By Piotr Rakowski
and Robert Rybicki
Update by Piotr Rakowski
is the Counselor to the Minister in the European Policy Department, Ministry of Foreign Affairs in Warsaw. He used to work as Counselor in the Permanent Representation of the Republic of Poland to the European Union in Brussels, Belgium as well as seconded national expert (SNE) in the General Secretariat of the Council of the European Union in Brussels. He has a PhD degree (in law) of Cardinal Stefan Wyszynski University in Warsaw, Poland, a LL.M. (with Hons) degree of the Central European University in Budapest, Hungary, and a Magister Juris degree from the Nicholas Copernicus University in Toruń, Poland. He is also an academic – lecturer in the Politics and International Relations Department of the Nicholas Copernicus University in Toruń, Poland. He has been involved in Poland's negotiation process with accession to the EU in the field of Justice and Home Affairs. His main areas of interest are chosen aspects of Justice and Home Affairs (JHA) in the EU law and public international law (i.e. drugs, organized crime, terrorism and police cooperation, external aspects of JHA). He has given lectures and written a number of texts on European Union related matters.
Robert Rybicki is the Head of Justice and Home Affairs section in the Permanent Representation of the Republic of Poland to the European Union in Brussels, Belgium. He is a political analyst and has a degree in European Studies and an MA in Political Science from the Warsaw University, Poland. He has been involved in Poland's negotiation process with accession to the EU in the field of Justice and Home Affairs. His main area of research includes the Justice and Home Affairs legislation in the European Union and its implementation in Poland (as refers to Schengen acquis, lifting of border controls at EU internal borders and Schengen Information System). He has given lectures and written a number of texts on European Union related matters.
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Table of contents
Poland is a republic formed on the democratic basis. The Republic of Poland is based on the Montesquieu’s separation of powers principle. The legislative power is vested in the Parliament consisting of the lower house “Sejm” and the upper house “Senate”. The executive power is vested in the President of Poland and the Council of Ministers and the judicial power is vested in courts and tribunals.
The Republic of Poland is a unitary state. According to the administrative reform of 1998, the country is divided into 16 provinces/voivods (“województwa”). The provinces/voivods are divided into “poviats” (currently 379), and then further to the basic administrative units: communes (“gminas”) (currently 2479).
As of 1st January 2004, the Republic of Poland is a member of the European Union.
The sources of Polish law are divided into two categories: universally binding law and internal law.
According to the latest Constitution of 2 April 1997 (with some amendments afterwards), the sources of universally binding Polish law are:
· the Constitution itself as the supreme law of the land,
· the statute (“ustawa”),
· ratified international agreement and
· regulation (“rozporządzenie”).
In addition to these sources, it has to be mentioned as well that the enactments issued in the course of operation of administrative organs constitute the universally binding law in the territory of the organ that issued such enactments (local law).
In order to come into force, the statutes, regulations and enactments of local law have to be published. The statutes also regulate the conditions for promulgations of ratified international agreements and other international agreements; however, in general they are published in the same manner as statutes. The aforementioned acts are published in the Official Journal of Laws of the Republic of Poland (“Dziennik Ustaw”), and they may be found here .
In addition, there are a number of local law journals that are published in provinces’ official journals.
All other acts constitute a part of internal law. They bind only the organs of public administration and self-government, which are subordinated, to the issuing organs and organizational units.
The examples of such acts are: resolutions (“uchwała”) adopted by the Sejm, Senate and the Council of Ministers, orders (“zarządzenie”) issued by the President of the Republic of Poland, the President of the Council of Ministers and ministers, the acts of local law that are not universally binding and non-ratified international agreements.
These acts are published sometimes in the Journal of Laws of the Republic of Poland (“Dziennik Ustaw”), in most of the cases in the Official Journal of the Republic of Poland (“Monitor Polski”) which may be viewed here and in the local official journals.
