„Zazielenianie” prawa cywilnego – ochrona dóbr osobistych a zielony konstytucjonalizm i prawa środowiskowe
“Greening” the civil law – protection of personal interests in the light of the concepts of environmental constitutionalism and environmental rights

Summary/Abstract: The concept of environmental constitutionalism, describing the state’s duty to protect the environment correlated with the rights of individuals, may be used to characterise the relations between environmental protection and the socio-political system of a modern democratic state in the era of the transformation towards sustainable development. The state’s legal system cannot be neutral in that regard. It is particularly important in case of the challenges resulting from Poland’s international and EU law obligations, especially under the Aarhus Convention and human rights law. On this basis, it can be claimed that environmental protection as a duty of the state is a “positive obligation”, in light of which the possibility to exercise rights by individuals may be assessed, including environmental ones (substantive and procedural). When the state fails to fulfil the duty to create the necessary legal framework and to secure its effective enforcement, it may result in the exposure of the members of the public to the degraded environment (e.g., to the ambient air of a bad quality, i.e. smog). Thus, they should be able to rely on international and EU law guarantees while seeking legal remedies, including civil lawsuits. In such a context, the 2021 Supreme Court resolution in case III CZP 27/20 illustrates the actual degree of “greening” the concept of private interests in Polish law. The article aims to present the environmental law’s perspective and evaluate the relevant argumentation visible in the SC’s reasoning and the glossators’ commentaries. The findings can be used to support the thesis that any constructive debate about “greening” Article 23–24 of the Civil Code requires an interdisciplinary approach.

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