The Power of Aspiration. The impact of European Law on a non EU Country
1. Historical background
Poland is a nation of 40 million people which, as a consequence of the unhappy course of post-war history, has had to become a member of the Communist bloc. The Polish shared their fate with other nations of this region. Some of them - Hungarians, Czechs - have their tradition strongly rooted in Western European civilization, others - such as Bulgarians and to some extent Romanians - have been influenced by Eastern European culture. Notwithstanding historical and cultural differences, all the countries of the region were governed by communist regimes, installed and subsequently remaining in power against the will of the vast majority of the populations. In Poland, however, ruling communists had to, to a much greater extent than in other countries, accept some particularities resulting from the fact that - as it is alleged Joseph Stalin once said - communism fits Poland in the same way as a saddle suits the cow. The strong position of the Catholic Church, a dominant private agriculture sector and the existence of a growing opposition which culminated in the Solidarity movement are only a few examples which made Poland the, so called, funniest barrack in the camp. Nevertheless, Poland was a totalitarian state - or at least an authoritarian one - precluding private property in almost all areas outside agriculture, enforcing strong laws against opposition, introducing preventive censorship, as well as prohibition of independent manifestations, free trade unions, associations and other forms of activity. No person could have his/her passport at home and each visit abroad was preceded by screening of the applicant by the Secret Service. Although the majority of Poles considered that the rulers were not their own, they had to live with the rulers and the laws these rulers enacted.
In June 1989, only after the "Round Table" talks between ruling communists and the opposition, were Poles allowed to express their real political views for the first time. These elections were not, in fact, entirely democratic. The communists agreed that only election to the upper chamber of the Parliament was free, whereas in the lower chamber 65 % of the places were reserved for them and the remaining 35 % chosen on a democratic basis. There was also the requirement that the candidate had to obtain 50 % of given votes to be an MP; otherwise he had to stand in the second round. The election's results left no doubts about the political preferences of the population. In 100 members, Senate Solidarity won 99 places almost entirely from the first round (the remaining one senator was independent). In Sejm, the lower chamber, all Solidarity candidates but one were also elected in the first round whereas no communist candidate entered the Parliament. Even within the ambit of the reserved amount of places, the communist candidates were crossed off the ballot card and not surprisingly humiliated as they had to take part in the second round of voting. The results simply meant the end of communist rule, and with the accompanying changes in other countries of the collapsing Soviet bloc, there was already no way back.
At the turn of the '80 and into the '90s Poland was at last allowed to start changing its political and economic system towards a viable market oriented economy and a democratic form of government. All these changes needed patterns to be followed in order not to get lost in ineffective experimenting. Few normative solutions could be offered by the prewar Polish law which was enacted during the short period (1918-1939), when Poland existed as an independent state since it had been erased from the map of Europe in consequence of three partitions at the end of the 18th century. Regarding itself part of (Western) Europe, Poland has applied for membership of the main European institutions. In 1991 Poland joined the Council of Europe, two years later it ratified the European Convention on Human Rights and Fundamental Freedoms. It also was accepted as a member of NATO and its full accession has been formally finalized in April 1999. The next target is the European Union. Already in 1990 Poland, together with Hungary and then Czechoslovakia, started negotiations on an association agreement with the European Community. It was signed after a year of talks on 16 December 1991 and came into force on 1 February 1994. Although the status of an associate member does not guarantee Poland full membership of the EU, the Association Agreement "recognizes that the final objective of Poland is to become a member of the Community and that this association, in the view of the Parties, will help achieve this objective"1. This day is fast approaching as last year Poland was mentioned among a few countries which would be considered as the first new members of the European Union in years to come. The vast majority of Poles support and have always supported membership of the Union as well as other European institutions. There is, however, a substantial change in the reasoning and politics behind this. During the first period following the collapse of the communist empire the membership of NATO and the European Community was perceived first of all as offering guarantees of national security, especially at the time of the botched coup d'etat in Russia, increasing tensions around the new Baltic republics and volatile fighting on the outskirts of the former Soviet Union. It would seem that the Polish are now accustomed to the somewhat "predictable instability" of its Eastern European neighbors and think about membership of the European Union in more proper terms: those of economic well-being, a broadening of the common market, and a development of a community with strong political values.
