General legal framework

AuthorBojarski, Lukasz
Constitutional provisions on protection against discrimination and the
promotion of equality
The Polish Constitution (of 1997, bef ore implementation of the anti-discrimination law in
Poland) includes the following general Article dealing with non-discrimination.
Article 32Ś ‘(1) All persons shall be equal before the law. All persons shall have the right
to equal treatment by the public authorities. (2) No-one shall be discriminated against in
political, social or economic life for any reason whatsoever.’
This provision applies to all areas covered by the directives. Its material scope is broader
than that of the directives.
‘This means that the creators of the Constitution gave the principle of equality a universal
dimension, referring to all forms of distinction which may arise in political, social or
economic life, regardless of the characteristic (criterion) according to which a distinction
may occur’.27
This provision is directly applicable. The Constitution stipulates that its provisions are
directly applicable unless the Constitution itself states otherwise.28 Thus the presumption
is in favour of the direct applicability of constitutional provisions. However, to a
significant extent, this remains theoretical. It is not easy to put the concept of direct
applicability into operation before a court, because in judicial proceedings it is necessary
to use the existing legal and procedural framework and a dapt the constitutional
argument to it. In Poland, there is little precedent for invoking constitutional provisions
directly, and the courts are not used to doing so. The issue of direct applicability of the
Constitution became a subject of interest and debate in the years 20162019 due to
political developments regarding the role of the Constitutional Tribunal (CT). From late
2015, the CT became the target of political attack, and its role has been significantly
reduced. Many experts are of the opinion that because of the de facto limited role of the
Constitutional Tribunal, the ordinary courts should directly apply the Constitution more
There also exists a special procedure described in Article 193 of the Constitution, which
reads: ‘Any court may refer a question o f law to the Constitutional Tribunal as to the
conformity of a normative act with the Constitution, ratified international agreements or
statutes, if the answer to such a question of law will determine an issue currently b efore
such a court.’ Polish judges use this possibility when they face the problem of the
constitutionality of a law being the legal basis for the verdict in a particular case.
However, due to the constitutional crisis in Poland and the current situation with the CT
(which is not accepted by many judges, who consider it to have been taken over
27 Constitutional Tribunal, judgment of December 1997, No. K. 8/9716.
28 Constitution of the Republic of Poland, 2 April 1997, Article 8(2), available at:
29 See articles on the blog, available at: In
particular, see Grzelak, A., ‘Sententia non existens the future of jurisprudence of the Polish Constitutional
Tribunal?’, 17 March 2017, available atŚ
jurisprudence-of-the-polish-constitutional-tribunal/. See also Matczak, M. (2018), Poland: From Paradigm to
Pariah? Polish Constitutional crisis facts and interpretations, Oxford, available at:“assault-rule-law-poland”-
“out-political; and Pietrzak, M. (2017), The Constitutional Court of Poland: The Battle for Judicial
Independence, available at:

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