Mariusz Czyżak
SOME REMARKS ON ADMINISTRATIVE PECUNIARY PENALTY IN THE LIGHT OF THE TELECOMMUNICATIONS ACT OF 2004
Summary
The administrative pecuniary penalty is the most stringent instrument at the disposal of the President of the Office of Electronic Communications (OEC) in control over the activities of telecommunications businesses.
Its function is threefold: repression, regulation and prevention. A business violating the statute - the Telecommunications Act - may be exposed to a financial loss; consequently, it is made to follow a legitimate path of telecommunication activity and conform to the provisions of the aforesaid law. The act, however, should not be regarded as a tax instrument. At times, it is seen as a peculiar form of contractual penalty resulting from an implied agreement concluded between the state and a telecommunications company undertaking a business activity in line with the legislator's conditions.
The administrative pecuniary penalty is imposed through the decision of the President of OEC and amounts up to 3% of the breaching entity's revenue for the past calendar year. The decision must obligatorily take account of the entity's scope of breach, activity undertaken thus far and financial capability.
Due to considerable severity of the sanction in question and practical hindrances in withdrawing the financial effects of its execution, it is doubtful whether the President of OEC should be able, as it is generally impermissible under the binding legal order, to order the decision with immediate effect if, though effected, it may not be conclusive. It seems only to be justified if the social interest comes into play, which the President of OEC deems significant.
The administrative pecuniary penalty introduced by the Telecommunications Act should be perceived, first and foremost, for its unique functions, as a significant and effective means of state's coercion administered in order for telecommunications law to be observed. The threat of financial penalty for illegal business activities plays a vital role in the state economy by having a beneficial impact on fair competition and consumer rights.
Nevertheless, it is desirable to implement legislative changes aiming at the standardization of the statutory directives of the execution of the administrative pecuniary penalties and the reduction of their catalogue to some impartial indicators that will be interpretable with no trouble. The President of OEC - a regulatory body in the telecommunication market - should also be capable of ordering an immediate enforceability of the administrative pecuniary penalty.
Józef Krukowski
EQUAL RIGHTS OF DENOMINATIONAL UNIONS IN EUROPEAN STATES
Summary
The author ponders upon the tension existing in the legislative policies of contemporary democratic states gathered in the Council of Europe in the area of the relationship between the state and denominational unions. On the one hand, modern constitutions proclaim - markedly for the present epoch - the principle of equal rights of denominational unions having axiological justification in the recognition of inherent human dignity, which is the source of human religious freedom, not only of an individual but also of a community and institutions. On the other, the application of this principle may vary depending on two factors, i.e. 1) the respect of a historical bond between religion and culture of a nation; b) ideology followed by political élite (parties). Given the degree of influence of these factors over contemporary national legislation, there are still theocratic states existing side by side with secular ones. In particular, the author attaches much attention to the evolution of the policy in the Russian Federation consisting in the transition from a secular state (as in the Constitution) to a theocratic state (in practice) with the leading role of the Russian Orthodox Church.
Edyta Krzysztofik
THE EVOLUTION OF THE COMMUNITY SYSTEM OF PROTECTION OF HUMAN RIGHTS
Summary
When analyzing the acquis communautaire in the area of human rights protection, three stages may be isolated of the growth of interest in human rights in the Community: from the establishment of the European Coal and Steel Community to the Stauder case; the period of jurisdiction of the Court of Justice of the European Communities; and the period of treaty-related changes and the EU Charter of Fundamental Rights (CFR).
During the first stage of development, the European Communities endeavoured to work out the mechanisms of international cooperation. Upon a closer look at the treaty provisions, an individual was perceived as a participant of economic life and any protection of their rights was confined to this area. It should be stressed, however, that the treaties also provided for the rights belonging to the fundamental human rights, i.e. non-discrimination in the areas of descent, sex, employment conditions and pay, free movement of labour, business activity and services. The Community stance on this issue was unambiguously stated by the Court of Justice in its decision on Stork resolving that, in accordance with Article 31 of the Treaty establishing the European Coal and Steel Community, it is competent to provide uniform interpretation and control over the application of community law. Yet, it is not entitled to control a specific means of national law, regardless of its status. This observation shows that the protection of fundamental rights and liberties resulting from national constitutions of member states does not fall within its competence but rather within that of national courts. Further theses show that the Court of Justice is competent to examine the violation of the rights and liberties specified in the treaties or the secondary legislation.
