Poland in good constitution?: Contemporary issues of constitutional law in Poland in the European context [1 ed.] 9783205217381, 9783205217374

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L E G A L

A R E A

S T U D I E S

B A N D

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Martin Löhnig, Maciej Serowaniec, Jacek Wantoch-Rekowski, Anna Moszyńska (eds.)

POLAND IN GOOD CONSTITUTION? Contemporary issues of constitutional law in Poland in the European context

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Legal Area Studies Edited by Martin Löhnig and Anna Moszyn´ska

Volume 5

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Martin Löhnig / Maciej Serowaniec / Jacek Wantoch-Rekowski / Anna Moszyn´ska (eds.)

Poland in good constitution? Contemporary issues of constitutional law in Poland in the European context

BÖHLAU VERLAG WIEN KÖLN

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This volume has been published with financial support of the Nicolaus Copernicus University.

All research chapters in this book have undergone rigorous double blind peer review, based on initial editor’s screening. Bibliographic information published by the Deutsche Nationalbibliothek: The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data available online: https://dnb.de. © 2023 by Böhlau, Zeltgasse 1, 1080 Vienna, Austria, an imprint of the Brill-Group (Koninklijke Brill NV, Leiden, The Netherlands; Brill USA Inc., Boston MA, USA; Brill Asia Pte Ltd, Singapore; Brill Deutschland GmbH, Paderborn, Germany; Brill Österreich GmbH, Vienna, Austria) Koninklijke Brill NV incorporates the imprints Brill, Brill Nijhoff, Brill Hotei, Brill Schöningh, Brill Fink, Brill mentis, Vandenhoeck & Ruprecht, Böhlau, V&R unipress and Wageningen Academic. This publication is licensed under a Creative Commons Attribution – Non Commercial 4.0 International license, at https://doi.org/10.7767/9783205217381. For a copy of this license go to https://creativecommons.org/licenses/by-nc/4.0/. Any use in cases other than those permitted by this license requires the prior written permission from the publisher.

Cover image: Luka Rayski, Konstytucja (CC0, https://creativecommons.org/publicdomain/zero/1.0/deed.pl) Cover design: Michael Haderer, Vienna Typesetting: le-tex publishing services, Leipzig Printed and bound: Hubert & Co. BuchPartner, Göttingen Printed in the EU Vandenhoeck & Ruprecht Verlage | www.vandenhoeck-ruprecht-verlage.com ISBN: 978–3–205–21737–4 (print) ISBN: 978–3–205–21738–1 (digital)

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Table of Contents

Martin Löhnig Introduction .........................................................................................

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Zbigniew Witkowski, Michał Przychodzki Responsibility for governance merely ignored by those in power or already dislocated from the world of oblivion? ...........................................

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Rafał Świergiel, Katarzyna Witkowska-Chrzczonowicz Current challenges for the protection of women’s rights in Poland – selected issues ....................................................................................... 21 Maciej Serowaniec, Marcin Dorochowicz Independence of judges and prosecutors in Poland in light of international standards ........................................................................... 37 Maciej Serowaniec, Katarzyna Jachimowicz Protection of constitutional identity in light of the jurisprudence of the Constitutional Court of the Republic of Poland – a comparative study..... 55 Jacek Wantoch-Rekowski, Martyna Wilmanowicz-Słupczewska Constitutional right to social security ....................................................... 69 Jerzy Lachowski, Weronika Baran-Rybczyńska The principle of nullum crimen sine culpa in Polish criminal law from a constitutional perspective ............................................................. 85 Agnieszka Laskowska-Hulisz Change of legal basis by the court and the right to a fair civil trial ................ 105 Agnieszka Laskowska-Hulisz, Bartosz Mielczarek Right to a hearing as a manifestation of the principle of equality of parties and participants in civil proceedings ............................................. 121 Monika Wałachowska, Aleksandra Wasielewicz Constitutional right to damages in cross-border cases ................................ 133

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Table of Contents

Marek Słupczewski, Wojciech Morawski The use of reasoning per analogiam in tax law in light of constitutional regulations........................................................................ 151 Wojciech Morawski, Krzysztof Dziadosz The action of a taxpayer when trusting in information concerning the content and interpretation of tax law obtained from tax authorities – between the constitutional principle of legalism and the principle of the protection of legitimate expectations............................. 163 Tomasz Brzezicki, Martyna Wilmanowicz-Słupczewska Administrative fines as public tributes in constitutional terms ..................... 177 Agnieszka Olesińska, Artur Janicki Burden of proof in tax proceedings from a constitutional perspective ........... 191 Marcin Drewek, Aleksander Tretyn Constitutional aspects of ecological safety in relation to offshore wind farms in the British and Polish legal systems ...................................... 211 Piotr Rączka, Seweryn Sasin Automation of administrative enforcement proceedings using the examples of the Administrative Enforcement Act for the Free State of Saxony (SächsVwVG) and the Polish Act on Administrative Enforcement Proceedings (EgzAdmU) ..................................................... 237

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Introduction

Poland is in a serious systemic crisis. Since the parliamentary elections in autumn 2015, the country has been governed by a coalition around the “Prawo i Sprawiedliwość” (PiS) party. During this time, the Constitution of the Republic of Poland has not been changed in letter, but there have been extensive changes in nonconstitutional law and thus considerable changes in constitutional practice. This concerns in particular the role of individual constitutional bodies. Let us recall: already in 2016, the independence of the Constitutional Court (Trybunał Konstytucyjny) was undermined and a readjustment of the separation of powers began. Serious interference is also taking place in the area of public media, schools and universities. Meanwhile, the Polish constitutional crisis has also become a European constitutional conflict: At stake is the primacy of EU law and thus a cornerstone of the European Union’s constitution. The authors of this volume analyse these changes and at the same time place them in a European context. They address fundamental issues such as accountability for government action, the protection of women’s rights, the independence of the judiciary, the central role of the Constitutional Court, fundamental social rights, the principle of nullum crimen, the principle of fair trial, the right to be heard or equality of arms in civil proceedings. The development of these standards in European intellectual history and their establishment in the individual national European legal systems seemed to have found its completion after the fall of the Iron Curtain. In fact, however, their validity has recently been called into question by political forces – of varying strength – in many European states. The clear-sighted analyses in this volume not only provide profound information on the situation in Poland, but also show in an exemplary manner how a government can massively change fundamental structures of the state constitution even without a majority to amend the constitution. Prof. Dr. Martin Löhnig

© 2023 Böhlau Verlag | Brill Österreich GmbH https://doi.org/10.7767/9783205217381 | CC BY-NC 4.0

© 2023 Böhlau Verlag | Brill Österreich GmbH https://doi.org/10.7767/9783205217381 | CC BY-NC 4.0

Zbigniew Witkowski, Michał Przychodzki

Responsibility for governance merely ignored by those in power or already dislocated from the world of oblivion?

1.

Introductory remarks

For a long time, the desire to exercise power in the world of politics has hardly ever been accompanied by a willingness to be held accountable for the acts and omissions of those holding power. This is probably why accountability mechanisms and institutions belong in the category of ‘soft’ instruments. This softness of such constitutional instruments means that they not very acrimonious, let alone powerful enough to eliminate politicians, even in drastic situations. For example, in 1819, ex-US president Thomas Jefferson, speaking of the weaknesses of the impeachment mechanism, said that ‘impeachment is not even a scarecrow’.1 Unfortunately, the exceptions only confirm the rule, and examples such as the events leading to the resignation of Richard Nixon in 1972 (in the literature, Nixon’s presidency is sometimes described as criminal), Bill Clinton’s refusal to resign in 1998 after the ‘zippergate’ scandal and Donald Trump’s drastic behaviour during and after his presidency are symptomatic of this (Trump had two impeachments during his presidency in 2020 and 2021: for the so-called Ukraine affair and his incitement to rebellion). At the same time, let us add that the US, as a basically stable democracy, belongs to the primaries in its approach to the phenomenon of the accountability of the political class. Much more worrying are the signals and phenomena accompanying political life in Central and Eastern Europe (including Hungary and Poland) and, for example, in Brazil, Colombia, Venezuela and Argentina.2

1 I. Kraśnicka, Dwukrotny impeachment prezydenta Donalda Trumpa jako precedens w historii Stanów Zjednoczonych Ameryki [Double impeachment of President Donald Trump as a precedent in the history of the United States of America], Przegląd Sejmowy 2022, no. 2, p. 85. 2 S. Sagan, Dyktatury zakamuflowane [Dictatorships in disguise], Rzeszów 2019, pp. 49–73.

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2.

The institution of constitutional responsibility in theoretical terms3

Already in antiquity, Tacitus wrote about power as a passion hotter than all the others put together. He pointed out that greed and insolence were the main vices of the mighty and that honours change manners. He reminded us that a ‘rotten’ state multiplies statutes, and finally he reminded us that ‘no power is above the law’. Also, Lord Acton, the English politician and historian, wrote in an 1887 letter to Bishop Creighton that ‘Power tends to corrupt and absolute power corrupts absolutely’.4 This quote has acquired the status of a classic, timeless political aphorism. If the exercise of power corrupts, generating corruption and extreme cynicism and vanity in its holders, then the perpetuation of such a flawed system will cause the political class to alienate itself from society, but society will not remain indebted to it. Rather, society will quickly develop indifference to the affairs of state and politics. The reaction of society to the programmatic distancing of the political class from it will, above all, result in an increasingly low voter turnout. Thus, in the event that the political elite carries out an ‘annexation of the state and its procedures’ without allowing citizens to express themselves or to feel that they are an important part of the democratic process, the notion of a ‘world of unwanted power’ is bound to arise in the minds of citizens. Lack of faith in democratic procedures and their institutions will be perpetuated in citizens’ understanding. The only remedy for such a situation can be to finally take seriously the idea of responsibility in general and constitutional responsibility in particular and to accept without exception the message ‘Ubi imperium, ibi responsibility’ (‘Where there is power, there is responsibility’). A refusal to unconditionally accept this political motto must ensure that responsibility for violations of the law in the nature of constitutional torts remains a fiction. The solutions adopted even formally in the form of a law will only create the appearance of a democratic state, and de facto will be decorative and tokenistic solutions, the proverbial ‘paper sword’, as former US President Woodrow Wilson once called impeachment. If there is a de facto lack of goodwill and purity of intent regarding the enforcement of constitutional accountability, and if power is assumed by casual, depraved people for whom the concepts of ethics, political

3 This part of the study is a revised and updated version of a part of the article: Z. Witkowski, Odpowiedzialność konstytucyjna – ‘miecz Damoklesa’ czy tylko ‘miecz papierowy’ [Constitutional accountability - a ‘sword of Damocles’ or just a ‘paper sword’], in: Konstytucjonalizm polski. Refleksje z okazji Jubileuszu 70-lecia urodzin i 45-lecia pracy naukowej Profesora Andrzeja Szmyta [Polish Constitutionalism. Reflections on the occasion of the 70th anniversary of the birth and 45th anniversary of scientific work of Professor Andrzej Szmyt], eds. P. Uziębło, K. Grajewski et al., Gdańsk 2020, pp. 1161–1167. 4 Letter to Bishop Mandell Creighton, April 5, 1887 Transcript of, published in Historical Essays and Studies, eds. J. N. Figgis, R. V. Laurence (London: Macmillan, 1907).

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Responsibility for governance

culture, honour, good manners and rules of decency are alien or mean nothing, and if electoral procedures are too weak and not conducive to the removal of such political candidates throughout the electoral process, these people must know in advance that the violation of the constitution and laws and the activation of mechanisms to enforce accountability will be inevitable, merciless and objective. They must know that procedures will always be implemented, regardless of the status of the perpetrator. Furthermore, they must know that the actions of the state will always be effective and, if these people are found guilty, the only possible sanction will be to unleash the proverbial sword of Damocles and push the guilty into the abyss of political oblivion. ‘No one is legitimised to exercise the authority of the sovereign exclusively, and therefore no body can claim to express and represent exclusively and alone the sovereignty of the Nation’.5 The temptation for politicians to be unconcerned with this commandment was and still is enormous despite the fact that, as mentioned above, the Roman historian Tacitus wrote about power as a passion hotter than all the others put together (‘Cupido dominandi cunctis affectibus flagrantior est’).6 He also warned that ‘Avaritia et arrogantia praecipua validiorum vitia’7 (‘Greed and insolence are the main vices of the mighty’, and that ‘Principes mortales, res publica aeterna’ (‘Rulers are mortal – the state is eternal’).8 Moreover, Tacitus warned that ‘Corruptissima republica plurimae leges’ (‘When the state is most corrupt, then laws are most multiplied’)9 and that ‘Solitudinem faciunt, pacem appellant’ (‘They make a wasteland, they call it peace’).10 And Tacitus declared publicly, ‘Nulla potentia super leges esse debet’ (‘No power is above the law’). In a letter of 3 April 1887, Lord Acton (English politician, historian and political philosopher) wrote to Bishop Creighton: ‘Power tends to corrupt, and absolute power corrupts absolutely’. And finally, in the context of the problem described above, former US President Thomas Jefferson spoke of power as an institution ‘which cannot be trusted and should be strictly controlled by independent factors’. What has been said so far, including the political aphorisms quoted, is sufficient basis for the formulation of a timeless guideline for all those involved in politics and those who are subject to political power. As the Latin maxim states, ‘Ubi imperium, ibi responsibility’ (‘Where there is power, there is responsibility’). Power therefore corrupts because it generates corruption and creates absolute cynicism. It is said to be a more motivating force than many drugs, giving a feeling

5 6 7 8 9 10

‘The metamorphosis of constitutional justice in Italy’ Quaderni costituzionali 2015, no. 2, p. 379. Tacitus, Annales, XV 53. Tacitus, Annales, I 51. Tacitus, Annales, III 6,3. Tacitus, Annales, III 27. Tacitus, Agricola, 30.

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of strength and excessive satisfaction. Power can enable glamour, splendour, flattery and access to the halls of power which facilitate everything in society: that is to high society, contacts and to… a lot of money! Power is both corrupting and intoxicating, no matter how long it lasts. When it is short-lived, the temptation is even stronger, because the proverbial opportunity may never come again. Power is all the more corrupting when a political system has already solidified and consolidated its influence, thereby becoming inert. The latter situation is dangerous insofar as it slowly but steadily generates a phenomenon called political clientelism. This refers to when the orbit of influence of politicians is permanently occupied by businesspeople and their emissaries, various lobbyists exceeding the legally permissible limits of acting in violation of the public interest,11 as well as various individuals needing access to information and decision-making procedures (also parliamentary or governmental) to obtain contracts, orders, concessions, grants, subsidies or permits. In return, these political clients are always (but especially at election time) prepared to pay politicians money, sometimes very large amounts. The stabilisation of the political system constructed in this way tends to lead to the phenomenon of blocked democracy, in which the opposition is marginalised in political life at both the local and the central level. This state of affairs, when realised at the central level of the state, becomes particularly dangerous, as this strong, permanent arrangement dominates this level of the political game. Tamed by this state of affairs, politicians dictate the rules of the game and become entrenched in the conviction not only of their conceptual and decision-making infallibility but also of their sense of impunity as the new social elite. Over time, a system generated in this way becomes so powerful that politicians don’t even think about allowing any kind of control. The semblance of such control usually remains, but it is not objective, independent and, above all, effective control. The perpetuation of such a system over the long haul causes the political class to alienate itself from society and inevitably gives rise to the notion of a ‘world of unwanted power’ among citizens.12 On the one hand, the interest of the political class in self-restraint fades, but at the same time, these ongoing indulgences are accompanied by external pressure from disaffected citizens to create appropriate legal guarantees against the ‘annexation of the state and its procedures’ by those in power. The people in power (or, more broadly, the political parties remaining on the political scene) are not interested in cutting the proverbial

11 M. M. Wiszowaty, Regulacja prawna lobbingu na świecie [Legal regulation of lobbying worldwide], Warszawa 2008, p. 257 et seq. 12 J. Raciborski, Polskie wybory. Zachowania wyborcze społeczeństwa polskiego w latach 1989–1995 [Polish Elections. Electoral behaviour of the Polish society in 1989–1995], Warszawa 1996, p. 35 et seq. and Z. Witkowski, Siedem grzechów głównych polskiej klasy politycznej wobec wyborców, wyborów i prawa wyborczego [The seven cardinal sins of the Polish political class with regard to voters, elections and electoral law], Toruń 2015, p. 14.

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Responsibility for governance

branch on which they sit, while citizens become too weak and discouraged to fight battles against the ruling power structure. Sometimes, such a situation additionally finds fertile ground. This is the case when the situation takes place during a period of economic growth or intensive political or socio-economic change, or even in periods of temporary difficulties, recessions, epidemics or pandemics but with attempts to reactivate the economy. This is when the scope or scale of negative phenomena at the top of government (violations of the constitution, laws and other acts of law, which include corruption, along with disregard for the average citizen) increases dramatically. There is a temptation to stabilise power and to make quick and substantial profits, because there are significant opportunities for non-standard action. There is also a desire and opportunity to reach for these opportunities, to ‘dig in’ on the gained footholds of power and hide with the proverbial loot.13 Recently in Poland, in such situations there have even been attempts to enact special laws or to smuggle in packages of many enacted or amended laws solutions that would even exempt senior state officials from criminal liability for actions (mainly financial spending), which are, to put it mildly, of a non-standard nature (i. e., contrary to the law). What is the antidote to such a situation? The answer is to take seriously the idea of responsibility in general and constitutional responsibility in particular.

3.

Normative nature of constitutional responsibility in Poland

According to the current model of constitutional responsibility in Poland, the following are liable before the Tribunal of State: the President of the Republic of Poland; the Prime Minister and members of the Council of Ministers; the President of the National Bank of Poland; the President of the Supreme Chamber of Control; members of the National Council of Radio Broadcasting and Television; persons to whom the Prime Minister has entrusted the management of a ministry; and the Commander-in-Chief of the Armed Forces.14 In addition, deputies and senators are

13 Vide the famous ‘Shnapsgate’ affair in Poland in 1998, which involved the uncontrolled import of alcohol and which, for the first time in the history of our country, led to the conviction of two senior government officials: the Minister for Foreign Economic Cooperation and the Head of the Main Customs Office in T. Mazowiecki’s government. Mazowiecki’s representatives went before the Tribunal of State, which convicted them. Cf. also the famous case of the so-called Rywin affair (2002/2003), which ended with the actions of the Sejm Commission of Inquiry (2003/2004) and, as a consequence, with the final conviction (verdict of the Court of Appeal in Warsaw of 10 December 2004) of Lew Rywin. 14 See Article 1 of the Tribunal of State Act and Article 198 of the 1997 Constitution of the Republic of Poland.

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subject to constitutional liability, although to a limited extent (i. e., for conducting economic activity with the benefit of State Treasury or local government property and for acquiring such property).15 A disputed issue is the bearing of constitutional responsibility by the Speaker of the Sejm or the Speaker of the Senate temporarily performing the duties of the President. In the catalogue of persons incurring constitutional liability, the legislator did not indicate, in the catalogue of persons incurring constitutional liability, the Marshal of the Sejm or Senate. There is also no relevant statutory solution; therefore, the majority of doctrine is of the opinion that an expansive interpretation cannot be made in this respect.16 A different position is presented by Gromek, who indicates that the Speaker of the Sejm or Senate replacing the President may commit a constitutional tort while exercising the powers of the head of state.17 Constitutional responsibility is always individual in nature and is incurred for a violation of the Constitution or a law, either in connection with one’s position or within the scope of one’s office. This is known as constitutional tort responsibility. A constitutional tort can only be an act, so it takes the form of an act or omission. Furthermore, the legislator indicates that a violation of the Constitution or a law may be unintentional.18 In light of the provisions of the current Constitution, the Tribunal of State is the constitutionally prescribed body for adjudicating constitutional responsibility and, in certain cases, also criminal responsibility. According to Article 10(2) of the Polish Constitution,19 the judicial power in Poland consists of courts and tribunals. Thus, the Tribunal of State is an organ of judicial power.20

15 See Article 107 of the 1997 Constitution of the Republic of Poland. 16 K. Grajewski, S. Steinborn (eds.), Ustawa o Trybunale Stanu. Komentarz [Act on the Tribunal of State. Commentary], Warszawa 2020. 17 Z. Gromek, O niektórych problemach na styku konstytucyjnej i ustawowej regulacji odpowiedzialności konstytucyjnej w Polsce [On some problems at the interface between constitutional and statutory regulation of constitutional liability in Poland], in: Minikomentarz dla maksiprofesora. Księga jubileuszowa profesora Leszka Garlickiego [A mini-commentary for the maxiprofessor. Professor Leszek Garlicki’s jubilee book], ed. M. Zubik, Warszawa 2017, pp. 834–835. 18 A. Domańska, Delikt konstytucyjny – pojęcie, rodzaje i funkcje [Constitutional tort - concept, types and functions], in: Państwo i jego instytucje. Konstytucja – sądownictwo – samorząd terytorialny [The state and its institutions. Constitution - judiciary - local government], eds. R. Balicki, M. Jabłoński, Wrocław 2018, pp. 118–119. 19 Konstytucja Rzeczypospolitej Polskiej z dnia 2 kwietnia 1997 r. [The Constitution of the Republic of Poland of 2 April 1997], Journal of Laws (J. of L.) 1997, No. 78, item 483 as amended. 20 J. Zaleśny, Odpowiedzialność konstytucyjna w prawie polskim okresu transformacji ustrojowej [Constitutional responsibility in Polish law during the period of political transition], Toruń 2004, p. 122.

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Responsibility for governance

According to Article 199 of the Polish Constitution, the Tribunal of State composed of a chairperson, two deputy chairpersons and 16 members chosen by the Sejm for the current term of office of the Sejm from amongst those who are not Deputies or Senators. The deputy chairpersons of the Tribunal and at least one half of the members of the Tribunal shall possess the qualifications required to hold the office of judge. The chairperson of the Tribunal of State ex lege is the First President of the Supreme Court. It should be emphasised that the legislature, in defining the persons sitting in the Tribunal of State, uses the term members and not judges (as in the case of the Constitutional Tribunal).21 The members of the Tribunal of State are, as a rule, elected jointly at the first sitting of the Sejm for the duration of its term of office. In the event that the term of office of the Sejm is shortened, in accordance with Article 14 of the Law on the Tribunal of State, this body shall exercise its powers until a new composition of the Tribunal of State is elected. Such shaping of the term of office of the Tribunal of State has its historical justification, related to the emphasis on the role of this organ as a ‘parliamentary court’.22 The Tribunal of State may be composed of Polish citizens who enjoy full public rights, who have not been convicted by the courts and who are not employed in government administrative bodies. Persons elected to the Tribunal of State shall take a judicial oath before the Speaker of the Sejm. Elected members are non-compulsory and subject only to the Constitution and laws. According to the Rules of Procedure of the Sejm,23 motions for the election of members of the Tribunal of State may be submitted by the Speaker of the Sejm or at least 35 MPs. The election takes place by an absolute majority of votes. Members of the Tribunal of State, in connection with the performance of their functions, receive per diems for each day of participation in the work of the Tribunal, as well as reimbursement of travel and accommodation expenses. Thus, serving as a member of the Tribunal of State should be treated honourably, as it does not involve large financial gratification. The procedure for holding a person constitutionally responsible differs depending on the position held by that person in the State. The right to indict the President is vested exclusively in the National Assembly (i. e., the Sejm and Senate sitting together). A preliminary motion for the impeachment of the President may be submitted to the Speaker of the Sejm by at least 140 members of the National Assembly (i. e., by one quarter of the National Assembly).

21 Ibid., pp. 130–131. 22 K. Grajewski, S. Steinborn (eds.), (above n. 16 ), p. 280. 23 Uchwała Sejmu Rzeczypospolitej Polskiej z dnia 30 lipca 1992 r. - Regulamin Sejmu Rzeczypospolitej Polskiej (tekst jednolity M.P. 2022 poz. 723). [Resolution of the Sejm of the Republic of Poland of 30 July 1992 – Rules of Procedure of the Sejm of the Republic of Poland (consolidated text M.P. 2022, item 723)].

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The right to hold other persons constitutionally liable is vested only in the Sejm. A preliminary motion may be submitted to the Speaker of the Sejm by the President, by a group of at least 115 deputies (one quarter of the Sejm) or, in certain cases, by a specially appointed commission of inquiry. In each case, the preliminary motion must meet the conditions required for an indictment in accordance with the Code of Criminal Procedure. Once the motion meets the formal requirements, the Speaker of the Sejm refers it to the Constitutional Accountability Committee. This is a permanent Sejm committee dealing with preliminary motions to hold public authority holders constitutionally responsible. The work of the Constitutional Accountability Committee is to carry out the evidence in the case, including taking evidence from witnesses. The Committee submits a report to the Sejm on the implementation of the work, together with a motion to hold the person concerned constitutionally responsible or a motion to discontinue the proceedings in the case. In the case of the President, the Committee submits a report to the National Assembly, along with a motion to indict the President or to discontinue the proceedings. The impeachment of the President may be carried out by a resolution of the National Assembly passed by a majority of at least two-thirds of the statutory number of members of the National Assembly (i. e., 374 persons must vote in favour of the impeachment of the President). The impeachment to drag the Prime Minister and the members of the Council of Ministers before the Tribunal of State is adopted by the Sejm by a majority of three fifths of the statutory number of MPs. This means that 276 parliamentarians must vote in favour of the motion. In the case of other persons incurring constitutional liability, the Sejm adopts the resolution by an absolute majority of votes in the presence of at least half the statutory number of MPs. Once the National Assembly or the Sejm has passed a resolution to indict a person before the Tribunal of State, the Speaker of the Sejm sends the relevant resolution, which constitutes the indictment, to the Tribunal. The proceedings before the Tribunal of State are two-instance. The provisions of the Criminal Procedure Code and the Tribunal of State Act apply to the proceedings. The participation of a defence counsel in such proceedings is necessary. A first instance judgment may be appealed, which must be filed within 30 days from the date of service of a copy of the judgment with justification. An extraordinary appeal in the form of a cassation is not available against a second-instance judgment of the Tribunal of State. The Tribunal of State shall impose the following penalties jointly or separately: 1) loss of the active and passive right to vote in presidential elections, elections to the Sejm and Senate, elections to the European Parliament and elections to local government bodies;

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Responsibility for governance

2) prohibition from holding managerial positions or functions involving special responsibility in state bodies and social organisations; 3) loss of all or certain orders, decorations and honorary titles. These penalties may be imposed for a period of two to ten years. However, due to the insignificant degree of social harmfulness of the act or the special circumstances of the case, the Tribunal may stop at accepting the guilt of the accused. If a deputy or senator is convicted of breaching the prohibitions on the acquisition and use of State property, the Tribunal rules that he or she is deprived of his or her parliamentary mandate. The presidential right of clemency does not apply to those convicted by the Tribunal of State. Since the political transformation that took place in Poland in 1989, the procedure to hold representatives of the government constitutionally accountable has been initiated more than a dozen times. The vast majority of the motions failed to obtain the required parliamentary majority. Only two cases ended up before the Tribunal of State, of which only one ended with the final conviction of two persons for the loss of the right to stand for election and to hold leading positions and perform functions connected with special responsibility in state bodies and in social organisations for a period of five years.24 The other case, in turn, ended in discontinuance of the proceedings.

4.

Summary

Let us repeat once again that approval of the idea of any responsibility (and constitutional responsibility in particular) must also entail approval, without exception, of the fundamental message inherent in real democracy: ‘Ubi imperium, ibi responsibility’ (‘Where there is power, there is responsibility’). Meanwhile, most often, and not only here, ineffective and sham solutions are undertaken. Of course, it is not about the effectiveness of holding the holders of power accountable in the radical Chinese way (i. e., by a sham, short, public trial and execution). While the radical Chinese way is an effective way of immediately eliminating a single perpetrator, it is not effective in general anyway under the conditions of the existence of a huge and massive temptation. Various systemic solutions for the control of power can also be considered and implemented, but they too may prove ineffective when legal regulations are vague and contain numerous

24 J. Zaleśny, Odpowiedzialność konstytucyjna. Praktyka III RP [Constitutional Accountability. Practice of the Third Republic], Warszawa 2004, pp. 59–145.

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exceptions, such as legal loopholes25 (i. e., peculiar privileges with regard to sanctions (privilegium poenae) if the regulations are devoid of meaningful sanctions, or if sanctions are illusory, flexibly formulated and leave considerable room for interpretation of the relevant provisions, and if the bulk of the responsibility is placed in the hands of politicians themselves or a politically subordinated judiciary. And finally, even if the relevant (even correct) legal regulations manage to be adopted, they will not be able to demonstrate their effectiveness, because there will simply not be the political will to respect them firmly.26 This is because there will be, as is very often the case nowadays, an unwritten but widespread political conspiracy not to impose the indicated procedures on political opponents without a sufficiently compelling reason, because the roles may be reversed in time (in our case, for example, cases of allegedly accidental late voting prejudicing the initiation of the relevant legal procedures), which means that liability for violations of the law in the nature of constitutional torts will continue to remain a fiction. More often than not, however, constitutional liability, if it threatens to be triggered (and it is necessary to settle political scores between the parties to the political scene), is replaced in practice by some form of inherently milder political accountability,27 or political commissions of inquiry are set up without any prospect of completion, for example. Commissions of inquiry are set up without the prospect of their work being completed,28 which means that constitutional accountability, which is intrinsically more important and more morally and legally troublesome, is consciously and deliberately displaced by forms of accountability that are less troublesome and do not remove violators of the constitution and laws definitively, even from the margins of the political life of the country. (See, for example, the aforementioned Watergate case and President Nixon’s responsibility, the case of German Chancellor Kohl’s responsibility, the case of former French President Chirac’s responsibility and the case of former Italian Prime Minister Caxi’s responsibility). In Poland, this

25 In the Polish law on the Tribunal of State since its inception (i. e., since 1982), there is a sui generis legal gate allowing that, due to a negligible degree of harmfulness of the act or in special circumstances of the case, the Tribunal of State may stop at a finding of guilt of the accused and waive the punishment – cf. B. Banaszak, Konstytucja Rzeczypospolitej Polskiej. Komentarz [The Constitution of the Republic of Poland. Commentary], Warszawa 2012, p. 994, thesis 8 to art. 198 of the Constitution of the Republic of Poland. This wicket was enshrined in the law with former Prime Minister P. Jaroszewicz in mind, but it turned out to be ‘so nice’ to successive generations of politicians that it has been left in the law without a dissenting vote to this day and has been bypassed by all amendments and revisions to date. In our view, this possibility calls into question the whole point of constitutional accountability in our political realities. 26 S. Grabowska, R. Grabowski (eds.), Formy odpowiedzialności konstytucyjnej w państwach europejskich [Forms of constitutional liability in European states], Toruń, 2010, p. 16. 27 Ibid., p. 15. 28 Ibid., p. 16.

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Responsibility for governance

phenomenon has not yet matured or even borne much fruit outside of temporary phases of certain social and political changes (e. g., the initial phase of the Solidarity movement). Today, all politicians, those on the front pages of newspapers at both national and local level (because they too should understand the nature of the mechanisms of accountability for power, although at local level political and legal accountability should prevail) and everyone else should be reminded very loudly so that they do not feel complacent, because true democracy and free citizens in a free country, as well as a free press, will remind its citizens of the most dangerous torts and violations and may belatedly but inevitably hold them to account, because no authority is above the law, and where there is authority, there must in fact be responsibility.

References Legal acts Konstytucja Rzeczypospolitej Polskiej z dnia 2 kwietnia 1997 r. [The Constitution of the Republic of Poland of 2 April 1997], Journal of Law (J. of L.) 1997, No. 78, item 483 as amended. Uchwała Sejmu Rzeczypospolitej Polskiej z dnia 30 lipca 1992 r. – Regulamin Sejmu Rzeczypospolitej Polskiej [Resolution of the Sejm of the Republic of Poland of 30 July 1992 – Rules of Procedure of the Sejm of the Republic of Poland], consolidated text M.P. 2022, item 723.

Jurisdiction Verdict of the Court of Appeal in Warsaw of 10 December 2004.

Literature Banaszak B., Konstytucja Rzeczypospolitej Polskiej. Komentarz [The Constitution of the Republic of Poland. Commentary], Warszawa 2012. Domańska A., Delikt konstytucyjny – pojęcie, rodzaje i funkcje [Constitutional tort – concept, types and functions], in: Państwo i jego instytucje. Konstytucja – sądownictwo – samorząd terytorialny [The state and its institutions. Constitution – judiciary – local government], eds. R. Balicki, M. Jabłoński, Wrocław 2018. Grabowska S., Grabowski R. (eds.), Formy odpowiedzialności konstytucyjnej w państwach europejskich [Forms of constitutional liability in European states], Toruń, 2010. Grajewski K., Steinborn S. (eds.), Ustawa o Trybunale Stanu. Komentarz [Act on the Tribunal of State. Commentary], Warszawa 2020, pp. 22–27.

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Gromek Z., O niektórych problemach na styku konstytucyjnej i ustawowej regulacji odpowiedzialności konstytucyjnej w Polsce [On some problems at the interface between constitutional and statutory regulation of constitutional liability in Poland], in: Minikomentarz dla maksiprofesora. Księga jubileuszowa profesora Leszka Garlickiego [A minicommentary for the maxiprofessor. Professor Leszek Garlicki’s jubilee book], ed. M. Zubik, Warszawa 2017. Kraśnicka I., Dwukrotny impeachment prezydenta Donalda Trumpa jako precedens w historii Stanów Zjednoczonych Ameryki [Double impeachment of President Donald Trump as a precedent in the history of the United States of America], Przegląd Sejmowy 2022, no. 2. Letter to Bishop Mandell Creighton, April 5, 1887 Transcript of, published in Historical Essays and Studies, eds. J. N. Figgis, R. V. Laurence (London: Macmillan, 1907). Raciborski J., Polskie wybory. Zachowania wyborcze społeczeństwa polskiego w latach 1989–1995 [Polish Elections. Electoral behaviour of the Polish society in 1989–1995], Warszawa 1996. Sagan S., Dyktatury zakamuflowane [Dictatorships in disguise], Rzeszów 2019. Wiszowaty M.M., Regulacja prawna lobbingu na świecie [Legal regulation of lobbying worldwide], Warszawa 2008. Witkowski Z., Odpowiedzialność konstytucyjna – ‘miecz Damoklesa’ czy tylko ‘miecz papierowy’ [Constitutional accountability – a ‘sword of Damocles’ or just a ‘paper sword’], in: Konstytucjonalizm polski. Refleksje z okazji Jubileuszu 70-lecia urodzin i 45-lecia pracy naukowej Profesora Andrzeja Szmyta [Polish Constitutionalism. Reflections on the occasion of the 70th anniversary of the birth and 45th anniversary of scientific work of Professor Andrzej Szmyt], eds. P. Uziębło, K. Grajewski et al., Gdańsk 2020. Witkowski Z., Siedem grzechów głównych polskiej klasy politycznej wobec wyborców, wyborów i prawa wyborczego [The seven cardinal sins of the Polish political class with regard to voters, elections and electoral law], Toruń 2015. Zaleśny J., Odpowiedzialność konstytucyjna w prawie polskim okresu transformacji ustrojowej [Constitutional responsibility in Polish law during the period of political transition], Toruń 2004. Zaleśny J., Odpowiedzialność konstytucyjna. Praktyka III RP [Constitutional Accountability. Practice of the Third Republic], Warszawa 2004.

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Rafał Świergiel, Katarzyna Witkowska-Chrzczonowicz

Current challenges for the protection of women’s rights in Poland – selected issues

1.

Introduction

A rather lively discussion on women’s rights is currently taking place in Poland. In popular opinion, the category of women’s rights is often reduced to the issue of access to abortion. This is, of course, an approach far removed from the real issue: the current challenges of protecting women’s rights anywhere in the world, not only in Poland. Such rights consist of a whole range of aspects that concern women but also concern girls from schools, education systems and girls’ earliest years in kindergartens, or health and social care understood as a whole. The aim of this study is to analyse the most important legal regulations concerning women’s rights and women’s actual position in society in contemporary Poland.

2.

Historical background

For centuries, women in Poland have been very independent. The long period of partitions, uprisings and struggles for independence meant that virtually every generation of men took part in these, often leaving their wives widows and their children orphans. In this context, Polish society was traditionally well aware of the need to entrust a woman with the responsibilities of managing the home, making decisions and even running the family business independently. Women gained the right to vote (actively and passively) in Poland in 1918,1 after Poland regained its independence following World War I. Previously, Poland had been under partition for 123 years: the country had completely disappeared from the map of Europe, being divided by Russia, Prussia and Austria. The communist period after 1945 involved the de facto erasure of human rights in general. Of course, the official narrative of the policy-makers of the time assumed the formal equality of men and women in civil rights, but because of the system itself, which in its essence did not assume individual freedom, these rights were largely illusory and reduced to empty slogans and declarations. For example, there 1 Cf. K. Urbaniak, Płeć a realizacja praw wyborczych, https://repozytorium.uni.wroc.pl/Content/78302/ PDF/02_Urbaniak_K_Plec_a_realizacja_praw_wyborczych.pdf [accessed 22.08.2022].

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was the ‘women tractors’ slogan in the popular consciousness, and on Women’s Day (8 March), it was a national ‘ritual’ to present ladies with the traditional carnation and a pair of tights, which were a scarce commodity at the time. In the People’s Republic of Poland, the Act of 27 April 1956 on the Conditions for Permissibility of Termination of Pregnancy2 was in force, which introduced the possibility of abortion by a doctor in three cases: when medical indications concerning the health of the fetus or the pregnant woman were in favour of aborting the pregnancy; when there was a justified suspicion that the pregnancy was the result of a crime; and when the pregnant woman had difficult living conditions. In regard to the last point, in practice the woman only made a statement about her difficult living conditions, and her statement was not verified in any way, which in fact gave women the possibility to perform abortions on request (for so-called social reasons). During the communist period, women were relatively active in the workforce and corporations did not exist, so a woman who had several children, with one of them ill, did not have to worry that her absence from work would affect the termination of her employment. She simply took childcare as often as necessary, and this was met with general understanding by employers. Parents did not send their sick children to nurseries and kindergartens due to the parents’ fear of losing their jobs. The period of intense political transformation after the fall of communism in Poland was a very difficult time for women (and also for most of society). The new social and political order, the introduction of a free-market economy, the uncertainty of living conditions, rising unemployment and high inflation all affected the lives of Polish families quite strongly. After the fall of communism, the Catholic Church – which had made a major contribution to the change to a democratic system by supporting the opposition throughout the communist years (e. g., in the person of Blessed Father Jerzy Popieluszko) and paid a supreme price for the struggle against communism – gained greater political influence. This was a period of lively social discussion about when human life begins and whether a woman has the right to decide for herself whether she wants to become a mother or not. On 7 January 1993, the Act on Family Planning, the Protection of the Human Fetus and the Conditions for the Permissibility of Interrupting Pregnancy came into force.3 This Act severely restricted Polish women’s access to legal abortion, as it abolished the possibility of performing it for the so-called social reasons mentioned above. The Act provided for the possibility of legal abortion in one of the following situations: when the pregnancy posed a threat to the life or health of the pregnant woman (without restrictions due to the

2 Dz.U. nr 12 poz. 61 ze zm. [J. of L. no. 12, item 61, as amended.] 3 Dz.U. nr 17 poz. 78 ze zm. [J. of L., no. 17, item 78, as amended.]

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Current challenges for the protection of women’s rights in Poland – selected issues

age of the fetus); when prenatal tests or other medical premises indicated a high probability of severe and irreversible impairment of the fetus or an incurable disease threatening its life (until the fetus became capable of independent life outside the organism of the pregnant woman); when there was a justified suspicion that the pregnancy (up to 12 weeks from conception) resulted from a prohibited act. This solution was later called the ‘abortion compromise’. Let us also add that the new Penal Code,4 enacted in 1997, is complementary to the provisions of this Act. According to Article 152 of the Criminal Code: § 1. Whoever, with the consent of the woman, terminates her pregnancy in violation of the provisions of the Act shall be punished with imprisonment of up to 3 years. § 2. The same penalty shall be imposed on anyone who assists or induces a pregnant woman to terminate her pregnancy in violation of the Act. § 3. Whoever commits the act referred to in § 1 or 2 when the conceived child has attained the capacity for independent life outside the organism of the pregnant woman shall be punished by imprisonment from 6 months to 8 years.

Let us add for the sake of argument that a pregnant woman is not criminally responsible for aborting a pregnancy. In the meantime (i. e., until the Constitutional Tribunal’s verdict further restricted the right to abortion in Poland in 2020), there were various attempts to change this situation, which stabilised after 1993. Various political groups tried to lobby for an amendment to the Polish Constitution and the enshrinement therein of the right to life from conception to natural death. It is also worth mentioning the amendment to the 1993 Act, passed by the Sejm on 30 August 1996,5 legalising abortion anew on social grounds. This amendment entered into force on 4 January 1997, while on 28 May 1997,6 the Constitutional Tribunal of the Republic of Poland in its full composition – with three dissenting opinions – ruled that this provision was incompatible with the constitutional provisions upheld by the so-called Little Constitution of 19927 by stating that the provision ‘legalises the termination of 4 Dz.U. nr 88 poz. 553 ze zm. [J. of L., no. 88, item 553, as amended.] 5 Ustawa z dnia 30 sierpnia 1996 roku o zmianie ustawy o planowaniu rodziny, ochronie płodu ludzkiego i warunkach dopuszczalności przerywania ciąży oraz o zmianie niektórych innych ustaw (Dz.U. nr 139 poz. 646 ze zm.). [Act of 30 August 1996 amending the Act on family planning, protection of the human foetus and the conditions for permissibility of termination of pregnancy and amending certain other acts, J. of L., no. 139, item 646, as amended.] 6 Orzeczenie Trybunału Konstytucyjnego z dnia 28 maja 1997 roku, sygn. akt K 26/96, OTK ZU 2/1997, poz. 19. [Judgment of the Constitutional Tribunal of 28 May 1997, ref. no. K 26/96, OTK ZU 2/1997, item 19.] 7 Ustawa Konstytucyjna z dnia 17 października 1992 roku o wzajemnych stosunkach między władzą ustawodawczą i wykonawczą Rzeczypospolitej Polskiej oraz o samorządzie terytorialnym (Dz.U. nr 84

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pregnancy without sufficient justification by the need to protect another constitutional value, right or freedom and uses unspecified criteria for this legalisation, thus violating constitutional guarantees for human life’. Furthermore, in the justification for this ruling, the Constitutional Tribunal expressed the view that the Constitution of the Republic of Poland, enacted on 2 April 1997,8 ‘confirms in Article 38 the legal protection of human life. The constitutional basis on which the Constitutional Court based its ruling was therefore confirmed and clearly articulated in the [new] Constitution of the Republic of Poland.’ The provisions concerning this premise expired on 23 December 1997. Until 2020, there were several more attempts to influence the narrowing of the grounds for legal abortion by pro-life organisations and far-right political parties, as well as to extend the possibility to perform this procedure on social grounds. All attempts to implement changes by having Parliament pass a relevant law (inspired, among others, by the Stop Abortion movement in 2016) ended in failure and numerous demonstrations in the streets of Polish cities; there was even a debate in European Parliament on 5 October 2016 regarding women’s situation in Poland.9 Ultimately, it was only the parliamentary elections won by Law and Justice and the changes in the composition of the Constitutional Tribunal, contrary to the 1997 Constitution of the Republic of Poland, that opened the way for a renewed narrowing of access to legal abortion in Poland, not through the activity of the Polish legislator but through the ruling of the aforementioned tribunal.

3.

Women’s rights in contemporary Poland – selected issues

At present (i. e., in Q1, 2022), the labour force participation rate in the 15–89 age bracket for men is 65.8%, while for women the rate is only 49.4%.10 Currently, it is estimated that four million women between the ages of 20 and 64 are unemployed in

poz. 426 ze zm.). [Constitutional Act of 17 October 1992 on mutual relations between the Legislative and Executive Authorities of the Republic of Poland and on local self-Government, J. of L., no. 84, item 426, as amended.] 8 Dz.U. nr 78 poz. 483 ze zm. [J. of L., no. 78, item 483, as amended.] 9 https://www.europarl.europa.eu/doceo/document/CRE-8-2016-10-05-ITM-017_PL.html [accessed 09.09.2022]. 10 See Ł. Komuda, Współczynnik aktywności zawodowej, https://rynekpracy.org/statystyki/ wspolczynnik-aktywnosci-zawodowej-2/ [accessed 22.08.2022]. Cf. also https://kadry.infor.pl/ wiadomosci/5401059,aktywnosc-zawodowa-Polek.html, [accessed 22.08.2022].

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Current challenges for the protection of women’s rights in Poland – selected issues

Poland11 – with low registered unemployment (at 4.9%12 ) but very high inflation13 (Poland is not part of the euro area, and monetary policy in relation to the złoty is conducted by the National Bank of Poland). Traditionally, there are also regions in Poland where the burden of running the home and bringing up children is borne entirely by women, who are generally not professionally active, while men devote themselves to supporting the family as their sole breadwinners (many families who observe this model of sharing responsibilities live in Silesia and are most often families of miners and people professionally involved in mining). By virtue of the judgment of the Constitutional Tribunal of 22 October 2020, Article 4a(1)(2) of the Act of 7 January 1993 on Family Planning, Protection of the Human Fetus and Conditions for the Permissibility of Termination of Pregnancy, indicating the possibility of terminating a pregnancy only by a doctor when prenatal tests or other medical indications point to a high probability of severe and irreversible disability of the fetus or an incurable disease threatening its life, was declared incompatible with Art. 38 (concerning the protection of life of every human being) in conjunction with Article 30 (concerning human dignity) in conjunction with Article 31(3) of the Polish Constitution.14 In its reasoning, the Court deduced that ‘from the essence of the inherent and inalienable dignity belonging to every human being and its equality derives the prohibition of differentiating the value of a given human being and therefore of his or her life. It is impermissible to claim that, because of some characteristic, one individual is worth less than another as a human being. This claim applies not only to the postnatal phase, but also to the prenatal phase of a person’s life’.15 The Court also pointed out, inter alia, that ‘for the admissibility of the deprivation of human life during the prenatal period, it is not sufficient that there is a probability of circumstances where prenatal tests or other medical indications point to a high probability of severe and irreversible impairment of the fetus or an incurable disease threatening its life, regardless of its possible gradation, and therefore also a ‘high probability’.16 Two judges, Leon 11 See https://www.pulshr.pl/zarzadzanie/cztery-miliony-kobiet-w-polsce-ani-nie-pracuje-ani-sie-nieuczy-a-problem-narasta,82940.html [accessed 22.08.2022]. 12 See Zatrudnienie w Polsce w górę – Ministerstwo Rodziny i Polityki Społecznej – Portal Gov.pl (www.gov.pl); https://www.gov.pl/web/rodzina/zatrudnienie-w-polsce-w-gore [accessed 22.08.2022]. 13 Consumer inflation in Poland in July 2022 was 15.6 per cent. See Narodowy Bank Polski – Internetowy Serwis Informacyjny (nbp.pl), https://www.nbp.pl/home.aspx?f=/statystyka/bazowa/bazowa. htm [accessed 22.08.2022]. 14 Wyrok Trybunału Konstytucyjnego z dnia 22 października 2020 roku, OTK-ZU A 2021, poz. 4. [Judgment of the Constitutional Court of 22 October 2020, OTK-ZU A 2021, item 4.] 15 Ibid. 16 Ibid.

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Kieres and Piotr Pszczółkowski, submitted dissenting opinions to the judgment. In the opinion of the first judge, ‘[… for] pregnant women and their families who receive information about a high probability of the child having a severe and irreversible disability or a serious life-threatening disease […] The State should provide them with the necessary assistance and not force them to be heroic’.17 Furthermore, according to the judge Piotr Pszczółkowski, ‘The Constitutional Tribunal misinterpreted (overinterpreted) the benchmarks of control indicated in the operative part and, moreover, by incorrectly assessing the proportionality of the limitation of the protection of the legal good, which is life in the prenatal stage, it took into account only one perspective – the perspective of the protection of life in the prenatal stage. At the same time, it omitted the perspective of women, whose dignity, life and health are undoubtedly values covered by constitutional protection.’18 Nearly two years after the Constitutional Court’s judgment, there has been a noticeable increase in the number of women who, while pregnant with a sick or disabled fetus, use the services of psychiatrists.19 Doctors in such situations can issue a certificate that indicates the deterioration of a woman’s mental health, in which, for example, depression or anxiety attacks may appear. On this basis, it is possible to perform an abortion. A famous case in Poland was that of a young woman who was admitted to hospital at 22 weeks’ gestation. Doctors found that there was no amniotic fluid but waited for the baby to die; the pregnant woman subsequently died from septic shock.20 Pro-life environments operating in Poland demand further restrictions on legal abortion in Poland, by abolishing the premise about the pregnancy being the result of a prohibited act.21 According to official data, approximately 1,000 legal abortions per year were performed in Poland until the announcement of the Constitutional Tribunal (CT) ruling in October 2020. In 2021, according to official data, this number fell tenfold to 107.22 Unofficial statistics oscillate between around 7,000 to 13,000 abortions, although sometimes a much higher number is given, amounting to as many as 200,000 abortions per year being performed on Polish women in the country (in the abortion underground in various sanitary conditions) or abroad legally (e. g., in the Czech Republic).23 It is 17 Ibid. 18 Ibid. 19 https://serwisy.gazetaprawna.pl/zdrowie/artykuly/8256416,aborcja-zaswiadczenie-od-psychiatry. html [accessed 08.09.2022]. 20 https://oko.press/lekarze-czekali-na-obumarcie-plodu-pacjentka-zmarla-jutro-protest-ani-jednejwiecej/ [accessed 08.09.2022]. 21 https://www.newsweek.pl/polska/spoleczenstwo/w-sejmie-projekt-stop-aborcji-zakaz-aborcji-pogwalcie-kary-za-aborcje/pev5551 [accessed 08.09.2022]. 22 https://www.ekai.pl/dziesieciokrotny-spadek-liczby-aborcji-w-polsce-w-2021-roku/ [accessed 08.09.2022]. 23 https://www.niedziela.pl/artykul/73520/nd/Podziemie-aborcyjne [accessed 08.09.2022].

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Current challenges for the protection of women’s rights in Poland – selected issues

worth noting that during the COVID-19 pandemic, such trips were quite difficult due to restricted border traffic. Following the announcement of this verdict, a social movement, the Women’s Strike, was born, which despite the restrictions of the COVID-19 pandemic, organised mass demonstrations in many cities and towns in Poland over many months. These protests were often aggressively and violently suppressed by the police. The protests were revived locally and in larger cities each time that a pregnant woman died in hospital because doctors, afraid to carry out an abortion, delayed the decision too long and waited for spontaneous fetal demise. Unfortunately, such cases do occur, which only confirms that the Constitutional Tribunal’s judgment has had a paralysing effect on many doctors, and situations in which a termination of pregnancy can be performed legally for the sake of the woman’s health and life are not at all clearly interpreted. The effect of these changes, as well as the poor economic situation due to the economic downturn caused by the COVID-19 pandemic, the war in Ukraine and rampant inflation, also means that women are now less likely to decide to have more children or to have a child at all. In Poland, there is no sexuality education subject in schools. The curriculum only includes Education for Family Life (from the fourth grade of primary school), a subject that conveys a very conservative view of human intimacy. Since 2017, it has also not been possible to buy the so-called morning-after pill without a pharmacy prescription: EllaOne, for example, has been available only on prescription since this time.24 Young girls in Poland also have limited access to hormonal contraception. They cannot obtain it free of charge from the school nurse, as teenagers do, for example, in Belgium or France,25 and Poland’s reimbursement system for hormonal contraception is very poorly developed. Finally, more and more doctors are invoking the so-called conscience clause and refusing to issue this type of prescription. Add to this the fact that a teenage girl under the age of 18 must, de facto, have the consent of her parent or legal guardian for any medical appointment, as well as permission to be prescribed any prescription drug (including the morning-after pill or hormonal contraception). This, in practice, entails a visit to the gynaecologist with a parent, which, due to the conservative mentality of a large part of Polish society, is in itself often unbearable for such young girls. It is an absurd situation when a 15-year-old

24 https://www.twoje-zdrowie24.pl/tabletka-dzien-po/ [accessed 09.09.2022]. 25 Cf. A. Szczerbiak, Polska z najgorszym dostępem do antykoncepcji w Europie, https://www. polityka.pl/tygodnikpolityka/spoleczenstwo/1782538,1,polska-z-najgorszym-dostepem-doantykoncepcji-w-europie.read [accessed 22.08.2022]. Cf. also D. Szelewa, Prawa reprodukcyjne w Europie i w Polsce: Zakaz, kompromis, czy wybór, Warszawskie debaty o polityce społecznej, #20, p. 9.

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girl can, according to Polish law, make a conscious decision to have sexual intercourse but cannot independently (i. e., without a consultation with a doctor) decide to take hormonal contraception.26 Many of these aspects contribute to the fact that fertility in Poland is declining. This is confirmed by the declining fertility rate, which has decreased from 1.991 in 1990 to 1.378 in 202027 (it is worth recalling that a rate of 2.00–2.15 enables the replacement of generations).28 In addition, there has been a negative natural increase every year since 2013.29 In this context, it should also be stated that women in Poland have difficulties accessing modern infertility treatment methods, as the IVF procedure is not reimbursed by the National Health Fund. It can be performed privately but demands a large financial outlay from the patient, and it is only financed by certain local authorities (e. g., the city of Poznań and Warsaw).30 In Poland, accessing nurseries and kindergartens is still a big problem, so this has a negative impact on the position and stability of young mothers in the labour market. Also, the recent influx of refugees from Ukraine has significantly exacerbated this problem, as both the pre-school care system and schools have to absorb new children, who often have war trauma and do not know the Polish language. Incidentally, we should add here that it is no systemic solution to simply increase nursery or pre-school groups and add new desks in schools. This is because a common problem today is that mothers who fear losing their jobs through repeated absences from work due to child illness are sending their sick or under-treated children to these nurseries or pre-schools. The government programme Family 500+, introduced after the Law and Justice party won the parliamentary elections in the autumn of 2015, was supposed to be the answer to the aforementioned demographic crisis in Poland. The programme entered into force on 1 April 2016, by virtue of the Act of 11 February 2016 on state aid in rearing children.31 It consists of the state providing families with a monthly child-rearing benefit of PLN 500 per child and is intended to partially cover expenses related to raising children. The Explanatory Memorandum to the submitted draft Act identifies two objectives of the Family 500+ programme: the first is to reduce the financial burden of raising children and the second is to encourage

26 See https://www.rp.pl/prawo-dla-ciebie/art1726141-prawa-pacjenta-15-latka-moze-wspolzyc-alenie-pojdzie-sama-do-ginekologa [accessed 22.08.2022]. 27 Rocznik Demograficzny Głównego Urzędu Statystycznego, Warszawa 2021, pp. 47, 49. 28 A. Giza, M. Głowacka-Grajper, S. Urbańska, Mieszkańcy Polski, Warszawa 2020, p. 41. 29 Above n. 27, p. 26. 30 https://www.poznan.pl/mim/main/-,p,39580.html, https://zdrowie.um.warszawa.pl/program-invitro [accessed 12.09.2022]. 31 Dz.U. poz. 195 ze zm. [OJ no. 195, as amended.]

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Current challenges for the protection of women’s rights in Poland – selected issues

people to have more children.32 From April 2016 to June 2019, the child-rearing benefit for the first child was available to families whose income per person did not exceed PLN 800. However, this condition did not apply to the second and each subsequent child. From July 2019, the income criterion was abolished. Currently, the child-rearing benefit of PLN 500 for the first and each subsequent child can be received by families, regardless of their income level. After six years of the Family 500+ programme being in force, in our opinion it is impossible to say that it has met all its objectives. Polish society is still struggling with a demographic crisis and continuing to record a negative birth rate. Only in 2017, a slightly higher growth rate of -0.9 (in thousands) was recorded, compared to previous and subsequent years. On the other hand, however, the programme has contributed to reducing extreme poverty in Poland, particularly in families with many children, from 6.5% in 2015 to 4.2% in 2021.33 Of interest, from the point of view of the topic of this article, are two social programmes: Good Start and Family Care Capital. The first one, implemented in 2018, consists of providing families with financial support of PLN 300 for each child and is to help defray expenses related to the start of the school year.34 It is a universal programme, as receiving the benefit does not depend on one’s income. According to government data, Good Start provides support for 4.4 million students in Poland.35 The Family Care Capital, on the other hand, is a new programme, which was implemented on 1 January 2022. The Explanatory Memorandum to the draft Family Care Capital Act of 17 November 202136 indicates that the purpose of the benefit is to ‘mitigat[e] adverse demographic trends’. It is worth noting this issue in the context of the previously described ineffectiveness of the Family 500+ programme, which did not contribute to an increase in fertility rates in Poland over several years. The Family Care Capital is another universal benefit, as family income is not taken into account in the payment of funds. The programme consists of granting financial support in the amount of PLN 500 or PLN 1,000 per month (for 24 or 12 months respectively, with the maximum amount of support being PLN 12,000 per child) for the second and each subsequent child in the family from

32 Zob. https://orka.sejm.gov.pl/Druki8ka.nsf/0/6A2B97FB4F15F393C1257F4D002A61A2/%24File/ 216.pdf [accessed 05.09.2022]. 33 See Zasięg ubóstwa ekonomicznego w Polsce w 2021 r. (na podstawie wyników badania budżetów gospodarstw domowych), https://stat.gov.pl/obszary-tematyczne/warunki-zycia/ubostwo-pomocspoleczna/zasieg-ubostwa-ekonomicznego-w-polsce-w-2021-roku,14,9.html [accessed 05.09.2022]. 34 Uchwała nr 80 Rady Ministrów z dnia 30 maja 2018 roku w sprawie ustanowienia rządowego programu ‘Dobry start’ (M.P. poz. 514). [Resolution No. 80 of the Council of Ministers of 30 May 2018 on the establishment of the government programme ‘Good Start’, M.P. pos. 514.] 35 https://www.gov.pl/web/rodzina/dobry-start [accessed 07.09.2022]. 36 Dz.U. poz. 2270. [J. of L., item 2270.]

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the first day of the month in which the child turns 12 months old until the last day of the month preceding the month in which the child turns 36 months old.37 In view of the short period in which the Family Care Capital has been in force, it is not yet possible to assess whether it has contributed to an increase in the fertility rate in Poland. Taking into account the constitutional principle of the well-being of the family and the mother’s right to assistance from public authorities,38 the Mama 4+ parental supplementary benefit was introduced in 2019. It consists of support for mothers who are over 60 and have given birth and have raised or are raising at least four children. The programme is also addressed to fathers aged 65 and over who are raising at least four children. The support is relevant in the event of the death of the children’s mother or the abandonment of the children by the mother, as well as in the event that the mother ceases to raise the children over a long period of time. The benefit is granted to the above-mentioned fathers upon fulfilment of the above-mentioned conditions, taking into account the income they earn and whether or not it provides them with the necessary means of subsistence.39 It is also worth pointing out the idea of introducing a scheme in Poland to pay benefits to grandparents looking after their grandchildren when the children’s mothers return to work. A similar solution is in place in Hungary.40 For the time being, this type of benefit in Poland remains at the conceptual stage. However, in our opinion, such social support could contribute to keeping seniors active while at the same time lead to the strengthening of intergenerational relations in families. Grandchildren would remain in the permanent care of grandmothers and grandfathers, who would receive support to cover their grandchildren’s living expenses. In fact, there are still many seniors in Poland who are at risk of poverty; in 2019, such a group accounted for 17.4% among people over 65 years of age.41 The changes in the Polish Labour Code42 concerning leave related to the rearing of a newborn child should be assessed positively. Currently, a mother is entitled to 20 weeks of maternity leave after giving birth.43 Once she has taken at least 14 weeks 37 Art. 4 ust. 4 Ustawy z dnia 17 listopada 2021 roku o rodzinnym kapitale opiekuńczym. [Article 4(4) of the Act of 17 November 2021 on the Family Capital of Care.] 38 Article 71 of the Constitution of the Republic of Poland of 2 April 1997. 39 Ustawa z dnia 31 stycznia 2019 roku o rodzicielskim świadczeniu uzupełniającym (Dz.U. poz. 303 ze zm.). [Act of 31 January 2019 on parental supplementary benefit, Dz.U. pos. 303, as amended.] 40 https://dziennikzachodni.pl/babcia-plus-nowym-programem-wsparcia-dla-dziadkow-rzadwprowadzi-swiadczenie-wzorowane-na-500-plus-za-opieke-nad-dziecmi/ar/c6-15572179 [accessed 07.09.2022]. 41 https://businessinsider.com.pl/twoje-pieniadze/emerytury/emerytury-poziom-ubostwa-wsrodosob-65-idzie-w-gore/6hpb4rl [accessed 07.09.2022]. 42 Dz.U. nr 24 poz. 141 ze zm. [OJ no. 24, item 141, as amended.] 43 Art. 180 §1 Kodeksu Pracy. [Article 180 §1 of the Labour Code.]

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Current challenges for the protection of women’s rights in Poland – selected issues

of leave after giving birth, she has the right to give up the remaining six weeks, which is then transferred to the father.44 After maternity leave, there is parental leave of 32 weeks. This can be taken either entirely by one parent or by both.45 The father is also entitled to paternity leave, which is 14 days.46 In Poland, the retirement age is 60 years old for women and 65 years old for men. In 2021, there were around six million pensioners in Polish society and, importantly, this demographic will grow.47 In view of the intensification of the demographic crisis, along with increasingly longer life expectancy and better living conditions, the retirement age for women and men should be delayed. However, as practice has proven, pension reform should be carried out in a non-violent manner, with the public duly informed of the rationale for change. This was lacking in 2012, when the then government of Donald Tusk carried out reforms in this area, whereby women and men were to eventually retire at the age of 67. At the time, Poles strongly opposed this reform.48 In 2017, at the instigation of Law and Justice, the retirement age was lowered in Poland, returning to 60 years old for women and 65 years old for men. To some extent, women in Poland have a privileged position in the event of divorce (let us add that the majority of divorce petitions in Poland are filed by women). The Polish Family and Guardianship Code49 does not provide for the institution of alternate custody; moreover, it still has not formulated a legal definition of this concept.50 In practice, alternate custody is very rarely given and only in cases where the parties can prove that there is no conflict between them and at their express request.51 In most situations, the child in a divorce lives with the mother, and the fathers can take care of them (unless the parties agree on a joint parenting plan involving the father to a greater extent, which is then approved by the court) on strictly defined days, weekends or part of the holidays. In Poland, domestic violence perpetrated against women is also a big problem (which has intensified, as in other countries during the repeated lockdowns during

44 45 46 47 48 49 50 51

Art. 180 §4 Kodeksu Pracy. [Article 180 §4 of the Labour Code.] Art. 1821a Kodeksu Pracy. [Article 1821a of the Labour Code.] Art. 1823 Kodeksu Pracy. [Art. 1823 of the Labour Code.] https://www.bankier.pl/wiadomosc/Ponad-6-mln-emerytow-w-Polsce-a-bedzie-wiecej-8285680. html [accessed 06.09.2022]. https://www.cbos.pl/SPISKOM.POL/2012/K_077_12.PDF [accessed 06.09.2022]. Dz.U. nr 9 poz. 59 ze zm. [J. of L., no. 9, item 59, as amended.] https://www.prawo.pl/prawo/opieka-naprzemienna-bedzie-zmiana-w-prawie,516653.html [accessed 12.09.2022]. See Wyrok Naczelnego Sądu Administracyjnego z dnia 29 września 2021 roku, sygn. I OSK 4362/18. [Judgment of the Supreme Administrative Court of 29 September 2021, ref. no I OSK 4362/18.] See also https://dadhero.pl/285539,system-jest-przeciwko-nam-ojcowie-walczacy-o-prawa-do-swoichdzieci [accessed 12.09.2022].

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the COVID-19 pandemic). In spite of this, the extremely Eurosceptic Minister of Justice declared in July 2020 that Poland should denounce the Istanbul Convention,52 which, according to him, uses the concept of cultural rather than biological sex and pays homage to gender ideology. The minister stated that without this convention, the guarantees of the rights of female victims of domestic violence stand at a high enough level in Poland.53 Women in de facto relationships with other women cannot legalise their relationships in any way in Poland. According to Article 18 of the Polish Constitution, marriage is a union between a man and a woman, and Polish law does not provide for other ways of legalising same-sex unions, such as the ‘registered/live-in partnership’ common in many Western European countries. The only effective way of securing joint interests in a same-sex relationship is to draw up a will in notarial form or a notarial contract, which may include appropriate mutual powers of attorney (e. g., to decide on the treatment of the partner, to dispose of the partner’s property, to use and register in a dwelling, to inspect medical records and so on. In Poland, statistically, women are better educated,54 yet it is still a problem that women in comparable positions do not earn as much as men. Recently, a quite visible trend is that young women from the countryside or small towns are moving en masse to big cities, which offer them different (often better) educational and professional opportunities, while young men, often farmers and less educated, cannot find a partner nearby with whom they can start a family. A symbol of this phenomenon has become the highly emotionally charged reality TV show ‘The Farmer Wants a Wife’. Although Poland has a reputation abroad as a conservative country, many women in Poland are employed in high positions and hold influential positions (e. g., in business). In Poland, quotas on electoral lists have been in force for more than a decade for elections to the Sejm and for elections to municipal councils and cities with more than 20,000 inhabitants. These quotas indicate that the number of female candidates should not be lower than 35% of the number of all candidates on the list. The introduction of quotas on electoral lists was the result of the activities of the civic movement Women’s Congress, which submitted a civic bill on this issue in January 2010.55 The rationale for quotas introduction on electoral lists was to increase the presence of women, particularly in the Sejm.56 Nevertheless, it is not

52 https://www.rp.pl/polityka/art274891-nadciaga-klotnia-o-konwencje-stambulska-pis-wyciagaprojekt [accessed 12.09.2022]. 53 https://www.rmf24.pl/fakty/polska/news-zbigniew-ziobro-polskie-prawo-chroni-kobiety-przedprzemoca-,nId,4631447#crp_state=1 [accessed 12.09.2022]. 54 https://www.prawo.pl/student/global-gender-gap-index-2019,496473.html [accessed 09.09.2022]. 55 http://orka.sejm.gov.pl/proc6.nsf/opisy/2713.htm [accessed 06.09.2022]. 56 A. Dudek, Historia polityczna Polski 1989–2015, Kraków 2016, p. 640.

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Current challenges for the protection of women’s rights in Poland – selected issues

possible to conclude from analysing the results of the elections to the Sejm that the validity of electoral quotas has contributed to an increase in the number of female MPs. Specifically, in the seventh legislature there were 344 men and 116 women, in the eighth legislature there were 335 men and 125 women, and in the (current) ninth legislature there are 328 men and 132 women.57 The way in which the electoral lists are filled remains problematic, as the ‘taking places’58 are more often given to men.59 However, it should also be noted that in Poland after 1989, as many as three women have held the office of Prime Minister (Hanna Suchocka, Ewa Kopacz and Beata Szydło, respectively). Currently, the second person in the state, according to the Polish Constitution, after the President of the Republic of Poland, is the Speaker of the Polish Sejm, Elżbieta Witek.

4.

Conclusions

Contemporary Poland (especially in the context of its presence in the EU) certainly faces problems regarding the rule of law, and these are mainly due to reforms of the judiciary and the broader justice system, which have been going in the wrong direction for several years. Women’s rights are currently a hotly debated topic, and as we have tried to demonstrate in our study, they do not begin and end with the issue of access to abortion. Despite the many worrying observations made above, some important steps have been made regularly over the last few years. The 500+ programme has not increased the fertility rate, but it plays a big social role, thanks to which many mothers (also single mothers) are able to buy their children, for example, winter boots or go on holiday for the first time in their lives. Of course, there are parents who spend this money inappropriately, but that is always the case with social programmes. The same is true of the Good Start programme and the Family Care Capital. Women are now better educated and more aware of their rights and are also very often in solidarity with each other in a social sense, forming vibrant associations or support groups from below. The extension of maternity leave, the introduction of a maternal pension in the case of mothers of families with many children and the prospect of grandparents taking care of their grandchildren so that the latter’s

57 https://www.sejm.gov.pl/Sejm7.nsf/, https://www.sejm.gov.pl/sejm8.nsf/page.xsp/poslowie_poczatek_kad, https://www.sejm.gov.pl/Sejm9.nsf/page.xsp/poslowie_wybory [accessed 06.09.2022]. 58 ‘Taking places’ means a situation when candidates are given high places on the election list, which increase the chance of being elected. 59 https://konkret24.tvn24.pl/polityka,112/kobiety-na-listach-do-sejmu-parytet-zachowany-alejedynek-niewiele,969247.html [accessed 06.09.2022].

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parents can remain active on the labour market in the face of a severe lack of availability in nurseries and kindergartens are all visible signs of the promotion of the rights of women of different ages in Poland. Such gains should be assessed positively, even if these changes are still taking place too slowly. Nevertheless, the circumstances (including those related to abortion, access to effective contraception and sound medical knowledge regarding sexual education) of young girls and women do not inspire optimism and make many of them simply afraid to decide to become mothers. In our opinion, the verdict of the Constitutional Tribunal of 22 October 2020 has no justification in the provisions of the Constitution and forces women to be heroic. Furthermore, the function of the law should not be to replace the human conscience and the decisions of doctors informed by sound medical knowledge; rather, it should be to ensure each individual the freedom of choice and the possibility to use medical procedures commonly used in the world, even if they are contrary to the religious worldview of a part of society. The violation of the ‘social compromise on abortion’ may, in terms of loss of power by the current government, cause the political pendulum to swing radically the other way and, as a result, in a few years’ time the situation is likely to change once again, hopefully towards liberalisation of the regulations in question.

References Legal acts Ustawa Konstytucyjna z dnia 17 października 1992 roku o wzajemnych stosunkach między władzą ustawodawczą i wykonawczą Rzeczypospolitej Polskiej oraz o samorządzie terytorialnym (Dz.U. nr 84 poz. 426 ze zm.) [Constitutional Act of 17 October 1992 on mutual relations between the Legislative and Executive Authorities of the Republic of Poland and on local self-Government, J. of L., no. 84, item 426, as amended.] Ustawa z dnia 30 sierpnia 1996 roku o zmianie ustawy o planowaniu rodziny, ochronie płodu ludzkiego i warunkach dopuszczalności przerywania ciąży oraz o zmianie niektórych innych ustaw (Dz.U. nr 139 poz. 646 ze zm.). [Act of 30 August 1996 amending the Act on family planning, protection of the human foetus and the conditions for permissibility of termination of pregnancy and amending certain other acts, J. of L., no. 139, item 646, as amended.] Ustawa z dnia 31 stycznia 2019 roku o rodzicielskim świadczeniu uzupełniającym (Dz.U. poz. 303 ze zm.). [Act of 31 January 2019 on parental supplementary benefit, Dz.U. pos. 303, as amended.] Uchwała nr 80 Rady Ministrów z dnia 30 maja 2018 roku w sprawie ustanowienia rządowego programu ‘Dobry start’ (M.P. poz. 514). [Resolution No. 80 of the Council of Ministers of

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Current challenges for the protection of women’s rights in Poland – selected issues

30 May 2018 on the establishment of the government programme ‘Good Start’, M.P. pos. 514.]1206.

Jurisdiction Orzeczenie Trybunału Konstytucyjnego z dnia 28 maja 1997 roku, sygn. akt K 26/96, OTK ZU 2/1997, poz. 19. [Judgment of the Constitutional Tribunal of 28 May 1997, ref. no. K 26/96, OTK ZU 2/1997, item 19.] Wyrok Trybunału Konstytucyjnego z dnia 22 października 2020 roku, OTK-ZU A 2021, poz. 4. [Judgment of the Constitutional Court of 22 October 2020, OTK-ZU A 2021, item 4.] Wyrok Naczelnego Sądu Administracyjnego z dnia 29 września 2021 roku, sygn. I OSK 4362/18. [Judgment of the Supreme Administrative Court of 29 September 2021, ref. no I OSK 4362/18.]

Literature Dudek A., Historia polityczna Polski 1989–2015, Kraków 2016. Giza A., Głowacka-Grajper M., Urbańska S., Mieszkańcy Polski, Warszawa 2020. Rocznik Demograficzny Głównego Urzędu Statystycznego, Warszawa 2021. Szelewa D., Prawa reprodukcyjne w Europie i w Polsce: Zakaz, kompromis, czy wybór, Warszawskie debaty o polityce społecznej, #20.

