scholarly journals Odpowiedzialność przedsiębiorcy za niedostarczanie informacji i dokumentów na żądanie Prezesa UOKiK – kilka refl eksji po decyzji w sprawie Engie

2020 ◽  
Vol 9 (3) ◽  
pp. 60-74
Author(s):  
Krzysztof Kanton
Keyword(s):  
Consumer Protection ◽  
Legal System ◽  
Case Law ◽  
Legal Framework ◽  
Fundamental Rights ◽  
Competition Authority ◽  
Risk Of Exposure ◽  
Legislative Changes ◽  
Article 50 ◽  
Basic Standards

The article contains an analysis of the solutions adopted in the Polish legal system governing the procedure for requesting information and documents by the President of the Office of Competition and Consumer Protection (President of UOKiK). In the first part of the article, the author discusses the basic standards that should be met by a request of the UOKiK, with regard to the scope of the request and its purpose, taking into account, in particular, the guidelines which follow from EU case-law. The author considers the scope of the obligation under Article 50 Section 1 of the Act on Competition and Consumer Protection (the Act), criticizing the solution that makes it impossible in practice to challenge the demands of the President of UOKiK without a risk of exposure to severe financial sanctions. The proposals for amendments of applicable regulations are also discussed, the aim of which would be to provide business undertakings with an adequate standard of protection of their fundamental rights in connect in with the procedure for submitting information and documents requested by the President of UOKiK. The second part of the article is devoted to issues concerning financial penalties for a breach of the obligation referred to in Article 50 Section 1 of the Act. The author discusses the current legal framework and indicates the need to introduce certain legislative changes in the future. The analysis also covers the practice of the Polish competition authority to impose penalties for a breach of the obligation under Article 50 Section 1 of the Act

scholarly journals THE ROLE OF JUDICIAL PRACTICE IN THE LEGAL SYSTEM: RUSSIAN EXPERIENCE IN THE WORLD CONTEXT

2017 ◽  
pp. 40-49 ◽  
Author(s):  
Виктор Момотов ◽  
Viktor Momotov
Keyword(s):  
Legal System ◽  
Negative Attitude ◽  
Case Law ◽  
Legal Framework ◽  
Legal Systems ◽  
Legal Norms ◽  
Judicial Practice ◽  
The Usa ◽  
Anglo American

In Russian legal science there is a wide-spread belief according to which legal precedents are not sources of Russian law, because Russian legal system forms a part of continental legal system. Various researchers believe that judicial practice does not contain legal norms and consequently case law is not a component of Russian legal framework. The present paper contains the theoretical and historical legal research of the place and role of case law in Anglo-American and continental legal systems. It’s shown that for long historical periods legal precedents were recognized as sources of law not only in Great Britain and the USA, but also in major European legal systems, while at the present time differentiation of legal systems with respect to their attitude towards case law is becoming outdated. Furthermore, based on the research of various legal scholars’ traditions (principally of the positivistic and the sociological traditions) this article demonstrates that negative attitude towards case law is largely determined by the formalistic and obsolete understanding of the term ”source of law”, coming from the misinterpretation of positivism. The paper also presents the current development trends of case law as a source of law. In particular the article outlines the proactive interpretations of new statutory provisions issued by the Plenum of the Supreme Court of the Russian Federation, the global uniqueness of such interpretations and the influence of scientific–technological progress and public needs on the highest court’s interpretations. The mutual interference of case law and statutory law is shown.

Stone Roots, Digital Leaves: Czech Law against Unfair Competition in the Internet Era

2008 ◽  
Vol 33 (2) ◽  
pp. 155-180 ◽  
Author(s):  
Radim Polčák
Keyword(s):  
Legal System ◽  
Case Law ◽  
Unfair Competition ◽  
The Internet ◽  
Business Practices ◽  
Black Letter ◽  
The Law ◽  
Legislative Changes ◽  
Further Development

