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8ЮРИДИЧЕСКИЕ НАУКИ
УДК 351.79(438)
COOPERATION IN THE PROCESS OF DEVELOPMENT AND ADOPTION OF SPATIAL MANAGEMENT PLANS OF POLISH MARINE AREAS: ISSUES OF ADMINISTRATIVE LAW*
T. Bqkowski
The principles and mode of spatial planning and management of Polish marine areas are established by the Act of 21 March, 1991 on Marine Areas of the Republic of Poland and Maritime Administration. In that respect the regulations of the Act are aligned with provisions of Directive 2014/89/EU of the European Parliament and of the Council establishing a framework for maritime spatial planning, which imposes on Member States of the European Union, among others, an obligation to ensure participation of the public, the concerned institutions and bodies in the process of preparing spatial plans for sea areas, and cooperation with other European Union Member States and third countries (not belonging to the European Union).
In conformity with the Directive, Polish regulations provide for a broad range of entities authorised to participate in the procedure of development of spatial management plans of sea areas. The participation is obvious at various stages of plan development (and even at adoption thereof). In addition, the cooperation in the process of development and adoption of spatial management plans of Polish marine areas takes a variety of forms.
The cooperation of different entities in the procedure of development and adoption of spatial management plans of Polish marine areas involves numerous interesting theoretical and practical legal issues, the most essential of which have been mentioned and commented on as extensively as the formula of this paper has allowed.
Keywords: maritime spatial planning; marine (sea) areas; cooperation of public administration; Polish regulations; marine areas of the Republic of Poland.
T. Баковски. СОТРУДНИЧЕСТВО В ПРОЦЕССЕ РАЗВИТИЯ И ПРИНЯТИЯ ПЛАНОВ ТЕРРИТОРИАЛЬНОГО УПРАВЛЕНИЯ ПОЛЬСКИМИ МОРСКИМИ ЗОНАМИ: ВОПРОСЫ АДМИНИСТРАТИВНОГО ПРАВА**
Принципы и режим территориального планирования и управления морскими зонами Польши установлены Законом от 21 марта 1991 г. о морских территориях Республики Польша и Морской администрации. В этом отношении положения Закона приведены в соответствие с положениями Директивы Европейского парламента и Совета Европы 2014/89/ЕС, устанавливающей основу для морского территориального планирования, которая, в частности, налагает на государства-
* This paper has been based on results of the research done under the research project of the Narodowe Centrum Nauki (National Science Centre, Poland), No. 2015/19/B/HS5/03240 «The Administrative Law Issues of Spatial Planning and Management of Marine Areas of the Republic of Poland» and provides a presentation of a fragment of the project's output.
** Работа основана на результатах исследований, проведенных в рамках исследовательского проекта Narodowe Centrum Nauki (Национальный научный центр, Польша) № 2015/19/B/HS5/03240 «Вопросы административного права территориального планирования и управления морскими зонами Республики Польша», и представляет фрагмент результатов проекта.
члены Европейского союза обязательство обеспечить участие общественности, заинтересованных учреждений и органов в процессе подготовки территориальных планов для морских зон и сотрудничество с другими государствами-членами Европейского союза и третьими странами (не входящими в Европейский союз).
В соответствии с Директивой польские нормативные акты предусматривают широкий круг организаций, уполномоченных участвовать в процедуре разработки планов территориального управления морскими зонами. Участие очевидно на разных этапах разработки плана (и даже при его принятии). Кроме того, сотрудничество в процессе разработки и принятия планов территориального управления польскими морскими зонами принимает различные формы.
Сотрудничество различных организаций в процессе разработки и принятия планов территориального управления польскими морскими зонами включает в себя множество интересных теоретических и практических правовых вопросов, наиболее важные из которых были упомянуты и прокомментированы настолько широко, насколько позволила формулировка этой работы.
Ключевые слова: морское территориальное планирование; морские зоны; сотрудничество государственного управления; польские нормативные акты; морские зоны Республики Польша.
Spatial management of marine areas is a relatively fresh development. It is being assumed that the idea of covering sea areas with spatial management planning, in line with the solutions applied on shore, started taking shape in the mid-20 century [13, p. 8].
