scholarly journals The relationship between law, ratified agreement and the EU law in the light of the Polish Constitution and application of the EU law by public administration in Poland

2017 ◽  
Vol 15 (4) ◽  
pp. 85-99
Author(s):  
Marta Woźniak
Keyword(s):  
International Law ◽  
Public Administration ◽  
Administrative Law ◽  
Constitutional Court ◽  
Eu Law ◽  
The Public ◽  
The Republic ◽  
The Relationship ◽  
Domestic Law ◽  
The Eu

The article makes a presentation of the relation between legal acts belonging to the so-called foreign orders and the national law at the level of regulation contained in the Constitution of the Republic of Poland and the problem of application of the EU law by the Polish administrative authorities. The ratified international agreements and acts of the EU law are sources of administrative law and must be applied by the public authority of Member States. The article deals with two issues: the relationship between the international law and national law in the light of the Polish Constitution and application of the EU law by public administration in Poland. These issues can be dealt with separately but have a number of tangent points. The author does not aspire to present a comprehensive discussion of these issues, but intends to point out some aspects. It has been argued that the standard of application of international law by public administrations (which is also the accession treaties) and the EU law depends on how the constitution regulates the issue of international law relation to the domestic law. In Polish jurisdiction (the Constitutional Court and the Polish Supreme Administrative Court) the practice of respecting the principle of primacy of the EU law as well as the principle of a community of interpretation of this law has been established.

A Union of Peoples

2020 ◽  
Author(s):  
Pavlos Eleftheriadis
Keyword(s):  
European Union ◽  
International Law ◽  
Political Theory ◽  
Domestic Institutions ◽  
Eu Law ◽  
The European Union ◽  
Rival Theory ◽  
Law Of Nations ◽  
Domestic Law ◽  
The Eu

This book offers a legal and political theory of the European Union. Many political and legal philosophers compare the EU to a federal union. They believe that its basic laws should be subject to the standards of constitutional law. They thus find it lacking or incomplete. This book offers a rival theory. If one looks more closely at the treaties and the precedents of the European courts, one sees that the substance of EU law is international, not constitutional. Just like international law, it applies primarily to the relations between states. It binds domestic institutions directly only when the local constitutions allow it. The member states have democratically chosen to adapt their constitutional arrangements in order to share legislative and executive powers with their partners. The legal architecture of the European Union is thus best understood under a theory of dualism and not pluralism. According to this internationalist view, EU law is part of the law of nations and its distinction from domestic law is a matter of substance, not form. This arrangement is supported by a cosmopolitan theory of international justice, which we may call progressive internationalism. The EU is a union of democratic peoples, that freely organize their interdependence on the basis of principles of equality and reciprocity. Its central principles are not the principles of a constitution, but cosmopolitan principles of accountability, liberty, and fairness,

scholarly journals Hukum Internasional sebagai Alat Interpretasi dalam Pengujian Undang-Undang

2018 ◽  
Vol 15 (1) ◽  
pp. 73
Author(s):  
Umbu Rauta ◽  
Ninon Melatyugra
Keyword(s):  
Human Rights ◽  
International Law ◽  
Judicial Review ◽  
Review Process ◽  
Constitutional Court ◽  
Legal Research ◽  
Conceptual Approach ◽  
The Republic ◽  
Constitutional Tradition ◽  
The Relationship

Tulisan ini ingin menjawab dua isu utama mengenai hubungan hukum internasional dan pengujian undang-undang oleh Mahkamah Konstitusi RI (MKRI). Isu pertama adalah legitimasi penggunaan hukum internasional sebagai alat interpretasi dalam pengujian undang-undang, sedangkan isu kedua adalah urgensi penguasaan hukum internasional oleh hakim MKRI. Tulisan ini merupakan penelitian hukum yang menggunakan pendekatan konseptual dan pendekatan historis dalam menjelaskan perkembangan pengujian undang-undang di Indonesia sekaligus menemukan legitimasi penggunaan hukum internasional oleh MK RI. Kesimpulan dari tulisan ini menegaskan bahwa hukum internasional memiliki sumbangsih yang penting dalam perannya sebagai alat interpretasi dalam proses pengujian undang-undang oleh Mahkamah Konstitusi, khususnya terkait hak asasi manusia. Justifikasi keabsahan praktik penggunaan hukum internasional tersebut ditarik dari tradisi ketatanegaraan yang secara implisit dikehendaki UUD NRI Tahun 1945. Manfaat positif yang diberikan hukum internasional nyatanya harus disertai juga dengan penguasaan hukum internasional oleh hakim MK RI supaya hukum internasional dapat digunakan secara tepat. Pembahasan dalam tulisan ini dibagi ke dalam empat sub bahasan inti yakni, pengujian undang-undang, penggunaan hukum internasional sebagai the interpretative tool dalam pengujian undang-undang oleh MK, legitimasi penggunaan hukum internasional sebagai the interpretative tool dalam pengujian undang-undang, pentingnya penguasaan hukum internasional oleh hakim MK.This article intentionally answers two principal issues regarding the relationship between international law and judicial review by the Constitutional Court of the Republic of Indonesia. The first issue is the legitimacy of international use as an interpretative tool in judicial review. The second issue talks about the necessity of urgent international law mastery by the Constitutional Court’s judges. This legal research utilizes both a conceptual approach and a historical approach to explain the development of judicial review in Indonesia, and to find legitimacy of international law by the Constitutional Court. The analysis in this article affirms that international law positively contributes as an interpretative tool in judicial review by the Constitutional Court, particularly pertaining to human rights. A justification of a legitimate international law use is withdrawn from constitutional tradition which is implicitly desired by the Indonesian Constitution (UUD NRI 1945). Since international law has provided better insights into norms, a mastery of international law should be encouraged. There are four main discussions in this article: judicial review, application of international law in judicial review process, legitimacy of international law application in judicial review, and the importance of international law mastering by Constitutional Court judges.

