The Constitutional Tribunal (hereinafter: the Constitutional Tribunal) concluded that the provisions of the amendment in force since the end of 2021, which was intended to improve the situation of persons retiring in June but omitted those from 2009 to 2019, were incompatible with the basic law.
The problem that was resolved by the Constitutional Tribunal afraid the Act amending the Social safety strategy Act and any another laws (Journal of Laws of 2021 item 1621), which, with exceptions, entered into force on 18.9.2021. Under these provisions, the rules for determining the amount of pension in June are now the same as in May, if this is more favourable for the insured person.
Failed change
But it was different before. The rules for determining the amount of the pension varied and depended, among others, on the period of the application. The worst 1 was the 1 who went to the witnessing just in June. His witnessing may have been even a twelve percent lower than if he had applied for another month. If the amount of the pension was fixed in June, the amount of the contributions subject to the last yearly valorisation was not subject to additional quarterly values.
However, any people have missed the amendment. This included insured persons whose benefits were fixed in June 2009–2019 (retirement was first paid, utilizing 2 types of valorisation – quarterly and annual) and derivatives of these benefits, i.e. household pensions.
The Ombudsman intervened in the case, who pointed to the unconstitutionality of specified provisions. He stressed that limiting the fresh regulation to 2021 pensions and to the future is incomprehensible. The territory Court of Elbląg had akin doubts, which referred a legal question to the TK in this case.
On Wednesday, he considered the contested regulations to be incompatible with the Constitution of Poland.
– This is simply a judgement of the alleged legislative omission. specified decisions shall not consequence in a derogation. The legislator should so make appropriate changes to the rules," says Dr. Tomasz Zalasiński, associate of the Batory Foundation legal expert team.
How soon?
There are no rigid deadlines here. It is assumed that the legislator should act immediately. Unfortunately, in reality, it is different. any decisions of the Constitutional Tribunal are waiting years to be executed. The most common problem in this case is budgetary issues, says the expert.
And the money isn't tiny in this case. The calculation of the household hotel shows that the projected increase in expenditure on pensions from the FUS as a consequence of possible changes resulting from the ruling of the Constitutional Tribunal would amount to PLN 2.8 billion in nominal amounts between 2024 and 2033.
The problem may be the presence of justice Justin Piskorski in the ruling group.
– All judgments of the Constitutional Tribunal issued in the compositions in which the persons who were not entitled to judgement (i.e. alleged double judges) were to be declared invalid. However, if the legislator sees the legitimacy of the solution to the constitutional problem to which the Constitutional Tribunal pointed out – as in the judgement at issue – then of course he can make a change by filling in the normative content of this legislative omission – explains the patron.
Miscellaneous interests
That's not the only ruling that can be a problem.
– It should be borne in head that, among the judgments handed down with alleged dubler judges, decisions are beneficial for thousands of citizens. These are, for example, decisions concerning the costs of unpaid legal aid from the office or property tax. However, if the Sejm or any another body considered that the selection of the 3 judges of the Constitutional Tribunal for seats had already been annulled, it would have consistently been essential to “cancell” the judgments given with their participation. And that's all – says Artur Nowak, legal advisor, partner at DZP Domański, Zakrzewski, Palinka.
Michał Roszkowski, legal advisor, taxation adviser, partner in Acreo, is of akin opinion.
– Restoring constitutional standards in the Constitutional Tribunal must comply with the letter of law. all shortcut is simply a bad choice. Therefore, the designation that the judgement given in an unlawful composition is not valid should apply to any specified decision, not only to those which are unfavorable to citizens or to the top social emotions, specified as the celebrated conviction in the alleged abortion case," emphasises Michał Roszkowski.
Possible solutions
Experts see, however, solutions which, despite the elimination from the legal trade, will let for the inclusion of their interests and rights.
– The fact that the judgement of the Constitutional Tribunal given in a lineup with the alleged double justice would have been declared unconscionable does not prevent the legislator from taking care of the matter. This is simply a good solution especially in the case of 2 property taxation rulings in terms of the definition of buildings and the rates for garages in residential blocks," says Artur Nowak.
In both cases, the Court deferred the power of non-constitutional provisions, giving the legislator time to adapt them to the requirements of the basic law.
– In these cases, government can be prepared and passed that will take into account the guidelines of the CCC. And although the judgments themselves will be cancelled, that is, the basis of unconstitutionality will disappear, there would be a statutory solution leading to the same effect," explains Artur Nowak.
In the opinion of Michał Roszkowski about the interests of the addressees of the beneficial judgments of the Constitutional Tribunal declared to be nonexistent, the courts themselves can besides take care of them.
– Administrative, labour or civilian courts could trust on the alleged distributed constitutional control and take into account the argument that prejudged the designation of a given standard as unconstitutional in a circumstantial case. The effect on the payer or the citizen would be the same," says Roszkowski.
There's another gate.
– Recognising an incorrect conviction as non-existent means that the case was not settled by the Constitutional Tribunal. So we cannot talk of the seriousness of the judgment. This means that it should be resolved again in a decently cast lineup – says Michał Roszkowski.
Prof. Ryszard Piotrowski, constitutionalist, University of Warsaw
The Constitution of the Republic of Poland does not supply for any situation in which any State body could consider that the common and final judgement of the Constitutional Court does not exist. This was confirmed repeatedly in his rulings. After all, the Constitution, which was considered to be a democratic conquest, took distant the Sejm's right to “draw distant the Court's ruling” by a two-thirds majority, retaining this right 2 years after its entry into force. So if the Sejm wanted to make any effort to invalidate the judgments of the Constitutional Tribunal issued in the compositions in which alleged double judges sat, it would, of course, be unconstitutional. Just as an effort to remove from the Constitutional Court by means of a resolution of the Sejm those judges who were elected to the seats already taken. all improvement of the Court requires a bill, not a resolution of the Sejm. Furthermore, a parliamentary effort to annul the judgments already passed by the Constitutional Tribunal would lead to even greater legal chaos. Especially since in many situations these judgments are crucial to warrant the rights and freedoms of the individual. Therefore, their decision would be contrary to the constitutional rule of the reliability and efficiency of public institutions. If the conviction of the current TK raises constitutional doubts, then there is nothing to prevent us from passing a bill that simply ignores it. Practice besides knows not to execute the judgments of the Court.
Jerzy Stępień, Judge at remainder and erstwhile president of the Court
The adoption of a resolution nullifying the choice of alleged double judges will be most legitimate. This will not, on the another hand, have a direct effect on the decisions of the Constitutional Court taken with them. At least it won't happen automatically. Only the rulers will gotta decide in the laws whether they will hold their power. If they consider that the judgments given should be challenged, they will gotta introduce a peculiar procedure for checking them and a way of moving them. If they do not do so, then there is only the anticipation of individual resumption of proceedings based on the judgement of the Court.
