for unfavourable to them12. The government, which submitted the bill, explained that the modifi cation was necessitated by unifi cation of the principles of the revalorization of retirement pensions and disability pensions in accordance with the “Programme for the reform of the system of social security”, which had been adopted by the Sejm. The President was aware of the fact that the protection of acquired rights did not have an absolute character in the jurisprudence of the Constitutional Tribunal and, because of this, the change in the retirement pension and disability pension benefi ts which was not benefi cial for a certain group of citizens was not statutorily forbidden. Although rightly acquired rights come under particularly strong legal protection, their limitation — in particular, when there is taking place a reform of social security in the face of bad condition of state fi nances — is admissible13. The necessity for implementing this reform would have been, according to the head of state, a suffi cient

12 The act abolished the direct relation between an increase in the retirement pensions and disability pensions of the so-called uniformed services and an increase in the remuneration of professionally active soldiers and functionaries, introducing in place of this relation revalorization based on the indicator provided for the revalorization of workers’ and farmers’ benefi ts. 13 Vide J. Jaskiernia, Zasady demokratycznego państwa prawnego w sejmowym postępowaniu usta- wodawczym, Warszawa 1999, p. 306–307. 46 The Sejm Review Third Special Issue / 2007 reason for changing the legal regulation of retirement pension and disability pension benefi ts if it had not been for the style in which the Sejm performed this operation. The President emphasised that “the legislator ought […] to make the maximum possible effort to ensure that the new, less benefi cial legal regulations did not come as a surprise to the benefi ciaries. This did not, however, happen in the case of the questioned act, which comes into effect without appropriate adaptation period. The legislator applied the technique of immediate effect of statute, which allows a quick change to be made in the law. This constitutes a clear breach of the constitutional principle of the state ruled by law as expressed in Article 2 of the Constitution of the Republic of Poland”14. In support of this view, the President cited one of the judgements of the Constitutional Tribunal from 1992 in which the Tribunal held that “the legislator ought to provide maximum legal security (in a given situation) to the persons affected by new legal regulations. Since, under the rule of law, citizens ought not to be surprised by sudden regulations that are not benefi cial for them, the legislator, in order to ensure security, ought to make use of the technique of transitional provisions, directing the regression of benefi ts over a period of time, or at least a suffi ciently long period of vacation legis, so that the interested parties can adapt themselves as far as is possible to the amended legal situation”. The lack of a vacation legis is, after all, a breach of the constitutional principle of a state ruled by law, “if it leads to breach of acquired rights or their expectancy”15. The President also noticed that, in accordance with the line of jurisprudence of the Constitutional Tribunal, new and less benefi cial legal regulations ought to introduced in compliance with all the requirements of democratic procedures, in this case after negotiations with the interested parties or their representatives16. The act of 18 December 1997 was not passed again by the Sejm as a result of the voting which took place during the 7th sitting of that Chamber on 30 December 1997. By using his veto to the Act of 11 December 1997 on the amendment to the act on family planning, the protection of the human foetus and the conditions under which termination of pregnancy is admissible, the President did not agree with the

14 The justifi cation of the reference lodged by the President of the Republic of Poland on 23 De- cember 1997 for reconsideration by the Sejm of the Act of 18 December 1997 on the revalorization of some remunerations, retirement pensions and disability pensions and on the amendment of some acts (The Sejm of the Republic of Poland, 3rd term, print No. 146, p. 2). 15 The judgement of the Constitutional Tribunal on 11 February 1992, Call No. K.14/91, OTK 1992, part I, item 7, p. 130. 16 Vide the justifi cation of the application referred to in footnote 14 (p. 3). Apart from legal arguments, the President also presented reasons of a different nature, including the fact that he had noticed that a separate legal regulation of the system of retirement pension and disability pension benefi ts in relation to the so- called uniformed services was universally accepted by other employment groups, which did not view this as a privilege granted to these services but as compensation for the hardships associated with performing the duties and tasks entrusted to them. Anna Więckowska: The Right of Veto of the President of the Republic of Poland in Political Practice... 47 proposals presented by the Council of Ministers and accepted by the Sejm to aban- don both the introduction the “Knowledge of human sexual life” as a compulsory subject in school education and the implementation of a system of training and im- proving the qualifi cations of teachers within the scope of this subject. The President found insuffi cient the arguments presented in the justifi cation of the Act and did not accept them First of all, the argument that the budget expenditure for education would be reduced by 51,013,000 PLN in the 1998 fi scal year was unfounded since, in the opinion of the head of state, there were no premises whatsoever to justify such a calculation. Secondly, the argument stating that the thematic scope of the subject “Knowledge of human sexual life” was included in the “Programme foundations of compulsory school courses” was unacceptable in view of the fact that the provision about the ministerial obligation to implement a system preparing teachers to teach this subject was to be removed from the Act on family planning, the protection of the human foetus and the conditions under which termination of pregnancy is admissible17. The President also stated — probably, in consideration of Article 9 of the Constitution — that the Republic of Poland had accepted without reservations the fi - nal resolutions of the International Conference on Population and Development (Cairo 1994) and the UN 4th World Conference on Women (Beijing 1995) in which sexual education in schools was recognised as the norm18. He noticed also that the Constitutional Tribunal in its judgement of May 1997 had not stated any contradiction between two statutory provisions later deleted by Parliament (by the Act of 11 December 1997) and the then existing constitutional provisions19. The President stated further that “Poland has one of the most restrictive laws concerning the conditions under which it is permissible to terminate a pregnancy. The re-

17 Vide the justifi cation of the reference lodged by the President of the Republic of Poland on 26 De- cember 1997 for reconsideration of the Act of 11 December 1997 on the amendment of the Act on family planning, the protection of the human foetus and the conditions under which termination of pregnancy is admissible (The Sejm of the Republic of Poland, 3rd term, Sejm Paper No. 152, p. 3). The President supposed that the matters falling within the scope of the subject “Knowledge of human sexual life”, passed on by teachers without the appropriate training, would not be taught in accordance with the then contemporary state of knowledge and he cited the case from the judgements of the European Court of Human Rights in Strasbourg from 1976 (Kjeldsen v. Denmark), in which this organ held that “the state, in performing its functions within the scope of teaching and education, must take care that the information or knowledge included in the programme be passed on in a way that is objective, critical and with a pluralistic viewpoint. The state is not allowed to conduct any indoctrination which could be regarded as an infringement of the religious or philosophical convictions of the parents” (quoted after the justifi cation of the application [...] of 26 December 1997..., p. 3–4). 18 Vide ibidem, p. 4. The fi nal declarations adopted at these conferences are simply a directive for national legislators and they do not have absolutely binding force, but a rational legislator ought to respect the obligations assumed by the state, particularly in matters acknowledged by the international community as the norm in the developed countries. 19 The Constitutional Tribunal acknowledged that both these two provisions are not inconsistent” with constitutional provisions (vide the judgement of the Constitutional Tribunal of 28 May 1997, Call No. K.26/96 OTK ZU 1997, No. 2, item 19, p. 148). 48 The Sejm Review Third Special Issue / 2007 sult of the existence of such legal norms must be very responsible, sensible and professional sexual education in schools. The best device to prevent people from resorting to abortion is knowledge of the consequences of the premature sexual activity by young people; knowledge professionally passed on by well-qualifi ed teachers”20. The Act of 11 December 1997 was not passed again by the Sejm as a result of the voting which took place during the 7th sitting of this chamber on 30 December 1997. The next statute with regard to which the President applied his legislative veto was the Act of 1 July 1998 on the introduction of a basic three-tier territorial division of the state. In the constitutional regulation of territorial local government (Chapter VII of the Constitution of the Republic of Poland) there is no defi nition of the particular conditions that should be met by the basic territorial division of the state. The authors of the Constitution left the legislator considerable margin in the shaping of local government structures. In the opinion of the President, this freedom was incompetently exercised by the creators of the act which, in particular, did not satisfy the requirements defi ned in Article 15 paragraph 2 of the Constitution, since it did not take into account the social and cultural ties existing in local communities. It seemed to the head of state that the division of Poland into 15 voivodships [provinces] is inappropriate. It is especially diffi cult to justify the omission, against the opinion of the local communities, the Staropolski and Środkowopomorski regions. The economic potential and social and cultural ties merited, according to the President, inclusion of these regions (as separate provinces) in the basic territorial division of Poland. In the justifi cation of the presidential application for reconsideration of the above-mentioned act by the Sejm, there appeared the postulate of introducing a division of the country into 17 voivodships21. The President faulted the creators of the act for not carrying out the consultations with all interested social groups as required by the European Charter of Local Self- -Government which had been ratifi ed by Poland. According to the Charter, each change in the boundaries of local communities requires such prior consultation. This requirement was unfoundedly ignored by the authors of the Act of 1 July 1998 who had not obtained social acceptance for the division into 15 voivodships. The act of 1 July 1998 was not passed again by the Sejm as a result of the voting which took place during the 23rd sitting of this chamber on 3 July 199722.

20 Justiﬁ cation of the application [...] of 26 December 1997..., p. 5. 21 Vide justiﬁ cation of the reference of the President of the Republic of Poland of 2 July 1998 for reconsideration of the Act of 1 July 1998 21 on the introduction of a basic three-tier territorial division of the state (The Sejm of the Republic of Poland, 3rd term, Sejm Paper No. 465, p. 1–3). 22 It is worth noting at this point that in the same month Parliament adopted a compromise solution, creating (on 1 January 1999) 16 voivodships, by the Act of 24 July 1998 on the introduction of a basic three-tier territorial division of the state (Dziennik Ustaw [Journal of Laws] No. 96, item 603 with further amendments). Anna Więckowska: The Right of Veto of the President of the Republic of Poland in Political Practice... 49

In applying the veto with regards to the Act of 9 November 1998 on the Institute of National Remembrance — the Commission for the Prosecution of Crimes against the Polish Nation, the President argued that the Act did not meet the fundamental requirement specifi ed in Article 51 paragraph 3 of the Constitution, since it did not guarantee every interested party access to the documentation generated and collected on him or her. The Act did not provide for the obligation of informing those interested parties on whose subject there existed documents or collections of data confi r- ming their work in the state security services or cooperation with these organs about the existence of such documents and collections of data. In the opinion of the head of state, the challenged Act “did not respect the principle of equality before the law, the principle of the judicial administration of justice and, in posing a threat to the right of the citizen to due process in criminal court proceedings, undoubtedly breached the constitutional order”23. The subject of the applicant’s criticism towards the Act was also its procedure for the appointment or election by the Sejm (by way of a resolution passed by a simple majority of votes) of the chairperson and members of the Board of the Institute of National Remembrance, whose terms of offi ce are, respectively, 7 and 9 years. It was his conviction that this regulation favoured the dominant political groups in the Sejm which did not have to consider the opinion of the parliamentary opposition, which constituted a threat to the reliability of the work of the newly created institution24. The President did not convince the Deputies and, consequently, the Act of 9 November 1998 was repassed by the Sejm as a result of the voting which took place during the 39th sitting of this chamber on 18 December 1998 (and, therefore, it is cited as the Act of 18 December 1998). The President, in refusing to sign the Act of 8 January 1999 on the Offi ce of the General Public Prosecutor of the Republic of Poland, intended to prevent legal chaos in the fi eld of the protection of the property rights and interests of the State Treasury. In referring this act for further consideration, he raised the point that the systemic function and position of the General Public Prosecutor’s Offi ce was fl awed since this offi ce “had been situated as a central state organ subordinated to the Prime Minister”, which could be seen “as a peculiar expression of the Prime Minister’s lack of confi - dence in the actions of the Minister of State Treasury and other organs statutorily empowered to undertake actions in the sphere of the State-owned property”. He then stated that the legal regulation included in the act under discussion was systemically inconsistent since, in accordance with the Act of 8 August 1996 on the offi ce of the Minister of State Treasury, it was this organ that was “appointed to protect the interests of the State Treasury in the scope of managing the property of the

23 Justiﬁ cation of the reference by the President of the Republic of Poland of 4 December 1998 for reconsideration of the Act on the Institute of National Remembrance — the Commission for the Prosecution of Crimes against the Polish Nation (The Sejm of the Republic of Poland, 3rd term, Sejm Paper No. 770, p. 8–9). 24 Vide ibidem, p. 9. 50 The Sejm Review Third Special Issue / 2007

State Treasury” (including its privatisation) and was “empowered to effectively op- pose the actions of state legal persons in the scope of disposing of particular assets and also obliged to conduct representation in proceedings at law in civil matters arising from the execution of the property rights of the State Treasury”25. The reason for the President’s critical attitude to the act mentioned above was also the fact that neither has it contained the principle of the responsibility of the Offi ce of the General Public Prosecutor as an organ of the state authority nor established any individual responsibility of the chairperson of this organ for the exercise of its tasks, whereas, in accordance with the provisions of the basic law (Articles 157 and 156), the Minister of State Treasury is constitutionally accountable for his actions to both the Sejm and the Tribunal of State26. In summing up the justifi cation for his reference, the President also noticed that the creators of the act had not convincingly defi ned the costs that would follow the execution of the Act, and, given the then current condition of the state’s fi nances, the fi nancial effects of implementing the act had constituted one of the decisive reasons for introducing the Act to the legal system. The President acknowledged that the numerous legal defects in the act meant that “its introduction would seriously destabi- lise the legal order of the state”27. The Act of 8 January 1999 was not passed again by the Sejm as a result of the voting which took place during the 45th sitting of this chamber on 4 March 1999. The basic reason for which the President did not sign the Act of 20 November 1999 on the amendment to the Act on income tax from natural persons and to some other acts was the “violation of the reliable legislative procedure” during the passing of the act by the Sejm. In the opinion of the head of state, “the lodging by a Deputy from the ruling coalition of an application for the rejection of the bill in order that another Deputy, after the vote on it by the Public Finances Committee, be able to lodge a minority motion whose content would be the text of the bill rejected by the Committee, was a glaring example of this”. Furthermore, “it is unacceptable in a democratic state that the legislative proceedings, in particular to change the system of taxation, are carried out without the possibility of genuine discussion”28.

25 Justifi cation of the reference by the President of the Republic of Poland of 27 January 1999 for reconsideration of the Act of 8 January 1999 on the Offi ce of the General Public Prosecutor of the Republic of Poland (The Sejm of the Republic of Poland, 3rd term, Sejm Paper No. 896, p. 2, 3 and 6). 26 Vide ibidem, p. 2. In the further part of the justifi cation, the President also indicated other fl aws in the legislative solution presented to him for signature. 27 Ibidem, p. 6. 28 Justifi cation of the reference by the President of the Republic of Poland of 28 November 1999 for reconsideration of the Act of 20 November 1999 on the amendment of the Act on income tax from natural persons and on the amendment of certain other acts (The Sejm of the Republic of Poland, 3rd term, Sejm Paper No. 1538, pp. 2–3). In the President’s opinion, the procedure of three readings, which was here ignored, allows for compromises to be reached, for opinions to be expressed by the parliamentary minority and for amendments to be introduced to the bill. Anna Więckowska: The Right of Veto of the President of the Republic of Poland in Political Practice... 51

The President cited the arguments referred to by the Constitutional Tribunal in one of its judgements of 1998: “The essence of parliamentary work is its multi-stage nature — each legislative decision, before it comes into effect, has to go through a series of successive stages of procedure. Its purpose is to allow suffi cient time for refl ection and thinking, so that the fi nally accepted text can be the result of deliberation by various parliamentary bodies in time intervals defi ned by the law”29. The essence of a democratic state ruled by law is government by the majority but with respect for the rights of the minority. The fact whether this principle was re- spected during the parliamentary work has a fundamental signifi cance for an assessment of the correctness of the procedure of creating law. The President also argued that “the minority motion is an instrument, provided for in the rules of procedure, guaranteeing those Deputies who lose a vote in the committee that their reasons and propositions will be considered at a plenary sitting of the Sejm. The governing coalition used this measure to prevent the Sejm from considering the standpoint of the opposition. Allowing the opposition to speak is one of the standards of a democratic state”30. The method by which the questioned bill was passed drew criticism from the President since, in his opinion, it posed a threat to the democratic state ruled by law, and due to the lack of an effective reaction to such an intolerable practice the limiting the rights of Deputies could become a custom and, as a consequence, adversely affect the quality of Polish parliamentarism. “Such a method of passing bills cannot take place also in the future, irrespective of the composition of the governing coalition and of the opposition, and irrespective of the material content of the bill”31. The Act of 20 November 1999, according to the President, also breached another constitutional principle – the principle of social justice, as it included solutions which were in many respects more benefi cial to high-income earners than to low-income earners, despite the fact that the latter constitute a decided majority of Polish society32. It is worth mentioning here that the interpretation of the principle of social justice, enshrined in Article 2 of the Constitution and included in the justifi cation of the application lodged on 28 November 1999, was made in the context of its preamble. The President acknowledged in this way that this solemn introduction to the basic law, accepted as the result of an agreement reached after long negotiations, has an important normative signifi cance and serves as a determinant of the actions of the head of state as the highest representative of the Republic of Poland and as the guarantor of the observance of its Constitution. The Act of 20 November 1999 was not passed again by the Sejm as a result of the voting which took place during the 65th sitting of this chamber on 3 December 1999.

29 The judgement of the Constitutional Tribunal on 23 February 1999, Call No. K.25/98, OTK ZU 1999, No. 2, item 23, p. 138. 30 Justiﬁ cation of the reference [...] of 28 November 1999..., p. 2. 31 Ibidem, p. 4. 32 Vide ibidem, p. 4–5. 52 The Sejm Review Third Special Issue / 2007

The Act of 8 September 2000 on the principles of the realisation of the programme of the general enfranchisement of citizens of the Republic of Poland met with the considerable criticism from the President. In the opinion of the head of state the legal act given to him for signature might raise doubts from the legal, social and economic points of view. What is also surprising is that the unconstitutional nature of the proposed solutions had been presented by many experts during the parliamentary work on the draft of this act, yet the Sejm majority had voted for its passage anyway. The Enfranchisement Act had many legal defects. Among the most important was the breach of basic constitutional rights. The Act was inconsistent with the principle of the democratic state governed by the rule of law, established in Article 2 of the Constitution, and certain principles which stem from it, including the principle of correct legislation (which is linked with the principle of clarity of the law), as well as the protection of ownership rights. Furthermore, it breached the constitutional principles of equality and social justice. “The Act introduces inequality among the participants of the process of granting property rights since, in transferring property from one subject to another, it does so free of charge to the benefi t of subjects mentioned in the Act, e.g. property tenants and holders of the perpetual usufruct rights. On the other hand, in relation to other groups of subjects, it sets conditions which subjects acquiring the right of ownership ought to meet with respect to the former owner. This concerns those members of housing cooperatives lodging applications to acquire ownership of a cooperative fl at […] The Act provides for the transfer of property rights from the State Treasury and from communal property to all citizens. These kinds of properties are named in the preamble of the Act but the scope of operation of the Act also includes the property of housing cooperatives and — in the case of company-owned dwellings — the property of legal entities and natural persons”33. The unconstitutional nature of these solutions cannot give rise to any doubts. The President noted that the execution of the Enfranchisement Act would lead to a feeling of grievance among those citizens who had in previous years obtained the ownership of dwellings from municipalities and the State Treasury. The Act would have threatened the functioning of housing cooperatives and might even have caused their liquidation. Had this unfortunate legal act gone into effect, it would have brought many costs in its wake, which in turn might have threatened the state budget. The Act of 8 September 2000 was not passed again by the Sejm as a result of the voting which took place during the 88th sitting of this chamber on 13 October 2000. The President supported the idea of the creation of the Central Offi ce of Public Administration, a central offi ce which would concentrate the functions connected with the ensuring of the proper functioning of administration in the state. The com-

33 Justifi cation of the reference of the President of the Republic of Poland of 11 September 2000 for reconsideration of the Act of 8 September 2000 on the principles of the realisation of the programme of the general enfranchisement of citizens of the Republic of Poland (The Sejm of the Republic of Poland, 3rd term, Sejm Paper No. 2201, p. 3–4). Anna Więckowska: The Right of Veto of the President of the Republic of Poland in Political Practice... 53 plex structure of public administration, divided among different organisational units of government and local government, and also other subjects, requires the appropriate checks and controls, coordination, supervision and management. In the opinion of the head of state, these functions should not be performed by the supreme organs appointed to implement the policy of the state. Unfortunately, the Act of 21 December 2000 on the offi ce of the Chairperson of the Central Offi ce of Public Administration, as presented for the President’s signature, was fl awed. First of all, there was no justifi cation for setting up an offi ce to take over the competence in the fi eld of public administration while retaining the department of government administration defi ned as “public administration”; as a result there could not have been a clear division between the competences of the organs34. Secondly, the systemic solution proposed by the Act was improper. In the constitutional concept of the exercise by the government of its executive power, the systemic position of the Prime Minister can be defi ned as managerial and representative, whereas with reference to public administration generally, he has a supervisory function and furthermore he is the head of the civil service corps. However, in the solution adopted in the Act of 21 December 2000, the Prime Minister was equipped with the competence of the minister heading a department of government administration, even though the same Act allowed the Prime Minister to assign the tasks connected with directing the department of “public administration” to the minister (cabinet member) not heading a department of government administration. In consequence, in the hands of the Prime Minister there would be concentrated the tasks of a minister and, at the same time, the exercise of supervisory powers over the minister. The President had doubts about this solution, since an effective performance of the functions of supervision of one’s own activity is not possible. The solution discussed here was also inconsistent with the concept of the reform of the central administration of the state, which was accepted in 1996 and which was based on the principle of fl exibility in determining the composition of the government, since the binding power of statute would involve the necessity of the legislator interfering on the occasion of every change in the scope of directing the department of “public administration”. Thirdly, the coming of the Act into effect would cause disruptions in the system of the political responsibility of the government. The political responsibility of the

34 In accordance with the concept of the drafters, there should have taken place the elimination of this department and in effect there was no justifi cation for appointing a minister responsible for matters of public administration. This construction was, however, deformed during parliamentary work, in connection with which the result of implementing the act would have been an increase in the administrative apparatus of the state by yet another central level. Vide the justifi cation of the reference of the President of the Re- public of Poland of 12 January 2001 for reconsideration of the Act of 21 January 2000 on the Offi ce of the Chairperson of the Central Offi ce of Public Administration (The Sejm of the Republic of Poland, 3rd term, Sejm Paper No. 2456, p. 3–4). 54 The Sejm Review Third Special Issue / 2007

Prime Minister is based differently from the analogous responsibility of other members of the government. The Prime Minister, in accordance with the Constitution, bears political responsibility before the Sejm “together with the whole government. Therefore, on the basis of the Act, individual political responsibility for directing the department of « public administration » would not be enforced, since it is not possible for the Sejm to pass a motion of no confi dence individually with regard to the Prime Minister in the case of the inappropriate performance of the tasks of the minister directing the department of «public administration»”35. In the opinion of the President, the Act in the version passed on 21 December 2000 would lead neither to improvement in the management of the State affairs nor to the better functioning of public administration. Another defi ciency in the Act was the lack of specifi cation of the real fi nancial consequences of its implementation. It must be emphasised that the passing of the Act took place towards the end of the Sejm’s term and, therefore, its legal and systemic and budget consequences would have burdened the government formed in the next term. The Act of 21 December 2000 was not passed again by the Sejm as a result of the voting which took place during the 101st sitting of this chamber on 16 February 2001. In refusing to sign the Act of 7 March 2001 on reprivatisation, the President stated that the Act introduced an expensive model of this process and its realisation would cause fi nancial effects which would impose a huge burden on the country’s economy. “An analysis of the legitimacy of subjecting public property of signifi cant value to reprivatisation is possible only within the context of the foreseen situation and the tasks of public fi nances for the years 2002–2005 with the perspective of the year 2010; furthermore, […] there can be no doubt that the designation of part of the property for reprivatisation in a signifi cant way diminishes the future income of the State from privatisation. […] In this situation [..] the decrease in the income from privatisation in future years as a result of designating part of the property for reprivatisation will either lead to the need for increasing the budget defi cit or cause reduction of other expenditure for social or pro-development projects.” The President emphasised that “every loss in the income of the State means the need to increase its debt burden by way of issuing securities and, in consequence, a further increase in interest rates, a weakening of economic growth and deeper unemployment, which today is already approaching a level threatening the outbreak of social discontent”36. The second argument speaking in favour of the refusal to sign the Act was the fact that in the opinion of the head of state it remained in contradiction to the provisions of the Constitution, in particular with the principles of a democratic state governed by the rule of law, the principle of social justice, equality before the law and

35 Ibidem, p. 8. 36 Justifi cation of the reference of the President of the Republic of Poland of 22 March 2001 for reconsideration of the Act of 7 March 2001 on reprivatisation (The Sejm of the Republic of Poland, 3rd term, Sejm Paper No. 2719, p. 3-4). Anna Więckowska: The Right of Veto of the President of the Republic of Poland in Political Practice... 55 the protection of the rights of ownership and inheritance. Drawing on the jurisprudence of the Constitutional Tribunal, the President pointed out, among other things, that “the differentiation in the legal situation of similar subjects may be admissible, but it must be well-grounded and therefore justifi ed. The lack of justifi cation means that the differentiation takes on the nature of an intended elimination and is therefore in contradiction to Article 32 paragraph 2 of the Constitution of the Republic of Poland”37. The Act was not passed again by the Sejm as a result of the voting which took place during the 109th sitting of this chamber on 25 May 2001. The President, having in mind the fi nancial security of the state and considering the budgetary effects of executing the questioned acts in the context of a high defi cit, signifi cantly exceeding the level provided in the budget act, refused in the last ten days of August 2001 three acts of 5 July 2001: — the Act on the amendment to the act on income tax from natural persons and on the amendment of the act on fl at rate income tax on some gross receipts of natural persons38; — the Act on annual family allowances39; — the Act on family allowances for large families40. The purpose of the President’s action was not to thwart the noteworthy efforts of the government. He justifi ed his veto in relation to these three acts exclusively by his concern for the state of public fi nances. Increasing the budget defi cit could after all in future years lead to destabilisation of the state, making it incapable of fulfi lling its fundamental tasks41. In the middle of September 2001, the President referred to the Sejm for reconsideration three “insurance” Acts of 23 August 2001: — the Act on insurance activity; — the Act on insurance agencies;

37 Ibidem, p. 12. 38 Vide justifi cation of the reference by the President of the Republic of Poland of 27 August 2001 for reconsideration of the Act of 5 July 2001 on the amendment of the Act on income tax from natural persons and on the amendment of the Act on fl at rate income tax on some gross receipts of natural persons (The Sejm of the Republic of Poland, 3rd term, Sejm Paper No. 3365). This act foresaw tax concessions of a pro- family nature; the essence of the concession depended on deducting from income tax an appropriate part of the quota, decreasing the tax in relation to the number of children in the family, with the proviso that these deductions would only be made in the case of persons in the fi rst bracket of the tax scale. 39 Vide justifi cation of the reference by the President of the Republic of Poland of 27 August 2001 for reconsideration of the Act of 5 July 2001 on annual family allowances (The Sejm of the Republic of Po- land, 3rd term, Sejm Paper No. 3364). 40 Vide justifi cation of the reference by the President of the Republic of Poland of 22 August 2001 for reconsideration of the Act of 5 July 2001 on family allowances for large families (The Sejm of the Re- public of Poland, 3rd term, Sejm Paper No. 3362). 41 Towards the end of August 2001, the applications of the President were referred to three Sejm committees: Public Finances, Social Policy and Family. They were not considered by the Sejm before the end of the 3rd term, and in connection with the constitutional custom of the discontinuation of parliamentary work they became pointless, since all legislative work on the aforementioned acts had to be ended. 56 The Sejm Review Third Special Issue / 2007

— the Act on obligatory insurance, the Insurance Guarantee Fund and the Polish Offi ce of Transport Insurers. The reservations of the head of state were aroused by, among other things: the costs of implementing the Act on insurance activity and the changes in the structure and model of the functioning of the insurance supervisory organ. He emphasised that his decided opposition arose, above all, from the regulation burdening the state budget with the costs of the supervision of the insurance activity, conducted by the Commission of Insurance Supervision, and with the costs of the activity of the Ombudsman for the Insured. In the opinion of the President, “no justifi cations were presented for the changes in the principles of fi nancing the insurance supervision. This is particularly important in the situation where the budget equilibrium of the state is threatened”42. The consequence of the refusal to sign this act by the head of state was the use of his power of veto with regard to the above-mentioned acts inte- grally connected with it43. None of the three applications in the matter of insurance was considered by the Sejm on account of the end of the parliamentary term. The diffi cult situation of the state budget demanded that the President make an assessment of a further two acts sent to him for his signature — the Act of 25 July 2001 on health resorts, spa municipalities and health resort treatment and the Act of 25 August 2001 on the income of local self-government entities, with particular reference to the fi nancial effects that they would bring in their wake. The President acknowledged that if these acts became binding, there would ensue the necessity of bearing enormous fi nancial costs and, given the current condition of the state’s fi - nances, the implementation of the legal regulations imposing the high expenditure on the State Treasury would be unjustifi able because of the threat of crisis in the state budget. For this reason he made use of his right to apply the legislative veto44. Neither reference was considered on account of the end of the parliamentary term. The intention of the authors of the Act of 25 July 2001 on cooperatives was to adapt cooperative law to the changing social and economic conditions. The activities

42 Vide justifi cation of the reference by the President of the Republic of Poland of 17 September 2001 for reconsideration of the Act of 23 August 2001 on insurance activity (The Sejm of the Republic of Po- land, 3rd term, Sejm Paper No. 3430, p. 2). 43 Vide justifi cation of the reference by the President of the Republic of Poland of 17 August 2001 for reconsideration of the Act of 23 August 2001 on insurance agencies; the justifi cation of the reference by the President of the Republic of Poland of 17 September 2001 for reconsideration of the Acts of 23 August 2001 on obligatory insurance, the Insurance Guarantee Fund and the Polish Offi ce of Transport Insurance. (The Sejm of the Republic of Poland, 3rd term, Sejm Paper No. 3428 and 3429). 44 Vide justifi cation of the reference by the President of the Republic of Poland of 28 September 2001 for reconsideration of the Act of 25 July 2001 on health resorts, spa municipalities and health resort treatment; the justifi cation of the reference by the President of the Republic of Poland of 18 September 2001 for reconsideration of the Act of 25 August 2001 on the income of local self-government entities (The Sejm of the Republic of Poland, 3rd term, Sejm Paper No. 3436 and 3433). Anna Więckowska: The Right of Veto of the President of the Republic of Poland in Political Practice... 57 intended to achieve this aim were considered by the President as being absolutely necessary in the current situation of the state but unfortunately, in his opinion, this aim would not be achieved by way of the act presented to him for signature. The Act passed by Parliament, instead of fundamental provisions creating benefi cial conditions for the activity and development of cooperatives, included provisions which would limit the activity of cooperatives and their powers of self-government. The signifi cant fl aws included in the Act caused the President to apply for its reconsideration. First of all, the President regarded as a fl aw the fact that the Act of 25 July included in its regulation only the so-called general part, intended to affect all cooperatives and not raising the question concerning particular cooperative branches, which were to be regulated in separate acts. This would have led to the break-up of the Polish cooperative movement. The new act was not intended to repeal the existing Cooperative Law Act, which was to remain in effect in the part not differently regulated in the Act on cooperatives. Such a legal state might have caused many collisions and thus adversely affected the uniformity of the law and created diffi culties in its use. This would have been in contradiction to the principles of correct legislation, constituting a departure from the established practice of regulating in one act the entirety of matters concerning the principles of cooperative activity45. Secondly, in a way which cannot be justifi ed by anything, the Act interferes in the right ownership conferred upon members of cooperatives, which in consequence could threaten the stability and sustainability of cooperatives and would diversify the rights of particular cooperatives. The Act gave “members of cooperatives withdrawing, or excluded or deleted, from the cooperative the right to its property, without defi ning the limits of this right or the method of its realisation, leaving this question to free statutory regulation”. The implementation of this Act could “lead to the un- grounded liquidation of a cooperative, justifi ed only by the desire of a group of members to take over the property of the cooperative”, with “no guarantee that the remaining members of the cooperative would not be harmed by this”. In the opinion of the President, “the right of members to the property of the cooperative ought to be statutorily limited to that part of the property which constitutes an increase in the value of property of the cooperative achieved during the period of membership of an authorised member”. The Act has to guarantee that “the right of a former member to part of the property of the cooperative will not threaten its existence and will not be realised to the detriment of the remaining members of the cooperative. Otherwise, this will constitute a breach of the constitutional principle of equal protection of the right of ownership guaranteed to all subjects”46. Thirdly, the questioned Act excessively interfered in the structural matters of cooperatives, breaching the principles of cooperative self-government. Departing from

45 Vide justifi cation of the reference by the President of the Republic of Poland of 28 September 2001 for reconsideration of the Act of 25 July 2001 on cooperatives (The Sejm of the Republic of Poland, 3rd term, Sejm Paper No. 3437, p. 2). 46 Ibidem, p. 3 and 5. 58 The Sejm Review Third Special Issue / 2007 the existing legal solution, whose premise is to increase the role and the signifi cance of cooperative statutes by decreasing the number of absolutely binding norms, the legislator lowered “the status of the statutes of cooperatives and unions and the Cooperative Council”. The parliamentarians had regulated after all those matters which could and should have been decided in the statutes of various kinds of cooperatives. The arbitrary character of some provisions of this legal act, according to the President, could “lead to the disorganisation of the management of the economic activity of cooperatives, which in free market conditions cannot possibly gain social approval”47. Another fl aw in the Act was the fact that its content was established by the parliamentarians with the omission of remarks tabled by Polish cooperative circles and also in the face of the clear opposition and criticism of the accepted solutions, of which the President was informed in numerous letters sent to him by the representatives of the interested circles48. The President’s application for reconsideration of the Act on cooperatives was not considered because of the expiry of the term of the Parliament. During the 4th term of the Parliament, the President used the right of veto only once. This concerned the Act of 19 December 2002 on the organisation of the market of liquid bio-fuels and the bio-components for their production49.

III. CLOSING REMARKS In conclusion, it must be stated that Aleksander Kwaśniewski skilfully and pru- dently uses the presidential powers arising from Article 122 paragraph 5 of the Constitution, since to date only one of the acts questioned in the manner described here was subsequently passed by the Sejm (the Act on the Institute of National Remembrance — the Commission for the Prosecution of Crimes against the Polish Nation). The relatively small number of presidential references for reconsideration of acts allows us to claim that the head of state is not trying to act in competition with the government and the pro-government majority in the Sejm as a centre of power pursuing his own policies. The President interferes in those situations where an act arouses numerous controversies in a pluralistic society in which particular communities have different preferences not always ﬁ nding support in the priorities of the parliamentary majority which creates the law.

47 Ibidem, p. 5 and 6. 48 Ibidem, p. 6. 49 Vide justiﬁ cation of the reference by the President of the Republic of Poland of 17 January 2003 for reconsideration of the act of 19 December 2002 on the organisation of the market of liquid bio-fuels and the bio-components for their production (The Sejm of the Republic of Poland, 4th term, Sejm Paper No. 1261). It is worth noting that this was an act whose draft was lodged by the coalition government supported by SLD-UP and PSL [The Democratic Left Union-Labour Union and the Polish Peasants’ Party] and, therefore, by the political camp from which President Aleksander Kwaśniewski originated. Anna Więckowska: The Right of Veto of the President of the Republic of Poland in Political Practice... 59

President Kwaśniewski, in fulfi lling his offi ce, very heavily emphasises the role of the head of state as the guardian of the Constitution. The duty of the President of the Republic of Poland as the guarantor of the basic law is, among other things, the protection of constitutional values in the laws being established. With regard to this, the President is obliged to participate in the legislative process whenever any constitutional norm is breached in the course of this process. In such a situation the Constitution enables the head of state to choose one of two methods available to him of questioning acts. In practice, it has become the custom of the current President to include in his reference for the reconsideration of an act a substantive justifi cation for his use of the veto together with a profound analysis of the legislative solutions accepted by the Sejm and Senate combined with an indication of the possible disadvantageous effects of the implementation of the act in the wording adopted by Parliament. In analysing the argumentation included in the vetoes applied during the 3rd and 4th terms of the Sejm, one can indicate three most important reasons justifying, in the President’s opinion, the questioning of the acts. The fi rst reason is a breach of the fundamental constitutional principles. The President does not aspire to the role of an interpreter of the Constitution competing with the line of judgement of the Constitutional Tribunal. The argument of the unconstitutionality of an act is raised only in the situation of a breach of constitutional values, whose interpretation the Constitutional Tribunal had made earlier and towards which the establishment of their signifi cance and scope does not cause any in- terpretational problems. It has become the practice that the President, in indicating contradictions between the act and the Constitution, “leans on” the authority of the Constitutional Tribunal (by citing the appropriate judgement), without forcing it to express itself once again in the same matter. An analysis of the justifi cations of the references lodged by the President for reconsideration of acts leads to the conclusion that at this stage of the legislative process in the Sejm and Senate there still appear diffi culties with the preparation of acts not being in contradiction with the basic law. The second reason that appears in the justifi cations of the President’s references is a breach of the constitutional procedure for passing acts. A lack of reaction in such situations could “validate” legislative activity conducted with a breach of the law and, in consequence, introduce into the process of the creation of law by Parliament principles or customs that could be dangerous to democracy. The third reason justifying the President’s intervention is the well-grounded fear that the implementation of an act would lead to disadvantageous legal, economic or social effects not desired by the legislator. In connection with this argument there can be distinguished a separate category of vetoes intended to realise the President’s aim of ensuring fi nancial security for the state in the conditions of a serious crisis in public fi nances. Among the 29 applications for reconsideration of acts lodged by the President during the period of operation of the Constitution of 1997 was binding, in as many as 12 cases the basic justifi cation for the refusal to give a signature was the 60 The Sejm Review Third Special Issue / 2007 indication that the state budget was not able to bear the costs of the implementation of the legal regulations contained in these acts. The thesis could be formulated that the inclusion by the head of state in the justifi cations to his applications for reconsideration of acts of profound analyses of the legal regulations presented for his signature (with particular reference to the tasks of the President as defi ned by Article 126 of the Constitution and the fi nancial consequences of these acts for the state budget) became a constitutional custom. The President, therefore, adopted a broadening interpretation, imposing on his own offi ce the duty of caring for the fi nancial security of the Republic of Poland. It must be stated that from the above considerations it follows that there are no grounds to defi ne the presidential right to refuse to sign bills as a political veto. The aim of the President’s actions in this case is rather to support the legislative work of Parliament than to realise his own political concept which remains in opposition to the political line of the government and the parliamentary majority supporting it. 61

JERZY CIAPAŁA DOCTOR, UNIVERSITY OF SZCZECIN

THE ISSUE OF THE LEGAL RESPONSIBILITY OF THE PRESIDENT OF THE REPUBLIC OF POLAND*

1. BASIC REMARKS The subject of this study is the issue of the legal responsibility of the President of the Republic of Poland and, therefore, responsibility for violating the norms of the universally binding law. These remarks concern the state of the binding law and not historical issues or those of comparative law. Of lesser importance are procedural and organisational issues connected with proceedings before the Tribunal of State. The point of reference should be to limit the legal responsibility of the President to constitutional, criminal (including fi scal liability) and civil responsibility. The particular signifi cance of the legal responsibility of the President is determined by two basic circumstances. The fi rst of these is the necessary dependency between the authority entrusted by the sovereign and the responsibility for its exercise. As Michał Pietrzak wrote, a law state, understood not according to a formalist model but according to an unequivocally democratic model, should try to create a complex of institutions and procedures, remaining in mutual organisational and functional correlation, and, in so doing, creating the real possibility of executing responsibility1. The acknowledgement that the President has to bear legal responsibility becomes essential on account of the

* This article was published in „Przegląd Sejmowy” No. 6 (71)2005. 1 M. Pietrzak, Model demokratycznego państwa prawnego, “Studia Konstytucyjne” 1990, vol. VII, p. 5. 62 The Sejm Review Third Special Issue / 2007 constitutional principle of a democratic state ruled by law (Article 2), the principle of the rule of law (Article 7) and the principle of equality before the law (Article 32 paragraph 1). The strict correlation between authority and responsibility is one of the conditions of the democratic way of government. The problem of responsibility needs to be seen broadly, from he angle of the whole systemic and political mechanism, and in the context of, among other things, the lack of an institutionalised political responsibility of the President2. Whereas the political responsibility is directed at the appropriateness and effectiveness of actions and, which has particular signifi - cance in the case of the President, at the style in which the offi ce is held, the legal responsibility by its very essence is oriented towards lawfulness and also towards the protection of the interests of the State, i.e. the protection of the raison d’état. A consequence of the principle of the sovereignty of the Nation (Article 4 paragraph 1 of the Constitution) should be the awareness of those persons exercising authority that their actions are subject to constant assessment by public opinion and that the State mechanism provides for institutions and procedures ensuring effective control. Prima facie this evokes the thought about the full legal responsibility of the President for violating substantive law while exceptions to the principle ought to be referred to the procedural and institutional aspects. The second circumstance affecting the signifi cance of the legal responsibility is the specifi c position of the President of the Republic of Poland in the political system of Poland, the functions defi ned by the Constitution of the Republic of Poland and the scope and nature of his constitutional and statutory competences. The President as an organ of executive authority is the supreme representative of the Republic of Poland and a guarantor of the continuity of State authority, and also an organ which ensures observance of the Constitution and guards the sovereignty and security of the State and the inviolability and integrity of its territory (Article 126 paragraphs 1 and 2 of the Constitution). A consequence of the position of the so-called head of state is also his supreme command of the Armed Forces of the Republic of Poland (Article 134 paragraph 1). The content of the presidential oath (Article 130) confi rms that, in the case of the President of the Republic of Poland, we can talk about an institution that has to fulfi l a specifi c political and legal role, with which are linked the diverse hopes of citizens and which arouses emotions and expectations of a political and ideological dimension. Embodying the majesty of the Republic, the President of the Republic of Poland ought to rise above short-term ideological and political divisions and to be an unambiguous exponent of the interests of the State and an organ

2 This does not mean that the President of the Republic of Poland does not bear extra-parliamentary political responsibility. This could be considered on various levels: a) relations with “intermediary bodies”, in particular with political parties and b) direct relations with citizens. Events revealing the problem of such a responsibility would be: a) presidential elections after the end of the fi rst term; b) parliamentary and local government elections, given the assumption of the President’s political involvement; c) shortening the terms of the chambers of parliament; d) a referendum; e) effectiveness of presidential legislative initiatives; cf. further J. Ciapała, Prezydent w systemie ustrojowym Polski (1989– –1997), Warszawa 1999, p. 355–368. Jerzy Ciapała: The Issue of the Legal Responsibility of the President of the Republic of Poland 63 attempting to unite the interests of various milieux with the aim of maintaining social order and a consensus around fundamental values. It remains a serious challenge to maintain a certain distance from current political confl icts and disputes among the participants in public life. The fostering of authentic civic virtues, so necessary in public life in Poland, may have, as one of its most signifi cant points of reference, the attitudes and institutional practices of the President. As an organ legitimised by the support of the Nation3, the President is co-responsible for the protection of the Constitution, which expressis verbis provides for the President’s guardianship of its observance; in this fi eld his role may be comparable — to a signifi cant degree — only to the position of the Constitutional Tribunal. It is also diffi cult to fi nd another political institution in whose case there could appear an equally close and clear “con- frontation” of a legal institution and the person holding the offi ce. Here there is a re- cognisable dissonance between the way of electing the President by universal voting and the social expectations arising as a consequence of this on the one hand, and the scope of the governing and political powers which prevents the placing of the President as the head of executive authority responsible for current state policy on the other hand. This can signifi cantly affect the perception of legal responsibility as obvious in the case of the offi ce-holder. I am thinking here also of another issue: the premise, appropriate to traditional parliamentary-cabinet systems in which the lack of responsibility was and is a refl ection of neutrality in the face of political processes, must be verifi ed in Polish conditions. The experiences of institutional practice indicate after all that the President of the Republic of Poland, given that his powers are limited by the leading position of the government, can signifi cantly infl uence the functioning of the State and some aspects of its policy. The President’s constitutional functions and scope of competence, whose execution does not require a counter-signature, weigh in favour of recognising him as a genuine centre of political authority4. It must, however, be emphasised that his legal responsibility, including in particular constitutional responsibility, should remain, to cite the words of Grzegorz Leopold Seidler, a responsibility “once in a blue moon”5. It is worth paying attention to the fact that the constitutions of contemporary European states provide for, in principle, constitutional and criminal responsibility of presidents. They regulate the foundations of responsibility, however, in very different

3 I do not share the view that the President of the Republic of Poland is not an organ of the Nation, since the legitimacy arising from general elections is insufﬁ cient; cf. further M. Kudej, Problematyka konstytucyjnej zasady suwerenności narodu, [in:] Podstawowe pojęcia pierwszego rozdziału Konstytucji RP, ed. E. Zwierzchowski, Katowice 2000, p. 59. Cf. the remarks by L. Garlicki, P. Sarnecki and K. Woj- tyczek, Podstawowe pojęcia..., p. 70–73, which enter into a polemic with Kudej’s standpoint. 4 R. Mojak, Prezydent Rzeczypospolitej Polskiej, [in:] Polskie prawo konstytucyjne, ed. W. Skrzydło, Lublin 2004, p. 295–300; Z. Witkowski, Prezydent Rzeczypospolitej Polskiej, [in:] Prawo konstytucyjne, ed. Z. Witkowski, Toruń 2002, p. 314–318; K. Wojtyczek, Prezydent Rzeczypospolitej, [in:] Prawo konstytucyjne, ed. P. Sarnecki, Warszawa 2004, p. 298–316. 5 G.L. Seidler, Odpowiedzialność parlamentarna a konstytucyjna, “Państwo i Prawo” 1989, fascicle 12, p. 25. 64 The Sejm Review Third Special Issue / 2007 ways: 1) high treason with the exclusion of criminal responsibility for punishable acts committed while executing the function and with the acceptance of formal im- munity6; 2) high treason with the exclusion of responsibility for acts committed within the framework of his functions7; 3) violation of the Federal Constitution8; 4) a breach of the constitution or any other statute9; 5) the commission of acts seriously breaching the provisions of the constitution10; 6) crimes connected with the execution of his functions and crimes not connected with the execution of his func- tions11; 7) a breach of the constitution or a serious breach of a statute12.

2. CONSTITUTIONAL RESPONSIBILITY

On the subject of the constitutional responsibility of persons occupying the highest posts, including that of President, there have appeared many publications placing emphasis on various aspects of this issue: general theoretical13, institutional and pro- cedural14, historical and multi-layered15 or those referring strictly to the very practice of holding the President responsible16.

