A Few Axiological Remarks Of Environmental Protection In The Constitution In The Republic Of Poland

A Few Axiological Remarks Of Environmental Protection In The Constitution In The Republic Of Poland Presented by: Prof. Dr. Majchrzak Date: 29 August 2024 Introduction - 1. Integrity of norms and values in the legal system - 2. Legal values - certain positive states, things, phenomena, objects or events (past, present or future) which the legislator regards as valuable (precious) and therefore requiring protection by means of adequate legal norms - 3. The Constitution (the Fundamental Law) – particular axiological importance Environmental Values In The Constitution - Provisions referring to the notion 'environment': Article 5, 31(3), 68(4), 74 and 86 of the Fundamental Law; lack of definition on this ground - The Constitutional Court (CC) identifies value, which IT calls: 'natural environment' (Judgement SK 6/12), 'healthy environment' (Judgement Kp 2/09) or even 'environmental protection' (Judgement K 23/05) - Definition of the constitutional notion 'environment' - cf. Judgement Kp 2/09: • 'all natural elements, including those transformed as a result of human activity, and in particular the earth's surface, minerals, waters, air, landscape, climate and other elements of biological diversity, as well as interactions between those elements' (Article 3 point 39 of the Environmental Protection Law) - Is the 'environment' a value? / the 'healthy environment' is a value - Art. 74(1) of the Constitution: 'Public authorities shall pursue policies ensuring the ecological security of current and future generations' - Definition of the CC: 'bringing the environment to a condition allowing safe human existence in such an environment and using such an environment to enable human development' (Judgements: K 23/05; K 17/12) - 'Ecological security' is a value ('ecologically safe' environment) - Art. 74(3) of the Constitution: 'Everyone shall have the right to be informed of the quality of the environment and its protection' - Value: 'broad access to the information on the environment and its protection' - Subjective right of the individual Interactions Of Constitutional Values - 1. 'complement' - 2. 'collide' - 3. 'take up a neutral position' with respect to other values - ***Most 'sensitive' cases = the implementation of one value is achieved 'at the cost' of the realization of another value (e.g. freedom of economic activity - healthy environment; broad access to environmental information - security of the State) - *Collision requires an application of 'the mechanism of weighing up the values' (at the law-making and law-application stage) - there are 3. of them in the Constitution (in particular they refer to interactions of environmental values) Art. 31(3) of the Constitution 'proportionality principle' - Art. 31(3): 'Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic state for the protection of its security or public order, or to protect the environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights' - - The CC: test of: • 1) suitability; • 2) necessity; • 3) proportionality in the strict sense of the term Three important remarks • Art. 31(3):  1) refers also to public authorities applying the law (the CC);  2) 'to protect the environment' - what is a value here?;  3) refers only to some values - in particular: 'broad accessibility to environmental information' Art. 2 of the Constitution 'proportionality principle' - Art. 2: 'The Republic of Poland shall be a democratic state ruled by law and implementing the principles of social justice' - Source of the 'proportionality principle' and the test of suitability, necessity and proportionality sensu stricto, but concerning the limitations of values underpinning the constitutional rights of various public entities (cf. the CC Judgement P 24/12) - e.g. collision: 'independence of local self-government' (e.g. financial) - 'optimal condition of the environment' Art. 5 of the Constitution 'sustainable development principle' - Art. 5: 'The Republic of Poland shall safeguard the independence and integrity of its territory and ensure the freedoms and rights of persons and citizens, the security of the citizens, safeguard the national heritage and shall ensure the protection of the environment pursuant to the principle of sustainable development' - Definition - cf. the CC Judgement Kp 2/09 (Art. 3 point 50 EPL); interference with the environment should cause the least possible harm and the social benefits should be proportionate and socially acceptable relative to the damage caused (the CC) - **Extent of the principle: 'The idea of sustainable development includes the need to take into account - different constitutional values and to balance them appropriately (the CC Judgements: K 23/05, K 17/12, similarly: K 20/14); one of the bases for introducing a mechanism ensuring protection for financially weaker local communities (judgements K 14/11; K 13/11; K 18/17- these decisions did not refer to the environmental issues) - The CC: independent (autonomous) character of the principle, including 'the mechanism of weighing up values' Sustainable Development Principle' Normative Meaning - groups of values encoded in this principle: • 1. development (in social or economic dimension) and • 2. values relating to the adequate quality of the environment or other values conflicted with the 'pro-development' value (e.g. cultural goods, appropriate condition of public finances) (it is not necessary to interfere in the condition of the environment to apply the principle) - guidelines for weighing values: integrating them, guaranteeing the possibility of satisfying the needs of present and future generations (as a consequence of: the principles of solidarity and social justice (intra and inter-generational)), limiting values according to the directives of: suitability, necessity and proportionality sensu stricto Conclusions - The Constitution quite clearly indicates the basic catalogue of values directly related to environmental protection - 'healthy environment', 'ecological security' and 'broad access to environmental information' - It is rather difficult to determine the content of the value underpinning the constitutional obligation to protect the environment - 'Environmental values' interact with each other and with other constitutional values, including a conflict of values - The resolution of this conflict requires application of 'the mechanism of weighing up values', which rests on the principles of proportionality and sustainable development