The reasons for the need to manage sea areas in a planned way are similar to those underlying land spatial planning. Sea counts among limited resources (as do all its components), despite the public's naïve belief in its apparent immensity. And it was exactly in the 20th century that the sea areas were made subject to comprehensive exploitation on a scale unknown before. At that very time, besides the traditional use of the sea as a space of navigation, «unlimited» fish catching or an area of defence, offshore mining industry and the building and installation of submarine transmission infrastructure developed rapidly. The seas and oceans also started being treated as a source of marine genetic resources used in various branches of economy [7, p. 47-53]. A new, dynamically developing line of food industry, known as aquaculture, emerged in sea areas [10, p. 16]. The sea has become an attractive space for acquiring renewable energy sources, and thus also a place of installation of devices for power production and transmission. Add to it the scientific research, accompanying various fields of marine exploitation (and not only them) and the use of the areas for sport and tourism purposes, and the maritime space starts appearing as a multifunctional space, in which coexistence of many forms of human activity does require introduction of legal and planning regulatory instruments. In these circumstances, in order to protect such basic values as life, health, environment, broadly understood security (including security of the states), economic freedom (viewed through the lens of effective, but above all rational economy), the launching of legal and planning processes involving marine areas
is not only justified, but - at the current stage of economic development - just necessary.
The legal basis for activities in that respect, regarding sea areas belonging to Member States of the EU, has become the Directive 2014/89/EU of the European Parliament and of the Council establishing a framework for maritime spatial planning (OJ EU L 257 of 23.07.2014, p. 135, hereinafter the «Directive 2014/89»). It requires Member States having access to sea to „establish maritime spatial plans as soon as possible, and at the latest by 31 March, 2021", and before that, to «bring into force the laws, regulations and administrative provisions» necessary to develop the plans by 18 September, 2016. In the latter respect, Directive 2014/89 specifies general rules upon which national legal regulations providing for the ways and mode of development and establishment of marine area spatial management plans should be based. These concern, among others, the principle of cooperation.
The concept of cooperation principle in the process of spatial planning and management of marine areas
According to the principle of cooperation in the process of planning and spatial management of marine areas, as derived from Directive 2014/89, «Member States' authorities, equipped by national law with competence to undertake and carry out maritime spatial planning activities, are required to cooperate with relevant entities from other Member States and third countries and with national authorities, institutions and entities interested in provisions of the developed and adopted spatial development plans of sea areas» [3, p. 130]. The principle is founded upon both the recitals and body of Directive 2014/89. As recital 20 of the Directive puts it, «Member States should consult and coordinate their plans with the relevant Member States and should cooperate with third-country authorities in the marine region concerned
in conformity with the rights and obligations of those Member States and of the third countries concerned under Union and international law. Effective cross-border cooperation between Member States and with neighbouring third countries requires that the competent authorities in each Member State be identified. Member States therefore need to designate the competent authority or authorities responsible for the implementation of this Directive. Given the differences between various marine regions or sub-regions and coastal zones, it is not appropriate to prescribe in detail in this Directive the form which those cooperation mechanisms should take».
In the light of Directive 2014/89 cooperation at the interstate level is manifested also in data and information sharing between Member States, as referred to in recital 24, according to which «With a view to ensuring that maritime spatial plans are based on reliable data and to avoid additional administrative burdens, it is essential that Member States make use of the best available data and information by encouraging the relevant stakeholders to share information and by making use of existing instruments and tools for data collection, such as those developed in the context of the Marine Knowledge 2020 initiative and Directive 2007/2/EC of the European Parliament and of the Council».
The above mentioned formula of cooperation in also included in the body of Directive 2014/89, viz. Art. 10 para. 1, stating that: «Member States shall organise the use of the best available data, and decide how to organise the sharing of information, necessary for maritime spatial plans».
Also from Art. 14, titled «Monitoring and re-porting», results the obligation of Member States to send copies of the maritime spatial plans, including relevant existing explanatory material on the implementation of the Directive, and all subsequent updates, to the Commission and to any other Member States concerned, within three months of their publication.