2. Desperately looking for good patterns...
The process of changes requires the new Poland to reshape its political and economic system as well as its law. "The return to Europe" is an attractive slogan but it must be followed by more practical steps to actually be in Europe. In the context of law, these steps consist of the substitution of domestic law for the norms of European law or, at least, European legal standards. Such a process always - to a greater or lesser extent - puts into question the concept of national legal heritage. It is fortunate, therefore, that Poles did not accept the rules by which they lived at the time of communism. The ruled citizen did not take legal rules seriously, but in stark contrast, neither did the ruling party. In consequence, communist laws have not generated a deeper level of accepted legal tradition or legal culture. Legal culture is a configuration of values, concepts, practices and institutions through which individuals interpret and apply legal norms2. All these elements are rooted in general culture. In a stable state, under democratic rule, there exists mechanisms which enable connections between law, legal tradition and culture. Legal rules are efficient because they answer social expectations and value judgements. Accordingly, legal solutions enter culture and become part of it. In such a situation, changing law by the adaptation of foreign pattern may create difficulties since the change requires a revision of schemes which have been molded during a long period and which a given population perceives as own. In Poland, however, it was not the case. Rejecting legal rules of communist origin did not amount to the rejection of a culturally shared practice or model.
All I have written above should not be understood as suggesting that Poles began to live in a legal vacuum at the beginning of the '90s. Old communist laws were still in force and new acts could not be prepared overnight. There were some novelties introduced into the Constitution of 1952, but the majority of ordinary statutes were unaffected by the changes. A profound adaptation to new circumstances was, however, necessary and unavoidable. When the Institute for the Administration of Justice, the research institution of the Ministry of Justice, in the beginning of the '90s organized a series of conferences for judges, their subjects were on topics such as law and values or law and justice. Despite their topics, these conferences were not intended to be purely theoretical or academic, but were very practically oriented with the major aim to propose some applicable modes of adjusting the old law to the requirements of the new state. Presentations delivered there advocated such legal techniques as dynamic interpretation of the law, availing of legal argumentation, taking advantage of systemic, functional and purposeful approaches to law. Good examples were given, from above, by the Constitutional Tribunal which in its decisions has laid down fundamental principles of the new legal order. Interpreting Art. 1 of the amended Constitution (now Art. 2 of the new Constitution), which provides that Poland is a democratic state of law enforcing principles of social justice, the Tribunal referred to such principles as the requirement of vacatio legis, prohibition of retroactivity, the protection of acquired rights, legal security and prediction of the legal decision, a right to court and the duty to fulfill legal obligations. These principles form a substantial element of modern Western legal tradition.
Encouragement also came from other sides. The Chief Justice (the First President of the Supreme Court as he is called in Polish), Professor Adam Strzembosz, who took his office in 1990, proposed that Parliament would enact a bill of rights which could serve as the yardstick to measure the old statutes3. The task of screening was to be given to the Constitutional Tribunal and the Supreme Court. Eventually his idea was not accepted but nevertheless it encouraged courts to take a more active course in relation to communist law. It is also worth mentioning that despite its critics, even adversaries of the proposal of the Chief Justice themselves pointed out some legal possibilities as to how to cope with communist law. Their suggestions were not, however, very far reaching. They referred to general clauses which exist in different parts of the law and whose primary role was to allow different value judgments and non-legal normative criteria to enter into the law4.
General clauses are mostly known in private law. In the Polish civil code of 1964, still in force, the main general clause is that of the principles of communal life. It had been introduced into private law already in the late '40s and was patterned after the solution existing in the Soviet law. The new clause replaced the traditional general clauses of equity, good manners and public order. The change was to adjust the prewar "bourgeois" private law to the requirements of the new "progressive" communist state. Now the clause of principles of communal life has been used to justify changes that might have terrified the authors of the clause. In a democratic Poland - as many outstanding Polish lawyers argue - the clause refers to "average moral beliefs of Polish society", especially values rooted in Christian and European traditions5. When understood in more definite legal terms, general clauses may point out some European legal standards and allow them to imbue Polish private law with their content. Although some may perceive such a declaration as too broad an approach to be relevant to legal practitioners, this declaration identifies the axiological horizon which is an important part of the way in which we normally think of our law. This element becomes more significant at a time of change rather than in a period of non-demanding stability.