The additional source of rights and obligations in Poland is the European Union law – the separate, unique legal system with its own sources, direct application and direct effect in particular. After the entry into force of the Treaty of Lisbon (1st December 2009), the sources of EU law are as follows: primary (founding, acceding and amending treaties and general legal rules) and secondary ones (regulations, directives and decisions). The international agreements where the EU and Member States are the parties may also be the source of EU law though their exact position (whether they are primary or secondary ones) is not very clear and decided by the doctrine.
The EU law, in order to be applicable and implemented in the Republic of Poland, needs to be interpreted into Polish and published in the Polish version of the Official Journal of the European Union (http://www.eur-lex.europa.eu/). The other informative source of i.e. EU law in Poland is e.g. the Center of Information and European Documentation that is run by the Sejm Chancellery.
The history of Polish constitutionalism provides a number of such acts issued in Poland. The latest one is the above-mentioned Constitution of 2 April 1997, upheld by the National Assembly i.e. the Sejm and the Senate acting together.
An English version of the current Polish Constitution may be found on the Sejm (Lower House of Parliament) page.
A statute is a basic act of the universally binding law in Poland. The statutes are adopted by the Sejm, initiated by the proposals presented by the Deputies. The right of legislative initiative also belongs to a group of at least 100,000 citizens, and also by at least 15 Members of the Senate, the President or the Council of Ministers.
Ratified international agreements possess the force of the statute. Once an agreement is published, it becomes a part of the domestic legal system and may be applied directly. Ratification is within the competence of the President of the Republic of Poland.
Some agreements require prior consent before ratification and expressed in the statute. Additionally, when the international agreement delegates to an international organization or international institution the competence of organs of State authority in relation to certain matter, the statute granting such consent is passed by a specific qualified majority of both chambers of Parliament or by a virtue of successfully ran nationwide referendum. In case where such a ratified international agreement contradicts with the statute, the agreement prevails.
It has to be emphasized that not-ratified international agreements are binding in accordance of public international law though they do not become sources of universally binding law in Poland. As it was stated, they are part of internal law only.
Regulations are issued only by those organs that are expressly stated in the Constitution. Moreover, regulations have to be issued on the basis of specific authorization contained in the statute and in the purpose to implement the statute. In case the regulation is issued without such authorization expressed in the statute – they are formally invalid.
The competent organs to issue the regulations are the President of Republic of Poland, the Council of Ministers, the National Broadcasting Council, the Chairman of the Committee who is a member of the Council of Ministers, and the minister that manages the relevant area of public administration. This catalogue is expressly regulated thus no other administrative body is entitled to issue aforementioned instruments.
The acts of local law are binding within territory where the issuing organ exercises its powers. These acts may only be issued on the basis provided in the statute and within the limits prescribed in the statute. In most of the cases, these acts are issued by local administration and addressed to the people inhabiting a particular area of competence of such organ.
The Polish legal system is based on the continental legal system (civil law tradition). The common courts in Poland are the courts of appeal, provincial courts (“okręg”) and district courts (“rejon”). They are competent to hear criminal law cases, civil law cases, family and custody law cases, labour law cases and social insurance cases.
The military courts are the military provincial courts and military unit courts. They have judiciary control within the Polish Army in criminal cases and other cases that were subscribed to them by relevant statutes.
The administrative judiciary belongs to the Supreme Administrative Court that exercises control over the performance of public administration. Such control shall also extend to judgments on the conformity to statute of resolutions of organs of local government and normative acts of territorial organs of government administration. The Court operates through 10-delegated centres of the same Court.
The Supreme Court is the highest central judicial organ in the Republic of Poland and thus the highest court of appeal. The main tasks of the Supreme Court are to administer justice in Poland, together with the common, administrative and military courts, to consider cessation as a form of extraordinary appeal and to adopt law-interpreting resolutions.
The Constitutional Tribunal is an organ of judiciary but remains as a separate body from the court system. The Tribunal is competent to decide the conformity of the issued law with the Constitution, disputes concerning competence between the organs of central administration, the conformity of the political parties’ tasks with the Constitution and to hear constitutional complaints filed by citizens. The English version of the act on Constitutional Tribunal and other related acts are provided on the Polish Constitutional Tribunal web page.
