Unconstitutionality of the provisions of the covid regulation introducing restrictions on economic activity

On October 27, 2020, the Provincial Administrative Court in Opole issued in the case with reference number act: II SA / Op 219/20 a precedent judgment in which it stated that the regulation of the Council of Ministers of April 19, 2020 on the establishment of certain restrictions, orders and prohibitions in connection with an epidemic (Journal of Laws 2020, no. item 697), issued on the basis of art. 46a and art. 46b points 1-6 and 8-12 of the Act on preventing and combating infections and infectious diseases in humans does not meet the constitutional condition for it’s issuance on the basis of a statutory authorization containing guidelines on the content of an executive act.

The Provincial Administrative Court in Opole noted that: “The Council of Ministers, on the basis of the wording of the statutory authorization as formulated in this way, could freely shape the sphere of fundamental rights or freedoms of an individual in the ordinance, without substantive guidelines contained in the act, specifying individual restrictions, orders and prohibitions. As a consequence, the independent law-making activity undertaken in this respect led to the regulation of statutory matters and the violation of a number of fundamental freedoms and rights of an individual, including the freedom of economic activity under Art. 22 of the Constitution „.

Assuming that the procedure of introducing the above restrictions, orders and bans „led to the violation of basic constitutional standards and rights in the field of freedom of economic activity”, the Provincial Administrative Court in Opole – referring directly to Art. 178 of the Polish Constitution – refused to apply the controlled regulation of the Council of Ministers of April 19, 2020.

In these circumstances, the Provincial Administrative Court in Opole overruled the contested decisions regarding the fine for failure to comply with the temporary restriction of business activities established by entrepreneurs in the state of epidemics, i.e. it repealed the decision of the Opole State Provincial Sanitary Inspector in Opole and the preceding decision of the County State Sanitary Inspector in Prudnik.