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Last update: 30-08-2007
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Legal order - Poland

The Polish Constitution provides for a distinction between universally binding law and internal law.

Universally binding law is binding on all entities in the country, governs the legal situation of citizens and other entities (such as legal persons, business operators, associations, organisations etc.) and determines their rights and obligations.

Enactments of internal law solely concern the legal situation of entities within the organisational structure of the body issuing such enactments.

Chapter III of the Constitution (Articles 87‑94) lists the sources of universally binding law. These are:

  • the Constitution;
  • statutes;
  • ratified international agreements;
  • regulations, and
  • enactments of local law (subject to the proviso that they are binding only within the jurisdiction of the body which issues them and within the limits of the powers laid down by law).

In addition to the above, Article 234 of the Constitution provides for the following universally binding law – regulations having the force of statute polski, issued by the President of the Republic, solely in cases tightly defined by the Constitution (e.g. during martial law or whenever the Sejm is unable to assemble for a sitting).

A further source of universally binding law is constituted by the legislation of international organisations if the international agreement establishing such organisations provides for the legislation established by them to have effect under domestic law (Article 91(3) of the Constitution). This Article concerns Community secondary legislation.

Publication of the full text of Acts, regulations and enactments of local law is subject to their being reproduced in full in one of Poland's official publications (Article 88 of the Constitution). There are currently three such publications: the Journal of Laws of the Polish Republic, the Official Gazette of the Polish Republic (Polish Monitor) and the Official Gazette of the Polish Republic (Polish Monitor B). Enactments of universally binding law are published in the Journal of Laws.

The Polish Constitution (dated 2 April 1997) is the most important source of universally binding law in Poland. The Constitution is an Act, i.e. a universally binding law. It is adopted and amended in a different way from ordinary Acts (Article 235 of the Constitution). The Constitution is regarded as a basic law in view of its particular contents, form and legal force. It governs Poland's political, social and economic system and lays down the fundamental rights and freedoms of Polish citizens. The Constitution occupies the highest position in the hierarchy of sources of law in Poland. It indicates the other sources of law, their scope and their autonomous or executive nature. All other normative acts must be compatible with the Constitution. The Constitutional Court upholds compatibility with the Constitution of other normative acts and also compatibility of subordinate normative acts with higher‑ranking legislation. In addition, under Article 79 of the Constitution, any person whose constitutional rights or freedoms have been violated is entitled to lodge a complaint with the Constitutional Court in respect of the compatibility with the Constitution of an Act or other normative act, further to which a court or public body has issued a definitive judgment on their constitutional rights, freedoms or obligations.

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International agreements are ratified by the President of the Republic. However, where an international agreement concerns fundamental issues such as: peace, political or military arrangements, citizens' freedoms, rights and responsibilities, membership of international organisations, major financial commitments on the part of the State and matters governed by an Act or in respect of which the Constitution requires legislation, ratification is contingent on prior agreement being enshrined in that Act (Article 89 of the Constitution). After a ratified international agreement has been published in the Journal of Laws, it becomes part of the national body of law and is directly applicable, except where application requires the promulgation of an Act. In addition, an international agreement ratified with prior consent enshrined in an Act takes precedence over an Act if it is incompatible with the agreement. Legislation passed by an international organisation is also applied directly and takes precedence in the event of a conflict with Acts where this is provided for in the agreement setting up that organisation and ratified by Poland (Article 91 of the Constitution).

Article 91 of the Constitution defines the place of Community law in the domestic legal order. EU primary legislation in the form of international agreements forms part of the domestic legal order, is directly applicable and takes precedence over Acts. EU secondary legislation is directly applicable and takes precedence in the event of a conflict with Acts.

Acts are subordinate to the Constitution and to international agreements polski ratified with prior consent enshrined in an Act, but rank higher than regulations polski. An Act may be passed on any subject, but the most important issues can only be regulated by an Act (e.g. the Budget Act polski, legislation defining the legal status of citizens, the rules governing local government polski systems and their mandate). Normative acts passed by government bodies can be issued only by virtue of an authorisation enshrined in an Act with a view to its implementation. The Constitution polski sometimes requires the adoption of the corresponding Act, outlining the solutions it provides for.

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Legislative procedure is governed by the Constitution (Articles 118‑124) and the Rules of Procedure of Parliament (the Sejm) and the Senate.

