Review of European and Comparative Law, 2022, Vol. 48, No 1
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- ItemThe European Union in multi-crisis: towards differentiated legal integration?(Wydawnictwo KUL, 2022) Tosiek, PiotrThe aim of this article is to present a general forecast of the development of processes of legal integration in the European Union in the coming years. The European Union is in ‘multi-crisis’, which may force the member states to adopt an organizational development scenario based on differentiation. The selectivity of this differentiation is understood both in terms of the heterogeneity of integration in some areas and the reduction in the number of states fully participating in integration. An analysis of the current trends and solutions proposed and taken by EU decision-makers shows that the EU legal system is not subject to federalization, but in fact the tendency to deepen integration does not conflict with intergovernmentalism. The multiplicity of problems resulting from the multi-crisis will most likely require the deepening of the current differentiation mechanisms and the emergence of new ones.
- Item“Chilling Effect” in the Judicial Decisions of the Polish Constitutional Tribunal as an Example of a Legal Transplant(Wydawnictwo KUL, 2022) Chybalski, PiotrThe paper is dedicated to describing the way of reception by the Polish Constitutional Tribunal of the “chilling effect”, i.e. an institution related to such activities of public authorities that form an indirect act of deterrence regarding the execution of constitutionally guaranteed rights and freedoms, esp. the freedom of expression. The discussed concept has originated in judicial decisions of the US Supreme Court and has spread into many contemporary legal systems, including jurisprudence of the European Court of Human Rights. Although it is evident that the Tribunal “took over” that concept from the ECHR, it in fact developed its own, unfortunately internally inconsistent, understanding of the chilling effect. Four different ways of application of chilling effect may be noticed in judicial decisions of the Polish CT, while only two of them reflect the perception of this institution by the US Supreme Court and the ECHR.
- Item“New conditionality” in the EU’s “new generation” Agreements with Asian Countries(Wydawnictwo KUL, 2022) Kuźnar, Andżelika; Menkes, Jerzy BrunonThe objective of the study is to verify the implementation, by the EU, of the treaties’ obligations to proliferate “non-trade” European values in agreements with Asian countries. The thesis of the study is that the EU with “new generation” agreements strengthens the cohesion of the western hemisphere and creates the conditions for its enlargement. An instrument supporting the strengthening and development of the western hemisphere is the policy of “change through trade” combined with the promotion of “free and fair trade”. We claim that this policy contributed to political change in the world – the expansion of international law, the principles of the UN Charter, and EU values. Influence beyond the parties to the agreements takes place, although formally the agreements only govern the relationship between the parties. This influence is the outcome of, among other things, demonstrating the implementation of the values and benefits of value-based cooperation. By agreements (FTAs, IPAs and political) with Asian countries, the network of connections among the states of the Western hemisphere is developed and the community of values reinforced. The institutionalisation of the community of values of EU-Asian countries also fosters the institutionalisation of ties among the democratic Asian countries.
- ItemGeneral principles of law and taxation(Wydawnictwo KUL, 2022) Lasiński-Sulecki, Krzysztof; Morawski, Wojciech; Prejs, EwaAlthough the general principles of law at first sight do not bring about numerous associations with the sphere of taxation where the processes of compliance with legal rules or applying them must end with a precise numerical result, both the relevance and the significance of these principles in the sphere of tax law are more and more noticeable. The principle of proportionality has been invoked in probably every second VAT judgment of the Court of Justice for years. The principle of legal certainty has made its way to the case law of the said court as well as the Constitutional Tribunal in Poland. The importance of other principles is definitely on the rise.