3. ...and making places for them
The mechanisms and constructions mentioned above act within the framework of domestic law sensu stricto. Polish law is interpreted and understood differently than under communism because the values of law appears to have changed as well as the socio-political context of the state. Another problem is, however, the recognition of a more active role that ratified international law might play in municipal law. At the time of communism - as a general rule - international law did not rank as domestic law unless transformed into an act of municipal law. The ratification of international treaties had no - or at best only little - impact on Polish law and the rights of individuals were affected accordingly. Denying any direct applicability of international law produced a comfortable situation for communist authorities because they could sign main international acts on the one side and refuse to apply their provisions internally on the other. Although Poland was party to the UN Covenant of Civil and Political Rights, to the conventions of the International Labor Organization and a number of other basic acts of international legislation, Poles did not enjoy any of the rights their rulers had formally agreed to accept. Accordingly, the Supreme Court could dismiss an appeal lodged by Solidarity activists against the decision of a lower court, which refused them the possibility to set up an independent trade union. The applicants held that the Polish Trade Union Act of 1982 was inconsistent with both the UN Covenant on Civil and Political Rights (art. 22), and ILO Convention 87. Polish law allowed that only one trade union might legally exist in one enterprise. Deciding the case, the Court repeated the official view that in the absence of any mechanism transforming international law into municipal rules, ratified treaties were binding on Poland only externally and could not offer any legal basis for a court decision internally6. To understand properly what human rights were under communism, it should also be borne in mind that the Constitution itself did not afford any remedies in cases where human freedoms were either violated or denied. The Constitution had a special part on rights and freedoms, but this chapter did not operate as a source of individual rights. Constitutional provisions were not directly applicable; citizens might avail themselves of their rights only in the way ordinary statutes provided and the latter differed immensely from the declarations of the Constitution.
Changes started with the collapse of communism (in fact communism was already collapsing as the Round Table negotiations took place between the communists and the opposition). The amendment of 7 April 1989 introduced into the Constitution a rule which gave the president (a new institution which both sides of the negotiations agreed upon) the power to ratify and denounce international treaties, subject to the approval of the Parliament when treaties imposed financial obligations on the State or required changes in municipal legislation. This provision was also a symbolic one and meant a return to the rule of the prewar Constitution of 1921 which was interpreted by the court as having the effect of transforming treaties into domestic law which gave them the same legal force as national legislation. The new approach required clarification and it took Polish courts some time before they elaborated more precise rules7. This modification went in parallel with personal changes. New people appeared in courts; people who were previously barred from the judiciary. Professor Adam Strzembosz, who had been expelled from the university and sacked from the Ministry of Justice by communists, became Chief Justice. Professor Andrzej Zoll, whom communist authority had been refusing a professorial nomination for many years, became the President of the Constitutional Tribunal. It must also be stressed that a significant role in the process of change had been played by already existing institutions, especially by the Polish Ombudsman, who could only fully flourish after communism collapsed.
