3 February 2025
My dissemination event, organised as part of the Reversed Rule of Law research group of the Professors’ Network conducted by the Central European Academy in Budapest took place on 3 February 2025 at 19.00. The main purpose of it was to discuss the components of the rule-of-law clause in the jurisprudence of the Constitutional Tribunal of Poland. First, I opened the event by greeting the participants and by outlining the role of the rule-of-law clause in the jurisprudence of the Constitutional Tribunal.
Then Łukasz Sitkowski discussed the principle of trust in the state and its laws in the said jurisprudence. He clarified the meaning and role of this principle, and referred to the selected rulings of the Constitutional Tribunal, in which the content of this principle was developed. The most important takeaway from his presentation was that the principle of citizens’ trust in the state is a key element of the principle of a democratic state governed by the rule of law. Its main aspects include legal certainty, the prohibition against retroactivity, the protection of acquired rights, and the stability of legal regulations. The Tribunal has emphasised that the state should act transparently and predictably so that citizens can rationally plan their actions. Violating this principle may undermine the authority of the law and citizens’ trust in state institutions.
This principle also means that public authorities should act in a predictable, stable manner and in accordance with the principles of social justice and the protection of acquired rights. Its essence is to ensure legal certainty for citizens, guaranteeing that the state will not act arbitrarily or contrary to their legitimate expectations.
This principle has been reflected in numerous rulings of the Tribunal, which has repeatedly interpreted its scope and consequences in specific cases.
One of the key aspects of the principle of trust in the state is the principle of legal certainty, which means that citizens should be able to foresee the legal consequences of their actions. In the judgment of 19 May 1998 (ref. no. K 5/98), the Tribunal stated that the legislator cannot change the law in a way that violates the legitimate expectations of citizens. Normative changes should be made in consideration of the principle of transparency and an adequately long vacatio legis, allowing addressees to adapt to new regulations.
Citizens’ trust in the state also includes the prohibition of retroactive application of the law, especially when it worsens individuals’ legal situation. In the ruling 25 June 2002 (case no. K 45/01), the Tribunal emphasised that introducing retroactive provisions is contrary to the principle of a democratic state governed by the rule of law, except in extraordinary circumstances justified by an important public interest.
The principle of protecting acquired rights directly stems from the principle of trust in the state and its law. In the judgment of 12 December 2002 (case no. K 9/02), the CT stated that the law cannot deprive citizens of rights granted under previously applicable provisions if they acquired them in good faith. This applies, for example, to pension and disability benefits or tax privileges.
In a case concerning tax system changes, the Tribunal ruled (case no. K 32/01) that changes in tax regulations imposing new obligations on citizens should be announced well in advance, allowing taxpayers time to adapt to the new regulations. Otherwise, the state violates the principle of legal predictability and undermines citizens’ trust.
The principle of trust in the state is particularly significant in the economic sphere. In the ruling of 3 October 2000 (case no. K 33/99), the Tribunal stated that the legislator should avoid sudden changes in economic law that could destabilise business activity. Unexpected tax or regulatory changes may lead to financial losses and disrupt market stability.
The next presenter was Karol Rogala, who discussed the principle of democracy in the jurisprudence of the Constitutional Tribunal. He mentioned that this principle, enshrined in the Polish Constitution, has been the subject of many judgments that have shaped the understanding of democracy and the rule of law in Poland. Above all, it was noted that the principle of democracy has a broad and multidimensional character in the jurisprudence of the Constitutional Tribunal. It is not only limited to formal electoral procedures, but also includes: the transparency of public institutions, citizens’ access to information and participation in decision-making processes, the fairness and predictability of the legal system, a close relationship of democracy with the rule of law and social justice. Also, through its jurisprudence, the Constitutional Tribunal has consistently reminded that democracy is not only a political system but also a fundamental constitutional value.
The Polish legal order is based on the Constitution of 2 April 1997, in which the legislator explicitly included the principle of a democratic state under the rule of law in Article 2. This provision is the foundation of the legal system and imposes an absolute obligation on state organs and citizens to respect the law. Moreover, this principle is one of the most frequently invoked by the Constitutional Court when assessing the compliance of laws with the Constitution.
However, democracy in Poland is not a purely formal concept – it also has a material dimension. This means that democracy is not only about the mechanisms for electing representatives, but also about the quality of governance, legal certainty, transparency and the protection of citizens’ rights. The Tribunal has repeatedly emphasised this point in its rulings.
One of the key judgments that illustrates the principle of democracy is the ruling K 8/10 on the constitutionality of the legislation on family allotment gardens. In the justification, the Court emphasised that the Polish Constitution requires the combination of formal and substantive aspects of the rule of law. Among the fundamental values shaping the legal order, the Tribunal indicated the need to respect the principle of democracy.
