At the end of April 2023, the city of Wrocław concluded a public consultation on multi-option recommendations for the introduction of the alleged clean transport zone. The key decision from the point of view of the full communication strategy of the Wrocław agglomeration, and at the same time the proposal of revolutionary and unpardoned treatment of fundamental rights and civilian liberties, is forged beyond the interest of the large majority of journalists and lawyers. In this text we will examine the formal and substantive legality of the proposed regulations. It won't be soon, due to the fact that there's quite a few controversy. Controversy at both local government, law and constitutional level.
Wrocław officials and PSPA, which is who pushes restrictions on drivers over Odra?
The Wrocław authorities want to convince residents to support the concept of a alleged clean transport region in part of the city area, concentrated in central districts. In general, the thought behind specified solutions boils down to the belief that, by eliminating parts of combustion vehicles from road traffic in built-up areas, air quality can be improved permanently. In Wrocław, specified intentions, which so far have not been concreteised in the form of any draft resolution submitted to the council of the municipality, have so far been communicated only utilizing the paper entitled “The region of clean transport in Wrocław. study on exhaust emanation tests of vehicles and recommendations on the creation of SCT”, prepared by the Polish alternate Fuel Association. Wrocław Magistrate was a chief and most likely besides a payer in the implementation of this project. Many conclusions and postulates from this survey were then placed in the city's Wroclaw.pl site, signing themselves under them.
It was the study of the Polish alternate Fuels Association that made the starting point for a public consultation, in which the city expected the views of residents and non-governmental organisations regarding the 3 variants of the region proposed. These opinions were collected between 30 March and 30 April 2023. Each variant shall take into account the circumstantial area to be regulated and the production dates understood as the thresholds for cars intended to be allowed to drive in or out of specified a region (separate production dates for petrol-powered cars and separate for diesel cars).
It is worth noting that the investigation and study contractor, i.e. the said association (using the abbreviation PSPA), is referred to as “the largest manufacture organization, creating the marketplace for electromobility and hydrogen technologies in Poland and CEE region” (quote behind the authoritative website pspa.com.pl). This makes it possible to recognise this entity as a lobbying organization alternatively than an expert, whose ideologically-based interests may conflict with the interests of a large part of the inhabitants of Wrocław, especially those straight affected by the government provided for by the ‘clean transport zone’.
It is worth looking at the arguments the Wrocław authorities usage to justify the alleged request for specified a zone. The first is simply a survey of the opinion that investigation Collective carried out in mid-2022 (the title of the study: ‘Clean Transport Zones. Do we want to breathe fresh air in cities?) commissioned by PR Profeina, thanks to the lobbying money of Clear Air Fund. The second is an extended organization with an independent office in London. Among its activities is cooperation with, among others, the Global economical Forum and influence on change and the improvement of air contamination policies. It besides supports global climate objectives, and among its founders mentions among others the IKEA Foundation, Bloomberg Philanthropies and the OAK Foundation.
However, the reliability of this survey raises serious doubts for respective reasons. First, to examine the opinion of the inhabitants of 4 large cities (Warsaw, Kraków, Łódź, Wrocław) 120 surveyed for each city were collected., while for questions of a general nature the investigation example was 2,200 respondents. Secondly, doubts arise from the bias and persuasion of the investigation title. For who would not want to breathe fresh air in the city? In writing on this issue, you can find many recipients Consciously, it is unobvious to the conclusion that sharpening for the movement of cars can improve the air condition and thus change their attitude towards a "clean transport zone" to a more affirmative.
Thirdly, it should be pointed out that the inhabitants of all 4 cities were warned before the question of support for the "zone" was answered, according to which "the clean transport region means limiting the entry into the selected area of the city (most frequently the centre) for cars with the largest exhaust emissions, e.g. a twelve years old diesel". However, in Kraków, the resolution on the “zone of clean transport” covered its full city area, not its chosen area, which radically changes the optics of specified a solution, and at the same time is at odds with the proposition resulting from information previously provided to the respondents.
Despite these doubts, the July 2022 investigation Collective survey opened a list of arguments utilized by the Wrocław authorities to justify the request for a "clean transport zone".
The Polish National Recovery and Immunity Plan, which was developed by the Polish authorities under force from politicians from Brussels in 2021 and which was accepted by the European Commission, was the next and final argument. Wrocław officials say that according to KPO, ‘clean transport zones’ are to be mandatory in all cities above 100,000 inhabitants, where the concentration of harmful substances (nitrous dioxide content in the air) is exceeded in relation to EU thresholds. However, is the claim about the impending work to introduce "clean transport zones" in any city justified in normative acts?
