Entrepreneurs after Poland's accession to the EU
Aleksandra Auleytner Legal advisor Senior Associate in Domański Zakrzewski Palinka
A brief ABC of Community law
Poland's accession to the European Union will result in a multidimensional change to the Polish legal system. This means, basically, that Community law and EU law (the second and third pillars of the European Union) will become part of the Polish legal order.
Community law constitutes a specific legal order, which is sometimes described as supranational law - to differentiate it from international law. In brief, the Community legal order means that thousands of legal acts are classified as primary legislation (mainly the founding Treaties) or secondary legislation drafted by EU institutions (i.e. directives, regulations and decisions which are binding, and recommendations and opinions which are not binding). The judgments of the European Court of Justice (ECJ) also play an important role in Community law, it functions almost as a European Supreme Court. The entire body of Community law is called the acquis communautaire.
As outlined above, regulations, directives and decisions are binding and they are the type of legislation that, once Poland accedes to the EU, businessmen will most often come across. They are drafted as part of a legislative process involving the three main Community institutions: the European Commission (which is the EU's executive body); the Council of the European Union (which represents the Member States); and the European Parliament (directly elected by the citizens of the EU). Only the Commission can draft proposals for new European laws, but it generally does so only after a consensus has been reached with the Council and the Parliament.
Lobbying plays a major role in the process of drafting Community law. Indeed, lobbying is institutionalized in the legislative process. For example, the Economic and Social Committee, which combines the representatives of various economic and social groups - in particular, producers, farmers, carriers, and business people. The Council and the Commission may, and sometimes must, consult with the Committee on legal drafts. Additionally, there is substantial informal lobbying in the legislative process. Major interest groups, such as UNICE (Union of Industrial and Employer's Confederations of Europe) and FEBI (Federations of European Business and Industry Organizations) are very active and they tend to focus their activities on the Commission. The Parliament has made an attempt to regulate some of the lobbying that takes place through the introduction of rules of procedure.
Regulations apply in full and are directly applicable in all Member States. For these reasons, regulations are similar to, for example, Polish Acts of Parliament. Upon their entry into force, regulations supersede all national laws and there is no need for a national law to be passed to introduce them. In principle, the direct incorporation of regulations into national legislation is inadmissible, something the European Court of Justice has confirmed on numerous occasions. This applied, for instance, to the Italian Parliament, which repeated regulations verbatim in Italian national legislation. The ECJ's view is important because, in the pre-accession period, the harmonization of Polish law with Community regulations was achieved by exactly transposing the regulations into Polish Acts. On Poland's accession to the EU, Polish legal regulations repeating Community regulations will most probably have to be repealed.
Directives do not have their counterparts in the Polish legal system. A directive is binding on Member States as regards the objective to be achieved, but it leaves it to each Member State to decide on the form and methods. Contrary to regulations, directives usually lay down the deadline by which the Member States have to implement them. Directives are the most commonly used pieces of legislation, since they constitute an instrument for harmonizing the legal systems of the Member States (a key element in the creation of a single European market). In Poland, directives have been implemented both through Acts of Parliament and secondary legislation, for instance: the Directive on General Product Safety was implemented in the Polish Act of the same name; and a majority of the New Approach Directives, harmonizing legislation in Member States with respect to machinery, electric devices, pressure tanks, etc., were implemented in Polish law through secondary legislation.
A Commission decision is addressed to a particular person and is binding in all aspects. In the Polish context, it can be compared with an administrative decision. It does not create a standard or set of guidelines, it is simply a ruling on a particular case. For instance, it is commonly applied by the European Commission in anti-trust proceedings.
The draft Constitution for Europe, recently adopted by the European Convention, provides for harmonization of the legal acts applicable in the three pillars of the European Union. Regulations and directives are to be replaced by European laws and European framework laws. In addition, there will be non-legislative acts - European regulations and European decisions, as well as recommendations and opinions as non-binding acts.
Publication of Community acts
Community acts are published in the Official Journal of the European Union (OJEU) published in Luxembourg. The Journal consists of three parts: Part L (from 'leges' or 'loi' - provisions of law) which includes all legal acts subject to publication; Part C (from 'communicationes' or 'communications') which includes, inter alia, draft legislation, protocols, or queries; and Part S (from 'supplement') where public procurement notices are published. Community acts are published in all official languages of the EU. This means that, upon Poland's accession to the European Union, the Official Journal of the European Union will also be published in Polish.
Most Community legislation can be found on the official site of the EU www.europa.eu.int.
