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“Corona Contract Law” in Poland: When Pandemic Meets Politics
- Edited by Ewoud Hondius, Marta Santos Silva, Andrea Nicolussi, Pablo Salvador Coderch, Christiane Wendehorst, Fryderyk Zoll
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- Book:
- Coronavirus and the Law in Europe
- Published by:
- Intersentia
- Published online:
- 10 December 2021
- Print publication:
- 01 August 2021, pp 219-242
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- Chapter
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Summary
This contribution presents and critically evaluates the impact of the COVID-19 pandemic on Polish contract law. Since the government refrained from introducing a state of emergency to manage the pandemic in Poland in violation of the Constitution, the constitutional dimension of the COVID-19 measures is of crucial importance for examination of the contract law, as it substantially changes the position of the parties in private law relations. The contribution therefore gives an overview of the measures introduced as a response to the COVID-19 emergency in the constitutional context and presents the classic Polish private law instruments potentially applicable to contracts in extraordinary circumstances like pandemic, as well as the extraordinary legislation introduced by the government in the area of contract law, with a view to addressing the pandemic. It ends by presenting the first cases initiated by private parties against the State Treasury.
INTRODUCTION
POLISH REACTION TO THE PANDEMIC
COVID-19 did not take Poland by surprise. The first case, registered on 4 March 2020, was swiftly followed by far-reaching restrictions imposed by the government, enacted as soon as 20 March 2020, when the number of registered cases had reached 425 in total (70 that day). As in many other countries, the change in circumstances in which contracts are performed in Poland in relation to COVID-19 was therefore (so far) not caused by the fact that a large number of people fell ill, causing market disturbances, but resulted from the restrictions imposed by the government with a view to limiting the spread of the disease. The strictness of the governmental measures did not, however, correspond with the number of registered cases. The restrictions started to be lifted on 20 April, at a time when there were 306 cases of the virus daily, and continued despite the fact that the number of cases did not seem to be decreasing – a situation that still continues as this contribution is being finalised (506 cases on 17 June 2020). The rather paradoxical situation whereby the strictness of the restrictions does not seem to correspond with the number of cases of infection raises questions relating to the government’s reasoning behind imposing and relaxing the measures.
Potential and Hurdles for the CJEU’S Jurisprudence in Domestic Legal Orders: A Polish Case Study
- Edited by Stefan Grundmann, Mateusz Grochowski
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- Book:
- European Contract Law and the Creation of Norms
- Published by:
- Intersentia
- Published online:
- 25 May 2021
- Print publication:
- 02 March 2021, pp 269-304
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Summary
INTRODUCTION
GENERAL OVERVIEW
EU law is only able to achieve its goals if the Member States ensure its effective application at a national level. Considering how EU legal instruments and norms are constructed, it is obvious that they very often require judicial interpretation that allows them to be properly understood and applied at a national level. This is particularly important for the open, general norms, as well as for the lacunas that require filling in at an national level. Since the effectiveness of EU law is measured in its operation in practice, it is critical to ensure that the CJEU'S case law is applied at a national level. In order to reach this point, the CJEU'S case law must become part of the national legal reality. National courts are the guardians of this process. They hold very powerful tools that allow them to control market practice as well as the implementation of EU law. National courts often also play a correctional function when confronted with the inaccurate transposition of EU rules. Their function as guardians is an active one: in order to build a European legal sphere, national courts of all instances must engage in meaningful dialogue with the CJEU. While effective cooperation between the national and the European judiciary is indispensable for implementing EU law, many characteristics of EU law make this process rather challenging.
THE FOCUS OF THE CHAPTER
Bearing in mind the importance of national courts for ensuring the proper functioning of EU law, the primary focus of this chapter is the hurdles (and much less so the potential) when it comes to the integration of the CJEU'S jurisprudence into national judicial practice. The chapter is divided into two parts. The first presents the external perspective, i.e. the construction of the EU judicial system in which national courts function, focusing on the characteristics that impede fruitful dialogue between the European and national judiciary. These include the structure and specific features of EU law, the way the CJEU operates and the effects it has on the national courts. The second part presents an example of a national perspective in the form of a case study that deals with the application of the Unfair Contract Terms Directive to consumer loans denominated or indexed in Swiss francs in the Polish legal system.