COUNTRY REPORTS * POLAND
Environmental law in Poland encompasses the following fields of regulation:
The most voluminous is anti-pollution regulation. This field of regulation is created by provisions related to the protection of air (including protection against noise, vibration and non-ionizing radiation), water, protection against waste (waste management regulation), and emergency situations (industrial risks). To this group of provisions belong the regulation related to civil law and criminal law responsibility and on charges for use of environment and financial fines, as well as for breaking the requirements of environmental protection. These matters are regulated in many acts. The most important are: the Environmental Protection Act of 1980 (hereinafter referred to as EPA, 1980), the Water Management and Water Protection Act of 1974 (hereinafter referred to as Water Act, 1974), the Act related to the Territorial Waters of the Polish Republic and Marine Administration of 1991, the Act related to the prevention of sea pollution by ships of 1995, the Civil Code of 1964 and the Criminal Code of 1964.
Polish civil law does not provide special instruments (with some exceptions) for environmental protection. The general institutions of the Civil Code must therefore be used which regulate liability for damage: liability in tort and strict liability. There is also preventive liability: the action of cease and desist, the action to damage, and that to protect intangible rights (personal interests, personal rights). The most important role in practice is that of strict liability. Nor does the Criminal Code create specific instruments for environmental protection. Instead, its provisions on responsibility for creating a public danger to human life or health, as well as to property on a large scale, are used to this end.
Nature protection in Polish environmental law encompasses the provision on the protection of landscape, parks and nature reserves as well as wildlife protection. This group of regulation is composed of the Nature Protection Act of 1991 (hereinafter referred to as NPA, 1991) and the executive orders to this Act. Some provisions on nature protection are comprised in EPA, 1980.
The regulation on management of natural resources consists of the provision on subsoil and minerals, on fish resources, on wildlife resources (it must be mentioned that the Hunting Act in Poland has two sides, one being wildlife protection regulation, the other side being wildlife resources management), on forests, on soil and on health resorts. There are many acts besides EPA, 1980, Water Act, 1974 and NPA, 1991, which regulate these matters. The most important are: the Geological and Mining Act of 1994, the Act related to the Protection of Agriculture and Forest Lands of 1995, the Forestry Act of 1991, the Hunting Act of 1959, the Act related to the Inland Water Fish Culture of 1985, the Sea Fisheries Act of 1963 and the Health Resort Act of 1966.
The procedural and organizational provisions regulate the procedural matters important for environmental protection. To this group belong the provisions on the land-use planning, on environmental impact assessment, on environmental audit, on building law and on access to the public to decision-making processes and to information. Also in this group are provisions related to the institutions responsible for environmental protection, such as the Minister of Environmental Protection, Natural Resources and Forestry (hereinafter referred to as EPM), the State Inspectorate of Environmental Protection (hereinafter referred to as SIEP), Act related to the Building Law of 1994, the Physical Management Act of 1994. Not included here are general procedural, regulations such as the code on administrative procedure, the code on civil law procedure or the code on penal law procedure. These are important for environmental protection, but they do not comprise provisions specific for environmental protection. The most important acts here are: the Act related to the Establishment of the Office of EPM of 1989, the Act related to the SIEP of 1991, EPA, 1980 and the Building and Physical Management Act.
The product regulations cover chemical substances, buildings materials, fuels, and technical equipment. This field of regulation is the weakest point of Polish environmental law. There is no regulation of chemical substances, as exists in the countries of, for example, the EU, in the form of a comprehensive act regulating the control of all or most chemical substances with the exception of those which are regulated by separate acts. Some general regulations are contained in EPA, 1980. The most important laws are the EPA Act of 1980, the Road Traffic Act of 1983, the Act related to Poisonous Substances of 1963, the Act related to Foodstuffs of 1970, the Act related to Pharmaceutical Products and Pharmacies, the Act related to Plant Protection Agents of 1995, the standardization Act 993, the Certification Act 1993, and the Executive Order of EPA of 1994 on product requirements, with respect to health and environmental protection.
