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Restrictions on business activity under COVID-19 rules in Poland

In recent months, many administrative court rulings have been issued which undermine the grounds for legal actions against businesses operating in breach of COVID-19 rules adopted by the government. These rulings, such as a judgment of the Voivodship Administrative Court in Kraków of 12 April, 2021, III SA/Kr 1307/20, usually state that there were no proper grounds in acts passed by the Polish parliament for the main regulation adopted by the Polish government to battle COVID-19.

The Polish normative act system is based on a hierarchical structure. The principal act is the Constitution, which grants the Parliament the right to adopt legal acts, while the Polish government or its ministers may only adopt regulations according to the powers granted in those acts.

The main issue raised by Polish courts is that the Regulation adopted by the Council of Ministers establishing certain restrictions, orders and bans related to the state of epidemic was not adopted according to powers granted in the Act on prevention and combating of infections and infectious diseases among humans, or the Constitution. Under the Constitution, a government regulation is only effective if:

  • an act passed by Parliament provides for an explicit, and not implicit, power to adopt regulations,
  • the scope of any regulation adopted does not exceed the powers granted in the act, and the regulation is adopted only for the purpose of implementing the act;
  • the regulation does not breach the Constitution or legal acts.

In a judgment of 12 April, 2021, the Voivodship Administrative Court in Kraków stated that a ban preventing restaurants and bars being open to the public, provided for in a Regulation adopted by the Council of Ministers, was unconstitutional. Consequently, a fine imposed on a Polish business that opened a restaurant for business in southern Poland has been found invalid. Other court rulings in Poland repeatedly followed the same reasoning, opening the possibility that the main system of legal provisions used by the government to fight COVID-19 in Poland is being dismantled. The same reasoning applies to the bans imposed on shopping malls, DIY stores, fitness clubs, cosmetic and hair salons, etc. Also, even if such businesses closed voluntarily for the period set out in the Regulation and no fine was imposed on them, business proprietors could now start to claim damages from the government based on the unconstitutional nature of COVID-19 rules in Poland.