This ruling shows that democracy in Poland is not limited to the majority rule, but also includes ensuring stability, legal certainty and legislative justice. The Tribunal emphasised that every legal regulation must meet certain minimum substantive standards, such as clarity, predictability and proportionality, in order to be compatible with a democratic state of law.
The Constitutional Court also noted that the principle of the democratic state of law cannot be interpreted in isolation from other constitutional principles. It functions as part of a triad, comprising: the principle of democracy, the principle of the rule of law, the principle of social justice. These three elements are interrelated and form the broader principle of a democratic, rule of law and just state. Each of these aspects must be analysed in the context of the others, ensuring that the democratic system is not just a formal structure, but also a fair and transparent form of government.
Another important case in which the Tribunal underlined the importance of the principle of democracy is the ruling K 37/06 of 18 July 2007, concerning access to public information. The Tribunal ruled that a democratic state under the rule of law requires compliance with the principles of openness and transparency in the operation of public administration.
It also pointed out that the right of citizens to access information on the activities of public authorities is an integral part of the democratic system. Without transparency, democratic mechanisms are weakened as citizens lose the ability to effectively control those in power. The ruling confirmed that democracy is not only about holding elections, but also about the continued participation of the public in decision-making processes and ensuring accountability of government.
The Constitutional Tribunal has also repeatedly emphasised that democracy is not reduced to the formal enactment of laws by a parliamentary majority. It also requires: the protection of fundamental rights and freedoms, ensuring legal certainty and predictability, respect for constitutional values such as pluralism and justice, guaranteeing citizens’ participation in the law-making process.
The Tribunal took a similar position in ruling K 35/05, concerning electoral law and its compliance with democratic principles. The Tribunal held that any electoral law must ensure equality and fairness of elections, excluding mechanisms that extraordinarily favour certain political groups.
The next presenter was Yelyzaveta Karliuha, who discussed the content of the principle of social justice in the jurisprudence of the Constitutional Tribunal. Regarding this principle, it was mentioned that the Constitution of the Republic of Poland of 1997 enshrined the principle of social justice (Article 2) as one of the cardinal principles of the state system. However, the Constitution itself does not define this principle. Consequently, the jurisprudence of the Constitutional Tribunal plays a key role in interpreting this general clause. Since its inception, the Constitutional Tribunal has frequently invoked the principle of social justice as the basis for its rulings.
The first attempt by the Tribunal to define the essence of social justice took place in its ruling of 28 May 1986 (ref. no. U 1/86). At that time, the Tribunal held that social justice is a programmatic directive shaping the activity of the state and its organs in domestic relations. In considering this specific case, the Tribunal narrowed the interpretation of social justice, concluding that it would be achieved through a “correction of the principle of equality in favour of citizens in the most difficult economic situation”. This ruling is a vivid example of the Tribunal’s adherence to the ideological foundations of socialism, which was prevalent at that time. In fact, in the reasoning of its judgments, it frequently referred to the values enshrined in the then-binding Constitution of the People’s Republic of Poland.
A more extensive analysis of social justice was undertaken by the Tribunal in its ruling of 9 March 1987 (ref. no. U 7/87). Firstly, the Tribunal recognised the principle of social justice as a constitutional principle, and even as a “fundamental principle of the system”. Secondly, it highlighted its indeterminate nature. The statement of reasons for the judgment noted that “there are many possible meanings of the concept of justice, some of which are even contradictory” (e.g., “to each the same”, “to each according to his work”, “to each according to his needs”). The Tribunal further stated: “The Constitution adopts a general formulation of the principle of social justice with an imprecise content”.
Notwithstanding, in acknowledging the potential for different interpretations of the principle of social justice, the Constitutional Tribunal focused on one particular approach – distributive justice. In characterising it, the Tribunal emphasised that it is primarily a principle governing the distribution of goods. The Tribunal interpreted this concept in conjunction with the principle of equality, stating that “if unjust differences arise in the distribution of goods and the related classification of people, such differences are considered to be inequalities”.
Based on the above considerations, the Tribunal defined the principle of social justice as “the pursuit of maintaining balance in social relations and refraining from creating unjustified privileges for selected groups of citizens that are not supported by objective requirements and criteria”.
In making this determination, the Tribunal highlighted that the criterion for distribution is the rule that justice is what is proportionate. The Constitutional Tribunal assumed that in the allocation of goods, the intensity of the occurrence of essential characteristics relevant to the distribution must be taken into account. This principle, therefore, presupposes the existence of proportionality between the essential characteristics of individuals (categories) and the treatment they are entitled to (principle of relevance).
