NSA - III OSK 1789/22

From GDPRhub
Revision as of 18:03, 2 October 2023 by Arapcewicz (talk | contribs) (Created page with "{{COURTdecisionBOX |Jurisdiction=Poland |Court-BG-Color= |Courtlogo=Courts_logo1.png |Court_Abbrevation=NSA |Court_Original_Name=Naczelny Sąd Administracyjny |Court_English_Name=Supreme Administrative Court |Court_With_Country=NSA (Poland) |Case_Number_Name=III OSK 1789/22 |ECLI= |Original_Source_Name_1=Centralna Baza Orzeczeń Sądów Administracyjnych |Original_Source_Link_1=https://orzeczenia.nsa.gov.pl/doc/2EE3EB378C |Original_Source_Language_1=Polish |Original_S...")
(diff) ← Older revision | Latest revision (diff) | Newer revision → (diff)
NSA - III OSK 1789/22
Courts logo1.png
Court: NSA (Poland)
Jurisdiction: Poland
Relevant Law: Article 5(1)(c) GDPR
Decided: 02.08.2023
Published:
Parties: Wojewoda Śląski
Rada Miasta Katowice
National Case Number/Name: III OSK 1789/22
European Case Law Identifier:
Appeal from: Wojewódzki Sąd Administracyjny w Gliwicach
III SA/Gl 249/22
Appeal to: Not appealed
Original Language(s): Polish
Original Source: Centralna Baza Orzeczeń Sądów Administracyjnych (in Polish)
Initial Contributor: Agnieszka Rapcewicz

The Supreme Administrative Court held that the use of the national ID number of an individual for electoral purposes without an explicit legal provision constituting a basis for the processing of this data, violates the data minimisation principle.

English Summary

Facts

The Silesian Voivode declared invalid a resolution of the Katowice City Council on the granting of a charter for one of the districts. An attachment to the resolution included, inter alia, an appendix specifying the scope of data to be made available during the district council election campaign. The Voivode found that the indication of the candidate's profession was not supported by the law. It is not necessary in order to assess the fulfilment of the two conditions of passive and active electoral right, i.e. age and permanent residence in the district. The requirement to provide a PESEL number (a national identifiction number of an individual), on the other hand, means limiting the circle of the district's residents to those who have such a number and excluding from voting those who do not have a PESEL number. The Voivode also found that the City Council, which is not the controller of the data collected by the Municipality, is not authorised to decide on the requirements for declarations of intent on the processing of personal data, as this is the exclusive competence of the City Mayor.

The City Council challenged the decision of the Voivode. The Voivodship Administrative Court in Gliwice overturned the governor's decision. It stated, among other things, that the name and surname or age do not identify the resident. All the elements listed in § 23(2) of the District Statute that should be included in the application are complementary and together act as an identifier of the person who is put forward as a candidate. Verification of the veracity of the personal data of a listed resident is carried out by comparing it with the data resulting from the PESEL number provided by the resident. The essential purpose of such data verification is to establish whether the person who has put himself forward as a candidate or has been put forward as a candidate is, in fact, the eligible resident as indicated by the PESEL number, thus limiting the possibility of confusion or deliberate misrepresentation.

The Provincial Administrative Court found that there was no violation of the principle of data minimisation and, moreover, the allegation raised by the Voivode related to the data controller iwere unfounded. The Mayor of the City, who is the controller of the personal data, has their PESEL numbers in the register of residents kept by him, and therefore, when performing tasks related to the candidates for the council of the auxiliary unit, he does not collect them, but only confirms their compliance with the register held. On the other hand, the consent to make personal data available for the election campaign covers only necessary data with the exclusion of the residential address or PESEL number.

The Voivode appealed the judgment to the Supreme Administrative Court. The court agreed with the Voivode that the obligation for a candidate for a district authority to state their occupation is unjustified, as it does not affect the right to vote in any way. Furthermore, the provision of a PESEL number has the effect of limiting the circle of residents of the unit to persons with a PESEL number.

Holding

The Polish Supreme Administrative Court held that the use of the PESEL number (the national identification number of an individual) for electoral purposes, in the absence of an explicit legal provision constituting a basis for the processing of this data, is redundant and incompatible with the data minimisation principle expressed in Article 5(1)(c) GDPR. The court emphasised that the PESEL number is a national number identifying natural persons referred to in Article 87 GDPR. Therefore, there is no doubt that it is subject to special protection, as the EU legislator introduced the regulation in question bearing in mind that the use of universal personal identifiers may create various risks in the sphere of personal data processing. The Court also stated that that the obligation for a candidate for a district authority to state their occupation is unjustified, as it does not affect the right to vote in any way. Furthermore, the provision of a PESEL number has the effect of limiting the circle of residents of the unit to persons with a PESEL number.

Comment

Share your comments here!

Further Resources

Share blogs or news articles here!

English Machine Translation of the Decision

The decision below is a machine translation of the Polish original. Please refer to the Polish original for more details. 

II OSK 1789/22 - Judgment of the Supreme Administrative Court
Judgment date

2023-08-02 the ruling is final
Date of receipt
2022-07-21
Court
The Supreme Administrative Court
Judges
Dariusz Chaciński
Małgorzata Masternak - Kubiak /rapporteur/
Małgorzata Pocztarek /chairman/
Symbol with description
6266 Auxiliary units
6411 Supervisory decisions regarding the municipality; complaints from municipal authorities regarding supervisory activities
Thematic entries
Local government
Sign. linked
III SA/Gl 249/22 - Judgment of the Provincial Administrative Court in Gliwice of 2022-04-12
The complained authority
Voivode
Result content
The contested judgment was annulled and the complaint was dismissed
Cited regulations
OJ 2021 item 1372 art. 35 section 3, art. 91 section 1 and 3
Act of March 8, 1990 on municipal self-government - i.e.
Sentence

Supreme Administrative Court composed of: Chairman: judge of the Supreme Administrative Court Małgorzata Pocztarek Judges: judge of the Supreme Administrative Court Małgorzata Masternak-Kubiak (attorney) Judge del. Provincial Administrative Court Dariusz Chaciński, after considering on August 2, 2023, at a closed session in the General Administrative Chamber, the cassation appeal of the Voivode of Silesia against the judgment of the Provincial Administrative Court in Gliwice of April 12, 2022, ref. no. file III SA/Gl 249/22 in the case of the complaint of the City of K. against the supervisory decision of the Silesian Voivode of December 29, 2021, no. [...] regarding granting a statute to an auxiliary unit 1. repeals the contested judgment and dismisses the complaint; 2. awards the City of K. to the Voivode of Silesia the amount of PLN 240 (two hundred and forty) as reimbursement of the costs of the cassation proceedings.
Justification

The Provincial Administrative Court in Gliwice in its judgment of April 12, 2022, ref. no. file III SA/Gl 249/22, in the case of the complaint of the City of K. against the supervisory decision of the Silesian Voivode of December 29, 2021, no. [...], regarding granting a statute to an auxiliary unit - annulled the contested supervisory decision.

As indicated by the Court of first instance, the Voivode of Silesia mentioned above. supervisory decision, acting pursuant to Art. 91 section 1 and 3 of the Act of March 8, 1990 on municipal self-government (consolidated text: Journal of Laws of 2021, item 1372, as amended) - hereinafter referred to as "U.S.G." declared invalid the resolution No. [...] of the K. City Council of November 25, 2021 on granting the Statute of the District No. [...] [...], in part:

- § 5 section 1 point 2 and § 31 of the annex to the resolution regarding the wording of: the Act of March 8, 1990 on municipal self-government, the Act of January 5, 2011, the Electoral Code, and - as inconsistent with Art. 35 section 3 u.s.g. in connection with art. 1 of the Act of January 5, 2011, Electoral Code (consolidated text: Journal of Laws of 2020, item 1319, as amended) - hereinafter referred to as: "Electoral Code" and Art. 7 and art. 87 of the Constitution of the Republic of Poland.

