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Prawna ochrona jednostki przed naruszeniem konstytucyjnego zakazu dyskryminacji w relacjach horyzontalnych

100%

Śmiałek P.

Przegląd Sejmowy

2019

issue 4(153)

87–106

The purpose of this article is to discuss legal measures that allow an individual to seek protection against unequal or discriminatory treatment in horizontal relations. Taking as a starting point that Article 32(2) of the Constitution of the Republic of Poland and Article 33 of the Constitution are also applicable in horizontal relations, the author attempts to identify legal norms that protect an individual in this respect. In addition, an attempt is made at finding sanctions against violations of norms prohibiting discrimination. As part of the conducted deliberations, the author focuses on three basic legal acts, the civil code, the labor code, and the equality act, because they are the main normative source of protection of the individual against discrimination in horizontal relations. Individual legal institutions are discussed from the perspective of their scope of application in terms of subject and object and through the prism of potential sanctions. The author also undertakes an attempt to assess the effectiveness of these means and draws attention to the existing legislative shortcomings mainly related to the way of regulating the so-called actions against discrimination in the equality law. In the last part, the author makes considerations regarding the procedural aspects related to the pursuit of claims for discrimination, and in particular focuses on the institution’s reversed burden of proof in this type of proceedings.

Powództwo przeciw dyskryminacji w Ustawie z dnia 3 grudnia 2010 r. o wdrożeniu niektórych przepisów Unii Europejskiej w zakresie równego traktowania

86%

Śmiałek P.

Studia Prawa Publicznego

2017

issue 4 (20)

165-185

Discrimination is a phenomenon that has been existing in our society for many years. The main cause of increased legislative activity in European countries is the action of the European Union, which has issued a number of directives dealing with the problem of discrimination. Poland, as a member of the European Union, was obliged to implement anti-discrimination directives. The legislator did this by enacting the Act of 3 December 2010 on the implementation of certain European Union regulations on equal treatment (hereafter: the equality statute). The equality statue was a good step towards combating discrimination in areas such as the provision of services or capital ﬂ ow. The legislator has also pointed to discriminatory features, including race, age, disability, sex, or sexual orientation. These features cannot serve as a basis for diff erentiating the legal position of legal entities. In carrying out a comprehensive analysis of the subject matter, the study presented in this article covered: the normative grounds of an anti-discrimination lawsuit, the right to compensation, which deviates signiﬁ cantly from the deﬁ nition set out in Article 361 of the Civ il Code, the substantive and legal grounds for action, the principles and the procedure for claiming compensation. The article also deals with the eff ectiveness of the application of the measure in the jurisprudence. To that end, the study examined the case law of common courts dealing with the facts related to the equality law. The Ombudsman and other anti-discrimination aut horities have also been contacted for information on the use of this measure. The paper identiﬁ es as well, the potential solutions aimed at increasing the eff ectiveness and frequency of the use of anti-discrimination lawsuits before Polish common courts.

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1 Przegląd Sejmowy

1 Studia Prawa Publicznego

2 2019

2 Śmiałek P.

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Prawna ochrona jednostki przed naruszeniem konstytucyjnego zakazu dyskryminacji w relacjach horyzontalnych

Powództwo przeciw dyskryminacji w Ustawie z dnia 3 grudnia 2010 r. o wdrożeniu niektórych przepisów Unii Europejskiej w zakresie równego traktowania