This position was reaffirmed in subsequent rulings of the Tribunal. For instance, in its judgment of 27 June 1995 (case no. K 4/94), the Tribunal held that “justice requires that equals be treated equally and that differentiation in law between natural persons and other entities must be appropriately related to differences in their situation; differentiation in law is permissible insofar as it is justified”. Likewise, in its ruling of 6 April 1993 (case no. K 7/92), the Tribunal stated that “distributive justice means that equals must be treated equally, and similar individuals must be treated similarly, with the latter requiring consideration of the extent to which particular characteristics are present in various entities (categories of people) that should be taken into account in the distribution of certain goods (rights). This principle presupposes the existence of proportionality between the essential characteristics of particular categories of individuals and the treatment they are entitled to (principle of relevance)”.
A similar line of reasoning can be found in numerous other rulings of the Tribunal, which contain arguments justifying differential treatment of similar entities. These arguments must, firstly, be of significant (relevant) nature, meaning they must have a direct connection with the purpose and substantive content of the contested legal regulation, and must serve the implementation of that purpose and content. Secondly, it must be proportionate, meaning that the weight of the interest served by differentiating the situation of norm addressees must be appropriately balanced against the weight of the interests that will be infringed as a result of the unequal treatment of similar entities. Thirdly, such differentiation must be connected to other constitutional values, principles, or norms that justify the differential treatment of similar entities.
As follows from the mentioned above, the principle of social justice is closely connected to the principle of equality. The Constitutional Tribunal affirmed this connection in its ruling of 22 December 1997, stating that social justice must be interpreted in conjunction with the principle of equality. Furthermore, it emphasised that justice is the opposite of arbitrariness, as it requires that differences between persons be appropriately correlated with differences in their respective situations. Furthermore, in defining these principles, it referred to J. Rawls, a prominent twentieth-century political philosopher. According to Rawls, social justice serves as a criterion for assessing the distribution of goods within society. Consequently, all distributable values should be allocated equally unless an unequal distribution benefits every individual.
To conclude, according to the Polish Constitutional Tribunal, the principle of social justice governs the distribution of certain goods or rights under national legislation. In that regard, it requires the equal treatment of equals and prohibits the equal treatment of unequal subjects. In doing so, it mandates that any differentiation between individuals or their groups must be appropriately related to differences in their situation.
Furthermore, in line with the Tribunal’s jurisprudence, differentiation in law is permissible if certain conditions are met. These conditions include: a direct connection between such differentiation and the purpose and substantive content of the contested provisions; proportionality – meaning that the weight of the interest served by differentiating the situation of norm addressees is appropriately balanced against the weight of the interests infringed upon as a result of the unequal treatment of similar entities; a link between such differentiation and other constitutional values, principles, or norms that justify the differential treatment of similar entities.
The last speaker was Magdalena Burzymowska who outlined the selected principles of good legislation in the jurisprudence of the Constitutional Tribunal. She explained that the process of legislation is the process of creating and making laws in a country, is an extremely important issue not only for state bodies responsible for creating laws, but also for the society, because nowadays almost every area of human life is regulated by laws, which makes it important to be aware of the laws that apply to us and, above all, to understand the norms about which the law provides. As we know very well according to the Latin paremia “Ignorantia iuris nocet” – “ignorance of the law harms”. Any unclear and imprecise wording in the legislation of an injunction, prohibition, right or obligation involves the possibility of not understanding and noncompliance with the law.
In order to eliminate the possibility of misunderstanding legislated law, the principles of correct legislation were introduced. This is a set of rules aimed at setting the formal limits of the legislator’s discretion and the framework of constitutional standards of action. Thanks to these principles, the normative will of the public authority cannot be expressed arbitrarily, but must always comply with the standards set by the law. Respect for the principles of correct legislation by the legislator, but also by entities with the power of legislative initiative, affects the implementation of the principle of legal certainty. The Constitutional Court, in judgment of January 29, 1992 (ref. K 15/91), defined legal certainty “not as constancy and immutability, but as certainty that one’s life relations can be shaped on the basis of the law.”
As recognised by the Constitutional Tribunal in the judgment of 27 February 2002 (ref. no. K 47/01), the principles of good legislation are a manifestation of the general principle of protection of the citizen’s trust in the state and its laws. The principle of protecting the citizen’s trust in the state has been also developed by the Constitutional Tribunal, which has recognised that it is a feature of a democratic state of law. Its basis is contained in Article 2 of the 1997 Constitution of the Republic of Poland, which states that “The Republic of Poland is a democratic state governed by the rule of law, realizing the principles of social justice.”
The following principles of good legislation should be distinguished: the principle of non-retroactivity (lex retro non agit); the principle of protection of acquired rights; the principle of appropriate vacatio legis and the principle of the definiteness of laws.
