Family allotment gardens K 8/10
At the hearing on 28 June 2012, the Constitutional Tribunal (full bench) considered an application submitted by the First President of the Polish Supreme Court, in which the applicant requested the Tribunal to examine the conformity of the entire Act of 8 July 2005 on Family Allotment Gardens to the higher-level norms for constitutional review indicated in the application, or – alternatively, if such a request should be deemed inadmissible by the Tribunal – to examine the constitutionality of the numerous provisions of the Act which were indicated in the application.
The Tribunal deemed that the first request by the applicant was admissible and, after reviewing the entire challenged Act, the Tribunal adjudicated in the judgment of 11 July 2012 that:
1. Article 6 of the Act of 8 July 2005 on Family Allotment Gardens (hereinafter: the Act) is inconsistent with Article 2 as well as Article 58(1) in conjunction with Article 32(1) of the Constitution.
2. Article 9 of the Act, insofar as it mentions only one organisation associating allotment holders among the owners of land other than the State Treasury and local self-government is inconsistent with Article 2 as well as Article 58(1) in conjunction with Article 32(1) of the Constitution.
3. Article 10 of the Act is inconsistent with Article 2, Article 21(1) as well as Article 58(1) in conjunction with Article 32(1) of the Constitution.
4. Article 13(1) of the Act, insofar as the division of land into general areas and family allotment gardens as well as the development of allotment garden sites are assigned to one organisation associating allotment holders, is inconsistent with Article 2 as well as Article 58(1) in conjunction with Article 32(1) of the Constitution.
5. Article 14 of the Act is inconsistent with Article 2 as well as Article 58(1) in conjunction with Article 31(3) of the Constitution.
6. Article 15 of the Act is inconsistent with Article 2 as well as Article 58(1) in conjunction with Article 32(1) of the Constitution.
7. Article 17(2) of the Act is inconsistent with Article 21(1) of the Constitution.
8. Article 18 of the Act, in the part which includes the wording “on the consent of the Polish Association of Allotment Holders”, is inconsistent with Article 21(1) of the Constitution.
9. Article 24 of the Act is inconsistent with Article 2 as well as Article 64 of the Constitution.
10. Article 25(2) of the Act is inconsistent with Article 2 as well as Article 58(1) in conjunction with Article 32(1) of the Constitution.
11. Article 25(3) in conjunction with Article 27 of the Act is inconsistent with Article 2 as well as Article 58(1) in conjunction with Article 32(1) of the Constitution.
12. Article 31 of the Act is inconsistent with Article 58(1) in conjunction with Article 31(3) of the Constitution.
13. Article 16 of the Act, insofar as it exempts the Polish Association of Allotment Holders from fees and taxes ensuing from the Association’s activity set out in the Association’s regulations, is inconsistent with Article 2 as well as Article 58(1) in conjunction with Article 32(1) of the Constitution.
14. Article 19(2) of the Act is inconsistent with Article 2 as well as Article 58(1) in conjunction with Article 32(1) of the Constitution.
15. Article 21 of the Act is inconsistent with Article 2 as well as Article 58(1) in conjunction with Article 32(1) of the Constitution.
16. Article 23 of the Act is inconsistent with Article 2 as well as Article 58(1) in conjunction with Article 32(1) of the Constitution.
17. Article 25(1) and (4) of the Act is inconsistent with Article 2 as well as Article 58(1) in conjunction with Article 32(1) of the Constitution.
18. Article 26 of the Act is inconsistent with Article 2 as well as Article 58(1) in conjunction with Article 32(1) of the Constitution.
19. Article 28 of the Act is inconsistent with Article 2 as well as Article 58(1) in conjunction with Article 32(1) of the Constitution.
20. Article 29 of the Act is inconsistent with Article 2 as well as Article 58(1) in conjunction with Article 32(1) of the Constitution.
21. Article 30 of the Act is inconsistent with Article 2 as well as Article 58(1) in conjunction with Article 32(1) of the Constitution.
22. Article 35 of the Act is inconsistent with Article 2 as well as Article 58(1) in conjunction with Article 32(1) of the Constitution.
23. Article 36 of the Act is inconsistent with Article 2 as well as Article 58(1) in conjunction with Article 32(1) of the Constitution.
24. Article 37 of the Act is inconsistent with Article 2 as well as Article 58(1) in conjunction with Article 32(1) of the Constitution.
The provisions enumerated in points 1 and 2 as well as points 4 to 24, within the scope indicated therein, will cease to have effect after the lapse of eighteen months from the day of the publication of the judgment in the Journal of Laws.
