INTRODUCTION

When analysing the instruments and documents that potentially contain rules on accepting international humanitarian assistance in response to disasters in Chapter II, it was explored how human rights standards could play a role in disaster response. At that point the question has been addressed to what extent human rights standards in disaster settings have correlative obligations for states eventually resulting in an obligation to accept humanitarian assistance if the state is unable to realize the human rights standards. In general, the standard-setting function of human rights law can help to concretize obligations for state parties immediately after a disaster, but in particular the ICESCR appears to give direction on accepting humanitarian assistance. The ICESCR contains a provision on the general obligations for state parties that could help to answer the question at what point an affected state is under an obligation to accept. Article 2(1) of the ICESCR tells state parties to come to the full realization of the rights ‘individually and through international assistance and cooperation’. In addition, each state party must use ‘the maximum of its available resources’. These general obligations must be read in conjunction with substantive rights, of which the ICESCR contains a number highly relevant in disaster settings, like the rights to housing, food, water and health.

With the help of the ICESCR, it will be considered whether the legal framework as identified in the previous Chapters can be foreseen of more concrete standards. Possibly, the inclusion of the ICESCR will result in a clearer delineation of the primary role of the affected state, indicating when the affected state should move on to triggering international humanitarian assistance. Moreover, the obligations stemming from the ICESCR may be useful for determining when the point is reached at which the affected state must give its consent to international assistance, for example by giving standards to determine when the national capacity is exceeded, or by giving concrete obligations that can be violated by refusing to accept assistance. Accordingly, the ICESCR will be used to formulate a more complete answer to the main research question.

INTRODUCTION

Various attempts have been made to create more clarity in the rules and principles that apply in disaster situations. However, the international legal developments of the last century

Although there is no coherent system, this Chapter will look into the rules and principles that can be derived from legal sources. These sources consist of general international law that is relevant for the topic of humanitarian assistance as disaster response, and of sources that were developed especially for this topic.

Before going into the legal framework, a number of developments will be discussed that proved determining factors for the way international humanitarian assistance is perceived today. Over the centuries, different views have existed on what the role of international humanitarian assistance should be when a natural disaster struck. A number of these views were put into practice in setting up special organisations or attempts at codifying principles of disaster response. These developments will illustrate what have been successful or – in most cases – less successful approaches to international disaster response and humanitarian assistance. Moreover, keeping the past attempts in mind, it is possible to explain where certain rules and principles come from and to understand why certain developments and attempts at codification will (potentially) be successful or likely to fail.

THE FIELD OF INTERNATIONAL DISASTER RESPONSE: BACKGROUND AND MAIN ACTORS

Introduction

Until roughly the end of the nineteenth Century and the beginning of the twentieth Century, the ideas on international disaster response, and more specifically the delivery of international humanitarian relief, developed along a more or less singular line of thought.

INTRODUCTION

Ever since the inception of the EU, respect for democracy, the rule of law and human rights has constituted a corner stone of the European integration project. Indeed, the founding EU member states contemplated political and economic cooperation based on their mutual respect for the principle of liberal democracy. The importance of liberal democracy can clearly be seen in the early case law of the CJEU, such as the seminal judgment Internationale Handelsgesellschaft proves. With the entry into force of the Treaty of Lisbon, respect for democracy and the rule of law gained a newly elevated position within the Union's legal framework. In particular, the introduction of Article 2 TEU reaffirms the EU's commitment towards its foundational values, by stating that, inter alia, it is founded on the values of democracy, human rights and the rule of law and that these constitute a common heritage of the member states. Article 49 TEU finally also stipulates that “any European state which respects the values referred to in Article 2” can join the EU, and in so doing renders democratic governance and respect for human rights a sine qua non condition and a minimum common denominator for the member states.

However, despite the EU's renewed commitment towards its foundational values, in recent years, more and more worrying undemocratic and even authoritarian tendencies have been noticed within the European member states. While 2014 marked the 10-year anniversary of the Eastern enlargement, there is little reason to celebrate as democracy is struggling in several countries that joined the EU during the last decade. Ruling leaders have tried to centralize their executive power and undermine the rule of law by breaking the constraints of the checks and balances, thereby affecting the quality and stability of the democratic regimes. Amongst them, Hungary has led the trend. Since the 2010 election of Viktor Orban and his right wing conservative party Fidesz, Hungary has been backsliding to authoritarianism. The two thirds majority in the Hungarian parliament has empowered Fidesz to adopt legislation without the need for political compromise. Various amendments to the constitution have curbed Hungary's achievements of liberal democracy. This is evident by the fact that – just to name a few – the freedom of religion, the freedom of the media, and the powers of the judiciary and the Central Bank have been restricted.

