Acquis Communautaire Research Articles

Competence distribution in EU external relations after Ecowas: Clarification or continued fuzziness?

The ECOWAS case – Case C–91/05, Commission v. Council (“ECOWAS” or “Small Arms and Light Weapons”), Grand Chamber Judgment of 20 May 2008 – provided the first opportunity for the Court of Justice to speak out on a legal base conflict between the first (EC) and second (CFSP) pillars, and to shed some light on the distribution of competence between the EC and the EU. Although the Court at first sight opted for a clear preservation of the acquis communautaire, the judgment has implications for the distribution of external competences, both between the pillars and in relation to the Member States. In that, the ECOWAS pronouncement is a milestone in the Court of Justice’s jurisprudence on the EU external competence and legal basis, on the functioning of the EU system of external relations and, more generally, on the present and future constitutional architecture of the Union.

The Present State of European Private Law

The Article attempts to assess where we stand today in our endeavors to create a common European private law. General contract law and sales law have been, and will continue to be, at the center of attention. Today we are faced with a bewildering variety of documents purporting to establish common ground, among them the Principles of European Contract Law, the Acquis Principles, the Draft Common Frame of Reference, the Consumer Sales Directive, a Proposal for a Directive on Consumer Rights, the United Nations Convention for the International Sale of Goods, and the Principles of European Sales Law. The Article examines the relationship between these documents and asks to what extent they reflect a coherent and satisfactory picture of acquis communautaire and acquis commun. In other fields (special contracts other than sale and extra-contractual obligations), the search for doctrinal structures which are both recognizably European and teleologically adequate has only just begun. Finally there are subjects, such as the law of succession, where the very legitimacy of legal harmonization has been questioned. The Article concludes that all areas of private law should become the subject of genuinely European, as opposed to national, scholarship but that none of them is ready to be cast into an official European instrument, whether under the name of Code, or Common Frame of Reference.

The Lisbon Treaty and Social Europe

This article deals with the future of Social Europe, focusing in particular on the changes that the Lisbon Treaty proposes. It compares the legal position of the EU Charter of Fundamental Rights in the now defunct Constitutional Treaty vis-a-vis the still uncertain Treaty of Lisbon, to conclude that although the Treaty of Lisbon enhances the legal status of the EU Charter, it actually diminishes the legal status of the fundamental rights it includes. It also presents other social provisions contained in the Lisbon Treaty taken over from the failed Constitution to be more cosmetic than substantial. Finally, it reflects on the ECJ interpretation of the Treaty’s provisions in the controversial Laval and Viking cases, which considers to be a threat to the entire acquis communautaire social.

The Payment Services Directive: Pitfalls between the Acquis Communautaire and National Implementation

The Payment Services Directive (PSD) was published in late 2007, constituting the legal basis for the Single Euro Payments Area (SEPA). The industry initiative launched on 28 January 2008 aims at replacing fragmented national markets for payment services with one integrated system. Although deadlines for both the transposition of the PSD into national law and the full availability for SEPA standards are set, many questions lack clear answers and need to be addressed accordingly. Given the numerous directives and different regulations affecting payment service providers, the partial duplication and interlinking between the various provisions are prone to creating a legislative labyrinth. This ECRI Research Report attempts to address the main concerns, as it tests the PSD against some of the most advanced payment business models, and to offer a comprehensive evaluation of the Community regulation of payment services within SEPA. While evidencing a number of critical issues in the reading and implementation of the PSD, the paper looks at this ambitious and challenging exercise of the European institutions and presents a number of provocative considerations that it is hoped will be of general value.

Intensification of Prague Central WWTP - Ten years of practical experiences with the in-situ bioaugmentation nitrification method

Wastewater treatment has been performed in the City of Prague for more than one hundred years. However, with the complete adaptation of the EU legislation (acquis communautaire) into the national Czech environmental law, the City of Prague will have to build and put into operation a new nutrient removal activated sludge plant by year 2010. The activated sludge process will employ the original Czech technique of in-situ bioaugmentation of nitrification in regeneration zone. The in-situ bioaugmentation method has been successfully used in the last ten years in the upgraded existing plant with very good results. The new wastewater treatment plant will be located on the area of the current wastewater plant as well as on the area of the so-called gardens. The application of the in-situ bioaugmentation technique will help to keep the new plant as compact as possible which is necessary because of the limited space of the Cisarsky island.

The proposed Consumer Rights Directive – less haste, more thought?

The European Commission's proposal for a directive on consumer rights (pCRD) marks the culmination of a lengthy review process. The pCRD would be a significant change to the landscape of EU Consumer Law, replacing the directives on doorstep selling, distance selling, unfair terms and consumer sales with one new coherent measure. The acquis communautaire on consumer contract law has developed very slowly and in a rather piecemeal fashion. It has been criticised widely for its incoherence, as well as the gaps that exist. The Commission proposed not only to improve the quality of the legislation through the adoption of a horizontal measure, but also to abandon the policy of minimum harmonisation in favour of a full harmonisation approach. In this paper, we focus on the more significant aspects of the proposal, starting first with general observations before turning to particular changes which would be made to the substance of EU consumer law. Space precludes a full discussion of all the changes that would be made.

Geographic context of applying for grants from Norway, Iceland and Liechtenstein and the use grant money in Lithuania in the framework of the “European Economic area (EEA)” and the “Norway” programmes

68 Though Norway, Iceland and Liechtenstein are not EU countries, they also seek to share the responsibility of reducing socioeconomic disparities on European territory, especially in Eastern and Central Europe. In connection with the EU and EEA enlargement in 2004, Iceland, Norway and Liechtenstein introduced the “Europe Economic Area (EEA)” and “Norway” grant mechanisms [3] aimed at solving the above mentioned problems. The Agreement of the European Economic Area establishes the legislative framework for the single internal market of 27 EU members and three EEA EFTA countries. The agreement guarantees “four freedoms” — the free movement of goods, persons, services and capital — for 30 EEA member states. In addition, the agreement covers co-operation in other important areas such as research and development, education, social policy, environment protection, consumer protection, tourism and culture [1]. The agreement guarantees equal rights and obligations within the internal market for citizens and economic operators in the EEA. The agreement establishes two types of financial mechanisms: multilateral financial mechanism (Norway, Iceland and Liechtenstein) and bilateral financial mechanism in Norway. In 2004—2009, 600 million euros were allocated in the framework of the multilateral financial mechanism, and 567 million euros in the framework of the bilateral mechanism; these funds can be assigned only to the states that acceded to the EU not earlier than 2004. The agreements with beneficiary states give priority to the following areas: environment protection, sustainable development, cultural heritage, human resources, healthcare, social protection of children, provided by the requirements of the Schengen acquis, regional policy and cross border cooperation, academic research, technical assistance, in order to meet the EU accession requirements (the Acquis Communautaire). Gender equality, ‘good governance’ and sustainable development are the core criteria for all projects [4]. Eduardas Spiriajevas

The Impact of Enlargement on Institutional Integrity in Central and Eastern Europe

This article represents an attempt to synthesise the results of existing work on European Union enlargement in scholarly journals and other publications, and to theorise those insights via the concept of institutional integrity. The basic question asked here refers to the impact of the incorporation of the acquis communautaire, roughly 100,000 pages of legal text originally developed for West European countries, on the reconstruction of political, economic and legal institutions in Central and Eastern Europe. Two dimensions of institutional integrity are examined, namely the relationships between: (1) institutional subjects, meaning the distinctiveness of key units of the system of government; and (2) institutional spheres, pertaining to boundaries between the realms of politics, economics and law. The article ends by predicting that institutional integrity will only come about at a moderate pace, through social change reflecting the long-term stabilisation of newly established political and economic structures, but also affirming that this process by virtue of pre-accession enlargement is well advanced throughout Central and Eastern Europe.

On the Way to a Post-Functionalist Theory of European Integration

No one inspired by the ‘neo-functionalist’ approach to regional integration (such as myself) should feel threatened by a ‘post-functionalist’ replacement for it. Unlike its long-term rival, ‘intergovernmentalism’, this way of conceptualizing what has been happening in Europe since the 1950s has always presumed that the process of regional integration would be transformative in the sense that, if and when it progressed, it would change the nature of the actors involved in it. Their identity, motives and mechanisms would shift and, correspondingly, so should the concepts and assumptions of those attempting to explain its trajectory and probable outcome. Lisbet Hooghe and Gary Marks offer precisely that: a new approach to studying the European Union as it has shifted from what they call a context of ‘permissive consensus’ to one of ‘constraining dissensus’. As a card-carrying neo-functionalist, I can only welcome the effort – with, however, some reservations. The mechanism that they postulate as responsible for the shift and, consequently, for the future course of European integration is ‘politicization’ or, more accurately, the mobilization of mass public opinion with regard to EU policies and institutions. Interestingly, this was predicted by neo-functionalism as an eventual emergent property – even if the approach did not specify the event that would trigger it or the timeframe within which it was expected to occur. What was not predicted was that this mobilization would threaten rather than promote the integration process. In the neo-functionalist scenario, mass publics would be aroused to protect the acquis communautaire against the resistance of entrenched national political elites determined to perpetuate their status as guarantors of sovereignty. In the postfunctionalist version, the inverse has occurred – opening up a gap between elites, by and large favourable to the expansion of EU tasks and decisional autonomy, and masses resistant to both. Hooghe and Marks marshal an impressive command of the secondary literature on public opinion (unfortunately constrained in large part by Eurobarometer data sometimes of dubious validity) and are convincing in their descriptive observations. Moreover, their task has been greatly facilitated by the increased frequency with which member states have held national referendums on EU-related issues. No serious student of European integration can deny that something like

Twinning: lessons for a South—North climate policy context

Twinning is an innovative tool utilized in the EU enlargement process. It is designed to strengthen the institutional capacities of the candidate countries to implement the acquis communautaire. Twinning involves the long-term secondment of a Member State public servant to the domestic counterpart institution and thereby provides hands-on public sector experience. Arguably, the twinning concept is also applicable in South—North climate policy cooperation, and its potential is explored. Twinning serves as a valuable supplement to ongoing capacity-building efforts by assisting the actual implementation of policies. Its basic design addresses some of the frequently cited problems of developmental assistance. Policy relevance: Capacity building and technical assistance are often quoted as components of international technology cooperation, but frameworks to further enhance their contribution to international cooperation on climate policy are rarely discussed. The twinning experience offers an example of formal frameworks to enhance South—North and South—South cooperation on programme design and implementation via the exchange of experts within administrations. Twinning also offers broader insights. Cooperation for technical assistance and capacity building needs to be demand-driven and integrated within existing institutional structures in order to ensure effectiveness. The main challenge is to encourage experts to spend one to two years in recipient countries to ensure an effective understanding of local circumstances. This also reduces the need to send experts in the other direction and thus reduces the risk of a brain-drain, where experts do not return.

The Common Frame of Reference (CFR) of European Insurance Contract Law

in its Action Plan of 12 February 2003 (the “communication from the commission to the European Parliament and the council – A more coherent European contract law – An action plan”)1 and its communication on “European contract law and the Revision of the Acquis: the Way Forward” of 11 October 20042, the European commission announced the establishment of a common Frame of Reference of European contract law. According to the commission’s Action Plan of 12 February 2003, the CFR shall comprise Definitions and Rules and both shall be accompanied by comments and Notes. the comments will contain explanations and illustrations of the proposed Rules. the Notes will give reference to the status quo of contract law in the Member States as well as the existing acquis communautaire. the cFR will be drafted in order to establish a set of rules which provide the definitions, structure and contents of European contract law developed through a comparative legal analysis of national contract laws.3 Strictly speaking, these

Waiting for Lisbon … Constitutional Reflections on the Embryonic General Part of EU Criminal Law

This article seeks to explore what it means to refer to the acquis communautaire in the context of EU criminal law after Lisbon. This paper examines institutional developments within the area of EU criminal law, interpreted broadly and focuses in particular, on the possible impact of the so-called general provisions in the area of freedom, security and justice as introduced by the Lisbon Treaty in title V of the Treaty of the Functioning of the Union.

What's Wrong with Collective Labour Law in Turkey?

REPORT□ LABOURLAWINTURKEY What's Wrong with Collective Labour Law in Turkey? I law Collective still 1980 design institutional holds takeover military labour of the the law stillholds the institutional design ofthe 1980 military takeover GAMZE YÜCESAN-ÖZDEMIR isAssociate Professor at Ankara University in Ankara The adaptation its Turkish third draft government of national Acquis programme recently Communautaire announced forthe itsthird draft nationalprogramme forthe adaptation of Acquis Communautaire (Europeanlaw). The first twodraft national programmeswere represented in 2001 and 2003 respectively. The media celebrated the declarationof thethird draft nationalprogramme as a signalforfuture developments in the realmof tradeunionrights. The third draft nationalprogramme urgesthegovernment to initiate preparations topromulgate theproposaloflaw changingtheexisting legislation on tradeunions, trade unionrights andstrikes. Howevertheproposalof law brings no significant changesintherealmof tradeunionrights, including theright to strike. Turkey'sthirdnationalprogrammefor the adaptationof the Acquis statesthatefforts on reinforcing social dialogue and facilitating and encouraging cooperation withEU partners will continue, andhighlights that theenactment ofthe 'Draft law on tradeunionrights' and the 'Draft law on collectiveagreements, strikes and lockouts 'willbe ensured.In addition, thesameprogramme urgesthat theserearrangements shallbe donewitha viewtoexpanding trade unionrights and strengthening the institutional capacitiesof relevant departments ofthestatemonitoring the implementation oflabourlaw. It is clearly evident that the Turkish Government prefers ambiguous terms rather than accepting theneedtoactincompliance withthe ILO Conventionsratified by Turkey.Another pointworthy ofmention is that thetextdoes not containany reference to the EuropeanSocial Charter, whose provisions on tradeunionrights has neverbeen approvedby the governments composedundertheJustice and Development Party (AKP).1 Thisshort survey willfocuson thechallenging aspectsoftradeunionrights inTurkey. Itwillbe arguedthatthe mainproblemin the realmof tradeunionrights restsintherelevant articles of theTurkish Constitution. Therefore, contrary to theallegations ofthegovernment as stated inthe thirddraftnational programme, any serious attempt to 'reform' the law on trade unions shouldstart bywayofchanging therelevant constitutional articles. To put it differently, sincere efforts toenhancethealready weakenedrights of labourandtrade unionsshouldfocuson theconstitutional articles. The constitutionalregulationoftrade union rightsinTurkey Sincethedecisionin 1999on Turkey's candidate statusforEuropeanUnionmembership, Turkey has adoptednumerousimportant constitutional andlegalreforms intended tostrengthen democracy , theruleoflawandtheprotection ofhuman rights. However, theseefforts didnotincludeany positive development intheconstitutional articles regulating collective labourlaw in Turkey. The mainbodyoftheconstitutional texton thecollectiverights of thelabourfront stillholds the institutional designofthe1980military takeover, whichprimarily targeted theworking classandits allies.Today,theconstitutional articles regulating thecollective rights ofworkers havemassivediscrepancies whencompared with theconstitutional systems ofwestern Europeanstates. Articles 51 through 54 ofthe1982Constitution pertain tocollective rights oflabour. The right to organise labourunionsis described inArticle 51 oftheConstitution. ThisArticle limits theright to establish labourunionsin variousways.First of all,thedefinition of 'worker' is notincludedin thearticle. Thisis a sourceofsubsequent violationsof theright to organise. Governments can interfere with the rightto organise,without infringing the wordingof the Constitution, by way of employing restrictive definitions of the termin the relevant parliamentary laws. For a start, giventhe changingnatureof the labour process, we mayoffer theparties theuse ofsociologicaldefinitions of'worker', rather thanlegal ones referringsolely to labour contract. Currently, whatthelabourfront inTurkey needs is a capacious definition for organising, for instance, the retired and the unemployed, into labour unions. In addition,Article90 of the Turkish Constitution statesthatTurkey is bound to let international agreements in the realmof humanrights prevailoveritsown parliamentary laws.The ratified UN Declaration and 1966twin agreements on humanrights, and theEuropean Declaration on HumanRights, statethateverybodyhastheright toform trade unionstoprotect his or her collectiveand personal interests. Currently, despitedomestic courtrulings stating otherwise,2 there is no clearandsatisfying reason whya retired worker and/or unemployed person shouldnothavetheright to establish and/or be a member ofa tradeunion. Another pointto be mentioned is theneed to eliminate thelegalobstaclesconcerning civilservants . Thefifth paragraph ofArticle 51states that theexceptions andlimits oftherights ofcivilservantswho do not have workerstatusshallbe prescribed bylaw inlinewiththecharacteristics oftheir job. Firstly, thesepeopledo nothavethe right to strike, thesituation whichmostrenders ineffective theconstitutional right to organise for people underthiscategory. Secondly, thewordingoftheArticle bestowsupongovernments the capacityto destroy the essence of the right to organisebyway ofkeepingtheexceptions and limits as largeas possible.Thirdly, theframework INTERNATIONAL union rights Page 20 Volume 16Issue 2 2009 brought aboutbythelimitation clauseexpressed inthesecondparagraph ofArticle 51 statesthat the right to forma union shall be restricted, amongothers, forpurposesofpreventing crime, ofpublicmoralsand oftherights and freedoms ofothers. Suchwording, in conformity withthe anti-labour soulofthe1982Constitution, declares thatlabour unions and relevantorganisations mayhavesomething todo withcrime orimmoral activity, andhavesomething against thefreedom ofothers. Thisparagraph is inclearcontrast with theidea oftaking labouras a constituent partof society even in abstract terms. Furthermore, the first paragraph ofArticle 51 statesthattheactivitiesoflabourunionsshouldbe limited solelyto theeconomicand socialinterests oftheir members .Thisisextremely problematic sincepolitical rights cannotbe separatedfromworkers'economicand social rights/interests. Moreover, the International Labour Organisation (ILO) Convention 87 on freedom ofassociation is...