Articles 11 and 12 of Directive 2014/89 (Cooperation among Member States and Cooperation with third countries, respectively) focus solely on cooperation of Member States bordering marine waters with the aim of ensuring that maritime spatial plans are coherent and coordinated across the marine region concerned. The cooperation is supposed to be pursued via: 1) the existing regional structures of institutional cooperation, such as regional sea conventions; 2) networks or structures of relevant Member States' authorities; 3) any other methods meeting the above presented requirements, e.g. in the context of sea-basin strategies.
As far as cooperation with third countries is
concerned, Art. 12 of Directive 2014/89 provides that «Member States shall endeavour, where possible, to cooperate with third countries on their actions with regard to maritime spatial planning in the relevant marine regions and in accordance with international law and conventions, such as by using existing international forums or regional institutional cooperation».
Covered by the principle of cooperation in the process of planning and spatial development of marine areas, as stemming from Directive 2014/89, is also (if not predominantly) participation of the public, including economic operators, authorities and other relevant institutions. This stems, initially, from recital 21 of Directive 2014/89: «The management of marine areas is complex and involves different levels of authorities, economic operators and other stakeholders. In order to promote sustainable development in an effective manner, it is essential that stakeholders, authorities and the public be consulted at an appropriate stage in the preparation of maritime spatial plans under this Directive, in accordance with relevant Union legislation».
The model for the provisions concerning public consultations is, mentioned in the recital in question, Art. 2 para. 2 of Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/ EC (OJ EU L 156 of 25.06.2003, p. 17). [As the above mentioned regulation provides, «Member States shall ensure that the public is given early and effective opportunities to participate in the preparation and modification or review of the plans or programmes required to be drawn up under the provisions listed in Annex I. To that end, Member States shall ensure that: a) the public is informed, whether by public notices or other appropriate means such as electronic media where available, about any proposals for such plans or programmes or for their modification or review and that relevant information about such proposals is made available to the public including inter alia information about the right to participate in decision-making and about the competent authority to which comments or questions may be submitted; b) the public is entitled to express comments and opinions when all options are open before decisions on the plans and programmes are made; c) in making those decisions, due account shall be taken of the results of the public participation; d) having examined the comments and opinions expressed by the public, the competent authority makes reasonable
efforts to inform the public about the decisions taken and the reasons and considerations upon which those decisions are based, including information about the public participation process»].
Additionally, pursuant to Art. 9 of Directive 2014/89, Member States are obliged to establish means that would ensure «public participation by informing all interested parties and by consulting the relevant stakeholders and authorities, and the public concerned, at an early stage in the development of maritime spatial plans, in accordance with relevant provisions established in Union legislation» and also to provide that the relevant stakeholders and authorities, and the public concerned, have access to the plans once they are finalised.
And, finally, it must be indicated that actions subscribing to the principle of cooperation can be found among the minimum requirements for maritime spatial planning, as specified in Art. 6 of Directive 2014/89. Deemed as such requirements should be: 1) ensuring the involvement of stakeholders in accordance with the above mentioned Art. 9; 2) providing for trans-boundary cooperation between Member States in accordance with Art. 11; 3) promotion of cooperation with third countries in accordance with Art. 12 of Directive 2014/89.
Ways and forms of cooperation in the process of development and adoption of spatial management plans of Polish sea areas
The rules, ways and procedure of spatial planning and management of Polish marine areas are provided for by the Act of 21 March, 1991 on Marine Areas of the Republic of Poland and Maritime Administration (consolidated text: Journal of Laws of 2017, item 2205, as amended - hereinafter: AMA), the present wording of which law has been aligned with the guidelines specified in Directive 2014/89, also as far as the obligation to ensure participation of the public, the concerned institutions and bodies in the process of preparing spatial plans for sea areas, and cooperation with other European Union Member States and third countries (not belonging to the European Union) is concerned.
In conformity with the above outlined provisions of Directive 2014/89, Polish regulations establish a wide range of entities authorised to participate in the procedure of development and adoption of spatial management plans concerning Polish marine areas, at various stages thereof.