As to the remainder, the Tribunal decided to discontinue the proceedings.
Dissenting opinions were submitted by two of the Judges of the Constitutional Tribunal: Judge Marek Kotlinowski and Judge Andrzej Wróbel.
1. Allotment garden sites constitute a vital element of the landscape of Polish towns and cities. In recent years, the social context of allotment gardening has changed, which currently fulfils mainly recreational functions. To a large extent, this form of leisure activity is popular among the elderly, old-age pensioners and disability pensioners.
The Constitutional Tribunal (full bench) maintained its findings and conclusions arising from the Tribunal’s rulings from the years: 1996 (the case K 27/95), 2002 (the case K 39/00) as well as 2008 (the case K 61/07). The rulings on the unconstitutionality of the provisions of the Act of 1981 and of the Act that had been binding since 2005, which had guaranteed a monopoly status to the Polish Association of Allotment Holders (hereinafter: the said Association), as regards access to land and the management of allotment garden sites (formerly workers’ allotment gardens; at present family allotment gardens). In the said cases, the Tribunal clearly emphasised the substantive aspect of the principle of a democratic state ruled by law, which required that the law reflect values corresponding to the values of a democratic state, including the freedom of association.Citizens who wish to associate to conduct their activity together should be guaranteed the freedom to choose the form of a legal organisation, depending on the goals they try to achieve. Also, the Tribunal reiterated that the legal guarantee of exclusive access of the said Association to land assigned for allotment garden sites was contrary to a fundamental systemic principle, namely the principle of a democratic state ruled by law. This followed from the fact that both the Act of 1981 as well as the Act of 2005 granted and safeguarded the monopoly of the said organisation on managing allotment garden sites.
The Tribunal also conducted a comparative legal analysis of the institution of allotment garden sites in the neighbouring states (Slovakia, the Czech Republic, Germany and Austria). In each of those legal systems, the institution of allotment garden sites was legally protected in a way which guaranteed the balanced protection of both the interests of the owners of the land and the interests of allotment holders. The basis of holding an allotment garden was a lease agreement and a sub-lease agreement. That had been the case in Poland until the year 1949.
2. An essential issue in that case was the admissibility of reviewing the constitutionality of the entire Act. The said issue had on a number of occasions constituted the subject of the Tribunal’s rulings. In the case under examination, the Tribunal decided that it would conduct the review of the main (fundamental) provisions of the Act, examining whether they were defective in respect of their constitutionality (which would undermine the axiological or structural assumptions of the entire normative act). This was consistent with the request of the First President of the Supreme Court, who had challenged the basic assumptions adopted by the legislator. The applicant argued that they were unconstitutional, indicating that the unconstitutionality of the most important statutory provisions affected the other provisions and resulted in the unconstitutionality of the entire normative act. Thus, challenging the entire Act, the First President of the Supreme Court provided the Tribunal with a margin of freedom as regards determining which of the provisions of the Act were fundamental in character.
The First President of the Supreme Court argued that the entire Act was contrary to the Constitution due to the fundamental assumption, adopted by the legislator, which underlined the Act, namely that the Polish Association of Allotment Holders had monopoly status. In the applicant’s opinion, the unconstitutional privileges concerned three basic realms:
- the position of the said Association with regard to other organisations associating allotment holders,
- the situation of the owners of land where allotment garden sites were situated,
- relations between the said Association and allotment holders who were members thereof.
Moreover, the First President of the Supreme Court challenged the conformity of the Act to the principle of appropriate legislation and the principle of protection of citizens' trust in the state and its laws.
3. As regards the first constitutional issue, the Tribunal stated that the following were the adequate higher-level norms for the constitutional review: Article 2 (the principle of a democratic state ruled by law) as well as Article 58(1) in conjunction with Article 32(1) of the Constitution (the freedom of association considered in the context of the right to equal treatment). When analysing the constitutionality of the Act in that respect, the Tribunal stated that the following were inconsistent with the above-mentioned higher-level norms for the constitutional review: Article 6 (the definition of an allotment garden site as an area of land which is managed by the Polish Association of Allotment Holders), Article 9 (the possibility of setting up an allotment garden site solely on the land owned by the State Treasury, the units of local self-government as well as the Polish Association of Allotment Holders), Article 10 (the requirement of the free-of-charge transfer of land owned by the State Treasury - with the right of usufruct or perpetual usufruct assigned thereto, for the purpose of creating new allotment garden sites – solely to the Polish Association of Allotment Holders), Article 13(1) (the monopoly of the said Association on the division of land into a general area and family allotment gardens), Article 15(1) (the monopoly of the said Association on the possession of the facilities, buildings and structures of an allotment garden site, which are meant for common use by allotment holders and are to facilitate the usufruct of family allotment gardens), Article 25(2) (the special and unique legal status of the said Association as an entity which is autonomous as regards carrying out its tasks and is governed solely by statute) as well as Article 25(3) in conjunction with Article 27 of the Act (the unique character of the said Association as an organisation of a special legal status, having legal personality).
