When preparing to cut down a tree, you need to arm yourself not only with a well-sharpened axe, but also with the appropriate permit. If you fail to obtain one, you may be fined up to several hundred thousand zlotys per tree. It is not only the dizzying amount, but also the strict rules which determine its severity, including in particular its independence from the degree of our culpability. If you have instructed a third party to remove a tree, if you are in a state of emergency, if you are justifiably mistaken about the law, if you are in a special personal or economic situation, or even if you pose a threat to human life or health, you cannot rely on any of these circumstances to avoid liability if you fell a tree without a permit.
Pursuant to Article 83(1) of the Act of 16 April 2004 on Nature Protection (consolidated text Dz.U. of 2013, item 627, as amended), hereinafter referred to as: “u.o.p.”, the removal of trees or shrubs from real estate may, as a rule, take place only after obtaining an appropriate permit from the head of the commune, mayor or town mayor. A few exceptions to this rule are set forth in Art. 83.6 of the L.L.P., pursuant to which the requirement to obtain a permit does not apply to, inter alia, removal of fruit trees – with minor exceptions, as well as trees whose age does not exceed 10 years.
From the perspective of the property owner, and in particular his pocket, the regulation set out in Article 84.1 of the Act on Public Property, which establishes the obligation to pay fees for removal of trees, is also important. The principles for the payment of fees and the manner of determining their amount are, in turn, specified in the regulation of the Minister of the Environment. The fees are not among the lowest and depend on the type and species of tree removed and its trunk circumference. For example, an entrepreneur who wants to remove a beech tree which is several dozen years old and has a trunk circumference of 1 metre will have to pay as much as PLN 21,185.43. The owner of the property is exempt from the obligation to pay fees only in the case of removal of trees referred to in article 86.1 of the Act on removing trees.
Better to pay in advance
Although the fees for legal tree removal are often criticised by lawyers and entrepreneurs alike as being too high, they are still lower than the fine that the municipality will impose if it finds that a tree was removed without the required permit. Pursuant to Article 89(1) of the Act, the fine is as much as three times the amount that would have been paid if the tree had been cut down in accordance with the law. In the context of the above example, this means that an entrepreneur who removes this beech tree without a permit may be charged a fine of as much as PLN 63 556,29.
However, it is not the amount of the administrative fines described that causes the greatest controversy among both property owners and legal scholars. Apart from the case where it is possible to preserve the viability of a tree despite the damage, the law does not explicitly provide for any possibility for the administrative body to waive the penalty or reduce its amount depending on the motivation of the offender or other factual circumstances of the case. This practice of the authorities has been accepted by the judicature, which indicates that administrative liability is objective, which means that it is incurred regardless of the perpetrator’s fault (cf. inter alia the judgment of the Supreme Administrative Court of 5 March 2009, ref. no. II OSK 291/08, available in the Central Database of Administrative Court Judgments, http://orzeczenia.nsa.gov.pl.
Objective responsibility, but is it fair?
The adoption of an objective liability regime in relation to administrative fines is of great importance in practice. As follows from the judgment of the Supreme Administrative Court of 21 January 2010 (ref. no. II OSK 140/09, available at CBOSA, http://orzeczenia.nsa.gov.pl), this responsibility is not excluded by acting in a state of absolute necessity, i.e. for example, a situation where not removing the tree would endanger property or people. As a result, administrative liability is more restrictive for the perpetrator than criminal liability, as acting in a state of emergency would, under Art. 26 of the Penal Code, result in the exclusion of unlawfulness or guilt and an exemption from liability, which in turn cannot occur under administrative law.