Cooperation, as a phenomenon accompanying, in many cases, the implementation of public tasks (and present also in the process of development and adoption of spatial management plans for Poland's sea areas) not only may - and does - take different forms or have various intensity, but it is also mentioned in diversified reference systems
(frames). Among the above discussed guidelines of Directive 2014/89, the first of such reference systems concerns the issues of inter-state cooperation. Secondly, such cooperation takes place, as an only too natural scheme, within the public administration operating inside the country. Cooperation in that respect is regarded as a special legal form of actions taken by the administration [9, p. 334], though - on the other hand - the concept of cooperation among the administering entities, according to some legal scholars, includes a plethora of various forms itself [12, p. 507]. The third of the reference systems mentioned in Directive 2014/89 is the broad set of the relationships binding the authorities and the public. It is well-worth noting at this point that in modern legal regulations of the states referred to as democratic ones, ever heavier stress is being laid on empowerment of entities from beyond the system of public administration and their actual impact on the implementation of public tasks. The cooperation of public administration (public administration bodies) with the society (individuals and their organisations), taking various forms and displaying various intensity, becomes a standard of modern administration systems [1, p. 77; 6, p. 155-165; 11, p. 44-50].
The alignment of Polish legal order with provisions of Directive 2014/89 concerning, in particular, the shape of AMA, also involved introduction of the three above mentioned reference systems into the legal regulations of the process of development and adoption of spatial management plans of Polish sea areas.
A presentation of legal arrangements in that respect should, however, be preceded by referring to Art. 37a AMA, specifying agencies competent in matters of maritime spatial planning, i.e. the bodies with whom the cooperation in the process of development and adoption of the plans is to be carried out. Pursuant to that provision, the agencies competent in issues of maritime spatial planning are: the minister for matters of maritime economy (currently the Minister for Maritime Economy and Inland Navigation) and the directors of maritime offices, respectively. Under the legal order in force, the minister competent for matters of maritime economy is a central government body of maritime administration, the directors of maritime offices (who directly report to the minister), being local agencies of maritime administration. Under the territorial division of Poland's sea areas there exist three entities administered by the maritime office directors, viz. those of Gdynia, Slupsk and Szczecin. Hence the ways and forms of cooperation in the process of development and adoption of spatial management plans of Polish marine areas, indicated below, concern performance of the tasks,
the minister for maritime economy and directors of maritime offices are entrusted with.
A regards the field of inter-state cooperation, the minister competent for matters of maritime economy, pursuant to Art.37j AMA, carries out cross-border cooperation regarding spatial planning and management of internal sea waters, territorial sea and the exclusive economic zone and cross-border exchange of spatial data necessary for the process of maritime spatial planning. Meanwhile, the directors of maritime offices participate in proceedings concerning cross-border environmental impact, being one of the stages of the procedure of development of draft spatial management plans for Polish marine areas, as discussed below.
The cooperation in the process of development and adoption of spatial management plans takes place, in particular, at the stage of development of a draft plan, responsible for which stage is the territorially competent director of maritime office. The initial action in that respect consist in notifying all the participants, indicated by law, that work on the draft plan has been started. To that end, the director of a maritime office makes the information (and information on the option to file comments on and proposals for the draft plan) public, by announcing it in the nationwide press, placing it on the office's notice board and in the Public Information Bulletin. The right to submit the comments and proposals in question is universal, which means that everybody (natural and legal persons, organised units not vested with legal personality or even bodies of public administration, as the latter case must not be ruled out) may, using the tool of comments or proposals take their position on the way in which specific parts of Poland's marine areas are to be managed. The announcement, made by the director of a maritime office, specifies the form, place and deadline for filing the comments and proposals; the time must not be shorter than 60 days of the date of the information having been made public.
Next, the director of a maritime office, notifies, in writing, the institutions and public administration bodies authorised (and bound) by law to seek an agreement or opine on the draft plan that the work on it has been commenced.
