Third party effect of human rights is a topic of interest to legal scholars, who analize the question not only in the context of legal systems of European countries. Scientifi c research has not settled the question of possible qualifi cation of current practice to one of the known theoretical concepts: theories of the direct and indirect third party effect, protective duties of the State and interceding third party effect. Nevertheless, many authors — considering the order to protect human dignity as the source of horizontal validity of fundamental rights — claim, that the third party effect will eventually turn out to be direct, horizontal validity of human rights or, at least, that it cannot be limited only to the infl uence that human rights have on interpretation of civil general clauses and indeterminate collocations. Despite that, the majority of handbooks on human rights accept only the concept of the limited third party effect (the theory of the indirect third party effect), what raises doubt.
In the FRG, statutory instruments implementing Community law are issued, each time, on the basis of a delegation by a law, which however does not satisfy the requirements specified in Article 80(1), second sentence, of the Basic Law. They do not indicate a concrete act of Community law, but only give authorization to implement abstractly defined EC directives or regulations. Any restriction of the scope of such authorization ensues only from the purpose of the authorizing law. The argument for unconstitutionality of such authorizations is the lack of determination of the content of statutory instrument issued on their basis, the argument for their constitutionality is provided by a joint interpretation of Article 80 and Article 23 of the Basic Law. These authorizations are the response to the decision of the sovereign of the FRG to accede to the Communities and the European Union. They are justified, on the grounds of legal dogma, by the accomplishment of the principles of democracy, perceived from the perspective of the European system of constitutional law which constitutes a coherent system combining national law and European law. Nevertheless, they do not perform the basic function of statutory delegation (authorization by a law) to issue a statutory instrument in order to compensate democratic deficit which is an attribute of the issuance of statutory instruments. There are two possible ways to solve this dilemma, First is to modify Article 80(1), second sentence. Second is to depart from the formula of general authorizations and replace them by specific authorizations which make it possible to implement, by way of a statutory instrument, a narrower scope of Community law, limited to a chapter of a law in which such specific authorization was regulated. Arguments for the second solution include failure of all attempts to amend Article 80(1) second sentence, and the fact that the determination of the content of a statutory instrument by an authorization by a law results, above all, from the constitutional principles of the state ruled by law, democracy and separation of powers.
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