Wyniki wyszukiwania - Biblioteka Nauki

1

ROTATING PRESIDENCY OF THE COUNCIL OF THE EUROPEAN UNION AND ITS PARLIAMENTARY DIMENSION (Prezydencja rotacyjna w Radzie i jej parlamentarny wymiar)

100%

Grzeszczak R.

Przegląd Sejmowy

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2011

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nr 2(103)

65-81

EN

The article deals with the legal nature, models and competences of rotating Council Presidency and, particularly, its parliamentary dimension. With the entry into force of the Treaty of Lisbon, the model of Presidency was changed, assuming a hybrid form. On the whole, it still provides a form of political leadership of the European Union. Every six moths Presidency rotates between member states which are grouped, in the so-called trio, for the period of 18 months. Presidency has a functional character. It has been regulated in detail in the provisions of both primary and secondary EU law in the rules of procedure of the European Council, the Council and European Parliament, as well as protocols appended to EU establishing Treaties. Its profile is also determined by practice. Particulars concerning the exercise of Presidency are regulated by domestic law, e.g. in Poland the Act of 8 October 2010 (the so-called Cooperation Act). Chapter 6 of that Act specifies the principles of cooperation between both chambers of parliament with government in relation to participation of representatives of the Presidency's Council of Ministers in Council's formations. The parliamentary dimension of Presidency, mentioned in the title of this article, includes above all cooperation between parliament and government, as well as interparliamentary cooperation, particularly within the trio. The subject of parliamentary meetings is decided by parliament of the state holding the Presidency, taking into consideration the priorities already adopted by the government. Parliamentary presidency performs several functions, both at domestic and external (Union) level. By this means parliament exercises democratic oversight and guarantees legitimacy of government actions within the EU.

2

IN SEARCH OF THE STRUCTURE OF EUROHYPOTHEC ( W poszukiwaniu konstrukcji eurohipoteki)

80%

Wudarski A.

Kwartalnik Prawa Prywatnego

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2009

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tom 18

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nr 1

205-238

EN

The existence of different mortgage law systems in each of the EU Member States makes cross-border lending difficult and impedes the free development of common capital market in the European Union. One of the solutions to the problem could be a common mortgage for Europe (Eurohypothec). The article presents the results of academic research up to date and analyses models for a Eurohypothec proposed by several research groups. At the same time, the author presents the development and economic importance of a European mortgage market and outlines the history of Eurohypothec. In this context, the documents of the EU Institutions and positions of the Member States regarding the project are discussed. The main focus of the research is the legal structure of the Eurohypothec. Taking into consideration different opinions, the article seeks to establish the best model while examining closely the problems of accessory and independent mortgage. Although the author expresses some reservations, he generally promotes the idea of the Eurohypothec.

3

DISPUTE OVER THE SUPREMACY OF EUROPEAN LAW UNDER THE TREATY OF LISBON (Spór o prymat prawa europejskiego po wejsciu w zycie Traktatu z Lizbony)

80%

Kastelik-Smaza A.

Przegląd Sejmowy

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2010

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nr 4(99)

63-81

EN

Addressing the issue of a dispute over the supremacy of EU law under the Treaty of Lisbon, it should be noticed that the principle of precedence of EU law is among its most controversial principles and has been a subject of dispute since its early days. The position of European Court of Justice in this respect may be described as follows: 1) EU law has precedence over the provisions of domestic law which are inconsistent with it, 2) ETJ has exclusive competence to decide on the validity of legal acts of the European Union, 3) member states cannot invoke their domestic legislation, including that of constitutional rank, to justify non-compliance with EU law. Moreover, the jurisprudence of constitutional courts shows that the principle of precedence EU law has not been unconditionally accepted. Contrary to ECJ case law, they contest the possibility of application of EU law in the event that it does not comply with domestic norms of constitutional rank, in particular the fundamental rights guaranteed in the constitution. The Treaty of Lisbon does not resolve the dispute over the principle of precedence of EU law. Even if not explicitly declared in the Treaty, it is reflected in the Declaration No 17 annexed thereto. As a consequence of such approach to the principle of precedence by the Treaty of Lisbon, the principle will probably remain the subject of different interpretation by the ECJ and the constitutional courts of EU member states. First judgments of constitutional courts (particularly the German Federal Constitutional Court) in this respect seem to confirm such statement. However, due to a flexible approach applied to this matter, the principle of precedence of EU law, despite all the controversies surrounding it, is accepted in the member states which would not possible accept its explicit declaration in the text of the Treaty. The dispute over precedence of UE law remains unsolved after the Treaty of Lisbon, as it was before it entered into force. It seems that, in this situation, the best advice is to avoid such conflicts. As concerns the relation between constitutional law and primary law this goal could be achieved by an a priori (preventive) review of the conformity of the treaty with the constitution. On the other hand, for the purposes of elimination of non-conformity of secondary legislation and the constitution the appropriate mechanisms provided for in the treaties should be used first. However, own national interests of the member state should be addressed and protected in the phase of adoption of legal acts of the Union.