Netography Consumer inflation in Poland in July 2022 was 15.6 per cent. See Narodowy Bank Polski – Internetowy Serwis Informacyjny (nbp.pl), https://www.nbp.pl/home.aspx?f=/statystyka/ bazowa/bazowa.htm [accessed 22.08.2022]. https://www.pulshr.pl/zarzadzanie/cztery-miliony-kobiet-w-polsce-ani-nie-pracuje-ani-sienie-uczy-a-problem-narasta,82940.html [accessed 22.08.2022]. https://serwisy.gazetaprawna.pl/zdrowie/artykuly/8256416,aborcja-zaswiadczenie-odpsychiatry.html [accessed 08.09.2022]. https://oko.press/lekarze-czekali-na-obumarcie-plodu-pacjentka-zmarla-jutro-protest-anijednej-wiecej/ [accessed 08.09.2022]. https://www.newsweek.pl/polska/spoleczenstwo/w-sejmie-projekt-stop-aborcji-zakazaborcji-po-gwalcie-kary-za-aborcje/pev5551 [accessed 08.09.2022]. https://www.ekai.pl/dziesieciokrotny-spadek-liczby-aborcji-w-polsce-w-2021-roku/ [accessed 08.09.2022]. https://www.niedziela.pl/artykul/73520/nd/Podziemie-aborcyjne [accessed 08.09.2022]. https://www.rp.pl/prawo-dla-ciebie/art1726141-prawa-pacjenta-15-latka-moze-wspolzycale-nie-pojdzie-sama-do-ginekologa [accessed 22.08.2022].

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https://dadhero.pl/285539,system-jest-przeciwko-nam-ojcowie-walczacy-o-prawa-doswoich-dzieci [accessed 12.09.2022]. https://dziennikzachodni.pl/babcia-plus-nowym-programem-wsparcia-dla-dziadkowrzad-wprowadzi-swiadczenie-wzorowane-na-500-plus-za-opieke-nad-dziecmi/ar/c615572179 [accessed 07.09.2022]. https://businessinsider.com.pl/twoje-pieniadze/emerytury/emerytury-poziom-ubostwawsrod-osob-65-idzie-w-gore/6hpb4rl [accessed 07.09.2022]. https://www.bankier.pl/wiadomosc/Ponad-6-mln-emerytow-w-Polsce-a-bedzie-wiecej8285680.html [accessed 06.09.2022]. https://www.prawo.pl/prawo/opieka-naprzemienna-bedzie-zmiana-w-prawie,516653.html [accessed 12.09.2022]. https://www.rp.pl/polityka/art274891-nadciaga-klotnia-o-konwencje-stambulska-piswyciaga-projekt [accessed 12.09.2022]. https://www.rmf24.pl/fakty/polska/news-zbigniew-ziobro-polskie-prawo-chroni-kobietyprzed-przemoca-,nId,4631447#crp_state=1 [accessed 12.09.2022]. https://www.sejm.gov.pl/Sejm9.nsf/page.xsp/poslowie_wybory [accessed 06.09.2022]. https://konkret24.tvn24.pl/polityka,112/kobiety-na-listach-do-sejmu-parytet-zachowanyale-jedynek-niewiele,969247.html [accessed 06.09.2022]. https://orka.sejm.gov.pl/Druki8ka.nsf/0/6A2B97FB4F15F393C1257F4D002A61A2/ %24File/216.pdf [accessed 05.09.2022]. https://www.europarl.europa.eu/doceo/document/CRE-8-2016-10-05-ITM-017_PL.html [accessed 09.09.2022]. https://www.cbos.pl/SPISKOM.POL/2012/K_077_12.PDF [accessed 06.09.2022]. http://orka.sejm.gov.pl/proc6.nsf/opisy/2713.htm [accessed 06.09.2022]. https://www.gov.pl/web/rodzina/dobry-start [accessed 07.09.2022]. https://www.twoje-zdrowie24.pl/tabletka-dzien-po/ [accessed 09.09.2022]. Komuda Ł., Współczynnik aktywności zawodowej, https://rynekpracy.org/statystyki/ wspolczynnik-aktywnosci-zawodowej-2/ [accessed 22.08.2022]. Szczerbiak A., Polska z najgorszym dostępem do antykoncepcji w Europie, https://www.polityka.pl/tygodnikpolityka/spoleczenstwo/1782538,1,polska-z-najgorszym-dostepem-doantykoncepcji-w-europie.read [accessed 22.08.2022]. Urbaniak K., Płeć a realizacja praw wyborczych, https://repozytorium.uni.wroc.pl/Content/78302/PDF/02_Urbaniak_K_Plec_a_realizacja_praw_wyborczych.pdf [accessed 22.08.2022]. Zasięg ubóstwa ekonomicznego w Polsce w 2021 r. (na podstawie wyników badania budżetów gospodarstw domowych), https://stat.gov.pl/obszary-tematyczne/warunki-zycia/ubostwopomoc-spoleczna/zasieg-ubostwa-ekonomicznego-w-polsce-w-2021-roku,14,9.html [accessed 05.09.2022]. Zatrudnienie w Polsce w górę – Ministerstwo Rodziny i Polityki Społecznej – Portal Gov.pl (www.gov.pl); https://www.gov.pl/web/rodzina/zatrudnienie-w-polsce-w-gore [accessed 22.08.2022].

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Maciej Serowaniec, Marcin Dorochowicz

Independence of judges and prosecutors in Poland in light of international standards

1.

Introduction

As the bearer of the judiciary’s authority, judges and prosecutors form a special legal corps that has an exceptionally important systemic and social mission to fulfil. This is because the authority entrusted to them is closely linked to such universal values as justice, freedom and equality. The public interest in maintaining citizens’ trust in the judiciary institutions obliges the legislator to give judges and prosecutors a special legal status. This is intended to ensure that the administration of justice is carried out by persons with adequate knowledge, high ethical standards and substantial life experience.1 The authors of this article will attempt to answer the question of whether, and to what extent, the reforms initiated by the current government concerning the functioning of the judiciary in the broadest sense of the term affect the independent observance of international and constitutional standards by common court judges and prosecutors.

2.

Independence of judges in Poland in light of international standards

The preservation of the prestige and dignity of the judicial profession is one of the primary objectives pursued by the standards of professional deontology for judges adopted under international and national law. The first recommendations for developing a contemporary judicial ethos were formulated under the auspices of the UN. However, the Basic Principles on the Independence of the Judiciary, adopted by the UN General Assembly in Resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985, focused exclusively on identifying institutional, functional and financial safeguards to ensure the independence of judges, leaving aside issues of ethics and deontology regarding the judicial profession. Only subsequent

1 S. Dąbrowski, Kilka uwag o kondycji sędziów [Several remarks on the condition of judges], in: Zawody prawnicze [Judicial Professions], eds. T. Gardocka, J. Sobczak, Toruń 2010, p. 73.

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charters, documents and recommendations (e. g., the Charter of Judges in Europe,2 Recommendation 94/12 of the Committee of the Council of Europe,3 the European Charter on the Status of Judges,4 the ‘Magna Carta of European Judges’,5 the Report of the Venice Commission on the Independence of the Judicial System6 or the Kiev Recommendations on the Independence of the Judiciary in Eastern Europe7 ) adapted the previous guarantees to the changing social and cultural realities by emphasising ethical and moral issues. However, the indicated documents continued to emphasise the priority of the values attributed to judges, such as independence, independence or impartiality. The first of these values operates in a dual perspective. In the individual dimension, the independence concerns each judge and the extent to which they are free to decide cases according to their own assessment of the facts and understanding of the law, excluding any influence. On the other hand, independence in the institutional dimension is understood as the independence of the court from the legislature and the executive and as the exercise of jurisdiction over all matters of a judicial nature.8 The concept of independence has also been linked to the responsibility of judges to (among other things) strengthen and protect the legal culture of society. In contrast, impartiality has been defined as the need for a judge to resist judgments based on his or her experiences, stereotypes

2 See Judges’ Charter in Europe, adopted by the European Judges’ Association in 1993, http://www.iajuim.org/iuw/wp-content/uploads/2013/01/Statuto-Giudice-EAJ.pdf (accessed: 21.08.2022). 3 See Recommendation 94/12 of the Committee of the Council of Europe, drafted in 1994 and updated in 2010. (Recommendation CM/Rec(2010)12 on judges: independence, efficiency and duties), http://www.giacomooberto.com/coe_raccomandazione_2010/coe_rec_2010_12_e.htm (accessed: 21.08.2022). 4 See European Charter on the Status of Judges, produced by the Council of Europe in 1998, https:// advokat-prnjavorac.com/legislation/European_charter_on_the_statute_for_judges.pdf (accessed: 21.08.2022). 5 In 2000, the Council of Europe established the Consultative Council of European Judges, which has an advisory function regarding the constitutional position of judges and the implementation of standards for the international protection of human rights into national orders. In 2010, the Council adopted the so-called ‘Magna Carta of Judges’ (Fundamental Principles), summarising and codifying the main conclusions of previously adopted opinions (CCJE /2010/3 Final). 6 See the Venice Commission Report on the Independence of the Judiciary (Study No 494/ 2008), http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2010)004e (accessed: 22.08.2022). 7 See Kiev Recommendations on the Independence of the Judiciary in Eastern Europe, http://www. osce.org/odihr/KyivRec (accessed: 22.08.2022). 8 A. Machnikowska, Sprawność postępowania sądowego w kontekście etosu sędziowskiego [Efficiency of judicial proceedings in the context of the judicial ethos], Gdańskie Studia Prawnicze 2015, no. XXXIII, p. 240.

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Independence of judges and prosecutors in Poland in light of international standards

and prejudices. In parallel, impartiality has also begun to be linked to the judge’s responsibility for the conduct of judicial proceedings.9 The Bangalore Principles of Judicial Conduct (Bangalore Principles), adopted in 2002 by the Judges’ Group for Strengthening the Integrity of the Judiciary,10 has also played an important role in shaping the contemporary judicial ethos. The UN Economic and Social Council adopted the document by Resolution 2006/23 of 27 July 2006. The preamble to this document emphasises that ‘public confidence in the administration of justice and the moral authority of judges is of the utmost importance in a democratic society’. Six fundamental principles of judicial conduct are identified: independence, which is a condition of the rule of law and should safeguard personal and institutional independence; impartiality, which is expressed not only in the decision itself but also in how the decision is made; integrity in the exercise of the office; propriety, relating to all activities of the judge; ensuring equality; competence and diligence.11 Despite their non-binding nature, the Bangalore Principles, like the other international documents analysed, have played a key role in shaping national systems of professional deontology for judges. In light of the jurisprudence of the Court of Justice of the EU and the European Court of Human Rights, the international standards on judicial independence and independence of judges insist on the absence of not only real but also even apparent dependence of the courts (i. e., judges) in their adjudicatory activity on factors other than the mere requirements of the law. Therefore, the assessment of whether a body (court) deciding a case is independent, as required by Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the Convention), should be made while particularly taking into account how its members are appointed, the existence of guarantees of protection against external pressure and whether there is an impression of the independence of the body (court).12 Of fundamental importance for forming the ethos of the judicial profession in Poland is the provisions of the Constitution of the Republic of Poland of 2 April

9 H. Izdebski, Bezstronność [Impartiality], in: Etyka zawodów prawniczych: etyka prawnicza [Ethics of the judicial profession: legal ethics], eds. H. Izdebski, P. Skuczyński, Warszawa 2006, pp. 122–123. 10 The Judges’ Group for Strengthening the Integrity of the Judiciary is an independent, autonomous, non-commercial and voluntary body composed of judicial leaders or long-serving judges from different countries. 11 T. Romer, Zasady z Bangalore [Bangalore Principles], Edukacja Prawnicza 2004, no. 11, p. 51. 12 See judgment of the ECtHR, Full Court, 22 June 1989, Langborger v. Sweden, para. 32 of the grounds; judgment of the ECtHR, 22 November 1995, Bryan v. the United Kingdom, ref. 19178/91, para. 37 of the grounds; judgment of the ECtHR, 9 November 2006, Sacilor-Lormines v. France, ref. 65411/01, para. 59 of the grounds.

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1997.13 The Constitution regulates, among other things, the issue of the right of citizens to a court (Article 45), the nature of the judiciary (Articles 175–177) and the status of a judge (Articles 178–181) and formulates specific metanorms of judicial ethics in the form of the principles of judicial independence, independence and impartiality. The concept of judicial independence was used in the Constitution of the Republic of Poland of 1997 without any closer definition. However, there is no doubt that the legislator used a ‘foundational term’ here, the meaning of which was already formed in interwar Poland. In defining the principle of judicial independence, the Constitutional Tribunal indicated that it ‘encompasses several elements such as: impartiality towards the participants of the proceedings; independence towards extrajudicial authorities (institutions); independence of the judge towards the authorities and other judicial authorities; independence from the influence of political factors, especially political parties;14 internal independence of the judge. Respecting and defending all these elements of independence is the constitutional duty of all bodies and persons coming into contact with the activities of the courts’.15 Implementing the principle of judicial independence is served by several constitutional institutions of a systemic, procedural and economic nature.16 According to Article 178(1) of the Constitution, judges in the exercise of their office are subject only to the Constitution and Acts. As noted by the Provincial Administrative Court in Poznań, ‘thanks to the above constitutional empowerment, a judge (…) may, in a particular case, when the legislative authority fails to perform its duties or performs them in a highly negligent manner, directly apply the relevant constitutional provision so that the principle ex iniuria non oritur ius is applied in a democratic state of law’.17

13 Konstytucja Rzeczypospolitej Polskiej z dnia 2 kwietnia 1997 r. [The Constitution of the Republic of Poland of 2 April 1997], J. of L. 1997, No. 78, item 483 as amended. 14 Z. Witkowski, Kilka uwag w kwestii kultury prawnej i politycznej współczesnych elit rządzących w Polsce (w kontekście zmian ustroju władzy sądowniczej) [Several remarks on the legal and political culture of contemporary ruling elites in Poland (in the context of changes in the system of judicial power)], in: Organizácia súdnej moci v Pol’skej Republike, Českej Republike a Slovenskej Republike [Organisation of the judiciary in Poland, the Czech Republic and Slovak], ed. A. Krunková, Košice 2019, pp. 132–138. 15 R. Piotrowski, Zagadnienie legitymizacji władzy sądowniczej w demokratycznym państwie prawnym [The problem of the legitimacy of the judiciary in a democratic state under the rule of law], in: Legitymizacja władzy sądowniczej [Legitimacy of the judicial power], ed. A. Machnikowska, Gdańsk 2016, pp. 11–27. 16 M. Serowaniec, Several remarks on the ethics of the profession of a judge in Poland, Studi polaccoitaliani di Toruń 2017, no. XIV, pp. 92–95. 17 See judgment of the Voivodeship Administrative Court in Poznań of 25 January 2007, I SA/Po 2626/03.

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Independence of judges and prosecutors in Poland in light of international standards

The institution of judicial immunity also secures the separation of the judiciary from other authorities. As underlined by the Constitutional Tribunal, judicial immunity provides protection ‘for the holders of the judiciary against provocation and retaliation, as well as against pressure (albeit indirect) from other authorities or – which nowadays possess the greatest threat to the distinctiveness of the third power – against the influence of political centres interested in the staffing of the judiciary, and misdirected media pressure’.18 Indeed, according to Article 181 of the Constitution, a judge may not, without the prior consent of a court specified by law, be held criminally responsible (formal immunity) or deprived of liberty. Nor may a judge be detained or arrested (principle of immunity), except when caught in the act of committing a crime, and only if his or her detention is necessary to ensure the proper course of the proceedings.19 The Constitution also links to the principle of independence the obligation of judges to remain apolitical (Article 178(3) of the Constitution). A judge may not belong to a political party or a trade union or engage in public activities incompatible with judges’ judicial independence and independence. In addition, a judge may not take up additional employment, except for employment in a teaching, scientific or research position, if the performance of such employment does not interfere with the performance of the duties of a judge. Professional stability is ensured through the principle of appointment of judges by the President of the Republic for an indefinite period (Article 179 of the Constitution) and the principle of non-removability of judges (Article 180(1) of the Constitution). Indeed, a judge’s removal or suspension from office or a judge’s transfer to another seat or position against his or her will may take place only as the result of a court ruling and only in cases specified by statute (Article 180(2) of the Constitution). Moreover, the retirement of a judge due to illness or loss of strength, rendering him or her incapable of performing the duties of his or her office, may take place only in the procedure provided by statute (Article 180(3) of the Constitution). The constitutional regulation further stipulates that in case of a change in the structure of courts or the boundaries of court districts, it is possible to transfer a judge to another court or for the judge to retire with full remuneration guaranteed (Article 180 (4) of the Constitution). Therefore, any attempt to introduce legal regulations that force the termination of judicial service due to a change in the retirement age should be treated as a violation of the standards arising from Article 180 of the Constitution.

18 See judgment of the Constitutional Court of 28 November 2007, K 39/07. 19 M. Serowaniec, Sądownictwo [The judicial power], in: Prawo konstytucyjne [Constitutional Law], eds. Z. Witkowski, A. Bień-Kacała, Toruń 2015, pp. 461–462.

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Article 178(2) of the Constitution, in turn, introduces the requirement to ensure that judges’ working conditions and remuneration correspond to the dignity of their office and the scope of their duties. Indeed, the system of judicial remuneration, which corresponds to the indications of Article 178(2) of the Constitution, is an important element of the judicial system. Therefore, the status of a judge, including his/her financial status, is one of the determinants of judicial independence.20 Since the entry into force of the Constitution of the Republic of Poland on 2 April 1997, it seemed that the constitutional standards guaranteeing judicial independence would be able to effectively protect judges from excessive interference from the legislative and executive powers. Following the parliamentary elections of October 2015, the ruling majority embarked on intensive legislative work in the prosecution service, the general judiciary and the Supreme Court. In July 2017, the Sejm adopted an amendment to the Act on the System of Common Courts. The Act introduced, among other things, a new procedure for appointing and dismissing presidents and vice-presidents of courts, a new retirement age for judges and new rules for judicial promotion. This Act and the simultaneously processed draft amendments to the Acts on the National Council of the Judiciary and the Supreme Court provoked opposition from legal circles, as well as mass social protests. Despite the ultimate vetoing of two of the latter acts (on the Supreme Court and the NCJ), the President signed the amendment to the Act on the System of Common Courts. The amended Act entered into force on 12 August 2017. In turn, on 8 December 2017, without public consultation, the Sejm adopted the version of the Act on the Supreme Court proposed by the President.21 From the beginning of 2016, the Ministry of Justice has significantly reduced announcing competitions for judicial vacancies, resulting in a so-called ‘freeze’ on judicial posts. Nevertheless, since 2016, the number of vacancies for judicial positions began to increase exponentially, reaching 745 vacancies in April 2019.22 Furthermore, within six months of its entry into force, the Act amending the Act on the System of Common Courts gave the Minister of Justice the power to dismiss presidents and vice-presidents of courts completely at will, without the need for any other opinion. The Minister, exercising his power, dismissed 158 presidents and vicepresidents between 12 August 2017 and 12 February 2018. The amended Act on the System of Common Courts also introduced changes to the disciplinary proceedings

20 See judgment of the Constitutional Court of 4 October 2000, P 8/00. 21 Ustawa z dnia 8 grudnia 2017 r. o Sądzie Najwyższym [Act of 8 December 2017 on the Supreme Court], J. of L. 2018, item 5. 22 Helsinki Foundation for Human Rights, Od kadr się zaczyna. Zmiana prezesów i wiceprezesów sądów w latach 2017–2018 r. [From tenure it begins. Changing presidents and vice-presidents of courts in 2017–2018], http://www.hfhr.pl/wp-content/uploads/2018/04/HFPC-Od-kadr-sie-zaczyna.pdf (accessed: 27.08.2022).

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Independence of judges and prosecutors in Poland in light of international standards

conducted against judges of common courts. The changes are primarily related to the strengthening of the competences of the Minister of Justice in this area. Under the legislation, the Minister appoints a new body, the Disciplinary Ombudsman of Common Court Judges and his two deputies, and entrusts judges with the duties of a disciplinary court at a court of appeal. The Minister may also request the initiation of proceedings against a particular judge and appeal against a decision to discontinue proceedings. The Minister may also appoint ad hoc ombudsmen for selected judges. In disciplinary cases involving offences prosecuted by public indictment, the Minister may appoint ombudsmen from among prosecutors who are bound by his or her official instructions. Indirectly, through his or her supremacy over the Disciplinary Ombudsman of the Judges of the Common Courts, the Minister also influences the selection of the disciplinary ombudsmen operating at the appellate and district courts and their actions. The current Minister of Justice has also arbitrarily appointed all the first-instance judges to disciplinary courts operating at the courts of appeal.23 The new legislation prohibits the Supreme Court from questioning the legitimacy of courts and tribunals, the constitutional organs of the state. It also prohibits assessing the legality of a judge’s appointment to office and his or her powers by the Supreme Court or any other authority.24 The newly established Disciplinary Chamber of the Supreme Court at the time made the extremely controversial decision to suspend judges who spoke critically and publicly of the changes being made to the judiciary. This undoubtedly constitutes a breach of international standards. In terms of democratic standards, disciplinary proceedings for judges should be internal, as this is an expression of the organisational autonomy of the judiciary. However, the new statutory regulations appear to limit the previous autonomy significantly. The deliberate undermining of confidence in the judiciary, which has been observed for a long time, also included a campaign of sowing hatred against judges by insulting them in public or spreading false information about them. Judges who were active in a public debate or who issued a ruling unfavourable to the ruling parliamentary majority frequently became the subject of attacks from the public media and social media close to the ruling camp.25 According to the Polish Constitution, judges must be appointed for an indefinite period by the President of the Republic on the motion of the National Council of the Judiciary (Art. 179). For this reason, there was also widespread controversy over the amendment of the Act on the National Council of the Judiciary (hereafter

23 Helsinki Foundation for Human Rights, Czas próby. Polscy sędziowie wobec zmian w wymiarze sprawiedliwości [Time of trial. Polish judges facing changes in justice], https://www.hfhr.pl/wpcontent/uploads/2019/07/czas-proby-FIN_EMBARGO_24072019-1.pdf (accessed: 27.08.2022). 24 Z. Witkowski, K. Witkowska-Chrzczonowicz, M. Serowaniec, Legislative and executive powers in Poland, Toruń 2021, pp. 106–143. 25 Helsinki Foundation for Human Rights (above n. 26).

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NCJ) passed in December 2017,26 which radically altered the previous procedure for selecting the ‘judicial’ members of the NCJ, who under the previous state of law were elected by the respective assemblies of court representatives. In doing so, the term of office for the existing judges who were members of the NCJ was also shortened. In the current legal state, the Sejm selects 15 members of the NCJ from among judges for a joint four-year term. This introduced solution may raise doubts about the NCJ members’ independence due to the involvement of political factors in the selection procedure. These concerns are justified insofar as the amendment of December 2017 abolished the parity of seats allocated to judges representing different types of courts.27 In doing so, the possibility to propose candidates not only by groups of at least 25 judges but also by groups of at least 2000 citizens, was allowed, with parliamentary clubs and the relevant parliamentary committee responsible for preparing the final list of candidates. At first glance, the system of the Sejm electing judges to the NCJ with a three-fifths majority appears to guarantee respect for the rights of the parliamentary opposition. However, if the judges fail to obtain a qualified majority in the re-vote, only an absolute majority of votes is sufficient, which in practice allows the parliamentary majority to shape the ‘judicial’ part of the composition of the NCJ on its own. Thus, the judicial corps is deprived of the autonomous competence to appoint its representatives.28 The Venice Commission has issued an opinion29 on the controversial changes to the Act, which regulate the status of the NCJ – changes that the parliamentary majority in Poland did not particularly care for. In the opinion of the Venice Commission, in a state under the rule of law, a significant part or majority of the members of the judicial councils should be elected by judges. However, according to the Act, the Sejm can elect candidates who have minimal support among the judges.

26 Ustawa z dnia 8 grudnia 2017 r. o zmianie ustawy o Krajowej Radzie Sądownictwa i niektórych innych ustaw [Act of 8 December 2017. On amending the Act on the National Council of the Judiciary and certain other Acts], J. of L. of 2018 item 3. 27 A. Rakowska-Trela, Krajowa Rada Sądownictwa po wejściu w życie nowelizacji z 8.12. 2017 r. – organ nadal konstytucyjny czy pozakonstytucyjny? [National Council of the Judiciary after the entry into force of the amendment of 8.12. 2017 – body still constitutional or extra-constitutional?], in: Konstytucja – Praworządność – Władza sądownicza. Aktualne problemy trzeciej władzy w Polsce [Constitution – Rule of Law – Judicial Power. Contemporary problems of the third power in Poland], eds. Ł. Bojarski, K. Grajewski et al., Warszawa 2019, pp.107–122. 28 L. Garlicki, Standardy Rady Europy a Konstytucja RP [Council of Europe standards and the Constitution of the Republic of Poland], in: Dwadzieścia lat obowiązywania Konstytucji RP [Twenty years of the Polish Constitution], eds. J. Jaskiernia, K. Spryszak, Kielce 2018, p. 458 et seq. 29 See Opinion on the Draft Act amending the Act on the National Council of the Judiciary; on the Draft Act amending the Act on the Supreme Court, proposed by the President of Poland, and on the Act on the Organisation of Ordinary Courts, adopted by the Commission at its 113th Plenary Session (Venice, 8–9 December 2017), CDL-AD(2017)031-ePoland.

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Independence of judges and prosecutors in Poland in light of international standards

The problem is further exacerbated by the fact that all members share a common term of office. In contrast, unsynchronised terms of office are common in Europe, when members elected by parliaments of different terms of office work together. This increases the likelihood that members will represent a variety of political views, which in turn increases the independence of the body. In contrast, the joint election of all members can lead to a politically homogenous NCJ. According to the Venice Commission, these regulations weaken the independence of the judiciary. Based on the new regulations, the members of the new NCJ were elected, and out of 10,000 Polish judges, only 18 candidates for this body were put forward – mainly people who closely cooperate with the Minister of Justice or owe their professional advancement to him. Moreover, the lists of support for the NCJ were kept secret. It is sad to note that in September 2018, the European Network of Councils for the judiciary suspended the membership of the NCJ due to ‘failure to meet the condition of independence from the executive’.30 Therefore, it is not surprising that the introduced solutions met with a negative assessment formulated by the Supreme Court in the resolution of the three combined chambers of 23.01.2020, BSA I-4110-1/20. Furthermore, the Court of Justice of the EU was also sceptical about the introduced changes in its judgment of 19.11.2019, which stressed that the degree of independence of the NCJ from the legislative and executive powers in performing the tasks entrusted to it by national legislation as a body entrusted under Article 186 of the Constitution with the mission of upholding the independence of the judiciary and the independence of judges may be (…) relevant when assessing whether the judges it selects will be able to meet the requirements of independence and impartiality under Article 47 of the EU Charter of Fundamental Rights.31 This position was also upheld by the Court of Justice of the EU in its judgment of 3.03.2021 (C-824/18).

3.

Independence of prosecutors in Poland in light of international standards

While the independence of judges and the judiciary in general originates in the fundamental right for persons to have a fair trial, the independence of prosecutors and the prosecution system does not have such a common standard.32 While judges should be independent, this concept is not fully applicable to the prosecutors; it is 30 Z. Witkowski, K. Witkowska-Chrzczonowicz, M. Serowaniec (above n. 26), p. 135. 31 M. Serowaniec, Theoretical and practical aspects of the principle of independence of the judiciary in Poland, Kobe University Law Review 2019, no. 52, pp. 135–140. 32 Venice Commission, Opinion on the Draft Amendments to the Law on the State Prosecutorial Council of Serbia, §7.

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more accurate to speak of ‘autonomy’ rather than full-fledged ‘independence’ of the prosecution service.33 In the interests of ensuring consistency of prosecutorial acts with prosecutorial policy, a certain degree of hierarchical interference may be legitimate if combined with appropriate rules and guarantees.34 Moreover, the two principles mentioned (procedural independence and procedural hierarchy) are not mutually exclusive in their application, but they must be applied concertedly and harmoniously. It must be stressed that the major reference texts allow for systems where the prosecution service is not independent from the executive. Nonetheless, where such systems are in place, guarantees must be provided at the level of the individual case to ensure transparency concerning the given instructions.35 In Poland, the Prosecutor General is ex officio the Minister of Justice, a position that results from statutory regulations (Art. 1 § 2 of the Act of 28 January 2016 on the Public Prosecutor’s Office, hereinafter: the Public Prosecutor’s Office Act),36 not contradicting the provisions of the Constitution,37 which does not specify whether the Minister of Justice is to be the Prosecutor General or not, leaving this issue to be regulated by the ordinary legislator.38 In view of this – as the Venice Commission aptly states – it is necessary to maintain a balance between, on the one hand, the protection of subordinate prosecutors from interference by the government, parliament, the police or the public and, on the other hand, the authority and responsibility of the general prosecutor for ensuring that they carry out their functions property.39 The Constitution of the Republic of Poland does not guarantee the independence of the prosecutor’s office, and this is criticised in the doctrine.40 The Committee of Ministers of the Council of Europe’s Recommendation Rec (2000)

33 Venice Commission, Opinion on the Judicial System Act of Bulgaria, §40. 34 Directorate of Human Rights of the Directorate General of Human Rights and Rule of Law (DGI), Venice Commission, Office for Democratic Institutions and Human Rights (OSCE/ODIHR), Joint Opinion on the Draft Law on the Prosecution Service of the Republic of Moldova, §75. 35 Venice Commission, Interim Opinion on the Draft Law on the State Prosecution Office of Montenegro, §16. 36 Ustawa z dnia 28 stycznia 2016 r. – Prawo o Prokuraturze [The Act of 28 January 2016 – the Public Prosecutor’s Office Act], J. of L. 2022, item 1247. 37 S. Waltoś, Prokuratura – jej miejsce wśród organów władzy, struktura i funkcje [Prosecutor’s Office – its place among the organs of power, structure and functions], Państwo i Prawo 2002, no. 4, p. 10. 38 P. Kardas, Rola i miejsce prokuratury w systemie organów demokratycznego państwa prawnego [Role and position of the Prosecutor’s Office in the system of organs of a democratic state of law], Prokuratura i Prawo 2009, no. 9, p. 14. 39 Venice Commission, Opinion on the Regulatory Concept of the Constitution of the Hungarian Republic, chapter 11, p. 7. 40 M. Dorochowicz, K. Kapica, Prokurator Generalny w postępowaniu przed Trybunałem Konstytucyjnym – udział w rzeczywistej ochronie praworządności [Prosecutor General in proceedings before the Constitutional Tribunal – participation in the actual protection of the rule of law], Przegląd Prawa Konstytucyjnego 2021, no. 1, p. 74.

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Independence of judges and prosecutors in Poland in light of international standards

19 sets out certain conditions that should be met where the prosecutor’s office is part of or subordinate to the executive: Where the public prosecution is part of or subordinate to the government, states should take effective measures to guarantee that: a. the nature and the scope of the powers of the government with respect to the public prosecution are established by law; b. government exercises its powers in a transparent way and in accordance with international treaties, national legislation and general principles of law; c. where government gives instructions of a general nature, such instructions must be in writing and published in an adequate way; d. where the government has the power to give instructions to prosecute a specific case, such instructions must carry with them adequate guarantees that transparency and equity are respected in accordance with national law, the government being under a duty, for example: − to seek prior written advice from either the competent public prosecutor or the body that is carrying out the public prosecution; − duly to explain its written instructions, especially when they deviate from the public prosecutor’s advices and to transmit them through the hierarchical channels; − to see to it that, before the trial, the advice and the instructions become part of the file so that the other parties may take cognisance of it and make comments; e. public prosecutors remain free to submit to the court any legal arguments of their choice, even where they are under a duty to reflect in writing the instructions received; f. instructions not to prosecute in a specific case should, in principle, be prohibited. Should that not be the case, such instructions must remain exceptional and be subjected not only to the requirements indicated in paragraphs d. and e. above but also to an appropriate specific control with a view in particular to guaranteeing transparency.41 Substantial charges cannot be brought against Poland’s implementation of points a–b of these recommendations. In contrast, the other recommendations are not being implemented in Poland. Indeed, the Minister of Justice/Prosecutor General is entitled to give instructions to prosecute a specific case (and often boasts in the media that he has exercised this right in a given case: Art. 34 § 1 of the Public Prosecutor’s Office Act). However, the content of these instructions is not public. Rather, it is placed in what is known as

41 The Committee of Ministers of the Council of Europe’s Recommendation Rec (2000) 19, § 13.

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the prosecutor’s handwritten file and is inaccessible to either the parties, the court or the public (Art. 7 § 3 of the Public Prosecutor’s Office Act). Moreover, the Minister of Justice/Prosecutor General is not obliged to seek prior written advice from the competent public prosecutor or the body carrying out the public prosecution to explain their written instructions. Also, instructions to prosecute in a specific case are not subjected to an appropriate control with a view in particular to guarantee transparency. The statement does not alter the negative assessment of these arrangements that in principle, certain actions, inactions and acts of prosecutors may be challenged with the superior prosecutor, and these should be welcomed.42 Should the public prosecutor disagree with an order concerning the content of a procedural action, he or she may request only that he or she be prevented from acting or participating in the case (Art. 7 § 4 of the Public Prosecutor’s Office Act). However, contrary to European recommendations,43 these orders are not subject to appeal. Moreover, the case assigned to the prosecutor may be transferred to the desk of another prosecutor in the same or another unit, and the law does not provide any criteria to guide such a decision.44 Instead, as is aptly pointed out, ‘Without such criteria, the removal of cases can be arbitrary. (…) The removal of cases from a prosecutor without criteria could be abused to assign a case to another prosecutor who is more willing to follow an illegal instruction. (…) The law should provide guarantees even against mere possibilities of abuse. There should be criteria for taking away cases from subordinate prosecutors’.45 Unfortunately, in Poland, these possibilities are abundantly explored. By introduction, it should be pointed out that in Poland there are four levels of hierarchy in prosecution organisational units: district prosecutors’ offices, district prosecutors’ offices, regional prosecutors’ offices and the National Public Prosecutor’s Office (Art. 1 § 3 of the Public Prosecutor’s Office Act). Each crime notification is first registered in the relevant district prosecutor’s office. Only then can it be transferred to a hierarchically higher organisational unit of the prosecutor’s office (the principle of devolution). Most prosecutors work in district prosecutors’ offices and handle more than 90% of cases. Due to the size of the district prosecutors’

42 Directorate of Human Rights of the Directorate General of Human Rights and Rule of Law (DGI), (above n. 34), § 107. 43 Ibid., §72. 44 See § 45 Rozporządzenia Ministra Sprawiedliwości z 7 kwietnia 2016 r. – Regulamin wewnętrznego urzędowania powszechnych jednostek organizacyjnych prokuratury [Regulation of the Minister of Justice of 7 April 2016 – Rules of Procedure for the Internal Office of the Common Organisational Units of the Public Prosecutor’s Office], J. of L. of 2017, item 1206. 45 Venice Commission, Opinion on Act CLXIII of 2011 on the Prosecution Service and Act CLXIV of 2011 on the Status of the Prosecutor General, Prosecutors and other Prosecution Employees and the Prosecution Career of Hungary, §32.

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Independence of judges and prosecutors in Poland in light of international standards

offices, after the merger of the offices of the Minister of Justice and the Prosecutor General, it has not been possible for the Minister of Justice/Prosecutor General to make all prosecutors available. District prosecutors, therefore, enjoy relative independence. However, every case that the executive cares about is taken over to the district prosecutor’s office. In turn, only prosecutors obedient to the Minister of Justice are employed. They are also better paid and accustomed to carrying out orders from their superiors on even the most trivial decisions (e. g., whether to personally question a witness or have the police do it). Indeed, granting the possibility to transfer cases between prosecutors without regulating the criteria to be followed has threatened the independence of the prosecution service in Poland. Instructions of a general nature issued by the Prosecutor General are not adequately published. It was only a media leak in 2019 that revealed the ultra-rightist Minister of Justice/Prosecutor General had issued to prosecutors binding instructions with absurd content. For example, he forbade searches of bishops’ curies in cases of paedophilia and its concealment (in Poland there is a legal obligation to denounce this crime), invoking the principle of the jurisdictional autonomy of the Church, derived from the Concordat. Polish society received with indignation not only the content of these guidelines but also their secret nature.46 Finally, a threat to the independence of prosecutors in Poland is the possibility of their compulsory transfers (Art. 106 § 1 of the Public Prosecutor’s Office Act), against which – contrary to the recommendations of the Venice Commission47 – there is no appeal. She aptly points out that ‘The issue of secondment always bears in it on the one side the necessity to overcome functional problems by allocating human resources efficiently – sometimes against the will of the concerned persons – in order to insure the fulfillment of the tasks required (…) and, on the other side, the legitimate interest of the persons involved and the avoidance of potential abuse. (…) [F]orced secondment is something to be looked at with care, because it can endanger the independence of the office holder’.48 Indeed, in Poland, if a prosecutor makes a decision that does not please the Minister of Justice/the Prosecutor General, he or she is immediately criminally seconded to a distant organisational unit.49 46 P. Żytnicki, Prokuratorze nie drażnij Kościoła w sprawie pedofilii księży [Do not irritate the Church in the case of paedophilia of priests. Appalling guidelines for prosecutors], Gazeta Wyborcza, https://poznan.wyborcza.pl/poznan/7,36001,25946142,prokuratorze-nie-draznij-kosciola-wsprawie-pedofilii-ksiezy.html (accessed: 4.09.2022). 47 Venice Commission, (above n. 35), §80. 48 Venice Commission, Opinion on the Draft Amendments to the Law on the State Prosecutor of Montenegro, §45. 49 For a detailed listing of such delegations, see the website of the Association of Prosecutors’ ‘Lex Super Omnia’: Media on criminal delegation of prosecutors away from home, https://lexso.org.pl/ 2021/01/20/media-o-karnym-delegowaniu-prokuratorow-poza-miejsce-zamieszkania/ (accessed: 4.09.2022).

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In addition, the administrative positions in the Polish prosecutor’s office are not independent. Indeed, the appointees are both appointed and dismissed by the Prosecutor General. The law does not specify any criteria for him to follow (Art. 15 § 1 of the Public Prosecutor’s Office Act), although European bodies recommend including such criteria in the law.50 In regard to financial independence, prosecutors in Poland are remunerated in line with the importance of the tasks performed,51 which reduces the danger of corruption among the prosecutors. However, a problem is the possibility of providing individual bonuses, which ‘can lead to corruption or to undermine the prosecutor’s independence as distribution or allocation of these benefits will include an element of discretion’.52 In practice, however, these are not large measures.

4.

Summary

As is rightly emphasised in the literature, a strong judiciary cannot exist without judges and prosecutors who are strong in terms of personal, intellectual and moral qualifications. Unfortunately, over the last few years, we have observed actions of the ruling camp in Poland that contribute to the weakening of constitutional guarantees of the independence of judges and prosecutors. Particularly disturbing is the methodical and ruthless subordination of judges and courts53 to the executive, which undermines the principle of separation of powers and violates democratic standards. This is also accompanied by long-observed attacks by the public and social media on ‘unruly’ judges and prosecutors, which undermine public confidence in the judiciary.

50 Directorate for Human Rights (DHR), Directorate General for Human Rights and the Rule of Law, Venice Commission, Joint Opinion on the Draft Law on the Public Prosecutor’s Office of Ukraine, §§49 and 116. 51 I. Wróblewska, Prokuratura [Public Prosecutor’s Office], in: Polskie prawo konstytucyjne w obliczu wyzwań współczesności [Polish constitutional law in the face of contemporary challenges], eds. Z. Witkowski, D. Lis-Staranowicz, M. Serowaniec, Toruń 2021, pp. 474–482. 52 Directorate for Human Rights (DHR), (above n. 51), §179. 53 A. Szmyt, Trudne czasy ‘trzeciej władzy’ w Polsce lat 2015–2018 [Difficult times of the ‘third power’ in Poland 2015–2018], Gdańsk-Kiev 2018, pp. 59 et seq.

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References Legal acts Konstytucja Rzeczypospolitej Polskiej z dnia 2 kwietnia 1997 r. [The Constitution of the Republic of Poland of 2 April 1997], J. of L. 1997, No. 78, item 483 as amended. Ustawa z dnia 8 grudnia 2017 r. o Sądzie Najwyższym [Act of 8 December 2017 on the Supreme Court], J. of L. 2018, item 5. Ustawa z dnia 8 grudnia 2017 r. o zmianie ustawy o Krajowej Radzie Sądownictwa i niektórych innych ustaw [Act of 8 December 2017. On amending the Act on the National Council of the Judiciary and certain other Acts], J. of L. of 2018 item 3. Ustawa z dnia 28 stycznia 2016 r. – Prawo o Prokuraturze [The Act of 28 January 2016 – the Public Prosecutor’s Office Act], J. of L. 2022, item 1247. Rozporządzenie Ministra Sprawiedliwości z 7 kwietnia 2016 r. – Regulamin wewnętrznego urzędowania powszechnych jednostek organizacyjnych prokuratury [Regulation of the Minister of Justice of 7 April 2016 – Rules of Procedure for the Internal Office of the Common Organisational Units of the Public Prosecutor’s Office], J. of L. of 2017, item 1206.

Opinion and soft law Directorate for Human Rights (DHR), Directorate General for Human Rights and the Rule of Law, Venice Commission, Joint Opinion on the Draft Law on the Public Prosecutor’s Office of Ukraine. Directorate of Human Rights of the Directorate General of Human Rights and Rule of Law (DGI), Venice Commission, Office for Democratic Institutions and Human Rights (OSCE/ ODIHR), Joint Opinion on the draft Law on the Prosecution Service of the Republic of Moldova. European Charter on the Status of Judges, produced by the Council of Europe in 1998. Judges’ Charter in Europe, adopted by the European Judges’ Association in 1993. Kiev Recommendations on the Independence of the Judiciary in Eastern Europe. ‘Magna Carta of Judges’ (Fundamental Principles), summarising and codifying the main conclusions of previously adopted opinions (CCJE /2010/3 Final). Opinion on the Draft Act amending the Act on the National Council of the Judiciary; on the Draft Act amending the Act on the Supreme Court, proposed by the President of Poland, and on the Act on the Organisation of Ordinary Courts, adopted by the Commission at its 113th Plenary Session (Venice, 8–9 December 2017), CDL-AD(2017)031-ePoland Recommendation 94/12 of the Committee of the Council of Europe, drafted in 1994 and updated in 2010. (Recommendation CM/Rec(2010)12 on judges: independence, efficiency and duties. The Committee of Ministers of the Council of Europe’s Recommendation Rec (2000).

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Venice Commission Report on the Independence of the Judiciary (Study No 494/2008). Venice Commission, Interim Opinion on the Draft Law on the State Prosecution Office of Montenegro. Venice Commission, Opinion on Act CLXIII of 2011 on the Prosecution Service and Act CLXIV of 2011 on the Status of the Prosecutor General, Prosecutors and other Prosecution Employees and the Prosecution Career of Hungary. Venice Commission, Opinion on the Draft amendments to the Law on the State Prosecutorial Council of Serbia. Venice Commission, Opinion on the Judicial System Act of Bulgaria. Venice Commission, Opinion on the Regulatory concept of the Constitution of the Hungarian Republic.

Jurisdiction Judgment of the European Court of Human Rights, 22 June 1989, Langborger v. Sweden. Judgment of the European Court of Human Rights, 22 November 1995, Bryan v. the United Kingdom. Judgment of the European Court of Human Rights, 9 November 2006, Sacilor-Lormines v. France. Judgement of the Constitutional Court of 4 October 2000, P 8/00. Judgment of the Constitutional Court of 28 November 2007, K 39/07. Judgment of the Voivodeship Administrative Court in Poznań of 25 January 2007, I SA/Po 2626/03.

Literature Dąbrowski, S. Kilka uwag o kondycji sędziów [Several remarks on the condition of judges], in: Zawody prawnicze [Judicial Professions], eds. T. Gardocka, J. Sobczak, Toruń 2010. Dorochowicz, M., Kapica, K. Prokurator Generalny w postępowaniu przed Trybunałem Konstytucyjnym – udział w rzeczywistej ochronie praworządności [Prosecutor General in proceedings before the Constitutional Tribunal – participation in the actual protection of the rule of law], Przegląd Prawa Konstytucyjnego 2021, no. 1. Garlicki, L. Standardy Rady Europy a Konstytucja RP [Council of Europe standards and the Constitution of the Republic of Poland], in: Dwadzieścia lat obowiązywania Konstytucji RP [Twenty years of the Polish Constitution], eds. J. Jaskiernia, K. Spryszak, Kielce 2018. Izdebski, H. Bezstronność [Impartiality], in: Etyka zawodów prawniczych: etyka prawnicza [Ethics of the judicial profession: legal ethics], eds. H. Izdebski, P. Skuczyński, Warszawa 2006. Kardas, P. Rola i miejsce prokuratury w systemie organów demokratycznego państwa prawnego [Role and position of the prosecutor’s office in the system of organs of a democratic state of law], Prokuratura i Prawo 2009, no. 9.

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Machnikowska, A. Sprawność postępowania sądowego w kontekście etosu sędziowskiego [Efficiency of judicial proceedings in the context of the judicial ethos], Gdańskie Studia Prawnicze 2015, no. XXXIII. Piotrowski, R. Zagadnienie legitymizacji władzy sądowniczej w demokratycznym państwie prawnym [The problem of the legitimacy of the judiciary in a democratic state under the rule of law], in: Legitymizacja władzy sądowniczej [Legitimacy of the judicial power], ed. A. Machnikowska, Gdańsk 2016. Rakowska-Trela, A. Krajowa Rada Sądownictwa po wejściu w życie nowelizacji z 8.12. 2017 r. – organ nadal konstytucyjny czy pozakonstytucyjny? [National Council of the Judiciary after the entry into force of the amendment of 8.12.2017. – body still constitutional or extra-constitutional?], in: Konstytucja – Praworządność – Władza sądownicza. Aktualne problemy trzeciej władzy w Polsce [Constitution – Rule of Law – Judicial Power. Contemporary problems of the third power in Poland], eds. Ł. Bojarski, K. Grajewski et al., Warszawa 2019. Romer, T. Zasady z Bangalore [Bangalore principles], Edukacja Prawnicza 2004, no. 11. Serowaniec, M. Sądownictwo [The judicial power], in: Prawo konstytucyjne [Constitutional Law], eds. Z. Witkowski, A. Bień-Kacała, Toruń 2015. Serowaniec, M. Several remarks on the ethics of the profession of a judge in Poland, Studi polacco-italiani di Toruń 2017, no. XIV. Serowaniec, M. Theoretical and practical aspects of the principle of independence of the judiciary in Poland, Kobe University Law Review 2019, no. 52. Szmyt, A. Trudne czasy ‘trzeciej władzy’ w Polsce lat 2015–2018 [Difficult times of the ‘third power’ in Poland 2015–2018], Gdańsk-Kiev 2018. Waltoś, S. Prokuratura – jej miejsce wśród organów władzy, struktura i funkcje [Prosecutor’s Office – its place among the organs of power, structure and functions], Państwo i Prawo 2002, no. 4. Witkowski, Z. Kilka uwag w kwestii kultury prawnej i politycznej współczesnych elit rządzących w Polsce (w kontekście zmian ustroju władzy sądowniczej) [Several remarks on the legal and political culture of contemporary ruling elites in Poland (in the context of changes in the system of judicial power)], in: Organizácia súdnej moci v Pol’skej Republike, Českej Republike a Slovenskej Republike [Organisation of the judiciary in Poland, the Czech Republic and Slovak], ed.A. Krunková, Košice 2019. Wróblewska, I. Prokuratura [Public Prosecutor’s Office], in: Polskie prawo konstytucyjne w obliczu wyzwań współczesności [Polish constitutional law in the face of contemporary challenges], eds. Z. Witkowski, D. Lis-Staranowicz, M. Serowaniec, Toruń 2021.

Netography Association of Prosecutors’ ‘Lex Super Omnia’: Media on criminal delegation of prosecutors away from home, https://lexso.org.pl/2021/01/20/media-o-karnym-delegowaniuprokuratorow-poza-miejsce-zamieszkania/ (accessed: 4.09.2022).

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Helsinki Foundation for Human Rights, Czas próby. Polscy sędziowie wobec zmian w wymiarze sprawiedliwości [Time of trial. Polish judges facing changes in justice], https://www. hfhr.pl/wp-content/uploads/2019/07/czas-proby-FIN_EMBARGO_24072019-1.pdf (accessed: 27.08.2022). Helsinki Foundation for Human Rights, Od kadr się zaczyna. Zmiana prezesów i wiceprezesów sądów w latach 2017–2018 r. [From tenure it begins. Changing presidents and vice-presidents of courts in 2017–2018], https://www.hfhr.pl/wp-content/uploads/ 2019/07/czas-proby-FIN_EMBARGO_24072019-1.pdf (accessed: 27.08.2022). Żytnicki, P. Prokuratorze nie drażnij Kościoła w sprawie pedofilii księży [Do not irritate the Church in the case of paedophilia of priests. Appalling guidelines for prosecutors], Gazeta Wyborcza, https://poznan.wyborcza.pl/poznan/7,36001,25946142,prokuratorzenie-draznij-kosciola-w-sprawie-pedofilii-ksiezy.html (accessed: 4.09.2022).

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Maciej Serowaniec, Katarzyna Jachimowicz

Protection of constitutional identity in light of the jurisprudence of the Constitutional Court of the Republic of Poland – a comparative study

1.

Introductory remarks

The essential axiological basis of the European Union (EU) is the idea of affirming one’s constitutional identity in solidarity with, rather than against, other peoples.1 The counterpart of the concept of constitutional identity in European primary law is the concept of national identity. The first sentence of Article 4(2) of the Treaty on the European Union emphasises that ‘the Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental political and constitutional structures’. Indeed, the concept of national identity recognises not only the specificity of culture, language, customs or religion but also the link with state identity, expressed in the preservation of basic state functions that condition the existence of the state as a distinct entity. In a broader sense, the concept of national identity should therefore be understood as an obligation to respect the continuity of the existence of Member States as sovereign entities, respect for national cultures, the norms of national law or the principles of the socio-economic system of the state.2 Also, Advocate General M. Poiares Maduro, in his opinion in Case C-213/07, took the view that national identity includes the constitutional identity of a Member State and that its preservation is an obligation of the EU. This obligation stems from the essence of the European project launched in the early 1950s, which involves deepening integration while preserving the political existence of states. Consequently, a Member State may claim the protection of its national identity, among other things, when derogating, in certain cases and under the court’s control,

1 K. Wójtowicz, Poszanowanie tożsamości konstytucyjnej państw członkowskich Unii Europejskiej [Respect for the constitutional identity of the Member States of the European Union], Przegląd Sejmowy 2010, no. 4, p. 21. 2 A. Kustra, Sądy konstytucyjne a ochrona tożsamości narodowej i konstytucyjnej państw członkowskich Unii Europejskiej [Constitutional courts and the protection of the national and constitutional identity of the Member States of the European Union], in: Prawo Unii Europejskiej a prawo konstytucyjne państw członkowskich [European Union Law and the Constitutional Law of the Member States], eds. S. Dudzik, N. Półtorak, Warszawa 2013, p. 53.

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from the application of the fundamental freedoms of movement. Moreover, in the Ombudsman’s view, the required preservation of the constitutional identity of the Member States may constitute a legitimate interest capable of justifying a limitation of the obligations imposed by Union law. This is all the more reason for a state to invoke that interest to justify its assessment of the constitutional measures that should supplement EU legislation to guarantee respect, within its territory, for the principles and rules contained in, or underlying, that legislation. The Ombudsman emphasised, however, that the preservation of the constitutional identity of the Member States could not be understood as absolute respect for all national constitutional principles. If this were the case, national constitutions could become instruments that enable Member States to free themselves from Union law in certain areas.3 Constitutional identity is, therefore, closely linked to the concept of national identity.4

2.

Protection of constitutional identity in light of selected case law of the constitutional courts of EU Member States

From the Member States’ perspective, it seems legitimate to ask whether the limits of EU competence, especially legislative competence, can be drawn, especially in the context of the obligation to respect national identity. In constitutional courts’ decisions on the constitutionality of the Lisbon Treaty, two ways of approaching these questions can most broadly be distinguished. The first way is to accept the transfer of competences (sovereign rights) with the proviso that there are limits to the transfer. However, these limits are defined very generally and with reference to the characteristics of the systemic relationship between the two legal orders – national and EU.5 Such an approach is presented, among other things, by the Czech Constitutional Court. In its judgment of 26 November 2008, the Czech Constitutional Court6 referred to earlier German constitutional case law by indicating in its

3 M.P. Maduro, Wykładnia prawa wspólnotowego – funkcja orzecznicza w kontekście pluralizmu konstytucyjnego [Interpretation of community law – the adjudicatory function in the context of constitutional pluralism], in: Europejska przestrzeń sądowa [European Judicial Space], eds. A. FrąckowiakAdamska, R. Grzeszczak, Wrocław 2010, pp. 33–50. 4 A. Kustra, Kelsenowski model kontroli konstytucyjności prawa a integracja europejska. Studium wpływu [Kelsen’s Model of Control of Constitutionality of Law and European Integration. An Impact Study], Toruń 2013, pp. 282–283. 5 J.M. Beneyto, I. Pernice, Europe’s Constitutional Challenges in the Light of the Recent Case Law of National Constitutional Courts. Lisbon and Beyond, Baden Baden 2011. 6 Judgment of the Constitutional Court of 26 November 2008 on the compatibility with the constitutional order of the Czech Republic of the Treaty of Lisbon (ref. Pl. ÚS 19/08), translation by K. Witkowska – Chrzczonowicz, Przegląd Sejmowy 2009, no. 2, pp. 271–290.

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Protection of constitutional identity

reasoning that after the entry into force of the Lisbon Treaty, the ‘masters of the treaties’ will continue to be the Member States. This view reflects the importance the Court attaches to the Czech constitutional order, which remains the criterion for assessing the admissibility of the transfer of competences and determines the scope of the transfer of competences. The Constitutional Court emphasised that it would be up to the Czech legislator to adopt legal provisions corresponding to the requirements of the constitutional order referred to in the Lisbon Treaty. It also recalled that the treaty does not change the concept of European integration, meaning that the Union remains an international organisation and the Member States retain their constitutional identity; therefore, the Czech Constitution remains the most important law in the state. Emphasising the importance of state sovereignty, the Court pointed to its role as the highest authority for the protection of the constitutionality of Czech law, also in the context of possible abuses of competence by EU bodies and European law. European law, contrary to the materially understood essence of constitutionality and the democratic state of law, could not have a binding character in the Czech Republic. At the same time, the importance of the Constitution and the Member States’ laws in guaranteeing their sovereignty and national identity was also pointed out. The Court stated that under the conditions of the Lisbon Treaty, the EU remains a union of sovereign states and not a federation. As an international organisation, the Member States of the Union retain their full sovereignty and are ‘masters of the treaties’. The limit of acquiescence to the development of the Union, therefore, lies where Member States would begin to lose their constitutional identity.7 For the second approach, it is important to identify the material limits of the delegation of competences and thus define a core of sovereignty or national identity. This approach is admittedly less open to integration. However, it seems to meet the requirements of the principle of legal certainty to a greater extent, as it makes the outcome of the resolution of possible future national and Union law conflicts more predictable.8 The group of constitutional courts that actively seek to delimit the Union’s competences using, among other things, the concept of national identity

7 K. Witkowska-Chrzczonowicz, Z. Witkowski, Konstytucje narodowe a zasada prymatu prawa wspólnotowego na tle orzecznictwa Trybunału Konstytucyjnego RP oraz Sądu Konstytucyjnego Republiki Czeskiej [National constitutions and the principle of primacy of community law against the background of the jurisprudence of the Constitutional Tribunal of the Republic of Poland and the Constitutional Court of the Czech Republic], in: Pocta Jánu Gronskému, eds. K. Klima, J. Jirásek, Plzeň 2008, pp. 439–457. 8 M. Serowaniec, Z. Witkowski, Eternity clause: a realistic or merely an illusory way of protecting the state’s constitutional identity?, Studi polacco-italiani di Toruń/Toruńskie studia polsko-włoskie 2021, no. 17, pp.173–175, DOI:10.12775/TSP-W.2021.012.

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for this purpose include the German Federal Constitutional Court and the French Constitutional Council. The decision of the French Constitutional Council of 20 December 2007,9 which preceded the ratification of the Lisbon Treaty, indicated that the arrangements provided for in the Treaty might ‘not be sufficient to prevent the transfer of competences under the Treaty from being of such a magnitude or from taking place in such a way that the fundamental conditions for the exercise of national sovereignty might be infringed’ (thesis 16). Among the competences ‘inseparable from the exercise of national sovereignty’, the Constitutional Council included in particular the competences in the following fields: the fight against terrorism and related activities; the fight against trafficking in human beings; and judicial cooperation in civil and criminal matters related to the establishment of the European Public Prosecutor’s Office (theses 18 and 19). In the Constitutional Council’s view, incompatible with the French Constitution in force at the time, are ‘all the provisions of the Treaty of Lisbon which relate to areas which are inseparable from the exercise of national sovereignty and which are already within the competence of the Union or of the Community, which modify the rules of decision-making either by replacing the unanimity rule by the qualified majority rule within the Council, thus depriving France of any possibility of opposition, or by delegating decision-making powers to the European Parliament, which is not an emanation of national sovereignty, or by depriving France of its right of initiative’ (thesis 20). Interpreting the European constitutional clause as it stood at the time of the adjudication, particularly Art. 88–1 (‘The Republic shall take part in the European Communities and in the European Union composed of States which have freely decided, under the Treaties establishing these organisations, to exercise jointly certain of their competences’), the Constitutional Council stated that this clause ‘confirms the supreme legal force of the Constitution in the internal legal order’ and at the same time allows ‘France to participate in the creation and development of a permanent European organisation with legal personality and endowed with decision-making powers as a result of the delegation of competences by the Member States’. In the judgment of the Federal Constitutional Court of Germany of 30 June 2009,10 the issue of ‘constitutional identity’ is an important motive for recognising that the EU, being a ‘treaty-based union of sovereign states’, cannot lead to

9 Decision of the Constitutional Council of 20 December 2007 on the Treaty amending the Treaty on European Union and the Treaty establishing the European Community, No. 2007–560 DC, translated by R. Puchta, Przegląd Sejmowy 2008, no. 2, pp. 331–340. 10 See Judgment of the Federal Constitutional Court of 30 June 2009 on the ratification of the Treaty of Lisbon (ref. 2 BvE 2/08); K. Berner, ‘Sovereignty of Parliament’ under the Grundgesetz: How the German Constitutional Court discovers parliamentary participation as a means of controlling European integration, European Public Law 2013, no. 2(19), pp. 249–262.

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Protection of constitutional identity

insufficient room for political debate in the Member States, which, with regard to amendments to the treaties constituting the Union not by means of a revision treaty but by means of ‘other legal regulations’ (the so-called footbridge procedure) without the requirement of ratification, means that the federal government and legislatures have a special ‘integration responsibility’, concretised as a rule by the need to give their consent by means of an appropriate law.11 Therefore, there is no possibility of any acknowledgement that membership of the EU, in order to be effective, requires the acceptance of an almost automatic acceptance of the transfer of competences needed by the Union through the simple implementation of a treaty. In light of the judgment mentioned above, constitutionally acceptable accession to such an organisation does not mean it can concede to itself the necessary competences belonging to the Member States and gradually deprive them of their sovereignty of its previous significance. In this context, the Federal Constitutional Court’s redefinition of its own role in light of the Lisbon Treaty, as guardian of ‘constitutional identity’ – in that the constitutional courts cannot be deprived of their responsibility to ‘guarantee the constitutional limits of the integration mandate and the non-transferable constitutional identity’ (thesis 336) – deserves emphasis. According to the Federal Court, its competence derives from Germany’s sovereignty as a Member State of the Union. For this reason, the Court will declare an act of EU law inapplicable in Germany if the principle of the primacy of EU law lacks a constitutional basis for application (thesis 339). German law is the source of the principle of the primacy of Union law over German law. The Federal Constitutional Court also stated in the judgment under review that failure to comply with the requirements under German law for the participation of the parliamentary chambers in the shaping of Germany’s position in the European Council and the Council of the European Union in the process of the transfer of ‘supreme rights’ would be a violation of the ‘constitutional identity’ of the State, which, after all, is not precluded by the constitutional approval of membership of the Union. The Federal Constitutional Court held that the principle of primacy of EU law only refers to the primacy of application vis-à-vis German law and does not imply an obligation to abrogate this law if it would jeopardise the effectiveness of EU law. The Court pointed out that a constitutional court of a Member State may declare an act of EU law incompatible with its own constitution while retaining ‘the right to the last word’, but at the same time accepting ‘the need then to bear the inter-state consequences’ (thesis 340). The Court pointed out that the infringement of Germany’s constitutional identity is impermissible, since the constitutional legislator has not granted the representatives and organs of the nation the right to dispose

11 M. Serowaniec, Parlamentarne komisje do spraw europejskich [Parliamentary Committees for European Affairs], Warszawa 2016, p. 138.

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of sovereignty. The Federal Constitutional Court must ensure that this limitation, which is part of the immutable provisions of the Basic Law of Germany as a state, is respected (theses 234 and 235).12 Since the Treaty of Lisbon refers to the national identity of the Member States, according to the Federal Constitutional Court, the basic components of constitutional identity include, in particular, the following: citizenship; civil and military monopoly over the use of the armed forces, public revenue and expenditure; interference in the exercise of fundamental rights (especially in the form of deprivation of liberty under criminal law); the right to language; the shaping of living conditions in the family; education; the exercise of freedom of the press, assembly and expression; freedom of religion and the dissemination of ideology. Understanding the determinants of identity derives from the context of historical and cultural experience (thesis 249). The judgment of the Federal Constitutional Court of Germany of 6 July 2010 expressed the view that, when referring in its jurisprudence to acts of the European institutions, the Court should, in principle, align itself with the line of case law of the European Union Court of Justice, which sets the binding interpretation of Union law. At the same time, the Federal Constitutional Court stated that the judgment of the European Court of Justice in Case C-144/04,13 which recognised the prohibition of age discrimination as a general principle of European law, derived from the constitutional traditions of the Member States. The Court further stated that the duty of the national court to guarantee the full effectiveness of the general principle of non-discrimination on grounds of age by disapplying any provisions of national law that are contrary to it, even if the time limit for transposition of that directive has not yet expired,14 did not go beyond the competence of the Union ‘in a constitutionally objectionable manner’. In this context, it is also worth recalling the position of the Court of Justice of the European Union (the CJEU) in its judgment of 5 December 2017 in the so-called Taricco II case.15 In this judgment, the CJEU made a precedent-setting departure from the absolute nature of the principle of the primacy of EU law: recognising the material nature of the statute of limitations in Italian law, with the consequence that it is linked to the principle of legality and the principle of nullum crimen, which are integral to the Italian constitutional acquis. The CJEU held that the obligation

12 K. Witkowska-Chrzczonowicz, J. Rutynowski, Polityczne i ustrojowe problemy ratyfikacji Traktatu z Lizbony w RFN - wybrane zagadnienia [Political and constitutional challenges of the ratification of the Lisbon Treaty in Germany - selected issues], Przegląd Sejmowy 2011, no. 1, pp. 184–207. 13 CJEU Judgment of 22 November 2005, Werner Mangold v Rüdiger Helm, OJ.EU.C.2006.36.10/2. 14 P. Bała, ‘Tożsamość konstytucyjna’ a Traktat z Lizbony. Tezy wyroku Federalnego Trybunału Konstytucyjnego z 30 czerwca 2009 r. [‘Constitutional identity’ and the Lisbon Treaty. Theses of the judgment of the Federal Constitutional Court of 30 June 2009], Ius Novum 2010, no. 2, pp. 7–37. 15 CJEU judgment of 5 December 2017, C-42/17, M.A.S. and M.B, ECLI: ECLI:EU:C:2017:936.

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Protection of constitutional identity

to ensure the effective collection of the Union’s own resources cannot stand in the way of the principle of legality, and it is for the national judge to determine whether the application of Article 325 TFEU is contrary to the constitutional identity of the Member State concerned. Consequently, the CJEU held that Italian courts should, as a general rule, not apply the statute of limitations ‘unless such non-application has the effect of infringing the principle of the statutory definition of offences and penalties because of the inadequate definition of the applicable law or because of the retroactive effect of provisions laying down stricter conditions for liability than those in force at the time the offence was committed’. In response to this judgment, the Italian Constitutional Court16 reserved its position as guardian of the Constitution, looking after the integrity of the national legal order, particularly in relation to protection of fundamental rights and Italy’s constitutional identity. On the other hand, the Hungarian Constitutional Court’s ruling of 30 November 2016 in case 22/2016 (XII. 5.) examined the constitutionality of the Hungarian Council Decision 2015/1601 of 22 September 2015 concerning the forced relocation of refugees. In its ruling, the Hungarian Court scrutinised the said regulation both from the point of view of the EU’s ultra vires action and the decision’s violation of the Hungarian constitutional identity, finding that its various elements violate both tests. It should be emphasised that to this end, in paragraph 49 of the judgment, it referred explicitly to the German Federal Constitutional Court judgment for guidance on how to conduct a constitutional identity review. In practice, the Hungarian Constitutional Court’s aim was not to increase the level of protection of fundamental rights but rather to protect the political settlement made by the national authorities.17

3.

Constitutional identity in light of the jurisprudence of the Constitutional Tribunal of the Republic of Poland

Until the start of the constitutional changes in 2015, the Constitutional Tribunal of the Republic of Poland shared the view expressed in the doctrine that the competences covered by the prohibition of transfer constitute constitutional identity

16 Judgment of the Constitutional Court of 31 May 2018, 115/2018, para. 11. 17 B. Soloch, Jak chronić prawa podstawowe własnych obywateli w sytuacji prymatu prawa unijnego? Garść refleksji na kanwie orzecznictwa FSK i TSUE dotyczącego Europejskiego Nakazu Aresztowania (ENA) [How to protect the fundamental rights of one’s own citizens in a situation of the primacy of EU law? A handful of reflections on the case law of the FSK and the CJEU concerning the European Arrest Warrant (EAW)], Acta Universitatis Lodziensis, Folia Iuridica 2019, no. 88, p. 183.

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and thus reflect the values on which the Constitution is based.18 Constitutional identity is therefore a concept that determines the extent of the ‘exclusion from the competence of transfer of matters belonging (…) to the ‘hard core’, cardinal to the foundations of the political system of a given state’, the transfer of which would not be possible based on Article 90 of the Constitution. Therefore, irrespective of the difficulties associated with the establishment of a detailed catalogue of nontransferable competences, it is necessary to include, among the matters covered by the absolute prohibition of transfer, the provisions defining the main principles of the Constitution and the provisions concerning the rights of the individual determining the identity of the state. These rights include, in particular, the requirement to ensure the protection of human dignity and constitutional rights; the principle of statehood; the principle of democracy; the principle of the rule of law; the principle of social justice; the principle of subsidiarity; the requirement to ensure a better realisation of constitutional values; the prohibition of the transfer of constitutional authority; and the competence to create competences.19 The guarantee of the preservation of the constitutional identity of the Republic remains Article 90 of the Constitution and the limits of the delegation of powers set out therein. As further emphasised by the Constitutional Tribunal, the democratic legal State referred to in Article 2 of the Constitution, as a member of the EU, fully retains its constitutional identity due to the fundamental homogeneity of the constitutional role of law in the Member States and in the organisation they form. Article 90 of the Constitution, understood from the perspective of the principles and values derived from Article 2 of the Constitution and concerning the recognition that there are no competences that do not derive from an express legal provision, excludes the transfer of competences without an observance of the legal basis and the democratic procedure for its establishment stipulated therein. Due to the validity of Article 2 of the Constitution, an amendment of the treaty’s content without observance of the ratification procedure leading to the transfer of competences to the Union requires a proper statutory basis under the rules contained in Article 90 of the Constitution. However, Article 90 of the Constitution cannot be understood to exhaust its meaning after a single application. Such an interpretation would result from assuming that the transfer of competences to the EU in the Lisbon Treaty is a one-off and opens the way for further transfers, already disregarding the requirements set out in Article 90. Such an understanding of Article 90 would deprive this part of the Constitution of the characteristics of a normative act. The

18 L. Garlicki, Normy konstytucyjne relatywnie niezmiemienalne [Constitutional norms relatively immutable], in: Charakter i struktura normy Konstytucji [Nature and structure of the Constitution’s norm], ed. J. Trzciński, Warszawa 1997, p. 148. 19 K. Wojtyczek, Przekazywanie kompetencji państwa organizacjom międzynarodowym [Transfer of State Competences to International Organisations], Kraków 2007, p. 284 et seq.

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Protection of constitutional identity

provisions of Article 90 are to be applied to amendments to the treaty provisions constituting the basis of the EU which occur other than by means of an international agreement if those amendments result in a transfer of competences to the EU. The Constitution defines the relationship between international law and domestic law primarily according to the principles of the common good, sovereignty, democracy, the rule of law and the favouring of domestic law over international law. The effect of the delegation of competences is usually a complex set of relationships between the state, its organs and the international organisation. Therefore, the transfer of competences must always be assessed from the point of view of the principles shaping constitutional identity. The guarantee for the preservation of the constitutional identity of the Republic remains Article 90 of the Constitution and the limits of the transfer of competences set out therein.20 From the point of view of the impact of integration processes on the scope of sovereignty, the legal order of the EU, against the background of the law enacted by international organisations, is distinguished by the broader scope of the Union’s competences compared to other international organisations, the binding character of a significant part of Union law, and the direct effect of Union law in the internal relations of the Member States. The Constitutional Tribunal shares the view expressed in the doctrine that in the sphere of delegated competences, states have relinquished the power to take autonomous legislative action in internal and international relations, which, however, does not lead to a permanent limitation of the sovereign rights of these states, as the delegation of competences is not irreversible. Indeed, the relationship between exclusive and competing competences is dynamic. The Member States have only accepted the obligation to jointly exercise state functions in the areas covered by the cooperation. As long as the Member States retain the full ability to determine the forms of exercise of state functions, coextensive with the competence to ‘determine their own competences’, they will remain sovereign entities under international law. There are complex processes of interdependence between the Member States of the EU, linked to their entrusting to the Union part of the competences of the organs of state authority. However, these states remain subjects of the integration process, they retain ‘competence of competence’, and the model of European integration remains the form of an international organisation. It is the conviction of the Constitutional Tribunal that the sovereignty of the Republic and its independence, understood as the distinctiveness of Poland’s state existence within its present borders, in the conditions of membership of the EU on the principles set out in the Constitution, signifies confirmation of the primacy of the Polish Nation to determine its own fate. The normative expression of this principle is

20 Judgment of 24 November 2010, ref. K 32/09, OTK 2010/9A, pos. 108.

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the Constitution, and in particular the provisions of the Preamble, Article 2, Article 4, Article 5, Article 8, Article 90, Article 104(2) and Article 126(1), in light of which the sovereignty of the Republic is expressed in the non-transferable competences of the organs of state authority that constitute the constitutional identity of the state. The expression of this principle is the very existence of the Basic Law and the Republic as a democratic state under the rule of law (Article 2 of the Constitution). Article 4 of the Constitution stipulates that the supreme power ‘belongs to the Nation’, which excludes its delegation to another superior. According to Article 5 of the Constitution, the Republic shall safeguard the independence and inviolability of its territory and ensure the rights and freedoms of of persons and citizen. The provisions of Article 4 and Article 5 of the Constitution, in conjunction with the Preamble, delineate the fundamental relationship between sovereignty and the guarantee of the constitutional status of the individual, while at the same time excluding the renunciation of sovereignty, the recovery of which the Preamble to the Constitution affirms as a premise for the nation to stand for itself. In the last few years, we can observe a dramatic change in the Polish Constitutional Tribunal’s approach to constitutional identity. The background of this controversial and politically motivated change is the escalating conflict between Poland and the EU to ensure effective judicial protection in areas covered by EU law. It is linked to the introduction of several statutory changes in recent years that interfere with the courts’ and judges’ independence. The first such break in the previous jurisprudence of the Constitutional Tribunal concerning how the concept of constitutional identity is perceived was the judgment of 14.07.2021 in case P 7/20.21 In this judgment, the Constitutional Tribunal ruled that ‘the second sentence of Article 4(3) TEU in conjunction with Article 279 TFEU, to the extent that the CJEU imposes ultra vires obligations on the Republic of Poland as a Member State of the European Union by issuing provisional measures relating to the system and jurisdiction of Polish courts and the procedure before Polish courts, is incompatible with the Constitution of the Republic of Poland’. The ruling in case P 7/20 represents a departure from the previous line of jurisprudence, considering both the Constitution’s supremacy and the principle of effectiveness of EU law. The crowning argument raised by the Polish Constitutional Tribunal was that the CJEU was ruling in the area of the system and jurisdiction of judicial authorities (i. e., in areas that the Republic of Poland has not and cannot delegate to the EU). As further emphasised in the justification, no nation can have rules imposed on it in regard to how it will organise its own state. In the opinion of the Constitutional Tribunal, a European-friendly interpretation of the Constitution has become a well-established principle and practice in the Republic of Poland.