4. As regards the second constitutional issue, the Tribunal stated that the adequate higher-level norms for the constitutional review were Article 21(1) (the principle of the constitutional protection of ownership) as well as Article 64 (the right to the constitutional protection of ownership and other property rights). Article 21(1) was an adequate higher-level norm for the review with regard to the provisions concerning the property of the State Treasury and communes, and Article 64 of the Constitution was an appropriate higher-level for the constitutional review of provisions concerning private property. When conducting the analysis of the Act in order to examine the constitutionality of the legal status of the Polish Association of Allotment Holders with regard to the owners of land where allotment gardens were situated, the Tribunal ruled that the following provisions of the Act were inconsistent with Article 21 of the Constitution: Article 10, Article 15(1), Article 17(2) (the requirement to be granted consent by the said Association to close down an allotment garden site), Article 18 (insofar as it provided for closing down an allotment garden site during a growing season solely on the consent of the said Association), and Article 21 (the terms of transferring an immovable property where a closed-down allotment garden site was situated); also Article 24 of the Act (the lack of protection, which would be consistent with the Constitution, in the case of ownership rights of persons who were expropriated due to legal acts on the nationalisation of land, provided the land was in possession of the said Association) was ruled to be inconsistent with Article 64 of the Constitution.
5. As regards the third constitutional issue, the Tribunal stated that Article 58(1) in conjunction with Article 31(3) of the Constitution was an appropriate higher-level norm for the constitutional review (the proportionality of a restriction on the freedom of association), and ruled that, in the light of the indicated provisions of the Constitution, Article 14 (an unclear legal situation of an allotment holder with regard to the plot of land transferred to him/her by the said Association) and Article 31 of the Act (the monopoly of the said Association on allotting gardens in allotment garden sites) were unconstitutional.
6. As regards the fourth constitutional issue, the Tribunal stated that the appropriate higher-level norms for the constitutional review, arising from Article 2, were the following: the principle of appropriate legislation and the principle of protection of citizens' trust in the state and its laws. While conducting an analysis of the key norms of the challenged Act, the Tribunal ruled that Article 14 of the Act was inconsistent with the principle of appropriate legislation as well as that Article 24 of the Act was inconsistent with the principle of protection of citizens' trust in the state and its laws, arising from Article 2 of the Constitution.
7. The Tribunal concluded that overturning the presumption of constitutionality as regards the legal basis of the Association’s activity was of significance for the issue of the conformity of other provisions of Chapter III of the Act as well as the other provisions thereof regulating the legal situations of the said Association. The said provisions complemented the norms contained in the fundamental provisions of the Act under review; they made the fundamental assumptions of the Act sufficiently specific.
The Tribunal stated that the unconstitutionality of Article 25(3) in conjunction with Article 27 of the Act affected the constitutionality of the other provisions of the Act which referred to the Polish Association of Allotment Holders.
The following provisions constituted exceptions: Article 16 (within a certain scope), Article 32, Article 33 as well as Article 34 of the Act. The Tribunal ruled that Article 16 of the Act was unconstitutional only insofar as the provision concerned exempting the said Association from conducting statutory activity, as within the remaining scope the provision protected the interests of allotment holders, and not the Association itself. For the same reasons, the Tribunal did not overturn the presumption of constitutionality of Article 32, Article 33 as well as Article 34 of the Act.
At the same time, the Tribunal indicated that since the norm expressed in Article 25(3) in conjunction with Article 27 of the Act had been ruled by the Tribunal to be inconsistent with Article 2 and Article 58(1) in conjunction with Article 32(1) of the Constitution, then also Article 16 (within a certain scope), Article 19(2), Article 21(1), Article 23, Article 25(1) and (4), Article 26, Articles 28-30 of the Act under review as well as Articles 35-37 of the Act were inconsistent with Article 2 as well as Article 58(1) in conjunction with Article 32 of the Constitution.