4

SHAPING OF CONSTITUTIONAL PRINCIPLES OF STATE'S MEMBERSHIP IN THE EUROPEAN UNION (SELECTED PROBLEMS) (Ksztaltowanie konstytucyjnych zasad czlonkostwa panstwa w Unii Europejskiej (wybrane problemy))

80%

Kruk M.

Przegląd Sejmowy

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2010

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nr 4(99)

41-62

EN

During the discussions on the adoption of new provisions o the Polish Constitution of 1997 relating to Poland's membership in the European Union numerous dilemmas have arisen regarding both the subject of possible regulation and forms of presentation of new principles and procedures. The authoress only points to those problems that are likely to be disputable and controversial. Among them is, first of all, the description of EU in the constitution, i.e. a particular constitutional 'definition of the Union'. The author examines arguments for and against such a legislative solution and provides its analysis based on similar provisions of the constitutions of other member states (especially Article 23 of the Basic Law of the Federal Republic of Germany). She does not confine herself to an analysis of the provisions of the constitution, but also considers the purpose for insertion of provisions of such type in constitutions. In this respect, she refers to the jurisprudence of constitutional courts. The judgment of the German Federal Constitutional Court on the Treaty of Lisbon provides an example. In this judgment, the Court applied Article 23 of the Basic law as a constitutional criterion of conformity of the treaty with the German constitution. In this context, the authoress examines the issue of a formal classification of the Union as legal entity, an international organization, union of states, etc. as well as its relation with a federation model. The second issue discussed in this article is the principle of equality of member states in the European Union and, especially, whether we can recognize it as a principle underpinning the Union. The authoress provides the examples of those constitutions which expressly formulate such principle with the aim of proving that they consider that principle, above all, as equal rights and obligations to determine the fundamental principles governing the functioning of the Union and making its basic decisions. Moreover, this approach is not undermined by the use a qualified majority vote and unequal participation of member state e.g. in the composition of the European Parliament. Another controversial issue is whether we can recognize that EU member states transfer specific powers to the EU level to be jointly exercised. As we can see, most of the constitutions of member states treat the aim of such delegation in this way, confirming the maintenance of sovereignty, also because this does not mean the transfer of powers to a particular separate third party. This approach is not undermined by the exercise of powers by the institutions of the Union. The final issue deals with implementation of EU law. In our country, it is a particularly 'sensitive' issue, because Poland is one of the EU member states that are lagging behind in the implementation of the directives. Consequences of this fact affect not only the political and economic spheres, but also the prestige of the state and the rights of its citizens. Therefore, the question arises whether the constitution might contain any provisions to prevent this situation from occurring. In the Polish context, this relates to the need for introduction of new legal instrument by the government in the form of regulations having the force of a statute.

5

THE NEW RULES OF DISTRIBUTION OF COMPETENCES BETWEEN THE EUROPEAN UNION AND ITS MEMBER STATES IN THE CONTEXT OF THE TREATY OF LISBON (Polish title - below)

80%

Saganek P.