At the next stage the submitted comments and proposals are reviewed and a decision is made how (and whether) to take them into account in the drafted plan. It should be clarified at this point that a common feature of the proposals (regarded as an expression of a citizens' initiative) and comments (being statements that criticise or question the drafted provisions of the plan) is their relative effectiveness. Filing them makes the addressee (the
director of a competent maritime office) obliged to receive them, take a position on their substance and disclose (in the discussed case - to the public) the way of considering them, due reasons for the decision made on the matter being provided. There is no obligation to accept them, though. Decisions of the director of a maritime office as to the consideration of the comments and proposals result from the planning-related powers and the amount of discretion entrusted to the agency by law. The criterion of assessment of soundness of the comments and proposals should be the state's planning policy, public interest, and - actually, first of all - the values which, pursuant to the provisions of AMA, must be given special attention when drafting the plan. These are specified in Art. 37b para. 1 AMA, according to which the draft of a plan is drawn up by the director of a maritime office, using the ecosystem-based approach and keeping in mind: 1) the support to sustainable development in the maritime sector, taking into account business, social and environmental aspects, including improvement of the condition of natural environment and resilience to climate changes; 2) national security and defence; 3) coordination of activities of relevant stakeholders and uses of the sea.
It must not be forgotten that the discussed proposals and comments are not legal measures used to protect legal interest of the individual and, consequently, in the event of their rejection, the law does not offer any legal opportunities to appeal against it, neither under judicial nor administrative proceedings.
Pursuant to provisions of AMA, the above indicated forms of cooperation of entities from outside the system of public administration are repeated during the next stage of the planning procedure, i.e. after the draft spatial management plan of Polish marine areas, developed by the director of a maritime office and then opined and agreed on by agencies and institutions mentioned in AMA has been released to the public.
It should be noted that during the time destined to submission of comments and proposals to the already specified (released to the public) drafted plan, and - putting it more accurately - pursuant to Art. 37e para. 1 subpara. 10 AMA, during the third week of display of the draft (which should, by the way, be available for at least six weeks), the director of a maritime office is obliged to arrange a public discussion on the drafted solutions. There is no doubt that the public discussion, as provided for by the Act, is yet another form of the public's cooperation in the process of development and adoption of spatial management plans of Polish marine areas.
Provisions of AMA do not provide a definition
of the public discussion, nor do they specify the way in which it should be held. Let us observe that the very concept of public discussion has been introduced into the procedure of development of spatial management plans of Polish marine areas following the model existing in the Act of 27 March, 2003 on Spatial Planning and Management (consolidated text: Journal of Laws of 2018, item 1945 - hereinafter «SPMA»). In that piece of legislation, the public discussion is part of the procedure under which a municipal study of conditions and directions of spatial development and the local spatial management plan are being worked out. It is rather telling that the SPMA does not contain a definition of public discussion, either, nor does it establish the rules, form or way of conducting it. Due to that, in legal writings a view has been widely accepted that, given the lack of legal requirements, the bodies expected to hold a public discussion and responsible for performance of the task have been granted discretion in that respect - not an absolute, though, it being indicated that the discussion should not be limited to the relevant stakeholder being simply offered an opportunity to have a say [8, p. 125]. In a similar vein, the Supreme Administrative Court took its position on public discussion in the ruling of 20.06.2006 (II OSK 227/06). In it, the Court stated that while the body holding a public discussion has discretion in carrying it out, the requirement of public nature of the discussion must be preserved. In the opinion of the said Court, a public discussion can take the shape of e.g. open meetings or a publication of statements in the press. Additionally, it was also stressed in the ruling that the essence of a public discussion lies in the fact that the participating stakeholders express their opinions on the solutions proposed in the drafted plan, which is supposed to canvass the views of specific social groups or relevant communities on them. And it was also recognised that the public discussion has only an opinion-giving nature, and its result is not binding on the bodies conducting the planning procedure. It seems that nothing prevents recognising that the presented standpoints on the character and minimum requirements, placed by SPMA provisions on the public discussion mentioned in them, are also binding on the (public) discussion held in the process of development of spatial management plans of Polish marine areas.