By 1992, the Supreme Court pointed out that since Polish Sejm (the lower chamber of Parliament) had adopted a statute authorizing the ratification of an international treaty, and since this treaty has been published in the Official Gazette (Dziennik Ustaw), this has the consequence that the treaty "has been leveled with parliamentary statutes and may be applied by the courts like a statute, with all the consequences resulting therefrom"8. In other cases the Supreme Court, the Supreme Administration Court and the Constitutional Tribunal has often referred to international law ratified by Poland in order to decide on the application and interpretation of domestic legal provisions. One of the most frequently quoted was that of the European Convention on Human Rights and Fundamental Freedoms. For example, the Constitutional Tribunal stated that the ratification of the Convention meant that "all state organs are tied by commitments found therein"9. It is also worth mentioning that Polish legal doctrine has contributed very essentially to the transmission of knowledge of the Convention to judicial personnel as well as to the general public. Since the political changes, the number of relevant publications has increased enormously, whereas under communism there were only a few articles written on this issue. These very rare pieces of legal writing were - as two authors qualified them - either an expression of honesty of the researchers or "a manifestation of rebellious attitude, similar to the practice of wearing bright socks or playing jazz under Stalin"10
At present, under the new Constitution, which came into force on 17 October 1997, the position of international law has been explicitly defined11. Art. 9 reads that Poland internally enforces ratified international rules and Art. 87 states that such rules are one of the recognized sources of domestic law. Moreover, there are three articles introduced specifically in order to facilitate our future membership in the European Union and to clarify the (future) relationship between Polish and European norms. Art. 90 (1) allows that Poland can transfer, on concluding an international treaty, part of its sovereign competence in certain matters to an international organization or its organ. In such situation, international treaties will, as a rule, be directly applicable by Polish courts and administrative authorities unless it requires the enactment of a domestic statute (art 91 (1)). In case of any conflict between a Polish statute and an international act (the European treaties included), priority will be given to the latter (art. 91 (2)). As far as secondary legislation is concerned, it will be applied directly within the Polish legal system and eliminate contradicting municipal rules upon the condition that norms constituting international organizations provide for such applicability of its legislation (art. 91 (3)). It is worth mentioning that all these constitutional provisions were patterned after the corresponding rules within the Dutch Constitution of 1983 (art. 92-94) which was considered the most favorable constitution towards European law amongst member states.
By now, an indispensable role is being played by the practice of the highest judicial and legal bodies of showing lower courts and administrative organs how law may be construed and applied. Judges are encouraged to make use of international law, in particular of the European Convention, during training programs and workshops. They are to make judges aware that the Convention is a living instrument, which must be taken into account in order to render a good decision. The Convention, and the case law of the Strasbourg Court, form standards of dealing with legal issues, not only because a case decided in disregard of these standards may ultimately end up in Strasbourg, but mostly since the standards should be treated as laying down one of the very foundations of the Polish legal order. Accordingly, the highest judicial bodies in Poland have pointed out that the European Convention is an important act to be used for interpretation of domestic law12 and that it might even offer new legal measures and remedies (and a fortiori change the way in which the existing ones are applicable) if the provisions of international treaties have been directly introduced into municipal law or are self-executing13.
In every case in which Poland appeared as the defendant in Strasbourg, the point of focus has not directly concerned private law. Proceedings have touched on mostly criminal and procedural matters such as excessive length of proceedings, length of detention on remand and in mental hospitals, refusal to allow an applicant to attend the appeal hearing, dismissal of all requests of hearing evidence. In consequence of the decisions taken by the Commission of Human Rights and the Strasbourg Court, as well as the criticism expressed by legal doctrine of the provisions of Polish penal regulations14, there has been a series of changes that have culminated in the enactment of two new codes on criminal law and criminal procedure which came into force 1 September 1998. It does not mean, however, that private law is immune from the impact of the European Convention and the case law resulting therefrom. It would appear that one case, currently pending within the Regional court at Warsaw, may turn out to be a leading and ground-breaking case for legal practice in certain important branches of the civil law and, perhaps, even in broader legal terms. This case ignites a lot of emotions because it carries a strong political element, but it also makes lawyers, who would pretend to argue on a more neutral legal basis, excited.
The plaintiff in this case is the President of the Republic, Aleksander Kwaśniewski, acting as a private person. The defendant is "Życie", a leading quality newspaper. In August 1997 the paper published a well documented article whose authors stated that in the summer of 1994 Aleksander Kwaśniewski, who at this point was not the president, had spent his holiday in a well known resort at the same time as a Russian citizen, happening to be a high rank former KGB agent, now a businessman. The authors wanted a president's comment on the findings and asked for an interview accordingly. Before the publication appeared, some news about the content of the material broke to the public, so it must also have been known to the future plaintiff. His press office tried to postpone the interview, suggesting that the president was very busy. Having waited for over a week, the newspaper decided to print the article. Once the publication had appeared, the president instituted proceedings for civil libel. He demanded a compensation of 2.5 million zloty, which is the equivalent of over 700,000 US dollar. He presented some evidence that he could not have been in the incriminated place at the stated time. To make the political background more understandable, one extra piece of information can be added. Before the election, the plaintiff, who now declares to be the president of all Poles, was the most prominent figure of the post-communist political left. The defendant - on the other hand - is a daily newspaper with strong commitments to anticommunist Solidarity tradition.
