The Constitutional Tribunal referred to the President of the Republic of Poland's proposal for a law amending the provisions governing the social security system.
The Court held that Act dated 15 December 2017 the amendment of the Act on the Social Security System and certain other laws is compatible with Article 2 The Constitution of the Republic of Poland and is incompatible with Article 7 Constitution of the Republic of Poland. Other aspects of the Court discontinued the proceedings.
Standards of the legislative process in accordance with the Basic Act
The allegation of the President of the Republic of Poland concerned violations of constitutional standards of the legislative process regarding the failure to comply with the obligation to consult the contested bill with the Council of Social Dialogue, representative trade unions and representative employers' organisations. Given the nature and importance of the amendments to the Act, its scope and the standards of lawmaking, in the opinion of the Applicant, the lack of such consultations violated constitutional standards.
In view of the deficiencies found in the work on the contested law in the Senate, the Court found the contested law incompatible with Article 7 Constitution
As regards the alleged infringement Article 2 The Constitution, in the case of legislative control, is an argument Applicants should be concerned two issues: indications of procedural deficiencies, as well as control patterns with which these infringements conflict. In the Court’s view, the applicant has not exhausted any of these issues due to too little arguments for such a contradiction, The Court found that the contested law was in line with the constitutional standard indicated.
There is no constitutional authority for the competences of the social partners
The social partners expressed a negative opinion on both the mode of acting and its objectives. According to employers' organisations who are members of the Social Dialogue Council, they were prevented from voting effectively on the bill that was adopted with such far-reaching economic and social consequences.
The Constitution of the Polish Republic grants social dialogue and cooperation to the social partners a particular role in shaping the economic system.
According to Article 20 The Constitution of the Republic of Poland's social market economy based on dialogue and cooperation between the social partners is the basis of the economic system of the Republic of Poland. Unfortunately, TK did not refer to this article.
On the other hand, the Court assessed the compatibility of the procedure for working on the contested law with Article 7 Constitution. According to the Constitutional Tribunal, there is no constitutional authority for the opinion-making powers of trade unions and employers' organisations.
These powers have their origin in the laws and cannot be derived from the provisions Article 59(2) The Constitution, in addition, does not appear in the text of the Constitution explicite in any other place.
On the other hand, both the legal and legislative bodies themselves have been defined and regulated by the legislature, and the laws only clarify constitutional regulations.
There is no authority in the Polish legal system to participate in the law-making process, within the meaning of constitutional sources of law, for bodies not mentioned in this context by the legislature. Such authorisation may not be removed from other normative acts by interpretation or presumption.
Furthermore, following the re-enactment of the legislative procedure for the contested law, it turned out that, in response to both the sending of a letter to employers' organisations, trade unions and the Council for Social Dialogue, as well as the public disclosure of the start of the work on the draft of the contested law, its positions, containing substantive comments, but also formal objections to the mere way in which the bill was conducted between 7 a 30 November sent 11 trade unions and employers' organisations.
In turn, the parliamentary work continued to 24 November, which means that most of the posts had already arrived before completion of the work in the Sejm.
Moreover, the transcripts of the meetings of the Committee on Social Policy and Family Affairs show that representatives of trade union organisations and employers' organisations have come forward and spoke during the committee meeting.
The Court therefore did not see derogations from constitutional provisions in the course of legislative work on the amending law.
Voting without quorum
Since there were serious doubts about the procedure for adopting the contested law, the Court, as a result of the knowledge it had taken, decided to examine also issues which did not appear in the proposal but which fall within the framework of the standard of control of the Article 7 The Constitution and the plea to investigate the observance of the law-defined procedure for passing the bill.
The contested bill was passed by resolution on 51. Senate meeting 7 December 2017, During the vote, some of the senators present in the courtroom removed their cards from the voting machine, thus not participating.
According to the transcript and the video provided to the Court from the sitting, the voting machine registered only the presence 48 Senators. Following the conclusion of the Senate meeting and the vote of Vice-Marshal of the Senate, she reported no quorum. The Secretary of the Senate re-counted the current senators.
However, the Court, having the recording on the basis of which the senators were counted, was unable to determine which vote was the subject of a re-examination of the secretary, because, according to both the stenogram and the record, he spoke of the vote no. 36 and this voting number has not been corrected by him or the Senate Marshal.
Importantly, the two votes concerned exactly the same bill – vote no. 36 concerning the adoption of amendments to the contested law, and voting No 37 the adoption of the contested law in full with the amendments resulting from the amendments adopted. By vote no.
36 actually participated 73 Senators, his results were not the subject of dispute, because exactly as many voters also gave the voting machine. It is therefore difficult to determine how many senators were in the courtroom during the ballot no.
37, Although the video clearly shows that there were more than fifty, But is it exactly 73 There is no certainty as it is not known which vote was the subject of an analysis by the Secretary of the Senate.
In view of the deficiencies found above in the work on the contested law in the Senate, the Court found the contested law incompatible with Article 7 Constitution.