Studia Prawa Publicznego, 2017, Nr 2 (18)

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    W sprawie habilitacji w projektach założeń Prawa szkolnictwa wyższego (Ustawa 2.0)
    (Wydawnictwo Naukowe UAM, 2017) Wojtczak, Krystyna
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    Prawne podstawy prowadzenia masowej inwigilacji obywateli opartej na hurtowym i nieukierunkowanym przechwytywaniu danych w UE z uwzględnieniem dorobku orzeczniczego TSUE i ETPC
    (Wydawnictwo Naukowe UAM, 2017) Rojszczak, Marcin
    The activity which States undertake when conducting extensive non-directed surveillance programmes is seen as one of the major threats to privacy at the time of the information society. This problem has a special dimension in the European Union because the surveillance activity of individual Member States may be an obstacle to the functioning of a single internal market, particularly when it comes to ensuring the freedom to transfer personal data. Due to the supranational character of contemporary means of communication, and especially Internet communication services, guarantees related to the protection of privacy ought to be analysed not only through the prism of domestic regulations but also in the light of international law provisions. Results of an analysis of the relevant primary and secondary EU law have been presented. A special focus was put on Directive 95/46 of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data and Directive 2002/58 on privacy and electronic communications. The formal eff ects of the rulings of the Court of Justice which determined invalidity of the retention directive have been analysed as well, mainly from the perspective of the validity of national provisions implementing the general obligation to retain the data in legal orders of EU Member States. Particularly interesting seems to be the analysis of the grounds for non-directed surveillance programmes and comparison of the fi ndings with the rulings of the CJEU and the ECHR, particularly the recent CJEU’s judgment in Tele2 and the ECHR’s judgment in Szabo v. Hungary. The judicial decisions analysed in the paper may not only be useful in solving matters related to surveillance instruments used in individual cases but may also serve as a helpful tool in establishing the directions of development of domestic regulations in line with international standards. The latter may also be related to the provisions of the surveillance act and anti-terrorist act recently binding in Poland.
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    Z problematyki zakazu reformationis in peius w postępowaniu sądowoadministracyjnym
    (Wydawnictwo Naukowe UAM, 2017) Ciesielska, Agnieszka
    The principle of prohibition of reformatio in peius is established in Article 134 § 2 of the Law on Proceedings Before Administrative Courts. According to this provision the administrative court is not allowed to issue a decision to the detriment of the complainant. A judgment adverse to the complainant can be exceptionally issued but only if the court fi nds a violation of the law resulting in the annulment of the challenged act or action. This principle is a procedural institution which ensures that the complainant’s situation will not deteriorate due to the decision of the administrative court. There are many interpretative doubts concerning the prohibition of reformatio in peius in the doctrine and the jurisdiction of the administrative courts. This is because administrative courts very rarely issue a decision on the merits. Decisions of administrative courts are basically of cassation nature. When the administrative court allows a complaint, the contested act is generally eliminated from the system of law and the case is returned for re-examination by the public administrative authority. It is therefore very diffi cult to determine the content of the prohibition of reformatio in peius in administrative court proceedings and in practice the prohibition of a change for the worse is not a real guarantee of the protection of the interests of the complainant. In the author’s opinion, the way of approaching the mechanism of application of the prohibition of reformatio in peius by the administrative courts needs to be changed. And yet, a signifi cant improvement in the eff ectiveness of the protection against the worsening of the complainant’s legal situation will only be possible through the introduction of a new legal regulation restricting the jurisdiction of public administrative authority, which will reconsider the case after the cassation judgment issued by the administrative court.
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    Kierunki zmian w prawie o bezpieczeństwie morskim
    (Wydawnictwo Naukowe UAM, 2017) Nawrot, Justyna
    The article tackles the issue of amendments to Polish maritime safety law which has been amended a number of times since it came to life several years ago. The last amendments of 2015 have been the most profound and complex. Today, maritime safety is given much more importance than several dozen years ago. The public and private aspects of maritime safety became the focus of attention rather recently but are now a branch of law that is developing the most dynamically. As has been shown in the paper, although private maritime law was already known in the Ancient Times, public-private law regulations were adopted only after the sinking of the Titanic in 1912. Still, it is not the private but the public aspects of maritime safety law which constitutes the major challenge. The abundance of international and European legislation ought to prompt the Polish legislator to consider a possible adoption of one comprehensive maritime safety act which would approach the whole matter in question in a systematic manner. The deliberations presented in the paper sum up the amendments to maritime safety law made so far. They are also an attempt to analyse the new legal order more deeply, and propose some more general de lege ferenda conclusions. The analysis is set in a wider context, taking into account the amendments introduced to international and EU regulations.
