Adam Mickiewicz University Law Review
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The Principle of Proportionality in European Union Law as a Prerequisite for Penalization
Get PDFThe paper analysis the principle of proportionality, which is widely applied in the EU legal order and is therefore one of the fundamental principles of the system of the European Union. It is one of the legal principles that govern decision-making processes and common strategic objectives, and which are applicable when establishing European Union legislation and transposing it into national law, including in the area of criminal law, although the current analyses do not often focus on discussing this aspect. Due to its complexity and significance for the processes of establishing and applying the law, the principle of proportionality requires detailed and separate discussion, especially in the context of European criminal law
The Dominant Position of Regional Facilities for the Processing of Municipal Waste
Get PDFThis paper addresses the issue of the functioning of regional facilities for the processing of municipal waste in the light of the provisions of the Competition and Consumer Protection Act of 16 February 2007. The authors seek answers to the question of whether in certain specific situations it is possible to conclude that a given facility holds a dominant position on the market in which it operates. Two situations will be subjected to close analysis, namely those in which only one or two facilities with RMWPF status operate in a given region of municipal waste management
The Principle of Self-Determination in the Context of Human Rights
Get PDFThe essay presents the issue of the principle of self-determination from the perspective of international human rights law. The author highlights the close relationship between the principle of self-determination and the principle of respect for human rights and fundamental freedoms. In practice, the principle of self-determination is a prerequisite for the effective guarantee of human rights, and, at the same time, guaranteed protection of human rights is a prerequisite for implementing the principle of national self determination. The author presents the issue of self-determination in the context of the basic regulations of international human rights law, considering regulations of both a ‘hard’ and ‘soft’ law character
Individual Communications Against Poland Before the Human Rights Committee: a Review and Tentative Conclusions
Get PDFPoland has been a party to the International Covenant on Civil and Political Rights of 16 December 1966 for forty years, and has been recognizing the right of individuals to submit applications to the Human Rights Committee for 25 years. The total number of communications amounts to 11, and the results of the examination thereof encourage consideration of denouncing the Optional Protocol to the International Covenant on Civil and Political Rights of 16 December 1966
Enhanced Cooperation and Free Movement. Territorial Aspects of ‘Harmonisation’
Get PDFIn this article we examine the notion of ‘harmonisation’ in its interplay with the application of provisions on the free movement of goods. Due to the introduction of the European unitary patent protection system, we are witnessing the first cases of adopting enhanced cooperation in the internal market. This fact raises new, systemic questions concerning the concept of ‘harmonisation’ in European Union law. Are only legal, substantive aspects covered by its definition or should the territorial range of a legal act be taken into account? If yes – to what extent? Since the adoption of enhanced cooperation covers the field of intellectual property rights, the above questions concern the relationship between exercising those rights on the one hand and the principle of free movement on the other. A closer look at this matter leads to the conclusion that the unitary patent might not provide the solution to one of the problems that created for. More generally, in this article we conclude that when defining the concept of ‘harmonisation’, one should take its territorial scope into account narrowly, so as not to infringe the principles of EU law
Soft Law in International Governance
Get PDFThe purpose of the article is to assess how the provisions resulting from international programmatic norms in the field of human genetic data are implemented. The presented study, adopting the perspective of institutional rationalism extended to the paradigm of legalism, considers examples of the implementation of these standards in selected legal systems – Germany, the United States of America and France. The selection of the research paradigm is preceded by a theoretical introduction, which presents three ways of conceptualizing the notion of soft law in the legal sciences. Following an outline of this legal regime in positivism, and the theories of rationalization and constructivism, the author focuses on the provisions of the International Declaration on Human Genetic Data of 16 October, 2003, which are compared with the legislative initiatives of Germany, the United States of America and France, to show the influence that the choices of states has on selection of the implemented standards and how they are implemented
The Tax Avoidance Clause: Do We Want it, Do We Need it?
Get PDFThe aim of this paper is to outline the institution of the tax avoidance clause which has recently been re-introduced to the Polish legal system. The clause is known in many legal systems worldwide, and always arouses numerous controversies, which arise primarily from the subjectivity as well as, partly, the retroactivity of its application, which is based on extremely general principles, leaving a vast interpretative margin to the tax authorities enforcing the clause. Selected problems arising from the implementation of the tax avoidance clause in the Polish legal system have been analysed. These theoretical problems will be real once the clause has been enforced
On the Judicialisation of International Law
Get PDFThe judicialisation of international law is a relatively recent phenomenon that gained momentum in the 1990s and 2000s. Coupled with the trend towards widespread compulsory jurisdiction, it has been crucial in strengthening the commitment of states to adhere to their international obligations. Another important effect of judicialisation on international law is that at least certain international norms have acquired an “objective” nature, detached from the will of states. This is because the interpretation and application of these norms is no longer dependent solely upon the subjective discretion of states, but is subject to consideration and examination by independent judicial bodies. The process of judicialisation, while contributing to the international rule of law, has undoubtedly changed the face of international law a great deal as a result of some other factors. The multiplication of international courts has led to the expansion of the judicial institutional layer, making international law less horizontal. Also, as a result of the growing case-law of these courts, the system of international law is becoming more complex and developed, and thus also more mature. The natural aspect of the judicial function is the development of international law. Despite the problems and risks involved, the proliferation of international courts and tribunals can be perceived as one of the important components of the dynamic transformation of international law during the recent decades
The Binding Force of International Legal Standards in the Face of the Recurrent Practice of Soft Law
Get PDFSoft law facilitates cooperation between international actors. Already, the elaboration of international law is a matter of shared competence between States, traditionally recognized as the only subjects of international law, international organizations and the typical actors. International organizations have initiated a movement towards the adoption of flexible forms of regulation of international relations. They will profoundly change the way in which international law will be created and presented to the recipients of the rule of law. From the very beginning of their activities, organizations preferred a method other than hierarchical command to encourage international cooperation. They will develop a consistent legal technique, aimed at persuading and not compelling their Member States to adopt conduct consistent with the legally binding standard. This article proposes a reflection on soft law and the results of its increasing use in international practices
Cultural Identity in the Case-Law of the Human Rights Committee
Get PDFThe aim of the article is to present the jurisprudence of the Human Rights Committee on Article 27 of the International Covenant on Civil and Political Rights concerning the rights of persons belonging to ethnic, religious and linguistic minorities. Therefore, the study examines the underprivileged position of minorities within States and focuses on their will to survive as a distinct culture. Examination of the aforementioned caselaw provides an insight into the Committee’s understanding of the concept of cultural identity