Smog-related Questions

In connection with the latest judgment in the Ms. Grażyna Wolszczak vs. Poland case, I received various questions about smog-related litigation cases. The following note briefly explains what are, in my opinion, the most interesting points of this case, basing on available press releases. (1)

The judgment of January 24, 2019 is subject to appeal. After the district court’s (Sąd Rejonowy dla Warszawy-Śródmieścia) judgment, the parties may file appeals to the regional court (here, Sąd Okręgowy in Warsaw). The judgment in Wolszczak vs. Poland case is the first one I know that brought a favorable result for a person harmed by smog in Poland.

We do not know the reasons behind the judgment; the reasoning had most probably not been prepared when this note was published. Without that text, it is difficult to explain why the press stressed the importance of Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe (Official Journal of the European Union No. 152, p. 1). The Directive was implemented in Poland through 23 legal acts and, as every directive, applies as to the result. Mention of the directive may mean that the case will have a wider judicial relevance, including potentially a preliminary reference procedure before the Court of Justice of the European Union (CJEU). This is only speculation for now.

What is interesting in this case is that the court found a violation of the right “to use the values of an unpolluted natural environment”. According to press reports, “the right to freedom was also violated because the claimant had to restrict her outdoor activities and her privacy was restricted by exposing her to breathing polluted air.”

Cases of infringement of personal rights are not the simplest, and personal rights are subjective rights. Violation of them is unlawful, unless circumstances that exclude unlawfulness are proven. This creates such protection that supplementing the catalog of personal rights provided in Art. 23 of the Polish Civil Code by the courts is a slow process; it occurs rarely and makes a difference. One of the rights indicated only in jurisprudence is, for example, the right to protect the memory and heritage of a deceased relative.

Art. 23 CC The personal rights of a person, in particular: health, freedom, honor, freedom of conscience, name or pseudonym, image, the secret of correspondence, privacy of the home; scientific, artistic, inventive and rationalizing creativity, remain protected under civil law regardless of the protection provided for in other statutes.

In the context of the right to a clean environment, the judgment of the Polish Supreme Court’s of 1975 provides some insight:

The right to an unpolluted biological environment and to satisfy the aesthetic feelings of the beauty of the landscape may be protected by the means provided for in art. 24 of the [Polish] Civil Code only if the violation of this right is at the same time an infringement or threat to personal rights within the meaning of Art. 23 CC. Such a situation could arise e.g. in the case of littering the garden under the window or directly covering the view of the park – then there would be a violation of a specific personal right. (2) [my translation – EF]

Following this, comments to the Polish Civil Code provide:

There is no doubt, however, that in the case of activities related to the natural environment, if they have a negative impact on the living conditions and psycho-physical condition of people, it is possible to claim protection of personal rights that may suffer or be harmed by such actions, such as health, privacy of the home or privacy in general. (3) [my translation – EF]

This would explain why the judgment in the case of Ms. Wolszczak vs. Poland is reported to refer to infringement of two other rights of the actress, i.e., the right to privacy and the right to freedom, unchallenged as personal rights.

The reference to the report of the Polish Supreme Audit Office is a positive aspect of the matter (edit: a joint report by the Supreme Audit Office is now also available here, in English).

Further comments will be possible after the publication of the reasoning (I assume that a request for its preparation will be submitted), and, above all, after the final resolution of the case. It is possible that the case will be heard by higher courts (the Polish Supreme Court, CJEU). Right now, there are several more smog-related cases pending. Keep in mind when following news about these matters that the list of personal rights is open and, historically, Art. 23 of the Polish Civil Code was subject to interpretation that allowed the enforcement of other personal rights, in addition to the ones listed in the Code. Such approach allows the courts to adjust personal rights to the understanding and expectations of citizens; however, this would occur in the context of the entire legal system. In Poland, there is no principle of precedent (I wrote about it in the previous entry), but such cases as Wolszczak vs. Poland show how important the direction of adjudication adopted by the courts is. I hope that the path taken in this matter will improve the protection of our living environment.

(1) I am basing this post on “Grażyna Wolszczak wygrała ze skarbem państwa! Smog w Polsce narusza jej dobra osobiste” of 24.01.2019, by Martyna Śmigiel, Gazeta Wyborcza.

(2) Judgment of the Supreme Court dated 10 July 1975, case file no. I CR 356/75.

(3) M. Gutowski et al., Kodeks cywilny. Tom I. Komentarz do art. 1–352, Warsaw 2018, commentary to Art. 23, note 18, Legalis.

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