6 Article 65 of the Constitution of the Czech Republic of 16 April 1992, introduced and translated into Polish by M. Kruk, Warszawa 1994. 7 Article 68 of the Constitution of France of 4 October 1958, introduced and translated into Polish by W. Skrzydło, Warszawa 2000. 8 Article 142 of the Federal Constitutional Act of the Republic of Austria of 1 October 1920, introduced and translated into Polish by P. Czarny and B. Naleziński, Warszawa 2004. 9 § 31 of the Constitution of the Republic of Hungary of 24 August 1990, introduced and translated into Polish by H. Donath, Warszawa 1996. 10 Article 95 of the Constitution of Romania of 21 November 1991, translated into Polish by A. Cosma and introduced by W. Brodziński, Warszawa 1996. 11 Article 130 of the Constitution of the Republic of Portugal of 20 April 1976, translated into Polish by A. Wojtyczek-Bonnand and introduced by J. Miranda, P. Kownacki, Warszawa 2000. 12 Article 109 of the Constitution of the Republic of Slovenia of 23 December 1991, translated into Polish and introduced by P. Winczorek, Warszawa 1994. 13 Cf. e.g. G. L. Seidler, Odpowiedzialność...; K. Działocha, Naruszenie Konstytucji jako podstawa odpowiedzialności przed Trybunałem Stanu, “Acta Universitatis Wratislaviensis” 1988, Prawo CL; L. Garlicki, Ochrona konstytucyjności i praworządności, “Państwo i Prawo” 1987, fascicle 10. 14 Trybunał Stanu w PRL, ed. Z. Świda-Łagiewska, Warszawa 1983; A. Gubiński, Trybunał Stanu, “Państwo i Prawo” 1992, fascicle 5–6; H. Groszyk, Uwagi o potrzebie i kierunkach zmian ustawowej regulacji Trybunału Stanu (w związku z art. 236 ust. 1 Konstytucji RP), [in:] Konstytucja. Ustrój, system ﬁ nansowy państwa. Księga pamiątkowa ku czci Profesor Natalii Gajl, Warszawa 1999; D. Szumiło-Kul- czycka, Odpowiedzialność karna przed Trybunałem Stanu, “Przegląd Sejmowy” 2001, No. 4, p. 91–106; M. Filar, Niektóre węzłowe problemy orzecznictwa Trybunału Stanu III Rzeczypospolitej, [in:] Ze sztandarem prawa przez świat. Księga dedykowana Profesorowi Wieńczysławowi Józefowi Wagnerowi von Igelgrund z okazji 85-lecia urodzin, ed. K. Motyka, R. Tokarczyk, Kraków 2002. 15 M. Pietrzak, Odpowiedzialność konstytucyjna w Polsce, Warszawa 1992; same author, Odpowiedzialność konstytucyjna w Polsce w okresie przemian ustrojowych, “Państwo i Prawo” 1995, fascicle 3; J. Zaleśny, Odpowiedzialność konstytucyjna w prawie polskim w okresie transformacji ustro- jowej, Toruń 2004. 16 J. Zaleśny, Odpowiedzialność konstytucyjna. Praktyka III RP, Warszawa 2004. I omit here considerations on the subject of constitutional responsibility included in monographs about the institution of the President or in academic textbooks. Jerzy Ciapała: The Issue of the Legal Responsibility of the President of the Republic of Poland 65

The constitutional responsibility of the President of the Republic of Poland is regulated by Article 145 paragraph 1 and Article 198 paragraph 1 of the Constitution. According to the fi rst provision: “The President of the Republic may be held accountable before the Tribunal of State for a violation of the Constitution or a statute, or for the commission of an offence”. The second provision states that: “For violations of the Constitution or of a statute committed by them within their offi ce or within its scope, the following persons shall be constitutionally accountable to the Tribunal of State: the President of the Republic […]”. It must be accepted that both provisions express norms of substantive law defi ning the responsibility of the President. The difference consists in the fact that Article 145 paragraph 1 has a broader scope of regulation since it concerns constitutional and criminal responsibility and, moreover, which is important for interpretation, this provision is included in Chapter V, “The President of the Republic of Poland”. Article 198 paragraph 1, however, is located in the sub-chapter “The Tribunal of State” within the framework of Chapter VII, “Courts and Tribunals”, in order to defi ne and indicate the subjective area of responsibility before the Tribunal of State. This evokes a thought about the fundamental “initial” nature of Article 145 paragraph 1 and about the fact that the reconstruction of norms — with reference to the President — on the basis of Article 198 paragraph 1 cannot omit the sense of the normative provision of Article 145 paragraph 1. In the Act on the Tribunal of State17, we encounter a different editorial view on the responsibility of the President. Article 1 paragraph 1(1), regulating the subjective scope of responsibility to the Tribunal of State, deals with the constitutional responsibility of the President for violating the Constitution or a statute, in connection with the offi ce held or within the scope of his work. In this provision, the President, together with seven groups of persons holding defi ned state offi ces, is indicated as a subject bearing constitutional responsibility before the Tribunal of State. In turn, Article 2 paragraph 1 partly repeats the normative content of Article 1 paragraph 1(1) and extends it by adding that “the President may be held accountable before the Tribunal of State for violating the Constitution or statutes, committing a crime or a fi scal offence”. A comparison of Article 145 paragraph 1 of the Constitution and Article 2 paragraph 1 of the Act on the Tribunal of State provides the basis for indicating a certain editorial and linguistic awkwardness being the result of a logical error. A linguistic interpretation of these provisions suggests, after all, the difference between responsibility for violating a statute and responsibility for committing a crime, including a fi scal offence. The ratio legis of the accepted solutions is understandable: the introduction of a differentiation between the responsibility for a constitutional delict, i.e. for violating a statute not being a crime, and the responsibility for a crime. An interpretation, however, of the indicated provisions can lead to a completely unjustifi ed conclusion, namely that responsibility for a crime is not responsibility for violating

17 Act of 26 March 1982 on the Tribunal of State, Dziennik Ustaw (Journal of Laws) 2002 No. 101, item 925, with changes. 66 The Sejm Review Third Special Issue / 2007 a statute. Meanwhile, each crime constitutes a violation of the norms derived from the penal provisions included in dozens of statutes. I do not see the need for emphasising responsibility for fi scal offences, since their scope is subordinate in relation to criminal responsibility. A certain lack of linguistic precision could be removed by the use of an expression about responsibility “for violating the Constitution or statutes, including the commission of a crime”. In analysing the constitutional responsibility of the President, attention must be paid also to a few questions of fundamental signifi cance: 1) the time when the commission of the act, i.e. action or nonfeasance, gives rise to responsibility; 2) the features of the events providing the basis for executing responsibility; 3) the accepted concept of the attitude of the President to the act committed, including the issue of guilt; 4) the procedure for executing responsibility; 5) the connection between responsibility and the context of the political situation. The defi nition of the time during which the President bears constitutional responsibility must have his 5-year term of offi ce as its point of reference. The Constitution of the Republic of Poland includes two important provisions concerning the beginning of the term of offi ce. In accordance with the fi rst, the term begins on the day of taking offi ce (Article 128 paragraph 1). The second provision specifi es the moment of assuming offi ce: “The President of the Republic shall assume offi ce upon taking the following oath in the presence of the National Assembly: […]” (Article 130 in principio). Thus, the moment just after the end of the taking of the oath should be regarded as the moment of the beginning of a new term and, at the same time, the moment of the end of the term of the previous President. In this context — for the indication of the moment beginning the term — the events preceding this moment will have no signifi cance: the day of the election, the day of the offi cial announcement of the results by the National Electoral Commission, the day on which the Supreme Court announces its confi rmation of the validity of the election of the President. Irrespective of the ordinary end of the term, in the Constitution there can be indicated extraordinary circumstances, in which the President is incapable (temporarily or permanently) of exercising his offi ce and, therefore, his constitutional responsibility is excluded. The Constitution of the Republic of Poland envisages eight such circumstances: 1) a temporary inability to exercise the duties of his offi ce, obliging the President himself to inform the Marshal of the Sejm, which brings about a legal effect in the form of the Marshal of the Sejm obtaining the powers from Parliament to take over presidential duties; 2) a judgement of the Constitutional Tribunal, on the application of the Marshal of the Sejm, stating impediments to the exercising of the offi ce; 3) death; 4) the lodging of a statement of intent to resign from offi ce; 5) a declaration of the invalidity of the election or other reasons for not taking offi ce after the election; 6) acknowledgement by the National Assembly of permanent inability to execute the offi ce as a result of ill health in a resolution accepted by a majority of at least 2/3 of the votes of the statutory number of members of the National Assembly; 7) dismissal on the basis of a judgement of the Tribunal of State; 8) a resolution by Jerzy Ciapała: The Issue of the Legal Responsibility of the President of the Republic of Poland 67 the National Assembly, in the manner defi ned by Article 145 paragraph 2, about bringing an indictment before the Tribunal of State, which results in a suspension in the execution of offi ce (cf. Article 131 and Article 145 paragraph 2 of the Constitution). It must also be remembered that the Constitution does not exclude the extraordinary situation in which the term of a given President is shortened, which might occur after the passing of a statute amending the Constitution, as a result of which the given term is shortened on this one occasion18. As concerns the period of the term of offi ce of the President of the Republic of Poland and his constitutional responsibility, we could consider, in the temporal aspect, three possible sequences of events: 1) the commission of an illegal act, providing the basis for constitutional (although not criminal) responsibility, before assuming an offi ce (when the person in question held state offi ce with which constitutional responsibility is connected) and the execution of responsibility during the term of offi ce; 2) the commission of an act, and the execution of responsibility, during the term of offi ce; 3) the commission of an act during the term and the execution of responsibility after its end. The constitutional responsibility of the President may be referred only to the period in which he held offi ce and after the end of the term if the event constituting a violation of the law took place in the course of the term (circumstances 2 and 3). Thus, we cannot consider constitutional responsibility in the case of events that took place before the taking of offi ce in the situation where the candidate for offi ce had earlier occupied one of the posts with which constitutional responsibility is connected. Constitutional responsibility can, therefore, only relate to an act committed in the period of holding the offi ce of President of the Republic of Poland. Let us notice, however, that its execution — in the procedural and institutional aspects — can take place both during and after the term of offi ce. The justifi cation for such a standpoint can be found in the provisions of the Constitution of the Republic of Poland, which states that “the President of the Republic may be held accountable before the Tribunal of State for an infringement of the Constitution or a statute […]” (Article 145 paragraph 1). Further analysis concerns statutory norms, specifying more unequivocally the temporal frameworks of constitutional responsibility. It ensues from statutory norms that constitutional responsibility covers acts which were committed in connection with the offi ce held or within the scope of the work and — and this should be underlined — that responsibility before the Tribunal of State is permissible in a period up to 10 years after the commission of the act, unless the act constitutes a crime for which a longer period of limitation is provided. Thus there can be no mention of constitutional responsibility for a violation of the law (not constituting 18 We had to deal with such a situation in September 1990 when President Wojciech Jaruzelski expressed his readiness to subordinate himself to the calendar of systemic changes and for his earlier resignation from offi ce, but not by renouncing the offi ce, which in essence would have been an expression of infamy, but by a shortening of his term by way of a constitutional act, Sejm Paper No. 534, Sejm of the 10th term [quoted after:] J. Ciapała, Prezydent w systemie..., p. 78. 68 The Sejm Review Third Special Issue / 2007 a crime) committed before taking offi ce. The circumstance that the perpetrator no longer holds offi ce is, however, no impediment to the initiation and conduct of proceedings in the area of constitutional responsibility19. This is after all the responsibility of the person holding the highest offi ce in the country, based on nonfeasance or actions undertaken in the situation or under the conditions of holding the offi ce and acting “in the post”. Specifying the normative content of Article 145 paragraph 1, the Constitution unequivocally states about violations of its provisions “within their offi ce or within its scope” (Article 198 paragraph 1 of the Constitution in principio). In this context, it would be legitimate to consider the inclusion, in the text of the Constitution and not only in the act on the Tribunal of State, of a provision allowing the execution of constitutional responsibility of the President also after the end of the term of offi ce. The fundamental feature characterising the negative approach to the constitutional responsibility of the President is an assumption that this cannot be responsibility for a crime within the meaning of criminal law. The objective scope of responsibility is referred, however, to illegal action, or lack of action, which had a legal effect or were undertaken with the aim of achieving a legal effect and about which is used the term “constitutional delict”20. This concerns actions undertaken without a legal basis, which in essence means in violation of Article 7 of the Constitution, and actions being the expression of the inappropriate execution of the his/her competence, leading or contributing to the creation of a state of non-conformity to the law. We consider here also nonfeasance which causes consequences in the form of non-conformity to the law. In the case of actions undertaken without a legal basis, we qualify acts committed “within the offi ce”, since it is the post held that enabled or facilitated their commission. Without holding the offi ce of President of the Polish Republic it would be diffi cult to imagine their existence. The opinion could be expressed that holding the offi ce could be the condition or a fundamental facilitation for their commission, although this would not need to be an absolute condition. The lack of a connection with the offi ce held could take place only if an illegal event were to take place irrespective of the participation of the President. In turn we relate acts (actions or lack of action) committed “within its scope” to the area of the competence of the President but conducted so defectively that this led to a violation of the law. Article 7 of the Constitution has then — it would seem — a fundamental signifi cance for the defi nition of constitutional responsibility in such a sense that a great part of these acts might constitute a violation of the dispositions of a norm derived from this provision, independent of the violation of other legal provisions. The so-called constitu-

19 Cf. article 2 para. 1, Article 3 and Article 23 para. 1 of the Act on the Tribunal of State. In the case of Article 23 para. 1 of the Act on the Tribunal of State, the more appropriate description would be: “the initiation of proceedings on the subject of constitutional responsibility”. 20 The term “constitutional delict” has a doctrinal nature and is not based on a legal text, cf. the judgement of the Constitutional Tribunal on 21 February 2002, fi le No. P 12/00, OTK ZU 2001, No. 3, item 47; L. Garlicki, Polskie prawo konstytucyjne. Zarys wykładu, Warszawa 2004, p. 402. Jerzy Ciapała: The Issue of the Legal Responsibility of the President of the Republic of Poland 69 tional offence is after all an act not having a legal basis and exceeding the limits determined by law. The Constitutional Tribunal confi rmed that, although a violation of the Constitution or a statute might have the nature of a crime, even in this case the notions of “a constitutional delict” and “a crime” cannot be regarded as identical, and the notion “a constitutional delict” cannot in particular be treated as a broader one. That is why constitutional responsibility and criminal responsibility constitute two different regimes of responsibility21. The next problem is connected with a violation, considered here potentially, of ratifi ed international agreements and regulations. The constitutional norms derived from Articles 9, 91 paragraph 2, 126 paragraph 2 and 133 paragraph 2 argue in favour of accepting the President’s responsibility for violating international law. Interpreted together, they construct a regime of the President’s responsibility on the assumption that a violation of the norms of ratifi ed international agreements is also a violation of a concrete constitutional norm. It would be much more diffi cult to consider responsibility for violating regulations. It cannot be excluded in the context of Articles 2 and 7 of the Constitution but I am aware of the weight of argument referring to linguistic interpretation. Another matter is the limiting of the objective scope of constitutional responsibility exclusively to the problem of violating the law. This could have consequences in relation to the premises for the executing of responsibility. In applying a purely formal approach, we acknowledge the admissibility of executing responsibility in the situation of the very existence of the fact of a violation of binding legal norms, irrespective of an assessment of the effects caused by this violation and of the gravity of the consequences of the violation. The opposing (material) standpoint connects the application of this form of responsibility “with particular, qualifi ed, situations”, in which — apart from the violation of the law itself — it would be necessary to indicate the appearance of negative effects in the sphere of the political or economic interests of the State22. I accept that in the case of the person of the President of the Republic of Poland, the political status is rather an argument in favour of the formal approach: the very violation of the law by a person obliged to safeguard the observance of the Constitution and by the highest representative of the State should constitute a suffi cient basis for holding him responsible. The conduct of the President is not subject to the qualifi cation which would be expressed by the formulae: “the infl icting of serious damage to the interests of the State” and “a serious violation of the Constitution or a statute”. The objective scope of the responsibility of the President of the Republic of Poland is referred to the offi cial activities and to offi cial acts. The term “offi cial ac-

21 The judgement of the Constitutional Tribunal, op. cit. the view about the division between a delict and a crime is not, however, fully approved of in the doctrine; cf. R. Mojak, Prezydent Rzeczy- pospolitej Polskiej, [in:] Polskie prawo konstytucyjne, ed. W. Skrzydło, Lublin 2004, p. 301. 22 Cf. B. Naleziński, Organy władzy sądowniczej, [in:] Prawo konstytucyjne RP, ed. P. Sarnecki, Warszawa 2004, p. 377. 70 The Sejm Review Third Special Issue / 2007 tivity” has the broadest dimension. We are talking here about interviews, declarations, speeches and other legal and factual activities connected with the holding of the offi ce, which do not always lead to the causing of legal effects. In the context of constitutional responsibility we are considering only those activities which, violating concrete legal norms, intend to cause legal effects or cause such effects, e.g. the undertaking, directly or through an intermediary, of negotiations with the aim of contracting an international obligation without the agreement of the Prime Minister might constitute a violation of the Act on International Agreements23, just as the pronouncement on behalf of the Republic of Poland of a declaration in contradiction to the standpoint of the government in a given case concerning international relations might violate the norms included in Article 146 paragraph 4 (9) in conjunction with Article 146 paragraph 1 of the Constitution24. Most frequently, the risk of violating the law is connected with the issuing of offi cial acts, including law-making acts, which in fact constitute the “product” of offi cial activities taking on the form of a document. Inconsistencies with the law might concern the competence or procedural aspect or the violation of substantive law itself. Offi cial acts are legal forms of documents which are the consequence of the execution of constitutional and offi cial competences, i.e. written documents being the consequences of offi cial activities. The interpretation of Article 144 paragraph 1 in conjunction with Article 142 of the Constitution suggests that the President ought to issue three forms of offi cial acts: regulations, executive orders and decisions25. Offi cial acts are, therefore, a synonym, another name for the legal acts of the President, i.e. legal acts causing legal effects, irrespective of the way of viewing the addressees of the norms. The legal responsibility for their issuing ought to be considered taking into consideration the possible situational contexts and legal circumstances: 1) the lack of the political and legal dependency of the President of the Republic of Poland and the Council of Ministers as separate, though not equal, organs of executive power with separate functions; 2) the lack of the counter-signature of the Prime Minister on the act, which is an exception to the rule (Article 144, paragraph 3 (3) of the Constitution); 3) the obligation to possess the counter-signature of the Prime Minister as the condition for the validity of an act; 4) the possibilities for

23 Cf. Article 5, Article 6, Articles 9 and 10 of the Act of 14 April 2000, Dziennik Ustaw (Journal of Laws) No. 39, item 443, as amended. 24 I consider that the function of the highest representative of the Republic of Poland in international relations means that the declarations of the President have the highest legal and political signifi - cance but it does not give the President the competence to determine the content of these declarations. Further J. Ciapała, Prezydent w systemie..., p. 226–230. 25 The three forms of acts indicated do not mean that, on account of the very subject of regulation, they can be “motions”, “acts of appointment” and “ratifi cation acts”; cf. J. Ciapała, Uwagi w sprawie prawnych form działania Prezydenta Rzeczypospolitej Polskiej, [in:] Ustrój polityczny Rzeczypospolitej Polskiej w nowej Konstytucji z 2 kwietnia 1997 roku, ed. W. Skrzydło and R. Mojak, Lublin 1998, p. 254–257. R. Mojak disagrees, Prezydent Rzeczypospolitej Polskiej, [in:] Polskie prawo konstytucyjne, ed. W. Skrzydło, Lublin 2004, p. 310–312. Jerzy Ciapała: The Issue of the Legal Responsibility of the President of the Republic of Poland 71 the President to execute his competences in the area of issuing an act: the freedom or the duty to make use of these competences. What is indispensable is the responsibility of the President for acts excluded from government counter-signature. What is here of great importance is the circumstance whether the manner of executing the given competence is strictly regulated, and therefore we are dealing with the so-called bound competences, or whether the President can in a free manner make use of them. Among the fi rst group there can be qualifi ed, for example, the competences in the area of shortening the terms of the chambers, calling parliamentary elections, dismissing a member of the government who has been given a vote of no confi dence by the Sejm or in connection with whom the Prime Minister has presented a motion for dismissal. At this point, there need to be considered some competences to appoint persons to important state posts. An analysis of the President’s proceedings in the case of these competences should lead to an indication of a violation of a particular legal norm by a violation of the order or ban included in its instructions. In the second group we are dealing with, for example, the competences to award orders and decorations, to execute the right of pardon and to refuse to sign a statute, legislative initiative, a referral of a motion to the Constitutional Tribunal or the referral of initial motions to the Marshal of the Sejm to hold certain persons accountable before the Tribunal of State. In the case of the second group of competences, the operation establishing the committing of the delict is much harder on account of the appearance of the sphere of discretion. It will be legitimate, however, to consider two issues: an assessment of the violation from the material side, and thus waiving the principle of a formal approach to the delict and paying attention to the responsibility for the so-called legislative nonfeasance, when the President is statutorily obliged to issue a legal act26. It is also beyond dispute that many actions included in the second group of competences are subject to political assessment, including an assessment by public opinion, e.g. the award of orders and decorations or making use of the right to pardon27.

26 The Supreme Court found that the omission of issuing an executive act to a statute can constitute a constitutional delict in connection with a violation of Article 2 and Article 7 of the Constitution and also the rights deriving from the statute; the judgement of the Supreme Court of 6 January 1999, fi le No. III RN 108/98, OSNP 1999, No. 20, item 639. 27 This is why a critical look needs to be taken at the statement by Aleksander Kwaśniewski about the intention to make use of the right to pardon those perpetrators of economic crimes who, after re- ceiving fi nancial benefi ts (bribes), reveal the criminal procedure. Such a pardon would be a factor affecting in a specifi c way the criminal proceedings and the administration of justice. The presidential candidate, Donald Tusk, in turn emphasised that he would reveal the secret list — reasons unknown — of pardoned criminals, suggesting the execution of legal responsibility on the representatives of the departing SLD team [SLD — Sojusz Lewicy Demokratycznej — Union of the Democratic Left]; cf. Na całość — interview with Donald Tusk, “Newsweek” 28 August 2005, p. 20. Certainly, consideration is due to the publication of the decision of the President of the Republic of Poland about the pardons in the Offi cial Gazette of the Republic of Poland “Monitor Polski”; cf. Article 10 para. 2(4) of the Act of 20 July 2000 on the Promulgation of Normative Acts and Some Other Legal Acts, Dziennik Ustaw (Journal of Laws) 2000 No. 62, item 718, as amended. 72 The Sejm Review Third Special Issue / 2007

There is no doubt about the issue of the responsibility of the President for violating constitutional norms by neglecting to obtain a counter-signature on an offi cial act. This responsibility is justifi ed by the violation of the norm ordering, as a matter of principle, the obtaining of a counter-signature. Thus, the initiative intending to indicate that the counter-signature is unnecessary rests on the Chancellery of the President. Any possible legal doubts as to the nature of an act and the obligation (or lack of obligation) to obtain a counter-signature should be settled by legal consultations or by the initiating of a competence dispute before the Constitutional Tribunal28. The lodging before the President of a document including the signature of the Prime Minister — which takes place in the accepted practice for the preparation of acts — or the submission of a motion does not free the President from making an assessment of the legal conformity of the document to the Constitution or statutes before adding his own signature. In my opinion, the exercise of due diligence in this respect is indispensable on account of the President’s function as the guardian of the Constitution and the premise of his legal responsibility. The fact needs to be emphasised that due diligence — excluding unintentional fault — would be expressed by the obtaining of positive legal expert opinions and by the conducting of immediate consultations with the government. In the literature the justifi ed argument is raised that in contemporary republican systems emphasis should be placed on the cooperation of the double- headed executive, whose expression is to be exactly the counter-signature with a different function when compared with its traditional monarchical pedigree29. The question could then be asked as to what sense the provisions of Article 145 paragraph 1 and Article 198 paragraph 1 of the Constitution would have if we were to exclude to- tally the responsibility of the President for the legal and formal assessment of an act being, from the material and political point of view, a government act. Admittedly, the acceptance of the concept of unintentional fault as the basis for responsibility may — in the opinion of some authors30 — cause a certain disproportion between the status of the procedure and the degree of culpability, but it is an accurate premise that only the exclusion of unintentional fault gives the basis for the exclusion of responsibility. The above remarks incline towards emphasising the problem of the culpability itself for the committing of a constitutional delict. In the previous wording, i.e. that binding until 2001, of Article 1 paragraph 3 of the Act on the Tribunal of State, citing the Lublin textbook on constitutional law, it was formulated in the following way: “The responsibility of a person subject to constitutional responsibility includes those acts not constituting a crime by which this person in this area of his offi ce or in con-

28 In connection with this, it becomes legitimate to consider the changes and modifi cations of the provisions of Articles 53 and 54 of the Constitutional Tribunal Act of 1 August 1997 concerning the scope and settlement of competence disputes, Dziennik Ustaw (Journal of Laws) No. 102, item 643, as amended. 29 A. Frankiewicz, Kontrasygnata aktów urzędowych Prezydenta RP, Kraków 2004, p. 243. 30 R. Mojak, Instytucja Prezydenta RP w okresie przemian ustrojowych, Lublin 1995, p. 110. Jerzy Ciapała: The Issue of the Legal Responsibility of the President of the Republic of Poland 73 nection with the post held violated in a culpable way the Constitution or another statute”. In other words, a constitutional delict was and remains a culpable violation of the Constitution or a statute which does not exhaust the attributes of a crime31. Culpability while violating the Constitution or another statute was also mentioned in the Kraków textbook, in which it was stated that “constitutionality responsibility embraces exclusively actions constituting a culpable violation of the Constitution or a statute”32. This should be acknowledged as an acceptance of intentional fault and unintentional fault by the ordinary legislator and the doctrine. In the face of the silence of the constitutional legislator on the subject of fault when perpetrating a constitutional delict, attention must be paid to the current amended Article 3 in conjunction with Article 1 of the Act on the Tribunal of State33. This says that constitutional responsibility includes actions, including those of the President, within the offi ce held or within its scope, by which “even if unintentional” the Constitution or a statute was violated. I assume that an unintentional violation means a lack of intent, a lack of due diligence required from persons holding the highest offi ce in circumstances in which the possible committing an act was foreseen or was foreseeable. A full assessment of the relation of the President to the act perpetrated should, therefore, include several elements of the proceedings and awareness, defi ning his attitude to the perpetrated act: 1) the intention to perpetrate an act inconsistent with the law; 2) agreeing to such an act, with the foresight (awareness) that it might be illegal (these elements defi ne intentional fault); 3) the lack of foresight of illegality, although he should and could have foreseen this; 4) unjustifi ed reckless supposition that he could avoid perpetrating an illegal act34. Citing the view of Paweł Sarnecki, it should be accepted that constitutional responsibility, as a responsibility which is personal in nature, cannot be based on a to- tally objective (based on risk) responsibility for the effect, for a state of things inconsistent with the law35. Approval for a different view might mean that each offi cial act of the President (and also other State organs) later found by the Constitutional Tribunal as unconstitutional, might constitute a constitutional delict and — at least theoretically — provide the basis for constitutional responsibility. The next question is the accepted procedure for holding the President of the Republic of Poland constitutionally responsible. This is regulated by Article 145, paragraphs 2 and 3 of the Constitution and in particular by Article 6, paragraphs 1 and 5, Article 7, Article 8, Article 9, Article 10 and Article 13 of the Act on the

31 R. Mojak, Prezydent Rzeczypospolitej Polskiej, [in:] Polskie prawo konstytucyjne, ed. W. Skrzydło, Lublin 2004, p. 301. 32 K. Wojtyczek, Prezydent Rzeczypospolitej, [in:] Prawo konstytucyjne RP, ed. P. Sarnecki, Warszawa 2004, p. 318. 33 Dziennik Ustaw (Journal of Laws) 2001 No. 125, item 1372. 34 Cf. Article 9 of the Act of 6 June 1997 — The Penal Code, Dziennik Ustaw (Journal of Laws) No. 88, item 553, with changes. 35 Cf. P. Sarnecki, Commentary to Article 145 of the Constitution of the Republic of Poland, [in:] Konstytucja Rzeczypospolitej Polskiej. Komentarz, vol. III, Warszawa 1999. 74 The Sejm Review Third Special Issue / 2007

Tribunal of State36, and also the provisions of the rules of procedure of the Sejm37. The following six fundamental stages of the procedure might be distinguished: 1) the formulation of an initial motion to indict the President of the Republic of Poland, directed to the Marshal of the Sejm and signed by at least 140 members of the National Assembly; 2) the proceedings of the for Constitutional Accountability Committee (CAC) in relation to the received motion, which is concluded with presenting a report containing a motion to the National Assembly to indict the President of the Republic of Poland or to discontinue the proceedings in the case; 3) the presentation of the CAC report to the National Assembly; 4) the passing by the National Assembly of a resolution to indict the President of the Republic of Poland, which can only be taken by a majority of at least 2/3 of the statutory number of members of the Assembly; the passing of the resolution is accompanied by choosing two prosecutors and the effect of its acceptance is a suspension of the President’s holding of offi ce; 5) proceedings before the Tribunal of State, which is the court of fi rst instance and also adjudicates in the second instance; 6) a judgement by the Tribunal of State on the dismissal of the President of the Republic of Poland from offi ce, which takes place in the case of even unintentional violation of the Constitution of the Republic of Poland or a statute within the offi ce or within its scope, irrespective of other sanctions which the Tribunal of State might impose in combination or separately (Article 25 of the Act on the Tribunal of State). In connection with the legal proceedings, three particular matters require attention. Firstly, in the case of the President, the competence of initiating proceedings and of lodging a motion does not belong to the Sejm investigative committee. This is an apt solution since it excludes the risk of initiatives of a political dimension and without the broad consensus of the political class. Secondly, the constitutional legislator, in various contexts of the content of the provisions, adopts three linguistic terms: “being held accountable before the Tribunal of State” (Article 145 paragraph 1), “bringing an indictment” (Article 145 paragraph 2) and “being constitutionally accountable before the Tribunal of State” (Article 198 paragraph 1). Thirdly, critical attention is aroused by the omission of senators in the composition of the committee examining the constitutional responsibility of the President. It has correctly been pointed out that since the members of the National Assembly formulate the motion and the Assembly has the exclusive competence to hold the President responsible then the lack of participation of senators in the CAC, which ought to be a committee of the National Assembly, is surprising38. The substantial arguments in favour of this

36 The procedural aspect of the proceedings is broadly analysed by J. Zaleśny, Odpowiedzialność konstytucyjna w prawie polskim..., p. 208–282. From the point of view of the procedural stages, the author distinguished between preparatory, jurisdictional and executive proceedings, ibidem, p. 209. 37 Cf. chapter 10 of the rules of procedure of the Sejm of the Republic of Poland, Offi cial Gazette of the Republic of Poland: “Monitor Polski” 2002 No. 23, item 398. 38 Cf. the legal opinions of L. Garlicki and W. Sokolewicz formulated in this area as early as 1992, [quoted after:] J. Zaleśny, op. cit., p. 226. Jerzy Ciapała: The Issue of the Legal Responsibility of the President of the Republic of Poland 75 are the ones connected with the reliability and objectivity of the proceedings and the political and legal arguments referred to the need for fuller representativeness. The last issue of fundamental signifi cance, determining the possibilities of realising the constitutional (and also criminal) responsibility of the President, is the context of the political situation, the real arrangement of the political forces ready to remove the President from offi ce. This evokes a thought about the so-called political will which must be expressed by the politicians who sit in the chambers and who come from different groupings. The legal procedure itself is after all so regulated that, given the lack of a political consensus, there are no realistic chances of executing responsibility39. We are dealing, therefore, with regulations whose signifi cance is more potential than real, and only an extraordinary situation and the undoubted “gravity” of the violations could lead to the appearance of the actual problem of the constitutional responsibility of the President. This would be a problem with a negative effect on the condition of the State and its fundamental political interests. The possible suspension of the holding of offi ce and the excessive length of the legal proceedings could exert a negative infl uence on the functioning of the organs of the State and decision-making processes, not to mention the challenge that this would bring to the legal and political culture of many milieux.

3. CRIMINAL RESPONSIBILITY The criminal responsibility of the President of the Republic of Poland can be realised only before the Tribunal of State and in a manner and on principles corre- sponding to the proceedings in the matter of constitutional responsibility. In the light of the linguistic interpretation of Article 145 paragraph 1 of the Constitution, what needs to be underlined are the exclusivity of this procedure and the competence of the Tribunal of State in the area of adjudication in respect of all crimes, including fi s- cal offences, and therefore not only those connected with the holding of offi ce. The stating of the committing of a crime will mean the dismissal of the President from offi ce and the imposition of a punishment or penal measure provided for in the Penal Code. The Tribunal of State may content itself with simply declaring the guilt of the accused in the case of the minimal noxiousness of an act to society or in special circumstances of the case (Article 25 of the Act on the Tribunal of State). The President is therefore a particular organ enjoying privilegium fori, but in the case of other per-

39 This was proved by the discontinuation of the proceedings against President Wojciech Jaruzelski, initiated by a decision of the Constitutional Tribunal, in which the Tribunal formulated a motion to hold Jaruzelski constitutionally responsible for issuing an order for the destruction of the documents of the Central Committee of the Polish United Workers’ Party which had great historical value, which might constitute a violation of the Act on National Archive Collections and Archives; cf. the judgement of the Constitutional Tribunal of 20 May 1992 (Judgements of the Constitutional Tribunal 1986–2004 — a document of the Offi ce of the Constitutional Tribunal — CD); Z. Czeszejko-Sochacki, “Państwo i Prawo” 1993, fascicle 2, p. 104. In describing the indicated case, J. Zaleśny writes about the “immo- bility of the parliamentary mills” and the political conditioning of proceedings, cf. J. Zaleśny, Odpowiedzialność konstytucyjna. Praktyka III RP, Warszawa 2004, p. 212–228. 76 The Sejm Review Third Special Issue / 2007 sons holding the highest state offi ces criminal responsibility before the Tribunal of State has a merely subsidiary nature40. It is worth noticing that in the context of the criminal responsibility of the President, Bogusław Banaszak submitted a proposal for an amendment of the Constitution of the Republic of Poland in connection with the ratifi cation by Poland of the Statute of the International Criminal Court so as not to exclude the possibility of including the President of the Republic of Poland in criminal jurisdiction41. In a legal analysis, what is also of great signifi cance is the statutory norm according to which the period of prescription for crimes or fi scal offences for which the person holding the offi ce has not been indicted before the Tribunal of State (Article 2 paragraph 2 of the Act on the Tribunal of State) is suspended. In analysing the criminal responsibility of a person holding the highest offi ce in the State, we can foresee fi ve possible situations: 1) the committing of a crime before taking offi ce and the execution of legal responsibility after the end of the term; this is facilitated by the provision of Article 2 paragraph 2 of the Act on the Tribunal of State; 2) the committing of a crime before taking offi ce and the execution of criminal responsibility during the term, which would necessitate the initiation of proceedings in accordance of Article 145 paragraphs 2 and 3 of the Constitution; 3) the committing of a crime during the holding of offi ce and a judgement on responsibility during the term, which means proceeding as in point 2; 4) the committing of a crime during the holding of offi ce and the execution of responsibility after the term; 5) the committing of a crime after the term and a judgement in relation to the former President42. Insofar as in the situations in points 1 and 5 there is no dispute about the competence of the public prosecutor’s offi ce and the cognition of common courts, in the situations in points 2 and 3 we can consider only the jurisdiction of the Tribunal of State. On the other hand, the only argument in favour of the execution of criminal responsibility before the Tribunal of State in the situation in point 4 — in my opinion — is Article 23 paragraph 1 of the Act on the Tribunal of State: “prosecution before the Tribunal of State is admissible within the period of 10 years after the committing of the act, unless this act constitutes a crime or a fi scal offence, for which a longer period of limitation is foreseen. The circumstance in which the perpetrator no longer holds offi ce or does not fulfi l the function is not an impediment to the initiating and conducting of proceedings”. This provision ought to be changed in such a way as to allow the former President of the Republic of Poland to be held responsible before the Tribunal of State only for constitutional delicts and not for crimes, where common courts should sit in judgement. We should agree with the arguments accepting that the linguistic and functional interpretations of Article 145 paragraph 1 of the Constitution, the ratio of this provision being compared with the ratio of Article 198

40 L. Gardocki, Tylko przed Trybunałem, “Rzeczpospolita” 13 September 1999. 41 B. Banaszak, Prawo konstytucyjne, Warszawa 2004, p. 628. 42 I quote the indicated situations after D. Szumiło-Kulczycka, Odpowiedzialność karna przed Try- bunałem Stanu, “Przegląd Sejmowy” 2001, No. 4, p. 95. Jerzy Ciapała: The Issue of the Legal Responsibility of the President of the Republic of Poland 77 of the Constitution, make us accept that the former holder of offi ce should be tried before a common court43. The justifi cation for the privilegium fori is based on the need to ensure the stability of the offi ce and the protection of its holder in the face of hasty legal initiatives, including in matters of lesser weight. This is expressed sui generis by the formal immunity of the President of the Republic of Poland. Such a justifi cation does not apply to persons not holding offi ce. Moreover, it seems that the exclusion of the jurisdiction of common courts would constitute a violation of the principle of the equality of citizens before the law. The next matter is the particular legal protection of the President in the area of substantive criminal law. The Penal Code regulates three particular crimes, i.e. an attempt on the President’s life, assault and battery and insulting the President of the Republic of Poland, classifi ed among the crimes against the Republic of Poland (Articles 134 and 135 in conjunction with Article 115 §3 of the Penal Code)44. It does not seem that assault and battery and, even more so, insulting the President require separate qualifi cation. This regulation could be made use of against the expressions of public and private persons who are often imprudent and are characterised by their emotions or conditioned by a lack of good manners. Meanwhile, the President enjoys general protection as a public functionary. On the other hand, we should assess negatively the lack of coherence in the provisions of the Constitution between the legal protection of the President and the position of parliamentarians. It is incomprehensible after all why there is no regulation of the material immunity of the President and no constitutional guarantee of the inviolability of his person. We can, however, encounter such a regulation in the case of the position of deputies and senators (cf. Article 105 paragraphs 1 and 5 of the Constitution). The remarks above lead to the indication of another separate problem with great legal and political signifi cance. This problem requires the formulation of a de lege ferenda proposal, in the scope of changes in the provisions of the Constitution. It concerns passive electoral rights (eligibility) for the offi ce of President, which — in my opinion — was formulated too broadly. So, in accordance with Article 127 paragraph 3 of the Constitution, any Polish citizen who is over 35 years of age on the day of the election and who possesses full voting rights for the Sejm may be elected President of the Polish Republic. In turn, Article 62 paragraph 2 states that the right to be elected is not due to those who have been legally incapacitated or deprived of civic or electoral rights45. These provisions ought to be analysed together since they determine the content of the right of eligibility. The limiting of passive electoral

43 D. Szumiło-Kulczycka, Odpowiedzialność..., p. 96 44 Act of 6 July 1997 — The Penal Code, Dziennik Ustaw (Journal of Laws) No. 88, item 553, as amended. 45 The deprivation of public rights is not a penal measure applied particularly frequently, but the deprivation of voting rights belongs to the competence of the Tribunal of State. Cf. Articles 7 and 8 of the Act of 12 April 2001 — Act on Elections to the Sejm of the Republic of Poland and to the Senate of the Republic of Poland (Dziennik Ustaw 2001 No. 46, item 499, as amended) and Article 3 of the Act of 27 September 1990 on the Election of the President of the Republic of Poland (Dziennik Ustaw of 2000 No. 47, item 544, as amended). 78 The Sejm Review Third Special Issue / 2007 rights through the establishment of new negative premises might — it would seem — take place only by way of an amendment of the Constitution. The current legal situation is diffi cult to accept and it indicates also an incomprehensible axiological inconsistency with the statutory regulations of the right to stand for election to the decision making and executive organs of local government, according to which the right to hold offi ce is not due to persons fi nally convicted for wilful crimes prosecuted ex offi cio. It is also worth noting that the loss of the mandate of a councillor or commune administrator (mayor, city mayor) while holding offi ce also occurs ex lege, as the result of the judgment for such crimes having become fi nal46. Meanwhile, a person against whom a fi nal judgment was rendered may be a candidate for President, if he has not been deprived of civic rights, i.e. a person with respect to whom criminal responsibility has been realised47. In my opinion, it is worth thinking about the far-reaching proposal that not only persons fi nally convicted for crimes committed with wilful fault and prosecuted ex offi cio but also those who have been charged with committing such crimes should be deprived of the passive electoral rights. A de lege ferenda proposal could be implemented with the next amendment to the Constitution of the Republic of Poland.

4. CIVIL RESPONSIBILITY The starting point for a consideration of the civil responsibility of the President must be an unequivocal separation of the responsibility for the actions or omission of an organ of public authority and the civil responsibility of an offi ce holder. It is worth recalling that the March Constitution, in Article 51 paragraph 1, stated that the President of the Republic of Poland is not responsible for offi cial actions either civilly or before Parliament. The basic separation of these kinds of responsibility allows us to avoid misunderstandings as to the accepted responsibility of the State for damage infl icted by the actions of an organ that were not in accordance with the law (Article 77 paragraph 1 of the Constitution and Articles 417 and 4171 of the Civil Code)48 and the civil responsibility of a natural person, i.e. contractual or tortious responsibility or that arising from unjust enrichment. 46 Cf. Article 7 para. 2(1) and (2) and Article 190 para. 1(3) of the Act of 16 July 1998 — Act on Elections to commune (gmina) councils, county (powiat) councils and voivodeship assemblies (Dzien nik Ustaw of 2003 No. 159, item 1547, as amended) and Article 26 para. 1(3) of the Act of 20 June 2002 on the Direct elections of commune administrators, mayors and city mayors (Dziennik Ustaw of 2002 No. 113, item 984, as amended). 47 In the face of fundamental legal doubts there did not come about a realisation of the initiative of the change in the electoral regulations to the chambers which had assumed the depriving of passive voting rights of those people who had been validly convicted of a wilful crime that is prosecuted by indictment or for fi scal offences; Sejm Papers No. 3134/Sejm IV term of 16 July 2004 and No. 314A/Sejm IV term of 29 July 2004. 48 This problem was, and is, broadly analysed in the literature; cf. e.g. M. Safjan, Odpowiedzialność państwa na podstawie art. 77 Konstytucji RP, “Państwo i Prawo” 1999, fascicle 4; E. Łętowska, W kwestii zmian przepisów Kodeksu Cywilnego o odpowiedzialności za szkody wyrządzone działaniem władzy publicznej, “Państwo i Prawo” 1999, fascicle 7. Vide also the judgement of the Constitutional Tribunal of 23 September 2003, fi le No. K 20/02. Jerzy Ciapała: The Issue of the Legal Responsibility of the President of the Republic of Poland 79

It should not arouse any doubts that the civil responsibility of a person holding offi ce cannot be limited. The lack of or limiting of civil responsibility would constitute a clear violation of the rights and freedoms of other persons, attacking the principle of equality before the law and the constitutional protection of rights (Article 32 and Article 37 of the Constitution). The President can participate in civil cases as a litigant or in non-litigious proceedings if such is his will or if he is summoned or notifi ed as a result of the will of another subject. The President is not protected by any jurisdictional immunity and in this sense his position is weaker than that of a person with diplomatic or consular immunity (cf. Articles 1111–1115 of the Code of Civil Procedure)49. It could also be indicated that generally negative political consequences, including those referring to the actual prestige of the offi ce in the opinion of the public, would arise from the situation in which the President (or his closest relatives) had a civil claim made against him or if there were court proceedings in progress. It seems that the intention of the constitutional legislator should be to limit the risk of such events and situations taking place in which the problem of this responsibility could take place. The principle of incompatibilitas only goes in this direction to a certain degree. From this arises the ban on holding other offi ces and fulfi lling public functions, excluding those which are connected with the exercising of the offi ce of President (Article 132 of the Constitution). What also needs to be considered is the protection of the President from legal initiatives, including court proceedings, during his term of offi ce. Many such initiatives can arise for political reasons or simply from the desire for publicity. Undoubtedly this would have to be connected with the interruption of the course of the limitation of claims and a ban on initiating proceedings when the President is the defendant but in such a way that, after the end of the term, there would be no impediments to the execution of responsibility. This would require the intervention of the constitutional or the ordinary legislator. A head of state suspected of violating the law cannot be freed from a trial, hence the option of waiving protection during the term of offi ce would also be justifi ed50. The holder of the offi ce can always — by way of civil proceedings — defend his own rights and pursue his own claims51.

5. THE PRESIDENT AS A WITNESS IN COURT PROCEEDINGS The issue of legal responsibility, or more precisely the President’s subordination to the law, forces us to pay attention to the signiﬁ cant problem of the obligation of the President to appear before a court or other organ conducting legal proceedings

49 Act of 17 November 1964 on the Code of Civil Procedure, Dziennik Ustaw No. 43, item 296, as amended. 50 A solution intended to ensure the legal protection of the President was the subject of considerations in the Constitutional Committee of the National Assembly, Bulletins of the KK ZN [CC NA], No. X, Warszawa 1995, p. 215 and No. XXI, Warszawa 1996, p. 50–51. 51 The action by Aleksander Kwaśniewski against one of the newspapers libelling the petitioner on the subject of a meeting with a KGB agent was therefore obvious. 80 The Sejm Review Third Special Issue / 2007 and to make statements in the nature of a witness. The lack of regulations of a constitutional status is the cause of the appearance of contradictory arguments in connection with the summoning of the President to sittings of the Sejm investigative committee. The arguments for the right to refuse to appear referred to the position of the President of the Republic of Poland as an organ of executive power and to his signifi cant constitutional functions. In the case of the Sejm investigative committee, its place as an organ of the Sejm was indicated, which meant that it could not freely interfere in the activity of the President. Thus, the normative provisions defi ning the constitutional functions and the status of the organ within the framework of the separation of powers were to constitute the basis for the reconstruction of norms preclud- ing — in a certain scope — the subordination of the President to the law. It was hard to determine with the help of which inferences a legal norm was introduced permitting the non-appearance of the President. Undoubtedly we were dealing with a lack of understanding of the normative meaning of Article 10 of the Constitution and with an adoption of argumentation unacceptable on the foundation of Polish legal culture. As a principle, the President is obliged to fulfi l the duties incumbent on every citizen of the Republic of Poland. This ensues from both the principles of legalism, when he undertakes offi cial actions (Article 7), and the constitutional norms obliging the ob- servation of the law (Article 83), when he is undertaking actions not connected with the offi ce held. Exceptions from this rule in the form of immunity or privilege can be provided by the Constitution or statutes. The Code of Penal Procedure (Article 177 and ff.)52, the Code of Civil Procedure (Articles 259 and 261) and the Act on Sejm Investigative Committees (Article 11)53 order the appearance of persons summoned as witnesses and there is no mention of excluding the person holding the offi ce of President of the Republic of Poland from this duty. It is diffi cult, therefore, not to agree with the view that “holding offi ce cannot constitute a premise for obtaining privileges not defi ned expressis verbis in legal norms”. The summoning of the President is in fact the summoning of a citizen as a witness and there is no reference to his competences defi ning the scope of authority54. We must be aware, however, that the serving President of the Republic of Poland will be endangered by the activities aiming to discredit him in the eyes of public opinion or to gain publicity for the initiators. This means in practice that considerable circumspection and carefulness will be required from the court which should very thoroughly assess the appropriateness of the evidence from the statements of this witness, with due consideration taken of the fundamental risk of lengthening the

52 Act of 6 June 1977 on the Code for Penal Procedure, Dziennik Ustaw No. 89, item 555, as amended. 53 Act of 21 January 1999 on the Sejm investigation commission, Dziennik Ustaw No. 35, item 31, as amended. 54 B. Banaszak, Prawo konstytucyjne, Warszawa 20004, p. 628. The author cites, among other things, the article by E. Marszałkowska-Krześ and S. Krześ, Wzywa się na świadka, “Rzeczpos- polita”, 15 May 2000, p. C2. Jerzy Ciapała: The Issue of the Legal Responsibility of the President of the Republic of Poland 81 proceedings (cf. Article 217 § 2 and Article 242 of the Code of Civil Procedure) and also with due consideration of the circumstance that the statements do not have to be made in the seat of the given court (Article 151 and Article 235 of the Code of Civil Procedure and Article 37 of the Code of Penal Procedure). Another matter is the consideration of whether the President could be questioned in the case of events covered by the protection of secret information, since in such a situation it would be impossible, given the lack of a higher level agency, of releasing him from the obligation of preserving secrets (cf. Article 259(2) of the Code of Civil Procedure and Article 179 of the Code of Penal Procedure). The court is not legally obliged to reach agreement on the place and the date of the witness’s testimony. However, for courtesy reasons, or sometimes in the interest of the State, prior consultations should be conducted. The lack of such agreement will increase the risk of lengthening the proceedings, since the possibilities of the court testing the arguments in a motion for adjournment are limited. It would after all be difﬁ cult to assess concrete events from the point of view of the broad scope and diversity of the ofﬁ cial duties of the President. We are dealing, therefore, with the sphere of behaviour, which — to a considerable extent — evades precise legal regulation and requires the good will and courtesy of the persons involved.

6. FINAL REMARKS The constitutional regulation of legal responsibility, including in particular constitutional responsibility of the President of the Republic of Poland, is basically accepted in contemporary constitutional law, although we do not encounter any reason- ably uniform model of regulations with reference to the issues of substantive law and the accepted course of proceedings. The constitutional law of democratic countries cannot exclude the responsibility of the person holding the highest offi ce in the State, irrespective of the scope of the granted ruling and political competences. The Constitution of the Republic of Poland of 1997 specifi es expressis verbis the constitutional and criminal responsibility of the President of the Republic of Poland, given the general premise that this is responsibility for violating the Constitution or statutes, including criminal statutes. The concept was accepted of responsibility for actions undertaken even with unintentional fault and the introduction of a gradation of violations was omitted, e.g. introducing responsibility only for serious violations of statutes. The silence of the constitutional legislator on the subject of the civil responsibility of the holder of the offi ce cannot mean a negation of the premise that it is to be borne — in the material aspect in full scope — in accordance with the principle of equality before the law. The fundamental problems that are revealed by the binding constitutional regulations concern the lack of cohesion between the protection of the President and of parliamentarians in the scope of immunity, the fl awed regulations concerning passive electoral rights, i.e. allowing a person convicted of a crime with intentional fault 82 The Sejm Review Third Special Issue / 2007 prosecuted ex offi cio to be a candidate for the highest offi ce, and the lack of formal immunity “suspending” civil responsibility. It is justifi ed to consider a fuller constitutional regulation of the legal responsibility of the President in the aspects of substantive and procedural law. Another solution would be the adoption of a separate law on the protection of the person of the President of the Republic of Poland (the Hungarian example), which would replace the legislative measures in the Code of Penal Procedure, the Code of Civil Procedure and the Act on the Sejm investigative committee. In considering the procedural and institutional aspects, it is appropriate to indicate the participation of senators in the work of the Constitutional Accountability Committee of the National Assembly (and not just to limit it to the deputies’ committee). There must still be postulated a broadening of the cognition of the Constitutional Tribunal to include matters of constitutional responsibility. The essence of the judgements of the Constitutional Tribunal is expressed after all in assessments of violations of the Constitution of the Republic of Poland and statutes and some of its competences are connected with the person of the President (Article 131 paragraph 1 of the Constitution). Meanwhile, the Tribunal of State, as the political representation in the Sejm of a given term and not having any established authority, is an institution whose ratio in effect comes down to existing rather than acting. Solutions defi ning the jurisdiction of the constitutional court are worthy of interest (examples in Germany, Austria, Hungary, the Czech Republic, Slovenia). This would mean the execution of the criminal responsibility of the President of the Republic of Poland exclusively before common courts on the condition that there was an expression of the decided political will of both chambers as to the dismissal from offi ce or a suspension in its execution. It would after all be diffi cult to imagine the continuation in the offi ce of the President of the Republic of Poland of a person charged with the perpetration of a serious crime. 83

ROMAN HAUSER PROFESSOR, ADAM MICKIEWICZ UNIVERSITY IN POZNAŃ ANDRZEJ KABAT PROFESSOR, UNIVERSITY OF WARMIA AND MAZURY IN OLSZTYN

QUESTIONS OF LAW AS A PROCEDURE FOR THE REVIEW OF THE CONSTITUTIONALITY OF LAW*

The Constitution of the Republic of Poland is occupies a special position in the system of binding law. This is indicated particularly in Article 8 paragraph 1, which deﬁ nes it as the “supreme law of the Republic of Poland”. The Constitution, therefore, occupies the highest rank of the hierarchy of legal acts in the state, and the legal norms contained within it have precedence over other legal provisions. One of the consequences of this above-mentioned feature of the Constitution is the requirement that all the legal norms binding in the state be in conformity to its provisions. In order to ensure this particular superior position of the Constitution in practice, most often there are established special organs to review the conformity of legal acts issued by state organs to the provisions of the basic law. In Poland, as in many European states, the execution of this review has been entrusted to a special organ, the Constitutional Tribunal, whose role and tasks are deﬁ ned above all by the Constitution itself. The Constitutional Tribunal, as the organ appointed to ensure the constitutionality of the legal system, carries out the tasks arising from this goal mainly by issuing judgments. The Tribunal, therefore, formulates its views in the judicial decisions which it

* This article was published in „Przegląd Sejmowy” No. 1(42)/2001. 84 The Sejm Review Third Special Issue / 2007 issues after conducting the appropriate proceedings. There are two types of procedures for review of the law as specifi ed in the Constitution of the Republic of Poland, an abstract review and a specifi c (“concrete”) review. Abstract review is carried out without reference to a particular case in which the provisions were applied., whereas concrete review is initiated by a court in connection with a particular case currently being examined by that court. Within the meaning of the Constitution of the Republic of Poland this latter form of review is constituted above all by the procedure of questions of law. The features of this review are also to be seen in constitutional complaints. The fundamental feature of questions of law as a form of review of the conformity of a law to the Constitution is its connection with proceedings being conducted in an individual case. The subject of a question is always a doubt which has arisen in the course of concrete proceedings. The requirement for a connection between the question of law and the aforementioned proceedings has an absolute nature. The existence of such a connection is a necessary prerequisite for both the initiation and the conduct of proceedings in the matter of the legal question. The declaration during the course of proceedings before the Tribunal that such a connection does not exist constitutes a barrier to further conduct of the proceedings. The close connection between questions of law and the proceedings being conducted in an individual case is expressed furthermore by the fact that the subject of the question can only be such a constitutional doubt that is important for the further course of the proceedings. It is only the decision of the Tribunal that goes beyond the framework of concrete proceedings and, in the case of a judgement fi nding the normative act not to be in conformity with the constitution (or statute or ratifi ed international agreement), it has a universal nature. The review of the conformity of the law to the constitution within the context of pending proceedings in a particular case is an often encountered form of this review1. Such a solution is applied by both the countries where this review is carried out by courts and by those where this task has been entrusted to specially created constitutional courts. Undoubtedly, a very frequent cause of application of this form of review is the universal conviction that the real content of the legal norm can be best revealed and assessed against the background of its practical application. As was mentioned, within the framework of the procedure of questions of law, the assessment of normative acts takes place in connection with their practical application and, therefore, in optimal conditions. A full description of the instrument of questions of law addressed to the Constitutional Tribunal requires a closer defi nition of its objectives. Obviously, the fundamental aim of this instrument is the same as the aim to review the conformity of the law to the Constitution, since — as has already been indicated — questions of

1 The well-known decision by the United States Supreme Court in 1803 in the case of Marbury v. Madison, to this day regarded as the foundation of the contemporary idea of the review of the constitutionality of law, was issued in connection with the determination of an individual case; cf. further L. Gar- licki, Sąd Najwyższy Stanów Zjednoczonych Ameryki, Ossolineum 1982, p. 99–100. Roman Hauser, Andrzej Kabat: Questions of Law as a Procedure for the Review of the Constitutionality of Law 85 law constitute a form of this review. This aim is to ensure the constitutionality of the legal system. Within the framework of this fundamental aim, however, the procedure of questions of law also realises specifi c aims. In the literature concerning the constitutional courts of other countries, it is also stated that the procedure of the concrete review of legal norms within the framework of a similarly formulated fundamental aim (the protection of the supremacy of the Constitution) accomplishes specifi c aims. Among these there is, above all, the protection of the constitutional rights of the individual, which is probably a consequence of the fact that this procedure is initiated in connection with constitutional doubts revealed during the course of court proceedings, which relate most often to the protection of these very rights2. According to Polish legislation, the referral of questions of law to the Tribunal is also aimed at the protection of the constitutional rights of the individual. The scope of this protection is wide reaching — after all, the possibility of making use, with this aim, of the procedure of questions of law occurs within the framework of any court proceedings. The subject of questions of law can be not only doubts concerning the constitutionality of statutes, but also international agreements and other normative acts, if they have been subjected to the review of the Tribunal. The Tribunal accomplishes the above-mentioned aim either by initiating adjudications leading to the elimination of the defective normative act from the system of binding law or by giving it, by way of interpretation, a content that is in conformity to the Constitution. The result, therefore, of the adjudications and interpretations of the Constitutional Tribunal is that there arises, within the scope embraced by the proceedings of the Tribunal, an internal coherence of the legal system ensuing from the constitution. Within the framework of the procedure of questions of law, there arises, in connection with this, a transference of the constitutional principles to court judicial decisions and to shaping against their background an interpretation of the applied normative acts. This is an important feature of questions of law, indicating their signifi cant role in the protection of the supremacy of the Constitution. The close connection mentioned above between the instrument of questions of law and the proceedings being conducted in a particular case causes the aim of this procedure of review to be the protection of the individual interests of the parties to the proceedings during which there appeared the legal doubt embraced by the question of law directed to the Tribunal. This is, however, an additional aim of questions of law, subordinated to the fundamental aim of this procedure, namely the protection of the supremacy of the Constitution, and, therefore, its realisation only occurs within such a scope as is required by the considerations of its protection. Turning from these general remarks to an analysis of the instrument of questions of law in the context of the provisions of the Constitution of the Republic of Poland and the Constitutional Tribunal Act of 1 August 19973 (hereinafter referred to as “CTA”), the following must be stated.

