Wyrok TK z 21 kwietnia 2004 (SK 33/03)
1. Art. 12 ust. 1 i 6 ustawy z dnia 2 października 2003 r. o biokomponentach stosowanych w paliwach ciekłych i biopaliwach ciekłych (Dz. U. Nr 199, poz. 1934) jest niezgodny z art. 20 i art. 22 w zw. z art. 31 ust. 3 oraz jest niezgodny z art. 31 ust. 1 i 2 Konstytucji Rzeczypospolitej Polskiej.
2. Art. 14 ust. 1 ustawy powołanej w punkcie 1 jest niezgodny z art. 54 ust. 1 w zw. z art. 31 ust. 3 i art. 76 Konstytucji.
3. Art. 17 ust. 1 pkt 3 ustawy powołanej w punkcie 1 jest niezgodny z art. 20 i art. 22 w zw. z art. 31 ust. 3 Konstytucji.
Judgment of the Constitutional Court of 21 April 2004 (SK 33/03)
Partial translation and analysis
1. Article 12(1) and (6) of the Act does not conform to Articles 20 and 22, read in conjunction with Article 31(3) and does not conform to Article 31(1) and (2), of the Consti-tution.
2. Article 14(1) of the Act does not conform to Article 54(1), read in conjunction with Article 31(3) and Article 76, of the Constitution.
3. Article 17 of the Act does not conform to Article 20 and 22, read in conjunction with Article 31(3), of the Constitution.
PRINCIPAL REASONS FOR THE RULING
1. The criterion of the “necessity” for imposing restrictions on constitutional rights and freedoms with regard to the values enshrined in Article 31(3) of the Constitution (State security, public order, protection of the environment, public health and morality, the pro-tection of the rights and freedoms of others) is inherent in the principle of proportionality. It implies that the legislator should always choose the least burdensome measures in achieving the stated aims. If the aim may be achieved by means that are less restrictive on rights and freedoms, then the adoption of a more burdensome measure constitutes a breach of the requirement of necessity as contained in the aforementioned constitutional provision.
2. The principle of interpreting national law in a manner sympathetic to European law, based on Article 91(1) of the Constitution, relates in particular to interpretation of the constitutional basis of review performed by the Constitutional Tribunal (in this case – the principles of economic freedom and the protection of consumers).
3. The scope of the freedom enjoyed by the legislator in enacting regulations concerning restrictions on economic freedom, its delimitation and the interpretation of the notion of “important public reasons”, as contained in Article 22 of the Constitution, must be as-sessed in the light of Poland’s participation in the European Common Market. This has particular consequences in relation to the constitutional assessment of reverse discrimina-tion – enacting restrictions on economic freedom which apply only to nationals, since their application to other EU citizens is prohibited by Community law. Whilst discrimina-tion against national entities is irrelevant in the light of Community law, it is the constitu-tional duty of national authorities to protect against such discrimination.
4. The applicant’s challenges to Articles 12(1) and (6) and 17(1) point 3 should be reviewed jointly (cf. paragraphs 5-10 below). This follows from the fact that, by virtue of Article 12, the legislator placed certain obligations on undertakings and, by Article 17, imposed sanctions for non-compliance therewith.
5. The statutory authorisation in Article 12(6) is ambiguous and may be interpreted in two ways. According to one interpretation, every litre of fuel available at a petrol station must contain the amount of bio-component specified in the Regulation. According to the alternative interpretation, the specified levels relate to a given producer’s “global” or total native interpretation, the specified levels relate to a given producer’s “global” or total yearly production and the legislator does not require that all fuel placed on the market by that producer must contain a particular level of bio-components. In keeping with the con-curring opinions of all the participants in this case, the Constitutional Tribunal adopted the second (more liberal) interpretation in assessing the reviewed provision. Even in the light of such an interpretation one is forced to conclude that, in obliging producers to add a certain proportion of bio-components to fuels placed on the market, the legislator com-pelled producers to either change or supplement their product range or to conclude certain civil-law contracts with bio-component manufacturers (cf. Article 12(3) of the Act). In doing so, the legislator arbitrarily made the commencement of manufacturing certain products completely independent of any market survey of consumer interests and thereby drastically limited producers’ capability to take market-orientated decisions. Whilst aware of serious reservations regarding the practical qualities of fuels containing bio-components, the legislator chose to enforce demand for such fuels, in practice depriving consumers of their freedom of choice. The absence of choice results from the fact that surveys have shown a complete lack of demand for bio-fuels and bio-components. In or-der to comply with the legal requirements, producers will have to add the whole pre-scribed “share” of bio-components to “ordinary” liquid fuels. This in practice creates two coercive situations: on the part of producers – to place on the market (which is free, as a rule) a certain product and, on the part of consumers – to buy this product, even against their will.