- § 15 section 1 of the annex to the resolution, as being inconsistent with Art. 35 section 3 in connection with Art. 51 section 3 u.s.g.;

- § 19 section 9 of the annex to the resolution, as inconsistent with Art. 35 section 3 in connection with Art. 37b u.s.g.;

- § 20 point 8 and § 27 of the annex to the resolution, as inconsistent with Art. 35 section 3 point 2 of the Act on in connection with art. 7 of the Constitution of the Republic of Poland;

- § 23 section 2 of the annex to the resolution regarding the wording: PESEL number, profession, as well as: and consent to the disclosure of personal data for use in the election campaign, as contrary to Art. 35 section 3 point 2 of the Act on in connection with art. 7 of the Constitution of the Republic of Poland;

- § 29 section 1 sentence 1 of the annex to the resolution regarding the wording: upon a written request supported by at least 5% of voters from the District, § 29 section 1 sentence 2 and section 2 and 3 of the annex to the resolution, as being inconsistent with Art. 35 section 3 point 2 of the Act on in connection with art. 4, art. 6, art. 9 section 1 and 2, art. 11 section 1, art. 12 section 1 and art. 55 of the Act of 15 September 2000 on local referendum (consolidated text: Journal of Laws of 2019, item 741, as amended) - hereinafter referred to as: "the Act on local referendum";

- § 30 of the annex to the resolution, as inconsistent with Art. 35 section 1 u.s.g.

- § 32 of the annex to the resolution, as inconsistent with Art. 35 section 1 and art. 40 section 2 point 1 of the Act on in connection with art. 13 point 2 of the Act of July 20, 2000 on the promulgation of normative acts and certain other legal acts (consolidated text: Journal of Laws of 2019, item 1461) - hereinafter referred to as the "Act on the promulgation of acts".

In the justification for its decision, the supervisory authority justified its position.

The city of K. appealed against the above supervisory decision in its entirety to the Provincial Administrative Court in Gliwice.

In response to the complaint, the Voivode asked for its dismissal, maintaining the position taken in the contested supervisory decision.

In the judgment mentioned at the beginning, the Court of first instance found the complaint justified. Moving on to the substantive review of the contested supervisory decision in relation to individual allegations regarding the provisions of the annex to the resolution, the Provincial Court pointed out that the supervisory authority was wrong as to the material contradiction with the law of § 5 section 1 point 2 of the District Statute. This contradiction, according to the Voivode, was to consist in the obligation of members of district bodies to comply with the provisions of the Statute and generally applicable law. In this respect, the supervisory authority limited itself to making a false accusation, which it did not elaborate on in the justification of its decision. Therefore, it did not demonstrate any contradiction with any legal provision. The rest of the arguments refer to the allegation of illegality of § 31 of the Statute, according to which in matters not regulated in the Statute, the provisions of the Act on municipal self-government, the Electoral Code and the Statute of the City of K. apply.

Referring to the Voivode's position regarding the contradiction of § 31 of the Statute, the Court of Merits found it unfounded. It is difficult to see that this provision violates the hierarchical system of sources of law resulting from the Constitution of the Republic of Poland. The discussed provision of the Statute does not modify this order. It is also not the case that this provision gives primacy to an act of local law over generally applicable law, stating that the provisions of statutes apply to matters not regulated by the Statute. The solution adopted by the City Council is correct. Since establishing an auxiliary unit and granting it a statute is a municipal right resulting from Art. 18 section 2 in connection joke. 35 section 1 of the Act, it is not contrary to law to refer in the same statute to the provisions of the Act, which are in force regardless of the provisions of the Statute. The latter does not exclude the application of these provisions, but refers to them.

The Silesian Voivode also raised the objection to the provisions of § 31 of the Statute that it provides for the application of the provisions of the Electoral Code to elections of bodies of an auxiliary unit, in a situation where in Art. 1 of this Act lists the elections to which the provisions of the Act apply. This catalog does not include elections to an auxiliary commune unit.

According to the supervisory authority, deciding on the validity of elections is the exclusive competence of the commune council. In the Statute, this competence was granted to a non-statutory entity, which constitutes a violation of Art. 35 section 3 point 2 of the Act on in connection with joke. 7 of the Constitution of the Republic of Poland. In the opinion of the Court of first instance, the justification for the supervisory decision is imprecise in this respect. It is based on the cited judgments of administrative courts, which, however, are not relevant to this case. Moreover, in the operative part of the supervisory decision, the Silesian Voivode declared invalid § 20 point 8 in connection with from § 27 of the Statute. In the justification, he limited his argumentation only to § 27 section 4 without referring to the remaining units of this provision or commenting more broadly on § 20 section 8. This is a significant deficiency in the supervisory decision, which prevents the Court from clearly assessing its correctness in this respect.

According to the Court, entrusting the consideration of election protests and adjudicating on the validity of elections to the Municipal Electoral Commission does not constitute a significant violation of the law. The provision of § 27 of the Statute introduced the possibility of submitting an electoral protest for elections to the bodies of an auxiliary unit. This protest must be submitted to the Municipal Commission in writing, which will consider the protest within 30 days from the election day at an open meeting, after prior notice to the interested parties. The person filing the protest may appeal against the decision of the City Commission to the City Council, which will decide on the matter within 60 days from the date of lodging the appeal.

The above-mentioned regulation, in the opinion of the Court, is consistent with the law. First of all, the City Council did not exceed its competences under Art. 35 section 3 point 2 of the Act on Moreover, the legislator required the transparency of the consideration of election protests by the City Commission. He also ensured the possibility of filing an appeal to the City Council and, consequently, its involvement in the electoral process for the auxiliary unit. At no stage of the above procedure did he exclude the application of 18a section. 1 of the Act on Acting, which states that the commune council controls the activities of the commune mayor, commune organizational units and auxiliary commune units; for this purpose, it appoints an audit committee. He only additionally appointed the City Commission and equipped it with competences appropriate to conduct the electoral process.

Pointed out by the supervisory authority, § 27 section 4 of the Statute, in the opinion of the Court of first instance, also complies with the law. This provision allows the Municipal Commission to declare the elections invalid if crimes against elections or violations of the provisions of the Electoral Code have been committed, which had a significant impact on the voting results or their determination. It is up to the commune council to determine the rules and procedure for elections to an auxiliary unit. A ruling on the invalidity of the elections for the reasons specified in § 27 section 4 of the Statute falls within the concept of election mode.

Similarly, in the opinion of the Provincial Court, the declaration of validity of the elections by the Municipal Commission should be assessed in the absence of protests, as well as after considering the election protests, as referred to in § 27 section 5 of the Statute. This provision only concerns determining the validity of the elections, and not adjudicating on the validity of the elections. The City Commission does not decide anything in this respect, but only issues a declaratory act.