Hungary is nonetheless not the only country backsliding to authoritarianism.

INTRODUCTION

The Court of Justice of the European Union (CJEU) issued two landmark decisions in April and May 2014, effectively applying Article 7 – the right to private life and Article 8 – the right to personal data protection, provided for in the Charter of Fundamental Rights of the European Union (the Charter), in order to protect the fundamental rights of the person in two different dimensions of the Surveillance Society. The first dimension opposes the individual and the state; the second one opposes the individual and private bodies. By doing so, the Court established itself as a prominent actor in the protection of fundamental rights in the digital age, not only in the EU, but also on the global stage.

In the first decision, Digital Rights Ireland,2 the Court annulled Directive 2006/24/EC3 – the “Data Retention Directive”, in its entirety, arguing that its provisions run counter to both Article 7 and Article 8 of the Charter. The Data Retention Directive enshrined an obligation for telecom service providers to retain traffic data of all their clients for a period of minimum 6 months and maximum 2 years, depending on the national laws transposing the directive. While the Court found that this operation does not touch on the essence of the right to private life and the right to personal data protection, and it genuinely satisfies an objective of general interest (fi ght against serious crime), it is not proportionate to the purposes it pursues. Among other things, the Court observed that the directive “entails an interference with the fundamental rights of practically the entire European population” and took into account the “general absence of limits” from its provisions.

In the second decision, Google v. Spain, the Court interpreted the provisions of Directive 95/46/EC – the “Data Protection Directive”, and Article 8 of the Charter in the sense that EU data protection law is applicable ratione personae to United States-based company Google Inc., due to the “inextricably link” with its subsidiary Google Spain, and to the fact that it meets the criteria to be considered a “data controller”.

INTRODUCTION

Czesław Miś (Czesław Teddy Bear when you translate his last name into English) is a Polish doctor of paediatrics who works at a state hospital in Nowy Sącz, a town located close to the city of Kraków in Poland.

The story of his court proceedings serves as an excellent example of and reflection on the practical application of two fundamental principles of the European Union law: supremacy and direct effect in the cases heard by the national common courts. The story should be known not only by lawyers and legal theorists. It should and has been also heard generally by the EU citizens. These citizens sometimes still believe that EU law made “out there in Brussels” is law with little or even no concrete, meaningful rights for individuals such as Kowalski in Poland or Sanchez in Spain. Moreover, the same citizens believe that Kowalski and Sanchez have limited or no chances in winning their case while battling for those limited rights in their national courts.

This paper will introduce the case, analyse the legal grounds for Czesław Miś’ claims and most of all, focus on the arguments and reasoning of the Polish common courts hearing the case with specific dynamics of understanding and recognition of the EU law principles as explained by the European Court of Justice (ECJ). It should serve as a comprehensive story, useful for full explanation of the principles working or not working in practice of domestic courts.

THE PRINCIPLE OF SUPREMACY, THE PRINCIPLE OF DIRECT EFFECT AND THE PRINCIPLE OF INDIRECT EFFECT OF EU LAW

The principle of supremacy (primacy) and the principle of direct effect of EU law have been developed by the European Court of Justice as they are not expressis verbis included in the texts of the two main EU Treaties, that is the Treaty on the Functioning of the European Union and the Treaty on European Union. Both principles have been extensively analysed in the literature, therefore comments presented below aim to shortly summarize their significance in the ongoing, dynamic relationship between the unique legal order of the European Union and different internal legal orders of the Union's Member States.

The process of European integration is “evolving and the form it fi nally takes still cannot be predicted”. The European judiciary – i.e. the Court of Justice of the European Union (CJEU), the European Court of Human Rights (ECtHR) and national courts interpreting and applying European law sensu largo – have shaped this process actively, alongside the Founding Fathers, European nations, European states and their citizens. The involvement of judiciary raises its own wide range of questions concerning the very nature of democracy. Much ink has been already spilled over issues such as democratic legitimacy, subsidiarity and accountability, the rule of law or judicial activism. But it was the recently celebrated 50th anniversaries of Van Gend en Loos (1963) and Costa v ENEL (1964) judgements that gave us further impetus to ponder about the place of the European judiciary in the democratic life in the Old Continent and their role in the process of its integration.

Therefore, under the auspices of the Centre for Direct Democracy Studies (CDDS) at the Faculty of Law, University of Białystok, in March 2014 we issued a call for papers and seventeen scholars from across Europe, predominantly young researchers, have kindly responded thereto and shared their views on the European judiciary as a challenge for democracy.