What is included in the Polish National Recovery Plan for "Clean Transport Zone"?
The full National Reconstruction Plan was divided into six large parts, called components, and within each of them – into challenges, objectives, reforms, etc. In general, the implementation of the KPO is to undertake a number of reforms and investments that “will let not only to overcome the pandemic crisis but besides to accelerate, over the next fewer years during the implementation of the KPO, the transformation of the Polish and European economy and to increase the standard of surviving of Poles”. Where, in this gigantic catch-up of words (KPO in the main paper of 519 pages, does it contain no communications or legal standards, but only political declarations, announcements and general plans) can the "zones of clean transport" be found? In the first part (p. 35), reforms to respond to Challenge 7 on the state of infrastructure, structure and safety of transport for a competitive, green economy and smart mobility are announced as "new statutory solutions" to force the aforementioned work for "zones" in any cities above 100,000 inhabitants. There is so no regulation or legal norm, but there is simply a political declaration.
A fragmentary mention of "clean transport zones" is found in Component B, which is intended to cover "green energy and reducing energy intensity". As part of the legal improvement to accomplish the nonsubjective of "improvement of the energy efficiency of the economy", a revision of a number of statutory and sub-statutory acts was mentioned, including the updating of the National Air Protection Programme already in 2021 (p. 314). This update, which is simply a paper of the Minister of Climate and Environment, issued in the case of "when exceeding the limit or mark levels of substances in the air occurs in a crucial area of the country and the measures taken by local authorities do not affect the simplification of emissions of pollutants into the air" (Article 91c(1) of the Act of 27 April 2001). Environmental protection law), contains references to the Electromobility and alternate Fuels Act, including the provisions governing the possibilities and conditions for the establishment of ‘clean transport zones’ by municipalities.
The updated National Air Protection Programme besides contains non-binding guidelines on the request for a further amendment of the said Electromobility Act to include an work for municipalities to make specified a region where the air quality has shown excess nitrogen dioxide. It shall not specify what types of overruns are to be and what levels are to be set for specified measurement. It besides does not propose that a one-time measurement reading is adequate to indicate that a certain acceptable level of CO2 is exceeded, or that a certain regularity of specified occurrences is required (e.g. by a certain percent of days with an increased level of indicator during the winter period). These guidelines only supply for the participation of the Chief Environmental Protection Inspectorate in the measurement of nitrogen dioxide.
This does not prevent the Ministry of Climate in setting a legislative nonsubjective in a time-limit of 2025, consisting in "the introduction of additional requirements for clean transport zones, which will be subject to the work of cities above 100 000 inhabitants, where, as a consequence of the assessment of the air quality carried out by GIŚ, the limits for NO2 have been established and the anticipation of creating specified zones in another municipalities that decide to implement specified action, where the municipal council will decide by amending the law, which will besides include the anticipation of gradually implementing the restrictions on transport". The question arises here, why is it that the minister is to decide on specified a fundamental issue for individual transport, affecting 37 Polish cities over 100,000 inhabitants, in which a full of about 10.8 million people live, by means of a legislative act lower than the bill? specified a regulation fundamentally changes the current provisions of Articles 39-40 of the Electromobility Act, by replacing competence with a legal obligation, which should most likely take the form of a commissioned task with respect to constitutional relations on the central power line. It should be remembered that Article 166(2) of the Constitution of the Republic of Poland for tasks justified by the needs of the state, which is transferred to local government entities, provides for the form of a bill. Therefore, no minister, without a constitutional delict, may delegate to the authorities of local government a task which is not provided for in an act previously passed by Parliament and signed by the president of the Republic of Poland.
For the second time, the category “clean transport zone” appears in the alleged E component of the National Recovery Plan. Ibid., advice No. CSR 2020 sets out as the main nonsubjective "the improvement of a sustainable, safe and resilient transport strategy that provides adequate service to the needs of the economy and society, by expanding transport accessibility and combating transport exclusion, including through sustainable and digital solutions to minimise negative environmental impacts". For specified a alternatively general and targeted objective, 2 objectives, defined as ‘detailed’, although the level of their generality besides allows them to be considered as guidelines for future state policies in this area at most. The E1 nonsubjective is "to increase the share of zero and low-carbon transport and to combat and reduce the negative environmental impact of transport". This description does not in any way prejudge the choice of tools and legal instruments to be utilized for its implementation. Zero and low-carbon transport can be developed in various ways, including through the improvement of public transport. And an excellent part of the further message in this part of the CPO, which provides clarification and justification for this purpose, indicates that collective transport is the main focus of interest to the creators of this strategy.