2 L. Garlicki, Sądownictwo konstytucyjne w Europie Zachodniej, Warszawa 1987, p. 232. 3 Dziennik Ustaw [Journal of Laws] No. 102, item 643. 86 The Sejm Review Third Special Issue / 2007

The Constitution of the Republic of Poland regulates in fact all the fundamental matters connected with the functioning of the Constitutional Tribunal. So, it not only decides on the fundamental systemic matters of the Tribunal, but it also thoroughly defi nes its competence, indicating, among other things, the legal acts subject to the review of this organ, and naming the subjects with the right to initiate proceedings before the Tribunal as well as the nature and binding force of its judicial decisions. In accordance with Article 197 of the Constitution of the Republic of Poland, only the organisation of the Constitutional Tribunal and the mode of proceedings before it are to be regulated by statute. A particular matter connected with questions of law is regulated by Article 193 of the Constitution of the Republic of Poland. This provision establishes the subjective scope of this review of the law and its grounds (model), and names the subjects entitled to refer questions of law as well as defi ning the prerequisites whose presence is necessary for the initiation of the procedure of questions of law. Article 3 of CTA reiterates the content of Article 193 of the Constitution4. Turning now to considerations referring to the subjective scope of the procedure of questions of law, it must be noted that the establishment of the same limits of material jurisdiction for a concrete review of norms (questions of law) and for an abstract review of norms (motions) is the solution quite often encountered in practice5. This solution was also adopted in Article 33a paragraphs 1–3 of the Constitution of the Republic of Poland of 19526 and in Article 1(1) and (2) of CTA of 29 April 19857. The last of the aforementioned provisions indicated, in an unequivocal manner, that the limits of material jurisdiction defi ned in these norms refer to both of the above- mentioned procedures of review. In the approach of Poland’s Constitution, the material jurisdiction of the Tribunal is not identical in the cases of abstract review and questions of law8. As far as abstract review is concerned, this jurisdiction is specifi ed by Article 188(1)–(3) of the Constitution. According to this provision, “The Constitutional Tribunal shall adjudicate regarding the following matters: 1) the conformity of statutes and international agreements to the Constitution; 2) the conformity of a statute to ratifi ed international agreements whose ratifi cation required prior consent granted by statute;

4 In the opinion of the authors of Komentarz do ustawy o Trybunale Konstytucyjnym (Commentary to the Constitutional Tribunal Act), this means that “[…] in principle no amending of Article 3 can be effected without a previous change in the Constitution; each amending of CTA without a change in the Constitution would expose Article 3 of the CTA to a charge of non-conformity to Article 193 of the Constitution […]”. Cf. Z. Czeszejko-Sochacki, L. Garlicki, J. Trzciński, Komentarz do ustawy o Trybunale Konstytucyjnym, Warszawa 1999, p. 47. 5 A. Kabat, Pytania prawne do Trybunału Konstytucyjnego, Białystok 1995, p. 45. 6 The title of this constitution in the wording established by Article 1(1) of the Act of 29 December 1989 on the Amendment of the Constitution of the Polish People’s Republic (Dziennik Ustaw [Journal of Laws] No. 75, item 444). 7 Consolidated text published in Dziennik Ustaw [Journal of Laws] 1991 No. 109, item 470, with further amendments. 8 Cf. Z. Czeszejko-Sochacki, L. Garlicki, J. Trzciński, op. cit., p. 50. Roman Hauser, Andrzej Kabat: Questions of Law as a Procedure for the Review of the Constitutionality of Law 87

3) the conformity of legal provisions issued by central State organs to the Constitution, ratifi ed international agreements and statutes.” The material jurisdiction of the Tribunal in the case of questions of law is defi ned by Article 193 of the Constitution (Article 3 of CTA), which states: “Any court may refer a question of law to the Constitutional Tribunal as to the conformity of a normative act to the Constitution, ratifi ed international agreements or statute […]”. A comparison of the above-mentioned provisions of the Poland’s Constitution concerning the material jurisdiction of the Tribunal in cases of abstract review and questions of law leads to the conclusion that the difference lies, above all, in the term “normative acts” appearing in Article 193 of the Constitution. Admittedly, Article 193 of the Constitution does not directly defi ne with which normative acts it is concerned, but, taking into consideration the fi nal fragment of this provision, one should support the view that in this case we are talking about every such normative act on the basis of which the court can determine the case before it9. The subject, therefore, of a question of law can be statutes, acts below the rank of statute and also international agreements10, as long as they meet the requirement indicated earlier (i.e. they are of signifi cance for a settlement of the case). Particular attention is due to the omission in Article 193 of the Constitution of the clause narrowing the material jurisdiction of the Tribunal to acts issued by central state organs (cf. Article 188(3) of the Constitution). This means after all that within the framework of the procedure of questions of law the subject of review by the Tribunal can also be the enactments of local law, as long as, obviously, the court determines the matter on their basis11. It is worth recalling that the exclusion of such a possibility by the legal regulations previously binding in this scope was universally questioned. This solution was criticised for omit- ting the problem that these acts, applied quite frequently as the basis for the decisions of courts or other adjudicating organs, often contained regulations which were not in conformity to acts of higher rank, including statutes12. Not subjecting these acts, therefore, to review by the Constitutional Tribunal within the framework of the procedure of questions of law, was considered to be insuffi ciently founded. So, in connection with this, it was proposed that the provisions binding in this respect be changed13. The provisions of Article 193 of the Constitution satisfy these demands of the doctrine. It

9 In order to understand the notion “normative act”, it might be helpful to read the judicial decisions of the Tribunal which were issued in the previous legal system. It is worth remembering that this jurisprudence accepted the so-called material concept of a normative act and, therefore, regarded as such an act every regulation constituting a legal norm: the subject of such regulation, the form of an act or the legality of its adoption are not in this case decisive. Cf. further A. Kabat, Pytania prawne..., p. 49 et seq. 10 We consider that the term “normative act” includes also international agreements and that for this reason Article 193 of the Constitution of the Republic of Poland does not name separately these acts as acts subject to review by the Tribunal within the framework of the procedure of questions of law. 11 Similarly, Z. Czeszejko-Sochacki, L. Garlicki, J. Trzciński, op. cit., p. 52. 12 A. Zieliński, Sprzeczność aktu normatywnego niższego rzędu z ustawą w orzecznictwie Naczelnego Sądu Administracyjnego, “Przegląd Sądowy” 1993, No. 11–12, p. 56. 13 A. Kabat, Pytania prawne..., p. 138. 88 The Sejm Review Third Special Issue / 2007 must be noted here that currently the review of the legality of normative acts issued by organs of local self-government is possible through the lodging of various kinds of complaints with the Supreme Administrative Court. Furthermore, in accordance with the Supreme Administrative Court Act of 11 May 199514, the review conducted by this court includes also the local enactments issued by organs of government administration. In accordance, however, with Article 184 of the Constitution, the Supreme Administrative Court only adjudicates on the conformity of the aforementioned acts to statutes. This court, however, does not examine the constitutionality of these acts. The inclusion, therefore, of acts of local organs in the material jurisdiction of the Constitutional Tribunal within the framework of the procedure of questions of law created the basis for subjecting the named acts to review also as concerns their conformity to the Constitution. The Constitution of the Republic of Poland provides no time limits for the review under consideration15. This means that any norm of the binding law can be the subject of review. In connection with this, it should be emphasised that, in principle, the Tribunal still makes in its jurisprudence a distinction between the moment in which the normative act is repealed and the moment when it loses its binding force. It is accepted that if the repealed provision can still be applied to a past, present or future situation, then there has not taken place a full loss of its binding force and it is possible to issue a judicial decision in the matter of the constitutionality of such an act16. The basis for a review of the constitutionality of law is above all the present Constitution of the Republic of Poland. It constitutes a model (basis) for review irrespective of whether the reviewed act was adopted before or after the coming into force of the previously mentioned basic law17. The Tribunal, however, sometimes refers also to repealed constitutional provisions. An example of such reference is the judgement of 12 May 1998 (ﬁ le No. U.17/97), in which the Tribunal held “that in the case where the wording of particular provisions of the Constitution […] is consistent, in principle, with the wording of repealed constitutional provisions and where their

14 Dziennik Ustaw [Journal of Laws] No. 74, item 368, with later changes. 15 Also against the background of the Constitutional Tribunal Act of 29 April 1985 it is most often accepted that the temporal limits provided for in Article 24 do not concern questions of law. Cf. further L. Garlicki, J. Trzciński, Trybunał Konstytucyjny, ustawa o Trybunale Konstytucyjnym. Stan prawny na dzień 31 lipca 1996, Warszawa 1996, p. 122 et seq. Initially, however, doubts existed as to the scope within which this limit was binding. The Constitutional Tribunal after all only explained in its judgement of 2 February 1993, fi le No. P.4/93, that the temporal limits specifi ed In article 24 of the cited act did not concern the procedure of questions of law, OTK (Orzeczenia Trybunału Konstytucyjnego — Judgements of the Constitutional Tribunal) 1993, part I, item 3. It must be emphasised that in this case the Tribunal. supported the standpoint of the President of the Supreme Administrative Court, formulated in a question of law which initiated proceedings before the Tribunal in this case (fi le No. P.4/93). 16 Cf. the judgement of the Constitutional Tribunal of 5 January 1998, fi le No. P.2/97, OTK ZU (Orzeczenia Trybunału Konstytucyjnego Zbiór Urzędowy — Judgements of the Constitutional Tribunal — Offi cial Journal) 1998, No. 1, item 1, p. 6 and the order of the Constitutional Tribunal of 18 November 1998, fi le no. SK 1/98, OTK ZU 1998, No. 7, item 120. 17 Cf. L. Garlicki, Polskie prawo konstytucyjne. Zarys wykładu, Warszawa 1999, p. 330. Roman Hauser, Andrzej Kabat: Questions of Law as a Procedure for the Review of the Constitutionality of Law 89 systemic and functional context has not undergone signifi cant change, the new provisions retain their hitherto signifi cance”18. A similar standpoint was adopted by the Constitutional Tribunal in other judicial decisions as well19. Ratifi ed international agreements are also subject to review. In the legislative acts concerning the Polish Constitutional Tribunal this is a new solution, because until the Constitution of the Republic of Poland came into effect there was no normative basis for the Tribunal to rule on the conformity of national law to international agreements20. In the literature, it is emphasised that in practice it can be of great signifi cance to accept the European Convention on Human Rights as a basis for review of national law, particularly as its provisions have been supported by abundant jurisprudence of the Strasbourg organs21. Finally, statutes are also subject to review. This part of the review of law carried out by the Constitutional Tribunal is often described as a review of the legality of normative acts. Without questioning the approach dis- tinguishing this special form of a review of law, it is worth noting that, in the doctrine established against the background of previously binding constitutional provisions, the view was expressed that, since in the light of these provisions statutes were furnished with the highest legal force among the legal norms situated below the basic law, then every case of a collision between the norm contained in an act below the rank of statute and the norm of statute constitutes at the same time a breach of the Constitution22. Hence, in the period when the previously mentioned constitutional provisions were in force, also the making of an assessment of the conformity of acts below the rank of statute to statutes was defi ned as a review of the constitutionality of law. We believe that on the basis of the Constitution of the Republic of Poland this approach is still relevant and that is why in the further part of our deliberations the phrase “review of the constitutionality of law” will be used to mean a review of the conformity to statutes of acts below the rank of statute. According to Article 193 of the Constitution (Article 3 of CTA), the right to submit a question of law is accorded to every court. The Constitution, therefore, broadens and modifi es, in comparison with earlier binding regulations, the category of courts entitled to refer such questions. It is worth recalling that, according to the law in force until the day the Constitution of the Republic of Poland came into force, the above-mentioned powers were reserved for only some courts, namely the adjudicat-

18 OTK ZU 1998, No. 3, item 34, p. 206. 19 Cf. e.g. the judgement of the Constitutional Tribunal 25 November 1997, fi le No. K.26/97, OTK ZU 1997, No. 5–6, item 64. 20 The Constitutional Tribunal, however, several times referred to the provisions of international agreements, using them not only when interpreting Polish law but also when assessing the constitutionality of questioned normative acts, cf. further K. Działocha, Przepisy utrzymane w mocy. Rozdział 4, art. 33a, [in:] Komentarz do Konstytucji Rzeczypospolitej Polskiej, ed. L. Garlicki, Warszawa 1995, p. 15–16 and A. Kabat, Pytania prawne..., p. 60 et seq. 21 L. Garlicki, Polskie prawo konstytucyjne..., p. 330. 22 L. Garlicki, Trybunał Konstytucyjny a rola sądów w obronie konstytucyjności prawa, „Państwo i Prawo” 1986, fascicle 2, p. 26. 90 The Sejm Review Third Special Issue / 2007 ing benches of following courts: the Supreme Court, the Supreme Administrative Court and the courts of appeal. On the other hand, all the courts of fi rst instance, and thus the signifi cant majority of civilian courts, lacked the right to refer questions of law to the Tribunal. This regulation was widely criticised23 and even regarded as one of the reasons for the relatively rare use in practice of the procedure for the review of the constitutionality of law24. The way in which this problem is resolved in the Constitution of the Republic of Poland, in fact, has satisfi ed the demands of critics of the previous regulation. The term “court” used in Article 193 of the Constitution refers to those organs regarded as courts by the basic law. In accordance with Article 175 paragraph 1 of the Constitution of the Republic of Poland, these are: the Supreme Court, civilian courts and special courts. These courts, therefore, and more precisely their adjudicating benches, are entitled to submit questions of law to the Tribunal. According to the authors of the Commentary to the Constitutional Tribunal Act, the term “court” within the meaning of Article 3 of that act also includes the Tribunal of State, where it adjudicates as a criminal court and imposes punishment for crimes committed, but not where it metes out penalties for a constitutional delict25. We must agree with them and, in consequence, acknowledge that, in the above-mentioned situation, the Tribunal of State, acting in fact as a court, exhibits all the constitutional attributes of that organ (court) and could refer a question of law to the Constitutional Tribunal. On the other hand, this power is not conferred upon other organs described as “courts” and acting on the basis of the by-laws (regulations) of associations and other organisations. The Constitution of the Republic of Poland has deprived the First President of the Supreme Court, the President of the Supreme Administrative Court, the supreme and central organs of state administration and local government appeal boards of the right to submit questions of law to the Constitutional Tribunal. The elimination of the above-named organs of judicial administration from the category of subjects entitled to submit such questions is an obvious consequence of the granting of this power to all courts. The intent of the previously existing legislation, making the above-

23 Cf. among others L. Garlicki, Trybunał Konstytucyjny a rola sądów..., p. 31–32; K. Wójtowicz, Pytania prawne, [in:] Trybunał Konstytucyjny, ed. J. Trzciński, Wrocław 1987, p. 215–220; A. Kabat, Wpływ organów orzekających na kierowanie pytań prawnych do Trybunału Konstytucyjnego, „Państwo i Prawo” 1988, fascicle 5, p. 28, 35, 36 and Pytania prawne..., p. 101; T. Zieliński, Czy art. 22 ust. 1 ustawy o Trybunale Konstytucyjnym jest zgodny z Konstytucją?, „Państwo i Prawo” 1989, fascicle 4, p. 58 et seq. 24 A. Kabat, Pytania prawne w praktyce orzeczniczej Trybunału Konstytucyjnego, [in:] Konstytucja i gwarancje jej przestrzegania. Księga pamiątkowa ku czci prof. Janiny Zakrzewskiej, ed. J. Trzciński, A. Jankiewicz, Warszawa 1996, p. 111 et seq. 25 Z. Czeszejko-Sochacki, L. Garlicki, J. Trzciński, op. cit., p. 49. In the matter of the legal nature of the Tribunal of State cf. among others W.H. Groszyk, Uwagi o potrzebie i kierunkach zmian ustawowej regulacji Trybunału Stanu (w związku z art. 236 ust. 1 Konstytucji RP), [in:] Konstytucja, ustrój, system fi - nansowy państwa. Księga pamiątkowa ku czci prof. Natalii Gail, ed. T. Dębowska-Romanowska, A. Jan- kiewicz, Warszawa 1999, p. 71. Roman Hauser, Andrzej Kabat: Questions of Law as a Procedure for the Review of the Constitutionality of Law 91 mentioned powers available to the First President of the Supreme Court and the President of the Supreme Administrative Court, was to allow courts of fi rst instance to take advantage, through the agency of these subjects, of the legal instrument of questions of law. Supreme and central organs of state administration and local government appeal boards in essence did not make use of their right to refer questions of law to the Tribunal, which, so it seems, could have constituted one of the reasons for the exclusion of these organs from the group of subjects entitled to implement this procedure. A further argument in favour of such a solution was the fact that administrative matters decided by these organs are almost in their entirety subject to the review of the administrative court26. In connection with this, the constitutional doubts arising during the hearing of these matters could be settled by referring a question of law to the Tribunal in the course of judicial-administrative proceedings. From the content of Article 193 of the Constitution of the Republic of Poland, it ensues that a legal question may be addressed to the Tribunal only in relation to problem defi ned in this article, namely the constitutionality of a particular normative act. The basis, however, for referring a question of law may be provided by a legal problem concerning the indicated matter (the constitutionality of the normative act) only when the answer to it “[…] determines an issue before such court”. The term, “an issue before such court”, used in Article 193 of the Constitution, means that a question of law has always to be connected with a concrete case pending before the court (as mentioned above)27. The term, “an issue before such court”, should be understood as proceedings in the sense established by particular procedural acts to be applied before the courts mentioned in Article 175 of the Constitution. In practice, making use of the procedure of questions of law is possible from the implementation of court proceedings in a given case until its valid determination. Turning, therefore, with a question of law to the Tribunal will be possible at any stage of the proceedings, both before a court of fi rst instance and a court of second instance as well as courts of cassation. The implementation of the procedure under consideration must also be regarded as admissible at the stage of court proceedings whose aim is to clear legal doubts raised by the bench hearing a particular case, e.g. on the basis of Article 390 § 1 of the Code of Civil Procedure or Article 49 paragraph 2 of the Act of 11 May 1995 on the Supreme Administrative Court. As is known, in such proceedings it comes as a rule to the passing of a resolution which is binding on the bench determining the case. The determination, therefore, of the constitutionality of the provi-

26 A. Kabat, Prawo do sądu w ustawie o Naczelnym Sądzie Administracyjnym, [in:] Konstytucja, ustrój, system..., p. 107 et seq. 27 Admittedly, Article 193 of the Constitution of the Republic of Poland (Article 3 of the CTA) does not repeat the formula appearing previously in article 11 of the CTA of 29 April 1985 and does not provide that a question of law may be referred in connection with ongoing court proceedings but the content of this provision clearly indicates that existence of such connection is necessary for the initiation of the procedure of questions of law; similarly Z. Czeszejko-Sochacki, L. Garlicki, J. Trzciński, op. cit., p. 51. 92 The Sejm Review Third Special Issue / 2007 sion which is to be the subject of the interpretation will almost always be of signifi - cance in resolving the case. The possibility of referring a question of law to the Tribunal also occurs in case of the reopening of proceedings which, in accordance with the procedures governing this matter, constitutes separate court proceedings, in which a resolution of the case is also made. The provision of Article 193 of the Constitution of the Republic of Poland establishes the requirement of the relevancy of the question of law since, as has already been indicated, it allows for a question of law to be referred only when the answer to it “[…] will determine an issue currently before such court”. Since the subject-matter of a question may only be the constitutionality of a concrete legal norm, the assessment of relevancy must also embrace the grounds of the reservations appearing in this respect. Indicating, therefore, that the doubts raised concerning the constitutionality of a given legal norm are so grave that there arises a need to settle them within the framework of the procedure of questions of law to the Constitutional Tribunal constitutes an initial condition for considering whether there exists the aforementioned relation between the answer to the question of law and the resolution of the concrete matter. These doubts must concern legal norms of signifi cance for the resolution. There could come into the reckoning both the provisions of substantive law and procedural rules. The existence of a defi ned relationship between the answer to the question of law and the resolution of the case before the court constitutes a characteristic feature of the concrete review of the norms. Similar requirements appear also in other countries where the legislation provides for the exercise of such review by tribunals. The way of specifying this condition and the nature of the court’s reservations as to the constitutionality of a legal norm are, obviously, varied. Whereas in Germany, the court must be convinced about the unconstitutionality of the legal norm being questioned28, in Italy the only requirement in this case is that the claim of unconstitutionality may not be obviously unfounded29. In Poland, on the other hand, the above-discussed requirement is considered satisfi ed if the doubts arising as to the constitutionality of the legal norm and having signifi cance for the resolution of the case have not been removed in the course of its interpretation. We will return to this matter later in this paper. Against the background of Article 193 of the Constitution of the Republic of Poland, there appears another problem, that of the correct meaning of the term “determine an issue”, which appears in this provision. In particular, there arises the question whether there should be taken into account only those determinations undertaken in a defi ned phase of the proceedings, or indeed at any stage, and whether mention is made here of all determinations or only those which end the proceedings in the case or have a fi nal nature. Referring to the above conclusion of the possibility of referring a question of law to the Tribunal at any stage of the court proceedings, it must be acknowledged that in

28 K. Stern, Das Staatsrecht der Bundesrepublik Deutschland, München 1980, vol. II, p. 990. 29 L. Garlicki, Sądownictwo konstytucyjne w Europie..., p. 266. Roman Hauser, Andrzej Kabat: Questions of Law as a Procedure for the Review of the Constitutionality of Law 93 this context the phrase “determine an issue” means to render a decision (judgement, order) ending the proceedings at a given stage (e.g. before a court of fi rst or second instance). The determination of an issue, within this meaning, includes both a valid decision and a decision not having this nature, for example one capable of being appealed against in a court of higher instance. Such a decision, after all, determines the case at a given stage of proceedings and the possibility of questioning these decisions through the application of appeal procedures does not deprive it of this feature. The determination of an issue, within the meaning of Article 193 of the Constitution, may take the form of a decision of both a substantive and formal nature. In the case of a decision of a formal nature, it is necessary for there always to be a statement that it ends the given stage of proceedings (e.g. before a court of fi rst or second instance). Adopting the above approach to the meaning of the term “determine an issue” in the discussed context means that, in principle, it cannot be used with reference to incidental decisions, since they do not end the proceedings. The constitutionality of a provision that is to provide the basis of such a decision cannot, in principle, constitute the subject-matter of a question of law before the Constitutional Tribunal. Only exceptionally can such an eventuality be considered, when the determination of the constitutionality of a normative act, providing the basis for the incidental determination, would at the same time decide about the content of the decision ending the proceedings30. From the above it ensues that the prerequisite under consideration (the relevancy of the question of law) has signifi cant consequences to the scope of the question of law. It appears that the subject of this question can only be an act, if there is the previously mentioned relationship between that act and the determination of the case. In the case when this feature relates only to part of an act (a concrete provision) then only this part may be the subject of a question. The fact that, in the opinion of the court, such act was issued by an unauthorised organ or in breach of the procedure required in this case by law and is, therefore, affected by a fault indicating the defectiveness of the entire act does not allow the court to extend the limits of the question to include within it the entire normative act. This example may indicate that the scope of the questions of law before the Tribunal was established in a very stiff way, not permitting any exceptions from the established limits. It seems that in the presented situation, a certain way out could be the initiation of an abstract review by authorised subjects, in particular by the First President of the Supreme Court and the President of the Supreme Administrative Court. It must be realised, however, that we will not be dealing here with actions that are almost au- tomatic. The realisation of the power to initiate an abstract control depends, after all, on the discretion of the authorised subject. Thus, we would rather be dealing here with the development of specifi c principles governing the conduct of authorised subjects and not the fulfi lment of statutory obligations.

30 R. Hauser, A. Kabat, review of the book by L. Garlicki and J. Trzciński, Trybunał Konstytucyjny, ustawa o Trybunale Konstytucyjnym. Stan prawny na dzień 31 lipca 1996, “Przegląd Sądowy” 1997, No. 1, p. 74. 94 The Sejm Review Third Special Issue / 2007

Admittedly, neither the Constitution of the Republic of Poland nor the CTA defi nes the stage of proceedings at which there can come about the directing of a question of law to the Tribunal but, bearing in mind the nature of the requirements of this form of review of normative acts, we come to the conclusion that the decision in this matter should be preceded by an assessment of the evidence and the circumstances concerning the subject of the ongoing proceedings. The factual determinations made on their basis will be the starting-point for the defi nition of the normative act which is to constitute the foundation for the determination of the case and, therefore, the legal provision whose constitutionality might become the subject of a question of law. It is only the defi nition of this act and the analysis of the nature of the reservations as to its constitutionality that allow for the adoption of a standpoint on the subject of the relevancy of the question of law. As a rule, therefore, the possibility of the consideration of the need for submitting a question of law to the Tribunal will appear in the fi nal stage of the proceedings. The adjudicating bench, which has called into question the constitutionality of the normative act, should aim within its own scope to its removal by way of interpreta- tion31. At this point what has to be taken into consideration is the principle of the consistency of the legal system and respect for the supreme position of the Constitution. This imposes on the adjudicating bench the responsibility for removing by way of interpretation any seeming contradictions with the Constitution, by giving the doubtful norm such a meaning that it is not inconsistent with the Constitution. This concerns above all those cases where the subject of doubt is a statutory norm. The interpretation of statute should, therefore, seek to put such a construction on its provisions as to give priority to those solutions that will best implement constitutional norms32. Only in the case when an attempt to remove these contradictions between normative acts and the Constitution by way of interpretation ends in failure will there arise the need to consider the matter of referring a question of law to the Constitutional Tribunal. In connection with the fact that Article 193 of the Constitution of the Republic of Poland (Article 3 of the CTA) states that “any court may refer a question of law to the Constitutional Tribunal […]”, the matter has to be considered whether the decision about settling doubts as to the constitutionality of a particular normative act through the directing of a question of law to the Constitutional Tribunal was left in this case to the discretion of the court or whether the appearance of such doubts means that the court should undertake actions aiming to implement this procedure. Against this background there appears another problem, namely the scope of the court’s power to review the constitutionality of the law.

31 Cf. among others K. Działocha, Problem zgodności prawa z konstytucją, [in:] Trybunał Konstytu- cyjny, ed. J. Trzciński, Wrocław 1987, p. 50 et seq. and K. Działocha, Przepisy utrzymane w mocy..., p. 11–12. 32 Cf. among others the judgements of: the Constitutional Tribunal of 28 April 1999, fi le No. K.3/99, OTK ZU 1999, No. 4, item 73; the Supreme Court of 24 April 1993, fi le No. III ARN 33/93, “Państwo i Prawo” 1994, fascicle 3, p. 111 and the Supreme Administrative Court of 21 December 1992, fi le No. V SA 1329/92, ONSA 1993, fascicle 3–4, item 99. Roman Hauser, Andrzej Kabat: Questions of Law as a Procedure for the Review of the Constitutionality of Law 95

In starting to consider the subject matter mentioned above, reference must above all be made to those things established earlier and it must be indicated that the Constitution of the Republic of Poland entrusted the review of the constitutionality of normative acts to a special organ — the Constitutional Tribunal. It should, in connection with this, also be noted that in the doctrine it is accepted that, in every model based on the creation of a separate constitutional court, it is to this organ that the fundamental tasks and competence in the ﬁ eld of the review of norms should belong33. This principle, referring in its entirety to the solution accepted in this ﬁ eld in the Constitution of the Republic of Poland, deserves full acceptance. This does not mean, however, that the court examining the doubts as to the constitutionality of a normative act should in each case undertake activities aiming to implement the procedure of questions of law. The phrase cited above, “any court may refer a question of law to the Constitutional Tribunal […]”, used in Article 193 of the Constitution (Article 3 of the CTA) must be understood differently, depending on the status of the normative act which has aroused the aforementioned doubts. Let us begin with an analysis of the situation in which the reservations of the court concern a statute. In considering this case, it must be borne in mind that, in accordance with Article 178 paragraph 1 of the Constitution, “Judges […] shall be independent and subject only to the Constitution and statutes”, which means that in adjudicating they are bound by the Constitution and statutes. If then the court, while hearing a case, acknowl- edges that the statute which is to be applied in a concrete case arouses doubts as to its conformity with the Constitution, then it is precisely because of that fragment of Article 178 paragraph 1 of the Constitution, which speaks of judges being subject to statutes, that it will not be able to ignore the doubtful provision of the act and determine the matter on another legal basis. In view of the fact that the determination of a matter on the basis of a “constitutionally doubtful” norm cannot be taken into consideration for obvious reasons, there remains then only one solution, namely the directing of a question of law to the Tribunal, which in such a case will be the only organ entitled to make a binding decision about the constitutionality of the aforementioned normative act. The solutions hitherto examined lead to the conclusion that, in the case of reservations as to the constitutionality of a statute, the fragment cited earlier that “any court may refer a question of law to the Constitutional Tribunal […]” should be read as meaning “the court shall refer a question of law to the Constitutional Tribunal”. The view that the instrument of questions of law should be used in the case of doubts as to the constitutionality of a statute is the one most often formulated in the doctrine34

33 L. Garlicki, Trybunał Konstytucyjny a sądownictwo, “Przegląd Sądowy” 1998, No. 1, p. 10. 34 L. Garlicki, Trybunał Konstytucyjny a..., p. 10 and Trybunał Konstytucyjny a wejście w życie nowej Konstytucji, “Państwo i Prawo” 1997, fascicle 11–12, p. 116; A. Wasilewski, Przedstawianie pytań prawnych Trybunałowi Konstytucyjnemu przez sądy, “Państwo i Prawo” 1999, fascicle 8, p. 29 and Py- tania prawne do Trybunału Konstytucyjnego, problemy interpretacyjne na tle art. 193 Konstytucji RP, “Przegląd Sądowy” 2000, No. 5, p. 6; K. Kolasiński, Orzecznictwo Trybunału Konstytucyjnego a orzecznictwo sądowe, “Państwo i Prawo” 1998, fascicle 6, p. 5; Z. Czeszejko-Sochacki, L. Garlicki, J. Trzciński, op. cit., p. 51.; A. Mączyński, Bezpośrednie stosowanie Konstytucji, [in:] Zgromadzenie Ogólne Sędziów Trybunału Konstytucyjnego 22 marca 2000 roku, Warszawa 2000, p. 53–56. 96 The Sejm Review Third Special Issue / 2007 and accepted by jurisprudence35. In the literature, however, there can also be encountered the view allowing for an omission of the procedure of questions of law in the case of the unconstitutionality of statutes and conferring on courts the right to depart in such an event from applying a defective (unconstitutional) norm in the case being heard36. In justifi cation of this view the content is quoted of Article 8 paragraph 2 of the Constitution of the Republic of Poland, which constitutes that “The provisions of the Constitution shall apply directly, unless the Constitution provides otherwise”. The last standpoint mentioned arouses serious reservations. Admittedly, from Article 8 paragraph 2 of the Constitution it ensues that it is the duty of each court to apply the provisions of the Constitution in all situations which concern the case being heard, but there are no grounds for accepting that the aforementioned provision could also be used to remove inconsistencies between acts and the Constitution. It has already been mentioned that it was to this end that the Constitution of the Republic of Poland established the Constitutional Tribunal, which is the only organ entitled to decide on constitutionality of statutes37. Since the only method of establishing the constitutionality of statutes is the implementation of the procedure of questions of law, the question arises whether it is suffi cient for its use to be made by the court if this organ raises doubts about the non- conformity of a particular act to the Constitution, or whether the court needs to be convinced that the aforementioned act is affected by such a defect (unconstitutionality). In connection with the problem raised, it must be pointed out that Article 193 of the Constitution of the Republic of Poland (Article 3 of the CTA) does not include such provisions that would indicate that the condition for the court to refer a question of law is the conviction of this organ about the unconstitutionality of a concrete normative act. This means that, in order to present such a question, it is enough for the court to have justifi ed grounds in this respect38. The thesis that, in the case of doubts appearing as to the constitutionality of a statute, the court ought to make use of questions of law requires to be made more precise by indicating that it does not concern cases in which the statute was derogated as a result of the Constitution of the Republic of Poland coming into force. This concerns situations in which the Constitution of the Republic of Poland, as lex posterior, repeal, from the moment of coming into force, all the legal regulations, including statutory ones, which were not in conformity to its provisions. In the literature it is emphasised that the role of courts will then be to establish whether between the

35 Cf. for example the Resolution of the Supreme Administrative Court of 21 February 2000, fi le No. OPS 10/99 (unpublished to date). 36 W. Sanetra, Sąd Najwyższy w systemie wymiaru sprawiedliwości, “Przegląd Sądowy” 1999, No. 7– –8, p. 13. 37 L. Garlicki, Trybunał Konstytucyjny a..., p. 10; K. Kolasiński, op. cit., p. 5; A. Mączyński, op. cit., p. 56; cf. also Informacja o istotnych problemach wynikających z działalności i orzecznictwa TK, [in:] Zgromadzenie Ogólne Sędziów..., p. 74. 38 L. Garlicki, Trybunał Konstytucyjny a..., p. 14; Z. Czeszejko-Sochacki, L. Garlicki, J. Trzciński, op. cit., p. 51. Roman Hauser, Andrzej Kabat: Questions of Law as a Procedure for the Review of the Constitutionality of Law 97 pre-constitutional norm and the norm of the Constitution “[...] there appears a connection that is so close to formal identicalness that the principle of lex posterior might be applied and that it could be stated that there took place the repeal of a given norm”39. In this case, directing a question to the Tribunal will not be possible since, as mentioned earlier, the review by the Tribunal concerns only binding acts. Let us move in turn to a consideration of the situation in which the doubts of the court concern the constitutionality of acts below the rank of statute. This matter is settled by the previously cited Article 178 paragraph 1 of the Constitution, which states, as has already been indicated, that judges are subject to the Constitution and statutes. In the light, therefore, of the above regulation, there do not arise any doubts that judges are not bound by acts below the rank of statute and, in connection with this, they are entitled to assess their conformity to statutes and other acts constituting, according to the Constitution, models for the review. As a result of these conclusions, it should be accepted that in the case of a court hearing doubts as to the constitutionality of acts below the rank of statute, this organ will be able to make a choice between the procedure of questions of law and a refusal to apply unconstitutional norms and deciding the case on this basis40. The previously cited expression, “any court may refer a question of law to the Constitutional Tribunal”, takes on here a meaning that is different from that in the case of a statute. Admittedly, from the above it ensues that a court, in the case of hearing doubts as to the constitutionality of acts below the rank of statute, does not have an obligation to refer a question of law but it seems that it should do this when the inconsistency with the statute or Constitution (or ratifi ed international agreement) concerns a normative act with a wider range of addressees, since only then can there come about a complete elimination of the unconstitutional legal provisions from the system of law41. A judicial decision of a court in which this organ refused to apply unconstitutional acts below the rank of statute does not have such a characteristic. Proceedings before the Constitutional Tribunal were based on the principle of accusatorial procedure, which is indicated above all by the provisions concerning the implementation of proceedings before this organ. These demand on every occasion the appropriate initiative of a subject entitled to submit a motion, question of law or constitutional complaint. The initiation of proceedings before the Constitutional Tribunal in the matter of a question of law takes place as a result of the submission of such a question by the adjudicating bench of the court. The document containing such a question should fulfi l certain conditions. These are named in Article 32 paragraphs 1 and 3 of the

39 Further L. Garlicki, Konstytucja a ustawy przedkonstytucyjne, [in:] Wejście w życie nowej Konsty- tucji Rzeczypospolitej Polskiej. XXXIX Ogólnopolska Konferencja Katedr Prawa Konstytucyjnego. Księga pamiątkowa, ed. Z. Witkowski, Toruń 1998, p. 43 et seq. and Trybunał Konstytucyjny a wejście..., p. 108 et seq. 40 Cf. for example L. Garlicki, Trybunał Konstytucyjny a..., p. 10. 41 Further A. Kabat, Pytania prawne..., p. 98–99. 98 The Sejm Review Third Special Issue / 2007

CTA. According to this provision, the question of law to the Tribunal should fulfi l the requirements concerning procedural letters and, furthermore, include: an identifi - cation of the organ which enacted the normative act in question, precise identifi cation of the normative act, or a part thereof, called in question, a formulation of the charge of unconstitutionality with reasons given. The authors of the Commentary to the Constitutional Tribunal Act draw attention to the fact that the act does not defi ne “the requirements concerning procedural letters” mentioned in its Article 32 paragraph 1 and, in connection with this, they feel that, in accordance with the principle expressed in Article 20 of the CTA, there should be applied here the appropriate provisions of the Code of Civil Procedure, particularly Article 126 § 1 of this Code42. This approach is worthy of approval. In accordance with Article 32 paragraph 3 of the CTA, a question of law ought to meet additional special requirements, referring only to these procedural letters. These special conditions are the requirement to show in what scope the answer to the question might infl uence the settlement of the case in relation to which the question has been asked and, moreover, to indicate the organ before which the proceedings are pending and the designation of the case. These conditions, therefore, refer directly to the prerequisites of questions of law (relevancy) and thus at the very beginning of the proceedings enable the Constitutional Tribunal to establish whether these prerequisites were taken into account by the adjudicating bench of the court submitting the question. If in relation to the procedural letter containing the question of law there are no formal impediments, the President of the Tribunal refers for consideration at a hearing by a competent adjudicating bench43. From the moment the question is referred to the Tribunal, this organ can com- mence the review which was mentioned during the analysis of Article 32 paragraph 1(3) of the CTA, including, among other things, the relevancy of the question of law. The standpoint has to be agreed with that the Constitutional Tribunal ought to confi ne itself to assessing the content of the decision containing the question and to establishing only on this basis the relevancy of the question. The view must be regarded as apposite that a review of this prerequisite, connected with the examination of the dossier of the case, would constitute interference in the sphere of the independence of the judiciary44. It is worth noticing in connection with this that a similar standpoint can be encountered in the literature concerning the constitutional courts of other countries. In the Austrian doctrine, for example, it is accepted that a detailed assessment of this matter by the constitutional court would indicate interference in the scope of competence of ordinary courts. As concerns this matter, it has been established in the jurisprudence that “the prerequisite for the need of applying a partic-

42 Z. Czeszejko-Sochacki, L. Garlicki, J. Trzciński, op. cit., p. 113. 43 Questions of law are not subject to preliminary consideration by the Tribunal, cf. P. Sarnecki, Nowa ustawa o Trybunale Konstytucyjnym, “Przegląd Sejmowy” 1998, No. 1, p. 21. 44 Similarly Z. Czeszejko-Sochacki, L. Garlicki, J. Trzciński, op. cit., p. 117. Roman Hauser, Andrzej Kabat: Questions of Law as a Procedure for the Review of the Constitutionality of Law 99 ular provision of a statute” is not satisfi ed only when it is obvious that “the given provision could not be accepted as the basis for determination”45. The CTA does not contain any provisions specifying the effect of submitting a question of law to the Tribunal on the course of judicial proceedings in the case in which there appeared the legal doubt being the subject of the question. The observa- tion of practice indicates that ordinary courts either use in this case their power to suspend the proceedings or adjourn the hearing46. On the other hand, the Supreme Administrative Court suspends the proceedings, in accordance with Article 59 of the Supreme Administrative Court Act of 11 May 1995 in conjunction with Article 97 of the Code of Administrative Procedure. The CTA allows for the withdrawal of an application, a question of law or a constitutional complaint. It ensues from Article 31 paragraph 2 of the CTA, which regulates this matter, that the entitled subjects can do this up to the commencement of the hearing, and thus up to the “calling of the case” (cf. Article 61 of the CTA). In view of the fact that the subject referring a question of law to the Tribunal is always an adjudicating bench of a court, deliberation is due to the possible scope of making use of this entitlement (to withdraw a question of law) by the court. This need arises mainly from the special procedural position of the court as a participant in proceedings before the Tribunal47. The decision of the court in which it formulates a question of law, is taken by the adjudicating bench. This bench defi nes in detail the scope and the content of the question and prepares the justifi cation. For this reason, the withdrawal of a question of law will always require the adjudicating bench to make a decision while maintaining all the appropriate procedural requirements. The CTA does not regulate the procedure for making decisions by the court to revoke an earlier decision to refer a question of law to the Tribunal. In accordance with Article 20 of the act on the CT, the provisions of the Code of Administrative Procedure, in particular article 395 of this Code, are applicable in this respect. According to this provision, decisions not terminating proceedings may be revoked or changed only as a result of changes in the circumstances of the case, and thus in a situation which can only exceptionally occur in a case waiting for the settlement of a question of law by the Tribunal. It must after all be remembered that, as a consequence of addressing a question of law to the Constitutional Tribunal, the court proceedings will be “halted” either by suspension or adjournment (as mentioned above), in connection with which no procedural actions will be taken which could lead to “changes in the circumstances of the case”. It must also be remembered about the diffi culties which could be connected with the institution of judicial proceedings aiming to issue a decision about the withdrawal of a question in the event that these proceedings have been suspended in connection with

45 E. Melicher, Kontrola konstytucyjności ustaw w praktyce austriackiego Trybunału Konstytu- cyjnego, „Państwo i Prawo” 1984, fascicle 12, p. 57. 46 Z. Czeszejko-Sochacki, L. Garlicki, J. Trzciński, op. cit., p. 53. 47 Cf. the judgement of the Constitutional Tribunal of 17 May 1999, fi le No. P.6/98, OTK ZU 1999, No. 4, item 76. 100 The Sejm Review Third Special Issue / 2007 the referring of the question to the Tribunal, since the reason for that suspension (the addressing of the question to the Constitutional Tribunal) still exists. Taking into account the procedural complications mentioned above, it must be acknowledged that the power of the adjudicating bench of the court to withdraw a question of law is subject to limitation at the very least48. In accordance with Article 39 paragraph 1(2) of the CTA, the withdrawal of the question of law leads to discontinuation of the proceedings by the Constitutional Tribunal. Moreover, the provision of Article 39 of the CTA provides for discontinuation of proceedings in two cases: if the pronouncement of a judicial decision is needless or inadmissible (Article 39 paragraph 1(1)) and if the normative act has ceased to have effect to the extent challenged prior to the delivery of a judicial decision by the Tribunal. The Constitutional Tribunal, sitting in camera (Article 39 paragraph 1), or at the hearing (Article 39 paragraph 2) makes the decision to discontinue the proceedings. The latter of the aforementioned cases takes place when the circumstances justifying the discontinuation of the proceedings have been revealed during the hearing. The CTA does not explain the meaning of the notions “needless” and “inadmissible” used in article 39 paragraph 1 point 1. The authors of the Commentary to the Constitutional Tribunal Act try to establish the content of these notions mainly with the help of grammatical interpretation but the results of this experiment are not fully satisfactory49. Hence particular signifi cance during the establishment of the content of these notions falls to the interpretations of the Tribunal. A very interesting standpoint on this matter was adopted by the Constitutional Tribunal in its decision of 21 January 1988, fi le No. K.33/9750, in which, after stating that the issue being the subject of the application had already been the subject of constitutional review in another case, the Tribunal acknowledged that “a further consideration of the same matter makes the proceedings needless” and that is why it discontinued proceedings in this case. Returning to the prerequisite for discontinuation of the proceedings, namely the “inadmissibility of issuing a judgement”, it must be noticed that its appearance can be talked about in the case, among other things, of the revealing of a lack of relationship between the question of law and the determination of the case pending before the court. Since, after all, in the light of deliberations hitherto it is undoubted that the existence of the aforementioned relationship is an essential requirement for the institution and conduct of proceedings in relation to the question of law, it must be acknowledged that the fi nding by the Tribunal of a lack of this prerequisite constitutes an impediment to the conduct of such proceedings and thus means that the issuing of a judgement becomes inadmissible. For this reason, therefore, the proceedings must be discontinued51.

48 Similarly Z. Czeszejko-Sochacki, L. Garlicki, J. Trzciński, op. cit., p. 111–112. 49 Z. Czeszejko-Sochacki, L. Garlicki, J. Trzciński, op. cit., p. 131. 50 OTK ZU 1998, No. 1, item 8. 51 Cf. the order of the Constitutional Tribunal of 12 April 2000, ﬁ le No. P.14/99, OTK ZU 2000, No. 3, item 90. Roman Hauser, Andrzej Kabat: Questions of Law as a Procedure for the Review of the Constitutionality of Law 101

As far as the next prerequisite for discontinuation of proceedings in the case of a question of law is concerned, namely the ceasing to have effect by the challenged normative act, then in this respect reference must be made to the remarks made during the deliberations over the subject-matter jurisdiction of the Constitutional Tribunal within the framework of the procedure of questions of law. In complementing these deliberations it must, however, be indicated that Article 39 paragraph 1(3) of the CTA deals with the ceasing to have effect by this act to the extent challenged and demands that this take place before the issuing of the judgement by the Tribunal. One of the more important problems connected with the examination of questions of law by the Constitutional Tribunal is the participation of a representative of the adjudicating bench in these proceedings. It is worth remembering that the solution to this issue existing under the previous legal regime, including representatives of courts among the participants in the proceedings, having the same procedural position as persons representing other subjects entitled to initiate proceedings before the tribunal, met with criticism. It was raised that it is not possible to exclude the situation in which, for example, other participants in the proceedings will attempt to obtain from the representative of the court taking part in the hearing such information as could go beyond the limits of the decision including the question of law. Such a situation can always lead to the revealing of the secrecy of the discussions of the adjudicating bench or even threaten the independence of the judiciary52. The CTA in Article 27 paragraph 1 includes among the participants in the proceedings, inter alia, the subject who submitted the question of law, namely the adjudicating bench of the court. On the other hand, Article 60 paragraph 2 of that act, dealing with obligatory attendance at the hearing, names only the applicant. In connection with the content of the cited provisions, there arises the need to consider whether the consequences of absence from the hearing, as specifi ed in Article 60 paragraph 2 sentence 2 of the CTA, namely discontinuation of the proceedings or an adjournment of the hearing, refer only to the applicant or also to the representative of the adjudicating bench of the court. The issues connected with this were the subject of a statement from the Constitutional Tribunal in the judgement of 17 May 1999, fi le No. P.6/9853. The Constitutional Tribunal, considering the procedural effects of the non-appearance at the hearing of the representative of the adjudicating bench, acknowledged that this did not constitute an impediment to hearing the case and issuing a judgement. The Tribunal justifi ed this standpoint by stating that “The court as a subject constitutionally entitled to submit questions of law to the Constitutional Tribunal cannot be fully identifi ed with the applicant within the meaning of the CTA. In chapter 3 of the CTA there is no provision which, as is done by

52 R. Hauser, A. Kabat, Orzecznictwo Trybunału Konstytucyjnego w praktyce Naczelnego Sądu Ad- ministracyjnego, [in:] Działalność Orzecznicza Trybunału Konstytucyjnego, ed. A. Jankiewicz, Warszawa 1994, p. 28; R. Hauser, O pytaniach prawnych do Trybunału Konstytucyjnego, “Rzeczpospolita” 16 No- vember 1998, Prawo co dnia, p. 15–16. 53 Cf. footnote 47. 102 The Sejm Review Third Special Issue / 2007

Article 45 of that act, would require the appropriate application of all the provisions contained in it to examine the question of law.” In the opinion of the Tribunal, “This obviously does not exclude such appropriate application of this provision in all those matters in which it is possible.” According to this judgement, such a possibility seems to be suggested by article 31 of the CTA, which allows for the notion of “applicant” to refer also to those subjects initiating other proceedings in the scope of the review of norms. In the reasons of judgement, it is further stated that the adopted meaning of this regulation does not, however, give suffi cient grounds for acknowledging the absolute obligation to relate to the proceedings of the question of law all the provisions concerning the legal situation of the “applicant”, i.e. the author of the “application” put forward within the framework of the procedure of the abstract review of norms. In the opinion of the Tribunal, “The possibility of the appropriate application of these provisions will be excluded, particularly if and when signifi cant reasons of a systemic nature speak against it.” This view, adopted by the authors of the Commentary to the Constitutional Tribunal Act54, ought to be accepted in full. We express the conviction, already signalled by us55, that this interpretation will encourage courts to address questions of law to the Constitutional Tribunal and that this measure, so signifi cant and important, will be made use of by courts to a wider degree than hitherto. In accordance with Article 42 of the CTA, the review by the Tribunal is conducted on the basis of three criteria: a) material conformity, including an assessment of the conformity of the content of the questioned act to the norms included in acts of a higher rank; b) competence conformity, including an examination of whether the organ issuing the normative act was entitled to do so; c) procedural conformity, including an examination of whether the procedure specifi ed by the legal provisions for issuing an act or to conclude or ratify an agreement was complied with. These criteria should be applied together, hence the examination of each act or its part should consist in a simultaneous assessment of its material, competence and procedural correctness. In the literature, it is accepted that the limits of the material review are determined by the content of the procedural letter initiating proceedings before the Tribunal. With reference, however, to the remaining criteria (competence and procedural) the possibility is permitted of taking them into account independently of the standpoint of the applicant or court referring the question of law56. A similar standpoint was adopted by the Constitutional Tribunal in its judgement of 24 June 1998, fi le No. K.3/9857, in which it stated “[…] that when examining the constitu-

54 Z. Czeszejko-Sochacki, L. Garlicki, J. Trzciński, op. cit.; the authors also cite the judgement of the Tribunal cited in footnote 47; cf. also Informacja o istotnych problemach..., p. 74–75. 55 R. Hauser, A. Kabat, Orzecznictwo Trybunału Konstytucyjnego w praktyce..., p. 28. 56 Z. Czeszejko-Sochacki, Trójaspektowa kontrola konstytucyjności w ujęciu artykułu 42 ustawy o TK z 1997 r., [in:] Konstytucja, ustrój, system..., p. 256 et seq.; Z. Czeszejko-Sochacki, L. Garlicki, J. Trzciński, op. cit., p. 139. 57 OTK ZU 1998, No. 4, item 52. Roman Hauser, Andrzej Kabat: Questions of Law as a Procedure for the Review of the Constitutionality of Law 103 tionality of a statute, it could assess not only the material (content) conformity to norms of a higher rank but also, independently of the content and scope of the application, whether these statutes came into effect in accordance with the procedure required by the provisions of the law for their issue”. The provision of Article 66 of the CTA establishes the principle that the Constitutional Tribunal adjudicates within the limits of the application, question of law or complaint. In referring this regulation to questions of law, it should be remembered that the subject of the question cited may only be such a normative act, or its particular provision, which remains in the relation of dependency with the determination of a concrete case before the court, as defi ned by Article 193 of the Constitution of the Republic of Poland (Article 3 of the CTA). These same criteria specify the limits of the judgement of the Constitutional Tribunal in relation to questions of law. Referring then to the earlier remarks made when deliberating on the scope of questions of law, it must be noticed that the statement by the Tribunal in the case in which a question of law concerns only a concrete provision of a normative act and when this act was issued by an unauthorised organ or in breach of the procedure required by the law in such a case, the judgement cannot be extended to cover the whole act. Such a possibility is excluded by Article 66 of the CTA. Proceedings before the Tribunal end with the issuing of the judgement or order. The catalogue of cases in which the Tribunal issues a judgement is included in Article 70 paragraph 1 of the CTA, whereas those ending in an order are included in paragraph 2 of this provision. The provision of Article 70 paragraph 1(1–3) of the CTA, defi ning the situations in which the Tribunal issues a judgement, cites exclusively the cases mentioned in Article 188(1–3) of the Constitution of the Republic of Poland (Article 2 paragraph 1 (1–3) of the CTA). The cited provision does not constitute a complete regulation, since it does not provide for the issuing of a judgement in those events in which the subject of the hearing before the Tribunal (within the framework of a question of law) is a local enactment, which for previously cited reasons is subject to review by the Tribunal within the framework of this procedure. We consider that the non-inclusion in Article 70 of the CTA of a provision stating that the Constitutional Tribunal issues judgements in the above-mentioned cases, might indicate the lack of a full adaptation of the CTA to the Constitution of the Republic of Poland. In no case may it, however, provide an argument in favour of the thesis that local enactments have not been covered by the subject-matter jurisdiction of the Tribunal since, as has already been mentioned, Article 193 of the Constitution clearly subjects these acts to review by this organ. It seems that the deliberations conducted here allow us to formulate some fi nal conclusions. Firstly, the evolution of the instrument of questions of law has led to a series of new constitutional and statutory solutions which in a more complete and perfect way regulate the nature of questions of law and the procedure of the review of the constitutionality of laws with their use. Secondly, changes in the judicial deci- 104 The Sejm Review Third Special Issue / 2007 sions of the Constitutional Tribunal, in relation to the participation of the representatives of courts referring a question of law in proceedings before the Tribunal, should lead to a broader use being made by these courts of this form of assessing the constitutionality of laws. Thirdly, the judicial experiences of the Constitutional Tribunal allow for the opinion that the hearing of questions of law, together with the hearing of constitutional complaints, might become the basic form of the judicial decisions of the Constitutional Tribunal. Finally, it should be expected that in the near future the time of waiting for determination by the Constitutional Tribunal of cases in connection with questions of law will be signifi cantly shortened. Today this period is too long and can constitute an impediment for courts applying this instrument. 105

KRZYSZTOF WOJTYCZEK DOCTOR, JAGIELLONIAN UNIVERSITY, CRACOW

THE APPLICATION OF THE ACCUSATORIAL PROCEDURE TO THE REVIEW OF LEGAL NORMS BEFORE THE CONSTITUTIONAL TRIBUNAL IN POLAND*

The principle of accusatorial procedure is a principle according to which the procedure in a case before a given state organ may be instituted exclusively on the request of an authorised person. It excludes the initiation of proceedings ex ofﬁ cio, i.e. on the own initiative of the organ conducting the proceedings. The action to initiate proceedings indicates the matter which is the subject of the proceedings, designating in so doing the limits of the activity of the state organ within the given procedure. In accordance with the principle of accusatorial procedure, it is forbidden to conduct proceedings on any matter other than the one which was designated by the initiating person. It must be added that the action to initiate proceedings determines also their participants (parties)1. The principle of accusatorial procedure is generally acknowledged as one of the constitutive features of a court (German lawyers often cite the saying kein Richter ohne Klage — there is no judge without a party ﬁ ling a suit). Under particular kinds of proceedings conducted by state organs it may be realised in various forms. The

* This article was published in „Przegląd Sejmowy” No. 1(54)/2003. 1 Vide (on the grounds of criminal proceedings) B.T. Bieńkowska, Wybrane aspekty wzajemnej relacji zasad skargowości i kontradyktoryjności oraz ich wpływu na określenie formy procesu i kształtu sporu stron przed sądem, „Przegląd Sądowy” 1997, No. 6, p. 49–50. 106 The Sejm Review Third Special Issue / 2007 subject of this article is a discussion of the methods in which the principle of accusatorial procedure is realised in the procedure of reviewing norms before the Polish Constitutional Tribunal2. Outside the scope of these deliberations there remain other types of proceedings conducted before this organ3, and also procedures before other state organs. 1. The fundamental principles of procedures before state organs are closely related with the subject and the aim of the proceedings being conducted. The legislator, in regulating the given kind of proceedings, has to so apply it to the subject of the proceedings to enable the achievement of the intended objectives. In turn the interpretation of already passed provisions in this ﬁ eld cannot fail to take into consideration the subject and the aim of given proceedings. For these reasons, when discussing the principle of accusatorial procedure in the procedure of the review of norms before the Polish Constitutional Tribunal, it is necessary to present its subject and its aim. In a state governed by the rule of law, state organs may issue law-making instruments only within the limits of their legislative competences as given them by law4. Without going into deeper discussion about the norms granting law-making competence, let us assume that the law-making competence is determined by the following elements: 1) the subject of competence, i.e. the subject authorised to establish legal norms, 2) the limits of the admissible content of the legal norms embraced by the given competence, 3) the procedure for establishing legal norms, 4) the circumstances in which it is prescribed or forbidden to exercise a given competence, 5) the consequences of the exercise of a given competence, i.e. the duty to observe established legal norms.

