The Opole Studies in Administration and Law

The substantive right to environment and the procedural environmental rights under the Aarhus Convention – Part II

Jerzy Jendrośka — Thu, 07 Nov 2024 00:00:00 +0000

The current article provides Part II of the study presenting the mutual relations between substantive and procedural environmental rights against the background of the typology of the substantive rights to the environment and challenges encountered when designing the right to a healthy environment. While Part I was devoted to presenting the development of the respective legal provisions regarding substantive rights, including both
human rights and rights of nature, the current Part II follows it by presenting the genesis and conceptual roots for the UneCe aarhus Convention as an attempt to codify environmental procedural rights and foster participatory democracy in environmental matters. In this context a more detailed account is provided regarding the process of including a reference to a substantive right to environment in the aarhus Convention and the final design of article 1 addressing this issue. This is complemented with a brief overview of the scope and structure of the Convention and its links with Principle 10 of the rio declaration as well as with some comments regarding the design of the Convention which is commonly considered to employ a “rights based approach”. The above analysis provides the basis for the remarks regarding the respective roles of the three types of legal schemes of access to justice as regulated by paragraphs 1, 2 and 3 of article 9 of the aarhus Convention in protecting environmental rights covered by the Convention and – more generally – in participatory democracy. In this respect the conclusions of the study runs counter many of the conventional views.
First of all it shows that access to justice provisions under article 9.1 cover only access to information rights under article 4, while possibility to enforce provisions of article 5
(commonly considered as also providing rights to the public) is not very clear under the Convention. Secondly, access to justice provisions under article 9.2 only in case of environmental organizations can be treated as a remedy regarding participation rights, while in case of natural persons it may be treated only as a remedy regarding their subjective rights to a “private” environment while their possibility to enforce provisions of article 6 (providing procedural participation rights to the public) is not very clear under the Convention. Thirdly, article 9.3 cannot be treated as a remedy in relation to a substantive right to
a healthy environment referred to in article 1 of the Convention, and its role as a remedy regarding other procedural rights granted by the Convention is far from being clear as the Convention provides in this case quite a wide discretion to the Parties in establishing the
criteria for standing. Finally, the results of the study underlines the need for interpreting article 9.3 in light of the various conceptual roots of the Convention i.e. not only in relation to environmental rights but also in relation to its role in assuring the effectiveness of environmental protection and fostering participatory democracy and the rule of law.

“Disgust at work” – the evolution of the criminal law response to antisocial behawior

Olga Sitarz — Tue, 29 Oct 2024 00:00:00 +0000

The subject of the publication is to show the evolution of criminal law measures to respond to the antisocial attitude of not taking up employment. The Penal Code of 1932 used the concept of "disgust with work", for which a special protective measure was provided. Later, the term "social parasitism" appeared in the debate and an act on proceedings against people avoiding work and specific response measures was passed. Nowadays, this aspect of human behavior is taken into account when imposing a sentence under the circumstances "way of life before committing a crime". Therefore, the question arises not only about the course of evolution of criminal law in this scope, but also about the validity of de lege lata solutions.

We remember Janek ... Friendly memory of dr Jan Jerzmański

Marek Górski — Thu, 12 Dec 2024 00:00:00 +0000

The text is a memory of dr Jan Jerzmański and at the same time a reminder of one of the leading characters in the last thirty years of the science of Polish environmental law. They were reminded the main positions of the scientific achievements of Dr. J. Jerzmański and scientific meetings, in which he actively participated as well as his personality, characterized by modesty and cordial approach to all friends

Constitutional conditions for combating epidemic diseases in Poland. Selected issues in the light of the experience of counteracting COVID-19

Łukasz Bernaciński — Tue, 05 Nov 2024 00:00:00 +0000

To counteract the spread of the COVID-19 pandemic, tools interfering with human freedoms and rights were largely used. The new situation related to the epidemic of a previously unknown virus required immediate action, but even in such circumstances public authorities must comply with constitutional provisions. Therefore, the article examines the conditions that the Constitution imposes on the authorities in the field of combating epidemic diseases. The limited framework of the study required the selection of only some issues, and the selection criterion was the controversy related to combating the COVID-19 epidemic in Poland. The final part of the article lists examples of interference with freedoms and human rights that occur during the COVID-19 epidemic, and which have a legal basis in sub-statutory rank laws. Mainly a formal-dogmatic research method was used. The conclusions took the form a kind of recommendation for the actions of public authorities in the period free from the plague.

