Table of contents

ADMINISTRATIVE SUBSTANTIVE LAW
Jakub Kuśmierz
Is a camping trailer a construction object? Characteristics and substantive conditions
determining qualification in theory and practice …………………………………………………………. 5

CONSTITUTIONAL LAW
Monika Lisiecka
Derogation and limitation of rights in extraordinary measures ………………………………………. 19

PROCEDURAL LAW
Michał Igor Ulasiewicz
Designation of the applicant in the proceedings on access to public information ……………… 32
Marta Ćwiklińska
On the possibility of the use of mediation in administrative proceedings concerning
procedure for issuing so called environmental decision …………………………………………………. 41
Piotr Janiak
‘Pure’ cassation decisions in administrative proceedings ……………………………………………….. 54
Jan Kluza
Police powers in petty offense cases to award penalty points for violating road traffic
regulations and the right to go to court ……………………………………………………………………… 69

ADMINISTRATION SYSTEM
Mariusz Tomaszuk
Establishment of saints or blessed as patrons of local government units in light
of Article 25(2) of the Polish Constitution …………………………………………………………………. 80

GLOSSES
Anna Wierzbica
Gloss to the resolution of the Provincial Administrative Court of Wroclaw
of 2 March 2023, III SA/Wr 816/22 (partially approving) ……………………………………………. 93

Jakub Kuśmierz

Is a camping trailer a construction object? Characteristics and substantive conditions determining qualification in theory and practice

Abstract

A camping trailer may be regarded as a borderline case in terms of its qualification as a construction object and, thus, its subjection to the regulation of the Construction Law of 7.07.1994. So far, this issue has been the subject of analyses to a limited extent by the representatives of legal science and the judicial-administrative case law. Important legal theory issues and relevance to the market argue in favour of addressing this topic. This article answers the question of whether a camping trailer is a construction object. It also provides information on how this previously undefined term should be interpreted. In addition, the article points out the substantive conditions determining the qualification of a camping trailer as a construction object. The article’s analysis is carried out from the point of view of both legal theory – also from a systemic perspective – as well as practice.

Monika Lisiecka

Derogation and limitation of rights in extraordinary measures

Abstract

In the Constitution of the Republic of Poland, a separate chapter has been devoted to the “extraordinary measures” with its catalog of an exhaustive character that includes: martial law, a state of emergency or a state of natural disaster. The institution of the extraordinary measures is closely related to the issue of the legal status of an individual. This is because the issue of limiting its constitutional rights and freedoms, as well as their possible temporary derogation, is different than during the state of normal functioning of the state. Additionally, with such a specific regulation – which ignores the prohibition of violating the essence of constitutional rights and freedoms, we should take into account its formal aspect, i.e. the form of making these restrictions, which will take the form of a regulation. Therefore three levels of state interference can be distinguished: derogation of rights and freedoms, their limitation violating their essence, and limitation meeting the requirements of art. 31 sec. 3 of the Polish Constitution – without violating their essence.

Michał Igor Ulasiewicz

Designation of the applicant in the proceedings on access to public information

Abstract

The presented study concerns the problem of designation of the applicant in the proceedings on access to public information. The access to public information is one of simplified proceedings. The informalisation of the procedure is noticeable in particularly in setting out the formal requirements of the application for access to information. This article presents selected legal regulations of Act on Access to Public Information and The Code of Administrative Procedure governing the main obligations of the applicant and the rights of the entity obliged to access. As far as the author is concerned, the paper is trying to provide answers to questions about: the existence of the obligation to designation of the applicant in the proceedings on access to public information, does this obligation arise from the provisions of general administrative procedure, and if this obligation does not exist, is the situation we are dealing with was an intentional act of the legislator or not and what are consequences of this?

Marta Ćwiklińska

On the possibility of the use of mediation in administrative proceedings concerning procedure for issuing so called environmental decision

Abstract

The purpose of the article is to respond to the thesis that in the current state of legislation, the use by the legislator in Article 96 a of the Administrative Procedure Code of an undefined concept, which is „the nature of the case allows it”, causes many problems of misinterpretation, by means of this premise, to seek arguments against the use of mediation in administrative cases. However, there are norms of administrative law that allow the use of this institution. One example of the possibility wider use of mediation in administrative proceedings are proceedings for issuing decisions on environmental conditions. In this article I answer the question of whether the legislator should change the provision on the premise of mediation.

Piotr Janiak

’Pure’ cassation decisions in administrative proceedings

Abstract

The rules of administrative procedure do not allow for the possibility of issuing 'pure’ cassation decisions, as both the Code of Administrative Procedure and tax ordinance provide for a closed catalogue of decisions of the appellate authority, among which the decisions in question are not to be found. A pure cassation decision is vitiated by a qualified defect (lack of legal basis) justifying its annulment. It does not mean that a 'pure’ cassation decision should not complete this catalogue, which may be a de lege ferenda postulate. Indeed, there are situations where none of the currently possible decisions seems appropriate and it would be desirable for the appellate authority to limit itself to overturning the first-instance decision. The situation is different with regard to complaint proceedings. As the legislator does not expressly regulate the types of order issued as a result of the examination of a complaint, the provisions on the types of orders of the appellate authority apply here accordingly, which allows for the issuance of „pure” cassation orders.

Jan Kluza

Police powers in petty offense cases to award penalty points for violating road traffic regulations and the right to go to court

Abstract

If the driver violates road traffic regulations, the perpetrator is liable for this act, which most often constitutes an offense either by way of a fine or in court. However, in addition to misdemeanor (criminal) liability, the legislator, under the Act on Vehicle Drivers, provides for a point system for individual violations of road traffic regulations and sets a limit of 24 points, beyond which the driver is obliged to undergo tests and complete a course, which in the long run may lead to deprivation of driving license. to drive vehicles and ultimately lead to misdemeanor (criminal) liability. However, the system of awarding points for violations is questionable due to the rigid definition of the number of points for each violation and the lack of an effective appeal path.

Mariusz Tomaszuk

Establishment of saints or blessed as patrons of local government units in light of Article 25(2) of the Polish Constitution

Abstract

Article 25(2) of the Constitution of the Republic of Poland ensures the worldview impartiality of public authorities, while ensuring their free expression. Among local government units, there are entities that have as their patron persons recognized as saints or blessed by the Catholic Church. Resolutions on such patrons were also passed with the active participation of the relevant church authorities, who had to express their position on the proposed patrons. As a result of the recommendations of ecclesiastical entities, the resolution-making bodies of local government units passed a resolution establishing as a patron a person recognized as a saint or blessed. A doubt arises here as to whether such a decision-making procedure regarding patrons of local government units is within the constitutional assumption of worldview impartiality. An analysis of the content of Article 25(2) of the Constitution allows one to conclude that this procedure is in compliance with constitutional norms.

Anna Wierzbica

Gloss to the resolution of the Provincial Administrative Court of Wroclaw of 2 March 2023, III SA/Wr 816/22 (partially approving)

Abstract

It cannot be assumed that the sanction for a councilor’s failure to fulfill the obligation to submit a declaration on the amount of income earned in the tax year for the previous year would be the expiration of his mandate. This sanction applies only to failure to comply with the obligation to submit a declaration of assets on time.