Challenges in the area of the sources of law in contemporary Polish constitutional law

The aim of the paper is conducting the analysis of the issue of new challenges in the area of the sources of law in contemporary Polish constitutional law. The above-mentioned analysis is currently particularly important from the point of view of Poland and its systemic and political practice.
In this regard, it is necessary, among other things, to consider whether there is a need in Poland for systemic changes within the institution of acts of executive organs with the effect of a statute (e.g. in order to implement the EU law)? At the same time, it is worth to consider the introduction into the Polish law of the organic law.
Moreover, it is worth to consider if the Polish legislator – parallel to the systemic changes within the area of the sources of law – should carry out systemic reform the legislative process aiming at its optimization as well as to improve the system of governance and the system of mutual relations between the parliament, the government and the president.

A Gesetzesvorbehalt for the European Union after the Treaty of Lisbon? The impact of the new category of “legislative acts” on the concept and aims of legislation

The Lisbon Treaty introduced a category of legal acts of the EU specifically qualified as “legislative”. After 10 years of practice and case law of the CJEU it is possible to analyse the consequences of this innovation both in the system of secondary law and in comparison with the traditional role of the (parliamentary) legislation at State level.
The study of the legislative acts is a good test to measure the degree of parliamentarisation of the EU, considering the position of the EP in the legislative procedures and the involvement of the National Parliaments.
The ultimate aim of the research is to investigate whether the introduction of “legislative acts” in the EU could have led to develop the entire heritage of the “lex” of the Member States, with specific regard to those of civil law tradition. In particular, whether it may have implied a specific significance in relation to fundamental rights, as it is foreseen by the continental understanding of parliamentary legislation.

In times of change – the evolution and the democratization of the European Union’s agencies as the ‘fourth’ branch of government

Increasingly, the EU’s legislature is conferring implementing powers on European Union agencies. The process of ‘agencification’ has intensified significantly since the early 1990s not only in respect of the numbers of EU agencies operative in the EU but also in terms of the powers conferred on them. Insofar, and despite the absence of a legal framework on EU agencies in the Treaty, EU agencies have become an established part of the way the EU operates and the functional need for the EU to resort to agencies is held to be ‘beyond question’. EU agencies increase the administrative capacity at EU level and improve the effectiveness of the EU administrative governance through technical expertise, allowing the Commission to focus on its ‘core tasks’. However, the fourth branch of government may suffer from proper democratic supervision. This paper seeks to discuss the ongoing evolution of EU agencies and their democratic credentials considering the above arguments.

Quasi-Constitutional Legislation and Constitutional Pervasiveness

In this presentation I suggest that the study of quasi-constitutional legislation provides a fruitful new way into the discussion of how the Constitution influences ordinary law. When it comes to statutes, there is a natural tendency to focus on constitutional compliance to the exclusion of questions about how else the Constitution might influence statute law. But of course, the Constitution does influence legislation in myriad ways. In the Supreme Court of Canada’s jurisprudence on the application of the Charter to administrative decision-making and to the common law, for example, the Supreme Court has explained that the “spirit” or “values” of the Charter shape the development of these areas of law. In the same way, the spirit and values of the Constitution shape legislation. I argue that quasi-constitutional legislation is best understood as a manifestation of the pervasiveness of constitutional norms and values in our legal system, and that this pervasiveness is salutary.

Justice, Legitimacy, and the Authority of Legislation within the European Union

What are we to make of the authority of the EU legislature? EU lawyers have questioned the significance of legislative decision-making. This article challenges these views and argues that the EU legislature must enjoy adequate freedom to shape EU law with the general interest in mind. Institutional accounts that seek to curtail the authority of legislation tend to rest upon ‘content-dependent’ conceptions of political legitimacy, according to which the legitimacy of a decision depends on its moral qualities. Such conceptions overlook reasonable disagreements on justice and rest upon an overly optimistic (pessimistic) view of the Court (the legislature). The article argues for a content-independent conception of legitimacy, which speaks in favour of the EU legislature. The authority of legislation deserves wider recognition among EU lawyers for reasons of political legitimacy and because the EU legislature is better positioned to decide in the general interest.