Assessing the Voivode's position regarding the legality of § 19 section 9 of the Statute regarding allowances for members of the district and precinct electoral commission, the court of first instance admitted to the voivode that Art. 37b u.s.g. introduces a catalog of persons to whom the Commune Council may grant a per diem allowance. In fact, the catalog of these people does not include members of electoral commissions. However, it should be borne in mind that the allowance does not constitute remuneration, but a lump-sum compensation for costs incurred in connection with the performance of duties towards the local community. Members of electoral commissions perform their work on a voluntary basis, which does not mean, however, that they cannot be compensated for the costs incurred. In these circumstances, it cannot be assumed that the possibility of granting a per diem allowance is unacceptable in a democratic state ruled by law. Although the City Council decided to grant a per diem allowance to persons not listed in the Act on Municipal Self-Government, there was no significant violation of the law in this respect.

According to the Provincial Court, the Voivode also missed the fact that the provision of Art. 37b u.s.g. grants the city council the competence to grant allowances to a specific group of people. However, this Act does not regulate the issue of elections to municipal auxiliary units; this is subject to the regulation of the resolution specifying the procedure and principles of elections. Therefore, since electoral commissions are introduced by a resolution of the city council, the same resolution may grant members of these commissions the right to a per diem allowance. Therefore, it is impossible to find in the Act the competence to grant a per diem allowance to members of the district electoral commission, since it may or may not be established by a resolution of the city council.

In the opinion of the Court of first instance, the supervisory authority is wrong in demonstrating the defectiveness of § 29 of the annex to the resolution, which provides for the possibility of dissolving the District Council before the end of its term of office by means of a referendum, upon a written request supported by at least 5% of voters from the District, unless by the end There are less than 6 months left in the Council's term of office. The chairman of the K. City Council is notified about the commencement of collecting signatures. The date and manner of conducting the referendum are determined by the K. City Council in a separate resolution. The referendum is valid if at least 10% of those entitled to vote participated in it. In the opinion of the supervisory authority, the resolution in this respect was adopted exceeding the competences of the commune council pursuant to Art. 35 section 3 point 2 of the Act and in violation of Art. 4, art. 9 section 1 and 2, art. 11, art. 12 section 1 and art. 55 of the Act on local referendum. Based on these provisions, the supervisory authority concluded that it is not permissible to introduce a referendum other than a local referendum within the meaning of the Local Referendum Act. Moreover, the Local Referendum Act regulates in detail the course of this referendum, so there is no need to regulate a separate procedure by way of an act of local law. This is where the Voivode's reservations end, determining the scope of judicial review of the act of local law.

According to the Court, the merits of the District Statute do not introduce a separate local referendum - a district referendum or a referendum of an auxiliary unit of the commune. It only introduces a separate procedure for dissolving the District Council, which cannot in any way be identified with the local referendum described in the Local Referendum Act. When deciding on this solution, the Council even had to determine the procedure for conducting this referendum. The court also noted that the assessment of whether the referendum procedure itself specified in the Statute had any defects was not the subject of any objections of the supervisory authority.

Further, the Provincial Court stated that it did not violate the law to a significant extent § 15 section 1 of the Statute. In the opinion of the Voivode, the City Council regulated in the statute of the auxiliary unit the matter subject to regulation in the City Statute, which violated Art. 35 section 3 in connection joke. 51 section 3 u.s.g. Pursuant to this provision, the commune's statute specifies the powers of the auxiliary unit to conduct financial management within the commune's budget. However, it should be noted that due to the inability to create a budget by auxiliary units, the provision of Art. 51 section 3 u.s.g. should be understood as the obligation to include in the commune budget the expenses for financing the activities of auxiliary units. Introduction to the Statute § 15 section 1 does not change this principle, but indicates the possible use of funds from the commune budget. Therefore, it does not constitute a significant violation of the law. Moreover, pursuant to Art. 48 section 1 of the Act on Municipal Services, an obligatory element of the statute of each auxiliary unit is to define the method of management and use of municipal property and the disposal of income from this source. In the opinion of the Court of first instance, the introduced § 15 section 1 does not question or modify the cited provision of Art. 48 section 1 u.s.g.

The court of merits did not agree with the Voivode's position regarding the illegality of § 23 section 2 of the Statute. This provision states that a candidate's application to the District Council must include: name, surname, residential address, age, PESEL number, profession, consent to stand as a candidate and consent to sharing personal data for use in the election campaign. In the opinion of the Voivode, the interpretation of this provision should be made in connection with § 18 section 2 of the Statute, which regulates the issues of active and passive electoral rights, which is available to persons who are 18 years old on election day at the latest and permanently reside in the District (are included in the District's voter register). If so, the obligation for a candidate to state his/her profession is unjustified because it does not in any way affect the right to vote. Moreover, providing the PESEL number leads to limiting the group of residents of the unit to people with a PESEL number.

As indicated by the Provincial Court, the Statute does not contain a definition of the voter register, but by reference to the Electoral Code it should be assumed that it contains data such as surname and first name(s), father's name, date of birth, PESEL registration number and voter's address of residence (Art. 18 § 7 of the Electoral Code). Providing the PESEL number by a candidate to the District body is not groundless, but serves to check whether the candidate is included in the District's voter register. In most cases, it may turn out that the name, surname and address will be sufficient data to identify the candidate, but special cases cannot be ruled out, to which the complainant points out, that people with the same names and surnames live at the same address. Then their identification will be possible only through their PESEL number.

The supervisory authority also questioned the obligation to provide the profession as information that does not serve to identify the candidate. In the opinion of the court of first instance, however, information about the candidate's profession is important from the point of view of the voter's decision to cast a vote. The candidate's profession may be important from the point of view of assessing his or her predispositions to perform the function. A citizen's decision to vote for a specific candidate is always subjective. Information about your name, surname and date of birth is not sufficient for this purpose. Elections to bodies of local government units or bodies of auxiliary units mean that candidates are closer to voters; because they are members of the same local community. Other predispositions of candidates also determine whether to vote for them. Voters identify more with the candidate than with the political group he comes from. Therefore, what is important is not so much the political background as personal predispositions, education and professional experience; what matters is which social group the candidate comes from. In these circumstances, the obligation of the candidate to provide his profession is, in the opinion of the Court, justified.

There is no justification for the supervisory authority's objection to the violation of the GDPR by concluding that the complainant, not being the administrator of data collected by the K. Commune, is not entitled to decide on the requirements for submitting declarations of will on the processing of personal data. Meanwhile, in accordance with the definition adopted in the GDPR, contained in its art. 4 points 7 of the GDPR, "controller" means a natural or legal person, public authority, agency or other entity which, alone or jointly with others, determines the purposes and means of the processing of personal data; where the purposes and means of such processing are determined by Union or Member State law, the controller or the specific criteria for its nomination may be provided for by Union or Member State law. As stated in Art. 35 section 1 in connection with Art. 35 section 3 points 3 u.s.g. the organization and scope of operation of the auxiliary unit, including the rules and procedure for electing the bodies of the auxiliary unit, are determined by the commune council in a separate statute. Therefore, the commune council is the controller of personal data processed in connection with elections to the bodies of the auxiliary unit. It is therefore authorized to determine the method of processing personal data in order to achieve the goal of electing a district council, including the requirement to submit appropriate declarations regarding issues related to the processing of personal data.

The Provincial Court also drew attention to the introduced in Art. 26 of the GDPR regulation, the institution of joint administration. Accordingly, if at least two controllers jointly determine the purposes and means of processing, they are joint controllers. This provision therefore applies to situations in which many entities are involved in data processing and interact with each other. However, joint determination of the purposes and means of processing cannot be done arbitrarily. The analyzed provision specifies the obligation to appropriately divide responsibilities between joint controllers, both internally - between them, and in the external context - in relation to the data subject, but also to the supervisory authority.

