The Sejm Review Przegląd Sejmowy Third Special Edition 2007
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THE SEJM REVIEW PRZEGLĄD SEJMOWY THIRD SPECIAL EDITION 2007 THE SEJM PUBLISHING OFFICE EDITORIAL2 COMMITTEE Editor-in-Chief Professor MIROSŁAW GRANAT Cardinal Stefan Wyszyński University, Warsaw Deputy Editor-in-Chief Professor PAWEŁ SARNECKI Jagiellonian University, Cracow Doctor MICHAŁ KRÓLIKOWSKI Director, Bureau of Research, The Chancellery of the Sejm Scientifi c Secretary Professor ANDRZEJ SZMYT University of Gdańsk Editorial Board Professor LESZEK GARLICKI University of Warsaw JERZY GÓRAL Chief Chancellery of the President of the Supreme Administrative Court (NSA) Professor MARCIN KUDEJ Silesian University, Katowice Doctor WOJCIECH KULISIEWICZ Director, Sejm Library, The Chancellery of the Sejm Professor ZBIGNIEW WITKOWSKI University of Nicolaus Copernicus, Toruń Professor KRZYSZTOF WÓJTOWICZ University of Wrocław Professor MAREK ZUBIK University of Warsaw Editors: URSZULA NAŁĘCZ-RAJCA, PIOTR ZIELIŃSKI Translated by TADEUSZ Z. WOLAŃSKI Veryfi ed by ALBERT POL, MICHAŁ KRÓLIKOWSKI © Copyright by Kancelaria Sejmu Warszawa 2007 ISSN 1230-5502 KANCELARIA SEJMU Przygotowanie, druk i oprawa: Wydawnictwo Sejmowe Wydanie pierwsze Adress: „Przegląd Sejmowy”, ul. Zagórna 3, 00-441 Warszawa, tel. 0-22 694-13-00 e-mail: [email protected] http://www.sejm.gov.pl/wydarzenia/przeglad/przeglad.htm TABLE OF CONTENTS Introduction (Mirosław Granat) . 5 Paweł Sarnecki, Professor, Jagiellonian University, Cracow Cooperation of the Council of Ministers with the Sejm and Senate in the exer- cising by Poland of European Union membership rights . 7 Marian Grzybowski, Professor, Jagiellonian University, Cracow The Council of Ministers and government administration and Poland’s mem- bership of the European Union (selected constitutional problems) . 27 Anna Więckowska, M.A., Silesian University, Katowice The right of veto of the President of the Republic of Poland in political prac- tice after the coming into force of the new constitution . 39 Jerzy Ciapała, Doctor, University of Szczecin The issue of the legal responsibility of the President of the Republic of Poland 61 Roman Hauser, Professor, Adam Mickiewicz University in Poznań Andrzej Kabat, Professor, University of Warmia and Mazury in Olsztyn Questions of law as a procedure for the review of the constitutionality of law 83 Krzysztof Wojtyczek, Doctor, Jagiellonian University, Cracow The application of the accusatorial procedure to the review of legal norms before the Constitutional Tribunal in Poland . 105 Monika Haczkowska, M.A., University of Wrocław Legislative lawlessness as the manifestation of harm in the meaning of artic- le 77 paragraph 1 of the Constitution of the Republic of Poland . 123 Andrzej K. Piasecki, Doctor habilitated, Pedagogical University of Cracow Direct democracy in Poland after 1989 . 145 A review of the principal reasons for selected judicial decisions issued by the Constitutional Tribunal in the years 1997–2006 (selected and preparaton Mar- cin Wiącek) . 165 Annex. Alphabetical list (by author’s name) of English summaries of articles contained in Sejm Review (“Przegląd Sejmowy”) from beginning of 2003 until 3rd No. 2007 . 201 4 Spis treści INTRODUCTION “Przegląd Sejmowy” [Sejm Review] is a periodical published by the Chancellery of the Sejm of the Republic of Poland. The decision on its publication was taken at the end of 1992 by the then Chief of the Chancellery of the Sejm Ryszard Stemplowski. Since 1993 “Przegląd Sejmowy” has been published as a quarterly, and since 1996 as a bimonthly. Since then, 80 issues have been published. The regular appearance of “Przegląd Sejmowy” and its valuable substantive content is owed to many persons: the authorities of the Sejm and its administration, the editorial board, editors and, above all, authors who have submitted to us their texts and studies. From the outset, “Przegląd Sejmowy” has been, and still is, a scientifi c journal mostly dedicated to constitutional law and, in particular, the issues of Polish parlia- mentary law. The distinctive feature or the articles published in “Przegląd Sejmowy” is their orientation to the practical functioning of parliament. A relatively big space is given to the issues of bicameral nature of parliament, legislative procedure, lawmaking process, the status of a Deputy and a Senator, as well as relations between the Sejm and the Senate and other State organs. For many years, the problems of judicial review of constitutionality of laws are permanently present on the pages of “Przegląd Sejmowy”. This refl ects the growing role of the Constitutional Tribunal in the system of law of the Republic of Poland. And, fi nally, we readily publish articles on human rights and freedoms. Its our aim that each issue of our journal contains an article devoted to par- liamentary law or a system of government of a different state. In the recent years, we often presented texts relating to Poland’s membership of the European Union. 