- ItemLegal status of farmers involved in short food supply chains, a comparative study(Wydawnictwo KUL, 2022) Kapała, Anna MariaThe legal status of farmers involved in food marketing is not determined by the EU legislator, however, EU policy encourages farmers’ participation in short food supply chains. The article aims to determine whether a farmer selling his products, both processed and unprocessed, is subject to a favourable legal regime intended for the agricultural sector, or whether this activity qualifies him as a commercial entrepreneur. The legislation of three EU Member States and the law of the USA were subject to a comparative legal analysis, based on the dogmatic method. The study found that under the EU Member States’ law, farmers involved in short food supply chains are granted a privileged agricultural status, which certainly strengthens their market position in competition with food businesses and big retailers and is an incentive to undertake and conduct the activity of agri-food marketing. In turn, under American law, agricultural activity and direct marketing are economic activities that cause farmers to operate within a business as an entrepreneur. The main tool to support the participation of US farmers in short food supply chains is financial programmes offering incentives to direct marketing. It was concluded that the systemic legal solutions, as in the presented legislation of the EU countries, in contrast to aid programmes, provides farmers with favourable conditions in the long term, without additional bureaucracy and the need to fill out documents and applications, thus giving them a sense of confidence and stability in engaging in food direct marketing.
- ItemIssues of awards given as a part of social arbitration in a collective dispute. De lege lata and de lege ferenda remarks(Wydawnictwo KUL, 2022) Jarota, MaciejSocial arbitration as the third method of resolution of collective disputes can be used to resolve a dispute in an amicable manner. Thanks to this method, parties to the collective dispute can end their conflict thanks to the arbitration award with no need to go on strike. The author analyses the legal nature of arbitration awards and presents consequences of the related labour law legislation. The conclusion is as follows: current legal regulations are in need of change, especially when it comes to the execution, amendment and supplementation of an award issues as a part of social arbitration with the involvement of trade unions, employers or their organisations.
- ItemEuropean Union model of whistleblowing(Wydawnictwo KUL, 2022) Kobroń-Gąsiorowska, ŁucjaIn October 2019, the European Union adopted the Directive on protecting persons reporting breaches of European Union law, commonly known as the „Whistleblower Protection Directive” (EU Directive). The protection of national policies is beyond the scope of the Directive, as its sole purpose is to encourage people to report "breaches of EU law", ie, to strengthen „enforcement of the Union law and policies in specific areas”. The Directive is not concerned with the protection of workers or employees. The Directive treats whistleblowers as an instrument for reporting irregularities. Another proof of the instrumental approach adopted in the Directive is the lack of any financial incentives for whistleblowers. This article's basic thesis is that despite dynamic and multifaceted changes in the economy of individual countries, the accepted model of whistleblowing in the European Union will depend on repeated multidimensional analysis of the principle of the lawyer's loyalty to the organization. The research presented below aims to prove the validity of the adopted thesis.
- ItemLegal interpretation from the perspective of French jurisprudence: from positivist exegesis to free scientific research(Wydawnictwo KUL, 2022) Sokalska, Edyta; Augustyniak, MałgorzataThe “natural law” movement provoked some discussions on the method of interpretation of law within European legal thought. Diverse methodological approaches referring to some social, historical, and multidimensional aspects and foundations of law were developed by French and German legal scholarship at the turn of the 19th and 20th centuries. The present article focuses on the main scientific positions on the method of interpretation of law present in French jurisprudence. Since the beginning of the 19th century, French legal studies were dominated by the positivist school of exegesis. Scholarship and legal practitioners sought the opportunity to rebuild their authority. It was accompanied by attempts to prepare a new theoretical ground for legal order. Then, some representatives of a new trend in scientific research considered pluralism of the methods applied in legal research. Raymond Saleilles postulated the need for the evolutionary perspective in legal science. This approach appears to be similar to the concept of the law of nature with variable content adopted by Rudolf Stammler in Germany. Since the last two decades of the 19th century, François Gény, the supporter of a greater flexibility in interpretation of a legal text, developed libre recherche scientifique. He questioned the idea of autonomy of legal science, calling for its integration with other disciplines.
