Failure to exercise statutory authorisation; rules for proceedings before a consul K 8/14
Rules for proceedings before a consul is inconsistent with the Constitution.
At the hearing on 28 October 2014 at 1 p.m., the Constitutional Tribunal considered an application filed by the Polish Ombudsman with regard to failure to exercise statutory authorisation and rules for proceedings before a consul.
The Constitutional Tribunal adjudicated that:
- Article 31(1) of the Act of 13 February 1984 on the Duties of Consuls of the Republic of Poland was inconsistent with Article 92(1) of the Constitution;
- the Order of 4 November 1985 issued by the Minister of Foreign Affairs with regard to detailed rules for proceedings before a consul was inconsistent with Article 93(1) and (2), second sentence, in conjunction with Article 87(1) of the Constitution.
The above provisions will cease to have effect after the lapse of 12 months from the date of the publication of the judgment in the Journal of Laws.
Challenged in the Ombudsman’s application, Article 31(1) of the Act on the Duties of Consuls of the Republic of Poland provided authorisation for a minister competent for foreign affairs to specify, by a regulation, detailed rules for proceedings before a consul, i.e. to specify rules for instituting, conducting and concluding proceedings, time-limits for various actions, rules for determining cases and rules for filing appeals against a consul’s determinations as well as rules for referring cases to Polish authorities.
The authorisation provided in the said provision has not yet been exercised. In this state of affairs, the Order on Proceedings Before a Consul is still binding. The provisions of the challenged Order constitute an autonomous and exhaustive regulation of a procedure that is to be applied in proceedings before a consul.
When analysing the allegation of the non-conformity of Article 31(1) of the Act on the Duties of Consuls to Article 92(1) of the Constitution, the Tribunal noted that, pursuant to Article 92(1) of the Constitution, “regulations shall be issued on the basis of specific authorization contained in, and for the purpose of implementation of, statutes”. By contrast, the challenged statutory authorisation provided that the entirety of proceedings before a consul was to be specified exclusively in a regulation.
The Tribunal pointed out that the requirement to specify by statute certain main aspects of a given matter should be regarded as particularly strict when it comes to determining the forms of activity of public administration that has legal effects for citizens, the rights and obligations of an administrative authority and citizens within the realm of public law, or the citizens’ exercise of their rights and freedoms. Proceedings before a consul regard such elements.
A consul as a special administrative authority issues administrative decisions in individual cases; at times, the said decisions may be final (e.g. in cases concerning the issuance of visas). The procedure consists in the fulfilment of duties on the part of a given consul within the scope of providing Polish citizens with assistance, as well as it also specifies the rights and obligations of citizens-parties to those proceedings. For this reason, such matters should be regulated by statute.
Also, the Tribunal held that there was no doubt that the Order on Proceedings Before a Consul was inconsistent with Article 93(1) and (2), second sentence, in conjunction with Article 87 of the Constitution. Pursuant to the Constitution, orders are limited in their impact, as they may bind only organisational units that are subordinate to a given authority issuing a given order. At the same time, orders may not serve as the basis for decisions taken in respect of private parties. By contrast, not only does the challenged Order lack the character of an internal legal act, but above all it constitutes a legal basis of decisions and other determinations issued with regard to citizens, foreigners as well as legal entities.
The Tribunal decided to defer the moment when the challenged provisions would cease to have effect by 12 months so as not to disrupt the course of proceedings that were pending before consuls. The said deferral will make it possible to complete the legislative procedure (a new bill entitled the Consural Law is being drafted and it is to replace the Act on the Duties of Consuls); it will also make it possible to adjust provisions on proceedings before a consul to make them consistent with the Constitution.
The hearing was presided over by Judge Teresa Liszcz, and the Judge Rapporteur was Judge Maria Gintowt-Jankowicz.