Behind the scenes of differentiated integration: circumventing national opt-outs in Justice and Home Affairs

This article examines the formal and informal practices of two champions of opting out, the United Kingdom and Denmark, in the area of Justice and Home Affairs. On the surface, both countries have chosen to avoid further integration within this policy area to safeguard national autonomy. Foreign policy experts have argued that national reservations lead to the loss of influence and possibly second-class membership, and legal scholars describe substantial opt-outs as a ‘hijacking’ of the acquis communautaire. This article demonstrates that opting out does not necessarily imply that member states are out in the cold. Both the UK and Denmark, it is argued, have influence and adapt to new EU legislation, even in politically sensitive areas covered by their protocols. National opt-outs are pragmatically circumvented in the consensus-oriented Council of Ministers.

INTRODUCTION TO SPECIAL ISSUE OF TRAMES “REGIONAL DEVELOPMENT CHALLENGES OF EU BORDER REGIONS IN THE CONTEXT OF THE INTERACTION BETWEEN THE EU AND COUNTRIES OF ITS IMMEDIATE NEIGHBOURHOOD”

The land border between the EU and the countries covered by the European Neighbourhood Policy (ENP) has increased since 2004 from 1300 to 5100 kilometres. This border demands efficient management and security measures; but it is also characterised by the history of economic and cultural cross-border contacts that need to be preserved and developed further for the sake of cohesion. ENP aims to create a new cooperation framework for the EU and thus combines two sets of goals--external policy objectives to keep good neighbourly relations with countries located on EU borders and EU Regional Policy's quest for social and economic cohesion in the European peripheral regions in the context of enlargement. ENP also discusses the need for cooperation in the fields of security (e.g. migration and readmission agreements), although this is seemingly a lesser priority. Central to the EU enlargements and ENP has always been the notion of conditionality--a system of carrot and stick where soft and open borders constitute a reward for progress in meeting European standards. Well-behaving neighbours can count on better market opportunities in a more stable economic and political environment. As the EU's boundaries has shifted geographically, it is necessary to investigate the extent to which meaningful forms of conflict prevention, problem-solving and other forms of collective action are emerging in Central and Eastern European border regions. In what ways could cross-border regionalisation in these countries contribute to European multilevel governance? As enlargement presents a major political, economic and social challenge for the EU it has also far-reaching effects on the acceding countries (and their regions) which, while striving to adopt the acquis communautaire, have to deal with fundamental societal transformations and rapid structural change. In the course of several enlargement waves (e.g. Greece 1981, Austria, Sweden, Finland 1995, Big Bang 2004 with inclusion of Romania and Bulgaria in 2007) the EU has reached the borders of the Balkans, Turkey and Russia. It is mostly at the regional level where the manifold challenges posed by EU enlargement, including institutional adaptation, conflict prevention, as well as diversity of interests and heterogeneity, come together with magnified intensity. As such, border regions appear to be key elements in facilitating the European integration and enlargement process. They are seen as flexible vehicles for cross-border mobilisation of collective action in addressing social, economic and environmental issues. In cases where new borders have emerged or the old ones tightened, euroregions, economic partnerships, twin-city initiatives, cross-border urban networks and similar forms of interaction have also come into being. These cooperation patterns reflect the attempts to use border as a resource for economic and cultural exchange as well as for building coalitions for regional development purposes. The first cases of cross-border cooperation (CBC) within the European Community appeared already in the 1950s and since then CBC has developed into a variety of institutionalised forms. In the course of time and due to the continuous European enlargement process, similar activities attempting to transcend the barriers to trade and people-to-people contacts have emerged more intensively at the external borders. Nevertheless, it is important to emphasise that regions at the EU's eastern borders represent a considerable challenge to national development policies as well as to European cohesion. These regions are, by and large, peripheral areas, not only far from the dynamic European core but often distant from prosperous national centres. Many of them continue to suffer from out-migration, de-industrialisation, and negative demographic trends. In addition, neighbouring regions on the other side of the border are similarly disadvantaged, resulting in 'double peripheries' within a wider European context. …

The Interpretative Effect of European Law in the Judgment of the Croatian Constitutional Court No U-Iii 1410/2007

Normal 0 21 false false false HR X-NONE X-NONE MicrosoftInternetExplorer4 st1\:*{behavior:url(#ieooui) } /* Style Definitions */ table.MsoNormalTable {mso-style-name:Table Normal; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-qformat:yes; mso-style-parent:; mso-padding-alt:0cm 5.4pt 0cm 5.4pt; mso-para-margin:0cm; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:11.0pt; font-family:Calibri,sans-serif; mso-ascii-font-family:Calibri; mso-ascii-theme-font:minor-latin; mso-fareast-font-family:Times New Roman; mso-fareast-theme-font:minor-fareast; mso-hansi-font-family:Calibri; mso-hansi-theme-font:minor-latin; mso-bidi-font-family:Times New Roman; mso-bidi-theme-font:minor-bidi;} On 13 February 2006, the Constitutional Court of Croatia issued a very important judgment in which it resolved a difficult situation created by divergent judgments of the Administrative Court of Croatia in which The Administrative Court ruled on decisions made by the Croatian Competition Agency. The Administrative Court’s judgments diverged in the interpretation of the Stabilisation and Association Agreement between the Republic of Croatia and the European Community. In the ongoing pre-accession period it is of great importance to instruct the Croatian judiciary how and when the criteria and standards of the comparative law of the European Community should be applied. This is especially important in cases which involve the Croatian Constitutional Court, as its primary function is to preserve the division of powers in Croatia. According to the Administrative Disputes Act, [1] an administrative dispute can be initiated against the decisions of administrative bodies [2] against which appeals are not permitted, in other words before the Administrative Court. Given that the largest part of the European acquis communautaire relates to administrative law, the focus points of the application of European law in Croatia will be administrative legislation, administrative proceedings and administrative law in general. * The author wishes to thank Miljenko Giunio LLM, editor of the journal Pravo u Gospodarstvu, who previously published parts of this paper, Professor Sinisa Rodin, Head of the Jean Monet Department for Public European Law at the University of Zagreb, and also his associates in the Department, for their helpful suggestions. Gratitude is also due to the Department for organising the annual ‘Advanced Issues of European Law’ seminar in Dubrovnik, where researchers can exchange opinions with respected international experts on European law. [1] Official Gazette (OG) 53/91, 9/92 and 77/92. This was a regulation from the SFR Yugoslavia which was applied, with certain changes, in Croatia from 8 October 1991. At the moment this regulation was adopted, the one published in the Official Gazette of the SFR Yugoslavia 4/77 came into force. See Jaksa Barbic, Građansko, Trgovacko, Radno i Upravno Pravo – Novine Nakon Preuzimanja Saveznih Propisa (Organizator, Zagreb 1992). [2] Ministries, ie the executive, are the most common bodies that decide in the second instance or, on the basis of law, issue decisions against which there is no opportunity to appeal. In this manner, the Administrative Court, as the judicial body, directly controls the decisions of the executive.