Przegląd Sejmowy

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2010

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nr 4(99)

83-106

EN

(Title in Polish - 'Nowe reguly dotyczace podzialu kompetencji miedzy Unia Europejska a panstwami czlonkowskimi w swietle Traktatu z Lizbony'). The article deals with the distribution of powers between the European Union and its member states. As a point of departure the author identifies two issues. First of them is the principle of conferred powers, from which it follows that competences not conferred upon the Union remain with the member states. The Treaty of Lisbon introduces practically no change in this respect, therefore, this subject des not require a more detailed examination. Another issue is the distinction between exclusive and non-exclusive competences of EU. This area has been changed substantially by the Treaty of Lisbon. First, the Treaty provides a definition of exclusive competence. Second, it distinguishes various kinds of non-exclusive competences of EU. They are to include shared competences as well as coordinating, complementary and supporting competences. The competences in the field of foreign and security policy and in the field of coordination of economic policy have been regulated separately. The author believes that the most important task is to specify the definition and the scope of operation of exclusive competences of EU. Other issues practically have no considerable consequences. He notices that the list of exclusive competences is shorter than that proposed by the Commission in 1992. He recognizes good intentions of the authors of the Treaty of Lisbon to adopt basic premises of constitutional law in relation to exclusive competences. Nevertheless, he criticizes the solutions adopted, particularly in the sphere of trade policy. The author argues that in the course of drafting the text of the Treaty, its actual authors have not applied a uniform concept of exclusiveness. He also points to the high level of reliance of the adopted provisions on the jurisprudence of the Court of Justice. This relates mostly to the decision to classify the competence in the area of conservation of marine biological resources as an exclusive competence. Doubts may also arise about the inclusion of the entire monetary policy, instead of the issuance of the euro, in the list of exclusive competences. On the other hand, there will probably be no problem with classifying the establishing of the competition rules within this category. .

6

RESPECT FOR CONSTITUTIONAL IDENTITY OF THE MEMBER STATES OF THE EUROPEAN UNION (Poszanowanie tozsamosci konstytucyjnej panstw czlonkowskich Unii Europejskiej)

80%

Wojtowicz K.

Przegląd Sejmowy

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2010

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nr 4(99)

9-21

EN

Complementing the principle of conferred powers by an obligation of the European Union to respect the national identity of member states specified in Article 4(2) TEU, inseparably linked with their political and constitutional structures, has induced some constitutional courts to apply the notion of 'constitutional identity' to determine a more precise limits of Union's competences. Therefore, even if the notion of constitutional identity (similarly to national identity) is not legally defined, in the content of constitutions of the member states one can find the principles governing the existence of a state as a specific, separate and sovereign body. For example, from the jurisprudence of the French Council of State it follows that the constitutional principles which specifically reflect the modern French statehood include those which are specified in Articles 1 and 3 of the French Constitution. Moreover, the German Federal Constitutional Court held that the constitutional authorization for Germany's participation in the process of European integration must remain within the limits prescribed by Article 79 (3) of the Basic Law. An a priori determination of strict limits of the EU competences is neither possible nor desirable, because the ultimate shape of its system of government cannot be predicted yet. However, the consolidation of the principle of respect for constitutional identity and specification of its content may contribute to the strengthening of the sense of legal certainty in the complex legal order existing in the European Union. Then, reinforcing of the effectiveness of integration will be balanced by the specification, in concrete terms, of the limits of Union's interference in the domestic legal systems of member states. The ensuring of such balance will depend on harmonious cooperation between the Court of Justice of the European Union and the courts of member states, particularly those responsible for the review of constitutionality of law.

7

THE TREATY OF LISBON AND DEVELOPMENT TRENDS IN THE EUROPEAN UNION (Traktat z Lizbony a tendencje rozwojowe Unii Europejskiej)

80%

Jaskiernia J.

Przegląd Sejmowy

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2010

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nr 4(99)