The pivotal role in Polish environmental law belongs to EPA, 1980 ( the Act related to Shaping and Protecting the Environment of 31 January 1980, published in 1994 (final version after amendments) Dz.U. no 49 position 196. The act was amended nine times from the moment of its promulgation. The most important amendments was made in the years 1989, 1990, 1991 and 1993. This act has specific legal character. It is not an environmental code, nor a general framework statute, such as the NEPA of the USA, but something between these two solutions. This act addresses all above-mentioned fields of environmental law, comprises basic legal principles of environmental protection, important legal definitions and regulates exclusively such matters as air protection, protection against noise, vibration and non-ionizing radiation, charges and financial fees, environmental emergency situations, rights of NGOs, and environmental impact assessment. Beside this act, there are above one hundred normative acts regulating environmental protection. Among this, the NEPA of 16 October 1991 (Dz.U. no 114, position 492) must be mentioned. They comprise parliamentary acts as well as executive orders. So the Polish approach to environmental protection can be characterized as one which tries to develop a complex approach to the environment, but not at once. It has a strategic aim. This strategic aim was partially realized by EPA, 1980. In this context, the Parliamentary Resolution of 1991 on Ecological Policy (Monitor Polski no 18 position 118), as well as the Ministry of Environmental Protection (amended annually), must also be mentioned. The last step in realization of this strategic aim will be the enactment of an environmental code. In the meantime, the sectorial approach is preserved as a realistic solution. Recently, the tendency emerged to move from a general approach, to a sectorial approach. This tendency has its roots on the one hand in the difficulties connected with a general approach, and on the other hand in some vested interests of certain professional groups. The main role belongs to the command-and-control mechanism, but economic incentives (or better disincentives) in the form of charges and financial fines are well developed. They cover the emission of pollution to air and water, the storage of waste and the cutting down of trees, as well as the emission of noise (only fines for transgression of allowed levels of noise).
Practically all governmental institutions have some role in the shaping and administration of environmental law. We may divide them into two general groups: 1) the governmental institutions not specialized in environmental protection, i.e. their competence is acknowledged, but is not limited to environmental protection, and 2) the governmental institutions specializing in environmental protection, i.e. their competence is limited to environmental protection.
To the group of non-specialized institutions belong parliament, the Council of Ministers and ministers, the president, the Supreme Chamber of Supervision, the courts, the Ombudsman, the regional governors, the heads of district governmental administration, and the communal authorities. Their role in shaping and administration of environmental law is connected with their general responsibilities, therefore it is not necessary to comment on these institutions, only the role of the courts should be described.
The activity of the courts is of special significance in the shaping of environmental law. The penal and civil law courts are involved in the shaping of penal and civil law provisions, also those connected with environmental protection. Their verdicts have enhanced greatly the possibilities of civil law and penal law in environmental protection. The Central Administrative Court, which carries out the judicial supervision of the administration, is especially important. All final decisions of governmental and communal authorities may be challenged before this court. The judgments of the Central Administrative Court are especially important because administrative law constitutes the greater part of environmental law. In the last twelve years we can find above one hundred and twenty judgments of major significance for environmental law. These judgments made environmental law provisions more precise and better adapted to the new situation. The Constitutional Tribunal may also play an important role in the interpretation of environmental law in the future. Until now, the it has only decided on two environmental law cases.
The process of law approximation began in 1991 when the Office for European Integration was created. This process is twofold. On the one hand, it is checked whether the drafts resulting from the every-day needs of government are in accordance with EU law, on the other hand, a special program is being prepared on harmonization. In 1993, the Ministers' Council accepted the program of harmonization of Polish Law with European Union law. In 1994, the Ministers' Council Order 29.03.1994 (MP no 23 position 188) created the mechanism of harmonization. According to the order, all projects covered by the European Treaty establishing the association between Poland and the European Union should be prepared in light of European Union law. According to the Ministers' Council Order of 29.03.1994, the drafters are obliged to analyze, in reasons attached to drafts, the degree of fulfillment to European standards. In the case of drafts which are not fully harmonized with EU law, it must be stated when full harmonization will be completed. Then the Office for European Integration makes a final assessment in relation to the requirements of EU law.