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    Patenty uprawniające do uprawiania turystyki wodnej na jachtach żaglowych – zagadnienia prawne
    (Wydawnictwo Naukowe UAM, 2017) Jakubowski, Aleksander
    The article considers the issue of sailing licences which include: a sailor licence, a steersman licence and a captain licence. The legal character of sailing licences and the procedure in which they are issued is analysed. The judicial control of sailing licences is also considered. The granting of a sailing licence is an act confi rming that a person indicated therein has certain qualifi cations required for sailing. The legal character of the licence is similar to an administrative certifi cate. Granting the sailing licence can be conditional upon passing a formal examination by a person requesting the licence to be issued. The examination itself is regarded as an administrative act in law. The study proves that the Polish Sailing Association performs a function of a public administration unit issuing sailing licences. This means that it acts as a an administrative body in a functional dimension. The sailing licence is granted in the form of a declarative decision issued by the Polish Sailing Association. The proceeding for issuing such a decision is an administrative proceedings governed by the Code of Administrative Proceedings. The actions of the Polish Sailing Association as well as its failure to act are controlled by administrative courts.
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    Habilitacje w Polsce Ludowej. Część 2. Warunki i przebieg habilitacji w prawie o stopniach i tytułach naukowych
    (Wydawnictwo Naukowe UAM, 2017) Wojtczak, Krystyna
    Habilitation proceedings ending with a conferral of an academic degree were fi rst introduced in the Polish People’s Republic by virtue of the Act on higher education of 1958. The academic title of docent, which the Act also provided for, was later endorsed by the Act of 1965 on academic titles and academic degrees. Another academic degree of ‘habilitated doctor’ (doktor habilitowany) functioned from 1968 and continued through subsequent legislative acts in force until 1990 as well as through the years after later reforms. The changes in higher education implemented in 1965–1990 were not fi nal and continued to be modifi ed in the following areas: (1) the branches and science and disciplines in which the academic degrees of docent or doktor habilitowany could be conferred; (2) the requirements which institutions (establishments of higher education, research units of the Polish Academy of Sciences and other research entities) had to fulfi l before earning the rights to confer the academic degrees referred to above; (3) establishment of the lists of institutions entitled to confer these academic degrees. The solutions then adopted were by no means triggered by the intention to replace the academic degree of docent with a degree of doktor habilitowany. On the contrary, the majority of changes, of which those happening after 1985 were even more politically biased, did not refl ect any legal need but aimed at restricting the autonomy of schools of higher education in the scope of conferring academic degrees. This tendency extended to the conditions of commencing habilitation proceedings and the very course of the proceedings. As of 1985 one of the requirements of the key factors qualifying successful candidates was an ‘impeccable civic attitude.’ After 1985, most of the activities which had been till then conducted by committees appointed Faculty councils, were to be taken up by the relevant councils, although the latter were allowed to appoint from time to time committees to perform some of the activities related to habilitation proceedings. The Act of 1965 abandoned the requirement of the candidate’s habilitation lecture, re-established in 1985.
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    Antykonkurencyjne innowacje – oksymoron czy realne wyzwanie prawa antymonopolowego?
    (Wydawnictwo Naukowe UAM, 2017) Molski, Rajmund
    One of the overriding principles of modern economic policy is promotion of innovation. It also turns out, however, that innovations may work against competition, thus becoming a major challenge for antitrust law. The importance and the degree of diffi culty surrounding this challenge as well as some controversies related to it can be evidenced by the antitrust enforcement policy referring to innovations. This policy has thus far been highly enigmatic and labile. It seems that no consensus can be reached on the relation between competition and innovations as much as it cannot be achieved on the validity of including the latter in the antitrust enforcement regime, particularly when it comes to applying the prohibition of the abuse of a dominant position. While it is true that innovations compound the risk of antitrust errors, especially those consisting in de-legalisation of innovations which are not anticompetitive, it would nevertheless be wrong to underestimate, and even more so to ignore, the risk of errors amounting to an unjustifi ed tolerance of anticompetitive innovations and an overstated belief in the self-regulatory ability of the market. In any case, considering the priority objective of the economic policy which should be to support and promote innovations, as well as taking into account that the goal of antitrust law is not only to settle real confl icts arising between innovations and the protection of competition, but also to provide for an innovation-friendly environment, the antitrust intervention into innovations should be sensible, farsighted and predictable. Otherwise, antitrust law may become a burden for the actual and potential innovators – like the mythical sword above the head of Damocles.