Recommendations in Polish mining and energy law. On the way to solidarity and cooperation between state authorities and entrepreneurs

The article provides a general description of advisory norms in mining and energy law, and examples of their application within specific laws and regulations. Reflections are intended to show the role of advisory norms as a tool for implementing the constitutional principle of solidarity and cooperation between state authorities and private entrepreneurs in mining and energy law. In the Polish legal system, the regulation of cooperation between state authorities and entrepreneurs is carried out under Article 20 of the Constitution. According to this article, "social market economy, based on freedom of economic activity, private property, solidarity, dialogue and cooperation of social partners, form the basis of the economic structure of the Polish Republic." The advisory norms established by the state authorities and addressed to private entrepreneurs make up the instrument for implementing solidarity and cooperation of social partners in mining and energy law. Those norms define the desired behaviour of the subject, setting no measures in case of non-compliance. In mining and energy law, advisory norms are referred to as the two-tiered structures of norms. The norm which is at the first level of such a structure, obliges the entrepreneur to achieve a certain result: to implement a situation in which safety, life and health will not be threatened within the framework of the ongoing entrepreneur's activities. This norm can be called a general security requirement. At the second level of the structure are the norms that detail the actions necessary to achieve the goal described in the overall security requirement - these norms can be called detailed security requirements. Taking into account the specifics of operations in particular mining and energy enterprises, it should be emphasized that the nature of detailed safety requirements is sometimes defined by legal authorities as an advisory one. Detailed requirements of an advisory nature recommend entrepreneurs (optionally) to take actions that, according to the authorities, will contribute to implementing the goal specified in the general security requirement. The authorities take into account that the entrepreneur may not comply with the advisory norms and choose another way to achieve the goal described in the general security requirement, which will be, in the entrepreneur's opinion, more effective in the specific circumstances that arise at the place of production of this entrepreneur. When establishing advisory rules, the authorities perceive entrepreneurs not as controlled entities, but as partners who receive non-binding recommendations from them within the framework of cooperation to protect security, life and health.

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