We are winning against the regulator because for us the Constitution is law in action, not a piece of paper!
We won in front of the Chief Inspector of Construction Supervision with another regulator - Polish Water.
The case concerned the execution by MPWiK in Warsaw in a record time of several months of a supplementary transmission system across the Vistula to the Czajka Wastewater Treatment Plant in connection with the 2020 Czajka failure. The District Building Inspector (PINB) ordered MPWiK (by a so-called "police" decision) to immediately remove the consequences of the failure while maintaining the continuity of wastewater transmission. The law is silent on whether such a PINB decision exempts MPWiK from the obligation to obtain decisions under other laws. Assuming that MPWiK would have to act according to standard procedures would mean the need to obtain more than 10 additional decisions. This would take about 4.5 years, and the transmission system had to be completed immediately! Referring to constitutional values, we argued that the obligation to obtain decisions under other laws in cases such as "Czajka" would nullify the purpose of the "police" decision and contradict the purposes of additional decisions. Wody Polskie still fought our concept in 2022, citing legal opinions from law faculties specializing in construction law based on a linguistic interpretation of the regulations in disregard of the Constitution and the function of the law.
The General Inspector of Construction Supervision (GINB) confirmed our argumentation, writing after us, among other things, that: "[...] the essence of the order issued under Article 66, paragraph 1, item. 1 u.p.b. is not to restore the state before the occurrence of the identified circumstances causing danger to human life or health, the safety of property, or the environment, but to bring about a state in which the danger will be eliminated [...] The questioned decision of the PINB [...] is a decision issued in injunction proceedings, characterized by the necessity of taking immediate action [...] the purpose and function of the obligation imposed under Article 66 (1) [...] support the necessity of its immediate execution. Requiring additional [...] administrative decisions would nullify the purpose of issuing a decision under this procedure [...] the purpose of acting [...] under Article 66 [...] is to protect such values [...] as human life and health and environmental protection."
Regarding MPWiK's actions based on our legal concept, the proceedings were undertaken by two divisions of the Warsaw Regional Prosecutor's Office: judicial and investigative. GINB, confirming our concept, communicated its decision to the Prosecutor's Office, among others. We would like to thank MPWiK and the Mayor of the City of Warsaw for trusting us that just causes are favored by the law and that emergencies require out-of-the-box solutions!
We advise MPWiK in all areas concerning "Czajka": civil law, commercial law, construction law, real estate law, environmental law, water law, criminal economic law, banking law, insurance law, public procurement law, as well as court and administrative proceedings and corporate governance and compliance law.
MPWiK was represented by attorney partner Prof. Michał Romanowski and senior associate r.pr. Aleksander Orzeł.
9 November 2022Author: Michał Romanowski
Protection of constitutional freedoms and rights
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