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HE GERMAN BASIC LAW 60 YEARS LATER. GERMAN AND EUROPEAN PERSPECTIVES (Ustawa Zasadnicza po 60 latach. Niemieckie i europejskie perspektywy)

100%
Starck C.
Przegląd Sejmowy
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2009
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issue 6(95)
17-31
EN
The article provides a general and brief overview of the German Basic Law 60 years after its adoption. Two different viewpoints are presented - the German and European perspectives. The starting point is the reference to the constitutional history of Germany, as well as numerous important anniversaries due in 2009, including the 20th anniversary of peaceful revolution in the former GDR. From the German perspective, the most important aspect is the evolution of legal provisions concerning individual rights, parliamentary system of government and federalism. This evolution was connected, particularly in relation to individual rights, with jurisprudence of the Federal Constitutional Court (FCC). The FCC has given a constitutional status to the principle of proportionality of constitutional restrictions on individual rights and recognized them as not only 'defensive rights', but also as an origin of a positive duty of the state to protect those values and legal goods which constitute the basis for enactment of these rights. Amendments of the Basic Law have changed in particular the shape of the federal system which, following the reform of 2006, provides more power to lands. From the European perspective, the discussion is focused on pointing out that a membership of the European Union does not imply a breach of the principle of supremacy of the Basic Law, because it is, in its Article 23 that the basis for participation in European integration is provided. The Basic Law itself determines the goals and outlines of integration, allows for transfer of sovereign powers to the Community institutions and specifies the procedure for such transfer. From this point of view, of particular importance is the principle of conferred powers which provides a basis for operation of the institutions of the Union and the European Communities. Not only the solutions adopted in the Basic Law, but also the provisions of the establishing treaties, should be interpreted on the assumption that the European Court of Justice is not empowered to modify constitutional law of Member States and jurisprudence of their constitutional courts.
2
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Pytania prejudycjalne do ETS w praktyce polskich sądów administracyjnych

100%
Talaga R.
Studia Europejskie-Studies in European Affairs
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2010
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issue 1
91-116
EN
The aim of this article is to present the basic problems of submitting preliminary questions tho the European Court of Justice by Polish administrative courts. The author descibes the issuses related to the object of legal question i.e. the scope and contents of a request for interpretation of provisions of the Community law. The paper also presents the issuses related to the procedure and form of submitting a preliminary question and the results thereof for the main proceedings pending. The problem if a court submitting a preliminary question should suspens the proceedings or adjourn the hearing of the case and whether the discusions of the court in that respect may appeled against is of particular importance. Apart from presenting specific practical information on the institition of preliminary question and its role in the system of interpretation of law as well as presenting the judicial decisions of the polish administrative courts, the author analysed the activity of courts in application of the pro - Community interpretation using examples. It was to prove that such interpretation not only changes the existing understanding of polish law but also eliminates the specific provisions if, in the court’s opinion, they contadict the Community law. In the end of the analysis of judicial decisions the author formulates the conclusion that the administrative courts generalny accept the principle of the pro – Community interpretation being convicted that the polish judicial decisions have become an integral part of the Community system of judicature.
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AN INTERPRETATION OF COMMUNITY LAW - METHODS AND BINDING FORCE OF ESJ LEGAL REASONING

100%
Szuniewicz M.
Studia Prawnicze
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2006
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issue 1(167)
23-68
EN
This study is aimed at analysing a way of an interpretation of European law, precisely the methods of interpretation employed by the European Court of Justice (ECJ) and binding force of its legal reasoning embodied in preliminary rullings. The first part of this work tries to indicate a new attitude and more comprehensive view on process of ECJ's legal reasoning which should be - according to the author's opinion - considered as a kind of matrix of particular elements, a specific puzzle of commonly known methods and techniques of legal interpretation with a paradigm of European integrity and principles of 'uniformity' and 'effect utile' as determining factors. This leads to putting forward a suggestion for comprehensive 'holistic' approach to all elements in the 'matrix of considerations' by reference to which the legal meaning of the provision in question is to be identified, which is followed by the precise description of each of them. The second part deals with the institution of preliminary rullings and the question of its binding force with a special emphasis lied on the 'clear meaning' of the provision whether according to 'clara non sunt interpretanda' rule ('acte clair') or because its meaning has already been explained in previous ECJ case law ('acte éclaire').
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ROLE OF THE EUROPEAN COURT OF JUSTICE IN THE PROCESS OF FORMATION OF LAW OF EUROPEAN COMMUNITY/EUROPEAN UNION (Postavenie Sudneho dvora v procese dotvarania prava Europskych spolocenstiev/Europskej unie)

