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Kilka uwag w kwestii możliwości wycofania się przez Polskę z protokołu polsko-brytyjskiego

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Czapliński W.
Studia Europejskie-Studies in European Affairs
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2012
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issue 1
83-94
EN
Article 6 of the Treaty on the European Union, in the version established by the Lisbon Treaty, gives a binding force to the Charter of Fundamental Rights, including it in the primary law and making it equal with it. Thus, the instrument was not directly included in the Founding Treaties, as provided for by the Constitutional Treaty. The Protocol on the Application of the Charter of Fundamental Rights to the United Kingdom and the Republic of Poland is an inseparable part of EU primary law. The aim of the Protocol is to limit the pos-sibility for the ECJ to control the application of the Charter in cases in which laws provided for in the Charter have been confirmed by the Polish legal system. It does not seem apt to say that Poland’s withdrawal from the Polish-British Protocol would only be possible through a new protocol, ratified by all Member States. EU law, as a subsystem of public international law, is essentially deformalised and leaves a relative freedom of action to states. There are no obstacles to applying these non-formal procedures (such as withdrawing the special reservation by Poland) to the Polish-British protocol
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Rola zasady równości w prawie Wspólnoty/Unii Europejskiej (w ujęciu ewolucyjnym)

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Maliszewska-Nienartowicz J.
Studia Europejskie-Studies in European Affairs
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2011
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issue 4
73-94
EN
The article concentrates on the numerous functions played by the principle of equality in the European Union law. However, they have not been static but have changed in line with the evolution of the European Community (now European Union) legal order. As a result four main functions of equality are distinguished. Firstly, its role as a an instrument of market integration is presented. The principle of equality have been used in thins filed intensively in order to abolish different barrier in the common market. Secondly, it regulates and can influence the activities of the European Union institutions, both legal and administrative. If these measures are incompatible with the principle of equality, they should be eliminated, so it protects individuals against arbitrary actions. Thirdly, it is an important instrument in eliminating differences in treatment of women and men. The Treaty regulations concerning this questions confirm that sex equality is an important element of the European Union law which aims at its realization in practice. Fourthly, equality taken from the fundamental rights perspective is described (both the case-law and provisions of the Charter of Fundamental Rights are presented). Finally, the provisions of the Treaty of Lisbon are taken into account – according to them equality is both the value on which the Union is based and its autonomous objective. In general one should observe that equality has a special position in the European Union law. Its role has been strengthen in line with the evolution of this legal order and is not confined to economic spheres but can also be looked at from the fundamental rights perspective.
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THE POLISH CHARTER OF FUNDAMENTAL RIGHTS AFTER THE LISBON TREATY: THE LEGAL NATURE AND BINDING LIMITS (Polska Karta Praw Podstawowych po Traktacie lizbonskim. Charakter prawny i granice zwiazania)

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Muszynski M.
Przegląd Sejmowy
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2009
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issue 1(90)
55-78
EN
The Lisbon Treaty fundamentally changes the legal basis of the European Union. The areas of regulation subject to modification include the normative foundations of the protection of fundamental rights in the EU. The article attempts to answer the question concerning the legal nature and the limits of the revised Charter of Fundamental Rights which are binding on Poland. Despite an enthusiastic support of the Charter by part of legal scholars, the role of the Charter of Fundamental Rights in the domestic legal order in rather ambiguous. In Lisbon, the authors of the Treaty have departed from formal way of proceeding. As a result - regardless of their political will - the adopted phrase of 'the same legal value as the Treaties' will not have any effect in Polish domestic law, where it functions as a non-binding act of the European Parliament, Council and Commission. Legal effect of an international act in the national legal system is hinged on the constitutional procedure of its adoption, and not on the political message. However, the rank of the Charter within the system of the EU law obviously rose. In fact, this will affect granting Treaty guarantees to its provisions. From this point of view, a new legal hybrid will appear, an act which, formally, is not a piece of primary law (as it is not ratified), but which has the status (enjoys the protection) prescribed for such acts. Some systemic consequences of this experiment, (e.g. the effect of the principle of primacy of EU law) may, however, have negative systemic consequences. The Charter will not be included, for procedural reasons, in the constitutional list of the sources of law and, therefore, there will be a collision between them and the norms of the national law. In this respect, a moderating role will be played by the Polish-UK Protocol which, according to Article. 49 b shall form an integral part of the Treaties. From the point of view of legal science, the meaning of the new Charter of Fundamental Rights is reduced, practically, to one aspect — inserting its content to the Lisbon Treaty opens a new phase in the evolution of the fundamental rights in the EU. To date, they were founded on the basis of the: European Convention for the Protection of Human Rights and Fundamental Freedoms and constitutional order of Member States. So far, the Charter has only reflected and expressed the fundamental rights specified within these two areas. The Lisbon Treaty grants it a status equal with them. .
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GENDEROVÁ VYVÁŽENOST V EVROPSKÝCH SPOLEČNOSTECH SKRZE KVÓTY – NUTNOST NEBO „ABSURDITA”

