Defended by the ultimate Court by the revised MEN Regulation on the organisation of the teaching of religion in public kindergartens and schools is completely incompatible with the Education and Constitution Act," the Constitutional Court stated on Wednesday. According to the Constitutional Tribunal, the Ministry of Education, erstwhile preparing changes to the education law concerning spiritual lessons, failed to comply with the request in the applicable legal acts to act in agreement with the churches and another spiritual unions. The CCC, on the another hand, dismissed the proceedings in the another parts under appeal, since ‘if the subject-matter of the review is incompatible with at least 1 standard of control, it is unnecessary to regulation on the compatibility of the contested normative act with the another models’.
By application of 27 August this year, the president of the ultimate Court requested that the Regulation of the Minister of Education of 26 July 2024 amending the Regulation on the conditions and manner of organising the teaching of religion in public kindergartens and schools be wholly incompatible with the Constitution and with another models of control, as a consequence of an infringement by the MEN at the time of its adoption of Article 25(3) of the Constitution, consisting of a deficiency of adherence to the constitutional rule of the consensual way of regulating relations between you and the Churches and another spiritual unions.
According to the applicant, this non-compliance was besides to consist in violating Article 12(2) of the Law of 7 September 1991 on the education strategy in conjunction with Article 92(1) in conjunction with Articles 2 and 7 of the Constitution of the Republic of Poland, which was to find the conditions and manner for the organisation of the discipline of religion in a manner incompatible with the content of the statutory mandate.
"The applicant so raised the general allegation that the Minister of Constitutional Education and the statutory procedure required for the adoption of this regulation and the failure to comply with the rule of democratic regulation of law and the rule of legalism" - said the Judge-Rapporteur of the Constitutional Education Tribunal Krystyna Pawłowicz.
Before issuing the judgment, the Constitutional Tribunal heard an extended justification for the appeal against the MEN Regulation.
“The word “agreement” under Article 12(2) of the Law on the Education strategy should be understood explicitly as reaching a consensus, that is, consent between the parties who are curious in the case,” said before the Court the typical of the applicant (i.e. the ultimate Court) Dr. Joanna Pawlikowska, quoting examples of case law in this regard. "This consensus has not been reached, only limited to certain arrangements, the exchange of letters between the Polish Episcopal Conference and the Ministry of National Education. The MEN has limited itself only to consultation, sometimes a courtesy exchange of correspondence, while the petition that was addressed to the First president of the ultimate Court shows that the MEN did not search an agreement, a consensus, but simply stood in its position, pushing the changes it proposed.
According to the ultimate Court, this incompatibility so consisted in not complying with the work to act in agreement with representatives of the Churches and another spiritual unions.
"Negative assesses, and specified has been done by the Court in the present case, has prejudged the non-compliance with the Constitution and the Education strategy Act of the Minister of Education of 26 July 2024 in its entirety", said justice Krystyna Pawłowicz, reading the justification of the judgment.
In the opinion of the Constitutional Tribunal, the procedure for issuing the regulation "conforms Article 25(3) of the Constitution, that is, the principles of a consensus way of regulating relations between the State and the Church". The mandate contained in Article 12(2) of the Law on the Education strategy was besides violated, "because the Minister of Education issued a regulation unilaterally, ignoring the positions of representatives of the Catholic Church and another Churches and spiritual unions".
– The Minister of Education did not comply with the request to act “in agreement” [with the Churches and spiritual Unions – KAI], identifying them only with the request to inform about the draft regulation," continued justice Pawłowicz.
The Constitutional Tribunal so ruled that the regulation is wholly incompatible with Article 12(2) of the Law on the Education strategy in conjunction with Article 92(1), Article 25(3), Article 2 and Article 7 of the Constitution of the Republic of Poland, ‘because of the failure to comply with the appropriate procedure for issuing the regulation, namely the deficiency of action in the agreement’.
‘In accordance with the settled case law of the Constitutional Court, if the subject of the review is incompatible with at least 1 standard of control, it is unnecessary to regulation on the conformity of the contested normative act with the another standards. For this reason, the Court dismissed the assessment of the remaining substantive allegations and dismissed the proceedings in this regard", the Judge-Rapporteur said.
– As a consequence of the Court's judgement in the present case, the current contested regulation is lost in its entirety," added justice Pawlowicz. Therefore, as she explained, it recovers the earlier wording of the MEN Regulation on how to organise spiritual lessons of 14 April 1992.
President Julia Przyłębska, on the another hand, informed that "the verdict is final and has been in force since the announcement here in this room." – It is immediately published in the applicable authoritative diary of the laws of the Republic of Poland, but it is simply a method activity – she added.
MEN informed the Constitutional Tribunal in a letter dated 24 September that it would not take a substantive position on the substance under consideration by the Court, since it refers, like another authorities of the State, to the resolution of the Sejm of 6 March 2015 on the removal of the effects of the constitutional crisis of 2015-2023 in the context of the activities of the Constitutional Tribunal.
TK president Julia Przyłębska and after her besides justice Krystyna Pawłowicz replied that the judgement of the Court of Justice of 28 May ‘this resolution was declared incompatible with the Constitution, as resolutions of the Sejm are not sources of common law and cannot exempt anyone from compliance with the Constitution and laws’. “The position of the MEN is so proof of rejection of the Polish legal order,” said Krystyna Pawłowicz.