Before the court proceedings started, there had appeared a series of articles and comments written by Polish academics and practicing lawyers who pointed out that damages demanded in civil cases must be evaluated in the light of the European Convention. They referred to the case of Tolstoy Miloslavsky v. United Kingdom15, which requires compensation to be proportionate and not excessive. In Tolstoy Miloslavsky, the Strasbourg Court recognized that a court decision awarding L1,500,000 compensation for libel, committed in a pamphlet, had violated Art. 10 of the Convention. Such an amount was not necessary in a democratic society and did not assure a reasonable relationship of proportionality to the legitimate aim pursued in the proceedings. The Court did not, however, point out what would be reasonable and proportionate. According to some suggestions and practice, a test of proportionality may refer to such elements as the average salary in a particular country or the average damages awarded when more basic goods are violated, especially in cases of death and injury. In Poland, in the latter situation damages are relatively low and under communism any compensation for moral suffering was considered contradictory to the new emerging communist morality. By awarding, in the pending case, any compensation approximate to the plaintiff's demand, Polish courts would risk that their judgement be reviewed by Strasbourg. I hope that they are aware of this risk, not only as a result of the publications preceding and accompanying the proceedings, but mostly because Polish judges have already acquired some knowledge about the Convention and its relevance to Polish legal order. Judges in the case must also take into account the fact that if the damages were awarded according to the plaintiff's demand it would mean serious financial problems - and even bankruptcy - of the leading political daily newspaper. This consequence must not be disregarded by the judges, as freedom of the press has been declared one of the most fundamental values which are important for the proper functioning of democratic society, and which are given special protection under the Convention16.
4. Preparing for membership.
Having signed the association agreement, Poland has, amongst its other duties, been obliged to approximate its law to the provisions of European law and legislation. It must be borne in mind, first, that approximation does not equal harmonization, which is required only of the member states. Secondly, the association agreement points out some areas which are specifically covered by the obligation of approximation. Those areas are as follows: customs law, company law, banking law, accounting and taxation of commercial units, intellectual property, protection of workers at the workplace, financial services, principles of competition law, consumer protection, indirect taxation, rules concerning technological standards, transportation and the environment (art. 69). The agreement requires Poland to take any necessary steps to fulfill this obligation and expressly recognizes that the approximation of the country's law to that of the Community is the major precondition for Poland's economic integration into the Community (art. 68). The agreement provides also Poland and the Community with a timetable for implementation and envisages a transitory period of a maximum duration of 10 years divided into two successive stages, each in principle lasting five years (art. 6(1). Further steps in the approximation process have been specified on the basis of the White Book published by the European Commission in 1995.
Simultaneously with the ratification of the association agreement, the Polish Parliament has passed a resolution obliging the government to formulate a detailed program of adjustment measures for the approximation of Polish law with EC law. Already in July 1992, the Legislative Council, a body formed by the Prime Minister with the aim to point out main legislative priorities, concluded following an analysis of about 500 statutes that almost hundred of them should be reformed and 18 entirely repealed to adjust Polish law to the requirements of economic reform. The role to coordinate and develop Polish legal reforms ,in a manner supportive of the process of approximation, was assigned to the Office of the Undersecretary of State for European Integration and Foreign Economic Assistance which was established in January 1991. Since September 1996 it has existed as the Committee for European Integration.
In 1994 the Polish government decided that each draft of legal acts proposed by the government and its offices should come through a procedure which would determine whether the draft conforms with the requirements set out in the White Book and with EC law in general. This role, under the present law, has been given to the Committee for European Integration. The Committee (and within its structure the Legal Service Department especially) proposes measures for the approximation process and provides opinions when drafts of legal acts involve any "European issue". Giving its advice, the Department refers to European regulations, directives, decisions and case law. Until 1997, it controlled over 1200 acts and found 17 of them inconsistent with EC provisions17.
