14
MÓŁKA v. POLAND DECISION
3. The Court’s assessment
The Court first reiterates that the term “legislature” in Article 3 of
Protocol No. 1 does not necessarily mean the national parliament: it has to
be interpreted in the light of the constitutional structure of the State in
question. In the case of Mathieu-Mohin and Clerfayt v. Belgium, the 1980
constitutional reform had vested in the Flemish Council sufficient
competence and powers to make it, alongside the French Community
Council and the Walloon Regional Council, a constituent part of the Belgian
“legislature”, in addition to the House of Representatives and the Senate
(see Mathieu-Mohin and Clerfayt v. Belgium, judgment of 2 March 1987,
Series A no. 113, p. 23, § 53, and Matthews v. the United Kingdom [GC],
no. 24833/94, § 40, ECHR 1999-I).
On the other hand, the Convention organs have found that local
authorities, such as the municipal councils in Belgium, the metropolitan
county councils in the United Kingdom and the regional councils in France,
did not form part of the “legislature” within the meaning of Article 3 of
Protocol No. 1 (see Clerfayt, Legros v. Belgium, no. 10650/83, Commission
decision of 17 May 1985, Decisions and Reports 42, p. 212; Booth-Clibborn
v. the United Kingdom, no. 11391/85, Commission decision of 5 July 1985,
DR 43, p. 236; and Malarde v. France, (dec.) no. 46813/99, 5 September
2000).
Furthermore, the power to make regulations and by-laws which is
conferred on the local authorities in many countries is to be distinguished
from legislative power, which is referred to in Article 3 of Protocol No. 1 to
the Convention, even though legislative power may not be restricted to the
national parliament alone (see Cherepkov, cited above).
The Court notes that Poland is a unitary State and that legislative power
is exercised by the Sejm and the Senate (see Articles 3, 10 § 2 and 95 § 1 of
the Constitution). Moreover, local government has only those powers which
are not reserved by the Constitution or statutes to other public authorities
(see Article 163 of the Constitution).
The municipal councils, district councils and regional assemblies are the
repositories of powers of an administrative nature concerning the
organisation and provision of local services. These powers are granted by
statute or other subordinate legislation which defines closely and
restrictively their field of application. Consequently, the municipal councils,
district councils and regional assemblies do not exercise legislative power
within the meaning of the Constitution of the Republic of Poland.
Furthermore, the Court notes that the legality of actions of local
government at different levels is subject to control exercised by the Prime
Minister and the regional governors who represent the government in each
of the sixteen regions. Ultimately, in the case of a flagrant violation of the
Constitution or a statute, the Sejm, acting on an application of the Prime
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents