The terms of annulling or revoking a decision to authorise the implementation of a road investment project. K 4/10
The provisions of the so-called special Act on Road Investment Projects as well as of the Regulation for the implementation thereof are constitutional.
At the hearings on 13 and 16 October 2012, the Constitutional Tribunal (full bench) considered an application, submitted by the Polish Ombudsman, with regard to the terms of annulling or revoking a decision to authorise the implementation of a road investment project.
In the judgment of 16 October 2012, the Constitutional Tribunal adjudicated that:
1. Article 31(1) and (2) of the Act of 10 April 2003 on special rules for preparing and implementing road investment projects is consistent with Article 64(1) in conjunction with Article 45(1) and Article 31(3) of the Constitution.
2. § 36(1) and § 36(4) of the Regulation of the Council of Ministers of 21 September 2004 on the appraisal of immovable properties and the preparation of value estimates, in the version which was binding from 7 October 2005 until 25 August 2011, is consistent with:
- Article 21(2) as well as Article 64(1) and (2) in conjunction with Article 31(3) of the Constitution,
- Article 134(3) and (4) as well as Article 152(3) in conjunction with Article 151(1) and Article 153(1) of the Act of 21 August 1997 on the Management of Immovable Property, and thus with Article 92(1) of the Constitution.
There was one dissenting opinion, submitted by Judge Wojciech Hermeliński.
The Tribunal drew attention to the fact that the characteristic of proceedings related to the preparation of road investment projects concerning stretches of roads longer than 10 km, such as road construction work, is the investor’s interference with property relations, which are characterised in Poland by considerable fragmentation. This leads to a departure from the individualisation of administrative proceedings.
Given the planned route of a road, the choice of plots of land to be taken over for the road is very limited or there may even be no choice in that regard, and the exclusion of even one of the expropriated immovable properties may thwart the whole investment.
The rational legislator was obliged to take into account that assumption and this is reflected in Article 31(1) and Article 31(2), which restrict the scope of appeal against the said decision, thus both expediting proceedings as well as enhancing the effectiveness of the decision, and consequently - they serve the purpose of securing the uninterrupted implementation of a given investment project.
That is why the commencement of the construction of a road is treated by the legislator as the moment when the final decision to authorise the construction of the road triggers irrevocable legal effects and from that moment he does not allow to annul it. The fiction of the irrevocable effect of the decision has been adopted by the legislator for economic considerations, i.e. the costs of possible loss of financial outlays incurred on the commenced construction of the road, and primarily - the immediate need for the construction of a road network.
The Tribunal did not question that the challenged provisions of the special Act limit the protection of the right of ownership in the case of persons whose property has been expropriated, by restricting the power of the supervisory authority and administrative court merely to the power to determine that the decision was issued in breach of law. However, this does not have to be tantamount to the infringement of the Constitution.
The assessment of provisions in the light of the Constitution depends on whether they meet requirements arising from the principle of proportionality, in particular from the point of view of the principle of usefulness, the principle of necessity as well as the prohibition of excessive interference.
When carrying out the assessment, the Tribunal stated that: 1) the construction of roads that would meet certain standards was significant from the point of view of the common good, 2) the procedure for expropriation contained in the Act on the Management of Immovable Property, which was a model solution in that regard, might not constitute a procedure for acquiring land for the construction of roads, as it would hinder the implementation of investment projects. Restricting the right of ownership, which arose from Article 31(2) of the special Act, was useful because it undoubtedly contributed to expediting expropriation proceedings and to regulating property relations with regard to an immovable property taken over for the construction of roads in a definite way, 3) when carrying out road investment projects which involved stretches of roads longer than 10 km, and comprised a whole list of immovable properties, expropriation by virtue of law was an effective method. It should be added that this way of taking over ownership guarantees that the entire group of owners who was in the same actual situation would receive equal treatment, 4) marking out the route of a road in accordance with the principles of environmental protection and the principles of engineering, in an inevitable and objective way, set out the list of immovable properties allocated for the construction of a road, i.e. for expropriation.
The Tribunal stated that the restrictions on the right of ownership, arising from the challenged provisions, were not excessive. The fact that the period of applicability of the Act was extended twice stemmed from the bad condition of the Polish road networks, whereas including all roads into the scope of the Act arose from the need to maintain their sustainable development.