Since 19 March 1999, when Parliament changed its Internal Rules, the monitoring mechanism also applies to the drafts prepared by Parliament. First, to each draft law must be attached the declaration of the draft's authors stating that the proposal is in conformity with Community law. Second, when the draft law is handed over further to the next stages of legislative procedure, parliamentary commissions are obliged to apply for the opinion from the Committee of European Integration. But even before that change parliamentary commissions, as a matter of legislative procedure, might seek and not rarely actually sought advice of either the Committee for European Integration or of their own legal experts. At present, however, all legislative proposals and even decisions (amendments introduced by Senate) must be submitted to the Committee. If competent bodies fail to apply for opinions it constitutes a breach of parliamentary procedure. In its expertise on conformity of domestic law with EC provisions, the Committee fulfils the task which is similar to that given to the European Commission and the Luxembourg court within the European Union. Although opinions are not binding, it is very likely that Parliament and its organs will follow them and, accordingly, the (European) quality of new statutes will improve.
An example of how Polish law is changing under the influence of European standards is offered by company law. In 1934, prior to the Second World War, Poland enacted a commercial code, which was considered as one of the best in Europe at that time. Although the communists did not repeal the code in its entirety, they did repeal some important parts considered to be unnecessary or obsolete (on limited partnership, sole traders, legal persons, business disposal and traders' accounts). Only provisions on partnerships, limited liability and joint stock companies had survived, but they were scarcely used. With the collapse of the old regime, traditional commercial instruments have been revitalized to relinquish direct state involvement in economic activities. Both domestic and foreign subjects have been placed under the same legal framework of the commercial code (earlier foreign investors had to act on the basis of regulations enacted specifically for them).
When foreign authors analyzed Polish commercial law in the first years after the political changes, they suggested a series of modifications in order to adjust it to the corresponding European directives18. To conform with the First and Second Directive (on company disclosure requirements, and capital formation and maintenance), the law would need an amendment requiring each company to publish in a national newspaper all information which is enclosed in the Polish commercial register as well as an expert's evaluation of non-monetary contributions to subscribed capital. There had to be a number of changes concerning rules on accounting (required by the Fourth, Seventh and Eighth Directives). The Eleventh Directive (on branch offices) would require the removal of the permit requirement and the Proposed Fifth Directive (on corporate governance) implied new rules on mandatory employee participation in supervisory boards. By now, Polish company law has been amended in many parts and satisfies most of the standards expressed in the directives. Accordingly, some authors argue that our company regulations have undergone a sufficient procedural approximation analogous to the process of implementing a directive within a member state19.
Other authors, however, would go much further. They advocate a draft law on commercial companies, which would take a more substantive approach, namely in respect of incorporation of EC company law into Polish law. The draft law they prepared introduces new forms of commercial activity and rearranges the existing ones. What these authors mean by EC company law is not limited to the very scope of the European directives on commercial companies, but it also covers developments in commercial laws of the main continental legal systems. In consequence the drafters want to introduce, for example, a command joint stock company capable of issuing non-voting preferred shares. These shares do not entitle their shareholder to vote or otherwise participate in the management of the company, but as they are publicly tradable they might accommodate a wider range of investors. Other constructions of the Draft Law would contribute to corporate governance, to the protection of minority shareholders and creditors of the company, and also to clarify rules on disclosure20.
The controversy over the regulations on commercial companies is a good example of how far Poles are willing to go to be in Europe, and are not here simply because they are less skilful or they lack imagination. When someone has an obsolete device he may try to amend it, risking, however, that he will have to repeatedly invest in continuous reparations. A better solution is often to buy a new device and to replace the old one, especially when there is no sentiment for the latter. There exists, however, an inherent danger when we are using European law. European law consists mostly of directives, which formulate aims to be obtained in particular legal domestic systems. Directives set out standards that all the member states must follow, but the way these states will pursue and achieve the standards depends on the logic, mentalite or the style in which a particular national law operates. Moreover, integration by means of directives is not holistic but compartmentalized, centered on some aspects, fragments, and is - as Jurgen Basedow - named it - pointillistic21.