The stage of processing the developed draft of a spatial management plan of Polish marine areas also abounds in cooperation relationships emerging between the director of a maritime office, carrying out the procedure and being responsible for it, and other agencies of public administration and institutions. These consist in the drafted plan being opined and agreed on.
Pursuant to Art. 37c para. 1 subpara. 7 AMA, the draft of a spatial management plan of Polish marine areas is opined on by: 1) the voivodship (regional) heritage conservator - competent for areas covered by heritage protection and ones proposed to be covered; 2) director of a regional water management authority of the State Water Management Entity «Polish Waters» - as regards: a) the impact exerted on areas particularly threatened by flooding, save for the technical zone, b) alignment of provisions of the drafted plan with the requirements concerning the use of waters of a specific water region and conditions for use of catchment basin waters (if developed); 3) minister competent for healthcare matters - regarding management of protection zones of health-resorts and areas of spa nature; 4) relevant mining inspectorate - as far as mining areas and management thereof is concerned; 5) agencies competent for matters of strategic assessment of environmental impact; 6) director of a regional water management authority of the State Water Management Entity «Polish Waters» - for compliance of the plan with the programme of sea water protection and environmental objectives set for sea waters.
Under Art. 37c para. 1 subpara 6 AMA, the draft of a spatial management plan of Polish marine areas is agreed with: 1) heads of (rural) municipalities and mayors of towns and cities situated in the immediate vicinity of the area covered by the drafted plan - as regards impact of provisions of the plan on management of the technical zone, protection zone, sea harbours and havens and spatial management of the municipality; 2) regional director of environmental protection - regarding provisions of the draft plan which can have impact on conservation objectives of a nature reserve, nature protection of a landscape park and an area of protected landscape, and provisions of the plan that can exert a significant adverse impact on a Natura 2000 site; 3) Minister of National Defence and ministers competent for matters of: economy, energy, fishery, environment, water management, internal affairs, tourism, communications, transport, culture and national heritage conservation regarding issues falling within their remit; 4) marshal (head) of the voivodship (region) - concerning areas of distribution of public purpose investments of voivodship (regional) importance, as provided for by the spatial management plan of the voivodship; 5) national park superintendent, for provisions of the plan that can affect nature conservation within the national park; 6) entities managing sea harbours of fundamental importance for national economy - on the plan's provision which can influence development of the harbours.
Embedded in the legal writings and court jurisprudence (see e.g. the ruling of the Supreme Administrative Court of 15.02.1999, OPK 14/98) is the view on the nature of specific forms of cooperation of public administration agencies, in which forms the agencies take their position on a given issue. Both in the processes of law application and enactment, binding and non-binding forms of cooperation can be distinguished [4, p. 140]. The former ones include, inter alia, agreements. The non-binding forms are opinions, unless a specific provision of law makes them binding (see the ruling of the Supreme Administrative Court of 13.10.1997, II SA 203/97). Such a meaning should be assigned to opinions and agreements made under the procedure of development of a spatial management plan of Polish marine areas.
It should be observed at this occasion that, regardless of the binding force of both forms of cooperation, the director of a maritime office is obliged to turn to the above listed agencies requesting that they should make themselves acquainted with the document and take a position on it. Meanwhile the agencies, pursuant to Art. 37g AMA, within their territorial or operational competence, are supposed to participate in development of the plan, at their own expense. Making the above agreements and presenting opinions should, pursuant to the provision referred to, take place not later than within 45 days of the date on which the drafted plan was made available. Failing to present a standpoint within the time-limit is equivalent to the plan being agreed or opined on, respectively.
After modifications, if any (which changes may result from agreements, opinions and comments incorporated), the drafted plan is subjected to further treatment, also considered a form of cooperation. This includes presentation of the drafted plan by the director of the maritime office, to: 1) the minister competent for matters of regional development to check compliance of the draft with the objectives and directions set in the long-term development strategy of the country, the mid-term strategy of the country's development and other development strategies; 2) the minister competent for matters of construction, spatial planning and management and housing to verify its compliance with the concept of the spatial management of the country, being the main act of spatial planning and management at the national level [2, p. 309] and with programmes specifying governmental tasks, worked out based on the act by ministers and central agencies.
