Jerzy Ciapała

Constitutional Freedom of Economic Activity and Its Limitations Due to Important Public Interest. Comments in the Context of Extraordinary Measures and Pandemic

Entrepreneurial freedom is a fundamental "pillar" of the social market economy. Its presentation in chapter I of the Polish Constitution of April 2, 1997, proves its importance in the context of macroeconomic and macrosocial policy. Constitution allows for the limitations of this freedom only for an important public interest and only by law (acts of parliament).

The author tries to show that "important public interest" should be specified by precise references to the specific goods, constitutional values or those that are derived from European Union Law. Of particular importance is the standard of justification and the distinction between the restriction of economic freedom and the legal conditions for interference with this freedom, in order to enable this interference to be carried out in accordance with the law.

Polish constitutional system provides specific restrictions of freedom of entrepreneurship in three extraordinary measures: a state of natural disaster, a state of emergency, and martial law. Constitution does not provide such restrictions during the imposition of the so-called "intermediate" states: a state of an epidemic threat, and an epidemic state. Meanwhile, legislation adopted in connection with the pandemic led to the "circumvention of the Constitution" by 1) issuing laws introducing limitations allowed for during the extraordinary measures, especially during a state of natural disaster, 2) providing statutory authorization to issue regulations that limit economic freedom and harming its essence. Such a state of affairs is justified by the primacy of politics, the erosion of the democratic state ruled by law, which leads to a greater threat: it becomes a state of unconstitutional lawlessness.

The executive power in Polish Constitution of April, 2nd 1997 – assumptions and political reality

The purpose of this article is to present and analyze the position of the executive power in the contemporary Polish Constitution after 20 years of its entry into force. As its provisions proclaim, “the system of government of the Republic of Poland shall be based on the separation and balance between the legislative, executive and judicial powers”. Moreover, “executive power shall be vested in the President of the Republic of Poland and the Council of Ministers” (Art. 10 of Polish Constitution).

The scope of considerations made in this paper contains: 1) general remarks on the fundamental constitutional provisions before the enactment of 1997 Constitution; 2) the main conceptions and projects of the executive power – that is to say the position of the President of the Republic of Poland and the Council of Ministers – within the formal projects of the Constitution that were presented before 1997; 3) the consideration of the principle of separation of powers in comparison with the particular functions and competences of the both of above mentioned organs; 4) the position of the President of Republic of Poland as well as the position of the Council of Ministers; it is to be emphasized, that none of them is formally more powerful than another; in the contrast with, for example, French Constitution, Polish President does not stand above the government; 5) the fact that constitutional functions and competence of these organs seem to be different – but are faced with the situation and we shall remember that the Council of Ministers shall conduct the internal affairs and foreign policy of the Republic of Poland and shall manage the government administration. The most significant from legal and political point of view is the provision: “The Council of Ministers shall conduct the affairs of State not reserved to the other organs or local government” (Art. 146 sec. 2 of Polish Constitution).

However, the President reserves some important competence by which the governmental policy may be limited and obstructed. On the other hand, sense of mutual cooperation of those two organs is of great importance, and because of that it is deeply reflected from political, personal and the idealistic provision from the initial parts of the Polish Constitution. The President of the Republic of Poland is to the highest formal representative of the State and the guarantor of its continuity. Presidential duty is to observe the realization of the Polish Constitution and being the guardian of the sovereignty and the security of State as well the integrity of its territory. However, there exists a problem concerning the essential values and precise division of legal competences between the President and the Council of Ministers, as well as legal instruments which both of those organs can use within the above spheres of policy.

The important part of the article is presentation and criticism concerning the institutional/political practice. They concern the period after 1997, but it must be admitted that three years (2015, 2016, 2017) are especially critical, as we consider the principle of a democratic state ruled by law.