Results found: 2

Search results

Sort By:

Limit search:

UNILATERAL ACTS IN POLISH-GERMAN RELATIONS

100%

Saganek P.

Polish Yearbook of International Law

2009

vol. 29

85-113

The paper is devoted in fact to two unilateral acts. The first of them is the statement of chancellor Schröder made in Warsaw on 1 August, 2004. The second is the statement of the Polish government on the waiver of payments of German reparations made on 23 August, 1953. The first statement is generally believed to be an act of legal importance. The element that attaches the utmost importance is the promise of the German government to present before international courts the critical evaluation of individual claims of former owners of land on the territories that came under the Polish sovereignty after the Second World War. The elements of that evaluation embrace the conclusions according to which: 'there could be no room for the restitution claims from Germany', such claims would 'put the history upside down', 'proprietary problems connected with the Second World War are no longer a subject for the two governments' and 'neither the federal government nor any serious political force in Germany support such claims if they are nevertheless put'. There could be no room for doubt as to the legal force of that statement. Its descriptive style or inclusion of elements upon which the government has only limited or no influence at all (the behavior of political parties or individuals) cannot change the binding force of statements relating to the German state as such. In fact the statement is not only a promise. I contains also the elements of waiver and recognition (as to the fact that there is no longer a subject of claims and that they would put the history upside down). The waiver results from the same sentences. It is limited to claims made on the state level only. The individual ones are not cancelled as such. If they are however made and not satisfied there is no longer a possibility to put them on the level of states. The second act made in 1953 is also quite general. Although from the historical perspective there could be no doubt regarding the interrelationship between that act and the USSR-GDR agreement, the statement of the Polish government did not refer to the latter expressly. The author analyses critically the arguments aimed at the justification of the nullity of the act presented in the previous literature. In his opinion it would be very difficult (if possible at all) to put into question the legal force of the act. The author however is not prepared to accept the erection of the Chinese wall between the waiver and other international acts giving rise to the obligations of the author. In that context he refers to the 'rebus sic stantibus' argument according to which the presentation of claims on the side of Germany could justify the new evaluation of the results of the war for the Polish state and nation. That solution would not be happy for any party nor for the stability of law, but it could be perceived as an extreme solution for the most extreme course of events.

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)

100%

Saganek P.

Przegląd Sejmowy

2010

issue 4(99)

83-106

(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. .

Refine search results

1 Polish Yearbook of International Law

1 Przegląd Sejmowy

1 2010

1 2009

2 Saganek P.

Search results

UNILATERAL ACTS IN POLISH-GERMAN RELATIONS

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)