The present book constitutes the third fruit of our academic interest in the questions posed by European integration and democracy. In 2012 the Centre established a dedicated, peer-reviewed book series that produced, up-to-date, two volumes. It is edifying that from this volume onwards, the reputable Belgian-based international publishing house Intersentia has decided to publish this series.

The various contributions to the present volume have been split into two parts. The first provides ten chapters on the judicial systems of the European Union (EU), discussing, inter alia, recognition of democratic principles in the case law of the CJEU, contribution thereof to the democratisation of the Union and reception of EU law in the Member States. The second part discusses the judicial means to protect human rights in Europe, consisting of three chapters devoted to the promise of advisory opinions of ECtHR as well as to democratic standards for voting and for fair trial.

INTRODUCTION

Individuals conceptualize the term democracy in a variety of ways. While in the 19th century democracy was associated with a direct form of government in Athenian style, a major breakthrough with the development of nation-states and the prevalence of representation was the foundation for the development of representative democracy.

Representation means transformation of the individuals’ will to the will of the political institutions. Thus, in a representative democracy, public authorities should have democratic legitimacy following citizens’ choice. This statement is a starting point for the reflection in terms of democratic legitimacy, reflection transposed on the ground of the integration processes in Europe. As a result of the creation of the European Community and the European Union, there has been a further relocation of the part of public power. Therefore, public powers exercised by the EU institutions must have democratic legitimacy.

There is a consent that mainstream theories of state democratization are illequipped to explain EU democratization as they are bonded to the nation-state context. The issue of democratic deficit in the EC yielded a vast, heterogeneous literature, notably after the publication of the Tindemans report in 1975, in which, for the very first time, the distance between citizens and the institutions of the EC was acknowledged. Thus, a wide debate on political reforms so as to achieve a more democratic EU has been started, bringing numerous potential solutions to this problem that vary in range and scope. In the debate on democratic deficit in the EU, it is argued that the EU policy is dominated by unelected bodies and directly elected EP plays a secondary role. As a result, the claims on greater power of parliamentary assembly arose such as – for instance – a proposal that the EP should have an independent power of legislative initiative. Majonefi nds such an argumentation as based on the analogy with national institutions. Moravcsik adds that political decision-making should not always be majoritarian and this could be the case in Europe. Still, the Community's 50-year trajectory “from an international organization with very limited traits of democracy to one that has the major institutional trappings of a democratic polity” is marked by the enhancement of the European Parliament's prerogatives.

INTRODUCTION

One of the principal constitutional functions of the European Court of Justice (ECJ) is to secure legitimacy of the European Union (EU) system of governance by protecting the fundamental values on which this system is said to rest. This role of the ECJ – as a guardian of democracy, fundamental rights and the rule of law – is complicated by the multi-layered nature of the EU's sources of legal authority: the EU institutions and the law-making bodies of Member States (MSs), and by the heavy reliance on the co-operation of National Courts (NCs) in building up and maintaining the EU's legal system. I focus on providing an overview of selected problems that are directly related to the ECJ's legitimising role, and I will do so from the perspective of the ECJ's constitutional politics.

First, I will consider whether the alleged prioritising – by the ECJ – of the principles of integrity of the EU legal system and economic regulations over constitutional values – such as fundamental rights and democracy – amounts to an ideological project that undermines the legitimacy of the EU law. I will focus on instances where the ECJ failed to recognise concerns of the NCs related to the standard of protection of these values in the EU law for the sake of protecting its own authority and the uniformity of the EU law. Historically, these concerns were most famously identified in the so-called ‘supremacy’ challenges, but there was also a string of other cases where the protection of market freedoms clashed with fundamental rights and other constitutional principles. Th is period of the ECJ jurisprudence took a more rights-friendly turn in cases such as Omega and Schmidberger. The more recent NCs challenges yet again put the ECJ under pressure, this time because of its reluctance to recognise the higher standards of fundamental rights protection related to criminal trials in national constitutions over those existing in the EU law. The string of the European Arrest Warrant (EAW) cases seems to suggest that the ECJ yet again entered a path of prioritising the supremacy of the EU law over substantive constitutional objectives.

INTRODUCTION

Across several European legal systems we can see an ongoing struggle to develop both efficient and legitimate way to promote and evaluate new judges. This legal procedure is to ensure that the staff needs of the judiciary system are satisfied, but at the same time it seeks the opportunity to select those of the candidates for a full nominated judge who – during acting as a temporary judge – failed to prove their practical adjudicating skills. In order to carry out this task, different systems established different institutions, i.e. a temporary judge, a lay judge, an assistant judge or an assessor.

