Legal opinion for the Polish Plastics Converters Association regarding the analysis of whether the resolution adopted by the City Council of Łódź on implementing a prohibition of using disposable and free of charge plastic bags in retail trade...

Prepared for the Polish Plastics Converters Association regarding the analysis of whether the resolution adopted by the City Council of Łódź on implementing a prohibition of using disposable and free of charge plastic bags in retail trade and service sectors in the City of Łódź is compliant with the law.

Domański Zakrzewski Palinka
Kancelaria Prawnicza
Spółka Komandytowa
KRS 27088
Sąd Rejonowy dla m.st. Warszawy
XII Wydział Gospodarczy

Rondo ONZ 1
00-124 Warszawa
Tel.: +48 22 557 7600
Fax: +48 22 557 7601
NIP: 527-21-62-127
www.dzp.pl
Warsaw, 29 October 2007

SOURCES OF LAW
The following legal acts where relied upon when preparing this opinion:

the Constitution of the Republic of Poland of 2 April 1997 (also referred to as the “Constitution”) ;

Act on Municipal Self-Government dated 8 March 1990 (also referred to as the “Act on Municipal Self-Government”) ;
Act on waste of 27 April 2001 (also referred to as the “Waste Law”) ;

Act on the maintaining of cleanliness and order in municipalities of 13 September 1996 (also known as the “Act on Maintaining Order in Municipalities”) ;

Act on proceedings before administrative courts of 30 August 2002 (also referred to as the “Act on Proceedings Before Administrative Courts”) ;

LIST OF DOCUMENTS
The following documents were relied on when preparing the opinion:
Agenda of the 20th session of the City Council Meeting in Łódź from 24 October 2007 (Print BRM nr 155/2007) ;

Draft of the resolution on implementing a prohibition of using disposable and free of charge plastic bags in retail trade and service in the City of Łódź (also referred to as the “Draft Resolution”);

Resolution No. XX/398/07 of the City Council of Łódź of 25 October 2007 on implementing a prohibition of using disposable and free of charge plastic bags in retail trade and service in the City of Łódź (also referred to as the “Resolution”).

FACTUAL STATUS
On 25 October 2007 the City Council in Łódź (hereinafter the “City Council”) passed a resolution (hereinafter the “Resolution”) on implementing a prohibition of using disposable and free of charge plastic bags in retail trade and service sectors in the City of Łódź. It was the opinion of the drafter – alderman Krzysztof Piątkowski – that the Resolution is aimed at reducing the quantity of waste created by plastic bags handed out to retail consumers as part of services rendered on the territory of Łódź.

The fact of passing the Resolution by the City Council is to be a good example for other local self-governments in Poland as to how solve the problem. The intent of the resolution was the introduction of similar prohibitions by other municipalities in Poland.

The introduction of the prohibition to use plastic bags in retail sales and services has stirred up a controversy. First of all, doubts arose as to whether the City Council has the power to introduce the said regulation. Lack of legal basis for the action was noted. Further, the substantive grounds for the introduction of the prohibition were also questioned. Above all, it was underscored that it is not necessarily certain that replacing plastic bags with paper bags will improve the state of the environmental protection.

LEGAL ANALYSIS

4.1. The Resolution

According to the Resolution, the prohibition will cover the use in the retail trade and services in the city of Łódź, of non-biodegradable, disposable and free of charge plastic bags, thinner than 0.1 mm, which are not the packaging of goods but serve for carrying them. The prohibition is to take effect on 1 June 2008. Breach of the prohibition to use the plastic bags may be subject to a fine levied further to procedures set out in Code of Offences . The fine is to be levied on the manager of the commercial or service facility where the plastic bags are used as packaging.

4.2. The Resolution contradicts the law (breach of Art. 94 of the Constitution and Art. 40 Clause 3 of the Act on Municipal Self-Government)

In accordance with Art. 94 of the Constitution, local self-government bodies, based on and within the boundaries of the powers set out in the act, pass local laws applicable within the boundaries of their powers. The rules and procedures governing the passing such acts are set out in the Act on Municipal Self-Government.

The Resolution includes a reference that it was passed on the basis of Art. 30 Clause 3 of the Act on Municipal Self-Government that vests the municipal councils with the powers to pass the so-called enforcement regulations. It is the opinion of the City Council that the provision set out above authorizes it to pass the Resolution.