The only mention to the possible contribution of the alleged clean transport zones to this nonsubjective is to "the request to make clean transport zones" alongside respective another proposals, which are intended to respond to the alleged increase in "the negative impact of individual transport on quality of life". The ‘zones’ themselves are not a recipe for anything, as the request to strengthen collective transport and to replace collective transport rolling stock with low or zero-emissions is besides mentioned.
It is worth noting that in this rhetoric the concept of "quality of life" is limited and deformed, referring only to the environmental impact. In the meantime, the quality of human life is simply a word that is much larger and inextricably connected with man as a key component of the environment, not its surroundings. Therefore, if, apart from the technological and formal studies on the emanation of vehicles with combustion engines in the largest cities of Poland, we compare the different transport modes in large cities in terms of how advanced the quality of life they supply residents, we will find that everywhere outside the city centre, the highest standard of living, including comfort, economical efficiency, time savings and mobility, provides individual transport: cars, motorcycles, bicycles, scooters. In areas with little intensive buildings, specified as suburbs, mixed areas within agglomeration boundaries, or tiny and medium-sized towns, individual transport is fundamentally uncompetitive.
The above-mentioned EKPO Component, entitled ‘Green, intelligent mobility’, besides includes the circumstantial nonsubjective of E2 as defined by ‘increased transport accessibility, safety and digital solutions’. The improvement and justification of this nonsubjective concerns all another matter, located around further digitisation of traffic control systems and improvement of transport infrastructure.
To sum up the erstwhile considerations, it should be concluded that in the paper constituting the Polish KPO, the issue of the mandatoryity of the ‘clean transport zones’ is not explicitly determined.. The announcement of legislative changes to force the application of specified restrictions in the period up to 2025 is simply a political declaration by the current government and is not legally binding on the parliament, nor can it constitute a formal commitment to the future government to be elected after the parliamentary elections in the fall of 2023. The only certainty cited by the strategy's authors is the already existing regulation in the current Electromobility and alternate Fuels Act, which makes the "clean transport zones" optional instruments and transfers competence to municipal councils. Thus, the claim of the alleged request to introduce specified zones in large cities is false.
Non-compliance of Articles 39-40 of the Electromobility and alternate Fuels Act with the Constitution of Poland
The full communicative of supporters of the “clean transport zone” in Poland within the legal basis is embedded in the Act of 11 January 2018 on Electromobility and alternate Fuels. This Act is an act referred to by officials in cities specified as Wrocław or Kraków erstwhile formulating arguments in favour of the municipality's ability to introduce a "zone". It is this law that the Polish National Reconstruction Plan, as well as air protection programmes, passed and revised, whether at ministerial level or at regional level, refers to many times. This law, like any another normative act adopted, signed and promoted in the Polish legal order, enjoys a presumption of compliance with the Constitution of the Republic of Poland, at least until it is partially or wholly assessed by the Constitutional Tribunal. As specified a constitutional examination has not taken place until this text has been created, it is worth looking at the provisions of the Act, which supply for the anticipation for municipalities to make a "clean transport zone".
As we know, the essence of the property right is the ability to dispose of the movable or immovable property to which the title is held. In the literature of the subject, the plan of the property law is most frequently included in the triad of basic rights of the owner: the usage of the thing, possession of it and disposition of it (Dadanska Warszawa 2020). As Bronisław Ziemian notes on the "Civil Law" (ed. 3, Poznań 2003), the issue of having in isolation from utilizing a given subject cannot be considered. Thus, the right to ownership of a vehicle is inseparably linked to the legal capacity to usage it, the prescribed approval and registration provisions for the vehicle and the request to have a driving licence vis-à-vis its holder.
There is simply a harmonised strategy in the European Union for the approval of motor vehicles which, from the level of regulations, assigns certain competences in this respect to national authorities. In Poland, specified an authority allowing the vehicle to usage public roads is the manager of Transport method Supervision. That authority shall decide on the entry into service of certain models of cars and shall issue approval certificates for the gas installations in cars and the designation of approval of vehicles from another associate States. Obtaining approval means that a peculiar vehicle, in accordance with the provisions of the Traffic Law Act (Journal of Laws of the Republic of Poland 1997, No 98, item 602) can be utilized on public roads, after registration in the applicable old age.