In the case under consideration, we are undoubtedly dealing with joint administration, as indicated by, for example, § 18 section 5 of the District Statute. Pursuant to this provision, elections to the Council are conducted by the Mayor of the City. Therefore, the complainant is the controller of data processed in connection with the organization of elections, such as accepting candidate applications, determining the composition of the Municipal Electoral Commission or the district and district electoral commission. In turn, the Mayor of the City is the administrator of data processed as part of keeping the population register and voter register of the district (§ 18(2) of the District Statute), based on which the existence of active and passive electoral rights of a district resident is established. For these reasons, the candidate's obligation to consent to the disclosure of personal data for use in the election campaign does not constitute a significant violation of the law.

In the opinion of the Court of first instance, there is no justification for the allegation that it significantly violated the law of § 30 of the District Statute, which states that the adoption and amendment of the District Statute takes place by way of a resolution of the City Council of K., after consultations with the district residents. In the opinion of the supervisory authority, this provision constitutes a modification of Art. 35 section 1 of the Act, which provides for the obligation to conduct consultations with residents, without limiting their circle to the district. According to the Court, the violation of law in this respect is insignificant. It is the residents of a given district who are interested in adopting and changing the statute for their district, not for all districts of the city. It is impossible to assume that residents of other districts are interested in changing or adopting the statute for a district in which they do not live. The wording of § 30 of the Statute, although modifying the provision of Art. 35 section 1 u.s.g. however, it reflects the actual state of affairs existing in the course of the law-making process for a given district.

Referring to the objection regarding the repetition of the provisions of the Act in the text of the Statute, the Provincial Court pointed out that the limitations on the statutory freedom of the commune, guaranteed to it by the Constitution of the Republic of Poland, the European Charter of Local Self-Government and the Act on Local Government, consist in the prohibition to regulate detailed systemic issues differently than the provisions of the Act on Local Government. and the prohibition of repeating systemic solutions adopted in statutory provisions. However, it is allowed to specify in detail the systemic solutions contained in the acts or to supplement issues that have not found legal solutions in the acts, provided that the act creates the basis for such regulation. This position is confirmed by the wording of § 137 of the Regulation of the Council of Ministers of June 20, 2002 on the "Principles of legislative technique" (Journal of Laws of 2016, item 283) - hereinafter: "Principles of legislative technique". Pursuant to this provision, the provisions of acts and provisions of other normative acts are not repeated in the resolution or order. However, the prohibition of normative repetitions expressed in § 137 of the above-mentioned regulation is not absolute. The court of first instance shared this position. Exceptionally, there may be situations where a provision is needed to "announce" further regulations, without which these regulations would seem to be taken out of context, or do not form a closed whole or are insufficiently communicative. The admissibility of exceptional repetition of provisions of the Act applies especially to such acts as statutes or regulations. Acts of this type are often the primary source of information for a certain group of recipients and therefore efforts should be made to ensure that this information is as complete as possible, which may require repetition of the provisions of the act. A similar position can be found in the jurisprudence of the Constitutional Tribunal.

Taking into account the above, the Provincial Administrative Court in Gliwice ruled as in the operative part pursuant to Art. 148 of the Act of August 30, 2002 - Law on proceedings before administrative courts (consolidated text: Journal of Laws of 2022, item 329) - hereinafter: "P.p.s.a."

The Voivode of Silesia filed a cassation appeal against the above judgment. Appealing against the decision of the first instance court in its entirety, he alleged:

I. violation of procedural rules that had a significant impact on the outcome of the case, i.e. violation of Art. 141 § 4 P.P.S.A. - due to the lack of justification for the judgment - consisting in the fact that the court of first instance did not consider the legality (questioned in the supervisory decision) of the regulation of § 32 of the annex to the resolution. In the opinion of the cassation complainant, the above-mentioned error by the Court has a significant impact on the outcome of the case, because the overturned supervisory decision was invalid in the indicated part. In view of the content of Art. 148 P.P.S.A. enabling the court to revoke the supervisory act in part - if the supervisory authority's arguments regarding the infringement in § 32 of the annex to the resolution were taken into account, the court could revoke the supervisory decision only in part, and not in full.

II. violation of substantive law, that is:

1) art. 91 section 3 u.s.g. - through its incorrect application - consisting in recognizing that the supervisory decision does not contain adequate legal justification for the finding of a violation of the law by § 5 section 1 point 2 of the annex to the resolution, because the supervisory authority limited itself to making a bare-faced allegation, which it did not elaborate on in the justification for its decision, and thus did not demonstrate any contradiction with any legal provision, while in the opinion of the cassation complainant, the Silesian Voivode indicated the legal provisions in the supervisory decision , with which the provision of the resolution is inconsistent and indicated the reasons why it is inconsistent with them;

2) art. 35 section 1 and 3 point 2 of the Act on and art. 1 of the Electoral Code in connection with Art. 87 section 1 and 2 of the Constitution of the Republic of Poland - through improper application - consisting in the finding by the Court of first instance that, as part of determining the rules and procedure for elections to an auxiliary unit of a commune, it is possible to refer in § 31 of the annex to the resolution to the provisions of the Electoral Code and apply these provisions, while in the opinion of the Complainant in cassation, clearly defined in Art. 1 of the Electoral Code Act, the subject scope of this Act does not include elections to the bodies of auxiliary municipal units, and the principle of hierarchy of sources of law expressed in Art. 87 section 1 and 2 of the Constitution of the Republic of Poland;

3) art. 35 section 1 and 3 u.s.g. in connection with art. 91 section 1 u.s.g. and from art. 87 section 1 and 2 of the Constitution of the Republic of Poland - through incorrect interpretation - consisting in the finding by the Court that the reference to the application of the provisions of the Electoral Code in matters not regulated by the resolution does not violate the law, because it does not modify the act or grant primacy of the act of local law over the act, while such the argumentation was not the basis for the allegations of the supervisory authority - which alleged in the supervisory decision that an act of local law cannot determine the validity of hierarchically higher acts and cannot impose on the addressees of the resolution the obligation to comply with the acts to which they are obliged to comply by virtue of the act itself ;

4) art. 35 section 1 and 3 u.s.g. and art. 1 of the Electoral Code in connection with Art. 91 section 1 u.s.g. and from art. 87 section 1 and 2 of the Constitution of the Republic of Poland - through incorrect interpretation - consisting in the Court's finding that the regulation of § 27 section 4 of the annex to the resolution providing for a ruling on the invalidity of elections in the district or on the invalidity of the election of a councilor if crimes against elections or violations of the provisions of the Electoral Code were committed during the elections - corresponds to the law, because it results from the general competence of the commune council to determine the principles and procedure for election to the bodies of the unit auxiliary, while in the opinion of the cassation complainant, the reference in this respect to the provisions of the Electoral Code and the offenses regulated therein and the conditioning of the use of electoral institutions in elections to the bodies of auxiliary units of the commune is unjustified and illegal, because the facts that occurred during elections in the units auxiliary municipalities, due to the different scope of the Electoral Code Act, will never be subject to subsumption under the legal norms in this Act, and therefore a resolution in this respect will be unenforceable, and if it is implemented, it will be illegal;

