The limitations of economic activity in the jurisdiction of the Constitutional Court

Submitted study is an attempt to analyze the jurisdiction of the Constitutional Court of the freedom of economic activity and its limitations. Both in literature and in the jurisdiction of the Constitutional Tribunal it is accepted that the constitutional freedom of economic activity is not absolute and must be subject to restrictions. In cases brought before the constitutional court there are cited rules in different configurations. In this text the author wants to expand the subject issue and to discuss various conditions that limit freedom of economic activity (which are: important public interest, statutory form and the requirement of the principle of proportionality).

Freedom of Economic Activity in the  Polish Constitutional Tribunal Judicature

The present publication constitutes an attempt of a sectional overview of the previous jurisdiction of the Polish Constitutional Tribunal on the subject of freedom of economic activity regulated under article 20 and article 22 of the Polish Constitution. Objective analysis begins with the description of double nature of the freedom of economic activity that is interpreted by the Tribunal as a constitutional principle (rule of law) as well as one of the fundamental rights. The presentation concerns itself also with the type of the interrelationship between these two ways of expression of the analysed freedom. Further on, the presentation concentrates on the admissibility of the limitation of the freedom of economic activity. Analysis of the jurisdiction of the Constitutional Tribunal indicates, that the legal limits of the legislator’s interference within the scope of the freedom of economic activity comes out not just as „of important public interest” under article 22 of the Polish Constitution, but also has its basis in article 31 section 3, that formulates the principle of proportionality. The article ends up with an attempt to resume the jurisdiction of the Polish Constitutional Tribunal on the subject of freedom of the economic activity as well as attempts to answer the question if, under jurisdiction of the Constitutional Tribunal, the present freedom has already taken a fully formed shape and meaning.

The One-in, One-out Principle as the Limit of Legislative Interference into the Sphere of Freedom of Economic Activity

The article deals with the issue of the limit of legislative interference in the sphere of freedom of economic activity, defined by the one-in, one-out principle, introduced at the turn of 2010 and 2011 in Great Britain, in relation to the issue of restricting the freedom of economic activity in the light of art. 22 and art. 31 s. 3 of the Constitution of the Republic of Poland of 2 April 1997.

Freedom of business and the COVID-19 pandemic. Remarks in the context of the prohibition to violate the essence of rights and freedoms laid down in Article 31(3) of the Constitution of the Republic of Poland

Due to the COVID-19 pandemic, the years 2020–21 have seen a significant number of restrictions of constitutional rights and freedoms, including those concerning the freedom of business. It is a matter of dispute if such severe limitations are in line with Article 31(3) of the Constitution of the Republic of Poland which prohibits, between others, to violate the essence of rights and freedoms. From the author’s perspective there is a strong argument that the COVID-19 legislation aimed to limit the freedom of business for epidemical reasons is in fact contrary to the principle laid down in Article 31(3) of the Constitution.

Comments on the (un)constitutionality of sanctions for violating the professional independence of a pharmacist by an entity running a pharmacy

The aim of the study is an attempt to assess the constitutionality of the provision of Art. 103 sec. 2 point 10 of the Pharmaceutical Law Act, amended by the Pharmacist Profession Act of 10 December 2020. This provision extends the scope of the sanction of withdrawal of a pharmacy authorization to cases of violation of the professional independence of a pharmacist by the entity running it (entrepreneur), as provided for in Art. 35 sec. 2 of the Pharmacist Profession Act. Critical analysis was also applied to the parliamentary discussions on the need to clarify the nature of the violation in question with the criterion of „persistence” in the context of the admissibility of using vague terms in the law. According to the thesis of the study, the resignation from this criterion seriously questions the compliance of Art. 103 paragraph 2 point 10 Pharmaceutical Law Act in connection with Art. 35 sec. 2 Pharmacist Profession Act with the principle of specificity of law, the principle citizens’ trust in the state and the law it enacts, as well as the principle of legal certainty and legal security, and the principle of proportionality of interference in the sphere of freedom of economic activity and property right.

The Constitutionality of the Practice of Applying and Interpreting Art. 99 sec. 3 and 3a of the Pharmaceutical Law – Evolution of the Position of Administrative Courts

The study analyzes the jurisprudence of administrative courts regarding the scope of application of Art. 99 sec. 3 and 3a of the Pharmaceutical Law. The application of an extensive interpretation of this provision was deemed unconstitutional. Such an interpretation assumes that it is applicable not only in the procedure for granting a permit to operate a pharmacy, but also in the procedure for its amendment and withdrawal. The authors express the conviction that it is necessary to stabilize the position of the courts in this matter and to adopt the view expressed in the latest judgments of the Supreme Administrative Court that Art. 99 sec. 3 and 3a of the Pharmaceutical Law Act is a clear and coherent provision of a purely competence nature. Deriving from this provision the obligations of an entity running a pharmacy that have not been expressed by the legislator violates fundamental constitutional principles and values.