153-157

EN

The entry into force of the Treaty of Lisbon is a good occasion to examine the development trends in the European Union. The document takes a more pragmatic approach and is a rather technical improvement of the primary law of the EU. Under the provisions of the Treaty of Lisbon, EU is actually an international organization with a more effective type of leadership. The decision-making system is improved and simplified. This may help Europe to become a powerful actor in international relations and to more effectively solve the problems of development of the European continent. A crucial solution concerns providing a binding legal character to the Charter of Fundamental Rights, which makes the rights more visible as guiding values for all the UE policies. This opens the door for accession of EU to the European Convention on Human Rights. The Treaty of Lisbon is only a reform treaty, and several important changes, provided by the Constitutional Treaty, have survived. They include the provisions of the federal character (e.g. those concerning an 'early warning system' in which national parliaments will scrutinize draft European legislative acts as to their compliance with the principle of subsidiarity). However, the Treaty does not create a federal state and does not even suggest that this idea would be realized. The rejection of the Constitutional Treaty, which has lead to a crisis within the EU, may show that the radical changes, proposed by the European elites, are not accepted or not understood by the European public opinion. The problem of 'democratic deficit' within EU (reflected by the fact that the societies of the EU do not exert appropriate influence on the development and functioning of the Union) is still not solved, although the provisions of the Treaty of Lisbon provide for the strengthening of the European Parliament and the national parliaments move in a positive direction. The cooperation between the European Parliament and national parliaments may be an important factor of creating the EU political legitimacy. The dialogue between the supporters of the idea of 'Europe of Homelands' and of 'Federal Europe' is continued. The concept of 'Europe of Homelands' still has a big support, especially among the new member states of Central and Eastern Europe. In such a situation the federalization of EU cannot be carried out rapidly against the will of those communities.

8

NEGATIVE RELIGIOUS FREEDOM AND SECULAR THOUGHT IN THE LIGHT OF THE CASE OF LAUISI V. ITALY (Negatywna wolnosc religijna i przekonania sekularystyczne w swietle sprawy Lautsi przeciwko Wlochom)

80%

Piechowiak M.

Przegląd Sejmowy

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2011

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nr 5(106)

37-68

EN

The article provides an analysis of the European Court of Human Rights judgments in the case of (http://www.echr.coe.int/echr/resources/hudoc/lautsi_and_others_v__italy.pdf) Lautsi v. Italy (application no. 30814/06), also known as the Italian crucifix case. The applicant claimed that displaying crucifixes in the Italian State-school classrooms attended by her children was contrary to the principle of secularism, by which she wished to bring up her children, and therefore infringed her right to ensure their education and teaching in conformity with her religious and philosophical convictions, and also breached her freedom of conviction and religion, as protected by Article 9 of the Convention. In its judgment of November 3, 2009, the seven-judge Chamber declared that there had been a violation of Article 2 (right to education) of Protocol No. 1 of the European Convention on Human Rights taken together with Article 9 (freedom of thought, conscience, and religion) of the Convention. The judgment was given unanimously and none of the judges appended a separate opinion. The Italian Government asked for the case to be referred to the Grand Chamber by virtue of Article 43 of the Convention. In the judgment of the Grand Chamber, delivered on March 18, 2011, the Court held, by fifteen votes to two (and with separate opinions of six judges), that there had been no violation of Protocol No. 1 and no violation of the Convention itself. The analysis in the article is focused on selected principal factors determining the Court's decision. It shows that the proposal for the Court to recognize secular convictions as those protected by Article 2 of Protocol No. 1 or Article 9 of the Convention has no sufficient basis in the Convention itself and in earlier Court's case-law and, even, may be considered as promotion of religious intolerance, threatening the freedom to publicly manifest a religion or belief, as guaranteed by Article 9 of the Convention.

9

EUROPEANIZATION OF POLISH CONSTITUTIONAL LAW (O zjawisku europeizacji polskiego prawa konstytucyjnego)

80%

Lis-Staranowicz D. , Galster J.

Przegląd Sejmowy

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2010

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nr 2(97)

29-51

EN

Europeanization of law is the consequence of influence of European integration on the domestic legal system of countries aspiring to EU membership. The constitution is not free from this influence. To put it more simply, Europeanization of the constitution means constitutionalization of matters either related (even if in a different way) to European Union law ('a sensu stricto' Europeanization) or generally connected with law enacted by European international organizations ('a sensu largo' Europeanization). Constitutional transformation resulting from the EU accession is mostly reflected in the organizational structure of the state. In Poland, the consequence of delegation of some powers of state authorities to the European Community/European Union (under Article 90 of the Constitution) means the extension of the state activity to the European level. This function of the state does not correspond with the classical separation of powers doctrine. The exercise of this function only by the Council of Ministers threatens the balance of powers guaranteed by Article 10 of the Constitution. There is, above all, a need for involvement of the representative bodies of the Nation in the exercise of this function. Therefore, an amendment to the constitution should be considered that would specify the principles of cooperation in European affairs between the Council of Ministers, the Sejm and the Senate, and the president of the Republic. Europeanization of the constitution does not always have positive effect on its 'improvement'. It may lead to 'erosion' of constitutional standards: disavowal of the principles of the system of government, the weakening of the regulatory function of the state. The absence of constitutionalization of the 'progress in integration' exposes the legal system to criticism for being contradictory and lacking completeness. The scope of Europeanization should be limited by the so-called identity of the constitution, i.e. a relative immutability of fundamental constitutional principles and values. When proclaiming an 'integration option', their authors have not identified those categories which determine the substance of the basic law.

