Poland, Supreme Administrative Court, 12 September 2023, II GSK 1555/22

Case overview

Country
Poland
Case ID
II GSK 1555/22
Decision date
Deciding body (English)
Supreme Administrative Court
Deciding body (Original)
Naczelny Sąd Administracyjny
Type of body
Court
Type of Court (material scope)
Administrative Court
Type of jurisdiction
Double jurisdiction system
Type of Court (territorial scope)
State Court
Instance
Supreme court, Cassation (Review)
Area
Freedom to conduct a business
Further areas addressed
  • Healthcare management (Covid related, excluding vaccination)
  • Sanctions and remedies
Link to the full text of the decision
Judgment_PL available at orzeczenia.nsa.gov.pl
General Summary

The case concerned a prohibition on conducting business because of a regulation which scope was to prevent the spread of Covid-19. The prohibition regarded to the operations of restaurant including serving dishes to consumers indoors. It was included in the Regulation of the Council of Ministers on the establishment of certain restrictions, orders and prohibitions in connection with the occurrence of an epidemic state.

The Regional Administrative Court found that the decisions of both instances were issued without legal basis and in gross violation of law and discontinued the proceedings. It was stated that the Regulation of the Council of Minister wasn’t compatible with the statutory delegation concluded in article 46b of the Act of 5 December 2008 on preventing and combating infections and infectious diseases in human beings (consolidated text: Dz. U. of 2020, item 1845 as amended). The prohibition in question which limited citizens’ rights didn’t fulfill the constitutional criterion because it wasn’t establish by proper law (an act of parliament, not regulation or other low-ordered acts).

The Supreme Administrative Court dismissed the cassation appeal and shared the statement of the Regional Court.

Facts of the case

In the grounds for both first instance and appeal decisions, the sanitary authorities stated that the appellant had a restaurant and served dishes and drinks indoors without any safety features preventing the spread of Covid-19. The authorities referred to the Regulation of the Minister of Health of 20 March 2020 on the establishment of an epidemic state in the territory of Poland.

Type of measure challenged
National government measure
Measures, actions, remedies claimed
Annulment of the administrative decision
Individual / collective enforcement
Individual action brought by one or more individuals or legal persons exclusively in their own interest.
Nature of the parties
  • Claimant(s)
    Private individual
  • Defendant(s)
    Public
Type of procedure
Ordinary procedures
Reasoning of the deciding body

In accordance with Article 22 of the Constitution of the Republic of Poland, limitations upon the freedom of economic activity may be imposed only by means of statute and only for important public reasons. There were no such legal grounds for imposed on the appellant the prohibition in question. Pursuant to the article 27 of the State Sanitary Inspection (consolidated text: Dz. U. of 2021, item 195 as amended), in order to impose such severe prohibition it is necessary that there was a breach of hygienic and health requirements settled in a statute, not only in view of the authority. The Regulations mentioned by the authorities couldn’t be the only basis for impose such prohibition – because the whole legal standard concerned the limitation of the freedom of economic activity couldn’t be settled in such low-ordered act. The statute is here necessary.

Intervention in the essence of the freedom to conduct a business is basically possible and permissible in situations of special threats which create the possibility of introducing an appropriate state of emergency (mentioned in Article 228 (1) of the Constitution of the Republic of Poland). The state of natural disaster, stated in this Article, wasn’t introduced. In this placed, there was established the state of epidemic (preceded by the state of epidemic threat), which isn’t mentioned in the Constitution (it isn’t the state of emergency stated in Article 229 (1) of the Constitution). In this case no authority had the right to infringe the essence of this constitutional freedom.

Conclusions of the deciding body

The Supreme Administrative Court upheld the judgment of the first instance court which annulled the decisions of the public authorities (of both instances). The Court rejected the claim of the public authority (which lodged a cassation appeal).

Fundamental Right(s) involved
Freedom to conduct a business
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
Freedom of economic activity, Art. 22, Constitution of Poland
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
Health v. freedom to conduct a business
General principle applied
  • Rule of law
  • State of emergency or necessity
Balancing techniques and principles (proportionality, reasonableness, others)

The Court referred to the principle of proportionality and necessity, regulated in the Article 31 (3) of Polish Constitution. Pursuant to this Article, restrictions on the exercise of constitutional rights and freedoms may be established only by statute and only if they are necessary in a democratic state for its safety or public order, or for the protection of the environment, public health and morality, or the freedoms and rights of other persons. These limitations cannot affect the substance of freedoms and rights.

In the case the Court emphasized the limitation of rights by statute, considering that failure to meet this obligation constituted a violation of the provisions of the constitution.

Author of the case note
Judge Jacek Chlebny, President, Supreme Administrative Court of Poland