The amounts of fines for breaches of provisions on fisheries; differentiation within the category of liable entities K 31/13
“The legislator authorised a competent minister to specify the amounts of the said fines, depending on the types of breaches and the socially detrimental effects thereof. He did not entrust the minister with the power to specify minimum fines,” stated the Constitutional Tribunal.
At the hearing on 17 March 2015 at 1 p.m., the Constitutional Tribunal considered an application filed by a group of Sejm Deputies with regard to the amounts of fines for breaches of provisions on fisheries (differentiation within the category of liable entities).
The Constitutional Tribunal adjudicated that:
1. Article 63(1)(1) and Article 63(1)(2), in conjunction with Article 63(1)(3) of the Act of 19 February 2004 on Fisheries, were consistent with Article 32(1) of the Constitution;
2. Article 63(2) and Article 63(3), in conjunction with Article 63(4) of the Act referred to in point 1, were consistent with Article 2 as well as were not inconsistent with Article 31(3), Article 32(1) and Article 42(1) of the Constitution;
3. Article 63(4) of the Act referred to in point 1 was consistent with Article 2 and Article 92(1) of the Constitution;
4. § 2 – § 5 of the Regulation of 21 April 2005 issued by the Minister for Agriculture and Rural Development with regard to the amounts of fines for breaches of provisions on fisheries, insofar as they specified minimum fines:
a) were inconsistent with Article 63(2) and (4) of the Act referred to in point 1 in conjunction with Article 2 and Article 92(1) of the Constitution;
b) were not inconsistent with Article 63(3) of the Act referred to in point 1 and Article 42(1) of the Constitution.
As to the remainder, the Constitutional Tribunal decided to discontinue the review proceedings.
A dissenting opinion was submitted with regard to point 3 by Judge Wojciech Hermeliński.
Although the challenged provisions of the Fisheries Act were repealed (in accordance with the new Sea Fisheries Act), they and the challenged provisions of the 2005 Regulation will still be applicable – on the basis of transitional provisions – to cases that were commenced but not closed with a final decision before the entry into force of the new Act.
The Constitutional Tribunal only agreed with the applicant’s allegation concerning the unconstitutionality of § 2-5 of the 2005 Regulation, insofar as they specified minimum fines. The Tribunal deemed that the said provisions exceeded the scope of the statutory authorisation expressed in Article 63(4) of the Fisheries Act. Pursuant to Article 92(1) of the Constitution, regulations are legal instruments issued on the basis of specific authorisation contained in, and for the purpose of implementation of, statutes. Statutory authorisation is to be interpreted in a strict way, i.e. it may not be subject to a broadening or purposive interpretation. The lack of the legislator’s stance on an issue – even if this results from the imprecise wording of authorisation – must be interpreted as the legislator’s decision to refrain from granting law-making competence within a given scope. In the Tribunal’s view, the legislator authorised the minister to specify the amounts of the said fines, depending on the types of the breaches and the socially detrimental effects thereof. The executive authority had not been authorised to specify minimum fines. At the same time, the Tribunal pointed out that the fines provided for in Article 63 of the Fisheries Act constituted interference in property rights. Thus, an optimal solution would be to set out not only a maximum fine but also a minimum one for breaches of provisions on fisheries. Such a solution was adopted by the legislator in the new Act of 19 December 2014 on Sea Fisheries.
With reference to other allegations raised by the applicant, the Tribunal held that it was admissible to introduce different amounts of maximum administrative fines for breaches of provisions on fisheries with regard to entities involved in sea fishing activity, depending on the overall length of a fishing vessel (Article 63(1)(1) and Article 63(1)(2) in conjunction with Article 63(1)(3) of the Fisheries Act). This is justified by the technical conditions and fishing opportunities of large vessels in comparison with small ones. Fishing vessels whose overall length is 10 metres or more may catch larger amounts of fish as part of their economic activity than smaller vessels. Consequently, greater profits may potentially be gained as a result of breaches of provisions. The adopted differentiation is also justified by Article 74(1) and Article 74(2) of the Constitution, which state that public authorities are obliged to protect the environment and pursue policies that ensure the ecological security of current and future generations. “The scale of a breach” – a criterion which the applicant regarded as the most appropriate – should be taken into account when determining the severity of the penalty (the Act only specifies the highest penalty). Authorities responsible for imposing fines mentioned in the challenged provisions, must consider the principles of proportionality and fairness.
The Tribunal also disagreed with the applicant’s allegation that, due to the regulation provided for in Article 63(2) and (3) of the Fisheries Act, “new types of punishable acts have been specified”, which resulted in the violation of the principle that regulations concerning rights and freedoms might only be regulated by statute (Article 2, Article 31(3) and Article 42(1) of the Constitution). The Tribunal stated that it was the Fisheries Act that regulated conditions for carrying out sea fishing activity and prohibitions or requirements constituting the nature of a prohibited act. The challenged provisions need to be applied together with other provisions of the Fisheries Act and the provisions of the Common Fisheries Policy within the framework of the European Union. Although the Constitution has established the principle that certain matters may only be regulated by statute, it does not exclude specifying some elements of a sanctioned norm by a regulation (i.e. a universally binding legal act of a lower rank than a statute).
The hearing was presided over by Judge Wojciech Hermeliński, and the Judge Rapporteur was Judge Piotr Tuleja.