2 The principle of accusatorial procedure in proceedings before the Polish Constitutional Tribunal is discussed by: Z. Czeszejko-Sochacki, Procesowe granice kognicji Trybunału Konstytucyjnego, [in:] W kręgu zagadnień konstytucyjnych. Profesorowi Eugeniuszowi Zwierzchowskiemu w darze, ed. M. Kudej, Katowice 1999, pp. 207–223; Z. Czeszejko-Sochacki, L. Garlicki, J. Trzciński, Komentarz do ustawy o Trybunale Konstytucyjnym z dnia 1 sierpnia 1997 roku, Warszawa 1999, p. 202–203. Vide also: M. Laskowska, Zasada kontradyktoryjności a postępowanie przed Trybunałem Konstytucyjnym, [in:] Kon- stytucja i władza we współczesnym świecie. Doktryna — prawo — praktyka. Prace dedykowane Profeso- rowi Wojciechowi Sokolewiczowi na siedemdziesięciolecie urodzin, ed. M. Kruk, J. Trzciński and J. Wawrzy- niak, Warszawa 2002, pp. 509–519. 3 It is worth noting that the principle of accusatorial procedure does not apply in the procedure of the signalling by the Constitutional Tribunal of problems and loopholes in the law. 4 On the subject of the concept of “competence” vide: particularly: A. Ross, Directives and Norms, London 1968, p. 118 et seq. and p. 130 et seq.; Z. Ziembiński, Kompetencja i norma kompetencyjna, “Ruch Prawniczy, Ekonomiczny i Socjologiczny” (hereinafter RPEiS) 1969, No. 4, pp. 23–41; by the same author, Problemy podstawowe prawoznawstwa, Warszawa 1980, p. 160 et seq.; M. Matczak, Z rozważań nad koncepcją normy kompetencyjnej, [in:] Z zagadnień teorii i ﬁ lozoﬁ i prawa. Konstytucja, ed. A. Bator, Wrocław 1999, p. 201–221. Krzysztof Wojtyczek: The Application of the Accusatorial Procedure to the Review of Legal Norms... 107

The fourth of the above elements deserves a short explanation. Law-making competence can be granted unconditionally or making use of it can, however, also be conditional on the completion of the defi ned prerequisites. A given organ may, for example, receive the competence to issue specifi ed law-making instruments exclusively in the face of threats to public order. Such is the case with regulations having the force of statute, which, in the Polish legal system, can only be issued at the time of martial law. Legal norms granting law-making powers must defi ne the elements named above. In accordance with the view expressed by Alf Ross5 and developed in Poland by Zygmunt Ziembiński6, such norms can be reduced to include only substantive norms, regulating the behaviour of the addressees of the law. In this view, the norm of the law-making competence is a norm which commands defi ned subjects to observe legal norms if the indicated subject establishes in a defi ned situation, and under a defi ned procedure, legal norms within defi ned material limits. Beside the norms granting law-making competence, addressed to subjects subordinate to this competence, there are also binding legal norms addressed to subjects enacting the law, which regulate the principles of making use of law-making competence. In the procedure of the review of norms, the Constitutional Court establishes whether the given legal norm was issued in breach of the law. The subject of the proceedings before this court is the question of the defectiveness of a particular legal norm. This is a subject completely different from a subject of civil proceedings, which serves the exercise of rights under private law and also different from a subject of criminal proceedings, in which the court decides about criminal responsibility. The review of the legality of law-making activities includes examining whether the legal norm (reviewed norm) enacted by a given organ fi ts within the limits of the content determined by law (norms of reference, norms constituting the basis of review), whether the organ which established it could in the given situation make use of its law-making competence and whether there was maintained the procedure, as defi ned by the law, for enacting the given legal norm7. A norm enacted in breach of the law is a defective norm. Breaches of the law in a law-making process can have various natures. The reason for the defectiveness of a legal norm may be the incompatibility between the content of the enacted norm and the content of a norm of a higher order. The defectiveness may also arise as a result of the fact that the given organ did not possess the law-making competence in the given circumstances and also of a breach of legal norms regulating the procedure of enacting the given normative act8.

5 Vide A. Ross, op. cit., p. 118. 6 Vide the works cited in footnote 4. 7 More broadly on this subject vide B. Naleziński, K. Wojtyczek, Problematyka kompetencji prawo- dawczych a kontrola konstytucyjności prawa, RPEiS 1993, No. 1, p. 47–60. 8 On the subject of defective normative acts vide: B. Naleziński, K. Wojtyczek, Konsekwencje wadliwości aktów normatywnych w polskim systemie prawnym, RPEiS 1993, No. 4, p. 19–32; S. Wron- kowska, O wadliwych aktach normatywnych w ujęciu wiedeńskiej szkoły teorii prawa, [in:] Studia z ﬁ lo- zoﬁ i prawa, ed. J. Stelmach, Kraków 2001, p. 207–218. 108 The Sejm Review Third Special Issue / 2007

In order to defi ne the subject of proceedings under the procedure for the review of norms, it is necessary to identify the legal norm and generally to raise the matter of its defectiveness. In order to implement this procedure it is not, however, necessary either to identify the legal norms that have been breached (norms of reference) or to show the defectiveness of the questioned norm. The constitutional court knows after all the legal norms governing the process of law-making, which allows it to answer the question whether the given norm was enacted in accordance with the law. The fundamental aim of the review of norms is the protection of the Constitution, understood as the realisation of constitutional norms and values. A signifi cant element of the thus defi ned aim is the protection of human rights but this is not the only element. Firstly, the constitutional court is after all also the guardian of values of the whole society, which can fi nd themselves in collision with the values that provide the basis for human rights. It is, therefore, essential in the case of such collisions to fi nd a solution adequate to the signifi cance of particular values. Secondly, the constitutional court also safeguards the norms of law, from which there do not ensue rights (this concerns, among other things, the norms defi ning the organisation of the state apparatus). The means for the realisation of the thus defi ned aim is the elimination from the legal system of “defective” legal norms. The judgement of the constitutional court declaring a the incompatibility of the reviewed norm and the norm of reference, issued within the framework of a secondary review, leads to depriving the reviewed norm of its binding force. It must, however, be noticed that there exist situations in which the elimination of defective norms from the legal system does not constitute an adequate means for the realisation of constitutional values. The consequence of the loss of binding force by the legal norm as a result of a constitutional court judgement may be the emergence of a legal loophole whose consequence will be a breach of the fundamental constitutional values to a degree far greater than that which took place during the time when the previous unconstitutional legal regulation was binding. Most often, however, the loss of binding force by the defective legal norm con- tributes to progress in the realisation of the constitutional norms and values. 2. From the point of view of the issues under discussion what is also of signifi - cance is the role of the participants in the procedure of the review of norms and their connection with the subject matter of the proceedings. In the light of the provisions of the Constitution and the Constitutional Tribunal Act of 1 August 1997 (Journal of Laws No. 102, item 643, with further amendments; hereinafter CTA), the participants in the proceedings are: on one side the subject who initiates the proceedings challenging the constitutionality of the given legal norm and, on the other, the subject that has issued the normative act containing this norm. The act also provided for the participation of other participants. The right to initiate the review of norms is also conferred on both public subjects (defi ned state organs or local government legislative organs) and private subjects (such as, for example, trade unions or employers’ organisations), including natural persons lodging a constitutional complaint. As a consequence, the dis- Krzysztof Wojtyczek: The Application of the Accusatorial Procedure to the Review of Legal Norms... 109 pute about the defectiveness of a legal norm can take place between two public subjects, for example between the Commissioner for Civil Rights Protection and the Council of Ministers, and also between a private subject and a public subject, for example between an entity which lodged the constitutional complaint and the Sejm, or between a trade union and the Minister for Labour and Social Policy. Public subjects may challenge those law-making acts which do not include the regulation of their competences, tasks or duties. Here we can cite the example of the Commissioner for Civil Rights Protection undermining the constitutionality of provisions concerning the statutory entitlements of disabled persons. In such a case the dispute about the constitutionality of a legal norm is not connected with any legal relationship between the two subjects. Public subjects may also initiate proceedings in the matter of the review of norms, challenging legal regulations concerning their competences, tasks or duties. The following situation is an example of this. In the Constitution and in statutes there are provisions governing the relations between the Sejm and the Prime Minister, specifying the rights and duties of these two organs with respect to each other. One can imagine that the Sejm adopts the rules of procedure limiting the possibility of the Prime Minister making use of his constitutional competence to submit a motion requiring a vote of confi dence in the government. If the Prime Minister applies to the Constitutional Tribunal for an adjudication declaring the unconstitutionality of the appropriate provisions of the rules of procedure of the Sejm, the dispute will be based on the substantive-law relationship linking these two organs. In no case, however, can the subject of a dispute between public subjects be claims which these subjects could possess; this concerns the realisation of absolutely binding norms of statute law. Private subjects may initiate proceedings before the Constitutional Tribunal in the defence of their own interests. An example of this might be an entity which lod- ges a constitutional complaint against a statute limiting its right to property; this could also be a trade union which challenges the provisions of a statute limiting the rights of trade union organisations to conduct economic activity. Private subjects, however, may also initiate a review of the constitutionality of the law in the defence of the public interest, for example a trade union which challenges the constitutionality of provisions lowering the level of the safety at work protection. Even when the proceedings are initiated by a given subject in the defence of its own interests, the adjudication has signifi cance for all remaining subjects who fi nd, or could fi nd, themselves in a similar situation. The decisions of the Constitutional Tribunal have a universally binding force and the elimination of a defective norm affects all state organs and all citizens. The procedure of the review of the constitutionality of norms is always conducted in the public interest9, even if it can sometimes at the same time serve the assertion of the rights and the defence of private interests.

9 Vide: L. Garlicki, Sądownictwo konstytucyjne w Europie Zachodniej, Warszawa 1987, p. 143–144; Z. Czeszejko-Sochacki, Procedury kontroli konstytucyjności norm, [in:] Studia nad prawem konstytucyjnym, ed. J. Trzciński and B. Banaszak, Wrocław 1997, p. 63–64; M. Laskowska, op. cit., p. 518. 110 The Sejm Review Third Special Issue / 2007

In connection with this, it should be noted that the human rights guaranteed in the Constitution have an objective signifi cance on account of the protection of values of a fundamental signifi cance not only for the individual but also for the whole of so- ciety10. The constitutional human rights are inalienable. An individual cannot waive these rights but (s)he can, however, decide about the method of making use of them and also about the method and scope of their execution. A journalist can, for example, decide that (s)he will not criticise certain activities of the authorities and the owner of a property might decide not to pursue claims in the event of unlawful expropriation. The fact that the owner decides to behave in this particular way does not have any effects from the point of view of an assessment of the accordance of the expropriation to the law. Such individual decisions as to the method of exercise of one’s rights and their assertion by a given subject does not have any effect whatsoever on the constitutional scope of the protection of human rights. In the case of human rights, the subject of disposition is merely the method of their realisation and not simply their possession itself. 3. According to Article 66 of the CTA, the Tribunal, while adjudicating, is bound by the limits of the application, the question of law or complaint”. In connection with this, there arises the question about the defi nition of these limits (in further deliberations they will be briefl y referred to as the limits of review). There are three fundamental ways of understanding this notion: 1) the limits of review determine exclusively the norms under review; in this understanding the Constitutional Tribunal cannot adjudicate on norms which were not indicated as a subject of review by the subject initiating the proceedings; it is not, however, bound by the grounds for review indicated by the initiator of the proceedings and can cite norms of reference not indicated by this subject; 2) the limits of the action are determined by both the reviewed norm and the norm indicated as a basis for review; in such a situation the Constitutional Tribunal has to limit itself to adjudicating exclusively about incompatibility between the norms indicated by the initiator of the review; the subject of the proceedings is exclusively the charge of the incompatibility between the reviewed norms and the defi ned norms of reference; the Constitutional Tribunal cannot cite as basis for review norms not indicated by the applicant; 3) these limits are determined by three elements: a) the reviewed norm, b) the norm constituting the basis for review, c) arguments cited in order to show the incompatibility between these norms; this means that the Constitutional Tribunal cannot ex offi cio cite arguments not indicated by the initiator of the review; the subject matter of the proceedings is then not so much the incompatibility between the defi ned norms and the norms of reference but the legitimacy of the application, question of law or constitutional complaint. It must be added that according with the second and third way of understanding this

10 Vide: Z. Kędzia, Pojęcie „prawa i wolności obywatelskie” (Uwagi na tle ustawy o Rzeczniku Praw Obywatelskich), PiP 1989, fascicle 3, pp. 25–38; by the same author, Konstytucyjna koncepcja praw, wolności, obowiązków człowieka i obywatela, [in:] Prawa, wolności i obowiązki człowieka i obywatela w nowej polskiej konstytucji, ed. Z. Kędzia, Poznań 1990, pp. 7–35. Krzysztof Wojtyczek: The Application of the Accusatorial Procedure to the Review of Legal Norms... 111 notion, it is possible to admit certain exceptions concerning the ex offi cio review of the procedure of enacting the given normative act. This last issue constitutes the subject of examination in section 4 of this article. In establishing an interpretation of the provision under analysis, attention must be paid to the provisions specifying the requirements that the application, question of law and constitutional complaint have to fulfi l. According to Article 32 paragraph 1 of the CTA “the application or question of law shall comply with the requirements referring to procedural letters and shall, in addition, include: 1) identifi cation of the organ which enacted the normative act in question, 2) a precise identifi cation of the normative act, or a part thereof, called in question, 3) formulation of the claim alleging the non-conformity of the normative act called in question to the Constitution, ratifi ed international agreement or statutes, 4) reasons for the claim containing indication of supporting evidence”. The notion of “claim” may raise doubts. It must be assumed that this is a statement of the incompatibility of the challenged norm with a different legal norm, indicated as the basis for review. The formulation of the claim of non-conformity of the questioned normative act with the Constitution, ratifi ed international agreement or statute is the presentation of a statement about the incompatibility of the given legal norm with the indicated norm expressed in a legal act constituting the basis for re- view11. The obligation to justify each of the claims raised ensues from the act. On the other hand, a constitutional complaint, apart from the requirements referring to the procedural letters, should include: “1) a precise identifi cation of the statute or other normative act, on the basis of which the court or another organ of public administration has given fi nal decision in respect of the freedoms or rights or duties determined in the Constitution and in relation to which the person making the complaint is demanding a statement of non-conformity to the Constitution, 2) an indication as to which constitutional freedoms or rights, according to the person making the complaint, have been infringed and in which manner, 3) grounds of the complaint, including precise description of the facts of the case” (Article 47 paragraph 1 of the CTA). Since the subject of review in the case of a complaint is always a normative act, the requirement of indicating which freedoms and rights have been infringed should be understood as the requirement of indicating the constitutional norms with which the challenged act is incompatible; furthermore the basis for review should be constitutional norms constituting the source of rights. In turn, from the requirement of indicating in what way the freedoms and rights were infringed and also from the requirement of justifying the complaint that the appellant ought to justify the charge of the non-conformity of the norms with constitutional norms. The wording of the presen-

11 Cf. Z. Czeszejko-Sochacki, Procesowe..., p. 220–221. 112 The Sejm Review Third Special Issue / 2007 ted provisions, defi ning the requirements that the applications, questions of law or constitutional complaints must meet may prima facie suggest the adoption of the third of the above-mentioned methods of understanding the limits of review. In seeking an answer to the question of how “limits of the review” should be understood, attention must be paid to the fact that on the basis of the provisions binding before 17 October 1997, in accordance with which the Constitutional Tribunal had the competence to institute proceedings on its own initiative12, the jurisprudence admitted the examining of the conformity of the challenged provisions with provisions not indicated by the initiator of the review. In one of its judgements in 1996, the Constitutional Tribunal expressed the following opinion: “According to the used in Article 2 and Article 22 paragraph 1 of the CTA and in Article 20 paragraph 1 of the Resolution of the Sejm of 31 July 1985, the essence of the application concerning the examining of the constitutionality of a statute is the questioning of the conformity with the Constitution of the statute (or fragments thereof) indicated by the applicant. The Constitutional Tribunal admittedly in the conclusion of the judgment considers and adopts a standpoint on the claims laid by the Applicant concerning the non-conformity of the challenged statute (or challenged fragment of the statute) with particular provisions of a constitutional rank, as indicated by the Applicant, but in examining the constitutionality of the challenged provisions it is not bound by the scope of these complaints. The Constitutional Tribunal is bound by the motion in the sense that it examines the constitutionality of the provisions questioned by the Applicant”13. After the coming into force of the Constitution of the Republic of Poland on 17 October 1997 and the new Constitutional Tribunal Act, the problem of the meaning of Article 66 of this Act was considered in several decisions. In the judgement in June 1998, the Constitutional Tribunal repeated the view that “it is bound by the application in the sense that it examines the constitutionality of provisions questioned by the applicant”14, but attention must be paid to the fact that the deliberations of the CT concerned exclusively the matter of reviewing the observance of the procedure required by the provisions of the law to issue the act15. Further decisions brought a fundamental change in the way of understanding the limits of an application, question of law and constitutional complaint. In its order in October 1998, the Constitutional Tribunal stated: “The limits of the action in the matter of a constitutional complaint are defi ned by: a precise specifi cation of the statute or other normative act, on the basis of which the court or other organ of public administration decided fi nally about the freedoms or rights or duties specifi ed in the Constitution and in relation to which the appellant is demanding a statement of non-conformity with the Constitution; an indication as to which constitutional freedoms or rights, accor-

12 Vide Article 22 para. 2 of the Constitutional Tribunal Act of 29 April 1985 (Consolidated text, Dziennik Ustaw [Journal of Laws] of 1991, No. 109, item 470, with further amendments). 13 Decision of 9 January 1996, Catalogue number K.18/95, OTK ZU 1996, No. 1, para. 1, p. 17. 14 Judgement of 24 June 1998, Catalogue number K.3/98, OTK ZU 1998, No. 4, para. 52, p. 336. 15 This matter is discussed later in this study. Krzysztof Wojtyczek: The Application of the Accusatorial Procedure to the Review of Legal Norms... 113 ding to the complainant, have been infringed and in which manner; grounds of the complaint, including precise description of the facts of the case (Article 47 paragraph 1(1–3) of the CTA)”16. In turn, in the reasons for the judgement in March 2000, we can read that, in accordance with Article 66 of the CTA, “While adjudicating, the Tribunal is bound by the limits of the application, question of law or complaint. The direct effect of this regulation is the prohibition against broadening and complementing by the Constitutional Tribunal, acting on its own initiative, of the normative model indicated by the subject initiating the proceedings”17. A similar view was expressed in several later decisions18. Thus, in accordance with the current jurisprudence of the Constitutional Tribunal, legal norms not indicated by the initiator of the review as norms of reference cannot constitute the basis for the review of the content of norms questioned by an authorised subject. This approach does not appear to be appropriate. The interpretation of Article 66 of the CTA has to take into consideration above all the fact that the review of norms takes place in the public interest and has as its aim the protection of the Constitution. The will of the initiator of the proceedings and the aim of the application, question of law or constitutional complaint is above all to eliminate from the legal system a defective legal norm and not to obtain an adjudication on the consistency of defi ned norms. The citing — as a norm of reference — of a norm that has not been indicated by the initiator of the review does not mean adjudicating above and beyond a claim and does not infringe the principle of ne ultra petita partium. For the presented reasons, in countries in which there exists a constitutional judicature, it is most often accepted that the constitutional court is not bound by the basis for review indicated by the initiator19. In proceedings before ordinary courts, the principles of da mi facti, dabo tibi ius and iura novit curia are applied. The role of the prosecutor in criminal proceedings consists in specifying the alleged act and on presenting the appropriate evidence, whereas it is up to the court to indicate the normative basis of criminal responsibility. The court is not bound by the legal qualifi cation of the alleged act. In turn, in civil law procedure, the plaintiff has to defi ne the demand of the claim and describe the factual circumstances justifying the demand, and prove them. Also in this case it is up to the court to establish the legal basis of the ruling. It ought to be analogously accepted that in proceedings intended to review norms it is the responsibility of the initiator of the

16 Order of 13 October 1998, Catalogue number SK.3/98, OTK ZU 1998, No. 5, para. 69, p. 435. 17 Judgement of 14 March 2000, Catalogue number P.5/99, OTK ZU 2000, No. 2, para. 60, p. 256. 18 In the judgements of 21 May 2001, Catalogue number SK 15/00, OTK ZU 2001, No. 4, para. 85, p. 510; 11 September 2001, Catalogue number SK 17/00, OTK ZU 2001, No. 6, para. 165, p. 883; 20 No- vember 2001, Catalogue number SK 19/01, OTK ZU 2001, No. 8, para. 53, p. 1288. The reasons of the judgement of 20 October 1998 are also based on such an understanding of the limits of cognition, Cata- logue number K.7/98, OTK ZU 1998, No. 6, para. 96, p. 504. 19 More broadly on this subject vide: L. Garlicki, op. cit., pp. 148–152. A different problem related with the binding force of the principle of accusatorial procedure in other countries is presented by Z. Cze- szejko-Sochacki, Procesowe..., p. 214. 114 The Sejm Review Third Special Issue / 2007 proceedings to indicate the questioned norm and to present and justify the demand to eliminate it from the legal system, whereas the role of the constitutional court is to indicate in the adjudication the appropriate basis for the review. The content of constitutional norms may be the subject of controversy. The establishing of a binding interpretation of the basic law is the responsibility of the constitutional court and, therefore, the risk of a different interpretation, expressed in the way of defi ning the basis for the review, cannot be passed on to the initiator of the proceedings. The specifi c nature of constitutional norms also provides a signifi cant argument. Constitutional regulation constitutes a certain normative entirety. Interpretation of the Constitution has to take into account the totality of its provisions. Many norms of the basic law have the nature of principles which can be in confl ict with each other. The establishing of the limits of the regulatory freedom pertaining in a given case very often requires the taking of decisions as to which of the constitutional principles has precedence in the case of such a confl ict. To this end it is necessary to refer to all the constitutional norms fi nding themselves in confl ict with the norm indicated as the basis for review. The statutory obligation of formulating the claim, and reasons therefor, does not imply the necessity for determining the limits of the review in the case under review. This requirement does, however, fulfi l two other functions. Firstly, it facilitates a more precise specifi cation of the content of the challenged legal norms constituting the subject matter of the review and, thus, a more precise defi nition of this subject. Secondly, it is intended to force the participants to actively engage themselves in the proceedings and thus to make it easier for the Constitutional Court to make a comprehensive examination of the factual circumstances and of the arguments concerning norms and values. The function of these provisions is, therefore, to ensure an appropriate adjudication20. To conclude this part of the deliberations, it has to be stated that neither the norms of reference indicated by the initiator of the review nor, even more so, the argumentation presented in the reasons for the application, question of law or constitutional complaint can determine the limits of the review. The Constitutional Tribunal may examine the conformity of the challenged legal norms with legal norms not indicated as norms of reference by the initiator of the review. It can also cite such not indicated norms in the judgement as the basis for review21. Acknowledging the right of the Constitutional Tribunal to examine the conformity of legal norms with norms not indicated as the basis for review gives rise to the question of when the Constitutional Tribunal ought to make use of this right. Above all it must be noticed that this organ does not have the obligation of considering ex offi cio the matter of the conformity of the challenged norm with norms not indicated as the basis for review by the initiator of given proceedings. If, however, the adjudi-

20 Different conclusions were drawn by Z. Czeszejko-Sochacki, Procesowe..., p. 219 et seq. 21 Differently: Z. Czeszejko-Sochacki, ibid., p. 223; Z. Czeszejko-Sochacki, L. Garlicki, J. Trzciński, op. cit., p. 139–140. Krzysztof Wojtyczek: The Application of the Accusatorial Procedure to the Review of Legal Norms... 115 cating bench, after considering the circumstances of the case, comes to the conclusion that the challenged norm does not conform with a legal norm not indicated by the applicant, then it should not refrain from stating this non-conformity in the conclusion of the judgement. The omission of this matter when adjudicating can, however, be justifi ed in a particular situation, in which — because of the consequences of the adjudication — the declaration of non-conformity would not lead to a more effective realisation of the Constitution but would, on the contrary, result in an infringement of fundamental constitutional values, such as legal security and the certainty of law. 4. For an understanding of the principle of accusatorial procedure in the procedure of the review of norms of great signifi cance is also Article 42 of the CTA. According to this provision, “in adjudicating about the conformity of the normative act or ratifi ed international agreement with the Constitution, the Tribunal examines both the content of such an act or agreement, and also the competence and the observance of the procedure required by the provisions of the law to issue the act or to contract and ratify the agreement”22. Article 42 indicates three aspects of the review: the contents of legal norms, competence and the procedure for issuing the given norm. Indicating the “competence” to issue norms as a separate aspect of the review, besides the content and the procedure, arouses serious doubts23. The problem lies in the fact that the question of competence cannot be considered in isolation from the content of the given norm and the procedure for issuing the norm. The competence to issue a given normative act is after all always the competence of a given organ to issue an act with a defi ned scope of its subject matter and defi ned limits of content and according to a specifi ed procedure. A regulation of the Council of Ministers which regulates matters not assigned to it for regulation does not conform to statute and the Constitution. On the one hand, after all, the content of such a regulation is incompatible with the content of norms determining the scope of authorisation; on the other, the Council of Ministers does not have the competence to issue such an act. In any case, there is no doubt that the Constitutional Tribunal has the right to examine whether a given legal act has been issued in conformity with the legal norms regulating the procedure of its issuing. The legislator used in Article 42 of the Act the indicative mood (“The Tribunal shall examine”). In the Polish legal system, the indicative mood is used as a rule to express obligation but there are situations in which its use is connected not with es-

22 The signifi cance of this provision was analysed by, among others, Z. Czeszejko-Sochacki, Trójas- pektowa kontrola konstytucyjności w ujęciu art. 42 ustawy o TK z 1997 r., [in:] Konstytucja, ustrój, system fi nansowy państwa. Księga pamiątkowa ku czci prof. Natalii Gajl, Warszawa 1999, p. 253–266; Z. Cze- szejko-Sochacki, L. Garlicki, J. Trzciński, op. cit., p. 138–144. 23 More broadly on this subject vide B. Naleziński, K. Wojtyczek, Problematyka..., p. 57–58. This issue is treated differently by, among others, K. Działocha, Problemy zgodności prawa z konstytucją, [in:] Trybunał Konstytucyjny. Materiały konferencyjne, ed. J. Trzciński, Wrocław 1987, p. 64 et seq.; Z. Cze- szejko-Sochacki, Trójaspektowa..., p. 261–263. 116 The Sejm Review Third Special Issue / 2007 tablishing obligation but simply with assigning the competence to perform specifi ed conventional activity or creating a certain possibility of action. In connection with this, the question arises as to whether, according to Article 42 of the Act, the Constitutional Tribunal has the obligation to examine in each case ex offi cio whether a given legal norm was issued under the appropriate procedure. It must be assumed that such an obligation has not been established. If, however, there are justifi ed doubts as to the correctness of the procedure used in making the law, then the Constitutional Tribunal may examine this matter ex offi cio, i.e. even if the initiator of the proceedings does not present a complaint about the infringement of procedural provisions. If the Constitutional Tribunal comes to the conclusion that the legislator did not observe the procedure for issuing a given act required by the provisions of the law, then it can state in the conclusion of the judgement that the norms regulating the procedure for issuing this act have been infringed, irrespective of whether the initiator of the proceedings drew attention to this infringement in the application, complaint or question of law. The acceptance of a different solution would remain in contradiction with the fundamental aim of the review of the constitutionality of the law and could cause the continuation of binding force of normative acts after the review conducted by the Constitutional Tribunal, despite their non-conformity with the Constitution, international agreements or acts. The normalisation of the procedure of issuing a given act can be uniform for all its provisions but it could happen that it is different for some provisions within this act. The law can after all provide for the introduction of particular requirements concerning the procedure of issuing specifi ed provisions (e.g. the requirement of con- sulting certain matters with trade unions), in addition to which these requirements will not then apply to the issuing of other provisions included in the same legal act. The non-observance of the procedure for enacting a given legal norm required by provisions of the law provides the basis for the issuing of an adjudication declaring its incompatibility with a defi ned basis for review irrespective of the content of the given norm. Complaints concerning content then become irrelevant and there is no need to consider them. Incompatibility embraces furthermore other provisions of the examined normative act to which the infringed procedural norm fi nds application. In connection with this there arises the question as to whether the Constitutional Tribunal may adjudicate about the non-conformity with the norms regulating the legis lative procedure of those legal norms which were not indicated as the subject of review in the application, question of law or constitutional complaint. Article 42 enables the Constitutional Tribunal to examine the observance of the appropriate procedure of issuing a given act irrespective of whether the initiator of the review claimed the infringement of the norms regulating the procedure of issuing the legal act in question. Moreover, the discussed provision forms the basis for the review of the observance of the legal procedure also with reference to those legal norms which were not indicated by the initiator. In consequence, the judgement fi n- ding an infringement of the norms regulating the legislative procedure ought to refer Krzysztof Wojtyczek: The Application of the Accusatorial Procedure to the Review of Legal Norms... 117 to all the legal norms included in the examined normative act to which the specifi ed requirement concerning the legislative procedure applies. In accordance with Article 42, the Constitutional Tribunal may extend the scope of the procedural review to include the whole normative act which contains at least one legal norm challenged in the application, question of law or constitutional complaint. In favour of such an interpretation are, among other things, the principle of the superiority of the Constitution and interest of the public24. The provision under discussion is understood in jurisprudence in a similar manner. In the already cited judgement of 24 June 1998, the Constitutional Tribunal expressed the view that “when examining the constitutionality of an act, it can not only assess its material conformity with norms of a higher order, but it can also examine — irrespective of the content and scope of the application — whether these acts came into effect with due observance of the procedure required by the provisions of law for its issuance”. The provisions of Article 42 of the CTA give the Tribunal, among other things, “the legitimacy to examine whether all the elements of the legislative procedure have been observed as regulated on the constitutional level. The Constitutional Tribunal considers that the examination of the observance of these elements is its obligation, irrespective of the scope of the complaints lodged by the applicant”25. 5. Legal norms constitute the subject-matter and basis of the review. Legal provisions are cited in support to indicate legal norms of a defi ned content but they cannot have a decisive signifi cance for indicating the subject-matter or the basis of the review. In establishing the subject-matter of the review it is necessary to take into consideration the normative content questioned by the initiator of the review. With this aim in mind it is necessary to take into account, beside the petitum, also the reasons for the application, question of law or complaint. If in the reasons the initiator of the review indicates the questioned norm in a way not leaving any doubts and at the same time erroneously indicates the provisions from which this norm ensues, then such an error cannot have negative consequences for him. The Constitutional Tribunal ought to submit to review the questioned legal norm, referring in the conclusion of the judgement to those provisions in which this norm is expressed, irrespective of whether they were properly indicated by the initiator of the review. The Constitutional Tribunal drew attention in its judicial decisions to the fact that “it examines a legislative act only in the part indicated by the applicant in the sense that it makes the subject of examination the normative content questioned by the applicant and expressed directly in the provisions of this act or ensuing from the provisions, to which refers the charge of unconstitutionality made by the applicant. If, however, the applicant associates the questioned normative content with a certain

24 Similarly vide: Z. Czeszejko-Sochacki, Trójaspektowa..., p. 265–266; Z. Czeszejko-Sochacki, L. Garlicki, J. Trzciński, op. cit., p. 139–140 and p. 203; J. Repel, Przedmiotowy zakres skargi konstytucyjnej, [in:] Skarga konstytucyjna, ed. J. Trzciński, Warszawa 2000, p. 98–99. 25 OTK ZU 1998, No. 4, p. 336. 118 The Sejm Review Third Special Issue / 2007 editorially separate fragment of the statute, where in order to reconstruct its content it is necessary to take into consideration also another fragment of the same statute not indicated by the applicant, then there is nothing to prevent the Tribunal from examining all the provisions of the statute from which ensues the normative content questioned by the applicant. In European legal culture, the falsa demonstratio non nocet principle is well grounded — according to this principle, what is of decisive signifi cance is the essence of the matter and not its description”26. On the other hand, the Constitutional Tribunal stated that “in accordance with Article 66 of the CTA, «in adjudicating, it is bound by the limits […] of the question of law». These limits are determined by the tenor of the question of law, and an independently reconstructed question from the arguments of the justifi cation would lead the Tribunal to act on its own initiative, which is not allowed by the current provisions”27. 6. Particular problems connected with the determination of procedural limits of the cognition of the Constitutional Tribunal arise in the case of a constitutional complaint. In the light of Article 79 of the basic law, this complaint is above all a means of protecting constitutional rights. The basis of a complaint is always an infringement of objective rights ensuing from constitutional norms. A condition of admissibility of a complaint is the indication, for every questioned legal norm, of the infringed right emanating from the Constitution. In the case of a constitutional complaint the only basis for review are constitutional norms. The Constitutional Tribunal, in adjudicating such complaint, cannot examine the conformity of the challenged norm with statutory or sub-statutory norms. The question arises whether beside constitutional rights the basis for review in the case of a constitutional complaint may be provided by constitutional norms from which such rights do not emanate. The Constitution and the CTA do not exclude indication of these other constitutional norms as a basis for review as well. The fact that a constitutional complaint serves above all the protection of constitutional rights does not exclude the adjudication — after the hearing of the complaint — about the infringement of statute law. In one of the cases brought as a result of a constitutional complaint, ending in the issuing of a judgement in April 2001, the Constitutional Tribunal examined — as appropriate to the petitum of the case — the conformity of the challenged provisions, among other things, with Article 176 paragraph 2 of the Constitution (“The organisational structure and jurisdiction as well as procedure of the courts shall be specifi ed by statute.”)28. The Constitutional Tribunal may examine the conformity of the examined norm with constitutional norms which do not consti-

26 Judgement of 3 December 1996, Catalogue number K.25/95, OTK ZU 1996, No. 6, para. 52, p. 498. The Constitutional Tribunal upheld the cited view under the rule of the Constitution of 2 April 1997 and the CTA of 1997, inter alia, in the judgement of 16 June 1999, Catalogue number P.4/98, OTZK ZU 1999, No. 5, para. 98, p. 519, and in the judgement of 19 March 2001, Catalogue number K.32/00, OTK ZU 2001, No. 3, para. 50, p. 288. 27 Order of 22 March 2000, Catalogue number P.12/98, OTK ZU 2000, No. 2, para. 67, p. 307. 28 Vide the judgement of 2 April 2001, Catalogue number SK 10/00, OTK ZU 2001, No. 3, para. 52, p. 315 et seq. Krzysztof Wojtyczek: The Application of the Accusatorial Procedure to the Review of Legal Norms... 119 tute a source of legal rights and do not even shape in a direct way the status of the individual. It must in connection with this be accepted that the Constitutional Tribunal can call as a basis for review constitutional norms which do not regulate the status of the individual, even if they were not indicated in the constitutional complaint as the basis for review. Broadening the scope of the review is, however, only possible when the examined regulation touches upon one of the constitutional legal rights. A constitutional complaint undergoes its initial hearing in a closed session before one judge of the Constitutional Tribunal, who examines whether the complaint fulfi ls the formal conditions and whether it is not obviously groundless. If the complaint does not fulfi l the formal requirements, the judge calls for the shortcomings to be removed within seven days of the applicant being informed of this fact. When the complaint is obviously groundless or when the shortcomings have not been removed in the specifi ed time, the judge issues an order not to proceed further with the complaint. It might occur that the complaint fulfi ls the formal requirements in reference to some legal norms indicated as the subject of review and at the same time does not fulfi l the requirements in reference to other indicated legal norms. In such a case, the Constitutional Tribunal decides to proceed with the case further, but only in reference to the former norms and refuses to do so in reference to the remaining norms, even though they were indicated as the subject of review. Since it is the subject of review that determines the limits of the complaint, the subject-matter of a ruling issued within the framework of the initial hearing is always the norms indicated as the subject of review. Adjudication within the framework of initial review can, however, have as its subject also the basis for review, if the complainant indicates sub-constitutional norms as the basis for review. In such a case, the Constitutional Tribunal can refuse to proceed with the complaint within the scope of the charge of the infringement of these norms. The Constitutional Tribunal should not, however, issue an adjudication in which it allows to proceed with the constitutional complaint in respect of some claims alleging the infringement of the Constitution and at the same time refuses to allow to proceed with it in relation to charges of non-conformity with other constitutional norms, if the same legal norm constitutes the subject of review29. 7. From the very nature of the principle of accusatorial procedure the conclusion can be drawn that the withdrawal of the act initiating the proceedings should carry with it the inability to conduct proceedings. According to Article 39 paragraph 1(2) of the CTA, “the Tribunal shall, at a sitting in camera, discontinue the proceedings […] in consequence of the withdrawal of the application, question of law or complaint concerning constitutional infringements”. The way of understanding the limits of the motion affects the interpretation of the provision cited.

29 The Constitutional Tribunal adopted a different standpoint in its decision of 28 November 2001, Catalogue number Ts 133/01, OTK ZU 2002, series B, No. 1, para. 99, p. 258 et seq. In its order of 29 January 2002 (ibidem, para. 100, p. 261 ff) in the same matter, the Constitutional Tribunal did not allow the complaint. 120 The Sejm Review Third Special Issue / 2007

The Act does not exclude a partial withdrawal of the application, question of law or constitutional complaint at the same time as maintaining it in the remaining scope. A partial withdrawal of the application may consist in reduction of the subject-matter of review or the basis for review. The question arises as to whether and in what scope the Constitutional Tribunal should discontinue the proceedings in the aforementioned case. It must be accepted that the Constitutional Tribunal is bound by the decision of the subject initiating the procedure of withdrawing the application in reference to a specifi ed subject-matter of review. In the case of reduction of the subject-matter of complaint, the Constitutional Tribunal has to discontinue the proceedings in relation to the legal norms which the given subject has ceased to challenge (which as a matter of fact does not concern a review of the observance of the procedure of issuing a given act as required by the provisions of the law). The Tribunal, however, is not bound by a decision of the initiator of the procedure of narrowing the basis for review. As a consequence, this organ can refer a legal norm as the basis for review despite the fact that the author of the application (complaint, question of law) withdrew the charge of non-conformity with this norm. 8. The question arises whether, in the Polish legal system, the principle of accusatorial procedure in the procedure of the review of norms involves the obligation of hearing each application, each question of law and each constitutional complaint. The constitutional legislator does not regulate this matter in a clear way. The Constitution specifi es a group of subjects authorised to initiate a review of norms and the conditions for initiating this review but it does not formulate expressis verbis the obligation to hear every case brought by an authorised subject. Even in Article 79 paragraph 1 of the basic law there is mention only of the right to lodge a complaint to the Constitutional Tribunal. This provision, in contrast to Article 45 (concerning the right to a court), does not guarantee clearly the right to a hearing of a lodged complaint. In turn, the Constitution provides for the issuing by the Constitutional Tribunal of adjudications which would have legal effects defi ned in the Constitution. No constitu tional provision authorises this organ to refuse to hear a case. It ensues from this that if there are no formal obstacles, the proceedings before the Constitutional Tribunal should end with the issuing of an adjudication. The referring of an application, question of law or constitutional complaint to the Constitutional Tribunal brings with it the obligation of a hearing. The Tribunal has no right to select which of the cases initiated by authorised subjects to hear. Each application, each question of law and each constitutional complaint that fulfi ls the formal requirements is subject to a substantive hearing. A statute including the authorisation of the Constitutional Tribunal to refuse to hear a case would not conform to the Constitution. Next, the matter should be considered of whether the demand to examine the conformity of a challenged legal norm with a specifi ed norm of reference binds the Constitutional Tribunal. The obligation of hearing a case draws with it the necessity of adopting a standpoint on all the charges presented in the application. The Tribunal cannot refuse to examine the conformity of a challenged norm with the norm indica- Krzysztof Wojtyczek: The Application of the Accusatorial Procedure to the Review of Legal Norms... 121 ted as the basis for review if the application, question of law or constitutional complaint fulfi ls the requirements specifi ed by the law. It must once again be emphasised that legal norms and not provisions constitute the basis for review. The enumeration by the initiator of the review of the provisions from which, in his opinion, ensues the norm of reference does not bind the Constitutional Tribunal. This organ independently indicates the provisions constituting the basis for decoding the norm of reference. The complainant sometimes indicates two legal norms as the basis for review of which one is a more detailed specifi cation of the other and, at the same time, it ensues from the justifi cation that the infringement of the more general norm comes down to an infringement of the detailed norm. Such a situation might arise, for example, when the infringement of the principle of social justice is the consequence of an infringement of the principle of equality through arbitrary diversifi cation or when an infringement of a person’s dignity consists in an infringement of his personal inviolability. In such a case there is no need to make reference in the judgement to the more general norm as a separate basis for review30. A distinction should be made between the case described above and one in which the initiator of a review indicates as the basis for review a more general norm and a detailed one and at the same time the infringement of the more general norm does not ensue from an infringement of the detailed norm. Such a situation takes place if, for example, the initiator alleges the infringement of the principle of equality and the infringement of the principle of justice by depriving certain persons of the right to the minimum subsistence income. The Constitutional Tribunal has then to adopt a standpoint towards each charge separately. 9. The principle of accusatorial procedure and ne ultra petita partium principle, which are binding in civil law proceedings, guarantee the protection of the parties’ interests. The subject-matter of proceedings before the Constitutional Tribunal are not claims which the participants in the proceedings might have. The principle of accusatorial procedure in the procedure of the review of norms fulfi ls different functions. Firstly, it draws with it a division of the function of questioning the constitutionality of regulations and the function of adjudication. One subject makes the charge of the defectiveness of a legal norm and the other subject assesses the grounds for this charge. The principle under discussion is a necessary (although insuffi cient) condition for the keeping by the Constitutional Tribunal at an adequate distance to the case being heard and to the participants in the proceedings and thus is one of the guarantees of the objectivity and impartiality of this organ31. Secondly, the ex offi cio initiation of proceedings would require a selection of cases which would be heard. This selection would naturally have to be conducted on the basis of political criteria. The principle of accusatorial procedure protects the

30 Vide the opinion of the Constitutional Tribunal on this subject, expressed for example in the judgement of 19 February 2001, Catalogue number SK 14/00, OTK ZU 2001, No. 2, para. 31, p. 190, and in the judgement of 25 February 2002, Catalogue number SK 29/01, OTK ZU 2002, series A, No. 1, para. 5, p. 89. 31 Cf. B.T. Bieńkowska, op. cit., p. 49–50. 122 The Sejm Review Third Special Issue / 2007

Constitutional Tribunal from the charge of “politicisation” and thereby strengthens the legitimacy of this organ32. Thirdly, the principle of accusatorial procedure remains in close connection with the principle of the separation of powers33. The review of the constitutionality of the law constitutes an interference by the judiciary in the sphere of activity of the legislative and executive powers. The Constitutional Tribunal through its judicial decisions establishes interpretations of the Constitution and determines the scope of the freedom of activity of the legislature and the executive in the process of constituting the law. Granting the Constitutional Tribunal the right to initiate proceedings ex ofﬁ cio would lead to a disturbance in the balance between particular powers34. Fourthly, the review of the constitutionality of the law always constitutes a form of interference in political processes. According to the principle of accusatorial procedure, such interference is only possible when, and if, it is demanded by authorised subjects. This principle determines then the limits of the interference of the Constitutional Tribunal in the sphere of political life. 32 Cf. L. Garlicki, op. cit., p. 151–152. 33 Cf.: C. Pestalozza, Verfassungsprozeßrecht. Die Verfassungsgerichtsbarkeit des Bundes und der Länder mit einem Anhang zum internationalen Rechtsschutz, München 1991, p. 47; E. Benda, E. Klein, Lehrbuch des Verfassungsprozeßrechts, Heidelberg 1991, p. 66. 34 Cf. L. Garlicki, op. cit., p. 257. 123

MONIKA HACZKOWSKA, M.A., UNIVERSITY OF WROCŁAW

LEGISLATIVE LAWLESSNESS AS THE MANIFESTATION OF HARM IN THE MEANING OF ARTICLE 77 PARAGRAPH 1 OF THE CONSTITUTION OF THE REPUBLIC OF POLAND*

1. Parliament, being the representative of the collective subject of sovereignty — the Nation — chosen in direct and democratic elections, was regarded as the guarantor of human rights. In time, however, it was acknowledged that the actions of Parliament could also be the cause of harm to the individual. Despite the increased demands placed on the lawgiver — on the one hand concerning the content of normative acts intended to respect human rights and on the other hand concerning the manner of their issuing — there appeared the need to regulate the matter of the responsibility of the state for harm resulting from law-giving actions. Such premises, among other things, lay at the foundation of legislative work on Article 77 paragraph 1 of the Constitution of the Republic of Poland and statutes amending the hitherto provisions of civil law1. The harm resulting from actions by the lawgiver can arise both from normative acts issued and from acts not issued, both from binding acts and those repealed, and from acts which fragmentarily regulate a speciﬁ c legal matter or omit in their scope of regulation a particular group of subjects or events. Finally, the basis for compensation

* This article was published in „Przegląd Sejmowy” No. 3(68)/2005. 1 The Act of 17 June 2004 on the amendment to the statute — Civil Code and some other statutes (Dziennik Ustaw of 2004 No. 162, item 1692). 124 The Sejm Review Third Special Issue / 2007 claims can be the allegation of the non-conformity with the law of the procedure for adopting the normative act. Each of these situations will fall within the scope of “any action of an organ of public authority contrary to law” within the meaning of Article 77 paragraph 1 of the Constitution of the Republic of Poland, for which the individual is entitled to compensation. In accordance, therefore, with Article 77 paragraph 1, one of the premises for compensation claims is the action of organs of public authority. The premise for the action, however, is understood in a similar way on the basis of constitutional law and of civil law, i.e. on that branch of the law from which ensues the liability for compensation. It embraces, therefore, both the activity and the nonfeasance of an organ of authority. Within the scope of the fi rst are included all acts of applying the law of an individual and concrete nature. The second includes all situations in which the organ of authority was obliged by law to perform an action which was not performed, causing in this way harm to a particular subject. In referring the above remarks to legislative lawlessness, it must be stated that within the scope of activity will be situated normative acts which were issued by the competent organ and whose conformity to the law will be challenged with an appropriate procedure. Within the scope of nonfeasance, meanwhile, will be unissued normative acts or normative acts which were issued but the regulation included in them is fragmentary or incomplete. The statement of the non-conformity to the law of a legislative nonfeasance will only be able to take place within a procedure provided for by the law. 2. The responsibility of the state for harm arising from the “issuing of a normative act” is executed in two kinds of situations. The fi rst takes place when the subject has incurred harm as a result of the application, among other things, of a provision (act) which has then been repealed as being inconsistent with the Constitution, ratifi ed international agreement or statute. The second, meanwhile, when a defi ned organ of public authority adjudicated on the rights or duties of the subject on the basis of a provision (act) acknowledged as not in conformity with the law. If, therefore, we are dealing with the fi rst situation, in accordance with Article 77 paragraph 1 of the Constitution, the State Treasury may bear responsibility for the issuing of a normative act which is not in conformity with the Constitution, a ratifi ed international agreement or statute. The pursuit of compensation claims for harm arising as a result of applying a normative act (provision) is, however, dependent on the fulfi lment of several conditions. The fundamental condition is that the lawlessness has to be declared by the competent organ, which is — as was stated earlier — the Constitu- tional Tribunal, where a statute, international agreement and other provisions of the law issued by central state organs are concerned, and the administrative court2, where

2 Which results from Article 13 § 1, in conjunction with Article 3 § 2 point 5 of the Act of 30 August 2002 The law on proceedings before administrative courts (Dziennik Ustaw 2002 No. 153, item 1270). The Supreme Administrative Court will have competence to adjudicate in the case of the non-conformity to the law of enactments of local law under the procedure of appeal against judgments of voivodship administrative courts in accordance with Article 15 § 1 point 1 of the cited Act. Monika Haczkowska: Legislative Lawlessness as the Manifestation of Harm in the Meaning of Article 77 para 1 125 enactments of local law (resolutions by local government organs and normative acts issued by local organs of government administration) are concerned3. The ﬁ nding by the Constitutional Tribunal of the unconstitutionality of such a provision (act) can take place as a result of three procedures: either in the course of a concrete review, i.e. as the effect of a court referring a question of law on the basis of Article 193 of the Constitution or through the lodging of a constitutional complaint on the basis of Article 79 of the Constitution, or in the course of an abstract review, through the initiation of proceedings on the motion of a subject authorised in Article 188 of the Constitution. The declaration by the administrative court of non-conformity to the law of enactments of local law can take place as a result of the lodging of a complaint by anyone whose legal interest or entitlement was violated by such an act after an earlier unsuccessful summoning of the organ which issued the act to remove the violation. This ensues from Article 101 paragraph 1 of the Act of 8 March 1990 on gmina self- government4; Article 87 paragraph 1 of the Act of 5 June 1998 on poviat self-govern- ment5, Article 90 paragraph 1 of the Act of 5 June 1988 on voivodship self-govern- ment6 and Article 44 paragraph 1 of the Act of 5 June 1988 on government administration in the voivodship7. Thus, the injured party will ﬁ rstly have to show in the court proceedings that the unconstitutionality (lawlessness) of the act in question was stated in “the appropriate proceedings” by the Constitutional Tribunal or before the appropriate administrative court. The judgment issued by the Constitutional Tribunal or the administrative court, constituting “proof” of the non-conformity of the normative act to the law, will be the conditio sine qua non of the compensation claim for the legislative lawlessness8. The