In conclusion, the Tribunal stated that Article 31(1) and Article 31 (2) of the Act were consistent with Article 64(1) in conjunction with Article 45(1) and Article 31(3) of the Constitution.
At the same time, the Tribunal stressed that the judgment concerning particular provisions, i.e. Article 31(1) and Article 31 (2) of the Act on Road Investment Projects, might not be regarded as a positive assessment of the provisions of other statutes in the light of the Constitution, even if those provisions constituted a faithful copy of those assessed in this case.
When assessing the constitutionality and lawfulness of § 36(1) and (4) of the Regulation, the Tribunal drew attention to the fact that the main allegation concerned the infringement of the principle of just compensation, expressed in Article 21(2) of the Constitution. In the opinion of the applicant, the said infringement resulted from the assumption that when determining the amount of compensation for expropriated immovable property, transactional prices from the sale of land allocated for the construction of roads should be applied, whereas in reality expropriation concerned land that was allocated for a different use, and - due to a departure from the contractual procedure for purchasing immovable properties - there were no transactional prices.
Making reference to the stance of the applicant, the Tribunal stated that immovable properties that fell within the scope of the allegation, i.e. those which had not earlier been used for the construction of a road, were solely governed by § 36(4) of the Regulation. The clear formulation of that provision suggested taking into account “the condition of an immovable property” on the day a decision about the location of a road was issued, including the manner of using the property. Despite what the applicant claimed, the legal norm under analysis made it possible to award different amounts of compensation, depending on the character of the compensation.
By contrast, § 36(2) of the Regulation determined that “in the event of the lack of transactional prices”, one should take into account an alternative way of appraising an immovable property. As a result, in the Tribunal’s opinion, one might not share the applicant’s allegations that the challenged provisions introduced a universal and fixed system of determining the amounts of compensation, as if all immovable properties expropriated for road investments projects were to serve that purpose.
Moreover, after the analysis of administrative jurisprudence in that regard, the Tribunal stated that the application of such prices had not been a permanent, widespread and consistent practice, and thus it might not be a premiss weighing in favour of the Tribunal’s a priori review of their constitutionality. The cases of paying out lowered amounts of compensation, which occurred in practice, resulted from the incorrect application of a provision that was not subject to the review by the Tribunal.
Therefore, in the opinion of the Tribunal, the mechanism for determining the amount of compensation in § 36 of the Regulation with regard to appraisal corresponded to the constitutional standard of just compensation (Article 21(2) of the Constitution), thus creating a legal basis of appraising an immovable property in accordance with their market value, and consequently - granting just compensation for the expropriation of immovable properties.
Making reference to the allegation about the infringement of Article 64(1) and (2) of the Constitution, the Tribunal pointed out that the provisions were not autonomous in character with regard to Article 21(2) of the Constitution. Consequently, ruling that § 36(1) and § 36 (4) were consistent with Article 21(2) of the Constitution also weighed in favour of the conformity to Article 64.
The Ombudsman alleged that the reviewed provisions of the Regulation also had infringed Article 134(3) and (4), Article 152(3) in conjunction with Article 151(1) as well as Article 153(1) of the Act on the Management of Immovable Property, and consequently Article 92(1) of the Constitution. Making reference to those allegations, the Tribunal pointed out that the regulation of the amounts of compensation, included in the Act on the Management of Immovable Property, comprised several provisions which made reference to various criteria, which led to inconsistency.
In particular, what was not clear was the sense of the criterion “purpose” of an immovable property (without any reference to a land development plan), especially where - as in Article 134(2) of the Act on the Management of Immovable Property - juxtaposed with “the manner of use”. In that context, the use of the synthetic phrase “the condition of an immovable property”, having its legal definition (Article 4(17) of the Act on the Management of Immovable Property), in § 36(4) of the Regulation was a reasonable solution, in particular that it was concurrent with the content of Article 18(1) of the Act on Road Investment Projects, which regulated the amounts of compensation.
The hearing was presided over by the President of the Constitutional Tribunal, Judge Andrzej Rzepliński; The Judge Rapporteurs were: Judge Wojciech Hermeliński and Judge Małgorzata Pyziak-Szafnicka.
The judgment is final and its operative part shall be published in the Journal of Laws.