10

Normy prawne i ordynacja wyborcza w wyborach do Parlamentu Europejskiego w Polsce w 2004 r.

80%

Tupalski T. A.

Colloquium Wydziału Nauk Humanistycznych i Społecznych AMW

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2012

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nr 1

87-120

EN

Election of Members of the European Parliament on Polish territory for the first time took place in 2004. This election is a historic moment, because Poland and Polish people for the first time we were able to choose their representatives to the European Parliament. For the first time will Parliamentarians have its European family, the structures of the Polish accession to the European Communities, so that we share responsibility for the further development and future of our Europe. The elections were conducted under the Act of 23 January 2004 – Elections to the European Parliament. The literature on this subject is small, they are mainly publications concerning mechanisms for passing laws and discussing its main goals. Existing data do not cover the whole subject, as appeared before the majority of the Ordinance implementing acts. I hope that my article although the closer the issue of electoral law and the holding of elections to the European Parliament, and will be for the reader an introduction to the handbook and knowledge for entry to the course of European integration, European communities law and will bring the functioning of the institutions of the European Union.

11

'EURO-AMENDMENT' PROPOSED IN BILLS AMENDING THE CONSTITUTION OF THE REPUBLIC OF POLAND: AN ASSESSMENT ATTEMPT ('Euronowelizacja' w projektach ustaw o zmianie Konstytucji RP. Proba oceny)

80%

Kustra A.

Przegląd Sejmowy

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2011

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nr 3(104)

31-54

EN

Following several years of Poland's membership of the EU and after the ratification and entry into force of the Lisbon Treaty, the idea of a large-scale 'Euro-Amendment' has reached its 'constitutional moment'. In this article the author makes an attempt to compare two proposals providing for a wide-ranging review of the constitution in connection with Poland's membership of the EU. These include a Presidential Bill which was mostly the result of work of the science team established in 2009 by Bronislaw Komorowski, the then Marshal of the Sejm (Sejm Paper No. 3598) and a Deputies' Bill submitted by members of the Law and Justice Party (Sejm Paper No. 3687). The bills amending the constitution discussed in this article reveal the existence of a political impetus for a far-reaching modification of the basic law in relation to matters connected with Poland's membership of the EU. A comparison of the two bills demonstrates that they differ remarkably not only in the content of the proposed constitutional solutions, but also in some of the bills' general underlying assumptions. The Presidential Bill contains (both in the title of a new Chapter Xa and in its provisions) a direct and explicit reference to the European Union.. On the other hand, the Deputies' Bill maintains the existing provisions guaranteeing unlimited scope of delegation of powers, repeating the current wording of Article 90 of the Constitution, which states that such a delegation is made to an international organization or an international institution Different approach has been applied in relation to amendment of Article 227 of the Constitution (proposed only in the Presidential Bill). Differences manifest themselves also in the concept of 'European policy' of the government and in the method of governing the relations between the executive and legislative branches of government in the exercise of competences relating to the EU membership. Therefore, the passing of the 'Euro-Amendment' of Polish basic law will, in fact, depend on the willingness of politicians to compromise to get a qualified majority of two-thirds of votes in the Sejm and absolute majority of votes in the Senate, as required by Article 235 of the Constitution.

12

TENDENCY TO CONCEPTUALISE EUROPEAN CONSUMER LAW

80%

Stefanicki R.