AbstractThe law against unfair competition is traditionally understood in countries of the Alpine legal system as extraordinary and unconventional. Unlike other legal disciplines, it does not rely on black-letter law; it is less formal and less legislatively elaborative in detail. Thus, progress and development in this area is not a matter for the legislator but for broad practically-driven doctrinal work connected to contemporary case law. When the Internet brought new opportunities in the development of business ventures, Czech law against unfair competition did not react with legislative changes but by the further development of standard interpretational patterns. In this article, we will briefly describe the grounds as well as recent related developments in the Czech law against unfair competition connected to unfair business practices on the Internet.

scholarly journals The Relationship Between the Charter and General Principles: Looking Back and Looking Forward

2020 ◽  
pp. 1-25
Author(s):  
Emily HANCOX
Keyword(s):  
European Union ◽  
Case Law ◽  
Legal Framework ◽  
Fundamental Rights ◽  
Eu Law ◽  
The European Union ◽  
Rights Protection ◽  
Transformative Potential ◽  
The Relationship ◽  
The Eu

Abstract Article 6 Treaty on European Union sets out two sources of fundamental rights in the EU—the Charter and the general principles of EU law—without specifying a hierarchy between them. Even though the Charter became binding over a decade ago, the Court of Justice of the European Union (‘CJEU’) is yet to clarify unequivocally how these two sources interact. In this article I argue based upon the relevant legal framework that the Charter ought to replace the general principles it enshrines. This leaves a role for general principles in the incorporation of new and additional rights into the EU legal framework. Such an approach is necessary to ensure that the Charter achieves its aims in enhancing the visibility of the rights protected by EU law, while also providing the impetus for more coherent rights protection within the EU. What an extensive survey of CJEU case law in the field of non-discrimination shows, however, is that the CJEU has struggled to let its general principles case law go, potentially hampering the transformative potential of the Charter.

scholarly journals What Are the Directions in the Enforcement of Polish Competition Law – Review of a Series of New Polish Soft Law Guidelines

2016 ◽  
Vol 9 (13) ◽  
pp. 141-156
Author(s):  
Anna Laszczyk
Keyword(s):  
Best Practices ◽  
Consumer Protection ◽  
Competition Law ◽  
Soft Law ◽  
Policy Statement ◽  
Competition Authority ◽  
Legal Certainty ◽  
Law System ◽  
Legislative Changes ◽  
Soft Laws

A recent amendment to the Act of Competition and Consumer Protection of 2007, which entered into force in January 2015, brought with it a number of changes to the Polish competition law system introducing, among other things, several new legal institutions. This development created the need to issue new soft law guidelines in order to give some clarity as to their application. At the same time, certain pre-existing soft law guidelines of the Polish Competition Authority – the President of the UOKiK – needed updating in order to make them applicable to the new legal conditions. The aforementioned legislative changes were accompanied by an official UOKiK policy statement of openness and transparency. Given this objective, the UOKiK President provided a set of best practices for the Authority, in particular as regards its relations with undertakings. The aim of this paper is to critically review the newly adopted guidelines as well as modifications made to preexisting soft laws. It emerges from this analysis that although the issuance of any sort of guidelines should be welcomed in general, since it improves legal certainty as to the Authority’s future conduct in individual cases, a number of problems remains which have not been sufficiently or in fact properly addressed.

scholarly journals Cumulative Enforcement of European and National Competition Law and the Ne Bis In Idem Principle Case Comment to the Judgement of EU Court of Justice of 3 April 2019 Powszechny Zakład Ubezpieczeń na Życie S.A. v Prezes Urzędu Ochrony Konkurencji i Konsumentów (Case C-617/17)

2019 ◽  
Vol 12 (19) ◽  
pp. 231-243
Author(s):  
Mario Libertini
Keyword(s):  
Competition Law ◽  
Fundamental Rights ◽  
Competition Authority ◽  
The European Union ◽  
Court Of Justice ◽  
Ne Bis In Idem ◽  
National Competition ◽  
Charter Of Fundamental Rights ◽  
Article 50 ◽  
National Competition Authority

The judgement of EU Court of Justice in response to the request for a preliminary ruling by the Polish Supreme Court confirms that the principle of ne bis in idem, enshrined in Article 50 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding a national competition authority from fining an undertaking in a single decision for an infringement of national competition law and for an infringement of Article 82 EC (now Article 102 TFEU). In that regard it can be concluded that the judgement does not have anything new and is just a confirmation of settled case-law. Unfortunately, this case represents a lost opportunity to review the ‘double barrier’ doctrine and to clarify if the relationship between European and national competition law is one of ‘bilateral specialty’ or not.

