Wtórna niekonstytucyjność przepisów ustawowych w orzecznictwie sądów administracyjnych

Abstract

The defect of secondary unconstitutionality of the law (manifest unconstitutionality) is an issue growing out of judicial practice, and its determination is a multi-stage process. In this process, the judgment of the Constitutional Tribunal performs the function of a predicate ruling (prejudykat) for the court, for which it is binding not only in the operative part of the judgement, but also in the justification. This is of particular importance for the determination of manifest unconstitutionality. What is important is not the wording of the provision affected by the defect in question, but its meaning, normative environment, purpose and legal effect. The linguistic concurrence of the juxtaposed provisions argues for secondary unconstitutionality. It is, however, a prerequisite, but not a sufficient condition for its determination by the court.