Week 1
Question 2
a Explain why the introduction of the Disciplinary Chamber that gives it powers to
directly affect the status of judges and the exercise of their judicial activities, could be a
jeopardy to the checks and balances of the trias politica?
The judicial should monitor the implementation of laws and regulations and arbitrates
in conflicts between powers. Therefore, the judges should be independent and
impartial. Which cannot be guaranteed if the disciplinary chamber of the supreme
court could take decisions , which have a direct impact on the Polish judges.
Judges are uncertain about which legislation should be applied because their
legislation is based also on monism approach.
It will have a big impact on the independence of the jury. The executive power will
have the ability to control and put pressure ont he legislative power. So the balance of
the Trias Politica becomes uneven.
b Why does the European Union have the right to question any domestic law that
Poland declares to organize their own judicial system, since it concerns only the
accountability of the Polish judges? Is this not a matter of sovereignty of the Polish
government?
Poland is a member of the EU and has to meet some requirements set by the EU in
regard to a stable democracy and democratic institutions. If Poland does not meet
these conditions when organizing their own judicial system for example, the EU has
the right to question this.
c Would it make any difference if Poland would have a monistic or a dualistic system?
Explain the difference
Monistic system- law dictated by the EU (which Poland is part of) is automatically
put into practice
Dualistic - law rst needs to be translated into the country's own laws
If Poland would have a Monistic system, it would mean that the country has to follow
the EU advice and dissipate the Chamber, thus ensuring that the judiciary power
operated independently and impartially.
d Explain how the checks and balances is applied in a purest form of trias politica.
Under his model, the political authority of the state is divided into legislative,
executive and judicial powers.
, E.g. The legislative branch makes laws, but the President in the executivebranch can
veto those laws with a Presidential Veto. The legislative branch makes laws, but the
judicial branch can declare those laws unconstitutional.
Legislation attributes power to executive and judiciary parts of the triad and judiciary
revies the acts of the executive part
Question 3
a The underneath Judgement of the Court is a preliminary ruling. Under point 28 very
important principles of EU law are mentioned. Which principles are mentioned here?
The principles of legal certainty. Protection of legitimate expectations.
b The principle of legal certainty is a function of law. What does this principle entail in
general?
Legal certainty is the expression of legality in a given society. The law must provide
those subject to it with the ability to regulate their conduct. Every citizen and the
relevant government should be able to know the legal consequences of their actions
beforehand, not afterwards.
Legal certainty- the expression of legality in a given society every citizen and the
relevant government should be able to know the legal consequences of their actions
beforehand, law should be predictable.
Laws and decisions must be defnite and clear, court decisions must be considered as
binding and retro activity of laws and decisions must be limited. Law should be , to a
certain extent, predictable.
c Do the principles of EU law only need to be observed by the EU institutions? Please
read the case to end the answer
No, also by the national court
The principles of legal certainty and of the protection of legitimate expectations must
be observed not only by the EU institutions, but also by Member States in the exercise
of the powers conferred on them under EU directives.
Point 29 states that the principles must not only be observed by the EU institutions,
but also by member states in the exercise of the powers conferred on them under the
EU directives.
d The concept of legal certainty is recognised as one of the general principles of EU law
by the European Court of Justice since the 1960's. What does the principle of legal
certainty mean in EU law?
, Legal certainty requires that all laws must be suficiently precise to allow the person to
agree in a reasonable degree of circumstances, consequences which a given action
may entail. Every citizen and the relevant government should be able to know the
legal consequences of their actions beforehand, not afterwards.
All people should be familiar with EU law and know the consequences of certain
actions.
e The Court in this case formulated that something needs to be determined in order to
give a judgement on the question if the principle of legal certainty was correctly upheld.
What is it that needed to be determined?
It is necessary to determine whether the conduct of an administrative authority has
given rise to a reasonable expectation in the mind of a prudent and well-informed
trader and, if it did, the legitimate nature of that expectation must then be established.
A reasonable expectation that that tax would not be levied on such transactions
Question 4
a What are the two approaches in legal philosophy traditionally distinguished regarding
the origin of law?
Natural Law-laws emerge from nature
Positivist law- law comes forth from codification
1) natural law approach assumes that laws emerge from nature; 2) positivist law
approach assumes that law comes from codification
Natural Law - law comes from nature and doesn't need to be codifed for it to be
applied, as all humans have the same rights and claims to the same laws
Legal Positivism - law only exists once its codifed
b What is the core principle of natural law?
It doesn't need to be codified to exist -laws emerge from nature
The core principle of Natural Law is the principle of morality and therefore close
connection exists between the law and morality.
Natural law says that laws emerge from nature. This means that a law does not need
to be codi ed (written down) rst to be a law, but already exists regardless of its
appearances.