21 Judgment of 14 July 2021, ref. P 7/20, OTK ZU A/2021, pos. 49.

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Protection of constitutional identity

However, it has its limits where Polish constitutional identity is infringed. Even with the best will of a pro-European interpretation of the Constitution, the power of the CJEU to suspend Polish laws concerning the system and jurisdiction of Polish courts, in particular the independence of Polish judges, cannot be interpreted. As an exception to the principle of independence and sovereignty of the Republic of Poland, the delegation of competences cannot be interpreted broadly. On 7.10.2021, the Constitutional Tribunal issued a judgment in case K 3/21, initiated by a motion of the Prime Minister. In the motion, the Prime Minister challenged the interpretation of selected CJEU provisions adopted in the CJEU case law. It is worth noting that the full justification of this judgment has not been published to date, so in this case we must refer to the arguments raised in the application to the CJEU. In the context of constitutional identity, the Prime Minister emphasised that constitutional identity is inextricably linked to the sovereignty of the nation and its right to self-determination. Constitutional identity, understood as the values on which the Constitution and its guiding principles are based, is therefore the concept that determines the scope of the exclusion of the admissibility of the delegation of powers under Article 90(1) of the Constitution. In the opinion of the Prime Minister, in line with the constitutional standard, it is therefore inadmissible to introduce an exception to the principle of supremacy of the Constitution in case the exception source would be international law. Poland’s accession to the EU and the related transfer of competences do not imply a surrender of sovereignty to the EU. The limit of the transfer of competences is determined by the sovereignty of the State as a national value, as indicated in the preamble to the Constitution. The application of the Constitution – including in relation to the field of European integration – should correspond to the meaning that the preamble to the Constitution attributes to the recovery of sovereignty, understood as the ability to determine the fate of Poland. This is a significant change in the perception of the Court’s role in protecting constitutional identity.

4.

Summary

What remains common to the constitutional courts of the Member States is the conviction of the fundamental importance of the Constitution as a reflection and guarantee of state sovereignty in the current phase of European integration, as well as of the special role of the constitutional judiciary in the field of the protection of the constitutional identity of the Member States, which at the same time determines the treaty identity of the EU. Furthermore, in some Member States, particularly Hungary and Poland, we can observe attempts by constitutional courts to shape a dangerous systemic practice in which the principle of the primacy of EU law is not absolute and judgments of the CJEU can be controlled by individual constitutional

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courts and, as a result of this control, also be rejected. In practice, the aim of constitutional courts in Hungary and Poland becomes not so much to increase the level of protection of fundamental rights and constitutional identity but rather to protect the political settlement made by the national authorities.

References Jurisdiction CJEU judgment of 5 December 2017, C-42/17, M.A.S. and M.B, ECLI: ECLI:EU:C:2017:936. CJEU judgment of 22 November 2005, Werner Mangold v Rüdiger Helm, OJ.EU.C.2006.36.10/2. Judgment of 24 November 2010, ref. K 32/09, OTK 2010/9A, pos. 108. Judgment of the Constitutional Court of 31 May 2018, 115/2018, para. 11. Judgment of 14 July 2021, ref. P 7/20, OTK ZU A/2021, pos. 49.

Literature Bała P., ‘Tożsamość konstytucyjna’ a Traktat z Lizbony. Tezy wyroku Federalnego Trybunału Konstytucyjnego z 30 czerwca 2009 r. [‘Constitutional identity’ and the Lisbon Treaty. Theses of the judgment of the Federal Constitutional Court of 30 June 2009], Ius Novum 2010, no. 2. Beneyto J.M., Pernice I., Europe’s Constitutional Challenges in the Light of the Recent Case Law of National Constitutional Courts. Lisbon and Beyond, Baden Baden 2011. Berner K., ‘Sovereignty of Parliament’ under the Grundgesetz: How the German Constitutional Court discovers parliamentary participation as a means of controlling European integration, European Public Law 2013, no. 2(19). Garlicki L., Normy konstytucyjne relatywnie niezmiemienalne [Constitutional norms relatively immutable], in: Charakter i struktura normy Konstytucji [Nature and structure of the Constitution’s norm], ed. J. Trzciński, Warszawa 1997. Kustra A., Kelsenowski model kontroli konstytucyjności prawa a integracja europejska. Studium wpływu [Kelsen’s Model of Control of Constitutionality of Law and European Integration. An Impact Study], Toruń 2013. Kustra A., Sądy konstytucyjne a ochrona tożsamości narodowej i konstytucyjnej państw członkowskich Unii Europejskiej [Constitutional courts and the protection of the national and constitutional identity of the Member States of the European Union], in: Prawo Unii Europejskiej a prawo konstytucyjne państw członkowskich [European Union Law and the Constitutional Law of the Member States], eds. S. Dudzik, N. Półtorak, Warszawa 2013. Maduro M.P., Wykładnia prawa wspólnotowego – funkcja orzecznicza w kontekście pluralizmu konstytucyjnego [Interpretation of community law – the adjudicatory function

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in the context of constitutional pluralism], in: Europejska przestrzeń sądowa [European Judicial Space], eds. A. Frąckowiak-Adamska, R. Grzeszczak, Wrocław 2010. Serowaniec M., Parlamentarne komisje do spraw europejskich [Parliamentary Committees for European Affairs], Warszawa 2016. Serowaniec M., Witkowski Z., Eternity clause: a realistic or merely an illusory way of protecting the state’s constitutional identity?, Studi polacco-italiani di Toruń/Toruńskie studia polsko-włoskie 2021, no. 17, DOI:10.12775/TSP-W.2021.012. Soloch B., Jak chronić prawa podstawowe własnych obywateli w sytuacji prymatu prawa unijnego? Garść refleksji na kanwie orzecznictwa FSK i TSUE dotyczącego Europejskiego Nakazu Aresztowania (ENA) [How to protect the fundamental rights of one’s own citizens in a situation of the primacy of EU law? A handful of reflections on the case law of the FSK and the CJEU concerning the European Arrest Warrant (EAW)], Acta Universitatis Lodziensis, Folia Iuridica 2019, no. 88. Witkowska-Chrzczonowicz K., Witkowski Z., Konstytucje narodowe a zasada prymatu prawa wspólnotowego na tle orzecznictwa Trybunału Konstytucyjnego RP oraz Sądu Konstytucyjnego Republiki Czeskiej [National constitutions and the principle of primacy of community law against the background of the jurisprudence of the Constitutional Tribunal of the Republic of Poland and the Constitutional Court of the Czech Republic], in: Pocta Jánu Gronskému, eds. K. Klima, J. Jirásek, Plzeň 2008. Witkowska-Chrzczonowicz K., Rutynowski J., Polityczne i ustrojowe problemy ratyfikacji Traktatu z Lizbony w RFN – wybrane zagadnienia [Political and constitutional challenges of the ratification of the Lisbon Treaty in Germany – selected issues], Przegląd Sejmowy 2011, no. 1. Wojtyczek K., Przekazywanie kompetencji państwa organizacjom międzynarodowym [Transfer of State Competences to International Organisations], Kraków 2007, p. 284 et seq. Wójtowicz K., Poszanowanie tożsamości konstytucyjnej państw członkowskich Unii Europejskiej [Respect for the constitutional identity of the Member States of the European Union], Przegląd Sejmowy 2010, no. 4.

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Jacek Wantoch-Rekowski, Martyna Wilmanowicz-Słupczewska

Constitutional right to social security

1.

Introduction

The right to social security is included in the group of social rights and freedoms.1 It is difficult to imagine a modern, democratic state in which social security issues would not play a significant role. Given the important role of social security (in social, economic and political terms), the basic regulations are contained in the most important pieces of legislation. It is usually constitution that regulates, in general terms, the basic principles concerning social security. The right to social security is formulated in Article 22 of the Universal Declaration of Human Rights, adopted on 10 December 1948, according to which, ‘Everyone, as a member of society, has the right to social security and is entitled to the realisation, through national efforts and international co-operation, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality’.2 The right to social security concretises at a specific time for each of the entitled subjects. The realisation of this right depends not only on the content of the legislation but also on the surrounding demographic, economic, social or political situation.3 The purpose of the study is to analyse the provisions of the Constitution of the Republic of Poland of 2 April 1997,4 which concern the issue of social security, against the background of constitutional regulations of selected European states and supranational regulations.

1 B. Banaszak, Prawo konstytucyjne [Constitutional Law], Warszawa 2010, p. 240. 2 Universal Declaration of Human Rights of December 10, 1948, http://libr.sejm.gov.pl/tek01/txt/onz/ 1948.html. 3 The issue of social security is relevant in every modern state, while the practical problems of realising this right in each state may vary in nature. In many states, reforms are being carried out to ensure that this right is realistically realised. For example, on reforms of the constitutional right to pension insurance in the US, see T.L. Anemson, L.L. Barkacs, J.K. Gershberg, Constitutional limits on public pension reform: new directions in law and legal reasoning, Virginia Law & Business Review 2019 no. 3, vol. 15, pp. 338–400 (accessed on HeinOnline). 4 J. of L. 1997, no. 78, item 483 as amended.

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2.

Social security – concept, constituent elements

In regard to the genesis of social security, it is worth noting that the desire to create state forms was seen as a consequence of the industrial revolution and the creation of the so-called working class.5 Social insurance arose from the merger of two hitherto separate and alien groups of phenomena (i. e., assurance and social policy).6 To date, no normative definition of social security has been developed in the Polish legal system. Moreover, there is no single, universal definition developed by scholars. However, many eminent specialists in the field of law have formulated their own definitions. First of all, it is necessary to point to the findings of J. Piotrowski who indicated that social security is a set of measures and activities of public institutions, through which society tries to secure its citizens from deprivation not caused by themselves; such deprivation threatens to prevent the satisfaction of the citizens’ basic needs, which are socially recognised as important.7 In turn, another specialist in the field of social security, W. Szubert, defined social security as the totality of devices, both similar to the insurance model and providing funds from public funds and based on the principle of social assistance. According to W. Szubert, the whole of the insurance system, including certain forms of care, is increasingly often referred to as social security, a term used to denote a device created by the state and guaranteeing a wide range of citizens a minimum of existence in the face of random accidents.8 According to K. Głąbicka, social security is defined as the entirety of measures and activities of public institutions, by means of which society tries to secure its citizens against privation not caused by them and the threat of inability to satisfy basic needs, socially recognised as important.9 The literature indicates that Article 67 of the Constitution of the Republic of Poland establishes, on the one hand, citizens’ right to social security and, on the other hand, imposes an obligation on the state to create such statutory solutions that ensure the full realisation of citizens’ constitutional rights. The details concerning

5 K. Ślebzak, Artykuł 67 [Article 67], in: Konstytucja RP, Komentarz, Tom I [Constitution of the Republic of Poland, Commentary, Vol. 1], eds. M. Safjan, L. Bosek, C.H. BECK, Warszawa 2016, p. 1487. 6 S. Fischlowitz, Społeczny charakter ubezpieczeń społecznych [The social nature of social insurance], Ruch Prawniczy, Ekonomiczny i Socjologiczny, 18, no. 3, Poznań 1938, http://hdl.handle.net/10593/ 20401, p. 293. 7 J. Piotrowski, Zabezpieczenie społeczne. Problematyka i metody [Social Security. Issues and methods], Warszawa 1966, p. 8. 8 W. Szubert, Studia z polityki społecznej [Studies in social policy], Warszawa 1973, pp. 229–230. 9 K. Głąbicka, Prawa i standardy socjalne w zintegrowanej Europie [Social rights and standards in an integrated Europe], in: System zabezpieczenia społecznego po przystąpieniu Polski do Unii Europejskiej [Social security system after Poland’s accession to the European Union], eds. K. Głąbicka and M. Pierzchalska, Pionki-Radom 2003, p. 33.

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Constitutional right to social security

the scope and forms of establishing the right to social security are not specified in the most important legal act, but reference is made to ordinary legislation. Ensuring social security is therefore the task of the state authorities. The provision of Article 67 of the Constitution of the Republic of Poland forms a constitutional benchmark, defining in a general way the framework of social security and the directions of state policy and being addressed mainly to the legislative bodies. Article 67 of the Constitution of the Republic of Poland and the provisions of a number of laws broadly guarantee the social security of the individual, realising the right to social security in a complex way. This takes the form of various types of benefits; however, the assistance provided by public authorities must not assume the features of paternalism or bail out the individual from caring for his or her own existence. Social security only makes sense if it is subsidiary in nature.10 Social security is not a unified concept; it has several components. When describing it, authors use various terms (basic concepts of social security implementation, social security techniques, methods etc.).11 The jurisprudence of the Constitutional Court has repeatedly pointed out that ‘social security is nowadays conceived as a system of facilities and benefits serving to satisfy the justified needs of citizens who have lost or suffered a reduction in their capacity to work, or who have been excessively burdened by the costs of supporting their families. It comprises social insurance, social provision and social assistance’.12 The ‘classical’ understanding of social security was created by J. Piotrowski, who pointed out that public social security institutions are sometimes organised according to three techniques: insurance, provision and welfare. He emphasised that the concepts of social insurance, provisioning or welfare are not opposite or equivalent to the concept of social security; rather, the latter concept encompasses all three previous ones as its different manifestations.13 A similar position is presented by G. Szyburska-Walczak. According to this author, social security is the broadest category in terms of meaning. It is a system of solutions, the scope and form of which are defined by law; the system is established to protect every individual in the event of a loss of their social security and cover

10 S. Stecko, Prawo do świadczeń z zabezpieczenia społecznego w świetle Konstytucji RP [The right to social security benefits in the light of the Constitution of the Republic of Poland], Przegląd Prawa Konstytucyjnego 2019 No. 4, p. 205. 11 J. Wantoch-Rekowski, System ubezpieczeń społecznych a budżet państwa. Studium prawnofinansowe [The social security system and the state budget. A legal and financial study], Warszawa 2014, p. 26. 12 See, for example, the judgment of the Constitutional Court of 19 November 1996, K 7/95, LEX No 28656. 13 J. Piotrowski, Zabezpieczenie społeczne. Problematyka i metody [Social Security. Issues and methods], Warszawa 1966, pp. 164–165.

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social insurance, social provision and social assistance. Social security is an important element of social policy and serves to protect those members of society who are unable to satisfy – either fully or in sufficient measure – their own and their close relatives’ needs, which are commonly regarded as necessary and important.14 As M. Wujczyk rightly points out, ‘Social security is understood to encompass the following nine branches: adequate health service, disability benefits, old age benefits, unemployment benefits, employment injury insurance, family and child support, maternity benefits, disability protections, and provisions for survivors and orphans’.15

3.

Social security in the Constitution of the Republic of Poland

The issue of social security in the Polish Constitution is regulated in Article 67, according to which: 1) ‘A citizen has the right to social security in the event of incapacity to work due to illness or disability and upon reaching retirement age. The extent and forms of social security shall be determined by law’ (para. 1); 2) ‘A citizen who is unemployed not of his own free will and has no other means of subsistence has the right to social security, the extent and forms of which shall be determined by law’ (para. 2). In the context of this provision, B. Gronowska points out that in light of the construction of the subjective right, the essence of the right to which an individual is entitled is the possibility to make a claim specified in the subjective right. According to the author, the right ‘to something’ always results from the existence of a bilateral obligatory relationship in which one of the parties is entitled to a specific benefit, while the other party is obliged to realise that benefit.16 There is no doubt that Article 67 of the Polish Constitution defines the right to social security in very general framework terms. In terms of details, the Polish Constitution refers to laws. Laws should therefore regulate the following: 1) social security issues; 2) social provision issues; 3) social welfare issues; 4) issues concerning unemployment assistance. 14 G. Szyburska-Walczak, Ubezpieczenia społeczne. Repetytorium [Social Security. Repetitorium], Warszawa 2019, p. 26. 15 M. Wujczyk, The right to social security in the Constitution of the Republic of Poland, Studia z Zakresu Prawa Pracy i Polityki Społecznej 2016, no. 23, p. 275. 16 B. Gronowska, in: Prawo konstytucyjne [Constitutional Law], ed. Z. Witkowski, Toruń 2011, p. 154.

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Constitutional right to social security

In the Polish legal system, the right to social security is concretised for each insured person in the context of statutory solutions. Article 67 of the Constitution of the Republic of Poland is not a direct basis for claims for benefits, as ordinary laws regulate the issues concerning benefits for entitled entities.17 This way of interpreting Article 67 is presented in the jurisprudence of the Constitutional Tribunal. By way of example, the judgment of the Constitutional Tribunal of 25 September 201918 indicated that pursuant to Article 67(1) and (2) of the Constitution of the Republic of Poland, the determination of the scope and forms of social security lies, as a rule, within the competence of the ordinary legislator. Referring to previous jurisprudence, the Constitutional Tribunal emphasised that Article 67 (1) of the Constitution implies an order for statutory regulations to realise the content of the constitutional right to social security in a manner that both takes into account the existing social needs and the possibilities of satisfying them. The limits of these possibilities are determined by other protected constitutional values, which may to some extent remain in opposition to statutory solutions aimed at maximising social guarantees. The Constitutional Tribunal has further indicated that the notion of social security has been included in Article 67 of the Constitution of the Republic of Poland in the category of subjective rights. In the opinion of the Constitutional Tribunal, the essence of the right to social security is the protection of citizens in the event of a specific insurance risk occurring. In the judgment of 25 September 2019, the Constitutional Tribunal took the position that ‘the imposition on the legislator in Article 67(1) of the Constitution of the Republic of Poland of the obligation to determine the scope and forms of social security, without clearly indicating the criteria and directions for determining the limits and forms of this security, means that, as a result of legislative actions, a whole system of forms, of varied scope, fulfilling the content of this notion should be created. This system, as a whole, is intended to enable a citizen who is incapable of working due to illness or disability, after reaching retirement age, or who is unemployed not of his own free will and has no other means of subsistence, to fully realise his right to social security’. It is also worth pointing out that in its judgment of 25 September 2019, the Constitutional Tribunal emphasised that the rights guaranteed by Article 67 of the Constitution of the Republic of Poland are a manifestation not only of the principle of social solidarity but also of the principle of social justice expressed in Article 2 of the Fundamental Law and the principle of protection of the individual’s trust in the state and the law created by it derived from this provision. This is because the Republic of Poland, both at the constitutional

17 See the decisions of the Supreme Court of 5 February 2019, III UK 129/18, LEX No 2615861. 18 SK 31/16, LEX No 2721480.

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and international legal level, has committed itself to its own citizens by providing them with guarantees in the sphere of social security. A similar position is presented by the Supreme Court. In its judgment of 24 June 2015,19 it ruled that a constitutional right to a specific form of social benefit cannot be derived from Article 67(1) of the Polish Constitution. The basis of possible claims of persons applying for a pension, an old-age pension or another form of social security may be the provisions of laws regulating these issues in detail and not Article 67(1) of the Constitution of the Republic of Poland, which authorises the legislator to determine the scope and forms of social security. This view has been reproduced in subsequent judgments of the Supreme Court (e. g., its judgment of 26 May 2021).20 The administrative judiciary also shares this view. For example, in a judgment of 10 October 2019, the Voivodship Administrative Court in Opole21 formulated the thesis that the constitutional right to social security does not imply entitlements with a specific content for citizens. The Constitution does not determine either the forms of social security or its scope. Therefore, it is not possible to derive a constitutional right to any specific form of benefit from Article 67(1) of the Constitution. It is worth signalling the differentiation in particular constitutional orders, in which either a constitutional subjective right emerges or only a reference to legal provisions of a lower order concretising this right is included, (i. e., as is the case in the Polish legal order).22 Jan Jończyk made a valid point that Article 67 of the Polish Constitution does not exhaust the issue of social risk as a subject of social security law.23

4.

Social security in the constitutions of selected European countries

The constitutions of almost all European countries regulate social security issues or elements thereof. As a rule, the provisions are ‘laconic’. In the vast majority, the constitutions refer, as far as specific issues are concerned, to laws.24 19 20 21 22

I UK 371/14, LEX No 1771087. II USKP 47/21, LEX No 3220298. II SA/Op 286/19, LEX No 2738890. Cf. K. Ślebzak, The right to social security in the Constitution of the Republic of Poland, Praca i Zabezpieczenie Społeczne 2019, no. 12, vol. LX, DOI 10.33226/0032-6186.2019.12.2, pp. 8–13. 23 J. Jończyk, Prawo zabezpieczenia społecznego [Social Security Law], Zakamycze 2001, p. 30. 24 J. Wantoch-Rekowski, Problematyka dotycząca ubezpieczeń społecznych w konstytucjach wybranych państw europejskich [Problematics concerning social insurance in the constitutions of selected European states] in: Konstytucje państw współczesnych. Studium prawno-historyczne, [Constitutions of modern states. A legal and historical study], ed. M. Serowaniec, J. Zemła and T. Gurbin, Toruń 2018, p. 244.

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Constitutional right to social security

General regulations on the right to social security are found in the constitutions of many European countries. They adopt a construction similar to that of the 1997 Constitution of the Republic of Poland, in which reference is made to laws on specific issues. Furthermore, ‘While the variety of constitutional provisions ensuring social protection continues to increase, there is a noticeable pattern of their convergence around three main approaches: affirming social security as an individual right of a human being; defining the social responsibility of the State in social security provisions; and placing social security among the guiding principles of state policy’.25 Thus, the Constitution of the Republic of Macedonia of 17 November 199126 states in Article 34 that citizens have the right to social security and social protection as defined by law and collective agreements. Equally laconic is the Constitution of the Grand Duchy of Luxembourg of 17 October 1868 in Article 11 (5): ‘The law regulates, as regards principles, social security, health protection, workers’ rights, the fight against poverty and the social integration of citizens affected by invalidity’.27 Article 109 of the Constitution of Latvia of 15 February 1922 states that ‘Everyone has the right to social security in case of old age, incapacity, unemployment and in other cases defined by law’, and Article 20(2) of the Constitution of the Netherlands of 28 March 1814 states that ‘The conditions of social security shall be determined by law’. The Portuguese Constitution of 2 April 1976, on the other hand, indicates in Article 63(1) that everyone has the right to social security. Subsequent drafting units of Article 63 elaborate on this general declaration: 1) According to paragraph 2, ‘It shall be the duty of the State to organise, coordinate and subsidise a unified and decentralised system of social security, with the participation of trade unions, other organisations representing workers and associations representing other persons covered by benefits’. 2) According to paragraph 3, ‘The social security system shall provide protection for citizens in the event of sickness, old age, invalidity, widowhood and orphanhood, and in the event of unemployment and in any case of lack or limitation of the means of subsistence or of the ability to work’.

25 A. Egorov and M. Wujczyk, The right to social security in the constitutions of the world: broadening the moral and legal space for social justice, volume 1: Europe, Geneva, 2016: International Labour Organisation, p. 17, http://www.ilo.org/global/standards/subjects-coveredby-international-labourstandards/social-security/WCMS_518153/lang-en/index.htm (accessed: 20.10.2022). 26 Based on the text: Constitution of the Republic of Macedonia, transl. T. Wojcik, Warszawa 1999. 27 Texts of constitutions of the European Union states based on: Constitutions of the European Union States, ed. W. Staśkiewicz, Warszawa 2011.

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3) According to paragraph 4, ‘The entire period of service shall form the basis, under the terms of the Act, for the calculation of pensions, irrespective of the economic sector in which the work was performed’.28 In the Belgian Constitution of 7 February 1831, social security is regulated in Article 23. This provision states that everyone has the right to lead a life that corresponds to the requirements of human dignity; to this end, the law, decree or acts of the regional bodies referred to in Article 134 guarantee – while taking into account the corresponding obligations – economic, social and cultural rights and define the conditions for their exercise. The Belgian Constitution mentions these rights by way of example (the construction ‘in particular’ is used), one of which is the right to social security.29 Some of the constitutions of European countries contain regulations on social security, which are ‘clarified’ by reference to social insurance (a case in point is Croatia). The Constitution of the Republic of Croatia of 22 December 1990 contains the words ‘security’ and ‘insurance’ in one sentence; it follows from Article 56 that laws and collective agreements define the rights of the employed and their families to social security and social insurance. The law also defines rights related to childbirth, maternity and childrearing.30 The constitutions of some European countries do not contain the general term ‘social security’, and the regulations explicitly refer to the issue of social insurance(s). For example, such solutions exist in Greece, Bulgaria, Albania, Romania, Malta or Hungary.31 A broader overview of the Constitution, in the context of social security and social insurance regulation, is provided in the literature.32

28 J. Wantoch-Rekowski, Problematyka dotycząca ubezpieczeń społecznych w konstytucjach wybranych państw europejskich [Problematics concerning social insurance in the constitutions of selected European states] in: Konstytucje państw współczesnych. Studium prawno-historyczne [Constitutions of modern states. Legal and Historical Study], eds. M. Serowaniec, J. Zemła and T. Gurbin, Toruń 2018, pp. 236–237. 29 Ibid., p. 237. 30 Based on the text: Constitution of the Republic of Croatia, transl. T. M. Wojcik, M. Petryńska, Sejm Publishing House, Warszawa 2007. 31 See in more detail J. Wantoch-Rekowski (above n. 28), p. 239–240. 32 See, for example, J. Wantoch-Rekowski, (above n. 28), p. 244.

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Constitutional right to social security

5.

Social security against the background of supranational regulations

Social security is recognised as one branch of European Union law. Its separation from all European Union law is based on similar criteria to the separation of social security law in the individual Member States. European Union social security law (like all EU law) is divided into primary law and secondary law, which mainly includes regulations that apply in each Member State. In the field of social security, a number of directives have been issued that mainly concern the principle of equal treatment in social security systems.33 Community regulations do not lead to harmonisation of national social security systems, and they do not provide for their harmonisation. Rather, they are based on the coordination of the different systems. Coordination is based on two legal acts: Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems34 and Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009, laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems.35 As pointed out in the doctrine, ‘While the key legislative instruments, namely Regulations 883/3004 and 987/2009, do not ensure beneficiaries full protection of social security income, they do guarantee that they are subject to the legislation of (only) one Member State and enjoy the protection of the principles of non-discrimination, portability, aggregation and retention of acquired rights under national law in relation to virtually all social security risks’.36 The problem of gaps in the protection of mobile workers that result from differences between national systems is also relevant;37 however, these gaps cannot be closed by regulation due to the lack of a legal basis for harmonisation in the Treaty on the Functioning of the European Union.38 Representatives of the

33 G. Uścińska, Zabezpieczenie społeczne w Unii Europejskiej i Polsce [Social security in the European Union and Poland], in: Społeczne skutki integracji Polski z Unią Europejską [Social consequences of Poland’s integration into the European Union], ed. K. Głąbicka, Warszawa 1999, p. 164–165. 34 OJ L 166, 30.4.2004, pp. 1–123. 35 OJ L 284, 30.10.2009, pp. 1–42. 36 A.-P. van der Mei, P. Melin, Z. Vankova and H. Verschueren, The external dimension of EU social security coordination, European Journal of Social Security, 2018, vol. 20(2), doi:10.1177/ 1388262718771734, p. 81. 37 G. Essers, F. Pennings, Gaps in social security protection of mobile persons: options for filling these gaps. European Journal of Social Security 2020, vol. 22(2), pp. 163–179. doi:10.1177/ 1388262720925279. 38 Official Journal of the EU C 326 of 26 October 2012.

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doctrine also point to potential mechanisms that can be used to strengthen the social protection of persons moving in and out of the EU.39 The literature points out that the EU rules on the coordination of social security schemes have not only coordinating effects but also substantive legal effects in the national legislation of the Member States.40 As O. Golynker rightly points out, ‘The process of integration in the regulation of cross-border social security is affected by the need to balance the rights of EU citizens; the objective of facilitating labour mobility; and the legitimate interests of the Member States who have exclusive responsibility for national social security systems’.41 Since 1 May 2004 (i. e., since Poland’s accession to the European Union), labour migration within the Member States has not put migrants at a disadvantage, as the above-mentioned regulations coordinate the different systems in the Member States. However, these regulations do not apply when a country that is not a member of the European Union is involved. In such situations, bilateral agreements to which Poland is a party apply. For example, the following agreements can be pointed out: 1) of 2 April 2008 on social security between the Republic of Poland and the United States of America; 2) of 2 April 2008 on social security between the Republic of Poland and Canada; 3) of 25 February 2009 on social security between the Republic of Poland and the Republic of Korea; 4) of 7 October 2009 between the Republic of Poland and Australia on social security; 5) of 22 November 2016 between the Republic of Poland and the State of Israel on social security; 6) of 24 January 2018 between the Republic of Poland and Mongolia on social security. The history of bilateral agreements began in Europe as early as the beginning of the 20th century, when the first statutory social security schemes were developed.42

39 G. Vonk, Sailing the seven seas: a schematic overview of mechanisms that can be used to strengthen the social security protection of persons moving in and out of the EU, European Journal of Social Security 2018, no. 20(2), pp. 204–216. doi:10.1177/1388262718771793. 40 A. Szybkie, Materialnoprawny wpływ koordynacji systemów zabezpieczenia społecznego w UE na krajowe instytucje prawne zabezpieczenia społecznego [Material legal impact of the coordination of social security systems in the EU on national social security legal institutions], ‘Ubezpieczenia Społeczne. Teoria i Praktyka’ 2017 r. no. 4, p. 4. 41 O. Golynker, EU coordination of social security from the point of view of EU integration theory, European Journal of Social Security 2020, vol. 22(2), p. 111. doi:10.1177/1388262720938154. 42 F. Pennings, National approaches of EU Member States in concluding bilateral social security agreements with third countries: the case of the Netherlands, European Journal of Social Security, 2018, vol. 20(2), p. 163. doi:10.1177/1388262718771787.

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Bilateral agreements became an indispensable solution to protect workers from paying contributions in two countries at the same time; being deprived of their insured status; or not receiving the benefits to which they were entitled.43 In addition to EU regulations (and bilateral agreements), legal acts of the International Labour Organisation, the Council of Europe or the United Nations are of great importance in the sphere of social security. Undoubtedly, a major role in the sphere of social security is played by Convention No. 102 of the International Labour Organisation concerning minimum standards of social security, adopted in Geneva on 28 June 1952.44 This convention regulates issues concerning the following: 1) medical care; 2) sickness benefits; 3) benefits during unemployment; 4) old-age benefits; 5) benefits in the event of accidents at work and occupational diseases; 6) family benefits; 7) maternity benefits; 8) disability benefits; 9) benefits in the event of the death of the breadwinner; 10) calculation of periodic payments; 11) equal treatment of foreign citizens. The literature points to the strong role of the Council of Europe in the field of social security. The main mission of the Council of Europe is to protect human rights, democratic pluralism and the rule of law, as well as to support activities that enable social development. One of the main tasks of the Council of Europe in the field of social affairs is to develop innovative approaches in standard-setting and policy-making, bearing in mind the strategic goal of moving forward with guarantees of social cohesion in all Member States. The social challenges facing the Council of Europe’s member states are currently the focus of the body’s attention.45

6.

Summary

The right to social security cannot be seen today as a privilege. Instead, it is a kind of standard in every democratic state.

43 Ibid. 44 J. of L. 2005, no. 93, item 775. 45 S. Molina, Zabezpieczenie społeczne w aktach Rady Europy [Social security in the acts of the Council of Europe], Polityka Społeczna 2005, no. 3, p. 30.

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Social security is regulated at many levels but primarily supranational and national (state). While recognising the importance of EU regulations, those of the UN, the Council of Europe or the International Labour Organisation, it must be stressed that the constitutions of individual states play an important role. These usually contain general framework regulations, but thanks to them, a specific social security system is created in a given country. On the issue of social security, the Constitution of the Republic of Poland of 2 April 1997 is highly laconic. The legislator determined the impossibility of formulating entitlements of a specified content for citizens from Article 67 (1) of the Constitution of the Republic of Poland, including in particular the derivation of a constitutional right to any specific form of benefit. The regulation of the above issues takes place in legal acts of statutory rank. However, it is reasonable to conclude that Article 67 of the Polish Constitution, in conjunction with supranational provisions and national laws, satisfactorily provides the entitled subjects with a real right to social security.

References Legal acts Bilateral agreement of 2 April 2008 on social security between the Republic of Poland and the United States of America. Bilateral agreement of 2 April 2008 on social security between the Republic of Poland and Canada. Bilateral agreement of 25 February 2009 on social security between the Republic of Poland and the Republic of Korea. Bilateral agreement of 7 October 2009 between the Republic of Poland and Australia on social security. Bilateral agreement of 22 November 2016 between the Republic of Poland and the State of Israel on social security. Bilateral agreement of 24 January 2018 between the Republic of Poland and Mongolia on social security. Convention No. 102 of the International Labour Organisation concerning minimum standards of social security, adopted in Geneva on 28 June 1952, J. of L. 2005, no. 93, item 775. Konstytucja Rzeczypospolitej Polskiej z dnia 2 kwietnia 1997 r. [Constitution of the Republic of Poland of 2 April 1997] J. of L. 1997, no. 78, item 483 as amended. Konstytucja Republiki Macedonii z dnia 17 listopada 1991 r. [Constitution of the Republic of Macedonia of 17 November 1991].

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Konstytucja Wielkiego Księstwa Luksemburga z dnia 17 października 1868 r. [Constitution of the Grand Duchy of Luxembourg of 17 October 1868.]. Konstytucja Łotwy z dnia 15 lutego 1922 r. [Constitution of Latvia of 15 February 1922]. Konstytucja Królestwa Holandii z 28 marca 1814 roku [Constitution of the Kingdom of the Netherlands of 28 March 1814]. Konstytucja Republiki Portugalskiej z dnia 2 kwietnia 1976 r. [Constitution of the Portuguese Republic of 2 April 1976.]. Konstytucja Królestwa Belgii z dnia 7 lutego 1831 r. [Belgian Constitution of 7 February 1831]. Konstytucja Republiki Chorwacji z 22 grudnia 1990 r. [The Constitution of the Republic of Croatia of 22 December 1990]. Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, OJ L 166, 30.4.2004, p. 1–123. Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009, OJ L 284, 30.10.2009, pp. 1–42. Universal Declaration of Human Rights of 10 December 1948.

Jurisdiction Judgment of the Constitutional Court of 19 November 1996, K 7/95, LEX No 28656. Judgment of the Supreme Court of 24 June 2015, I UK 371/14, LEX No 1771087. Judgment of the Constitutional Tribunal of 25 September 2019, SK 31/16, LEX No 2721480. Judgment of the Voivodship Administrative Court in Opole of 10 October 2019, II SA/Op 286/19, LEX No 2738890. Judgment of the Supreme Court of 26 May 2021, II USKP 47/21, LEX No 3220298.

Literature Anemson T.L., Barkacs L.L., Gershberg J.K., Constitutional limits on public pension reform: new directions in law and legal reasoning, Virginia Law&Business Review z 2019 r. no. 3, vol. 15, s. 338–400 (access: HeinOnline). Banaszak B., Prawo konstytucyjne [Constitutional Law], Warszawa 2010. Egorov A., Wujczyk M., The Right to Social Security in the Constitutions of the World: Broadening the moral and legal space for social justice, Volume 1: Europe, Geneva, 2016, International Labour Organisation, available at: http://www.ilo.org/global/standards/ subjects-coveredby-international-labour-standards/social-security/WCMS_518153/ lang–en/index.htm. Essers G., Pennings F., Gaps in social security protection of mobile persons: Options for filling these gaps, European Journal of Social Security. 2020;22(2), doi:10.1177/ 1388262720925279, pp. 163–179.

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Fischlowitz S., Społeczny charakter ubezpieczeń społecznych [The social nature of social insurance], Ruch Prawniczy, Ekonomiczny i Socjologiczny, 18, n. 3, Poznań 1938, http:// hdl.handle.net/10593/20401, pp. 293–328. Głąbicka K., Prawa i standardy socjalne w zintegrowanej Europie [Social rights and standards in an integrated Europe], in: System zabezpieczenia społecznego po przystąpieniu Polski do Unii Europejskiej [Social security system after Poland’s accession to the European Union], eds. K. Głąbicka and M. Pierzchalska, Pionki-Radom 2003. Golynker O., EU coordination of social security from the point of view of EU integration theory. European Journal of Social Security. 2020;22(2), doi:10.1177/1388262720938154, pp. 110–137. Gronowska B. in: Prawo konstytucyjne [Constitutional Law], ed. Z. Witkowski, Toruń 2011. Jończyk J., Prawo zabezpieczenia społecznego [Social Security Law], Zakamycze 2001. Molina S., Zabezpieczenie społeczne w aktach Rady Europy [Social security in the acts of the Council of Europe], Polityka Społeczna 2005, no. 3. Pennings F., National approaches of EU Member States in concluding bilateral social security agreements with third countries: The case of the Netherlands. European Journal of Social Security. 2018;20(2), doi:10.1177/1388262718771787, pp. 162–172. Piotrowski J., Zabezpieczenie społeczne. Problematyka i metody [Social Security. Issues and methods], Warszawa 1966. Stecko S., Prawo do świadczeń z zabezpieczenia społecznego w świetle Konstytucji RP [The right to social security benefits in the light of the Constitution of the Republic of Poland], Przegląd Prawa Konstytucyjnego 2019 no. 4. Szubert W., Studia z polityki społecznej [Studies in social policy], Warszawa 1973. Szybkie A., Materialnoprawny wpływ koordynacji systemów zabezpieczenia społecznego w UE na krajowe instytucje prawne zabezpieczenia społecznego [Material legal impact of the coordination of social security systems in the EU on national social security legal institutions], Ubezpieczenia Społeczne. Teoria i Praktyka 2017 r. no. 4. Szyburska-Walczak G., Ubezpieczenia społeczne. Repetytorium [Social Security. Repetitorium], Warszawa 2019. Ślebzak K., Artykuł 67 [Article 67], in: Konstytucja RP, Komentarz, Tom I [Constitution of the Republic of Poland, Commentary, Vol. 1], eds. M. Safjan, L. Bosek, C.H. BECK, Warszawa 2016. Ślebzak K., The right to social security in the Constitution of the Republic of Poland, Praca i Zabezpieczenie Społeczne, no. 12 2019 t. LX, DOI 10.33226/0032-6186.2019.12.2, pp. 8–13. Uścińska G., Zabezpieczenie społeczne w Unii Europejskiej i Polsce [Social security in the European Union and Poland] in: Społeczne skutki integracji Polski z Unią Europejską [Social consequences of Poland’s integration into the European Union], ed. K. Głąbicka, Warszawa 1999.

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van der Mei A.-P., Melin P., Vankova Z., Verschueren H., The external dimension of EU social security coordination. European Journal of Social Security. 2018;20(2), doi:10.1177/ 1388262718771734, pp. 81–85. Vonk G., Sailing the seven seas: A schematic overview of mechanisms that can be used to strengthen the social security protection of persons moving in and out of the EU, European Journal of Social Security. 2018;20(2), doi:10.1177/1388262718771793, pp. 204–216. Wantoch-Rekowski J., Problematyka dotycząca ubezpieczeń społecznych w konstytucjach wybranych państw europejskich [Problematics concerning social insurance in the constitutions of selected European states] in: Konstytucje państw współczesnych. Studium prawno-historyczne [Constitutions of modern states. Legal and Historical Study], eds. M. Serowaniec, J. Zemła and T. Gurbin, Toruń 2018. Wantoch-Rekowski J., System ubezpieczeń społecznych a budżet państwa. Studium prawnofinansowe [The social security system and the state budget. A legal and financial study], Warszawa 2014. Wujczyk M., The right to social security in the Constitution of the Republic of Poland, Studia z zakresu prawa pracy i polityki społecznej 2016, ISSN 1429–9585, pp. 275–289.

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Jerzy Lachowski, Weronika Baran-Rybczyńska

The principle of nullum crimen sine culpa in Polish criminal law from a constitutional perspective

1.

Introductory remarks

To begin considering the principle of nullum crimen sine culpa in criminal law, it should be noted that guilt has a different meaning in regard to both the substantive and procedural aspects. Determination of guilt in the procedural sense involves proving individual prerequisites for criminal liability in terms of evidence (e. g., the proof of the perpetration of a criminal act), while in the course of a criminal trial, guilt is also determined in material terms.1 Thus, in the procedural sense, the guilty party has been proven to have committed a criminal act with the characteristics described by the law, under conditions that justify the imputation of guilt. In the material sense, guilt is one of the prerequisites for criminal liability. It can therefore be seen that the concept of guilt in the procedural sense is much broader than the concept of guilt in the substantive legal sense. The considerations made in the context of the present study will focus on the issue of guilt in the substantive legal sense. It is worth adding here that this premise is independent of the fulfilment of actus reus.2 In other words, the mere fact of exhausting elements of criminal act does not automatically mean that guilt can be attributed.. The Criminal Code3 does not contain a definition of guilt in the material legal sense. Instead, the regulations contained in this law indicate what guilt’s function is in criminal law and what prerequisites must be fulfilled for it to be attributable.4

1 D. Świecki, Wina w prawie karnym materialnym i procesowym [Guilt in substantive and procedural criminal law], Prokuratura i Prawo 2009, No. 11–12, p. 10. 2 J. Lachowski, in: Kodeks karny. Komentarz [Penal Code. Commentary], ed. V. Konarska-Wrzosek, Warszawa 2020, p. 42. 3 Ustawa z dnia 6 czerwca 1997 r. Kodeks karny [Act of 6 June 1997 Penal Code], J. of L. of 2022, item 1138, as amended (hereinafter: CC). 4 J. Lachowski, (above n. 2), p. 43.

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Admittedly, the Constitution of the Republic of Poland,5 introducing the presumption of innocence in Article 42(3),6 indicates that ‘Everyone is presumed innocent until his or her guilt is established by a final court verdict’, but this refers basicly to guilt in the procedural sense. Furthermore, a careful reading of the Polish constitution makes it possible to reconstruct the principle of guilt in criminal law as the basis for criminal liability. This is done in the process of interpreting certain provisions of that statutory act.

2.

Genesis of the principle of nullum crimen sine culpa in criminal law

As already indicated at the outset, in modern criminal legislation, holding the offender criminally responsible must be preceded by the attribution of guilt. Therefore, we are dealing here with so-called subjective (personal) responsibility, which is also individual responsibility.7 However, it should be borne in mind that such shaping of the conditions for incurring criminal liability was preceded by the evolution over many years of subjective prerequisites for criminal liability. It has been pointed out that initially the incurring of such responsibility was determined by ‘randomness’, for which the mere coincidence of time or place may have been sufficient to link a specific incident with a specific perpetrator.8 The evolution, in terms of incurring criminal liability, concerned, on the one hand, the entities that could be held liable for such liability and, on the other hand, the type of relationship that exists between the resulting damage and the person who would be held responsible for it.9 Initially, in addition to human beings (including the dead), the circle of subjects who could be held criminally responsible included plants and animals, things and even forces of nature – as a result of the different perceptions of the surrounding

5 Konstytucja Rzeczypospolitej Polskiej z dnia 2 kwietnia 1997 r. [The Constitution of the Republic of Poland of 2 April 1997], J. of L. of 1997, No. 78, item 483 as amended. 6 See A. Tęcza-Paciorek, Zasada domniemania niewinności w polskim procesie karnym [The principle of presumption of innocence in the Polish criminal process], Warszawa 2012, p. 202 et seq. 7 A. Grześkowiak, in: Prawo karne [Criminal law], eds. A. Grześkowiak, K. Wiak, Warszawa 2020, p. 93. 8 M. Kowalewska-Łukuć, Wina w prawie karnym [Guilt in criminal law], Warszawa 2019, p. 19. 9 J. Kochanowski, O przekształcaniu się odpowiedzialności karnej [About conversion criminal responsibility], Państwo i Prawo 1978, No. 6, p. 25.

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The principle of nullum crimen sine culpa in Polish criminal law from a constitutional perspective

reality by people living in past centuries.10 In addition to individual responsibility (which was the rule), it was also possible to hold collective responsibility.11 Due to the principle requiring the disclosure of the offender in the case of a violation of a specific good, it was possible in former Polish law to hold a person liable if he or she did not commit a specific act and, consequently, was not at fault.12 An example of such liability was when a servant committed a crime (in the course of going out and returning to the owner’s house), whereby the owner of the house could be held liable if he or she did not name the specific offender.13 As emphasised in the literature, under the former criminal law, it was possible to be held liable for damage that was the consequence of even an accident, as criminal liability was, in principle, fully objective and independent of fault, with an extremely broadly defined causation (understood in a formal manner) between the damage and a specific act or omission.14 In addition to liability for persons, there was also liability for animals, or even for a territory – or more precisely for a crime committed in a certain area (e. g., when a corpse was found in a certain area, the owner of the territory was liable, provided he or she did not free himself or herself from this liability by the means provided for by the regulations of the time) – if only by naming the offender.15 In the early medieval period, criminal responsibility for a crime was linked to a change that occurred in the external world, which was seen as an effect.16 Due to the necessity of a change in the external world, no criminal liability was incurred for acts that only aimed at violating a legal good.17 As Wolter contended, in the former criminal law, the problem of guilt was therefore connected with the causal relationship seen in a broad way, as initially the concept of guilt could not be

10 Ibidem, pp. 24–25. 11 K. Koranyi, Powszechna historia państwa i prawa. Tom I. Starożytność [A general history of state and law. Volume I. Antiquity], Warszawa 1961, p. 13. 12 J. Rafacz, Dawne polskie prawo karne. Część ogólna [Ancient polish criminal law. General part], Warszawa 1932, p. 58. 13 Ibid. 14 K. Sójka-Zielińska, Historia prawa [History of law], Warszawa 2015, p. 140. 15 J. Rafacz, (above n. 12), pp. 59–60. 16 K. Sójka-Zielińska, (above n. 14), p. 139. 17 B. Marciniak, Racjonalizacja odpowiedzialności za usiłowanie popełnienia przestępstwa (między teorią obiektywną a subiektywną) [Rationalisation of responsibility for attempting to commit a crime (between objective and subjective theory)], Acta Universitatis Lodziensis. Folia Iuridica 2015, No. 74, p. 61.

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distinguished.18 At that time, guilt was identified with the cause, whereas only later it became a principle to bear responsibility for the effect that was at fault.19 The considerations so far might indicate that there was no room at all for subjective prerequisites for liability in the old law. However, this was not the case. The literature draws attention to the fact that already in antiquity, there were some manifestations of the formation of subjective liability, an example of which was the Ur-Nam Code created around 2050 BC, which used the terms culpable behaviour and intentional conduct for certain situations. Also, the Code of Hammurabi provided for unintentional guilt as a mitigating circumstance. Furthermore there is a distinction in the law of Dracon (dating from the 7th -century BC) between causing death intentionally or unintentionally and accidentally.20 However, it should be pointed out that the apparent subjectification of criminal responsibility in Roman law begins with the advent of the imperial period.21 Roman law distinguished between ‘dolus’ as intentional offences and ‘casus’ as unintentional offences (encompassing cases of both punishable unintentionality and pure accidental offences, where the perpetrator did not bear such responsibility).22 Manifestations of the development of such responsibility were also found in other environments – for example, in Visigothic and Longobard law, as well as in Salic and Frankish law.23 It is emphasised that, with some exceptions, medieval criminal law and then criminal law in the modern period up to the present is based on the Roman concept of culpability.24 As a complementary point, however, it should be pointed out that ‘dolus’ and ‘culpa’, which appeared in the criminal law of the time, only appeared within the framework of certain descriptions of prohibited behaviour and were formulated in a casuistic manner, not as part of a general regulation that would provide a basis for liability of a subjective nature.25

18 W. Wolter, in: Wina w prawie karnym [Guilt in criminal law], ed. W. Wolter, Cracow 1954, p. 5. 19 J. Makarewicz, Prawo karne. Wykład porównawczy z uwzględnieniem prawa obowiązującego w Rzeczypospolitej Polskiej [Criminal Law. Comparative lecture with consideration of the law in force in the Republic of Poland], Lviv – Warszawa 1924, p. 140. 20 J. Lachowski, (above n. 8), p. 21. 21 Z. Papierkowski, Wina kombinowana: Odpowiedzialność karna za niezamierzony skutek umyślnego działania przestępczego [Combined guilt: Criminal liability for the unintended consequence of an intentional criminal act], Prawo Kanoniczne: kwartalnik prawno-historyczny 1965, No. 8/3–4, p. 107. 22 M. Patkaniowski, Wina i kara. Elementy rzymskie i germańskie w prawie karnym statutów miast włoskich [Crime and punishment. Roman and Germanic elements in the criminal law of the statutes of Italian cities], Cracow 1939, p. 16. 23 M. Kowalewska-Łukuć, (above n. 8), pp. 21–22. 24 Z. Papierkowski, (above n. 21), p. 108. 25 M. Kowalewska-Łukuć, (above n. 8), p. 21.

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The principle of nullum crimen sine culpa in Polish criminal law from a constitutional perspective

With regard to the formation of the conditions for incurring criminal liability based on the principle of guilt, it is impossible to overlook the role of canon law, where the subjective aspect, influenced by the moral factor, was much more prominent than in secular law.26 It has been emphasised that practically from the beginning in canon law, the fundamental basis for determining responsibility for a specific act was the guilt of the perpetrator, where the psychological aspect was also taken into account, as the offence was identified with sin.27 One example in canon law where guilt is important in the context of criminal responsibility is the ‘Decree of Gracian’, in which, among other things, mentally ill persons were declared insane and consequently incapable of bearing responsibility.28 However, the development of the principle of subjectivism in the aforementioned areas did not result in the complete disappearance of the aspiration to objectivise criminal responsibility. The principle formulated by Bernard of Padua, ordering the imputation to the perpetrator of everything that resulted from his or her act, proved to be important in this respect. It was at the same time the opposite of the principle of subjectivism.29 It has been pointed out that from this point onwards there is a two-pronged development of criminal law – on the one hand, the development of subjectivism by the Italian school and, on the other hand, the emphasis in Germanic law30 on the effect resulting from a prohibited human act. It should be mentioned that the Germanic doctrine gave rise to the construction of an indirect intention justifying liability for the further effects of behaviour that was originally covered by the bad intention.31 Italian doctrine, on the other hand, not only used the form of intentional and unintentional guilt but also took into account its impact on the scope of criminal responsibility and distinguished between ‘pure coincidence’ and unintentionality, while in regard to minors, it paid attention to the degree of mental development, which determined the perpetrator’s degree of consciousness.32

26 J. Lachowski, (above n. 20), p. 647. 27 W. Uruszczak, Podmiotowa strona przestępstwa w Dekrecie Gracjana (1140). Przyczynek do genezy zasady nullum crimen sine culpa [The subjective side of the crime in the Gracjan Decree (1140). Contribution to the principle nullum crimen sine culpa], in: Państwo prawa i prawo karne. Księga Jubileuszowa Profesora Andrzeja Zolla. Tom II [State of law and criminal law. Jubilee Book of Professor Andrzej Zoll. Volume II], eds. P. Kardas, T. Sroka, W. Wróbel, Warszawa 2012, pp. 48–49. 28 Ibidem, p. 54. 29 M. Kowalewska-Łukuć, (above n. 8), p. 23; see also M. A. Myrcha, Problem winy w karnym ustawodawstwie kanonicznym: [ciąg dalszy] [The problem of guilt in canonical criminal legislation: [continued]], Prawo Kanoniczne: kwartalnik prawno-historyczny 1974, No. 17/3–4, p. 184 et seq. 30 G. Rejman, Teorie i formy winy w prawie karnym [Theories and forms of guilt in criminal law], Warszawa 1980, p. 98. 31 M. Kowalewska-Łukuć, (above n. 8), p. 26. 32 K. Sójka-Zielińska, (above n. 14), pp. 153–154.

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As a supplementary point, it should also be noted that, in the medieval period within Polish criminal law, the inclusion of intentional and unintentional guilt in the essence of a crime occurred in the Statutes of Casimir the Great, while developments in this area in later centuries were brought about by subsequent legal regulations.33 The development of criminal law, inter alia, in terms of recognising guilt as the basis of criminal responsibility and broadening the circumstances that exclude responsibility, was influenced by the Constitutio Criminalis Carolina of 1532.34 By contrast, it was only during the Enlightenment that the subjective basis of criminal responsibility was shaped by humanitarians, who advocated the elimination of extreme objectivity as the basis of responsibility and the rejection of all forms of collective responsibility, in favour of adopting the principle of individual responsibility of the person for his or her culpable act.35 Among the codifications of the Enlightenment period that based criminal responsibility on the principle of guilt are the Constitutio Criminalis Theresiana of 1768 and the Constitutio Criminalis Josephina of 1787. The Criminal Law for Western Galicia of 1796, the Tuscan Criminal Code of 1786 and the Prussian Landrecht of 1794, as emphasised in the literature, indicated the necessity of free will for the attribution of guilt to the perpetrator and listed the forms of guilt but did not define what guilt is and how it should be understood.36 In pointing to the genesis of the principle of nullum crimen sine culpa in criminal law, it cannot be overlooked that the dispute over whether a human beingis actually capable of directing his or her behaviour and whether he or she has free will (the dispute between determinism and indeterminism) also contributed to the development in this area.37 The proponents of determinism believed that a person’s behaviour depended on factors of an external nature and not on his or her free will, while those who accepted indeterminism believed the opposite. They assumed that a person has free will, which they can direct in a certain way. Therefore, if he or she directed it to do evil, they should be punished. As indicated in the literature, it is reasonable to believe that the acceptance of determinism implies the necessity to reject guilt as an element conditioning criminal responsibility.38 Since, in the case of this current, one rejects a person’s free will as a circumstance determining their

33 J. Lachowski, (above n. 20), p. 649. 34 K. Sójka-Zielińska, (above n. 14), p. 160. 35 S. Salmonowicz, Prawo karne oświeconego absolutyzmu. Z dziejów kodyfikacji karnych przełomu XVIII/XIX w. [Criminal law of enlightened absolutism. History of penal codifications from the turn of the 18th and 19th century], Toruń 1966, p. 37. 36 M. Kowalewska-Łukuć, (above n. 8), pp. 28–29. 37 J. Lachowski, (above n. 20), p. 653. 38 Ibid.

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The principle of nullum crimen sine culpa in Polish criminal law from a constitutional perspective

behaviour, it means that the cause of their behaviour lies outside him or her. There is no place for guilt in this case, which has to do with free will.

3.

Content of the principle of nullum crimen sine culpa in criminal law

Any explanation about what the content of the principle of nullum crimen sine culpa is must be preceded by an explanation about what guilt is under criminal law. In the science of criminal law, various approaches to guilt have developed. Among the many concepts attempting to explain the essence of this notion, we can distinguish first and foremost the psychological theory and the normative theory, which have their origins in the 19th century.39 In psychological theory, guilt is determined by a person’s inner mental experience.40 In other words, according to this conception, guilt is the perpetrator’s mental attitude towards the act. This attitude may consist of the perpetrator being willing to commit the criminal act or predicting the possibility of committing it. This psychological theory comes in two varieties. The first is the theory of the will, according to which guilt is the will directed towards the commission of a criminal act. The second is the theory of the imagination, according to which guilt is not so much the perpetrator’s will to commit a criminal act and is more about the perpetrator’s imagination of that act.41 In the case of the will theory, the essence of guilt is limited to intentionality only. If, therefore, the perpetrator acted unintentionally, it meant that he or she did not have the will to commit the criminal act and, therefore, no guilt could be attributed to him or her. Thus, this theory limited criminal liability to intentional offences only. A slightly broader view of the essence of guilt was provided by the theory of imagination. In this view, since guilt is an imagined criminal act, it can be attributed to not only when the perpetrator acts intentionally (in which case he or she has an imagined criminal act). Such an imagined act also occurs in the case of recklessness, which consists of anticipating a forbidden act and groundlessly believing that such an act would be avoided. In terms of the theory of the imaginary, guilt thus included intention and recklessness.

39 A. Marek, V. Konarska-Wrzosek, Prawo karne [Criminal Law], Warszawa 2019, p. 133; see also C. Sońta, Wina w Kodeksie karnym na tle teorii winy [Guilt in Penal code on the background of the theories of guilt], in:, Gaudium in litteris est: Księga Jubileuszowa ofiarowana Pani Profesor Genowefie Rejman z okazji osiemdziesiątych urodzin [Gaudium in litteris est: Jubilee Book given to Professor Genowefa Rejman for her 80th birthday], eds. L. Gardocki, M. Królikowski, A. WalczakŻochowska, Warszawa 2005, p. 332 et seq. 40 A. Grześkowiak, (above n. 7), pp. 94–95. 41 On the varieties of the psychological theory of guilt see in more detail: J. Lachowski, A. Marek, Prawo karne. Zarys problematyki [Criminal law. Outline of issues], Warszawa 2021, p. 112.

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The fundamental shortcoming of the theory of the imagination, however, was that it did not cover negligence. After all, negligence involved the fact that the perpetrator of the wrongful act did not foresee it at all, although he or she should have and could have foreseen it. Since the perpetrator did not foresee the act, it meant that there was no mental attitude in his or her psyche towards such an act, and since there was no mental attitude, there was no fault. In the theory of imagination, there were, therefore, no grounds for attributing guilt to a perpetrator who acted negligently. Meanwhile, negligent behaviour could carry very serious consequences in legally protected goods, which justified criminal liability in such cases on politico–criminal grounds.42 The normative theory of guilt was a response to the shortcomings of the psychological theory and indicated that guilt cannot be limited to the mental attitude of the offender alone.43 It had to be linked to the possibility that the offender could be charged for his or her wrongful behaviour.44 At this level, two theories have developed: a comprehensive theory (which takes into account both the normative element in the form of the chargeability of the wrongful act and the psychological element expressed in the offender’s attitude towards that act) and a pure normative theory, which identifies guilt with a charge brought against the offender for behaviour contrary to the law, in a situation in which respect for that law could have been required.45 With the latter approach, the psychological aspect is simultaneously omitted from the essence of guilt.46 Unfortunately, the comprehensive theory of guilt had the same defects as the psychological conception of the imaginary. Here, too, it was not possible to explain what liability for negligence would be based on, since there is no mental relationship to the act. This defect is not possessed by fault in purely normative terms. Since, in this case, fault is a charge brought against the perpetrator due to a breach of the legal order, it is clear that such a charge can also be brought against a person who acts negligently, and this despite the fact that he or she has no mental relation to the act. The pure normative theory of guilt is also not without its flaws. After all, it must be emphasised that in this case, the offender is charged because, given the opportunity, he or she did not behave in a manner consistent with the legal order. The point of reference for an assessment of the offender’s behaviour is therefore the law, which is established

42 43 44 45

Ibidem, pp. 112–113. A. Grześkowiak, (above n. 7), p. 96. Ibid. A. Marek, V. Konarska-Wrzosek, (above n. 39), p. 138; see also M. Zelek, Wina w prawie karnym i prawie deliktów – przyczynek do dyskusji na temat tożsamości pojęcia winy w prawie polskim [Guilt in criminal law and tort law – a contribution to the discussion on the identity of the concept of guilt in Polish law], Acta Iuris Stetinensis 2019, No. 2 (26), p. 116. 46 A. Marek, V. Konarska-Wrzosek, (above n. 39), p. 138.

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The principle of nullum crimen sine culpa in Polish criminal law from a constitutional perspective

by the legislator (i. e., in the case of a democratic system, the political majority). Thus, a negative assessment of the offender’s behaviour depends on what values the political majority holds and how it gives expression to these values in the laws it enacts. In this sense, guilt becomes a dynamic concept whose scope depends on the shape of the legal order determined by the political will of the ruling parliamentary majority. In Polish criminal law, the conditions for ascribing guilt in the purely normative sense are that the perpetrator is, as a rule, at least 17 years of age; that he or she is not insane at the time of the act; that at the time the act was committed, he or she retained the ability to recognise the unlawfulness of his or her conduct; and that he or she acted in a normal motivational situation and not in extraordinary circumstances. It should be pointed out that the pure normative theory of guilt currently prevails in Polish criminal law doctrine.47 Viewing guilt according to the assumptions of pure normative theory makes it impermissible to equate it with intentionality and unintentionality. For it is one thing for the perpetrator to have the intention to commit a prohibited act – or, alternatively, not to have the intention but to have foreseen the act or to have been able to foresee it (unintentionality) – and another thing to have a negative assessment of such intentional or unintentional conduct (guilt). Polish criminal law therefore separates guilt from the subjective side of the criminal act (intentionality or unintentionality), with the consequence that the intentional or unintentional action of the perpetrator does not automatically determine guilt. 48 Under Polish law, the principle of nullum crimen sine culpa is expressed directly in Article 1 § 3 of the Polish Criminal Code,49 which states that ‘No offence is committed by the perpetrator of a criminal act if guilt cannot be attributed to him at the time of the act.’ Taking into account the purely normative approach to guilt (which is, by the way, dominant at present in the Polish doctrine of criminal law), it must be stated that a crime cannot be attributed if the perpetrator’s conduct cannot be assessed negatively from the point of view of the applicable legal order at the time of its commission. This is where the essence of the principle in question will be exhausted. The position presented is also confirmed in case law, where it is

47 Cf. A. Grześkowiak, (above n. 7), p. 99. 48 J. Lachowski, (above n. 2), p. 43; see also: J. Lachowski, Czy konsekwentnie oddzielono stronę podmiotową od winy w kodeksie karnym z 1997r.? [Has the subjective side been consistently separated from guilt in the Penal Code of 1997?], in: Państwo prawa i prawo karne. Księga Jubileuszowa Profesora Andrzeja Zolla. Tom II [State of law and criminal law. Jubilee Book of Professor Andrzej Zoll. Volume II], eds. P. Kardas, T. Sroka, W. Wróbel, Warszawa 2012, p. 603 et seq.; M. KowalewskaŁukuć, Strona podmiotowa a wina – wzajemne relacje [The subjective side and guilt – mutual relations], Acta Iuris Stetinensis 2018, No. 1(21), p. 183 et seq. 49 J. Giezek, in: Prawo karne materialne. Część ogólna i szczególna [Substantive criminal law. General and particular part], ed. M. Bojarski, Warszawa 2020, p. 47.

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indicated that basing criminal liability on the principle of guilt means ‘(…) that the perpetrator of a criminal act bears criminal liability only to the extent to which he can be charged, the scale of this charge, and thus the extent of liability, being determined by the principles of subjectivisation and individualisation.’50 It should be noted that the principle of nullum crimen sine culpa, as expressed in Article 1 § 3 of the Criminal Code, indicates that guilt has a legitimising function, as it is a necessary prerequisite for criminal responsibility.51 Consequently, ‘Guilt thus constitutes legitimacy for the application of punishment to the perpetrator of an offence’.52 It is emphasised that this formulation of the above rule in Article 1 § 3 of the Criminal Code indicates a presumption of guilt in the material legal sense, which the legislator bases on the assumption that, as a rule, a person has the ability to direct his or her behaviour and can behave in accordance with the law, as well as on the fact that a person is responsible for his or her actions.53 In other words, as a rule, a person acts under ordinary rather than extraordinary conditions and therefore, as a rule, can be expected to obey the applicable legal order. Thus, in principle, anyone who commits a criminal act is guilty in the substantive legal sense. In practice, this means that a detailed examination of the question of guilt in criminal proceedings only takes place when it becomes apparent from the circumstances of the case that the imputability of guilt is not obvious. Such a situation occurs, for example, when the perpetrator was not in a position to fully recognise whether what he or she was doing was contrary to the Polish legal order, because he or she was a foreigner, or when he or she acted in extraordinary circumstances in which he or she was forced to commit a prohibited act (e. g., he or she had to drive a car in a state of intoxication in order to take another person whose life was in danger to hospital). It should be noted that an examination of guilt is possible after it has been established that the perpetrator has realised the elements of the forbidden act,54 and at the time of his/her behaviour, the perpetrator must have the capacity to incur guilt;55 therefore – and this is worth repeating at this point – he/she must have the appropriate age, must not be insane, must have the ability to recognise 50 Judgment of the Supreme Court of 4.11.2002, III KK 58/02, LEX No. 56846. 51 J. Lachowski, A. Marek, (above n. 41), p. 116. 52 A. Zoll, in: Kodeks karny. Część ogólna. Tom I. Komentarz do art. 1 -52 [Penal Code. General part. Volume I. Commentary to Articles 1–52], eds. A. Zoll, W. Wróbel, Warszawa 2016, p. 46. 53 A. Jezusek, ‘Domniemanie winy’ w prawie karnym materialnym a procesowe domniemanie niewinności [‘Presumption of guilt’ in substantive criminal law and the procedural presumption of innocence], Ruch Prawniczy, Ekonomiczny i Socjologiczny 2016, No. 2, p. 176. 54 J. Lachowski, (above n. 2), p. 43. 55 K. Buchała, Wina czynu a zawinienie na przedpolu czynu zabronionego [Guilt of the act versus culpability in the foreground of a forbidden act], in: Aktualne problemy prawa karnego i kryminologii [Actual problems of criminal law and criminology], ed. E. Pływaczewski, Białystok 1998, pp. 61–62.

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The principle of nullum crimen sine culpa in Polish criminal law from a constitutional perspective

the unlawfulness of his/her behaviour and must not have acted in extraordinary circumstances. The coincidence of the commission of an act with the existence of the prerequisites for the attribution of guilt is the coincidence of guilt and the act. However, the Polish legislator has provided for an exception to the so-called coincidence rule, which requires that guilt be attributed to the perpetrator at the time of the act, according to which guilt may be attributed to the perpetrator who, at the time of the act, is insane as a result of the fact that he or she ‘fell into a state of intoxication or intoxication causing exclusion or restriction of his or her capacity to perceive, which he or she foresaw or could have foreseen’ (Article 31 § 3 of the Criminal Code).56 Thus, before the perpetrator realises the elements of the criminal act, the event which forms the basis of the charge on which guilt is based takes place.57

4.

The principle of guilt as a basis for criminal responsibility in the Polish Constitution

As already noted at the outset, Article 42(3) of the Constitution of the Republic of Poland expressly provides only for guilt in the procedural sense (i. e. the one to whom the fact of committing an offence is proven is guilty). The literature indicates that the constitutional principle of the presumption of innocence does not refer to the culpability of the act.58 However, it should be emphasised that the Constitutional Court derives the principle of culpability as a premise of criminal liability also on the basis of the procedural principle of the presumption of innocence and the essence of repressive liability, indicating that it is not permissible to apply repression to a subject who cannot be charged with a violation of the law.59 Therefore, the presumption of innocence referred to in Article 42(3) of the Constitution of the Republic of Poland cannot be rebutted if it is not possible to ascribe guilt to the perpetrator in the sense of substantive criminal law.

56 A. Zoll, (above n. 52), p. 49. 57 Ibid. 58 W. Wróbel, Wina i zawinienie a strona podmiotowa czynu zabronionego, czyli o potrzeby korzystania się w prawie karnym pojęcia winy umyślnej i nieumyślnej [Guilt and culpability and the subjective side of a prohibited act, i. e. the need to use the concept of intentional and unintentional fault in criminal law], in: Przestępstwo – kara – polityka kryminalna. Problemy tworzenia i funkcjonowania prawa. Księga jubileuszowa z okazji 70. rocznicy urodzin profesora Tomasza Kaczmarka [Crime – punishment – criminal policy. Problems of the creation and functioning of law. Jubilee Book on the 70th Anniversary of the Birth of Professor Tomasz Kaczmarek], ed. J. Giezek, Cracow 2006, p. 680. 59 Judgment of the Constitutional Court of 3.11.2004, K 18/03, LEX No. 133746.

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It is emphasised that the Polish constitution bases criminal responsibility on the assumption of an adult’s complete freedom.60 The idea is that an adult human being has complete freedom to choose between what is good and what is bad, and since this is the case, he or she should bear the punishment in the event of a breach of the legal order if he or she acted under such conditions in which he or she was free to choose his or her behaviour.61 In this sense, the principle of nullum crimen sine lege can also be found in Article 31(1) of the Polish Constitution, which guarantees freedom for the citizens. The principle of guilt in the material sense should also be derived from Article 30 of the Constitution of the Republic of Poland, which stipulates the inherent and inalienable dignity of a human being.62 It is recognised on the grounds of the constitution as the highest value.63 It is aptly emphasised in the doctrine that ‘The principle of culpability has its fundamental source in the recognition of the fundamental constitutional value of the dignity of every human being, which excludes any treatment of the perpetrator of a criminal act in an object-oriented manner, merely as a means to achieve the objectives of criminal law. It would be contrary to the principle of human dignity to inflict punishment on a person for conduct over which he had no control and which he could not have avoided.’ 64 It has been pointed out that the principle of respect for human dignity, on the one hand, does not allow a subject to be held responsible for the commission of an act that was beyond his or her control (the boundary in this case being set by human dignity) and, on the other hand, requires (if not contrary to the principle

60 W. Wróbel, (above n. 58), pp. 679–680. 61 W. Wróbel, (above n. 58), pp. 679–680; see also V. Konarska-Wrzosek, Odpowiedzialność/ nieodpowiedzialność nieletnich [Responsibility/non-responsibility of minors], in: Nauka o przestępstwie, zasady odpowiedzialności. System Prawa Karnego. Tom III [Science about crime, rules of responsibility. Criminal Law System. Volume III], ed. R. Dębski, Warszawa 2017, p. 171 et seq. 62 According to Article 30 of the Polish Constitution, ‘The inherent and inalienable dignity of the human being is the source of human and civil freedoms and rights. It is inviolable and its respect and protection is the duty of public authorities.’ 63 M. Granat, Godność człowieka z art. 30 Konstytucji RP jako wartość i jako norma prawna [Dignity of a human being from Article 30 of the Constitution of the Republic of Poland as a value and as a legal norm], Państwo i Prawo 2014, No. 8, pp. 15–16; see also J. Potrzeszcz, Godność człowieka w orzecznictwie polskiego Trybunału Konstytucyjnego [Dignity of a human being in the jurisprudence of the Polish Constitutional Tribunal], Roczniki Nauk Prawnych 2005, No. 1, p. 27 et seq.; E. Gorlewska, Profile pojęcia ‘godność’ w Konstytucji Rzeczypospolitej Polskiej [Profiles of the notion ‘dignity’ in the Constitution of the Republic of Poland], in: Socjolekt – idiolekt – idiostyl. Historia i współczesność [Sociolekt – idiolekt – idiostyle. History and contemporaneity], ed. U. Sokólska, Białystok 2017, p. 97 et seq. 64 W. Wróbel, A. Zoll, Polskie prawo karne. Część ogólna [Polish criminal law. General part], Cracow 2010, p. 321.

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The principle of nullum crimen sine culpa in Polish criminal law from a constitutional perspective

of dignity) that it is possible to hold a person responsible for the consequences of his or her acts, which is linked to the fact that people have free will.65 At the same time, it is emphasised that the attribution of guilt cannot be determined by the need for general or individual prevention.66 Particularly in a situation where criminal responsibility is based on general prevention in the negative sense (i. e., on deterring the commission of crimes with harsh punishments), it is possible to speak of the objectification of people and thus of a violation of their dignity. In the Constitution of the Republic of Poland, the source of the principle of guilt as a condition for criminal responsibility is also seen in the principle of humanity, which is stipulated in Article 40 of the Constitution of the Republic of Poland.67 It is argued, however, that the proper interpretation of this provision also requires taking into account the afore-mentioned Article 30 of the Constitution of the Republic of Poland, which refers to human dignity.68 Commentators point out that in light of the above regulation, punishment would have to be considered cruel if a certain degree of severity is exceeded by the punishment, and in a situation where punishment becomes an end in itself, this would have to be considered degrading or inhuman.69 Punishment would also be cruel if it occurs in spite of the fact that the offender could in no way have prevented the commission of his or her act and therefore acted under extraordinary circumstances, forcing him or her to cause harm to another person. Respect for the principle of guilt in the material sense is therefore necessary to prevent cruel, inhuman or degrading punishment. As a supplementary note, it should be pointed out that the basis of the principle of guilt as a condition for incurring criminal liability can also be found in other provisions of the Constitution of the Republic of Poland,70 including Article 2 of the Constitution of the Republic of Poland, which provides for the principle of a democratic state of law.71 In the doctrine of constitutional law, it is argued that this

65 A. Barczak-Oplustil, Zasada koincydencji winy i czynu w Kodeksie karnym [The principle of coincidence of guilt and deed in the Penal Code], Cracow 2016, p. 137. 66 Ibidem, p. 138. 67 J. Lachowski, Ocena projektowanych zmian art. 9 k.k. [Assessment of the proposed amendments to Article 9 of the Penal Code], Państwo i Prawo 2014, No. 1, pp. 85–86; see also M. Trafny, Zasada humanitaryzmu w kodeksu karnym [The principle of humanitarianism in the Penal Code], Prokuratura i Prawo 2007, No. 3, p. 30 et seq. 68 M. Królikowski, K. Szczucki, in: Konstytucja RP Tom I. Komentarz. Art. 1–86 [The Constitution of the Republic of Poland. Volume I. Commentary. Articles 1–86], eds. M. Safjan, L. Bosek, Warszawa 2016, p. 980. 69 M. Florczak-Wątor, in: Konstytucja Rzeczypospolitej Polskiej. Komentarz, [The Constitution of the Republic of Poland. Commentary], ed. P. Tuleja, Warszawa 2019, p. 143. 70 For a broader discussion, see M. Małecki, Przypisanie winy: podstawy teorii ekskulpantów [Attribution of guilt: the foundations of exculpatory theory], Cracow 2019, pp. 160–165. 71 A. Zoll, (above n. 52), p. 76.

