After reviewing the position of the Inowrocław City Council, expressed in Resolution No. XXIV/336/2012 of 27 September 2012 concerning an application to the Constitutional Tribunal to declare provisions of the Act on Maintaining Cleanliness and Order in Municipalities inconsistent with the Constitution of the Republic of Poland, insofar as the Act obliges village heads, mayors and city presidents to organize a tender for the collection of municipal waste from property owners or a tender for the collection and management of such waste, and introduces a requirement for companies with municipal participation to enter these tenders, the councillors fully support the position presented by the Inowrocław City Council.
As a result of adding the following provisions to the Act on Maintaining Cleanliness and Order in Municipalities:
– Article 6d, which imposed on the village head, mayor or city president an obligation to organize a tender for the collection of municipal waste from property owners or a tender for the collection and management of such waste,
– and Article 6e, providing that companies with municipal participation may collect municipal waste from property owners, commissioned by the municipality, if they have been selected through a tender,
the legislature introduced a restriction on the possible ways in which a municipality can perform its own tasks.
Moreover, the challenged provisions are in obvious conflict with the principle arising from public procurement law, according to which a municipality performing its own tasks in the field of municipal services through a commercial company established by that municipality does not apply the provisions of the Public Procurement Law (the in house principle—obvious in the countries of the European Union). This principle applies even more strongly to municipal budgetary establishments.
Meanwhile, by adding Article 6e to the Act on Maintaining Cleanliness and Order in Municipalities, the legislature de facto forces municipalities to transform municipal budgetary establishments into municipal companies. This transformation entails considerable financial expenditure, effectively burdens the residents of municipalities, and still does not guarantee, given the obligation to conduct a tender, that the municipality rather than an external entity will collect municipal waste from property owners.
Articles 6d, within the challenged scope, and 6e of the Act on Maintaining Cleanliness and Order in Municipalities violate, among others, the constitutional principles of a democratic state governed by the rule of law, municipal autonomy and respect for international law binding on the Republic of Poland.
In view of the above and the fact that tenders for the collection of municipal waste from property owners or for the collection and management of such waste must soon be announced, Bolesławiec City Council respectfully asks the Constitutional Tribunal to consider the application of the Inowrocław City Council as soon as possible. Many municipalities in Poland that have invested substantial funds in establishing their organizational units responsible under their statutes for municipal waste management are awaiting the Tribunal’s decision on this matter. The announcement of tenders, and the selection of external companies under public procurement regulations, may cause many irreversible consequences, both legally and for the financial condition of municipalities.
(commissioned information)