5) art. 35 section 3 point 2 in connection with Art. 18a section 1 and art. 35 section 3 point 5 of the Act on and art. 7 of the Constitution of the Republic of Poland - through an erroneous interpretation - consisting in the Court's finding that granting a non-statutory entity (the Municipal Electoral Commission of Districts) with the competence to control the correctness of the course and results of elections to statutory bodies, such as District bodies, as well as the power to adjudicate on the matter validity of these elections (§ 20 point 8 and § 27 of the annex to the resolution), does not constitute a significant violation of the law, because the issue of determining the validity of the elections falls within the scope of the "mode for the election of bodies of an auxiliary entity" referred to in Art. 35 section 3 points 2 of the Act, while in the opinion of the complainant, in cassation - in relation to the content of Art. 18a section 1 and art. 35 section 3 points u.s.g. and art. 7 of the Constitution of the Republic of Poland - granting broad decision-making powers determining the outcome of democratic elections to the bodies of auxiliary municipal units - to a non-statutory entity - is unacceptable and constitutes a significant violation of the law;

6) art. 35 section 3 point 2 in connection with Art. 18a section 1 and art. 35 section 3 point 5 of the Act on and art. 7 of the Constitution of the Republic of Poland - through an erroneous interpretation - consisting in the finding by the Court that it is sufficient to recognize the legality of the provision of § 20 point 8 and § 27 of the annex to the resolution is to subject the consideration of appeals against the decisions of the Municipal Electoral Commission regarding election protests to the competences of the City Council, while in the opinion of the complainant in cassation - this has no legal significance, because significant powers to decide on protests have been granted to a non-statutory group of people (the Municipal Electoral Commission) and in a situation where no appeals are filed against its decisions, the validity of the elections is also confirmed by this group of people - and this process was no longer subject to any control by the City Council. Similarly, when the Commission decides on the invalidity of the elections pursuant to the provisions of § 27 section 4 of the Statute - the City Council also does not control it, and this constitutes a significant violation of the law, in relation to Art. 18a section 1 and art. 35 section 3 point 5 of the Act on and art. 7 of the Constitution of the Republic of Poland;

7) art. 35 section 1 and 3 in connection with Art. 37b u.s.g. in connection with art. 7 of the Constitution of the Republic of Poland - through an incorrect interpretation - consisting in the Court's finding that granting members of the district and precinct electoral commission the right to a per diem falls within the power of the City Council to regulate the rules and procedure of elections in the District, while in the opinion of the complainant on cassation, exhaustive content of art. 37b u.s.g., there is no legal basis for this, which additionally violates Art. 7 of the Constitution of the Republic of Poland, ordering public authorities to act on the basis of the law - that is, on the basis of a specific legal provision, especially when it concerns the expenditure of public funds;

8) art. 35 section 3 u.s.g. in connection with art. 4, art. 6, art. 9 section 1 and 2, art. 11 section 1, art. 12 section 1 and art. 55 of the Local Referendum Act in connection with Art. 87 section 1 and 2 of the Constitution of the Republic of Poland - through incorrect interpretation, consisting in the Court's assumption that the District Statute does not introduce a separate local referendum - a district referendum or a referendum of an auxiliary unit of the commune, it only introduces a separate mode of dissolving the District Council, which cannot in any way be identified with a local referendum described in the Local Referendum Act, and when deciding on such a solution, the Council even had to determine the procedure for conducting this referendum, while in the complainant's opinion, local legal acts created on a cassation basis - as constitutional sources of law - cannot be formulated in isolation from laws in force in the legal system. If an act creates legal institutions such as a local referendum, the act of local law cannot duplicate this institution and create rules separate from the act. The legal system must be uniform and internally coherent, which means that lower-level norms that conflict with other higher-level norms should be eliminated. The introduction of a separate local referendum, whose subjective scope corresponds to the statutory referendum, and the introduction of separate rules for conducting it should also be considered unlawful - in view of the existing statutory regulations;

9) art. 35 section 1 and 3 in connection with Art. 51 section 3 u.s.g. - through incorrect interpretation - consisting in the Court's finding that § 15 section 1 of the annex to the resolution does not significantly violate the law, while in the opinion of the complainant, the Council cannot regulate the matters reserved by Art. 51 section 3 of the Act for another legal act. If the legislator requests the local legislator to regulate the above-mentioned issues through the statute of the commune (here: the Statute of the City of K.), the City Council of K. cannot, contrary to this order, regulate it in the Statute of the District - because in this way it exceeds the statutory authorization and at the same time violates Art. 51 section 3 of the Act;

10) art. 35 section 1 and 3 point 2 of the Act on and art. 1 and art. 18 § 7 of the Electoral Code in connection with Art. 87 section 1 and 2 of the Constitution of the Republic of Poland - through improper application - consisting in the finding by the Court of first instance that the obligation to provide the PESEL number specified in § 23 section 2 of the annex to the resolution are determined by the provisions of the Electoral Code, i.e. Art. 18 § 2, while in the complainant's opinion, in the light of Art. 87 section 1 and 2 and 94 of the Constitution of the Republic of Poland, a reference in an act of local law (in matters not regulated therein) - to the provisions of the Electoral Code Act is inadmissible - because it violates the elementary foundations of the principle of hierarchical construction of sources of law. It is unlawful to extend, by way of a resolution of the commune council, the scope of the provisions of the Electoral Code specified by law;

11) art. 35 section 1 and 3 point 2 of the Act on in connection with art. 5 section 1 letter c Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation ) - hereinafter referred to as "GDPR", through an erroneous interpretation - consisting in the Court's finding that the request made by the City Council in § 23 section 2 of the annex to the resolution, providing information regarding the PESEL number and the candidate's profession for electoral purposes does not violate the law, while in the opinion of the Complainant on cassation, this provision is contrary to Art. 5 section 1 letter c GDPR - and the arguments of the Court of first instance of an extra-legal nature, such as: "providing the profession is important from the point of view of assessing his predispositions to perform the function, cannot determine the non-compliance with the principle of adequacy (minimalism) specified in Article 5(1)(a) c GDPR";

12) art. 35 section 1 and 3 point 2 of the Act on through incorrect interpretation - consisting in the Court's finding that the request made by the City Council in § 23 section 2 of the annex to the resolution, providing consent for the purposes of making personal data available for use in the election campaign does not violate the law, because the administrator of personal data is both the Mayor of K. and the City Council, while in the opinion of the cassation complainant, the provisions of the challenged resolution stipulate that the participation of the K. City Council in the electoral process is limited only to defining the principles and mode of elections and ordering elections. The City Council of K. does not participate - as the Court claims - in accepting candidate applications or determining the composition of electoral commissions: city district or district. Therefore, it cannot be considered the controller or even co-administrator of personal data, and therefore is not authorized to legislate on the requirements for submitting declarations of will on the processing of personal data;

13) art. 35 section 1 and 3 point 2 of the Act on in connection with art. 87 section 1 and 2 of the Constitution of the Republic of Poland - through an erroneous interpretation - in the Court's finding that § 30 of the annex to the resolution does not constitute a significant violation of law, while in the opinion of the cassation complainant, an act of local law as a constitutional source of law should meet the legislative requirements; just as a regulation - an executive act to an act - never duplicates, repeats or modifies statutory matter, a resolution of the legislative body cannot do so; the classification of an act of local law as a constitutional source of law imposes specific substantive and formal requirements on it, therefore the scope of its regulations cannot cover the matter of other constitutional acts: acts or regulations;

Based on the above allegations, the cassating authority requested the repeal of the contested judgment in its entirety and the issuance of a substantive decision, pursuant to Art. 188 § 1 of the Provincial Administrative Court, or repeal the contested judgment in its entirety and refer the case for re-examination by the Provincial Administrative Court in Gliwice, pursuant to Art. 185 § 1 P.P.S.A. In addition, a request was made for the cassation appeal to be examined without a hearing and for the opposing party to award the costs of the proceedings in accordance with the prescribed standards to the complainant.