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principle has both a formal and a material aspect. In the formal sense, this means that all state activity is based on law (principle of legality) and on the principle of separation of powers and their mutual control. In the material sense, this means, among other things, basing state activity on the principle of justice.72 It would be an extreme injustice to hold the perpetrator criminally responsible regardless of whether guilt in the above sense can be attributed to him or not. To do so would be to dissociate the perpetratorfrom the specific, concrete circumstances in which the offender had to act, which would in turn constitute a complete departure from the principle of the individualisation of criminal responsibility, to which guilt is particularly linked. The lack of explicit regulation of the principle of nullum crimen sine culpa in the Constitution of the Republic of Poland is nothing unusual. A similar approach to this issue may be found in the Constitution of the French Republic,73 the Basic Law of the Federal Republic of Germany,74 the Constitution of the Portuguese Republic,75 the Constitution of the Kingdom of the Netherlands,76 the Constitution of the Republic of Lithuania,77 or the Constitution of Greece.78 Here, too, it is not indicated expressis verbis that the attribution of guilt to the perpetrator of a criminal act is a condition for criminal liability. At this point, however, it is worth drawing

72 Cf. B. Banaszak, Prawo konstytucyjne [Constitutional law], Warszawa 2008, p. 221. 73 Biblioteka Sejmowa. Konstytucja Republiki Francuskiej z dnia 4 października 1958 r., (translated by W. Skrzydlo) [Constitution of the French Republic of 4 October 1958]: http://biblioteka.sejm. gov.pl/wp-content/uploads/2015/10/Francja_pol_010711.pdf (accessed: 13.07.2022). 74 Biblioteka Sejmowa. Ustawa Zasadnicza Republiki Federalnej Niemiec z dnia 23 maja 1949 r., (translated by B. Banaszak, A. Malicka) [Basic Law of the Federal Republic of Germany of 23 May 1949]: http://biblioteka.sejm.gov.pl/wp-content/uploads/2016/02/Niemcy_pol_010711.pdf (accessed: 13.07.2022). 75 Biblioteka Sejmowa. Konstytucja Republiki Portugalskiej z dnia 2 kwietnia 1976 r., (translated by A. Wojtyczek-Bonnand) [Constitution of the Portuguese Republic of 2 April 1976]: http://biblioteka. sejm.gov.pl/wp-content/uploads/2016/03/Portugalia_pol_010116.pdf (accessed: 13.07.2022). 76 Biblioteka Sejmowa. Konstytucja Królestwa Niderlandów z dnia 28 marca 1814 r., (translated by A. Glowacki, B. Szepietowska) [Constitution of the Kingdom of the Netherlands of 28 March 1814]: http://biblioteka.sejm.gov.pl/wp-content/uploads/2015/10/Holandia_pol_010711.pdf (accessed: 13.07.2022). 77 Biblioteka Sejmowa. Konstytucja Republiki Litewskiej przyjęta przez obywateli Republiki Litewskiej w referendum przeprowadzonym w dniu 25 października 1992 r. (translated by H. Wisner) [Constitution of the Republic of Lithuania adopted by the citizens of the Republic of Lithuania in a referendum held on 25 October 1992]: http://biblioteka.sejm.gov.pl/wp-content/uploads/2016/01/ Litwa_pol_010711.pdf (accessed: 13.07.2022). 78 Biblioteka Sejmowa. Konstytucja Grecji z dnia 9 czerwca 1975 r., (translated by G. and W. Uliccy, B. Zdaniuk, N. Ciesielczyk) [Constitution of Greece of 9 June 1975]: http://biblioteka.sejm.gov.pl/wpcontent/uploads/2015/10/Grecja_pol_010711.pdf (accessed: 13.07.2022).

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The principle of nullum crimen sine culpa in Polish criminal law from a constitutional perspective

attention to Article 27 of the Constitution of the Italian Republic,79 which explicitly indicates the personal nature of criminal responsibility, which is not contained in the Constitution of the Republic of Poland.

5.

Summary

The process of shaping guilt in the material sense was preceded by the evolution of criminal law over many years. Initially, criminal responsibility was not linked to the culpable behaviour of the perpetrator, as it was based on the principle of objectivity and allowed for collective responsibility. However, the genesis of the principle of nullum crimen sine culpa in criminal law shows that already in antiquity, some manifestations of the formation of subjective responsibility could be discerned, and although for a very long time it was not possible to indicate what guilt actually was, the development of the principles of criminal responsibility undoubtedly influenced how modern criminal law views guilt. Polish criminal law is based on the principle of guilt, which follows directly from the regulation contained in Article 1 § 3 of the Penal Code, reflecting the principle of nullum crimen sine culpa. Admittedly, the attribution of guilt to the perpetrator of a criminal act as a condition for holding him or her criminally liable is not expressis verbis, as articulated in the Constitution of the Republic of Poland. However, the necessity to take guilt into account in the material legal sense results from certain constitutional regulations, in particular those requiring respect for human dignity. At this point, it should be unequivocally stressed that holding the perpetrator criminally responsible for having undertaken prohibited behaviour, without the necessity of attributing fault to him or her, would be an obvious expression of his or her objectification, and such a course of action would be incompatible with people’s inherent and inalienable dignity, the respect and protection of which, in relation to Article 30 of the Constitution of the Republic of Poland, constitutes the obligation of public authorities. In addition, it should be noted that the lack of a clear indication in the Constitution of the Republic of Poland of the necessity to ascribe guilt to the perpetrator of a prohibited act as a condition for incurring criminal liability does not constitute an exception in this respect, as the constitutions of other states also only indirectly indicate the principle of guilt in criminal law.

79 Biblioteka Sejmowa. Konstytucja Republiki Włoskiej z dnia 27 grudnia 1947 r., (translated by Z. Witkowski) [Constitution of the Italian Republic of 27 December 1947]: http://biblioteka.sejm. gov.pl/wp-content/uploads/2016/11/Wlochy_pol_010711.pdf (accessed: 13.07.2022).

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References Legal acts Konstytucja Rzeczypospolitej Polskiej z dnia 2 kwietnia 1997 r. [The Constitution of the Republic of Poland of 2 April 1997], J. of L. of 1997, No. 78, item 483 as amended. Ustawa z dnia 6 czerwca 1997 r. Kodeks karny [Act of 6 June 1997 Penal Code], J. of L. of 2022, item 1138, as amended.

Jurisdiction Judgment of the Supreme Court of 4.11.2002, III KK 58/02, LEX No. 56846. Judgment of the Constitutional Court of 3.11.2004, K 18/03, LEX No. 133746.

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consequence of an intentional criminal act], Prawo Kanoniczne: kwartalnik prawnohistoryczny 1965, No. 8/3–4. Patkaniowski M., Wina i kara. Elementy rzymskie i germańskie w prawie karnym statutów miast włoskich [Crime and punishment. Roman and Germanic elements in the criminal law of the statutes of Italian cities], Cracow 1939. Potrzeszcz J., Godność człowieka w orzecznictwie polskiego Trybunału Konstytucyjnego [Dignity of a human being in the jurisprudence of the Polish Constitutional Tribunal], Roczniki Nauk Prawnych 2005, No. 1. Rafacz J., Dawne polskie prawo karne. Część ogólna [Ancient polish criminal law. General part], Warszawa 1932. Rejman G., Teorie i formy winy w prawie karnym [Theories and forms of guilt in criminal law], Warszawa 1980. Salmonowicz S., Prawo karne oświeconego absolutyzmu. Z dziejów kodyfikacji karnych przełomu XVIII/XIX w. [Criminal law of enlightened absolutism. History of penal codifications from the turn of the 18th and 19th century], Toruń 1966. Sońta C., Wina w Kodeksie karnym na tle teorii winy [Guilt in Penal code on the background of the theories of guilt], in: Gaudium in litteris est: Księga Jubileuszowa ofiarowana Pani Profesor Genowefie Rejman z okazji osiemdziesiątych urodzin [Gaudium in litteris est: Jubilee Book given to Professor Genowefa Rejman for her 80th birthday], eds. L. Gardocki, M. Królikowski, A. Walczak-Żochowska, Warszawa 2005. Sójka-Zielińska K., Historia prawa [History of law], Warszawa 2015. Świecki D., Wina w prawie karnym materialnym i procesowym [Guilt in substantive and procedural criminal law], Prokuratura i Prawo 2009, No. 11–12. Tęcza-Paciorek A., Zasada domniemania niewinności w polskim procesie karnym [The principle of presumption of innocence in the Polish criminal process], Warszawa 2012. Trafny M., Zasada humanitaryzmu w kodeksu karnym [The principle of humanitarianism in the Penal code], Prokuratura i Prawo 2007, No. 3. Uruszczak W., Podmiotowa strona przestępstwa w Dekrecie Gracjana (1140). Przyczynek do genezy zasady nullum crimen sine culpa [The subjective side of the crime in the Gracjan Decree (1140). Contribution to the principle nullum crimen sine culpa], in: Państwo prawa i prawo karne. Księga Jubileuszowa Profesora Andrzeja Zolla. Tom II [State of law and criminal law. Jubilee Book of Professor Andrzej Zoll. Volume II], eds. P. Kardas, T. Sroka, W. Wróbel, Warszawa 2012. Wolter W., in: Wina w prawie karnym [Guilt in criminal law], ed. W. Wolter, Cracow 1954. Wróbel W., Wina i zawinienie a strona podmiotowa czynu zabronionego, czyli o potrzeby korzystania się w prawie karnym pojęcia winy umyślnej i nieumyślnej [Guilt and culpability and the subjective side of a prohibited act, i. e. the need to use the concept of intentional and unintentional fault in criminal law], in: Przestępstwo – kara – polityka kryminalna. Problemy tworzenia i funkcjonowania prawa. Księga jubileuszowa z okazji 70. rocznicy urodzin profesora Tomasza Kaczmarka [Crime – punishment – criminal policy. Problems

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The principle of nullum crimen sine culpa in Polish criminal law from a constitutional perspective

of the creation and functioning of law. Jubilee Book on the 70th Anniversary of the Birth of Professor Tomasz Kaczmarek], ed. J. Giezek, Cracow 2006. Wróbel W., Zoll A., Polskie prawo karne. Część ogólna [Polish criminal law. General part], Cracow 2010. Zelek M., Wina w prawie karnym i prawie deliktów – przyczynek do dyskusji na temat tożsamości pojęcia winy w prawie polskim [Fault in criminal law and tort law – a contribution to the discussion on the identity of the concept of fault in Polish law], Acta Iuris Stetinensis 2019, No. 2 (26). Zoll A., in: Kodeks karny. Część ogólna. Tom I. Komentarz do art. 1 -52 [Penal Code. General part. Volume I. Commentary to Articles 1–52], eds. A. Zoll, W. Wróbel, Warszawa 2016.

Netography Biblioteka Sejmowa. Konstytucja Republiki Francuskiej z dnia 4 października 1958 r., (translated by W. Skrzydlo) [Constitution of the French Republic of 4 October 1958]: http:// biblioteka.sejm.gov.pl/wp-content/uploads/2015/10/Francja_pol_010711.pdf (accessed: 13.07.2022). Biblioteka Sejmowa. Ustawa Zasadnicza Republiki Federalnej Niemiec z dnia 23 maja 1949 r., (translated by B. Banaszak, A. Malicka) [Basic Law of the Federal Republic of Germany of 23 May 1949]: http://biblioteka.sejm.gov.pl/wp-content/uploads/2016/02/Niemcy_pol_ 010711.pdf (accessed: 13.07.2022). Biblioteka Sejmowa. Konstytucja Republiki Portugalskiej z dnia 2 kwietnia 1976 r., (translated by A. Wojtyczek-Bonnand) [Constitution of the Portuguese Republic of 2 April 1976]: http://biblioteka.sejm.gov.pl/wp-content/uploads/2016/03/Portugalia_pol_010116. pdf (accessed: 13.07.2022). Biblioteka Sejmowa. Konstytucja Królestwa Niderlandów z dnia 28 marca 1814 r., (translated by A. Glowacki, B. Szepietowska) [Constitution of the Kingdom of the Netherlands of 28 March 1814]: http://biblioteka.sejm.gov.pl/wp-content/uploads/2015/10/Holandia_pol_ 010711.pdf (accessed: 13.07.2022). Biblioteka Sejmowa. Konstytucja Republiki Litewskiej przyjęta przez obywateli Republiki Litewskiej w referendum przeprowadzonym w dniu 25 października 1992 r. (translated by H. Wisner) [Constitution of the Republic of Lithuania adopted by the citizens of the Republic of Lithuania in a referendum held on 25 October 1992]: http://biblioteka.sejm. gov.pl/wp-content/uploads/2016/01/Litwa_pol_010711.pdf (accessed: 13.07.2022). Biblioteka Sejmowa. Konstytucja Grecji z dnia 9 czerwca 1975 r., (translated by G. and W. Uliccy, B. Zdaniuk, N. Ciesielczyk) [Constitution of Greece of 9 June 1975]: http:// biblioteka.sejm.gov.pl/wp-content/uploads/2015/10/Grecja_pol_010711.pdf (accessed: 13.07.2022). Biblioteka Sejmowa. Konstytucja Republiki Włoskiej z dnia 27 grudnia 1947 r., (translated by Z. Witkowski) [Constitution of the Italian Republic of 27 December 1947]: http://

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biblioteka.sejm.gov.pl/wp-content/uploads/2016/11/Wlochy_pol_010711.pdf (accessed: 13.07.2022).

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Agnieszka Laskowska-Hulisz

Change of legal basis by the court and the right to a fair civil trial

1.

Introductory remarks

Parties asserting their rights in front of the court or taking up their defence have the right, and sometimes the obligation, to cite the legal basis of their demands. It is true that the law does not impose an obligation on the parties to indicate the legal basis of their demands, although by virtue of the provisions of the law, a party may indicate the legal basis of its demands and requests (e. g., in a preparatory letter) (Article 129 § 2 of the Code of Civil Procedure) or at a hearing (Article 210 § 1 of the Code of Civil Procedure). On the other hand, pursuant to Article 2053 § 4 of the Code of Civil Procedure, a party represented by an advocate, legal counsel, patent agent or the General Prosecutor’s Office of the Republic of Poland, may be obliged by the presiding judge to also indicate in the preparatory letter the legal basis for its demands and motions, limiting the scope of this indication as necessary. Furthermore, as of 7 November 2019, Article 1562 of the Code of Civil Procedure entered into force, according to which, if in the course of the hearing it turns out that the demand or motion of a party may be decided on a legal basis other than that indicated by the party, the parties present at the hearing must be warned about it. Against this background, questions arise as to the legal effect of a party’s failure to warn of a change in the legal basis for the decision; whether this obligation also arises when the court becomes doubtful about the legal basis for the decision outside the court session; and what the significance of the party’s reference to the legal basis is. It is also worth considering a situation in which a party fails to indicate the legal basis of its claim but constructs the factual situation in such a way that it falls under the provisions of a specific legal standard; whether, in such a case, the court will also be under an obligation to inform the party about the change of the legal basis for its decision and what, if any, legal consequences arise from the lack of such an instruction, and in particular, whether the lack of such an instruction and ruling on a different legal basis than that indicated by the party will infringe the right to a court, including the right to a fair civil trial regulated by Article 45 of the Constitution of the Republic of Poland. Pursuant to the indicated provision, everyone has the right to a fair and public hearing of a case (without undue delay) by a competent, impartial and independent court. The literature indicates that this right includes the following rights: the right of access

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to a court (i. e., the right to initiate the procedure before the court); the right to appropriate shaping of the court procedure in accordance with the requirements of justice and transparency; and the right to decision of the court (i. e., to obtain a binding settlement of one’s case).1

2.

Legal basis of the decision vs. legal basis of the claim

As indicated at the outset, the applicable legal provisions do not impose an obligation on the claimant to indicate the legal basis on which it bases its claim. In accordance with the principle da mihi factum dabo tibi ius, the court ex officio, on the basis of the facts presented by the plaintiff, should apply the appropriate substantive law.2 It is the plaintiff ’s task to plead the facts, while the court’s task is to apply the appropriate legal standard (i. e., to establish the legal basis for the decision).3 The facts invoked by the claimant and subsequently established by the court determine not only the scope of legal protection sought by the party; they are also decisive in determining the boundaries of res judicata in the event of the trial ending with a final and binding judgment. Therefore, if the plaintiff does not indicate the legal basis of his/her claim, it is undisputed that the choice of this basis belongs to the court, for which, in principle, in such a case, the facts relied on by the plaintiff and the manner in which the claim was formulated are of fundamental importance. The principle of iura novit curia applies here. If it follows from the facts pleaded in the application that the claim is justified in whole or in part, it should be accepted to that extent, even if the claimant does not indicate the legal basis or the one cited by him or her turned out to be incorrect.4 1 P. Tuleja, in: Konstytucja Rzeczypospolitej Polskiej. Komentarz [The Constitution of the Republic of Poland. Commentary], ed. P. Tuleja, Warszawa 2021, LEX, commentary to Article 45.]. 2 SN (The Supreme Court of Poland) in its judgment of 20 July 2007, I CSK 144/07, Legalis 167585; SN in its judgment of 13 March 2014, I CSK 274/13, Legalis 1160417. This is also the case, for example, in German law: see G. Melissionos, Die Bindung des Gerichts an die Parteianträge nach § 308 I ZPO, Berlin 1982, pp. 95–96. 3 SN in its judgment of 25 April 2008, II CSK 613/07, Legalis 156397. 4 SN in its judgment of 2 May 1957, OSNC 1957, no. 3, item 72; SN in its judgment of 23 February 1999, I CKN 252/98, OSNC 1999, no. 9, item 152; SN in its judgment of 6 December 2006, IV CSK 269/06, Legalis 161051; SN in its judgment of 20 February 2008, II CSK 449/07, Legalis 491915; SN in its judgment of 10 March 2016, III CSK 156/15, Legalis 1446721. Such a view is also expressed in the literature: see, for example, K Weitz, Związanie sądu granicami żądania w procesie cywilnym [Binding of the court by the limits of the claim in a civil trial], in: Aurea Praxis Aurea Theoria. Pamiątkowa ku Czci Profesora Tadeusza Erecińskiego, t. I, eds. J. Gudowski, K. Weitz, Warszawa 2011, pp. 695–696; J. Gudowski, in: Kodeks postępowania cywilnego [Commentary. Recognitive proceedings, vol. II], Warszawa 2016, p. 511; K. Markiewicz, in: Kodeks postępowania cywilnego [Commentary, vol. I], eds. K. Piasecki, A. Marciniak, Warszawa 2016, pp. 1393–1394.

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Change of legal basis by the court and the right to a fair civil trial

More problematic, however, is the issue of the plaintiff ’s assertion of the legal basis or grounds for his or her claim and its relevance to the court’s decision. Weitz points out that two important issues should be distinguished here. The first is related to how to assess the plaintiff ’s invocation of the legal basis of the demand from the point of view of determining its factual basis, while the second concerns whether the plaintiff may indirectly influence the legal basis on which the court will consider its demand in such a way that it shapes its factual basis accordingly.5 Against this background, a number of statements have been formulated in court case law and literature as to the significance of such a basis for the court’s ruling. It is an isolated and unacceptable view that an award of a sum of money that is within the quantum limits of the claim, but on a different legal basis, constitutes an award in excess of the claims.6 According to another view expressed in the case law of the Supreme Court – which has undergone some modifications in attempts to move away from a strict approach to the indication by the plaintiff in the statement of claim of the legal basis for the claim – it is the court’s, not the party’s, task to determine to which legal provision the statement of claim should be subordinated in connection with its grounds. In this view, the framework for adjudication is the claims that arise from the facts asserted by the claimant throughout the proceedings. It is the court’s elementary duty to carry out a proper subsumption, and which legal qualification of its claim the plaintiff has indicated or pushed for is completely irrelevant to the course and outcome of the trial. Irrespective of the views of the claimant requesting that the amount indicated in the statement of claim be awarded, it is the deciding court that determines whether the asserted (undisputed) or established factual basis of the claim justifies awarding the benefit and in what amount. It is more than obvious that allowing the claim on a legal basis other than that indicated by the claimant on the basis of the presented (established) facts does not infringe Article 321(1) of Kodeks Postępowania Cywilnego (the Code of Civil Procedure).7 Thus, the inability to grant the claimant’s request on the legal basis indicated in the statement

5 K. Weitz, (above n. 4), pp. 696–697. 6 The Supreme Court in its judgment of 28 October 2009, I PK 97/09, Legalis 303931. 7 SN in the judgments: of 25 October 1937, C.II. 1174/37, Official Gazette 1938, item 334; of 27 January 1999, II CKN 878/97, Legalis 358669; of 19 January 2000, II CKN 686/98, Legalis 354580; of 12 February 2002, I CKN 902/99, Legalis 57071; of 6 December 2006, IV CSK 269/06, Legalis 161051; of 12 January 2007, IV CSK 286/06, Legalis 172014; of 5 December 2008, III CSK 228/08, Legalis 589216; SN in a judgment of 12 December 2008, II CSK 367/08, Wspólnota 2009, no. 3, p. 42; SN in the judgment of 8 March 2010, II PK 255/09, Legalis 387307; SN in the order of 18 August 2011, Legalis 797097; SN in the judgment of 16 November 2012, III CSK 73/12, Legalis 667406; SN in its decision of 20 May 2015, I CZ 44/15, Legalis 1274340; SN in its judgment of 27 April 2016, II CSK 324/15, Legalis 1482774; SN in its judgment of 28 July 2017, II CSK 503/16, Legalis 1706718.

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of claim does not exclude granting this request on another legal basis.8 In turn, in other decisions, the Supreme Court first expressed the view that the indication by the claimant of the provisions of substantive law intended to constitute the legal basis of the decision, although not required, is not irrelevant for the course and outcome of the case, since this basis also indirectly determines the factual circumstances justifying the claimant’s demand. As soon as it is invoked in a specific case, a legal provision, functioning in the system of applicable law usually as an abstract and general norm, becomes a carrier of specific factual content. This is because the provision, when invoked as an argument in a dispute and thus assuming the role of one of its factors, indirectly also provides assertions and knowledge of facts: namely, those which, selected from the totality of the circumstances behind the claim, are capable of fulfilling the provision’s hypothesis. In addition, the relationship between the parties may sometimes be highly complex and complicated, both in fact and in law, and the arguments of the parties may have their source or basis in different provisions of law. Thus, if the litigant simultaneously builds some construction of his or her claim, embedding it in a strictly defined substantive law provision, he or she thereby delimits the disputed and non-contentious circumstances that are to constitute the factual basis of the judgment. It should also be emphasised that the judicial process, as a formalised and highly structured activity, requires the participating persons and bodies to take deliberate and pragmatic action. This applies in particular to the professional deputies of the parties (advocates and legal advisers) who, when formulating the claims and their justification or speaking on the legal issues involved in the case, must expect that their statements will be treated professionally, with all procedural consequences.9 In later decisions, however, the Supreme Court softened its view, adding that the plaintiff ’s indication of the provisions of substantive law intended to constitute the legal basis of the decision may only indirectly specify the factual circumstances justifying the claim, but such information remains irrelevant to the decision itself.10 An indication of the legal basis for the claim asserted does not bind the court, which is obliged to consider the case comprehensively and take into account all legal provisions that

8 SN in its judgment of 2 December 2005, II CK 277/05, Legalis 173831; SN in its judgment of 16 September 2009, II CSK 189/09, Legalis 285211. 9 SN in its judgment of 23 February 1999, I CKN 253/98, OSNC 1999, no. 9, item 152. 10 Cf. SN in the judgment of 17 December 2003, IV CK 305/02, Legalis 64168; SN in the judgment of 18 March 2005, II CK 556/04, OSNC 2006, no. 2, item 38. Cf. SN in the judgment of 18 May 2010, III PK 73/09, Legalis 389791; SN in its judgment of 23 July 2015, I CSK 549/14, Legalis 1312287; SN in its resolution of 17 February 2016, III CZP 108/15, OSNC 2017, no. 2, item 14.

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Change of legal basis by the court and the right to a fair civil trial

should be applied in the case under consideration.11 The legal basis of the claim indicated by the plaintiff ’s professional representative is not binding on the court. Nevertheless, such a legal basis is important, first of all, in that it determines the leading legal standard, which in turn determines what facts in the case are relevant (Article 227 of Kodeks Postępowania Cywilnego (the Code of Civil Procedure)) and further, what evidence is necessary to sufficiently clarify the disputed circumstances (Article 217 § 2 of Kodeks Postępowania Cywilnego (the Code of Civil Procedure)). Secondly, a party and even its professional representative may be mistaken as to the correctness of the indicated legal basis for the claim. If one were to stop there, then in a subsequent case based on the same factual basis, doubts could arise as to the previous adjudication of a specific subject matter between the same parties (Articles 187 of the Code of Civil Procedure and 366 of the Code of Civil Procedure).12 However, it cannot therefore be assumed that the invocation of a specific legal basis implies that the claimant submits to judgment only those facts that may serve to apply the substantive law standard indicated by it. The plaintiff ’s invocation of a factual basis for the claim, which may be qualified according to different legal grounds, justifies the court’s consideration of each of them when hearing the case, and the application of one of them, even if different from the one indicated by the plaintiff, does not justify the allegation of a violation of Article 321 § 1 of Kodeks Postępowania Cywilnego (the Code of Civil Procedure).13 It is also pointed out that it is necessary to assess all the facts cited as justification for the claim and not only those selected in terms of the legal basis invoked.14 Therefore, the view that the determination of the claimant’s legal basis for claiming excludes the possibility of assessing the claim from the point of view of other legal norms cannot be accepted. Such rigour finds no justification either in the applicable legislation or in the general principles of procedural law.15 The literature indicates that although the substantive law provisions cited by the parties do not bind the court, their indication is not irrelevant for the course and outcome of the case. By indicating the legal construction of claims or motions based

11 Supreme Court in judgments of 13.06.1947, C III 137/47, OSN 1948, no. 1, item 20; of 2.05.1957, 2 CR 305/57, OSN 1958, No. 3, item 72; of 15.04.2002, II CKN 4/00, Legalis 59250; SN in judgment of 28.07.2017, II CSK 503/16, Legalis 1706718. 12 SN in its judgment of 27 March 2008, II CSK 524/07, Legalis 156382; SN in its judgment of 12 May 2011, II PK 277/10, OSNAPiUS 2012, no. 13–14, item 162; cf. SN in its judgment of 24 May 2013, V CSK 337/12, Legalis no. 753912; SN in its judgment of 28 March 2013, III CSK 156/13, Legalis 1048646; SN in its judgment of 30 September 2016, I CSK 644/15, Legalis 1532455. 13 Supreme Court in its judgment of 13 March 2014, I CSK 274/13, Legalis 1160417; Supreme Court in its judgment of 25 June 2015, V CSK 528/14, OSNC Supplementary no. D, item 73, p. 115. 14 SN in its resolution of 17 February 2016, III CZP 108/15, OSNC 2017, no. 2, item 14. Cf. the Supreme Court in its judgment of 24 May 2007, V CSK 25/07, OSNC-ZD 2008, no. B, item 32. 15 SN in its judgment of 15 April 2003, V CKN 115/01, Legalis 61275.

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on strictly specified legal provisions, the parties set the boundaries of disputable and non-contentious circumstances.16 However, this does not mean that the court is bound by the legal basis invoked by the parties. First and foremost, the court should assess the dispute submitted to it for resolution in light of the applicable legal provisions and apply them appropriately, even if the parties have not invoked them.17 Weitz argues that there is no justification for the generalisation that the invocation of a particular legal basis means that the plaintiff submits to judgment only those facts which can serve to apply the provisions indicated. This position would be correct only if the plaintiff, in addition to stating a given legal basis for the claim, does not allege any facts beyond those which he or she has implicitly established by stating the legal basis for the claim and which are sufficient for the application of the indicated provisions.18 On the other hand, in regard to a situation in which the claimant has limited the factual basis of the claim, citing in support of this claim only those facts which, in his or her opinion, correspond to the hypothesis of the legal basis of the claim indicated by him or her, the view must be shared, which may lead to a limited legal verification of the claimant’s claim by the court. Consequently, in the event that the court does not share the plaintiff ’s views as to the legal classification of the demand made by the plaintiff, it may dismiss the action, deeming it unfounded in light of the facts presented by the party.19 In summary, it may be argued that the prevailing view in the case law of the Supreme Court and in the literature is that if it follows from the facts pleaded in the application that the claim is justified, it should be granted, even if the plaintiff has not indicated the legal basis for the claim or has indicated it erroneously. It is emphasised, however, that in any case, the application of the correct legal basis, irrespective of the position of the claimant, can only be justified by the facts on which the claimant has based his or her demand.20 This does not, therefore, preclude the acceptance of the claimant’s action on the basis of the provisions on unjust enrichment or undue benefit in a situation where the claimant has based his or her claim on an invalid contract. This view is also fully valid when a party is represented by a professional representative. In the case of an erroneous legal qualification of the claim and the facts relied upon to substantiate it, the court is not bound by

16 A. Łazarska, Należyta dbałość o swoją sprawę w procesie cywilnym [Due care of one’s case in a civil trial], Judicial Review 2009, no. 5, p. 57. 17 Similarly, K. Piasecki, Zasady orzekania [Rules of adjudication], in: System prawa procesowego cywilnego. Procedura rozpoznawcze przed sądami pierwszej instancji [Civil procedural law system. The exploratory procedure in front of the courts of first instance], Wrocław 1987, p. 272. 18 K. Weitz, (above n. 4), p. 697. 19 Ibid., p. 697. 20 Similarly, the Supreme Court, for example, in its judgment of 24 November 2009, V CSK 169/09, Legalis 304119.

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it and is not entitled to reproduce the mistakes of the legal representative. The principles of iura novit curia and da mihi factum dabo tibi ius are not limited in this respect and do not release the court from the obligation to apply them in cases where the parties are represented by professional attorneys, which the court of second instance should take into account in the event of appealing against the judgment of the court of first instance. In the event that the court changes the legal basis of the claim, a special role is played by the justification of the judgment, in which the court should clearly and exhaustively indicate the reasons for its decision, including, in particular, an explanation as to the legal basis the court selected. Taking care to provide proper justification for its ruling is important not only from the perspective of assessing its accuracy but also for determining whether it was issued with respect to the party’s right to a fair trial. It is worth recalling at this point the position of the Constitutional Court, which has repeatedly expressed the view that the justification of court decisions is a decisive component of the right to a fair trial as a constitutionally protected right of the individual. The court justification has various functions: it enforces self-control of the court, which has to demonstrate that the decision is materially and formally correct and meets the requirements of justice; it documents the arguments in favour of the adopted decision; it is the basis for external control by higher-instance authorities; it serves individual acceptance of the decision; it strengthens the sense of social trust and democratic control over the administration of justice; and it strengthens legal security.21

3.

Notification of Article 1562 of the Code of Civil Procedure

According to the position of the Court of Appeal in Warsaw,22 the instruction under Article 1562 of the Code of Civil Procedure belongs to auxiliary actions of the bodies of the proceedings and ensures the proper course of the proceedings. Actions of this kind are not decision-making actions and therefore do not require the issuance of a decision. This does not mean, however, that the instruction provided for in Article 1562 of the Code of Civil Procedure can take place in any form. Due to its content, the instruction is given orally by the court to the parties present at the hearing to warn the parties of the possibility of ruling on a basis other than that indicated by the plaintiff. An order of the court, the operative part of which is to be the transmission of the instruction, does not therefore constitute the proper form

21 Constitutional Court in its decision of 11 April 2005, ref. SK 48/04, OTK ZU No 4/A/2005, item 45; judgments of 16 January 2006, ref. SK 30/05, OTK ZU No 1/A/2006, item 2; of 20 October 2010, ref. P 37/09, OTK ZU No 8/A/2010, item 79 and of 22 October 2013, SK 14/11, OTK-A year 2013, no. 7, item 101. 22 SA (Court of appeal) in Warsaw in its judgment of 25 June 2021, VII Aga 699/20, Legalis 2681432.

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of an ancillary act of the court. Due to the legal nature of an instruction, the essence of which is aimed at providing information of a specific wording, an order issued pursuant to Article 1562 of the Code of Civil Procedure is exclusively declaratory in nature with a specific notification content. The notification under Article 1562 of the Code of Civil Procedure may be made by the court on the basis of the assertions made by the claimant and not on the basis of the assertions to be made later as a result of the action of the court. The essence of this provision is that the court, anticipating the possibility of ruling on a different basis, should warn the parties of this if the plaintiff has indicated a legal basis for the claim. However, the scope of examination of the case and the possibility of ruling on a legal basis other than the one indicated by the party may take place only within the limits of examination of the case determined by the demand made and the facts stated. The purpose of Article 1562 of the Code of Civil Procedure is not to collect procedural material (evidence and facts) but for the court to loyally and fairly warn both parties of the possibility of deciding on a different basis of liability within the limits set by Article 321 § 1 of the Code of Civil Procedure. Under Article 1561 CCP, the correct exercise of power by the presiding judge (i. e., in an objective manner and without violating the principle of the balance of the parties in the trial) can contribute to the proper direction of the proceedings. This does not indicate a lack of impartiality: on the contrary, it is intended to be an advantage for the party, which can modify its claims and demands accordingly.23 The mere fact of the notification action under Article 1562 of the Code of Civil Procedure, in the absence of circumstances justifying the application of this provision, does not constitute a violation of a rule of procedure that may affect the decision on the merits of the case, unless the court’s procedural actions related to this instruction led to the court’s decision on a different factual basis than the one indicated by the party, and consequently, there was a violation of Art. 321 § 1 of Kodeks Postępowania Cywilnego (the Code of Civil Procedure). The essence of Article 1562 of Kodeks Postępowania Cywilnego (the Code of Civil Procedure) lies in the fact that the court may subsume the plaintiff ’s claims under a different regime of civil liability, but it may not change this regime by supplementing the facts relevant for the resolution of the case that were not voiced in the course of the trial but were supplemented by the court in the course of actions taken ex officio. Article 1562 of the Code of Civil Procedure can only be applied if a hearing, a pre-trial hearing or another hearing with the parties has been scheduled. It is clear from Article 1562 in fine that the signalling provided for therein can only be made by the

23 SA in Krakow in its judgment of 23.11.2021, I Aga 106/20, Legalis.

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Change of legal basis by the court and the right to a fair civil trial

court (the presiding judge) to ‘the parties present at the hearing’. This means that if none of the parties appears at the hearing, Article 1562 cannot be applied.24 It has been aptly noted in the literature that Article 1562 of the Code of Civil Procedure cannot be applied if neither of the parties has indicated the legal grounds for their demands or motions. This provision does not contain a general competence to inform the parties about the possible grounds for the court’s decision.25 The view has been expressed in the doctrine that Article 1562 is closely linked to Article 1561 of the Code of Civil Procedure, and together they form a procedural construction aimed at ensuring the right to be heard through the prohibition of surprising the basis of the decision.26 Also in the judicature, one can observe a tendency to apply these two provisions together. In the justification of the judgment of the Supreme Court of 28.5.2021, I CSKP 105/21 (Legalis), it was pointed out that if the plaintiff refers extensively to multiple grounds for claims, this should be subject to clarification, ‘taking into account the regulations of Articles 1561 and 1562’ of Code of Civil Procedure.27

4.

Legal consequences of failure to inform a party of a change in the legal basis of a decision

In the current state of the law, the court should inform the parties of a change in the legal basis of an action.28 However, there is no consensus as to what legal consequences arise from the failure to give the parties such notice. In two judgments, the Supreme Court took the position that if the court decides on a claim on a different legal basis than that indicated by the party, without informing the parties about such a possibility before the hearing is closed, the proceedings are invalid due to the parties being deprived of the possibility of defending their rights, and this also constitutes a violation of the parties’ right to a fair trial.29 A different view in this respect follows from the justification of the Supreme Court’s judgment of 5 July

24 M. Dziurda, in: Kodeks postępowania cywilnego. Komentarz [Code of Civil Procedure. Commentary], ed. P. Rylski, Warszawa 2022, Komentarz do artykułu 1562 k.p.c. [Commentary to Article 1562 k.p.c.], Legalis. 25 Ibid. 26 Ibid. 27 SN in its judgment of 28.5.2021, I CSKP 105/21 (Legalis). 28 Until the entry into force of Article 1562 k.p.c., this issue was disputed in the literature. 29 Supreme Court in its judgment of 2.12.2011, III CSK 136/11, Legalis 473641. Similarly, the Supreme Court in its judgment of 19.3.2015, IV CSK 368/14, Legalis 1263200. See E. Łętowska, Glosa do wyroku z dnia 2.12.2011 r., III CSK 136/11, [Gloss to the judgment of 2.12.2011, III CSK 136/11], Polski Proces Cywilny 2012 no. 4, pp. 690 et seq. This author was critical of the thesis.

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2013,30 which states that the fact that the contractual legal relationship between the parties was assessed differently by the courts adjudicating the case in no way deprived the defendant of its right to defend itself. When correctly interpreted, a legal norm has an unambiguous meaning. However, bearing in mind that in practice the assessment of legal norms by the parties and the court may lead to different results, a litigant should endeavour to make his or her own assessment of the legal norms applicable to the dispute so that this assessment is as close as possible to the one ultimately adopted by the court. Therefore, a change in the legal qualification of the established facts by the court of second instance can in no way be a basis for concluding that a party has thus been deprived of an instance.31 The view of the invalidity of proceedings caused by the failure to notify the parties of the change in the legal qualification of the claim was also departed from by the Supreme Court in its judgment of 25 June 2015, in which it expressed the view that the right to a fair trial derives from the right to be heard (i. e., the court is to give the parties an opportunity to express their views on the case, and thus also on legal issues). If a party is represented by a professional attorney, the former should perceive on his or her own how the totality of the relevant facts disclosed in the trial can be qualified under acceptable substantive grounds. In such a state of affairs, the failure to warn a party of the possibility of deciding on a different legal basis indicated by the plaintiff does not deprive the party of the possibility of defending himself or herself (Article 379(5) of Kodeks Postępowania Cywilnego (the Code of Civil Procedure)), as by giving the parties a final say, the court gives them an opportunity to express their opinions on all the possible substantive legal provisions applicable in the case.32 In a later decision, the Supreme Court stated that there is no basis for making a general assessment that in every case, the court’s failure to warn a party about the legal recusal of a claim affects its right to defence. This will be determined by the specific circumstances of each case, including its subject matter, the facts indicated, the possible legal qualification of the claim, specific procedural situations and the party’s ability to anticipate such a change. If a party is represented by a professional attorney, the party should perceive for himself or herself how the totality of the relevant facts disclosed in the trial can be qualified under acceptable substantive grounds and express an opinion on them in the final vote. In this state of affairs, the failure to warn a party of a legal basis other than that indicated by the plaintiff does not deprive the party of the possibility of defending himself or herself, unless the legal construction adopted by the court remains outside the limits of

30 IV CSK 734/12, Legalis 804265. 31 Ibid. 32 The Supreme Court in its judgment of 25 June 2015, V CSK 528/14, OSNC Supplementary Rev. No. D, item 73, p. 115.

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the parties’ foreseeability.33 On the other hand, the Supreme Court has recently expressed the view that if the plaintiff has specified the legal basis of his/her claim and only adjusted the argumentation to it, the court’s duty to inform, resulting from Articles 7 and 45(1) of the Constitution, includes warning the parties of the possibility of hearing the case on a different legal basis. This duty constitutes the implementation of the party’s right to foreseeability of the outcome and to allow the court to comprehensively examine the circumstances of the case and serves to guarantee the actual implementation of the right to a fair hearing.34 The court’s failure to inform a party of a change in the legal basis of a decision is a procedural default. This does not mean, however, that in a civil trial, it cannot be claimed that a different legal qualification made on the grounds of the judgment in relation to the ground indicated by the plaintiff resulted in an inadequate defence of the defendant, which in turn adversely affected the defendant’s right to a fair trial and, in particular, led to a deprivation of the possibility of defence. However, there should not be an equal sign between the requalification made by the court and the deprivation of the possibility of defending oneself: it should always be considered ad casum.35 The court, when making a legal qualification, may also make a requalification, as such an action does not constitute an adjudication beyond the request. According to Marszałkowska-Krześ, a requalification falls within the discretionary power of the court.36 Discussions on the obligation of the court to inform a party of a change in the legal basis of a decision have been concluded by the addition of Article 1562 k.p.c. in the Code of Civil Procedure. This regulation is similar to that found, for example, in Austrian law (§ 182a öZPO) and German law (§ 139(2) ZPO). It imposes an obligation on the court to warn the parties of a possible change in the legal basis 33 SN in its judgment of 30 November 2016, III CSK 351/15, Legalis 1565038. 34 SN in its resolution of 17 February 2016, III CZP 108/15, OSNC 2017, no. 2, item 14. 35 E. Marszałkowska-Krześ, I. Gil, Władza dyskrecjonalna a ciężar wspierania postępowania i działania z dobrymi obyczajami, [Discretionary power and the burden of supporting conduct and acting with good manners], in: Postępowanie rozpoznawcze w przyszłym kodeksie postępowania cywilnego. Materiały Ogólnopolskiego Zjazdu Katedr i Zakładów Postępowania Cywilnego w KatowicachKocierzu (26–29 września 2013 r.), [Exploratory proceedings in the future Civil Procedure Code. Materials of the All-Polish Congress of Chairs and Departments of Civil Procedure in KatowiceKocierz (26–29 September 2013)], eds. K. Markiewicz, A. Torbus, Warszawa 2014, p. 789. See also P. Telenga, in: Kodeks postępowania cywilnego. Komentarz do art. 1–729 [Code of Civil Procedure. Commentary to Articles 1–729], ed. A. Jakubecki, Warszawa 2017, pp. 532–533. This author approves of the postulate to inform the parties about the change of legal qualification, but does not associate the lack of such information, in principle, with the invalidity of the proceedings due to the deprivation of the party’s ability to defend its rights. See also E. Łętowska, Glosa do wyroku Sądu Najwyższego z dnia 2 grudnia 2011 r. (II CSK 136/11) [Gloss to the Supreme Court judgment of 2 December 2011. (II CSK 136/11)], PPC 2012, no. 4, p. 691 et seq. 36 E. Marszałkowska-Krześ, (above n. 35), p. 789.

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of a decision and to give them the opportunity to comment on it. However, it is not possible to derive such far-reaching procedural consequences as nullity of the proceedings or violation of a party’s right to a fair civil trial from the court’s failure to warn the parties of a contemplated change in the legal basis of the decision. Failure to warn a party of a possible change in the legal classification of his or her claim does not violate the provisions of the Code of Civil Procedure in such a way that one could speak here of the invalidity of the proceedings. A party dissatisfied with a judgment rendered by the court of first instance may appeal against it and raise in the appeal allegations concerning a violation of substantive law by the court of first instance. In addition, it should be noted that by changing the legal qualification of an act, the court does not at the same time change the claimant’s demand or the facts invoked in support thereof. The court considers this change usually as a result of the factual findings made, which should be known to the parties as active participants in the proceedings. Moreover, the situation in which the court changes the legal qualification of the claim does not differ in principle from the one in which the parties did not refer to any legal basis, and the court applied it on its own. In both cases, the court decides the case on a legal basis on which the parties have not expressed their opinions. In the latter case, it is clear that the court is not obliged to inform the parties of the legal classification it is considering in the case. Where necessary, at the hearing, the presiding judge may instruct the parties as to the likely outcome of the case in light of the claims and evidence submitted up to that point (Article 1561 of the Code of Civil Procedure). However, this is an instruction on the likely outcome of the case and not on the court’s proposed legal basis for a decision. Apart from that, the statement of the parties concerning the legal qualification of the claim does not bind the court: from the procedural point of view, it constitutes only a statement of knowledge, which may only be perceived in the category of a party’s position, and does not affect its procedural situation. In contrast, this is not the case with the parties’ statements of demand or facts, which usually have procedural significance and produce specific effects. Thus, depriving the parties of the opportunity to comment on claims or facts – as opposed to statements of law – can consequently lead to far-reaching procedural consequences, including the nullity of the proceedings. Therefore, it is always necessary to analyse ad casum the conduct of the court in the course of the proceedings in order to determine whether, in a given specific case, the court deprived a party of the possibility of defending its rights by not giving the party the opportunity to express his or her opinion on significant facts raised by the opposing party and evidence carried out, which the court took into account when establishing the factual basis of the judgment, or whether it merely failed to warn the parties of a change in the legal classification of the plaintiff ’s claim, which resulted from facts raised by the plaintiff and evidence carried out, on which the opposing party could have expressed his or her opinion. It is also worth recalling at this point the resolution of the panel of seven

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judges of the Supreme Court on 31 January 2008.37 According to the resolution, the court of second instance hearing the case as a result of an appeal is not bound by charges concerning infringement of substantive law presented in the appeal, but it is bound by charges concerning infringement of procedural law; however, within the limits of the appeal, the court takes into consideration ex officio the invalidity of proceedings. The court of second instance, when hearing the appeal, may ex officio apply the relevant rule of substantive law without notifying the parties to the proceedings. In the course of proceedings before the court of second instance, the scope of cognition of this court is usually limited. In turn, the activity of the parties is generally limited to the filing of the appeal and the response to the appeal, as well as participation in the hearing. The court of second instance, if it already conducts evidence proceedings, is limited in scope. Moreover, the possibility of invoking new facts and evidence before this court is limited (Article 381 of the Code of Civil Procedure). Therefore, if the first of the presented views were to be adopted, the possibility of changing the legal qualification of the act by the court of second instance would also be impossible in principle, taking into account the aim to provide the defendant with an opportunity to defend himself or herself, including expressing his or her opinion on the legal qualification changed by the court. Nevertheless, the Court of Appeal in Lublin put forward the thesis that the provision of Article 1562 of the CCP is applicable in the proceedings before the court of second instance due to the content of Article 391 § 1 sentence 1 of the CCP.38 The Court of Second Instance, when applying this provision, should issue a ruling in which it indicates to the parties the new legal basis for its decision and sets a time limit for the parties to respond to it.

5.

Conclusions

In conclusion, it should be emphasised that it is the duty of the court hearing a particular case to consider all possible legal grounds on which the plaintiff could have based his or her claim. This obligation is incumbent on the court regardless of whether the plaintiff has invoked any legal basis for the judgment or not. The boundaries of the implementation of this duty are determined by the facts and claims submitted by the parties in the course of the proceedings. The court is not bound by the legal basis invoked by the claimant. Indeed, the court may change this basis and, as a rule, should warn the party of its intention to rule on a legal basis other than that indicated by the claimant. However, if the court fails to warn a party

37 III CZP 49/07, OSNC 2008, no. 6, item 55. 38 SA in Lublin in its judgment of 3 November 2021, I ACa 147/21, Legalis 2636973.

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of its intention to rule on a legal basis other than that indicated by the claimant, the court cannot necessarily be accused of violating the right to a fair trial. Indeed, if a party, especially one represented by a professional attorney, has had the opportunity to comment on the claims, facts and evidence submitted by the opposing party, it has had the opportunity to actually participate in the proceedings and undertake a defence. In such a case, it is difficult to accuse the court of depriving it of the right to be heard and of surprising the outcome of the case. On the other hand, a situation in which the court deprived or restricted a party of the right to be heard in relation to the claims, facts and evidence submitted by the opposing party would have to be assessed differently. In conclusion, it can be argued that it is desirable that neither party is surprised by the outcome of the trial. Procedural fairness is an element of the right to a fair trial, including the opportunity to be heard, and this, in turn, is the essence of the constitutional right to a trial.

References Literature Dziurda M., in: Kodeks postępowania cywilnego. Komentarz [Code of Civil Procedure. Commentary], ed. P. Rylski, Warszawa 2022, Komentarz do artykułu 1562 k.p.c. [Commentary to Article 1562 k.p.c.], Legalis. Gudowski J., in: Kodeks postępowania cywilnego [Commentary. Recognitive proceedings, vol. II], Warszawa 2016. Łazarska A., Należyta dbałość o swoją sprawę w procesie cywilnym [Due care of one’s case in a civil trial], Judicial Review 2009, no. 5. Łętowska E., Glosa do wyroku z dnia 2.12.2011 r., III CSK 136/11, [Gloss to the judgment of 2.12.2011, III CSK 136/11], Polski Proces Cywilny 2012 no. 4. Markiewicz K., in: Kodeks postępowania cywilnego [Commentary, vol. I], eds. K. Piasecki, A. Marciniak, Warszawa 2016. Marszałkowska-Krześ E., Gil I., Władza dyskrecjonalna a ciężar wspierania postępowania i działania z dobrymi obyczajami, [Discretionary power and the burden of supporting conduct and acting with good manners], in: Postępowanie rozpoznawcze w przyszłym kodeksie postępowania cywilnego. Materiały Ogólnopolskiego Zjazdu Katedr i Zakładów Postępowania Cywilnego w Katowicach-Kocierzu (26–29 września 2013 r.), [Exploratory proceedings in the future Civil Procedure Code. Materials of the All-Polish Congress of Chairs and Departments of Civil Procedure in Katowice-Kocierz (26–29 September 2013)], eds. K. Markiewicz, A. Torbus, Warszawa 2014. Melissionos G., Die Bindung des Gerichts an die Parteianträge nach § 308 I ZPO, Berlin 1982.

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Piasecki K., Zasady orzekania [Rules of adjudication], in: System prawa procesowego cywilnego. Procedura rozpoznawcze przed sądami pierwszej instancji [Civil procedural law system. The exploratory procedure in front of the courts of first instance], Wrocław 1987, p. 272. Telenga P., in: Kodeks postępowania cywilnego. Komentarz do art. 1–729 [Code of Civil Procedure. Commentary to Articles 1–729], ed. A. Jakubecki, Warszawa 2017. Tuleja P., in: Konstytucja Rzeczypospolitej Polskiej. Komentarz [The Constitution of the Republic of Poland. Commentary], ed. P. Tuleja, Warszawa 2021, LEX, commentary to Article 45. Weitz K., Związanie sądu granicami żądania w procesie cywilnym [Binding of the court by the limits of the claim in a civil trial], in: Aurea Praxis Aurea Theoria. Pamiątkowa ku Czci Profesora Tadeusza Erecińskiego, t. I, eds. J. Gudowski, K. Weitz, Warszawa 2011.

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Agnieszka Laskowska-Hulisz, Bartosz Mielczarek

Right to a hearing as a manifestation of the principle of equality of parties and participants in civil proceedings

1.

Introductory Remarks

The Constitution of the Republic of Poland contains many principles, including those applicable to civil proceedings. One of these principles is the principle of equality before the law. The constitutional principle of equality before the law guarantees not only equality before the law but also the right to equal treatment by public authorities (Article 32(1) of the Polish Constitution).1 This principle is understood to mean that all subjects of the law characterised by a given essential feature are to be treated equally and that differences between subjects of the law should be applied to differences in treatment that result from the law.2 The principle’s counterpart under the Civil Procedure Code is the principle of equality of the parties and participants in the proceedings, also known as the principle of equality of the parties and participants in the proceedings3 or the principle of equality and hearing of the parties.4 One of the important manifestations of the implementation of this principle in civil proceedings is that the parties and participants in the proceedings are guaranteed the right to be heard during the proceedings. In doing so, the right to be heard is also of utmost importance to guarantee that the parties or participants in the proceedings can participate in fair proceedings. A restriction or deprivation of this right can lead to far-reaching procedural consequences. It is

1 See comments on this principle in the jurisprudence of the Constitutional Court, M. Ziolkowski, Zasada równości w prawie [Principle of equality in law], PiP 2005, z 5, p. 94 et seq. 2 See J. Falski, Ewolucja wykładni zasady równości w orzecznictwie Trybunału Konstytucyjnego [Evolution of the interpretation of the principle of equality in the jurisprudence of the Constitutional Tribunal], State and Law 2000, no. 1, p. 52. 3 See, inter alia, E. Waśkowski, System procesu cywilnego [Theoretical introduction. Principles of rational court system and civil trial], Vilnius 1932, pp. 108–109; T. Ereciński, K. Weitz, Prawda i równość stron w postępowaniu cywilnym a orzecznictwo Trybunału Konstytucyjnego [Truth and equality of parties in civil proceedings and the jurisprudence of the Constitutional Tribunal], in: Orzecznictwo Trybunału Konstytucyjnego a Kodeks postępowania cywilnego. Materiały Ogólnopolskiego Zjazdów Katedr i Zakładów Postępowania Cywilnego Serock 24–26 September 2009, eds. T. Ereciński, K. Weitz, Warszawa 2010, p. 44 and p. 48. 4 It is also referred to as the principle of equality of arms (der Waffengleichheit), see, inter alia, A. Blomeyer, Zivilprozeβrecht. Erkenntnisverfahren, Berlin-Göttingen-Heidelberg 1963, p. 99.

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therefore worthwhile, within the framework of this publication, to briefly outline the implementation of the principle of equality before the law in civil proceedings in order to give an overview of the exercise of one of its manifestations (i. e., the right to a hearing) and to indicate the legal consequences of its infringement in civil proceedings.

2.

The essence of the principle of equality of the parties and participants in the proceedings

It has already been pointed out in the Polish inter-war literature that to realise the principle of equality of all citizens before the law and the court, to better arrive at the truth and, finally, to satisfy the elementary requirements of justice, it is necessary to give both parties the opportunity to use all means of struggle permitted by the law to an equal extent in defending their interests in a trial, which is achieved by introducing the principle of equality of the parties into the trial.5 The principle of equality of the parties and participants in the proceedings, which was introduced into civil proceedings, consists on the one hand of providing both parties6 with equal protection and on the other hand of providing each party with the opportunity to present its claims in response to the claims of the opposing party (right to a hearing).7 This is the so-called formal aspect of the principle of equality of parties.8 On the other hand, the principle of equality of parties in its real aspect manifests itself most visibly, inter alia, in the following situations: the possibility to provide a party acting without a lawyer with the necessary guidance and instructions as to the actions of the proceedings, in accordance, inter alia, with Articles 5 and 212 of the Code of Civil Procedure; the possibility for an indigent party to benefit from ex

5 E. Waskowski, Podręcznik procesu cywilnego [Handbook of civil trial], Vilnius 1932, pp. 76–77. 6 The remarks made about the parties should also apply mutatis mutandis to the participants in the proceedings. 7 W. Siedlecki, in: J. Jodłowski, W. Siedlecki, Postępowanie cywilne. Część ogólna [Civil Procedure. General part], Warszawa 1958, p. 158 et seq; E. Wengerek, Zasada równości w procesie cywilnym [The principle of equality in the civil proces], PiP 1995, z 11, p. 778; W. Broniewicz, Postępowanie cywilne w zarysie [Civil procedure in outline], Warszawa 1973, p. 65; P. Rylski, Działanie sądu z urzędu a podstawa faktyczna wyroku cywilnego [Ex officio action of the court and the factual basis of the civil judgment], Warszawa 2009, p. 109; T. Ereciński, K. Weitz, (above n. 3), p. 47. See an extensive discussion on this subject, in: A. Góra-Baszczykowska, Zasada równości stron w procesie cywilnym [The principle of equality in the civil proces], Warszawa 2008, p. 72 et seq. 8 See also J. Jodłowski, in: Postępowanie cywilnego [Civil Proceedings], in J. Lapierre, J. Jodłowski, Z. Resich, T. Misiuk-Jodłowska, K. Weitz, Warszawa 2016, p. 153.

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Right to a hearing as a manifestation of the principle of equality of parties and participants in civil proceedings

officio legal aid; and exemption of the parties from the obligation to bear the costs of the proceedings.9 In connection with the amendments to the provisions of the Code of Civil Procedure, particularly consisting of limiting the scope of the court’s information activity, the question arose as to whether the actual equality of parties could be ensured not only by means of instructions and the institution of exemption from court costs but also by means of an active attitude of the court in collecting trial material. It was pointed out that, in fact, it was only after the amendment of Articles 5 and 212 of the Code of Civil Procedure that the principle of equality of parties in a civil trial became more real. The actual equality of the parties is guaranteed in a civil trial by a number of institutions, including the possibility of instructing parties acting without a professional representative, arising from Articles 5, 210 § 21 and § 2,2 212 of the Code of Civil Procedure.10 However, the court’s activity in the field of collecting trial material should not go beyond the framework set out in the provisions. The court should not seek evidence ex officio; the admission of evidence ex officio should be an exception and should concern evidence which came to the court’s attention in connection with its official activity.11 A serious threat to the implementation of the principle of equality of parties may also be posed by those provisions of the Code of Civil Procedure that give one party of the proceedings specific rights over another party and, as a consequence, place that party in a privileged procedural position and the court in the role of its adviser or limit the rights of one party in comparison with analogous rights of the

9 A. Góra-Błaszczykowska, Zasada równości stron w aspekcie zmiany przepisów art. 5 i 212 k.p.c. i wynikających z nich obowiązków sądu w postępowaniu (uwagi na tle orzecznictwa Sądu Najwyższego), [The principle of equality of parties in the aspect of the amendment of the provisions of Articles 5 and 212 of the Code of Civil Procedure and the resulting obligations of the court in the proceedings (remarks against the background of the jurisprudence of the Supreme Court)], PS 2005, no. 10, pp. 86–87. Exemption from court costs is also analysed in relation to the Polish Constitution from the point of view of the right to privacy and the right to court. See A. Banaszewski, Wniosek o zwolnienie od kosztów sądowych w sprawach cywilnych a konstytucyjne prawo do ochrony prywatności [Application for exemption from court costs in civil cases and the constitutional right to privacy], in: Konstytucjonalizacja postępowania cywilnego, ed. Ł. Błaszczak, Wrocław 2015, p. 271 et seq.; A. Marciniak, Realizacja prawa do sądu a zwolnienie od kosztów sądowych. Uwagi na marginesie aktualnego orzecznictwa sądowego [Implementation of the right to court and exemption from court costs. Observations on the margin of current judicial decisions], in: Konstytucjonalizacja postępowania cywilnego, ed. Ł. Błaszczak, Wrocław 2015, pp. 283 et seq. 10 A. Góra-Błaszczykowska, (above n. 9), p. 87; Also, Zasada równości stron w procesie cywilnym, Warszawa 2008, p. 177 et seq. So also T. Pietrzykowski, B. Wojciechowski, Równość, prawda i sprawiedliwość w procesie cywilnym. Rozważania na tle nowelizacji k.p.c. [Equality, truth and justice in the civil process. Considerations against the background of the amendments to the Civil Procedure Code], Palestra 2004, no. 9–10, p. 15. 11 See also A. Góra-Błaszczykowska, (above n. 9), pp. 259–262.

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other party to the proceedings. On the other hand, this principle may be infringed when, in the case of correctly formed legal grounds for its validity, the court does not apply them in a lawful manner, which leads to unequal treatment of the parties to the proceedings and preference of one of them.

3.

The right to a hearing

In essence, the right to be heard consists of guaranteeing the litigants an equal right to be heard on the opposing party’s claims. It is an expression of the longestablished and universally recognised principle of audiatur et altera pars. Thus, both parties should have equal conditions to put forward claims, motions, assertions, evidence and objections and to express their views on the claims, motions, assertions, evidence and objections put forward by the other party to the trial.12 Indeed, in principle, a decision on the merits of the case can only take place after the other party has been heard as to the claim and the defences against it, or at least after the party has been given the opportunity to be heard as to the statements of the other party.13 It is not only in Polish law that the right to a hearing is treated as an important manifestation of the principle of equality of parties in civil litigation. German law also devotes considerable attention to the right to be heard (das rechtliche Gehör), which is regarded as the most important incident of the principle of equal treatment.14 Austrian law, in contrast, refers to the principle of the judicial hearing of both parties (der Grundsatz des beiderseitigen rechtlichen Gehörs), according to which anyone whose rights are affected by a judicial decision has the right to be heard in the proceedings conducted with a view to making that decision. That is, he or she has the right to be heard on the facts and on the law.15 It is also worth pointing out that the right to be heard in civil proceedings is not only a manifestation of the principle of equality of parties and participants in these

12 See J. Jodłowski, (above n. 8), p. 153. 13 Exceptions to this rule relate to proceedings in which the court gives a decision on the merits of the case on the basis of the statement of claim and the documents attached thereto, without hearing the defendant (e. g., in proceedings by writ of summons or by order). Instead, the defendant exercises his or her right to be heard by filing an appeal, which gives the court of first instance the opportunity to retry the case. 14 See A. Blomeyer, Zivilprozeβrecht. Erkenntnisverfahren, Berlin-Göttingen-Heidelberg 1963, p. 99; M. Schwab, Zivilprozessrecht, Heidelberg-München-landsberg-Frechen-Hamburg 2010, p. 84 et seq.; O. Jauering, Zivilprozessrecht, München, pp. 118–121. 15 See W. H. Rechberger, D.A. Simotta, Zivilrpzessrecht. Erkenntnisverfahren, Wien 2010, p. 237; H. Dolinar, R. Holzhammer, Zivilprozeβrecht I. Grundstudium, Freistadt 2005, p. 201.

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Right to a hearing as a manifestation of the principle of equality of parties and participants in civil proceedings

proceedings but also a guarantee that these proceedings meet the requirements for a fair trial.16 The right to be heard is expressed in particular in those provisions of the Code of Civil Procedure that create the possibility for the parties to actually participate actively in civil proceedings. By way of example, the following provisions may be mentioned here. Pursuant to the wording of Article 149(2) of the Civil Procedure Code, the parties shall be notified of public hearings, which guarantees their participation in each public hearing on the same basis regardless of whether they are the plaintiff or the defendant. On the other hand, if the court finds irregularities in the service of the summons, or if the absence of a party is caused by an extraordinary event or other obstacle known to the court that can not be overcome, the court should postpone the hearing (Article 214 § 1 of the Code of Civil Procedure). The defendant, pursuant to Article 2051 of the Code of Civil Procedure, has the right and even the obligation to file a response to the statement of claim, and the other party to the dispute may also file a response to the appeal (Article 3731 of the Code of Civil Procedure) or, for example, a response to the cassation appeal (Article 3987 § 1 of the Code of Civil Procedure). In addition, pursuant to Article 2053 § 1 of the Code of Civil Procedure, in justified cases, particularly in abstruse cases or cases of deliberation, the presiding judge may order the exchange of preparatory pleadings by the parties, indicating the order in which the pleadings are to be filed, the deadlines within which the pleadings are to be filed and the circumstances to be clarified. It is important to note that an order to file preparatory pleadings may be issued against both parties to the trial, regardless of which side they are on, and this also promotes the right to be heard. In addition, pursuant to Article 210 of the Code of Civil Procedure, the hearing takes place in such a way that, after the case has been called, the parties – first the plaintiff and then the defendant –make oral submissions of their claims and motions and present assertions and evidence in support thereof. In addition, the parties may indicate the legal grounds for their demands and motions. If a party is absent from the hearing, the presiding judge or the reporting judge appointed by the presiding judge shall present the party’s requests, assertions and evidence in the case file (Article 211 of the Code of Civil Procedure). In addition, the presiding judge closes the hearing after the evidence has been taken and the parties have been given the floor (Article 224(1) of the Code of Civil Procedure). Also, in the cases that are heard in closed session, such as in the proceedings by writ of summons, injunction proceedings and electronic writ of summons, the defendant has the right to express his or her opinion by filing an appeal against the decision issued in the case. This party is served with the

16 See H. Pietrzkowski, Prawo do rzetelnego procesu w świetle zmienionej procedury cywilnej [Right to a fair trial in the light of amended civil procedure], Przegląd Sądowy 2005, no. 10, p. 51.

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order for payment by the court, together with a copy of the statement of claim and appendices, and a time limit is set for filing an appropriate appeal, which causes the case to be heard again by the court of first instance (Article 4802 § 3 of the Code of Civil Procedure). At the same time, it should be noted that in order to increase the efficiency and speed of the proceedings, the legislator added Article 2261 of the Code of Civil Procedure, according to which, whenever the law provides for the hearing of the parties or other persons, according to the circumstances, this may be done by summoning the parties to make the relevant statements at a meeting or setting a time limit for taking a position in a pleading or by means of remote communication, provided that they give certainty as to the person making the statement. Besides, in some provisions of the Code of Civil Procedure, the legislator has indicated that certain actions of the court, although they are related to the procedural actions of only one party or one participant of the proceedings, are to be performed towards both parties to the trial (all participants of the proceedings), such as serving a default judgment (Article 343, first sentence). As a rule, securing evidence should take place in the presence of the opponent, and his/her summons is not necessary only in urgent situations or when the opponent cannot be named or his/her whereabouts are unknown (Articles 313 and 314 of the Code of Civil Procedure). The doctrine points to other provisions serving to guarantee the right to be heard, such as Article 1561 of the Code of Civil Procedure, by virtue of which, if necessary, at the hearing the presiding judge may instruct the parties about the probable outcome of the case in light of the claims and evidence submitted up to that point.17 Even before the entry into force of this provision, the judicature noted the existence of the court’s information obligation in regard to drawing the parties’ attention to the probable outcome, existing within the framework of the substantive management of the trial as an element of the right to be heard, which, in turn, was seen in the context of Articles 2 and 45(1) of the Constitution of the Republic of Poland, taking into account the necessity to meet the postulate of procedural

17 K. Gajda-Roszczynialska, in: Kodeks postępowania cywilnego. Koszty sądowe w sprawach cywilnych. Dochodzenie roszczeń w postępowaniu grupowym. Przepisy przejściowe. Komentarz do zmian. [Court costs in civil cases. Investigation of claims in group proceedings. Transitional provisions. Commentary to the amendments. Volume I and II], T. Zembrzuski, ed., Warszawa 2020, LEX, commentary to art. 1561 k.p.c.

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Right to a hearing as a manifestation of the principle of equality of parties and participants in civil proceedings

economy and the proper design of the proceedings, especially in the trial mode.18 Such an instruction should lead to the possibility for the parties to express their opinion as to the content of the instruction and possible amendment of the request or motion or submission of new facts and evidence. At the same time, it should be borne in mind that the instruction of the court as to the likely outcome of the case is not binding on the court. The above-mentioned provisions guaranteeing a party’s right to be heard under Article 13(2) of the Code of Civil Procedure shall apply mutatis mutandis to nonprocedural proceedings and to the participants in the proceedings acting therein. However, it cannot be overlooked that in non-litigation proceedings, one can also find provisions that guarantee the implementation of the right to be heard in these proceedings. By way of example, Article 510 of the Code of Civil Procedure can be mentioned here, on the basis of which the court ex officio ensures that every interested party takes part in the proceedings. Thus, if it turns out that the interested party is not a participant in the proceedings, the court will summon him/her to participate in the case, and if his/her whereabouts are unknown, it will appoint ex officio a curator to replace the interested party. Moreover, an interested party who did not participate in the proceedings may, pursuant to Article 524(2) of the Code of Civil Procedure, file a complaint for the resumption of the proceedings due to deprivation of the possibility to act.19 In addition, the provision that obliges the court to hear the participants of the proceedings is Article 514 § 1, third sentence of the Code of Civil Procedure, according to which, despite the fact that a hearing has not been appointed, the court may hear the participants at a court session or request written statements from them before deciding the case. Among the provisions on non-procedural proceedings regulating the various types of proceedings, one can also find a number of special provisions that guarantee the right to be heard therein, such as Article 533 of the Code of Civil Procedure, under which, before issuing an order declaring the missing person dead, the court should hear the persons close to the missing person as far as possible; Article 547 § 1 of the Code of Civil Procedure, under which the person who is the subject of an application for incapacitation should be heard immediately after the commencement of the proceedings; Article 548 § 2 of the Code of Civil Procedure, under which the person

18 See, inter alia, judgments of the Supreme Court: of 2.12.2011, III CSK 136/11, LEX no. 1131125; of 19.03.2015, IV CSK 368/14, LEX no. 1657598; of 27.04.2016, II CSK 324/15, LEX no. 2071199; of 27.04.2016, II CSK 556/15, OSNC 2017/3, item 34; of 13.04.2017, I CSK 270/16, LEX no. 2288106; of 14.12.2017, V CSK 121/17, LEX no. 2460480, and the resolution of the Supreme Court of 17.02.2016, III CZP 108/15, OSNC 2017/2, item 14. 19 See W. Siedlecki, Zasady naczelne postępowania cywilnego w świetle przepisów nowego kodeksu postępowania cywilnego, [The chief principles of civil proceedings in light of the provisions of the new code of civil procedure], Studia Cywilistyczne 1966, vol. VII, p. 28.

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affected by the application for incapacitation must be heard before an interim counsel is appointed;20 and Article 565 § 1 of the Code of Civil Proceedings, under which the decision on important family matters in the absence of an agreement between the spouses, as well as the granting of permission to carry out an act for which the consent of the other spouse is needed or to which the other spouse has objected, may take place only after the applicant’s spouse has been given an opportunity to be heard, unless it is impossible or expedient to hear him or her; and Article 576 § 1 of the Code of Civil Procedure, under which the guardianship court shall hear the legal representative of the person concerned before making a decision on the merits of the case. In more important cases, it should also, if possible, hear the person’s relatives; for example, according to Article 582 of the Code of Civil Procedure, a decision on a child’s essential matters, on which there is no agreement between the parents, may be made only after the parents have been given an opportunity to make statements, unless hearing them would be connected with undue difficulties. To conclude this part of the discussion, it should be strongly emphasised that the provisions of the Civil Procedure Code contain a number of legal bases aimed at guaranteeing the right of the parties and participants in the proceedings to be heard. The exercise of this right by a party or participant in the proceedings may consist in filing a pleading or speaking for the record. As a general rule, it is up to the parties and participants in the proceedings whether they intend to exercise their right or remain inactive. The court cannot compel them to exercise their rights; however, within the limits set by the provisions of the Civil Procedure Code, the court should create conditions that enable the parties and participants in the proceedings to exercise their right to be heard.

4.

Procedural consequences of deprivation of the right to a hearing

A breach of the provisions of the Civil Procedure Code, which guarantees a party the right to a hearing, may lead to far-reaching procedural consequences. This infringement constitutes a violation of procedural regulations and if, as a result of such violations, a party was deprived of an opportunity to defend its rights, we are dealing with a qualified procedural defect leading to invalidity of proceedings.21

20 The possibility to dispense with a hearing exists only in the cases referred to in Article 556 § 1 of the Code of Civil Procedure. 21 Closer K. Weitz, Związanie sądu granicami żądania w procesie cywilnym [Binding of the court by the limits of the claim in a civil trial], in: Aurea Praxis Aurea Theoria. Pamiątkowa ku Czci Profesora Tadeusza Erecińskiego, t. I, eds. J. Gudowski, K. Weitz, Warszawa 2011, pp. 681–683; the same, Skutki naruszenia art. 321 § 1 k.p.c. [Consequences of a violation of Article 321 § 1 of the

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Right to a hearing as a manifestation of the principle of equality of parties and participants in civil proceedings

Pursuant to Article 379(5) of Kodeks Postępowania Cywilnego (the Code of Civil Procedure), proceedings are invalid when a party is deprived of the possibility to defend his or her rights. The invalidity of proceedings may be taken into account by the court of second instance hearing the case ex officio (Article 378 § 1 of the Code of Civil Procedure), as well as by the Supreme Court hearing the cassation appeal (Article 39813 § 1 of the Code of Civil Procedure). Depriving a party of the possibility to defend his/her rights is also the basis for resumption of proceedings (Article 401(2) of the Code of Civil Procedure). Moreover, as has already been mentioned above, in the case of depriving an interested party or a participant of non-procedural proceedings of the possibility to act in non-procedural proceedings, the basis for the resumption is Article 524 of the Code of Civil Procedure. In seeking to ensure the parties’ right to be heard, the court is not, however, obliged to grant the parties further time limits to take a position (orally or in writing) if numerous pleadings are exchanged in the course of the proceedings and it appears from the circumstances of the case that those pleadings do not add much to the case. Sometimes litigants, with a view to prolonging the proceedings or influencing the other party (e. g., in order to exert pressure on him/her), may abuse their right to be heard by filing successive letters in the case which, however, do not introduce any new claims or evidence but merely repeat earlier claims or statements or rightly include new claims, but these claims relate to circumstances that are not material to the case. Therefore, the court cannot be denied the right to terminate the exchange of pleadings by not setting a time limit to respond to them if they are filed with an abuse of the procedural right referred to Article 41 of the Code of Civil Procedure. In such a case, it is the court that may ‘punish’ the abusing party by applying the measures indicated in Article 2262 of the Code of Civil Procedure. Moreover, the court is not obliged to force the passive party to become active in the course of the proceedings, as the court does not have any coercive measures at its disposal in this respect. The passive behaviour in the proceedings of a party or a participant who had a legitimate opportunity to exercise the right to be heard but did not use it does not constitute a violation of the provisions of the Civil Procedure Code and cannot constitute a legitimate ground or allegation for an appeal. Nor can

Code of Civil Procedure], in: Proces cywilny. Nauka, kodyfikacja, praktyka. Księga jubileuszowa dedykowana Profesorowi Feliksowi Zedlerowi, [Civil Process. Science-Codification-Practice. Jubilee Book Dedicated to Professor Feliks Zedler], eds. P. Grzegorczyk, K. Knoppek, M. Walasik, Warszawa 2012, p. 349 et seq. So also W. Siedlecki, (above n. 19), p. 28. Also:, Zasady wymiaru sprawiedliwości i naczelne zasady procesu cywilnego w świetle orzecznictwa Sądu Najwyższego [Principles of justice and guiding principles of civil trial in the light of Supreme Court case law], Zeszyty Naukowe Instytutu Badania Prawa Sądowego, Warszawa 1978, no. 10, p. 51. See also the ruling of the Supreme Court of 3.5.1966, III CO 12/66, OSNCP 1966, no 11, item 182.