Each of them differs slightly from the other, but all of them were argued not to meet the standards of a fair trial put forward by the European Convention on Human Rights.

THE POSITION OF AN ASSESSOR IN POLISH COMMON COURTS

With the idea of reintroducing the position of a temporary judge in the Polish judicial system comes the question of the constitutionality of this legal construct and its compliance with the European concept of a fair trial laid down in the European Convention on Human Rights, especially its Article 6.

Knowing that a temporary judge position – as proposed – is in fact a fixed resurrection of a previous office – the general court assessor, one has to keep in mind the prohibitions put forward both by the European and the domestic judicial institutions.

The institution of the assessor (assistant judge) in general courts has been revoked from the Polish legal system on the basis of the Polish Constitutional Tribunal judgment of 24 October 2007, as it was found not to be in compliance with the standards of a fair trial upheld by the Polish Constitution.

Assessors were candidates for the office of district court judge who, under the 2001 Law on the Organisation of Common Courts, had to work for a minimum of three years as an assessor in a district court on completion of their training and examinations.

The decision of the Constitutional Tribunal removed the assessors from general courts, leaving the same office in administrative courts. Although the legal practice in administrative courts has also changed, the legal position of an assessor in these special courts is more independent then the one the assessors in general courts have ever had.

INTRODUCTION

What is an institutional balance in the European Union (EU) law? An idea, a proposal, a mental shortcut or an empty formula? There are many controversies referring to its nature. They are connected, for example, with the way of its introduction onto the plane of the European Union law. It has not been directly expressed in any of the Treaty provisions. Simultaneously, it is certain sets or groups of these provisions read in a systemic way, that allowed the Court of Justice of the European Union (the Court, CJEU) to formulate and embed it in the EU legal order. This is a quite typical operation in reference to the so-called general principles of law. Institutional balance, although not without controversies, seems to fit this category.

Since institutional balance has not been directly expressed in any Treaty provisions, its embedding in the European Union legal order had to be based on the Court's creative interpretation of the Treaties. It is one of the cases where the Court seems to exceed the framework of its literally understood function and competence determined by the Treaties. It is one of the examples of the Court's active affecting the development of the whole of EU law.

However, the question arises if, in the context of institutional balance, the Court “creating” a certain general principle contributed to strengthening the democratic nature of the Union as an exceptional integration structure. Has the Court's “law-making” activism contributed in this case to consolidation of the democratic foundations of the Union?

In order to answer these questions it is, firstly, necessary to find out whether the introduction of institutional balance as a general principle into the EU legal system required the Court's real adjudicating activity, an activity close to legislation. Secondly, it is important to establish the content of the principle of institutional balance – prohibitions and prescripts it generates and to demonstrate in what way the maintenance of institutional balance affects or may affect the state of democracy within the European Union – what is the link between this principle and democratic values.

INTRODUCTION

The principle of supremacy constitutes the core and essence not only of EU law and legal order but also of the goal of European integration itself. Without the acceptance of supremacy of EU law over the laws of the Member States, it is impossible to fulfil the goals specified in the Treaties.

The principle however is not explicitly stated in the Treaties. It was “taken” from the spirit of the Treaty and clearly established by the early judgments of the European Court of Justice (Costa v. ENEL, van Gend en Loos). Understanding of the supremacy principle (its origin, scope and effects) varies throughout the European Union. Constitutional courts/tribunals in particular Member States have been active in a dynamic interpretation of supremacy. The debate started with famous Solange case in Germany and continued through other countries, including new members joining the Union. The Polish Constitutional Tribunal issued three key judgments concerning the principle. Two of them came close in time but brought somehow contrary conclusions.

The first judgment of 27 April 2005 addressed the question of constitutionality of the European Arrest Warrant (EAW) regulations implemented in the Polish Code of Criminal Procedure in the light of Article 55(1) of the Constitution of the Republic of Poland. The Tribunal concluded that those implementing regulations were contrary to the Constitution which, as a rule, did not allow for the surrender of Polish citizens. As a result, the first amendment of the Polish Constitution was proceeded to satisfy the aims of the EU decision and as such, it confirmed the supremacy of the EU law over Polish law, including the Polish Constitution.

A couple of weeks later, on 11 May 2005, the Tribunal issued its judgment concerning the constitutionality of the Accession Treaty. Although the Tribunal did not find any grounds for the inconformity of the Accession Treaty to the Polish Constitution, it took another chance to widely explain the understanding of the supremacy principle and came to interesting conclusions including one stating that the collision of Community law and national constitutional norm may “in no event be resolved by assuming the supremacy of a Community norm over a constitutional norm”.