European Union law requirements related to the restitution of properties – does or under what conditions does the EU law require in practice the payment of a market-based compensation, and can that be enforced by EU law? of Properties

Dr. Ágoston Korom PhD, Prof. Dr. Szuchy Róbert PhD — Fri, 13 Dec 2024 00:00:00 +0000

The present paper addresses a specific issue, and analyses a concrete example in that regard, which issue arises almost exclusively in the former socialist countries: what
requirements are determined by EU law in relation to the restitution of property expropriated in the concerned countries between 1945 and 1990? The principle of the free movement of capital particularly prohibits discrimination based on nationality. The general principles of EU law and the provisions of the Charter of Fundamental Rights of the European Union determine further requirements which Member States must take into account where the restitution measures they introduce implement EU law. In principle, EU law does not require that the compensation paid in the framework of restitution measures take the market value of the concerned real property into account. In its response given to the question of a written answer, the European Commission outlined
also the manner in which the general principles and property rights should be considered where restitution measures are taken. The present paper covers also the analysis of whether the Romanian measure used as an example herein is compatible with the requirements prescribed by EU law, i.e. whether or not EU law requires the payment of market-based compensation in certain cases. This paper addresses also the access to and possible hindrances of the enforcement of the rights of the applicants deriving from EU law.

Doctoral dissertation as a habilitation achievement

Łukasz Kierznowski — Tue, 05 Nov 2024 00:00:00 +0000

Changes in the legal regulations on academic degrees of 2018 allowed for inclusion of scientific achievements prior to earning the doctoral degree among those leading towards obtaining the postdoctoral degree of habilitation. Against this background, an interpretative problem arose related to the admissibility of recognizing a candidate’s doctoral dissertation as an achievement that counts in the procedure of granting the degree. The aim of the article
is to determine whether a doctoral dissertation may constitute a habilitation achievement indicated in the application for the habilitation degree. The work uses the dogmatic and legal method and analyzes the scientific literature regarding the prerequisites and procedures for
awarding scientific degrees. As a result of the analyses, it was determined that the doctoral dissertation may constitute a habilitation achievement.

The Protection of Constitutional Identity in Some East-Central European Countries

Nagy Gellért — Thu, 12 Dec 2024 00:00:00 +0000

Constitutional identity is, in its essence, an expression of the fundamental constitutional values of a state. The protection of all these values is of paramount importance, both in domestic law and in the relationship between eU law and national constitutions. While the former can be linked with the concept of unconstitutional amendments to the
Constitution, the latter has resulted in the development of identity control. This contribution aims to examine these two aspects of constitutional identity in the case of seven east-Central european countries (romania, the Czech republic, Croatia, Slovakia, Poland, and Hungary). although what constitutes part of a state’s constitutional identity varies from nation to nation, one can notice that certain values, such as the protection of fundamental human rights and freedoms are broadly embedded. This contribution seeks to focus on all these similarities and differences through a comparison of the constitutional identities of
the states under examination.

Memorial of the late Prof. Konrad Nowacki, Ph.D.

Jerzy Stelmasiak — Thu, 12 Dec 2024 00:00:00 +0000

Świętej Pamięci Profesor Konrad Nowacki był wybitnym przedstawicielem wrocławskiej szkoły administratywistów, jak i prawa ochrony środowiska. Jego bardzo bogaty dorobek naukowy obejmuje szeroko rozumianą problematykę prawa ochrony środowiska o charakterze komparatystycznym. Dotyczy to w szczególności badań porównawczych w zakresie prawa ochrony środowiska w Republice Federalnej Niemiec i Austrii. Dlatego też w 2009 r. z Jego inicjatywy Uniwersytet Wrocławski i Uniwersytet Techniczny w Cottbus utworzyły Polsko-Niemieckie Centrum Prawa Publicznego i Ochrony Środowiska. Ponadto w 2015 r. Profesor Konrad Nowacki otrzymał tytuł doktora honoris causa Uniwersytetu w Cottbus.