3 Responsibility for enactments of local law is borne by the organ which enacted them. Therefore, if these are resolutions of units of local government, these units will be responsible. The State Treasury, however, will be responsible for the enactments of territorial organs of government administration. 4 Consolidated text, Dziennik Ustaw 2001 No. 142, item 1591. 5 Consolidated text, Dziennik Ustaw 2001 No. 142, item 1592. 6 Consolidated text, Dziennik Ustaw 2001 No. 142, item 1590. 7 Consolidated text, Dziennik Ustaw 2001 No. 80, item 872. 8 It seems that such an attribute will not be possessed by judicial decisions of administrative courts stating that a resolution (constituting an enactment of local law) was issued by a unit of local government in violation of the law. As provided by Article 91 paragraph 4 of the Act on gmina self-government, Ar- ticle 79 paragraph 4 of the Act on poviat self-government and Article 82 paragraph 5 of the Act on voivodship self-government, in the case of an insignifi cant violation of the law, the supervisory organ does not state the invalidity of the resolution but limits itself to indicating that the resolution was issued with a violation of the law. Therefore, an “insignifi cant” violation of the law does not cause — it seems — the elimination of the challenged resolution from the legal system. Cf. the remarks by J.P. Tarno on Article 147 of the Act of 30 August 2002 Prawo o postępowaniu przed sądami administracyjnymi, [in:] Prawo o postępowaniu przed sądami administracyjnymi. Komentarz, Warszawa 2004, p. 214. At this point, attention should be drawn to the fact that the judicial decisions of administrative courts fi nding the invalidity of a challenged enactment of local law have the ex tunc effect, thus such an act is invalid from the moment of its issuing. If, however, we are dealing with resolutions of gmina (poviat, voivodship) organs, then if a year has passed from the date of the submission of these resolutions to the appropriate organs, which is mentioned in Article 90 paragraph 1 of the Act on gmina self-government, Article 78 paragraph 1 of the Act on 126 The Sejm Review Third Special Issue / 2007 next condition will be the existence of the harm which the injured party incurred in connection with the legislative activity of the organs of public authority. It is only after indicating that there exists a direct causal connection between the harm and a particular normative act (provision) which was acknowledged in the appropriate procedure as lawless, that there occurs the fulfi lment of the conditions of the compensation responsibility of the state for law-giving activities inconsistent with the law9. The second situation previously mentioned, however, takes place when there has been a judgment on the rights or duties of the subject on the basis of a provision (act) which was acknowledged by the Constitutional Tribunal as not in conformity with the Constitution, a ratifi ed international agreement or statute, or else on the basis of a enactment of local law whose invalidity (non-conformity to the law) was declared by the appropriate administrative court10. In the fi rst case, an organ competent to declare the non-conformity of the provision (act) to the law is the Constitutional Tribunal, whereas in the second it is the administrative court. By the “appropriate proceedings” we should mean, respectively, proceedings before the Tribunal or — with reference to acts of local law — before the administrative court. If, however, the judgment issued by the Constitutional Tribunal stating that a normative act (and, respectively, the judgment of the administrative court with reference to an enactment of local law) does not conform to the law, provides a suffi - cient basis for pursuing the compensation claim in the fi rst of the situations presented earlier, then, in the second the condition for demanding redress for the harm will be not only a statement of non-conformity in respect of a normative act but also of non- conformity to the law of an individual adjudication issued on the basis of such a normative act. The stating of non-conformity to the law of a valid judgment or a fi nal poviat self-government and Article 81 of the Act on voivodeship self-government, their invalidity cannot be stated. In such a situation administrative courts adjudicate on the non-conformity of the challenged resolution to the law (this does not, however, concern the enactments of local law of territorial organs of government administration, since in relation to these acts the Act on government administration in voivodeships does not provide for a term of limitation). The consequence of a judicial decision stating non-conformity to the law of an enactment of local law issued by a unit of local government is, therefore, the loss of the legal force of this act, but only from the day the judicial decision comes into force. This ensues from Article 94 paragraph 2 of the Act on gmina self-government, Article 82 paragraph 2 of the Act on poviat self-government and Article 83 paragraph 2 of the Act on voivodeship self-government. 9 In German law, compensation responsibility for legislative lawlessness is limited. The necessary conditions include: fi nding a violation of objective law (e.g. by the Federal Constitutional Tribunal), a violation of subjective law (but in German jurisprudence it has been accepted that a harm infl icted by the actions of the authorities concerns property rights), the existence of an individualized causal connection between the violation of a legally protected good and legislative activity, and also the depriving of a normative act (provision) of binding force by an appropriate organ. Cf. further: L. Bosek, Odpowiedzialność pań- stwa za legislacyjne bezprawie w prawie niemieckim, “Państwo i Prawo” 2003, fascicle 1, pp. 85 et seq. 10 Such a situation is also regulated by Article 4171 § 2 of the Civil Code, second sentence: “If the harm has occurred as the result of the issuing of a valid judicial decision or fi nal decision, its repair may be demanded after their non-conformity to the law has been stated in the appropriate procedure. This applies also to the case where a valid judicial decision or fi nal decision was issued on the basis of a normative act not being in accordance with the Constitution, ratifi ed international agreement or statute.” Monika Haczkowska: Legislative Lawlessness as the Manifestation of Harm in the Meaning of Article 77 para 1 127 decision can only take place in accordance with the provisions of the proceedings in which the given individual judgment was issued (Article 4011 of the Code of Civil Procedure, Article 145a of the Code of Administrative Procedure and Article 240 § 1 point 8 of the Act of 29 August 1997 —Tax Law). This results from the principle that a statute associates specifi c legal effects with the binding force of a normative act, the validity of a judicial judgment or the “fi nality” of an administrative decision and also specifi es the principles and course of their challenging because of their non-conformity to the law11. Therefore, it is not possible to challenge the legal effectiveness of such acts and decisions with the omission of these principles and this course of proceeding12. 3. A judicial decision, rendered as a result of the reopening of proceedings, repealing a challenged judgment together with an issued valid judgment and a judicial decision changing the challenged valid judgment in civil proceedings (which ensues from Article 412 § 1 and § 2) or an administrative decision repealing an earlier deci-

11 What is also worthy of attention is the dissimilarity of the legal effects of the defectiveness of a legislative act (lawlessness) established by a court or the Constitutional Court in German law. These effects are defi ned in § 79 of the Act on the Federal Constitutional Tribunal, according to which individual acts based on defective normative acts are irreversible. The exceptions to this rule are only penal judgments which can be challenged by way of reopening proceedings (humanitarian concerns speak in favour of this). Where administrative decisions and civil judgments are concerned, however, they remain effective despite being deprived of a legal basis, because what speaks in their favour is the principle of the protection of justly acquired rights, the principle of certainty of the law and the principle of citizens’ confi dence in the state. Cf. further: L. Bosek, Odpowiedzialność państwa..., p. 81 et seq. 12 As was noted in the justifi cation of the Commission for the Codifi cation of Civil Law to the bill amending Article 417 of the Civil Code: “Insofar as the indicated course aiming to state a non-conformity to the law of fi nal administrative decisions seems to be suffi cient for the realisation of Article 4171, the grounds for reopening civil proceedings are so limited that a party in many cases would not obtain the appropriate precedent which is mentioned in Article 4171. For these reasons work was undertaken on a concept to introduce to the Code of Civil Procedure «complaints concerning the stating of non-conformity to the law of a valid judicial decision». As a result of this work two acts amending civil procedure were adopted: the Act of 2 July 2004 to amend the Act — Code of Civil Procedure and some other statutes (Dziennik Ustaw of 2004 No. 172, item 1804) and the Act of 22 December 2004 on amending the Act — Code of Civil Procedure (Dziennik Ustaw of 2005 No. 13, item 98). The aim of introducing the new legal institution is the possibility of stating non-conformity to the law of a valid judicial decision as a result of which the party incurred harm and a change or annulment of this decision by way of legal measures available to the party was not and is not possible. The condition for lodging the complaint is also the lending of credence to the infl iction of harm caused by the issuing of the judicial decision which the complaint concerns. «A complaint concerning the stating of non-conformity to the law of a valid judicial decision» is a procedural measure available to the party, the Commissioner for Civil Rights Protection and the General Public Prosecutor against the valid judicial decision of the second instance against which no «cassation complaint» (the new name of the hitherto «cassation») is due to the party, and which can be lodged within two years of the date on which that decision became valid. Within the scope of judicial decisions which can be the subject of a complaint are not only judgments and rulings as to the essence of the case, and rendered in non-trial proceedings, but also provisions concluding proceedings in the case. The effect of lodging a complaint to the Supreme Court will be the establishing of whether the challenged valid judicial decision is not in conformity to the law. Even if the Supreme Court states only the defectiveness of the challenged judicial decision (the Supreme Court cannot after all annul it), this will enable the injured party to pursue compensation claims”. 128 The Sejm Review Third Special Issue / 2007 sion and settling the essence of an administrative matter (which ensues from Article 151 § 1 (2)) and — in the case where it is not possible to repeal an earlier decision because fi ve years have passed since the day of its delivery or announcement — a decision confi rming the issuing of the challenged decision with a violation of the law (as referred to in Article 151 § 2 of the Code of Administrative Procedure) enables the pursuit of compensation claims before the court13. The fact, however, must be emphasised that the second of the above-mentioned administrative decisions does not eliminate the challenged decision from the legal system but a stating of its non-conformity to the law has a fundamental signifi cance if we are dealing with the possibility of pursuing compensation claims for harm incurred in connection with its issuing14. 4. A judicial decision of the Constitutional Tribunal about the unconstitutionality of a normative act (provision) which provided the basis for adjudicating on the rights and duties of the injured party, enables — on the basis of Article 90 paragraph 4 of the Constitution of the Republic of Poland15 — a reopening of proceedings concluded with a valid judicial decision or a fi nal decision16. In this place, it needs to be emphasised that such an effect cannot be the result not only of a judicial decision of the Constitutional Tribunal on the constitutionality of a normative act — which is obvious — but also of the so-called interpretative decision, in whose conclusion the Constitutional Tribunal stated that a particular provision (act), provided that it is understood in the manner proposed by the Constitutional Tribunal, con-

13 What needs to be emphasised is the difference in the procedure of pursuing compensation claims for harm incurred in taxation proceedings. According to the tax law, this is a two-stage procedure, i.e. the motion for compensation is lodged fi rst with the organ issuing the decision in a violation of the law. Only in the case of its rejection by this organ (as to the fact of granting compensation or as to its size) does the party have the right to lodge an appeal with a common court — Article 261 § 1–§ 6 tax law. 14 The above remarks should apply also to the regulations having the force of statute issued on the basis of Article 234 of the Constitution of the Republic of Poland. 15 In the judgment of 2 March 2004 (fi le No. SK 53/03 OTK ZU [“Orzecznictwo Trybunału Konsty- tucyjnego. Zbiór Urzędowy” “Judicial Decisions of the Constitutional Tribunal. Offi cial Collection”] 2004, No. 3, item 16), the Constitutional Tribunal expressed itself broadly on the nature of Article 190 paragraph 4 of the Constitution: “The re-opening of proceedings regulated in particular procedures differs as to the scope of the possibilities of challenging a valid and fi nal decision. This is after all a concept shaped by ordinary legislature for the use of this particular statute. «Re-opening of proceedings», however, of which mention is made in Article 190 paragraph 4 of the Constitution, is an autonomous, constitutional concept, not having such a technical nature (on account of the lack of regulations of provisions on the constitutional level) as the concept «re-opening», which is used in particular proceedings regulated by ordinary statutes […]. «Re-opening», as mentioned in Article 190 paragraph 4 of the Constitution, has therefore a broader sense than «re-opening» in the technical sense, as provided for in appropriate procedures regulated in ordinary statutes. It embraces, after all, all the procedural instruments (including the re-opening of proceedings sensu stricto envisaged in the case of the Tribunal fi nding the non-conformity of the legal basis for the judicial decision to the Constitution, such as Article 4011 of the Code of Civil Procedure) at the disposal of the parties and the courts, thanks to the use of which it is possible to restore the state of constitutionality”. 16 Insofar as Article 147 § 2 of the Act on proceedings before administrative courts provides that decisions in individual cases, issued on the basis of a resolution or act, which were eliminated from the legal system as a result of the judicial decision of an administrative court stating its invalidity (non-conformity to the law) are subject to challenge in the course defi ned in administrative proceedings or in specifi c proceedings, it does not, however, mention the validity or fi nality of these individual decisions. Monika Haczkowska: Legislative Lawlessness as the Manifestation of Harm in the Meaning of Article 77 para 1 129 forms or does not conform with the Constitution. The fi rst produces after all such an effect that there does not take place a challenge to the presumption of the constitutionality of the reviewed norm (act), which means that it is still binding. The second, meanwhile, is related with the fact that the Constitutional Tribunal, wishing to avoid the creation of a loophole in the law, through the elimination of the reviewed norm (act) from the legal system gives this norm a defi nite sense (acknowledging the provision as being in conformity or not in conformity on the condition of an appropriate understanding of the provision, or in an appropriate scope of its application, i.e. subjective, objective or temporal). This judicial decision, however, causes a similar legal effect to that stating the constitutionality of the reviewed norm. In so doing it makes it impossible to reopen proceedings on the basis of Article 190 paragraph 4 of the Constitution, which is reserved solely for negative judgments of the Constitutional Tribunal17. 5. Doubts also appeared in connection with the question whether a judgment by the Constitutional Tribunal on the unconstitutionality of an act (provision), in the conclusion of which the Tribunal set another date (other than the date of the announcement) for the loss of the binding force of the normative act, gives the basis for lodging a complaint concerning the reopening of proceedings by an authorised subject. These doubts arose against the background of a linguistic interpretation of the procedural provisions included in Article 4011 § 2 of the Code of Civil Procedure, Article 145a § 2 of the Code of Administrative Procedure and Article 241 § 2(2) of the Tax Law, which constitute that a complaint concerning the reopening of proceedings is lodged within the term of one month from the coming into force of the judgment of the Constitutional Tribunal. In the doctrine of law it is emphasised that reopening — since it refers to legal events and relations from the past — has a retroactive effect, which is why interference in an already shaped legal state “must always be thoroughly balanced from two points of view: legal certainty (legal safety) and material lawfulness (justice)” so as not to evoke new “injustices”18. This is particularly true after all in civil or administrative cases in which there have been shaped, for example, property relations or rights awarded to third parties19 and the reopening of proceedings aiming towards challenging the shaped legal state might be detrimental to another constitutional principle of protecting acquired rights. That is why it is assumed that a complaint concerning the reopening of proceedings may be lodged only after the loss of the binding force of the provision (act) and not after the

17 Attention was drawn to this problem also by, among others: M. Przysucha, Wykładnia zgodna z wartościami państwa prawnego, “Gazeta Sądowa” 2001, No. 7–8, pp. 16 et seq.; K. Pietrzykowski, O tak zwanych „interpretacyjnych” wyrokach TK, “Przegląd Sądowy” 2004, No. 3, p. 29. 18 Z. Czeszejko-Sochacki, Wznowienie postępowania jako skutek pośredni orzeczenia TK, “Państwo i Prawo” 2000, fascicle 2, p. 22 et seq. 19 An example of such a situation could be the case concerning the sale of a property, expropriated in favour of a state enterprise, whose return is demanded by its original owner. Before the court he claimed that not only was the aim of expropriation not fulfi lled but that he did not receive the due compensation for the expropriation. Cf. the resolution of the Supreme Court of 8 November 2002 (fi le No. III CZP 73/02). 130 The Sejm Review Third Special Issue / 2007 announcement of the judgment on its unconstitutionality20. The Constitutional Tribunal, however, went somewhat further in its judgment of 18 May 2003 (fi le No. SK 38/03)21. Referring to the specifi c nature of the constitutional complaint, it stated in the conclusion to its judgment that, in view of the ruling in favour of the subject submitting a constitutional complaint, the postponement of the date for the loss of binding force of the provision being the basis of the complaint does not prevent the complainant from the exercise of the right ensuing from Article 190 paragraph 4 of the Constitution of the Republic of Poland, before the judgment comes into force: “This means that, in accordance with the ruling included in point I.1 of the conclusion, as a result of the reopening of proceedings, the complainants ought to have the guaranteed possibility of participation in court proceedings in relation to the withdrawal of the mandate. After all, it is only in this manner that the protection of the complainants’ constitutional right to trial can be guaranteed in this case.”22 A separate issue, meanwhile, is the possibility of lodging compensation claims for harm caused in the period of the postponement of the coming into force of a normative act acknowledged by the Constitutional Tribunal as unconstitutional, i.e. when the organ applying the law has issued an individual adjudication on the basis of this still binding act. In the doctrine of law it is emphasised that, inter alia, those acts (provisions) which have been acknowledged as unconstitutional and for which the Constitutional Tribunal has postponed the loss of binding force, ought to be excluded from the possibility of pursuing compensation claims for legislative lawlessness. As Marek Safjan remarked23, “It cannot after all be stated that the organ which applies, in the period of postponement, the law on the order of the Constitutional Tribunal is acting on the basis of lawless provisions”. It seems that this exclusion concerns only the period of postponement. The organs applying the law which are forced to apply an unconstitutional provision up to the moment when it loses its binding force — which will take place on the day the judgment

20 Cf. Z. Czeszejko-Sochacki, Orzeczenie TK: pojęcie, klasyfi kacja i skutki prawne, “Państwo i Prawo” 2000, fascicle 12, p. 31; Z. Czeszejko-Sochacki, L. Garlicki, J. Trzciński, Komentarz do ustawy o Trybunale Konstytucyjnym, Warszawa 1999, p. 233 and 237. The adjournment of the coming into force of the judicial decision of the Constitutional Tribunal can sometimes cause unfavourable consequences for the interested subjects. An example of this can be three cases brought before the Constitutional Tribunal as a result of constitutional complaints: fi le No. SK 19/98, SK 11/99 and SK 35/01. In all cases, the Constitu- tional Tribunal established a date of the coming into force of the judicial decision other than the date of its pronouncement. This led to the situation in which the applicants could effectively lodge a complaint to reopen the proceedings in the scope concerning their decisions only after the passage of the time defi ned in the judicial decision for its coming into force, respectively 4, 10 and 12 months. 21 OTK ZU 2004, No. 5, series A, item 45. 22 This judicial decision arouses doubts also on account of the stating by the Constitutional Tribunal of the potential effects of the legislator not undertaking the legislative activities, indicated by the Constitu- tional Tribunal, during the time of the adjournment of the judgment coming into effect (i.e. the adjournment of the loss of the binding force of Article 101 of the code of proceedings in cases of misdemeanours) according to which the normative situation regulated in the conclusion of the judgment (point I. 1) will un- dergo change after 1 January 2005. 23 M. Safjan, Odpowiedzialność państwa, czyli czyja?, “Rzeczpospolita” of 19 July 2004, No. 167, p. C3. Monika Haczkowska: Legislative Lawlessness as the Manifestation of Harm in the Meaning of Article 77 para 1 131 of the Constitutional Tribunal comes into force — should not suffer the negative effects of its postponement. In any case, when the harm arose before the issuing of the judgment by the Tribunal on the unconstitutionality of such an act (provision) on the basis of which a judgment was made on the rights or duties of the injured subject, he can, within a month of the judgment coming into force, lodge a complaint concerning the reope ning of proceedings (as was mentioned earlier). 6. A very signifi cant issue is also the possibility of challenging valid judgments or fi - nal decisions based on a provision (act) that lost its universally binding force before the issuing of a judgment by the Constitutional Tribunal on its unconstitutionality and, therefore, based on an act that was already non-existent. In accordance with Article 39 paragraph 1 subparagraph 3 of the Constitutional Tribunal Act, the Tribunal in closed session discontinues the proceedings if the normative act in the questioned scope lost its binding force before the issuing of the judgment by the Constitutional Tribunal. It is, therefore, a principle that a constitutional review of normative acts covers only acts in force (with the exception of a preventative review referring to acts not yet issued). If thus the normative act (provision) loses its binding force as a result of its repeal or amendment before the Constitutional Tribunal issues its judgment on the constitutionality or unconstitutionality of this act (provision), the Tribunal is under obligation to discontinue the proceedings. However, Article 39 paragraph 3 of the Constitutional Tribunal Act24, in conjunction with Article 190 paragraph 4 of the Constitution, provides that the Constitutional Tribunal does not discontinue proceedings on account of the loss of the binding force of a normative act or provision (both in whole and in part) “if the issuing of the judgment on a normative act which lost its binding force before the issuing of the judgment is necessary for the protection of constitutional freedoms and rights”. Even before the amendment of the Act25, the Constitutional Tribunal in its judicial decisions many times expressed the view that the repealing of a normative act by the legislator is not synonymous with the loss of its binding force in whole. That is why, when there arises a need for the “cessation”26 of the binding force of the questioned act, dictated by the creation of the possibility of “curing” (i.e. reopening) individual rulings based on the act, the Constitutional Tribunal did not discontinue the proceedings but adjudged on its unconstitutionality. In its procedural decision of 30 August 1988 (fi le No. Uw 6/88)27, it drew attention to the fact that “The loss of binding force must have a real nature and not an apparent

24 The Constitutional Tribunal Act of 1 August 1997 (Dziennik Ustaw of 1997 No. 102, item 643 with amendments). Article 39 paragraph 3 was added by Article 1 (2) of the Act of 9 June 2000 to amend the Constitutional Tribunal Act and the Act — The law on the system of common courts and some other statutes (Dziennik Ustaw 2000 No. 53, item 638) and came into force on 7 October 2000. 25 Attention is also due to the fact that one of the reasons for amending the act on the Constitutional Tribunal in this scope was the very need to create grounds for re-opening of proceedings, on the basis of Article 190 paragraph 4 of the Constitution. Cf. the stenographic records of the 72nd sitting of the Sejm on 1 March 2000, pp. 126 et seq. and of the 75th sitting of the Sejm on 14 April 2000, p. 211 et seq. 26 Z. Czeszejko-Sochacki, Orzeczenie Trybunału Konstytucyjnego..., p. 19. 27 OTK [Orzeczenie Trybunału Konstytucyjnego, Judicial Decisions of the Constitutional Tribunal] 1988, item 15, p. 165. 132 The Sejm Review Third Special Issue / 2007 one, so the scope of changes is subject to the assessment of the Constitutional Tribunal”. In another judgment — the resolution of 14 September 1994 (fi le No. W 5/94)28 — it stated furthermore that “The repealing of a provision is not always synonymous with the loss by this provision in whole of binding force […]. Only the content of the derogating or temporary norm allows for an answer to the question as to whether the repealed or amended provision has lost its binding force in the sense that it cannot be applied at all”. Also the judgment of the Constitutional Tribunal of 8 January 1991 (fi le No. P 1/90) was signifi cant in that it stated “The discontinuation after all of the proceedings before the Constitutional Tribunal as a result of the loss of legal force by the normative act subject to review […] can also cause diffi culties in repairing the effects of improper rulings given in those particular cases which were resolved on the basis of legal norms inconsistent with a statute or even the Constitution”29. That is why it must be underlined that judgments of the Constitutional Tribunal stating the nonconformity to the law of an act that is no longer binding gives the basis for reopening proceedings or pursuing compensation claims for harm incurred in connection with this act30. Thus, normative acts (provisions) which, during proceedings before the Constitutional Tribunal to examine their conformity with the constitution, were already not binding or which were repealed by a law-giving organ form another group of acts covered by the scope of operation of Article 77 paragraph 1 of the Constitution of the Republic of Poland. The state of the specifi c legal “loophole” which has arisen ensues, however, not from the legislator’s neglect but from his activity. The legislator after all, in repealing the particular legal regulations, did not introduce the appropriate restitution measures which would have been directed to the former addressees of the repealed norm. The pursuit of compensation claims for harm arising from these acts (provisions) will, however, be possible if the Constitutional Tribunal does not, on the basis of Article 39 paragraph 3, discontinue the proceedings and — as was mentioned earlier — issue a judgment stating its unconstitutionality. As the Constitutional Tribunal mentioned many times31, “We can talk about the binding force of the law only when this concept is referred to a particular situation and a particular moment in time. In other words, a provision is binding in a given system of law if it may be applied to a situation in the past, present or future. The loss of the binding force of a provision of the law occurs in a situation when it cannot be applied and only then can it be acknowledged that there has taken place a loss of the binding force of the provi-

28 OTK 1994 part II, item 44, p. 171. 29 OTK 1991, item 6, p. 108–109. Furthermore, attention is due to the procedural decision of the Con- stitutional Tribunal of 19 February 1997 (fi le No. U 7/96, OTK 1997 No. 40); judgment of 5 January 1998 (fi le No. P 2/97, OTK 1998 No. 1, item 1). 30 An example can be the judgment of the Constitutional Tribunal of 5 January 1998 (fi le No. P 2/97, OTK ZU 1998, No. 1, item 1) in the case of the unconstitutionality of the provision of the regulation of the Minister for Finances which had earlier been revoked. 31 Judicial decision of 11 May 1994 (fi le No. K 10/93, OTK 1994, part I); resolution of 14 September 1994 (fi le No. W 5/94, OTK 1994, part II); judicial decision of 8 January 1991 (fi le No. P 1/90, OTK 1991 item 6); judgment of 7 October 2003 (fi le No. K 4/02, OTK ZU 2003, No. 8, item 80) and others. Monika Haczkowska: Legislative Lawlessness as the Manifestation of Harm in the Meaning of Article 77 para 1 133 sion”32. The fact of the non-binding nature of a given act (provision) does not mean at all that it cannot evoke unfavourable consequences. Thus, all kinds of harm ensuing from this can be — after the demonstrating of a cause-and-effect relationship — the basis for the compensation liability of the state. The judgment of the Constitutional Tribunal on the unconstitutionality of such an act (provision) will, therefore, be — apart from the aforementioned harm and the causal connection — the basis for claims or a precedent for reopening proceedings concluded with a valid judgment or fi nal administrative decision based on this act (provision)33. 7. In accordance with the wording of Article 77 paragraph 1 of the Constitution, the responsibility of the state for actions not in accordance with the law extends also to the so-called legislative nonfeasance. This concept encompasses normative acts not issued (defi ned by the doctrine and jurisprudence as competence nonfeasance34) and acts which are incomplete through an omission of a particular group of subjects or events in their scope of regulating (relative nonfeasance35). The pursuit of claims will be possible after the fulfi lment of conditions specifi ed by law, i.e. the harm the subject incurred in connection with the lack of a given legal regulation and a causal connection between this lack and the harm incurred. For the lodged claim to be effective it is necessary for the appropriate organ to state the lack of a normative act or the existence of a normative loophole. In order to declare the nonfeasance of the law-giver both in whole and in part, fi rst there would have to be established his duty to adopt specifi ed legal regulations (as concerns form and content), which duty would have to ensue from concrete provisions of the law, and then to show that the silence of the law-giver, by failure to fulfi l particular legislative duties imposed upon him, does not conform with the law, e.g. where the Constitution imposes on the legislator the duty to issue acts clarifying its decisions and the legislator does not fulfi l this duty then undoubtedly we are dealing here with legislative nonfeasance. It is a similar situation when state organs specifi ed in statutes (e.g. the Council of Ministers, the minister of a given ministry, the President of the Republic of Poland), despite having the obligation to issue executive acts to statutes, do not issue such acts, thus making it impossible to apply some of the statutory provisions. While in the case of regulations, which are issued on the basis of statutory delegations, it can be

32 The judgment of 5 January 1998 (fi le No. P 2/97, OTK ZU 1998, No. 1, item 1) concerned the unconstitutionality of § 44 paragraph 1 subparagraph 1 of the regulation of the Minister for Finances of 8 De- cember 1994, which came into force on 1 January 1995 and was revoked on 1 February 1996. 33 Attention is due here to the judgment of the Constitutional Tribunal of 21 May 2001 (fi le No. SK 15/00), in which the Tribunal expressed itself very broadly as to the necessary premises for the application of Article 39 paragraph 3 of the Constitutional Tribunal Act (OTK ZU 2001, No. 4, item 85). Similarly, in its judgment of 11 December 2001 (fi le No. SK 16/00, OTK ZU 2001, No. 8, item 257) and of 11 Sep- tember 2001 (fi le No. SK 17/00, OTK ZU 2001, No. 6, item 165). 34 Cf.: L. Bosek, Odpowiedzialność odszkodowawcza państwa za zaniechanie ustawodawcze (Uwagi na tle wyroku SN z 23 IX 2003 r.), “Przegląd Sądowy” 2004, No. 11–12, p. 5 and the judgment of the Su- preme Court of 24 September 2003 fi le No. I CK 143/03 (unpublished). 35 Ibidem, p. 5. 134 The Sejm Review Third Special Issue / 2007 established exactly in what should consist the obligation of the lawgiver, since this delegation includes both the indication of the appropriate organ for its issuing and guidelines as to its content, then, in the case of a statute it is not possible to establish its content clearly. In the doctrine the possibility is indicated of acknowledging legislative nonfeasance as lawless in the situation when the obligation of issuing a statute is obvious and its minimal content can be defi ned on the basis of the provision from which ensues the obligation of issuing a statute. If we accept the opposing premise, i.e. a reference by a common court to the general inconformity of the normative act to the law, without indicating a concrete obligation of regulating the given matter by the lawgiver, this would violate the scope of the discretionary authority of the legislator and would be an indication of interference in the principle of the separation of powers. Hence, as Leszek Bosek pointed out, there is need for a far-reaching judicial circumspection in stating of legislative nonfeasance by Parliament36. It is thus inadmissible for an adjudicating organ (in this case, a court) to establish the hypothetical content of a statute by reference to, for example, axiological criteria37. In order for the party who has been harmed as a result of such an action by an organ of public authority to be able to pursue a compensation claim before a court, he must fi rst prove that the existence of legislative lawlessness was as- certained by the appropriate adjudicating organ. To confi rm a normative loophole, the competent organ will be the Constitutional Tribunal. The case is different, however, when we are dealing with the complete nonfeasance of the lawgiver. In such a situation, the only appropriate organ to state the lack of legal regulation is a common court, which, against the background of a concrete case pending before it, states that the person fi ling the action incurred harm in connection with the non-issuing of a normative act and that this harm would not have been incurred if the act had been issued. The competence of the Constitutional Tribunal to adjudicate on legislative negli- gence ensues from Article 188 of the Constitution. It determines the subject-matter jurisdiction of the Constitutional Tribunal, i.e. the category of cases and normative acts belonging to its cognition, which includes “existing” acts. In a similar way the Constitutional Tribunal itself expressed a view in its judgment of 6 May 1988 (fi le No. K 37/97)38, in which, continuing the viewpoint of the lack of competence to adjudicate on legislative nonfeasance39, it stated further: “In the case, however, of an issued and binding legislative act, the Constitutional Tribunal has the competence to assess its constitutionality also from the point of view of whether in its provisions there is no lack of regulations without which, on account of the matter embraced by the act of regulation, it could cause doubts of a constitutional nature. The charge of unconstitutionality can, therefore, concern both that which the legislator regulated in

36 L. Bosek, Odpowiedzialność odszkodowawcza państwa..., p. 25. 37 Z. Banaszczyk, Grzech zaniechania i nadgorliwości, “Rzeczpospolita” 25–26 September 2004, No. 226, p. C3. 38 OTK ZU 1998, No. 3, item 33. 39 This view was expressed in the judgment cited above, of 3 December 1996 (fi le No. K 25/95). Monika Haczkowska: Legislative Lawlessness as the Manifestation of Harm in the Meaning of Article 77 para 1 135 a given act and that which he omitted in this act but which, if he had been proceeding in accordance with the Constitution, he should have regulated”40. In the jurisprudence of the Constitutional Tribunal, one can encounter statements about both axiological loopholes and construction (technical) ones. The existence of a construction loophole is connected with the situation in which “there is lack of some integral fragment of the regulation constituting a necessary constructional entirety with an already existing regulation (incomplete necessary regulation)”41, which in consequence will lead to it being factually and legally impossible to apply (e.g. when the execution of a given legal action is made dependent on the appearance of legal effects but there have not been constituted provisions defi ning the course and manner of the execution of these actions). The construction loophole was the subject of adjudication by the Constitutional Tribunal in, among others, case K 10/92 of 23 February 1992 on the Act on the Social Insurance Security of Farmers, in which in the concept of “person of closest proximity” — long established in the system of Polish law — there was omitted the spouse of the insured farmer, which led to a worsening of his legal situation42. A similar thing occurred in the judgment of 24 October 2001 (fi le No. SK 22/01)43, in which the Constitutional Tribunal stated further: “For a long time in the jurisprudence of the Constitutional Tribunal there has been shaped the conviction that in the case of implementing a partial regulation of an incomplete nature, it is possible to challenge the scope of such a regulation and, in particular, to consider its ability to be connected with the principle of equality […]. The obligation to respect the principle of equality means, among other things, a ban on issuing regulations which discri- minate against or in an unjustifi ed way privilege particular groups of addressees. If, therefore, a provision of a statute enumerates situations to which this statute may have application, it in so doing excludes the application of this statute to the remaining situations. This type of legislator’s solution is subject to the review by the Constitutional Tribunal from the point of view of respect for the principle of equality, which — looked at in the most general sense — requires similar situations to be treated similarly”44.

40 OTK ZU 1998, No. 3, p. 198. The Constitutional Tribunal expressed a similar view in its judgment of 30 May 2000 (fi le No. K 37/98, OTK ZU 2000, No. 4, p. 595) and of 24 October 2000 (fi le No. SK 7/00, OTK ZU 2000, No. 7, p. 1240). 41 K. Gonera, E. Łętowska, Art. 190 Konstytucji i jego konsekwencje w praktyce sądowej, “Państwo i Prawo” 2003, fascicle 9, p. 5. 42 The Constitutional Tribunal stated, among other things, that: “It is necessary, therefore, to acknowledge that the legislator, in using the criterion of persons of closest proximity, made among them an unjustifi ed differentiation by excluding from this circle the spouse of the insured farmer. In this way there occurred a violation of the principle of social justice and of the principle of equality, i.e. Article 1 and Article 67 paragraph 2 of the Constitution” (OTK 1992, part I, item 5). 43 OTK ZU 2001, No. 7, item 216. 44 The Constitutional Tribunal adjudicated on the unconstitutionality of the so-called constructional loophole also in its judicial decisions of: 3 December 1996 (fi le No. K 25/95, OTK ZU 1996, No. 6, item 52); 3 September 1996 (fi le No. K 10/96, OTK ZU 1996, No. 4, item 33); 30 May 2000 (fi le No. K 37/98, OTK ZU 2000, No. 4, item 112); 9 June 2003 (fi le No. SK 5/03, OTK ZU 2003, No. 6, series A, item 50), 18 December 2002 (fi le No. K 43/01, OTK ZU 2002, No. 7, item 96); or in the case of the property beyond the Bug River in its judgment of 19 December 2002 (fi le No. K 33/02, OTK ZU 2002, No. 7, item 97). 136 The Sejm Review Third Special Issue / 2007

The subject of the judicial decisions of the Constitutional Tribunal was also the frequent stating of the unconstitutionality of an axiological loophole which occurred when a given normative act included the omission of a defi ned group of subjects or events. Even though they may not cause any impediments to the application of this act45, they still violate the constitutional principles of law46. A particular normative loophole is the inability of resettlers from across the Bug River to realise the so-called right to recognition on account of the consistent exclusion by the legislator of the property of the State Treasury from the possibility of acquiring it by way of auction. As the Constitutional Tribunal stated in its judgment of 19 December 2002 (fi le No. K 33/02): “The necessity for respecting the principle of citizen’s trust in the State and its laws inferred from the principle of a democratic state ruled by law (Article 2 of the Constitution) comprises a prohibition on the creation of illusory legal institutions […]. The lack of the possibility of realising the law within the limits specifi ed by the legislator is a symptom of creating illusory legal institutions and thus constitutes a violation of Article 2 of the Constitution”. However, the competence of the Constitutional Tribunal to adjudicate on omissions creating an “axiological loophole” is being questioned. In a dissenting opinion to the judgment of the Constitutional Tribunal of 3 December 1996 (fi le No. K 25/95), Judge B. Wierzbowski said that the Tribunal — as a “negative legislator” cannot encroach on the sphere of the constitutional authority of the legislative power and fulfi l the role of a “positive legislator”: “I do not agree with the assessment that the presence in the system of law of so-called axiological loopholes justifi es the Constitutional Tribunal going beyond the limits of the motion”. The Constitutional Tribunal itself made a similar point in its judgment of 9 June 2003 (fi le No. SK 5/03): “There are situations where the legislator did not to a degree fulfi l his obligations, e.g. he did not regulate some sphere for purely axiological reasons, whose refl ection is the realised legislative practice. Such situations are beyond the control of the Constitutional Tribunal. It does not after all have the competence to adjudicate on these kinds of omissions creating an axiological loophole”. It seems that, in the situation in which an individual incurred harm because of being omitted from a legal regulation as a benefi ciary of particular rights (axiological loophole), or because the lack of provisions determining the way in which the rights could be realised prevented him from actually making use of them (constructional loophole)47, the judgment of the Tribunal would have a fundamental signifi cance for the restoration

45 In the doctrine of the theory of law an axiological loophole is regarded as an apparent loophole. Cf.: S. Wronkowska, Z. Ziembiński, Zarys teorii prawa, Poznań 1997, p. 184 et seq. 46 Two judicial decisions deserve particular attention. The fi rst is the judgment of 28 April 2003 (fi le No. K 18/02, OTK ZU 2003, No. 4, item 32) in which the Constitutional Tribunal stated the unconstitutionality of the provision concerning the establishing of the paternity of a child born out of wedlock on account of the omission of the child’s father as a subject entitled to initiate proceedings to establish paternity. The second is the judgment of the Constitutional Tribunal of 6 May 1998 (fi le No. K 37/97, OTK ZU 1998, No. 3, item 33) in which the Constitutional Tribunal stated the unconstitutionality of the provision concerning the granting of housing allowances in the scope in which it omitted soldiers on military service. 47 For more on the concept of loopholes in the law, see: Z. Ziembiński, Problemy podstawowe prawoznawstwa, Warszawa 1980; T. Stawecki, P. Winczorek, Wstęp do prawoznawstwa, Warszawa 1998. Monika Haczkowska: Legislative Lawlessness as the Manifestation of Harm in the Meaning of Article 77 para 1 137

(shaping) of lawfulness or for the compensation of harm incurred. That is why it seems that the judgments of the Constitutional Tribunal stating the unconstitutionality of an act because of a normative loophole constitute a precedent for the reopening of proceedings or a direct basis for compensation claims, although this question is the subject of discussions in the doctrine48. Also, the Constitutional Tribunal has itself not taken an unequivocal stance on this matter. At this point, it should be mentioned that in the legislation of other states there exist provisions which give constitutional courts much more far-reaching powers as far as adjudicating on loopholes in the law is concerned. For example, among the range of competences of the German Federal Constitutional Tribunal is the issuing, apart from judgments about the unconstitutionality of a normative loophole, of provisional enforcement writs which can regulate temporarily binding legal norms49. Similarly, the Italian Constitutional Tribunal, whose judgments stating the existence of normative loopholes (oversights, omissions) are simultaneously so-called creative judgments50 or judgments in which the formulations of the Constitutional Tribunal replace part of the text of the statute. Within the sphere of cognition of the Constitutional Tribunal are adjudications on the unconstitutionality of normative acts on account of their incomplete or fragmentary regulations. The situation is different, however, with respect to the question of adjudicating on a non-existent normative act. There do not after all exist legal provisions which would give such a competence to the Tribunal. The Constitutional Tribunal as a “negative legislator” cannot encroach on the competence of the legislative authority and issue legal provisions. It even expressed itself on this subject many times, particularly in the context of constitutional complaints51 directed against law- giving nonfeasance52. As has already been mentioned, the competent organ is only the common court, which, against the background of an individual solution, exa-

48 Among others, M. Safjan, Odpowiedzialność odszkodowawcza władzy publicznej (po 1 września 2004 roku), Warszawa 2004, p. 56 et seq. 49 The issue of provisional enforcement writs is regulated by § 32 of the Act on the Federal Constitu- tional Tribunal, Consolidated text of 1993, translated into Polish by L. Garlicki [in:] Sądy konstytucyjne w Europie, J. Trzciński (ed.), vol. I, Warszawa 1997, p. 147 et seq. 50 For more on this subject, see: Z. Witkowski, Trybunał Konstytucyjny Republiki Włoskiej, [in:] Sądy konstytucyjne w Europie, ed. J. Trzciński, vol. I, Warszawa 1997, p. 229 et seq. 51 Examples of this could be the decisions of the Constitutional Tribunal refusing to give course to constitutional complaints lodged against legislative nonfeasance, e.g. 27 January 1998 (fi le No. Ts 1/98, OTK ZU 1998, No. 2, item 22, p. 124–125); 10 March 1998 (fi le No. Ts 5/98), in which it stated: “The subject of a constitutional complaint cannot, however, be the lack of appropriate normative regulations, guaranteeing, in the opinion of the appellant, the protection and inviolability of his rights or freedoms” (OTK ZU 1998, No. 2, item 26, p. 133–135); 24 January 1999 (fi le No. Ts 124/98, OTK ZU 1999, No. 1, item 8, pp. 79–82); 31 May 1999 (fi le No. Ts 33/99, OTK ZU 1999, No. 6, item 137, p. 722–723); 5 Oc- tober 1999 (fi le No. Ts 50/99, OTK ZU 1999, No. 7, item 200, p. 975–976) and others. 52 In contrast to the Polish (“narrow”) model of constitutional complaint, § 92 of the Act on the Fe- deral Constitutional Tribunal provides for the possibility of adjudication by the German Tribunal in the scope of a constitutional complaint whose subject is a norm-giving nonfeasance. More on this subject [in:] Sądy Konstytucyjne w Europie, op. cit., p. 181; L. Bosek, Odpowiedzialność państwa..., p. 81. 138 The Sejm Review Third Special Issue / 2007 mines whether there took place signifi cant legislative nonfeasance and whether the person bringing the action really incurred harm as a result of this nonfeasance. In court jurisprudence there are known cases concerning the legislative nonfeasance by both legislative and executive authorities. The fi rst decision referring to legislative nonfeasance was the case concerning the non-issuance by the Council of Ministers of an executive regulation to implement the vindication statute, which made it impossible for those entitled to realise its provisions. As the Supreme Court stated in its conclusion to the judgment (of 6 January 1999, fi le No. III RN 108/98)53: “The non-compliance by the Council of Ministers with the obligation ensuing from the competence to issue regulations ensuring proper implementation of statutes violates the constitutional principles of the functioning of a democratic state ruled by law and, in so doing, can constitute a constitutional delict”54. Thus, this delict is the direct source of the compensation responsibility of the State. Another judicial decision of the Supreme Court was the resolution of 24 November 2000, fi le No. III CZP 37/0055 in the case of the expiration of the purchase of 4% consolidation loan bonds issued by the State Treasury on the basis of the regulation of the Treasury Minister of 17 February 1936 (Dziennik Ustaw of 1936, No. 12, item 114). In this resolution, the Supreme Court addressed an executive regulation, which has not been issued (to this day) by the Council of Ministers, to Article 19 of the decree of 27 July 1949 on the contracting of new monetary obligations and the defi ning of the size of those not written off (Dziennik Ustaw of 1949, No. 45, item 332), on the basis of which the owners of the above-mentioned bonds could pursue their rights. Similarly, the Supreme Administrative Court expressed itself on the subject of legislative nonfeasance. In its resolution of 12 June 2000 (fi le No. OPS 6/00)56 it deals with the lack of statutory regulation developing Article 52 paragraph 5 of the Constitution of the Republic of Poland, which would specify the procedure for confi rming Polish origins, in connection with the right of people with such origins to settle in Poland57. Another well- known judgment of the Supreme Administrative Court was that of 5 February 2003 (fi le No. IV SA 2854/01)58, in which it stated that the Council of Ministers had not utilised two elements of the statutory delegation contained in Article 7 of the Act of 3 January 1946 on the Nationalisation of Basic Branches of Industry. The fi rst was to regulate the question of compensation for the enterprises taken over by the State,

53 OSNAP 1999, item 639. 54 A similar matter was the subject of adjudication by the Supreme Court in the judgment of 14 Ja- nuary 1999 (fi le No. III RN 155/98), “Prokuratura i Prawo” 1999, No. 5, p. 51. 55 OSNC 2001, No. 4, item 56. 56 ONSA [Orzecznictwo Najwyższego Sądu Administracyjnego — Judicial decisions of the Supreme Administrative Court] 2001, No. 1, item 4. 57 In accordance with Article 236 paragraph 1 of the Constitution of the Republic of Poland, the draft of such statute should have been presented to the Sejm by the Council of Ministers within two years of the Constitution coming into force. 58 Judgment of the Supreme Administrative Court of 5 February 2003, fi le No. IV SA 2854/01 (unpublished). Monika Haczkowska: Legislative Lawlessness as the Manifestation of Harm in the Meaning of Article 77 para 1 139 while the second the composition and method of appointment of the commissions and the course of proceeding and appealing against its decisions. These commissions were to adjudicate on the size and method of paying compensation which, in fact, was never paid. The above judicial decisions show that the executive regulations foreseen in the statutes, but not issued to this day, constitute legislative lawlessness. As such they form the basis for the pursuit of compensation claims from the State if the individual incurred harm in connection with their lack. In the doctrine of the law, attention is paid to the problem of the so-called “second ary unconstitutionality”59 of the legal regulations existing at the moment when the Constitution of the Republic of Poland came into force, which unconstitutionality might lead to legislative nonfeasance. Of the three situations presented by Dariusz Dudek, two are strictly connected with this issue. The fi rst concerns the constitutional announcements which are addressed to the ordinary legislator, while the second deals with the so-called programme norms which are contained in Chapter II of the Constitution and refer to social and economic rights. Although compensation claims would be justifi ed in the case of constitutional announcements not realised by the legislator which make it impossible to exercise the constitutionally granted rights60, in the case of programme norms doubts do exist. On this matter the views of doctrine are seriously divided61. As Marek Safjan rightly remarked, “There is a need for far-reaching circumspection in the creation of positive norm-creating obligations by organs of public authority”62. This may after all lead to a violation of the constitutional principle of the separation of powers. 8. The State Treasury may bear responsibility not only for the actions of the legislative authority, within the scope of the non-conformity of the content of normative acts with hierarchically higher acts, i.e. the Constitution, ratifi ed international agreements or statutes, but also within the scope of the non-conformity of the procedures for passing these acts to the law. Normative acts affected by this kind of defectiveness cannot after all exert any legal effects, either with respect to the past (e.g. from the moment of their promulgation) or with respect to the future. In the doctrine the view is expressed that these are apparent norms (assuming the appearance of the law)63. Defects in the procedure of passing a normative act can take on various forms, for example the content of an act passed by Parliament differs from the content of the

59 D. Dudek, Konstytucja RP a zaniechanie ustawodawcze, [in:] Sześć lat Konstytucji RP (doświad- czenia i inspiracje), L. Garlicki, A. Szmyt, (ed. ) Wrocław 2003, p. 72. 60 Cf. the resolution of the Supreme Administrative Court, cited above, of 12 June 2000, fi le No. OPS 6/00, concerning the lack of a statutory regulation developing the provisions of Article 52 paragraph 5 of the Constitution of the Republic of Poland. 61 Cf.: the address delivered at the General Assembly of the Judges of the Constitutional Tribunal in 1999, J. Trzciński, Naruszenie konstytucyjnych wolności i praw jako podstawa skargi konstytucyjnej, [in:] Studia i materiały, Warszawa 1999, p. 39 et seq. 62 M. Safjan, Odpowiedzialność odszkodowawcza władzy publicznej..., (footnote 16), p. 175. 63 M. Safjan, op. cit., p. 170; Z. Banaszczyk, Rozszerzenia i ograniczenia odpowiedzialności, “Rzecz- pospolita” 24 September 2004, No. 225, p. C3. 140 The Sejm Review Third Special Issue / 2007 act presented to the President for signature, or the Senate in the course of its work on an act amending another act introduced revisions to the act being amended64, or there did not take place a vote in Parliament or the organ of executive authority encroached on the competence of the legislative authority65. An example of this is provided by the case of the publication of the Penal Code, passed by the Sejm on 6 June 1997, in which the content of Article 156 § 1 point 2 differed from the text passed by Parliament and signed by the President of the Republic of Poland66. This case became the subject of adjudication by the Constitutional Tribunal, which, in its judgment of 7 July 2003 (fi le No. SK 38/01), stated: “Strict compliance with legislative procedures guarantees the legality of adopted measures, which is strengthened by the fact that the provisions concerning this matter enjoy constitutional status. The signifi cance of the particular stages and actions in the legislative process, defi ned by Parliamentary law, was emphasised in its judicial decisions by the Constitutional Tribunal […]. An act will only take effect if, during its adoption, the appropriate legislative procedures, as dictated by the Constitution, were observed.. The competencies of individual organs in this process are clearly delineated and unlawful activities are excluded”67. 9. Theses that non-observance of the legislative procedure is unacceptable were formulated by the Constitutional Tribunal many times, even before the coming into force of the Constitution of 1997, against the background of cases concerning the Senate going beyond the scope of the matter of a statute passed by the Sejm (particularly within the scope of amendments), including, among others, the judgment of 23 November 1993 (fi le No. K 5/93): “The Tribunal raised the point that the legislative authority of Parliament (its chambers) and the powers of other subjects connec-