The Problems of Applying Both Criminal and Administrative Penal Sanctions in Light of Article 50 of the Charter of Fundamental Rights of the European Union

2020 ◽  
Vol 82 ◽  
pp. 161-173
Author(s):  
Jakub Kawka
Keyword(s):  
European Union ◽  
Mutual Influence ◽  
Case Law ◽  
Fundamental Rights ◽  
The European Union ◽  
Criminal Proceedings ◽  
Administrative Authority ◽  
Ne Bis In Idem ◽  
Charter Of Fundamental Rights ◽  
Article 50

The aim of this study is to present the case law of the Court of Justice of the European Union (CJEU) regarding the admissibility of parallel punishments in proceedings conducted separately before criminal courts and administrative authorities. Pursuant to Article 50 of the Charter of Fundamental Rights of the European Union, no one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law (the ne bis in idem principle). According to the CJEU, this principle does not constitute a legal obstacle to the application of sanctions for the same unlawful conduct of the same person in both criminal and administrative proceedings, if the sanction imposed by the administrative authority does not have the nature of a criminal penalty (the case C-617/10 Fransson). Assessment of such a nature in accordance with the case law of the CJEU (influenced by the judgment of the European Court of Human Rights in the Engel case) needs to be based on three criteria: the classification of a given procedure in domestic law, the existence of a repressive function of the measure adjudicated under the procedure and the degree of its severity (the case C-489/10 Bonda). In the opinion of the CJEU, the ne bis in idem principle mentioned in Article 50 of the Charter is also not absolute, because the restrictions on the use of the rights granted by the Charter are allowed pursuant to Article 52 (1) of the Charter. Therefore, according to the CJUE, it is possible to double sanction a given behaviour with measures of a penal nature, if it is justified by general objectives such as the protection of the tax system or of the regularity of stock exchange trading, provided that each of the proceedings performs its own specific additional objectives and that the accumulation of sanctions is based on the principle of proportionality. While administrative sanctions could be meant to counteract any transgressions, criminal sanctions should be limited to the most serious, culpable abuses. Moreover, the Member States should regulate the mutual influence of both proceedings, so as not to punish too severely the same behaviour and so that the sanctions applied jointly are absolutely necessary (the case C-545/15 Menci, the case C-537/16 Garlsson Real Estate and Others). On the other hand, according to the CJUE, Article 50 of the Charter excludes the possibility of bringing a given entity to administrative responsibility in the event that it had already been legally acquitted of committing the same offence with a final court ruling, because the acquittal judgement definitively determines that no act has been committed, and thus it is pointless to consider whether an exception to the ne bis in idem principle in such a case is justified in the light of Article 52 (1) of the Charter (joint cases C-596/16 and C-597/16, Enzo Di Puma and Consob). Finally, the CJUE states that Article 50 of the Charter must be interpreted in such a way that it does not preclude the application of the national provision which allows for conducting criminal proceedings, if a definitive administrative penalty for the same acts has been imposed on a company with a legal personality and criminal proceedings have been initiated against a natural person (joint cases C-217/15 and C-350/15, Orsi, Baldetti).

scholarly journals Effectiveness of EU law and protection of fundamental rights - in search of balance in the context of the ne bis in idem principle

2019 ◽  
pp. 37-58
Author(s):  
Monika Szwarc
Keyword(s):  
European Union ◽  
Member State ◽  
Case Law ◽  
Fundamental Rights ◽  
Eu Law ◽  
The European Union ◽  
National Courts ◽  
Ne Bis In Idem ◽  
Full Effect ◽  
Article 50

The article undertakes the current and important issue of balancing between the Member States’ obligations to ensure effectiveness of EU law and to respect fundamental rights, taking as an example the ne bis in idem principle, enshrined in Article 50 of the Charter of the Fundamental Rights of the European Union. The recent case law of the CJEU in Di Puma, Garlsson and others and Menci is analysed. These rulings exemplify the growing importance of the issue of how to balance the two obligations in a situation when the repression undertaken by a Member State in order to ensure the full effect of EU law may infringe a fundamental right provided for in the Charter. The main objective is thus to formulate proposals on how to balance these interests, as well as to define their consequences for national courts.

scholarly journals Online legal platforms – the beginning of the 4.0 law practice?

