On 5 October 2023, the Supreme Court, sitting in open session of the Extraordinary Review and Public Affairs Chamber, examined whether the entity entitled to lodge a complaint against the resolution of the National Electoral Commission (PKW) regarding the guidelines on the tasks and procedure for the preparation and conduct of voting in the nationwide referendum is a community organisation whose statutory objectives are concern for democracy, civil rights and the development of civil society, in a situation where it does not participate in the referendum as an entity entitled to conduct a referendum campaign, as referred to in Article 48(1) of the Act of 14 March 2003 on the nationwide referendum (Act on the nationwide referendum).
The Supreme Court pointed out that issues concerning the organisation and conduct of elections and the nationwide referendum fall within the scope of public law. These provisions, contrary to private law, are generally to be treated strictly and their extensive interpretation is inadmissible. The Supreme Court also drew attention to the negative consequences to which the election and referendum process would be exposed if departures from the established narrow catalogue of eligible persons were allowed. In fact, then it would not be possible to establish beyond doubt who is de facto entitled to lodge a complaint against a resolution of the PKW. If the legislator had intended to introduce an open catalogue of entities entitled to lodge such complaints, the wording of the above provision would certainly have been different. At the same time, the Supreme Court recalled that its judgment of 7 September 2023 (I NSW 13/23) significantly extended the catalogue of entities entitled to lodge a complaint against a resolution of the PKW, but the judgment provided a clear limit, stemming from the appropriate application of the provisions of the Electoral Code concerning this issue (Article 92(1) of the Act on a nationwide referendum). The entities entitled to lodge a complaint against the resolution of the PKW, in view of the above, are the entities under Article 48(1) of the Act on the nationwide referendum. Therefore, the Supreme Court found that the Complainant is not the entity entitled to lodge such a complaint and rejected it.
The Supreme Court confirmed the aforementioned view in the subsequent judgments in the cases I NSW 70/23 and I NSW 72/23.