The first principle that should be discussed in this context is the principle of non-retroactivity. The Constitutional Tribunal expressed its stance related thereto in the judgement of 7 December 1993 (ref. no. K 7/93). The principle of lex retro non agit refers to the prohibition from giving retroactive effect to law. In accordance with the judgment of 29 January 1992 (ref. no. K 15/91), “A law has retroactive effect when the beginning of its application in terms of time is fixed for a moment earlier than the law became effective (it was not only enacted, but also properly promulgated in a publication body).” The Tribunal confirmed that this is a prohibition from giving retroactive effect to “regulations that normalize the rights and obligations of citizens, if this leads to a worsening of their situation in relation to the previous state of affairs” (the judgment of the Constitutional Tribunal of 29.01.1992, K 15/91), while noting that “The protection of these interests cannot be ascribed an absolute character, because the changeability of the law is an element with which citizens must reckon” (the judgment of the Constitutional Tribunal of 25 November 1997, ref. K 26/97). The principle of non-retroactivity is a fundamental component of the constitutional order in modern constitutional systems. The legislator may not legislate to apply the new law to events that took place before the newly established legal norms came into force and to which the law has not hitherto attached legal consequences. This is stipulated, in the judgment of the Constitutional Court of 2 April 2007. (ref. no. SK 19/06) “The principle of non-retroactivity is one of the basic standards of the rule of law, ensuring the protection of individual dignity and autonomy”.
The Constitutional Court has repeatedly emphasised that the retroactivity of the law is, as a rule, inadmissible and constitutes a violation of the principles of a democratic state of law, however, in certain exceptional circumstances, when provided for by another constitutional principle, it is possible to allow exceptions. This was stated by the Court in the judgment of February 27, 2002 (ref. K 47/01), “The doctrine of law, taking into account the value of the citizen’s trust in the law, recognizes, on the other hand, that it is inadmissible to legislate norms retroactively if the subjects affected by such norms could not reasonably foresee a decision of this kind, and extraordinary circumstances or goods subject to constitutional protection do not justify such a decision”.
Closely related to the first principle is another rule, namely, adequate vacatio legis. In the judgment of 18 October 1994 (ref. no. K. 2/94), the Constitutional Court ruled that these two rules “complement each other, also constituting manifestations of the principle of legal certainty and the principle of citizens’ trust in the state and the law created by it. It is, therefore, unacceptable for new norms to surprise their addressees. The addressee of the norm must be given time to adapt to the changed regulations and to safely make appropriate decisions on further conduct.”.
The principle of adequate vacatio legis refers to the opportunity for a citizen to become familiar with new laws. Accordingly, Polish legislation assumes that the period from the announcement of a legal act to its entry into force is 14 days, and in situations dictated by the principle of equity it can be extended. The purpose of this rule is to emphasise the predictability of the state’s actions, so that the citizen can plan his actions and shape his situation in accordance with the new regulations. The Constitutional Tribunal, in the judgment of 14 December 1993 (ref. no. K. 8/93), defined this as follows “All state action – including that of the legislator – must be predictable and calculable for citizens. Otherwise, they cannot plan their life and economic activities”.
Another rule is the principle of definiteness of laws. This rule imposes an order to formulate regulations in an understandable, clear and precise manner, so that the individual has the opportunity to foresee the legal consequences of his actions. As the Constitutional Tribunal stated in the judgment of 22 May 2002 (ref. no. K.6/02), “Vague and imprecise formulation of provisions leads to the creation of ”an overly broad framework for the bodies applying such a provision, which in fact must substitute for the legislator with regard to those issues that he has regulated in a vague and imprecise manner”.
The requirement of clarity means the order to create laws that are clear and understandable to the recipients of legal norms. The legislator is required to make laws that do not raise doubts about the content of the obligations imposed and rights granted to the citizen. Lawmaking is a form of contact between the authorities and citizens, so the process of creation must meet the requirements of adequate communication, so that the content is obvious to each party.
What was finally discussed was the principle of the protection of acquired rights, which states that it is forbidden to create or legislate laws that would abolish or limit the rights of the individual that were previously granted by law. In accordance with the Tribunal’s judgment of 22 June 1999 (ref. no. K. 5/99), “The principle of protection of acquired rights ensures the protection of subjective rights – both public and private.” In addition, as the Constitutional Tribunal ruled in judgment of 4 January 2000 (ref. no. K.18/99), “At the core of the protection of vested rights is the desire to ensure legal security for the individual and to enable him or her to rationally plan future actions.”.
The principle in question, like others, is not absolute, as the Tribunal has repeatedly stated, including in the judgment of 22 June 1999 (ref. no. K 5/99) “Protection of acquired rights does not mean inviolability of these rights. The principle of protection of acquired rights is not absolute and does not preclude the enactment of regulations less favourable to the individual”.
To finish the dissemination event, I summarised the role and content of the rule-of-law clause in the jurisprudence of the Constitutional Tribunal and the role of this clause in the formation of Poland’s legal system.
