The Developing Concept of a Global Administrative Law

The article presents an analysis of a global administrative law since the announcement of its “emergence” by professors Kingsbury, Krisch and Stewart. It acknowledges the role of this concept as a doctrinal platform between ius inter gentes and domestic legal orders in times of globalization and global governance. The article is composed of three parts reflecting elements of the term “global administrative law”. The first part is mostly based on the juxtaposition of the “global law” and the “international law”. The second part analyses the concept of (not necessarily positivist sense of) “law” in the global administrative law. The third part mostly focuses on standards of administrative law which become recognized on the supranational level.

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8-2011 Szwedo.pdf

732 kB

Current problems of validity and application of the acts of the Polish Committee of National Liberation

The purpose of this article is to analyse the process of settling accounts with the  communist lawlessness with particular emphasis on the nationalization. Polish  legislator has not yet adopted a comprehensive regulation on the compensation  for property damages caused after the Second World War. For the last twenty  years a redress has been made on a very limited scale, mainly by the administra- tive courts. The article refers to a controversial decision of the Polish Constitu- tional Tribunal made in 2010, in which the Tribunal undermined the possibility of  challenging the post war expropriation cases before administrative courts. This  decision is discussed in terms of violating the principle of citizens’ trust in state.

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8-2011 Romanowski_Dobrzenicki.pdf

681 kB

Rebuttable presumption where the parent company has 100% shareholding

The Court’s ruling discussed may be relevant to the application of TFUE as it introduces a clear rule regarding prerequisites for attributing the responsibility of a parent company’s for business actions of its subsidiaries. It is already a well-established doctrinal and juridical position that a parent company can be called to account for cartel offences committed by its subsidiaries if it exercises a decisive influence over them. In its recent ruling, including the Akzo Nobel judgment, the Court of Justice stated that when a parent company holds 100% of the capital of a subsidiary which has committed an infringement, it can be simply presumed that the parent company exerts decisive influence over the conduct of its subsidiary, and that they therefore constitute a single undertaking within the meaning of Article 101 TFUE. It is thus for a parent company which challenges before the Community judicature the Commission decision fining it for the conduct of its subsidiary to rebut that presumption by adducing the evidence to establish that its subsidiary was independent. Attribution of responsibility to a parent company is consistent with the principle of personal responsibility and with the objective of effective enforcement of the competition rules to hold all the companies of the group which have participated in the cartel, together with the parent company, jointly and severally liable for the purpose of punishing the cartel offence. Only in that way can it also be ensured that, when assessing the amount of a fine to be imposed, the true economic strength of the whole undertaking is correctly taken into account and that the successful enforcement of the fine is not jeopardised by any transfers of assets between the parent company and its subsidiaries.

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8-2011 Stefinicki.pdf

539 kB

May legal interpretation be a guarantee of the certainty of law?

The paper is devoted to the issues associated with the certainty of law. The author claims that it is impossible to provide a simple, unequivocal answer to the question of whether legal interpretation may be a guarantee of legal certainty. There are at least three reasons for that. First, it is impossible to define legal certainty: there exist as many definitions thereof as there are legal philosophies. Second, there is no way of saying whether certainty is an essential legal value. The final reason is the impossibility of demonstrating that the goal of legal interpretation is the search for legal certainty and not the utilization of other criteria, such as justice, rightness, efficiency or economic efficiency.

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8-2011 Stelmach.pdf

258 kB

Challenges for the European Law Institute

This is the text of a speech given on the occasion of the Inaugural Congress of the European Law Institute in Paris on 1st June 2011. It attempts to familiarize the audience with essential features of the Institute and it does so by highlighting a number of specific challenges facing it. These challenges arise, inter alia, from the Institute’s ambition to be comprehensive with regard to legal professions, legal disciplines and legal traditions. Specific attention is devoted to the notion of legal tradition(s) and the relationship between law and language. Finally, the position of the European Law Institute vis-à-vis other existing “networks” and organizations, official organs of the European Union and other organizations worldwide aiming at the harmonization of law, is highlighted. Throughout the speech, a reference is made to the American Law Institute and a question is asked to what extent it can serve as a model for the European Law Institute.

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8-2011 Reinhard.pdf

516 kB