In the justification for the cassation appeal, the above allegations were additionally justified.

In response to the cassation appeal, City K. requested that it be dismissed and that the costs of legal representation be awarded in accordance with the prescribed standards.

In the procedural letter of July 26, 2023, the representative of the City of K. drew attention to the judgment of the Supreme Administrative Court of July 4, 2023, ref. no. III OSK 1785/21, which was decided in the same case.

The Supreme Administrative Court considered the following:

The cassation appeal has justified grounds.

Pursuant to the content of Art. 183 § 1 P.P.S.A. The Supreme Administrative Court hears the case within the scope of a cassation appeal ex officio, taking into account the existence of grounds for the invalidity of the proceedings. In this case, the Court does not find any grounds for invalidity of the proceedings.

Being bound by the limits of the complaint means being bound by the grounds for the appeal indicated in the cassation complaint and its conclusions. The Supreme Administrative Court examines all allegations of violation of the law raised by the cassation complainant (cf. resolution of the full panel of judges of the Supreme Administrative Court of October 26, 2009, ref. no. I OPS 10/09, ONSAiWSA 2010 z. 1 item 1).

Pursuant to Art. 176 P.P.S.A. the party making the cassation appeal is obliged to cite the grounds for the cassation appeal filed against the judgment of the Court of First Instance and justify them in detail, indicating which provisions of the Act were violated, what the violation was and what impact it had on the outcome of the case. The role of the Supreme Administrative Court in cassation proceedings is limited to checking and verifying the allegations of the person filing the cassation appeal.

Based on Article. 182 § 2 P.P.S.A. the case is examined at a closed session because the complaining party waived the hearing after filing a cassation appeal, while the opposing party did not request a hearing after being served with a copy of the cassation appeal.

Considering, first of all, the allegations of violation of procedural provisions that had a significant impact on the outcome of the case, it should be stated that the allegation of violation of Art. 141 § 4 P.P.S.A. - due to the lack of justification for the judgment - consisting in the fact that the court of first instance did not consider the legality (questioned in the supervisory decision) of the regulation of § 32 of the annex to the resolution.

The provision of Art. 141 § 4 P.P.S.A. it only specifies what the justification for the court's judgment is to contain. Art. 141 § 4 of the Labor Law may be violated when the justification of the contested judgment was devoid of a concise presentation of the facts of the case, the allegations raised in the complaint, the positions of the parties, the legal basis for the decision or its explanation. Moreover, a violation of this provision also occurs when the justification for the contested judgment contains all the elements resulting from Art. 141 § 4 P.P.S.A., but it is internally inconsistent or contains contradictions that cannot be explained, in other words, it does not allow for review of the contested judgment. Alleging a violation of Art. 141 § 4 P.P.S.A. However, the complaining party cannot, in cassation, challenge the correctness of the facts of the case adopted by the Court or the interpretation of substantive law made by the Court (see resolution of the panel of seven judges of the Supreme Administrative Court of February 15, 2010, ref. no. II FPS 8/09, ONSAiWSA 2010, No. 3, item 39).

The court of first instance sufficiently explained the reasons for its decision. In a manner enabling an instance review, he indicated the reasons for which he found that the contested supervisory decision did not comply with the law. Moreover, as the reading of the cassation appeal shows, the allegations made in its petitum, as well as their justification, clearly prove that the position of the Court of First Instance was expressed in such a understandable way that it allowed the body complaining in cassation to deny it.

Moving on to the assessment of the allegations of violation of substantive law that influenced the outcome of the case, it should be noted at the outset that the adjudicating panel of the Supreme Administrative Court fully shares the decision and argumentation contained in the justification of the judgment of the Supreme Administrative Court of July 13, 2023, ref. no. III OSK 1786/22.

A supervisory decision declaring the invalidity of a resolution of the commune council may be issued only when the resolution is in clear and obvious contradiction with a specific legal provision, and when this results from the content of this provision. In the light of Art. 91 section 1 sentence 1 u.s.g. in connection with from paragraph 4 a contrario, the sanction of invalidity of the resolution was reserved only for significant violations of the law. The judicature has established a position that the significant defects of a resolution, the occurrence of which results in its declaration of invalidity, include a violation of the provisions determining the competence of local government bodies to adopt resolutions, a violation of the legal basis of the adopted resolution, a violation of the provisions of systemic law and substantive law through faulty interpretation thereof and provisions regulating the procedures for adopting resolutions (see the judgment of the Supreme Administrative Court of November 26, 2019, ref. no. II OSK 2674/19, LEX no. 2777895).

Contrary to the assessment of the Provincial Court, the allegations and arguments of the Voivode's cassation complainant are justified, that the resolution No. [...] of the K. City Council of November 25, 2021 on granting the District Statute No. [...] [...], in to the extent indicated in the supervisory decision, is materially contrary to the law.

It should be agreed with the authority making the cassation appeal that § 5 section 1 point 2 and § 31 of the Statute violate Art. 87 of the Constitution, because they violate the applicable hierarchical system of sources of law. An act of local law cannot determine the validity and application of hierarchically higher acts. An act of local law cannot also determine the obligation for members of a district body to comply with the provisions of the statute, which binds the bodies of an auxiliary unit under Art. 94 of the Constitution of the Republic of Poland.

The Silesian Voivode rightly concluded that the clause contained in § 31 of the Statute on the application of the provisions of the Electoral Code to elections of bodies of auxiliary units significantly violates the law. The provision of Art. 1 of the Electoral Code defines the rules and procedure for nominating candidates, conducting and the conditions for the validity of elections:

to the Sejm of the Republic of Poland and the Senate of the Republic of Poland;

the President of the Republic of Poland;

to the European Parliament in the Republic of Poland;

to decision-making bodies of local government units;

commune heads, mayors and city presidents.

This Act does not apply to the elections of bodies of auxiliary units of municipalities. Thus, the City Council of K., anticipating that the provisions of the Electoral Code shall apply to unregulated matters, changed the scope of the Act's regulations, extending it to include matters not regulated by the resolution on the District Statute. Therefore, it de facto changed the scope of the Act by means of a provision of a local law act, which, in the light of Art. 87 and 94 of the Constitution of the Republic of Poland is inadmissible because it violates the foundations of the principle of hierarchical construction of sources of law and constitutes a significant violation of the law.

Giving a non-statutory entity (the Municipal Electoral Commission for Districts) the competence to control the correctness of the course and results of elections to District bodies, as well as the authority to rule on the validity of these elections (§ 20 point 8 and § 27 point 4 of the annex to the resolution), constitutes significant violation of the law, i.e. Art. 35 section 3 point 2 of the Act on in connection with art. 7 of the Constitution of the Republic of Poland. Controlling the correctness of the course and results of elections to district (village) bodies is within the competence of the commune council. Even in a situation where the statute of a district (village) does not provide for a procedure for questioning the results or the method of conducting elections to its bodies, the possibility of verifying their correctness by the commune council should be derived from the content of the general competence norm formulated in Art. 18a section 1 u.s.g. (see the judgment of the Provincial Administrative Court in Wrocław of September 30, 2008, reference number III SA/Wr 8/08, LEX no. 514980). In the light of u.s.g. - art. 18a section 1 and art. art. 35 section 3 point 5 - specific decision-making and decisive powers influencing the outcome of democratic elections should be entrusted to the City Council of K. or, alternatively, the Mayor of K., if the bodies of the auxiliary unit have already been elected.