Question 2
a Explain why the introduction of the Disciplinary Chamber that gives it powers to
directly affect the status of judges and the exercise of their judicial activities, could be a
jeopardy to the checks and balances of the trias politica?
The judicial should monitor the implementation of laws and regulations and arbitrates
in conflicts between powers. Therefore, the judges should be independent and
impartial. Which cannot be guaranteed if the disciplinary chamber of the supreme
court could take decisions , which have a direct impact on the Polish judges.
Judges are uncertain about which legislation should be applied because their
legislation is based also on monism approach.
It will have a big impact on the independence of the jury. The executive power will
have the ability to control and put pressure ont he legislative power. So the balance of
the Trias Politica becomes uneven.
b Why does the European Union have the right to question any domestic law that
Poland declares to organize their own judicial system, since it concerns only the
accountability of the Polish judges? Is this not a matter of sovereignty of the Polish
government?
Poland is a member of the EU and has to meet some requirements set by the EU in
regard to a stable democracy and democratic institutions. If Poland does not meet
these conditions when organizing their own judicial system for example, the EU has
the right to question this.
c Would it make any difference if Poland would have a monistic or a dualistic system?
Explain the difference
Monistic system- law dictated by the EU (which Poland is part of) is automatically
put into practice
Dualistic - law rst needs to be translated into the country's own laws
If Poland would have a Monistic system, it would mean that the country has to follow
the EU advice and dissipate the Chamber, thus ensuring that the judiciary power
operated independently and impartially.
d Explain how the checks and balances is applied in a purest form of trias politica.
Under his model, the political authority of the state is divided into legislative,
executive and judicial powers.
, E.g. The legislative branch makes laws, but the President in the executivebranch can
veto those laws with a Presidential Veto. The legislative branch makes laws, but the
judicial branch can declare those laws unconstitutional.
Legislation attributes power to executive and judiciary parts of the triad and judiciary
revies the acts of the executive part
Question 3
a The underneath Judgement of the Court is a preliminary ruling. Under point 28 very
important principles of EU law are mentioned. Which principles are mentioned here?
The principles of legal certainty. Protection of legitimate expectations.
b The principle of legal certainty is a function of law. What does this principle entail in
general?
Legal certainty is the expression of legality in a given society. The law must provide
those subject to it with the ability to regulate their conduct. Every citizen and the
relevant government should be able to know the legal consequences of their actions
beforehand, not afterwards.
Legal certainty- the expression of legality in a given society every citizen and the
relevant government should be able to know the legal consequences of their actions
beforehand, law should be predictable.
Laws and decisions must be defnite and clear, court decisions must be considered as
binding and retro activity of laws and decisions must be limited. Law should be , to a
certain extent, predictable.
c Do the principles of EU law only need to be observed by the EU institutions? Please
read the case to end the answer
No, also by the national court
The principles of legal certainty and of the protection of legitimate expectations must
be observed not only by the EU institutions, but also by Member States in the exercise
of the powers conferred on them under EU directives.
Point 29 states that the principles must not only be observed by the EU institutions,
but also by member states in the exercise of the powers conferred on them under the
EU directives.
d The concept of legal certainty is recognised as one of the general principles of EU law
by the European Court of Justice since the 1960's. What does the principle of legal
certainty mean in EU law?
, Legal certainty requires that all laws must be suficiently precise to allow the person to
agree in a reasonable degree of circumstances, consequences which a given action
may entail. Every citizen and the relevant government should be able to know the
legal consequences of their actions beforehand, not afterwards.
All people should be familiar with EU law and know the consequences of certain
actions.
e The Court in this case formulated that something needs to be determined in order to
give a judgement on the question if the principle of legal certainty was correctly upheld.
What is it that needed to be determined?
It is necessary to determine whether the conduct of an administrative authority has
given rise to a reasonable expectation in the mind of a prudent and well-informed
trader and, if it did, the legitimate nature of that expectation must then be established.
A reasonable expectation that that tax would not be levied on such transactions
Question 4
a What are the two approaches in legal philosophy traditionally distinguished regarding
the origin of law?
Natural Law-laws emerge from nature
Positivist law- law comes forth from codification
1) natural law approach assumes that laws emerge from nature; 2) positivist law
approach assumes that law comes from codification
Natural Law - law comes from nature and doesn't need to be codifed for it to be
applied, as all humans have the same rights and claims to the same laws
Legal Positivism - law only exists once its codifed
b What is the core principle of natural law?
It doesn't need to be codified to exist -laws emerge from nature
The core principle of Natural Law is the principle of morality and therefore close
connection exists between the law and morality.
Natural law says that laws emerge from nature. This means that a law does not need
to be codi ed (written down) rst to be a law, but already exists regardless of its
appearances.