64 Such cases were several times the subject of decisions by the Constitutional Tribunal, including the judgments of 23 November 1993 (fi le No. K 5/93); 24 June 2002 (fi le No. K 14/02, OTK ZU 2002, No. 4, series A, item 45); 21 June 1999 (fi le No. U 5/98, OTK ZU 1999, No. 5, item 99). 65 An example could be the judicial decision of the Constitutional Tribunal of 21 January 1997 (fi le No. K 18/96, OTK ZU 1997, No. 1, item 2) in the case of the change of the name of the organ in the consolidated text of the Act of 31 January 1980 on the protection and shaping of the environment (from “local organs of government administration” to “gmina organs”), which — while not having the competence — the Minister for the Protection of the Environment, Natural Resources and Forestry effected in his proclamation of 21 March 1994 (Dziennik Ustaw of 1994 No. 49, item 196). 66 Article 156 § 1 point 2 in the wording passed by the Sejm envisaged that a serious detriment to health can take, among other things, the form of a “serious incurable illness or long-lasting illness actually threatening life”. In the course of work in the Sejm Chancellery, before the statute passed by the Sejm was submitted to the President of the Republic of Poland for signature, a comma was added after the word “long-lasting”. This caused a material change to both the text of the provision and to the norm expressed within it. In the text signed by the President of the Republic of Poland and, then, sent to print, this comma was omitted, which was in accordance with the text passed by the Sejm. However, the Prime Minister, treating this difference as an error, rectifi ed it in point 3 of his proclamation of 3 October 1997 (Dziennik Ustaw of 1997 No. 128, item 840), by adding a comma after the word “long-lasting”. As the Constitutional Tribunal rightly remarked, the legislative course had in fact already been violated at the stage when the Speaker of the Sejm passed on the text of the passed bill for the signature of the President of the Republic of Poland, since this was after all — in the scope of Article 156 § 1 point 2 — a different text. 67 The conclusion was announced on 11 July 2003 in Dziennik Ustaw of 2003 No. 121, item 1142; cf. also OTK ZU 2003, No. 6, series A, item 61. Monika Haczkowska: Legislative Lawlessness as the Manifestation of Harm in the Meaning of Article 77 para 1 141 ted with it are realised through formalised legislative law consisting of particular stages (phases) within the framework of which individual participants in this process are due the right to take particular actions having an infl uence on the content or form of the statute. In the course of the legislative process each of these actions (events) has a defi ned aim and making use of this evokes defi ned legal consequences. Making use of any event not in accordance with its purpose, or in an inappropriate phase of the legislative process, may also thwart the fundamental values residing in the Parliamentary method of law-making”68. The view is also expressed in the doctrine of the law that the creation of law, on account of the encroachment on the sphere of the freedoms and rights of the individual, should be subject to the strictest legal rigours. As Zdzisław Czeszejko-Sochacki stated, the creation of law “demands particular legislative, and usually constitutional, legitimisation and axiological justifi cation and can be realised in particular proceedings. That is why the granting to organs of public authority of the competence to enact law (legislative authority) is accompanied simultaneously by a defi ned system of review, above all as to the legality of action in this scope”69. Thus a violation of the law, within the scope of issuing normative acts causing harm to one’s good, fi ts into the scope of the compensation responsibility of organs of authority within the meaning of Article 77 paragraph 1 of the Constitution70. 10. However, not every normative act whose unconstitutionality has been declared by the Constitutional Tribunal will provide the basis for the compensation responsibility of the State. Apart from normative acts (provisions) in respect of which the Tribunal postponed the loss of binding force, as presented earlier, in the doctrine there are named others acknowledged as unconstitutional acts which do not provide the basis for compensation responsibility. An exception from the principle of the State’s responsibility for legislative lawlessness is defi ned by certain “temporal frameworks”, i.e. when the judgment of the Constitutional Tribunal defi nes the inter-temporal effects of its binding force (ex tunc, ex nunc or, for example, from the moment the Constitution of the Republic of Poland comes into force). If thus the Constitutional Tribunal states in its judgment that its legal effects start “from now” to the future (ex nunc), then the pursuit of claims by a subject who incurred harm before the issuing of the judgment is excluded71. An 68 OTK 1993, part II, p. 389. Cf. also the judgment of the Constitutional Tribunal of 24 June 2002 (fi le No. K 14/02, OTK ZU 2002, No. 4, series A, item 45). 69 Z. Czeszejko-Sochacki, O niektórych problemach konstytucyjnej procedury legislacyjnej, [in:] Konstytucja, wybory, parlament; studia ofi arowane Zdzisławowi Jaroszowi, Leszek Garlicki, (ed.) Warszawa 2000, p. 39. 70 At this point attention is due to the already quoted judgment of the Constitutional Tribunal of 7 July 2003 (fi le No. SK 38/01), concerning the procedure of passing the Penal Code. This judgment was issued as a result of a constitutional complaint lodged by a subject in respect of whom an adjudication had been made in penal proceedings on the basis of the questioned provision of Article 156 § 1 point 2 of the Penal Code. 71 This is, therefore, a different situation from that ensuing from the judgment of the Constitutional Tribunal of 20 February 2002 (fi le No. K 39/00), in which the Tribunal stated the lawlessness per se of the act on allotments with ab initio effect. 142 The Sejm Review Third Special Issue / 2007

example of this situation is the judgment of the Constitutional Tribunal of 31 January 2001 (fi le No. P 4/99)72, in which the Tribunal clearly stated that the unconstitutionality of the provisions being the subject of the adjudication concerned exclusively inheritances opened before the coming of the judgment into force: “The Constitu- tional Tribunal must also examine the effect of a judgment determining the constitutional non-conformity of the questioned regulations on legal results which, prior to the promulgation of this judgment in the Journal of Laws (Dziennik Ustaw), were shaped by the legal norms expressed in these regulations. Adapting estates opened prior to this date to the legal situation altered as a result of this judgment would in- evitably lead to a collision with the constitutional principles which protect the above- -mentioned values, especially the legal security and confi dence in the law. Therefore the Constitutional Tribunal considered it justifi ed to minimise the impact of the judgment passed in this case on previously shaped legal relations.” Another example could be the judgment in which the Constitutional Tribunal set a time other than the coming into force of the judgment for the loss of binding force (e.g. the judgment of 10 December 2002, fi le No. P 6/02)73 or stated that it is applicable to situations which arose after the coming into force of the Constitution of the Republic of Poland (e.g. point II of the conclusion of the judgment of 23 September 2003, fi le No. K 20/02)74. In the case of the last of the cited judgments, the Tribunal stated that the unconstitutionality of the provision existed from the moment the Constitution of the Republic of Poland came into force, since Article 77 paragraph 1 of the Constitution, providing the basis for adjudicating before the Constitutional Tribunal, envisages compensation in full scope for the actions of organs of authority that are not in accordance with the law and does not limit it to actual harm (damnum emergens) to the exclusion of loss of profi t (lucrum cessans). However, the defi ning of the amount of compensation for harm incurred before the coming into force of the Constitution takes place according to previously binding principles. In the same way, those judgments of the Constitutional Tribunal in which the Tribunal clearly excluded certain legal effects referring to earlier events should be excluded from the possibility of pursuing compensation claims for legislative lawlessness. An example of such a judicial decision is the well-known (and previously cited) judgment of the Constitutional Tribunal in the case of parking fees dated 10 December 2002 (fi le No. P 6/02)75, in the conclusion of which the Tribunal fi rst

72 OTK ZU 2001, No. 1, item 5. This matter was the subject of the adjudication of the Constitutional Tribunal also before the coming into force of the Constitution of the Republic of Poland, e.g. the judicial decision of 29 January 1992 (fi le No. K 15/91, OTK 1992, part I, item 8); the judicial decision of 30 January 1993 (fi le No. K 18/92, OTK 1993, part II, item 41) and the judgment of 5 January 1998 (fi le No. P 2/97, OTK ZU 1998, No. 1, item 1). 73 OTK ZU 2002, No. 7, series A, item 91. 74 OTK ZU 2003, No. 7, series A, item 76. 75 The conclusion to the judgment was promulgated on 17 December 2002 in the Dziennik Ustaw, No. 214, item 1816, whereas the judicial decision came into force on 30 November 2003. This judgment relates also to the fi rst of the presented situations, in which — in the opinion of the representatives of the doctrine — the State’s responsibility for legislative lawlessness should be excluded. Monika Haczkowska: Legislative Lawlessness as the Manifestation of Harm in the Meaning of Article 77 para 1 143 adjudicated on the non-conformity of the questioned provisions with the Constitution and then stated in point II: “Any fees paid or collected on the basis of the provisions of the order of the Council of Ministers cited in part I in points 2–5 of this ruling are not recoverable”76. Another judicial decision in a similar case is the judgment of the Constitutional Tribunal of 9 September 2004 (fi le No. K 2/03) concerning payment of the radio and television licence fee. The Tribunal stated that the provisions imposing on owners of radio and television receivers the duty to pay the licence fee were formulated not in conformity to the Constitution. They will, however, remain in force for another year (the unconstitutional provisions will lose their binding force only on 30 September 2005) and the fees paid on their basis are not subject to refund. The named situations constitute, therefore, an exception to the rule that the State Treasury bears responsibility for normative acts not in conformity to the law. It seems, however, that the list is not closed. Zbigniew Banaszczyk thinks that it is necessary to evaluate the defects of legal norms using the model of the judicial decisions of the European Court of Justice, in which one of the requirements is “a suffi - ciently serious violation of Community law”. In the case of legal norms which do not fulfi l the minimal conditions of binding force, as a result of which they belong to the category of so-called non-existent norms, their lawlessness does not arouse doubts77. 11. In court jurisprudence there already exist examples of adjudicating on legislative lawlessness against the background of a particular compensation case. Apart from those mentioned above78, it is worth recalling two precedential judgments of the Regional Court in Kraków of the 2 and 7 April 2003 (later reversed by the Appeal Court in Kraków in the judgment of 24 September 2003) which concerned the “property beyond the Bug River” and which were based exclusively on Article 77 paragraph 1 of the Constitution. In both the fi rst and the second case, the Regional Court addressed the question of the lack of the publication of the so-called republican agreements79, which, in the opinion of the court, as binding on the Republic of Poland, should have been published80. Similarly, there was the judgment of the

76 The conclusion to the judicial decision of the Constitutional Tribunal was the subject of criticism in the doctrine of the law. Cf. the discussion in the columns of “Rzeczpospolita”, including R. Hauser, Jak Zabłocki na mydle, No. 298, 23 December 2002, p. C2; E. Łętowska, Bez jasnej odpowiedzi, No. 6, 8 Ja- nuary 2003, p. C3. 77 Z. Banaszczyk, Rozszerzenia i ograniczenia odpowiedzialności, “Rzeczpospolita”, 24 September 2004, No. 225, p. C3. 78 The judgment of the Supreme Court of: 6 January 1999, fi le No. III RN 108/98; 14 January 1999, fi le No. III RN 155/98; the resolution of the Supreme Court of 24 November 2000, fi le No. III CZP 37/00; the resolution of the Supreme Administrative Court of 12 June 2000, fi le No. OPS 6/00; the judgment of the Supreme Administrative Court of 5 February 2003, fi le No. IV SA 2854/01. 79 The agreements concluded on 9 September 1944 by the Polish Committee for National Liberation with the authorities of the Belarussian Soviet Socialist Republic and the Ukrainian Soviet Socialist Republic and on 22 September 1944 with the authorities of the Lithuanian Soviet Socialist Republic in the matter of the mutual evacuation of the civilian population and the questions of the movable and immovable property connected with it. 80 Mention should be made here of the dispute that is going on as to the binding force of the Republican agreements and the fact of whether they were ever ratifi ed. Cf. among others: S. Gebethner, Układy republikań- skie nigdy nie były ratyfi kowane, “Rzeczpospolita”, 11 February 2004, No. 35, p. C4; P. Laski, Refl eksje na temat 144 The Sejm Review Third Special Issue / 2007

Supreme Court of 21 November 2003, fi le No. I CK 323/02 (also in the case of resettlers from beyond the Bug River), in whose justifi cation the court stated: “Persons who, in connection with the war which began in 1939, left behind real estate on lands not constituting part of the present territory of the Polish State and who, on the basis of international agreements concluded by this State, are to receive an equivalent for that property, may, on the basis of Article 77 paragraph 1 of the Constitution, pursue compensation claims against the State Treasury on account of the material harm incurred in the form of a lowering of the value of the right to the equivalent.” Another example of judicial decisions by courts on legislative lawlessness could be the judgment of the Zamość Regional Court of 14 October 2004 in the case of pay rises for nurses and also the judgment issued in a similar case by the Regional Court in Bielsko-Biała of 15 October 2004. In both cases the courts awarded to the hospi- tals sums which were to constitute a refund on the pay rises for nurses paid on the basis of the statute known as lex 203 PLN81, in which the Sejm had not defi ned the source of their fi nancing. The defendant in both cases was the Sejm, represented by the Marshal [Speaker] of the Sejm. An example of a judicial decision on legislative lawlessness, with reference to this statute, is also the judgment of the Supreme Court of 24 September 2003, fi le No. I CK 143/03 (unpublished). The Supreme Court stated in its conclusion that the State Treasury can bear compensation responsibility for regulations, not in accordance with the law but included in the statute, imposing on a legal person the duty of performance which is not a public levy if their fulfi lment caused losses within the meaning of Article 361 § 2 of the Civil Code. The Supreme Court based its decision on Article 77 paragraph 1 of the Constitution of the Republic of Poland and on Article 417 of the Civil Code. There may be more examples of judicial decisions of this type. It should be expected, therefore, that Article 77 paragraph 1 of the Constitution will be a frequent basis for judicial decisions by common courts together with Article 4171 § 4 of the Civil Code. In this way not only will there be realised the principle of the subjective constitutional right to compensation but also the principle of direct application of the Constitution, expressed in Article 8 paragraph 2 of the Constitution. The provision of Article 77 paragraph 1 will after all be applied jointly with Article 4171 § 4 of the Civil Code.

żądań odszkodowawczych zabużan z tytułu utraty mienia na kresach wschodnich w świetle prawa międzynarodo- wego i prawa polskiego, RPEiS 2002, No. 4, pp. 41 et seq. Attention is due to the standpoint of the Supreme Ad- ministrative Court, which, in its judgment of 22 May 2003, fi le No. II SAB 420/02, and in its judgment of 29 May 2003, fi le No. II SAB 419/02, did not exclude the fact of the ratifi cation of the Republican agreements at the sitting of the State National Council on 9 September 1944, which was stated in point VI of the protocol of the meeting of the State National Council. A similar standpoint was adopted by the Constitutional Tribunal in its judgment of 19 December 2002 (fi le No. K 33/02, OTK ZU 2002, No. 7, series A, item 97). 81 The Act of 16 December 1994 on the negotiation system of shaping the growth of average wages in enterprises (Dziennik Ustaw of 1995, No. 1, item 2), with Article 4a added by the Act of 20 December 2000 (Dziennik Ustaw of 2001, No. 5, item 45). Although the Constitutional Tribunal in its judgment of 18 December 2002, fi le No. K 43/01, stated the constitutionality of the provisions of this Act (the so-called interpretative judgment), because — as it argued — the consequence of adjudicating on the unconstitutionality of the provisions of the statute would be their removal from the system of sources of law, these provisions constituted the basis for increases in the pay of the workers in public health care centres, i.e. the benefi ciaries of these regulations. 145

ANDRZEJ K. PIASECKI DOCTOR HABILITATED, PEDAGOGICAL UNIVERSITY OF CRACOW

DIRECT DEMOCRACY IN POLAND AFTER 1989*

I. TYPOLOGY Democracy (including direct democracy) has been widely written about from the point of view of political studies, law and sociology. This also includes the typologi- cal and theoretical1 problems mentioned in Antiquity. The term already in use at that time — demos (the people) and cratos (government) — had the dimension of direct management of the affairs of a city-state by all its entitled citizens, since the system of Ancient Greece did not include any form of representation. Nowadays the election of representatives is the basic form of democracy whereas the ancient model of democracy is only possible on a local level and it concerns the assembly of inhabitants — all the adult inhabitants of a given sub-local community. The best-known and most signifi cant form of direct democracy is the referendum. In colloquial terms, this word can be defi ned as “voting by people on a particular matter”2. The legal defi nition states that a referendum is “a systemic form ensuring the direct decision of electors by way of voting on various matters of State life”. In political studies there exist many classifi cations of a referendum. It can be treated as a facultative referendum (when the managing organ freely decides about its con-

* This article was published in „Przegląd Sejmowy” No. 1(72)/2006. 1 M. Marczewska-Rytko, Demokracja bezpośrednia w teorii i praktyce politycznej, Lublin 2001 (Chapter I, Kwestie terminologiczne). 2 Quoted after: Słownik wyrazów obcych PWN, Warszawa 1980. 146 The Sejm Review Third Special Issue / 2007 duct) or an obligatory referendum (when the organ is obliged by law to conduct it). By applying the criterion of effectiveness, we can distinguish the following referenda: constitutive (determining), ratiﬁ cation (conﬁ rming) and consultative3. The remaining institutions of direct democracy are of a procedural nature and play a lesser role in political life. In Poland, these are civic initiatives and social con- sultations4. The latter includes the expression of opinion in a direct way (including by voting). In the analysis below, there will not be any consideration of other forms of direct democracy, namely plebiscites and people’s vetoes (i.e. opposition to an enacted legal act) since they have no application in Poland.

II. THE SYSTEMIC AND NORMATIVE SHAPE OF DIRECT DEMOCRACY The systemic changes that began in 1989 to broaden the foundations of democracy in its direct form initially had a limited dimension. The Third Republic inherited legislative baggage from the People’s Republic of Poland in the form of the Act of 6 May 1987 on Social Consultations and the Referendum (on the same day the Sejm amended the Constitution by adding an article about the referendum). The power to conduct the referendum was vested in the Sejm (a resolution on this matter required a 2/3 majority in the presence of at least half of the Deputies). The referendum had a facultative nature and the number of subjects that could propose an initiative in the matter of a referendum was limited to: the Council of the State, the Council of Ministers and the National Council of the Patriotic Movement for National Rebirth (in the case of a local referendum the initiators could be only the organs of the local authorities and the state administration). Article 19 was of crucial signiﬁ cance: “[…] The result of the referendum is decisive if more than half of those eligible to vote are in favour of one of the solutions in the matter being voted on”5. In the political practice of the 1990s the crossing of this threshold was unrealistic. The possibility for changes appeared in 1992 in connection with the passing of two acts: the Act of 23 April on the Procedure for the Preparation and Passing of the Constitution of the Republic of Poland and the Act of the 17 October on the Mutual Relations between the Legislative and Executive Authorities of the Republic of Poland and on the Local Authorities (the so-called Little Constitution). Both these legal acts gave the possibility of preparing a national referendum in two instances: an obligatory ratiﬁ cation referendum, a constitutive referendum — in the case of estab-

3 When classifying on the basis of the subject of voting, we encounter a division into constitutional, legislative and administrative referenda and also referenda referring to international questions; E. Zieliński, I. Bokszczanin, J. Zieliński, Referenda w państwach Europy, Warszawa 2003 (Chapter I, Problemy teoretyczne i klasyfi kacyjne referendum). On the other hand, regarding referenda from the perspective of relations between the government and the opposition, we can differentiate pro-hegemonic referenda (strengthening the position of the government) and anti-hegemonic ones (strengthening the opposition); A. Antoszewski, R. Herbut, Leksykon politologii, Wrocław 1999, p. 494. 4 B. Banaszak, A. Preisner, Prawo konstytucyjne. Wprowadzenie, Wrocław 1993, p. 138 and 141. 5 J. Jaskiernia, Prawnoustrojowe i społeczno-polityczne doświadczenia referendum z 29 listopada 1987 r., [in:] Referendum w Polsce współczesnej, ed. D. Waniek and M.T. Staszewski, Warszawa 1995. Andrzej Piasecki: Direct Democracy in Poland after 1989 147 lishing the constitution — and a facultative referendum (obligatory or consultative) — in the case of ordinary statutes. In the fi rst case, the referendum was announced by virtue of a statute, whereas in the second case it could only be carried out on the initiative of the Sejm or the President, who would have to obtain the approval of the Senate. The validity of a facultative referendum was dependent on the participation in it of more than half of those eligible to vote6. The Little Constitution also enabled the organisation of local referenda (Article 72 paragraph 2). It was only the Constitution of the Republic of Poland of 2 April 1997 that gave lasting systemic foundations for direct democracy. And although experts were of the opinion that the basic law was “characterised by distrust of the institutions of direct democracy”7, this remark rather concerned the statutory regulation (of the referendum) than the solutions proposed by the Constitution. The constitutional experts considered that the provision (concerning the referendum) formulated therein protected against the situation in which “the collective sovereign may limit or, what is worse, replace the exercise of power by representatives”8. The starting point for deliberations about direct democracy in the Constitution is Article 4, in which there is expressed the principle of the supreme power of the Nation: “The Nation shall exercise [such] power through their representatives or directly”. Article 118 paragraph 2 regulates popular legislative initiatives. It concerns 100,000 citizens who have electoral rights. The detailed legal frameworks for this form of direct democracy were formulated in the Act of 24 June 1999 on the Exercise of the Legislative Initiative by Citizens9. The Constitution addresses the question of referenda in several places. Article 90 paragraph 3 provides for the use of a referendum as an alternative form (in relation to parliamentary procedure) of granting consent for delegating to an international organisation or international institution the competence of organs of State authority in relation to certain matters. Article 125 states that a referendum may be held in respect of matters of particular importance to the State (it repeats Article 19 of the Little Constitution). Article 170 deals with a local referendum whereas Article 235 paragraph 6 concerns referenda in the matter of amending the constitution, its leading principles, human and civil freedoms, rights and duties and the very procedure itself of amending the constitution. Such a confi rmatory referendum is called by the Marshal [Speaker] of the Sejm within 60 days of an application being made by at least 1/5 of the Deputies, the Senate or the President of the Republic of Poland.

6 E. Zieliński, Referendum w państwie demokratycznym, [in:] Referendum w Polsce współczesnej..., p. 39. 7 M. Pietrzak, Demokracja reprezentacyjna i bezpośrednia w Konstytucji RP, [in:] Referendum konstytucyjne w Polsce, ed. M.T. Staszewski, Warszawa 1997, p. 31. 8 M. Jabłoński, Wynik referendum a zasada dyskontynuacji prac Sejmu, ,,Acta Universitatis Wratis- laviensis” 1998, No. XLI, „Przegląd Prawa i Administracji”, p. 115. 9 The Act of 24 June 1999 on the Exercise of Legislative Initiative by Citizens, Dziennik Ustaw (Journal of Laws) of 1999, No. 62, item 688. 148 The Sejm Review Third Special Issue / 2007

In analysing the systemic aspects of direct democracy in Poland, one cannot ignore the Act of 8 March 1990 on Local Government10, which introduced the referendum and consultations to the system of local authorities. It was on this basis that there appeared the fi rst statute referring in its entirety to direct democracy. This was the Act on Communal [Gmina] Referendum passed by the Sejm on 11 October 199111. This provided for three kinds of referenda: 1) in the matter of dismissing an organ (the gmina council) — an obligatory referendum held exclusively at request of the inhabitants (signed by 10% of the electorate); 2) a referendum in the matter of self-taxation (held at request of the council or inhabitants); 3) a facultative referendum — held in respect of an important gmina matter (initiators: council or inhabitants). It must be emphasised that the law demands a 30% turnout for all gmina referenda to be valid. Furthermore, in the case of a referendum in the matter of self-taxation, the legislator imposed the necessity of obtaining a 2/3 majority in favour for the result to be binding. The amendment introduced in 1995 concerned the time limits for the organisation of referenda in the matter of dismissing the council in pre- and post-election pe- riods. Court judgements also narrowed the range of matters covered by facultative referenda, and in the case of referenda on self-taxation infl uenced their practical limitation (by the application of the principle of voluntary donation not subject to administrative execution)12. After the introduction on 1 January 1999 of self-governing county (powiat) and voivodship, there arose the need for a new legal regulation for these referenda. The Act of 15 September 2000 on Local Referendum13 enabled referenda to be conducted in counties and voivodships (apart from referenda in the matter of self-taxation). The minimum requirement for voters’ signatures on the application was lowered to 5% in the case of voivodships. A more precise defi nition was also given to the range of matters covered by facultative referenda. The adoption of the Act on Local Referenda meant that the Act of 1991 on Communal Referendum was derogated14, while the new Act was amended in June 2002 at the time of the passing of the Act on the Direct Procedure for Electing the Heads of the Rural Communes, Mayors and Lord Mayors. From the new term of offi ce of the local authorities, a referendum in the matter of dismissing local authorities could concern not only the council but also the head of rural commune and the mayor and lord mayor, or even both organs simulta-

10 The Act of 8 March 1990 on Local Self-government, Dziennik Ustaw (Journal of Laws) of 1990, No. 16, item 96. 11 The Act of 11 October 1991 on Communal (gmina) Referendum, Dziennik Ustaw (Journal of Laws) of 1996, No. 84, item 386. 12 E. Olejniczak-Szałowska, Referendum lokalne w świetle ustawodawstwa polskiego, Warszawa 2002, p. 114. 13 The Act of 15 September 2000 on the Local Referendum, Dziennik Ustaw (Journal of Laws) of 2000, No. 88, item 985. 14 K. Kiljan, Referendum lokalne w świetle przepisów ustawy z 15 września 2000 r., ,,Samorząd Terytorialny” 2001, No. 11. Andrzej Piasecki: Direct Democracy in Poland after 1989 149 neously, i.e. the council and the head of the rural commune. In the case of the head of the rural commune, the initiator of the referendum could also be the communal (gmina) council15. Also the legislation concerning national referenda includes two basic legal acts passed by the Seym in 1995 and 2003. The fi rst was the Act of 29 June 1995 on a Referendum. It granted the initiative in the matter of a referendum to the Sejm, the Senate, the Government, the President of the Republic and a group of citizens (500,000 persons)16. The holding of a referendum might be ordered by the Sejm (by an absolute majority of votes in the presence of at least half the statutory number of Deputies) or by the President of the Republic of Poland with the consent of the Senate (granted also an absolute majority of votes in the presence of at least half the statutory number of Senators). The motion to hold a referendum should include proposals for questions or various solutions and the date of its holding. The fi nal version of the questions or solutions was to be decided by the Sejm in a resolution on the holding of the referendum. The referendum would be valid if more than half of the eligible electorate took part in it. The referendum (with the exception of the constitutional referendum) would not be held beyond the borders of the state. In the matters of the conduct of the election campaign before the referendum (sources of fi nancing, access to public media etc.), there would be applied the provisions of the Act on Elections to the Sejm. The referendum would have to take place no later than 90 days from the announcement of the resolution in this matter and its validity would be decided by the Supreme Court. The matter being the subject of the referendum could be voted on again in a referendum no sooner than four years after its conduct17. The basic model for a defi nition of the principles and the procedure of conducting the voting as well as the assessment of the result of the referendum was the law governing elections to the Sejm18. In the Act of 2003 on the Nationwide Referendum, amendments were made to the regulations concerning referenda on the ratifi cation of international agreements. The basis for this was Article 90 of the Constitution, which defi ned two models of ratifi cation: by statute and by referendum. The choice would be made by the Sejm by a resolution passed by an absolute majority of votes. Consent by statute required the acceptance of the Sejm and the Senate by a majority of at least 2/3 of the votes in each chamber. In the case of a referendum, however, the result would be binding if

15 A signiﬁ cant limitation of any possible self-will of the concilors was the regulation stating that in the case of a referendum on the matter of dismissing the voit on the application of the council turning out to be unsuccessful, the gmina council is subject to dissolution. 16 A referendum on the initiative of a group of citizens could not concern the expenditure and income or the defence of the state or an amnesty. The Seym could, however, reject the application of a group of citizens (Article 16 of the act). 17 The act of 29 June 1995 on referenda, Dziennik Ustaw (Journal of Laws) of 1995, No. 99, item 487. 18 J. Repel, Nowa ustawa o referendum, ,,Przegląd Sejmowy” 1997, No. 2, p. 35; S. Służałek, Insty- tucja referendum zatwierdzającego zmiany Konstytucji RP z 1997 r., ,,Przegląd Sejmowy” 2004, No. 3. 150 The Sejm Review Third Special Issue / 2007 the turnout exceeded 50%. In the Act there was formulated a provision enabling the choice of a one- or two-day referendum by the organ ordering the referendum (the Sejm or the president upon the consent of the Senate). The new Act also resolved many problems connected with the conduct of the election campaign and the organisation of voting. Students could vote in student hostels (if the electoral district included at least 50 voters), soldiers on military service could approach the territorial referendum commission in order to be added to the electoral roll and thus to be entitled to participate in the voting. The referendum was also conducted for Poles abroad. Despite complaints from the Opposition and after all legislative procedures had been exhausted, the Sejm passed the Act on 14 Match 2003 (297 Deputies for, 89 against, 7 abstentions). Thus the Act of 1995 on the National Referendum was derogated19.

III. NATIONAL REFERENDA Direct democracy in the Third Republic of Poland attained its fullest nature in connection with three national referenda. The fi rst was conducted on the initiative of President Lech Wałęsa, who, on 3 November 1995, lodged a referendum motion in the Senate with the question: “Are you in favour of the universal granting of property rights to citizens?”20 The Sejm (on the initiative of Deputies from SLD [The Democratic Left Union] and UW [Freedom Union]) added four other questions: “2) Are you in favour of meeting the obligations due to those on old-age or disability pensions or to workers in the public sector, as arising from the judgment of the Constitutional Tribunal, from income from privatised State property? 3) Are you in favour of part of the income from privatised State property being used to fund universal pension funds? 4) Are you in favour of increasing the value of NFI (National Investment Fund) share certifi cates by including further enterprises in this programme? 5) Are you in favour of taking privatisation bonds into consideration in the property rights programme?” In this way, on 18 February 1996 two referenda were held under one procedure in relation to the common question of property rights. In encouraging participation in the referendum, right-wing parties were in favour of voting four times “yes” (they were opposed to the question about broadening the NFI). Such a standpoint was adopted by: the Independent Self-governing Trade Union “Solidarity”, ROP (Movement for the Reconstruction of Poland), ZChN (National Christian Federation), Ruch Stu (Movement of the Hundred) and KPN (Independent Poland Confederation) A similar opinion was voiced by PSL (Polish Peasants’ Party). Unia Wolności was above all in favour of broadening the NFI programme and urged electors to vote fi ve times “yes”. The same opinion was expressed by President Kwaśniewski, although he did not participate actively in the referendum campaign. Government members expressed themselves unenthusiastically about the

19 The Act of 14 March 2003 on the Nationwide Referendum, Dziennik Ustaw (Journal of Laws) of 2003, no 57, item 507, article 97. 20 This was the second motion by the President. The fi rst, lodged in October and rejected by the Senate, included a question and various possible answers. Andrzej Piasecki: Direct Democracy in Poland after 1989 151 referendum. Prime Minister Włodzimierz Cimoszewicz supported only the extension of the NFI while the Minister for Property Transformations Wiesław Kaczmarek called the referendum “more of a party plebiscite than a professional discussion about the method of allocating privatised property”21. PPS (Polish Socialist Party) called for a boycott of the referendum, as did OPZZ (All-Polish Agreement of Trade Unions), while SLD did not adopt an unequivocal position, explaining this by the lack of a unifi ed voice among the 28 groups forming the party22. In accordance with expectations, the low turnout (32.4% of the electorate) meant that the referendum was not binding. But the nature of the voting was unambiguous: to the fi rst question 94.54% answered “yes”, to the second 92.89% answered “yes”, to the third 93.70% answered “yes”, to the fourth 72.52% answered “no”, to the fi fth 88.30% answered “yes”. These results, together with other opinion poll results, confi rmed the opinion expressed earlier that it was above all the centre-right electorate that had taken part in the voting. Even before the vote itself, most experts and politicians negatively assessed this referendum. They questioned the very sense of posing questions on economic matters and pointed out the complicated nature of the questions and criticised the lack of a broad campaign explaining the aims and effects of the referendum. The political subtext of the voting was evident to everyone. Lech Wałęsa, assessing his fi rst term as president, wanted to realise his famous slogan of 100 million zloty for everyone, while the left-wing coalition did not want to bring about a situation in which the government would be forced to implement the ideas of the “Solidarity” camp. The atmosphere around the referendum was also negatively affected by the battle for the offi ce of president of the Republic and the scandal connected with the accusation of treason made against Prime Minister Józef Oleksy (which led to his resignation on 24 January 1996). A positive aspect of the fi rst national referendum was the implementation of direct democracy in the Third Republic of Poland. This led to a growth in civic education in the fi eld of the institutions of authority in a democratic state. It also inciden- tally improved the knowledge of economic rules and terminology. Despite the low turnout, opinion polls confi rmed the interest of Poles in this form of participation in the decision-making process. The experience gained from the fi rst referendum was utilised a year later during the constitutional referendum. The obligatory nature of this referendum caused the President of the Republic of Poland, after the adoption of the Constitution by the National Assembly (on 2 April 1997), to name 25 May 1997 as the date of the referendum. On this occasion there was only one question and it was clearly formulated: “Are you in favour of adoption the Constitution of the Republic of Poland as passed by the National Assembly on 2 April 1997?” For political parties and their leaders, the

21 Uwłaszczeniowe ,,tak” lub ,,nie”, ,,Rzeczpospolita” 19 February 1996. 22 A. Malinowski, Społeczne uwarunkowania referendum, [in:] Referendum w Polsce i w Europie Wschodniej, ed. M.T. Staszewski and D. Waniek, Warszawa 1996, p. 114. 152 The Sejm Review Third Special Issue / 2007 referendum was a dress rehearsal before the September parliamentary elections, which is why criticism of or support for the Constitution was for them tantamount to an expression of one’s attitude to the government. SLD urged the electorate to vote “yes”. PSL, despite the fact that it contained several parliamentarians opposed to SLD, supported the Constitution, stressing its own participation in its preparation. A similar situation existed in the case of Unia Pracy (Labour Union). Unia Wolności, although formally in opposition, supported the Constitution (Tadeusz Mazowiecki was the author of the compromise version of the preamble). Such a position was simultaneously an attempt to put a brake on the division of the Polish political scene into two large blocs, a situation which had existed since the presidential elections in 1995. If for the left-wing parties the adoption of the Constitution was a normal consequence of its preparation during work in parliament, then in the case of Akcja Wyborcza “Solidarność” (Electoral Action “Solidarity”), which had been formed in June 1996, the sense of voting “no” was broader. The leaders of AWS wanted to inte- grate the post-Solidarity milieux and also to manifest the existence of an alternative programme of work for Poland. Among the opponents of the new Constitution were: ROP, NSZZ “Solidarność” Rolników Indywidualnych (Independent Self-governing Trade Union for Individual Farmers “Solidarity”) and Radio Maryja. A critical attitude towards the Constitution was also expressed by representatives of the Catholic Church. The ofﬁ cial position of the Episcopate at its 288th plenary meeting stated that “the text of the Constitution arouses serious moral reservations”. The view of the right-wing parties was not supported by Zbigniew Brzeziński and Jan Nowak-Jeziorański, who many times expressed themselves publicly on matters concerning Poland. On this occasion they were committed to the process of pa- ving Poland’s path to membership of NATO and that is why they declared themselves to be in favour of the Constitution. A great advocate of accepting the Constitution in the referendum was President Aleksander Kwaśniewski, who committed himself to the referendum campaign in an incomparably more active measure than in the case of the property rights referendum. The turnout in the constitutional referendum was 42.86%. In favour of the Constitution were 52.71% and against were 45.89%. Invalid votes (170,000), in accordance with electoral law de facto counted as “no” votes. The geography of voting patterns was along the lines of the already shaped electoral practice in regional Poland. The most “yes” votes were cast in the voivodships of Koszalin (68%), Gorzów (65%) and Włocławek (65%). At the other extreme were the voivodships of Nowy Sącz (26%), Rzeszów (27%) and Tarnów (31%). The anti-Constitution record fell in Zagórzyce (Rzeszów voivodship), where 97.1% of voters were against23. The turnout ﬁ gures in the referendum indicate that it was dependent on the scale of opposition to the Constitution. In the regions where there were the most “no” votes, the turnout was the highest. And vice versa — the turnout decreased where

23 “Gazeta Wyborcza”, 1997, No. 122, p. 1. Andrzej Piasecki: Direct Democracy in Poland after 1989 153 there was the greatest support for the Constitution. In commentaries after the referendum the strength of negative mobilisation was pointed out. An example was the more numerous participation in the referendum of those who, in opinion polls, were against the Constitution than of those who were in favour24. Probably the pro- Constitution parties were saved from defeat by President Aleksander Kwaśniewski, who mobilised his own personal electorate and in this way prevented a repeat of the result of the property rights referendum. The third referendum — on Poland’s integration with the European Union — was preceded by the adoption of the new legislation and by a long and comprehensive campaign. Not only all the political parties but also social and professional organisations, state and local government institutions, community organisations and the media were heavily committed. In the period between the completion of negotiations with the European Union (12–13 December 2002) and the referendum (7–8 June 2003) public opinion was mobilised to recognise the problem of integration and the referendum as a matter of prime importance, despite the negative social attitudes and the poor economic situation25. Among the parliamentary groups, the following clubs were in favour of integration: SLD, UP, PSL, PO (Platforma Obywatelska — Civic Platform), PiS (Prawo i Sprawiedliwość — Law and Justice), while LPR (Liga Polskich Rodzin — League of Polish Families) and Samoobrona (Self-defence) were against. Among the most signifi cant political organisations outside parliament, UW and ZChN were in favour while the activists of UPR (Unia Polityka Realnej — Real Politics Union) and Młodzież Wszechpolska (Pan-Polish Youth) agitated against integration. This was the fi rst universal vote in the Third Republic of Poland in which such broad reference was made to the future of Poland and not to historical divisions, to economic arguments and not to views on the world, to questions of international politics and not to the internal situation. What was of great signifi cance to the atmosphere accompanying the referendum campaign and for the result itself was the standpoint of the Catholic Church and in particular the signifi cant statement by Pope John Paul II which was understood unequivocally as being in support of the process of integration26. In the preparations for the referendum and in the campaign, an important role was played by experts. The outstanding constitutionalists who had prepared the new

24 K. Korzeniowski, Referendum asymetryczne, ,,Przegląd Tygodniowy” 4 June 1997. 25 In May 2003, 70% of respondents to the survey thought that the government’s policies were bad. Support for the Prime Minister was systematically falling. There was a low level of economic growth (1–2% of GDP) and unemployment was still high (about 20%). After the fi rst few weeks’ work of the Sejm’s investigative committee on the so-called Rywin affair, a commentator from “Polityka” (2003, No. 14, p. 16) characterised the internal situation of Poland in this way: “corruption, brawls, self-interest and simple ineptitude independent of party affi liation seem to be going hand in hand with the melting away of the majority of so-called fi gures of authority”. 26 On 19 May 2003, speaking on the occasion of the 25th anniversary of his pontifi cate, the Pope said: “Europe needs Poland, Poland needs Europe”. Straying from the written version of his speech, he addend at the end: “From the Lublin Union to the European Union!” ”Polityka” 2003, No. 22, p. 16. 154 The Sejm Review Third Special Issue / 2007 act had tried to locate its clauses within the framework of the Constitution and at the same time to ensure considerable elasticity in case of a low turnout for the referendum. If the turnout were to be below 50%, most experts would regard the referendum as invalid and then the National Assembly would be the organ empowered to undertake the decision on integration27. Among the experts engaged in the preparation of the referendum special mention must be made of the work of Lena Kolarska- -Bobińska, the head of the Institute of Public Affairs, who managed to persuade the PO politicians and the President to spread the voting over two days. This idea was also supported in the Sejm by the SLD and UP clubs. As a result of the commitment of government and local government structures and of civic actions, the referendum campaign assumed a universal nature and reached almost every community. Information about the course of the campaign and about the signifi cance of the process of integration was propagated by schools, communal (gmina) council offi ces and the editorial boards of the media. Widespread use was made of the possibilities offered by electronic communication with opinion polls being conducted on internet portals. On the actual days of voting, people were re- minded about the referendum with the help of sms texts on mobile telephones. The interactive nature of the campaign and the participation of young people in this action helped to create an atmosphere of holidays and good fun. The course of the referendum was followed with great attention by international opinion and during the campaign Poland was visited by many political fi gures from the West28. The fi nal version of the referendum question was: “Do you grant consent for the accession of the Republic of Poland to the European Union?” In a footnote there appeared the name of the treaty together with the names of member countries and candidate countries. On the fi rst day only 17.61% of the electorate voted while the overall turnout for the two days was 58.85%. As a result, 77.45% of those taking part in the referendum voted for accession. In all regions the turnout exceeded 50%. Everywhere also the majority of voters gave a positive answer. Variations in the scale of support for the Union and in the turnout at the polling booths did, however, testify to the fact that the historical divisions were still apparent in Poland. These were additionally fuelled by the unequal social and economic development of the country. Turnout was lower in direct proportion to the number of inhabitants of a given community. Western Poland had a higher turnout and showed greater support for integration. A thorough analysis of the election results by commune (gmina) indicated that

27 P. Winczorek, Problemy do rozwiązania, ,,Rzeczpospolita” 2002, No. 273; K. Działocha, Nie ma przeszkód konstytucyjnych, „Rzeczpospolita” 2003, No. 77. 28 In the spring of 2003 Poland was visited by, among others, the President of the European Parlia- ment Pat Cox, the head of the European Commission Romano Prodi, the Commissioner for EU Enlarge- ment Gűnter Verheugen, the Prime Minister of Denmark Andreas Rasmussen, the President of France Jacques Chirac and the Chancellor of Germany Gerhard Schrőder (twice). The last two leaders of Western states met Aleksander Kwaśniewski on 9 May in Wrocław. Moreover, the Prime Minister of the United Kingdom Tony Blair was in Warsaw on 30 May and the President of the USA George W. Bush was in Kraków on 31 May. Andrzej Piasecki: Direct Democracy in Poland after 1989 155 outside the largest cities of Central Poland (Warsaw, Łódź and the former voivodship capitals) it was in this region that there was the lowest turnout and the smallest support for the European Union29.

IV. LOCAL REFERENDA Normative standards “set up” the somewhat empirical dimension of Polish local referenda. The most important motives of the decided majority of such votes were anti-hegemonic attitudes and populist demands. In around 400 local referenda held in 1992– –2005, nearly 90% constituted referenda in the matter of dismissing an organ of authority (the council or, since 2002, the head of the rural commune, mayor or lord mayor. The charges were usually of a general nature. Here are the motives from the fi rst referendum motions in the matter of dismissing the council: Myszyniec (Ostrołęka voivodship) — “the harmful toleration by the Gmina Council of the head’s of the commune wasteful- ness”; Orneta (Elbląg voivodship) — “the stifl ing of initiatives and the ignoring of electors by the councillors”; Bielawa (Wałbrzych voivodship) — “the arrogance and hypo- crisy of the authorities, falsifying resolutions of the town council, […] the loss of public trust”; Strzegom — “the abuse of power and the arrogance of offi cials (the dissolution of the housing commission of inhabitants), the passivity of the board in relation to the problem of unemployment; concealing information about subsidies received by the comune for the development of buildings formerly used by the Soviet army”30. Referenda on dismissing the council — in numbers and percentages Rural Munici- Turnout Suc- Term com- Towns Counties Total palities %* cess** munes 1990–1994 — 14.4 1994–1998 — 103 16.4 1998–2002 115 1 195 18.7 12.8 Total 184 12 149 1 346 – —

* Average turnout for all referenda in a given term. ** The percentage proportion of successful referenda in relation to the total number conducted.

A very strong impulse for the beginning of the campaign for holding a referendum was the desire to dismiss the mayor. Here the initiators were opposition groups (including also councillors) who were unable to realise their aims in the forum of the communal council. The experience of the years 1990–1994 showed that only referenda in the matter of dismissing the communal council mobilised the local community. This resulted also from the inconsistent standpoint of the authorities in the face

29 J. Żakowski, Nowy rozbiór Polski, ,,Polityka” 2003, No. 25. 30 K. Kowal, Instytucja referendum — teoria i praktyka ze szczególnym uwzględnieniem woje- wództwa wałbrzyskiego (M.A. thesis), Zielona Góra 2002, pp. 34, 37, 53. 156 The Sejm Review Third Special Issue / 2007 of confl ict situations. They often adopted the attitude of “not to put themselves at risk”, of “adulating somebody” or “retreating”31. On the basis of these experiences there was created a systematics, suggested in the middle of the 1990s, which classifi ed referenda according to the following criteria: • politically motivated referenda — this concerns those initiatives that arose from a basic dissatisfaction with the prevailing order in the council (in 1994, in the commune of Chorówka, the collection of signatures on the motion for a referendum commenced immediately after the June elections); • referenda being the result of confl icts between councillors, where the opposition in the council appealed for the support of the inhabitants; • referenda arising from the low legal culture of the inhabitants — such referenda were often the result of a lack of understanding of the council’s decisions on the part of the inhabitants, e.g. concerning increases in taxes, rents or rates32. In the subsequent terms of offi ce of local governments the effectiveness of referenda increased, as did the number of initiatives whose motive was the dismissal of the head of rural commune. From 2003, the dismissal of the rural commune, mayor or lord mayor was the main reason for this type of initiative. In 2004–2005 for the fi rst time such referenda were held in medium-sized towns (Piotrków Trybunalski and Gorzów Wielkopolski) and in cities (Szczecin). However, they did not manage to attract a turnout over 30%, so the holding of referenda was effective only in communities with a population below twenty thousand inhabitants. Such a limitation affected also the remaining types of local voting, which in any case constitute the margins of referendum activity. The matter of the self-taxation of inhabitants was extremely rarely the reason for calling a referendum. The biggest towns in which such referenda took place (with a positive result) were Mielec (1995) and Starachowice (2002). The exemplifi cation33 of referenda in respect of the matter of self-taxation allows for a summing up of this form of direct democracy with the following conclusions: — due to the unequivocal provisions on the Act, the initiators of these referenda rarely applied to the courts for an interpretation of its articles; — the court jurisprudence primarily concerned the legal and fi nancial concepts of the of self-taxation and the consequences of the execution of amounts due for this reason (which, however, was not directly connected with the referendum); — these referenda were conducted in the main in small towns and in relatively wealth rural communes particularly those situated near a metropolis;

31 P. Śliwa, Czynniki wpływające na przebieg konfl iktów w samorządach terytorialnych, [in:] P. Buczkowski and P. Matczak, Konfl ikt nieunikniony, Poznań 2001, p. 38–39. 32 E. Sękowska, Referendum gminne, [in:] Referendum w Polsce i w Europie Wschodniej..., p. 141–143. 33 The lack of nationwide register of these referenda makes precise classifi cation impossible. On the basis of a reading of local press, together with verifi cation of these data through interviews conducted in local government circles, the author managed to establish about 30 such referenda (some of which had a double nature as they were organised on the same day as a facultative referendum). Andrzej Piasecki: Direct Democracy in Poland after 1989 157

— the motions to hold a referendum were always submitted by the offi ce and the council; — particular attention is due to the positive nature of the referendum campaign, in which reference was often made to civic awareness, the sense of duty, common values; — referenda in the matter of self-taxation (as opposed to voting for the dismissal of the authorities) attracted a high turnout and the votes in favour were always in the majority; — it was a regular practice to organise referenda on the day of national elections; — these referenda were rarely conducted in communes in confl ict; — the period of culmination for conducting referenda was in the second term of offi ce of local government (1994–1998); — the interest of local government authorities in the initiation of referenda decreased after a series of decisions by supervisory organs in 1997–1997 undermining the validity of collecting amounts due as a result of self-taxation. The last of the three types of local referenda, the so-called facultative ones (in an important local matter), were also of a marginal nature. Moreover, the imprecise statutory regulation (a referendum in respect of an important matter) caused numerous (and often contradictory) judicial decisions. Among some 30 votes of this kind it is diffi cult to fi nd any regularities that could form the basis for systemisation. Among them were the so-called rubbish referenda, in which inhabitants objected to invest- ments posing (in their opinion) ecological hazards: Chojnów (1996), Targówek (1997), Góra Kalwaria (1997), Margonin (1999); referenda on the construction of a radio and TV mast: Gąbin, Solec Kujawski, Brzeziny; the localisation or closure of schools: Paszowcie, Radomin34. In Bolesławiec in May 2001 a referendum was organised in connection with plans to build a supermarket. Most referenda described as concerning „an important matter” dealt with the administrative affi liation of a commune. However, the judicial reservation of this type of question to the decisions of other organs of authority meant that such votes had only a consultative nature and were in practice merely consultations. It was only the judgement of the Constitutional Tribunal of 26 February 2003 that stated unequivocally that inhabitants ought to have the possibility of deciding in a referendum about all important matters for their community. One of the Tribunal’s judges said: “If not, then we would have to accept the absurd premise that the inhabitants can make use of their right to a referendum only when they are allowed to do so by statute”. The Deputy Commissioner for Civil Rights Protection considered that the judgement of the Constitutional Tribunal allowed for a broad understanding of the article concerning facultative referenda: “The subject of a local referendum may be not only matters remaining within the scope of tasks of local government units but also broader matters

34 A.K. Piasecki, Referenda w III RP (Chapter: Fakultatywne), Warszawa 2005. 158 The Sejm Review Third Special Issue / 2007 having signiﬁ cance for the local community”. Owing to this judgement, therefore, there is the possibility of holding a referendum in respect of changing the administrative boundaries of a commune (county, voivodship) or the localisation of a motorway. In this way the powers of the local community were broadened together with its possibilities of exerting inﬂ uence on the course of events by way of a referendum35.

V. UNREALISED REFERENDUM MOTIONS In the years 1990–2004 Deputies submitted eighteen unsuccessful referendum motions. The procedure for dealing with such motions was specifi ed by the rules of procedure of the Sejm36. The motions concerned the electoral system, the structure of parliament and the model of the system of government of the Republic of Poland, the admissibility of abortion, reform of the territorial division of the Republic of Poland, reprivatisation, the possibility of restoring the death penalty, Poland’s accession to the European Union (the so-called forestalling referendum), consent for the sale of Polish land to foreigners and the preservation of national treasures. From the point of view of the development of direct democracy, of much greater signifi cance were the citizens’ initiatives for holding a referendum. In practice these motions were also inspired by Deputies and the fate of these initiatives (just like the Deputies’ motions) were dependent on the will of the parliamentary majority. However, the requirement of obtaining over half a million signatures gave such a motion the character of the most universal (apart from the referendum itself) initiative within the framework of direct democracy. The fi rst motion of this kind was submitted to the Sejm on 27 March 1998. It concerned the holding of a referendum on the reform of the territorial division and system in the Republic of Poland. It was, however, rejected by the Presidium of the Sejm because there were fewer signatures of persons supporting the initiative than was statutorily required. Even though the Supreme Court later ruled that the Presidium of the Sejm did not have the competence to consider the motion37, then the politicians from PSL, who had obtained the signatures, quickly transformed the citizens’ motion into a Deputies’ one with the same questions: “1) Are you in favour of appointing local governments in the present 49 voivodships and of increasing their tasks and funds? 2) Are you in favour of the abolition of your Voivodship within its present boundaries and creating 12 great voivodeship-regions and over 300 counties? 3) Are you in favour of the abolition of your Voivodeship within its present bounda- 35 This expression and the whole fragment concerning the sitting of the Constitutional Tribunal and the judgement are cited after the article by J. Kroner in “Rzeczpospolita” 2003, No. 49, p.1; see also: M. Sidor, Referendum lokalne jako forma demokracji bezpośredniej, [in:] S. Michałowski, A. Pawłowska, Samorząd lokalny w Polsce. Społeczno-polityczne aspekty funkcjonowania, Lublin 2004; H. Izdebski, Samorząd terytorialny. Podstawy ustroju i działalności, Warszawa 2004, p. 140. 36 Articles 65–68 of the rules of procedure of the Sejm of the Republic of Poland. 37 The Supreme Court held on 26 May 1998 that the Presidium of the Sejm did not have the competence to consider that motion, since it belonged to the duties of the Marshal of the Sejm who, in turn, in the case of the existence of any doubts about the signatures, should have apply in this matter to the State Electoral Commission, cf. Opinie, ”Przegląd Sejmowy” 1998, No. 5 and 1999, No. 1. Andrzej Piasecki: Direct Democracy in Poland after 1989 159 ries, the creation of counties and 17 large voivodeships?”38. The motion was rejected by the Sejm: 189 for, 250 against, 2 abstentions. A further two referendum motions submitted by citizens had also been inspired by PSL. The initiators of the fi rst wanted the argumentation of the right wing about the necessity of conducting the granting of property rights to be opposed by the imperative of a referendum as a form of decision by the Nation in respect of the matter of the procedure and scale of the privatisation of State property. Józef Zych (Marshal of the Sejm in 1995–1997) stood at the head of the specially created All-Polish Committee for the Conduct of the Referendum. Voting on this project (in the form of a citizens’ motion) took place on 16 November 2000. The result was: 190 for, 228 against, 2 ab- stentions39. The activities of the forestry milieux and of the PSL politicians who supported them proved to be more successful in the matter of opposing the plans of the Ministry of State Treasury in the matter of privatisation (and reprivatisation) of State forests. The aforementioned groups called into being the Movement in Defence of State Forests, which gathered 543,000 signatures on the application to conduct a referendum in this matter. Its leader was the former Minister for the Protection of the Environment, Stanisław Żelichowski. The initiators felt that the realisation of the intentions of the Ministry of Treasury would be of detriment to the State forest and they warned against the possibility of devastating the forests and the loss of public control over them, together with the need for budget subsidies. “The forests are not only the property of the State Treasury but also a strategic natural resource,” wrote the initiators of the application, adding three questions: “1) Are you in favour of the return in kind of the forests currently in the possession of the State to the former owners or their heirs, including those persons currently living beyond the borders of the country? 2) Are you in favour of an increased clearing of forests in order to fi nance the reprivatisation claims of former owners or their heirs? 3) Are you in favour of transferring State forests to commercial companies, whose aim is to maximise profi ts and which will limit or eliminate the right to free access to forests and to pick the fruits of the forest?” 40. The application was rejected by the Sejm at its sitting on 26 May 2000: 180 for, 217 against, 8 abstentions. However, despite the fact that the referendum was not held, the actions of the foresters and PSL can be regarded as successful since the Ministry withdrew its plans for the privatisation of forests. In the fourth term of the Sejm, the opponents of integration submitted on 20 February 2002 to the Marshal of the Sejm a motion for a nationwide referendum to be held on granting consent for the sale of Polish lands to foreigners. After the debate, a month later, the application was rejected: 140 for, 263 against, 3 absten-

38 Sejm Paper No. 284, Archiwum, Proces legislacyjny, www.sejm.gov.pl. 39 This was “A citizens’ motion to held a referendum on the range of the forms and costs of the reprivatisation of public property taken over by the State within the framework of nationalisation acts in 1944–1962”. Sejm Paper No. 2339, Archiwum, Proces legislacyjny, ; also: M. Wielgo, Kto chce referendum, ,,Gazeta Wyborcza” 2000, No. 246. 40 Sejm Paper No. 1735, Archiwum, Proces legislacyjny, . 160 The Sejm Review Third Special Issue / 2007 tions41. The initiators did not admit defeat, however, and commenced the obtaining of signatures on the motion, this time of a civic nature. In this way the motion was again lodged in the Sejm on 15 October 2002. It was considered by the Sejm on 13 November and rejected in a vote: 131 for, 254 against, 35 abstentions42. At the end of the fourth term of the Sejm, PO started the action of obtaining signatures on a citizens’ motion for a referendum concerning the electoral law and the supreme organs of State authority (the action commenced on 12 September 2004). The initiators wanted Poles to reply to four questions concerning the abolition of the Senate, decreasing by half the number of Deputies, one-seat constituencies in elections to the Sejm and the abolition of parliamentary immunity. The wide-ranging campaign with its slogan of 4 × YES enabled the obtaining of 700,000 signatures in three months. At the beginning of 2005 PO activists prepared the lodging of a motion with the Marshal of the Sejm43.

