Effectiveness of the Polish Constitution in the context of contemporary challenges

Kelsen claims that the constitution is effective when “in accordance with [it] laws and judicial decisions and administrative decisions are effectively issued“. An effective constitution would have to contain institutional measures to ensure the “guarantee of the legality of the levels of law that stand immediately below the constitution“. The effectiveness of the constitution is based on the attitudes of those acting as authorities, i.e. bodies creating sub-constitutional norms and bodies guarding their compliance with the constitution. The question arises, what makes the addressees of constitutional norms comply with them despite the lack of a coercive apparatus guaranteeing their observance? An attempt to answer this question can be formulated with the help of Aristotle's ethics of virtues, which allows for the definition of ethical conditions for the effectiveness of a constitution (Kelsen's dependent norms).

The effective protection of environment is one of the key challenges faced by contemporary public law. Environmental constitutionalism is a concept that applies to both international law and national constitutions. The presentation will focus on the effectiveness of environmental constitutionalism at the level of national law. Firstly, the subject of considerations will be the very concept (and criteria) of the effectiveness in this respect. Secondly, factors contributing to the effectiveness of constitutional environmental protection standards will be discussed: the constitutional role of both substantive and procedural environmental rights, structural environmental constitutionalism (which is of particular importance in federal states) and last but not least introduction of specialized bodies such as courts specialized in environmental law or specialized monitoring and/or enforcing institutions (i.a. the Ombudsman for Future Generations).

The Polish tax legislator is often criticized by the environment of taxpayers-entrepreneurs and tax advisers due to the clarity of tax regulations, which is nothing new and original compared to other countries. It would not be unusual in the tax area if it were not for the fact that both the author of the legislative proposals and the legislator ignore that in the case of taxes flowing into the budgets of communes (local taxes), uncertainty as to budget revenues is also introduced. The subject of paper is the analysis of the limits within which the Constitution of the Republic of Poland restricts the legislature in requirement of high legislative standards. The analysis is based on the jurisprudence of the Constitutional Tribunal in the field of real estate tax mainly connected with taxation of entrepreneurs' real estate. It is indisputable importance of jurisprudence of Constitutional Tribunal in this matter and often it seems like “defensive wall“ in protection taxpayer rights.

This problem is particularly topical in the context of the current global initiatives to combat tax avoidance, and therefore primarily the BEPS project. At the time of its launch, the need for cooperation between all countries (not only OECD members) was quite strongly emphasized. In some cases, such cooperation is a guarantee of the success of the project (it is already known that it will not be possible owing to the attitude of the USA). However, this raises the question of whether the global initiative will mean depriving countries of their tax sovereignty. If the project is to be implemented in all countries, parliaments will lose real influence on the shape of the tax system. How to reconcile the effective fight against fraud with democratic principles? Additionally, the Polish reality shows a tendency to use the BEPS project (and sometimes the related EU regulations) to justify very often much more restrictive solutions introduced into Polish tax law for taxpayers.

The aim of the speech is to present the principle of direct application of Constitution: a content, a meaning and an evolution. We distinguish three stages in the formation of the effectiveness of this principle. First - the courts expressed their reserve towards the direct application of the constitution. The second - the courts became involved in the process of applying the constitution by bringing legal questions to the Constitutional Court. The third stage is an active and independent application of the constitution by the courts. This state of affairs is the result of the loss of the Constitutional Court's ability to perform its protective function due to, among other things, the long waiting period for a judgment or the avoidance of substantive resolution of constitutional problems. The Court was the “laboratory“ of constitutional thought and constitutional theory, while the Constitution had an almost biblical dimension.

The entitlement of the state to public levies is a generally accepted element of its sovereignty, and the state has considerable freedom in this respect. At the same time, interference in individual freedoms and rights cannot be exercised arbitrarily, since its limits are set both by national constitutions and by international standards of protection of individual rights and freedoms. In this context, it is worthwhile to present the statements of the Polish Constitutional Tribunal - statements referring to the basic problems of respecting constitutional and international standards of fiscal law creation and of the protection of fundamental rights and individual freedoms. In addition, selected statements present the main trends of jurisprudence in these areas.