Part I General Principles, 3 International Law as it Affects Private Law Conventions Governing Cross-Border Commercial Transactions

2015 ◽  
Keyword(s):  
International Law ◽  
Public Law ◽  
Private Law ◽  
Commercial Law ◽  
Typical Structure ◽  
The Public ◽  
State Security ◽  
The Subject ◽  
The Relationship ◽  
Domestic Law

Chapter 3, after describing general principles of international law and the relationship between international law and domestic law, focuses on the hitherto neglected subject of private commercial law conventions. Textbooks on international law invariably focus on public law treaties. By contrast this chapter addresses issues relating to private law conventions. It goes through the typical structure of a private law convention, the interpretation of conventions and the treatment of errors, and the enforcement of private conventional rights against States. The subject of private law conventions and public law has become of increasing importance with the appearance in several private law instruments of provisions of a public law nature designed, for example, to ensure that creditors’ rights are not enforced in a manner that adversely affects the public interest or State security. Reservations and declarations are also discussed, together with the subject of conflicts between conventions.

scholarly journals Legal Regulation of Public Governance in Finland – an Illusion of Predictable Public Administration?

2015 ◽  
Vol 38 (2) ◽  
pp. 52-59
Author(s):  
Niina Mäntylä ◽  
Laura Perttola ◽  
Kristian Siikavirta
Keyword(s):  
Public Administration ◽  
Legal Regulation ◽  
Administrative Law ◽  
Soft Law ◽  
Eu Law ◽  
Public Governance ◽  
The Public ◽  
The Individual ◽  
Changing Role

Legal coherence and predictable decision-making are the cornerstones of Finnish administrative law. The aim of this research is to analyze the factors that make administrative decisions unpredictable in Finland today. Why is the challenge so significant for the authorities? The factor analysis revealed six main features affecting predictability in the legal regulation of Finnish public governance: the increasing use of soft law, the devolution of government, deregulation, the changing role of the individual, the blurring of the division between the public and the private sector and the influence of international and EU-law.

scholarly journals Correlation of International and Domestic Law: Procedural and Legal Problems

2021 ◽  
Vol 3 (3) ◽  
pp. 189-205
Author(s):  
Alexandr D. Magdenko ◽  
◽  
Alexandr Yu. Tomilov
Keyword(s):  
Public Relations ◽  
International Law ◽  
Civil Procedure ◽  
Constitutional Court ◽  
Legal Systems ◽  
Public And Private ◽  
Main Research ◽  
The Impact ◽  
The Relationship ◽  
Domestic Law

Introduction. Despite the multiplicity of works on the relationship between international and domestic law, this problem remains relevant, since due to changes in public relations, the understanding of the functioning of the rules of law changes. This concerns the problem of the influence of international law on the process of changes in civil procedure legislation. This issue also complicates the active phenomena of the globalisation of public relations, and the requirement of unification of legal relations, both in the public and private legal spheres. National communities have an interest in this. At the same time, the processes of borrowing and unification under the influence of international law in the civil procedure sphere have their own distinctive feature. They always give priority to national legal systems, which does not exclude, (due to the intensive convergence of different communities), the manifestation of elements of borrowing from the norms of international law. Theoretical BasIs. Methods. The main research methods are comparative legal and historical. The study analyses the relationship between international and national law in the framework of civil procedure relations, taking into account the effect of globalisation. Results. An analysis of the current nature of the relationship between international and domestic law allows us to conclude that the globalisation processes contribute to the convergence of these two legal systems. The modern interpretation of the Constitution in the light of the legal positions of the Constitutional Court marked a departure from the traditional Russian dualistic understanding of the problem of the relationship between international and domestic law in the direction of moderate monism. Discussion and Conclusion. The analysis of the impact of globalisation processes on the mechanism of implementation of international law in the field of civil procedure legislation is carried out. The obtained results and conclusions allow us to determine the features and nature of the current relationship between international law and national law in the framework of civil procedure relations.

European and Domestic Law

2017 ◽  
Author(s):  
Bernard Stirn
Keyword(s):  
International Law ◽  
Public Law ◽  
Legal Order ◽  
Eu Law ◽  
The European Union ◽  
Legal Certainty ◽  
European Public ◽  
Domestic Courts ◽  
The Relationship ◽  
Domestic Law

Chapter 4 turns to the domestic law of the countries of Europe, arguing that the combination within European public law of EU law, the law of the ECHR, and of domestic law cannot be conceived of along the lines of a pyramidal hierarchy. The chapter examines the ways in which the different European domestic legal systems conceive of the relationship between international law and domestic law. The chapter then looks at the relationship between international law and domestic law through a constitutional lens, an approach which more and more domestic courts in Europe seem to be adopting. The chapter then turns to the integrated legal order of the European Union, a legal order distinct both from domestic and general international law. Finally, the chapter teases out and analyses four shared guiding principles of European public law: equality and non-discrimination; proportionality; subsidiarity; and legal certainty.

Wohin steuern die Ultra-vires- und die Identitätskontrolle? Eine Zwischenbilanz anhand der Entscheidungen des Bundesverfassungsgerichts im PSPP-Verfahren

IG ◽  
2021 ◽  
Vol 44 (3) ◽  
pp. 211-219
Author(s):  
Christian Walter
Keyword(s):  
Constitutional Court ◽  
Eu Law ◽  
The European Union ◽  
The Public ◽  
German Constitution ◽  
Federal Constitutional ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional ◽  
The Eu

The article takes stock of the consequences which the decisions of the German Federal Constitutional Court (FCC) concerning the Public Sector Purchase Programme (PSPP) of the European Union (EU) have had on the relation between EU law and the German constitution. The interplay between the PSPP judgment of 5 May 2020 and a follow-up decision on its enforcement reveals a certain degree of back-paddling by the FCC. Irrespective of the infringement procedure, which the European Commission recently initiated against Germany, there are good chances for a respite for both the FCC and the Court of Justice of the EU. It is up to the FCC to use this period to clarify where it is headed with its jurisprudence on controlling the application of EU law in Germany.

Legalność religijnego uboju zwierząt w polskim porządku prawnym na tle norm prawa unijnego

2019 ◽  
Vol 1 ◽  
pp. 117-131
Author(s):  
Karolina Piech
Keyword(s):  
European Union ◽  
Legal Protection ◽  
Constitutional Court ◽  
Eu Law ◽  
The European Union ◽  
Freedom Of Conscience ◽  
Legal Norms ◽  
The Republic ◽  
Polish Law ◽  
The Eu

The article raises the issue of the constitutionality of the ritual slaughter in the Polish legal system. The author compared together the issue of freedom of religion and the legal protection of animals in the Republic of Poland. The first of the issues is the rule of freedom of conscience and religion in national law and EU law. Next, the author presented some of the regulations introduced by the act on protection of animals of 1997 and the position of the Polish Constitutional Court, and compares them with the legal norms of the European Union. An article was ended by remarks called as de lege ferenda; the author pays attention on the problems of commercial ritual slaughter and inconsistency of Polish law with the EU law.

Legal Aspects of EU Military Operations

2011 ◽  
Vol 15 (1-2) ◽  
pp. 218-242 ◽  
Author(s):  
Frederik Naert
Keyword(s):  
International Law ◽  
Crisis Management ◽  
Legal Framework ◽  
Legal Aspects ◽  
Eu Law ◽  
Military Operations ◽  
Legal Challenges ◽  
Defence Policy ◽  
Domestic Law ◽  
The Eu

This article provides a brief overview of the legal aspects of EU military crisis management operations, which, together with the EU’s civilian missions, are the main manifestation of the EU’s Security and Defence Policy. After the introduction (I), section II addresses the EU law aspects, section III covers the main international law aspects and section IV deals with domestic law aspects, including both the law of sending States and of the host State. Section V draws some conclusions and offers some reflections on the legal aspects of EU military operations and their role and importance. The author concludes that the EU has a well established legal framework for its military operations, which is soundly anchored in the EU Treaty, elaborated in practice and firmly based in and in compliance with international law. He also submits that the Lisbon Treaty reinforces this legal framework on several points and that the EU can rely on a number of mechanisms that should enable it to address most legal challenges that may arise.

scholarly journals Influence of the Law of the Council of Europe on Substantive Administrative Law in Poland. Selected Issues

2020 ◽  
Vol 29 (1) ◽  
pp. 67
Author(s):  
Anna Dąbrowska
Keyword(s):  
Public Administration ◽  
Standard Setting ◽  
Administrative Law ◽  
Soft Law ◽  
Legal Systems ◽  
Council Of Europe ◽  
The Public ◽  
Eu Member States ◽  
Hard Law ◽  
The Eu

<p>Legislative powers of the Council of Europe have a crucial impact on the domestic legal systems of the EU Member States including substantive administrative law, i.e. such an area of administrative law which defines rights and responsibilities of the public administration bodies and citizens. The legislation created by the Council of Europe’s bodies has a great impact on the areas of law which were earlier regarded as the exclusive responsibility of a given country. The Council of Europe has always been a major source of standard setting. This paper analyses selected areas of substantive administrative law taking into account hard law and soft law documents developed under the auspices of the Council of Europe.</p>

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