Introduced into the Polish legal order in 2018 and subsequently amended respective times in the next parliamentary word The Electromobility and alternate Fuels Act, as it were, along with the full strategy of procedures related to road transport, introduces fresh solutions which in a vague way let the anticipation of applying the property rights restrictions contained in Article 64 of the Polish Constitution. These solutions, grouped in the provisions of Articles 39-40, supply for the anticipation of establishing in the municipality a alleged clean transport zone, through the applicable resolution of the legislative body of the same local government unit. Pointing out in Article 39(1) that the roads the municipality administers are referred to, the legislature confirms, in effect, that the provisions governing the anticipation of establishing specified a region are to cover the same kind of road infrastructure as those relating to the approval and registration of motor vehicles. Similarly, Article 39(1) of the abovementioned provision, which refers to the prohibition of entry into specified a region of ‘car vehicles’ within the meaning of Article 2(33) of the Law of 20 June 1997. – Road traffic law" – another than those indicated in the exemption catalogue described in the Act – proves that the legislator allowed a local law act to be issued, which would, in an unprecise manner, restrict constitutional property rights by preventing vehicles from travelling in a catalogue of exemptions on the roads of the municipality.
It is hard to export from Article 39(1) of that law itself any regulation expressly and precisely limiting property rights. Although the territorial scope of specified a regulation is based on the expected word ‘in the municipality’, the full provision must be interpreted as an optional solution. The legislator, utilizing the word ‘can be established’ in Article 39(1) of the Act, clearly had the competence to establish the Clean Transport region as a legislative body of the municipality. The analysis of the following rules, contained in paragraphs 3, 4, 5, 7 of that Article, as well as in Article 40(2), leads to the conclusion that the competence of the municipal council has been to find almost entirely the scope of the regulation of constitutional property rights, whether it be by regulating the actual area of application or by regulating the charges for movement, the way in which movement is organised within the zone, the final catalogue of entities exempt from respecting the rules of the zone, or yet the duration of specified provisions. Thus, a local government-level authority was given the power to arbitrarily restrict ownership and to find the scope of specified a regulation by means of a local law act. This competence by virtue of the abovementioned Articles 39 and 40 of the Electromobility and alternate Fuels Act was granted to him – in a way that was grossly contrary to the systemic way for formulating the property rights restrictions provided for in Article 64(3) of the Constitution of the Republic of Poland and at the same time not within the scope of the permissible restrictions referred to in Article 31(3) of the Basic Act.
Meanwhile, for at least 25 years it has been known that the rule of exclusivity of the Act applies in the Polish legal order. According to Sylwia Jarosz-Żukowska in the article "Constitutional conditions of admissibility of property rights restrictions" (Warsaw 2003), the case law of the Constitutional Court is comparatively precise erstwhile it comes to regulations of a repressive nature. It besides cites the judgement of the Constitutional Tribunal of 19 May 1998 in Case U.5/97, in which the judges stressed that the reservation of the exclusive statutory standard for the normalisation of restrictions in the area of freedom and human rights should be taken literally, namely, ‘with the exclusion of the anticipation of... transferring legislative powers to another body (...)’.
In turn, as he argues in the explanatory memorandum to the judgement of 11 May 1999. (Sygn. act P 9/98) the same Constitutional Court, "any entry into this substance (statutory – e.g.) by the executive authority in the act of the legislature leads to an unacceptable breach of the hierarchy of sources of law. A breach of the hierarchy of sources of law can besides happen erstwhile the legislature formulates a delegation in the law to regulate any legal problem in a legislative act, even though it is subject to statutory exclusivity." The same ruling besides concludes that "the full sphere of property rights restrictions belongs to the alleged statutory matter, and so the legislature of the legislative authority in this respect cannot delegate to another bodies." This is an explicit and definitive conclusion that, as the Court further points out, it is not affected by the circumstances of the establishment of specified a delegation and the situation of the entities concerned, in the case of the judgement in question, there was a conflict of ownership between the owners of neighbouring properties.