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it be analysed in the context of depriving a party or participant in the proceedings of the right to a fair civil trial.

5.

Conclusions

The principle of equality of parties and participants in the proceedings derives from the constitutional principle of equality before the law. This principle is one of the guiding principles of civil proceedings,22 and it applies in all types of these proceedings. An important manifestation of the implementation of this principle is the right to a hearing, which every litigant and participant in non-litigation proceedings is entitled to regardless of the procedural role he or she plays. Differences exist only in the scope of the exercise of this principle, and such differences result from the differences in procedural roles and related rights; thus, if the plaintiff, for example, files a statement of claim and the defendant files an answer to the statement of claim, one party files an appeal, and the other party files an answer to the appeal. In the Code of Civil Procedure, the legislator has introduced a number of provisions aimed at ensuring the parties’ right to be heard. The lawful and legitimate use of these provisions by the court is an important condition for ensuring the exercise of this right and guaranteeing the fair conduct of the proceedings. It is worth recalling at this point that it is the court’s duty to allow the parties to exercise their right to be heard. It should be emphasised here that a court unjustifiably depriving a party of the right to be heard in regard to the factual and legal circumstances of a case may commit a qualified procedural fault resulting from depriving a party of the opportunity to defend its rights. In conclusion, it is worth referring to the view expressed in the literature on the subject that a procedural law should fully realise a person’s right to a court as a fundamental human right and ensure that persons and entities in need of legal protection proceed as expeditiously as possible, ensuring equal treatment of the parties and participants in the proceedings, based on their activity and procedural resourcefulness and limiting the possibility of abuse of procedural rights.23

22 For a more detailed discussion of the concept of the chief principles of civil procedure: W. Berutowicz, O pojęciu naczelnych zasad postępowania cywilnego [On the concept of the chief principles of civil proceedings], Studia Cywilistyczne 1975, vol. XXV-XXVI. 23 See T. Ereciński, O potrzebie nowego kodeksu postępowania cywilnego [On the need for a new code of civil procedurę], Państwo i Prawo 2004, no. 4.

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Right to a hearing as a manifestation of the principle of equality of parties and participants in civil proceedings

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Marciniak A., Realizacja prawa do sądu a zwolnienie od kosztów sądowych. Uwagi na marginesie aktualnego orzecznictwa sądowego, [Implementation of the right to court and exemption from court costs. Observations on the margin of current judicial decisions], in: Konstytucjonalizacja postępowania cywilnego, ed. Ł. Błaszczak, Wrocław 2015. Pietrzkowski H., Prawo do rzetelnego procesu w świetle zmienionej procedury cywilnej [Right to a fair trial in the light of amended civil procedure], Przegląd Sądowy 2005, no. 10. Rechberger W. H., Simotta D. A., Zivilrpzessrecht. Erkenntnisverfahren, Wien 2010. Rylski P., Działanie sądu z urzędu a podstawa faktyczna wyroku cywilnego [Ex officio action of the court and the factual basis of the civil judgment], Warszawa 2009. Schwab M., Zivilprozessrecht, Heidelberg-München-landsberg-Frechen-Hamburg 2010. Siedlecki W., in: Postępowanie cywilne. Część ogólna [Civil Procedure. General part], eds. J. Jodłowski, W. Siedlecki, Warszawa 1958. Siedlecki W., Zasady naczelne postępowania cywilnego w świetle przepisów nowego kodeksu postępowania cywilnego, [The chief principles of civil proceedings in light of the provisions of the new code of civil procedure], Studia Cywilistyczne 1966. Siedlecki W., Zasady wymiaru sprawiedliwości i naczelne zasady procesu cywilnego w świetle orzecznictwa Sądu Najwyższego [Principles of justice and guiding principles of civil trial in the light of Supreme Court case law], Zeszyty Naukowe Instytutu Badania Prawa Sądowego, Warszawa 1978, no. 10. Waskowski E., Podręcznik procesu cywilnego [Handbook of civil trial], Vilnius 1932. Waśkowski E., System procesu cywilnego [Theoretical introduction. Principles of rational court system and civil trial], Vilnius 1932. Weitz K., Związanie sądu granicami żądania w procesie cywilnym [Binding of the court by the limits of the claim in a civil trial], in: Aurea Praxis Aurea Theoria. Pamiątkowa ku Czci Profesora Tadeusza Erecińskiego, t. I, eds. J. Gudowski, K. Weitz, Warszawa 2011. Weitz K., Skutki naruszenia art. 321 § 1 k.p.c. [Consequences of a violation of Article 321 § 1 of the Code of Civil Procedure], in: Proces cywilny. Nauka, kodyfikacja, praktyka. Księga jubileuszowa dedykowana Profesorowi Feliksowi Zedlerowi [Civil Process. ScienceCodification-Practice. Jubilee Book Dedicated to Professor Feliks Zedler], eds. P. Grzegorczyk, K. Knoppek, M. Walasik, Warszawa 2012. Wengerek E., Zasada równości w procesie cywilnym [The principle of equality in the civil proces], Państwo i Prawo 1995, z 11. Ziółkowski M., Zasada równości w prawie [Principle of equality in law], Państwo i Prawo 2005, z. 5.

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Monika Wałachowska, Aleksandra Wasielewicz

Constitutional right to damages in cross-border cases

1.

Introduction

One of the basic principles provided for in the Constitution of the Republic of Poland is, next to the principle of protection of human dignity and respect for human freedoms, the related principle of proportionality (Article 31(3) of the Constitution), which means that it is possible to introduce limitations to the exercise of certain rights and freedoms, provided that they are necessary, inter alia, for security or public order. At the same time, it is acknowledged in court jurisprudence that the fundamental principles of the Polish legal order include, inter alia, the compensatory nature of liability for damages.1 This principle is also relevant in cross-border cases, both when the recognition and declaration of enforceability of foreign judgments is considered and when the court would apply foreign law.2 Conflicts with fundamental principles of the forum’s legal order can be grounds for refusing to recognise and enforce a judgment, as well as for refusing to apply foreign law if doing so would have consequences contrary to the forum’s public policy. The fundamental principles of the legal order are both those found in constitutional provisions and those considered to be the guiding principles of particular areas of law (one of which is the compensatory nature of compensation,3 which we will address in this paper). At the same time, the Constitution stipulates that everyone has the right to compensation for the damage that has been caused to him/her by the unlawful action of a public authority body, while the law may not close off the judicial path for anyone to pursue the violated freedoms or rights (Article 77).

1 Order of the Supreme Court of 11 October 2013, I CSK 697/12, Legalis no. 741884. 2 See also the judgment of the Supreme Court of 11 June 2008, V CSK 8/08; A. Nowicka, in: Prawo prywatne międzynarodowe. Komentarz [Private International Law. Commentary], ed. J. Poczobut, Warszawa 2017, p. 220. 3 M. Wałachowska, in: Kodeks cywilny. Komentarz. Tom III. Zobowiązania. Część ogólna (art. 353 – 534) [Civil Code. Commentary. Volume III. Obligations. General part (art. 353–534)], eds. M. Fras, M. Habdas, Warszawa 2018, pp. 405–406; 639; W. Warkałło, Odpowiedzialność odszkodowawcza. Funkcje, rodzaje granice [Civil liability for damages. Functions, types, boundaries], Warszawa 1972, p. 14, 100; A. Szpunar, Ustalenie odszkodowania w prawie cywilnym [Determination of compensation in civil law], Warszawa 1975, p. 89.

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2.

Cross-border cases and the protection of fundamental principles of the legal order

As mentioned, in cases with a foreign element, and thus linked to the law of two or more states, there may be a need to protect the fundamental principles of one’s own legal order, as any settlement must stand in accordance with the values underlying the law of the fori state. The public policy clause is an instrument of private international law for the protection of these values. Its application results in the exclusion of the application of the rules of a foreign state when the effects of its application are difficult to accept in terms of the fundamental principles of the legal order of the fori. Furthermore, the clause also applies to the recognition or declaration of enforceability of judgments of foreign states.4 The clause is directed against the effects of the recognition or declaration of enforceability of a foreign judgment, so only this aspect should be assessed from the point of view of compatibility with fundamental principles of public policy.5 It is worth emphasising, however, that not every difference in the content of the foreign law and the law of the forum state leads to interference of the clause, as it is intended to protect fundamental interests and at the same time should be limited to the most glaring contradictions.6 In the context of the recognition and declaration of enforceability of judgments, it should be stressed that a review on the merits of the judgment (a so-called révision au fond 7 ) is not permitted.8

4 M. Zachariasiewicz, Klauzula porządku publicznego jako instrument ochrony materialnoprawnych interesów i wartości fori [Public policy clause as an instrument of protection of material-legal interests and the fori value], Warszawa 2018, p. 1; J. Blom, Public policy in private international law and its evolution in time, Netherlands International Law Review 2003, Vol. 50, No. 3, p. 374. 5 M. Zachariasiewicz, Klauzula porządku publicznego a uznawanie zagranicznych orzeczeń, których przedmiotem jest uznanie wyroku lub stwierdzenie jego wykonalności [The public policy exception and recognition of judgments on judgments], Problemy Prawa Prywatnego Międzynarodowego 2019, vol. 24, p. 27. 6 C. Vanleenhove, Punitive damages in private international law: lessons for the European Union, Cambridge-Antwerp-Portland 2016, p. 75. 7 See also O. Boskovic, Recognition and enforcement of punitive damages in France, in: Punitive damages and private international law: state of the art and future developments, eds. S. Bariatti, L. Fumagalli, Z. Crespi Reghizzi, Milano 2019, pp. 158–159. The basis for the assessment is therefore a reference to the principle of proportionality – ibid, pp. 161–162. 8 C. Vanleenhove, (above n. 6), p. 211.

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3.

Enforceability of foreign judgments awarding punitive damages in the Polish legal order

In regard to the application of the public policy clause in damages cases, the case law on the enforcement of judgments awarding punitive damages, which are characteristic of common law systems, deserves special attention.9 This institution varies considerably between the various states that make up this system, but it is of particular importance for the US system. It should be emphasised, however, that the practice of punitive damages in the US varies considerably from state to state.10 Moreover, the legal nature of punitive damages varies.11 Undoubtedly, the punitive nature of these damages is crucial; however, it would be a mistake to reduce them to this function only. This is because they often also have a compensatory function, especially in terms of legal aid and legal costs; in the US, the latter reach high amounts and are borne by the successful party.12 The issue of punitive damages was the subject of a decision by the Polish Supreme Court in the case of Cimoszewicz-Harlan v. Wprost concerning the recognition of a US court judgment awarding damages for violation of personal rights by a press publication.13 The facts of the case concerned articles published by the defendant, a weekly newspaper (Polish newspaper published in Polish in Poland, however available also in the US, where lots of Polish immigrants live), alleging serious tax and financial abuses in Poland and the US by the applicants, who reside in the US. The US court, finding that the plaintiffs’ honour (defamation) had been violated in the case, awarded the plaintiffs damages of USD 1 million for actual damages and punitive damages of USD 4 million. Following the judgment, the plaintiffs applied for a declaration of enforceability in Poland. Both the district court and the court of appeal refused to enforce the judgment in its entirety, stating its incompatibility

9 I. Adrych-Brzezińska, Punitive damages, czyli o odszkodowaniu karnym w prawie amerykańskim oraz europejskiej debacie na temat funkcji odpowiedzialności odszkodowawczej [Punitive damages in American law and European debate over functions of tort liability], Transformacje Prawa Prywatnego 2020, No. 4, pp. 5–6; M. Requejo Isidro, Punitive damages from a private international law perspective, in: Punitive damages: common Law and civil law perspectives, eds. H. Koziol, V. Wilcox, Wien 2009, pp. 237–239. 10 C. I. Nagy, Recognition and enforcement of US judgments involving punitive damages in continental Europe, Nederlands Internationaal Privaatrecht 2012, vol. 30, No. 1, p. 4; C. Vanleenhove, (above n. 6), p. 18; Sunstein C. R., Hastie R., Payne J. W., Schkade D. A., Viscusi W. K., Punitive damages: how juries decide, Chicago 2002, pp. 211–241. 11 A. J. Sebok, Punitive damages in the United States, in: Punitive damages: common law and civil law perspectives, eds. H. Koziol, V. Wilcox, Wien 2009, pp. 169–179. 12 C. I. Nagy, (above n. 10), pp. 5–6. 13 Order of the Supreme Court of 11 October 2013, I CSK 697/12, Legalis No. 741884.

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with fundamental principles of legal order.14 The appellate court’s decision was subsequently the subject of a cassation appeal. Two main issues emerged in the case. The first issue was the admissibility in the Polish legal system of enforcing foreign judgments that award punitive damages. The second issue was whether a foreign judgment awarding punitive damages in an amount significantly exceeding the amounts awarded in Poland could be enforced and whether enforcing it in full would not violate the fundamental principles of the Polish legal order. In regard to the first problem, the Supreme Court took the view that a judgment of an American court may be enforced to the extent that the damages are compensatory in nature (actual damages, compensatory damages), while it refused to enforce the judgment in the part awarding punitive damages. The Supreme Court took the view that punitive damages are primarily punitive in nature, which make them contrary to the basic principles of Polish compensation law. The Supreme Court emphasised that in terms of Polish civil law, liability for damages is not to punish the perpetrator but to compensate for the damage, which means that the amount of damages is in principle limited to the extent of the damage, which is a guiding principle of Polish civil law. As to whether the principle of full compensation can be regarded as one of the fundamental principles of the Polish legal order, the Supreme Court referred to the constitutional principle of proportionality (Article 31(3) in conjunction with Article 2 of the Polish Constitution).15 The Supreme Court pointed out that the constitutional principle of proportionality also affects the sphere of private law, which means that ‘no provision of private law may be shaped by the legislator in a way that arbitrarily favours the rights and freedoms of a certain category of persons over the rights and freedoms of another category 14 Decision of the Court of Appeal in Warsaw of 26 January 2012, I ACz 2059/11, unpublished; decision of the Regional Court in Warsaw of 12 August 2011, VII Co 300/10, unpublished, and decision of the Court of Appeal in Warsaw of 12 February 2014, I Acz 2463/13, unpublished, issued as a result of the re-examination of the case after the decision of the Supreme Court (cited after M. Syska, Wysokość zasądzonego odszkodowania oraz tzw. punitive damages a klauzula porządku publicznego w postępowaniu o stwierdzenie wykonalności orzeczenia zagranicznego [The amount of damages awarded and punitive damages in terms of the Polish public policy clause in the foreign judgment enforcement proceedings], Przegląd Sądowy 2015, No. 1, p. 48). 15 Konstytucja Rzeczypospolitej Polskiej z dnia 2 kwietnia 1997 r. [The Constitution of the Republic of Poland of 2 April 1997], J. of L. 1997, No. 78, item 483 as amended. Article 2. The Republic of Poland shall be a democratic state ruled by law and implementing the principles of social justice. Article 31(3). Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.

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Constitutional right to damages in cross-border cases

of subjects without being exposed to the charge of unconstitutionality.’ Thus, it was considered that ‘a monetary payment from the person responsible for the damage in an amount detached from the extent of the damage caused, intended to perform exclusively a repressive and preventive function’ is irreconcilable with the constitutional principle of proportionality, as punishment of the perpetrator of a tort, as well as prevention, is the domain of criminal law. This means that among the fundamental principles of the Polish legal order is the requirement of proportionality of civil law measures against the perpetrator of the damage. Any deviation from the principle that damages serve to compensate for the damage and cannot exceed the extent of the damage is therefore acceptable from the point of view of the Polish legal order only insofar as it does not violate the constitutional principle of proportionality.16 As to the second problem, the Supreme Court held that a judgment awarding excessive damages (even if compensatory in nature) may be enforced only to the extent that it does not violate Polish public policy. The Supreme Court held that the actual damages awarded by the US court corresponded to the Polish institution of monetary compensation for the harm suffered, so the damages’ legal nature did not raise any doubts from the point of view of the Polish legal order. However, reservations arose in regard to the amount of the awarded damages, as it was deemed that the declaration of enforceability of the judgment to the extent of the excessive amount was incompatible with Polish public policy due to the amount. It was held that the appellate court should determine to what extent the enforceability of the judgment would be permissible. Thus, the Supreme Court allowed the possibility of a partial declaration of enforceability of a foreign judgment in respect of only one claim if its subject matter was divisible.17 In the opinion of the Supreme Court, when attempting to indicate the amount on which a partial declaration of enforceability may be made, it is necessary to take into account the totality of the circumstances of the case and the degree of connection between the facts of the case and the place of possible enforcement of

16 Furthermore, the Supreme Court pointed out that the declaration of enforceability of the judgment in question is also irreconcilable with the constitutional principle of freedom of expression (Article 54(1) of the Constitution) and with the constitutional principle of economic freedom in relation to the respondent editorial office (Article 20 of the Constitution), since in its opinion, ‘the enforcement of the punitive damages awarded to the participants in the proceedings, which constitute a disproportionate financial sanction, could undermine the economic existence of the publisher and lead to a limitation of the role of the mass media in a democratic society’. 17 More extensively P. Grzegorczyk, Sprzeczność z podstawowymi zasadami porządku prawnego (art. 1146 § 1 pkt 7 KPC), jako przyczyna częściowego zezwolenia na wykonanie orzeczenia sądu państwa obcego [Contradiction with the fundamental principle of public order (Art. 1146 § 1.7 of the Code of Civil Procedure) as a reason for partial permission to enforce a verdict of a foreign court], Monitor Prawniczy 2014, No. 8, Legalis/el.

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the judgment, because ‘the stronger the connection between the facts of the case and the domestic legal order, the more intense the influence of the public policy clause on the assessment of the acceptability of the effects of the foreign judgment’. In the present case the link with the Polish legal area was so strong that ‘the level of sums awarded by Polish courts in similar cases cannot be indifferent, since it is an expression of how the basic principles of legal order whose application is at stake are understood in the Polish legal system’. However, in the opinion of the Supreme Court, ‘the reference to the level of sums awarded by Polish courts in similar cases cannot, however, be understood to mean that the declaration of enforceability of an American judgment awarding damages ‘for proven damages’ can only be made in the part corresponding to the maximum amount that could be awarded to the plaintiff in the same case by a Polish court.’ Ultimately, after the case was remitted back to the Court of Appeals, an amount of USD 50,000 was declared as enforceable. The Court of Appeal, relying on the guidelines of the Supreme Court, found that this amount corresponded to Polish practice in similar cases. However, one has to agree with the opinions expressed in the Polish doctrine that this is a grossly low sum, taking into account, for example, the costs of the proceedings before the American and Polish courts.18

4.

Opinions in the Polish literature

The ruling in question raises a number of important issues, so it is not surprising that it has been widely discussed in the Polish doctrine. Favourable opinions19 in the literature pointed to the accuracy of the ruling in regard to the interpretation of the constitutional principle of proportionality20 and also in regard to the possibility of avoiding a potential threat to forum shopping, which could be caused by the abuse of jurisdiction of US courts in order to obtain rulings awarding very high damages, which could then be enforced in Poland.21 The appropriateness of the solution allowing for a partial declaration of enforceability of a judgment has also

18 M. Syska, (above n. 14), p. 52; M. Zachariasiewicz, (above n. 4), p. 234. 19 M. Orecki, Glosa do postanowienia SN z dnia 11 października 2013 r., I CSK 697/12 [Comment on the decision of the Supreme Court of October 11, 2013, I CSK 697/12], Orzecznictwo Sądów Polskich 2014, No. 9; S. Sołtysiński, Ważny wyrok w sprawach stwierdzenia wykonalności części zagranicznego orzeczenia sądowego oraz pojęcia klauzuli porządku publicznego Glosa do wyroku Sądu Najwyższego z 11 października 2013 r., I CSK 697/12 [The fundamental judgment in matters for the enforcement of a part of a foreign judgment and the concept of the public policy clause: a gloss to the Supreme Court Judgment of October 11, 2013], Polski Proces Cywilny 2014, No. 3. 20 S. Sołtysiński, (above n. 19), pp. 417–418. 21 M. Orecki, (above n. 19), pp. 1214–1215; S. Sołtysiński, (above n. 19), pp. 419–420.

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been recognised, as from the point of view of the interests of the injured party, as a better solution than if the entire judgment were to be declared unenforceable (which is how it was originally decided by the courts of first and second instance).22 Nevertheless, there were also criticisms.23 It was argued that it was a mistake to almost automatically regard punitive damages as contrary to the fundamental principles of Polish public policy. It was pointed out that punitive damages do not only have a repressive role: they can also have a preventive and even partially compensatory character. An assessment of the compatibility of punitive damages with the Polish legal order should therefore be made, taking into account all the circumstances of the factual situation and, above all, the nature of damages in a particular case.24 Moreover, it has been pointed out that the principle of restitution cannot be considered fundamental, as it is not of an absolute nature. That is to say, there are situations in Polish civil law in which a sum of the compensatory type is to a significant extent detached from the compensatory function.25 With this in mind, it is emphasised that to regard punitive damages as contrary to the Polish ordre public is an overly radical and formalistic conclusion.26 At this point, however, it should be emphasised that the position of the Polish Supreme Court is not ‘black and white’ as the critics suggest, as the court did not ignore other functions of punitive damages and expressed its readiness to declare them enforceable in the compensatory part, which, however, it did not find in the case in question.27 Criticism also referred to the adoption of the possibility of a partial declaration of enforceability of foreign court judgments and the adjustment of the size of damages to Polish realities. It was argued that by doing so, the court was performing a substantive review of the judgment (révision au fond) in terms of assessing the extent of the damage and the amount of damages awarded. When refusing to declare the enforceability of a certain amount of compensation, the court had to

22 M. Orecki, (above n. 19), p. 1215. 23 M. Syska, (above n. 14); I. Adrych-Brzezińska, Klauzula porządku publicznego a stwierdzenie wykonalności orzeczeń zasądzających punitive damages w wybranych krajach europejskich [Public order clause and confirmation of enforceability of foreign judgments ordering punitive damages in selected European countries], Przegląd Sądowy 2019, No. 10, p. 61 et seq. 24 M. Syska, (above n. 14), p., 57; I. Adrych-Brzezińska (above n. 23), p. 62. 25 I. Adrych-Brzezińska, (above n. 23), p. 60; M. Syska, (above n. 14), pp. 53–56. 26 I. Adrych-Brzezińska, (above n. 23), p. 62. 27 In fact, in the reasons for judgment the court points out that ‘punitive damages awarded by US courts may to a certain extent also constitute compensation for the harm suffered by the injured party, there is no basis in the case for concluding that the court which issued the judgment submitted was guided by considerations other than the motive of punishment and prevention when awarding punitive damages. In particular, neither from the wording of that judgment nor from the other documents submitted does it appear that any part of the amount of punitive damages awarded represents payment of the plaintiffs’ legal costs.’

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reconstruct the amount of the damage and then compare it with the compensation awarded, which means a de facto substantive assessment of the judgment. Thus, it has been argued in the literature that this may lead in practice to a ‘measure of foreign damages’28 and that such an approach is undoubtedly unfavourable from the point of view of international legal transactions.29 On the other hand, however, some authors have stressed that the threat of révision au fond is only apparent.30 Criticism also arose in regard to the criteria indicated by the Supreme Court, according to which the amount of compensation that is acceptable from the point of view of Polish public policy should be assessed. The point of reference for assessing the amount of damages was to be the amount of sums awarded in similar cases in Polish jurisprudence. It is rightly argued in the literature that such a solution leads to an unjustified absolutisation of national law and de facto entails the introduction of a kind of ‘conflict of laws metanorm’ that prescribes the application of Polish provisions on the issue of mitigation of damages. It also introduces the risk of depriving injured persons of full compensation. It was therefore proposed that if it is accepted that a review of the amount of compensation is permissible, it should take place not according to the realities of the place of residence of the person responsible for the damage; rather, it should take into account the realities of the place of residence of the injured person, which is usually abroad.31 In addition, it was also pointed out that the differences in the legal culture of common law countries should be respected and that the amount of damages awarded in a foreign judgment best corresponds to the claimant’s claim, assuming that it has been determined with respect to the applicable procedural and substantive law of the country concerned. Indeed, the foreign judgment was made in a specific legal, economic and social situation, which should not be ignored.32 In addition, the issue of the amount of compensation awarded in similar cases also sometimes arises in cases in which the Polish court adjudicates on the basis of foreign law, referring at the same time to the function of compensation, which is to take into account the realities of the injured party’s country of residence, so that the compensatory function of the law of compensation can be more fully applied. An example of such a case is the one concluded in the judgment of the Supreme Court of 14 February 2008 (II CSK 536/07),33 in which the injured party in a traffic accident

28 29 30 31 32 33

M. Syska, (above n. 14), pp. 58–59; I. Adrych-Brzezińska, (above n. 23), p. 62. M. Syska, (above n. 14), p. 64. M. Orecki, (above n. 19), p. 1216; P. Grzegorczyk, (above n. 17), p. 417. M. Syska, (above n. 14), p. 60. I. Adrych-Brzezińska, (above n. 23), pp. 61–62. Supreme Court judgment of 14 February 2008, II CSK 536/07, Legalis no. 156384. See case comment by M. Wałachowska, Ustalenie wysokości zadośćuczynienia pieniężnego w razie uszkodzenia ciała lub wywołania rozstroju zdrowia. Glosa do wyroku z dnia 14 lutego 2008 r. (II CSK 536/07) [Estab-

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that took place in Poland was a German citizen with a domicile in Germany. In this factual situation, the Supreme Court rightly pointed out that the amount of compensation depends primarily on the extent of the harm suffered; nevertheless, referring to similar cases (also with a foreign element) is justified as long as this criterion is not the main determinant of the measure of compensation. Rather, the totality of the circumstances of the case should be taken into account. However, since the sum is to be ‘appropriate’ for the individual victim, the circumstances under which the victim suffered the damage, the consequences of the damage and – in cross-border cases – in which country the damage is to be quantified (unless, of course, the law applicable to the case provides for limits on compensation: damage caps) cannot be completely disregarded. Indirectly, therefore, the fact of which country the injured party resides in may have an impact on the amount of the award, although this is not a question free of doubt and definitively settled in Polish jurisprudence.34 Therefore, all the more so in cross-border cases, both objective and subjective criteria should be taken into account, as well as possible specific regulations of the law applicable to the issue in question. In extreme cases, courts do not apply foreign law as being contrary to the public policy of the court due to the fact that it does not grant certain forms of compensation.35

lishing the amount of compensation in personal injury cases. Case comment], Przegląd Sądowy 2011, No. 4, pp. 131–138. 34 M. Walachowska, (above n. 33), pp. 136–138. 35 This approach is sometimes taken by the courts in Italy (see Cass. Of 22 August 2013, No. 19405 – cited by P. Franzina, The application of the Rome I and Rome II Regulations in Italy, in: Rome I and Rome II in practice, ed. E. Guinchard, Intersentia, Cambridge 2020, p. 333. The court, assuming that the Austrian law that was applicable for claims arising from a traffic accident, ruled that Austrian law could not be applied, as it entitled closest family members of a fatal victim of the accident only to compensation of pecuniary damages. As the Italian law protects also the non-pecuniary interests of family members of the victim, the foreign law excluding such compensation must be deemed as contrary to the public policy of Italy). Similarly, in a ruling in Poland, the Court of Appeal in Poland held (judgment of 7 February 2014, I ACa 660/12) that the German law applicable in the case, as not providing for compensation for the death of a loved one at the time, was contrary to the fundamental principles of the Polish legal order and could not be applied. See M. Czepelak, in: Międzynarodowe prawo zobowiązań Unii Europejskiej [International law of obligations of the European Union], Warszawa 2012, p. 461.

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5.

Decision of the Polish Supreme Court compared with the case law of other European courts

The literature points to the different approaches of the various European jurisdictions to the problem at hand,36 which is worth outlining briefly. An example of the most conservative attitude towards punitive damages is the German system, as the Supreme Court there, in a 1992 ruling, dividing punitive damages and proven damages, stated that only the latter could be enforced. Instead, the court rejected punitive damages as incompatible with fundamental principles of public policy.37 A similar attitude characterised Italian jurisprudence, where in Parrot v. Fimez S.p.A. 2007, a judgment awarding punitive damages was refused enforceability, treating the institution in its entirety as contrary to public policy.38 The courts emphasise that the function of the law of compensation cannot be to punish the debtor but to restore the creditor to the state of affairs prior to the event. In other words, compensation is subject to the damage, and nothing more.39 On the other hand, in a 2016 judgment of the Italian Supreme Court,40 the panel asked the full court to decide the issue again, taking into account the evolution of Italian law and jurisprudence and the very understanding of the public order clause. As a consequence, the Supreme Court (Corte di Cassazione, judgment of the Chambers

36 M. Orecki, (above n. 19), p. 1213; C.I. Nagy, (above n. 10), pp. 7–8; C. Vanleenhove, The current European perspective on the exequatur of U.S. punitive damages: opening the gate but keeping a guard, Polish Yearbook of International Law 2015, vol. 35, pp. 241–261. 37 Judgment of the Bundesgerichtshof of 4 June 1992 – IX ZR 149/91, for a detailed discussion, see C. Vanleenhove, Punitive damages (above n. 6), pp. 97–109; P. Hay, The recognition and enforcement of American money-judgments in Germany – The 1992 decision of the German Supreme Court, The American Journal of Comparative Law 1992, vol. 40, No. 3, pp. 729–750. The court indicated, however, that it is possible to recognise that part which contains a compensatory element (e. g., compensation for non-material damage). The doctrine has largely endorsed this ruling, referring to the compensatory function of the law of damages, which is one of the fundamental principles of private law in general. See also A. Stadler, Recognition of punitive damages in Germany and Switzerland, in: Punitive damages and private international law: state of the art and future developments, eds. S. Bariatti, L. Fumagalli, Z. Crespi Reghizzi, Milano 2019, pp. 136, 139–140. As the author points out, however, it is now noted in the doctrine that the law of damages also has other (ancillary) functions (especially in defamation cases or cases concerning infringement of intellectual property or competition law), so perhaps the approach of the courts should now be more flexible (pp. 143–145). The author also notes a similar evolution of views when it comes to Swiss law (pp. 152–153). 38 For a detailed discussion see C. Vanleenhove, (above n. 6), pp. 89–97; F. Quarta, Recognition and enforcement of U.S. punitive damages awards in continental Europe: the Italian Supreme Court’s Veto, Hastings International and Comparative Law Review 2008, vol. 31, No. 2, pp. 753–782. 39 P. Franzina, (above n. 35), p. 334. 40 Cass., 16th May 2016, no 9978, DeJure, cited by P. Franzina, (above n. 35), pp. 334–335.

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Constitutional right to damages in cross-border cases

joined) has set a new direction in the approach to punitive damages.41 The Supreme Court pointed out that in Italian law, although the primary function of the law of damages is compensation, it also has other functions, such as preventive ones. This means that the recognition of a foreign judgment awarding punitive damages (and also, it seems, the possibility of applying foreign law that provides for punitive damages) is not, as such, contrary to fundamental principles of public policy. Noncompensatory amounts are admissible in particular in those cases where not only are they allowed by the applicable law, but a certain balance is struck between the amount awarded and the degree of the breach.42 In contrast, the Spanish,43 Swiss44 and French45 courts approach the problem differently, stating that punitive damages are not, in principle, contrary to the public policy of the forum state. However, these courts recognise that a contradiction may arise due to the disproportion between the punitive damages awarded and the damage suffered by the claimants (the amount of damages is therefore assessed from a public policy perspective).46 A progressive approach is also characterised by the cited 2017 decision of the Italian Supreme Court.47 Comparing foreign case law with the Polish one, it can be concluded that the Polish ruling places itself rather in the conservative group of judgments.48 The court cited foreign rulings several times 41 Cass. (SU), 5 July 2017, No 16601, RDIPP 2017, 1049, cited by P. Franzina, (above n. 35), p. 335. 42 See also G. Ponzanelli, Punitive damages and the functions of reparation: some preliminary remarks after the decision of the Italian Supreme Courts, Joint Divisions, 5 July 2017, No. 16601 in: Punitive damages and private international law: state of the art and future developments, eds. S. Bariatti, L. Fumagalli, Z. Crespi Reghizzi, Milano 2019, p. 33 et seq. 43 Case of Miller Import Corp. v. Alabastres Alfredo, S.L., Tribunal Supremo, 13 November 2001 (Exequátur No. 2039/1999); for a detailed discussion, see C. Vanleenhove, (above n. 6), pp. 139–143; S.R. Jablonski, Translation and comment: enforcing U.S. punitive damages awards in foreign courts – a recent case in the Supreme Court of Spain, Journal of Law and Commerce 2004–2005, vol. 24, No. 2, pp. 225–244. 44 For the judgment of the Basel Court of Appeal in S.F. Inc. v. T.C.S. AG S.F. Inc. v. T.C.S. AG, see C.I. Nagy, (above n. 10), p. 8. 45 Judgment in Schlenzka & Langhorne v. Fountaine Pajot S.A., Cass. Civ. 1st, Dec. 1, 2010, no. 0913303, Publié au bulletin Bulletin 2010, I, n° 248; for a detailed discussion, see C. Vanleenhove, Punitive damages (above n. 6), pp. 120–139; B. West Janke, F.-X. Licari, Enforcing punitive damage awards in France after Fountaine Pajot, The American Journal of Comparative Law, vol. 60, No. 3, pp. 775–804. 46 F.-X. Lincari, La compatibilité de principe des punitive damages avec l’ordre public international: une décision en trompe-l’oeil de la Cour de cassation? [The formal compatibility of punitive damages with international public policy: a deceptive decision by the Cour de cassation], Recueil Dalloz 2011 p. 423, Dalloz/el. 47 Judgment Cassazione Civile, Sezioni Unite, sentenza of 5 July 2017 No. 16601; I. Adrych-Brzezińska, (above n. 23), pp. 56–58. 48 The courts in the Netherlands also consider punitive damages as contrary to public policy (the applicable law was Israeli law) – see judgment of the Utrecht court of 24 October 2012,

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in its reasoning; however, it based its reasoning mainly on the German judgment.49 It is pointed out in the literature that on the issue of the disproportionality of the amount of damages, the court was probably inspired by the French solution. However, the Cour de Cassation examined the disproportionality of the punitive damages and not the damages for proven damages and did not indicate the criteria for the mitigation of its amount.50

6.

Further case law of the Polish courts

The Cimoszewicz-Harlan v. Wprost ruling had an impact on case law in Poland. However, it can be said that, over time, the Supreme Court has somewhat softened its stance on the enforcement of judgments awarding compensation amounts significantly exceeding those awarded in Poland. For example, in its decision of 8 December 2016,51 the Supreme Court declared enforceable a judgment awarding damages of more than USD 45 million for damages caused by breach of the fiduciary duties of the hub of the body of a legal entity and by fraud. It should be added that lower courts, referring to the judgment in Cimoszewicz-Harlan v. Wprost, refused to enforce the judgment in its full amount due to the constitutional principle of proportionality, the compensatory function of damages and the risk of privileging the position of foreign creditors satisfying their claims without the jurisdiction of Polish courts. In the decision in question, the Supreme Court stated that there are no grounds for interference of the public policy clause in a case where the judgment concerns the recognition of compensation for an amount significantly higher compared to Polish practice. The Supreme Court held that the refusal to declare a judgment enforceable due to the impossibility of reconciling the amount of damages awarded with the fundamental principles of public policy (the principle of proportionality expressed in the Constitution of the Republic of Poland) applies primarily to judgments awarding compensation for non-pecuniary damage (as was the case in Cimoszewicz-Harlan v. Wprost). At the same time, it did not exclude the application of the clause in the case where the compensation awarded by the foreign judgment grossly deviates from the extent of the pecuniary damage or was awarded despite no damage having been caused.

ECLI:NL:RBUTR:2012:BY2102, cited by L.M. van Bochove, (above n. 35), p. 427. A similar position is taken by the doctrine in Slovenia – see J. Kramberger, A. Galic, (above n. 35), p. 547. 49 M. Syska, (above n. 14), p. 53. 50 C. Vanleenhove, (above n. 6), p. 133. 51 Order of the Supreme Court of 8 December 2016, III CSK 21/16, Legalis No. 1717140.

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Constitutional right to damages in cross-border cases

Similarly, in its order of 19 December 2018,52 the Supreme Court, rejecting the argumentation of the applicants who, relying on the Cimoszewicz-Harlan v. Wprost judgment, demanded a reduction in the amount of damages awarded by the foreign judgment, stated that the mere fact that the amounts awarded are significantly higher than the average earnings in Poland does not mean that the declaration of enforceability of such a judgment violates the fundamental principles of Polish public policy. On the other hand, in the case on the basis of which the decision of the Regional Court in Warsaw of 15 June 2020 was made,53 the court declared enforceability of an American court judgment awarding the defendant television company over USD 3 million as damages for infringement of copyrights to television broadcasts. Making a comparison with an analogous institution found in Polish law, the court found no violation of the fundamental principles of public policy in the declaration of enforceability of a judgment awarding damages under the US Copyright Act, even though the participant argued that the awarded damages were contrary to the principle of the restitutionary nature of liability for damages as being detached from the amount of damage.

7.

Conclusions

Undoubtedly, the ruling of the Polish Supreme Court in Cimoszewicz-Harlan v. Wprost is an example of a conservative approach comparing to rulings in other European countries. Such a stance should be considered incompatible with the latest developments in foreign jurisprudence and doctrine, where one can notice a tendency towards a more lenient treatment of US judgments that award punitive damages.54 The Polish Supreme Court, however, by declaring punitive damages to be contrary to Polish public policy, has expressed a willingness to recognise its compensatory part, which should be approved. However, it is difficult to grasp why the Supreme Court so hastily concluded that punitive damages did not contain compensatory elements in the present case. One can only hope that the Polish courts will be more discerning in this respect in the future. There are also doubts about the procedure carried out by the Supreme Court in the context of the mitigation of damages for proven damage, which in the case in question led de facto to its incomplete compensation. One may even conclude that the Supreme Court, wishing to protect Polish public order, disregarded the unquestionable principle of full compensation for the damage suffered. One should subscribe to the view assuming

52 Order of the Supreme Court of 19 December 2018, ref. V CSK 513/17, Legalis No. 1860670. 53 Decision of the Regional Court in Warsaw of 15 June 2020, ref. XX GCo 249/18, Legalis No. 2421166. 54 I. Adrych-Brzezińska, (above n. 23), p. 64.

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that compensation for proven damage should be exercised in full, and punitive damages should be assessed from the prism of the functions performed and from the point of view of proportionality.55 However, analysing the jurisprudence following the Cimoszewicz-Harlan v. Wprost case, it should be recognised that the courts are no longer so strict on the issue of refusal to enforce foreign judgments and are ready to declare enforceable amounts of damages that significantly differ from those adjudged in Poland, which, from the point of view of the protection of injured parties, should be approved. This is also confirmed by the approach of the EU legislature, which recognised especially in the wording of the ‘Rome II’ Regulation (point 32 of the preamble) that non-compensatory amounts, especially if they are very high, may (and therefore do not have to) be considered contrary to the public policy of the forum.56 In other words, exemplary or punitive damages are not, as such, contrary to EU public policy,57 so it is for the forum of a Member State to decide in casu whether, in a particular case, the recognition of a judgment awarding such amounts (or the application of a foreign law allowing them) would be contrary to its public policy.58 The question of the amount of compensation (or its recognition) is therefore left to national law.59 It seems, therefore, that in several Member States, the public policy clause is beginning to be applied, as it were, not ‘against’ the benefit as such, but rather, the courts are focusing on the amount awarded60 and thus explicitly invoke the constitutional principle of proportionality.

References Legal acts Konstytucja Rzeczypospolitej Polskiej z dnia 2 kwietnia 1997 r. [The Constitution of the Republic of Poland of 2 April 1997], J. of L. 1997, No. 78, item 483 as amended.

55 C. Vanleenhove, (above n. 6), p. 214 et seq.; C.I. Nagy, (above n. 10), p. 4. 56 See also M. Bogdan, M. Hellner, in: European commentaries on private international law ECPIL. Commentary. Volume III. Rome II Regulation, eds. U. Magnus, P. Mankowski, Köln 2019, p. 292. 57 See also W. Wurmnest, in: Punitive damages and private international law: state of the art and future developments, eds. S. Bariatti, L. Fumagalli, Z. Crespi Reghizzi, Milano 2019, p. 267. 58 See also M. Czepelak, (above n. 35), p. 472. 59 J. Basedow, EU private law. Anatomy of a growing legal order, Cambridge 2021, pp. 349–350. 60 See also L. de Lima Pinheiro, (above n. 56), pp. 670–671; G. Biagioni, Recognition of punitive damages in Italy, in: Punitive damages and private international law: state of the art and future developments, eds. S. Bariatti, L. Fumagalli, Z. Crespi Reghizzi, Milano 2019, pp. 207, 229– 230.

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Cases Case of Miller Import Corp. v. Alabastres Alfredo, S.L., Tribunal Supremo, 13 November 2001 (Exequátur No. 2039/1999). Judgment of the Basel Court of Appeal in S.F. Inc. v. T.C.S. AG S.F. Inc. v. T.C.S. AG. Judgment in Schlenzka & Langhorne v. Fountaine Pajot S.A., Cass. Civ. 1st, Dec. 1, 2010, No. 09–13303, Publié au bulletin Bulletin 2010, I, n° 248. Judgment Cassazione Civile, Sezioni Unite, sentenza of 5 July 2017 n° 16601. Judgment of the Bundesgerichtshof of 4 June 1992 – IX ZR 149/91. Judgment of the Supreme Court of of 14 February 2008, II CSK 536/07, Legalis No. 156384. Judgment of the Supreme Court of 11 June 2008, V CSK 8/08. Decision of the Regional Court in Warsaw of 12 August 2011, VII Co 300/10, unpublished, Decision of the Court of Appeal in Warsaw of 12 February 2014, I Acz 2463/13, unpublished. Decision of the Court of Appeal in Warsaw of 26 January 2012, I ACz 2059/11, unpublished. Judgment of the Utrecht court of 24 October 2012, ECLI:NL:RBUTR:2012:BY2102. Order of the Supreme Court of 11 October 2013, I CSK 697/12, Legalis No. 741884. Order of the Supreme Court of 11 October 2013, I CSK 697/12, Legalis No. 741884. Order of the Supreme Court of 8 December 2016, III CSK 21/16, Legalis No. 1717140. Order of the Supreme Court of 19 December 2018, V CSK 513/17, Legalis No. 1860670. Decision of the Regional Court in Warsaw of 15 June 2020, XX GCo 249/18, Legalis No. 2421166.

Literature Adrych-Brzezińska I., Klauzula porządku publicznego a stwierdzenie wykonalności orzeczeń zasądzających punitive damages w wybranych krajach europejskich [Public order clause and confirmation of enforceability of foreign judgments ordering punitive damages in selected European countries], Przegląd Sądowy 2019, No. 10. Adrych-Brzezińska I., Punitive damages, czyli o odszkodowaniu karnym w prawie amerykańskim oraz europejskiej debacie na temat funkcji odpowiedzialności odszkodowawczej [Punitive damages in American law and European debate over functions of tort liability], Transformacje Prawa Prywatnego 2020, No. 4. Basedow J., EU private law. Anatomy of a growing legal order, Cambridge 2021. Biagioni G., Recognition of punitive damages in Italy, in: Punitive damages and private international law: state of the art and future developments, eds. S. Bariatti, L. Fumagalli, Z. Crespi Reghizzi, Milano 2019. Blom J., Public policy in private international law and its evolution in time, Netherlands International Law Review 2003, Vol. 50, No. 3. Bogdan M., Hellner M., in: European commentaries on private international law ECPIL. Commentary. Volume III. Rome II Regulation, eds. U. Magnus, P. Mankowski, Köln 2019.

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Boskovic O., Recognition and enforcement of punitive damages in France, in: Punitive damages and private international law: state of the art and future developments, eds. S. Bariatti, L. Fumagalli, Z. Crespi Reghizzi, Milano 2019. Franzina P., The application of the Rome I and Rome II Regulations in Italy, in: Rome I and Rome II in practice, ed. E. Guinchard, Intersentia, Cambridge 2020. Grzegorczyk P., Sprzeczność z podstawowymi zasadami porządku prawnego (art. 1146 § 1 pkt 7 KPC), jako przyczyna częściowego zezwolenia na wykonanie orzeczenia sądu państwa obcego [Contradiction with the fundamental principle of public order (Art. 1146 § 1.7 of the Code of Civil Procedure) as a reason for partial permission to enforce a verdict of a foreign court], Monitor Prawniczy 2014, No. 8, Legalis/el. Hay P., The recognition and enforcement of American money-judgments in Germany – The 1992 decision of the German Supreme Court, The American Journal of Comparative Law 1992, vol. 40, No. 3. Jablonski S.R., Translation and comment: enforcing U.S. punitive damages awards in foreign courts – a recent case in the Supreme Court of Spain, Journal of Law and Commerce 2004–2005, vol. 24, No. 2. Lincari F.-X., La compatibilité de principe des punitive damages avec l’ordre public international: une décision en trompe-l’oeil de la Cour de cassation? [The formal compatibility of punitive damages with international public policy: a deceptive decision by the Cour de cassation], Recueil Dalloz 2011 p. 423, Dalloz/el. Nagy C.I., Recognition and enforcement of US judgments involving punitive damages in continental Europe, Nederlands Internationaal Privaatrecht 2012, vol. 30, No. 1. Nowicka A., in: Prawo prywatne międzynarodowe. Komentarz [Private International Law. Commentary], ed. J. Poczobut, Warszawa 2017. Orecki M., Glosa do postanowienia SN z dnia 11 października 2013 r., I CSK 697/12 [Comment on the decision of the Supreme Court of October 11, 2013, I CSK 697/12], Orzecznictwo Sądów Polskich 2014, No. 9. Ponzanelli G., Punitive damages and the functions of reparation: some preliminary remarks after the decision of the Italian Supreme Courts, Joint Divisions, 5 July 2017, No. 16601 in: Punitive damages and private international law: state of the art and future developments, eds. S. Bariatti, L. Fumagalli, Z. Crespi Reghizzi, Milano 2019. Quarta F., Recognition and enforcement of U.S. punitive damages awards in continental Europe: the Italian Supreme Court’s Veto, Hastings International and Comparative Law Review 2008, vol. 31, No. 2. Requejo Isidro M., Punitive damages from a private international law perspective, in: Punitive damages: common Law and civil law perspectives, eds. H. Koziol, V. Wilcox, Wien 2009. Sebok A.J., Punitive damages in the United States, in: Punitive damages: common law and civil law perspectives, eds. H. Koziol, V. Wilcox, Wien 2009. Sołtysiński S., Ważny wyrok w sprawach stwierdzenia wykonalności części zagranicznego orzeczenia sądowego oraz pojęcia klauzuli porządku publicznego Glosa do wyroku Sądu Najwyższego z 11 października 2013 r., I CSK 697/12 [The fundamental judgment in

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matters for the enforcement of a part of a foreign judgment and the concept of the public policy clause: a gloss to the Supreme Court Judgment of October 11, 2013], Polski Proces Cywilny 2014, No. 3. Stadler A., Recognition of punitive damages in Germany and Switzerland, in: Punitive damages and private international law: state of the art and future developments, eds. S. Bariatti, L. Fumagalli, Z. Crespi Reghizzi, Milano 2019. Sunstein C. R., Hastie R., Payne J. W., Schkade D. A., Viscusi W. K., Punitive damages: how juries decide, Chicago 2002. Syska M., Wysokość zasądzonego odszkodowania oraz tzw. punitive damages a klauzula porządku publicznego w postępowaniu o stwierdzenie wykonalności orzeczenia zagranicznego [The amount of damages awarded and punitive damages in terms of the Polish public policy clause in the foreign judgment enforcement proceedings], Przegląd Sądowy 2015, No. 1. Szpunar A., Ustalenie odszkodowania w prawie cywilnym [Determination of compensation in civil law], Warszawa 1975. Vanleenhove C., Punitive damages in private international law: lessons for the European Union, Cambridge-Antwerp-Portland 2016. Vanleenhove C., The current European perspective on the exequatur of U.S. punitive damages: opening the gate but keeping a guard, Polish Yearbook of International Law 2015, vol. 35. Wałachowska M., in: Kodeks cywilny. Komentarz. Tom III. Zobowiązania. Część ogólna (art. 353 – 534) [Civil Code. Commentary. Volume III. Obligations. General part (art. 353–534)], eds. M. Fras, M. Habdas, Warszawa 2018. Wałachowska M., Ustalenie wysokości zadośćuczynienia pieniężnego w razie uszkodzenia ciała lub wywołania rozstroju zdrowia. Glosa do wyroku z dnia 14 lutego 2008 r. (II CSK 536/07) [Establishing the amount of compensation in personal injury cases. Case comment], Przegląd Sądowy 2011, No. 4. Warkałło W., Odpowiedzialność odszkodowawcza. Funkcje, rodzaje granice [Civil liability for damages. Functions, types, boundaries], Warszawa 1972. West Janke B., Licari F.-X., Enforcing punitive damage awards in France after Fountaine Pajot, The American Journal of Comparative Law, vol. 60, No. 3. Wurmnest W., in: Punitive damages and private international law: state of the art and future developments, eds. S. Bariatti, L. Fumagalli, Z. Crespi Reghizzi, Milano 2019. Zachariasiewicz M., Klauzula porządku publicznego a uznawanie zagranicznych orzeczeń, których przedmiotem jest uznanie wyroku lub stwierdzenie jego wykonalności [The public policy exception and recognition of judgments on judgments], Problemy Prawa Prywatnego Międzynarodowego 2019, vol. 24. Zachariasiewicz M., Klauzula porządku publicznego jako instrument ochrony materialnoprawnych interesów i wartości fori [Public policy clause as an instrument of protection of material-legal interests and the fori value], Warszawa 2018.

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Marek Słupczewski, Wojciech Morawski

The use of reasoning per analogiam in tax law in light of constitutional regulations

1.

Introduction1

Reasoning per analogiam, also known as reasoning a simile or inference from similarity, finds common use in many areas of social life.2 As Sherwin (following Margolis) points out, all human ways of reasoning derive or are analogous from nature.3 As civilisation has developed, analogy has permeated many areas of life, including tax law. Each time, however, the fundamental conditions of the field in which the use of analogy is referred to significantly modify the rules shaping its ultimate and permissible dimension. Sometimes, restrictions on its use may arise from domain-wide rules, customs, and acts of statutory law. Such a situation can be seen very clearly in tax law, where in most cases worldwide there is a reference to the primacy of constitutional regulations (if such an act exists in the legal order of a given state) and statutory regulations. The issue that is the subject of this article is worth attention also due to the fact that it is a carrier of controversies, now already passing, both as regards the scope and the very admissibility of its application in tax law. While strictly transposing analogy to the ground of constitutional norms, attention should be drawn to the thesis, already common in the doctrine of Polish tax law, that the scope of application of analogy has significantly evolved in the last several dozen years from the prohibition of using analogy to the practically unquestionable possibility of its application in specific cases. This issue is put in a synthetic way by Brzeziński, according to whom, in the last almost 20 to 30 years, the doctrine no longer notes a clear negation of the

1 Research funded by the Narodowe Centrum Nauki [National Science Centre, Poland] as part of the Preludium-17 research project, 2019/33/N/HS5/02514; Zestawienie obszarów dopuszczalności stosowania rozumowania per analogiam w prawie podatkowym polskim oraz wybranych krajów europejskich, [List of areas of admissibility of applying the reasoning per analogy in Polish tax law and in selected European countries]. 2 K. Langenbucher, Argument by analogy in European law, Cambridge Law Journal 1998, vol. 57(3), pp. 481–521, p. 481. 3 E. Sherwin, A defence of analogical reasoning in law, The University of Chicago Law Review 1999, p. 1182.

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possibility of using analogy in tax law.4 It is interesting, however, that the change has occurred with a kind of stagnation of the normative dimension of constitutional provisions, at least in the scope important from the point of view of the analysed issue. For the purposes of the present considerations, the authors consider analogy to be reasoning per analogiam in the sense typical of continental law, inseparably connected with filling gaps in the law (i. e., in particular, analogy iuris and analogy legis and not analogy between precedents known to the common law systems).5 Polish conditions were taken as the main subject of the research, while cases of references to foreign orders were explicitly signalled each time.

2.

Definition of reasoning per analogiam

Reasoning per analogiam has not received a uniform treatment in doctrine and case law. A number of definitions can be distinguished, which ultimately differ only slightly. In fact, there is a fairly high level of consensus in the doctrine on the basic definition of the issue, and a detailed, precise decision on which definition should take precedence is not necessary from the point of view of the present deliberations, although it is worth mentioning at least some of them. According to Weinreb, ‘an analogical argument can be described as reasoning by example: finding the solution to a problem by reference to another similar problem and its solution’.6 As indicated in turn by Tiscornia, analogical reasoning is part of the human cognitive processes that, in this context, are necessary to perform legal actions. It is distinguished from normative reasoning, which contains normative statements as premises and conclusions.7 According to Biegański, ‘in colloquial speech we call an analogy every incomplete similarity, similarity in some respect only’.8 Other commentators on the doctrine point out that analogy can be seen as inferring from the similarity of facts the similarity of their legal consequences.9 We are talking about a situation when 4 B. Brzeziński, Wykładnia prawa podatkowego [Interpretation of tax law], ODDK, Gdańsk 2013, p. 139. 5 The analogy typical of common law can be successfully referred to as ‘precedent’, but in Polish law the analogy legis and iuris predominate as methods of reconstructing the content of legal norms. 6 L. L. Weinreb, Legal reason. The use of analogy in legal argument. Second edition, Cambridge 2016, p. 4. 7 D. Tiscornia, Three meanings of analogical reasoning in law, Law, Computers & Artificial Intelligence, Volume 3, Numbers 2/3, 1994, p. 107. 8 W. Biegański, Wnioskowanie z analogii [Inference from analogy], Wydawnictwo Polskiego Towarzystwa Filozoficznego w Lwowie, TOM III, Lwów 1909, p. 17. 9 A. Rychlewska, M. Hotel, Analogia jako metoda prawnicza [Analogy as a legal method], Kwartalnik Prawo-Społeczeństwo-Ekonomia, 2/2016, p. 33.

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The use of reasoning per analogiam in tax law in light of constitutional regulations

one fact, normalised by law, is so similar to another, not normalised by law, that for the latter it is permissible, possible and acceptable to apply the legal effects of the former.10 According to Nowacki, analogical reasoning involves the application of a certain rule or legal norm to a case that is similar but not regulated by the law.11 Mariański points out, following Brzeziński, that analogy is in fact the creation of legal norms, at least for the purpose of resolving a particular case.12 This is because it means assuming the existence of a legal norm where, in the light of conventional methods of interpreting the law, it does not exist.13 It seems that this definition of analogy deserves to be called the most accurate. Finally, it should be emphasised that difficulties in defining the notion of analogy also occur in foreign legal orders.14

3.

Constitutional conditions for reasoning per analogiam in Polish tax law – systemic background

In the Constitution of the Republic of Poland of 2 April 1997,15 one can successfully find several norms influencing, either directly or less explicitly, the scope of application of analogy in tax law. In order to systematise the considerations, it is worth dividing them into three categories that are appropriate in the context of the current analysis. The first one should include constitutional norms, which objectively (or at least apparently) can be regarded as neutral from the point of view of analogy. In simple terms, norms that cannot be directly included in the other two categories (i. e., norms that justify the use of analogy or norms that limit the scope of analogy should fall into this category). Turning to the discussion of individual constitutional norms, Article 21 of the Polish Constitution first deserves attention; according to Article 21, the Republic of Poland protects property and the right of inheritance, while expropriation is allowed only when it is carried out for public purposes and with just compensation. This norm should definitely be categorised as limiting the scope of application of analogy. Article 84 of the Constitution of the Republic of Poland, located among the other duties of a human being and a citizen, assumes even more momentous significance.

10 Ibid, p. 33. 11 J. Nowacki, Analogia legis, Państwowe Wydawnictwo Naukowe, Warszawa 1966, pp. 9–11. 12 A. Mariański, Rozstrzyganie wątpliwości na korzyść podatnika: Zasada prawa podatkowego [Settling doubts in favour of the taxpayer: A principle of tax law], Wolters Kluwer 2009, p. 215. 13 Ibid, p. 215. 14 Defining analogy also poses difficulties in foreign legal orders. Among others – M. Atienza, Sobre la analogia en el Derecho. Ensayo de analisis de un razonamiento juridico, Madrid, Civitas, 1986, p. 179. 15 J. of L. no. 78, item 483 as amended.

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According to it, everyone is obliged to bear public burdens and benefits, including taxes, as defined by law. It is interesting to note that most other constitutions of European countries do not express explicitly the obligation to ‘maintain the state’ in this way.16 This provision would have to be qualified as justifying the use of analogy in a certain case, but due to the content of the constitutional norms cited further on, this qualification would be illusory. Article 217 of the Constitution of the Republic of Poland, according to which ‘The levying of taxes, other public tributes, the determination of entities, subjects of taxation and tax rates, as well as the principles of granting reliefs and remissions and categories of entities exempted from taxes shall be done by way of a statute’, acquires significance from the perspective of the considerations.17 This article is a supplement to Article 84 of the Constitution of the Republic of Poland and contains an enumeration of the structural elements of a tax that should be regulated by law. What is significant, however, is the circumstance that ‘the purpose of Article 217 was not so much to enumerate the structural elements of a tax that must be determined by law, but to define statutory exclusivity for all essential elements of the tax burden’.18 In practice, there has been a sustained expansion of the statutory matter of substantive tax law that goes well beyond the benchmark derived from Article 217 of the Polish Constitution. As an example, the tax base, conditions of payment, allowances and tax refunds can be pointed out. The justification given is that in the economic sense, these are the most important structural elements of the tax, determining the actual burden of taxation.19 As a consequence, it is assumed that the issues that do not have a significant meaning for the construction of the tax are intended to be regulated in the sub-statutory matter20 and that the scope 16 M. Safjan, L. Bosek, Konstytucja RP. Komentarz do art. 87–243 [Constitution of the Republic of Poland Volume II. Commentary to Articles 87–243], Komentarz do art. 217 Konstytucji RP [Commentary to Article 217 of the Constitution of the Republic of Poland], Warszawa 2016, Legalis, quoted: B. Banaszak, Porównawcze prawo konstytucyjne [Comparative constitutional law], Wolters Kluwer Polska, Warszawa 2012, p. 228 et seq. 17 Article 217 of the Polish Constitution. 18 C. Kosikowski, Finanse publiczne w świetle Konstytucji RP [Public finances in light of the Constitution of the Republic of Poland], Wydawnictwo Sejmowe, Warszawa 2004, p. 205 et seq.; A. Krzywoń, Podatki i inne daniny w Konstytucji [Taxes and other tributes in the Constitution], Vol. II, Wydawnictwo Sejmowe, Warszawa 2011, p. 204, in: M. Safjan, L. Bosek, ed., R.P. Konstytucja. 19 W. Modzelewski, Tworzenie materialnego prawa podatkowego – refleksje konstytucyjne [Creation of substantive tax law – constitutional reflections], in: P. J. Lewkowicz, J. Stankiewicz, Konstytucyjne uwarunkowania tworzenia i stosowania prawa finansowego i podatkowego [Constitutional determinants of the creation and application of financial and tax law], Temida 2, Białystok 2010, p. 89. 20 Cf. judgment of the Constitutional Tribunal of 9 October 2007 in case SK 70/06, OTK-A 2007, No 9, item 103; see also judgments of the Constitutional Tribunal of 16 June 1998 in case U 9/97, OTK

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The use of reasoning per analogiam in tax law in light of constitutional regulations

of application of Article 217 of the Constitution of the Republic of Poland goes far beyond its literal wording. For each time a sub-statutory Act is at the stage of regulating an issue, it should be verified as to whether a given issue does not fall into the category of essentiality in the construction of a tax. Verification should also be done when the issue does not concern the levying of taxes, other public tributes, determination of entities, subjects of taxation and tax rates, as well as principles of granting reliefs and remissions and categories of entities exempt from taxes (i. e., it seemingly does not fall into the literal understanding of the provision of Article 217 of the Constitution of the Republic of Poland). This circumstance remains extremely important, as it imposes an obligation on the adjudicating panel to verify each time the possibility of applying reasoning per analogiam from the point of view of the relevance of the issue for which the adjudicator intended to use analogy in relation to the structural features of the tax. As a consequence, however, it is certain that the potential field for development by reasoning per analogiam is even narrower than a literal interpretation of Article 217 of the Polish Constitution would provide. This provision definitely falls into the category of limitations on the use of analogy. It is on the basis of the constitutional principle in question that the establishment of taxes and the decision of their shape and form have been subjected to statutory regulation and thus to the legislature.21 Thus formulated, the view ultimately outlines the accepted presumption of the impossibility for courts or authorities to shape tax obligations by analogy and demonstrates the rather exceptional and rare possibility of using per analogiam reasoning in tax law. This principle has a very momentous significance in the context of the basic framework for the use of reasoning per analogiam and makes the case that all three authorities (legislative, executive and judicial) are involved in the tax relationship. The use of reasoning per analogiam in tax law obviously deprives or limits the participation of the legislative authority and consequently leads to a certain extent to the assumption of its competences by the judiciary. In the context of the above considerations, an obvious conclusion should be drawn that analogy is fully subject to the limitations arising from Articles 84 and 217 of the Constitution of the Republic of Poland, which means that judicial rulings or decisions of tax authorities may in no case constitutively determine the subjects and objects of taxation, tax rates, the principles of granting reliefs and remissions and the category of entities exempt from taxes. The above principle should be extended to include all other relevant structural features of a particular tax. Therefore, there 1998, No 4, item 51; of 1 September 1998 in case U 1/98, OTK 1998, No 5, item 63 and of 9.2.1999, U 4/98, OTK 1999, No 1, item 4). 21 W. Skrzydło, Konstytucja Rzeczypospolitej Polskiej. Komentarz [Constitution of Polish Republic. Commentary], Ed. VII, art. 217, Kraków 2013, LEX.

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is no contraindication to decide, by analogy, on procedural issues, or to decide to a broader extent on issues outside the content of Article 217 of the Constitution of the Republic of Poland (e. g., on the tax payment deadline). However, the matter ‘regulated’ by analogy should not concern, for example, tax reduction mechanisms in a situation where this circumstance, as in the case of the tax on goods and services, constitutes its essential feature. In order to make the issues complete, it is necessary to turn to the category of constitutional norms that constitute specific incentives or formal orders to use analogy. This is because the judiciary should have a broader competence in a situation where, for example, a statute allows local government units to set the amount of local taxes and charges themselves. This is because the indications provided for in Articles 84 and 217 of the Constitution of the Republic of Poland are somewhat weakened in the context of the content of Article 168 of the Constitution of the Republic of Poland, under which local government units are authorised to establish the amount of local taxes and charges within the scope established by law. By virtue of the provision quoted above, a certain scope of constitutionally permissible possibility to limit the protection of the right to property has been delegated to local self-government units. This provision can be assigned to the liberty category from the point of view of analogy. An indirect normative constitutional basis for the application of per analogiam reasoning in tax law can be seen in the wording of Article 175 of the Constitution of the Republic of Poland, according to which ‘The administration of justice in the Republic of Poland is exercised by the Supreme Court, common courts, administrative courts and military courts’. The power of the courts to apply analogy derives from the supremacy of the Constitution of the Republic of Poland. Consistently, the rationale also lies in the principle of equal treatment in conjunction with the principle of legislative supremacy. For if two similar cases are to be treated in the same way, and if the legislator has laid down a principle for the treatment of one of the cases, it follows that the other case must be treated accordingly.22 The silence of the legislator, on the other hand, unless it concerns the taxability of the legal state in question or other components of the tax relationship mentioned earlier, does not relieve the authorities or the courts of their duty to resolve the case. Rather, these actors must use all possible means to reconstruct the legal norm, and analogy – in the context of unspecified alternatives and with a less certain degree of predictability – appears to be a good solution. Finally, of course, it should be noted that there is no provision in the catalogue of Polish norms prohibiting the use of reasoning per

22 K. Langenbucher, Argument by analogy…, p. 482.

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The use of reasoning per analogiam in tax law in light of constitutional regulations

analogiam in tax law;23 thus, there is no negative regulation from which one should draw conclusions about the inadmissibility of the use of this type of reasoning. The totality of the provisions cited above and their interpretation make up the systemic background conditioning the existence and scope of analogy in Polish tax law. It should also be considered valuable to signal the dimension of the issue in exemplary foreign state orders. Consistently, in German tax law, up until the early 1980s, analogy was not accepted. This circumstance was supported by the argumentation for the constitutionally expressed principle of relevance in criminal matters in the German legal order, resulting from Article 103(2) of the Basic Law of the Federal Republic of Germany, nulla poena sine crime.24 In recent years, however, the German Federal Financial Court has confirmed the admissibility of the use of analogy in tax law, both in favour of and against the taxpayer.25 The law of the Czech Republic also recognises argument from analogy, albeit in a limited way.26 Namely, in the field of tax law, ‘it is not possible to construct by analogy other tax obligations or charges than those established by law. In addition to this, it can be noted that these limitations of analogical thinking also do not take the form of strict legal prohibitions, but interpretative directives imported by interpreting the constitutional foundations of these sectors of law.27 According to Article 11(5) of the Czech Constitution, ‘Taxes and fees may only be established by law’.28 Generally speaking, similar norms to the one contained in Article 217 of the Constitution of the Republic of Poland (i. e., the most important one from the point of view of the considerations in question) can be found in the constitutions of many European countries, and in general, the principle of statutory exclusivity in tax law is widely accepted in contemporary legislation.29 The historical origin of the

23 K. Radzikowski, Analogia w prawie podatkowym [Analogy in tax law], Przegląd Podatkowy 4/2007, pp. 18–22, p. 19. 24 Basic Law of the Federal Republic of Germany of 23 May 1949, Bundesgesetzblatt – Federal Law Gazette, p. 1. 25 C. Heber, C. Sternberg, Legal Interpretation of Tax Law: Germany, in: R. F. van Brederode, R. Krever, Legal Interpretation of Tax Law, Wolters Kluwer Law & Business, 2014, p. 174. 26 J. Wintr, Metody a zasady interpretace prava, 2. Vydani, Auditorium, Praha 2019, p. 25. 27 L. Hlouch, Teorie a realita pravni interpretace, Vydavatelstvi a nakladelstvi Ales Cenek, s.r.o., 2011. pp. 148–149. 28 Constitution of the Czech Republic of 16 December 1992, Sbírka zákonů České republiky, No. 1/1993, supplemented by: No. 347/1997 Sb., No. 300/2000 Sb., No. 448/2001 Sb., No. 515/2002 Sb., No. 319/2009 Sb. 29 M. Safjan, L. Bosek (eds.), Konstytucja Rzeczypospolitej Polskiej [Constitution of the Republic of Poland]… Legalis: For example, the Dutch Constitution of 1814, the Belgian Constitution of 1831, the US Constitution of 1787, the Greek Constitution of 1975, the Italian Constitution of 1947, the Spanish Constitution of 1978. In turn, the Basic Law of the Federal Republic of Germany of 1949 ‘does not explicitly indicate the obligation to regulate all the structural elements of a tax in a law’.

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principle dates back to the Great Charter of Liberties introduced in England in 1215,30 while in Poland the principle dates back to the Koszyce Privilege of 1374.31

4.

Analogy as a constitutional ‘source’ law

The considerations would not be complete if due attention was not given to the juxtaposition of the analogy with the constitutionally shaped catalogue of sources of law. For in accordance with Article 87 of the Constitution of the Republic of Poland, the sources of universally binding law for the Republic of Poland are as follows: the Constitution, laws, ratified international agreements and regulations. The second paragraph additionally indicates that the sources of universally binding law for the Republic of Poland are, within the area of activity of the authorities that established them, acts of local law. The catalogue is complemented by the content contained in Article 91 of the Constitution of the Republic of Poland, according to which a ratified international agreement, once it has been promulgated in the Journal of Laws of the Republic of Poland, constitutes part of the domestic legal order and is directly applicable, unless its application depends on the enactment of a law. An analysis of the above leads to the conclusion that the Constitution of the Republic of Poland does not expressly provide for the possibility or impossibility of resolving tax factual situations on the basis of analogy. In the Polish legal system, however, judgments, which are the main carriers of rulings by reasoning per analogiam, are not among the official sources of law, the closed catalogue of which is contained in Article 87(1) and (2) of the Constitution of the Republic of Poland. However, analysing the issues from the other side, Article 87(1) of the Polish Constitution provides for sources of universally binding law. For obvious reasons, the jurisprudence of any Polish court will not constitute a source of law, let alone a ruling on analogy taken into account, as courts decide specific cases, and such jurisprudence does not, in principle, influence other rulings. However, the basic conclusion is that there is no prohibition on treating analogy as a source of law that is not universally applicable. When using the term non-universally binding source of law, qualifying an analogy as any source of law makes it more credible and facilitates its potential use in practice. Additionally, according to Morawski, reasoning per

30 K. Knawa, Zasada określoności zobowiązania podatkowego jako postulat nauki i wymóg prawny [The principle of determining the tax liability as a postulate of science and a legal requirement], Toruński Rocznik Podatkowy, UMK, 2013, p. 167. 31 M. Bartoszewicz, Komentarz do art. 217 Konstytucji RP [Commentary to Article 217 of the Constitution of the Republic of Poland,], in: M. Haczkowska, Konstytucja Rzeczyposplitej Polskiej [Constitution of the Republic of Poland. Commentary], Warszawa 2014, LEX.

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The use of reasoning per analogiam in tax law in light of constitutional regulations

analogiam as a rule of legal exegesis qualifies as a non-self-existent source of law.32 Analogy can also be qualified as a source of law in the decisional sense, since ‘in the decisional view, the source of law is what is referred to in the decision to apply the law, i. e. the arguments used in the justifications of the decision, as far as the legal basis is concerned’.33 The assessment of whether a court merely interprets the law or creates it depends on the understanding of the law adopted and whether the law is merely a ‘dry’ record of the law or whether the law is composed of values characteristic of the rule of law.34 To sum up, analogy does not constitute a source of universally binding law due to its exhaustion after one-time use, but the content of constitutional norms does not oppose treating analogy as a source of non-universally binding law of a peculiar, unorganised and secondary, informal character (i. e., analogy supplements rather than replaces the legal basis). It thus appears that the closed catalogue of sources of tax law is not of a completely closed nature, especially if one considers a ruling based on analogy to be a manifestation of judicial law, and to this extent the Polish Constitution does not constitute a limitation to the use of analogy in Polish tax law. Instead, one may see in it a specific encouragement to resort to reasoning per analogiam as an appropriate remedy in the absence of an adequate legal basis.

5.

The Polish Constitution – limitation or an encouragement for the development of analogy in Polish tax law?

