Studia Prawa Publicznego, 2020, Nr 2 (30)


Recent Submissions

Now showing 1 - 11 of 11
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    Rola Towarzystwa Budownictwa Społecznego w zaspokajaniu lokalnych potrzeb mieszkaniowych
    (Wydawnictwo Naukowe UAM, 2020) Biniasz-Celka, Danuta
    By the Act of 8 March 1990 on Municipal Self-Government, the legislator imposed a wide range of tasks to be performed by the municipality, including meeting the community’s needs in the area of municipal housing. The aim of the study is to present a legal entity that is autonomous from the commune and managed as a limited liability company, namely the Towarzystwo Budownictwa Społecznego (TBS) [Social Housing Society]. It operates under the Commercial Companies Code of 15 September 2000 within the scope resulting from Article 27(1) and (2) of the Act of 26 October 1995 on Certain Forms of Housing Promotion, thus performing the municipality’s housing tasks. TBS companies have been equipped with a legal personality primarily to become a more effective guarantor of the proper implementation of public tasks. The availability and standard of housing play a key role in meeting the housing needs of households. For those social groups that are unable to finance the purchase of a dwelling at market prices on their own, rental housing is a beneficial solution to meet their housing needs. The operations of the TBS are not subject to the principles of the market economy. The specificity of the company’s activity is that the primary and principal statutory objective cannot be profit-making, i.e. to seek to generate and maximise profits, but that any income must be allocated to statutory objectives. However, nothing stands in the way of such companies performing secondary and accessory activities at the same time, the income from which will support their non-commercial statutory objectives.
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    Ocena skutków dla ochrony danych
    (Wydawnictwo Naukowe UAM, 2020) Pyka, Aleksandra
    This article deals with the issue of impact assessment for the protection of personal data. This is a new obligation for the controller. The article presents the essence of impact assessment (DPIA), exclusion from the obligation to carry it out, the prerequisite for mandatory DPIA, the role of the data protection officer and the powers of the supervisory authority. The analysis of legal provisions related to the impact assessment presented here does not refer to specific situations, due to the wide scope for interpreting specific phrases contained in the General Regulation. Nevertheless, the article discusses the issue of conducting data protection impact assessments as one of the most problematic obligations incumbent on the controller, who in practice raises many doubts. The DPIA has been imprecisely regulated by the EU legislator, thus leaving controllers plenty of leeway to interpret the terms used in the General Regulation. In addition, carrying out a DPIA in practice (as a new obligation on entities setting the purposes and means of data processing) can be problematic due to the lack of harmonized methods for conducting a data protection impact assessment. However, controllers cannot assign DPIA implementation to other entities involved in data processing, such as an entity processing personal data on behalf of another. Entities setting the purposes and methods of data processing should not only take into account the provisions of the General Regulation but also a list of data processing operations that are obligatorily subject to DPIA. Controllers fulfilling the obligation to carry out a data protection impact assessment will be obliged by the supervisory authority to demonstrate how to carry out a data protection impact assessment.
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    Instrumentalne wykorzystywanie władzy sędziowskiej po wyroku TSUE – wieloaspektowa analiza legalnej korupcji
    (Wydawnictwo Naukowe UAM, 2020) Walczak, Waldemar
    The article presents considerations and multifaceted analyses of the conditions and motives of judicial decisions taken after the judgment of the TSUE 19 November 2019, in the context of how Poland’s judiciary system functions. It begins by explaining how to perceive and understand the essence of legal corruption in terms of the use of law, power and professional position. The possibilities of the intentional use of judicial power for specific needs and purposes is discussed in this context. The next part of the paper is devoted to a critical analysis of selectively interpreted right to a tribunal enshrined in art. 45 of the Polish Constitution in connection with other values enshrined therein. The right of every citizen to a fair and public hearing of their case, without undue delay by a competent, independent, impartial and independent court, is presented in terms of the constitutional perspective, the principle of equal treatment and non-discrimination. The problem outlined here is considered from the point of view of protection against the arbitrariness of authorities and the possibility of appealing against personnel decisions enabling employment to be taken up in selected positions in state institutions. Attention is paid to the privileged legal position of judges over other citizens. The issues described and the arguments presented in this article are entirely overlooked in the literature, as well as in public debate. What follows is an explanation of how TSUE rulings are interpreted differently by various public authorities. Reference is also made to the dictum of the Supreme Court judgment of 5 December 2019, which was issued in its Labour Law and Social Security Chamber. That process initiated specific actions and activities taken by individual groups of Supreme Court judges. Finally, the resolution of the combined three chambers of the Supreme Court on 23 January 2020, the judgment of the Constitutional Tribunal of 20 April 2020, and divergent decisions regarding the implementation of the TSUE’s position of 8 April 2020 are discussed.
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    Long-Term Residence Permit in the Czech Republic, Slovak Republic and the Republic of Poland
    (Wydawnictwo Naukowe UAM, 2020) Bednářová, Markéta; Lásková, Eva
    In all three Central European countries, long-term residence is defined as residence for a specific purpose of more than 90 days. The requirements for granting this type of residence are generally similar with differences in the individual types of purpose of this residence permit. The Polish Act contains a category that could be defined as ‘above-framework’, expanding the range of options that make it possible to obtain long-term residence. The Slovak legislation contains the purpose of “special activities”. In comparison with the Czech legislation, the range of possibilities for obtaining long-term residence in Slovakia is more extensive and less rigid. Specifically, in the case of long-term residence for the purpose of study, there is a fundamental difference in the legislation in the Czech Republic and Slovak Republic, where Slovak legislators include in the term “study” all university, secondary, and higher vocational education. The Polish Act mentions only university studies and doctoral studies. The administration related to the admission of a foreign student to a specific school in the territory is certainly more extensive and demanding in Poland, with both the minister and the voivode enter the process beyond the framework of standard state administration bodies. The arrangement of the Act reveals a fundamental difference in Poland, where the sequence and logic of the arrangement is different to the Czech or Slovak legislation, which is expressed in which institutions Poland focus greater attention and emphasis or importance. None of the countries completely leaves the issue of visas for aliens from third countries unregulated. Although the legislation is identical in many respects, there are differences between individual institutions and the periods for which a visa can be issued. However, the issue of alien law is, at first sight, very extensive and content-intensive in all the above Central European countries, as evidenced by the length of the legislation itself, the complexity of individual institutions, and specific complexity of the provisions.
