Konstytucyjna wolność przedsiębiorczości i jej ograniczenia ważnym interesem publicznym. Uwagi w kontekście reżimów stanów nadzwyczajnych oraz zdarzeń okresu pandemii
Constitutional Freedom of Economic Activity and Its Limitations Due to Important Public Interest. Comments in the Context of Extraordinary Measures and Pandemic

Summary/Abstract: Entrepreneurial freedom is a fundamental „pillar” of the social market economy. Its presentation in chapter I of the Polish Constitution of April 2, 1997, proves its importance in the context of macroeconomic and macrosocial policy. Constitution allows for the limitations of this freedom only for an important public interest and only by law (acts of parliament). The author tries to show that ”important public interest” should be specified by precise references to the specific goods, constitutional values or those that are derived from European Union Law. Of particular importance is the standard of justification and the distinction between the restriction of economic freedom and the legal conditions for interference with this freedom, in order to enable this interference to be carried out in accordance with the law. Polish constitutional system provides specific restrictions of freedom of entrepreneurship in three extraordinary measures: a state of natural disaster, a state of emergency, and martial law. Constitution does not provide such restrictions during the imposition of the so-called „intermediate” states: a state of an epidemic threat, and an epidemic state. Meanwhile, legislation adopted in connection with the pandemic led to the „circumvention of the Constitution” by 1) issuing laws introducing limitations allowed for during the extraordinary measures, especially during a state of natural disaster, 2) providing statutory authorization to issue regulations that limit economic freedom and harming its essence. Such a state of affairs is justified by the primacy of politics, the erosion of the democratic state ruled by law, which leads to a greater threat: it becomes a state of unconstitutional lawlessness.

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