The totality of the above considerations leads to the conclusion that the Constitution of the Republic of Poland provides both encouragement for the use of analogy in Polish tax law and sets its impassable limits. In attempting to answer the question of which aspect plays a greater role, one should support the thesis of the greater importance of the limiting significance of the Constitution of the Republic of Poland for the use and development of analogy in Polish tax law, although the fact that the absence of a prohibition on the use of analogy constitutes the primary category of consent to its use remains of no small importance. The analysis of the judicial and administrative case law allows the conclusion that the parties to the tax–legal relationship and the courts have much more frequently invoked the Constitution as an act limiting its scope in tax law.35 This circumstance also results from the nature

32 L. Morawski, Zasady wykładni prawa [Principles of law interpretation], TNOiK 2006, p. 210. 33 D. Dąbek, Prawo sędziowskie w polskim prawie administracyjnym [Judicial law in Polish administrative law], Lex a Wolters Kluwers, Warszawa 2010, p. 56. 34 Ibid, p. 182. 35 Analysis of the jurisprudence of administrative courts carried out as part of research funded by the National Science Center as part of the Prelude-17 research project, 2019/33/N/HS5/02514; List

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of reasoning per analogiam, as well as its history in Polish tax law. Indeed, one cannot lose sight of the fact that for years, analogy was considered a ‘forbidden tool’, and constitutional norms were invoked in the role of justifying the abandonment of the use of analogy in tax law.

6.

Conclusions

Turning to the final statement, a strong incentive for the judiciary, tax authorities and perhaps also taxpayers to use analogy in tax law can be seen in certain constitutional provisions. On the other hand, a general and well-established prohibition of the use of analogy in certain scopes, defining the limits of the use of analogy, can be directly interpreted from certain constitutional provisions. However, there is no general norm prohibiting the use of analogy in Polish tax legislation. The constitutional norms described in this article directly set the boundaries and become the vehicle for the guarantee that a taxpayer may not be burdened with any tax burden other than the one directly resulting from the law. This issue, in turn, should be viewed very broadly and should be linked to the prohibition of the use of aggravating analogy.36 This is because the application of analogy cannot lead to a different distribution of rights and obligations than that provided for in the law.37 The constitutional principle of statutory levying of taxes and the underlying guarantees of taxpayers’ rights vis-à-vis the authorities opposing the use of analogy do not prohibit the application of analogy in general but only in the event that reasoning per analogiam does not pass the test of benefit in a particular case, involving an assessment of whether the taxpayer’s situation is improved or worsened as a result of reasoning per analogiam. In summary, there is no provision in the Polish constitutional order that explicitly prohibits the application of reasoning per analogiam in tax law cases. However, there is also no norm explicitly permitting the application of analogy, just as it is impossible to find a norm specifically and explicitly specifying the scope of application of analogy. The Constitution of the Republic of Poland has left the scope of application of analogy in Polish tax law to the practice of law application.

of areas of admissibility of applying the reasoning per analogy in Polish tax law and in selected European countries. 36 R. Mastalski, Stosowanie prawa podatkowego, Oficyna a Wolters Kluwer business, Warszawa 2008, p. 125. 37 Ibid, p. 125.

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The use of reasoning per analogiam in tax law in light of constitutional regulations

References Legal acts Constitution of the Czech Republic of 16 December 1992, Sbírka zákonů České republiky, No. 1/1993, supplemented by: No. 347/1997 Sb., No. 300/2000 Sb., No. 448/2001 Sb., No. 515/2002 Sb., No. 319/2009 Sb. Constitution of the Republic of Poland of 2 April 1997, Dz.U. 1997 No. 78 item 483. Basic Law of the Federal Republic of Germany of 23 May 1949, Bundesgesetzblatt – Federal Law Gazette.

Jurisdiction Judgment of the Constitutional Tribunal of 9 October 2007 in case SK 70/06, OTK-A 2007, No. 9, item 103. Judgment of the Constitutional Tribunal of 16 June 1998 in case U 9/97, OTK 1998, No. 4, item 51. Judgment of the Constitutional Tribunal of 1 September 1998 in case U 1/98, OTK 1998, No. 5, item 63. Judgment of the Constitutional Tribunal of 9 February 1999 in Case U 4/98, OTK 1999, No. 1, item 4.

Literature Atienza M., Sobre la analogia en el Derecho. Ensayo de analisis de un razonamiento juridico, Madrid, Civitas, 1986. Banaszak B., Porównawcze prawo konstytucyjne [Comparative constitutional law], Wolters Kluwer Polska, Warszawa 2012. Bartoszewicz M., Komentarz do art. 217 Konstytucji RP [Commentary to Article 217 of the Constitution of the Republic of Poland], in: M. Haczkowska, Konstytucja Rzeczypospolitej Polskiej [Constitution of the Republic of Poland. Commentary], Warszawa 2014, LEX. Bieganski W., Wnioskowanie z analogii [Inference from analogy], Wydawnictwo Polskiego Towarzystwa Filozoficznego w Lwowie, TOM III, Lwów 1909. Brzezinski B., Wykładnia prawa podatkowego [Interpretation of tax law], ODDK, Gdańsk 2013. Dąbek D., Prawo sędziowskie w polskim prawie administracyjnym [Judicial law in Polish administrative law], Lex a Wolters Kluwers, Warszawa 2010. Heber C., Sternberg C., Legal Interpretation of Tax Law: Germany, in: R. F. van Brederode, Krever R., Legal Interpretation of Tax Law, Wolters Kluwer Law & Business, 2014. Hlouch L., Teorie a realita pravni interpretace, Vydavatelstvi a nakladelstvi Ales Cenek, s.r.o., 2011.

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Knawa K., Zasada określoności zobowiązania podatkowego jako postulat nauki i wymóg prawny [The principle of definiteness of tax liability as a postulate of science and a legal requirement], Toruński Rocznik Podatkowy, UMK, 2013. Kosikowski C., Public finance in the light of the Polish Constitution [Finanse publiczne w świetle Konstytucji RP], Wydawnictwo Sejmowe, Warszawa 2004. Krzywoń A., Podatki i inne daniny w Konstytucji [Taxes and other tributes in the Constitution], Wydawnictwo Sejmowe, Warszawa 2011, in: Safjan M., Bosek L., ed., Konstytucja RP. Volume II. Commentary to Articles 87–243, Warszawa 2016, Commentary to Article 217 of the Constitution of the Republic of Poland, Legalis. Langenbucher K., Argument by analogy in European law, Cambridge Law Journal, vol 57(3), November 1998. Mariański A., Rozstrzyganie wątpliwości na korzyść podatnika: Zasada prawa podatkowego [Settling doubts in favour of the taxpayer: A principle of tax law], Wolters Kluwer 2009. Mastalski R., Stosowanie prawa podatkowego [Application of tax law], Oficyna a Wolters Kluwer business, Warszawa 2008. Modzelewski W., Tworzenie materialnego prawa podatkowego – refleksje konstytucyjne [Creation of substantive tax law – constitutional reflections ], in: P. J. Lewkowicz, J. Stankiewicz, Konstytucyjne uwarunkowania tworzenia i stosowania prawa finansowego i podatkowego [Constitutional determinants of the creation and application of financial and tax law], Temida 2, Białystok 2010. Morawski L., Zasady wykładni prawa [Principles of law interpretation], TNOiK 2006. Nowacki J., Analogia legis, Państwowe Wydawnictwo Naukowe, Warszawa 1966. Radzikowski K., Analogia w prawie podatkowym [Analogy in tax law], Przegląd Podatkowy 4/2007. Rychlewska A., Hotel M., Analogia jako metoda prawnicza [Analogy as a legal method] Kwartalnik Prawo-Społeczeństwo-Ekonomia , 2/2016. Sherwin E., A defence of analogical reasoning in law, The University of Chicago Law Review, 1999. Tiscornia D., Three meanings of analogical reasoning in law, Law, Computers & Artificial Intelligence, Volume 3, Numbers 2/3, 1994. Skrzydło W. , Konstytucja Rzeczypospolitej Polskiej. Komentarz [Constitution of Republic of Poland. Commentary], wyd. VII, art. 217, Kraków 2013, LEX. Vintr J., Metody a zasady interpretace prava, 2. Vydani, Auditorium, Praha 2019. Weinreb L. L., Legal reason. The use of analogy in legal argument. Second edition, , Cambridge 2016.

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Wojciech Morawski, Krzysztof Dziadosz

The action of a taxpayer when trusting in information concerning the content and interpretation of tax law obtained from tax authorities – between the constitutional principle of legalism and the principle of the protection of legitimate expectations1

1.

Introduction

Taxpayers can receive information (in many forms and with varying degrees of formalisation) from the tax authorities as to the content and interpretation of tax law. Usually, the most formalised forms are advance tax rulings, known in Polish law as official tax interpretations. Such rulings are very popular in Poland, and this paper will mainly focus on them. The same authority that issues tax interpretations in Poland (i. e., the National Fiscal Information) also provides taxpayers with telephone advice. The provision of such information on the content of tax law has a clear legal basis,2 although its legal consequences are not regulated. Other popular, less formalised, forms of communication are various information brochures or instructions for filling out tax returns. However, in Poland, there is no explicit legal basis for issuing such information materials. The above legal institutions should, by definition, provide the taxpayer with lawful information. However, this idealistic assumption cannot be fully realised in practice. Everyone, including a tax authority employee, is fallible. In such a case, should the taxpayer be treated in accordance with the correct interpretation of the tax law? Or should it be taken into consideration that the information received from the tax authority may have instilled confidence in the taxpayer and reinforced his or her belief that he or she is acting correctly? In other words, one has to decide what is more important: the principle of legalism or the principle of the protection of legitimate expectations.

1 The research carried out by Wojciech Morawski is funded by the Narodowe Centrum Nauki [National Science Centre, Poland]within the project no. 2016/21/B/HS5/00187 – Acts of interpretation in tax law – between aid, flexibility and disintegration of system of tax law. 2 Article 22(1)(3) of Ustawa z dnia 16 listopada 2016 r. o Krajowej Administracji Skarbowej [Act of 16 November 2016 on the National Revenue Administration] J. of L. 2022, item 813, as amended.

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2.

The principle of legalism – a cornerstone of the rule of law

In Polish tax law doctrine, the principle of legalism is derived from Articles 2 and 217 of the Constitution of the Republic of Poland and Article 120 of the Tax Ordinance.3 The principle has two aspects: with respect to the creation of law (as an order to regulate the tax matter by means of a statutory law) and in the procedural aspect (as an order for tax authorities to act on the basis and within the limits of the statutory law). Such a rule is also present in many legal systems. In Danish law, for example, a similar principle is expressed in Article 43 of the Constitution of the Kingdom of Denmark.4 The principle of legalism, with an identical meaning,5 is also stipulated in Article 73 of the Constitution of the Turkish Republic. It is understood somewhat differently, however, in British law, whose doctrine and jurisprudence indicate that the principle of legalism also constrains parliament and forbids it to pass laws that infringe fundamental human rights and civil liberties.6 In UK, the principle of legalism is connected with the principle of proportionality.7 And the principle of legalism as such is present in the tax law doctrine of Brazil8 and Portugal.9

3.

The principle of legitimate expectations – the foundation for the protection of the taxpayer’s interests

According to the principle of legitimate expectations, a taxpayer should be able to foresee the proceedings of the tax authority at a given time, in a given legal and factual state and, consequently, should be able to determine the legality of his or

3 Ustawa z dnia 29 sierpnia 1997 r. – Ordynacja podatkowa [Act of 29 August 1997 – the Tax Ordinance Act, hereinafter: ‘Tax Ordinance Act’ or ‘t.o.’] J. o L. of 2021, item 1540. 4 M. Ørberg, P.K.Schmidt, The principle of legality in the context of Danish tax law, Copenhagen business school law research paper series no. 19–18. 5 M. Demir, R. Önder, The principle of legality of the taxes: an evaluation on Turkey and the selected countries, 34. International Public Finance Conference / Turkey, April 24–27, 2019, Antalya, Turkey, pp. 338–342. 6 C. Crummey, An interpretivist theory of the principle of legality, UPhD thesis, University College London, p. 24 and p. 31. 7 J. N. McBride, Ill fares the land: has Covid-19 killed the principle of legality?, https://papers.ssrn.com/ sol3/papers.cfm?abstract_id=4023242, p. 2 and p. 3. 8 S. A. de Mendonça Cohen, A hermeneutical review of the principle of legality in tax law, in: Human Rights, Rule of Law and the Contemporary Social Challenges in Complex Societies: Proceedings of the XXVI World Congress of Philosophy of Law and Social Philosophy of the Internationale Vereinigunf für Rechts- und Sozialphilosophie, Belo Horizonte 2015, p. 2432. 9 Ibid.

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The action of a taxpayer when trusting in information concerning the content and interpretation of tax law

her acts10 . Łukasz Prus points out that the principle of legitimate expectations is not defined homogeneously but consists of a number of specific principles, among which he includes the prohibition of retroactivity of the law; the irrevocability of administrative acts; the self-binding of administrative regulations sensu stricto; and action in non-authoritative forms.11 Eleonor Sharpston emphasises that despite the practical difficulties of determining when expectations are ‘reasonable’/ ‘legitimate’, such a principle is an important element in protecting individual rights in a dynamically changing regulatory environment.12 Measures such as advance pricing agreements13 and individual interpretations are, in theory, intended to provide legal certainty and a ‘promise’ that the taxpayer’s legitimate expectations will be honoured. However, it is important to consider whether such measures always deliver these ‘guarantees’ and ‘promises’. This issue is present in both continental and common law systems.14

4.

Tax interpretations in Poland – overview of legal solutions

The system of Polish official tax interpretations15 is characterised by increasing diversity. It is worth presenting their catalogue. Obviously, the most important interpretations are the ‘classic’ tax interpretations,16 which may concern – with some exceptions – all provisions of the tax law. These may take the form of either

10 H.Ahmetaj, Legal certainty And legitimate expectation in the EU Law, Interdisplinary Journal of Research and Development vol. I, no.2, 2014, p. 21. 11 Ł. Prus., Ochrona Uzasadnionych Oczekiwań jednostki jako jasada ogólna europejskiego prawa administracyjnego [Protection of legitimate expectations of the individual as a general principle of European administrative law], Prace Naukowe Wydziału Prawa, Administracji i Ekonomii Uniwersytetu Wrocławskiego Seria: e-Monografie Nr 109, Wrocław 2018, pp. 126–149. 12 E. Sharpston, European community law and the doctrine of legitimate expectations: how legitimate, and for whom, Northwestern Journal of International Law & Business 1990, vol. 11, iss. 1, pp. 87–103. 13 L. Lovdahl Gormsen, C. Mifsud-Bonnici, Legitimate expectation of consistent interpretation of EU state aid law: recovery in state aid cases involving advanced pricing agreements on tax, Journal of European Competition Law & Practice, vol. 8(6), p. 2. 14 S. Ansari, L. Sossin, Legitimate expectations in Canada: soft Law and tax Administration, in: Legitimate expectations in the common law world, eds. Matthew Groves and Greg Weeks, London 2017: pp. 293–317. 15 In Poland, the English term ‘tax rulings’ is sometimes used, but the terminology adopted in Poland will be used in this paper. 16 It should be noted that such terms (‘classic tax interpretation’ or ‘classic tax ruling’) are not commonly used in Poland. To designate this type of tax interpretation, the phrase ‘tax interpretation’ is simply used. The specific types of tax interpretations described below are usually referred to by the name of the particular type of tax interpretation (e. g., Wiążąca Informacja Stawkowa/Binding Rate Information). They are governed by the provisions of Articles 14b–14r of the t.o.

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individual tax interpretations (private tax interpretations), which may in principle be used only by the requesting entity (although there are exceptions to this rule), or general tax interpretations, which may be applied by all taxpayers. Tax explanations are, in fact, a specific form of general interpretation.17 In addition to the classic individual and general interpretations indicated above, there are also specialised tax interpretations, which may only be applicable in specific cases. These are as follows: − opinie zabezpieczające (protective opinions);18 − uprzednie porozumienia cenowe (advance pricing agreements – APAs);19 − wiążące informacje akcyzowe (WIA) (binding excise informations);20 − wiążące informacje stawkowe (WIS) (binding rate informations);21 − porozumiena inwestycyjne (so-called interpretation 590 (investment agreements)).22 The aforementioned acts have different legal forms. Classical individual interpretations are interpretative acts that do not have the form of a decision23 of a tax authority, so they are not administrative acts and do not resolve any tax issue. They are not subject to appeal24 to higher tax authorities, but they may be appealed in an administrative court. In contrast, APAs, WIAs and BRIs have the legal form of a decision (i. e., they are identical to a decision on the amount of tax for a given tax period). They are subject to appeal to a higher tax authority and subsequently, there is the possibility of filing a complaint with the administrative court. An investment

17 For more on Polish tax interpretations, see J. Brolik, Ogólne i indywidulane interpretacje przepisów prawa podatkowego [General and individual tax law interpretations], Warszawa 2013; H. Filipczyk, Indywidualne interpretacje prawa podatkowego – prawo i praktyka [Individual tax law interpretations – law and practice], Oficyna Prawa Polskiego Warszawa 2011; K.F. Turzyński, Interpretacje przepisów prawa podatkowego w praktyce i orzecznictwie [Tax law interpretations in practice and case law], Wolters kluwer 2015. 18 Art. 119w–119zt t.o. 19 Articles 81–107 of Ustawa z dnia 16 października 2019 r. o rozstrzyganiu sporów dotyczących podwójnego opodatkowania oraz zawieraniu uprzednich porozumień cenowych [the Act of 16 October 2019 on the Settlement of Double Taxation Disputes and the Conclusion of Advance Pricing Agreements], J. of L. 2019, item 2200. 20 Articles 7d–7k of Ustawa z dnia 6 grudnia 2008 r. o podatku akcyzowym [the Excise Duty Act of 6 December 2008], J. o L. of 2020, item 722, as amended. These concern the classification of goods for excise duty purposes. 21 Articles 42a–42i of Ustawa z dnia 11 marca 2004 r. o podatku od towarów i usług [the Value-Added Tax Act of 11 March 2004], J. o L. 2020, item 106. These relate to the classification of goods for value-added tax purposes. 22 Art. 20zs et seq. t.o. 23 Within the meaning of art. 207 of t.o. 24 Is not subject to instance control within tax proceedings.

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The action of a taxpayer when trusting in information concerning the content and interpretation of tax law

agreement is an agreement between an investor and the Head of the National Fiscal Administration. The investor may terminate their tax arrangement at any time.

5.

Tax interpretations and the blurring of the boundaries of sources of law – Constitutional Tribunal judgment of 11 May 2004

The shape of the Polish tax interpretation system continues to be significantly influenced by the Constitutional Tribunal’s (‘CT’) judgment of 11 May 2004.25 As the judgment was made in a different legal state from the current one, it needs to be presented at least in outline. Similarly to the present, there were general and individual interpretations. General interpretations were binding for tax authorities and fiscal control authorities.26 In the case of individual interpretations, there was no such regulation. Somewhat surprisingly, despite the binding nature of general interpretations, the consequences of a tax authority’s failure to comply with their content were provided for. Pursuant to the then wording of Article 14 § 3 of the t.o., compliance by a taxpayer with a general interpretation of tax law (applied mutatis mutandis to individual interpretations) could not harm him or her; however, it did not release him or her from the obligation to pay tax.27 In such a case, the taxpayer was not criminally liable and did not pay interest for late payment. Doubts were raised about the binding nature of general interpretations. Importantly, these doubts were raised not by taxpayers but by the President of the Supreme Administrative Court and the Ombudsman. They pointed out that such a legal solution violates the principle of the two-instance nature of tax proceedings. Moreover, acts of internal nature become the basis for the tax authority’s decision.28 The applicants explicitly pointed out the duality of the legal basis for the decision in a tax case. On the one hand, it was still a tax act and, on the other hand, a binding general interpretation. The constitutional principle of legalism was not explicitly

25 26 27 28

Judgment of Constitutional Tribunal of 11 May 2004, K 4/03. Article 14 § 2 second sentence t.o. However, the tax authority could write off the tax arrears. A violation of Article 93(2) of the Polish Constitution has been pointed out here. According to this provision, ‘Art. 93 (1) Resolutions of the Council of Ministers and orders of the Prime Minister and ministers are of an internal nature and are binding only on organisational units subordinate to the body issuing these acts. (2) Orders are issued only on the basis of the law. They cannot form the basis of decisions vis-à-vis citizens, legal persons and other entities.’ The general interpretations were therefore treated as an order of the minister, which was a rather questionable position.

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indicated as the benchmark of control,29 but the allegations in fact referred to this principle. The CT shared most of the applicants’ doubts. Analysing the institution of general interpretations of tax law, the CT stated that ‘it can neither be included in the category of sources of law,30 nor considered as an administrative act of internal application of the law. Nor can the official interpretation be the basis for tax decisions vis-à-vis citizens or other subjects of the law. Official interpretation thus remains outside the system of sources of universally binding law, nor does it fall within the system of sources of internal law referred to in Article 93 of the Constitution’. The Court also noted that ‘the normative value of interpretations may be evidenced by – analogous to that relating to sources of law – the statutory requirement of their publication’. In the opinion of the CT, the solution contained in Article 14 t.o. was incompatible with Article 93(2) of the Constitution of the Republic of Poland. For it led to a ‘dangerous and undesirable blurring of the distinction between the creation of law and its interpretation, which results from giving the value of extended validity to the official interpretation, intended to perform exclusively the function of subjectively limited ordering and unification of judicial activity’. Moreover, it made acts, which were formally speaking, addressed exclusively to the internal structure of the state bureaucracy, ‘a means of influencing the sphere of taxpayers’ rights and freedoms, i. e. a sphere which may be regulated only by acts included in the closed category of sources of universally binding law’. The CT also drew attention to the danger of ‘upsetting the entire conception of the system of sources of law adopted by the Constitution’.

6.

Does the Constitutional Tribunal ruling of 11 May 2004 outlaw tax interpretations?

At first glance, the judgment of the CT could actually end the ‘career’ of tax interpretations (certainly general, and perhaps individual) in Poland. This is because the CT’s concerns affected the most essential element of this institution: a tax interpretation must protect its holder against the content of the law. Otherwise, it loses its meaning. This is because the CT held that a general interpretation is a legal basis competing with the Act for the issuance of reaching a verdict by a tax authority, which is inconsistent with the Polish Constitution. Therein lay the weakness of the CT’s reasoning, which did not pay attention to the ‘competing’

29 Art. 7 Constitution of the Republic of Poland: Bodies of public authority shall act on the basis and within the limits of the law. 30 Within the constitutional framework.

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The action of a taxpayer when trusting in information concerning the content and interpretation of tax law

principle of legitimate expectations. Meanwhile, this principle could be the basis for legitimising a decision based on a general interpretation even contrary to the law. The position of the CT seems to be the result of the lack of experience of both the judges of the CT and lawyers in Poland in general in regard to the application of tax interpretations (in 2004 these institutions were just starting to function). It was not without significance that during the communist era in Poland, the actual form of the tax law was based on various instructions from the Minister of Finance and not from statutory tax laws. It may not be surprising that the CT feared a repetition of this flawed law-making mechanism. However, the CT explicitly stipulated that it did not negate the need for the institution of tax law interpretation. It even recognised it as substantial. Thus, the judgment deemed unconstitutional only specific normative solutions and not the legal institution itself.31 As a result, the institution of general tax law interpretations could still potentially function, but the scope of protection of a person acting in confidence in it was quite weak. The judgment of the CT concerned only general interpretations. In the case of individual interpretations, there was no provision constituting their binding character. However, also being bound by an individual interpretation would de facto result in the illusory nature of the principle of two-instance tax proceedings, when such an interpretation had already been issued. From the point of view of the question of the sources of tax law, an individual interpretation would admittedly be slightly more different from a normative act than a general interpretation, but it would also render the tax Act irrelevant.

7.

Polish tax interpretations – an apparent triumph of legalism or a triumph of hypocrisy?

The CT’s judgment of 11 May 2004 certainly influenced subsequent legislative practice. The regulation of interpretation has changed several times since then. Nowadays, classic tax interpretations (both individual and general) are formally not binding, so neither the taxpayer nor the tax authority has to act in accordance with their content. The tax authority must issue a tax assessment decision contrary to held by the taxpayer when it assesses them as defective.32 This is because it is bound by the statute. However, the taxpayer is entitled to protection. Its extent

31 The thesis of the judgment clearly states, ‘Article 14 § 2 […], in the part stating that the interpretations of the minister responsible for public finance are binding on the tax and fiscal control authorities, is incompatible with Article 78 and the second sentence of Article 92 § 2 of the Constitution of the Republic of Poland’. 32 Contrary to law or statute in its merits.

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depends on the temporal relationship between the issuance of the interpretation and the occurrence of the tax effect. If the tax effect occurred prior to the issuance of the defective interpretation, the holder who has complied with it is exempt only from the obligation to pay interest on arrears but must pay the tax due under the statute itself. If he or she obtains the defective interpretation first and the tax effect occurs later, the tax authority will assess the tax under the statute and, in the event of a discrepancy with the interpretation, the taxpayer may apply for a tax exemption. As a result, he or she will still pay the tax in the amount resulting from the interpretation.33 This is a solution that involves a formal recognition of the principle of legalism (the tax decision is issued on the basis of the tax act and not the interpretation) while applying the principle of legitimate expectations. In fact, the amount of the tax burden results anyway from the content of the interpretation and not from the tax act. It is difficult not to describe such a solution as hypocritical. The regulation actually ‘circumvents’ the judgment of the CT. Interestingly, this solution was proposed by the Minister of Finance. It turned out that the need to protect the trust that taxpayers should have in information obtained from the tax authority is more important than the CT’s objections. Where interpretations take the form of a tax decision (WIA, WIS, APA), they are binding like any decision. In fact, they are specific partial decisions, which may later become part of the tax assessment decision.

8.

Limits of protection of the holder’s confidence in the interpretation obtained from the tax authority

The principle of legitimate expectations in Polish tax law, in the context of tax interpretations, is not absolute. The basic limitation is the possibility to change a tax interpretation in virtually any case when the tax authority comes to the conclusion that it is defective.34 However, this amendment will not have retroactive effect. This is a reasonable compromise between the principle of legalism and the principle of legitimate expectations. The protection of legitimate expectations here is therefore not about the immutability of the tax interpretation but about limiting the temporal effect of the change made. Polish tax law has been determined in recent years by an almost obsessive fight against any tax avoidance. This is reflected in the exclusion of protection in the

33 14k–14m t.o. 34 Art. 14e t.o. An individual interpretation shall also become invalid as a result of a later issue of a different general interpretation.

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The action of a taxpayer when trusting in information concerning the content and interpretation of tax law

case of compliance with a tax interpretation when the taxpayer’s action was a manifestation of aggressive tax optimisation (e. g., subject to application of the general anti-avoidance clause GAAR).35 From the point of view of the taxpayer’s interests, the key point is that a situation may arise where the taxpayer, in an application for an interpretation, fairly presents his or her actions and the authority makes a defective assessment of them and issues a tax interpretation. Such an interpretation will not protect the taxpayer from the application of anti-abusive legal instruments, even though it was the tax authority that made the error.36 It is difficult to consider such a solution as optimal, as it burdens the taxpayer with too much risk.

9.

Taxpayer confidence in communications from tax authorities other than tax interpretations

In addition to issuing tax interpretations, the National Fiscal Information also operates a helpline for taxpayers.37 Neither t.o. nor any other statue regulate the legal value of such consultations. They are certainly not binding. In the jurisprudence practice of Polish administrative courts, there have been judgments in which the court has analysed the content of the telephone information provided, examining whether the taxpayer has not been misled.38 However, the authors are not aware of any judgments in which the court ordered the tax to be assessed on the basis of such a telephone consultation rather than the statute. At most, the court considers whether the fact of a hypothetical misrepresentation of the taxpayer should not be the basis for remission of the tax arrears: thus, a kind of act of grace towards the taxpayer.

35 Art. 14na t.o. Where a risk of application of the GAAR arises, a classic tax interpretation cannot be issued and the taxpayer should request a collateral opinion. 36 W. Morawski, Urzędowe interpretacje prawa podatkowego: zmiany od GAAR do KAS. [Official interpretations of tax law – changes from GAAR to KAS] , Przegląd Podatkowy, 2017, No. 4, p. 32. 37 More than 1,700,000 calls were made to taxpayers in 2021 – see Informacja o działalności Krajowej Informacji Skarbowej w 2021 roku [Activity Information National Tax Information] Office in 2021, p. 3, https://www.kis.gov.pl/dzialalnosc/raporty-z-dzialalnosci/-/asset_publisher/vH2z/content/informacja-o-dzialalnosci-krajowej-informacji-skarbowej-w-2021-roku? redirect=https%3A%2F%2Fwww.kis.gov.pl%2Fdzialalnosc%2Fraporty-z-dzialalnosci%3Fp_p_ id%3D101_INSTANCE_vH2z%26p_p_lifecycle%3D0%26p_p_state%3Dnormal%26p_p_ mode%3Dview%26p_p_col_id%3Dcolumn-2%26p_p_col_count%3D1#p_p_id_101_INSTANCE_ vH2z_(accessed: 28.08.2022). 38 Judgment of the Provincial Administrative Court in Warsaw of 25 November 2020, III SA/Wa 1062/ 20 (non-final ruling); judgment of the Provincial Administrative Court in Warsaw of 27 August 2021, III SA/Wa 360/21. Such examination is possible, as all conversations are recorded.

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Of great importance is the various brochures that the Ministry of Finance issues to explain in particular the rules for filing tax returns, especially for taxpayers who are not entrepreneurs and only occasionally come into contact with tax law. These documents are also not binding. In the jurisprudential practice of Polish courts, there have been cases where the content of such a brochure has been analysed by the court in order to determine whether the taxpayer has been misled by it. In one case, the administrative court39 held that ‘the failures of the tax administration should not cause negative consequences for taxpayers who acted in good faith and trust in the content of the information received. This constitutes the essence of the principle arising from Article 121 § t.o.’40 As a result, the court ordered the calculation of tax in the amount that would have resulted from the use of the information brochure. This ruling was quite debatable, as in fact, the information booklet did not contain erroneous information but omitted one of the conditions for benefiting from the tax exemption.41 The case well illustrates the practical problems related to the possible protection of a taxpayer acting in reliance on the content of various brochures: that is, by their very nature, they are shorter than the Tax Act and address only the most important, most typical situations. In subsequent case law, the above judgment appears quite often, but usually the courts refuse to apply analogous reasoning.42 At the same time, they sometimes do not deny that the content of an information brochure should be taken into account by the tax authorities, even if it is not a source of law.43 Sometimes, however, misrepresentation by information obtained from the Minister of Finance is treated as a valid argument for the remission of the tax arrears by the tax authority.44

39 Judgment of the Supreme Administrative Court of 22 January 2016, II FSK 2775/13. 40 Article 121 t.o.: ‘§ 1. Tax proceedings should be conducted in a manner that inspires confidence in the tax authorities’. 41 W. Morawski., Skutki prawne milczenia broszury informacyjnej Ministra Finansów: (wyrok NSA z 22.01.2016 r., II FSK 2775/13) [Legal effects of the silence of the information brochure of the Minister of Finance: (judgment of the Supreme Administrative Court of 22.01.2016, II FSK 2775/13)], in: Orzecznictwo w sprawach podatkowych [Case law on tax matters], eds. B. Brzeziński, W. Morawski,J. Rudowski, Warszawa 2017, pp. 68–74. 42 Judgment of the Supreme Administrative Court of 8 November 2016, II FSK 2766/14. 43 Judgment of the Provincial Administrative Court in Lublin of 7 October 2020, I SA/Lu 299/20. 44 For example, judgment of the Provincial Administrative Court in Warsaw of 24 February 2021, III SA/Wa 681/20. It is different against the background of a slightly different state of facts: Provincial Administrative Court in Warsaw z 11 August 2020, III SA/Wa 1973/18.

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The action of a taxpayer when trusting in information concerning the content and interpretation of tax law

10. Conclusions Polish tax law, at least formally, attaches great importance to the principle of legalism. It is the tax law enacted by the parliament that should shape an individual’s tax burden. Absolute acceptance of the principle of legalism, however, would imply a state of uncertainty for the taxpayer, even if he or she were to try to take action to obtain information from the tax authorities on how to interpret the inherently complex provisions of tax law. The existence of effective and confidence-inspiring channels of communication between taxpayers and tax authorities is beneficial for both parties. As a result, Polish tax regulations contain regulations on various tax interpretations, the functioning of which is in fact based on giving primacy to the principle of legitimate expectations. In the case of forms of communication between the authorities and taxpayers, where the consequences of acting in confidence in the content of such information are not clearly set out in the law (e. g., telephone information provided by the tax administration or an information brochure issued by the Minister of Finance), it is difficult to obtain protection before the courts when it turns out that the information was defective. Of course, there are isolated judgments in favour of taxpayers, but usually the courts have a rather legalistic approach in such cases.

References Legal Acts Konstytucja Rzeczypospolitej Polskiej z dnia 2 kwietnia 1997 r. [The Constitution of the Republic of Poland of April 2, 1997] of L. of 1997, No. 78 item 483 as amended. Ustawa z dnia 29 sierpnia 1997 r. – Ordynacja podatkowa [Act of 29 August 1997 [the Tax Ordinance Act], J. o L. of 2021, item 1540 as amended. Ustawa z dnia 11 marca 2004 r. o podatku od towarów i usług [the Value Added Tax Act of 11 March 2004], J. o L. 2020, item 106 as amended. Ustawa z dnia 6 grudnia 2008 r. o podatku akcyzowym [the Excise Duty Act of 6 December 2008,] J. o L. of 2020, item 722, as amended. Ustawa z dnia 16 listopada 2016 r. o Krajowej Administracji Skarbowej [the Act of 16 November 2016 on the National Revenue Administration] (J. of L. 2022, item 813, as amended). Ustawa z dnia 16 października 2019 r. o rozstrzyganiu sporów dotyczących podwójnego opodatkowania oraz zawieraniu uprzednich porozumień cenowych [the Act of 16 October 2019 on the Settlement of Double Taxation Disputes and the Conclusion of Advance Pricing Agreements], J. o L. 2019, item 2200 as amended.

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Jurisdiction Judgment of the Provincial Administrative Court in Warsaw of 27 August 2021, III SA/Wa 360/21. Judgment of the Provincial Administrative Court in Warsaw of 24 February 2021, III SA/Wa 681/20. Judgment of the Provincial Administrative Court in Warsaw of 25 November 2020, III SA/Wa 1062/20. Judgment of the Provincial Administrative Court in Lublin of 7 October 2020, I SA/Lu 299/20. Judgment of the Provincial Administrative Court in Warsaw z 11 August 2020, III SA/Wa 1973/18. Judgment of the Supreme Administrative Court of 22 January 2016, II FSK 2775/13. Judgment of the Supreme Administrative Court of 8 November 2016, II FSK 2766/14. Judgment of Constitutional Tribunal of 11 May 2004, K 4/03.

Literature Ahmetaj H., Legal certainty and legitimate expectation in the EU Law, Interdisplinary Journal of Research and Development Vol (I), No.2, 2014. Ansari S., Sossin L., Legitimate expectations in Canada: Soft law and tax Administration, [in:]. Legitimate Expectations in the Common Law World, eds. Matthew Groves and Greg Weeks, (London: Hart, 2017), Brolik J., Ogólne i indywidulane interpretacje przepisów prawa podatkowego [General and individual tax law interpretations], Warszawa 2013. Crummey C., An interpretivist theory of the principle of legality, UPhD thesis, University College London, https://discovery.ucl.ac.uk/id/eprint/10149366/2/Crummey_10149366_ Thesis.pdf. De Mendonça Cohen S.A., A hermeneutical review of the principle of legality in tax law [in:] Human Rights, Rule of Law and the Contemporary Social Challenges in Complex Societies Proceedings of the XXVI World Congress of Philosophy of Law and Social Philosophy of the Internationale Vereinigunf für Rechts– und Sozialphilosophie, Belo Horizonte 2015. Demir M., Önder R., The principle of legality of the taxes: an evaluation on Turkey and the selected countries, 34. International Public Finance Conference / Turkey, April 24–27, 2019, Antalya – Turkey. Filipczyk H., Indywidualne interpretacje prawa podatkowego – prawo i praktyka [Individual tax law interpretations – law and practice], Oficyna Prawa Polskiego, Warszawa, 2011. Lovdahl Gormsen, L., & Mifsud-Bonnici, C., Legitimate expectation of consistent interpretation of EU state aid law: recovery in state aid cases involving advanced pricing agreements on tax, Journal of European Competition Law & Practice, 8(6).

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The action of a taxpayer when trusting in information concerning the content and interpretation of tax law

McBride J. N., Ill fares the land: has Covid-19 killed the principle of legality?, https://papers. ssrn.com/sol3/papers.cfm?abstract_id=4023242. Morawski W., Urzędowe interpretacje prawa podatkowego : zmiany od GAAR do KAS. [Official interpretations of tax law – changes from GAAR to KAS], Przegląd Podatkowy, 2017, No. 4. Morawski. W., Skutki prawne milczenia broszury informacyjnej Ministra Finansów: (wyrok NSA z 22.01.2016 r., II FSK 2775/13) [Legal effects of the silence of the information brochure of the Minister of Finance: (judgment of the Supreme Administrative Court of 22.01.2016, II FSK 2775/13)] [in:] Orzecznictwo w sprawach podatkowych / ed. Nauk. Brzeziński B., Morawski W., Rudowski J., Warszawa 2017. Ørberg M., Schmidt P.K., The principle of legality in the context of Danish tax law, Copenhagen business school law research paper series No. 19–18. Prus Ł., Ochrona uzasadnionych oczekiwań jednostki jako zasada ogólna europejskiego prawa administracyjnego [Protection of legitimate expectations of the individual as a general principle of European administrative law], Prace Naukowe Wydziału Prawa, Administracji i Ekonomii Uniwersytetu Wrocławskiego, Seria: e-Monografie Nr 109, Wrocław 2018. Sharpston E., European community law and the doctrine of legitimate expectations: how legitimate, and for whom, Northwestern Journal of International Law & Business Volume 11 Issue 1, 1990. Turzyński K.F., Interpretacje przepisów prawa podatkowego w praktyce i orzecznictwie [Tax law interpretations in practice and case law], Wolters kluwer 2015.

Netography Activity Information National Tax Information Office in 2021. https://www.kis.gov.pl/documents/6609173/6735367/Informacja+o+div%C5%82alno%C5%9Bci+KIS+in+2021+r (accessed 28.08.2022).

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Administrative fines as public tributes in constitutional terms

1.

Introduction

In the Polish system of public finance, the notion of public tributes is important, if not central. The institution of public tributes has a well-established meaning both historically and in modern times. Even before the entry into force of the Constitution of the Republic of Poland (before 1997), Dębowska-Romanowska argued that ‘Citizens make various kinds of contributions related to the functioning of the state and its existence, but not all of them are aimed at maintaining the state. “Contribution” can directly affect only citizens (individuals who have entered into a social contract). A “public burden”, on the other hand, is a monetary benefit borne by citizens and legal entities, as well as other natural persons who are obliged by public law to bear these benefits, as a counterpart to the protection enjoyed by these entities when acting within the territory of that state’.1 The public burden takes a number of forms, which are expressed as public tributes. It is accepted in the literature that ‘The historically formed system of sources of financial law is based on the conviction that the principles of public finance should be normalized in the constitution of the state, while the legal and financial powers and obligations and the procedure for their implementation must be normalized in acts originating from the parliament (in laws)’.2 The literature even stresses that ‘Significantly, the enlargement of public burdens implies a diminution of the sphere of civil rights and liberties, and vice versa. These spheres must therefore be treated together and not separately. This in turn requires the adoption of a clear hierarchy of values, i. e. answering the question of which of these values – civil rights and freedoms or public burdens – occupies a higher position. The answer to this question should not give rise to any hesitation or doubt: in a democratic state, civil rights and freedoms, not public burdens, occupy

1 T. Dębowska-Romanowska, Prawo daninowe – podstawowe pojęcia konstytucyjne i ustawowe, cz. I [Law of tributes – basic constitutional and statutory concepts, part I], “Glosa” 11/1996, p. 2. 2 C. Kosikowski, Prawo finansowe. Część ogólna [Financial Law. General Part], Warszawa 2003, p. 110.

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this position’.3 This means that a public tribute imposed by the state is always an obligation that limits the sphere of rights and freedoms. The provisions on tributes should not be interpreted broadly or narrowly. The legal basis for the imposition of an obligation in the form of a public tribute to the state should be found in the provisions of the Basic Law. This also applies to administrative fines, the right to impose which should be grounded in constitutional provisions. Currently, two provisions of the Constitution of the Republic of Poland of 2 April 1997 are of fundamental importance for the possibility of imposing public tributes.4 Pursuant to Art. 84 of the Constitution of the Republic of Poland, everyone is obliged to bear public burdens and benefits (including taxes) specified by law, while it follows from Art. 217 of the Constitution of the Republic of Poland that imposing taxes and other public tributes and defining the entities, subjects of taxation and tax rates, principles for granting reliefs and remissions, as well as the categories of entities exempt from taxes is done by way of a statute. Although public tributes are directly provided for only in Article 217 of the Constitution of the Republic of Poland, there is no doubt that they fall within the notion of ‘public burdens and benefits’ appearing in Article 84 of the Constitution of the Republic of Poland. Admittedly, there is a dispute in the doctrine of law as to the relationship of public burdens and public benefits to each other and what they mean. However, there is no doubt that public tributes fall within the scope of the obligations regulated by Article 84. As indicated by D. Antonów: ‘Consequently, it should be assumed that public tributes (including, inter alia, taxes) belong to the category of public burdens and benefits referred to in Article 84 of the Constitution’.5 Małgorzata Szalewska makes a similar comment, stating that the notions of ‘public burdens and benefits’ are not synonymous, but ‘this, however, in no way affects the established uniformity in the use of these notions and even their common interchangeable use. There is also a perceptible tendency in practice to limit the meaning of the constitutional category of public burdens and benefits to financial matters’.6 The introduction of the institution of public tribute to the Constitution of the Republic of Poland makes this very concept remain in the sphere of interest of

3 E. Smoktunowicz, Spór o charakter prawny danin publicznych [Dispute over the legal nature of public tributes], Glosa 4/1997, p. 1. 4 J. of L. of 1997, no. 78, item 483, as amended. 5 D. Antonów, Cechy danin publicznych w polskim systemie prawnym [Features of public tributes in the Polish legal system], Annales Universitatis Marie Curie-Skłodowska, Sectio G, 2016, vol. LXIII, 1, p. 11. 6 M. Szalewska, Ciężary i świadczenia publiczne [Public burdens and benefits], in: System Prawa Administracyjnego. Prawo administracyjne materialne. [System of Administrative Law. Substantive administrative law] Vol. 7, eds. R. Hauser, Z. Niewiadomski, A. Wróbel, Warszawa 2017, p. 535.

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Administrative fines as public tributes in constitutional terms

constitutional law, where, in a certain simplification, the tribute law is analysed in relation to the category of public duties.7 Agnieszka Bień-Kacała explicitly states that ‘The tribute power is a category belonging to the internal sovereignty of the state and, in particular, it is connected with territorial and personal sovereignty and means, in principle, the unlimited possibility of the state to impose public tributes, for primarily fiscal purposes, on entities located on the territory of the state or otherwise connected with it’.8 The creation of a tribute law should involve special care on the part of the legislator due to the fact that ‘the tribute legislator, i. e. the authority imposing public tributes, should show particular fairness towards society. For we are dealing here with a kind of relationship between the ruling majority and the electorate. On the other hand, this relationship is fraught with a high degree of repressiveness’.9 The obligation to bear public burdens and benefits is a constitutional category and should be interpreted in this context. It is treated as a fundamental duty of the individual (i. e., one that is relevant to the interests of both the individual and society or the state).10 It follows from Article 84 of the Constitution of the Republic of Poland that all beneficiaries of the legal protection of the state should be prepared to bear the public burdens and benefits necessary for the state’s maintenance. This is a readiness to bear burdens and benefits not only incidental and occasional but, above all, permanent and recurrent.11 The obligation to bear public burdens and benefits, like other constitutional obligations, has its limits. These arise from natural causes: namely, the ability to bear the burden. The limits are also as follows: the permissible scope of state interference in the sphere of individual freedom, an obligation of a different kind and the meaning of the terms used to regulate the obligation.12 In turn, Article 217 of the Constitution of the Republic of Poland establishes the principle of statutory regulation of public tributes, while its interpretation requires taking into account the content of Article 84 of the Constitution of the Republic of Poland. It should be emphasised that there is no definition of ‘public tributes’ 7 A. Bień-Kacała, Zasada władztwa daninowego w Konstytucji RP z 1997 r. [The principle of tribute authority in the 1997 Constitution of the Republic of Poland], Toruń 2005, pp. 232, A. Krzywoń, Podatki i inne daniny publiczne w Konstytucji Rzeczypospolitej Polskiej [Taxes and other public levies in the Constitution of the Republic of Poland], Warszawa 2011, p. 319. 8 A. Bień-Kacała, Zasada władztwa daninowego… [The principle of tribute authority…], p. 31. 9 A. Bień-Kacała, Uczciwość ustawodawcy daninowego [Integrity of the tribute legislator], “Gdańskie Studia Prawnicze”, Vol. XXXI, 2014, p. 541. 10 A. Bień-Kacała, Zasada władztwa daninowego… [The principle of tribute authority…], p. 37. 11 T. Dębowska-Romanowska, Prawo finansowe – część konstytucyjna wraz z częścią ogólną [Financial law – constitutional part together with the general part], Warszawa 2010, p. 123. 12 A. Bień-Kacała, Zasada władztwa daninowego… [The principle of tribute authority…], pp. 37–38.

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in the Constitution of the Republic of Poland. Some normative clarification of the institution of a public contribution of a monetary nature, resulting from an act of the rank of an act, is introduced by the Act on Public Finance.13 Pursuant to the provision of Art. 5 sec. 2 item 1 of the Act on public finance, public revenues are public tributes which include the following taxes, contributions, fees, payments from profits of state enterprises and one-person companies of the Treasury and state banks, as well as other monetary benefits whose obligation to pay them to the state, local government units, state purpose funds and other units of the public finance sector results from separate acts. Public tributes of a pecuniary nature mainly include taxes, customs duties, social security contributions, as well as administrative fines.

2.

Constitutional standards for the creation of administrative penalties in Poland in light of the jurisprudence of the Constitutional Tribunal

It is possible to identify the basic feature of public tributes under the Polish Constitution characteristic of all public tributes, including administrative fines, which is the exclusivity of the statutory route for its implementation.14 In the jurisprudence of the Constitutional Tribunal, it can be regarded as a well-established position, according to which ‘the institution of monetary penalties related to the problems of sanctions and administrative coercion constitutes an interdisciplinary issue. However, the determination of the legal nature of financial penalties imposed by administrative authorities can never abstract from the legal solutions currently in force which constitute the basis for the imposition of these penalties. In this sense, the last word always belongs to the legislator, who ultimately determines the legal regime of the pecuniary penalty (see M. Szydło, Charakter i struktura prawna administracyjnych kar pieniężnych [Nature and legal structure of administrative pecuniary penalties], “Studia Prawnicze”, 4/2003, p. 123 et seq.). In conclusion, it should be stated that the boundary between an administrative tort and the administrative penalty which is its consequence and an offence is fluid and its definition is within the scope of the discretion of the legislative authority’.15 This leads to the conclusion that the legislator is the only entity entitled to introduce an administrative fine. This means that if such an instrument is introduced to legal turnover,

13 Ustawa z dnia 27 sierpnia 2009 r. o finansach publicznych [Act of 27 August 2009 on public finance], J. of L. 2022, item 1634, as amended. 14 After M. Florczak-Wątor, Artykuł 217 [Article 217], in: Konstytucja Rzeczypospolitej Polskiej. Komentarz, wyd. II [Constitution of the Republic of Poland. Commentary, 2nd edition] ed. P. Tuleja, LEX/el. 2021. 15 Judgment of the Constitutional Tribunal of 15 January 2007, ref. no. P 19/06, J. of L. No. 10, item 69.

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Administrative fines as public tributes in constitutional terms

the Constitutional Tribunal has no power to question this type of liability on the assumption that the introduced regulation meets constitutional requirements, and ‘the empowerment of administrative authorities to impose an administrative fine falls within the scope of the constitutional order and cannot be perceived as an encroachment of the administration into the competences of the judiciary, in which the inquiring court sees a violation of Article 10 of the Constitution’.16 In its jurisprudence, the Constitutional Tribunal has also indicated the principle that sets the limits of interference of public authority bodies in the sphere of constitutional freedoms and the rights of a human being and citizen is the principle of proportionality, which prescribes the moderation of this interference. This principle is expressed in Article 31(3) of the Constitution, and at the same time constitutes one of the standards of the rule of law and thus follows from Article 2 of the Constitution, expressing the rule of law. According to the established jurisprudence of the Constitutional Tribunal, limitations of constitutional rights are compatible with the principle of proportionality if the limitations have the following features: 1) they enable the objectives to be achieved effectively; 2) they are necessary (i. e., it is not possible to achieve the objectives in question by less restrictive means); 3) their effects remain in proportion to the burdens they impose on the individual. This leads to the conclusion that the Legislature may not, in particular, impose penalties that are not necessary for the realisation of constitutional values that justify criminal or repressive interference; nor may penalties be imposed if their effects are not in appropriate proportion to the burdens imposed on the individual.17 It is also accepted in the jurisprudence of the Constitutional Court that administrative liability is objective in nature. This means that reprehensible behaviour is punishable irrespective of the reasons for the violation of the law and the circumstances that led to it, as the fact of violation of the law itself (objective state of illegality) is of key importance. In this context, the principle of the presumption of innocence cannot be applied because, from the point of view of economic order, it is primarily the fact of observance or non-observance of the law that is crucial, for these shape the standards of this order. The objective concept of civil liability (including administrative liability), reminiscent of the Anglo-Saxon concept of strict liability, is not absolute liability. That is, with civil liability, the infringers can

16 Ibid. 17 Judgment of the Constitutional Tribunal of 20 February 2008, ref. no. K 30/07, J. of L. no. 37, item 214.

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absolve themselves from liability if they demonstrates that they did everything that could reasonably have been required of them to prevent the infringement.18 The Constitutional Court thus tried to derive general principles for the entire system of repressive norms, which applied to both civil criminal and administrative law. The scope of sanctioning responsibility in administrative law was particularly controversial,19 as it caused social controversy in a number of situations (e. g., in a situation involving removal of trees without the required permit), as the amount of the administrative penalty was often disproportionate to the extent of the violation of the law. A number of problems arising from special laws in the field of substantive administrative law – which did not always provide for situations in which the entity responsible for the infringement could exempt itself from liability – made it necessary to introduce general provisions dedicated to administrative special penalties. The Code of Administrative Procedure amendment was intended to be an antidote to the existing problems.

3.

Administrative pecuniary penalty – peculiarities in relation to other public levies

The criterion that distinguishes an administrative penalty from other public tributes is the purpose that is to be served by imposing an administrative penalty. This purpose is a certain financial annoyance imposed on an entity that has committed an unlawful act. The doctrine points out the diverse functions of the administrative penalty such as its repressive character, a sanction of a pecuniary nature or a remedy as well as preventive significance.20 It was considered that an administrative monetary penalty is a sanction imposed by an act of application of the law by a public administration body, resulting from an administrative–legal relationship and with ‘negative (unfavourable) consequences for subjects of law who do not comply with the obligations arising from legal

18 Judgment of the Constitutional Tribunal of 4 July 2002, ref. no. P 12/01, J. of L. 2002 no. 113, item 990. 19 For a broader discussion of administrative liability, see M. Karciarz, Stosowanie przez ustawodawcę reżimu odpowiedzialności administracyjnej w świetle orzecznictwa Trybunału Konstytucyjnego [Application of the administrative liability regime by the legislature in the light of the jurisprudence of the Constitutional Court], Adam Mickiewicz University Law Review, vol. 3, 2014, pp. 95–106. 20 G. Domański, Administracyjne kary pieniężne za zanieczyszczenie środowiska [Administrative fines for environmental pollution], Przegląd Ustawodawstwa Gospodarczego no. 12/1976, pp. 331–332.

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Administrative fines as public tributes in constitutional terms

norms or acts of application of the law’.21 A sanction of the administrative type is considered to be any consequence related to the fact of non-fulfilment or incorrect fulfilment of a certain obligation, which should be drawn by the body obliged to watch over the fulfilment of a given obligation.22 In regard to the purpose of administrative penalties, the doctrine of administrative law has emphasised that for administrative acts to be effective, they should in principle be equipped with sanctions. This is because the administrative authority must have the means to carry out its will, in the form of administrative coercion; otherwise, effective (efficient) administration would not be possible.23 The amendment to the Code of Administrative Procedure, which entered into force on 1 June 2017,24 introduced into the provisions of the Code of Administrative Procedure Section IVa, entitled Administrative Fines. The Code defined an administrative penalty in the provision of Article 189b. It shall mean a pecuniary sanction, as defined by law, imposed by a public administration body, by way of a decision, following an infringement of the law consisting of either a failure to comply with an obligation or a violation of a prohibition imposed on a natural person, a legal person or an organisational unit without legal personality. The jurisprudence of the administrative courts explicitly states that this is a different type of liability, as ‘it is not legitimate for the applicant to narrow down the concept of a prohibited act to crimes and misdemeanours only. A prohibited act may also be an act described in administrative law provisions. The sanction for committing such an act does not have to be the criminal sanction provided for in

21 M. Wincenciak, Sankcje w prawie administracyjnym i procedury ich wymierzania [Sanctions in administrative law and the procedures for imposing them], Warszawa 2008, p. 73. 22 H. Nowicki, Sankcje administracyjne [Administrative sanctions] in: System prawa administracyjnego [System of administrative law] eds. R. Hauser, Z. Niewiadomski, A. Wróbel, t. 7 Prawo administracyjne materialne [Substantive administrative law], Warszawa 2012, p. 635; A. JaworowiczRudolf, Funkcje sankcji administracyjnych w ochronie środowiska [Functions of administrative sanctions in environmental protection], in: Sankcje administracyjne [Administrative sanctions] eds. M. Stahl, R. Lewicka, M. Lewicki, Warszawa 2011, p. 221. 23 M. Szydło, Charakter i struktura prawna administracyjnych kar pieniężnych [Nature and legal structure of administrative monetary penalties], “Studia Prawnicze”, 2003/4, pp. 123–125; M. Lewicki, Pojęcie sankcji prawnej w prawie administracyjnym [The concept of legal sanction in administrative law], Państwo i Prawo, 2002/8, p. 75; M. Stahl, Sankcje administracyjne w orzecznictwie Trybunału Konstytucyjnego [Administrative sanctions in the case law of the Constitutional Court], in: Instytucje współczesnego prawa administracyjnego [Institutions of contemporary administrative law], Księga Jubileuszowa Profesora zw. dr hab. Józefa Filipka [Jubilee Book of Professor Józef Filipek], Kraków 2001, p. 658. 24 Ustawa z dnia 7 kwietnia 2017 r. o zmianie ustawy - Kodeks postępowania administracyjnego oraz niektórych innych ustaw [Act of 7 April 2017 amending the Act – Code of Administrative Procedure and certain other acts], J. of L. 2017, item 935.

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the Criminal Code or the Misdemeanours Code. It may also be a sanction provided for in the provisions of administrative law.25 From a normative point of view, the constitutive elements of an administrative fine, therefore, include the following: a) the statutory form of the regulation; b) the nature of the monetary sanction; c) imposition by means of an administrative decision; d) the consequence of an infringement of the law consisting of a failure to comply with an obligation or a breach of a prohibition imposed on a natural person, a legal person or an organisational unit without legal personality.26 The introduced regulation not only defined the notion of an administrative fine but also introduced additional regulations related, inter alia, to the directive on the amount of the fine and the possibility of waiving the imposition of the fine, as well as issues specific to fiscal instruments, such as the statute of limitations on the imposition of a fine and the possibility of applying reductions in a situation where a fine has already been imposed. Therefore, it can be concluded that the regulation introduced is comprehensive in nature, with the proviso that special provisions of law may regulate matters differently according to the principle lex specialis derogat legi generali. It is assumed that ‘the construction of a catalogue of directives for the assessment of an administrative fine obliges the public administration body ruling on the amount of the fine to carry out an analysis of the factual situation including the enumerated factual circumstances therein which are to influence the amount of the fine’.27 The fine should be fair, appropriate to the gravity of the infringement and consistent with the purposes for which it is applied.28 If the circumstances provided for by the Act exist, then the authorised authority is obliged to impose a fine.29 The directives for the assessment of the penalty are set out in Article 189d of the Code of Civil Procedure and include the following: 1) the gravity and circumstances of the violation of the law (in particular, the need to protect life or health, to protect property of significant size or to protect an important public interest or an exceptionally important interest of a party) and the duration of the violation; 2) the frequency of past non-compliance with an obligation or violation of a prohibi-

25 Judgment of the Supreme Administrative Court of 24.02.2022, II OSK 694/19, CBOSA. 26 More extensively R. Stankiewicz, Regulacja administracyjnych kar pieniężnych w Kodeksie postępowania administracyjnego po nowelizacji, [Regulation of administrative monetary penalties in the Code of Administrative Procedure after amendments], Radca Prawny ZN 2/2017, pp. 9–32. 27 R. Suwaj, Zasady nakładania administracyjnych kar kar pieniężnych [Rules on the imposition of administrative fines], Warszawa 2021, p. 177. 28 Judgment of the Voivodship Administrative Court in Gliwice of 25.02.2021, I SA/Gl 1486/20, LEX no. 3156629. 29 Judgment of the Voivodship Administrative Court in Rzeszów of 28.07.2022, II SA/Rz 530/22, LEX no. 3392155.

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Administrative fines as public tributes in constitutional terms

tion of the same type as the non-compliance with an obligation or violation of a prohibition following which the penalty is to be imposed; 3) previous punishment for the same conduct for a criminal offence, fiscal offence, misdemeanour or fiscal offence; 4) the degree of contribution to the violation of the law by the party on whom the administrative monetary penalty is imposed; 5) the actions voluntarily taken by the party to avoid the consequences of the violation of the law; 6) the amount of the benefit the party achieved or the loss it avoided; 7) (in the case of a natural person), the personal conditions of the party on whom the administrative monetary penalty is imposed. The aforementioned personal conditions have been the subject of consideration by both the drafters and the administrative courts. It is indicated, following the views of the doctrine, that they consist of these conditions: material assets, social situation, housing, state of health, employment, family situation and related obligations, and, moreover, the state of conflicts and clashes and the level of integration into the community.30 Furthermore, ‘The concept of “personal conditions” is familiar to criminal law, among others. The understanding of this concept should therefore also be the same on the grounds of administrative liability resulting in the imposition of an administrative fine’.31 The importance of the above-mentioned directives is also pointed out in the jurisprudence of administrative courts that review decisions of public administration bodies on the imposition of penalties. Namely, it is argued that ‘when the Court reviews a decision imposing an administrative fine, the Court is obliged to examine its legality both in terms of the factual premises (existence of a violation of law) and the application of the competence provisions authorising the imposition of an administrative fine. After all, the Administrative Court does not control the amount of the imposed penalty if it is within the statutorily defined amount framework and at the same time it is in compliance with the statutory directives for imposing the penalty’.32 Issues related to the lack of punishment as a result of force majeure (Article 189e of the Code of Administrative Proceedings) and to the abandonment of the imposition of an administrative fine (189f § 1 of the Code of Administrative Proceedings) have also been regulated. Namely, the public administration body, by way of a decision, shall waive the imposition of an administrative fine and stop at an instruction if the following conditions exist: 1) the gravity of the infringement is negligible, and the party has ceased to infringe the law; or 2) an administrative monetary penalty

30 Judgment of the Voivodship Administrative Court in Warsaw of 26.03.2021, VII SA/Wa 1918/20, LEX No. 3172212. 31 Ibid. 32 Judgment of the Voivodship Administrative Court in Warsaw of 27.04.2021, VII SA/Wa 1965/20, CBOSA and judgment of the Voivodship Administrative Court in Gliwice of 16.11.2021, III SA/Gl 702/21, LEX no. 3271194.

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has been previously imposed on the party for the same conduct by a valid decision from another authorised public administration body, or the party has been validly punished for a misdemeanour or fiscal offence or validly sentenced for a criminal offence or fiscal offence and the previous penalty fulfils the purposes for which the administrative monetary penalty would be imposed. It should be noted, however, that ‘Article 189e of the Code of Administrative Procedure does not change the nature of administrative liability for an administrative tort to subjective liability determined by fault and the reasons for the breach. This provision only excludes the possibility of punishing a party in a very special situation, such as force majeure; instead, Article 189f § 1(1) of the Code of Administrative Procedure obliges the authority to refrain from imposing a penalty and to stop at an instruction if the gravity of the violation is negligible and the party has stopped violating the law’.33 At the same time, ‘Acts of public authority “to which one must submit under the threat of sanctions” may be considered as force majeure’.34 Moreover, the determination of the first premise for waiving the imposition of an administrative fine (Article 189f § 1(1) of the Code of Administrative Procedure), which refers to the negligible gravity of the infringement of the law, requires a kind of proportionality test involving the balancing of the hierarchy of goods protected by the law within the framework of a specific factual situation.35 The statute of limitations is characteristic of instruments of a fiscal nature. In this respect, the Act has introduced a uniform limitation period, which amounts to five years counted from the date of the infringement of the right or the occurrence of the consequences of the infringement (Article 189g § 1 of the Code of Administrative Procedure). As A. Wróbel aptly emphasises, ‘The statute of limitations may therefore be understood as a legal institution that excludes the imposition of an administrative fine, the initiation of proceedings for the imposition of this fine or the establishment of a breach of law and the enforcement of an administrative fine. The statute of limitations referred to in § 1 is of a material legal nature, i. e. it should be understood as the statute of limitations on punishability’.36 In addition, relief from the execution of an administrative fine has been introduced (Article 189k of the Code of Administrative Procedure). Importantly, the existence of an important interest of a party justifying the application of the relief

33 Judgment of the Voivodship Administrative Court in Warsaw of 6.07.2020, VI SA/Wa 2285/19, CBOSA. 34 Judgment of the Supreme Administrative Court of 19.11.2021, II GSK 1221/21, LEX no. 3331755. 35 Judgment of the Voivodship Administrative Court in Warsaw of 27.07.2021, V SA/Wa 566/21, LEX no. 3347424. 36 A. Wróbel, Artykuł 189(g) [Article 189(g)], in: M. Jaskowska, M. Wilbrandt-Gotowicz, A. Wróbel, Komentarz aktualizowany do Kodeksu postępowania administracyjnego [Updated Commentary on the Code of Administrative Procedure], LEX/el. 2022.

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Administrative fines as public tributes in constitutional terms

is determined by objective criteria; therefore, the party who applies for the relief is obliged to indicate the premises justifying its application.37 However, this does not exempt the authority from making specific findings in this respect.38 The provision in question refers to the regulations contained in Articles 67a and 67b of the Act of 29 August 1997 – Tax Ordinance.39 Thus, the body of jurisprudence and literature on the provisions of the Tax Ordinance should be used when interpreting Article 189k of the Code of Administrative Procedure.40 Namely, the public administration body that imposed an administrative fine, at the request of a party, in cases justified by an important public interest or an important interest of a party, may grant relief from the execution of an administrative fine by doing the following: 1) postponing the execution of the administrative fine or spreading it into instalments; 2) postponing the execution of the outstanding administrative fine or spreading it into instalments; 3) remitting the administrative fine in whole or in part; 4) remitting interest on late payment in whole or in part.

4.

Conclusions

The purpose of an administrative penalty is to introduce sanctioning norms that should ensure the fulfilment of obligations without the need to initiate enforcement proceedings or to ensure certain attitudes. Institutions of this type are thus intended to induce the addressees to develop a respectful attitude to the applicable law. Currently, general solutions have been introduced in the provisions of the Code of Administrative Procedure, but the possibility of imposing a specific administrative penalty will always result from a detailed regulation constituting a norm of substantive administrative law. The legal solution that has been in place since 2017 embodies the general norms contained in the Polish Constitution regarding the possibility of imposing public tributes. However, the direction of the regulation of fines will be indicated by the practice introduced by the ordinary legislature.

37 Judgment of the Voivodship Administrative Court in Warsaw of 12.02.2021, IV SA/Wa 1897/20, LEX no. 3164906. 38 Ibid. 39 J. of L. 2021, item 1540, as amended. 40 P. M. Przybysz, Artykuł 189(k) [Article 189(k)], in: Kodeks postępowania administracyjnego. Komentarz aktualizowany [Code of Administrative Procedure. Commentary updated], LEX/el. 2022.

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References Legal acts Konstytucja Rzeczypospolitej Polskiej z dnia 2 kwietnia 1997 r. [Constitution of the Republic of Poland of 2 April 1997] J. of L. of 1997, no. 78, item 483, as amended. Ustawa z dnia 27 sierpnia 2009 r. o finansach publicznych [Act of 27 August 2009 on public finance], J. of L. 2022, item 1634, as amended. Ustawa z dnia 7 kwietnia 2017 r. o zmianie ustawy – Kodeks postępowania administracyjnego oraz niektórych innych ustaw [Act of 7 April 2017 amending the Act – Code of Administrative Procedure and certain other acts], J. of L. 2017, item 935.

Jurisdiction Judgment of the Constitutional Tribunal of 4 July 2002, ref. no. P 12/01, J. of L. 2002 no. 113, item 990. Judgment of the Constitutional Tribunal of 15 January 2007, ref. no. P 19/06, J. of L. no. 10, item 69. Judgment of the Constitutional Tribunal of 20 February 2008, ref. no. K 30/07, J. of L. no. 37, item 214. Judgment of the Voivodship Administrative Court in Warsaw of 6.07.2020, VI SA/Wa 2285/ 19, CBOSA. Judgment of the Voivodship Administrative Court in Warsaw of 12.02.2021, IV SA/Wa 1897/20, LEX no. 3164906. Judgment of the Voivodship Administrative Court in Gliwice of 25.02.2021, I SA/Gl 1486/20, LEX no. 3156629. Judgment of the Voivodship Administrative Court in Warsaw of 26.03.2021, VII SA/Wa 1918/20, LEX No. 3172212. Judgment of the Voivodship Administrative Court in Warsaw of 27.04.2021, VII SA/Wa 1965/20, CBOSA. Judgment of the Voivodship Administrative Court in Gliwice of 16.11.2021, III SA/Gl 702/21, LEX no. 3271194. Judgment of the Supreme Administrative Court of 19.11.2021, II GSK 1221/21, LEX no. 3331755. Judgment of the Voivodship Administrative Court in Warsaw of 27.07.2021, V SA/Wa 566/ 21, LEX no. 3347424. Judgment of the Voivodship Administrative Court in Rzeszów of 28.07.2022, II SA/Rz 530/ 22, LEX no. 3392155. Judgment of the Supreme Administrative Court of 24.02.2022, II OSK 694/19, CBOSA.

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Administrative fines as public tributes in constitutional terms

Literature Antonów D., Cechy danin publicznych w polskim systemie prawnym [Features of public tributes in the Polish legal system], Annales Universitatis Marie Curie-Skłodowska, Sectio G, 2016, vol. LXIII, 1. Bień-Kacała A., Uczciwość ustawodawcy daninowego [Integrity of the tribute legislator], Gdańskie Studia Prawnicze, Vol. XXXI, 2014. Bień-Kacała A., Zasada władztwa daninowego w Konstytucji RP z 1997 r. [The principle of tribute authority in the 1997 Constitution of the Republic of Poland], Toruń 2005. Dębowska-Romanowska T., Prawo daninowe – podstawowe pojęcia konstytucyjne i ustawowe, cz. I [Law of tributes – basic constitutional and statutory concepts, part I], Glosa 11/1996. Domański G., Administracyjne kary pieniężne za zanieczyszczenie środowiska [Administrative fines for environmental pollution], Przegląd Ustawodawstwa Gospodarczego no. 12/1976. Florczak-Wątor M., Artykuł 217 [Article 217], in: Konstytucja Rzeczypospolitej Polskiej. Komentarz, wyd. II [Constitution of the Republic of Poland. Commentary, 2nd edition] ed. P. Tuleja, LEX/el. 2021. Jaworowicz-Rudolf A., Funkcje sankcji administracyjnych w ochronie środowiska [Functions of administrative sanctions in environmental protection], in: Sankcje administracyjne [Administrative sanctions] eds. M. Stahl, R. Lewicka, M. Lewicki, Warszawa 2011. Karciarz M., Stosowanie przez ustawodawcę reżimu odpowiedzialności administracyjnej w świetle orzecznictwa Trybunału Konstytucyjnego [Application of the administrative liability regime by the legislature in the light of the jurisprudence of the Constitutional Court], Adam Mickiewicz University Law Review, vol. 3, 2014, pp. 95–106. Kosikowski C., Prawo finansowe. Część ogólna [Financial Law. General Part], Warszawa 2003. Krzywoń A., Podatki i inne daniny publiczne w Konstytucji Rzeczypospolitej Polskiej [Taxes and other public levies in the Constitution of the Republic of Poland], Warszawa 2011. Lewicki M., Pojęcie sankcji prawnej w prawie administracyjnym [The concept of legal sanction in administrative law], Państwo i Prawo, 2002/8. Nowicki H., Sankcje administracyjne [Administrative sanctions] in: System prawa administracyjnego [System of administrative law] eds. R. Hauser, Z. Niewiadomski, A. Wróbel, t. 7 Prawo administracyjne materialne [Substantive administrative law], Warszawa 2012. Przybysz P. M., Artykuł 189(k) [Article 189(k)], in: Kodeks postępowania administracyjnego. Komentarz aktualizowany [Code of Administrative Procedure. Commentary updated], LEX/el. 2022. Smoktunowicz E., Spór o charakter prawny danin publicznych [Dispute over the legal nature of public tributes], Glosa 4/1997. Stahl M., Sankcje administracyjne w orzecznictwie Trybunału Konstytucyjnego [Administrative sanctions in the case law of the Constitutional Court], in: Instytucje współczesnego

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prawa administracyjnego [Institutions of contemporary administrative law], Księga Jubileuszowa Profesora zw. dr hab. Józefa Filipka [Jubilee Book of Professor Józef Filipek], Kraków 2001. Stankiewicz R., Regulacja administracyjnych kar pieniężnych w Kodeksie postępowania administracyjnego po nowelizacji, [Regulation of administrative monetary penalties in the Code of Administrative Procedure after amendments], Radca Prawny ZN 2/2017, pp. 9–32. Suwaj R., Zasady nakładania administracyjnych kar kar pieniężnych [Rules on the imposition of administrative fines], Warszawa 2021. Szalewska M., Ciężary i świadczenia publiczne [Public burdens and benefits], in: System Prawa Administracyjnego. Prawo administracyjne materialne. [System of Administrative Law. Substantive administrative law] Vol. 7, eds. R. Hauser, Z. Niewiadomski, A. Wróbel, Warszawa 2017. Szydło M., Charakter i struktura prawna administracyjnych kar pieniężnych [Nature and legal structure of administrative monetary penalties], Studia Prawnicze, 2003/4. Wincenciak M., Sankcje w prawie administracyjnym i procedury ich wymierzania [Sanctions in administrative law and the procedures for imposing them], Warszawa 2008. Wróbel A., Artykuł 189(g) [Article 189(g)], in: M. Jaskowska, M. Wilbrandt-Gotowicz, A. Wróbel, Komentarz aktualizowany do Kodeksu postępowania administracyjnego [Updated Commentary on the Code of Administrative Procedure], LEX/el. 2022.

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Agnieszka Olesińska, Artur Janicki

Burden of proof in tax proceedings from a constitutional perspective

1.