6 The Sejm Review Third Special Issue / 2007 From the beginning of its publication, the composition of “Przegląd Sejmowy”, is — as a principle — permanent. Of the highest signifi cance is the fi rst part contain- ing studies and articles. The second section is designed for publication of opinions connected with current work of parliament, as well as glosses analysing the most important judgments of the Constitutional Tribunal, the Supreme Court or other ju- dicial organs. That section also contains reviews and notes. The third section is most- ly of a documentary nature. It contains source material for studying Polish parlia- mentarism, as well as summaries of judicial decisions issued by constitutional courts in other countries. For many years, all articles published in “Przegląd Sejmowy” are available at the web pages of the Chancellery of the Sejm of the Republic of Poland <www.sejm.gov.pl/ wydarzenia/przeglad/przeglad.htm>. We invite our readers to the use this form of ac- cess to our journal. We also publish, even if not regularly, an English edition of “Przegląd Sejmowy”. It contains a selection of the most interesting articles and studies. Until now, two issues were published — in 1999 and 2002. The fi rst one was dedicated to a newly adopted Constitution of the Republic of Poland of 1997, the se- cond addressed the most important matters of linked to the practical application of Poland’s Constitution of 1997. This issue presents a selection of articles published in the years 2002–2007 and description of most interesting, in our opinion, judicial deci- sions of the Constitutional Tribunal, considered from the point of view of constitu- tional law. Editor-in-Chief Mirosław Granat 7 PAWEŁ SARNECKI PROFESSOR, JAGIELLONIAN UNIVERSITY, CRACOW COOPERATION OF THE COUNCIL OF MINISTERS WITH THE SEJM AND SENATE IN THE EXERCISING BY POLAND OF EUROPEAN UNION MEMBERSHIP RIGHTS* 1. The response of Member States to the problem of “democratic defi cit” in the EU is, beside the broadening of the participation of the European Parliament (herein- after EP) in the decision-making processes of the Union, also the reconstruction in this scope of the powers of national parliaments. Beside the traditional powers, con- sisting in their participation in the procedure of the ratifi cation by Member States of the international agreements shaping the Union, in particular countries there are also specifi c legal provisions concerning the competence of parliaments towards national executives (governments) infl uencing the conduct of the latter within the organs of the EU (in the European Council of and in the Council of the European Union). In different countries they exist at various levels: constitutional, statutory or rule provi- sions. It is essential to emphasise that this process is also stimulated by decisions made by the authorities of the EU themselves who are not indifferent to the way in which particular states represented in the organs of the EU arrive at their substantive positions. The fi rst step made by the EU in this direction was the declaration attached to the Maastricht Treaty and the next was the special protocol attached to the Amsterdam Treaty. A reference in this respect is also included in the “Declaration on * This article was published in „Przegląd Sejmowy” No. 5(64)/2004. 8 The Sejm Review Third Special Issue / 2007 the future of the Union” accepted in Nice. Finally, a special “Protocol on the role of national parliaments in the European Union” was attached to the Constitutional Treaty of 2004. These successive international agreements witness an unequivocal trend towards extending the powers of parliaments in particular countries. However, no common position of all Member States have been reached and, within the frame- work of the aforementioned agreements, the solutions of particular states differ sig- nifi cantly in specifying the national parliaments’ scope of the infl uence on the posi- tions adopted by the representatives of these states in EU organs. 2. The above-mentioned European regulations and, subsequently, legal solutions adopted in particular countries with reference to them (and, sometimes, even preced- ing them) and also the general analysis of various aspects of the regulation of this is- sue in our country, conducted against the background of constitutional regulations and against the background of the regulations of EU law, have already become the subject of numerous studies, including those of a theoretical nature, and detailed ex- pert opinions. Elaborations on these European regulations (in the form of synthesis) and also concrete opinions can be found, for