The complaining supervisory authority rightly notes that the provision of § 27 section 4 of the Statute was formulated categorically and is obligatory. This means that when the condition specified therein occurs, the entity (the Municipal Electoral Commission of Districts) absolutely declares the elections invalid. The task of the Adjudicating Commission will be to determine that any crimes against elections or violations of the provisions of the Electoral Code were committed during the elections, and then to invalidate them. Thus, it will come down to the fact that it will be up to a group of people to make a free assessment and then an arbitrary decision not provided for by statutory provisions as to whether a given act can be classified as a crime and violation of the law or not.

Pursuant to Art. 516 of the Electoral Code to proceed in matters referred to in Art. 494-496, art. 498, art. 503, art. 505, art. 505a and art. 511-513b, the provisions on proceedings in petty offense cases shall apply. Thus, the competence to make findings in this area was granted to law enforcement authorities and, above all, to common courts. However, it should be noted that Art. 516 of the Electoral Code concerns clearly and specifically defined prohibited acts. Certainly, any acts committed during elections to the bodies of auxiliary municipal units cannot be classified as such - due to the subject matter of electoral crimes, which are committed only in connection with the elections:

to the Sejm of the Republic of Poland and the Senate of the Republic of Poland;

the President of the Republic of Poland;

to the European Parliament in the Republic of Poland;

to decision-making bodies of local government units;

commune heads, mayors and city presidents.

As a consequence, in the elections to the bodies of auxiliary units of the municipality, proceedings in the matters referred to in Art. 494-496, art. 498, art. 503, art. 505, art. 505a and art. 511-513b, because the acts committed in these elections will never be classified as prohibited acts in the Electoral Code. As a result, members of the Municipal Electoral Commission of Districts - replacing the court and law enforcement agencies - will make their own necessary findings and, outside the law, will classify as "electoral crimes" acts that could never be considered crimes. Then, as a result of such a faulty procedure, the members of the Commission, by determining the validity or invalidity of the elections, will determine the outcome of democratic local elections to statutory bodies. The Supreme Administrative Court shares the assessment of the Silesian Voivode that such actions should be considered unacceptable and contrary to Art. 7 of the Constitution of the Republic of Poland.

In the matter of granting members of the district and precinct electoral commission the right to a per diem allowance, the Provincial Court found that despite the lack of such legal basis in the Act - since the City Council has the right to regulate the rules and procedure of elections in the District, it also has the right to determine per diem allowances for members of the district and precinct electoral commission. district commission. Inference based on the argument a maiori from minus is illegitimate. In public law relations, the principle applies that only what is expressly provided for by law is permitted, because pursuant to Art. 7 of the Constitution of the Republic of Poland, public authorities operate on the basis and within the limits of the law, therefore the independence and freedom of municipal bodies exist only within the limits of established law. A local government body may take any action with legal effect only if the provisions of the Act expressly allow it. Local government units are decentralized, independent and self-governing entities in their activities, but within the limits of the generally applicable legal order, therefore non-autonomous and non-sovereign outside the state legal order.

Work in electoral commissions is of a social nature, and the fact of performing specific activities does not result in establishing an employment relationship with the commune. Therefore, committee members will not be entitled to allowances, remuneration or reimbursement of other costs on this basis. It should be emphasized that the legislator did not authorize the municipality's decision-making body to create such a right by way of a resolution, as it did in the regulation of Art. 5b section 11, art. 25 section 4, or Art. 37b u.s.g. In the absence of a clear legal basis for the commune council to establish allowances for members of electoral commissions acting in elections to the bodies of an auxiliary unit, the provision of § 19 section 9 of the annex to the resolution. The prohibition of going beyond the scope of one's competences applies to all forms of activity of authorities, regardless of whether they are authoritative or non-authoritarian, intentional or specific, and the principle of legalism formulates the most far-reaching restrictions and requirements for authoritative activities. Public authorities cannot make any decision without a legal basis, based solely on economic, political or moral considerations (judgment of the Supreme Administrative Court of April 8, 2008, ref. no. II OSK 362/07, LEX no. 469304), even if it were justified and treated - as indicated by the court of first instance - as compensation for the costs incurred. Competency norms should be interpreted strictly - literally, which at the same time means a prohibition on broad interpretation of these norms and deriving competences by analogy. At this point, it is worth quoting the position of the Constitutional Tribunal expressed in the judgment of June 28, 2000, K 25/99, (OTK 2000, no. 5, item 141), in which the Tribunal clearly stated that when interpreting the provisions relating to sources of law, one should bear in mind such principles adopted in the Polish legal system as: the prohibition of the presumption of legislative competences, the prohibition of interpretation extending legislative competences and the principle that assigning specific tasks to an authority is not tantamount to granting it the competence to establish normative acts aimed at implementing these tasks. tasks. If the decision-making body goes beyond the guidelines contained in the authorization, we are dealing with an exceedance of competences, and therefore with a significant violation of the law, which must result in the declaration of the invalidity of the act.

In the opinion of the Supreme Administrative Court, § 29 of the Statute is inconsistent with Art. 35 section 3 point 2 of the Act on in connection with art. 4, art. 9 section 1 and 2, art. 11 section 1, art. 12 section 1 and art. 55 of the Act on Local Referendum, which consists in the fact that the City Council modified elements of these provisions, as well as in recognizing that the above-mentioned provisions apply to referendums in an auxiliary unit of the commune. provisions of the Local Referendum Act.

Pursuant to Art. 11 section 1 u.s.g. commune residents make decisions by popular vote (through elections and referendum) or through commune bodies. The provision of Art. 12 u.s.g. provides that: The rules and procedure for conducting a municipal referendum are specified in a separate act. Pursuant to the content of Art. 2 of the Act on Local Referendum, residents of a local government unit, as members of the local government community, express their will by voting as to the manner of resolving a matter relating to this community, falling within the scope of tasks and competences of the bodies of a given unit, as well as in other important matters relating to social , economic or cultural ties connecting this community.

The above-mentioned provisions generally refer to residents of a local government unit - their right to express their will by way of a referendum. None of these acts, nor the Electoral Code, the provisions of which - in accordance with Art. 1 section 2 of the Act on Local Referendum - to the extent not regulated in the Act, it shall apply accordingly to the local referendum, it does not provide for the possibility of excluding the application of the Act on Local Referendum to a specific category of commune residents. This means that the regulations of this Act apply - without any exception - to all residents of the commune, here: all residents of City K. A resolution of the municipality's decision-making body cannot exclude the application of the Act to a specific group of commune residents (here: residents of an auxiliary unit) and subject it separate regulations of the local law - the statute of the auxiliary unit. Since the Act on Local Referendum comprehensively regulates the principles of conducting a local referendum, including the referendum initiative, their application cannot be excluded to a certain extent and then regulated differently by an act of local law. Therefore, the supervisory authority's conclusion that the provisions of § 29 section 1 sentence 1 of the annex to the resolution regarding the wording: "upon a written request supported by at least 5% of voters from the District", § 29 section 1 sentence 2 and § 29 section 2 and 3 of the annex to the resolution, were adopted exceeding the competences of the commune council pursuant to Art. 35 section 3 point 2 of the Act on and in violation of Art. 4, art. 9 section 1 and 2, art. 11 section 1, art. 12 section 1 and art. 55 of the Act on local referendum.

Referring to the allegation of violation of § 15 section 1 of the appendix to the resolution, Art. 35 section 3 in connection joke. 51 section 3 u.s.g. it should be stated that the statutory authorization was exceeded and incorrect arrangements were made regarding the financial management of the District.