100%
Durechova J.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
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2009
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vol. 92
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issue 1
29-40
EN
Particular ways of interpretation of law applied by the European Court of Justice (hereinafter referred to as 'ECJ'). Role of the ECJ in filling of the 'gaps' of European law. Judgments of the ECJ and its position and significance in the process of formation of law. Basic principles formed by the ECJ. (Un)binding judgments of the ECJ. Role of the preliminary questions and opinions of the ECJ in formation of law. Analysis of Lugano Opinion. Conclusion dealing with the significance of judgments, preliminary questions and opinions of ECJ in the process of formation of European law. Question of acceptable bounds of extensive interpretation and jurisdiction of ECJ.
5
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QUESTIONS FOR PRELIMINARY RULING IN THE JURISPRUDENCE OF CONSTITUTIONAL COURTS IN THE EUROPEAN UNION MEMBER STATES

100%
Bogdanowicz P.
Przegląd Sejmowy
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2008
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issue 5(88)
89-107
EN
This study deals with relations between the courts of review of constitutionality of legal norms and the European Court of Justice in the field of preliminary rulings. This procedure, referred to inter alia in Article 234 of the Treaty establishing the European Community, empowers - and, in some circumstances, even obliges - national courts to apply to the ECJ for interpretation or assessment of validity of European law, if the answer is necessary to solve the matter in domestic proceedings. The discretion in determining whether a given body is a court in the sense of Article 234 of the Treaty belongs, according to the prevailing Community theory, to the ECJ. Nevertheless, in the opinion of some constitutional courts, such power should be vested in them. The Italian Constitutional Court explicitly held that it would not refer a matter for preliminary ruling. So far this been made only by two courts of review of constitutionality of legal norms: the Belgian Court of Arbitration and Austrian Constitutional Court. This does not however mean that asking such question does not constitute a point of interest of those courts. Due to their special status within national legal order, this problem deserves special attention.
6

THE EC TREATY RULES AND THE ENERGY SECTOR (Primarne europske pravo a energeticky priemysel)

100%
Handrlica J.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
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2008
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vol. 91
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issue 5
388-415
EN
The lack of a comprehensive European energy policy was reflected in the division of the European organisations and in Member States' insistence on their own national policy in the major areas of energy matters. Two of three original European Communities were linked directly to the energy ressources: the European Coal and Steel Community (Communauté européenne du charbon et de l'acier) and the European Atomic Energy Community (Communauté européenne de l'energie atomique). The basis of the European Coal and Steel Community was the Common Market, which prohibits tariffs, non-tariff barriers, quotas, actions resulting in discrimination against producers, buyers, and sellers, subsidies, and other measures whch affect he market. The Community aimed at regular distribution of energy, control of prices, the improvement of labour standards inter-State co – operation, and generation of energy. To achieve these aims, the Community collected information, defined common goals, supported investments and secured competition. The European Atomic Energy Community (EURATOM) was established to support the rapid development of the non-military nuclear industries in the Member States and to establish good relations in this field with other countries. In order to reach these aims, EURATOM supports research, establishes safety norms and oversees their implementation, facilitates investments, and secures and monitors distribution of fissionable material. The establishment of the Common Market is also relevant. EURATOM shares its institutional framework with other Communities. The Council and the Comission issue regulatios, directives, decisions, recommendations, and opinions. In the European Community, the energy field is regulated by the primary law (the Treaty provisions) and secondary law, ie regulations, directives, decisions, and recommendations.
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A LIABILITY OF THE INTERNET SEARCH PORTALS FOR DISPLAYED SEARCHING RESULTS (Odpovednost internetovych vyhledavacu za zobrazovany vysledek vyhledavani)

