Case: The Youth Council of City X has the following provisions in its statute:
The Youth Council of the City makes all decisions in the form of an act.
Acts of the Youth Council are adopted by open voting.
- Could the Youth Council of the City have granted itself legislative powers as defined in the statute?
- Are decisions made in the form of an act binding?
The analysis should begin by recalling the provisions of Article 5b(10) of the Act on Local Government. According to this regulation: “The municipal council, when creating a youth council, shall give it a statute defining in particular the principles of operation of the youth council…”. A simple literal analysis of the referred provision indicates that the Youth Council of the City could not grant itself such powers, since it is not the one defining the content of the statute, but the proper municipal council. The wording of such a statute is determined by the adoption of an appropriate resolution by the municipal council. It should be noted that the Youth Council of the City could not grant itself the competences specified in the statute.
The statute of the Youth Council of the City is determined by the municipal council by way of a resolution. On a side note, it should be mentioned that municipal council resolutions are often subject to public consultations. By participating in the consultations, young people can influence the shaping of the resolutions, but their final wording is adopted by the municipal council in a vote on the appropriate resolution. A separate issue is the reference to “legislative competences”.
The wording of the statute, “The Youth Council of the City makes all decisions in the form of an act”, should be considered an obvious typographical error, as further explained below. Article 10(1) of the Constitution of the Republic of Poland points to the system of power based on the separation of powers, including “legislative power”. Article 10(2) of the Constitution of the Republic of Poland states that “The legislative power shall be vested in the Sejm and the Senate”.
As already indicated, according to Article 5b(10) of the Act on Local Government, the municipal council, when granting the statute to the youth council, is to specify its necessary institutional elements and individual procedures within individual activities. Nevertheless, statutory provisions cannot be in conflict with statutory provisions. Therefore, granting the Youth Council of the City the competence to make acts should be considered as contradictory to the law. Such an error is obvious and even glaring.
Therefore, the question arises as to how to restore the aforementioned attribute of conformity with the law to the statute. It is certain that the Youth City Council cannot validate the above error independently. It should be noted again that Article 5b(10) of the Act on Communes grants exclusive competence in the area of adopting (including changing) the statute – to the commune council. It should be noted that such a change does not affect the term of office of the organs or other essential systemic issues. In essence, such a resolution will aim to ensure conformity with the law, and therefore it may be adopted during the term of office of the Youth City Council.
To conclude: the Youth City Council should notify the commune council of the identified error. Only the commune council will be able to change the content of the statute of the Youth City Council.