O FORMACH KONTROLI KONSTYTUCYJNOŚCI PRAWA PRZEZ SĄDY
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Date
2008
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Wydział Prawa i Administracji UAM
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COURT CONTROL OF THE CONSTITUTIONALITY OF LAWS
Abstract
Decisions of the Constitutional Court (Trybunał Konstytucyjny), the Supreme Court and the
Supreme Administrative Court have demarcated the admissible limits of control that courts may
exercise over the constitutionality of law. Those limits are also guarantees of the integrity of
competences of the Constitutional Court and a good example of different forms in which the
Constitution may be directly applied.
The most extreme views i.e. that under no circumstances is a court authorised to control (or
supervise) the unconstitutionality of a given regulation/provision, or that it may do so in respect of
each individual case, have been practically eliminated. Moreover, adoption of the latter view would
have resulted in a refusal to implement and enforce e.g. a statutory provision, thus enabling direct
application o f the Constitution.
Taking as an example the jurisdiction of the Supreme Administrative Court, those admissible
limits in which the constitutionality of laws may be controlled (and therefore the Constitution directly
applied), being a peculiar compromise between the two extreme positions described above would be as
follows: 1) regarding the constitutionality of a statute, the rule is that in case of doubt, a court is
obliged to refer the matter to the Constitutional Court, unless: a) it is a case o f so-called secondary
unconstitutionality of the provision b) the provision is clearly and explicitly unconstitutional;
2) regarding the constitutionality o f fundamental acts (ordinances), the long established opinion
has been that courts may review their compliance with the Constitution in the course o f the matter
under revision, with effect only for that particular matter.
It is obvious that an alternative for each court shall always be a referral of the matter to the
Constitutional Court rather than formulating an independent opinion on the unconstitutionality of an
ordinance. This decision, however, shall always be made by the court in question.
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Ruch Prawniczy, Ekonomiczny i Socjologiczny 70, 2008, z. 2, s. 9-21