Poland, Supreme Administrative Court, 21 September 2023, II GSK 1654/22
Case overview
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Link to the full text of the decision
General Summary
The case concerns the imposition of an administrative fine on a commercial company for failing to comply with an obligation to temporarily restrict the business of preparing and serving food and drinks to restaurant guests. This obligation was imposed by government regulation.
Pursuant to the statutory delegation in Article 46a and Article 46b of the Act of 5 December 2008 on preventing and combating infections and infectious diseases in humans (consolidated text Journal of Laws of 2020, items 1845 as amended), the regulation referred to in Article 46a may establish: a temporary restriction of certain scopes of activity of entrepreneurs (point 2) and a temporary restriction of the use of premises or areas and the obligation to secure them (point 8). According to § 10 section 9 of the Regulation of the Council of Ministers of 21 December 2020 on the establishment of certain restrictions, orders and prohibitions in connection with the occurrence of an epidemic state (Journal of Laws of 2020, item 2316, repealed), the serving of food and drinks to restaurant guests could only be done as takeaway.
Pursuant to Article 48a para. 1 point. 3 of the Act of 5 December 2008, anyone who, during an epidemic, does not comply with the orders, prohibitions or restrictions established pursuant to Article 46 or Article 46b (2) and (8) shall be subject to a fine of between PLN 10 000 and PLN 30 000. The health inspection authorities of both instances unanimously decided to impose an administrative fine of PLN 10 000.
However, during the period covered by the contested decision, there was no provision in the aforementioned Act regulating the imposition of a fine in the event of non-compliance with the provisions of the abovementioned Act. As a result of the amendment of the Act, from 29 November 2020 to 25 January 2021, Article 48a was in force in the wording regulating the powers of paramedics during epidemics. It was an effect of the activity of the legislation power.
The Regional (Voivodship) Administrative Court revoked the decisions of both instances as unlawful and discontinued the administrative proceedings. First of all, the Court of first instance refused to apply the regulation of the Council of Ministers of 21 December 2020. It recognised that this regulation was issued in excess of the statutory delegation and – as unconstitutional – couldn’t be the basis for imposing a fine on the claimant. Moreover, the Court noted the fact that the designation of the provision regulating the matter of paramedic powers as Article 48a might have been the result of a mistake. But this couldn’t be an argument in favour of the admissibility of the fine, which can only be applied if the legal basis for its imposition is evident and indisputable and in force on the date of the incident subject to the fine.
The Supreme Administrative Court dismissed the cassation appeal.
Facts of the case
In the grounds for the appeal decision of 16 December 2021, the Voivodship Sanitary Inspector found that the claimant, who is the owner of the restaurant offered meals and drinks to customers of the restaurant sitting at tables. The decision imposed a fine was a result of the inspection.
Type of measure challenged
Measures, actions, remedies claimed
- revocation of the administrative decision
- discontinuance of administrative proceedings
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private individualDefendant(s)
Public
Type of procedure
Reasoning of the deciding body
According to the Court, the provisions of the act, and not the implementing regulation, should determine the complete content of the introduced orders and prohibitions, the violation of which was subject to penalization. The Court noticed, that the Article 48a para. 1 of the Act on preventing and combating infections and infectious diseases in humans refers to the provisions authorizing the issuance of a regulation, and therefore also to a such regulation. As a result, all significant subjective and objective features of sanctioned torts were specified not in the statutory act, but in the implementing regulation. This violates, in the Court’s opinion, the principle of specificity of regulations, in particular as regards to the provision constituting the basis for imposing an administrative sanction, and the principle of absolute exclusivity of the statutory act in the field of repressive provisions.
Pursuant to the provisions of art. 46a and art. 46b of the Act on preventing and combating infections and infectious diseases in humans, the Council of Ministers was authorized to make executive regulations concerning the scope of application of these provisions. Moreover, Article 46b point 2 – which provides for “temporary limitation of specific scopes of entrepreneurs' activities” – is too general and therefore insufficient to determine whether a given behavior can actually be qualified as exhaustive features of the violation of Article 48a para. 1 of this Act, which is the provision sanctioning compliance with the restriction (order) specified in the regulation § 10 section 19 of the Regulation of the Council of Ministers of 21 December 2020.
Implementation of the ruling
The Court rejected the claim of the public authority (which lodged a cassation appeal) and upheld the judgement of the first instance court. According to the Supreme Administrative Court, § 10 section 19 of the Regulation of the Council of Ministers of 21 December 2020 could not constitute – or more precisely co-constitute, together with Article 48a of the Act of 5 December 2008 – the substantive legal basis for imposing a fine on the claimant for violating the restriction on conducting business activity established therein. Therefore, the Court stated, that the Regional Administrative Court rightly refused to apply the regulation, revoking both decisions and discontinuing the administrative proceedings in the case.
Fundamental Right(s) involved
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
General principle applied
- Rule of law
- State of emergency or necessity
Balancing techniques and principles (proportionality, reasonableness, others)
The Court refers to the Article 22 of the Constitution of the Republic of Poland expressing the principle of the freedom of economic activity in conjunction with Article 31 para. 3 of the Constitution: “Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights”.