2019 ◽  
Vol 5 (2) ◽  
pp. 43-62
Author(s):  
Pedro Petiz Viana
Keyword(s):  
Competition Law ◽  
Case Law ◽  
Legal Framework ◽  
Regulatory Framework ◽  
Legal Services ◽  
Competition Authority ◽  
Legislative Reform ◽  
Online Platforms ◽  
Bar Association ◽  
Recent Project

The 4.0 revolution has reached the legal services industry. New online platforms are emerging to connect clients and lawyers, while also providing new and innovative legal services. Nonetheless, several questions arise regarding these new businesses: How do they fare under the Portuguese regulatory framework? Is there a need for legislative reform? And how are Bar Associations dealing with this new reality? In order to answer these questions, we analyze the characteristics of online legal platforms and their compliance with the statutes of the Portuguese Bar Association and National Law. Secondly, we examine the prohibition by the Portuguese Bar Association of online intermediation platforms, taking into consideration the ECJ’s case law related to professional orders and the EU’s competition law. Thirdly, we study the national legal framework of legal services in light of OECD’s Competition Assessment Review of Portugal. Lastly, we present the recent project by the Portuguese Competition Authority and note its similarities with the ECJ’s case law.

The Fundamental Rights Acquis: An ‘Integrative Approach’ to Interpretation—The ‘Aggregate Standards’ Model

2017 ◽  
Author(s):  
Violeta Moreno-Lax
Keyword(s):  
Human Rights ◽  
Legal System ◽  
Case Law ◽  
Legal Order ◽  
Fundamental Rights ◽  
Integrative Approach ◽  
Eu Law ◽  
International Obligations ◽  
Integrated Or ◽  
The Eu

This chapter will catalogue the multiple ways in which human rights penetrate the EU legal order and the different functions they play qua (internalised/’Europeanised’) ‘fundamental rights’, both as standards of validity and as means of interpretation of EU acts. The main preoccupation is to identify the sources of fundamental rights obligations, retrace their origin and overall significance within the EU legal system, and determine the rules relevant to their interpretation and application. The ‘integrated’ or ‘cumulative standards’ approach will be developed against this background. According to this method, the precise level of protection that Charter rights afford will be determined by reference to Articles 52 and 53 thereof, taking the ECHR, other ‘international obligations common to the Member States’ (Recital 5 CFR), and any relevant ‘autonomous requirements’ of EU law into account. Drawing on post-Lisbon case law, it will be shown how any other approach fails to ensure compliance with all relevant requirements simultaneously. This technique will inform assessments in chapters of Part II.

scholarly journals Protecting Consumer Protection Values in the Fourth Industrial Revolution

2019 ◽  
Vol 43 (1) ◽  
pp. 145-175 ◽  
Author(s):  
G. Howells
Keyword(s):  
Consumer Protection ◽  
Legal System ◽  
Critical Review ◽  
Industrial Revolution ◽  
New Products ◽  
Legal Framework ◽  
Fourth Industrial Revolution ◽  
Industrial Age ◽  
The Law

AbstractWe are entering into an era of new technological possibilities. Many benefits will be derived for consumers from the development of data and computer-driven innovation. We will have new products and services and new ways of making and supplying goods and services.Without wanting to inhibit innovation, this article calls for the legal system to remain committed to an ideology and legal framework that supports consumer protection. It will counsel against assuming that the law should give way unduly to the technology agenda, whilst accepting that adaptations should be made and also that there should be a critical review of whether traditional forms of regulation are needed in the Fourth Industrial Age.

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