Abstract

The commented judgment concerns the right of an association member to request finding whether a resolution of the governing body thereof which does not refer to his membership is non-existent. In its resolution SN (7) of 20 October 2015 the Supreme Court found that “Art. 189 of the Code of Civil Procedure may not serve as the grounds for the request of an association member to find a resolution of the governing body thereof which does not concern his membership non-existent”. Substantiating its position and referring to the literal wording of Art. 29 of the Associations Act the Supreme Court found that in case of an unlawful action of an association the supervisory authority or the prosecutor have at their disposal sufficient control capabilities and repressive measures. However, assuming the a priori presumption of lawmaker’s rationality, as well as with a view to the systemic and functional interpretation of the analysed regulations, it should be stated that the position of the Supreme Court seems to introduce a major dissonance to the regulation of associational problems with respect to the standards of a democratic state ruled by law, thus making the present Polish non-governmental sector truly “imperfect”. Therefore, it should be asked whether vesting such a broad spectrum of powers in a supervisory authority is not a manifestation of excessive interference in the autonomy of an independent entity? As there are no doubts as to the idea of restricting the arbitrary powers of a state vis-a-vis a person, its realization depends of the shape of institutions typical of a state ruled by law. As a result, it makes one conclude that it should evolve towards the sphere of freedom for civic activities as an institutional response also as regards legal admissibility of challenging the above-mentioned resolution by association members, situated outside of public administration.