No position on the MEN regulation was taken by the lawyer General, leaving unanswered correspondence addressed to him by the Court, which was completely disregarded by the Polish constitutional body, the Constitutional Court," said justice Pawłowicz.
Although the Ombudsman did not rise any objections to the proceedings, he sent a number of reservations to the Constitutional Tribunal, including the procedure for issuing the regulation.
The decision-making composition of the Constitutional Court on this substance was the president of the Constitutional Tribunal Julia Przyłębska – Chairman, justice Krystyna Pawłowicz – rapporteur and justice Bogdan Święczkowski. The ruling was unanimous.
History of the dispute
The Ministry of National Education published on 26 July 2024 an amendment to the Regulation on the conditions and manner of organising religion in public kindergartens and schools. According to the changes planned by the Ministry, the institution would be obliged to organize spiritual lessons in a given branch or class if not little than 7 students or pupils of a given branch or class were enrolled in those classes.
The change was intended to include the fact that inter-branch or inter-class groups could be organised not only erstwhile there were less than 7 people in a given branch willing to participate in spiritual lessons but besides more. As Minister Nowack said in the media, if there are, for example, 10 students in 1 class who go to religion and in the another 8 they can be combined into 1 group.
The Regulation besides provides for the anticipation of merging children from different years into groups. This has so far been possible only at 1 level of teaching. In primary school, the group will be able to include children from grades I-III, IV-VI and VII-VIII. The number of pupils in the inter-branch group in kindergarten and in grades I-III shall not exceed 25. The number of students in the inter-branch or inter-class group at school in another classes must not exceed 28.
The regulation, as planned by the Ministry, was to enter into force on 1 September. However, the Catholic Church and Churches of the Polish Ecumenical Council on 22 August petitioned the ultimate Court, containing circumstantial reservations and a request for the ultimate Court to request the Constitutional Court to examine compliance with another legal acts of the procedure for issuing the MEN Regulation on the conditions for organising spiritual lessons.
– We besides requested that the Constitutional Court request that the Minister of National Education be granted a warrant by obliging the Minister of Education to amend the Regulation of 26 July by postponeing its entry into force until 1 September 2025. Which should let the Court to deal calmly with the case – said Fr Leszek Gęsiak, the spokesperson of KEP. Both petitions were besides forwarded to president Andrzej Duda.
In consequence to these petitions, the First president of the ultimate Court requested the Constitutional Court to examine the constitutionality of the revised MEN Regulation.
Specific allegations against MEN
The NS alleged a number of legal flaws to the contested regulation, including non-compliance in full with Article 25(3) of the Constitution of the Republic of Poland, non-compliance with Article 12(2) of the Law on the Education strategy in conjunction with Articles 2 and 7 of the Constitution of the Republic of Poland, non-compliance with Article 53(3) in conjunction with Article 48(1) of the Constitution of the Republic of Poland, non-compliance with Articles 2 and 24 of the Constitution in conjunction with Article 65(5) of the Basic Act and non-compliance with Article 12(1) of the Concordat between the Holy See and the Republic of Poland.
The first president of the SN pointed to the non-compliance of the regulation in its entirety with Article 25(3) of the Polish Constitution "which infringes the constitutional rule of consensus on how to regulate relations between the state and churches and another spiritual unions". Furthermore, this is inconsistent with Article 12(2) of the Law on the Education strategy in conjunction with Articles 2 and 7 of the Polish Constitution, which “regards the definition of the conditions and manner of organising the learning of religion in a way incompatible with the content of the statutory delegation”.
The proposal stressed that although members of the church squad participating in the MEN talks on changes in the organisation of spiritual lessons at school could express their position towards the presented assumptions, the intent of the gathering was not to scope a consensus. "The authorities of the Ministry of Education have been in the position from the beginning that they are obliged only to consult representatives of the Church without any work to agree on the amendments being prepared", the president of the ultimate Court noted.
In addition, the president of the SN alleged that part of the contested regulation was incompatible in so far as it provides the basis for the organisation of spiritual learning in inter-branch or interclass groups involving children from different levels of teaching. The first president sees incompatibility with Article 53(3) (the right of parents to supply children with education and moral and spiritual teaching according to their beliefs) in connection with Article 48(1) of the Polish Constitution (the right of parents to rise children according to their own beliefs).
The proposal besides states, inter alia, that the concordat between the Holy See and the Republic of Poland, which refers to guarantees from the State, will guarantee in schools of different types of spiritual education, while recognising the right of parents to rise spiritual children and the rule of tolerance.
The SN besides challenges the MEN Regulation against non-compliance with Articles 2 and 24 of the Constitution in conjunction with Article 65(5) of the Basic Act by ‘the application of the contested rules will lead to an unexpected (in view of the monthly vacatio legis only) simplification in the request for spiritual teachers in educational institutions, which, in view of the failure of teachers to get qualifiers for the teaching of another subjects, poses a real threat to their abrupt failure of employment, in breach of the rule of protecting citizens' assurance in the state and their rights, the rule of protection of work and the work to conduct policies aimed at full, productive employment’.
The application for review of the constitutionality of the contested regulation was accompanied by a request for a safety to suspend the application of the contested provisions pending the examination of the application of the ultimate Court by the Constitutional Court.
The Constitutional Tribunal issued a safeguard order on 29 August, thus suspending the application of the provisions of the Regulation of 26 July until the Court’s final ruling. The regulation so did not enter into force with the fresh school year on 1 September.
Source: KAI
