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1

ZÁSADA NULLUM CRIMEN SINE LEGE A UKLADANIE SANKCIÍ V SÚŤAŽNOM PRÁVE

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Šabová Z.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
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2013
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vol. 96
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issue 2
105 – 125
EN
In its judgment in case “Marianum”, given in 2011, the Supreme Court of Slovak Republic ruled that imposing sanctions for the breach of the general prohibition of abuse of dominant position contravenes the constitutional principle of nullum crimen sine lege. The legal opinion of the Supreme Court has been followed by several other panels of judges of the Supreme Court as well as from the Regional Court in Bratislava in other cases and thus represents an important precedent for the Antimonopoly Office of the Slovak Republic as the body entrusted with enforcement of the competition rules. The opinion of the Supreme Court is novel and represents a shift from its previous attitude taken in similar cases. Given the binding nature of the European court´s judicature for the national courts, in the present paper, the judgment of the Supreme Court is analysed, first of all in the context of the caselaw of the general Court and the Court of Justice of the European Union. It can be submitted that although the European law uses the concept of the “novelty of the case” and the European Commission possess a wide range of discretion on whether it imposes a fine or not, the mere fact that a breach of the general prohibition is concerned does not represent the impossibility of the competition authority to impose the fine. Furthermore, the paper is focused on the relevant case-law of the European Court of Human Rights, especially with regard to the changes regarding the standard of human rightsprotection brought about by the Lisbon Treaty. Based on the analysed case-law of both Luxembourg and Strasbourg courts, the author comments the opinion of the Supreme Court taken in the given judgment and its implications for the competition law enforcement in Slovakia.
2
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Doktryna „wolnego rynku idei“. Geneza, ewolucja oraz praktyczne zastowanie

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Biłgorajski A.
Z Dziejów Prawa
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2011
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vol. 4(12)
111-134
EN
Many arguments were used to account for the postulate of granting an individual the broad- est scope of the freedom of expression. Among them, a predominating and most pertinacious was a hypothesis that a free speech is especially precious as it leads to the revelation of the truth. The latter, however, will be brought to light when all the opinions are clearly expressed under the circumstances of a free and unregulated marketplace of ideas. A doctrine of a free marketplace of ideas, the beginning of which dates back to 1644, re- mains the most significant form of specification of the idea of the freedom of speech. It shapes international standards of speech freedom, not only in the world of the Western culture. The supreme courts in democratic countries (including the Polish Constitutional Tribune) refer to it, justifying their adjudications in cases in which the heart of the matter concerns the freedom of expression. It has been so despite numerous voices of criticism addressed at the doctrine in ques- tion for at least several dozen years. In the light of the above-mentioned, it seems necessary and intentional to present the origins, evolution and a practical application of a doctrine of “a free marketplace of ideas”.
3
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Problem niezawisłości w świetle kadr Sądu Najwyższego i Najwyższego Sądu Wojskowego w początkach Polski Ludowej

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Watoła A.
Z Dziejów Prawa
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2011
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vol. 4(12)
235-248
EN
The process of the choice of the right staff by new authorities also covered the judiciary. In the case of the Supreme Court the authorities faced the necessity to employ the prewar judges at the beginning of its existence. During preparations to complete the judicial staff, the method and conditions of nominations to the position of a judge of the Supreme Court changed (one of the conditions of being employed as a judge of the Supreme Court was the acceptance of politi- cal changes in the country). A decree from 14 March 1945 on the change of law concerning the system of the court of general jurisdiction abolished the already existing ban on judges’ affili- ation with political parties. Aiming at dividing the judicial environment of the Supreme Court, a campaign aiming at embarrassing some of the judges was conducted, which ended with retire- ment or self-criticism. Staff problems the communist authorities struggled with gathering the composition of the Supreme Court did not appear at the level of the Supreme Military Court. Any vacancies in personal staffing of the bodies of the military judiciary were completed by means of motivating people having proper qualifications. At the beginning of the existence of the Supreme Military Court a fundamental part of a personal staffing of the court was constituted by Soviet officers. They were the judges fully aware of the role the body played under new political circumstances. The proper staffing of the Supreme Military Court allowed for meeting the party’s expectations towards the military judiciary.
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Uchwały Sądu Najwyższego i ich rola w zachowaniu jednolitości sądowej wykładni prawa

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Wiatrowski P.
Zeszyty Naukowe Uniwersytetu Ekonomicznego w Krakowie
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2012
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issue 887
73-86
EN
Resolutions made by the Supreme Court that grow out of answers concerning concrete and abstract legal questions are fundamental instruments used to ensure the uniform application of law in court decisions. Legal questions are admissible only when divergence occurs in the interpretation of legal provisions in the practice of their application, they are apparently incorrectly worded and/or unclearly formulated, allowing different interpretations when the formulations are used by the legislator in an inaccurate way, or they are ambiguous or comprise too wide a scope of regulation regarding their ratio legis. Also, divergence in the application of provisions in jurisdiction may be grounds for posing an abstract legal question, which may result in courts issuing different decisions on the basis of the same provisions, or even the same decisions, but ones resulting from different interpretations. The obligation to comply with such a resolution in a particular case does not violate the principle of independence of the judiciary in judgments, hence the court itself has the initiative regarding its issuance from the outset. The opinion represented in the resolution is not to be accepted universally. Nor is it binding for the courts, and consideration of the opinion involved in the resolution in other cases is to be predicated on the acceptance of its substantive value.
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INTERNAL LEGITIMACY OF A CONSTITUTIONAL COURT (Wewnetrzna legitymacja sadu konstytucyjnego)

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Zajadlo J.
Przegląd Sejmowy
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2009
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issue 4(93)
129-144
EN
The purpose of the article is to present the problem of legitimacy of a constitutional court not from the point of view of its powers and status within the system of government (an external perspective) but from the point of view of its actual composition (an internal perspective). The notion of internal legitimacy is meant by the author as a sum of the Tribunal's authority, knowledge, qualifications and experience of its judges, as well as the rules and principles used for their election. In the recent years, a lively discussion takes place in the world's literature on philosophy of law and constitutional law concerning the procedures for nomination and election of constitutional judges as well as the models for shaping the composition of organs exercising the review of constitutionality of laws. The author presents a current review of this problem on the basis of the US and German literature, focused in particular on the opinions criticizing an actual practice of nomination the judges to the US Supreme Court and to 'Bundesverfassungsgericht'. According to the author, the solutions adopted in the Constitution of the Republic of Poland and in the Constitutional Tribunal Act are unsatisfactory in the context of the need to create an internal legitimacy of an organ responsible for review of the constitutionality of laws. This concerns both the model of selection of candidates and the procedure for election of the judges of the Constitutional Tribunal, as well as substantive requirements applied to them. To address each of these problems the author uses, on the one hand, the method of 'veil of ignorance' proposed by John Rawls and, on the other hand, the theory of hard cases developed by Ronald Dworkin. In the conclusion, he states that, firstly, more requirements should be added for candidates for a position of a judge of constitutional court, to complement the one that they should 'be distinguished by their knowledge of law'; secondly, the circle of subjects entitled to nominate candidates should be broader than a group of Deputies or the Presidium of the Sejm; thirdly, the resolution concerning the election of the judges of the Tribunal should be adopted by a qualified majority of votes of Deputies. This is the only way in which internal legitimacy of an organ responsible for the review of constitutionality of laws may be created, since in such case the model of law application and interpretation differs considerably from the traditional court model.
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