The right to initiate legislation polski lies with the Cabinet, a group comprising at least 15 Members of Parliament, the Senate polski, the President of the Republic polski and a group comprising at least 100,000 citizens. Bills are submitted to the Sejm, where they are dealt with in three readings. In the course of this process the Sejm examines the bill and transmits it to the appropriate parliamentary committees for amendment. The bill is then returned to the Sejm, which votes on the amendments and the bill as a whole. The Sejm approves the bill by a simple majority, subject to at least half of the statutory number of Members being present. Once it has been passed by the Sejm, the bill is transmitted to the Senate, which has one month in which to adopt it without amendment, amend it or throw it out. If a bill is amended or thrown out by the Senate, it must be re‑examined by the Sejm. In this case the Sejm needs an absolute majority, subject to at least half of the statutory number of Members being present, in order to override a recommendation by the Senate. If Parliament completes the legislative process, the bill is transmitted to the President, who should sign it within three weeks and order its publication in the Journal of Laws. Before signing a bill, the President can refer it to the Constitutional Court for constitutionjal review. If the Constitutional Court deems the bill to be compatible with the Constitution, the President may not refuse to sign it. The President also has the option of not referring a bill to the Constitutional Court but returning it to the Sejm for a further reading ("presidential veto"). However, the Sejm may reject a presidential veto by a majority of 3/5, subject to at least half of the statutory number of Members being present. If the bill is once again adopted by the Sejm, the President has one week in which to sign it and order its publication.

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Regulations are issued by the bodies indicated in the Constitution by virtue of a detailed authorisation enshrined in an Act with a view to its implementation. The authorisation should designate the body empowered to issue the regulation, the scope of the matters to be regulated and guidelines on the contents of the Act (Article 92 of the Constitution). The following bodies are empowered by the Constitution to issue regulations: the President polski, the Cabinet polski, the Chairman of the Cabinet polski, the Minister polski responsible for the government administration, the committee chairman appointed by the Cabinet and the National Radio and Television Broadcasting Council polski. The body polski designated to issue the regulation may not transfer that authorisation to another body. The purpose of a regulation is to implement an Act and as such, it cannot be either incompatible with the Act or go beyond the scope of the delegated powers.

Regulations are subject to checks by the courts. For that reason, they can be disputed by the Constitutional Court and also by a judicial or administrative tribunal. If a court rules in a specific set of proceedings that a regulation or the provisions thereof infringe higher legislation (i.e. an Act), it may refrain from applying it in the case in question and treat it as null and void.

Enactments of internal law (e.g. Orders) are internal in nature and are binding only on the organisational entities subordinate to the body issuing such enactments (Article 93 of the Constitution). Examples of enactments of internal law include cabinet ordinances and orders issued by the President and Ministers. Orders may be issued only on the basis of an Act. They cannot form the basis of a decision concerning citizens, legal persons or other entities.

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Enactments of local law are issued by local government bodies (e.g. municipal resolutions) and central government administrative bodies on the basis and within the scope of authorisations laid down in an Act (e.g. provinces' implementing regulations and orders (Article 94 of the Constitution). These enactments are binding only within the jurisdiction of the bodies which issue them but, in view of their universally binding nature, they may be addressed to all entities and establish their rights and obligations.

Case‑law does not constitute a source of law in Poland. Under Article 178(1) of the Constitution, judges in Poland are subordinate only to the Constitution, Acts, and international agreements ratified with prior consent enshrined in an Act. This means that the courts are duty bound to apply the Constitution, Acts and the aforementioned international agreements. The courts cannot refuse to apply these normative acts on the grounds that they are unconstitutional. However, pursuant to Article 193 of the Constitution, they may address a legal question to the Constitutional Court regarding the compatibility of a given normative act with the Constitution, ratified international agreements or Acts if the outcome of a case pending before the courts hangs on the answer to that legal question. However, judges are not bound by enactments which are subordinate to Acts, such as regulations and, when examining a given case, may determine, on an independent basis, whether such enactments are compatible with Acts and with the Constitution. Should an enactment be found to be incompatible, the court may refuse to apply it and disregard it when handing down a ruling.

However, case‑law and, in particular, the case‑law of the Supreme Court, plays a crucial role in interpretations of statute by the courts.

Useful links:

The Polish Constitution:

http://www.sejm.gov.pl/prawo/konst/polski/kon1.htm

The Sejm:

http://www.sejm.gov.pl

The Senate:

http://www.senat.gov.pl

The legislative process:

http://www.sejm.gov.pl/prace/prace.html

The Constitutional Court:

http://www.trybunal.gov.pl/index2.htm

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Last update: 30-08-2007

 
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