The Parliament was unicameral until 1989. In 1989, after a nationwide referendum, the law was changed and the second chamber i.e., the Senate, was again re-established (the Parliament was also bicameral before the Second World War). The Sejm and the Senate exercise the legislative power in the Republic of Poland.
The Sejm shares its legislative function with the Senate as well as exercises control over the activities of the Council of Ministers within the scope specified by the provisions of the Constitution and statutes. There are 460 Deputies of the Sejm. The constitutional term of office is 4 years although there are cases when this term may be shortened, once certain conditions are fulfilled. The Sejm is elected in universal, equal, and direct elections, conducted by secret ballot and based on proportionality method of election.
The Senate shares its legislative function with the Sejm. There are 100 Members of the Senate. The constitutional term of office is also 4 years but it is directly connected with the term of the Sejm: the dissolution of lower chamber results in termination Senate’s term of office. The Senate is elected in universal, equal, and direct elections, conducted by secret ballot and based, different from Sejm, on majority method of election.
The President of the Republic of Poland is the supreme representative of the Poland (head of state) and the guarantor of the continuity of State authority. The President is the part of the executive authority, sharing the competencies with the Council of Ministers. The President of the Republic is elected by the Nation, in universal, equal and direct elections, conducted by secret ballot.
The Polish government is called the Council of Ministers and it is chaired by the President of the Council of Ministers (commonly known as Prime Minister). The Council of Ministers is appointed by the President of the Republic of Poland. It consists of ministers who govern given areas (branches) of central administration as well as other chairmen of various Committees that were included in the Council of Ministers. It will be also worth visiting the official web site of Poland to see the main characteristics of the Polish state.
Most of the Ministries and main government agencies have relevant legal provisions in the Polish language, but there are also several acts translated into English. Additionally, all of the ministerial sites are translated into English. The particular Web sites of the currently existing ministries where the relevant legislation may be found are as follows:
It has to be noted that the number and competencies of particular ministers may change, according to the decision of the Prime Minister. The statute on the branches of government administration provides the possibility to merge or divide the competencies of ministers and consequently to limit or expand the list of ministers.
There are several central institutions, offices and agencies, which constitute a part of public governmental administration. The main tasks and objectives of these bodies are to support the government in performing specific, particular powers. They can be divided as follows:
There are number of central authorities that due to their specific or general competencies are subordinated directly to the Prime Minister. Relevant provisions concerning their competencies and even the specific statutes may be found at their respective websites:
Other Central Institutions, Offices and Agencies
The central, institutions, offices and agencies are either directly subordinated to particular ministers or have specific legal status regulated by the statutes and perform the tasks related to particular branch of administration. In most of the cases they have English versions of the websites, provide sources of relevant laws and very often translations or excerpts of laws in English:
Polish ombudsman (Commissioner for civil rights protection) is a body responsible for the protection of civil rights and liberties. The Commissioner hears the complaints from the individuals and may take up steps to annul the breaches of law, has a right of initiative to eliminate the contradictions between the adopted legal acts, sends conclusions to relevant organs in order to exercise their right of legislative initiative, influences the directions of interpretation of the law concerning civil right and liberties, and provides for the Parliament and the public opinion reports on the state of civil rights and liberties. All relevant information regarding the functioning and activities of Ombudsman can be found on the official website.
The role of Commissioner is to be a body responsible for the protection of rights of children. In particular, the Commissioner monitors the proper and harmonious development of children and undertakes activities when any information (including direct one) suggest that these tights might have been at stake. The Commissioner is competent to address all public institutions, courts, agencies and NGOs to explain, initiate actions or to request to amend the law. The Commissioner performs his duties independently whilst he is appointed by the Parliament for a fixed term of office.
· National Bank of Poland is the central bank of the State. National Bank of Poland has the exclusive right to issue money as well as to formulate and implement monetary policy. It is responsible for the value of Polish currency.
· Supreme Chamber of Control is the chief organ of state audit and controls the activity of the organs of government administration, the National Bank of Poland, State legal persons and other State organizational units regarding the legality, economic prudence, efficacy and diligence. It is subordinate to the Sejm.