The scenario of "integration by directives" presupposes the existence of a law that is changing under the influence of a directive. Directives as such are not designed to create a comprehensive regulation, or even a coherent code. If we, however, think of directives as wonderful instruments which would one day, somehow, magically fit together we may make a serious mistake and not see the wood and trees for the forest. Poles seem to overestimate the role of directives and expect too much from the application of their guiding provisions. While they are directive-oriented, Poles seem to disregard the Civil Code of 1964. This approach also explains why Poles have been postponing the enactment of a new civil code. They seem to say: "Let specific statutes patterned after directives do their work first, and only then will we be able to decide what might be thorough regulation of a general character". United Europe may offer us directives, but if Europe presently provided us with a European code of private law, Poles - I guess - would be among its most convinced admirers. In comparison with the Civil Code of 1964, the situation of the Commercial Code was different. The successful revival of the whole body of the Commercial Code was possible because the code itself fulfilled the task of reforming Polish economic life, it generated a significant new case law as well as an accumulation of European directives. Accordingly, a far reaching Europeanisation must indeed raise serious doubts.
In this article I have tried to outline the phenomenon of power of aspiration and sketch some structural reasons suggesting why Poles are so open and eager to accept European rules and standards. Finishing what I have written, I would like to stress that the phenomenon in question will not be everlasting. When an aspiring country becomes a member country we notice another phenomenon emerging. It may be called simply power of membership. Poland is a nation of 40 million people and it will be a demanding member. The change I mentioned is just under way, as far as the Council of Europe is concerned. Recently, this European institution has agreed to amend the Convention on Transfrontier Television by introducing a special arbitration procedure designed for cases where broadcasting activity is undertaken from abroad with the aim to circumvent legal requirements, especially for licence, existing in domestic law (delocation practices)22. Polish insistence on these changes were motivated by the fact that big foreign television companies, such as RTL-7 or HBO, transmit their programs to Poland from abroad to the detriment of the television companies which conform with the provisions of Polish broadcasting law. Although the arbitration procedure, which is designed to settle emerging conflicts amicably, is not a perfect solution (it consists of a series of necessary steps lasting several months and does not end up in a binding decision), its introduction is the evidence that Poland has discovered the power of membership.
Notes:
® Associate Professor (adiunkt). Chair for International and European Law, Polish Academy of Sciences, Institute of Legal Sciences, Warsaw, and Chair for the Sociology of Law, Jagiellonian University, Law School, Cracow. The author would appreciate comments on the paper. Email address for contacts is kaminski@if.uj.edu.pl
1 Preamble of the Association Agreement.
2 J. Bell, "English law and French law - not so different?" (1995), Current Legal Problems 63, at 65-66.
3 "Państwo prawne w doświadczeniu przechodzenia z Polskiej Rzeczypospolitej Ludowej do Rzeczypospolitej Polskiej" (The state of law in the experience of transition from Polish People's Republic to Polish Republic) (1992), 11 Znak 23, at 27.
4 For example, T. Zieliński, "Jako rzecznik bronię litery prawa" (As Ombudsman I defend the black letter of the law) (1992), 11 Znak 11, at 15-17.
5 M. Safjan, "Klauzule generalne w prawie cywilnym (przyczynek do dyskusji)" (General clauses in civil law. A contribution to discussion) (1990), 11 Państwo i Prawo 48, at 54. A similar view has been expressed by another outstanding civil law professor, Z. Radwański, Prawo cywilne - część ogólna (Civil law - general part), Warszawa 1993, at 43.
6 Judgment of 25 August 1987 (I PRZ 8/87), Orzecznictwo Sądu Najwyższego (Decisions of the Supreme Court) 1987, no. 12, item 199.
7 For an overview of approaches of Polish main judicial bodies see W. Czapliński, "International law and Polish municipal law: recent jurisprudence of the Polish supreme judicial organs" (1994), 54 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, 871; Z. Kędzia, "The implementation of international human rights agreements in Poland", in: The Relationship between International and Domestic Law, Dordrecht 1993, 21.