We will analyze below if the City Council indeed applied the said provision, authorizing a municipal council to use enforcement regulations, in a correct manner. We will answer the question of whether the Resolution, as a local law, is compliant with Art. 94 of the Constitution. If it is concluded that the City Council did not apply the powers set out in Art. 40 Clause 3 of the Act on Municipal Self-Government in a correct manner, the Resolution must be classified as being in breach of the law. If the Resolution is considered to be in breach of the law then the appropriate province governor should issue a supervisory decision and hold that the Resolution is null and void. The Resolution may also be rendered as null and void as part of administrative court proceedings and, in such a situation, it would be an administrative court that would hold on the Resolution’s invalidity.

Under Art. 40 Clause 3 of the Act on Municipal Self-Government (that empowers the municipalities to pass enforcement regulations) within the scope not provided for in separate acts and other generally binding regulations, the municipal council may pass enforcement regulations as such is necessary for the protection human life or health and for the assurance or public order, peace and security. Enforcement regulations are passed based on general powers set out in the Act on Municipal Self-Government. As the authorization to pass enforcement regulations is very broad (blanket powers), the passing of local acts of law, based on the regulations, may only take place under strictly defined circumstances – all of which must occur. The prerequisites are as follows:
the subject matter that the municipality is seeking to regulate using the enforcement regulations is not set out in any separate acts and other generally binding regulations;
situation where human life or health is threatened must occur or situation threatening the public order, peace and security;
passing of the enforcement regulation is necessary for the protection and assurance of the above-mentioned benefits or values .

Given a special nature of the enforcement regulations, the conditions precedent set out above may not be interpreted in a broad, inclusive manner . Enforcement regulations are passed as an exception to the rule stating that the local law acts may be issued only on the basis of specific powers set out in the act.

In our opinion, the premises, as indicated above, necessary for the enforcement regulations to be issued, have not been met. We will prove it in the analysis to follow.

4.2.1. The Council breached the requirement that subject matter it wishes to regulate in the form of an enforcement regulation is not otherwise regulated.

We indicated that one of the premises that must be met in order for the municipal council to issue enforcement regulations is the existence of a legal loop-hole in the regulation of the subject matter at hand. The enforcement regulation may be passed only “within the scope not set out in separate acts or other generally binding regulations”.
In our opinion the Resolution does not meet this condition. It may not be admitted that the enforcement regulations set out in the Resolution were passed within a scope not otherwise regulated in separate acts. The grounds for the Resolution provide that the basic aim of the Resolution is to limit the amount of waste that, in the opinion of the Resolution drafter, is created through the use of plastic bags in retail trade and service sectors. The subject matter that the Resolution is seeking to regulate is a part of the so-called Waste Law. The obligation to undertake actions aimed at limiting the quantity of waste has already been regulated in a particular manner under generally binding law. The Waste Law is the basic fundamental normative act that regulates the matter. In accordance with Art. 5 of the Law everyone who undertakes actions that cause or may cause creation of waste should plan and conduct such activities as to:
prevent the creation of waste or limit waste and its negative impact on the environment during the creation of products, during and after their use;
assure recycling in accordance with the environmental protection rules, if it was not possible to prevent the creation of waste;
assure disposal of the waste, in accordance with the provisions of the environmental protection principles, where it was not possible to prevent waste creation or to recycle it.

The obligations set out above are regulated in an exhaustive manner in further provisions of the Waste Law.
Further, the Waste Law also includes provisions that currently set out the obligations of the territorial self-governments (including municipalities) in a detailed manner. Here we above all mean the regulations in Chapter 3a of the Waste Law. In accordance with the regulations set out in the Chapter, the local self-government units must create for all municipality citizens an organized system for the collection of all types of communal waste, assure conditions for correct functioning of selective collection and pick up of communal waste, assurance of the construction and maintenance of installations and appliances for the recycling and disposal of communal waste.

Moreover, also the matter of maintaining cleanliness in municipalities has been regulated under statutory law. The subject matter is set out in detail in the Act on Maintaining Cleanliness in Municipalities.

Protection of the values set out in the Resolution may be met based on the regulations set out in the Waste Law and the Act on Maintaining Cleanliness in Municipalities.
Hence, it follows from the above that the first of the prerequisites for passing enforcement regulations, providing that the regulations may be passed only within the scope that has not otherwise been provided for in generally binding regulations, does arise.

4.2.2. The Council failed to observe the requirement regarding the threat to human life or health and assurance of public order, peace and security.

Under Art. 40 Clause 3 of the Act on Municipal Self-Government, the municipal council may, by way of enforcement regulations, pass orders and prohibitions that only directly act to assure public security of life or health and public order, peace and security .