Moreover, the Tribunal stated that the other provisions of the Act from Chapters I-III of the Act did not raise any doubts as to their constitutionality, in the context of the three constitutional issues indicated by the applicant. For those reasons, the Tribunal concluded that the presumption of their constitutionality had not been overturned.
As part of the review of the entire Act, also understood as the examination of content relations or technical and legislative relations between the key provisions of the entire regulation and the provisions specifying them, the Tribunal also referred to the issue of the constitutionality of transitional and final provisions contained in the last chapter - Chapter IV. However, the Tribunal did not carry out the substantive review of those provisions, as they had already been applied and had no effects as regards the application of law, or they were final provisions amending other statutes and the substantive review of those provisions exceeded the scope of the application. Therefore, with regard to those provisions of the Act, the Tribunal discontinued the proceedings.
8. The review of the constitutionality of the entire Act resulted in a ruling on the unconstitutionality of the basic provisions of the Act as well as other provisions which were complementary in character. Thus, the presumption of constitutionality which had not been overturned concerned the remaining provisions of the Act.
When analysing the effects of ruling so many provisions of the Act to be unconstitutional, the Tribunal stated that the entry into force of the judgment as of the date of the publication thereof would result in a situation that the socially significant realm of relations in Poland would be regulated by a statute which, to a large extent, would be devoid of its content by the judgment. Allowing for such significant legal gaps in the Act under review to appear in the legal system, which would result in the complete non-applicability of the Act, could lead to the so-called secondary unconstitutionality.
The entry into force of the judgment in that case entailed that the Polish Association of Allotment Holders would lose the legal basis for its existence. For that reason, the Tribunal decided to defer – for the period of 18 months from the date of the publication of the judgment in the Journal of Laws – the moment when all provisions of the Act deemed as unconstitutional would cease to have effect, except for Article 10 thereof. The adjudication concerning the last-mentioned provision was justified by the fact that, since the Tribunal’s judgment entailed that the fundamental provisions of the Act, as well as provisions related thereto, would be deprived of the presumption of their constitutionality, it was impossible to tolerate – until the time of issuing a new statute within the time-limit set in the judgment – the monopoly status of the said Association as regards the access to the land transferred by the State Treasury for the purpose of creating new allotment garden sites, which was pursuant to the law transferred free of charge. The lack of the so-called derogating clause in the case of Article 10 of the Act will, in practice, open up the possibility of carrying out activity for other organisations associating allotment holders. In order to avoid the acquisition of new land by the said Association for the purpose of creating allotment garden sites, to the disadvantage of other competing organisations, the Tribunal decided to derogate Article 10 of the Act as of the date of the publication of the judgment in the Journal of Laws.
The adoption of the maximum period of the so-called derogating clause with regard to other – deemed as unconstitutional – provisions of the Act under review was justified by the Tribunal by the necessity of making it possible for the Sejm to enact a new statute which would adjust the regulations concerning the creation and functioning of allotment garden sites in Poland to the constitutional framework arising from the principle of a democratic state ruled by law, the principle of equality, the principle of protection of ownership and the freedom of association.
The new statute should be prepared in a cautious way and by taking into account all effects that are caused by ruling the Act on Family Allotment Gardens to be unconstitutional. The Tribunal stressed that failing to implement of judgment within the indicated time-limit would result in the expiry of the right of usufruct or perpetual usufruct of land, granted to the said Association, and the entirety of property rights would be restored to the owners of the land where allotment garden sites were situated.
Also, the Tribunal emphasised that a serious issue which the legislator would have to address was to determine how a new regulation would transform current legal relations, existing under the rule of the Act or much earlier under the rule of previous normative acts regulating the issue of allotment gardening in Poland.
The Tribunal stressed that it was allotment holders who should primarily be provided with legal protection, who in good faith, in many instances for years, or even for a few generations (within the meaning of Article 14(1) or Article 14(2) of the Act) had been cultivating the plots allotted to them as parts of family allotment gardens.
The protection of the rights of particular allotment holders as well as the very idea of allotment gardening - which the Tribunal not only did not consider to be contrary to the Constitution, but also regarded as the positive manifestation of the activity of a pluralist and democratic society, freed by the judgment from the restraints which contradicted constitutional values – requires that land where family allotment gardens are situated should, as of the entry into force of a new statute, be guaranteed the status of land assigned for allotment gardens.
The hearing was presided over by the Vice-President of the Constitutional Tribunal, Judge Stanisław Biernat, and the Judge Rapporteur was the President of the Constitutional Tribunal, Judge Andrzej Rzepliński.
The judgment is final and its operative part shall be published in the Journal of Laws.