12
MÓŁKA v. POLAND DECISION
the status of local authorities in Northern Ireland, the Commission observed
that “insofar as these local authorities have a legislative function it is
confined to the making of by-laws applicable within their areas and these
powers are rigidly limited by statute and they have no powers to make rules
other than in accordance with the powers conferred by Parliament”. The
Government also relied on the Commission’s decision in the case of BoothClibborn and Others v. United Kingdom (no. 11391/85, Commission
decision of 5 July 1985, DR 43, p. 248) in which the Commission
considered that the metropolitan county councils “do not possess an
inherent primary rulemaking power and those powers which have been
delegated to them are qualified by the Parliament of the United Kingdom
and exercised subject to that Parliament’s ultimate control”.
The Government submitted further that although local government
organs could not be regarded as “legislatures” within the meaning of Article
3 of Protocol No. 1, the Commission found this provision to be applicable to
the elections to local parliaments in federal States in cases concerning
Austrian and German Länder (see X. v. Austria, no. 7008/75, Commission
decision of 12 July 1976, DR 6, p. 120, and Timke v. Germany, no.
27311/95, Commission decision of 11 September 1995, DR 82-A, p. 158).
Having regard to the above case-law and bearing in mind that Poland is a
unitary State (see Article 3 of the Constitution), the Government considered
that the organs of local government in Poland did not form part and parcel
of legislative power.
The Government further underlined the derivative and secondary nature
of the rulemaking powers of the local government organs. They referred to
Article 95 of the Polish Constitution, which clearly provided that legislative
power was exercised by the Sejm and the Senate, and submitted that no
other domestic body was vested with competence to enact statutes.
Consequently, under the Polish constitutional structure, the organs of local
government could not be considered “legislatures” because they could not
enact statutes.
They also pointed out that, under Article 87 § 2 of the Polish
Constitution, local government organs could pass “local laws” (akty prawa
miejscowego). Those laws were binding only in the territory of a given
municipality, district or a region and could be passed on the basis of and
within the limits specified by statute (see Article 94 of the Constitution). It
followed, according to the Government, that any rulemaking powers of local
government were based on and restricted by statutory regulations. The
Government submitted further that, pursuant to Article 163 of the
Constitution, local government organs performed public tasks which were
not reserved by the Constitution or other statutes to other public authorities.
They also argued that the limited scope of the rulemaking powers
exercised by the local government councils did not allow them to be
considered as “legislatures”. In particular, the scope of the rulemaking
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