Kwartalnik Prawa Prywatnego

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2008

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tom 17

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nr 3

683-711

EN

This article relates developments in consumer law where there is still a tendency to conceptualise consumer law as private law. The existing EU consumer protection rules are fragmented basically: firstly, the current directives allow Member States to adopt more stringent rules in their national laws and many of them have made a higher level of consumer protection and secondly, many issues are regulated inconsistently between directives or have been left open. The EU proposes, in a Green Book on possible changes in contractual law directives, a total harmonization of consumer legislation. The need for national courts to ask rather detailed questions may increase with the recent trend to total harmonisation of EC consumer law. The EU legislator believes that the future horizontal instrument should apply to all consumer contracts. That will prevent regulatory fragmentation at European level and help to streamline European legislation. The article examines the merit of the test of the average consumer as a basis for judicial and regulatory action. Contract law attempts in various ways to regulate the information that contracting parties exchange. Increasing the transparency information available to consumers is de lege lata undoubtedly beneficial. Current practices however, be reflected by author in concrete legislative and proposed legislation. The Commission intends to create a European Contract Law, that would in the not so near future replace the national contract laws.

13

THE EXTENT OF COMPETENCES OF NATIONAL PARLIAMENTS OF SCRUTINIZE THE PRINCIPLE OF SUBSIDIARITY UNDER OF TREATY OF LISBON (Zakres przedmiotowy kompetencji parlamentów narodowych do badania zasady pomocniczosci w swietle Traktatu z Lizbony)

80%

Slok-Wodkowska M.

Przegląd Sejmowy

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2010

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nr 4(99)

141-152

EN

Pursuant to Articles 2 and 3 of the Protocol No. 1 on the role of national parliaments in the European Union, national parliaments have the right to send reasoned opinions on the compliance of draft European legislative acts with the principle of subsidiarity. The article is aimed at showing a real extent of this new power of national parliaments. In this context, of key importance is defining the notion of 'legislative act', taking particularly into consideration the doubts it raises in relation to acts adopted under special law-making procedure that has not been explicitly specified in the EU establishing treaties. First, the authoress presents the power of parliaments to scrutinize the compliance with the principle of subsidiarity. Then, she describes the system of EU legal acts after the reform introduced by the Treaty of Lisbon. The article also deals with the definition of acts adopted under a special law-making procedure. It also makes a distinction between acts that are declared by the Treaty on the functioning of the EU as subject to be adopted according to special law-making procedure and acts about which there is no such information in the Treaty. An analysis contains all situations where a legal act is adopted by the Council with the consent of, or after the consultation with, the European Parliament, but the provision of the act does not explicitly indicate that that special law making procedure is applied. This fact is of key importance, because the assumption that the lack of such reference results in classification of these acts as not adopted under a special, and the more so - normal - procedure, eliminates them from the category of legislative acts and, therefore, makes it impossible to scrutinize the compliance of the principles of subsidiarity by them. This means that these acts - sometimes of considerable political and economic importance - are excluded from the review of the national parliaments. The analyses provided by the authoress enable us to say that despite of some doubts, legal acts that are not declared as subject to adoption under special or normal law making procedure, are not legislative acts. Hence, national parliaments are not entitled to scrutinize their compliance with the principle of subsidiarity.

14

'CONSTITUTIONAL IDENTITY' AND THE TREATY OF LISBON - THESES OF THE FEDERAL CONSTITUTIONAL COURT RULING OF 30 JUNE, 2009 ('Tozsamosc konstytucyjna' a traktat z Lizbony. Tezy wyroku Federalnego Trybunalu Konstytucyjnego z 30 czerwca 2009 r.)

80%

Bala P.

Ius Novum

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2010

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nr 2

7-37

EN

The aim of the article is to present the key theses of the Federal Constitutional Court ruling of 30 June, 2009, concerning the appropriate implementation of the provisions of the Treaty of Lisbon in the legal environment of the Federal Republic of Germany. The ruling was widely discussed due to the importance of the issue as well as a judgment itself, not solely from the point of view of the German doctrine. The ruling under discussion presents an idea that the process of European integration is 'limited' as the evolution of the European Union finds some limitations within both the Treaty of Lisbon and the Fundamental Statute of the Federal Republic of Germany. The German Constitution determined some impassable borders of integration by an obligation to protect a 'constitutional identity' (elements constituting the German state such as the notion of the state of law, protection of fundamental rights, democracy and a federal structure of the state). This way a canon of appropriate integration with respect for the fundamental 'constitutional identity' of the German Republic, i.e. respecting the provisions of the state legislature, its role in the process of integration, and organization of the process of co-operation between the legislative and executive powers on the European ground. At the same time, the Federal Tribunal sustained its former ruling policy and was for the primacy of the Fundamental Statute over any other legal acts, including those issued by the organs of the European Union. It also seems that some of the theses of the ruling remain valid per analogiam to the legislations of other Member States.