VI. INITIATIVE, CONSULTATIONS, ASSEMBLIES Among the legislative initiatives of citizens, of the greatest signiﬁ cance was the constitutional initiative presented by NSZZ “Solidarity” in 1994 with a million signatures. This action was a response of centre-rights groups to the parliamentary system which had arisen after the elections in 1993, when those electoral committees which had amassed about 1/3 of votes cast but which even so found themselves outside parliament. Admittedly, the Constitutional Committee in parliament rejected the most important postulates of the citizens’ proposal but the mobilisation around the obtaining of signatures for the application and, in particular, the later monitoring of the work of the committee led to the creation of AWS. Meanwhile the remaining legislative initiatives of citizens undertaken since 1999 (when the Act was passed) include about 50 projects, in twelve of which cases the initiators managed to obtain the required 100,000 signatures. The following initiatives achieved a positive result in that the Sem adopted the following bills: • on retaining the national character of the strategic natural resources of the country — the bill was submitted on 10 April 1999 and passed on 6 July 2001 (voting: 412 for, 3 against, 3 abstentions); • on the Foundation for National Education — submitted on 15 December 2000, passed on 27 July 2001 (voting: 209 for, 150 against, 9 abstentions); • on amendments to the Act on the Teachers’ Charter — submitted on 12 March 2001, passed on 24 August 2001 (voting: 227 for, 18 against, 97 abstentions); • on amendments to the act on the implementation of the act — the Protection of the Environment Act, the Act on refuse and on amendments to other acts — submitted on 18 June 2002 and passed on 18 July 2002 (voting: 414 for, 1 against, 0 abstentions);

41 The question in the deputy’s application was: “Do you express agreement to the sale of Polish land to foreigners?” Print No. 277, Archiwum, Proces legislacyjny, . 42 1032, Archiwum, Proces legislacyjny, . 43 www.4xTAK, 25 February 2005. Andrzej Piasecki: Direct Democracy in Poland after 1989 161

• on amendments to the Act on employment and combating unemployment — submitted on 29 April 2003 and passed on 16 April 2004 (voting: 295 for, 108 against, 3 abstentions). The Sejm also received citizens’ bills: on amendments to the act on retirement pensions for professional soldiers and members of their families and to the act on pensions for retired members of the Police, the Offi ce of State Protection, the Border Guards, the State Fire Brigade and the Prison Service and their families (submitted on 8 March 2001); on the Universal Scholarship Fund (27 July 2001); on the Penal Code (11 July 2002); on amendments to the act on the nursing and obstetrics profes- sions (14 February 2003); on the creation of the Środkowopomorskie voivodship (30 January 2004); on amendments to the act on fi nancing health care services (5 July 2004); on amendments to the act on taxes on goods and services (5 August 2004)44. In accordance with the procedure, the proposal of a citizens’ bill together with the motion for the Sejm to initiate the legislative process is sent to the Marshal. If there are no formal defects in the bill, within three months the Marshal directs the bill to its fi rst reading. If the legislative procedure in relation to that bill has not been not completed before the end of the Sejm’s term, it will be considered by the Sejm during the next term in the course of the fi rst six months45. The list of legislative initiatives undertaken by citizens is long and includes a broad range of issues. Signatures have also been collected on proposals for bills on the Commissioner for Patients’ Rights, the Maintenance Fund, the State Inspectorate of Labour, the ban on promoting violence in the mass media, pre-retirement pay- ments, large-scale shopping centres, concessions on travel on public transport and the Flag Day46. On a local level, the acts on local government do not provide for citizens’ initiatives but in the statutes of some towns there have been introduced regulations enabling groups of citizens to make use of this form of direct democracy (in Wrocław 3,000 signatures of are required for support of the motion, in Toruń 150 and in Chełmża 100). The draft resolutions submitted by citizens concern local matters (e.g. an increase in the number of outlets selling alcohol) or environmental ones (an address by the lord mayor to the tax offi ce on the matter of inheritance tax on inherited tenement houses with occupants). Inhabitants rarely, however, make use of the right to which they are entitled and the bills proposed by them do not always gain the acceptance of the council (e.g. the proposal to grant a coat-of-arms to one of Torun’s housing estates was rejected)47. Legislative initiatives submitted by citizens have a very short tradition in the Third Republic of Poland. They are, however, an important instrument for the oppo-

44 On the basis of: Archiwum, Proces legislacyjny, . 45 S. Grabowska, Instytucja ogólnokrajowej inicjatywy ludowej w wybranych państwach europejs- kich, Rzeszów 2005, p. 122. 46 M. Bunda, Sami sobie, ,,Polityka” 2005, No. 9. 47 I. Walencik, Mieszkańcy proponują, rady przyjmują, ,,Rzeczpospolita” 2004, No. 297. 162 The Sejm Review Third Special Issue / 2007 sition against the authorities and they are also conducive to the shaping of a civic society. This is even more important when we recall the small scale of social consultations — another form of direct democracy. The normative provisions in respect of this matter were introduced in the Act on Local Self-government as amended on 2 February 199648. Despite the systemic foundations, consultations in local communities have not assumed the nature of a permanent procedure with an institutional shape. Some organs have normalised this matter by introducing the appropriate regulation in the statutes. Rarely have these consultations assumed the character of universal voting although this did take place, for example, in the Turek county and in Gorzów Wielkopolski, where the local authorities preceded their actions with consultations when they were considering an initiative to change the name of the county (town). Many local referenda did, however, have a consultative nature. The signiﬁ - cance of this form of democracy may increase with Poland’s accession to the European Union. In court jurisprudence we can encounter more frequent references to Union legislation. As concerns local government matters, this is above all the European Charter of Local Self-government, which obliges social consultations to take place before the taking of important decisions directly affecting inhabitants (e.g. the change of the name of a street)49. Admittedly the Constitution does not provide for nationwide consultations but we do have dealings here with community consultations in the case of certain laws. At the same time, through communication media (Internet, television, radio, telephones) there were sporadically conducted broad consultations addressed to all citizens50. Finally, mention must be made of the most classical form of direct democracy, which in Polish conditions is the rural assembly. It functions only on the area of a sołectwo [Translator’s note: the lowest administrative unit of local government, usually just one village] on the basis of Article 36 of the Act on commune (gmina) local government, establishing the rural assembly as the decision-making organ of the sołectwo.

VII. AN ATTEMPT AT ASSESSMENT In assessing the legal output of ﬁ fteen years of Polish democracy in its direct form, it must be pointed out that the key solutions are included in systemic acts (the Constitution, the Local Government Act). They enable the statutory implementation of referenda and other forms of direct democracy even though they do also include a certain lack of cohesion. In the Constitution of the Republic of Poland there is expressed the pre-eminent nature of representative authority. This is mentioned in

48 E. Olejniczak-Szałowska, Konsultacje we wspólnocie samorządowej, ,,Samorząd Terytorialny” 1997, No. 1–2. 49 R. Horbaczewski, Najpierw konsultacje, potem decyzje, ,,Rzeczpospolita” 2004, No. 306. 50 This was the case, for example, before the accession referendum, when Poles could submit proposals as to the content of the referendum question via a free telephone service launched by the government. Andrzej Piasecki: Direct Democracy in Poland after 1989 163

Article 4 (2): “The Nation shall exercise such power directly or through their representatives”. In 2003, during the preparations for the accession referendum, experts emphasised that the parliamentary path had priority over the referendum because the basic law rejected the possibility of introducing an obligation to hold that referendum: “Apart from the already mentioned expression, the facultative nature of the referendum «may» be decided by the fact that its possible choice as the way of granting consent to ratifi cation belongs to the Sejm”51. Meanwhile, in local government acts (commune, county, voivodship) it is in fact universal voting that is in the fi rst place (the representative authority is further down the list). This is also how the act is interpreted by the judgement of the Supreme Administrative Court of 19 March 1997, in which the court held that the communal referendum is one of the authorities of the local government unit and it is in fact the highest authority. In this way, the institution of the referendum took over in a defi ned matter the competence of the board, council or the sejmik (local assembly). And the legislative reservation of a defi ned matter to the “exclusive jurisdiction of the council does not apply in relation to inhabitants expressing their will by way of a referendum”52. The lack of cohesion shown here did not, however, have any greater impact on Polish systemic law, which enabled the most important instruments of direct democracy to be made more precise statutorily. This concerns not only the acts on national and local referenda but also the act on citizens’ initiatives. Experts emphasise the signifi cance of this initiative as an important element of citizens exercising their rights53. The praxeological dimension of these acts is above all the three national referenda, about four hundred local referenda, over twenty referendum initiatives and several dozen legislative initiatives, and also the rural assemblies in almost thirty thousand Polish villages. That is why — despite the signalled shortcomings — one should positively assess the fi fteen-year output of Polish direct democracy. And this concerns both the systemic and normative sphere and the empirical one. 51 K. Działocha, Nie ma konstytucyjnych przeszkód, ,,Rzeczpospolita” 2003, No. 77. 52 An excerpt of the judgment, cited after H. Izdebski, Samorząd terytorialny. Podstawy ustroju i działalności, Warszawa 2004, p. 138. 53 S. Grabowska, Instytucja…, p. 57; therein the opinion of Z. Czeszejko-Sochacki on popular initiatives in Switzerland: “Each initiative […] arouses the attention and activity of legislators and even when it is not taken into consideration it still infl uences the further legislative process”. 164 The Sejm Review Third Special Issue / 2007 165

A REVIEW OF THE PRINCIPAL REASONS FOR SELECTED JUDICIAL DECISIONS ISSUED BY THE CONSTITUTIONAL TRIBUNAL IN THE YEARS 1997–2006

The basic competence of the Polish Constitutional Tribunal, consisting of 15 judges, is to review the conformity of legal acts to the norms that are hierarchically superior in the system of sources of law. In the majority of cases, this consists in examining the conformity of a statute (i.e. an Act of Parliament) to the Constitution. Proceedings before the Tribunal cannot be initiated ex ofﬁ cio but are always the result of an application of an authorised subject, including groups of parliamentarians (members of one of the legislative chambers), the Commissioner for Civil Rights Protection, the President of the Republic of Poland, a common court (in the course of a so-called question of law, connected with the case pending before the court) or a private person (in the course of a so-called constitutional complaint connected with the individual case of the appellant). The consequence of a judicial decision on the unconstitutionality of a provision of the law is, in principle, the loss by such a provision of its universally binding force. This article provides a review of the principal reasons for selected judicial decisions of the Constitutional Tribunal issued after the passing of the Constitution on 2 April 1997. The selection shows the wealth of subjects with which the Tribunal has addressed in its adjudicating practice, concerning above all the limits of the rights and freedoms of the individual and also the system of the organs of public authority or a reckoning with the Communist past. Furthermore, since 1 May 2004, Poland has been a member of the European Union, which has also found expression in numerous judicial decisions of the Tribunal concerning relations between Polish law and European Union law. 166 The Sejm Review Third Special Issue / 2007

1. The judicial decision of 28 May 1997, K 26/96 [Abortion for so-called social reasons]

Introduction: Polish law allows for the termination of a pregnancy in three cases: where the pregnancy poses a danger to the life or health of the woman; where there exists a great probability of serious and irreversible damage to the foetus or an incurable disease threatening the life of the foetus; where there exists a reasonable suspicion that the pregnancy is the result of a crime. The Act of 30 August 1996, challenged in this case, added to the catalogue of the conditions for allowing an abortion the situation “when the pregnant woman fi nds herself in diffi cult life conditions or a diffi cult personal situation”. The termination of the pregnancy was permissible here up to the twelfth week of the pregnancy. The proceedings in the case under discussion were initiated on the motion of a group of senators who indicated the non-conformity of the above-mentioned regulation, among other things, to the constitutional principles of the protection of human life, equality and the protection of motherhood and the family. The judicial decision in this case was issued after the passing, but several months before the coming into force, of the Constitution of 2 April 1997. The models for review were, therefore, the provisions of the amended Constitution of 22 July 1952 which did not refer expressis verbis to the protection of human life. The Constitutional Tribunal drew this principle from the general formula of a state governed by the rule of law, indicating that in the new Constitution of 1997 Article 38 provides for the duty of the State to ensure every person “legal protection of life”.

Ruling: The admissibility of the termination of a pregnancy for so-called social reasons violates the principles of: a democratic state governed by the rule law, equality before the law and the protection of motherhood and the family. Three judges of the Constitutional Tribunal ﬁ led dissenting opinions.

Principal reasons for the ruling: 1. The Constitution, protecting certain values, imposes on the legislator the duty to ensure them “sufﬁ cient protection”. This obligation, however, cannot be limited to establishing prohibitions on violations of constitutional values. The legislator should bring into force also guarantees for observing and executing these prohibitions. These guarantees can have various natures — civil, administrative or, as a last resort, penal. The lack or limitation of legal and penal protection of a constitutional value does not, therefore, have to mean that the protection of these values is insufﬁ cient. 2. The protection of human life ensues from the principles of a democratic state governed by the rule of law. Such a state, realising itself as a community of per- A Review of the Principal Reason for Selected Judical Decisions... 167

sons, establishes after all the human being and the goods most valued by him/her as its supreme value. Such a good is life, which in a state governed by the rule of law remains under constitutional protection at every stage of its development. 3. Abortion means depriving a developing foetus of life. 4. There is a lack of reasonable criteria for differentiating the value of a human life on the basis of its phase of development. In consequence, from the moment of its conception, i.e. also in the pre-natal stage, human life is a constitutionally protected value. 5. The life of a conceived child is a constitutional value also in the light of the obligation to protect motherhood and the family. The protection of motherhood does not after all mean exclusively the protection of the interests of the mother. Motherhood is a relation between the mother and the child, including a conceived child. Similar conclusions should also be reached in the case of an analysis of the notion of “family”. The fundamental procreative function of a family assumes the protection of the life of a conceived child. 6. In the case of a confl ict between constitutional values, it might be necessary to sacrifi ce one of the values. This refers also to the protection of life, which might be limited or even excluded on account of the necessity to protect other constitutional values. However, the decision of the legislator in this measure must be justifi ed and not arbitrary. In particular, the legislator should be directed by the results of a comparison of the values of the confl icting goods. 7. Social reasons allowing for abortion are not connected with a threat to the life or health of the pregnant woman. The value protected by this provision is — fi rstly — the preservation by the woman of a defi ned material status, which might un- dergo a worsening or lose the opportunity for improvement in connection with the birth of the child (the premise of “diffi cult living conditions”) and — secondly — the protection of existing relationship between the woman and other persons and the scope of the realisation of defi ned needs, laws and freedoms (the premise of “a diffi cult personal situation”). The person entitled to ascertain the existence of these circumstances would be in this case the pregnant woman herself. The legal good in the light of this provision has become, therefore, the subjective conviction of the woman about a threat to her material or personal condition. 8. The protection of the right of a pregnant woman not to worsen her material condition and to satisfy her material needs and those of her family cannot justify the violation of a human life. 9. The right to a responsible decision about having children, which belongs to the fundamental rights and freedoms of a human being, concerns the decision about conceiving a child. Any interference in this sphere is inadmissible. It is another matter, however, when it comes to the decision about giving birth to the child, which in the negative aspect means the decision to terminate the pregnancy. This decision is not an element of the right to decide to have a child. One cannot, therefore, decide about having a child in the situation when the child is developing in the pre-natal phase and in this sense it is already “had” by the parents. 168 The Sejm Review Third Special Issue / 2007

2. The judgement of 24 June 1998, K 3/98 [The “vetting” of judges adjudicating in political trials in the period of the Communist rule; opinions on the draft of the statute by the National Council of the Judiciary]

Introduction: The challenged statute was a component of the process of realisation of the idea of the so-called vetting of judges. The aim of this vetting was to hold disciplinarily responsible those judges who, in adjudicating in political trials in the period of Communism, had betrayed the idea of judicial independence. In the judgement, the Tribunal stated, among other things, the unconstitutionality for formal reasons of the provision regulating the particular principles of the disciplinary proceedings against the above-mentioned judges (see point 2 of the ruling). This made it redundant to assess the substantive content of regulation. Nevertheless, the Tribunal, in its reasons for the judgement, expressed certain general remarks concerning the legislation “settling accounts” with the Communist past. The proceedings in this case were initiated upon application of the President of the Republic of Poland lodged in the preventative review mode (i.e. before the signing of the statute).

Ruling: 1. Depriving those judges and public prosecutors who were, among other things, associated with the repressive organs in the period before 1956 of particular pension beneﬁ ts is in accordance with, among other things, the principle of equality (Article 32 of the Constitution). 2. The particular principles of the disciplinary proceedings against judges who, in adjudicating in political trials before 1989, had betrayed the idea of judicial independence are not in accordance with the principle of the legalism of the activity of public authorities (Article 7 of the Constitution), because they were passed by the Sejm (the lower chamber of Parliament) without the observance of the procedure required by the provisions of the law. Two judges of the Constitutional Tribunal ﬁ led dissenting opinions.

Principal reasons for the ruling: 1. The transition from an authoritarian state to a state governed by the rule of law can exceptionally take on forms which are not justiﬁ ed in normal conditions. 2. The admissibility of enacting provisions giving the grounds for removing a judge from his post on account of the content of issued judicial decisions and the conduct of court proceedings can be considered only with reference to the past events which occurred in the Polish judicial system in the period, to use the words from the preamble to the Constitution, “when fundamental freedoms and human rights were violated in our Homeland”. In the period before 1989, there took place after all such drastic abuses of judicial independence that there still exists the need to A Review of the Principal Reason for Selected Judical Decisions... 169

reveal and explain them. With reference to these past events, it could turn out that the general principles of the responsibility of a judge, adapted to the conditions of a democratic state governed by the rule of law, are not suffi cient. The content of the judicial decisions issued by judges at present, in a democratic state governed by the rule of law, may be the subject of assessment and vetting only in the procedure of instance review and — exceptionally — within the framework of the general mechanisms of criminal or disciplinary responsibility. 3. Respect for judicial independence is the duty not only of the organs and persons coming into contact with the activity of courts but also of the judge himself. A particularly drastic form of betraying the idea of judicial independence is a violation of the duty to maintain impartiality, which might consist, among other things, in adapting the content of the issued judicial decisions to suggestions or orders passed on to the judge from outside or on anticipating these suggestions while thinking about future benefi ts. The phenomenon of “fl exible judge” is always a denial of the proper administration of justice. This takes on a particularly dramatic dimension if, which is the norm in totalitarian states, it fi nds reference to political trials where the judge becomes the executor of the political will of the State in the elimination of the opposition. If in the Polish judicial system there are still judges who, in the previous political system, betrayed the idea of judicial independence or — even worse — used the court-room to conduct political repres- sion, then there exists the justifi cation for removing them from the profession of judge. 4. The retirement of judges is a particular privilege guaranteed by the Constitution. It can be demanded, however, that the possibility of taking full advantage of this privilege be limited to persons worthy of being granted the privilege. Among this circle there cannot be counted persons who acted within the framework of organs making up the apparatus of violence responsible for the crimes of the Communist system. 5. The unconstitutionality of the manner of passing the provisions regulating the particular principles of the disciplinary proceedings against judges — on account of the failure to obtain the opinion of the National Council of the Judiciary — was decided by an accumulation of three factors: material (the content of the provision in the version fi nally passed signifi cantly differed from the original content of the provision passed to the National Council of the Judiciary for opinion), procedural (the content of the provision in the version fi nally passed was the effect of taking into consideration a deputy’s amendment going beyond the permissible scope of amendments which can be proposed to a bill in the course of work in the Sejm) and constitutional (the provision concerned a matter of a particular constitutional status, i.e. judicial independence). 170 The Sejm Review Third Special Issue / 2007

3. The judgement of 10 April 2002, K 26/00 [Statutory prohibitions on the membership of certain persons in political parties]

Introduction: A prohibition on belonging to political parties is binding on many categories of persons performing public functions. In many cases, this prohibition ensues directly from the provisions of the Constitution (this concerns: judges of common courts and the Constitutional Tribunal, the President of the Supreme Chamber of Control, the Commissioner for Civil Rights Protection, members of the National Radio and Television Council and the President of the National Bank of Poland). Furthermore, numerous prohibitions are defi ned in ordinary statutes (this concerns, among others, professional soldiers, public prosecutors, police offi cers, offi cers of the Special Services, Border Guards and Prison Service, customs offi cers, the General Inspector for the Protection of Personal Data, employees of the National Electoral Offi ce and also members of the Civil Service corps). Proceedings in this case were initiated on application by the Commissioner for Civil Rights Protection. The appellant questioned all the ordinary statutes imposing prohibitions on membership in political parties which were not provided for in the Constitution. In the opinion of the Commissioner, the authors of the Constitution indicated in an exhaustive manner the categories of persons for whom the prohibition on association in political parties had been established. For the other subjects not mentioned in the Constitution, this prohibition was tantamount to a violation of the essence of the freedom of association in political parties.

Ruling: Statutory prohibitions on the membership in political parties of certain categories of persons fulﬁ lling public functions are in accordance with, among other things, the freedom of the creation and functioning of political parties (Article 11 paragraph 1 of the Constitution) and the freedom of association (Article 58 paragraph 1 of the Constitution and Article 22 of the International Pact on Civil and Political Rights and Article 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms).

Principal reasons for the ruling: 1. The reason for including directly in the Constitution prohibitions on the membership of certain persons in political parties is the fact that these prohibitions refer to constitutional organs. Further — statutory — limitations on the freedom of association are admissible and are subject to assessment in the light of the provision on the admissibility of limitations of constitutional freedoms and rights (Article 31 paragraph 3 of the Constitution). 2. The freedom of association (Article 58 of the Constitution) means the freedom for citizens to create certain kinds of associations, including political parties, and A Review of the Principal Reason for Selected Judical Decisions... 171

has as its aim the joint development of civic political, social, economic and cultural activity. The freedom of association in political parties is connected with the role that the Constitution ascribes to political parties. These parties after all are a particular category of civic associations and their role consists in participating in the shaping of the state’s policy. The right to membership in political parties should, therefore, be perceived above all not in the categories of freedom of association but in the categories of the right to infl uence by democratic methods the shaping of the State’s policy. 3. One of the conditions for the admissibility of limitations on constitutional freedoms and rights is the prohibition on violating their essence. The concept of the “essence” of rights and freedoms is based on the assumption that within the framework of each right and freedom there can be isolated certain fundamental elements (core, nucleus), without which this right or freedom would not be able to exist at all, and certain additional elements (surroundings), which can be modifi ed by the ordinary legislator without violating the identity of the given right or freedom. 4. The essence of the freedom of association is the possibility for citizens to create formalised organisational ties with aims and tasks not restricted by the State. It would, therefore, be a violation of this essence to introduce a prohibition on certain categories of persons associating in any kind of organisation and excluding them in this way from the structures of a civic society. The right to infl uence the State’s policy is not exhausted, however, by membership in political parties but fi nds considerably broader forms of fulfi lment. Depriving certain categories of persons of the right to membership in political parties is not, therefore, a violation of the essence of the freedom of association. 5. For an assessment as to whether there took place a violation of the principle of the proportionality of the limitation of a freedom or a right, it is necessary to give answers to three questions: fi rstly, whether the introduced regulation is capable of leading to the effect desired by it; secondly, whether this regulation is necessary for the protection of the public interest with which it is connected; thirdly, whether the effects of this regulation remain in proportion to the burdens imposed by it on the citizen. Furthermore, each limitation of the rights and freedoms of the individual has to be “necessary in a democratic state”. This means that the same aim could not have been achieved by the use of other means, less onerous for the citizen. 6. The addressees of the challenged limitations on the freedom of association are persons who are responsible for the external and internal security of the state or are employed in high positions, fulfi l managerial functions or perform duties of a confi dential nature. The aim of these limitations was the need to maintain the political impartiality and neutrality of these persons and the institutions within which they function. Granting some persons the full freedom of association could, after all, lead to a confl ict of conscience between professional obligations and political sympathies. This would bring into doubt their personal impartiality and in so doing undermine confi dence in the proper functioning of particular organs. 172 The Sejm Review Third Special Issue / 2007

4. The judgement of 27 May 2003, K 11/03 [The referendum on Poland’s accession to the European Union]

Introduction: The provision of Article 90 of the Constitution regulates the procedure for granting consent for the ratifi cation by the President of the Republic of Poland of an international agreement on the basis of which the Republic of Poland may “delegate to an international organisation or international institution the competence of organs of State authority in relation to certain matters”. Such an agreement is, in particular, the treaty on Poland’s accession to the European Union. Consent for the ratifi cation of such an agreement can be granted either by Parliament in the form of a statute (the so-called parliamentary procedure) or by the Nation in a referendum (the so-called referendum procedure). The choice of one of these procedures is made by the Sejm (the lower chamber of Parliament) by way of a resolution. In the case of the choice of the second of the procedures named above, for the result of the referendum to be binding, there should take part in it more than half of the citizens entitled to vote in it. The provision named above provided the basis for the referendum conducted on 7 and 8 June 2003, in which the Nation, with a turnout of c. 77%, voted in favour of Poland’s accession to the European Union. The judgement under discussion, issued a few days before the accession referendum as a result of the application lodged by two groups of deputies to the Sejm of the Republic of Poland, concerned the statute regulating the principles and procedures for conducting a national referendum. The most important of the constitutional problems addressed by the Constitutional Tribunal in this case was an assessment of the possibility of applying the so-called “reserve” procedure in the case of a too low turnout (below 50%) in the referendum not bringing about a binding result. The legislator came to the conclusion that such a situation would not mean the refusal to grant consent for accession to the European Union and would not exclude the admissibility either of the application of the parliamentary procedure for granting consent for the ratifi cation or for holding a repeat referendum. Conversely, in the opinion of the appellants in this case, the lack of the required turnout would be tantamount to a rejection of the concept of accession, in the face of which the taking of a second decision in this measure would constitute a violation of the Constitution. Furthermore, the appellants challenged numerous procedural regulations concerning the conduct of the referendum and the referendum campaign.

Ruling: The Nationwide Referendum Act does not violate the Constitution of the Republic of Poland. A Review of the Principal Reason for Selected Judical Decisions... 173

Principal reasons for the ruling: 1. The interpretation of legislation should take into consideration the constitutional principle of sympathetic predisposition towards the process of European integration and cooperation between States (conclusion from the preamble and Article 9 of the Constitution). 2. The fundamental form of democracy in Poland is representative democracy. As a consequence, the basic procedure for granting consent for the ratifi cation of an agreement on “delegating competences” is the parliamentary procedure. The specifi c nature of this procedure is expressed in the need for obtaining a majority of 2/3 of the votes in both chambers of Parliament, where the position of the chambers is equal (i.e. without the consent of both chambers there is no possibility of passing the resolution). There is, in such a case, no application of the provisions defi ning the particular competence of the Senate (the higher legislative chamber) in the legislative process. 3. An alternative and optional course to the parliamentary procedure for granting consent for the ratifi cation of an agreement on “delegating competences” is a national referendum. The decision of the Nation in respect of granting consent for ratifi cation is made if the result of the referendum is binding (i.e. if there participated in it more than half of those entitled to vote) and determinative (i.e. if the majority expressed itself for one of the two solutions presented). In consequence, the “granting of consent” denotes a situation in which there took part in the referendum more than 50% of those entitled to vote and the majority expressed themselves in favour of the proposed solution, whereas “failure to grant consent” denotes a situation in which there took part in the referendum more than 50% of those entitled to vote and the majority was against the proposed solution. Only in these situations can we talk about the binding result of the voting, defi nitively closing the procedure concerning the granting of consent for ratifi cation. 4. The provision of Article 90 of the Constitution includes the mechanism of a specifi c “reserve” procedure in the case where, with the application of the course originally chosen by the Sejm, the entitled subject (Parliament or the Nation) did not come to a determinative standpoint. The admissibility of the application of the “reserve” course ensues from the premise that the Constitution does not allow for the occurrence of a constitutional “stalemate”. As a consequence, it must be admitted that if the result of the referendum turns out to be non-binding as a result of the non-attainment of a turnout of 50%, the referendum is ineffective. This type of result is treated as a non-exercise by the Nation of its right to express itself in a referendum. This does not entitle the President to take any actions with respect to the international agreement. There remains the ongoing need to lead to the expression of a binding standpoint of the sovereign — indirectly or directly. In consequence, the Sejm should once again pass an appropriate resolution — either on repeating the referendum or on applying the parliamentary procedure. 5. In the Polish legal system there is no mention about the civic right to a referendum. Citizens after all do not have the possibility of initiating activities leading to 174 The Sejm Review Third Special Issue / 2007

the calling of a referendum. The competence for the undertaking of such activities belongs to the Sejm or to the President of the Republic (acting upon consent of the Senate). Citizens thus have the right to participate in the referendum if it has been ordered, but not the right to a referendum.

5. The judgement of 28 May 2003, K 44/02 [Problems connected with the lustration of public functionaries]

Introduction: The Act, in force until recently, the Disclosure by Persons Performing Public Functions of Work or Service for the State Security Services or their Cooperation with them in the years 1944–1990 (the “Lustration Act”) created an obligation to reveal the facts of former connections (formal or secret) with the Communist security organs by persons performing certain public functions or aspiring to perform these functions (“lustration”). The persons covered by the aforementioned obligation had to make the appropriate statements in this respect (“lustration statement”). Admitting to connections with the security services did not deprive these persons of the right to perform public functions. This was passed on to public opinion in the form of a announcement in Dziennik Ustaw (the Ofﬁ cial Journal of the Republic of Poland). Sanctions were imposed on those making false statements (the so-called lustration lie), about which the court adjudicated in separate proceedings. The issue of lustration has been the subject of many rulings of the Constitutional Tribunal. In this case, initiated on the motion of a group of deputies and as a result of a question of law from a court, the subject of review was the limitation, by the statutory exclusion from the scope of this notion of informal cooperation in the matters of intelligence, counter-intelligence and the defence of the borders, of the deﬁ nition of “cooperation” which was subject to the obligation of being revealed.

Ruling: The challenged limitation of the deﬁ nition of the “cooperation” subject to lustration is not in accordance with the constitutional principles of a democratic state governed by the rule of law (Article 2) and of equality (Article 32 paragraph 1) and with the right to information about persons performing public functions (Article 61 paragraph 1). Four judges of the Constitutional Tribunal ﬁ led dissenting opinions.

Principal reasons for the ruling: 1. In the light of the Lustration Act, the fact itself of cooperation with the security organs of the Communist state is not subject to sanctions and is not regarded as reprehensible, in contrast to lying on this matter, consisting in concealing cooperation in the lustration statement. Each person who revealed his or her connections with the security services can be a candidate for and hold all public ofﬁ ces. Therefore, in accordance with the will of the legislator, connections with these A Review of the Principal Reason for Selected Judical Decisions... 175

services are neutral with respect to the holding of public offi ce. We cannot, therefore, talk about “stigmatising” these persons and their past. The aim of the Lustration Act is to bring about a situation in which the most important public functions are held by persons who are truthful and hence worthy of trust. Persons who are candidates for public offi ce and who make false statements reveal a lack of elementary moral qualifi cations. 2. No citizen is obliged to be a candidate for or to perform a public function. In undertaking a decision in this fi eld, he or she agrees to reveal certain information about the past and to accept the risk of bearing the consequences of concealing information whose disclosure is demanded by the legislator. 3. The principle of the continuity of the Polish State does not mean the continuity of the axiological foundations of statehood and the legal system binding before and after the breakthrough of 1989. The constitutional expression of the break in the axiological continuity was the amendment of the Constitution of 1952 dated 29 December 1989, removing all the references of the binding law and State institutions to the values on which the Communist system was based. 4. Contacts with security organs, in order to be recognised as “cooperation” within the meaning of the Act, should consist in the passing of information to the State security organs in a way that is conscious, secret and connected with the obtaining of information. Moreover, cooperation could not be limited to just a declaration of will, but it had to materialise itself in consciously undertaken, concrete activities. 5. In the light of the principle of correct legislation, ensuing from the formula of a state governed by the rule of law (Article 2 of the Constitution), the nature of the lustration procedure, its consequences in the sphere of the personal interests of the lustrated persons and the broadly understood public interest demand that the legal regulations in this area correspond in a particularly high degree to the requirements of legislative correctness, clarity and precision. 6. The challenged mechanism does not allow the establishing precise and unambiguous premises conditioning the qualifi cation of the assessment of a particular behaviour as “cooperation”. In consequence, the results of the lustration proceedings are unforeseeable and the fi nal qualifi cation can depend exclusively on arbitrary and unverifi able assessments. 7. The relevant feature in the lustration procedure is the fact of connections between the person who is a candidate for performing a public function and the security services of the Communist state. The challenged provision differentiates between such persons in a groundless way. 8. The Lustration Act broadens access to information about the past activities of persons fulfi lling public functions. It realises, therefore, in a certain scope the civic right to information about the activities of persons performing public functions (Article 61 paragraph 1 of the Constitution). In consequence, the limitation of the application of the Lustration Act constitutes a limitation of the right to information. 176 The Sejm Review Third Special Issue / 2007

6. The procedural decision of 17 July 2003, K 13/02 [The ﬁ nal nature of the judicial decisions of the Constitutional Tribunal; the exclusion of a judge of the Tribunal]

Introduction: The decision under discussion was made in connection with the judgement of 2 April 2003, issued upon application of the Polish Autocephalic Orthodox Church, in which the Constitutional Tribunal adjudicated that the challenged provisions of a certain statute did not violate the Constitution. In June 2003, the same appellant lodged a complaint for reopening the proceedings concluded with the judgement mentioned above. In the justiﬁ cation to the complaint, it was pointed out that, during the parliamentary work on the challenged act, one of the members of the bench adjudicating in this case was a senator (a member of the Senate, i.e. the upper chamber of the Parliament) and voted on one of the amendments to the statute. In the opinion of the appellant, this judge should have been excluded ex lege from adjudicating in the case. According to Article 26 paragraph 1 point 1 of the Constitutional Tribunal Act, such exclusion should affect a judge who “participated in the issuing of the challenged normative act”. The aim of the complaint was, therefore, to bring about a stating of the invalidity of the judgement of the Tribunal of 2 April 2003 and a repeat hearing of the case concluded with this judgement.

Ruling: The Tribunal rejected the complaint for reopening proceedings as inadmissible in proceedings before the Tribunal.

Principal reasons for the ruling: 1. The judicial decisions of the Constitutional Tribunal are ﬁ nal (Article 190 paragraph 1 of the Constitution). This means that these judicial decisions cannot be challenged – both in the proceedings before the Tribunal itself and in all other proceedings. This excludes the possibility of reopening proceedings before the Tribunal and of challenging the judicial decisions of the Tribunal for reasons of the deﬁ ned premises of their possible invalidity or defectiveness. 2. The review of the constitutionality of the law consists in a comparison of the provisions of the legal acts being examined with the provisions of acts of a higher legal rank. The review, therefore, takes place above all in the sphere of norms included in the compared legal acts and not in the sphere of facts or procedural occurrences. The review of constitutionality is not, therefore, dependent on circumstances of a factual nature, such as: the procedural representation of participants in the proceedings, the credibility of the evidence in respect of facts, the past social or professional roles of particular members of the decision-making bench of the Tribunal. A Review of the Principal Reason for Selected Judical Decisions... 177

3. A judge of the Tribunal is subject to exclusion from the decision-making bench if he has, among other things, participated in the issuing of the challenged legal act. The term “participated” indicates that the participation connected with the issuing of the legal act ought to depend on actively infl uencing the content of this act (through, for example, the lodging of a legislative initiative or actively participating in a parliamentary debate). The act itself of voting on amendments to the statute in the Senate does not, therefore, mean that the premise for excluding the judge has in fact appeared. 4. In forming an interpretation of the concept of “participation in the issuing of a normative act”, we cannot ignore the principles governing the selection of judges of the Tribunal as defi ned in the Constitution. These provisions do not exclude participation in the judicial decision of a judge who was a constituent member of the organ issuing the normative act. The acceptance of a different interpretation of the premises excluding a judge would create severe diffi culties in the functioning of the Constitutional Tribunal, particularly when considering cases in the presence of the full bench of the Tribunal. Among the judges of the Tribunal there were always after all persons who had earlier participated in legislative work in Parliament.

7. The judgement of 24 March 2004, K 37/03 [The scope of admissible Deputies’ amendments to a bill]

Introduction: While the Sejm (the lower chamber of Parliament) is in the process of considering a bill, the following possess the right to introduce amendments to the draft: the author of the bill, Deputies and the Council of Ministers (Article 119 paragraph 2 of the Constitution). In numerous decisions, the Constitutional Tribunal indicated that, in making amendments, there cannot be introduced any provisions to bill, that do not concern the matter covered by that bill. This type of content can only constitute the subject of a separate legislative initiative. The subject of review in this case was the number of provisions of an act amending, among other things, the Act on the Management of Real Estate. The challenged regulations, modifying the status of the Main National Geodesist (being the central organ of government administration), found themselves in the Act as a result of amendments made by Deputies during the work in the Sejm. They concerned, however, a completely different matter from the original bill presented by the Council of Ministers. The President of the Republic of Poland challenged the above-mentioned provisions in the course of preventive review (i.e. before the signing of the act), claiming that they were passed in violation of the norms deﬁ ning the admissible range of Deputies’ amendments. 178 The Sejm Review Third Special Issue / 2007

Ruling: The introduction by way of amendments to the bill of provisions regulating a matter different from that in the bill violates the provisions deﬁ ning: the subjects entitled to submit a bill (Article 118 paragraph 1 of the Constitution), the subjects entitled to of- fer amendments during parliamentary work on a bill (Article 119 paragraph 2 of the Constitution) and the principle of three readings of the bill in the Sejm (Article 119 paragraph 1 of the Constitution).

Principal reasons for the ruling: 1. On the basis of the Constitution, three separate institutions should be differentiated: the legislative initiative (Article 118 paragraph 1 of the Constitution), the amendment to a bill proposed during consideration of the draft in the Sejm (Article 119 paragraph 2 of the Constitution) and the amendment by the Senate to the bill passed by the Sejm (Article 121 paragraph 2 of the Constitution). The legislative initiative has a fundamental signifi cance for the legislative process. Amendments are separate and peripheral measures in relation to the legislative initiative. They have in principle a nature which is somewhat “by points”. During the legislative proceedings there cannot come about any blurring of the distinction between the legislative initiative and the amendment. It should be regarded as a violation of the Constitution if, for example, there is proposed an amendment which would provide for the deletion of the content of all provisions hitherto and the introduction in their place of completely new provisions such that it would be in fact a completely new bill. 2. In a technical sense, an amendment is the proposal to delete a certain part of the text of a bill, to write in to the project certain elements or change the content of some parts of the bill. The essence of the amendment is its connection with the “base element”, i.e. with the bill. Amendments should intend to modify the content of the bill and not to create a new bill. 3. The interpretation of the concept of an “amendment” to a bill should be made in the light of the principle of the consideration of bills by the Sejm in three readings (Article 119 paragraph 1 of the Constitution). The aim of this principle is to consider a bill as thoroughly as possible and to eliminate the risk of the randomness of the solutions accepted. This principle does not require any one bill to be considered three times in unchanged form by the Sejm. Nevertheless, it is an inadmissible situation for the bill to differ so much in the second reading from the “original” one that it is in essence a different bill. 4. Amendments to a bill can even change completely the direction of the solutions adopted by the author of the bill submitted for a fi rst reading. They must, however, fi t into the range of this bill. All normative contents going beyond such a defi ned framework should go through all the stages of the legislative process. 5. The limitation of the scope of amendments ensues also from the very concept of the statute. The notion of “a statute” assumes after all that this is a legal act regu- A Review of the Principal Reason for Selected Judical Decisions... 179

lating a certain area of social life. A statute cannot, therefore, be made up of provisions in separation from each other, collected in one act at random and without any substantive connection. From this ensues the prohibition on “building up” bills in the course of the legislative procedure with solutions not connected with the matter which the statute concerns.

8. The judgement of 31 May 2004, K 15/04 [The participation of foreigners in European parliamentary elections]

Introduction: The subject of review in this case, initiated upon application of a group of Deputies, was a number of provisions of the Act on Elections to the European Parliament (EP), deﬁ ning, among other things, the premises for the obtaining of active and passive electoral rights in elections to the EP on the territory of Poland by foreigners being citizens of the European Union. The Deputies indicated that the granting of electoral rights to the EP to foreigners in elections conducted on the territory of the Republic of Poland violates the principle of the sovereignty of the Nation.

Ruling: The participation of foreigners in elections to the EP on the territory of Poland does not violate the principle of the sovereignty of the Nation (Article 4 paragraph 1 of the Constitution).

Principal reasons for the ruling: 1. The interpretation of the binding legislation should take into consideration the constitutional principle of sympathetic predisposition towards the process of European integration and cooperation between states (conclusion drawn from Article 9 and the preamble to the Constitution). 2. The Constitution makes use of the notion of the Nation in a political, not an eth- nic, sense. In the light of the formulation from the preamble to the Constitution (“We, the Polish Nation — all citizens of the Republic”), the notion of “Nation” deﬁ nes the community which is formed by the citizens of the Republic of Poland. 3. The content of the principle of the sovereignty of the Nation (Article 4 paragraph 1 of the Constitution) is a recognition of the will of the Nation as the sole source of authority and as a method of legitimising the exercise of authority. This means that the source of authority in the Republic of Poland cannot be an individual, a social group or an organisation. 4. The principles and procedures regulated in the Constitution (including the principle of the sovereignty of the Nation) refer to the functioning of the organs of the 180 The Sejm Review Third Special Issue / 2007

Republic of Poland. These principles cannot be transferred directly to the activity of those structures through whose mediation the Republic realises its interests. The EP is not an organ exercising authority in the Republic of Poland but an organ realising defi ned functions within the structure of the European Union. The method of legitimising the organs of the European Union does not belong to the matter of the Polish Constitution but above all to the matter of European Union law. In this case, we are, therefore, dealing with regulations belonging to different legal systems. The principle of the sovereignty of the Nation concerns the sources and mechanisms of authority in the Republic of Poland. The principles of electoral law to the EP concern the mechanism of the fulfi lment of tasks by the European Union. In consequence, the electoral procedure to the EP does not infl uence the method of the creation and functioning of the organs of the Republic of Poland and its realisation does not have the intention of exercising supreme power in the Republic of Poland. The assessment of the challenged provisions cannot, therefore, be made from the point of view of Article 4 paragraph 1 of the Constitution. 5. The European Union is not a state and analogies to the system of state organisation are unjustifi ed. The differences between the EP and state parliaments consist in different principles of representation. The EP does not act in the name of one homogeneous sovereign. The electorate to the EP does not constitute a homogeneous “European community” but a community which is made up of the Nations of the member states of the Union.

9. The judgement of 12 January 2005, K 24/04 [The inequality of the competences of the chambers of Parliament in respect of giving opinions on the positions of the Council of Ministers to the European legislative proposals]

Introduction: The judgement under discussion concerned the differentiation between the powers of the Sejm (the lower chamber of Parliament) and those of the Senate (the upper chamber of the Parliament) in the procedure connected with the adopting of the positions that the Polish government intended to assume in the forum of the Council of the European Union in the matter of a legislative proposal of the European Union. According to the challenged regulation, the Government, before the consideration of the legislative proposal in the Council of the European Union, is obliged to seek the opinion of the organ of the Sejm (the European Union Matters Committee) on the matter of the position which it intends to assume with regard to the proposal. The justiﬁ cation for the omission of the Senate from this procedure was the conviction that the “opinion-giving” procedure is an element of the exercise of the control function over the Government, which the Constitution reserves, on the principle of exclusivity, for the Sejm (Article 95 paragraph 2 of the Constitution). A Review of the Principal Reason for Selected Judical Decisions... 181

The initiators of the proceedings in this case (a group of Senators), starting from the premise that the “opinion-giving” procedure belongs to the legislative function, argued that the omission of the Senate within the framework of this procedure is at odds with the constitutional principle of the exercise of legislative authority by the Sejm and the Senate. In consequence, the fundamental question which the Constitutional Tribunal had to answer was connected with the necessity of qualifying the “opinion-giving” procedure as one of the functions of Parliament.

Ruling: The omission of the obligation to seek the opinion of the Senate within the framework of the procedure of giving opinions about the positions that the Polish Government intends to assume in the forum of the Council of the European Union is not in accordance with the principle of the execution of legislative authority by the Sejm and the Senate (Article 10 paragraph 2 and Article 95 paragraph 1 of the Constitution). Three judges of the Constitutional Tribunal ﬁ led dissenting opinions.

Principal reasons for the ruling: 1. The Constitution does not contain provisions directly regulating the role of the Polish Parliament in the process of making European Union law. The acceptance of the existence of a constitutional loophole in this fi eld would have, however, negative consequences. It is necessary to “incorporate” the infl uence of Parliament on the making of European Union law within the existing constitutional framework. Such an approach is consistent with the principle of interpreting the Constitution in a manner that is favourable to European integration. 2. The development of the European Union brings about the necessity of redefi ning certain institutions and notions. This ensues from the fact that, in the new legal situation, ensuing from European integration, there could arise a confl ict between the established understanding of some constitutional provisions and the need for effective activity in the forum of the European Union. This is connected with the blurring boundaries between conducting foreign policy (reserved for the executive authority) and the making of law (traditionally belonging to the legislative authority). 3. Control over the activity of State organs includes the establishing of actual situation and a comparison with the desired one. The control of the Sejm over the activity of the Government concerns above all with the execution of political responsibility. The instruments of control include, among other things, a vote of no confi dence (Article 158 and Article 159 of the Constitution), the ability to appoint an investigative committee (Article 111 of the Constitution), interpellations, Deputies’ questions and questions on current matters (Article 115 of the Constitution) and the right to examine the implementation of the budget act (Article 226 of the Constitution). 182 The Sejm Review Third Special Issue / 2007

4. The essence of the legislative function is the possibility of infl uencing the shape of the law binding in the country. In consequence, the powers of Parliament relating the infl uencing the content of the position adopted by Poland in the forum of the Council of the European Union on the matter of the legislative proposals of the European Union should be included within this very function. After the accession of Poland to the European Union, the legislative competences have to be interpreted after all with due consideration of the new conditions for making law. As the regulations adopted by the organs of the European Union will be binding on the territory of Poland (partly directly, partly through the implementation statutes), the expression of opinions on legislative proposals of the Union becomes a signifi cant form of co-participation in the creation of European Union law. The delegating to the organs of the European Community of some legislative competences did not mean the disposal by national legislatures of their prerogative in this fi eld. These powers merely underwent modifi cation and are expressed in a different form. 5. Since the Senate is one of the legislative chambers, everything that is connected with making law or with infl uencing its content belongs to its constitutional competences — and this is independent of the differentiation between the competences of the Sejm and those of the Senate within the framework of legislative proceedings. The share of both chambers of Parliament in work on the shaping of the Polish position on the EU legislative proposals should, therefore, be identical.

10. The judgement of 27 April 2005, P 1/05 [The European arrest warrant]

Introduction: In the light of the Council Framework Decision (2002/584/JHA) of 13 June 2002 on the European arrest warrant and the procedure for surrendering persons between Member States the European Arrest Warrant (EAW) directed to a Member State of the European Union updates the obligation of this state to surrender the persons named in the warrant in order to conduct criminal proceedings against them or to execute the sentence of imprisonment or to take preventive measures on the territory of another Member State. In principle, the obligation to surrender persons on the basis of an EAW also concerns citizens of the state to which the warrant is directed. The judicial decision of the Constitutional Tribunal under discussion here concerned the statute implementing the provisions of the Framework Decision on the EAW in the Polish legal system (i.e. the appropriate provisions of the Code of Criminal Procedure). The constitutional problem was connected with the fact that, on the day of the issuing of this judgment, the extradition of a Polish citizen was absolutely prohibited in accordance with Article 55 paragraph 1 of the Constitution. The Constitutional Tribunal had, therefore, to answer the question whether “surrende- A Review of the Principal Reason for Selected Judical Decisions... 183 ring” a person on the basis of an EAW was identical to the “extradition” within the meaning of Article 55 of the Constitution. The Tribunal found that the admissibility of surrendering a Polish citizen on the basis of an EAW violated the aforementioned constitutional regulation. At the same time, the Constitutional Tribunal, on the basis of Article 190 paragraph 3 of the Constitution, postponed the loss of binding force of the aforementioned regulation for 18 months, suggesting in its justiﬁ cation the consideration of an appropriate amendment to the Constitution. Not long before the end of the period of postponement, i.e. on 8 September 2006, Parliament amended Article 55 of the Constitution to allow an exception to the prohibition on the extradition of Polish citizens. The amendment to the Constitution was accompanied by repassing of the provisions acknowledged as unconstitutional in this judgment. The proceedings in this case were conducted under the procedure provided for questions of law from a court.

Ruling: The possibility of surrendering a Polish citizen to another Member State of the European Union on the basis of a European Arrest Warrant violates the prohibition on the extradition of Polish citizens (Article 55 paragraph 1 of the Constitution in the wording before the amendment). The challenged provision will lose its binding force after the passing of 18 months from the publication of this judgment in the Journal of Laws (Dziennik Ustaw).

Principal reasons for the ruling: 1. The obligation to implement the Framework Decision of the European Union ensues from the obligation to respect international law (Article 9 of the Constitution). This does not mean, however, that each statute implementing European Union law is in accordance with the Constitution. Such statutes can be examined by the Constitutional Tribunal. 2. The obligation to interpret national law in a manner favourable to Community law has its limits. This refers to the situations in which the effect of such an interpretation would be a worsening of the situation of an individual, in particular the introduction or increasing of criminal responsibility. The surrendering of a Polish citizen on the basis of an EAW in order to conduct criminal proceedings in connection with an act which, according to Polish law, is not a crime leads to the worsening of the suspect’s situation. 3. Constitutional notions are of an autonomous nature. The meaning of terms used in statutes does not, therefore, determine the interpretation of constitutional provisions. 4. The surrender of a person prosecuted on the basis of an EAW could only be regarded as an measure different from extradition which is mentioned in Article 55 paragraph 1 of the Constitution, if it had an essence different from it. The sense of 184 The Sejm Review Third Special Issue / 2007

extradition is the surrender to a foreign state of a person in order to conduct criminal proceedings or to execute an adjudicated sentence. The surrender on the basis of an EAW is intended in particular, on the territory of another member state of the European Union, to conduct criminal proceedings or to execute an adjudicated sentence of imprisonment. It constitutes, therefore, a variety of extradition. 5. The prohibition on extradition expresses the right of a citizen of the Republic of Poland to be held criminally responsible before a Polish court. This prohibition is of an absolute nature and the right ensuing from it cannot be subject to any limitations. 6. Citizenship of the European Union, however it is connected with the obtaining of certain powers, cannot result in a lowering of the guaranteeing functions of the provisions of the Constitution concerning rights and freedoms. Furthermore, for as long as the Constitution links a defi ned complex of rights and obligations with the fact of possessing Polish citizenship, citizenship constitutes a signifi cant criterion for an assessment of the legal status of an individual. In consequence, without the appropriate change in the provisions of the Constitution, which links defi ned consequences with Polish citizenship, it is not possible to modify these consequences simply by way of interpretation. 7. The judicial decision of the Constitutional Tribunal stating the unconstitutionality of the challenged provision causes the loss of its binding force. In this case it is necessary, however, for the legislator to intervene. Taking into consideration after all the obligation to observe international law (Article 9 of the Constitution) and the obligations resulting from membership of the European Union, it is necessary to change the existing law in such a way as to enable the full implementation of the Framework Decision on the EAW. We cannot exclude the appropriate amendment of Article 55 paragraph 1 of the Constitution so that this provision can provide for an exception to the prohibition on the extradition of Polish citizens allowing their surrender on the basis of an EAW to other Member States of the European Union. For these reasons, the Tribunal has decided to postpone the time for the loss of the binding force of the challenged provision.