As already mentioned above, the procedure of development of the spatial management plan of Polish marine areas also includes inter-state cooperation taking the form of cross-border cooperation, since pursuant to Art. 37e para. 1 subpara. 15 AMA,
the director of a maritime office, at the stage of development of a drafted spatial management plan of Polish marine areas participates in proceedings concerning cross-border environmental impact. In the Polish legal system the procedure has been provided for by a separate Act of Parliament, viz. the Act of 31.10.2008 on Disclosure of Information on the Environment and Its Protection, Participation of the Public in Environmental Protection and Assessments of Environmental Impacts (consolidated text: Journal of Laws of 2018, item 2081, as amended).
The cooperation of public administration agencies also occurs in the last phase of the planning procedure, that is the adoption of spatial management plans of Polish marine areas, taking the legal shape of an ordinance (being, from the formal point of view, an act of secondary legislation to AMA). As Art. 37a AMA provides, spatial management plans for marine areas of the internal sea waters, territorial sea and the exclusive economic zone are adopted, by means of an ordinance, by the minister competent for matters of maritime economy and the minister competent for matter of construction, spatial planning and management and housing in consultation with the minister competent for: the environment, water management, culture and national heritage protection, agriculture, fishery, transport, internal affairs, and Minister of National Defence. Under the currently existing political structure the ordinance will thus be enacted by two ministers: the Minister for Maritime Economy and Inland Navigation and the Minister for Investments and Development, in consultation with six ministers: the Minister of Environment, Minister of Culture and National Heritage, Minister of Agriculture and Rural Development, Minister of Infrastructure, Minister of Internal Affairs and Administration and Minister of National Defence.
The authorisation for enactment of the ordinance, as contained in Art. 37a AMA, viewed, in particular, from the angle of the above presented circle of the entities authorised, provides a good reason to draw attention to two issues. The first concerns the way of enactment of the ordinance (by two ministers, upon prior consultation with the listed six ones). The joint «labelling» of the ordinance by two ministers definitely makes it necessary to them to strike a consensus on its substance. It should thus be assumed that between the ministers being «co-authors» of the ordinance cooperation should take place, ending in their mutual agreement on the content of the act in question. In addition, the drafted ordinance, reflecting mostly the provisions included in the spatial management plan of Polish marine areas, is supposed
to be developed «in consultation» with the above mentioned six ministers. In legal writings it is generally recognised that the action taken «in consultation» is very close to (if not identical with) the actions launched «with the consent of» or «upon agreement» [5, p. 190-191]. This, in turn, makes it clear that enactment of the ordinance in question is only possible where heads of eight governmental departments were actually unanimous.
The other issue stems, in fact, from the above indicated (though seldom met in practice) participation of such a big number of ministers, sometimes representing branches of governmental administration being very distant (in terms of the matters dealt with) from one another. The large group of state agencies participating in enactment of the ordinance (and, consequently, implementation of provisions of spatial management plan of Polish marine areas) is a clear proof how many spheres of public life are connected with the marine environment and how diversified the public tasks falling within those spheres, carried out in the marine areas, are.
The above discussed solutions, provided for by the AMA, even if viewed from the angle of cooperation alone, reveal the degree of complexity of the process of development and adoption of spatial management plans of Polish marine areas. As can be easily noticed, the cooperation of various entities in the procedure of development and adoption of spatial management plans of Polish marine areas entails a large number of interesting theoretical and practical legal issues which deserve an in-depth research going far beyond the limitations of this paper and being definitely well-worth tackling.
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БАКОВСКИ Томаш - доктор юридических наук, профессор, заведующий кафедрой административного права. Гданьский университет; юрисконсульт. Польша. Гданьск. E-mail: [email protected]. ORCID 0000-0002-93-63-2124.
BAKOWSKI, Tomasz - Doctor Habilitatus, Professor, Head of the Department of Administrative Law. University of Gdansk; Legal Counsel. Poland. Gdansk. E-mail: [email protected]. ORCID 0000-0002-93-63-2124.