15

Eksperyment medyczny przeprowadzany na organizmie ludzkim – aspekty prawa międzynarodowego, europejskiego i krajowego

80%

Karski L.

Studia Ecologiae et Bioethicae

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2013

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tom 11

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nr 1

65-87

EN

The article is designed to provide readers with a legal context of medical experimentation. Medical research involving humans needs careful regulation. Although international law, European law, and domestic law are usually described as separate sources of law, they are increasingly interdependent. Their interaction produces a layering effect of laws that address medical experimentation. The paper begins with an overview of content of soft international law. In the next section the author addresses the issue of hard law, i.e. the Geneva Conventions, provisions of the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights. The Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine is the subject of analysis in the third part of the paper. The next section discusses selected issues related to regulations of European Union law. At the national level, the Polish Constitution provides for a medical research principium. In order to provide deeper insight, the next part of analysis is based on domestic criminal law. The final section discusses the role of the physician in medical research in light of the norm included in the 1996 Act on the professions of the physician and dentist.

16

OPENNESS OF THE GERMAN CONSTITUTIONAL SYSTEM TO EUROPEAN UNITY (Otwarcie systemu konstytucyjnego Niemiec na sprawy jednosci Europy)

80%

Wojtowicz K.

Przegląd Sejmowy

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2009

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nr 6(95)

EN

The participation of the Federal Republic of Germany in the European integration process is reflected, above all, in the European Community/European Union membership. The constitutional authorization to FRG's access to the Community establishing treaties was given by Article 24 paragraph 1 of the Basic Law which provided for the transfer, by means of a statute, of the sovereign powers to inter-state institutions. The present conditions of Germany's membership of the European Union are specified more precisely in Article 23 paragraph 1 of the Basic Law which contains the requirements determining the system of the organization, which is considered as the imposition of 'structural guarantees' on the Union subject to supervison by Germany as its member state. The Federal Constitutional Court (FCC) held that the provisions of the Preamble and Article 23(1) of the Basic Law establish the principle of openness of the German legal order to European law and impose an obligation on German constitutional organs to contribute to accomplishment of European unification. This constitutional delegation is not, however, unrestricted and is subject to authority limits, applied particularly to lawmaking activity of the Communities (European Union). The principle of conferred powers prevents the acts from having ultra vires effect in the FRG's legal system. Another limitation is the protection of the German constitutional identity from violation, formulated on the basis of Article 79 paragraph 3 in conjunction with Articles 1 and 20 of the Basic Law, from which it follows that the EU is obliged to respect the fundamental human rights, the principle of democracy and federal structure of the state. It should also be pointed out that in the light of the position taken by the FCC, the integration mandate given by the Basic Law does not allow the authorities of the German state to accede to a federal state and renounce German sovereignty.

17

THE TREATY OF LISBON IN THE CONTEXT OF EFFICIENCY OF THE EUROPEAN SYSTEM OF LEGAL PROTECTION AND THE COOPERATIVE MODEL OF THE LAW MAKER (Traktat z Lizbony wobec operatywnosci unijnego systemu ochrony prawnej i modelu kooperacyjnego prawodawcy)

80%

Koncewicz T. T.

