Normative Content of the Principle of Direct Application of the Constitution

The principle of direct application of the Constitution is of fundamental importance for the horizontal effect of individual's rights. It is expressed in Art. 8 para. 2 of the Polish Constitution, according to which the provisions of the Constitution shall apply directly, unless the Constitution provides otherwise. The content of this provision first raises a question about the sense of its inclusion in the fundamental law. After all, with regard to other normative acts, the Constitution as a rule does not communicate the principle of their direct application. It is assumed that, because these acts are in force, they should be applied. Moreover, the requirement of applying the Constitution is derived not only from Art. 8 para. 2 of the Constitution, but also from many other provisions thereof. According to them, the Constitution is the supreme law (Art. 8 para. 1) and a universally binding law (Art. 87 para. 1 of the Constitution), while the organs of public authority must function on the basis of, and within the limits of, the law (Art. 7 of the Constitution). Last but not least, if citizens have the duty to respect the law of the Republic of Poland (Art. 83 of the Constitution), and the Constitution itself is an element of this law, then it is included in the body of laws to which they must adhere. All of these points lead to the conclusion that the purpose of Art. 8 para. 2 of the Constitution was therefore not to prescribe that the Constitution must be applied, but to highlight that it must be applied in a special way, that is directly, unless otherwise provided therein. In connection with the foregoing there arises the question of how one should understand the concept of ‘direct application of the Constitution.’

In search for the answer to this question, it is worth noting the call, in the Preamble to the Constitution, to ‘all those who will apply this Constitution for the good of the Third Republic.’ In this case there is no doubt that this 36 requires a very broad interpretation of the term ‘application of the Constitution,’ which goes beyond the application of the law by state authorities.