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THE CONCEPT OF DUTY OF PROPTECTION OF FUNDAMENTAL FREEDOMS. THE INDIRECT HORIZONTAL EFFECT OF EC TREATY RULES OF FUNDAMENTAL FREEDOMS (Koncepcja obowiazku ochrony podstawowych swobód. Posredni ...skutek przepisów o podstawowych swobodach)

100%

Szydlo M.

Studia Prawnicze

2008

issue 3(177)

5-39

In case of private parties the arguments against their direct bond by the rules on free movement (especially the danger of excessive transgression of their private autonomy) are strongly prevailing over the arguments for such a direct bond (especially the need of much more effective realization of the internal market's idea). Nevertheless, the values and principles included in fundamental freedoms of the internal market should be in force in case of horizontal relations between private parties as well, namely on the ground of the concept of 'duty of protection' and the concept of 'indirect third party effect' (the latter being the part of the former concept) which were elaborated in some constitutional legal orders of the Member States in regard to fundamental rights. Being bound by the 'duty of protection' Member States are obliged to combat such conducts and acts of private persons which form an obstacle in the free movement. The concept of 'indirect third party effect' obliges the courts of Member States to interpret and to apply of the provisions of the national private law in the light of the fundamental freedoms. Materializing the fundamental freedoms within the relations between private parties the Member States are also obliged to respect the private persons' fundamental rights which are here involved and must therefore thoroughly outweigh fundamental freedoms and fundamental rights in all situations in which this appears to be necessary.

INTERNATIONAL JURISDICTION IN INSOLVENCY MATTERS IN EU (Jurysdykcja krajowa w sprawach upadlosciowych w prawie Unii Europejskiej)

100%

Szydlo M.

Studia Prawnicze

2009

issue 1-2(179-180)

125-160

In the case of cross-border insolvency proceedings the international jurisdiction in the European Union is determined by the uniform criterion that is - according to Article 3 of the Regulation No 1346/2000 - the centre of a debtor's main interests (COMI). The COMI has to be understood as a place which is considered by third parties (especially by the creditors) to be the place of today's and current administration of a debtor's main activity. By choosing COMI as a relevant criterion the Community legislator wanted to ensure that international jurisdiction in insolvency matters: 1) will be situated in a place that is easily and transparently perceived (and identified) by third parties, 2) is based on circumstances that are not easily susceptible to arbitrary manipulations on the part of the debtor (so as to prevent forum shopping), and 3) is located only in one single Member State (the focus is to avoid concurrent jurisdictions). The above-mentioned values and interests are at the same time the steering principles that govern the interpretation of individual notions that are contained in the expression 'COMI' ('centre', 'main', 'interests').

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2 Studia Prawnicze

2 Szydlo M.

1 2009

1 2008

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THE CONCEPT OF DUTY OF PROPTECTION OF FUNDAMENTAL FREEDOMS. THE INDIRECT HORIZONTAL EFFECT OF EC TREATY RULES OF FUNDAMENTAL FREEDOMS (Koncepcja obowiazku ochrony podstawowych swobód. Posredni ...skutek przepisów o podstawowych swobodach)

INTERNATIONAL JURISDICTION IN INSOLVENCY MATTERS IN EU (Jurysdykcja krajowa w sprawach upadlosciowych w prawie Unii Europejskiej)