The problem of multiple interpretations of the terms “Information” and “Data” in the Polish Criminal Code and its consequences

Wojciech Filipkowski — Tue, 17 Dec 2024 00:00:00 +0000

This paper examines the legal definitions of “information” and “data” within the Polish Criminal Code (CC), highlighting their implications for criminal liability, particularly in the realm of cybercrime. The research addresses the problem of definitional ambiguity, which poses challenges to the principles of legal certainty and consistency in criminal law. The study employs a dogmatic analysis of both general and specific parts of the CC,
including an evaluation of commentaries and relevant judicial decisions. Findings indicate that the interchangeable use of “information” and “data” across various provisions leads to interpretational inconsistencies, potentially broadening the scope of criminal liability
in a manner that contradicts constitutional principles. Moreover, the lack of precise legal definitions complicates the application of law by practitioners and undermines efforts to standardize legal frameworks for international cooperation in combating cybercrime. The author concludes that establishing clearer definitions is essential for the effective enforcement of criminal law and the protection of fundamental rights in the digital age.

Family benefits under the coordination of social security systems in the EU: equal benefits for local and non-resident workers – a gloss to the Judgment of the Court of Justice of 16 June 2022. C-328/20

Kamila Gabor-Wałach — Mon, 16 Dec 2024 00:00:00 +0000

This publication discusses the CJEU ruling, which stated that the mechanism allowing for the adjustment of family allowances and tax credits granted by the Republic of
Austria to workers, based on the country of residence of their children, constitutes unjustified indirect discrimination on the grounds of the nationality of migrant workers and is contrary to EU law. The CJEU ruling relates to social rights and the rights of migrants in the context of EU law, emphasizing the importance of equal treatment for migrant workers regarding social benefits, irrespective of the place of residence of their children. The publication em-
ploys a legal analysis of the CJEU ruling, taking into account the legal and social context in which it was issued. A critical analysis of the literature concerning social rights and the
rights of migrant workers in the EU was also conducted. The analysis of the CJEU ruling revealed that the mechanism for adjusting family allowances and tax credits in Austria is inconsistent with the principle of non-discrimination on the grounds of nationality, which
is a fundamental principle of EU law.

Functioning of the Polish Company Register in the light of personal data protection

Ariel Mucha — Tue, 05 Nov 2024 00:00:00 +0000

This paper contains an analysis of the Polish rules and practice regarding the operation of the register of entrepreneurs of the National court register in the light of
the eu legislation on protection of personal data. The main purpose of business registers is to collect and process data, including information on natural persons. The Polish model
of the functioning of the commercial register is characterized by a wide access to personal
data of legal entities and sometimes other individuals. This situation, which has existed for many years, may raise significant doubts in connection with the increasing standards of personal data protection in the eu. Therefore, the basic research problem of the study is to what extent the Polish model of the business register complies with the eu standards of personal data protection. The answer to this question is based on the analysis of the eu legal framework for the operation of business registers and the identification of the basic functions that the registers perform in commerce. The eu rules on protection of personal data are then examined and compared with the characteristics of public registers – an issue of particular interest to the court of Justice in recent years. This leads to an assessment of the functioning of the Polish Business register, which confirms that the legal framework
and practice of the Polish Business register are to some extent at odds with the eu rules on protection of personal data.

The real estate tax from the perspective of law application practice and directions of changes

Paweł Śwital, Piotr Kobylski — Thu, 21 Nov 2024 00:00:00 +0000

This study is devoted to the issue of real estate tax seen from the perspective of the practice of applying law and directions of changes. The thesis of the work is based
on the statement that the precise definition of essential elements of the levy relationship in the Act guarantees, on the one hand – the taxpayer’s legal security and, on the other hand – security in running an independent financial policy. The question arises whether the legislator provided municipal governments with appropriate sources of financing their tasks assigned by law. The main purpose of the study is to describe the most important source of the commune’s own income from the point of view of the correctness of legislative solutions. This study proves that failures of local governments result in a loss of income, but
to a marginal extent compared with the losses caused by violation of the legislative standard applicable to levy law. In order to implement the authors’ intentions, the dogmatic method was used, which is considered the leading research method in legal sciences.