Warunki udziału w zamówieniu publicznym a konstytucyjny zakaz dyskryminacji w życiu gospodarczym
Conditions for participation in public procurement and the constitutional prohibition of discrimination in economic life

Summary/Abstract: The principle of freedom of economic activity set out in Article 22 of the Constitution, which is the foundation of a market economy, is understood as ensuring the free exercise of economic activity. The prohibition of discrimination in economic life inherent in freedom is one of the foundations of the system of freedoms and rights of a human being and citizen, and is treated as the impossibility of drawing negative consequences in the sphere of economic activity on account of the qualities of the person conducting such activity. Exceptions to the principle may be provided for – restrictions, which, although permissible, are only allowed by law and for reasons of an important public interest. The important interest and the public interest, i.e. the common good, which is of particular importance for society as a whole, may be the only reason for entering the sphere of freedom. The legislator has a certain amount of freedom, given the vagueness of the quoted concepts, but in interfering in this sphere with restrictions it should be particularly careful. The subject of the analysis is the answer to the question whether the legislator in public procurement law has applied the prohibition of discrimination, setting exceptions to this principle within the limits permitted by the Constitution. The analysis of selected aspects of limitations on constitutional economic freedom, presented in a general way, leads the author to the position that the number and scope of the applied limitations exceed the exceptions permitted by the constitution and cause that the provisions concerning the conditions of participation in a public contract may be treated as an element violating the constitutional ban on discrimination in economic life not only in principle, but also from a practical point of view (too broad scope of possible limitations at the disposal of the contracting authority brings the contract closer to a planned economy, where the economic rules are created by the state and its units).

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