Znaczenie przekładu aktów prawnych Unii Europejskiej dla polskiego kontekstu kulturowego i dyskursu społeczno-politycznego

The present article discusses the cultural significance of translation of EU’s legislative acts into Polish. The article is divided into two sections. The first section titled “Acquis communautaire in the Polish cultural context” presents legal and social aspects of translation of EU-law into Polish and explains the value of translation of acquis communautaire as an important means of the European integration. The second section with the title “The Polish language of EU’s legal acts” presents an analysis of selected fragments of an EU-recommendation in two language versions (Polish and English) and identifies various linguistic problems connected with translation of EU- -law into Polish. One of the main conclusions is that translation of EU’s legislative acts not only facilitates implementation of acquis communautaire in Poland and provides every Polish citizen with access to European law but also enables our national language – and thus our culture – to remain present in the European context. Another important conclusion is that the quality of translation of EU-law into Polish, especially such prominent documents as the Treaty establishing Constitution for Europe, can seriously influence our language and determine its development.

Fundamental Rights and the European Regulation of iConsumer Contracts

This paper addresses the question of how fundamental rights affect European legislation and adjudication on contracts regarding digital information services (iConsumer contracts). Fundamental rights may be seen as representing political choices for the protection of certain values in society, but at the same time, they are enacted rules of the legal system, which may be invoked to enforce the protection of the interests they represent. It is submitted that because of this double-faced nature, they can bring to the fore policy issues in contract legislation and case law. Fundamental rights can thus play a role in evaluating the policy choices that are being made in the review of the acquis communautaire in the field of consumer law. For iConsumer contracts, that means that the rights of consumers, authors, and suppliers of copyright-protected content affect the choice of rule-solutions on the European legislative level. Furthermore, these rights have an impact on the case law of the European Court of Justice in the field of e-commerce. Fundamental rights help define the various rule-solutions the Court can choose from and thus demarcate the law-making capacity of the judiciary.

Security Interests: A Secure Start for the Development of European Property Law

In this paper it is examined if unification or even harmonisation of the law on security rights, both on movables, immovables and claims, is at all possible without (1) thorough analysis of the property law traditions in Europe, (2) study of the existing, albeit limited, acquis communautaire in the area of property law and (3) an overall framework of property law, in other words: a common frame of reference, as is now being developed with regard to particularly contract law. In my Van Gerven lecture European and national property law: Osmosis or growing antagonism? http://ssrn.com/abstract=995979 I answered question (1) already negatively. As to the acquis communautaire in the area of property law some research has been done and is now being published. It is on question (3) that I focus: the need to develop an overall framework of property law and what the constituent elements of such a framework should be. Several policy choices are being discussed: should more freedom of contract in the law of property be allowed?, is there a need for civil law systems to allow more flexibility with regard to their unitary concept of ownership?, should protection of ownership or protection of commerce have priority?

The Interpretation of European Private Law in the Light of Market Freedoms and EU Fundamental Rights

Recent initiatives in the area of European private law seem to rely ever more extensively on very broad, general and vague provisions, in particular the concept of ‘good faith and fair dealing’, a concept already present in the acquis communautaire. These and similarly vague terms will only have an impact if interpreted autonomously and unitarily by a central authority. Despite its cautious approach regarding the assessment of the fairness of contract terms, this task can rest only with the European Court of Justice. This article explores whether and to what extent the four market freedoms regarding the free movement of goods, persons, services and capital, as well as the fundamental rights developed by the Court's jurisprudence, now laid down in the EU Charter on Fundamental Rights, may contribute to the development of an autonomous European method of legal reasoning.