In § 15 section 1 of the annex to the resolution, the City Council decided that: financial resources from the city budget for the activities of district bodies are intended for:

1) administrative and office expenses related to the operation of the headquarters of the District authorities,

2) expenses related to the organization of cultural, sports, recreational events and community celebrations in the District.

Thus, in the statute of the auxiliary unit, the Council regulated the matter subject to regulation by the statute of the City of K., which constitutes a significant violation of the law, i.e. Art. 35 section 3 in connection joke. 51 section 3 u.s.g.

Pursuant to Art. 51 section 3 of the Act: "The statute of the commune determines the powers of the auxiliary unit to conduct financial management within the commune budget." Therefore, in the statute of an auxiliary entity, the Council cannot regulate the matters reserved by Art. 51 section 3 u.s.g. for another legal act. If the legislator requests the local legislator to regulate the above-mentioned issues through the statute of the commune (here: the Statute of the City of K.), the City Council of K. cannot, contrary to this order, regulate it in the Statute of the District - because in this way it exceeds the statutory authorization and at the same time violates Art. 51 section 3 of the Act.

The Provincial Court did not find any contradiction with the law of § 23 section 2 of the Statute. This provision states that a candidate's application to the District Council must include: name, surname, residential address, age, PESEL number, profession, consent to stand as a candidate and consent to sharing personal data for use in the election campaign. Referring to the obligation to provide the PESEL number, he referred to the provisions of the Electoral Code and based his considerations in this regard on this reference. He assumed that the resolution did not contain a definition of the District's voter register, but by referring in the resolution to the Electoral Code, this register required the following data:

surname and name(s),

father's name,

date of birth,

PESEL registration number,

voter's residential address.

As mentioned above, a reference in an act of local law to the application, in matters not regulated in the resolution, to the provisions of the Electoral Code is unacceptable - because it reconciles the principle of hierarchical structure of the system of sources of law and the principle of the primacy of the act. It is unlawful to extend the scope of the Electoral Code regulations specified by law by way of a resolution of the commune council. The municipality's decision-making body does not have the competence to change the scope of the Act. Such a change can only take place at the level of the Act. Therefore, only the legislator could decide that in matters not regulated by local law, the provisions of the Electoral Code apply to elections to the bodies of auxiliary municipal units. The City Council of K certainly cannot do this. Moreover, it should be borne in mind that the provision of the resolution, which was partially declared invalid by the Voivode, was formulated in a categorical manner. According to its content: "2. The candidate's application must include: name, surname, residential address, age, PESEL number, profession, consent to stand as a candidate, and consent to share personal data for use in the election campaign." The resolution does not provide for any exceptions in this respect, nor does it provide for the entities implementing the resolution to waive the above request. The absolute requirement to present the PESEL number and profession in the application means that a person who does not have this number or profession will be deprived of the right to run for the District Council.

One must agree with the supervisory authority complaining in cassation that the interpretation of the provision of § 23 section 2 of the Statute should be made in connection with § 18 section 2 of the Statute, which regulates the issues of active and passive electoral rights, which is available to persons who are 18 years old on election day at the latest and permanently reside in the District (are included in the District's voter register). If so, the obligation for a candidate to state his/her profession is unjustified because it does not in any way affect the right to vote. Moreover, providing the PESEL number leads to limiting the group of residents of the unit to people with a PESEL number.

At this point, it should also be noted that the use of the PESEL number for electoral purposes, in the absence of a provision directly constituting the basis for the processing of this data, is redundant and inconsistent with the principle of data minimization expressed in Art. 5 section 1 letter c GDPR. According to this provision, personal data must be adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed ("data minimization"). Therefore, data processing to the extent unnecessary to achieve the purpose will constitute a violation of the provisions of the regulation. The principle of data minimization should be considered in conjunction with other principles, in particular the principle of purpose limitation. The implementation of proportionality of data processing depends on the correct determination of the purpose of processing, which determines the scope of collected data necessary to achieve this purpose. Processing data in a proportionate manner means the obligation to ensure that personal data collected by the controller are suitable for the purposes of processing and corresponding to them in terms of quantity, content and scope (see Commentary on Article 5, [in:] General Data Protection Regulation . Comment, ed. M. Sakowska-Baryła, 1st edition, C.H. Beck, Warsaw 2018). The PESEL number is the national number identifying natural persons, referred to in Art. 87 GDPR. Therefore, there is no doubt that it is subject to special protection, because the EU legislator introduced the regulation in question, taking into account the fact that the use of universal personal identifiers may pose various types of threats in the field of personal data protection (cf. P. Fajgielski [in:] Comment on Article 87 of Regulation No. 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), [in:] General Data Protection Regulation . Personal Data Protection Act. Comment, WKP Warszawa 2018, LEX/el).

The provision of § 30 of the annex to the resolution is also defective, according to which the adoption and amendment of the District Statute takes place by way of a resolution of the City Council of K. after consultations with the residents of the District. This provision constitutes an unacceptable modification of Art. 35 section 1 of the Act, according to which the organization and scope of operation of the auxiliary unit are determined by the commune council in a separate statute, after consultation with the residents. Since adopting the statute of an auxiliary unit requires consultation of all commune residents, changing such a statute will require consultation of all commune residents, not only district residents. In this respect, there cannot be any exclusive rights of the inhabitants of a given district; a resident of another district may be interested in a specific regulation in the statute of another auxiliary unit, because it may be in conflict with the interests of that resident. Therefore, limiting the group of people entitled to consult changes to the statute to residents of a given district is a significant violation of the law, which results in the need to eliminate this regulation through supervision, pursuant to Art. 91 section 1 u.s.g.

The provision of § 32 of the annex to the resolution, according to which the Statute of the District is subject to publication in the Official Journal of the Silesian Voivodeship, constitutes an unacceptable duplication of the regulation resulting from Art. 13 point 2 of the Act on the Promulgation of Normative Acts in connection with Art. 35 section 1 and 3 and art. 40 section 2 point 1 of the Act on This provision is misleading as to whether the Statute itself or the resolution to which the Statute is an annex is subject to publication. Due to the statement in § 6 that: "The resolution comes into force after 14 days from the date of announcement in the Official Journal of the Silesian Voivodeship", the above-mentioned the provision of the resolution is unnecessary.

In these circumstances, it should have been considered that the cassation appeal was based on justified grounds, and since the essence of the case had been sufficiently explained, pursuant to Art. 188 in connection with joke. 151 P.P.S.A. the contested judgment was annulled and the complaint against the supervisory decision of the Silesian Voivode of December 29, 2021, no. [...] was dismissed.

The costs were decided pursuant to Art. 203 point 2 of the Labor Code according to which, if a cassation complaint is upheld, the party that filed the complaint is entitled to the necessary costs of the proceedings from the party filing the complaint before the court of first instance. In this case, the City of K. should have awarded the Voivode of Silesia the amount of PLN 240 as reimbursement of the costs of the cassation proceedings. These costs include the remuneration of a legal advisor who is the representative of the complainant in cassation, calculated pursuant to § 14 section 1 point 2 letter and in connection with § 14 section 1 point 1 letter c of the Regulation of the Minister of Justice of October 22, 2015 on fees for the activities of legal advisors (Journal of Laws of 2018, item 265).
Retrieved from "https://gdprhub.eu/index.php?title=NSA_-_III_OSK_1789/22&oldid=35102"
Creative Commons Attribution-NonCommercial-ShareAlike
Powered by MediaWiki