We are certain that there are no grounds for holding that the lack of regulations prohibiting the use of plastic bags creates a threat to human life or health. This can be inferred, among other arguments, from the fact that products including polyethylene, the substance used to make the plastic bags has not been listed in the Waste Law in the category of dangerous waste. As products made of polyethylene have not been classified to the group of dangerous waste, it is difficult to expect that they will cause a real, direct threat to human life or health. It should also be pointed out that plastic bags are legally used in commercial trade, therefore it should be assumed that they substantially may not be harmful to people.

It follows from the above that the second prerequisite that would allow such regulations to be passed under a situation of direct threat to human life or health, as well as for security, order and public peace, has not been met either.

4.2.3. Breach of the requirement of the necessary (mandatory) issue of enforcement regulations for the protection of human life or health and for the assurance for public order, peace and security.

Another condition necessary to state that the enforcement regulations were passed in a manner compliant with the law is that the enforcement regulations are passed only when such is necessary (mandatory) for the protection of goods and values such as public life and health and order, peace and security.

We believe that the condition of necessity has not been met. This is supported by the fact that regulations aimed at correct management of waste have already been regulated under the Polish statutory law. As the Constitutional Tribunal stated that the enforcement regulations may be applied only when it is not possible to effectively counteract the threat to values set out in Art. 40 Clause 3 of the Act on Municipal Self-Government (health, life) on the grounds of the existing legal regulations . If such actions may be undertaken on the basis of existing law then the enforcement regulations may not be passed in the subject matter. This conclusion may be drawn even from sheer linguistic interpretation of the definition of “necessary”. “Necessary” which “one cannot due without, absolutely needed, unavoidable” .

We believe that currently there are ways to protect human heath and life from waste. Such ways have been provided for in the Waste Law, where Art. 1 stipulates: “The Law sets out principles for handling waste in a manner as to assure the protection of human life and health and protection of the environment in accordance with the principles of sustained development and, in particular, principles for preventing the creation of waste or limiting the quantity of waste and its negative impact on the environment as well waste recycling and disposal.”

It may not be concluded that the passing of the enforcement regulations by the way of the Resolution was unavoidable or necessary for the protection of human health or life.
Further, it should be underscored that the municipal council powers to set up enforcement regulations may not be used for the on-going management over the given territory but only to counteract real threat to the values set out in Art. 40 Clause 3 of the Act on Municipal Self-Government . Any enforcement regulations that do not meet this prerequisite must be seen as breaching the principle of necessity. The Resolution seems to be the type of act which is to be applied in the city’s management of commercial trade conditions. They may not be regarded as the act serving as the counteracting measure for a direct threat to goods and values stipulated in Art. 40 Clause 3 of the Act on Municipal Self-Government.

Regulations drafted to counteract the threat must also meet the principle of proportionality. We believe that the condition has not been met either. The legal regulations, as introduced, also breach the principle of utility (one of the detailed principles arising from the principle of proportionality), as, in the light of the information we posses, the principles set out in the Resolution will not lead to the realization of the goal of protecting human life and health and public security and order. The discussed regulations of the Resolution may be omitted with ease. It would be sufficient for the merchants not to hand the bags out for free but, for example, to charge PLN 0.01 for handing a bag out. The bags would no longer be free of charge, while the Resolution is applicable only to such bags. Further, it is also possible to manufacture and sell bags that are slightly thicker than the regulated 0.1mm. This again would protect the retailer who would use such bags against the breach of prohibition set out in the Resolution. The Resolution is applicable only to plastic bags of thickness of 0.1mm or less.

We are of the opinion that the Resolution does not meet the third prerequisite – meeting the criteria of necessity (mandatory requirement) to pass enforcement regulations.

CONCLUSION
The Resolution does not meet the necessary prerequisites set out in Art. 40 Clause 3 of the Act on Municipal Self-Government. That provision provides unequivocally that the enforcement regulations may be passed only to the extent not otherwise regulated in separate acts or other generally binding regulations, and the municipal council may pass enforcement regulations only if such is necessary for the protection of human life or health and to assure public order, peace and security. Thus, the Resolution breaches the said Art. 40 Clause 30 of the Act on Municipal Self-Government.
Further the Resolution is not consistent with the statutory powers set out in Art. 40 Clause 3 of the Act on Municipal Self-Government and breaches Art. 94 of the Constitution.
As such, either the province governor or the administrative court should hold that the Resolution is null and void (as it breaches the law).

Krzysztof a. Zakrzewski
Legal Advisor, Managing Partner