· Inspector General for Personal Data Protection is the supervisory authority for the protection of personal data. It supervises ensuring the compliance of data processing with the provisions on the protection of personal data, issues administrative decisions and considers complaints with respect to the enforcement of the provisions on the protection of personal data, keeps the register of data filing systems and provides information on the registered data files, issues opinions on bills and regulations concerning personal data protection, initiates and undertakes activities to improve the protection of personal data as well as participates in the work of international organisations and institutions involved in personal data protection. Inspector is appointed by the Sejm with the consent of the Senate.
· The National Broadcasting Council safeguards the freedom of speech, the right to information as well as safeguards the public interest regarding radio broadcasting and television. The members of the National Council of Radio Broadcasting and Television shall be appointed by the Sejm, the Senate and the President of the Republic.
· The Institute of National Remembrance is a special organ that investigates and researches the documentation and archiving of the activities of communists’ repressions and it runs as well educational activities in this field. The President of the Institute is chosen and appointed by the Parliament for a fixed office and is independent in his performance, in accordance with all the laws.
· General Public Prosecutor from 1st March 2010 has been separated from the Minister of Justice (by then these two functions were combined together and performed by the minister). He is responsible for public prosecutor service in Poland whose main tasks are to combat crimes and bring the cases before the court to be heard. From now on the General Public Prosecutor is chosen and appointed by the President from the two best candidates after the open concur.
There are several professional law associations in Poland:
· Judges – link to the website of Polish Judges Association.
· Advocates (Attorneys) -- English version of the law on the advocate’s profession and the Code of the Professional Ethics are provided.
· National Notary Council – with the downloadable Public activities in Poland.
· National Chamber of Legal Advisors – all relevant information regarding the legal counseling.
· National Collector Council – some information regarding Polish execution (collector) system.
· Tax Counselors – link to the relatively new legal profession and the National Council of Tax Counselors.
The extensive list of Polish and foreign law firms may be searched through the Polish yellow pages website.
The main source of information regarding Polish membership in the European Union can be found on the webpage of the European Information Center , where, inter alia, the English versions of the Polish “position papers” may be downloaded (in relation to various areas of EU law and negotiations chapters). The general and specific information concerning Polish membership may be found at the website “Poland in the EU”.
Structure and tasks of the Permanent Representation of the Republic of Poland to the European Union can be found here .
A list of the current state of legislation process may be located at the weekly updated Sejm’s webpage, at the legislation progress site
A very comprehensive source of legal acts is Commercial Law Centre Foundation where legal acts of different areas of law are provided e.g., administrative law, commercial law, civil law and civil procedure law, tax law, etc.
Civil Law and related - On the “Polish law server”, there are various texts on the Polish legal system. There are also downloadable versions of the Polish Civil Code at the Rzeczpospolita’s legal service site (the main Polish daily newspaper).
Commercial Law and related – ABC Publishing House is a large publishing house which provides the Internet users with several regulations including the Polish Commercial Law, Banking Law, Tax Law, Labour Law, etc. The service is currently free of charge. You have to click on “Service” and then on “Zbiory Praw” to get access to the Polish versions of these laws.
Investing in Poland - Anyone who is thinking of an investment in Poland should visit the home page of Polish Agency for Foreign Investment. This is a Polish government agency whose aim is to promote foreign investment in Poland. The outlines of major acts including Act on the Acquisition of Real Estate by Foreigners and Act on Companies with Foreign Shareholdings are available there in English.
Penal Law - a Polish version of the Penal Code can be downloaded from the aforementioned Legal server of Rzeczpospolita.
Broadcasting Law - The central institution within Polish administration that is responsible for supervising the legality, free broadcasting and media is the National Broadcasting Council. The relevant legal provisions concerning the functioning of the Council as well the acts issued by the Council may be found at the English version of the National Council of Radio Broadcasting and Television site.
A comprehensive source of the EU law and its implementation into the Polish legal system as well as other related topics may be found on European Law Foundation website.
Relatively good sources of Polish law are specific commercial sites that provide extensive data on statutes and other acts that were adopted in Poland, e.g.: