Table of contents

ADMINISTRATIVE SUBSTANTIVE LAW
Aleksander Maziarz
The grounds for issuing a decision on the removal of irregularities identified
in a building in the light of the jurisprudence of administrative courts ……………………………… 5
Mateusz Perkowski
Legal nature of the tariff decision in collective water supply and sewage disposal ……………….19
Grzegorz Maroń
The Polish legislator’s sluggishness, inconsistency and indolence in regulating
conscientious objection ……………………………………………………………………………………………. 34

PROCEDURAL LAW
Angelika Wydra
Procedures for determining causes of construction disasters in Poland – administrative
and legal issues ……………………………………………………………………………………………………….. 47
Tadeusz Kiełkowski
Conditions under which an administrative court may uphold a complaint against
a decision based on the omission of a reflexive party in administrative proceedings ………….. 64
Paweł Gacek
Enforcement of not final administrative decision before the expiry of the time limit
to submit the appeal based on the Art. 130 (4) The Code of Administrative
Proceedings ……………………………………………………………………………………………………………. 79

EMPLOYMENT IN ADMINISTRATION
Joanna Jagoda
Termination of employment of a local government employee due to the expiry
of the term of office ………………………………………………………………………………………………… 93

GLOSSES
Dorota Całkiewicz
Another complaint about inaction of the administrative authority in the same issue
after administrative court final judgment. Gloss to the resolution of the Supreme
Administrative Court of 1 December 2022, III OZ 710/22 ………………………………………….107

Aleksander Maziarz

The grounds for issuing a decision on the removal of irregularities identified in a building in the light of the jurisprudence of administrative courts

Abstract

The article addresses the issue of grounds for making decisions regarding the removal of abnormalities identified in a building specified in Article 66 of the Building Law. Additionally, an analysis of regulations aimed at preventing the prevention or significant hindrance of using a building for residential purposes, which are also included in the aforementioned provision, has been carried out. Due to the fact that individual prerequisites for applying this provision have been formulated using vague phrases, doubts arise as to whether they meet the requirement of proper legislation. The aim of the article is, therefore, to interpret the individual conditions for issuing the aforementioned decision and determine whether these provisions are uniformly interpreted and applied.

Mateusz Perkowski

Legal nature of the tariff decision in collective water supply and sewage disposal

Abstract

This study analyzes the legal nature of tariff decisions issued under the regime of the Law of June 7, 2001 on collective water supply and collective sewage disposal. The article discusses the differences that characterize the various tariff decisions and attempts to determine whether these decisions are „bound decisions” or „discretionary decisions.” The determination of these circumstances pursues the purpose of the article, which is to try to answer the question of whether an administrative court reviewing a tariff dispute gains the right to terminate the entrepreneur’s dispute with the regulator by issuing a judgment settling the case, on the merits.

Grzegorz Maroń

The Polish legislator’s sluggishness, inconsistency and indolence in regulating conscientious objection

Abstract

A study of Polish law on the conscience clause – both legislative actions and omissions – reveals several major shortcomings of the law-making process that contradict the model of a rational lawmaker. First, the legislator’s sluggishness can be observed even in the context of regulations that do not require much work. It took the Polish lawmaker almost 5 years to give one statutory provision establishing a physician’s conscience clause a wording consistent with the judgment of the Constitutional Tribunal. Second, the legislator does not respond to an obvious case of inconsistency and unconstitutionality of the law by not amending the provisions establishing the conscience clause of nurses and midwives, despite the analogy between their conscientious objection and that of doctors. Third, the lawgiver does not seem to notice the common nature of conscientious objection accompanying various professions (obligations) and problems with its accommodation, as a result of which the conditions for invoking medical conscience clauses and the military conscience clause differ significantly. Fourthly, the legislator avoids any regulation at the statutory level of several types of conscience clauses, e.g. the conscience clause of pharmacists, despite the voices of directly interested persons raising such a need. In this way, he ignores the fact that even suboptimal regulations are better than the state of a loophole in the law, because it allows for a proportionate balancing of competing rights, goods or interests. The reaction of a rational legislator to the challenges accompanying the regulation of conscientious objection cannot be inaction or legislative „mediocrity”.

Angelika Wydra

Procedures for determining causes of construction disasters in Poland – administrative and legal issues

Abstract

The subject of the article is an analysis of the essence and main causes of disasters in the Polish construction industry. Statistical data was used to identify the most common factors leading to a disaster. The most common causes of construction disasters include design and implementation errors, insufficient supervision of the construction process, lack of regular inspection of the technical condition of facilities, as well as external factors such as extreme weather conditions. Moreover, the need to take actions aimed at minimizing the risk of construction disasters was also discussed, such as increasing control and supervision of the construction process, educating the public, investing in modern technologies and construction methods. This analysis allows for a better understanding of the essence and main factors of construction disasters in Poland. It also indicates directions of actions aimed at preventing such events in the future.

Tadeusz Kiełkowski

Conditions under which an administrative court may uphold a complaint against a decision based on the omission of a reflexive party in administrative proceedings

Abstract

The study deals with issues relating to the judicial review of an administrative decision issued in proceedings in which a reflexive party was omitted. Consideration is given to the admissibility of a complaint, the procedural status of an omitted party, the scope of the court’s examination and decision, and the manner of resolution of the case. In the light of the findings made, the omission of a reflexive party appears as a special form of infringement of law, which has a subjective dimension and can only be taken into account if the entitled party raises a relevant objection. It creates unusual challenges with regard to the court making findings of fact that do not arise from the administrative record, and its strong connotation with the principle of the protection of lawfully acquired rights also becomes apparent during sentencing. In the light of this principle, the possibility of annulling the contested decision remains conditional on the additional demonstration of another infringement of law which affected or at least could have affected the outcome of the case.

Paweł Gacek

Enforcement of not final administrative decision before the expiry of the time limit to submit the appeal based on the Art. 130 (4) The Code of Administrative Proceedings

Abstract

The article was entirely devoted to issue concerning the enforcement of not final administrative decision before the expiry of the time limit to submit the appeal based on the Art. 130 (4) The Code of Administrative Proceedings. According this provison of law the decision is subject to enforcement before the expiry of the time limit for filing an appeal, if it is compliant with the demands of all the parties or if all the parties waived their right of appeal.

Therefore, the premises that must be fulfilled were discussed to could be initiated enforcement of administrative decision even before the expiry of the time limit to submit the appeal (the application to reconsider the matter).

Joanna Jagoda

Termination of employment of a local government employee due to the expiry of the term of office

Abstract

The employment relationship by choice is terminated upon the expiry of the mandate (Article 73 § 2 of the Labor Code). A special feature of the elective employment relationship is the institutional possibility of the almost immediate termination of the mandate. The reasons for the expiry of the mandate are determined by systemic provisions. These are the electoral code in relation to the commune head (mayor, city president) and local government political acts in relation to board members in the poviat and voivodeship. The employment relationship based on election is established for a fixed period, limited by the duration of the mandate. The expiration of the mandate of a local government employee employed on the basis of an election generally occurs as a result of the employee’s death, resignation from the mandate or dismissal before the end of the term of office. One of the basic reasons for the expiry of a mandate is also the expiry of the term of office. The study discusses specific legal regulations regarding the termination of the employment relationship of a local government employee due to the expiry of the term of office.

Dorota Całkiewicz

Another complaint about inaction of the administrative authority in the same issue after administrative court final judgment. Gloss to the resolution of the Supreme Administrative Court of 1 December 2022, III OZ 710/22

Abstract

The gloss is devoted to the problem of the right to another complaint about inaction of the administrative authority in the same issue. The Supreme Administrative Court accepted that if administrative court in a final court judgment decided about inaction the administrative authority and obligated this authority to take action, the party has no right to complain again inaction the authority in the same issue. In the gloss, the author agrees with the position taken in the resolution that another complaint about inaction of the authority might violate a scope of res judicata. In that situation party can only use a complaint about failure to enforce a court judgment, as per Article 154 of the Act on Proceedings Before Administrative Courts.