Restrictions regarding commerce on Sundays as well as on state and religious holidays K 10/18
On 27 July 2021 at 10.30 a.m., the Constitutional Tribunal delivered its ruling on the application submitted by the President of the Polish Business Organisation –‘Konfederacja Lewiatan’, which concerned restrictions regarding commerce on Sundays as well as on state and religious holidays.
The Constitutional Tribunal adjudicated that Article 3(7) and Article 18 of the Act of 10 January 2018 on restrictions regarding commerce on Sundays, state and religious holidays, as well as certain other days (Journal of Laws – Dz. U. of 2021 item 936; hereinafter: the said Act) are consistent with Article 2 of the Constitution of the Republic of Poland.
Moreover, the Tribunal decided to discontinue the proceedings as to the remainder.
The ruling was adopted by a majority vote.
There were two dissenting opinions, filed by Judge Zbigniew Jędrzejewski and Judge Jarosław Wyrembak.
After the Tribunal had determined the boundaries of the admissibility of its adjudication on the merits of the present case, the subject of the constitutional review was deemed to comprise the following: Article 3(7) of the said Act, which provides a legal definition of a time frame for performing work in commerce and carrying out activities related to commerce in commercial establishments on Sundays as well as state and religious holidays; and Article 18 of the said Act, which sets the date of the entry into force of the said Act for 1 March 2018 (the period of vacatio legis was 23 days).
The President of the Polish Business Organisation –‘Konfederacja Lewiatan’ (the applicant) alleged that Article 3(7) and Article 18 of the said Act were inconsistent with Article 2 of the Constitution and the constitutional principles derived therefrom, which constitute components of the principle of a democratic state ruled by law.
According to the applicant, the unconstitutionality of Article 3(7) of the said Act consisted in a violation of the requirement of terminological consistency, arising from the principle of appropriate legislation, whereas the violation of that principle was to entail the infringement of the principle of protection of citizens’ trust in the state and its laws; by contrast, the unconstitutionality of Article 18 of the said Act was linked by the applicant with the violation of the requirement of an appropriate period of vacatio legis, which constitutes a component of the principle of citizens’ trust in the state and its laws, but which can also be derived from the principle of appropriate legislation.
The applicant ascribed the unconstitutionality of Article 3(7) of the said Act to the fact that the introduced definition of the time frame of Sundays as well as state and religious holidays – the period of “24 subsequent hours that respectively fall between midnight on Saturday and midnight on Sunday as well as between midnight on the day directly preceding a state or religious holiday and midnight on the state or religious holiday” – differs from the regulation included in Article 1519 § 2 of the Labour Code: “In the cases referred to in Article 15110, work performed on a Sunday, or on a state or religious holiday, shall be work performed between 6 a.m. that day and 6 a.m. the following day, unless a different hour has been indicated by the employer”.
The Tribunal did not agree with the applicant’s reservations that the two definitions were inconsistent and mutually exclusive, pointing out that: (1) the notions defined in the indicated provisions were not equivalent; (2) the indicated provisions had different scopes ratione personae; (3) the indicated provisions had different scopes ratione materiae.
The Tribunal deemed that impugned Article 3(7) of the said Act is formulated in the way that makes it possible to interpret it correctly and apply it properly. The impugned provision does not infringe the requirement of terminological consistency, and therefore it does not violate the principle of appropriate legislation, and, even more so, it does not breach the principle of protection of citizens’ trust in the state and its laws. In the light of those findings, the Tribunal deemed that Article 3(7) of the said Act is consistent with Article 2 of the Constitution.
Further on, the Tribunal had to determine whether the changes introduced in the said Act required the application of a longer period of vacatio legis than the one set by the legislature in Article 18 of the said Act, i.e. 23 days.
The Tribunal noted that the prohibition against carrying out commercial activity on Sundays as well as state and religious holidays had been introduced on the basis of Article 5 of the said Act. Exceptions that permit the carrying out of that type of activity were enumerated in Article 6 of the said Act.
The adjustment to the new conditions indeed necessitated taking appropriate steps by entrepreneurs, however the Tribunal pointed out that the said period of vacatio legis was longer than 14 days, provided for in Article 4 of the Act of 20 July 2000 on the publication of normative acts and certain other legal acts; moreover, special regulations were provided to specify the manner of the said Act’s entry into force.
The legislature provided for the two-year period for the gradual introduction of the changes arising from the said Act – as an adjustment period. Pursuant to Article 16(1) of the said Act, during the period from 1 March until 31 December 2018, the prohibition referred to in Article 5 of the said Act was not binding on the first and the last Sunday of every calendar month.
By contrast, in accordance with Article 17(1) of the said Act, during the period from 1 January until 31 December 2019, the said prohibition was not binding on the last Sunday of every calendar month. The Tribunal deemed that the legislature was aware of the far-reaching consequences resulting from the newly introduced provisions and therefore provided for the gradation of burdens related to the binding force of the enacted provisions.
For the above reasons, the Tribunal did not deem that the period of vacatio legis set by the legislature infringed the principle of protection of citizens’ trust in the state and its laws, arising from Article 2 of the Constitution. The period of 23 days, although atypical, was not excessively short, taking account of the scope of the changes as well as the adjustment period indicated in the said Act. Employers had the possibility of taking action to accommodate for the changes and of coordinating their activities in such a way that they would not be excessively impacted by the effects of the introduced changes.
Due to the fact that the President of the Polish Business Organisation –‘Konfederacja Lewiatan’ (the applicant) had limited competence to lodge an application with the Tribunal as well as the fact that the applicant failed to meet the statutory requirements for the application, within the scope of providing grounds for the application, the Constitutional Tribunal – on the basis of Article 59(1)(2) of the Act on the Organisation of the Constitutional Tribunal and the Mode of Proceedings Before the Constitutional Tribunal – decided to discontinue the proceedings as regards examining the conformity of Articles 5 and 6 of the said Act with Article 24, Article 65(1) as well as Article 32 and Article 31(3) of the Constitution, for the issuance of a judgment was inadmissible.
The adjudicating bench in the case was composed of: Judge Jarosław Wyrembak ‑ Presiding Judge; Judge Justyn Piskorski – Judge Rapporteur; Judge Zbigniew Jędrzejewski; President of the Constitutional Tribunal, Judge Julia Przyłębska; and Judge Andrzej Zielonacki.