88%
Říčka R.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
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2014
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vol. 97
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issue 2
154 – 175
EN
It’s a long-term aim of the European Union to achieve equality between women and men. Several directives have been adopted in this field and now the European Commission (EC) came with proposal for a directive on improving the gender balance among nonexecutive directors of the stock exchange listed companies. The article provides a brief overview of the relationship between EU and protection of human rights focusing on a ban of discrimination. With regards to this issue the Union’s law, ECJ’s case-law as well as political declarations is discussed. Attention is consequently focused on the Proposal that prescribes that the under-represented sex should occupy 40% of the non-executive director positions in the specified companies by the end of the year 2017 (2019). The article analyzes and questions the EC’s argumentation in favour of the directive, pointing out some contradictions of the commission’s statements. While examining the crucial provisions the author in particular considers whether the “Act” meets the principle of subsidiarity and proportionality as a basic requirement of EU’s law. In light of this theme it is stressed that “the Proposal” is about to interfere with some rights guaranteed by the Charter of Fundamental Rights of the European Union – among others the right to respect for private and family life and the right to the protection of personal data. Finally the author aims to answer the question whether the Proposal represents just another of Union’s political proclamations of its democracy or if it answers the real need for redress of sexual discrimination in the European Union.
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NEW APPROACH TO HUMAN RIGHTS IN THE TREATY OF LISBON (Nowe ujecie regulacji praw czlowieka w Traktacie z Lizbony)

88%
Sozanski J.
Ius Novum
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2010
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issue 2
38-66
EN
This paper is aimed at presenting the most essential changes and modifications in the field of human rights protection which were introduced by the Treaty of Lisbon and at analyzing their role and importance presented with the use of a historic - comparative method and legal analysis. The changes are important because in the new legal system a new notion network was created and this implies serious normative consequences. The category of human rights known in the universal and the Council of Europe's system was highlighted, and the role of fundamental rights seems to be diminished. Retaining the importance of norms 'acquis', the Treaty obliged all member states to be party to the ECHR. The provisions of the Charter of Fundamental Rights were incorporated in the treaties (as an amendment); as some new areas of protection and terms were. All this constitutes a significant change in the previous system of protection.
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CHARTA ZÁKLADNÝCH PRÁV EÚ V KONANÍ O SÚLADE PRÁVNYCH PREDPISOV: ZATIAĽ RUTINA NAMIESTO DOKTRÍNY

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Mazák J., Jánošíková M.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
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2015
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vol. 98
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issue 6
590 - 601
EN
The article deals with the interpretation and application of the Charter of Fundamental Rights of the European Union in proceedings on the conformity of legal provisions before the Constitutional court of the Slovak Republic. The authors analyse the only findings of the Constitutional court concerning the Charter. They proceed from the existing theoretical basis of the problem and the case law of the court justice of the EU and some other constitutional courts. The important conclusion of the authors is that the Constitutional court have missed the opportunity to clarify several crucial questions, mainly the scope of application of the Charter in the national legal order and the relations between the Charter and the Constitution of the Slovak Republic and the Convention for the Protection of Human Rights and Fundamental freedoms. The authors propose some points of departure for the Constitutional court in proceedings on the conformity of legal provisions which might lead to the better understanding of the position and the scope of application of the charter in these proceedings with specific regard of its capacity to be an independent basis of the judicial review.
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ODKAZ SÚDNEHO DVORA EÚ VNÚTROŠTÁTNYM SÚDOM O APLIKOVATEĽNOSTI A PÔSOBNOSTI CHARTY ZÁKLADNÝCH PRÁV EÚ: ROZSUDKY VO VECIACH ÅKLAGAREN FRANSSON A MELLONI

75%
Mazák J., Dobrovičová G., Orosz L., Jánošíková M.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
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2014
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vol. 97
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issue 2
115 – 130
EN
The article intends to contribute to the theoretical and practical debates concerning the scope of application of the Charter of Fundamental Rights of the European Union (hereafter „the Charter“) in relation to the recent judgments of the Court of Justice in the cases Åklagaren Fransson and Melloni. An analysis of these judgments is concentrated on the interpretation of the general provisions of the Charter, namely of Articles 51, 52 and 53. The key element of the application of the Charter within the Member States is a proper interprreation of Article 51 paragraph 1 which uses, regarding to the Member States, the term: only when they are implementing the EU law. The interpretation of that Article in the recent case law goes visibly beyond its mere wording since the Court of Justice wants to connect the application of the Charter with its previous case law on the general principles. The authors deal also with the levels of protection of fundamental rights in interaction between the Charter and national constitutions and the European Convention for the Protection of Human Rights and Fundamental Freedoms. The conclusions of the treatise should open the door for further research of the question of applicability of the Charter within the Member States.
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