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    The Federal Constitutional Court Decisions: „The Right to be Forgotten I” and „The Right to be Forgotten II” – The Expectation of Increased Cooperation with the Concurrent Need to Maintain Independence
    (Wydawnictwo Naukowe UAM, 2020) Magdalena, Jaś-Nowopolska; Daniel, Mengeler
    The article discusses the decisions “Right to be forgotten I” and “Right to be forgotten II” of 6 November 2019 by the Federal Constitutional Court, which redefine the relationship of cooperation between the Federal Constitutional Court and the European Court of Justice in the area of fundamental rights. The Court has decided for the first time that where EU fundamental rights take precedence over German fundamental rights, the Court itself can directly review, on the basis of EU fundamental rights, the application of EU law by German authorities. In the first part, the article presents the previous system, including the precedence of application of EU law and its exceptions (ultra-vires review; identity review), as well as the controversial question of the interpretation of Article 51 (1) of the Charter of Fundamental Rights, which is decisive for the applicability of the fundamental rights under the Charter. The focus is on the constitutional background of the German Basic Law for the protection of fundamental rights in the European multi-level system.Against this background, the second part of the article presents the facts and reasons for the decisions “Right to be forgotten I” and “Right to be forgotten II”. This is followed by an analysis of the consequences of these decisions for the protection of fundamental rights and cooperation between the European Court of Justice and the Federal Constitutional Court. In particular, the way in which fundamental EU rights can now be enforced before the Federal Constitutional Court is described in greater detail. The concluding part provides an overview of the open questions, risks and opportunities of this approach. Here the article illustrates the significant impact of the two decisions on dogmatic and procedural matters.
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    Lex deweloper – analiza porównawcza projektu pierwotnego specustawy mieszkaniowej z ostatecznie uchwaloną ustawą
    (Wydawnictwo Naukowe UAM, 2020) Pawłowski, Sławomir
    The study is a comparative analysis of the original draft Act on facilitating the preparation and implementation of housing and associated investments, i.e. from March 2018 with the text finally adopted on 5 July 2018. Making such comparative analysis is justified by significant changes that occurred in the original concept of the act intended to encourage private investors to significantly accelerate the fulfilment of housing needs in Poland. Being similar to special public investment acts, the act initially established the voivode as the authority competent to take the final decision in the first instance. In addition, this decision was to take the form of an integrated decision, in which not only permission for the location of a residential investment would be issued, but also, in a simplified mode, consent for cutting down trees in cities would be obtained. These and other solutions were criticized during public consultations, and these opinions were taken into account. This elaboration will present the thesis that the original shape of the Act on facilitating the preparation and implementation of housing and associated investments would unjustifiably affect the planning authority of the commune, whose position would be marginalized. In addition, there is also a discussion of the legal nature of the location decision,which in the adopted act took the form of a commune council resolution. This part of the study will first analyze the legal nature of municipal council resolutions in general, including whether they will always take the form of general and abstract acts. This will be the starting point for assessing whether this resolution will constitute a general act of applying the law, i.e. a general administrative act.
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    Tytuł profesora w pierwszych latach przemian ustrojowych Rzeczypospolitej Polskiej
    (Wydawnictwo Naukowe UAM, 2020) Wojtczak, Krystyna
    The political changes initiated in 1989 affected many sectors of the state’s activity, including higher education and science. In 1990, the Sejm passed two new Laws – on Higher Education, and on Academic Degrees and Title. The former placed greater emphasis than before on the freedom to conduct scientific research. With the second act, it finally abandoned the possibility provided for by the 1965 solutions of granting two different titles of professor, i.e., associate professor and full professor, by introducing one academic title – “professor”. For the purposes of evaluating and establishing the significance of the solutions adopted by the 1990 Law, this article presents the procedure and conditions for awarding the titles of professor provided for in the 1965 Law in the wording in force prior to its repeal in 1990, as well as those introduced set out in the 2003 Law and in force until its amendment in 2011. The replacement of the two titles of professor with a single academic title did not limit the range of proposals for changes introduced at that time. In the article, particular attention is devoted to these. The main trend in research comes down to: (1) how the degree and scope of regulations adopted in 1990 differed from earlier solutions, and (2) whether, in thecontext of the 2003 Law they were sufficient and served the quality of academic advancements well. It is only by basing research on previous findings in this respect that conclusions could be drawn as to the legal meaning and significance of conferring the title of professor in the years 1990–2011. This approach in achieving the purpose of the discussions was also important for another reason. It made it possible to emphasize the changes in terms of awarding the title of professor from the solutions in force during the Polish People’s Republic to the norms adopted in the initial years of the political transformation, as well as to the new regulations introduced in the more strongly established Republic of Poland. These were not the same solutions, and the Act of 1990 placed them in the group of liberal solutions.
Uniwersytet im. Adama Mickiewicza w Poznaniu
Biblioteka Uniwersytetu im. Adama Mickiewicza w Poznaniu
Ministerstwo Nauki i Szkolnictwa Wyższego