Public interest and
legitimate interest of the
citizens in Polish law
Collision between public and private interest
Public interest and legitimate interest of the citizen on the field
of the Administrative Procedure Code
Administrative Procedure Code – 1960
Art. 5. Within proceedings the state administration authorities uphold the lawfulness and
take indispensable measures to carefully explain the facts and settle the case, acting in
consideration of the public interest and legitimate interest of the citizens.
Administrative Procedure Code – since 1980 until today
Art. 7. Within proceedings the public administration authorities uphold the lawfulness, ex
officio or upon parties’ request undertake all measures indispensable for careful
explanation of the facts and settlement of the case, acting in consideration the public
interest and legitimate interest of the citizens.
Interes prywatny
Private interest
Interest
Legal
Interest
Private
Interest
• „an important thing”, „to care about something”
• „advantage, benefit, profit”
• allows to determine the legal position of an entity towards another entity
on the ground of the norms of the particular legal domain (type of law)
• interest based on law; something existing irrespectively of the will of the
entity equipped with that interest; something existing objectively (M.
Zimmermann)
• only the legal interest can at the same time be the private interest and
stay in the collision with the public interest (judgment of Supreme
Administrative Court in Katowice, 20th May 1998, I SA/Ka 1744/96)
Public interest
 includes: state security, public order, protection of environment, public health and
public morality
 is associated with the terms such as: „public aim”, „social interest” and „common
good”
 is not identical to the clauses of „state economical interest” and „interest of State
Treasury”
Possible collision between the public interest and private
interest
• exclusively in relation to the situations when the public authority takes an
administrative decision basing on the so-called administrative discretion
• when it comes to the so-called tied decisions (a decision which is issued by the
public authority acting without administrative discretion), art. 7 of the Administrative
Procedure Code has no application (judgment of Supreme Administrative Court in
Katowice, 18th December 1995, SA/Ka 2198/94)
Public interest and private interest – the evolution of their relation
I.
Judgment of Supreme Administrative Court in Warsaw, 11th June 1981, SA
820/81, ONSA 1981, 1/57
• in the administrative procedure the legitimate party’s interest can be taken into
consideration as long as the collision with the public interest does not arise
II. Judgment of Supreme Administrative Court in Warsaw, 14th September 1982,
I SA 708/82
III. Judgment of Supreme Administrative Court , 18th January 1995, SA/Wr
1386/94, POP 1996, 6/181
Public interest and private interest – the evolution of their relation
(continuation)
Judgment of Supreme Court, 18th November 1993, III ARN 49/93
• in the rule of law there is no space for the rigidly and mechanically understood
superiority of the public interest over private interest
• the legal interests mentioned in art. 7 of the Administrative Procedure Code are
legally equal. It means that in the process of the interpretation of the procedural
norms, the public authority cannot be bound by the assumption of the hierarchy
established a priori for those two interests
Relation of the public interest and private interest
- Constitution of the Republic of Poland
Public interest
opposite to private interest
basis for the limitation of the citizens’ rights and freedoms:
 art. 22 of the Constitution: The freedom of the business activity can be limited only
on the basis of an act of law and only on grounds of important public interest.
necessary for the implementation of the mechanisms for the protection of
selected values:
 art. 213 of the Constitution: the National Broadcasting Council upholds the freedom
of speech, the right for information and public interest in broadcasting.
servitude to the private interest:
 art. 1 of the Constitution: The Republic of Poland is a common good of all citizens.
Exemplary presentation of the collision between the public
interest and private interest in the Polish law
1. Land management and planning
Act on land management and planning, 27th March 2003
 definition of the public interest in the act: the generalized objective of aspirations and
activities, considering objective needs of the general of the public or local communities, in
connection with the land management and planning (art. 2 pct. 4)
 collision between the public interest and private interest in the sphere of ownership:
„Everybody has the right, in the limits determined by law, to manage the area, to which he
has a legal title, according to the conditions established in the local plan or in the zoning
decision, if it does not breach the public interest protected by law and the interest of third
parties” (art. 6 pct. 1)
Exemplary presentation of the collision between the public
interest and private interest in the Polish law
2. Environmental protection
Act on environmental protection, 27th April 2001
 „important social interest”: if an especially important social interest justifies it and if it is
related to environmental protection, in particular to the threat of the environment’s significant
deterioration, it is admissible to establish within the permit decision a security for the claims
associated with the occurrence of negative effects and damages in environment (art. 187)
 collision of the public interest and private interest in the sphere of the rights in rem:
„Section IX: Limitation of the methods of using real estate in reference to the environmental
protection”.
Exemplary presentation of the collision between the public
interest and private interest in the Polish law
3. Access to public information
Act on the access to public information, 6th September 2001
 subordination of the private interest to the public interest to a certain extent: possibility
of limitation of the private interest, which consists in the right to demand public information,
on the grounds of the necessity to guard the public interest (art. 3)
Exemplary presentation of the collision between the public
interest and private interest in the Polish law
4. Protection of competition and consumers
Act on the protection of competition and consumers, 16th February 2007
z dnia
06 wrześniaand
2001consumers
r. o dostępie
do the conditions of the
 Act on the ustawa
protection
of competition
„defines
publicznejof competition, as well as the rules of protection of
development informacji
and the protection
entrepreneurs’ and consumers’ interests , undertaken in public interest ” (art. 1)
 Act on the protection of competition and consumers protects competition as a mechanism
regulating the way the economy is functioning; the act does it in the public interest, which
means that a breach of the private interest is not necessary to apply the legal
instruments of intervention, mentioned in the act (judgment of Supreme Court, 7th April
2004)
Exemplary presentation of the collision between the public
interest and private interest in the Polish law
5. Financial Law
Act on Tax Procedure, 29th August 1997
 public interest and „important tax-payer’s interest”: the tax authority, at the tax-payer’s
demand, in cases justified by the important tax-payer’s interest or the public interest, may
among others, postpone the payment date or allow for the payment of the tax in instalments
(art. 67a)
 „important tax-payer’s interest” is a situation, when due to the unusual, random events the
tax-payer is not able to settle his tax arrears,
 equality of the public interest and important tax-payer’s interest: the tax authority is
obliged to determine, if there is an important tax-payer’s interest or the public interest, to
balance both types of interest and to define, which of them prevails.
Exemplary presentation of the collision between the public
interest and private interest in the Polish law
6. Economic activity
Act on the rendering of services on the territory of the Republic of Poland, 4th March 2010
 „supreme public interest”: „supreme public interest is a value which needs to be protected,
including in particular: public order, public security, public health (…) (art. 2 pct. 7)
Act on the freedom of economic activity, 2nd July 2004
 obligation to respect the private interests: „performing its duties, in particular in the area
of supervision and control, the competent authority acts only on the basis and within the
confines of law, with respect for the justified interests (art. 9)
Collision between public interest and private
interest – final remarks
• the party’s legitimate interest cannot be contrary to the explicit regulation nor can it
substitute it. (rule of lawfulness – art. 6 of the Constitution)
• the party’s legitimate interest cannot lead to bypass the regulations
• „If, in the cases left by law to the public authorities’ discretion, the public interest
does not stand in the way, and if it is possible, the public authority is obliged to
settle the case in the positive way for the party. This creates a presumption of the
positive settlement of the party’s request, unless such positive settlement is not
possible due to unquestionable public interest” – judgment of the Supreme
Administrative Court in Warsaw, 30th June 2000, V SA 2880/99, LEX nr 79239
Thank you for your attention
Dr Joanna Lemańska
Marcelina Stolarska