Przegląd Sejmowy

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2010

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nr 4(99)

123-139

EN

The institutional status of the Court of Justice confirms that the founding fathers of the treaties envisioned the Court taking on a role that is going beyond the paradigm of simply applying and enforcing European law. An analysis of jurisprudence shows that the Court has indeed become an autonomous actor in the integration process. For the Court 'the law' plays the role of both an argumentative force and a tool for market participants to pursue their goals independently of, and sometimes in direct opposition to, political process. The Union court assumes the mantle of the law maker who creatively influences the system of European law and determines the behavior of the institutions and states. Having said this, it would be wrong to assume that the legislative function of the Court is analogous to that of political law maker. Within the confines of the cooperative model of the European law maker, the Court acts as a judicial law maker who speaks the language of general principles and precedents, pursues long-term objectives of the Treaty as opposed to the short-term exigencies of day-to-day politics. Both law makers are complementary to each other. They act as critical interlocutors and expect mutual appreciation for their respective contribution to the working-out of European law. To this end the cooperative model of the European law maker is characterized by a permanent dialogue and taking into account of what each law maker has to say. Treaty of Lisbon provides perfect example of the functioning of this model, since imperfect legal text (effect of action on the part of a political law maker) is subjected to critical rationalization by a court. The latter aims at making the text operational and effective. This takes on a fundamental importance, because it widens the scope of the normative analysis. By constraining our analysis of the Lisbon Treaty exclusively to legal text, we would be in many cases forced to leave empty-handed: always searching for answers, and yet never getting them. Only global reconstruction of the legal text which takes into consideration also the input from the judicial law maker gives us a chance to arrive at the complete picture of European law in force.

18

KONTROLA PRIZNANIA A VÝKONU OSOBITNÝCH A VÝLUČNÝCH PRÁV V EURÓPSKOM PRÁVE

80%

Lapšanský L.

Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)

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2019

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tom 102

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nr 6

492 – 508

EN

The Article 106 paragraph 1 of the Treaty on the Functioning of the European Union allows controlling not only the exercise, but also the very existence of special or exclusive rights that the EU Member States grant to some enterprises. The right of the Member States to grant an exclusive right to certain enterprise and thus ensure its dominant position on certain market, which is fundamentally recognised by European law, must not give rise to a situation where the privileged enterprise adopts a conduct constituting the abuse of a dominant position, prohibited by the Article 102 of the Treaty on the Functioning of the European Union.

19

Případová studie diskriminace v odměňování a několik poznámek k pramenům práva

80%

Havelkova B.

Gender, rovné příležitosti, výzkum (Gender, Equal Opportunities, Research)

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2005

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tom 6

|

nr 2

21-24

EN

The authoress' aim is to provide an orientation in the basic norms of European law. She deals with the act prohibiting discrimination in rewarding and describes an example of the discrimination which is important not only because the European court of justice applied its test of objective justification for the first time here, but also because in this case European court of justice for the first time involved benefits of employment (e.g. company pension) under the concept of reward. She also introduces the basic legal norms of the European law concerning the issue of the equal opportunities for men and women. The European law is part of the Czech legal system and it is superior to Czech law, thus the authoress further points out the possibilities of citizens (like individual) to sue of justice at both national and European courts of justice. She brings out suggestions how to work with the resources of European law and also explanes the role of the European as well as Czech courts of justice in application of the European legal norms generally and particularly in case of the discrimination in rewarding and in treatment. (www.genderonline.cz/view.php?cisloclanku=2006020604)

20

THE IMPACT OF THE TREATY OF LISBON ON POLAND'S SYSTEM OF GOVERNMENT (Wplyw Traktatu z Lizbony na ustrój Polski)

80%

Wojtyczek K.

Przegląd Sejmowy

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2010

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nr 4(99)

23-40

EN

The Treaty of Lisbon is a legal act shaping the form of the European constitutional system. The Treaty introduces substantial changes in the system of government of the European Union, the structural system of public authority existing within the territory of the member states, including Poland. It also provides for new regulation of the relations between the European Union and its member states, and exerts different influence on the system of government of the member states. An increased effectiveness of the functioning of the EU involves the need for improvement the operation of the Polish state apparatus, so that it should enable Poland to effectively participate in the Union decision-making processes on the one hand, and to improve and accelerate the implementation of EU law by Polish public authorities on the other. The ratification of the Treaty makes us aware of the insufficiency of current constitutional solutions in the sphere of relations between Poland and EU and provides fresh impetus for a comprehensive normative regulation of the procedures for the adoption of a position by a state in new decision-making mechanisms and the procedures for the exercise of competences conferred by the above-mentioned act on the Polish public authorities.