100%
Gongol T.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
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2010
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vol. 93
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issue 4
399-409
EN
This article deals with the problems in connection with legal liability of internet search portals, as google, yahoo, seznam, centrum etc., for displayed searching results. The article includes especially recent case law of the European Court of Justice and comparison of the national European and American courts.
8

POROVNAVÁCIA REKLAMA V SLOVENSKOM PRÁVNOM PORIADKU

88%
Vozár J., Lapšanský L.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
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2011
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vol. 94
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issue 6
558 – 576
EN
The authors deal with the issue of comparative advertising in Slovak law, putting stress on the specific implications of the inclusion of regulation of this institute in the legal norm of public law that implemented the European directive. The authors also deal with the definition of comparative advertising and analyse the individual requirements for admissibility of comparative advertising. For the integration of the institute of comparative advertising in Slovak law, the law-maker has opted for its incorporation in the public advertising law, which naturally raises the question of the relationship between the regulation of comparative advertising and rules on fair commercial practices or between other regulations applicable to advertising. Moreover, the fact that the incorporation of the regulation of comparative advertising in the advertising law resulted in the fulfilment of the commitment to transposition of the European directive in Slovak law, will have certain implications for the method of interpretation and application of the Slovak regulation of comparative advertising. We can already state that the case-law of the European Court of Justice had an important influence on the interpretation of the definition of comparative advertising and of the individual positive and negative conditions of admissibility of comparative advertising.
9

MILESTONES OF THE COMMUNITY LAW APPLICATION IN THE ITALIAN CONSTITUTIONAL COURT´S CASE LAW (PART II) (Milniky aplikacie komunitarneho prava v judikature talinskeho ustavneho sudu (II. cast))

88%
Janco 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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2010
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vol. 93
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issue 2
117-138
EN
The article deals with selected significant decisions of the Italian Constitutional Court, which have determined the development of Community law application in the Italian legal order and can be a source of inspiration in particular for the new Member States of the European Union, including the Slovak Republic. In particular, the Italian Constitutional Court´s decisions deal with the relationship between Community law and national law, solutions of conflicts between Community law and national law concerning the application of law and the protection of the fundamental constitutional principles and human rights guaranteed by the constitution and last but not least, the relationship between the Italian Constitutional Court and the European Court of Justice.
10

DRAFT OF THE JURISPRUDENTIAL CONCEPTION OF MULTI-CENTRIC SYSTEM OF LAW (Nacrt teoretickopravnej koncepcie multicentrickeho pravneho systemu)

75%
Golecki M. J., Wojciechowski B.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
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2009
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vol. 92
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issue 3
213-227
EN
The article outlines the conception of a multi-centric system of law based on a situation where in the territory of a state the law of given state, the EU law and the law created on the ground of the European Council apply simultaneously, which may result in the existence of contradictory valid and final court decisions. The multi-centric understanding of the system of law exceeds the traditional tension between legal positivism and iusnaturalism. The multi-centric system of law tends to the network configuration, but its subsystems retain their hierarchic structure. The article applies the multi-centric understanding of the system of law, especially to the relationship between the legal order of EU and legal orders of the individual member states, from the view of the European Court of Justice and the Constitutional Court of Poland. The latter bases its doctrine of their relationship on the principles of mutually favourable interpretation, cooperative application. The principle of the interpretation favourable for the European law is however limited. It cannot lead to results which are contrary to the explicit wording of the constitutional rules. In the principle of precedence of the EU law two levels of cogency and application may be distinguished. At the first level the precedence of the constitutions of the member states may be accepted, which will retain their decision-making at the moment of potential collision of EU rules with their own rules. In case of the application of the law the precedence of the EU law, resulting from the principle pacta sunt servanda contained in the Polish Constitution, comes to the foreground, thus the EU law has the application precedence under the Polish Constitution after all.
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