6. The primary purpose of Directive 2003/30/EC, adopted by the European Parliament and Council on 8th May 2003, on the Promotion of the use of bio-fuels and other renewable fuels for transport, with which the reviewed Polish Act is concerned, is readily apparent from its title: it aims to promote the use of bio-fuels in transport, rather than to enforce such usage. An analysis of the Directive’s provisions also leads to the conclusion that its implementation does not allow for the possibility to enact national provisions making the use of bio-fuels compulsory. It may not be assumed that alteration of the Directive’s aim – from promotion to imposition of an obligation – constitutes the “detailing” of the Direc-tive within the internal legal order, falling within the scope of the State’s freedom to choose the form and methods of implementation. Such reasoning is, firstly, incompatible with the principles of implementation into the internal legal order of Directives, as a source of Community law, and, secondly, contrary to the substance of the Directive itself, which clearly states that internal State policy promoting the use of bio-fuels may not hin-der the free movement of fuels.
7. Applying the challenged provisions to all manufacturers (sellers) – not only national, but also foreign, including those established in other EU Member States – would constitute a restriction on the free movement of goods between Member States in contravention of European Community law. From the perspective of Community law, such a situation would be treated as an example of the national legislator imposing restrictions by means of “a measure having equivalent effect” to quantitative restrictions on imports, which is expressly forbidden by Article 28 of the Treaty establishing the European Community. Although such restrictions are allowed in exceptional circumstances, they are only permissible for reasons laid down in Article 30 of the EC Treaty. Employing this possibility, which requires a special procedure for establishing the derogation, may not amount to ar-bitrary discrimination or disguised restrictions on trade. In light of the jurisprudence of the Court of Justice of the European Communities, it is unlawful to enact restrictions in the internal legal order which hinder access to the national market of goods failing to comply with qualities or contents specified in national legislation for protectionist pur-poses. Conversely, limiting the applicability of the reviewed provisions to Polish manu-facturers (sellers) – since legislators in other EU Member States have not imposed similar obligations – would lead to reverse discrimination (see paragraph 3 above). Since it is impossible for the reviewed provisions to apply to fuels produced abroad and placed on the Polish market, by reason of the country of origin (a consequence of Articles 28 and 30 of the EC Treaty), it is impossible to deem the obligations imposed thereby as consis-tent with the “important public reasons” referred to in Article 22 of the Constitution.
8. The creation of jobs must constitute an element of State policy, as provided for by Article 65(5) of the Constitution. There is no constitutional subjective individual right to em-ployment, however, which would justify, on the grounds of the principle of proportional-ity, the restriction of manufacturers’ and consumers’ rights as necessary to “protect the rights and freedom of others”. Furthermore, in the light of Article 65(5), State policy must not lead to a decrease in the number of jobs as a result of excessive restraints on economic activity and the hindrance of flexible employment in the private sector.
9. Ensuring all citizens, and farmers in particular, a sufficiently high level of income which they consider to be satisfactory is not one of the constitutional duties of the State.
10. For the reasons discussed in paragraphs 8 and 9 above it may not be alleged that the pro-visions currently under examination, which restrict the freedom of economic activity, are necessary in a democratic State for the protection of the rights of others within the mean-ing of Article 31(3) of the Constitution.
11. The Constitutional Tribunal is not competent to deliver a verdict in the dispute as to the effect of the production and use of bio-components on the natural environment. Having regard, however, to the fact that a variety of opinions have been expressed on this unclear issue, it is impossible to conclude that the restrictions on the freedom of economic activ-ity imposed by the reviewed provisions are necessary in a democratic State in order to protect the environment.
12. Whilst Article 76 does not in itself give rise to a subjective individual right, it does im-pose specific duties on the State that must be implemented by way of ordinary legislation.
13. Among the founding principles of the modern protection of consumers, implemented within the framework of the European Common Market, are: transparency; openness; the availability of clear, full and comprehensible product information. Consumers need not seek the necessary information in any particular way – it must, rather, be made available to them. A cornerstone of the consumer’s constitutional right to be informed is Article 54(1) of the Constitution. It would be wrong to limit this provision, especially as regards the scope of “obtaining information”, to the traditionally perceived right to be involved inpolitical discourse. Individuals occupy a variety of social roles in any given society and one of these is the role of consumer. From this perspective, Article 54 of the Constitution is a guarantee of the realisation of Article 76 of the Constitution in the scope of protecting consumers from unfair market practices.
14. The fact that Article 14(1) of the Act permits trade in liquid fuels without any indication of the levels of bio-components therein – unlike the case with respect to bio-fuels (cf. section 2 of the same Article) – means that it is only in the latter case that consumers would be aware of the level of bio-components in the fuel being offered. Such knowledge would not be available to purchasers of liquid fuels, which in practice would represent the majority of vehicle fuels consumers. Since producers have no intention to offer bio-fuels in the immediate future, the whole “share” of bio-fuels imposed on them would need to be added to liquid fuels and the preferential treatment of bio-components in ex-cise duty provisions will encourage producers to exceed the minimum levels prescribed by the Act. In light of the aforementioned standards of consumer protection, the applica-tion to declare the non-conformity of Article 14(1) of the Act with the basis of review cited in point 2 of the ruling is justified.
15. This judgment does not, as such, resolve the idea of promoting the use of fuels with bio-component additives (blended bio-fuels). The possibility or rationality of producing and trading in such fuels may not be ruled out. For constitutional reasons this may not, how-ever, be effected in the form of compulsory production or compulsory purchasing.
Content of Table No 4