11. The judgement of 11 May 2005, K 18/04 [Poland’s accession to the European Union]

Introduction: The basis for the accession of Poland to the European Union was the Accession Treaty signed in Athens on 16 April 2003. The consent for the ratiﬁ cation of this Treaty by the President of the Republic of Poland was obtained in the course of a national referendum. Poland has been a member of the European Union since 1 May 2004. The initiators of proceedings in this case — three groups of Deputies to the Sejm (the lower chamber of Parliament) — claimed the non-conformity of such accession A Review of the Principal Reason for Selected Judical Decisions... 185 to the Constitution of the Republic of Poland, including to the principle of the sovereignty of the Nation and the supremacy of the Constitution. The subject of review was the accession to the European Union as a whole, and also some Treaty provisions concerning, among other things, the electoral rights of citizens of the European Union in local elections (Article 19 paragraph 1 of the Treaty establishing the European Community), elections to the European Parliament (Article 190 of the Treaty establishing the European Community), the principle of pre-judicial questions to the European Court of Justice (Article 234 of the Treaty establishing the European Community).

Ruling: The treaty concerning the accession of the Republic of Poland to the European Union (the Accession Treaty), in conjunction with some provisions of the Treaty establishing the European Community and the Treaty on the European Union, does not violate the Constitution of the Republic of Poland.

Principal reasons for the ruling: 1. The constitutional imperative for Poland to observe international law (Article 9) expresses the system-giver’s premise that on the territory of the Republic of Poland beside the norms of the national law there are also binding regulations created outside the system of Polish legislative organs. Community law is not, however, completely external in relation to the Polish State. The primary law of the European Community is made through the acceptance of treaties by all the member states (including Poland). In turn, the secondary law of the European Community is created with the participation of representatives of the governments of Member States (including Poland) in the Council of the European Union and of representatives of European citizens (including Polish citizens) in the European Parliament. 2. In accordance with Article 90 paragraph 1 of the Constitution, “The Republic of Poland may, by virtue of international agreements, delegate to an international organisation or international institution the competence of organs of State authority in relation to certain matters”. The accession treaty is such an agreement. The admissibility of “delegating competence” does not mean the possibility of authori- sing an international organisation to issue acts violating the Constitution. The Constitution remains “the supreme law of the Republic of Poland” in relation to all international agreements, including agreements about delegating competence. In particular in the discussed procedure there could not come about a delegating of competence to the extent that would cause Poland not to be able to function as a sovereign and democratic state. Furthermore, the limiting of the scope of delegating to “certain matters” means a prohibition on delegating: fi rstly, the entirety of the competence of a given organ; secondly, competence in the entirety of matters in a given fi eld; and thirdly, competence as to the essence of matters defi ning 186 The Sejm Review Third Special Issue / 2007

the management of a given organ of state authority. It is, therefore, necessary to have a precise defi nition of the fi elds and the scope of competences covered by the delegating. 3. The appearance cannot be excluded of non-conformity between the norms of the Constitution and the norms of Community law, which non-conformity cannot be eliminated by the application of interpretation. Such a discrepancy cannot be solved by an acknowledgement of the supremacy of Community norms in relation to constitutional norms. Neither could it lead to the loss of the binding force of constitutional norms and to their replacement by Community norms or to the limiting of the scope of the application of constitutional norms to an area not covered by Community regulations. In such a situation, it would belong to the Polish legislator to undertake a decision either about amending the Constitution or about causing changes in Community regulations, or — as a last resort — about leaving the European Union. 4. Establishment treaties are international agreements. The sovereign parties to these agreements are Member States. They independently and in accordance with their constitutions ratify the treaties and have at their disposal the right to terminate them on conditions regulated by the Vienna Convention on the Law of Treaties of 23 May 1969. 5. It is an unjustifi ed accusation that as a result of the ratifi cation of the accession treaty Poland was included in the structures of a “supra-national” organisation, a form unknown to the Polish Constitution. There are after all insuffi cient legal premises for differentiating between “supra-national” and “international” organisations. In particular, the treaties establishing the European Community and the European Union, together with secondary legal acts, do not make use of the notion “supra-national organisation”. 6. The norms of the Constitution regulating rights and freedoms indicate the minimal and uncrossable threshold which cannot be lowered as a result of the adoption of Community regulations. In this fi eld the Constitution performs the role of guarantor. An interpretation that is “favourable to European law” has its limits. It cannot after all lead to results not in accordance with the Constitution. 7. Each international organisation is a secondary subject whose functioning is dependent on the will of member states. The Member States of the European Union, therefore, retain the right to assess whether the organs managing the European Community are acting within the frameworks of the delegated competences and the principles of subsidiarity and proportionality. Regulations passed in the contravention of these frameworks are not covered by the principle of the primacy of Community law. 8. The assessment of the judicial decisions of whichever organ of jurisdiction in the European Community remains beyond the cognition of the Polish Constitutional Tribunal, as defi ned in Article 188 of the Constitution. This concerns both particular judicial decisions of the European Court of Justice and the “permanent line of jurisprudence” of this Court. A Review of the Principal Reason for Selected Judical Decisions... 187

9. The procedure of prejudicial questions (Article 234 of the Treaty establishing the European Community) applies only when there ensues from the Constitution or international agreements the obligation of the application of the provisions of Community law by courts or tribunals in the Republic of Poland. The obligation to lodge a prejudicial question constitutes, therefore, a consequence of the obligations of the Polish State as a Member State of the European Union. The law which the prejudicial question concerns has in its entirety a Community gene- sis. In acceding to the European Union, the Republic of Poland accepted the division of functions within the framework of the systems of the organs of the European Community and the European Union. An element of this division remains the ascribing to the European Court of Justice of the interpretation of Community law and of care for its homogeneity. 10. The European Court of Justice is the main — but not the only — depositary of powers in relation the application of treaties in the legal system of the European Community and the European Union. The interpretation of Community law by the European Court of Justice should ﬁ t into the scope of the functions and competences delegated by Member States to the Communities, correlate with the principle of subsidiarity and be based on mutual loyalty between institutions of the European Community/Union and Member States. This premise gene rates, on the part of the European Court of Justice, the obligation to act favourably towards the national legal systems and, on the part of the Member States, the obligation to respect Community norms. 11. If the Polish Constitutional Tribunal were to decide to lodge a prejudicial question, it would do so ﬁ rstly within the framework of the realisation of its own adjudication competences (Article 188 of the Constitution) and, secondly, only in those cases in which, in accordance with the Constitution, in adjudicating it would do so with the application of Community law. 12. The matter in adjudication by the Polish Constitutional Tribunal in the case of the conformity of statutes and international agreements to the Constitution is different from the matter in prejudicial decisions. These are after all two different things – establishing the binding force and the meaning of Community law and testing the conformity of statutes and international agreements to the Constitution. In consequence, the actions carried out in both the aforementioned scopes do not exclude or collide with each other. 13. It is not a function of the Polish Constitution to regulate the election of organs of the European Community/Union, being a matter of the international agreements constituting these organisations. This does not stand in the way of regulating in the Republic of Poland — by way of an ordinary statute — the course of elections to the European Parliament taking place within the territory of Poland. 14. The granting to European Union citizens not possessing Polish citizenship of electoral rights in local elections (Article 19 paragraph 1 of the Treaty establi- 188 The Sejm Review Third Special Issue / 2007

shing the European Community) does not threaten the Republic of Poland as the common good of all citizens (Article 1 of the Constitution). In accordance after all with Article 16 paragraph 1 of the Constitution, the self-governing community is made up of “the entirety of the inhabitants” of the units of local self-government. Thus it is the place of residence — and not citizenship — that conditions the membership of the self-governing community. Furthermore, the public authority, in the execution of which participates the self-governing community, has an exclusively local nature. Within the territory of the local self- -government there cannot be undertaken decisions affecting the whole state. 15. The provision of Article 19 paragraph 1 of the Treaty establishing the European Community does not violate the right of Polish citizens to elect, among others, representatives to the organs of local self-government (Article 62 paragraph 1 of the Constitution). It is not true after all that all the rights granted in the Constitution to Polish citizens are characterised by exclusivity, understood in the sense that if a given right was granted to a Polish citizen it cannot then be granted to citizens of other states. 16. As speciﬁ ed in the Constitution of the Republic of Poland, the conditions of the admissibility of limits on constitutional freedoms and rights (Article 31 paragraph 3) are addressed to the Polish legislator. It is not, therefore, justiﬁ ed to transfer directly these requirements onto the area of Community lawmaking. This does not, however, remove the possibility of assessing legislation, including Community regulations, to the extent in which they are binding on the territory of Poland as components of the Polish legal order — from the point of view of respecting the aforementioned requirements.

12. The judgement of 12 December 2005, K 32/04 [The limits of the operational activity of the police and the protection of the privacy and information autonomy of the individual]

Introduction: The subject of review in this case was the statutory provisions regulating police surveillance, i.e. operational monitoring, conducted secretly and consisting in the application of such measures as tapping or the monitoring of correspondence and packages. In the opinion of the initiator of the proceedings in this case (the Commissioner for Civil Rights Protection), the challenged provisions enabled an excessively deep interference in the sphere of the privacy and information autonomy of the individual, given the standards of a democratic state. The arguments of the Commissioner concentrated mainly on the too limited participation, in his opinion, of the courts in the operational and investigative procedures and also on the lack of clarity of the provisions. A Review of the Principal Reason for Selected Judical Decisions... 189

Ruling: 1. The admissibility of refraining, with the consent of the court, from destroying materials gathered during the course of the surveillance, to which the court had not agreed, is not in accordance with the right to demand a disclaimer and the deletion of information that is untrue, incomplete or obtained illegally (Article 51 paragraph 4 of the Constitution). 2. The provision regulating the making available to the person under surveillance of information gathered during the course of the surveillance — in the scope in which notiﬁ cation of the person under surveillance about this is foreseen after the end of the surveillance — is in accordance with the right to trial (Article 45 paragraph 1 and Article 77 paragraph 2 of the Constitution) and the protection of the privacy of communication (Article 49 of the Constitution). 3. The lack of the necessity of obtaining the consent of the court for surveillance in the case of the consent of the sender or recipient of information is not in accordance with the protection of the privacy of communication (Article 49 of the Constitution). 4. The open (non-exhaustive) nature of the catalogue of information that may be gathered by way of surveillance is not in accordance with the prohibition on gathering any other than essential information about citizens (Article 51 paragraph 2 of the Constitution). 5. The admissibility of storing information gathered in the course of surveillance in order to detect a crime after the acquittal of the persons suspected or after the dis- continuance of legal proceedings against such persons is in accordance with the prohibition on gathering any other than essential information about citizens (Article 51 paragraph 2 of the Constitution).

Principal reasons for the ruling: 1. Police operational and investigative activities are, naturally, secret, also with respect to persons under surveillance and are conducted in conditions giving the police a wide margin of discretion, with limited guarantees for the rights of the person under surveillance and also limited external control, including by courts. This ensues from the fact that the transparency of operational activities would rule out their effectiveness. This kind of police activity is vital in a modern state. The state is after all obliged to ensure its citizens safety, particularly in the face of the threats of terror- ism and organised crime. Surveillance activities, however, ought to be accompanied by: the appropriate material and legal guarantees, i.e. a deﬁ nition of the limits of interference by the authorities and of the sphere of the privacy of the individual; procedural guarantees, i.e. the necessity of reporting the surveillance to an external organ and the authorisation of the surveillance by that organ; the necessity of making available to the interested party (at least within a certain scope and from a certain moment) information about the monitoring and its results; the existence of means of control in case of excesses on the part of the organ conducting the surveillance. 190 The Sejm Review Third Special Issue / 2007

2. The constitutionally protected information autonomy of the individual consists in the protection of every item of personal information and on making the making available of such information dependent on the consent of the interested party. 3. The limits of police surveillance are designated by the provisions of the Constitution concerning the protection of the privacy and information autonomy of the individual. In consequence, the regulations concerning surveillance should fulfi l the requirements of proportionality (Article 31 paragraph 3 of the Constitution). In particular, the prohibition on excessive interference in the constitutional rights and freedoms demands that the measures applied be essential in the sense that the protection of defi ned values could not be attained by the application of measures less onerous for the individual. 4. All the constitutional rights and freedoms of the individual arise from the dignity of the human being. In the case of privacy, this connection is a particular one. The maintenance of dignity demands after all respect for the purely personal sphere of every person, where it is not exposed to the necessity of “being with others” or “sharing with others” one’s experiences or sensations of an intimate nature. The sphere of privacy is constructed from various circles with differing degrees of constitutional protection. For example, respect for the privacy of the home sets higher demands for the legality of the interference of the authorities by the use of tapping than interfering in the privacy of correspondence. 5. In a democratic state governed by the rule of law, materials gathered in the course of surveillance should be protected by secrecy — to the time of their possibly being made available in a criminal trial. It is inadmissible in particular to make use of information gathered during surveillance dictated by political interests. 6. In a democratic state governed by the rule of law, it is not necessary to store information obtained during surveillance on account of its potential usefulness. Information can be utilised only in connection with concrete proceedings, conducted on account of state security and public order. 7. The provision of Article 51 paragraph 4 of the Constitution enshrines the subjective right to demand a disclaimer and the deletion of information that was, among other things, “acquired by means contrary to statute”. This provision places, therefore, emphasis on the manner in which the materials were gathered. It is not in accordance with this provision to have the possibility of the court giving retro- spective consent to refrain from destroying materials gathered during the surveillance, for the conduct of which the consent of the court had not been obtained. 8. The provision allowing for the conducting of operational monitoring with the consent of the sender or recipient of the information, but without the consent of the court, is not accompanied by suffi cient procedural guarantees. It is after all inadmissible to equate in their effects a guarantee coming from the control of the court over the initiation of the surveillance with the consent of the sender (recipient) of the information. The guaranteeing nature of external control lies in the independence and impartiality of the organ exercising the control. Meanwhile, the A Review of the Principal Reason for Selected Judical Decisions... 191

consent of one of the parties to the transfer comes from a person personally interested in the course of the control. Moreover, consent constitutes a justiﬁ cation of the interference in the sphere of the person expressing consent. It is a misunder- standing to call on such “consent” in the case of interference in the sphere of another person. 9. It ensues from the constitutional right of the individual to access to documents concerning that person (Article 51 paragraph 3 of the Constitution) that after the cessation of the aim of the surveillance the person under surveillance should have the possibility of inspecting the materials gathered about that person.

13. The judgement of 18 January 2006, K 21/05 [Making the admissibility of assembly dependent on the obtaining of a permit]

Introduction: The subject of review in this case was the provision making the admissibility of assembly on a public road (and also sporting and other events which cause difﬁ culties with trafﬁ c movement or require the use of roads in a particular way) dependent on the obtaining of a permit from an organ of public administration. This limitation does not concern processions, pilgrimages and other events of a religious nature and also funeral corteges. The appellant (the Commissioner for Civil Rights Protection) indicated that the aforementioned provision violated the constitutional freedom of assembly (Article 57 of the Constitution). The background to these proceedings was formed by the cases in which local authorities several times refused to give permission for some assemblies to take place (this concerned, for example, the “March for Equality” in Warsaw).

Ruling: Making the admissibility of assembly on a public road dependent on the obtaining of a permit violates the freedom of assembly (Article 57 of the Constitution).

Principal reasons for the ruling: 1. Freedom of assembly concerns assemblies of a peaceful nature, taking place in both open and enclosed spaces. This freedom is functionally connected with freedom to express opinions and freedom of association. An assembly is after all a specifi c method of expressing opinions, transferring information and infl uencing the attitudes of other persons. It is a form of participation in public debate and, in consequence, in the exercise of authority in a democratic society. Freedom of assembly is a condition of democracy, enabling the infl uence of public opinion on the political process. Assemblies are, therefore, an element in the process of direct democracy. Furthermore, freedom of assembly, by way of the protection of 192 The Sejm Review Third Special Issue / 2007

minorities, raises the level of the legitimisation of the decisions of public authorities. Freedom of assembly also performs the role of an early warning mechanism, showing the organs of authority and public opinion potential and existing sources of tension, enabling an early correction of policy. 2. Freedom of assembly includes the possibility of the development of personality, together with others — also when the understanding of the development of personality does not suit the attitudes of other subjects of public life or the current wielders of public authority. Public authorities are obliged to guarantee the realisation of this freedom, irrespective of their professed party or political convictions. Freedom of assembly is after all a constitutional value, and not a value defi ned by the current political majority. 3. It is the obligation of public authorities not only to remove obstacles to the exercise of the freedom of assembly and to refrain from unjustifi ed interference in the exercise of this freedom, but also to undertake positive actions, intended to make this freedom real. In particular, public authorities have the obligation to ensure protection to those taking part in the demonstration — without regard to the controversial nature of the attitudes presented. The risk of a counter-demonstration, even with the use of violence, is no justifi cation for the limitation of freedom of assembly, even when there exists a real danger that the assembly will cause a violation of public order through events over which its organisers have no infl uence. To adopt a different viewpoint would mean making freedom of assembly dependent on the reactions of opponents and would constitute an incentive for aggres- sive public actions. In practice, the condition for the taking place of an assembly would be the universal acceptance of the viewpoints expressed. 4. The limiting of constitutional freedoms and rights is admissible, for example, on account of “public morals” (Article 31 paragraph 3 of the Constitution). This notion does not mean, however, the moral convictions of those wielding public authority. It is, therefore, inadmissible to limit freedom of assembly because of differences in world outlook or of those connected with the system of values represented by the current political majority. 5. It was a mistake on the part of the legislator to equate the exploitation of public roads in the case, on the one hand, of events of a sporting nature and, on the other hand, of assemblies. After all, what is admissible in the case of the former (in principle, politically neutral) is not admissible in the case of the latter (being in essence political events). The legislator ought after all to have taken into consideration the constitutional difference of assemblies. 6. It is unjustifi ed to exclude the obligation of obtaining a permit solely when this concerns events of a religious nature, to the exclusion of assemblies. There are after all no grounds for differentiating between phenomena having a common characteristic, i.e. being an expression of the realisation of constitutional freedoms: on the one hand, freedom of conscience and religion, and, on the other hand, freedom of assembly. A Review of the Principal Reason for Selected Judical Decisions... 193

14. The judgement of 22 September 2006, U 4/06 [The scope of activity of the so-called investigative committee into banks]

Introduction: In accordance with article 111 of the Constitution of the Republic of Poland, the Sejm (the lower chamber of Parliament) can appoint “an investigative committee to examine a particular matter”. The procedure for the activity of the investigative committee is defi ned by statute. The appointment of the committee takes place on the basis of a resolution of the Sejm. The subject of review in this case was the resolution appointing the investigative commission “to examine the decisions concerning the capital and ownership transformations in the banking sector and the activities of banking supervision authorities in the period from 4 June 1989 to 19 March 2006” (the so-called investigative committee into banks). The initiators of the proceedings in this case (a group of Deputies to the Sejm) indicated, among other things, the imprecision of the provisions defi ning the scope of activity of the committee. In their opinion, the Constitution allows for the appointment of an investigative committee only to examine particularly defi ned situations and not the complex of events making up the transformation in the banking sector over a period of almost 17 years. The Deputies also pointed out the threat to the independence of the National Bank of Poland, which ensues from the appointment of the committee, and also the danger of the committee with such shaped powers en- croaching into the independence of the organs of the administration of justice.

Ruling: The majority of the provisions deﬁ ning the scope of the activity of the so-called investigate committee into banks violates the provisions of the Constitution concerning: the principles of a state governed by the rule of law (Article 2), the legalism of the activity of the public authorities (Article 7), the scope of the Sejm’s control (Article 95 paragraph 2), the power of the Sejm to appoint an investigative committee (Article 111 paragraph 1) and the status of the National Bank of Poland (Article 227).

Principal reasons for the ruling: 1. The Constitution of the Republic of Poland of 2 April 1997 rejects the supremacy of any of the authorities. The socialist constitutionalism, according to which “the supreme organ of state authority is the Sejm”, is no longer binding. Currently the Sejm is one of the organs of State authority. This organ can do “a lot” but it cannot do “everything”. The limits of what it “can do” are deﬁ ned by the Constitution and by statutes. 2. The Sejm’s control means the right of the Sejm to obtain information about the activities of deﬁ ned public institutions and to express its assessment of these activities. The control serves the gathering of information vital to the realisation of the legislative function and the execution of the political responsibility of the 194 The Sejm Review Third Special Issue / 2007

government. Furthermore, the Sejm’s control serves the informing of society as to the functioning of the State. In the light of Article 95 paragraph 2 of the Constitution, this control covers the activities of the Council of Ministers and the organs of government administration. 3. The investigative commission is one of the instruments of the Sejm’s control. The matter constituting the subject of the committee examination should, therefore, fi t into the scope of the Sejm’s control. The committee may, therefore, examine the activities of public organs and institutions, and those of private persons only to the extent that they execute tasks within the area of public administration or benefi t from State aid. Furthermore, it is inadmissible to form a committee to examine matters to whose control institutions of public authority are not at all entitled or matters reserved to the competence of other organs of public authority. 4. The investigative committee has at its disposal instruments of criminal proceedings. It may use them in the scope defi ned in the resolution on its appointment. In consequence, indeterminateness of the resolution deprives third parties of their certainty as to their rights and obligations, which violates the principle of legalism (Article 7 of the Constitution). Furthermore, the application of the provisions containing inde- terminate notions demands the existence of appropriate institutional and procedural guarantees, which the proceedings before the commission do not fulfi l. 5. The set of circumstances denoting the “matter” which the investigative committee is to examine should be defi ned in the resolution on the appointment of the committee in a manner which is precise and comprehensible for all subjects potentially obliged to appear before the committee or to present information. Only then after all can there be established the factual state in the given matter, which constitutes the aim of appointing the committee. Furthermore, the task of the investigative committee should be to “examine” the matter, as opposed to actions consisting in a permanent “examination” of some issue. It is, therefore, inadmissible to defi ne a matter with the aid of parameters, which from the start make its exa mination impossible. What is more, it is inadmissible for the Sejm to delegate in favour of the investigative committee its competence to independently specify more precisely the scope of its activity. The appropriate organ for the determination of the matter which is to be examined by the committee is after all the Sejm itself. This is connected with the premise that the defi ning of the scope of activity of the investigative committee should be undertaken with due observance of the principle of political pluralism, the representativeness of the decision, openness and with due regard for the rights of the parliamentary minority. 6. The challenged resolution entrusts the investigative committee with implementation a multi-layered programme of examining the banking system. The resolution does not indicate a “particular matter” but refers to long-lasting processes of an economic, legal, administrative and political nature. Furthermore, the defi nition of the temporal scope of interest of the banking committee cannot be rationally explained from the point of view of the subject-matter of its activity. A Review of the Principal Reason for Selected Judical Decisions... 195

7. The Constitution does not formulate directly the principle of the independence of the National Bank of Poland. However, this rule ensues implicitly from Article 227 of the Constitution, defi ning the status of this Bank. The realisation of the tasks entrusted to the Polish National Bank (including formulation and pursuit of monetary policy and responsibility for the value of the Polish curren- cy) demands after all independence. Moreover, the National Bank of Poland, its President and other organs are not members of the Council of Ministers or of government administration and, therefore, they are not politically answerable to the Sejm. For all of these reasons, the Sejm is not authorised to appoint an investigative committee to examine the activity of the National Bank of Poland and its organs. 8. It would be inadmissible to subject the President of the Republic of Poland to the control of the investigation committee. 9. The use of the investigative committee to accomplish aims that could be attained with the use of measures of another kind (in particular by the use of “ordinary” Sejm committees) violates the principle of the rationality and proportionality of the actions of public authorities, ensuing from the formula of a democratic state governed by the rule of law (Article 2 of the Constitution). 10. The challenged resolution aims to extend the scope of the Sejm’s control to include all the behaviour of private subjects. This would mean that any random matter, arbitrarily indicated by the Sejm as a subject of the activity of an investigative committee, would enable the execution of the Sejm’s control over private subjects, realised with measures appropriate for the conduct of the investigation but without recourse to the law. Differentiation must be made here between the control of ministers, from the point of view of a possible unjustifi ed infl uence on their activity from the side of private subjects, and the control of these subjects. The summoning by the investigative committee of such subjects is admissible in the situation where the subject of control is the activity of individuals subject to the Sejm’s control. 11. The aim of criminal proceedings is to decide about the criminal responsibility of a given person. The aim of proceedings before an investigative committee is, meanwhile, to examine the actions of an organ of public authority. The subject of the examination by an investigative commission is not the same, therefore, as the subject of the examination by a court. The activity of an investigative committee is not, therefore, the execution of the administration of justice. In consequence, the Constitution does not exclude the possibility of an investigative commission examining the circumstances being the subject of examination in judicial proceedings. 196 The Sejm Review Third Special Issue / 2007

15. The judgement of 30 October 2006, P 10/06 [The punishability of defamation]

Introduction: The subject of review in this case, initiated by a question of law from a court, was the provisions of the Criminal Code establishing the crime of defamation, consisting in the accusation of another person “of such behaviour or attribute which might de- mean them in public or lead to a loss of the conﬁ dence necessary for a given post, profession or type of activity”. In the opinion of the court asking the question, a sufﬁ cient protection of the privacy, honour and good reputation of persons can be realised on the basis of civil proceedings, in particular by way of the protection of personal goods and chattels. In consequence, in the opinion of this court, the imposition of penal sanctions for defamation is not necessary in a democratic state, and thus constitutes a disproportional limitation of the constitutional freedom of expression and the principle of the protection of the freedom of the press and other means of social communication.

Ruling: The punishability of defamation does not violate the freedom of expression (Article 54 paragraph 1 of the Constitution) or the freedom of the press and other means of social communication (Article 14 of the Constitution). Three judges of the Constitutional Tribunal ﬁ led dissenting opinions.

Principal reasons for the ruling: 1. Freedom of expression (Article 54 item 1 of the Constitution) is one of the foundations of a democratic society, a condition of its development and of the self-realisation of individuals. This freedom cannot be limited to information and attitudes which are received favourably or seen as harmless or neutral. The role of journalists is to propagate information and ideas concerning matters being the subject of public interest and having public signiﬁ cance. This remains in close connection with the right of the public to receive information. A particular manifestation of freedom of expression, raised by the authors of the constitution to the rank of a systemic principle, is the freedom of the press and other means of social communication (Article 14 of the Constitution). 2. Freedom of expression does not have an absolute nature and may be subject to limitations in accordance with the principle of proportionality (Article 31 paragraph 3 of the Constitution). 3. The protection of honour and good reputation (Article 47 of the Constitution) is connected with the protection of human dignity (Article 30 of the Constitution). The stronger the connection between a given right or freedom and the essence of human dignity, the better it should be protected by public authorities. Furthermore, honour, good reputation and private and family life are — in contrast to freedom A Review of the Principal Reason for Selected Judical Decisions... 197

of expression — protected by the so-called non-derogable rights, i.e. those which cannot be limited even in times of martial law or a state of emergency (Article 233 paragraph 1 of the Constitution). 4. For the above reasons, it must be acknowledged that honour, good reputation and privacy deserve priority of protection over freedom of expression. 5. In the light of the constitutional principle of proportionality (Article 31 paragraph 1 of the Constitution) it is inadmissible to limit freedoms or rights if the same effect can be achieved with the help of less restrictive measures. 6. In the current conditions of the functioning of the administration of justice, the protection of personal goods on the basis of civil law is not an equally effective protection of honour and good reputation as the inclusion of defamation in the system of protection by criminal law. What also speaks in favour of the covering of this issue by the regulations of criminal law is its connection with human dignity. Interference in the sphere of dignity, strictly connected with the notion of a common good (Article 1 of the Constitution), is the violation of the foundations of State order. In consequence, it ceases to be an individual matter for the interested parties. The criminalisation of defamation means that the legislator regards this action as socially harmful and, therefore, as a violation of the common good, and not just as a “simple” violation of the subjective rights of other persons. The introduction of a penal sanction is, therefore, an expression of social condemna- tion for the perpetrator of the violation of the law — in contrast to a prohibition connected with sanctions of a simply private legal nature.

16. The procedural decision of 19 December 2006, P 37/05 [The inadmissibility of pronouncing judgment by the Constitutional Tribunal on the conformity of national law to Community law under the procedure of a question of law from a court]

Introduction: In accordance with Article 193 of the Constitution, each court — if it harbours doubts as to the conformity of a norm whose application it is considering in connection with a case being heard to a norm hierarchically superior — can refer a so-called question of law in this respect to the Constitutional Tribunal. The requirement for the admissibility for a substantive consideration of the question of law is the dependence between the answer to the question (i.e. a possible adjudication by the Constitutional Tribunal) and the solving of a particular case being heard by the court which asked the question. In consequence, if the Tribunal reaches the conclusion that a review of constitutionality is not a condition for the proper resolution of a particular case, it is obliged to discontinue the proceedings on account of the inadmissibility of pronouncing judgment. 198 The Sejm Review Third Special Issue / 2007

The proceedings in this case, concerning the excise duty on cars imported from Member States of the European Union, were initiated by a question of law from an administrative court. It concerned the conformity of a provision of the Polish statute on excise duty to the regulation of a primary Community law (a provision of the Treaty establishing the European Community connected with the free fl ow of goods). The fundamental question which the Constitutional Tribunal had to resolve was connected with whether the answer to the question of law (i.e. a possible judgment on the non-conformity of a national law to a Community norm) was necessary for the resolution of the case pending before the court which had presented the question. On the one hand after all, it falls within the competence of the Constitutional Tribunal to adjudicate about the conformity of statutes to ratifi ed international agreements, whose ratifi cation required consent granted by statute (Article 188(2) of the Constitution), and the Treaty establishing the European Community is such an agreement. On the other hand, the above-mentioned agreement has precedence over statute, if such a statute cannot be reconciled with the agreement (Article 91 paragraph 2 of the Constitution). Every court may, therefore, when adjudicating in a particular case, independently refuse to apply a statute which does not conform to an international agreement and apply directly the provision of this agreement. A similar priority is enjoyed, in the light of Article 91 paragraph 3 of the Constitution, by “a law established by an international organisation” (this in particular refers to secondary Community law).

Ruling: The Tribunal discontinued the proceedings in the case on account of the inadmissibility of pronouncing judgment on the conformity of national law to Community under the procedure of a question of law from a court.

Principal reasons for the ruling: 1. The basic problem in this case resides in the sphere of the application and not of the binding force of the law. In the light of the constitutional principle of the priority of Community law over statutory norms (Article 91 paragraphs 2 and 3 of the Constitution), if there are no doubts as to the content of the norms of Community law, the court should refuse to apply the provision of the statute not in conformity to this norm and apply directly the provision of Community law. The court does not adjudicate in this case on repealing the norm of national law but only refuses to apply it in the scope in which it is obliged to give priority to the norm of Community law. The legal act in question is not affected by invalidity, it is still binding and is applied in the scope not covered by the norms of Community law. If, however, it is not possible to apply directly the norms of Community law, the court should seek the possibility of an interpretation of national law in accordance with Community law. In the case of the appearance of interpretative doubts in re- A Review of the Principal Reason for Selected Judical Decisions... 199

lation to Community law, the court should turn to the European Court of Justice with a prejudicial question. 2. In accordance with Article 193 of the Constitution, the referring to the Constitutional Tribunal of a question of law is admissible only when the resolution of the case being heard before the court depends on the answer to the question of law. The acknowledgement that, in the case of a confl ict between a norm of national law and a norm of Community law, the priority of application is due to the latter leads to the conclusion that the dependency required by the provision of the Constitution does not appear. About the resolution of such a collision the court applying the law decides independently or, in the case of any doubts being har- boured as to the content of the Community law, with the help of the European Court of Justice under the procedure of a prejudicial question. 3. The use by the Constitutional Tribunal of the competence to examine the conformity of a statute to international agreements, whose ratifi cation required prior consent granted by statute (Article 188(2) of the Constitution), can be justifi ed only when there is a lack of other methods of removing the created collision (e.g. if the norm of the international agreement does not have a directly applicable nature) or if there speaks in favour of it an important regard on the certainty of the law (e.g. if the scope of the binding force of the international norm is exactly the same as the scope of the binding force of the statutory norm). In principle, therefore, preference in resolving confl icts between national and international norms should be given on the level of the application of the law. 4. In summing up the above considerations, it must be emphasised that there is no need to turn to the Constitutional Tribunal with a question of law concerning the conformity of national law to Community law — not even in the situation where the court intends to refuse to apply national law. The problem of the resolution of the confl ict between Community law and national statutes remains, in principle, beyond the scope of interest of the Constitutional Tribunal. It is the courts (the Supreme Court, administrative courts and common courts) that should decide whether a statute collides with Community law and the European Court of Justice should decide in a preliminary judicial decision about the meaning of the norms of Community law.

Selection and preparation: Marcin Wiącek 200 The Sejm Review Third Special Issue / 2007 201 ANNEX

ALPHABETICAL LIST (by author’s name) of English summaries of articles contained in Sejm Review (“Przegląd Sejmowy”) from the beginning of 2003 until 3rd No. 2007

BANASZAK BOGUSŁAW, The Principle of Incompatibility of the Parliamentary Mandate under Polish Law, No. 2(55)2003, p. 23 BANASZAK BOGUSŁAW, The Executive in Poland: The Present Situation and de lege fundamentali ferenda Remarks, No. 3(74)2006, p. 27 BANASZAK BOGUSŁAW, The Concept of Investigative Committees, No. 5(76)2006, p. 24 BARCZ JAN, Challenges Posed for Polish Sejm by Country’s Membership of EU, No. 2(61)2004, p. 76 BISKUP PRZEMYSŁAW, Institution of Referendum in the British Constitutional Practice, No. 1(78)2007, p. 106 BOJAŃCZYK ANTONI, On Controversial Issues Concerning the Scope of Disciplinary Responsibility of the Judges of the Constitutional Tribunal, No. 3(80)2007, p. 68 BOŻEK MICHAŁ, The Issue of the Election of the President of the Federal Republic of Germany, No. 6(65)2004, p. 102 BOŻEK MICHAŁ, The Scope of Countersignature of Ofﬁ cial Acts of the President of the Federal Republic of Germany, No. 6(71)2005, p. 99 BOŻYK STANISŁAW, The Parliamentary Opposition as a Form of Political Opposition, No. 5(64)2004, p. 45 202 The Sejm Review Third Special Issue / 2007

CHORĄŻEWSKA ANNA, President of the Republic as a Balancing Factor. Presidential Arbitration, No. 6(71)2005, p. 82 CIAPAŁA JERZY, The Issue of Legal Responsibility of the President of the Republic of Poland, No. 6(71)2005, p. 120 COZZOLI VITO, Evolution of the Role of Parliamentary Groups in the Chamber of Deputies in Italy, No. 3(62)2004, p. 102 CZAJOWSKI JACEK, The Senate under the Constitution of 23 April 1935, No. 2(67)2005, p. 77 CZEKAJ-DANCEWICZ ALEKSANDRA, Relations between the Danish Parliament and the Government in Relation to European Affairs, No. 3(74)2006, p. 79 DERLATKA MARTA, Evolution of the Constitutional Complaint in the German Legal Order, No. 1(72)2006, p. 96 DOBROWOLSKI MAREK, The Concept of a “Statute” in the Legislative Process, No. 2(55)2003, p. 44 DOBROWOLSKI MAREK, Constitutionality of the Accession Treaty in the Light of the Jurisprudence of the Constitutional Tribunal Concerning a European Arrest Warrant, No. 6(77)2006, p. 88 DOBROWOLSKI MAREK, vide LIS-STARANOWICZ DOROTA, Basic Principles... FLORCZAK MONIKA, Legal Consequences of Postponement by the Constitutional Tribunal of the Date for the End of the Binding Force of a Normative Act, No. 2(55)2003, p. 61 GALSTER JAN, Immunity of a Member of European Parliament, No. 6(77)2006, p. 31 GÓRECKI DARIUSZ, Constitutional Accountability of President of the Republic of Lithuania, Mr. Rolandas Paksas, No. 4(63)2004, p. 53 GÓRECKI DARIUSZ, The Sejm under the Constitutional Law of 23 April 1935, No. 2(67)2005, p. 97 GÓRKA MACIEJ, Position of European Parliament and National Parliaments in EU’s Legislative Procedures, No. 2(61)2004, p. 93 GRAJEWSKI JAN, Statutory Conditions and Formal Requirements Related to Preliminary Motion for Bringing Speciﬁ ed Persons to Constitutional Accountability before the Tribunal of State, No. 1 (54)2003, p. 24 GRAJEWSKI KRZYSZTOF, Special Employee Rights of Deputies and Senators, No. 1 (66)2005, p. 42 GRANAT MIROSŁAW, The Constitutional Judiciary in the Countries of Central and Eastern Europe from the Perspective of the Kelsenian Model of Constitutional Review, No. 1(54)2003, p. 56 GRZYBOWSKI MARIAN, The Council of Ministers, the Government Administration and Poland’s Accession to the EU (Selected Constitutional Problems), No. 3(68)2005, p. 19 HACZKOWSKA MONIKA, The Principle of Direct Application of the Constitution in Adjudicative Activity of Courts, No. 1(66)2005, p. 73 Alphabetical list (by author’s name) of English summaries of articles contained in “Przegląd Sejmowy” 203

HACZKOWSKA MONIKA, Legislative Lawlessness as the Manifestation of Harm in the Meaning of Article 77(1) of Poland’s Constitution, No. 3 (68)2005, p. 86 HAMBURA STEFAN, Charter of Fundamental Rights of the European Union, No. 2(61)2004, p. 104 HOLLÄNDER PAVEL, Complementing the Constitution with the Jurisprudence of the Constitutional Court, No. 6(65)2004, p. 26 JASTRZĘBSKI JACEK, A Free Mandate versus a Bill of Exchange, No. 2(79)2007, p. 85 KIEROŃCZYK PRZEMYSŁAW, The State without Parliament: Some Remarks on the History of Constitutionalism in the Inter-War Lithuania, No. 4 (57)2003, p. 97 KIEROŃCZYK PRZEMYSŁAW, The Parliament of the Latvian Republic, No. 5 (70)2005, p. 101 KIJOWSKI MACIEJ, Legislative Proceedings in Relation to Ratifi cation Bills: Comments on Article 89 of the Constitution, No. 4 (57)2003, p. 30 KOKSANOWICZ GRZEGORZ, The legal Position of the Marshal of the Sejm in the System of Government in the Period of the 2nd Republic, No. 2(55)2003, p. 89 KORNOBIS-ROMANOWSKA DAGMARA, Legal Aspects of Application of the Framework Decision on the European Arrest Warrant in the Polish Legal Order, No. 4(75)2006, p. 99 KOSIKOWSKI CEZARY, Budget Defi cit and Public Debt from the Point of View of Citizens’ Financial Rights and Obligations under Law, No. 3(56)2003, p. 37 KRÓLIKOWSKI MICHAŁ, European Arrest Warrant and the Problem of Sovereignty, No. 6(77)2006, p. 71 KRUK MARIA, Comments on the Draft Treaty Establishing a Constitution for Europe (from the Standpoint of Constitutional Law), No. 2(61)2004, p. 59 KRYSZEŃ GRZEGORZ, Compulsory Voting, No. 3(62)2004, p. 74 KRYSZEŃ GRZEGORZ, Electoral Standards to be Used in Parliamentary Election Campaigning, No. 2(79)2007, p. 50 KRZYŻEWSKI JANUSZ ARTUR, Money as a Category of Constitutional Law, No. 6(59)2003, p. 17 KUBUJ KATARZYNA, The Audit Powers of the Supreme Chamber of Control in Relation to Courts, No. 1(78)2007, p. 34 KULESZA WŁADYSŁAW T., The Constitutional Act of 23 April 1935, No. 2(67)2005, p. 48 KULESZA WŁADYSŁAW T., The August 1926 Amendment, No. 4(75)2006, p. 48 KWIECIEŃ ROMAN, Legal Character and Signifi cance of the Repatriation Agreements of 9 and 22 September 1944, No. 4(69)2005, p. 21 LESZCZYŃSKA KRYSTYNA, The Procedure for Work of the Council of Ministers in 1989–2001, No. 1(72)2006, p. 42 204 The Sejm Review Third Special Issue / 2007

LIS-STARANOWICZ DOROTA, Proceedings Concerning Accountability of Sejm Deputies and Senators to the Tribunal of State (Comments on Article 107 of the Constitution of the Republic of Poland), No. 6(65)2004, p. 41 LIS-STARANOWICZ DOROTA, vide GALSTER JAN LIS-STARANOWICZ DOROTA, Basic Principles of the System of Government of the Republic of Poland in the Context of European Judgments of the Constitutional Tribunal, No. 1(78)2007, p. 20 LORENCKA MAŁGORZATA, The Italian Regional State, No. 4(69)2005, p. 83 ŁYSZKOWSKI MICHAŁ, The Principle of Solidarity under the Treaty establishing a Constitution for Europe, No. 6(77)2006, p. 51 MASTERNAK-KUBIAK MAŁGORZATA, The Legal-Constitutional Basis of the Procedure for Poland’s Accession to the European Union, No. 5 (58)2003, p. 61 MATONIS ROMUALDAS, vide GÓRECKI DARIUSZ MĄCZYŃSKI MACIEJ, State Treasury: Selected Systemic Issues, No. 6 (59)2003, p. 33 MRÓZ ARKADIUSZ, The Special Services Committee of the Sejm: Remarks on the Activities, No. 5 (64)2004, p. 91 MUSZYŃSKI MARIUSZ, Nationalisation of Foreigners’ Property in Poland and the Question of Compensation for Property Left Behind, No. 1 (72)2006, p. 74 NALEZIŃSKI BOGUMIŁ, The State Control Committee of the 3rd Term of the Sejm of the Republic of Poland, No. 1 (60)2004, p. 49 NOWAKOWSKI MACIEJ, Delegated Legislation in Polish Constitutional Law, No. 3 (68)2005, p. 65 ODROWĄŻ-SYPNIEWSKI WOJCIECH, Constitutional Accountability of Members of Collegial Bodies, No. 6 (77)2006, p. 118 ODROWĄŻ-SYPNIEWSKI WOJCIECH, An Investigative Committee as a Form of Sejm Control in the Light of Decisions of the Constitutional Tribunal, No. 3 (80)2007, p. 124 ORZESZYNA KRZYSZTOF, The Legal Status of Churches and Other Denominative Organizations in the Italian Republic, No. 2 (73)2006, p. 79 PAJDAŁA HENRYK, vide MRÓZ ARKADIUSZ PAPIER HANS-JÜRGEN, State Ability to Direct and to Enact Reforms in the Federal Republic of Germany, No. 1 (60)2004, p. 63 PAWŁOWSKI SZYMON, Parliamentary Obstruction as a Weapon in Opposition’s Political Battle, No. 4 (57)2003, p. 80 PAWŁOWSKI SZYMON, A fall of a minority government — a comparative analysis of the Polish and German constitutional arrangements, No. 4 (63)2004, p. 75 PETRILLO PIER LUIGI, The Electoral Law and Parliament in Italy, No. 2(79)2007, p. 96 PIASECKI ANDRZEJ K., Direct Democracy in Poland after 1989, No. 1(72)2006, p. 27 Alphabetical list (by author’s name) of English summaries of articles contained in “Przegląd Sejmowy” 205

PŁACHTA MICHAŁ, “Tax Abolition” as a Legislative Problem (Case of the Act of 26 September 2002), No. 3(56)2003, p. 53 RADZIEWICZ PIOTR, Restoration of Binding Force of Legal Provisions as a Result of the Judgment of the Constitutional Tribunal, No. 3(68)2005, p. 45 RADZIEWICZ PIOTR, Discontinuation of the Proceedings by the Constitutional Tribunal Due to Loss of Binding Force of a Normative Act Prior to Delivery of a Ju- dicial Decision, No. 2(73)2006, p. 38 RADZIEWICZ PIOTR, The Status of a Subcommittee in the Light of the Rules of Procedure of the Sejm and Practice, No. 4(75)2006, p. 59 RYMARZ FERDYNAND, Transparency and Supervision of Financing of Statutory Activities of Political Parties (in the Practice of the National Electoral Commission) No. 3 (62)2004, p. 46 RYMARZ FERDYNAND, Forming Joint Lists of Candidates in Local Election in 2006, No. 2(79)2007, p. 65 SAKOWSKA MARLENA, Powers and Tasks of the Inspector General for Personal Data Protection, No. 2(73)2006, p. 92 SALIJ JACEK OP, Protection of Human Life in the Teaching of John Paul II, No. 3(80)2007, p. 18 SALITRA DARIUSZ, The Principles of Proper Legislation in the Case Law of the Constitutional Tribunal, No. 4 (57)2003, p. 53 SARNECKI PAWEŁ, The Nationwide Referendum Law of 14 March 2003 under the Constitution of the Republic of Poland, No. 3(56)2003, p. 25 SARNECKI PAWEŁ, On the Procedure for Election to the European Parliament, No. 5(58)2003, p. 42 SARNECKI PAWEŁ, Statutory Regulations concerning Elections of Members of European Parliament within the Territory of the Republic of Poland, No. 3(62)2004, p. 26 SARNECKI PAWEŁ, Co-operation of the Council of Ministers with the Sejm and the Senate in the Exercise by Poland of the EU Membership Rights, No. 5(64)2004, p. 26 SCHWIERSKOTT EWA, Guarantees of Freedom of Conscience in the Legal Systems of Poland and Germany, No. 6(59)2003, p. 67 SŁOMKA TOMASZ, Styles of Presidency. A Comparative Analysis, No. 6(71)2005, p. 57 SŁUŻAŁEK SEBASTIAN, Facultative Referendum in the Process of Amending the Constitution of the Republic of Poland of 1997, No. 3(62)2004, p. 59 SKOTNICKI KRZYSZTOF, An Impact of the Functions of Elections on Electoral Law and Electoral System: An Outline Review, No. 2(79)2007, p. 11 STANISZ PIOTR, Community Prohibition of Discrimination in Employment and Occupation on Grounds of Religion or Belief, No. 1(66)2005, p. 55 206 The Sejm Review Third Special Issue / 2007

STARC CHRISTIAN, Freedom of Scientifi c Research and Its Limits, No. 3(80)2007, p. 57 STELINA JAKUB vide GRAJEWSKI KRZYSZTOF SURÓWKA ANNA, Public Benefi t and Volunteer Work in the Light of the Constitution of the Republic of Poland, No. 6(65)2004, p. 76 SZEWC TOMASZ, The problem of Classifi cation of Local Enactments, No. 3(74)2006, p. 57 SZYDŁO MAREK, Constitutional and Legal Grounds for the State’s Involvement in Economic Activity, No. 6(65)2004, p. 61 SZYMANEK JAROSŁAW, Parliamentary Mediation in a Bicameral Legislature, No. 5(64)2004, p. 71 SZYMANEK JAROSŁAW, Freedom of Conscience and Belief under Poland’s Constitution, No. 2(73)2006, p. 60 SZYMANEK JAROSŁAW, Rationalization of a Parliamentary System of Government, No. 1(78)2007, p. 64 VOLPI MAURO, The German Electoral System and Electoral Reform in Italy, No. 5(70)2005, p. 86 WASILEWSKI TADEUSZ, Direct Effect of International Agreements in the Domestic Legal Systems of Selected EU Member States, No. 1(66)2005, p. 24 WASILEWSKI TADEUSZ, Effectiveness and Interpretation of International Agreements in the United Kingdom of Great Britain and Northern Ireland, No. 4(69)2005, p. 36 WIĄCEK MARCIN, Problems Relating to Declaration of Unconstitutionality of Certain Provisions of Laws under the Procedure of Preventive Review (Remarks on Article 122 para. 4 in fi ne of the Constitution), No. 4(75)2006, p. 80 WIĄCEK MARCIN, vide ZUBIK MAREK, „On Controversial Issues… WIĘCKOWSKA ANNA, The Right of Veto of the President of the Republic of Poland in Political Practice after the Coming into Force of the New Constitution, No. 6(59)2003, p. 54 WIĘCKOWSKA ANNA, Exercise of the Legislative Initiative by the President of the Republic of Poland under the Constitution of 1997, No. 4(63)2004, p. 95 WILIŃSKI PAWEŁ, Institution of Proceedings in Matters of Constitutional Accountability of a Member of a Collegial Body, No. 3(80)2007, p. 94 WISZOWATY MARCIN MICHAŁ, Lobbying Act and the Law-Making Process, No. 5(76)2006, p. 71 WITKOWSKI ZBIGNIEW, President of the Italian Republic — Changes in Constitutional Provisions and the Practice of the Functioning of the Offi ce, No. 6(71)2005, p. 147 WOJTYCZEK KRZYSZTOF, The Application of Accusatorial Procedure to the Review of Legal Norms before the Constitutional Tribunal in Poland, No. 1(54)2003, p. 40 Alphabetical list (by author’s name) of English summaries of articles contained in “Przegląd Sejmowy” 207

WOJTYCZEK KRZYSZTOF, Burden of Proof and Argument in Review of Norms by the Constitutional Tribunal, No. 1(60)2004, p. 27 WOŁPIUK WALDEMAR J., Lobbying. An attempt to Deﬁ ne its Public and Legal Function as well as the Contents of the Term, No. 4(63)2004, p. 39 WOŁPIUK WALDEMAR J., The Chief of State: 1918–1922. Pre-Presidential Form of State Authority, No. 6(71)2005, p. 43 WORDLICZEK ŁUKASZ, Private Legislation in the United States, No. 1(78)2007, p. 85 WÓJTOWICZ KRZYSZTOF, Draft Treaty Establishing a Constitution for Europe: The European Union’s Systemic and Legal Foundation, No. 2(61)2004, p. 35 ZAJADŁO JERZY, Justice, Law and Statutory Lawlessness (Comments on the Book: Das Verhältnis von Gesetz und Recht by Birgit Hoffmann), No. 3(68)2005, p. 105 ZAJADŁO JERZY, A Democratic Positivism? (Some Remarks on the Book of Jürgen Habermas: Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy), No. 5(76)2006, p. 85 ZAKOLSKA JOANNA, The Problem of a Clause Restricting the Enjoyment of Human Rights and Freedoms in the Context of Constitutional Work, the View of the Theory and in Jurisdiction of the Constitutional Tribunal, No. 5(70)2005, p. 29 ZBROJEWSKA MONIKA, Proceedings before a Sejm Investigative Committee under the Provisions of Penal Procedure, No. 1(60)2004, p. 36 ZBROJEWSKA MONIKA, Selected Issues in Procedural Penal Law Relating to Sejm Investigative Committees, No. 5(76)2006, p. 39 ZIĘBA-ZAŁUCKA HALINA, The Legal Status of the Institute of National Remem- brance, No. 5(70)2005, p. 55 ZNOJEK MAŁGORZATA, vide KRÓLIKOWSKI MICHAŁ ZUBIK MAREK, The State Budget and a Budget Bill in the Light of Constitutional Provisions of Selected Countries, No. 3(56)2003, p. 69 ZUBIK MAREK, Appointment of Members of the Monetary Policy Council in the Light of Fixed-term Ofﬁ ce Principle and the Activities of the State Authorities, No. 4(69)2005, p. 52 ZUBIK MAREK, vide JASTRZĘBSKI JACEK ZUBIK MAREK, Protection of Human Life from Its Beginning under International and Constitutional Regulations in Europe, No. 3(80)2007, p. 43 ZUBIK MAREK, “On Controversial Issues Concerning the Scope of Disciplinary Responsibility of the Judges of the Constitutional Tribunal” — A Polemic, No. 3(80) 2007, p. 83 ZWIERZCHOWSKI EUGENIUSZ, The President and the Government under the Constitution of 23 April 1935, No. 2(67)2005, p. 64 ŻABICKA-KŁOPOTEK MONIKA, Guidelines as an Element of Authorization to Issue a Regulation (Based on Article 92 of Poland’s Constitution), No. 3(74)2006, p. 45 208 The Sejm Review Third Special Issue / 2007