Introduction

The issue of the burden of proof has been known since antiquity. Even then, lawyers were considering who was to prove and what facts they had to prove during a trial. Roman law gave rise to the concept of onus probandi (burden of proof), which over time became widespread in European legal culture.1 In Roman trials, there was a general rule stating that the burden of proof was on the one who asserts and not on the one who denies: ei incumbit probatio qui dicit, non qui negat. This rule indicated that the plaintiff should prove the facts asserted in the statement of claim. Otherwise, he or she had to expect the dismissal of his or her action. Said rule is now recognised by civil courts in many European countries, including Polish courts. Based on this rule, the Polish legislator decided in Article 6 of the Civil Code2 that the burden of proving a fact rests on the person who derives legal effects from this fact. The concept of the burden of proof developed in private law, but nowadays it is also of interest in the science of public law. There is no obstacle to analysing the burden of proof in criminal, administrative or tax proceedings; however, in none of the mentioned branches of public law has the legislator introduced a general rule along the lines of Article 6 of the Civil Code. Thus, the legislator has not clearly indicated the entity on which the burden of proof should rest. Nonetheless, many legal scholars recognise that studies on the burden of proof are needed to accurately define the rights and obligations of the participants in evidence proceedings. Furthermore, identification of the entity that bears the consequences of failing to prove a given fact is useful for the authority deciding the case. Polish criminalists have been debating the burden of proof in the criminal trial for many years.3 They have adapted this civilian institution to the peculiarities of

1 H. Dolecki, Ciężar dowodu w polskim procesie cywilnym [Burden of Proof in the Polish Civil Trial], Warszawa 1998, pp. 9–16. 2 Ustawa z dnia 23 kwietnia 1964 r. – Kodeks cywilny [Civil Code], J. of L. 2020, item 1740 as amended. 3 Over the years, two main concepts of the burden of proof in a criminal trial have taken shape. The author of the first of these is Stanisław Śliwiński, who emphasised the negative consequences resulting from the absence of evidence or a negative assessment of evidence. See S. Śliwiński, Polski proces karny

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the criminal trial, the primary objective of which is to establish the true facts of the case. Both the prosecutor and the criminal court are obliged to seek evidence of the defendant’s guilt. The accused, on the other hand, does not have to prove his or her innocence, as this would contradict the constitutional principle of the presumption of innocence (Article 42(3) of the Polish Constitution).4 The burden of proof is highly controversial in the science of administrative and tax law.5 There is no consensus on the usefulness of using this term in proceedings conducted by an administrative authority. Lawyers often unreflectively use the terms burden of proof and duty to proof as synonyms. They also have difficulty in identifying situations in which a party to administrative proceedings would have to prove certain factual assertions. Further problems arise at the level of application of the law by tax authorities and administrative courts. Recently, the issue of the burden of proof in tax proceedings has gained importance due to the judgment of the Constitutional Tribunal and the actions of the Polish legislator. The Constitutional Court looked at the issue in a 2013 judgment,6 whose main theses will be referred to in the third point of this paper. In turn, the legislator in 2016 used the term burden of proof for the first time in provisions of a tax act, placing this burden on the taxpayer. In the last two years, the legislator has used the term in question in further tax law provisions without defining it. In view of this, the burden of proof has ceased to be a concept used only by the legal doctrine and case law and has become part of legal language. The purpose of this paper is to examine the validity of using the term burden of proof in tax proceedings and to assess to what extent the issue of the distribution of the burden of proof in tax law can be analysed through the prism of constitutional principles. The authors will identify provisions of substantive tax law in which the legislator explicitly shifts the burden of proof to the taxpayer. In doing so, they will make use of the legal–dogmatic method. In addition, in an attempt to standardise terminology, the authors will take a closer look at the views of doctrine and jurisprudence relevant to the subject under consideration.

przed sądem powszechnym. Zasady ogólne [Polish Criminal Trial before the Common Court. General Principles], Warszawa 1948, pp. 590–593. The second theory was developed by Marian Cieślak, who regarded the burden of proof as the duty to prove in one’s own interest. See M. Cieślak, Polska procedura karna. Podstawowe założenia teoretyczne [Polish Criminal Procedure. Basic Theoretical Assumptions], Warszawa 1984, pp. 280–284. 4 Konstytucja Rzeczypospolitej Polskiej z dnia 2 kwietnia 1997 r. [The Constitution of the Republic of Poland of 2 April 1997], J. of L. 1997, No. 78, item 483 as amended. 5 A synthetic overview of the opinions was provided by D. Strzelec, Dowody i postępowanie dowodowe w prawie podatkowym [Evidence and Evidence Proceedings in Tax Law], Warszawa 2015, pp. 35–36. 6 Judgment of the Constitutional Tribunal of 18.07.2013, SK 18/09, OTK-A 2013/6, item 80.

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Burden of proof in tax proceedings from a constitutional perspective

In the first section, the authors will review and organise the views of the Polish legal doctrine and jurisprudence on the burden of proof in tax proceedings. They will present arguments by supporters of this concept and its opponents. Furthermore, they will draw attention to current jurisprudential trends. In the second point, they will analyse selected provisions of Polish tax laws in which the legislator has imposed the burden of proof on the taxpayer. They will indicate what problems may arise in the application of these provisions. In the third point, the authors will examine the burden of proof in tax proceedings from the perspective of the principles present in the Polish Constitution. Such an approach has not yet appeared in the literature. The authors will take into account the jurisprudence of the Constitutional Tribunal, particularly the judgment concerning the constitutionality of the provisions on taxation of undisclosed income. Finally, they will present the main conclusions arising from the research conducted.

2.

The burden of proof in tax proceedings – views of doctrine and case law

Before the Polish legislator began to use the term burden of proof in tax laws, representatives of the doctrine and judicature debated the possibility of using this term when describing the relationship between the taxpayer and the tax authority.7 In tax proceedings, there is no general rule defining the distribution of the burden of proof.8 In view of this, various opinions on the subject have emerged over the last 20 years. It is worth looking at the main arguments by supporters and opponents of using the concept of the burden of proof in tax proceedings and, in addition, paying attention to the views expressed in judgments of administrative courts. First of all, it should be emphasised that all theories concerning the burden of proof refer to the general principles of procedure, included in the provisions

7 We are referring here to the relations occurring during the evidentiary proceedings that precede the issuance of a decision by the tax authority. As a rule, the administrative court does not conduct evidentiary proceedings, as its role is limited to reviewing the tax authority’s decisions for legality. See B. Brzeziński, M. Masternak, O tak zwanym ciężarze dowodu w postępowaniu podatkowym [On the So-Called Burden of Proof in Tax Proceedings], Przegląd Podatkowy 2004, no. 5, p. 56; A. Mariański, Reguły ciężaru dowodu w postępowaniu podatkowym (polemika) [Rules of Burden of Proof in Tax Proceedings (Polemic)], Przegląd Podatkowy 2005, no. 2, pp. 45–51; A. Mariański, Ciężar dowodu w postępowaniu podatkowym a tendencje orzecznicze [Burden of Proof in Tax Proceedings and Judicial Tendencies], Kwartalnik Prawa Podatkowego 2004, no. 3, pp. 27–39. 8 A. Hanusz, Podstawa faktyczna rozstrzygnięcia podatkowego [Factual Basis for Tax Adjudication], Krakow 2004, p. 183.

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of the Polish Tax Ordinance Act (hereinafter: the TOA).9 Representatives of the doctrine most often refer to the principle of material truth (Article 122 of the TOA). According to this principle, the tax authority should take all necessary measures to clarify the facts of the case precisely. The principle’s particularisation is the principle of completeness of evidence proceedings (Article 187 § 1 of the TOA), which orders the authority to collect and exhaustively consider all the evidence.10 Representatives of the doctrine agree that pursuant to the aforementioned general principles, the tax authority is obliged to collect and examine evidence that is relevant to the resolution of the case.11 The authority may not shift this obligation onto the party and should seek to clarify the facts even if the taxpayer is passive and does not contribute to clarifying the circumstances of the case.12 This is because the basis for the decision of the tax authority can only be such facts that are free of gaps and do not raise doubts. Otherwise, the administrative court will overturn the decision of the authority, following the directive of resolving doubts in favour of the taxpayer (in dubio pro tributario).13 Although the content of the cited principles is clear, representatives of the doctrine draw different conclusions based on them. The first group of researchers recognises the burden of proof as a concept that is useful in tax proceedings and allows this burden to be placed on a party to the proceedings. In their view, the institution of the burden of proof has an important impact on the establishment of full, objective evidence.14 They consider two aspects of it. The first aspect involves determining the facts that must be proved in order to properly establish the facts of the case. The second aspect concerns the assessment of which entity should provide the sources of evidence or indicate the means of proof in order to prove the truth of the factual allegations. This entity bears the consequences of failing to prove the evidentiary thesis.15

9 Ustawa z dnia 29 sierpnia 1997 r. – Ordynacja podatkowa [Tax Ordinance Act], J. of L. 2021, item 1540 as amended. 10 Cf. Judgment of the Supreme Administrative Court of 6.11.2003, I SA/Gd 1237/00. All judgments of administrative courts referred to are taken from the Central Database of the Jurisprudence of Administrative Courts (Centralna Baza Orzeczeń Sądów Administracyjnych). 11 B. Brzeziński, M. Masternak, (above n. 7), pp. 57–58; D. Strzelec, Obowiązek wyjaśnienia stanu faktycznego w postępowaniu podatkowym [Duty to Clarify the Facts in Tax Proceedings], Monitor Podatkowy 2008, no. 12, pp. 23–30. 12 A. Mariański, (above n. 7), p. 46. 13 More extensively: A. Janicki, Zasada rozstrzygania wątpliwości na korzyść podatnika. Analiza poglądów doktryny i orzecznictwa [The principle of resolving doubts in favour of the taxpayer. Analysis of doctrine and judicial practice], Toruń 2020, pp. 58–68. 14 A. Hanusz, (above n. 8), pp. 180–181; Z. Kmieciak, Zarys teorii postępowania administracyjnego [Outline of the Theory of Administrative Proceedings], Warszawa 2014, pp. 212–214. 15 Ibid., pp. 181–182.

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Burden of proof in tax proceedings from a constitutional perspective

The burden of proof, understood in this way, may lie either with the tax authority or with a party to the proceedings.16 Sometimes, this is determined by specific provisions of tax laws. The legislator places the burden of proof on the taxpayer when the legislator expressly obliges the taxpayer to produce certain documents, books of account, registers or records kept for tax purposes. It happens that the distribution of the burden of proof does not result directly from the provisions of the tax laws but only indirectly from the construction of the tax in question. For example, it has been pointed out that this is the case for deductible expenses in income taxes. The burden of proof may also fall on the taxpayer when he or she contests the previous findings of the authority. This is because it follows from the principles of logic that the burden of proof is on anyone who makes assertions of fact.17 According to the theory under discussion, the taxpayer should prove the truth of his or her assertion. Otherwise, the claim in question will not have the effect desired by the taxpayer.18 If it were not possible to place the burden of proof on the taxpayer, the tax authorities would not be able to establish the true state of facts in those cases where only the taxpayer has access to certain data. Representatives of the theory under discussion emphasise that the burden of proof has a positive effect on the efficiency and speed of proceedings, as it stimulates the party to the proceedings to undertake evidentiary activity.19 The second group of researchers is against the application of the burden of proof in tax proceedings. They conclude that the burden of proof is characteristic of adversarial proceedings.20 As is well known, adversarialism occurs when equal parties conduct a dispute before an impartial arbitrator. The parties present their theses and point to evidence to support them. The court, which decides the case,

16 For example, according to A. Gomułowicz, the burden of proof means that the tax authority is obliged to gather appropriate sources of evidence and to use means of proof in order to demonstrate the truth of the evidentiary theses, assertions, allegations put forward by the authority; see A. Gomułowicz, Podatnik a władza – problem bezpieczeństwa prawnego [The Taxpayer and The Authority – Problem of Legal Security] in: Ochrona praw podatnika, diagnoza sytuacji [Protection of Taxpayers’ Rights, Diagnosis of the Situation], ed. A. Franczak, Warszawa 2021, p. 157. 17 A. Hanusz, (above n. 8), pp. 196–206. 18 K. Stanik, Ciężar dowodu w postępowaniu podatkowym [Burden of Proof in Tax Proceedings], Zeszyty Naukowe Instytutu Administracji Akademii im. Jana Długosza w Częstochowie, Seria: Gubernaculum et Administratio 2006, z. 4, pp. 111–113. 19 According to Z. Kmieciak, a similar function to the burden of proof is performed by the system of evidentiary preclusion, which is not present in the Polish tax procedure, although it appears in the legal systems of other countries. See Z. Kmieciak, (above n. 14), pp. 215–216. Evidence preclusion in tax cases has been strongly opposed by other doctrine representatives, see L. Etel, D. Strzelec, Czy potrzebna jest prekluzja dowodowa w procedurach podatkowych? [Is There a Need for Evidence Preclusion in Tax Procedures?], Krytyka Prawa 2021, no. 4, pp. 88–105. 20 B. Brzeziński, M. Masternak, (above n. 7), pp. 56–57.

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remains passive and rules on the basis of the evidence provided by the parties.21 However, tax proceedings are not adversarial in principle. It involves a weaker party (the taxpayer) and a stronger party (the tax authority).22 The tax authority interferes in the taxpayer’s sphere of freedom and unilaterally decides on his or her legal situation. In addition, it has its own powers and duties, including, inter alia, deciding on the initiation of proceedings, determining the scope of the proceedings and conducting evidence proceedings. The dominance of the tax authority over the taxpayer is mitigated by the general rules under the Tax Ordinance Act. Their purpose is to balance the relationship occurring between the entity entitled to tax and the entity obliged to pay it.23 According to some representatives of the doctrine, the prevailing principles and the division of roles in tax proceedings determine that the burden of proof does not exist in it. In their view, it cannot be the case that the duty to prove certain facts rests once on the tax authority and another time on the taxpayer. The competence of the tax authority should therefore not be transferred to any other entity.24 In view of this, it is inadmissible to refer in tax proceedings to the general rule of the burden of proof applicable in civil proceedings (Article 6 of the Civil Code).25 Opponents of the application of the burden of proof in tax proceedings note that there may be a situation where the taxpayer has a certain source of evidence (e. g., a document), and the outcome of the proceedings depends on the submission of that document. The requirement for the taxpayer to produce a certain document may even arise directly from the provisions of tax laws. However, this should not affect the rights of a party to the proceedings or the obligations of the tax authority. Moreover, the law does not provide any sanctions for a party that does not actively participate in the tax proceedings.26 A party only has to fulfil legally defined, instrumental duties. The tax authority, on the other hand, in accordance

21 D. Strzelec, (above n. 11), p. 26. 22 A. Nita, Wymuszona współpraca podatnika w procesie wymiaru podatku [Forced Cooperation of the Taxpayer in the Tax Assessment Process], Państwo i Prawo 2013, no. 12, pp. 38–39. 23 Ibid., pp. 39–40. 24 A. Nita, Zakres i ciężar dowodu w postępowaniach dotyczących zobowiązań podatkowych [Scope and Burden of Proof in Tax Liability Proceedings], in: H. Dzwonkowski, J. Kulicki, eds. Dylematy reformy systemu podatkowego w Polsce [Dilemmas of Tax System Reform in Poland], Warszawa 2016, p. 277. 25 See B. Brzeziński, M. Masternak, (above n. 7), p. 58; D. Strzelec, (above n. 11), p. 30; I. Nowak, Ciężar dowodzenia w postępowaniu podatkowym – podstawowe problemy [Burden of Proof in Tax Proceedings – Basic Problems], in: Stanowienie i stosowanie prawa podatkowego w Polsce. Ocena i kierunki zmian [Establishing and Applying Tax Law in Poland. Assessment and Directions of Changes], eds. B. Kucia-Guściora, M. Münnich, A. Zdunek, R. Zieliński, Lublin 2016, p. 187. 26 D. Strzelec, (above n. 11), p. 29.

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Burden of proof in tax proceedings from a constitutional perspective

with the principle of material truth, should strive to clarify all relevant circumstances of the case regardless of the attitude of a party to the proceedings.27 The question must be raised as to the reasons for the dispute at issue in the doctrine of tax law. It seems that the source of disagreement is the different understandings of the concept of burden of proof. According to those scholars who oppose the imposition of the burden of proof on the taxpayer, the burden of proof determines who is obliged to indicate evidence or collect it (i. e., who is obliged to establish the material truth).28 They use the terms burden of proof and duty to proof interchangeably, without noticing the differences between them.29 However, giving the same meaning to both terms is not quite correct. The duty to proof is defined in the literature as the normative obligation to take evidence.30 It encompasses the search for, gathering and conducting of evidence, as well as its evaluation. Both the burden of proof and the duty to proof can therefore be considered duties. However, what distinguishes the two concepts is the nature of these duties and the source of their validity. The burden of proof has its origin in praxeology and the civilian concept of the procedural burden. The distribution of the burden of proof may be determined by certain provisions of substantive tax law. The duty to proof, on the other hand, derives from the provisions of tax procedure. The normative basis for its imposition on the tax authority are the already mentioned principles of material truth and completeness of evidence.31 Furthermore, the duty to prove is carried out both in the public interest and in the interest of the parties to the tax proceedings and not in the self-interest of the entity concerned, as is the case with the burden of proof. For these reasons, it should be postulated that the terms burden of proof and duty to proof should be distinguished in the context of tax procedure, as is done in the science of criminal procedure.32

27 28 29 30 31

B. Brzeziński, M. Masternak, (above n. 7), pp. 57–59; A. Nita, (above n. 24), p. 284. A. Mariański, (above n. 7), p. 45. See D. Strzelec, (above n. 11), pp. 29–30. A. Hanusz, (above n. 8), pp. 179–180. Ibid., pp. 191–192. The imposition of the burden of proof on the tax authority is also supported by the presumption of correctness of the tax return submitted by the taxpayer, included in Article 21 § 2 and 5 of the TOA. 32 See P. Kardas, Determinanty ciężaru dowodu i ciężaru (obowiązku) dowodzenia w procesie karnym [Determinants of the Burden of Proof and the Burden (Duty) of Proof in a Criminal Trial], in: W. Jasiński, J. Skorupka, eds. Ciężar dowodu i obowiązek dowodzenia w procesie karnym [The Burden of Proof and the Duty to Prove in a Criminal Trial], Warszawa 2017, pp. 81–82; M. Żbikowska, Ciężar dowodu w polskim procesie karnym [Burden of Proof in the Polish Criminal Trial], Warszawa 2019, pp. 192–201.

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Finally, it is important to examine how the judicature views the burden of proof.33 The Polish administrative courts recognise, as does the doctrine of tax law, that the tax authority should strive to ensure that the evidence is complete (i. e., that all evidence has been collected and considered, evidence applications have been carried out and the proven facts constitute a complete, coherent and logical whole).34 The courts address the issue of placing the burden of proof on the taxpayer differently. There is a widespread view in case law that the tax authority’s duty to seek evidence is not unlimited.35 If the taxpayer does not signal the existence of other evidence or does not provide data to support his or her claims, he or she bears the negative consequences of this.36 This jurisprudential position clearly refers to the general rule of the burden of proof established in the science of logic, the content of which reads as follows: the one who makes a given assertion should prove it. Furthermore, the administrative courts often point to the so-called duty of the taxpayer to cooperate with the tax authority in establishing certain facts. According to the judicature, this duty concerns those facts of which only the taxpayer is aware, and the failure to prove them may affect the outcome of the proceedings. Consequently, a taxpayer who disputes some evidence or findings of the authority should show the initiative of proof and convince the authority of his or her reasons.37 It must be stated that the ‘duty to cooperate’ analysed here is a creation of the judicature and finds no sufficient basis in the provisions of tax law. In particular, it cannot be derived from the principle of completeness of evidence, which is addressed exclusively to the tax authority. For this reason, attempts to impose the ‘duty’ in question on the taxpayer are opposed both by the Constitutional Tribunal38 and some representatives of the legal doctrine.39

33 Cf. the overview of the positions of administrative courts presented in the monograph D. Strzelec, (above n. 5), pp. 36–46. 34 See, for example, Judgment of Regional Administrative Court in Cracow of 15.11.2010, I SA/Kr 409/10. 35 See, for example, Judgments of the Supreme Administrative Court of 24.05.2004, FSK 78/04; of 12.04.2011, I FSK 693/10; of 29.03.2022, II FSK 1925/19. 36 See, for example, Judgment of the Supreme Administrative Court of 17.10.2008, I GSK 1114/07; Judgment of the Regional Administrative Court in Gdansk of 18.10.2017, I SA/Gd 735/17. 37 See, for example, Judgments of the Supreme Administrative Court of 11.03.2011, I FSK 473/10; of 08.04.2011, I FSK 927/10; of 19.08.2020, II FSK 1261/18. 38 Above n. 6. 39 See A. Nita, (above n. 22), pp. 31–45; I. Nowak, (above n. 25), p. 195.

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Burden of proof in tax proceedings from a constitutional perspective

3.

Burden of proof in tax legislation

In the first section of this paper, the views of doctrine and jurisprudence that generally refer to the burden of proof and the duty to proof in tax proceedings were presented and commented upon. It is therefore appropriate here to discuss those exceptional cases in which the legislator explicitly imposes the obligation to prove certain facts on the taxpayer, frequently using the term burden of proof in the text of laws.40 Examples of this legislative practice can be found in the provisions of the Tax Ordinance Act concerning the liability of members of the management board of capital companies for the company’s tax arrears, as well as in several provisions of income tax acts. It is worth identifying these substantive law norms in order to determine their impact on the distribution of the burden of proof. The first chronological example of such regulation is the provision of Article 116 § 1 of the TOA, in force since 1.01.1998.41 The provision defines positive and negative prerequisites for the liability of a member of the management board of a capital company for the company’s tax arrears. According to the literal interpretation of this provision, the tax authority that conducts proceedings under this article should first examine the existence of positive prerequisites for conditioning the liability of a member of the management board. Once these have been established, the member of the management board should demonstrate at least one premise exempting him or her from liability. He or she may, for example, point to the fact of timely filing of a bankruptcy petition or the absence of fault in not filing a bankruptcy petition. As the administrative courts point out in their rulings, the member of the management board bears the burden of proving the circumstances exonerating him or her from liability and the associated evidentiary risk, and the role of the authority is limited to assessing the evidence presented by the member of the management board.42 In the opinion of the adjudicating panels, this understanding of the provision in question is also supported by considerations of expediency.43

40 It was already noted a few years ago that the group of provisions imposing the burden of proof on a party to tax proceedings is internally diverse and constantly evolving, cf. D. Strzelec, (above n. 5), p. 409. 41 The content of the regulation in question was critically assessed by some representatives of the doctrine shortly after its entry into force: see R. Kubacki, Ordynacja podatkowa. Zasady odpowiedzialności zarządców spółek kapitałowych za zobowiązania podatkowe [Tax Ordinance Act. Principles of Liability of Managers of Capital Companies for Tax Liabilities], Przegląd Podatkowy 1998, no. 2, pp. 3–4. 42 See, for example, Judgments of the Supreme Administrative Court of 15.04.2014, I GSK 793/12; of 12.04.2018, II FSK 2429/17. 43 See, for example, Judgments of the Supreme Administrative Court of 07.07.2009, II FSK 371/08; of 11.05.2022, III FSK 532/21.

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However, the issue of proving facts that exonerate a member of the management board from liability is not as clear-cut as the case law presents it. As the representatives of the doctrine of law aptly point out, the formula used by the legislator in the provision in question may be misleading for several reasons.44 Firstly, the formulation that the member of the management board is to prove a circumstance is imprecise. That is, the subject may only address relevant requests for evidence to the authority. Secondly, due to the exceptional nature of third-party liability, it is the role of the authority to examine all the circumstances that give rise to it. The boundaries between the positive and negative prerequisites for liability are blurred in practice, making it difficult to separate the claims that should be proven by the member of the management board from the claims that the tax authority is obliged to prove.45 Thirdly, the provision in question does not abrogate the general rules of evidence. The tax authority should still seek to establish the material truth and take into account all the evidence gathered in the case. The taxpayer cannot bear the burden of taxation on the basis of fictitious facts, as this would go beyond the constitutionally guaranteed scope of taxation.46 Therefore, if a person other than the member of the management board would present documents prejudging the existence of a negative condition for liability, the tax authority should take them into account and, consequently, release the member of the management board from liability for the company’s tax arrears. A second example of the explicit imposition of the burden of proof on the taxpayer is the provision of Article 25g of the Personal Income Tax Act,47 which is related to cases of taxation of income from undisclosed sources. As indicated by the doctrine of law, the proceedings in these cases are of a special nature. This is because the provision is aimed at taxing income that has not been disclosed by the taxpayer. The tax authority determines that the taxpayer has obtained a certain amount of income thanks to information on the amount of his or her expenses. This way of making factual findings raises a number of problems in the course of evidence proceedings. In particular, the need to prove the fact that the taxpayer incurred expenses from

44 J. Olesiak, Odpowiedzialność członków zarządu spółek kapitałowych za ich zaległości podatkowe jako ciężar publiczny w świetle zasady proporcjonalności z art. 31 ust. 3 Konstytucji RP [Liability of Board Members of Capital Companies for their Tax Arrears as a Public Burden in the Light of the Proportionality Principle of Article 31(3) of the Constitution of the Republic of Poland], Lodz 2020, pp. 175–176. 45 More extensively: J. Olesiak, (above n. 44), pp. 176–180. 46 A. Mariański, (above n. 7), p. 48. 47 Ustawa z dnia 26 lipca 1991 r. o podatku dochodowym od osób fizycznych [Personal Income Tax Act], J. of L. 2021, item 1128 as amended.

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Burden of proof in tax proceedings from a constitutional perspective

previously disclosed income (taxed or exempt) raises difficulties.48 A practice has become established among the tax authorities of putting the onus on the taxpayer to prove from what source and in what amount the income was used to finance his or her expenses. As the legal basis for this practice, the authorities accepted Article 20(3) of the Personal Income Tax Act, which stated that the amount of undisclosed income is determined on the basis of expenses incurred by the taxpayer in the tax year and the value of property accumulated in that year, if such expenses and values are not covered by the property accumulated by the taxpayer. This practice has been accepted by the administrative courts, considering that only the taxpayer has the knowledge in this respect. Thus, a line of case law unfavourable to taxpayers was formed, according to which the existence of a legal presumption regarding the existence of undisclosed income was assumed.49 This practice ended by the 2013 judgment of the Constitutional Tribunal.50 The main theses of this judgment will be presented in section three of this paper. At this point, it is sufficient to point out that the Tribunal declared the provision of Article 20(3) unconstitutional. As a result of this judgment, the legislator was forced to introduce new provisions on the taxation of undisclosed income, which came into force on 01.01.2016. Among other things, the legislator introduced the aforementioned Article 25g into the Personal Income Tax Act, in which it expressly placed the burden of proof on the taxpayer to demonstrate the income that constitutes the coverage of the expense. Thus, the legislator prejudged that the tax authority is not obliged to look for the source and amount of the income used by the taxpayer to finance certain expenses. However, it should be emphasised that this provision does not abrogate the duties of the tax authority in relation to the conduct of the evidence proceedings, particularly the duty to seek to establish the material truth. Therefore, if the authority obtains data on the source and amount of undisclosed income from the office or from a third party, it should take this data into account when deciding the case. Furthermore, it should be noted that the legislator, despite the use of the term burden of proof in the wording of Article 25g of the Personal Income Tax Act, rather had in mind the obligation of the taxpayer to submit relevant documents. These documents are subject to a discretionary assessment by the authority conducting the case. It is worth mentioning that in the last two years, the legislator has introduced four further provisions in which it has used the term burden of proof. These are Articles 21(41) and 24(8dc) of the Personal Income Tax Act and Articles 12(12a–12b) and

48 A. Mariański, Wybrane zagadnienia dowodowe w postępowaniu w sprawie opodatkowania dochodów z nieujawnionych źródeł przychodów [Selected Evidentiary Issues in Proceedings on Taxation of Income from Undisclosed Sources of Revenue], Przegląd Podatkowy 2007, no. 7, p. 7. 49 See, for example, Judgments of the Supreme Administrative Court of 10.3.2011, II FSK 1891/09; of 20.3.2013, II FSK 1610/11. 50 Above n. 6.

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28m(5) of the Corporate Income Tax Act.51 These provisions have not yet become the focus of legal doctrine and administrative courts. Nevertheless, it must be assumed that all the observations made in the previous paragraph apply to them.

4.

The burden of proof in tax proceedings in light of the Polish Constitution

The Polish Constitution does not contain a provision that explicitly refers to the burden of proof (or the duty to prove) in tax or administrative proceedings. This does not mean, however, that constitutional regulations are irrelevant to the issue of evidence proceedings (burden of proof) in tax cases. This issue was analysed by the Constitutional Tribunal in its ruling of 18 July 2013 (ref. SK 18/09).52 The judgment concerned the taxation of income from undisclosed sources (undisclosed revenue).53 The Constitutional Tribunal found that Article 20(3) of the Personal Income Tax Act and Article 68b(4) of the Tax Ordinance Act are inconsistent with Article 2 in conjunction with Article 64(1) of the Polish Constitution. He stated that the provisions are too laconic, vague and ambiguous. In addition, he voiced a number of criticisms of the distribution of the burden of proof in these cases and concluded that this last aspect was also the reason for declaring the regulation unconstitutional. He devoted extensive arguments to it in the justification of the judgment. These arguments are important because their significance goes beyond the specific case of taxation of undisclosed income.54 Indeed, the justification of this particular judgment is the broadest, most comprehensive statement of the Constitutional Tribunal on the subject of the burden of proof in tax matters. The Constitutional Tribunal emphasised the importance that the principle of objective truth has in tax proceedings. Pursuant to Article 122 of the TOA, in the course of the proceedings, the tax authorities must take all necessary measures to accurately clarify the factual situation and settle the case, while in light of Article 187 § 1 of the TOA, the tax authority is obliged to collect and exhaustively consider all

51 Ustawa z dnia 15 lutego 1992 r. o podatku dochodowym od osób prawnych [Corporate Income Tax Act], J. of L. 2021, item 1800 as amended. 52 Above n. 6. 53 Undisclosed income is income that the taxpayer has clearly earned, which can be assessed on the basis of his or her expenses. At the same time, however, it is income that is not ‘substantiated’ by sources of income known to the tax authorities and which, even in the course of tax proceedings, cannot be linked to any known source of income listed in the Personal Income Tax Act. 54 D. Strzelec, Wyrok Trybunału Konstytucyjnego w sprawie dochodów nieujawnionych [Judgment of the Constitutional Tribunal on Undisclosed Income], Przegląd Podatkowy 2013, no. 11, pp. 13–21.

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Burden of proof in tax proceedings from a constitutional perspective

the evidence. In the opinion of the Constitutional Tribunal, it follows from the cited legal provisions that the duty to prove the circumstances determining the possibility of taxation (i. e., in the case under consideration: taxation of undisclosed income) should be imposed on the tax authorities, with the reservation, however, that this should take place with the cooperation of the taxpayer. The Court stigmatised the situation existing in the area of tax assessment of income from undisclosed sources, where the burden of proof was shaped in a different way, and this did not happen by virtue of an explicit provision; rather, such a practice was formed in proceedings before the tax authorities and was approved by the administrative courts. The Court noted that, in practice, the tax authority is obliged to establish the amount of expenses incurred by the taxpayer and the value of the property accumulated by the taxpayer and to prove that they exceed the income declared by the taxpayer in his or her tax return. However, it is the taxpayer who must prove that his or her expenses were covered by income from specific sources (i. e., his or her income was previously taxed or was tax-exempt but came from a known source). The Constitutional Tribunal was critical of the fact that, in practice, the tax authorities were not obliged to look for evidence proving that the taxpayer had the means to cover all his or her expenses and, therefore, that he or she did not earn income from undisclosed sources. The Tribunal is not competent to exercise control over acts of law application.55 Therefore, an incorrect practice of the tax authorities could not in itself be the subject of a constitutional complaint.56 However, the Tribunal assumed that the provision challenged in the complaint has such a meaning as is assumed in the practice of law application, and thus arguments about its incorrect understanding and application by tax authorities and courts became one of the reasons for establishing the inconsistency of the legal regulation in question in regard to the Constitution. The Constitutional Tribunal found the existing practice inappropriate. It took the position that due to the provisions of the TOA, the tax authorities are obliged to collect evidence that enables the examination of the case, so they should conse-

55 See E. Prejs, Skarga konstytucyjna jako środek ochrony praw podatnika [Constitutional Complaint as a Means of Protecting Taxpayers’ Rights], in: Ochrona praw podatnika, diagnoza sytuacji [Protection of Taxpayers’ Rights, Diagnosis of the Situation], ed. A. Franczak, Warszawa 2021, p. 318; E. Prejs, Wartości konstytucyjne a prawo podatkowe w orzecznictwie Trybunału Konstytucyjnego [Constitutional Values and Tax Law in the Jurisprudence of the Constitutional Tribunal], in: Prawo podatkowe. Teoria, instytucje, funkcjonowanie [Tax law. Theory, Institutions, Functioning], ed. B. Brzeziński, Toruń 2009. 56 E. Prejs, Skarga (above n. 55), p. 218; cf. decision of the Constitutional Tribunal of 11 December 2002, SK 17/02, OTK-A 2002/7, item 98.

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quently collect evidence both in favour of and against the taxpayer.57 The Tribunal recognised the fact that the taxpayer has the best knowledge of his/her income and assets, and without his/her cooperation, it may be impossible for the tax authorities to obtain certain information or evidence. It found, however, that the provisions relating to the taxation of undisclosed income and the provisions of the TOA governing the tax procedure did not provide a basis for imposing the burden of proof on the taxpayer. Such a situation was deemed inadmissible by the Constitutional Tribunal, and this is the first of the rules it enunciated in the judgment of 18 July 2013, the significance of which goes beyond the individual case considered in this judgment. The Constitutional Tribunal further stated that the principle expressed in Article 6 of the Civil Code – that the burden of proving a fact rests on the person who derives legal consequences from that fact – is not a system-wide rule (it is not a general principle of the Polish legal system). In the opinion of the Tribunal, if such a rule were to apply in tax proceedings, it would have to be expressed in the provisions of the TOA or substantive tax law. In the judgment under discussion, the Constitutional Tribunal criticised the practice of shifting the burden of proof to the taxpayer when this is not provided for by an express provision of law. At the same time, however, it is important to note that the Court did not rule out the admissibility of imposing the burden of proof on the taxpayer by virtue of a statutory provision. The fact that it considered it permissible for the law to impose the burden of proof on the taxpayer – to a certain extent – is evidenced by the fact that the guidelines for the lawmaker who will be establishing a new regulation on the taxation of income from undisclosed sources (in place of the one that the Court found to be unconstitutional) included a statement that the new provisions should specify the scope of evidentiary obligations incumbent on the tax authority and the taxpayer in the proceedings to establish the tax on undisclosed income, taking into account the characteristics of individual sources of income. In particular, the Court indicated that the scope of the documentation to be provided, if any, by the taxpayer in order to prove the settlement of a tax liability or the non-arising of such a liability should be specified. Apart from this, however, the Constituional Tribunal did not rule on whether there are any conditions or prerequisites which make it permissible to impose the burden of proof on the taxpayer.

57 Cf. D. Strzelec, Opodatkowanie przychodów nieznajdujących pokrycia w ujawnionych źródłach lub pochodzących ze źródeł nieujawnionych [Taxation of Revenues Not Covered by Disclosed Sources or Revenues from Undisclosed Sources], Warszawa 2015, p. 160.

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Burden of proof in tax proceedings from a constitutional perspective

5.

Conclusions

It follows from the judgment of 18 July 2013 (ref. SK 18/09) presented above that the Constitutional Tribunal did not indicate to the legislator the criteria for imposing the burden of proof on the taxpayer in tax cases. Therefore, the question may be asked whether such criteria exist? The answer, in our opinion, is in the affirmative. This can be indirectly deduced from the content of the analysed judgment of the Tribunal. Since making its recommendations to the legislature, the Tribunal mentioned that it should determine ‘the extent of the burden of proof incumbent on the tax authority and the taxpayer’. This means that, for example, a rule that vaguely states that the taxpayer must prove circumstances favourable to himself or herself would be insufficient. Secondly, the Court indicated that the legislator is to do so while ‘taking into account the characteristics of the various sources of revenue’. This means that the legislator should rely on substantive criteria. Thirdly and finally, the Court suggested that the legislator should specify what, if any, evidence (documentation) the taxpayer should submit to show that he or she has paid tax on particular income in the past. It is therefore reasonable to argue that, according to the Tribunal, the legislator does not enjoy full freedom to unrestrainedly impose on the taxpayer the burden of proof – understood as the obligation, carried out in one’s own interest, to provide the tax authority with evidence (documents) that prove the truth of certain factual assertions. It should be recognised that the admissibility of imposing the burden of proof on the taxpayer is conditioned not only by the requirements of correct legislation, derived from Article 2 of the Constitution of the Republic of Poland. The admissibility of imposing the burden of proof on the taxpayer (or another entity in the tax sphere) is also subject to assessment through the prism of the principle of proportionality arising from Article 31(3) of the Polish Constitution. The principle dictates the maintenance of an appropriate proportion between the measure, which is the restriction of a given right or freedom of an individual, and the goal of the legislator, which is the broadly understood public interest. The aforementioned provision does not constitute a completely independent benchmark for the control of the constitutionality of laws.58 Therefore, it should be borne in mind that the result of imposing a burden of proof on a specific entity in the tax sphere may interfere with the right to property. After all, the imposition of a tax constitutes a

58 So, inter alia, the Constitutional Tribunal in its judgment of 22.09.2005, Kp 1/05, OTK-A 2005/ 8, item 93. See A. Mudrecki, Zasada proporcjonalności w prawie podatkowym [The principle of proportionality in tax law], Warszawa 2020, p. 181.

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restriction of the right to property, guaranteed by Article 21(1) of the Constitution of the Republic of Poland. The empowerment of such a limitation is found in Article 84 of the Polish Constitution.59 It should be noted in this context that it is not uncommon in tax matters for there to be a rule that leads to the imposition of a financial burden on the taxpayer, and the waiver of this rule requires proof of certain facts (circumstances) by the person concerned. The legal norm thus establishes a peculiar presumption, which can be rebutted as a result of the evidentiary activity of the subject potentially burdened with tax liability. Thus, passivity (i. e., a lack of evidentiary activity) by the interested party may in this situation result in negative consequences for him or her, which are then subject to assessment through the prism of Article 31(3) in conjunction with Article 21(1) of the Constitution of the Republic of Poland. If the statutory solution specifying the distribution of the burden of proof leads to a limitation of the use of the constitutionally protected right to property, then the field for analysis of the regulation – particularly in its procedural dimension (aspect) – opens up through the prism of the principle of proportionality. Tax law is primarily concerned with the imposition of taxes on those who find themselves in certain situations (having earned income, owning property, etc.) However, it should be noted that tax law also contains a number of solutions that cannot be described as ‘imposing a tax’, but rather imposing an obligation to bear a financial burden in the form of a tax that was in principle incumbent on someone else (i. e., imposed on someone else). For example, a notary who, as a tax remitter, has failed to fulfil his or her obligation to collect the tax on civil law transactions from the parties to a sales contract concluded before him or her is obliged to pay the uncollected amount (to the tax authority) in accordance with Article 30 § 1 of the TOA. However, the notary may absolve himself/herself from liability by pointing out that the failure to collect the tax occurred through no fault of his/her own. Such a rule, which clearly places the burden of proof on the notary, is laid down in Article 10 § 3c of the Tax on Civil Law Transactions Act.60 The notary’s passivity (failure to prove that he/she was not at fault for the failure to collect the tax) results in his/her financial liability. Namely, he/she will be obliged to pay the tax instead of the taxpayer who purchased the property. In our opinion, this regulation (in the context of imposing the burden of proof on the notary) does not raise any

59 ‘Everyone shall comply with his responsibilities and public duties, including the payment of taxes, as specified by statute’, https://www.sejm.gov.pl/prawo/konst/angielski/kon1.htm 60 ‘Tax remitters are not liable for uncollected tax if they show that they are not at fault in not collecting it’, Article 10(3c) of the Tax on Civil Law Transactions Act – Ustawy z dnia 9 września 2000 r. o podatku od czynności cywilnoprawnych, J. of L. 2022, item 111. See S. Bogucki, A. Wacławczyk, K. Winiarski, Podatek od czynności cywilnoprawnych. Komentarz [Tax on Civil Law Transactions. Commentary], Warszawa 2021, pp. 622–624.

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Burden of proof in tax proceedings from a constitutional perspective

objections as to its compliance with the principle of proportionality expressed in Article 31(3) of the Constitution of the Republic of Poland, but at the same time it is a good illustration of the fact that such a test is desirable in many cases.61 The assessment of the constitutionality of provisions imposing the burden of proof on a party to tax proceedings should be influenced by whether that party has exclusive and relatively easy access to the sources of evidence to present to the tax authority. A subsidiary criterion should perhaps be to consider to whom it is easier to obtain a particular piece of evidence: the tax authority or the party on whom the burden of proof is imposed. It seems that the ease of obtaining the evidence for the taxpayer should be an argument for considering that the principle of proportionality has not been violated, while the difficulty of presenting the evidence should be considered as an argument undermining compliance with the principle of proportionality. On the other hand, there is no objection to the statutory requirement for the taxpayer to present documents justifying the right to benefit from a tax exemption or tax credit, which the taxpayer must have under separate provisions of the tax laws. There is no exclusion against the legislator establishing certain fragmentary, narrowly defined areas in which the initiative of proof may be imposed on the taxpayer, under threat of considering certain circumstances as not proven. However, the legislator should do so with great caution, aware of the fact that the solutions adopted may affect the assessment of whether the principle of proportionality has been violated by creating the risk of interfering too radically in the sphere of property.

References Legal acts Konstytucja Rzeczypospolitej Polskiej z dnia 2 kwietnia 1997 r. [The Constitution of the Republic of Poland of 2 April 1997], J. of L. 1997, No. 78, item 483 as amended. Ustawa z dnia 23 kwietnia 1964 r. – Kodeks cywilny [Civil Code], J. of L. 2020, item 1740 as amended. Ustawa z dnia 26 lipca 1991 r. o podatku dochodowym od osób fizycznych [Personal Income Tax Act], J. of L. 2021, item 1128 as amended.

61 As an aside, objections to compliance with the principle of proportionality were raised in the past, when the provision of Article 10(3c) was not yet in place (i. e., when the notary was not able to free himself/herself from financial liability even if he/she was not at fault for not collecting the tax); see A. Olesińska, Kto powinien zapłacić PCC niepobrany przy sprzedaży działki gruntu przez rolnika? [Who should pay the tax not collected on the sale of a plot of land by a farmer?], Prawo i Podatki 2010, no. 6, pp. 17–23.

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Ustawa z dnia 15 lutego 1992 r. o podatku dochodowym od osób prawnych [Corporate Income Tax Act], J. of L. 2021, item 1800 as amended. Ustawa z dnia 29 sierpnia 1997 r. – Ordynacja podatkowa [Tax Ordinance Act], J. of L. 2021, item 1540 as amended. Ustawa z dnia 9 września 2000 r. o podatku od czynności cywilnoprawnych [Tax on Civil Law Transactions Act], J. of L. 2022, item 111 as amended.

Jurisdiction Judgment of the Constitutional Tribunal of 22.09.2005, Kp 1/05, OTK-A 2005/8, item 93. Judgment of the Constitutional Tribunal of 18.07.2013, SK 18/09, OTK-A 2013/6, item 80. Judgment of the Supreme Administrative Court of 6.11.2003, I SA/Gd 1237/00. Judgment of the Supreme Administrative Court of 24.05.2004, FSK 78/04. Judgment of the Supreme Administrative Court of 17.10.2008, I GSK 1114/07. Judgment of the Supreme Administrative Court of 07.07.2009, II FSK 371/08. Judgment of Regional Administrative Court in Cracow of 15.11.2010, I SA/Kr 409/10. Judgment of the Supreme Administrative Court of 10.3.2011, II FSK 1891/09. Judgment of the Supreme Administrative Court of 11.03.2011, I FSK 473/10. Judgment of the Supreme Administrative Court of 08.04.2011, I FSK 927/10. Judgment of the Supreme Administrative Court of 12.04.2011, I FSK 693/10. Judgment of the Supreme Administrative Court of 20.3.2013, II FSK 1610/11. Judgment of the Supreme Administrative Court of 15.04.2014, I GSK 793/12. Judgment of the Regional Administrative Court in Gdansk of 18.10.2017, I SA/Gd 735/17. Judgment of the Supreme Administrative Court of 12.04.2018, II FSK 2429/17. Judgment of the Supreme Administrative Court of 19.08.2020, II FSK 1261/18. Judgment of the Supreme Administrative Court of 29.03.2022, II FSK 1925/19. Judgment of the Supreme Administrative Court of 11.05.2022, III FSK 532/21.

Literature Bogucki S., Wacławczyk A., Winiarski K., Podatek od czynności cywilnoprawnych. Komentarz [Tax on Civil Law Transactions. Commentary], Warszawa 2021. Brzeziński B., Masternak M., O tak zwanym ciężarze dowodu w postępowaniu podatkowym [On the So-Called Burden of Proof in Tax Proceedings], Przegląd Podatkowy 2004, nr 5. Cieślak M., Polska procedura karna. Podstawowe założenia teoretyczne [Polish Criminal Procedure. Basic Theoretical Assumptions], Warszawa 1984. Dolecki H., Ciężar dowodu w polskim procesie cywilnym [Burden of Proof in the Polish Civil Trial], Warszawa 1998. Etel L., Strzelec D., Czy potrzebna jest prekluzja dowodowa w procedurach podatkowych? [Is There a Need for Evidence Preclusion in Tax Procedures?], Krytyka Prawa 2021, nr 4, pp. 8–105.

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Gomułowicz A., Podatnik a władza – problem bezpieczeństwa prawnego [The Taxpayer and The Authority – Problem of Legal Security], in: Ochrona praw podatnika, diagnoza sytuacji [Protection of Taxpayers’ Rights, Diagnosis of the Situation], ed. A. Franczak, Warszawa 2021. Hanusz A., Podstawa faktyczna rozstrzygnięcia podatkowego [Factual Basis for Tax Adjudication], Krakow 2004. Janicki A., Zasada rozstrzygania wątpliwości na korzyść podatnika. Analiza poglądów doktryny i orzecznictwa [The principle of resolving doubts in favour of the taxpayer. Analysis of doctrine and judicial practice], Torun 2020. Kardas P., Determinanty ciężaru dowodu i ciężaru (obowiązku) dowodzenia w procesie karnym [Determinants of the Burden of Proof and the Burden (Duty) of Proof in a Criminal Trial], in: Ciężar dowodu i obowiązek dowodzenia w procesie karnym [The Burden of Proof and the Duty to Prove in a Criminal Trial], eds. W. Jasiński, J. Skorupka, Warszawa 2017. Kmieciak Z., Zarys teorii postępowania administracyjnego [Outline of the Theory of Administrative Proceedings], Warszawa 2014. Kubacki R., Ordynacja podatkowa. Zasady odpowiedzialności zarządców spółek kapitałowych za zobowiązania podatkowe [Tax Ordinance Act. Principles of Liability of Managers of Capital Companies for Tax Liabilities], Przegląd Podatkowy 1998, no. 2. Mariański A., Ciężar dowodu w postępowaniu podatkowym a tendencje orzecznicze [Burden of Proof in Tax Proceedings and Judicial Tendencies], Kwartalnik Prawa Podatkowego 2004, nr 3. Mariański A., Reguły ciężaru dowodu w postępowaniu podatkowym (polemika) [Rules of Burden of Proof in Tax Proceedings (Polemic)], Przegląd Podatkowy 2005, nr 2. Mariański A., Wybrane zagadnienia dowodowe w postępowaniu w sprawie opodatkowania dochodów z nieujawnionych źródeł przychodów [Selected Evidentiary Issues in Proceedings on Taxation of Income from Undisclosed Sources of Revenue], Przegląd Podatkowy 2007, no. 7. Mudrecki A., Zasada proporcjonalności w prawie podatkowym [The principle of proportionality in tax law], Warszawa 2020. Nita A., Wymuszona współpraca podatnika w procesie wymiaru podatku [Forced Cooperation of the Taxpayer in the Tax Assessment Process], Państwo i Prawo 2013, nr 12. Nita A., Zakres i ciężar dowodu w postępowaniach dotyczących zobowiązań podatkowych [Scope and Burden of Proof in Tax Liability Proceedings], in: Dylematy reformy systemu podatkowego w Polsce [Dilemmas of Tax System Reform in Poland], eds. H. Dzwonkowski, J. Kulicki, Warszawa 2016. Nowak I., Ciężar dowodzenia w postępowaniu podatkowym – podstawowe problemy [Burden of Proof in Tax Proceedings – Basic Problems], in: Stanowienie i stosowanie prawa podatkowego w Polsce. Ocena i kierunki zmian [Establishing and Applying Tax Law in Poland. Assessment and Directions of Changes], eds. B. Kucia-Guściora, M. Münnich, A. Zdunek, R. Zieliński, Lublin 2016.

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Olesiak J., Odpowiedzialność członków zarządu spółek kapitałowych za ich zaległości podatkowe jako ciężar publiczny w świetle zasady proporcjonalności z art. 31 ust. 3 Konstytucji RP [Liability of Board Members of Capital Companies for their Tax Arrears as a Public Burden in the Light of the Proportionality Principle of Article 31(3) of the Constitution of the Republic of Poland], Lodz 2020. Olesińska A., Kto powinien zapłacić PCC niepobrany przy sprzedaży działki gruntu przez rolnika? [Who should pay the tax not collected on the sale of a plot of land by a farmer?], Prawo i Podatki 2010, no. 6. Prejs E., Skarga konstytucyjna jako środek ochrony praw podatnika [Constitutional Complaint as a Means of Protecting Taxpayers’ Rights], in: Ochrona praw podatnika, diagnoza sytuacji [Protection of Taxpayers’ Rights, Diagnosis of the Situation], ed. A. Franczak, Warszawa 2021. Prejs E., Wartości konstytucyjne a prawo podatkowe w orzecznictwie Trybunału Konstytucyjnego [Constitutional Values and Tax Law in the Jurisprudence of the Constitutional Tribunal], in: Prawo podatkowe. Teoria, instytucje, funkcjonowanie [Tax Law. Theory, Institutions, Functioning], ed. B. Brzeziński, Torun 2009. Stanik K., Ciężar dowodu w postępowaniu podatkowym [Burden of Proof in Tax Proceedings], Zeszyty Naukowe Instytutu Administracji Akademii im. Jana Długosza w Częstochowie, Seria: Gubernaculum et Administratio 2006, z. 4. Strzelec D., Dowody i postępowanie dowodowe w prawie podatkowym [Evidence and Evidence Proceedings in Tax Law], Warszawa 2015. Strzelec D., Obowiązek wyjaśnienia stanu faktycznego w postępowaniu podatkowym [Duty to Clarify the Facts in Tax Proceedings], Monitor Podatkowy 2008, nr 12. Strzelec D., Opodatkowanie przychodów nieznajdujących pokrycia w ujawnionych źródłach lub pochodzących ze źródeł nieujawnionych [Taxation of Revenues Not Covered by Disclosed Sources or Revenues from Undisclosed Sources], Warszawa 2015. Strzelec D., Wyrok Trybunału Konstytucyjnego w sprawie dochodów nieujawnionych [Judgment of the Constitutional Tribunal on Undisclosed Income], Przegląd Podatkowy 2013, no. 11. Śliwiński S., Polski proces karny przed sądem powszechnym. Zasady ogólne [Polish Criminal Trial before the Common Court. General Principles], Warszawa 1948. Żbikowska M., Ciężar dowodu w polskim procesie karnym [Burden of Proof in the Polish Criminal Trial], Warszawa 2019.

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Marcin Drewek, Aleksander Tretyn

Constitutional aspects of ecological safety in relation to offshore wind farms in the British and Polish legal systems

1.

Introduction

The current development of renewable energy law (including, in particular, that concerning offshore wind power plants) requires the provision of adequate legal regulations allowing, on the one hand, for the greatest possible support for the planned investments and, on the other hand, for the maximum possible protection of the environment.1 In this context, it is important to ensure an appropriate level of constitutional–legal environmental security (both in the Constitution itself and in the laws detailing it). In turn, the development of the relevant normative regulations entails the necessity of their continuous optimisation (i. e., also with the use of relevant models of foreign law). Therefore, the aim of this article will be to present selected aspects of constitutional–legal environmental protection in the scope of offshore wind farm investments in the Polish legal system and the British legal system, which constitutes a valuable source of inspiration de lege ferenda.

2.

The relevance of offshore wind energy in the modern legal commerce

2.1 The international scope of offshore wind energy Investment in offshore wind farms (hereafter: OWFs; in UK law, offshore wind farm: OFW) is an extremely rapidly growing branch of the energy sector. Technically and economically, offshore energy has already been subjected to quite a rich analysis in

1 See, for example, H.T. Anker, B.E. Olsen, A. Rønne, Legal systems and wind energy. A comparative perspective, Copenhagen 2008, pp. 293–316; P. Crossley, Renewable energy law. An international assessment, Cambridge 2019, pp. 250–264; A. Kałążny, W. Morawski, Taxation of assets used to generate energy: in the context of the transformation of the Polish energy sector from coal energy to low-emission energy, Energies 2021, vol. 14, iss. 15, article 4587, pp. 1–18; T.A. Rule, Solar, wind and land. Conflicts in renewable energy development, Abingdon-New York 2014, pp. 1–18; M. Serowaniec, Sustainable development policy and renewable energy in Poland, Energies 2021, vol. 14, iss. 8, article 2244, pp. 1–8.

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science.2 At this point, however, it is worth noting that the ever-growing potential of offshore wind is due to two circumstances in particular: firstly, OFWs allow the production of clean and renewable energy, and secondly, they are able to provide a relatively secure and stable generation profile (which is particularly relevant in relation to many less predictable renewable energy sources (hereafter: RES)). Offshore wind power is a relatively young form of energy generation compared to conventional sources. The first OWF was established in 1991 in Denmark (the Vindeby farm) and consisted of 11 wind turbines with a unit capacity of 0.45MW. It should be noted that in 2009–2010 the average power of a single unit was about 3MW (and thus considerably more than the aforementioned first OWF), while currently (mid-2022), turbines with a unit power of 15MW are being commissioned for testing. Moreover, it is worth noting that a significant increase in the total installed OWF capacity has been noticeable since 2006. At that time, it amounted to 801 MW, and it continued to increase with each subsequent year. In 2010, the total capacity exceeded 3000 MW, while in 2015 it was over 11 GW. As at the end of 2021, the total installed capacity of OWFs worldwide is estimated at around 28 GW. The development of OWFs across regions is significantly diverse. Asian countries, especially China, started to develop the OWF somewhat later but are currently approaching the size of the installed capacity in Europe. At the same time, it should be noted that China has increased its installed capacity in this source by almost 170%, reaching almost 17 GW in 2021. In contrast, European Union countries have installed just over 3 GW in 2021. In contrast, the total installed capacity in terms of OWFs in 2021 was around 28 GW in Europe and around 27 GW in China.3 The future of offshore wind development seems extremely promising. Globally, the total installed capacity may amount to some 270 GW by 2030, while in 2050 it is expected to be as high as 2000 GW. Some forecasts indicate that Asian countries could have as much as 40% of all installed OWF capacity by 2050. Europe, on the

2 See, for example, M.I. Blanco, The economics of wind energy, Renewable and Sustainable Energy Reviews 2009, vol. 13, Iss. 6–7, August–September 2009, pp. 1372–1382; M.D. Esteban, J.J. Diez, J.S. López, V. Negro, Why offshore wind energy?, Renewable Energy 2011, vol. 36, iss. 2, pp. 444–450; R. Green, N. Vasilakos, The economics of offshore wind, Energy Policy 2011, vol. 39, iss. 2, pp. 496–502; B. Snyder, M.J. Kaiser, Ecological and economic cost-benefit analysis of offshore wind energy, Renewable Energy 2009, vol. 34, iss. 6, pp. 1567–1578. 3 See, for example, H. Díaz, C.G. Soares, Review of the current status, technology and future trends of offshore wind farms, Ocean Engineering 2020, vol. 209, article 107381, pp. 1–4; J.K. Kaldellis, D. Zafirakis, The wind energy (r)evolution: a short review of a long history, Renewable Energy 2011, vol. 36, iss. 7, pp. 1887–1901; P. Rapacka, 15 MW wind turbines are the present. Vestas with prototype ready for testing https://globenergia.pl/15-mw-owe-turbiny-wiatrowe-to-terazniejszosc-vestas-zprototypem-gotowym-do-testow/ (accessed 30 August 2022); WindEurope, Report Offshore wind in Europe – key trends and statistics – years 2016–2020, https://windeurope.org/intelligence-platform/ reports/ (accessed 30 August 2022).

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Constitutional aspects of ecological safety in relation to offshore wind farms

other hand, is expected to have around 32% of the total resources (640 GW) in the future. North America is next in terms of installed capacity by 2050, with an expected 18%. Latin America is next with 6%, followed by the Pacific region with 4% and Africa and the Middle East with 2% each.4 2.2 Offshore wind energy in Europe and the United Kingdom In Europe, UK is the leader in terms of offshore wind capacity installed in 2021. In the UK, the total installed capacity of OFWs is currently around 12700 MW, with 2317 MW installed in 2021 alone. This is followed by Germany with around 8000 MW, the Netherlands with 3000 MW, Denmark with 2000 MW and Belgium with 2000 MW.5 Referring to the legal regulations on OFW investments in the UK, it is worth emphasising initially that they have been developing for much longer than the analogous standards under Polish law. Indeed, the first OFWs were already erected in the UK in 2000. The number and capacity of new installations is also constantly increasing. What is more, further dynamic growth is planned for future years.6 According to statistics from 2021, the UK has reached almost 12 GW of installed capacity in this respect. This is currently the highest on the entire European continent.7

4 Global Wind Energy Council, Global Offshore Wind Report 2022, https://gwec.net/gwecs-globaloffshore-wind-report/ (accessed 30 August 2022). 5 Windenergy, Report Wind energy in Europe: 2021 Statistics and the outlook for 2022–2026, https:// windeurope.org/intelligence-platform/product/wind-energy-in-europe-2021-statistics-and-theoutlook-for-2022-2026/ (accessed 30 August 2022). 6 See, for example, J. Aldersey-Williams, I.D. Broadbent, P.A. Strachan, Analysis of United Kingdom offshore wind farm performance using public data: improving the evidence base for policymaking, Utilities Policy 2020, vol. 62, Article 100985, pp. 1–9; E.G. Ochieng, Y. Melaine, S.J. Potts, T. Zuofa, C.O. Egbu, A.D.F. Price, X. Ruan, Future for offshore wind energy in the United Kingdom: the way forward, Renewable and Sustainable Energy Reviews 2014, vol. 39, pp. 656–665; P. Higgins, A. Foley, The evolution of offshore wind power in the United Kingdom, Renewable and Sustainable Energy Reviews 2014, vol. 37, pp. 600–611; P. Potisomporn, C.R. Vogel, Spatial and temporal variability characteristics of offshore wind energy in the United Kingdom, Wind Energy 2022, vol. 25, iss. 3, pp. 537–551. 7 See, for example, The Crown Estate, Offshore wind operational report 2020, p. 4, https://www.thecrownestate.co.uk/media/3792/offshore-wind-operational-report-1.pdf, (accessed 30 August 2022); National statistics: Energy Trends UK, October to December 2021 and 2021, p. 18 (https://www. gov.uk/government/statistics/energy-trends-march-2022; accessed 30 August 2022).

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2.3 Offshore wind energy in the Republic of Poland In Poland, OWFs have not been built so far, despite the fact that the first decisions to erect artificial islands, which initiated the investment process, were already issued in 2011–2012. One of the key strategic legal acts concerning the energy sector, the National Energy and Climate Plan for 2021–2030, assumes that the first OWF will be commissioned in 2025, while by 2030 the total offshore installed capacity will be 3.8 GW. Moreover, by 2040, there is expected to be 8 GW of capacity.8 In turn, according to another important energy strategy act (namely, the Energy Policy of Poland until 2040) the offshore wind goal for 2050 is to achieve 11 GW of installed capacity.9 Currently, there are eight OWF projects under development in Poland, which are being implemented by five RES entities. It should be noted that the largest planned wind farm is the Baltica 2 project, implemented by the Polish Energy Group (hereinafter: PGE) in cooperation (in the form of a joint venture, owning 50% of shares each) with one of the world’s offshore industry tycoons: the Danish entity Orsted. The total capacity of the Baltica 2 project is to be around 1498 MW. The Baltica 2 project is scheduled to be operational in 2027. The joint venture between PGE and Orsted is also planning to develop the Baltica 3 project, which is estimated to have a capacity of about 1045 MW. It is also worth mentioning the Baltica 1 project (implemented independently by PGE), which has already received technical conditions for connection to the transmission grid, with a capacity of up to 896 MW. This project is scheduled to be commissioned after 2030.10 Another of the very important OWF projects is the investment being developed by Polski Koncern Naftowy Orlen (hereafter: PKN Orlen), which in turn has formed a joint venture with the Canadian entity Northland Power. The project to be developed, named Baltic Power, has an estimated total capacity of 1200 MW and is expected to start in 2024 and be commissioned in 2026.11 Another investor in the Polish offshore sector, which has received permission to erect artificial islands and is already carrying out advanced work on the project, is Polenergia, combined with the Norwegian entity Equinor. The companies will develop two projects, the OWF Bałtyk II and the OWF Bałtyk III, with a total installed capacity of up to 1440 MW. The aforementioned Norwegian company

8 A. Brzezińska-Rawa, J. Goździewicz-Biechońska, Recent developments in the wind energy sector in Poland, Renewable and Sustainable Energy Reviews 2014, vol. 38, iss. C, pp. 79–87; Krajowy Plan na Rzecz Energii i Klimatu na lata 2021–2030 [National Energy and Climate Plan for 2021–2030], p. 94. 9 Polityka Energetyczna Polski do 2040 roku [Energy Policy of Poland until 2040], M.P. of 2021, item 264. 10 Offshore Programme, https://pgebaltica.pl/program-offshore (accessed 30 August 2022). 11 About the project, https://www.balticpower.pl/o-projekcie/ (accessed 30 August 2022).

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Constitutional aspects of ecological safety in relation to offshore wind farms

will also participate in Polenergia’s third project, the Baltic I OWF, which has a maximum capacity of 1560 MW. The Bałtyk II and Bałtyk III OWF projects are expected to generate the first green energy in 2026.12 The Spanish–French company Ocean Wind has also decided to invest in the Polish Baltic Sea. This company will develop the BC-Wind project with a total capacity of up to 399 MW. Among the investors implementing OWF projects, the German entity RWE should be mentioned. RWE received support in the first phase of the OWF development under the FEW Baltic II project. The maximum capacity of this project will be up to 350 MW.13

3.

The indispensability of ensuring ecological safety in the energy sector in regard to the dispute over Turów

The importance of guaranteeing adequate constitutional environmental safety mechanisms in energy law (and the consequences of failing to do so) can be seen in particular in the recent example of the so-called Turów dispute. On 21 January 2020, the Polish Regional Director of Environmental Protection issued an approval administrative decision for the continued exploitation of deposits at the Turów brown coal mine until 2044. By this decision, the Minister of Climate and Environment extended the Turów coal extraction licence until 2026. The Czech Republic then referred the issue of extending the Turów coal extraction licence to the European Commission, claiming that Poland had breached EU law. In turn, the Commission found a breach of European Union law as a result of the omission of an environmental impact assessment.14 The Commission’s decision, however, gave the Czech Republic the opportunity to bring an action against Poland before the Court of Justice of the European Union (hereinafter: CJEU), which they did on 26 February 2021. The legal basis for the action was Article 259 of the Treaty on the Functioning of the European Union.15 On 21 May, the CJEU issued an order granting the applicant’s request, declaring the complaint to be well-founded. At the same time, the CJEU obliged Poland

12 Facts and figures https://www.baltyk2.pl/fakty-i-dane-liczbowe /facts and figures/ (accessed 30 August 2022). 13 RWE Offshore Wind Poland Sp. z o.o., https://pl.rwe.com/rwe-offshore-wind-poland-sp-zoo (accessed 30 August 2022). 14 See Order of the Vice-President of the Court of Justice of the European Union of 21.05.2021 in Case C-121/21 R; Press Release of the Court of Justice of the European Union No. 89/21 of 21.05.2021. 15 Treaty on the Functioning of the European Union 2012/C 326/01, OJ EU 26.10.2012, C 326/49.

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to immediately cease lignite mining at the Turów mine until a final judgment is issued.16 Poland has not complied with this CJEU ruling. An immediate halt to hard coal mining would have entailed an interruption of electricity production at the mine and the Turów power plant. It has been argued that lignite cannot be transported over long distances, as this is unprofitable for logistical reasons. Besides, a halt in mining would significantly undermine Poland’s energy security, as the total capacity of the Turów power plant is about 2 GW, which translates into covering the electricity needs of about 7% of Poland’s population. Furthermore, the cessation of operations could significantly disrupt the stable operation of the National Power System, resulting in the deprivation of electricity for approximately 3.2 million people.17 Consequently, due to Poland’s omission of the interim measure imposed by the CJEU, the Czech Republic requested Poland to pay them a periodic penalty of EUR 5 million per day of mining. The CJEU also required Poland to pay a penalty of EUR 0.5 million per day to the European Commission.18 Despite the penalty imposed, due to the aforementioned need to ensure energy security for its citizens, Poland will not cease mining at the Turów mine. It also did not agree with the CJEU ruling and did not pay the imposed penalties. At the same time, however, talks were held to amicably resolve the dispute and reach an agreement between the Czech Republic and Poland. A consensus was finally reached at the beginning of February 2022. Both countries committed to a mutual exchange of hydrogeological information to assess the mine’s impact on groundwater. In addition, Poland undertook to construct additional underground wells and integrate their system into a joint Czech–Polish monitoring network; build automatic airmonitoring stations; and construct an underground sealing barrier to prevent groundwater outflow from the Czech Republic.19

16 Above n. 15; see also, for example, B. Derski, R. Zasuń, Turów mine (and power plant) to stand immediately, https://wysokienapiecie.pl/37808-kopalnia-elektrownia-turow-maja-natychmiast-stanacpostanowil-trybunal/ (accessed 30 August 2022). 17 7 per cent of domestic energy flows from Turow, https://turow2044.pl/7-procent-krajowej-energiiplynie-z-turowa (accessed 30 August 2022). 18 Order of the Vice-President of the Court of Justice of the European Union of 20.09.2021 in Case C-121/21 R. 19 There is a Polish–Czech agreement on the Turów Mine, https://biznesalert.pl/jest-porozumieniepolsko-czeskie-ws-kopalni-turow/ (accessed 30 August 2022).

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Constitutional aspects of ecological safety in relation to offshore wind farms

4.

The problem of the utility of the British law for the Polish legal regulations concerning offshore wind farms

To what extent can conducting comparative research on the constitutional environmental safety aspects of OFWs in UK law be useful for the development of the Polish legal system? In trying to answer this question, it may be noted that currently in Poland, both private entities (investors) and public entities (governmental and self-governmental units) have started to gather the necessary legal experience, which will certainly bear fruit in the development of subsequent projects. Many administrative and technical issues are new, especially for the Polish administrative bodies, which will proceed with the issuance of particular decisions or administrative and legal permits concerning the OWFs. Therefore, for the optimal development of the Polish law system, the relevant acquis drawn from foreign law will be useful. In legal practice, a realistic estimate is that the increase in offshore capacity over the next five years will be close to 28 GW, and the country that will dominate the development of the offshore industry will be the UK, which may install some 10 GW. Moreover, by 2030, capacity is forecast to grow by some 70 GW in a realistic scenario, and up to 99 GW in a very optimistic scenario.20 It should also be noted that the forecasts coincide with the data provided by the European Commission, which has estimated the Baltic Sea potential at 93 GW by 2050.21 An analysis of the aforementioned circumstances leads to the conclusion that it would be extremely useful to employ methods and solutions already developed in those legal systems where numerous offshore projects have been successfully implemented. The UK legal regime in particular could therefore be such a system. As mentioned previously, the UK currently has the largest amount of offshore wind capacity installed. Moreover, projects have been implemented around the British Isles for several decades, which translates into valuable experience regarding potential legal issues that may arise during the course of an investment, as well as possible ways of resolving them. Finally, as it is commonly known, the British law system (common law) has many original solutions in comparison to the Polish system (civil law); such solutions may enrich the domestic legal constructions and, as a result, create an optimal legal model for regulating an OWF investment.

20 Above n. 5; see also, for example, Polish Wind Energy Association, Polish Wind Energy 4.0, Report 2022, http://psew.pl/wp-content/uploads/2022/06/skompresowany-raport-22Polska-energetykawIatrowa-4.022-2022-.pdf (accessed 30 August 2022). 21 Supreme Chamber of Control, Information on the results of the control offshore wind energy development, lgd.430.001.2022, https://www.nik.gov.pl/plik/id,26348,vp,29136.pdf (accessed 30 August 2022).

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5.

Constitutional aspects of ecological safety in the Polish legal system

5.1 The Polish Constitution The Polish renewable energy law on OWFs, as mentioned previously, is basically only just taking shape. The number of scientific studies concerning it is still relatively small and rather general in nature.22 As far as constitutional and legal regulations are concerned, it should be pointed out that the Polish Constitution23 does not contain any norms directly referring to offshore investments. There are, however, provisions referring to the issue of environmental safety in the scope of OWFs in an indirect way. First of all, it is worth noting Article 5, which introduces the principle of sustainable development, indicating at the same time that it should be ensured in the pursuit of the safety of citizens and environmental protection. The second of the key constitutional provisions in this regard is Article 74, which explicitly norms the principle of ensuring ecological safety. The development of this principle is, in particular, the right to information on the state and protection of the environment and support for citizen action to protect and improve the environment (Article 74(3) and (4) of the Constitution).24 5.2 Respective statutory legislature regarding offshore ecological safety In view of the general nature of the constitutional norms regarding OWF investments, a direct reference to ensuring environmental safety should be sought in the relevant laws containing the relevant specific norms. First and foremost, the

22 See, for example, T. Bojar-Fijałkowski, Rozwój morskiej energetyki wiatrowej w Polsce – uwagi na tle gospodarczego prawa środowiska [Development of Offshore Wind Energy in Poland – Remarks on the Background of Economic Environmental Law], Gdańskie Studia Prawnicze 2021, no. 3, pp. 63–73; M. Wroniak, M. Kowara, Poland, in: Offshore Wind Worldwide. Regulatory Framework in Selected Countries, ed. C. Knüte, Hamburg 2020, pp. 124–133. 23 Konstytucja Rzeczypospolitej Polskiej z 2 kwietnia 1997 r. [Constitution of the Republic of Poland of 2 April 1997] Dz.U. 1997 no. 78 item 483, as amended. 24 See, for example, J. Ciechanowicz-McLean, Konstytucyjna zasada wolności gospodarczej a ochrona środowiska [The constitutional principle of economic freedom and environmental protection], Gdańskie Studia Prawnicze 2014, no. 1, pp. 99–108; A. Krzywoń, Konstytucja RP a środowisko [The Constitution of the Republic of Poland and the environment], Państwo i Prawo 2012, vol. 8, pp. 3–16; B. Rakoczy, Elastyczność zasady zrównoważonego rozwoju w kontekście adaptacji do zmian klimatu [Flexibility of the Principle of Sustainable Development in the Context of Adaptation to Climate Change], Gdańskie Studia Prawnicze 2021, no. 3, pp. 21–33; M. Roliński, Z problematyki zasad ochrony środowiska, [From the issues of the principles of environmental protection], Studia Iuridica Lublinensia 2014, vol. 21, pp. 145–156.

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Constitutional aspects of ecological safety in relation to offshore wind farms

Act of 17 December 2020 on the promotion of electricity generation in OWFs (hereinafter: UMFW) should be mentioned here,25 which is the basic statutory Act concerning offshore investments. Among other things, the Act defines the principles and conditions for providing support for electricity generated in OFWs and defines phases concerning the preparation and implementation of investments in the construction of OFWs. In addition, the Act also regulates the principles of disposing of a set of power-generation facilities and an OFW, as well as regulating the requirements related to the construction, operation and decommissioning of an OFW. An important normative Act in the field of OWF is also the Act of 21 March 1991 on maritime areas of the Republic of Poland and maritime administration (hereinafter: UOMRP).26 The indicated legal Act specifies in particular the parameters related to the erection and use of artificial islands. It is also impossible not to mention the Act of 3 October 2008 on the provision of information on the environment and its protection, public participation in environmental protection and environmental impact assessments (hereinafter: UUIŚ).27 This Act normalises the key issue, from the point of view of environmental safety, of the obligation to carry out an environmental impact assessment of a project. To a much lesser extent, issues related to the development of the OWF have been defined in other legal Acts. In particular, such normative regulations include the Act of 7 July 1994 on the Construction Law,28 the Act of 9 June 2011 on the Geological and Mining Law,29 the Act of 20 July 2017 on the Water Law,30 the Act of 10 April 1997 on the Energy Law,31 the Act of 18 August 2011 on the Maritime

25 Ustawa z dnia 17 grudnia 2020 r. o promowaniu wytwarzania energii elektrycznej w morskich farmach wiatrowych [Act of 17 December 2020 on promoting electricity generation in offshore wind farms] Dz.U. 2021 item 234 as amended. 26 Ustawa z 21 marca 1991 r. o obszarach morskich Rzeczpospolitej Polskiej i administracji morskiej [Act of 21 March 1991 on the maritime areas of the Republic of Poland and maritime administration] Dz.U. 1991 no. 32 item 131 as amended. 27 Ustawie z 3 października 2008 r. o udostępnianiu informacji o środowisku i jego ochronie, udziale społeczeństwa w ochronie środowiska oraz o ocenach oddziaływania na środowisko [Act of 3 October 2008 on the provision of information on the environment and its protection, public participation in environmental protection and on environmental impact assessments] Dz. U. 2008 no. 199 item 1227 as amended. 28 Ustawa z dnia 7 lipca 1994 r. prawo budowlane [The Act of 7 July 1994 on construction law] Dz. U. 1994 no. 89 item 414 as amended. 29 Ustawa z 9 czerwca 2011 r. prawo geologiczne i górnicze [The Act of 9 June 2011, Geological and Mining Law] Dz. U. 2011 no. 163 item 981 as amended. 30 Ustawa z dnia 20 lipca 2017 r. prawo wodne [Act of 20 July 2017, Water law] Dz. U. 2017 item 1566 as amended. 31 Ustawa z 10 kwietnia 1997 r. prawo energetyczne [The Energy Law of 10 April 1997] Dz. U. 1997 no. 54 item 348 as amended.

