Powtórna niekonstytucyjność prawa w Polsce — uwagi na tle praktyki i doktryny niemieckiej

The obligation to enforce the Constitutional Tribunal’s judgments, derived from Article 190 para. 1 of the Constitution, explained in negative terms, means a prohibition on the legislature to make laws being identical in content with those already found unconstitutional. Infringement of this obligation is contrary to the principle of constitutionalism and means that the legislature has gone beyond the scope of regulatory discretion shaped by the Tribunal’s case law. Under current law, the Tribunal does not have, in fact, any instruments allowing them to assess how the enforcement of judgments. The only possible response by the legislature to the repetition of “constitutional mistake” would be carrying out a repeated review of regulations introduced to the legal system to enforce the judgment. The issue has long been debated in German legal literature and in the Federal Constitutional Court. The discourse is dominated by the view that any possible extension of the effect of the judgment (declaring the unconstitutionality) on a subsequent norm of the identical content, or imposing on the legislature an obligation to repeal it, would not be in conformity with the principle of separation of powers. This would require a departure from the principle of accusatorial procedure and principle of binding limits of application limits of the application or ongoing monitoring by the Tribunal of the condition of legislation which would make it more like to a supervisory authority than a constitutional court.