In this context, it is besides worth noting the statements made in the explanatory memorandum to 2 another Court rulings. In its explanatory memorandum to the judgement of 25 November 2003 in Case K 37/02, the Constitutional Court stated that ‘it is possible... to formulate legal standards that give emergence to uncertainty as to the content of the rights or obligations of the addressees and at the same time make unfair freedom or even Interpretative freedom of the enforcement authorities’. The judges referred to the Constitutional Court ruling on 24 February 2003 in Case K 28/02. It considers that ‘the legislator cannot (...) by vague wording of the provisions leave the authorities to exercise excessive freedom in determining their subject substance and scope’. It is so appropriate to measure that there is simply a very advanced likelihood of both a systemic delicacy in the form of a transfer of articles 39-40 Act on Electromobility and alternate Fuels of Competence to Limit Constitutional Property Rights to Local Government-level Authorities, as well as Conflicts with the scope of permitted property rights restrictions contained in Article 31(3) of the Constitution and the full existing jurisprudence line of the Constitutional Court in this substance by leaving excessive freedom to the municipal authority to exercise the provisions of Articles 39 to 40 of the Act.
Potential non-compliance of the regulations proposed by PSPA with the Polish Constitution
At the outset of this part of the mention is Article 32(1) of the Constitution of Poland, which establishes equality of all before the law. The second conviction of Article 32(1) states that ‘all have the right to equal treatment by public authorities.’ The Constitution besides ensures that all citizens are not discriminated against in political, social or economical life for any reason (Article 32(2)). Against this background, we should look at recommendations of the Polish alternate Fuel Association from this report, which the Wrocław authorities presented for public consultation.
In the “Managing Strategy” section, we find a request to include a “clean transport zone” in an crucial part of the city – so that it actually affects the decisions of drivers to abandon their own car as a means of transport. This is what the euphemistically formulated "the choice of means of transport" comes to. In no way do "clean transport zones" exert force on collective transport, cycling, etc. The only means of transport to find a circumstantial stigma in the proposed assumptions is simply a private combustion engine vehicle that does not meet circumstantial mark emanation standards. Let us remind that in the "ambitious" variant of the recommendations contained in the PSPA study from 2028 it is planned to include restrictions on petrol-powered vehicles manufactured before 2010 and diesel engines before 2015. This means that 14-year-old vehicles, whose value on the secondary marketplace presently ranges from PLN 10 to even PLN tens of thousands (and for respective years the second-hand car marketplace has been more expensive, which means that in 5 years it can be a much higher price range). For the year 2032 the request to have vehicles with a petrol engine not older than the year 2015 is being designed, and for vehicles with a diesel engine the threshold is to be set... Euro7 standard. Let us add a standard which has not yet been adopted in European Union government and in the associate States.
In the next part of the report, a advice for the region area is developed in 3 options of the proposed boundaries, which successively cover: 0.58%, 5.88% and 15.56% of the city's area. peculiar uncertainty about the violation of fundamental constitutional rights and freedoms is raised by recommendations of the second and 3rd options, which would include 22.6% and 44.3% of the inhabitants of Wrocław, respectively. A map of both options of borders indicates that it would be virtually impossible to decision a vehicle excluded from the region on the north-south axis without utilizing an ‘old’, an unclosed bypass or a motorway bypass.
The first conclusion that follows the analysis of the above-mentioned proposal is to contact the proposed regulations in a disproportionate way on persons with lower property position who cannot afford to buy a fresh vehicle gathering the requirements of the resolution or the Electromobility Act. This could constitute a direct violation of Article 52(1) of the Constitution of the Republic of Poland, according to which "everyone is guaranteed freedom of movement in the territory of the Republic of Poland and the choice of residence and residence". The right of free movement would thus be restricted not only to residents of the city of Wrocław, but besides to another persons, including those moving to the city centre for commercial purposes and residing on its outskirts or at all outside Wrocław.
The ‘Clean Transport Zone’, in peculiar in the second and 3rd options proposed, restricts, in particular, ownership rights, as has already been demonstrated in relation to the Electromobility Act and its delegation of specified powers to municipal councils. Preventing owners from utilizing previously approved and registered cars from moving them in the 3rd largest area and population city in Poland strikes straight the guarantees of Article 64 of the Polish Constitution. The property right is the basis of Poland's economical system, which is included in the Constitution as a social marketplace economy, and is thus subject to legal protection. The civilian Code in Article 140 states, in turn, that within the limits laid down by the laws and principles of social coexistence, the owner may, excluding another persons, usage things according to the socio-economic intent of his law, in peculiar be able to collect benefits and another income from things. The essence of property rights is the anticipation of utilizing things, which in turn is importantly limited by the proposed regulations. The creation of labelled zones that hinder the entry of certain vehicles is so contrary to the law, including the requirements set out in Article 31(3) of the Constitution of the Republic of Poland, which provides that restrictions on the exercise of constitutional freedoms and rights may only be laid down in the Act and only if they are essential in a democratic state for its safety or public order, or for the protection of the environment, wellness and public morality, or for the freedom and rights of another persons.