8 Case III 48/92, Orzecznictwo Sądu Najwyższego. Izba Cywilna (Decisions of the Supreme Court. Civil Division) 1992, no. 10, item 179, at 62.
9 Case W 3/93 Orzecznictwo Trybunału Konstytucyjnego (Decisions of the Constitutional Tribunal) 1994, no. I, item 17.
10 A. Drzemczewski, M.A. Nowicki, "The impact of the ECHR in Poland: a shock-taking after three years" (1996), 3 European Human Rights Legal Review 261, at 261-262.
11 On the provisions of this Constitution regarding the position of international law see A. Wasilkowski, "International law and international relations in the new Polish Constitution of 2 April 1997" (1997-1998), 23 Polish Yearbook of International Law; S. Biernat, "Constitutional aspects of Poland's future membership in the European Union" (1998), 36 Archiv des Völkerrechts 398.
12 See for example resolution of the Constitutional Tribunal of 2 March 1994, case 3/93, Orzecznictwo Trybunału Konstytucyjnego (Decisions of the Constitutional Tribunal) 1994, no. I, at 157-158. The same need pointed out the Supreme Court in its recent decisions: in resolution of 20 January 1999, case I KZP 21/98 (the use of evidence obtained from incognito witness and the right to defense), "Orzecznictwo Sądu Najwyższego. Izba Karna i Wojskowa" (Decisions of the Supreme Court. Criminal and Military Division) 1999, no. 1-2, item 3; resolution of 15 September 1999, case I KZP 27/99 (State's liability for detention on remand as based on the principle of risk), not yet published.
13 See for example resolution of Supreme Court of February 19, 1997, case I KZP 37/96, "Orzecznictwo Sądu Najwyższego. Izba Karna i Wojskowa" (Decisions of the Supreme Court. Criminal and Military Division) 1997, no. 3-4, item 21.
14 Amongst many publications, of special importance were books written by P. Hofmański, Konwencja Europejska a prawo karne (The European Convention and penal law), Toruń 1995; Europejska Konwencja Praw Człowieka i jej znaczenie dla prawa karnego materialnego, procesowego i wykonawczego (European Convention and its significance for substantive, procedural and executive penal law), Toru( 1993; "Europejskie standardy w zakresie kontroli stosowania przymusu w procesie karnym a reforma kodeksu postępowania karnego" (European standards for the control of enforcement measures in the criminal process and the reform of Criminal Procedure Code), in: Problemy kodyfikacji prawa karnego (Codification problems of penal law), Warszawa 1993. The author, an outstanding scholar, is now also a judge in the Supreme Court.
15 20 European Human Rights Reports 1995, 442.
16 For example in Lingens v. Austria, 8 European Human Rights Reports 407, § 41; Observer and Guardian v. United Kingdom, 14 European Human Rights Reports 153, § 59.
17 M. Górka, "Realizacja Białej Księgi Komisji Europejskiej w porządku prawnym Przeczpospolitej Polskiej jako element procesu dostosowania praw polskiego do standardów Unii Europejskiej" (Realization of the European Commission's While Book in Poland's legal system as a factor of adjustment process of the Polish law to the European Union standards), in: Polska w Unii Europejskiej (Poland in the European Union), Toruń 1997, 9, at 11.
18 See, for example, C. Brzezinski, 'The EC-Poland Association Agreement: harmonization of an aspiring member state's company law" (1993), 34 Harvard International Law Journal 105.
19 M. Safjan, J. Okolski, J. Modrzejewski, J. Brol, J. Krauss, W. Opalski, M. Modrzejewska, "Stanowisko w sprawie projektu ustawy - Prawo spółek handlowych" (An opinion on the draft of Act on Commercial Companies) (1998), 152 Rzeczpospolita.
20 The whole project with the accompanying explaining report was published in 1998, as special issue 1-2 Studia Prawnicze.
21 "A common contract law for the Common Market" (1996), 33 Common Market Law Review 1169, at 1178.
22 Art. 24 bis as introduced by art. 30 of the Protocol Amending the European Convention on Transfrontier Television (ETS no. 171). The Protocol was signed 9 September 1998 and opened for acceptance since 1 October 1998.