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The Geological and Mining Act – parties to proceedings for the granting of a relevant concession SK 19/15

On 12 May 2021 at noon, the Constitutional Tribunal delivered its ruling on Ms M. T.’s constitutional complaint concerning parties to proceedings for the granting of a relevant concession.
The Constitutional Tribunal adjudicated that Article 41(2) of the Geological and Mining Act of 9 June 2011 (Journal of Laws – Dz. U. of 2020 items 1064 and 1339, as well as of 2021 item 234) is inconsistent with Article 45(1) of the Constitution of the Republic of Poland.
Moreover, the Constitutional Tribunal discontinued the proceedings as to the remainder.
The ruling was adopted by a majority vote.
There was one dissenting opinion, filed by Judge Krystyna Pawłowicz.

The Constitutional Tribunal deemed that it was apt and fully justified for the complainant to raise the allegation that, as a result of the administrative decisions and administrative courts’ judgments issued at both instances, as indicated in the constitutional complaint, her right to a fair trial within the meaning of Article 45(1) of the Constitution had been violated, by depriving her of the right to request a competent court’s review of administrative decisions in cases directly pertaining to her legal interest within the meaning of Article 28 of the Administrative Procedure Code. This ensued from the fact that the administrative and court determinations had been based on the currently binding, restrictive wording of Article 41(2) of the Geological and Mining Act. The said statutory provision rules out the possibility of assigning the status of a party in proceedings for the granting of a relevant concession to persons other than those mentioned in the provision – even when the subject matter of the said proceedings directly pertains to the persons’ legal interests. The Constitutional Tribunal accepted the complainant’s argument that, in the light of the administrative decisions and administrative courts’ judgments, mentioned in the constitutional complaint, the complainant had had no right to defend her indisputable legal interest either in the proceedings for the granting of a relevant concession or before administrative courts.

The Constitutional Tribunal held that the provision challenged in the complaint may not be justified by the following goals, indicated by the Sejm: to expediate and de-bureaucratise administrative proceedings; to eliminate barriers hindering the undertaking and carrying out of activity in the field of geology and mining; to promote entrepreneurship; as well as to increase the security of investment. The Constitutional Tribunal emphasised that on no account may the goals defined by the Sejm be achieved at the expense of the right to a fair trial, guaranteed by the constitution-maker in Article 45(1) of the Constitution. According to the Tribunal, the value indicated by the Sejm – i.e. the expedition of proceedings for the granting of relevant concessions – under no circumstances may be perceived as a value that is equivalent and corresponds to the right to a fair trial. Nor may it be treated as a value that justifies the taking away of a vital constitutional right from persons who have an important and obvious legal interest that clearly justifies the necessity of their participation as legitimate parties to those proceedings.

The Tribunal also noted that the assessment of the challenged provision may not be affected by the Sejm’s argument that the legislature had provided the complainant with the possibility of defending her rights at an earlier phase of proceedings, i.e. at the phase of issuing an environmental impact decision, in proceedings aimed at determining the conditions of exploiting relevant deposits and at specifying requirements for minimising a negative impact on the surroundings. In the Tribunal’s view, the Constitution requires that the right to a fair trial is respected in any regulations that make up the binding law; the fact that the said right is respected in the context of a specific statute may on no account justify the violation of the said right in the context of another statute. The Constitutional Tribunal underlined that the provisions of Part III of the Geological and Mining Act, entitled ‘Concessions’, determine that significant matters are resolved in proceedings for the granting of concessions, including matters pertaining to constitutional rights and freedoms, which go far beyond the scope of ratione materiae of the proceedings at the phase of issuing an environmental impact decision.

The composition of the adjudicating bench of the Constitutional Tribunal in the case: Judge Krystyna Pawłowicz – Presiding Judge; Judge Jarosław Wyrembak – Judge Rapporteur; Judge Stanisław Piotrowicz; Judge Wojciech Sych; Judge Rafał Wojciechowski.