Changing borders between municipalities: The assessment of the government’s policy in regard to changes in territorial division remains outside the scope of assessment made by the Constitutional Tribunal

Postanowienie Trybunału Konstytucyjnego z dnia 12 czerwca 2019 r., U 1/19

Abstract

In the commented judgement, the Constitutional Tribunal referred to the application of the municipal council of Stare Miasto to examine the constitutionality of § 2 of the Regulation of the Council of Ministers of 24 July 2017 on establishing the boundaries of certain municipalities and cities, granting certain cities the status of the city, changing the name of the municipality and the seat of the authorities of some municipalities (Journal of Laws “Dziennik Ustaw”, item 1427, with later amendments), in the scope of changing the border between the municipality of Stare Miasto and the city of Konin with poviat rights – involving the inclusion of the part of the municipality of Stare Miasto to the city of Konin. The Constitutional Tribunal discontinued the proceedings in this case and stated that it was not appointed to assess the substantive accuracy and purposefulness of the solutions adopted or to assess the legitimacy of the government’s policy regarding changes in the territorial division, as well as to settle specific disputes regarding the desirability of changes, supporting this with the argument that something else is the control of the purposefulness of the intention, and another thing is the control of its compliance with the constitution.

However, in the light of the jurisprudence of the Constitutional Tribunal and doctrine, there is no consensus as to the normative nature of the regulation regarding the change of territorial self-government, or full agreement whether it is a purely normative regulation or a hybrid regulation, i.e. also individual. In some situations, the regulation on determining the boundaries of local government units may be characterized by specificity.

In addition, there is a serious axiological dispute regarding the rights of local government units in the context of their role as units of basic territorial division of the state, as well as an ideological dispute over the place and nature of the local government community in a unitary state, noticeable in the background of the justification of the Constitutional Tribunal’s judgement.

Thus, the decision to discontinue the proceedings may deserve approval and encourage further deliberation and reflection so important that it can even be a reason to ask whether the decision is not evidence of insufficient protection of the subjective status of local communities against free interference by central authorities.