Protecting the privacy of health information in the new European Union legislation

As a starting point, the author takes considerations regarding the nature of privacy as a legal category. He acknowledges that it is a human freedom requiring effective legal mechanisms protected by public authorities. At the same time, he points out threats that civilization changes and technological development bring for human privacy. The author confronts these considerations with the problems of collecting and processing data in the health care system. The author, however, concentrates on solutions adopted by the current EU legislator in a new comprehensive set of normative acts on protecting privacy. In this context, the author presents new trends and specific legal solutions regarding health protection. He also indicates the danger of absolutizing the protection of privacy, especially where the need to protect the life and health of the patient demands a primacy over general legal solutions regarding the protection of personal data.

The notion of non-pecuniary damage in Polish constitutional law

The explanation of the notion of non-pecuniary damage is relevant not only for determining the constitutional pre-conditions for liability of public authorities but also for the determination of the ways and the extent of compensation. The Constitutional Court, following legal doctrine, considers that damage in constitutional meaning is any injury to legally protected goods of any entity. This definition raises the following questions: 1) what is a legal good, 2) what is someone’s good, 3) how legal protection of a good should be understood and 4) what an injury to good means.

Generally, someone’s goods are individual goods, i.e. goods precious to someone, creating favorable conditions for his or her personal development, goods that cannot be disposed of by other legal subjects. The constitutional notion of damage means that an injury to good is enjoying protection reaching to a certain level of intensity. It encompasses also non-pecuniary goods. An injury to goods is the difference, assessed negatively, between the state of things resulting from the damaging event and the state of things which would have occurred if the damaging event would not have happened. The reparation of the damage should be adequate to its nature. The reparation of the non-pecuniary damage consists foremost in actions aiming at the restitution of the state of things which would have occurred had the damaging event not happened.

The secondary unconstitutionality and the issues of legal interpretation

The article presents the concept of the secondary unconstitutionality of law from the perspective of a few issues in legal interpretation. The notion of the secondary unconstitutionality is commonly described as a situation when a legal norm is viewed as inconsistent with the Constitution in the light of the judgment of the Constitutional Tribunal which concerned similar legal problem. The aim of the article is to indicate the scope of the possible interpretation of the norm as secondarily unconstitutional. In the first place author considers the influence of the dominant in Poland linguistic conception of a legal norm to the possibility of application of the notion of the secondary unconstitutionality. Next, it is worth underlying that the analyzed concept is often used to justify the omission of the valid legal norm by the court. This issue needs to be studied from two perspectives. Firstly, it is necessary to describe the relationship between the principle of the presumption of constitutionality and the concept of the secondary unconstitutionality. It has to be explained that this presumption is assigned to every valid legal norm which hasn’t been adjudged as ‘unconstitutional’ by the Constitutional Tribunal. That is why the main aim is to answer whether the competence to omit the valid norm is consistent with the principle of the presumption of constitutionality. The second issue refers to the principle of the direct application of the Constitution. Although this principle usually justifies the interpretation of a provision in accordance with the Constitution, in this article it has to be considered whether the principle of the direct application of the Constitution also allows the court to omit the provision in this specific situation of the secondary unconstitutionality.

Local government authorities in the face of the supremacy of the Constitution – how the local authority perceives the effects of a refusal to publish judgments of the Constitutional Tribunal

In this paper, we present how the local authority perceives the effects of a refusal to publish judgments of the Constitutional Tribunal. We claim the resolutions of the local government bodies created none new legal situation (they did not create any obligation) because this result directly from Article 190 Section 1 of the Constitution of the Republic of Poland. The obligation to apply the law resulting from the primacy of the Constitution in accordance with the basic law, connected with implementing the principle of direct application of constitutional provisions, also means the obligation of the authorities to comply with the judgments of the Constitutional Tribunal as the guardian of that supremacy.

In our opinion, the resolutions of the local government bodies were not of the nature of acts of power and therefore the considerations of administrative courts that questioned the legality of these acts due to the lack of legal grounds to take them were irrelevant. Therefore, there were no arguments to exclude these resolutions from the legal system based on the arguments presented by these courts.

Reference for a preliminary ruling by the Supreme Court regarding the retirement age of judges – an assessment from the perspective of European Union law

On 2 August 2018, the Supreme Court has referred questions to the European Court of Justice about whether the forced retirement of most of its senior judges and other infringements of judicial independence are compatible with EU law. That decision is a landmark step in the serious constitutional crisis in Poland that has been going on for several years. The Supreme Court attempts to defend itself against its subordination to the legislative and executive authorities, requesting that the CJEU express its view on the EU standards of irremovability of judges as an element of the independence of the judiciary. The article analyses the reference for a preliminary ruling from the perspective of EU law, especially the latest judgments of the CJEU concerning the rule of law and effective legal protection. Among many problems arising in connection with the discussed matter is the admissibility of the preliminary reference and the application of the interim measures by the Supreme Court. The article also examines the motion of the Prosecutor General to the Constitutional Court concerning the validity of art. 267 TFEU and the right to apply the interim measures suspending the statute on the Supreme Court.