The Act on optimising employment levels in state budget entities and in certain other entities of the public finance sector in the years 2011-2013. Kp 1/11
Layoffs of employees who have the status of nominated civil servants are inconsistent with the Constitution.
At the hearings on 10 and 11 May and on 14 June 2011, the Constitutional Tribunal (full bench) considered an application by the President of the Republic of Poland which concerned the Act on optimising employment levels in state budget entities and in certain other entities of the public finance sector in the years 2011-2013.
In the judgment of 14 June 2011, the Constitutional Tribunal adjudicated that Article 2 in conjunction with Article 7(1) of the Act of 16 December 2010 on optimising employment levels in state budget entities and in certain other entities of the public finance sector in the years 2011-2013, insofar as it regards civil servants, was inconsistent with Article 2 and Article 153(1) of the Constitution. These provisions are inextricably linked to the whole Act. As to the remainder, the Tribunal discontinued the proceedings.
A dissenting opinion was submitted by Judge Teresa Liszcz.
In the opinion of the Constitutional Tribunal, when shaping the rules for work in public administration, what needs to be taken into account is the status of clerks who may not be identified solely with the number of persons providing services for the functioning of the said administration. The group which should be assigned particular significance is the corps of civil servants who operate in the organs of government administration(Article 153(1) of the Constitution). The significance of the corps of civil servants is linked with ensuring the proper functioning of public administration, and therefore it should be interpreted in the context of the state's characteristic as the common good of all citizens (Article 1 of the Constitution). All the modifications regarding the status and functioning of the corps of civil servants should be assessed each time they occur, in respect of the possibility of carrying out the tasks of the administration, as set out in the Constitution.
The Constitutional Tribunal recognised the possibility of introducing solutions which, due to a difficult budget situation of the state, would ultimately result in the worsening of the legal situation of civil servants. However, such solutions need to balanced. The advantages in the realm of public finance and the improved effectiveness of the functioning of public administration must be balanced out by the reduction in previous guarantees of security of employment in the case of civil servants. By contrast, in the case under examination, the legislator adopted the burdensome mechanism of permanent layoffs of civil servants, based on the criteria which did not become the object of regulation in the context of the challenged Act, not even to a minimal extent.
In the opinion of the Constitutional Tribunal, excessive freedom with regard to specifying the criteria for projected layoffs stems from the lack of clear resolution as to whether the fundamental problem of government administration is currently the excessive number of civil servants and the related need for reduction of employment, or whether it is the issue of improper allocation of civil servants within the administration.
Also, the Tribunal stressed that the solutions adopted in the Act on optimising employment levels did not guarantee the achievement of the goals set therein. Indeed, there were no solutions which could prevent a possible return to the high levels of employment from before the optimisation, or prevent the lack of a rise in employment in public administration after the Act would cease to be binding.
The Constitutional Tribunal also made reference to the circumstances of adjudication in the case under examination, already after the planned date of entry into force of the Act on optimising employment levels (1 February 2011). The Constitutional Tribunal stated that optimising employment levels was currently impossible without the legislator's intervention. This is related to the lapse of the periods, during which certain obligations provided for in the challenged Act were to be fulfilled. The statutory norms which specify those obligations became unfeasible. The Constitutional Tribunal is not competent to rectify the defects of the Act under examination which arise from the adopted legislative technique by the legislator.
The hearing was presided over by the President of the Constitutional Tribunal, Judge Andrzej Rzepliński, and the Judge Rapporteur was Judge Marek Zubik.
The judgment is final and its operative part shall be published in the Official Gazette of the Republic of Poland - Monitor Polski.