An identical conclusion also results from the analysis of Article 30 of the Penal Code, which provides that a person who commits an act in justified unawareness of its unlawfulness does not commit a crime. However, even in the situation when such unawareness is not justified, the court may apply to the perpetrator an extraordinary accumulation of punishment. There is no similar regulation in the administrative law, which led the Voivodship Administrative Court in Olsztyn in its judgment of 20 January 2006 to an unequivocal conclusion that ignorance of the law has no impact on the obligation to pay administrative fines (ref. II SA/Ol 781/05, available at CBOSA, http://orzeczenia.nsa.gov.pl). Even ordering a third party to cut down trees may not result in exclusion of the property owner’s liability in a situation where the owner knew about their actions or could have prevented them (cf. inter alia the judgement of the Supreme Administrative Court of 30 March 2011, ref. no. II OSK 568/10, available in CBOSA, http://orzeczenia.nsa.gov.pl.
The overall assessment of the administrative fines in question is also influenced by the systemic position of administrative courts, to which decisions imposing these fines may be appealed. Pursuant to Article 1 of the Act – Administrative Court System Law, administrative courts review these decisions solely based on the criterion of their compliance with the law, and cannot assess the fairness, purposefulness or even compliance with the rules of social co-existence of the decision imposing the penalty (so: WSA in Olsztyn of 3 November 2009, ref. II SA/Ol 816/09, available in CBOSA, http://orzeczenia.nsa.gov.pl). This means that in certain situations it would be more beneficial for the offender if removal of trees without a permit constituted a prohibited act as a criminal offence rather than an administrative tort – as is currently the case.
For a decision to the Constitutional Court
The severity of administrative fines was demonstrated, among others, by a farmer from the Warmia-Mazury Province, who had to pay PLN 101 000 for cutting down a poplar tree without a permit, and by the owner of a plot of land in Łódź, who was fined PLN 150 000 for removing a beech tree. Both claimed that they had felled trees which were already dead, and that the removed poplar had also been damaged by lightning and could have fallen over at any time, posing a fatal threat to people, so it was unreasonable to demand such high fines.
Neither the administrative authorities, nor provincial administrative courts, nor even the Supreme Administrative Court agreed with this argumentation. As a result of cassation appeals examined in both cases, the court stated that all circumstances raised by the appellants are irrelevant due to the objective character of administrative liability (cf. judgment of the Supreme Administrative Court of 11 January 2011, II OSK 2057/09 and judgment of the Supreme Administrative Court of 25 January 2011, II OSK 100/10, available in CBOSA, http://orzeczenia.nsa.gov.pl.
The penalised persons did not stop with the decision of the Supreme Administrative Court and in 2012 they submitted a motion to the Constitutional Tribunal for examination of the consistency of Article 88 paragraph 1 point 2 and Article 89 paragraph 2 of the A.o.p. with the provisions of the Constitution, claiming that it is unacceptable that the provisions do not allow taking into account individual circumstances of the case when making judgements. The Prosecutor General and the Ombudsman have already presented their position on this matter, holding that the provisions in question are inconsistent with the Constitution of the Republic of Poland, and in particular with the principle of social justice expressed in Article 2. However, the opposite opinion was expressed in an official position of the Parliament, which, based on the existing line of jurisprudence, insists on the compatibility of the provisions of the Public Procurement Law with the Constitution of the Republic of Poland.
It is currently difficult to unambiguously predict what position the Constitutional Tribunal will take. Until now – in the course of control of quite similar regulations – the Constitutional Tribunal has consistently maintained that administrative fines as such may be incurred regardless of the degree of guilt of the perpetrator due to, inter alia, order-preventive functions fulfilled by administrative law (cf. judgment of the Constitutional Tribunal of 18 April 2000, K 23/99, OTK 2000, no. 3, item 89; judgment of the Constitutional Tribunal of 12 April 2011, P 90/08, OTK-A 2011, no. 3, item 21. P 90/08, OTK-A 2011, No 3, Item 21). Thus, the Constitutional Tribunal has never yet explicitly ruled on the inconsistency of provisions establishing administrative fines on the basis of objective liability with the Basic Law. Are we facing a precedent?