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Safety32 , the Act of 27 March 2003 on the Spatial Planning and Development33 and the Act of 24 July 2015 on the preparation and implementation of strategic investments in transmission networks.34 5.3 Protection instruments in the form of specific legal provisions (lex specialis) The Polish legislator has not provided for a legal Act that is explicitly dedicated to the protection of environmental safety in the field of OWFs. Instead, the previously mentioned Acts of a general nature are applicable. However, a certain expression of the constitutional–legal environmental protection may be the requirement to obtain numerous administrative decisions from various authorities, which within the scope of their cognition verify the possible negative impacts of the OWFs. Detailed issues concerning the said decisions are included in the content of the UMFW provisions. An example of an important administrative decision that must be obtained before the start of an OWF investment is the permit required for the erection of artificial islands. This permit is issued by the Minister in charge of maritime economy or the territorially competent Director of the Maritime Office, respectively. The decision allowing for the erection of artificial islands cannot be issued if the planned investment would pose a threat to the environment, marine or offshore resources. It should also be emphasised that the aforementioned administrative authorities supervise the execution of the erection and exploitation of artificial islands (Articles 22–27t of the UOMRP). 5.4 Protection instruments in the form of the obligation to conduct an environmental impact assessment An important element protecting environmental safety is the obligation to prepare reports on the environmental impact of a project. In particular, this obligation requires the preparation of an environmental impact assessment, which is necessary for projects that may potentially or always significantly affect the environment (Article 59 of UUIŚ). Such projects, which are clearly indicated in the Decree of

32 Ustawa z 18 sierpnia 2011 r. o bezpieczeństwie morskim [Act of 18 August 2011 on maritime safety], Dz. U. 2011 no. 228 item 1368 as amended. 33 Ustawa z 27 marca 2003 r. o planowaniu i zagospodarowaniu przestrzennym [Act of 27 March 2003 on spatial planning and development] Dz.U. 2003 no. 80 item 717 as amended. 34 Ustawa z 24 lipca 2015 r. o przygotowaniu i realizacji strategicznych inwestycji w zakresie sieci przesyłowych [Act of 24 July 2015 on the preparation and implementation of strategic investments in the field of transmission networks] Dz. U. 2015 item 1265 as amended.

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the Council of Ministers of 10 September 2019, include investments in wind power plants.35 The report on the environmental impact of the project should contain, among other information, a description of the planned project; its characteristics, together with the conditions of the area at the stage of execution and exploitation or use; the main characteristics of the production processes; information on the generated emissions and their type, including waste, resulting from the stage of execution and exploitation or use of the planned project; data on biodiversity; and use of natural resources. In addition, the investor in such a report should also include data on electricity consumption and demand or assess the risk of failure (Art. 66 of UUIŚ). When the environmental report is ready, the investor can begin the next stage, which is to start the process of obtaining an environmental decision. The essence of the environmental decision is to determine the environmental conditions for the implementation of the project (Art. 71 of UUIŚ). Together with the application for the environmental decision, the investor is obliged to attach a number of additional documents (Art. 74 of UUIŚ). The body competent to issue the environmental decision for the construction of OWFs is the Regional Director for Environmental Protection (Art. 75 of UUIŚ). 5.5 Protection instruments in the form of the decommissioning of offshore wind farm installations The legal regulations concerning the decommissioning of OWFs are set out in Chapter 10 of the UMFW. It is worth mentioning that not only the wind turbines themselves, but also the remaining infrastructure, are subject to mandatory decommissioning (Art. 82 of the UMFW). The legislator has stipulated that an OWF must meet the criteria regarding construction safety, fire safety, operational safety, environmental protection and appropriate structural operating conditions (Art. 82(1) of the UMFW). The investor is obliged to submit to the relevant administrative authorities an expert’s report of compliance – a document specifying that the OWF meets the safety and environmental protection criteria listed earlier (Art. 82(2) of the UMFW). In addition, the investor is obliged to submit additional assessments, analyses and reports, as required by the transmission system operator (Art. 82(5) and (6) of the UMFW). It should be noted that the detailed requirements for the technical characteristics of OWF elements, the scope and minimum content of the aforementioned

35 Rozporządzenie Rady Ministrów z dnia 10 września 2019 r. w sprawie przedsięwzięć mogących znacząco oddziaływać na środowisko [Decree of the Council of Ministers of 10 September 2019 on projects that may significantly affect the environment] Dz. U. 2019 item 1839.

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assessments, analyses and reports, as well as the principles of operation and review of OWFs are set out in a legal Act dedicated for this purpose in the form of the Decree of the Minister of Climate and Environment of 25 May 2022 on detailed requirements for elements of the set of equipment for power derivation and for elements of substations located at sea.36 It should be mentioned that, unfortunately, the Polish legislator did not explicitly provide for the obligation to establish securities guaranteeing the removal of the OWF after the completion of the investment. The obligation to secure was only provided for in the scope of ensuring the generation of electricity (Art. 5 of the UMFW) or the connection to the power grid (Art. 52 of the UMFW). There are also no more detailed provisions that would standardise the obligation to remove the OWF. 5.6 Prospective draft legal regulations regarding the constitutional ecological safety towards offshore wind farms in the Republic of Poland Further legislative work on the development of OFWs is currently not excluded. Poland’s Supreme Chamber of Control is critical of some of the legal solutions currently adopted, particularly with regard to the excessive dispersion of the competences of administrative bodies.37

6.

Constitutional aspects of ecological safety in the British legal system

6.1 Specific legal character of the uncodified constitution in the United Kingdom There is an extremely rich body of literature that analyses the legal nature of the Constitution of the United Kingdom of Great Britain and Northern Ireland (hereinafter: the UK). In simple terms, it should be assumed that the UK does have a constitution, even though there is no legal Act formally designated as a constitution. In fact, in UK law there are (extremely developed) regulations that normalise the

36 Rozporządzenia Ministra Klimatu i Środowiska z dnia 25 maja 2022 r. w sprawie szczegółowych wymagań dla elementów zespołu urządzeń służących do wyprowadzenia mocy oraz dla elementów stacji elektroenergetycznych zlokalizowanych na morzu [Decree of the Minister of Climate and Environment of 25 May 2022 on detailed requirements for elements of a set of devices used for power evacuation and for elements of power stations located at sea] Dz. U. 2022 item 1257. 37 Above n. 21.

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Constitutional aspects of ecological safety in relation to offshore wind farms

state system and basic principles governing the functioning of the legal system. One can therefore speak of a substantive constitution (uncodified constitution).38 As an aside, it should additionally be emphasised that the constitutional–legal system for ensuring environmental safety in the UK (as opposed to the Polish legal system) does not assume a uniform character. This is, of course, due to the various legal subsystems that make up UK law understood in genere. A distinction, therefore, would have to be made between English law, Scottish law, Welsh law and (to some extent) Northern Ireland law. This ambivalence is also discernible in regard to the legal norms concerning investments in OWFs (although not to a very significant extent). As an example, the legal regulations concerning investments in offshore economic zones can be pointed out: namely, The Marine and Coastal Access Act 200939 and The Marine (Scotland) Act 2010.40 However, due to the limited volume framework of this study, the following analysis will mainly consider regulations relating to legal regulations common to the whole of UK law, with some exceptions. Hence, the term UK law will be used as simplification (sensu largo). 6.2 General legal regime of constitutional ecological safety in light of offshore wind farms Elements of constitutional environmental protection and environmental safety can be seen in numerous normative acts. Mention should be made of The Wildlife and Countryside Act 1981,41 The Electricity Act 1989,42 The Energy Act 2004,43 The Planning Act 2008,44 The Marine and Coastal Access Act 2009,45 The Marine (Scotland) Act 2010,46 The Town and Country Planning (Environmental Impact Assessment) Regulations 2017,47 as well as The Conservation of Offshore Marine Habitats and Species Regulations 2017.48

38 See, for example, J. Alder, Constitutional and administrative Law, Palgrave Macmillan 1999, pp. 23–43; H. Barnett, Constitutional and administrative Law, Routledge 2020, pp. 3–29; A.W. Bradley, K.D. Ewing, C.J.S. Knight (eds.), Constitutional and administrative law, Pearson 2022, pp. 3–33; N. Howard, Beginning constitutional law, Routledge 2016, pp. 1–39. 39 UK Pub. Gen. Act 2009 c. 23 as amended. 40 Acts of the Scottish Parliament 2010 asp 5 as amended. 41 UK Pub. Gen. Act 1981 c. 69 as amended. 42 UK Pub. Gen. Act 1989 c. 29 as amended. 43 UK Pub. Gen. Act 2004 c. 20 as amended. 44 UK Pub. Gen. Act 2008 c. 29 as amended. 45 Above n. 38. 46 Above n. 39. 47 UK S.I. 2017 No. 1012 as amended. 48 UK S.I. 2017 No. 1013 as amended.

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At this point, however, it is worth noting a rather important peculiarity of OWF investment legislation. Namely, the UK legislature has accepted that in addition to general legislation on offshore investment (falling under the category of primary legislation), there will also be individual legislation on specific, individually designated OWFs (falling under the category of secondary legislation). Therefore, in principle, each OWF project has its own dedicated legislation. Examples include the recently adopted The Norfolk Boreas Offshore Wind Farm Order 2021,49 The Norfolk Vanguard Offshore Wind Farm Order 202250 and The East Anglia TWO Offshore Wind Farm Order 2022.51 These specific regulations in the form of Orders contain numerous legal norms that introduce appropriate facilitations for the realisation of investments in a specific OWF. Taking The Norfolk Vanguard Offshore Wind Farm Order 2022 (hereinafter: NV Order) as an example, one may point to provisions containing the following, in particular: facilitation of obtaining certain administrative and legal consents and permissions (Article 3 of the NV Order); rights to assign certain subjective rights by the investor in favour of third parties (Article 6 of the NV Order); or limitations concerning admissibility of complaints about immissions caused by wind turbines (Article 8 of the NV Order). In addition, it is possible to point to regulations that also concern specific stages of the investment implementation, such as a broadening of the rights to use public roads (Article 9 of the NV Order); facilitation of the use of water-drainage infrastructure and watercourses (Article 15 of the NV Order); the right to obtain the possibility to use the real property on which the offshore investment will be implemented (Article 18 of the NV Order); and simplification of the procedure for obtaining a general permit to use an OFW (Article 31 of the NV Order). It is worth noting, however, that despite the introduction of numerous detailed solutions, the said Orders do not violate the essence and basic principles of the regulation of conducting investments in OFWs. By way of exemplification, despite significant facilitations and simplifications of the administrative procedure, it is still obligatory to obtain relevant permits of a basic nature (Art. 3.2 and Art. 31.2 of the NV Order). Legal issues relating to OFW investments have been studied fairly extensively in the academic literature on UK law. Hence, in view of the volume framework of this study, it seems reasonable to refer to the relevant publications52 and to focus only

49 50 51 52

UK S.I. 2021 No. 1414. UK S.I. 2022 No. 138. UK S.I. 2022 No. 433. For more on the legal framework for offshore wind farm investment in the UK see, for example, I. Arrambide, I. Zubia, A. Madariaga, Critical review of offshore wind turbine energy production and site potential assessment, Electric Power Systems Research 2019, vol. 167, pp. 39–47; F. Kern, A.

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on the most relevant jurisprudential issues. Thus, it seems that when discussing the issue of constitutional environmental protection in the field of offshore investments in the UK, particular jurisprudential significance should be attributed to three fundamental legal constructions. In fact, these constructions contain normative solutions that significantly stand out from the general legal principles concerning other than offshore investments. These are as follows: firstly, the introduction of specific provisions dedicated to OWFs (lex specialis); secondly, the obligation to conduct an environmental impact assessment; and thirdly, legal security of the obligation to remove OWFs after the completion of the investment. The indicated legal instruments will be discussed in turn. 6.3 Protection instruments in the form of specific legal provisions (lex specialis) An extremely important instrument of constitutional–legal protection of ecology in regard to investments in OWFs is also the relevant legal norms, which ensure the protection of the environment against the possible negative impact of such an investment. It should be noted that an important place in this context is occupied by The Conservation of Offshore Marine Habitats and Species Regulations 2017 (hereinafter: COMHSR), which applies to so-called European marine sites.53 This legislation contains a large number of provisions for protecting the environment, particularly in the areas most affected by OWFs. This includes the protection of selected animal species (protection of species) and the protection of their habitats (protection of habitat). In regard to the protection of species, British law provides for the protection of wild bird species (as well as their eggs and nests – Articles 40–44 of the COMHSR); the protection of other animals that are listed in specific legislation (Articles 45–48 of the COMHSR); and the protection of natural vegetation (Art. 49). Furthermore, in terms of ensuring the security of habitats, the legal Act analysed provides not only for obligations to ensure adequate surveillance and

Smith, C. Shaw, R. Raven, B. Verhees, From laggard to leader: explaining offshore wind developments in the UK, Energy Policy 2014, vol. 69, pp. 635–646; S. Kota, S.B. Bayne, S. Nimmagadda, Offshore wind energy: a comparative analysis of UK, USA and India, Renewable and Sustainable Energy Reviews 2015, vol. 41, pp. 685–694; V. Mytilinou, A.J. Kolios, Techno-economic optimisation of offshore wind farms based on life cycle cost analysis on the UK, Renewable Energy 2019, vol. 132, pp. 439–440. 53 For a more extensive discussion of this legislation see, for example, V. Ramos, G. Giannini, T. Calheiros-Cabral, P. Rosa-Santos, F. Taveira-Pinto, Legal framework of marine renewable energy: A review for the Atlantic region of Europe, Renewable and Sustainable Energy Reviews 2021, vol. 137, article 110608, pp. 1–16; C. Shannon, C.H. Quinn, A.M. Dunn, P.D. Stebbing, Coherence of marine alien species biosecurity legislation: a study of England and Wales, Marine Pollution Bulletin 2020, vol. 161, part B, article 111796, pp. 1–8.

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monitoring of habitats (Articles 50–53 of the COMHSR) but also for the prohibition of the introduction of animal or plant species other than native species (originally found in the area – Article 54 of the COMHSR). Interestingly, the wording of the aforementioned Act also provides for various types of criminal sanctions, which are aimed at ensuring environmental safety by preventing negative impacts on the environment. One should note here, for example, the offences of providing untrue information or documents in order to obtain an administrative decision allowing for the realisation of investments in offshore wind power plants (Article 57 of the COMHSR). Furthermore, and equally interestingly, the legislation provides for the possibility of establishing an additional administrative body in the form of a Wildlife Officer (Article 58 of the COMHSR). The officer’s task is to check and determine whether environmental offences have been committed in connection with OWF investments (Article 59 of the COMHSR). For this purpose, the legislator has equipped the officer with numerous powers concerning, in particular, inspections and hearings (Articles 60–73 of the COMHSR). 6.4 Protection instruments in the form of the obligation to conduct an environmental impact assessment The constitutional protection of the environment against the negative impact of offshore investments is also expressed in the investor’s obligation to carry out appropriate environmental impact assessments of its planned OWF investments.54 Among the numerous documents related to the conduct of appropriate impact assessments, two in particular are worth noting: namely, the Environmental Impact Assessment and the Habitat Regulation Assessments. In regard to the Environmental Impact Assessment, it should be noted that the obligation to submit it is provided for in the wording of The Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (hereinafter: CPR). An impact assessment is already required at the stage of obtaining planning permission (Article 3 of the CPR). The British legislature has provided for a number

54 For more on the regulation of environmental impact assessment for offshore wind farms, see, for example, H. Bailey, K.L. Brookes, P.M. Thompson, Assessing environmental impacts of offshore wind farms: lessons learned and recommendations for the future, Aquatic Biosystems 2014, vol. 10, article 8, pp. 1–11; E. A. Masden, A. McCluskie, E. Owen, R.H.W. Langston, Renewable energy developments in an uncertain world: the case of offshore wind and birds in the UK, Marine Policy 2015, vol. 51, pp. 169–171; R.K.A. Morris, The application of the Habitats Directive in the UK: compliance or gold plating?, Land Use Policy 2011, vol. 28, iss. 1, pp. 361–369; D. Toke, The UK offshore wind power programme: a sea-change in UK energy policy?, Energy Policy 2011, vol. 39, iss. 2, pp. 526–534.

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of detailed regulations that specify the requirements for the various stages of the Environmental Impact Assessment. In particular, there are provisions relating to the supervision of the administrative authorities in the course of the assessment (Articles 5–7 of the CPR); the procedure for submitting the assessment to the authorities (Articles 8–14 of the CPR); the necessary elements and annexes that the assessment must contain (Articles 15–27 of the CPR); and certain information obligations (Articles 28–30 of the CPR). At the same time, it is worth noting that the legal regulations clearly indicate that in terms of content, the Environmental Impact Assessment should contain a comprehensive and reliable analysis of the environmental impact of the investment. The assessment should take into account both direct and indirect impacts on such elements of the environment as (in particular) human population and health, biodiversity (with particular emphasis on protected species and habitats), soil, water, air and climate, as well as material assets, cultural heritage and landscape (Article 4(2)(a-e) of the CPR). Interestingly, among the legal regulations concerning environmental impact assessment, the British legal system explicitly includes wind power plants as a type of investment that in principle requires the preparation of an Environmental Impact Assessment (annex to the CPR – SCHEDULE 2). It should be emphasised that such a solution makes the whole legal framework more adapted to the specific requirements of an offshore investment. Turning to the analysis of the legal issues related to the second of the mentioned environmental assessment documents (i. e., the Habitat Regulation Assessments), it should be pointed out that the legal basis providing for the obligation to develop such assessment documents is The Conservation of Habitats and Species Regulations 2017 (hereinafter: CHS). It should be noted, however, that the indicated legal regulation was adopted with reference to the provisions of the European Communities Act 1972,55 and it therefore essentially concerns areas of so-called European marine sites (Articles 8 and 12–19 of the CHS). The primary aim of the regulations for the preparation of Habitat Regulation Assessments is to ensure that nature is fully protected and that adverse environmental impacts are reduced. The legal provisions governing Habitat Regulation Assessments, therefore, specifically address elements such as interacting with the authorities; making a thorough analysis of the environmental impact; and indicating possible measures that can be taken to reduce or offset the negative environmental impact (Articles 61–113 of the CHS). Quite importantly, the content of the legal regulation under consideration also distinguishes areas under special environmental protection (special protection areas). Accordingly, investments in such areas

55 UK Pub. Gen. Act 1972 c. 68.

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must be preceded by the preparation of Habitat Regulation Assessments (Articles 15–16 of the CHS). One cannot fail to mention that the mere introduction of appropriate legal regulations is obviously not sufficient to ensure comprehensive environmental protection regarding OWF investments. The second key element is to ensure adequate compliance with the indicated regulations. Also in this context, the British legislator has provided for appropriate legal provisions. In particular, it is worth noting the supervision and control tools that have been provided for the conduct of the environmental impact assessment. Thus, these will be, for example, the norms ordering the relevant administrative bodies to take measures that allow for a reliable and effective verification of the information provided in environmental impact assessments (Articles 4(5) and 5–7 of The Town and Country Planning (Environmental Impact Assessment) Regulations 2017). 6.5 Protection instruments in the form of the decommissioning of offshore wind farm installations The British legislator decided to comprehensively regulate the issue of dormancy of OWFs in the Energy Act 2004 (hereinafter: EA) – specifically, in Chapter 3: Decommissioning of offshore installations. The content of the indicated legal regulation explicitly provides for the obligation to remove not only the wind turbines themselves but also the associated infrastructure; thus, the entire OWF is at stake.56 Obviously, the obligation of removal applies only to investments established for a specified period of time, which will not be continued (Articles 105 and 109 of the EA).57 The obligation to remove an OWF is subject to specific oversight by the relevant administrative authorities, which are either the Scottish Ministers – in the case of Scotland – or the Secretary of State, as appropriate (Article 105 sec. 1A of the EA). In particular, the designated authority may require the preparation and submission of an appropriate programme for the removal of the OWF (decommissioning programme – Article 105 sec. 2 of the EA). This programme should, in particular, 56 For more on the removal of offshore wind farms see, for example, R.J. Heffron, Energy law for decommissioning in the energy sector in the 21st century, The Journal of World Energy Law & Business 2018, vol. 11, iss. 3, pp. 189–195; C. Mackie, A.P.M. Velenturf, Trouble on the horizon: securing the decommissioning of offshore renewable energy installations in UK waters, Energy Policy 2021, vol. 157, article 112479, pp. 1–11; K. Smyth, N. Christie, D. Burdon, J.P. Atkins, R. Barnes, M. Elliott, Renewables-to-reefs? – Decommissioning options for the offshore wind power industry, Marine Pollution Bulletin 2015, vol. 90, iss. 1–2, pp. 247–257. 57 It is worth recalling at this point that the obligation to remove wind turbines from areas of maritime economic zones in international law derives from the wording of Articles 60 and 147 of The United Nations Convention on the Law of the Sea 1982?

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specify the measures necessary for the removal of the power plant; the estimated costs and expenses of the removal; the time limits for the removal; and the obligation to restore the project site to its previous state or the obligation to monitor the site and to carry out appropriate maintenance if part of the installation is left (Article 105 sec. 8 of the EA). The programme is then subject to approval by the said administrative authority, which may order appropriate changes or impose additional conditions and requirements (Articles 106–108 of the EA). It is clear that in order to ensure environmental safety in regard to the removal of OWFs (due to the very high costs involved), it is necessary, in addition to the obligation of the developer itself, to provide adequate security for the fulfilment of the indicated removal obligation. Accordingly, the British legislator has provided for appropriate legal norms in this regard. First of all, one may note the general provisions concerning the obligation to provide adequate security for the removal of OWFs, while considerable leeway is left as to the determination of the specific legal instruments for the security (Articles 110A–110B of the EA). Importantly, in order to ensure the effectiveness of the enforcement of the security, the rights (including claims) serving as security have been exempted from enforcement in the event of insolvency (Article 110A sec. 4 of the EA). In addition, the removal supervisor has the power to require the submission of details about the security in order to determine whether the security will be sufficient for the investor to perform its obligations (Article 110B EA). In addition, public law sanctions (both administrative and criminal) are provided for the obligation to remove OWFs. Any removal of wind farms by the investor contrary to the approved decommissioning programme or carried out without the consent of the relevant administrative authority is treated as a criminal offence (Articles 109 and 113 of the EA). In addition, supervisory powers are provided for the authority to verify the regularity of the wind farm removal process (Articles 110 and 113 of the EA). In particular, the relevant supervisory authority may request information and the translation of documents that are necessary for the purpose of assessing the regularity of the offshore disposal process (Articles 110–112A of the EA). Failure to comply with the supervisory authority’s recommendations to carry out the offshore removal process is punishable by criminal sanctions (Articles 110 and 113 of the EA). 6.6 Prospective draft legal regulations regarding the constitutional ecological safety towards offshore wind farms in the United Kingdom In this context, soft law Acts also play a momentous role in terms of constitutional environmental protection for OWF development in the UK by providing directions for future normative regulation. In particular, it is worth noting the most recent package of government proposals for legislative change, which was announced on

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7 April 2022: namely, the British Energy Security Strategy. This is a government document setting out the UK’s offshore energy policy. In addition, part of the indicated package is the Offshore Wind Environmental Improvement Package. This contains important legal standards, setting out the principles of climate and environmental protection.58 Amongst the numerous legal changes which, as part of the Offshore Wind Environmental Improvement Package, are intended to increase constitutional environmental safety standards within the scope of the UK legal order, three key elements in particular should be mentioned. Firstly, these are the changes to the aforementioned Habitats Regulations Assessments, which involve speeding up the environmental assessment process while also increasing environmental protection. Secondly, the package aims to introduce new legal instruments to compensate for and offset the environmental damage that will result from the construction of an OFW. And thirdly, from 2023, it is planned to create a special state fund (Marine Recovery Fund), the primary purpose of which will be to provide financial support to individual projects for the aforementioned compensation of losses to the marine environment.59

7.

Conclusion

The analysis conducted allows the conclusion that the basic direction of the legislative development of Polish constitutional regulations concerning environmental safety in the scope of the OWF has been chosen correctly. At the same time, however, when preparing future drafts of statutory changes, it is worth drawing on the rich heritage of the British legal system, which is much more detailed and optimised than the Polish regulations in their present form. Therefore, it is to be hoped that appropriate inspiration from the British regulations will allow the most accurate legal model of OWF development to be worked out in relation to the constitutional principle of ensuring environmental safety.

58 UK Government, Guidance Energy Security Bill factsheet: Offshore wind environmental improvement package, https://www.gov.uk/government/publications/energy-security-bill-factsheets/energysecurity-bill-factsheet-offshore-wind-environmental-improvement-package (accessed 30 August 2022). 59 Above n. 57.

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Constitutional aspects of ecological safety in relation to offshore wind farms

References Legal acts The United Nations Convention on the Law of the Sea 1982. Treaty on the Functioning of the European Union 2012/C 326/01, OJ EU 26.10.2012, C 326/49. Konstytucja Rzeczypospolitej Polskiej z 2 kwietnia 1997 r. [Constitution of the Republic of Poland of 2 April 1997] Dz.U. 1997 no. 78 item 483. Ustawa z 21 marca 1991 r. o obszarach morskich Rzeczpospolitej Polskiej i administracji morskiej [Act of 21 March 1991 on the maritime areas of the Republic of Poland and maritime administration] Dz.U. 1991 no. 32 item 131. Ustawa z dnia 7 lipca 1994 r. prawo budowlane [The Act of 7 July 1994 on construction law] Dz. U. 1994 no. 89 item 414. Ustawa z 10 kwietnia 1997 r. prawo energetyczne [The Energy Law of 10 April 1997] Dz. U. 1997 no. 54 item 348. Ustawa z 27 marca 2003 r. o planowaniu i zagospodarowaniu przestrzennym [Act of 27 March 2003 on spatial planning and development] Dz.U. 2003 no. 80 item 717. Ustawie z 3 października 2008 r. o udostępnianiu informacji o środowisku i jego ochronie, udziale społeczeństwa w ochronie środowiska oraz o ocenach oddziaływania na środowisko [Act of 3 October 2008 on the provision of information on the environment and its protection, public participation in environmental protection and on environmental impact assessments] Dz. U. 2008 no. 199 item 1227. Ustawa z 9 czerwca 2011 r. prawo geologiczne i górnicze [The Act of 9 June 2011, Geological and Mining Law] Dz. U. 2011 no. 163 item 981. Ustawa z 18 sierpnia 2011 r. o bezpieczeństwie morskim [Act of 18 August 2011 on maritime safety], Dz. U. 2011 no. 228 item 1368. Ustawa z 24 lipca 2015 r. o przygotowaniu i realizacji strategicznych inwestycji w zakresie sieci przesyłowych [Act of 24 July 2015 on the preparation and implementation of strategic investments in the field of transmission networks] Dz. U. 2015 item 1265. Ustawa z dnia 20 lipca 2017 r. prawo wodne [Act of 20 July 2017, Water law] Dz. U. 2017 item 1566. Ustawa z dnia 17 grudnia 2020 r. o promowaniu wytwarzania energii elektrycznej w morskich farmach wiatrowych [Act of 17 December 2020 on promoting electricity generation in offshore wind farms] Dz.U. 2021 item 234. Rozporządzenie Rady Ministrów z dnia 10 września 2019 r. w sprawie przedsięwzięć mogących znacząco oddziaływać na środowisko [Decree of the Council of Ministers of 10 September 2019 on projects that may significantly affect the environment] Dz. U. 2019 item 1839. Rozporządzenia Ministra Klimatu i Środowiska z dnia 25 maja 2022 r. w sprawie szczegółowych wymagań dla elementów zespołu urządzeń służących do wyprowadzenia

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mocy oraz dla elementów stacji elektroenergetycznych zlokalizowanych na morzu [Decree of the Minister of Climate and Environment of 25 May 2022 on detailed requirements for elements of a set of devices used for power evacuation and for elements of power stations located at sea] Dz. U. 2022 item 1257. Krajowy Plan na Rzecz Energii i Klimatu na lata 2021–2030 [National Energy and Climate Plan for 2021–2030]. Polityka Energetyczna Polski do 2040 roku [Energy Policy of Poland until 2040], M.P. of 2021, item 264. The European Communities Act 1972, UK Pub. Gen. Act 1972 c. 68. The Wildlife and Countryside Act 1981, UK Pub. Gen. Act 1981 c. 69. The Electricity Act 1989, UK Pub. Gen. Act 1989 c. 29. Energy Act 2004, UK Pub. Gen. Act 2004 c. 20. The Planning Act 2008, UK Pub. Gen. Act 2008 c. 29. The Marine and Coastal Access Act 2009, UK Pub. Gen. Act 2009 c. 23. The Marine (Scotland) Act 2010, Acts of the Scottish Parliament 2010 asp 5. The Town and Country Planning (Environmental Impact Assessment) Regulations 2017, UK S.I. 2017 No. 1012. The Conservation of Offshore Marine Habitats and Species Regulations 2017, UK S.I. 2017 No. 1013. The Norfolk Boreas Offshore Wind Farm Order 2021, UK S.I. 2021 No. 1414. The Norfolk Vanguard Offshore Wind Farm Order 2022, UK S.I. 2022 No. 138. The East Anglia TWO Offshore Wind Farm Order 2022, UK S.I. 2022 No. 433.

Jurisdiction Order of the Vice-President of the Court of Justice of the European Union of May 21, 2021 in case C-121/21 R. Order of the Vice-President of the Court of Justice of the European Union of September 20, 2021 in case C-121/21 R.

Literature Alder J., Constitutional and Administrative Law, London. Aldersey-Williams J., Broadbent I.D., Strachan P.A., Analysis of United Kingdom offshore wind farm performance using public data: Improving the evidence base for policymaking, Utilities Policy 2020, vol. 62, Article 100985. Anker H.T., Olsen B.E., Rønne A., Legal Systems and Wind Energy. A Comparative Perspective, Copenhagen 2008. Arrambide I., Zubia I., Madariaga A., Critical review of offshore wind turbine energy production and site potential assessment, Electric Power Systems Research 2019, vol. 167.

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Constitutional aspects of ecological safety in relation to offshore wind farms

Bailey H., Brookes K.L., Thompson P.M., Assessing environmental impacts of offshore wind farms: lessons learned and recommendations for the future, Aquatic Biosystems 2014, vol. 10, article 8. Barnett H., Constitutional and Administrative Law, Abingdon 2020. Blanco M.I., The economics of wind energy, Renewable and Sustainable Energy Reviews 2009, Volume 13, Issues 6–7, August–September 2009. Bojar-Fijałkowski T., Rozwój morskiej energetyki wiatrowej w Polsce – uwagi na tle gospodarczego prawa środowiska [Development of Offshore Wind Energy in Poland – Remarks on the Background of Economic Environmental Law], Gdańskie Studia Prawnicze 2021, no. 3. Bradley A.W., Ewing K.D., Knight C.J.S. (eds.), Constitutional and Administrative Law, London 2022. Brzezińska-Rawa A., Goździewicz-Biechońska J., Recent developments in the wind energy sector in Poland, Renewable and Sustainable Energy Reviews 2014, vol. 38, iss. C. Ciechanowicz-McLean J., Konstytucyjna zasada wolności gospodarczej a ochrona środowiska [The constitutional principle of economic freedom and environmental protection], Gdańskie Studia Prawnicze 2014, no. 1. Crossley P., Renewable Energy Law. An International Assessment, Cambridge 2019. Díaz H., Soares C.G., Review of the current status, technology and future trends of offshore wind farms,Ocean Engineering 2020, vol. 209, article 107381. Esteban M.D., Diez J.J., López J.S., Negro V., Why offshore wind energy?, Renewable Energy 2011, vol. 36, iss. 2. Green R., Vasilakos N., The economics of offshore wind, Energy Policy 2011, vol. 39, iss. 2. Heffron R.J., Energy law for decommissioning in the energy sector in the 21st century, The Journal of World Energy Law & Business 2018, vol. 11, iss. 3. Higgins P., Foley A., The evolution of offshore wind power in the United Kingdom, Renewable and Sustainable Energy Reviews 2014, vol. 37. Howard N., Beginning Constitutional Law, Abingdon 2016. Kaldellis J.K., Zafirakis D., The wind energy (r)evolution: A short review of a long history, Renewable Energy 2011, vol. 36, iss. 7. Kałążny A., Morawski W., Taxation of assets used to generate energy: in the context of the transformation of the Polish energy sector from coal energy to low-emission energy, Energies 2021, vol. 14, iss. 15, article 4587. Kern F., Smith A., Shaw C., Raven R., Verhees B., From laggard to leader: Explaining offshore wind developments in the UK, Energy Policy 2014, vol. 69. Kota S., Bayne S.B., Nimmagadda S., Offshore wind energy: A comparative analysis of UK, USA and India, Renewable and Sustainable Energy Reviews 2015, vol. 41. Krzywoń A., Konstytucja RP a środowisko [The Constitution of the Republic of Poland and the environment], Państwo i Prawo 2012, vol. 8.

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Mackie C., Velenturf A.P.M., Trouble on the horizon: Securing the decommissioning of offshore renewable energy installations in UK waters, Energy Policy 2021, vol. 157, article 112479. Masden E.A., McCluskie A., Owen E., Langston R.H.W., Renewable energy developments in an uncertain world: The case of offshore wind and birds in the UK, Marine Policy 2015, vol. 51. Morris R.K.A., The application of the Habitats Directive in the UK: Compliance or gold plating?, Land Use Policy 2011, vol. 28, iss. 1. Mytilinou V., Kolios A.J., Techno-economic optimisation of offshore wind farms based on life cycle cost analysis on the UK, Renewable Energy 2019, vol. 132. Ochieng E.G., Melaine Y., Potts S.J., Zuofa T., Egbu C.O., Price A.D.F., Ruan X., Future for offshore wind energy in the United Kingdom: The way forward, Renewable and Sustainable Energy Reviews 2014, vol. 39. Potisomporn P., Vogel C.R., Spatial and temporal variability characteristics of offshore wind energy in the United Kingdom, Wind Energy 2022, vol 25, iss. 3. Rakoczy B., Elastyczność zasady zrównoważonego rozwoju w kontekście adaptacji do zmian klimatu [Flexibility of the Principle of Sustainable Development in the Context of Adaptation to Climate Change], Gdańskie Studia Prawnicze 2021, no. 3. Ramos V., Giannini G., Calheiros-Cabral T., Rosa-Santos P., Taveira-Pinto F., Legal framework of marine renewable energy: A review for the Atlantic region of Europe, Renewable and Sustainable Energy Reviews 2021, vol. 137, article 110608. Roliński M., Z problematyki zasad ochrony środowiska, [From the issues of the principles of environmental protection], Studia Iuridica Lublinensia 2014, vol. 2. Rule T.A., Solar, Wind and Land. Conflicts in renewable energy development, Abingdon-New York 2014. Serowaniec M., Sustainable development policy and renewable energy in Poland, Energies 2021, vol. 14, iss. 8, article 2244. Shannon C., Quinn C.H., Dunn A.M., Stebbing P.D., Coherence of marine alien species biosecurity legislation: A study of England and Wales, Marine Pollution Bulletin 2020, vol. 161, part B, article 111796. Smyth K., Christie N., Burdon D., Atkins J.P., Barnes R., Elliott M., Renewables-to-reefs? – Decommissioning options for the offshore wind power industry, Marine Pollution Bulletin 2015, vol. 90, iss. 1–2. Snyder B., Kaiser M.J., Ecological and economic cost-benefit analysis of offshore wind energy, Renewable Energy 2009, vol. 34, iss. 6. Toke D., The UK offshore wind power programme: A sea-change in UK energy policy?, Energy Policy 2011, vol. 39, iss. 2. Wroniak M., Kowara M., Poland, in: Offshore Wind Worldwide. Regulatory Framework in Selected Countries, ed. C. Knüte, Hamburg 2020.

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Constitutional aspects of ecological safety in relation to offshore wind farms

Reports and statistics Global Wind Energy Council, Global Offshore Wind Report 2022. Najwyższa Izba Kontroli, Informacja o wynikach kontroli Rozwój morskiej energetyki wiatrowej [Information on the inspection results Development of offshore wind energy], lgd. 430.001.2022. National statistics: Energy Trends UK, October to December 2021 and 2021. Polskie Stowarzyszenie Energetyki Wiatrowej, Polska energetyka wiatrowa 4.0, raport 2022 [Polish wind energy 4.0, report 2022]. Windenergy, Report Wind energy in Europe: 2021 Statistics and the outlook for 2022–2026. WindEurope, Raport Offshore wind in Europe – key trends and statistics – years 2016–2020. The Crown Estate, Offshore wind operational report 2020.

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Piotr Rączka, Seweryn Sasin

Automation of administrative enforcement proceedings using the examples of the Administrative Enforcement Act for the Free State of Saxony (SächsVwVG) and the Polish Act on Administrative Enforcement Proceedings (EgzAdmU)

1.

Introduction

The automation of legal procedures is an extremely important recent problem facing law-making bodies. This issue is relevant to all procedures before state bodies, although its importance should undoubtedly be appreciated in the field of administrative procedures. This is mainly due to the massiveness of these proceedings, which numerically constitute the most frequently undertaken legal proceedings. Also, the recent experience of the functioning of state bodies during the SARS COVID-19 virus pandemic demands that special attention be paid to the problem of the use of modern technologies in the activities of state bodies, an important manifestation of which is the automation of their activities. It should be emphasised that modern technologies proved to be a key operational instrument during the pandemic, during which it was necessary to cope with a sudden shortage of personnel, along with the need to process an increased volume of work.1 In the case of the classical model of administrative law application as reflected in the legal orders of modern, developed states, simplifying this model in principle, one can distinguish the stages of adjudication (jurisdiction), control (including judicial–administrative control) and execution of the decision (enforcement). The present study focuses on the analysis of the automation of the latter stage and provides a substantive assessment of the legal solutions for the automation of administrative enforcement procedures, thus ignoring the solutions that have emerged in relation to jurisdictional proceedings in particular. However, it is worth empha-

1 G. Carullo, Digitalizzazione dei controlli ai tempi del coronavirus, Ceridap 2020, no.1, p. 7; P. Rączka, How does COVID-19 affect the laws Of Poland? A review of selected aspects of administrative law and the local government system, in: Pandemic Poland. Impacts of Covid-19 on Polish Law, eds. M. Löhnig, M. Serowaniec, Z. Witkowski, Böhlau Verlag Wien Köln 2021, p. 97.

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sising at the outset that in the case of both legal orders under analysis, jurisdictional and enforcement procedures are not a hermetic matter and show significant links.2 The authors decided, partly due to scientific interests, to confront the said matter in the Polish legal order and the legal order of the Free State of Saxony. In addition to the reason indicated, the choice is justified by the degree of implementation of the automation of enforcement procedures in these two locations; although Poland and Saxony are at different stages of implementation, they are moving in the same direction.

2.

Legal conditions of enforcement procedures in the Free State of Saxony and in the Republic of Poland

A comparative analysis of the two legal systems first requires a delineation of the systemic framework of the legal system in which the German and Polish administrations are set up. The Federal Republic of Germany, by virtue of its Basic Law (the ‘BL’),3 is a federal state consisting of 16 sovereign states – the federal states. The German Constitution devotes a number of regulations to the mutual relations of the federation and its constituent parts. These regulations relate to the constitutional principles of the Länder and the distribution of powers between the Federation and the Länder. The BL also establishes guarantees for respect for the rights of both the states by the Federation and the rights of the Federation by its members.4 It should also be pointed out that the BL takes into account the structure of the state by introducing the division of political power between the Federation and the Länder.5 The division of powers between the Federation and the Länder is based on the presumption of jurisdiction of the states, and the federal bodies may only act where the BL permits. Both the Federation and the Länder should have the common interest of the Federation in mind, along with the common good of their inhabitants, when carrying out their tasks.6

2 See art. 18 ustawy z dnia 17 czerwca 1966 r. o postępowaniu egzekucyjnym w administracji, Dz. U. z 2022 r. poz. 479 z późn. zm. [article 18 Act of enforcement proceedings in administration of 17 June 1966], J. of. L. 2022, item. 479 as amended. 3 Grundgestz für die Bundesrepublik Deutschland vom. 23. Mai 1949, BGBI. 2048 [Basic Law for the Federal Republic of Germany of 23 Mai 1949], J of L. I S. item 2048, as amended. 4 K. Bezubik, Bundestag a parlamenty krajowe [Bundestag and National Parliaments], Białostockie Studia Prawnicze 2019, vol. 24, no. 4, pp. 79–80. 5 R. Balicki, K. Piech, Zasady podziału władzy w Niemczech [Principles of separation of powers in Germany], in: Zasady podziału władzy we współczesnych państwach europejskich [Principles of separation of powers in modern European states], eds. S. Grabowska, R. Grabowski, Rzeszów 2016, p. 176. 6 K. Bezubik, (above n. 4), pp. 79–80.

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Automation of administrative enforcement proceedings

The situation is markedly different in the Republic of Poland. According to Article 3 of the Constitution of the Republic of Poland,7 Poland is a unitary state. As emphasised in the doctrine, the principle of the unity of the state (the principle of unitarism), ‘is a principle which defines the character of the state in that part which concerns its territorial structure and public authority. The definition of the Polish state as a unitary state excludes the possibility of its transformation into a federal state. (…) A unitary state is a state that has a homogeneous internal organisational structure, a homogeneous legal system including acts of international law, and a homogeneous territory, the division of which is of an exclusively administrative nature and does not involve the transfer of sovereign power to territorial units. A unitary state is also characterised by the integrity of the legal status of the population of that state, which entails the possession by that population of a unitary nationality’.8 Consequently, the regulation of administrative procedural enforcement law is shaped at the central level in the form of laws and normative executive acts. The marked dissimilarity of the state systems does not, however, exclude similarities in the shaping of individual legal solutions. It is therefore worth noting that the German and Polish models of administrative enforcement contain similar legal regulations.9 The German Federal Act of 27 April 1953 on Administrative Enforcement10 (‘VwVG’) contains provisions regulating the application of administrative coercion in the form of enforcement, both with regard to pecuniary and non-pecuniary obligations. The law is divided into four parts. The first part, entitled ‘Enforcement for monetary claims’, prescribes the general principles of administrative enforcement (the scope of the Act, the concept of the obligor, the competence of the enforcement authorities, and the prerequisites for the initiation of enforcement proceedings). The second part, entitled ‘Enforcement of obligations to do, refrain from doing or forbear from doing’, sets out the prerequisites for the admissibility of the use of administrative coercion (Zulässigkeit des Verwaltungszwanges), enforcement measures (substitute enforcement, fines, direct coercion), the principles of their use and legal measures for the protection of subjects in enforcement

7 Konstytucja Rzeczypospolitej Polskiej z dnia 2 kwietnia 1997 r. [The Constitution of the Republic of Poland of 2 April 1997], J. of L. 1997, No. 78, item 483 as amended. 8 M. Florczak-Wątor, Komentarz do art. 3. Konstytucji RP [Commentary to Article 3. of the Constitution of the Republic of Poland] in: Konstytucja Rzeczypospolitej Polskiej. Komentarz [The Constitution of the Republic of Poland], ed. P. Tuleja, Lex/el.2021. 9 L. Klat-Wertelecka, Współpraca transgraniczna w zakresie dochodzenia publicznych należności pieniężnych [Cross-border cooperation in the enforcement of public money claims] in: Współpraca Transgraniczna w Administracji Publicznej [Cross-border Cooperation in Public Administration], ed. R. Kusiak-Winter, Wrocław 2015. 10 ‘Verwaltungsvollstreckungsgesetz’ Act of 27 April 1953 on administrative enforcement (BGBl. I, S. 157 (hereafter referred to as the VwVG)) [The Act of 27 April 1953 on administrative enforcement], J of L. I S item 147, as amended (hereafter referred to as the VwVG).

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proceedings in administration. The third part of the Act deals with costs, and the fourth part contains transitional and final provisions.11 The Federal Law on Administrative Enforcement Proceedings has a framework character. Consequently, each of the states of the Federal Republic of Germany is obliged to enact its own implementing regulations for the VwVG. Indeed, each individual German Länder has its own normative acts regulating administrative enforcement proceedings in detail. What is also important is that the provisions of the Länder also apply when an administrative act of the federal government is to be enforced by state or local authorities, by way of administrative assistance. In the Polish legal order, the administrative enforcement procedure is governed by the Act of 17 June 1966 on Enforcement Proceedings in Administration12 and numerous implementing acts issued on the basis of the statutory authorisations contained in the Act. The Polish Enforcement Act also regulates, in separate sections, the rules for the enforcement of pecuniary and non-pecuniary obligations and, as in the case of the German Act, a number of other issues related to the proceedings under analysis, including the security procedure, enforcement costs, rules for the conduct of enforcement and others. In regard to the concept itself and the grounds for the application of administrative enforcement in both legal orders, they essentially coincide. Administrative enforcement proceedings are defined in German judicial case law as state coercive proceedings conducted by an administrative authority in which the authority aims to enforce a public law claim of an authority subject (e. g., a municipality) against a citizen using state coercive measures.13 Representatives of German legal doctrine point out that, in a typical case, the Administrative Enforcement Act requires the existence of a basis for enforcement, which is generally formed by an administrative act ‘die Grundverfügung’ (the basic order) or, if the Administrative Enforcement Act so provides, a public law contract or an administrative court order. A further requirement for enforcement is the enforceability of the administrative act, which is the case if the act is not actionable or if an appeal against it has no suspensive effect.

11 L. Klat-Wertelecka, (above n. 9). 12 Ustawa z dnia 17 czerwca 1966 roku o postepowaniu egzekucyjnym w administracji, Dz.U. z 2022 roku, poz. 479 [The Act of 17 June 1966 on enforcement proceedings in administration, J. of L. 2022, item 479, hereafter referred to as the Polish Enforcement Act or the EgzAdmU]. 13 Bundesfinanzhof [Federal Financial Court] Judgment of 22.10.2002, no. VII R 56/00; see ‘Entscheidungenes Bundesfinanzhofs’ no. 199, no. 511 (X ‘Neue Juristische Wochenschrift’’, 2003, p. 1070); Cf. in more detail H. Lisken, E. Denninger, Handbuch des Polizeirechts, München 1996, p. 676; K. Weber, Handbuch des sächsischen Verwaltungsvollstreckungsrechts, Dresden 2009, p. 20.

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Automation of administrative enforcement proceedings

Only in exceptional cases is it possible to apply enforcement measures in regular enforcement proceedings before the administrative act becomes enforceable.14 Also in the Polish doctrine, enforcement proceedings in administration are qualified as one of the elements of the procedural part of administrative law, next to the administrative and judicial–administrative proceedings usually mentioned first.15 It should also be pointed out that in addition to the subject criterion, the Polish legislator in the provisions of the Polish Enforcement Act has specified, as a factor conditioning the application of enforcement, a positive assessment of the admissibility of the administrative enforcement procedure mode. It is based on the solution, according to which administrative enforcement will be applied to the obligations specified in Article 2 of the Act on Administrative Enforcement when the obligation to fulfil them arises directly from administrative acts, normative acts or factual actions of the designated entities.16 It should therefore be stated that in both the German and Polish legal systems, an administrative act will constitute the basis for enforcement. Before analysing the detailed legal arrangements, it is worth noting that the automation of public administration began to be the subject of political and scientific debate in Germany as early as the 1950s.17 Nowadays, it is a truism to claim that automation provides obvious advantages in terms of speed and savings in regard

14 P. Ostojski, Podstawy egzekucji administracyjnej obowiązków niepieniężnych w prawie niemieckim i polskim [Grounds for administrative enforcement of non-pecuniary obligations under German and Polish law], Ruch Prawniczy, Ekonomiczny i Socjologiczny 2012, no. 74(4), p. 66. 15 M. Wierzbowski, Meritum. Postępowanie administracyjne, egzekucyjne i sądowoadministracyjne [Meritum. Administrative, enforcement and court-administrative proceedings], Warszawa 2022, p. 611. 16 Ibidem, p. 614. 17 K. Zeidler, Über die Technisierung der Verwaltung: eine Einführung in die juristische Beurteilung der modernen Verwaltung, Heidelberg, Müller, 1959, p. 18; H.P. Bull, Verwaltung durch Maschinen: Rechtsprobleme der Technisierung der Verwaltung, Hamm Grote, 1964, p. 67; S. Simitis, Automation in der Rechtsordnung, Möglichkeiten und Grenzen, Heidelberg, Müller, 1967, p. 23; M. von Berg, Automationsgerechte Rechts und Verwaltungsvorschriften, Köln-Berlin, Grote, 1968, p. 12; A. von Mutius, Zu den Formerfordernissen automatisierter Verwaltungsentscheidungen, in: Verwaltungsarchiv, 1976, vol. 67, p. 116; P. Lazaratos, Rechtliche Auswirkungen der Verwaltungsautomation auf das Verwaltungsverfahren, Berlin, Duncker & Humblot, 1990, p. 35; R.M. Polomski, Der automatisierte Verwaltungsakt, Berlin, Duncker & Humblot, 1993, p. 22; N. Luhmann, Recht und Automation in der öffentlichen Verwaltung, Berlin, Duncker & Humblot, 1997, p. 76; G. Britz, Elektronische Verwaltung, in Grundlagen des Verwaltungsrechts, vol. 2, eds. W. Hoffmann-Riem, E. Schmidt-Assmann, A. Voßkuhle, München, Beck, 2012, § 26, no. 18; A.B. Kaiser, Intelligente Verwaltungsmaschine – intelligente Maschinen in der Verwaltung: Die Diskussion über die Verwaltungsautomation in den 1950 er und 1960 er Jahren, in: Eine intelligente Maschine? Eds. P. Collin, C.G. Lutterbeck, Baden Baden, Nomos, 2009, p. 233; T. Siegel, Der virtuelle Verwaltungsakt, in: Verwaltungsarchiv 2014, vol. 105, p. 241.

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to personal and public resources, not to mention those related to efficiency and objectivity.18 In the Polish legal order, the idea of automation of the broadly defined administrative procedure does not have such a long history, and in terms of the implementation of legal solutions, it is an achievement of recent years. However, the benefits associated with the implementation of automation must not obscure the shortcomings and risks associated with such automation. On the one hand, automation leads to the anonymity of automated actions, which can play a significant role in the context of official accountability. Secondly, the indiscriminate nature of automated activities severely limits, if not prevents, reliable control of their correctness by the human factor. When introducing automation mechanisms, it is also necessary to guarantee the rights shaped by the regulations of the entities that the enforcement actions are aimed at (i. e., first and foremost the rights of the obliged party). It is therefore hardly surprising that the basic legal regulations assuming automation focus on the activities performed between entities that are, in principle, public, including first and foremost the relations occurring between the creditor (or other entity requesting the initiation of enforcement) and the enforcement authority.

3.

Automation of enforcement proceedings using the example of the Administrative Enforcement Act for the Free State of Saxony

Extremely interesting and relevant for research related to the automation of the enforcement procedure are the solutions adopted by the Saxon legislature. It should be emphasised that Saxony is one of the few federal states where the automation of the enforcement procedure has been applied. The range of considerations presented below includes the current state of the law and the doctrinal views of German legal science. An evaluation of the legal order of the Free State of Saxony may serve as a source of inspiration for the Polish administrative enforcement system. In order to present the legal regulatory model for the automation of enforcement proceedings in Saxony, reference should be made to the Administrative Enforcement Act for the Free State of Saxony (‘SächsVwVG’),19 which regulates the

18 H. Schmitz, L. Prell, Neues zum E-Government. Rechtsstaatliche Standards für E-Verwaltungsakt und E-Bekanntgabe im VwVfG, in: Neue Zeitschrift für Verwaltungsrecht 2016, p. 1277; M. Martini, D. Nink, Heidelberg, Neue Zeitschrift für Verwaltungsrecht – Extra 2017, no. 10, p. 307. 19 Verwaltungsvollstreckungsgesetz für den Freistaat Sachsen in der Fassung der Bekanntmachung vom 10. September 2003 (SächsGVBl. S. 614, 913) das zuletzt durch Artikel 2 Absatz 1 des Gesetzes vom 5. April 2019 (SächsGVBl. S. 245) [Administrative Enforcement Act for the Free State of Saxony, as amended on 10.09.2003, J. o L. SächsGVBl. S. 614, 913 last amended by Article 2(1) of the Act of 5 April 2019 J. o L. SächsGVBl. S. 245.

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procedure in question. The implementation of increased automation in enforcement proceedings in Saxony was intended to enable the administration to adapt its way of working to the requirements of mass exploitation and technical progress. It is worth noting that a large number of cases in the broad field of administrative proceedings can be streamlined through the use of electronic data processing systems. One manifestation of the use of automation in administrative enforcement proceedings is § 4 in the SächsVwVG, entitled ‘Enforcement authorities, enforcement assistance’ (‘Vollstreckungsbehörden, Vollstreckungshilfe’). The wording of § 4 of the SächsVwVG lists the bodies that are enforcement authorities. It should be noted that according to § 4(2) of the SächsVwVG, ‘National authorities shall provide enforcement assistance on request, where the conditions for administrative assistance are met. Foreign authorities may only receive enforcement assistance if this is provided for in an international agreement or an act of the European Communities’ [author’s own translation].20 At this point, it should be emphasised that the wording of § 4(3) SächsVwVG indicates that unless otherwise specified, an enforcement application issued pursuant to § 4(2) SächsVwVG can only be granted if it contains the following information: 1) the name and official seal of the applicant authority and the signature of the head of the authority or his representative; in the case of an enforcement request created by means of automated devices, the official seal and signature may be missing, 2) the designation of the administrative act to be enforced, indicating the issuing authority, date and file number, 3) a statement of the debtor’s obligation and in the case of recovery, the grounds and amount of the pecuniary claim, 4) information that the administrative act has become final and that the appeal against it by operation of law has no suspensive effect or that its immediate enforcement has been ordered; in the case of enforcement from a public law contract, information that the debtor has effectively surrendered to immediate enforcement in the contract and that the other conditions for enforcement from the contract are fulfilled, 5) the designation of the person against whom enforcement is to be directed, 6) in the case of debt recovery, information about when the debtor received a reminder or for what reason the reminder was not sent. Enforcement assistance is subject to strict formalities’ [author’s emphasis and own translation].21 20 [Original wording of the provision] Verwaltungsvollstreckungsgesetz für den Freistaat Sachsen in der Fassung der Bekanntmachung vom 10. September 2003 (SächsGVBl. S. 614, 913), das zuletzt durch Artikel 2 Absatz 1 des Gesetzes vom 5. April 2019 (SächsGVBl. S. 245) § 4(2): Inländischen Behörden ist auf Ersuchen Vollstreckungshilfe zu leisten, wenn die Voraussetzungen für die Gewährung von Amtshilfe erfüllt sind. 2Ausländischen Behörden darf Vollstreckungshilfe nur geleistet werden, wenn dies in einer völkerrechtlichen Vereinbarung oder in einem Rechtsakt der Europäischen Gemeinschaften vorgesehen ist. 21 [Original wording of the provision] Verwaltungsvollstreckungsgesetz für den Freistaat Sachsen in der Fassung der Bekanntmachung vom 10. September 2003 (SächsGVBl. S. 614, 913), das zuletzt durch Artikel 2 Absatz 1 des Gesetzes vom 5. April 2019 (SächsGVBl. S. 245)

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In light of the legal situation thus outlined, it should be noted that automatically created enforcement requests are processes in which a request is generated automatically. In reference to the commentators of the German doctrine of enforcement proceedings, automatic applications will not include letters or documents drawn up in an automatic manner that would be significantly altered or supplemented by hand after being generated by the system.22 It should be emphasised that an automatic enforcement request does not doctrinally fit into the concept of an administrative act contained in § 35 of the Code of Administrative Procedure Act (VwVfG).23 However, among jurists, it is comparable to a written administrative act issued by means of automatic devices, as referred to in § 37 para 5 (VwVfG).24 The use of automated applications in enforcement proceedings in administration is intended to enable the administration to adapt its working methods to handle mass volumes of activities and technological advances. The use of electronic data processing systems (‘Elektronische Datenverarbeitung – EDV’) in administrative proceedings provides invaluable assistance to the administration in dealing with mass volumes of cases.25 On this basis, it should be noted that the Saxon legislator’s abandonment of the requirement for a signature and name in an automatically issued application significantly simplifies the procedure. The automatic creation of enforcement requests in a situation where the administration uses the assistance of

22 23 24 25

§ 4(3): Einem Vollstreckungsersuchen nach Absatz 2 darf, soweit nichts anderes bestimmt ist, nur entsprochen werden, wenn es folgende Angaben enthält: 1. die Bezeichnung und das Dienstsiegel der ersuchenden Behörde sowie die Unterschrift des Behördenleiters oder seines Beauftragten; bei einem Vollstreckungsersuchen, das mit Hilfe automatischer Einrichtungen erstellt ist, können Dienstsiegel und Unterschrift fehlen, 2. die Bezeichnung des zu vollstreckenden Verwaltungsaktes unter Angabe der erlassenden Behörde, des Datums und des Aktenzeichens, 3. die Angabe der Verpflichtung des Vollstreckungsschuldners, im Falle der Beitreibung die Angabe des Grundes und der Höhe der Geldforderung, 4. die Angabe, dass der Verwaltungsakt unanfechtbar geworden ist, ein gegen ihn gerichteter Rechtsbehelf kraft Gesetzes keine aufschiebende Wirkung hat oder seine sofortige Vollziehung angeordnet worden ist; im Falle der Vollstreckung aus einem öffentlich-rechtlichen Vertrag die Angabe, dass sich der Schuldner in dem Vertrag wirksam der sofortigen Vollstreckung unterworfen hat und die sonstigen Voraussetzungen der Vollstreckung aus dem Vertrag vorliegen, 5. die Bezeichnung der Person, gegen die sich die Vollstreckung richten soll, 6. im Falle der Beitreibung die Angabe, wann der Schuldner gemahnt worden ist oder aus welchem Grund die Mahnung unterblieben ist. T. Linder, Verwaltungsvollstreckungsgesetz für den Freistaat Sachsen: Kommentar, Books on Demand 2011, p. 142. Verwaltungsverfahrensgesetz vom 25. Mai 1976 in der Fassung der Bekanntmachung vom 23. [Administrative Procedure Act of 23 January 2003] J. of L. BGBI. I S, item 2154, as amended]. T. Linder, Verwaltungsvollstreckungsgesetz für den Freistaat Sachsen: Kommentar, Books on Demand 2011, pp. 142–143. Ibid.

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electronic systems is fully justified.26 The abandonment of the signature requirement in the situation referred to in § 4(3) SächsVwVG is also due to the fact that the creator of an automatically generated document cannot usually be assigned to it. It should also be added that an automatically created document is not re-checked by an office employee. In regard to the above, another aspect needs to be highlighted. Namely, in the case of an enforcement application created by means of an automatic device, a seal on this document is also not required. According to the current State of Saxony law, administrative authorities are entitled to mechanically imprint a seal on documents created electronically.27 The legislator has, however, dispensed with the introduction of an electronic official seal because enforcement requests can be made not only by Saxony authorities but also by authorities based outside Saxony. In this case, there is no guarantee that the relevant state/provincial law permits the use of an electronic official seal.28 In the context of the existing automation in enforcement proceedings in Saxony, it is also worth noting § 5(2) SächsVwVG. The aforementioned paragraph indicates which mandatory elements an enforcement order must include: 1) The name and official stamp of the enforcement authority, the name and signature of the official issuing the enforcement order and the name of the official in charge of enforcement; in the case of an enforcement order drawn up using automated equipment, the signature may be omitted [author’s emphasis]; 2) The designation of the administrative act to be executed, indicating the issuing authority, date and file number; 3) Confirmation that the administrative act is enforceable in accordance with § 2 of the SächsVwVG; in the case of enforcement from a public law contract, confirmation that the debtor has effectively submitted himself to immediate enforceability in the contract and that the other prerequisites for enforcement from the contract are met; 4) The name of the person against whom enforcement is to be sought [author’s own translation].29

26 Ibid. 27 Judgment of the BVerwG of 22.01.1993, no. 8 C 57/91. 28 T. Linder, Verwaltungsvollstreckungsgesetz für den Freistaat Sachsen: Kommentar, Books on Demand 2011, pp. 142–143. 29 [Original wording of the provision] Verwaltungsvollstreckungsgesetz für den Freistaat Sachsen in der Fassung der Bekanntmachung vom 10. September 2003 (SächsGVBl. S. 614, 913), das zuletzt durch Artikel 2 Absatz 1 des Gesetzes vom 5. April 2019 (SächsGVBl. S. 245) § 5: Der Vollstreckungsauftrag muss mindestens enthalten: 1. Die Bezeichnung und das Dienstsiegel der Vollstreckungsbehörde, den Namen und die Unterschrift des den Vollstreckungsauftrag erteilenden Bediensteten und den Namen des mit der

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In the context of the above regulation, it should be noted that the omission of the signature in the automatically drafted enforcement title is due to the fact that an author ‘cannot be assigned to an automatically drafted document’.30 It should be emphasised that, unlike in the case of § 4(3) SächsVwVG, the official seal (as opposed to the signature) must also be affixed to the enforcement title created by automatic devices. Against the backdrop of the regulations presented above, it should be noted that the SächsVwVG provides for the possibility of issuing automated enforcement notices, which significantly enables the authorities to process a huge number of cases, thus relieving the workload in the offices. Access to new technologies has thus facilitated internal administrative processes and changed the administration’s relationship with citizens.

4.

Regulation of Polish enforcement proceedings in administration

In the Polish legal order, the current legal solutions regulating administrative enforcement proceedings exclude – and certainly significantly limit – the performance of enforcement actions in an automated manner. However, it seems that the Polish legislator, being aware of the benefits that may arise from the implementation of the automation mechanism, is preparing a legal regulation for its introduction. In recent years, the changes that have been made to the Polish enforcement law and related to the implementation of new technologies have focused on improving communication between the subjects of these proceedings, primarily the creditor and the enforcement authority and, to a lesser extent, the debtor of the seized debt. First of all, this occurred with the amendment of the Polish Enforcement Act as a result of the entry into force of the Act of 11 September 2019 amending the Act on Enforcement Proceedings in Administration and certain other acts.31 The basic regulation in this respect is the addition to the EgzAdmU of provisions regulating

Vollstreckung beauftragten Bediensteten; bei einem Vollstreckungsauftrag, der mit Hilfe automatischer Einrichtungen erstellt wurde, kann die Unterschrift fehlen, 2. Die Bezeichnung des zu vollstreckenden Verwaltungsaktes unter Angabe der erlassenden Behörde, des Datums und des Aktenzeichens, 3. Die Bestätigung, dass der Verwaltungsakt nach § 2 vollstreckbar ist; im Fall der Vollstreckung aus einem öffentlich-rechtlichen Vertrag die Bestätigung, dass sich der Schuldner in dem Vertrag wirksam der sofortigen Vollstreckung unterworfen hat und die sonstigen Voraussetzungen der Vollstreckung aus dem Vertrag vorliegen, 4. Die Bezeichnung der Person, gegen die sich die Vollstreckung richten soll. 30 T. Linder, Verwaltungsvollstreckungsgesetz für den Freistaat Sachsen: Kommentar, Books on Demand 2011, p. 146. 31 J. of. L. item. 2070 [J. of. L. item. 2070].

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Automation of administrative enforcement proceedings

the functioning of the ICT system operated by the Head of the National Fiscal Administration, which is used, as is apparent primarily from Article 26aa of the EgzAdmU, to transmit to the enforcement body (being the head of the tax office) enforcement requests and enforcement titles or information about the obliged person, necessary for the effective enforcement referred to in Article 26 § 1e of that Act. The above-mentioned regulation is connected with further ones, which enable electronic generation and transfer in electronic form to the enforcement body of documents used in administrative enforcement proceedings, such as the previously indicated enforcement applications, enforcement titles or information about the obliged party, as well as the legal solutions contained in Art. 26e EgzAdmU, as well as the legal solutions contained in Article 26e EgzAdmU concerning the confirmation of a letter drawn up by a creditor or an enforcement authority in electronic form, as well as the delivery of a printout of a letter drawn up electronically, regulated by this provision, equal in legal effect to the delivery of this letter or its copy. Another of the provisions regulating the rules of electronic communication is Article 63a of the EgzAdmU. It should be noted that the cited provision favours service by means of electronic communication. Service in paper form is admissible only in exceptional situations, where service in electronic form is not possible for technical reasons. According to this provision, service between enforcement authorities and between an enforcement authority and a judicial officer shall be made by means of an ICT system or by means of electronic communication. It is worth noting that this rule also extends to relations with judicial enforcement bodies (bailiffs), which will occur primarily in the case of the concurrence of judicial and administrative enforcement. As well as the provisions governing the administrative enforcement of monetary debts, § 1a was added in Article 67 EgzAdmU, according to which notices of seizure and other letters under the applicable enforcement measure may be served by means of an ICT system or by electronic communication. The exemplary regulations indicated above, and in particular those concerning the operation of the ICT system, are regulations that ensure the efficiency of communication between the entities primarily active in the enforcement procedure. However, they do not constitute the basis for assuming that enforcement actions may be performed automatically. Undoubtedly, however, in the case of implementation of broad automation of enforcement actions, the indicated regulations will allow for even more efficient and low-cost initiation and carrying out of enforcement proceedings, especially in cases of a considerable number (e. g., enforcement of administrative fines for traffic offences). However, in light of the considerations presented above, it is worth noting that the aforementioned 2019 amendment to the Polish Enforcement Act has to a small extent introduced grounds for the implementation of the automation of

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enforcement actions, in particular the automatic generation of letters by the creditor (i. e., the entity entitled to demand the performance of an obligation or its security in the proceedings under analysis). Article 15 of the EgzAdmU, which regulates the issue of the implementation of the principle of jeopardy in administrative enforcement proceedings,32 and in particular §1b sentence 2. of this provision, allows for the possibility of automatic generation of reminders, which the creditor is obliged to send to the obliged party prior to the initiation of administrative enforcement. The legislator in the abovementioned provisions adopted a solution according to which also in the case of an automatically generated reminder, it does not have to contain the signature of a person authorised to act on behalf of the creditor, whose signature constitutes an obligatory element of a reminder issued in a traditional manner. Analogous solutions are contained in Article 18c of the EgzAdmU, which stipulates the obligation of the creditor to notify the debtor about the threat of disclosure in the Public Debt Register of information on pecuniary receivables subject to administrative enforcement. Pursuant to Article 18b of the EgzAdmU, which defines the subject matter scope of data disclosed in the Register, information is collected in the Register on monetary receivables subject to administrative enforcement, for which the creditor is the head of the tax office or a local government unit, if these receivables arise: from the document referred to in Art. 3a § 1 (i. e., a document constituting the basis for administrative enforcement under the Polish Enforcement Act, which is not a judgment); from a decision, ruling or other judgment which is final; from a final judgment, ruling or penal notice issued under the provisions of the Fiscal Penal Code or the Penal Code; from a penal notice issued in misdemeanour proceedings; or directly from a provision of law. The Register in question primarily discloses data on the debtor and the monetary claim to be enforced. The legislation stipulates that before entering the data in the Register, the creditor is obliged to serve the obligee with a notice of the risk of disclosure. However, § 1a of Article 18c of the EgzAdmU provides that such a notice may be generated automatically and, in such a case, may not contain the signature of a person authorised to act on behalf of the creditor. The indicated legal regulations thus provide a basis for the generation of automated documents, of which the delivery to the obliged party takes place before administrative enforcement is initiated or the existence of public-law receivables is confirmed subject to such enforcement. This appears to be the first step by the Polish legislator to introduce automation to a wider extent in administrative enforcement 32 On the principle of threat (reminder) see M. Masternak, in: Administracyjne postępowanie egzekucyjne i zabezpieczające, System Prawa Administracyjnego Procesowego [Administrative enforcement and precautionary proceedings, System of Administrative Procedural Law], ed. D.R. Kijowski, Warszawa 2020, p. 332.

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proceedings. Certainly, an area susceptible to the use of automatic generation and electronic delivery of documents is the relationship between the enforcement authority and the creditor, and in this area the creation of opportunities for automation of the Polish procedure should be seen.

5.

Conclusions

The remarks presented above concerning the regulatory model adopted in Saxony may constitute the direction in which the Polish legislator will follow when introducing amendments to the EgzAdmU. It should be stated that in the era of increasing digitisation and automation, further expansion of the digitised, automated executive power of the state is obvious.33 A comparative analysis of two systems that are geographically close to each other and derive from a similar legal tradition related to administrative law leads to the following conclusions. On the basis of the considerations presented, it should be noted that in the context of the compared legal systems, there are significant differences in the ability of administrative authorities to issue automated documents. The Polish legislator in the EgzAdmU did not provide for the possibility for the authorities to generate automatic requests for the initiation of enforcement and to issue enforcement titles using automatic devices. Significant differences in the area of automation also appear in the issue of reminders and notices. It should be emphasised that the EgzAdmU provides for the automation of enforcement proceedings by, inter alia, allowing for the automatic generation of reminders (Article 15 §1b of the EgzAdmU) and the issuance of automatic notices (Article 18c §1a of the EgzAdmU), which are not to be found in the SächsVwVG. To conclude the above considerations, the regulations contained in the SächsVwVG may set the legislative direction for the Polish legislator to introduce increased automation in Polish enforcement proceedings, inter alia by providing for the possibility to apply automation to enforcement requests and to the issuance of enforcement titles. On the other hand, Polish solutions for automation in the implementation of the threat principle (reminders) as well as the information principle (notices) may not be insignificant for the development of the law in Saxony.

33 A. Guckelberger, Ein Paradigmenwechsel in Verwaltung und Verwaltungsrecht?, in: Veröffentlichungen der Vereinigung der Deutschen Staatsrechtsleher (VVDStRL), vol. 78, 2019.

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References Legal acts Grundgestz für die Bundesrepublik Deuthcland vom. 23. Mai 1949, BGBI. 2048. [Basic Law for the Federal republic of Germany of 23 Mai 1949], J of L. I S. item 2048 as amended. Konstytucja Rzeczypospolitej Polskiej z dnia 2 kwietnia 1997 r. [The Constitution of the Republic of Poland of 2 April 1997], J. of L. 1997, No. 78, item 483 as amended. Ustawa z dnia 17 czerwca 1966 roku o postepowaniu egzekucyjnym w administracji, Dz.U. z 2022 roku, poz. 479 [The Act of 17 June 1966 on enforcement proceedings in administration, J. of L. 2022, item 479 as amended. Verwaltungsverfahrensgesetz vom 25. Mai 1976 in der Fassung der Bekanntmachung vom 23. [Administrative Procedure Act of 23 January 2003] J. of L. BGBI. I S, item 2154 as amended]. Verwaltungsvollstreckungsgesetz für den Freistaat Sachsen in der Fassung der Bekanntmachung vom 10. September 2003, SächsGVBl. S. 614, 913, [Administrative Enforcement Act for the Free State of Saxony as amended on 10 September 2003 J. of L. SächsGVBl. S. 614, 913] Verwaltungsvollstreckungsgesetz vom 27 April 1953 [The Act of 27 April 1953 on administrative enforcement], BGBl. I, S. 157, J of L. I S item 147 as amended.

Jurisdiction Judgment of Bundesfinanzhof of 22.10.2002, no. VII R 56/00. Judgment of the Bundesverwaltungsgericht of 22.01.1993 r., no. 8 C 57/91.

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