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2009 | 5(94) | 9-22

Article title

DISPUTES OVER AUTHORITY BEFORE THE CONSTITUTIONAL TRIBUNAL (Spory kompetencyjne przed Trybunalem Konstytucyjnym)


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The Constitution of the Republic of Poland of 2 April 1997 confers on the Constitutional Tribunal a new power, i.e. the power to settle disputes over authority between the central constitutional organs of the State. (Article189). There are many such bodies, but only those particularly specified in the Basic Law may apply for settlement of such dispute before the Constitutional Tribunal (Article 192). If any other constitutional organs have found themselves in a dispute over authority, they should refer to an authorized body to initiate a dispute for them. A more detailed regulation of the issues can be found in Articles 53 and 54 of the Constitutional Tribunal Act which distinguishes between two traditional models of dispute over authority, positive and negative ones. The author gives critical opinions on the above-mentioned provisions and strives to prove that these two structures are not adequate for all potential cases of disputes over authority arising under the Constitution. The omission of the question of validity of the acts already issued by those organs, which were considered inappropriate as a consequence of the settlement of the dispute, is a statutory loophole. Therefore, the author proposes establishing a new, complementary procedure for determining authority beyond the two classic models. This is because the said two procedures are designed to be applied when the dispute relates to bodies deciding on a particular case. The exercise of constitutional powers often does not involve decision-making. The proposed procedure would be applied by the Public Prosecutor General, provided that his/her function is separated from that of Minister of Justice..





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  • Pawel Sarnecki, Uniwersytet Jagiellonski, Wydzial Prawa i Administracji, ul. Bracka 12, 31-005 Kraków, Poland


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