However, according to the constitutional provision cited above, "these restrictions must not affect the essence of freedom and rights". The definition of this second word is vain to look for in the basic law, but there is in the doctrine of constitutional law a controversial proposal to clarify what the essence of freedom and rights is. Jerzy Kuciński in the manual entitled “Constitutional State strategy of the Republic of Poland” (Warsaw 2003) cited the view that the prohibition of violating the essence of rights and freedoms should be considered as a prohibition of interference in its constitutional elements specified as the core or nucleus. Violation of these elements “will in any peculiar case mean the complete elimination of a given freedom or law. Restrictions can so only apply to certain additional elements (so-called "coating") of circumstantial freedom or lawIt’s okay. ”
The proposals from the study aimed at covering the “zone” which is crucial for the motor transport of the districts and settlements of Wrocław, should they be passed by a decision of the municipal council, will fundamentally deprive the usage of the substance of the property of a certain group of persons – not only the inhabitants of Wrocław, but besides another people, arriving in the area of “zone”. For hundreds of thousands of people, a group of citizens whose vehicles will be excluded from moving in the "clean transport zone", This means a violation of the essence of their constitutional provisions of ownership.
The constitutional freedom of movement referred to in Article 52, together with the freedom to choose a place of residence and residence, is part of a catalogue of rights and freedoms, dedicated not only in the Polish fundamental law, but besides in global treaties specified as the Universal Declaration of Human Rights, or the global Pact of civilian and Political Rights. As the Polish Constitutional Court stated (judgment K 34/99 of 28 June 2000), this freedom means that "the creation and maintenance of a strategy of public roads on which everyone can decision in a manner free of obstruction" is necessary. In his technological work entitled Freedom of Movement, Justyna Węgrzyn notes that the case law of the Court besides indicates how this freedom should be perceived. According to her, this constitutional rule straight concerns the right to travel within the territory of the Polish State from point A to point B, through various means of communication. He quotes another judgement of the Polish Constitutional Court – No K21/05 of 2006 – in which the judges ruled: “Constitutional freedom of movement is so a peculiar manifestation of both individual freedom and the right to decide on their individual life, it besides exemplifies the general freedom of the individual [...]
The warrant of freedom of movement is to prohibit the legislator from introducing any powers of public authorities concerning restrictions on that freedom or the creation, known from the practice of non-democratic regimes, closed cities [...] This freedom [...] is common in the sense that it constitutes a fundamental human right recognised in the mostly applicable acts of global law.’ The explanation cited in the judgments of the Constitutional Court requires the legislator to treat the competences of Article 52(3) of the Constitution in a circumstantial and cautious manner. This constitutional provision cannot so be regarded as a competence for public authorities to freely, arbitrarily restrict freedom of movement, while only complying with statutory formal requirements. In another words, specified a provision – especially as it is complemented by a catalogue of exceptions in Article 31(3) of the Constitution of the Republic of Poland – cannot be regarded as a body delegation for the creation of rules, but at most as an authorisation for strict and legitimate exceptions to the regulation resulting from the warrant of freedom of movement. As the ultimate Court pointed out in its judgement of 16 March 2021 (Event II KK 74/21), the conditions referred to in Article 31(3) of the Constitution of Poland are cumulative. This means that there must be at the same time a formal justification (expressed in the form of a statutory regulation on the freedoms in question), material (establishment of only specified restrictions as do not affect the essence of the liberty or the subject-matter law) and setting limits to specified a restriction, i.e. only if specified regulation is essential in a democratic state for its safety or public order, or for the protection of the environment, health, public morality or the freedom and rights of others. In the meantime, the shape, scope and nature of the "clean transport zone" as recommended by the PSPA study for the city of Wrocław indicate that the local government proposes in fact to the inhabitants to break the abovementioned constitutional rights and freedoms, which belong to them by law.