- ItemTaxation of Academic Teachers’ Royalties. Controversies in the context of the general interpretation by the Minister of Finance(Wydawnictwo KUL, 2022) Świstak, Marzena; Smoleń, Paweł PiotrThe Act on Personal Income Tax stipulates a number of methods for calculating costs, which unfortunately often leads to disputes between taxpayers and tax authorities. The same also concerns the rules applicable specifically to academic teachers performing their duties under an employment relationship. Problems emerge both in the context of the manner and scope of eligibility for flat-rate 50% tax-deductible expenses. Notably, the interpretative problems stem not only from the provisions of tax law as such. They also emerge in the context of higher education reform. But even though the observed legal inconsistencies require urgent legislative action, the necessary amendment to the provisions of the Act of 20 July 2018 – Law on Higher Education and Science has yet to be introduced. Nearly two years after the Act’s entry into force, the Minister of Finance finally decided to issue a general interpretation. Therein, it is stated that in terms of the applicability of 50% tax-deductible expenses, the Act of 20 July 2018 – Law on Higher Education and Science constituteslex specialis, i.e. ultimately, the 50% cost deduction is applicable to the entirety of an academic teacher’s remuneration. The following paper provides a critical analysis of the present regulations as well as possible solutions to the current fiscal and legal stalemate. In the authors’ opinion, the general interpretation by the Minister of Finance fails to substantially amend the quality of the law whose provisions remain largely unclear. At the same time, its practical value for academia cannot be denied. Undoubtedly, the fact that the same was issued by the direct superior of tax authorities will make this opinion difficult to ignore in the context of individual cases.
- ItemNew technologies in Polish commercial arbitration on the background of European Union regulations(Wydawnictwo KUL, 2022) Ryszkowski, KarolCommercial arbitration in Poland has to face contemporary problems, including those related to the constant development of information technologies, and therefore new technologies. It is seen during the COVID pandemic. This article is intended to assess the state of Polish regulation on the background of European Union regulations in the abovementioned area and to propose potential changes to the Polish legislation if they are needed.
- ItemActual challenges for the implementation of judgments of the European Court of Human Rights(Wydawnictwo KUL, 2022) Jaskiernia, JerzyThe author analyzes the problem of the implementation of judgments of the European Court of Human Rights (ECtHR). In light of the European Convention on Human Rights (ECHR), a special role in its control mechanism is played by the Committee of Ministers of the Council of Europe. Despite the measures taken, there have been delays in the execution of judgments or the lack of their implementation for years. The author analyzed this problem in light of the latest reports of the Committee of Ministers and the recommendations of the Parliamentary Assembly. He pointed to the need for greater activity in this process of other bodies of the Council of Europe, including: the Commissioner for Human Rights, the Venice Commission, the CPT, the ECRI as well as institutions of the civil society. In the last decade, the interest of the Parliamentary Assembly of the Council of Europe in this matter has clearly increased. The author postulates that parliamentarians sitting in this body should be more active in this regard in their countries. They have instruments of control on the executive power, which could be used to increase the effectiveness of the execution of the ECtHR’s judgments.
- ItemCritical evaluation of new Council of Europe guidelines concerning digital courts(Wydawnictwo KUL, 2022) Świerczyński, MarekDigitalisation of courts plays an increasingly important role in dispute resolution. It has the ability to improve access to justice by facilitating faster and less costly access to courts, thereby making dispute resolution more effective and efficient. However, wide use of digital courts also has the potential to restrict access to justice. Attention needs to be given to issues of authentication and identification of the parties, digital divide, cybersecurity and personal data protection. This paper concerns recent guidelines of the Council of Europe that aim to fully address these issues and assist member States in ensuring that implemented digital techniques in the courts do not undermine human dignity, human rights and fundamental freedoms. The author answers and critically evaluates the specific questions and doubts relating to the content of the guidelines. The author’s recommendations can be taken into consideration by the Council of Europe in future updates of the guidelines.