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Administrative Procedure Code – 1960

Public interest and legitimate interest of the citizen s in Polish law Collision between public and private interest. Public interest and legitimate interest of the citizen on the field of the Administrative Procedure Code. Administrative Procedure Code – 1960

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Administrative Procedure Code – 1960

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  1. Public interest and legitimate interest of the citizens in Polish lawCollision between public and private interest

  2. Public interest and legitimate interest of the citizen on the field of the Administrative Procedure Code • Administrative Procedure Code – 1960 • Art. 5. Within proceedings the state administration authorities uphold the lawfulness and take indispensable measures to carefully explain the facts and settle the case, acting in consideration of the public interest and legitimate interest of the citizens. • Administrative Procedure Code – since 1980 until today • Art. 7. Within proceedings the public administration authorities uphold the lawfulness, ex officio or upon parties’ request undertake all measures indispensable for careful explanation of the facts and settlement of the case, acting in considerationthe public interest and legitimate interest of the citizens.

  3. Private interest Interes prywatny

  4. Public interest • includes: state security, public order, protection of environment, public health and public morality • is associated with the terms such as: „public aim”, „social interest” and „common good” • is not identical to the clauses of „state economical interest” and „interest of State Treasury”

  5. Possible collision between the public interest and private interest • exclusively in relation to the situations when the public authority takes an administrative decision basing on the so-called administrative discretion • when it comes to the so-called tied decisions (a decision which is issued by the public authority acting without administrative discretion), art. 7 of the Administrative Procedure Code has no application (judgment of Supreme Administrative Court in Katowice, 18th December 1995, SA/Ka 2198/94)

  6. Public interest and private interest – the evolution of their relation Judgment of Supreme Administrative Court in Warsaw, 11th June 1981, SA 820/81, ONSA 1981, 1/57 • in the administrative procedure the legitimate party’s interest can be taken into consideration as long as the collision with the public interest does not arise • Judgment of Supreme Administrative Court in Warsaw, 14th September 1982, I SA 708/82 • Judgment of Supreme Administrative Court , 18th January 1995, SA/Wr 1386/94, POP 1996, 6/181

  7. Public interest and private interest – the evolution of their relation(continuation) • Judgment of Supreme Court, 18th November 1993, III ARN 49/93 • in the rule of law there is no space for the rigidly and mechanically understood superiority of the public interest over private interest • the legal interests mentioned in art. 7 of the Administrative Procedure Code are legally equal. It means that in the process of the interpretation of the procedural norms, the public authority cannot be bound by the assumption of the hierarchy established a priori for those two interests

  8. Relation of the public interest and private interest - Constitution of the Republic of Poland Public interest • opposite to private interest • basis for the limitation of the citizens’ rights and freedoms: • art. 22 of the Constitution: The freedom of the business activity can be limited only on the basis of an act of law and only on grounds of important public interest. • necessary for the implementation of the mechanisms for the protection of selected values: • art. 213 of the Constitution:the National Broadcasting Council upholds the freedom of speech, the right for information and public interest in broadcasting. • servitude to the private interest: • art. 1 of the Constitution: The Republic of Poland is a common good of all citizens.

  9. Exemplary presentation of the collision between the public interest and private interest in the Polish law 1. Land management and planning Act on land management and planning, 27th March 2003 • definition of the public interest in the act: the generalized objective of aspirations and activities, considering objective needs of the general of the public or local communities, in connection with the land management and planning (art. 2 pct. 4) • collision between the public interest and private interest in the sphere of ownership: „Everybody has the right, in the limits determined by law, to manage the area, to which he has a legal title, according to the conditions established in the local plan or in the zoning decision, if it does not breach the public interest protected by law and the interest of third parties” (art. 6 pct. 1)

  10. Exemplary presentation of the collision between the public interest and private interest in the Polish law • 2. Environmental protection Act on environmental protection, 27th April 2001 • „important social interest”: if an especially important social interest justifies it and if it is related to environmental protection, in particular to the threat of the environment’s significant deterioration, it is admissible to establish within the permit decision a security for the claims associated with the occurrence of negative effects and damages in environment(art. 187) • collision of the public interest and private interest in the sphere of the rights in rem: „Section IX: Limitation of the methods of using real estate in reference to the environmental protection”.

  11. Exemplary presentation of the collision between the public interest and private interest in the Polish law • 3. Access to public information Act on the access to public information, 6th September 2001 • subordination of the private interest to the public interest to a certain extent: possibility of limitation of the private interest, which consists in the right to demand public information, on the grounds of the necessity to guard the public interest (art. 3)

  12. Exemplary presentation of the collision between the public interest and private interest in the Polish law • 4. Protection of competition and consumers • Act on the protection of competition and consumers, 16th February 2007 • ustawa z dnia 06 września 2001 r. o dostępie do informacji publicznej • Act on the protection of competition and consumers „defines the conditions of the development and the protection of competition, as well as the rules of protection of entrepreneurs’ and consumers’ interests , undertaken in public interest ” (art. 1) • Act on the protection of competition and consumers protects competition as a mechanism regulating the way the economy is functioning; the act does it in the public interest, which means that a breach of the private interest is not necessary to apply the legal instruments of intervention, mentioned in the act (judgment of Supreme Court, 7th April 2004)

  13. Exemplary presentation of the collision between the public interest and private interest in the Polish law • 5. Financial Law Act on Tax Procedure, 29th August 1997 • public interest and „important tax-payer’s interest”: the tax authority, at the tax-payer’s demand, in cases justified by the important tax-payer’s interest or the public interest, may among others, postpone the payment date or allow for the payment of the tax in instalments (art. 67a) • „important tax-payer’s interest” is a situation, when due to the unusual, random events the tax-payer is not able to settle his tax arrears, • equality of the public interest and important tax-payer’s interest: the tax authority is obliged to determine, if there is an important tax-payer’s interest or the public interest, to balance both types of interest and to define, which of them prevails.

  14. Exemplary presentation of the collision between the public interest and private interest in the Polish law • 6. Economic activity Act on the rendering of services on the territory of the Republic of Poland, 4th March 2010 • „supreme public interest”: „supreme public interest is a value which needs to be protected, including in particular: public order, public security, public health (…) (art. 2 pct. 7) Act on the freedom of economic activity, 2nd July 2004 • obligation to respect the private interests: „performing its duties, in particular in the area of supervision and control, the competent authority acts only on the basis and within the confines of law, with respect for the justified interests (art. 9)

  15. Collision between public interest and private interest – final remarks • the party’s legitimate interest cannot be contrary to the explicit regulation nor can it substitute it. (rule of lawfulness – art. 6 of the Constitution) • the party’s legitimate interest cannot lead to bypass the regulations • „If, in the cases left by law to the public authorities’ discretion, the public interest does not stand in the way, and if it is possible, the public authority is obliged to settle the case in the positive way for the party. This creates a presumption of the positive settlement of the party’s request, unless such positive settlement is not possible due to unquestionable public interest” – judgment of the Supreme Administrative Court in Warsaw, 30th June 2000, V SA 2880/99, LEX nr 79239

  16. Thank you for your attentionDr Joanna LemańskaMarcelina Stolarska

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