By imposing a ban on traffic throughout the city for vehicles which do not meet arbitrary exhaust emanation standards, not only the fact of prior entry into service, including the obtaining of all essential approvals and approvals by specified vehicles, but besides the substance of constitutional freedom of movement and the right of ownership expressed in Article 64 of the Constitution of the Republic of Poland, is clearly being violated on a massive scale. If respective 100 1000 people residing in the proposed region areas (in the second and 3rd variants) and respective 100 1000 people residing outside Wrocław and regularly utilizing public roads in the area of the city, which have previously acquired authorised vehicles, lose the anticipation of any usage of these vehicles for transport purposes, this constitutes a violation of their right to property as a subject right and a gross regulation of their freedom of movement. The second may proceed to implement, but in a way that makes them dependent on public transport, or in a way that exposes them to disproportionately advanced costs, by utilizing private transport services. Even if it can be utilized for transit purposes by crossing a much larger and more costly distance through 1 of the bypasses, specified usage will not be possible in the event of an effort to enter the centre. The object of the property right, which is simply a car (notabene most frequently acquired from the property of a person), then loses its property due to the fact that it cannot be utilized for the intent of movement, nor is it accompanied by any compensation. In turn, collective transport cannot be regarded as a form of compensation, as its transport properties, additional costs of usage (especially erstwhile it comes to paying for a halt in the area of paid parking and additionally utilizing a regular one-time public transport ticket to overcome a tiny distance in the city centre) and availability importantly deviates from the availability of a private vehicle. All this constitutes a flagrant violation of Article 64(1) of the Constitution of the Republic of Poland due to the deficiency of adequate justification for restrictions on this basic right.
Such justification cannot be provided in the catalogue of exceptions in Article 31(3) of the Constitution of the Republic of Poland for the protection of the environment. Even if it is not scientifically clear that the introduction of "clean transport zones" in cities will improve air quality and thus guarantee a higher level of environmental protection, actions taken in this direction must not be grossly restrictive or even annihilating another constitutional warrant from the catalogue of civilian rights and freedoms. As Krzysztof Wojtyczek points out in his work entitled "Boundaries of legislative interference in the sphere of human rights in the Constitution of the Republic of Poland" (Zakącze 1999), erstwhile 2 human rights are conflicting, there is no single general regulation that could indicate which of the conflicting rights stands higher and thus takes precedence. In his opinion, the legislator should search to guarantee that citizens can enjoy both rights "as far as possible, according to the importance of the values underlying each of these rights". small of this, according to the constitutionalist, "the failure to include 1 of them in a legislative act is sufficiently equivalent to its infringement". Rather, it is not essential to persuade anyone to claim that there are no statutory guarantees in the Electromobility Act that balance the rights and freedoms of persons straight affected by the establishment of a "clean transport zone".
The constitutional provisions cited above are part of the larger full of the state's system. In this system, 1 of the principles covering the general action of public authorities towards the citizen is the rule of non-discrimination of citizens for any reason, covering political, social and economical life. It is hard to note that in the case of the application of the recommendations contained in the PSPA study to the city of Wrocław, in the absence of alternate opportunities for citizens to usage the area of ‘clean transport zone’ with vehicles which do not comply with the standards laid down in Article 39(1) and (2) of the Act on Electromobility and alternate Fuels of 11 January 2018, the situation in which equality with the rights of these citizens will be affected. A discriminatory action in economical and social life will be the situation in which, in order to decision around the "zone" it will be essential for this group to bring together citizens in a comparatively short period of time with a large amount of backing to acquisition a vehicle that meets the exhaust emanation standards provided for in the above recommendations. In fact, any citizen whose rights are limited by the entry into force of specified rules has the right to challenge those provisions before an administrative court, as they straight affect his individual legal interest. As the Constitutional Court stated in its judgement of 1 July 2021 (Event No SK 23/17), who is entitled to bring an action against an act of local law to the applicable administrative court is anyone who finds that specified an act infringes directly, individually, objectively and realistically his legal interest. In the case of regulations establishing the alleged clean transport region in Wrocław, specified violations will most likely be counted in thousands of cases.
In conclusion, it is worth noting that recommendations to establish a “clean transport zone” in Wrocław are possibly incompatible with a number of provisions of the Constitution of the Republic of Poland and the constitutional principles derived from this act which warrant the protection of fundamental rights and civilian liberties. There are presently no substantive reasons for specified drastic restrictions on constitutional freedom of movement and the constitutional right to dispose of property.
Dr. Paul Momro