The second stage of development of the community system of human rights protection is linked to the jurisdiction of the Court of Justice. The literature on the subject lists three landmark decisions: Stauder, Internationale Handelsgesellschaft and Nold. As seen in these decisions, the Court of Justice modified its line and resolved that human rights protection belonged to the general principles of community law administered by the court. Furthermore, the court resolved that these rights follow from constitutional tradition shared by all the member states as well as international agreements of human rights protection worked out, concluded and signed by the member states. In later decisions, the Court of Justice directly referred to the provisions of the European Convention of Human Rights.
The jurisdiction of the Court of Justice had a considerable impact on later amendments to the treaty. The first was the acceptance to the preamble of the Single European Act of the aforesaid court's theses. Successive revised treaties (Treaty of Maastricht, Treaty of Amsterdam, Treaty of Nice) recognized human rights protection as one of the fundamental principles of the EU and established mechanisms controlling the observance of the principle in the member states (in a form of political responsibility) and community institutions. They additionally agree that the recognition of this principle is the pre-condition for candidate states. The Lisbon Treaty implements the most effective changes in the subject matter in question by imposing upon the EU the obligation of participation in the European Convention of Human Rights and gives the Charter of Fundamental Rights the status of primary legislation.
The Charter of Fundamental Rights also holds certain weight for our discussion. It is an agreement between institutions, which offers its own catalogue of rights and basic liberties respected but the EU. Although having no binding force, it sets the trend in the jurisdiction of the Court of Justice and activities of community institutions. It is worth noting that if the Lisbon Treaty enters into force, the charter will gain the status of primary legislation.
Rev. Grzegorz Leszczyński
THE CAUSE OF RECOURSE TO THE SECTIO ALTERA OF THE APOSTOLIC SIGNATURA IN THE LIGHT OF ARTICLE 123 OF THE APOSTOLIC CONSTITUTION PASTOR BONUS
Summary
One of the main aspects concerning both law and administrative action is to determine the cause of recourse, material and formal, which may provide grounds for its filing with the Second Section of the Apostolic Signatura. To provide an accurate definition of petitum and causa petendi of this recourse has been disputed for many years. This dispute gained momentum after the Pontifical Commission for Interpretation of Decrees of the Second Vatican Council issued an answer of 11 January 1971 which was very restrictive about the permissible cause of recourse and reduced it exclusively to unlawfulness of an act. The dispute did not cease after promulgation of the 1983 Code of Canon Law. The Apostolic Constitution Pastor Bonus enacted by John Paul II in 1988 opened a new field of interpretation and allowed re-definition of the scope of the cause of recourse to the Second Section of the Apostolic Signatura, especially when defining new petitum of recourse. In accordance with Article 123 par. 1 of this constitution, the formal cause of recourse is violatio legis, i.e. violation of law referring both to the procedure of issuance of an administrative act and the decision of an administrative body. A novelty introduced by Pastor bonus is the norm contained in Article 123 par. 2 of this constitution which says that the objective cause of recourse is not only a request for nullity of an unlawful administrative act but also a request for remedy of resultant damages. This article attempts to analyze the norm contained in Article 123 of Pastor bonus in the light of the provisions of the 1983 Code of Canon Law and other documents relevant to this matter.
Piotr Zakrzewski
PRINCIPLE OF EQUALITY IN COOPERATIVE LAW
Summary
The principle of equality is of universal value and exists in many provinces of law, including cooperative law. In the opinion of the representatives of foreign doctrines, it results from the personal character and nature of a cooperative and the principle of mutual aid shared among the members. The Polish legal science recognizes the principle on the grounds of the overall regulations of cooperative law, especially the one offering one vote to one member, regardless of the volume of shares in their possession. This rule is stated in Article 18, par. 1 of the Cooperative Law Act. This regulation belongs to the category of an absolutely binding norm. The principle of equality has two meanings. If we take an absolute approach, the members have equal rights and obligations, irrespective of existing differences. If we take dispositive approach, equal rights and obligations are granted to those who meet specific criteria.
The principle of equality is a legal principle in a directive sense, which is of significance in the interpretation of cooperative law. The addressees of this principle are cooperative authorities and the members are the beneficiaries. The principle encompasses the rights and obligations ensuing from the membership and derivative relationships. The violation of the principle in a cooperative's resolution is subject to nullity.
