Białystok Legal Studies vol. 24 nr 2
Articles:
Jitka Brodská, Harald Christian Scheu
The UN Guiding Principles on Business and Human Rights and Their Implementation in Germany and the Czech Republic
DOI: 10.15290/bsp.2019.24.02.01
Abstract: In this paper the authors focus on the United Nations Guiding Principles on Business and Human Rights of 2011 which present the most ambitious international attempt to tackle the problem of business and human rights. The authors deal with the genesis and the added value of the UN Guiding Principles and analyze which legal tools may be used by victims against business entities that have violated their human rights. A special view is given on law and legal practice in Germany and in the Czech Republic. Although the UN Guiding Principles, so far, have had only little influence on national rules concerning jurisdiction, procedural and material law in liability cases we find that their pontential shall not be underestimated. We expect that the implementation of the UN Guiding Principles will lead to a reform of national procedural regulations. States will have to consider ways how to introduce new procedural instruments like e.g. representative action and class action and how to address issues concerning evidence in international cases.
Keywords: UN Guiding Principles, business, human rights, jurisdiction, legal remedies, Czech Republic, Germany, European Union
Page range: 13-31
Aneta Giedrewicz-Niewińska, Anna Piszcz
Social Dialogue of Employer and Employees in Poland
DOI: 10.15290/bsp.2019.24.02.02
Abstract: The aim of this paper is to investigate the (potential) impact of social dialogue on the operation of enterprises, mainly on the basis of legal provisions accompanied by practical evidence drawn from case law. This publication starts with the general context of social dialogue in the Polish legal culture. In this regard, it shows how social dialogue is defined and, in addition, it provides an overview of legal bases for social dialogue under the national rules and regulations. The remainder of the paper is structured as follows. It continues with the presentation of legal solutions regarding complex relations between various representatives of employees. In short, it explains certain aspects of the right to freedom of association. Furthermore, the article presents the special protection of employment relationship durability of employees’ representatives (as it has become a recognised field of research and scholarly enquiry) and the challenges in this area. The paper concludes with a short summary.
Keywords: dialogue between employer and employees, dialogue between social partners, social dialogue
Page range: 33-52
Václav Šmejkal
High Tech Monitoring Versus Privacy in the Workplace in the Law and Case Law of the Czech Republic
DOI: 10.15290/bsp.2019.24.02.03
Abstract: Modern technologies ask anew the old question about how employees can be checked during working hours so that legitimate interests of their employers are safeguarded. The answer cannot be solely technological, as the employees right to privacy, even in the workplace, is protected at the highest constitutional as well as international levels. Employers when defending their rights and interest are therefore far from free to use the potential of available technological devices in full and without limits. To strike the right balance between legitimate interests and fundamental rights is by no means easy, as the present text tries to demonstrate by summarizing and analyzing the existing Czech approach to the issue. On the one hand, Czech law on the protection of privacy of employees in the workplace, as well as the authorities applying it, are principally in line with generally accepted European standards. On the other hand, however, this basic consensus on values and their substantive and procedural legal safeguards does not mean that Czech law currently answers all questions and leads employers safely outside the restricted zone of prohibited ways of employee monitoring. The focus of the text is thus directed at those provisions of legal acts, decisions of the highest courts, opinions of supervisory authorities and arguments of commentators that influence the way in which the aforementioned rights and interest are balanced in the current Czech legal practice.
Keywords: privacy in the workplace, monitoring of employees, information technologies, tracking and
recording, Labor Code, proportionality, fundamental rights
Page range: 53-89
Katarzyna Roszewska
The Implementation of the Rights of Persons with Disabilities to Employment on the Basis of the Convention on the Rights of Persons with Disabilities (CRPD)
DOI: 10.15290/bsp.2019.24.02.04
Abstract: Poland has made considerable progress in the implementation of Article 27 of the CRPD. Professional activity is one of the most important conditions for full inclusion and participation in society. Upon ratifying the Convention in 2012, Poland confirmed that persons with disabilities have the right to fully and equally enjoy all human rights. The level of legal framework is satisfactory in numerous respects. The difficulty in implementing the right to employment lies primarily in the manner of its practical implementation, absence of horizontal employment policy, other support systems affecting the right to work (social benefits and services, health care services, availability of services and benefits, accessibility of transport and technologies). Most Polish employers do not hire persons with disabilities at all. The analysis of the implementation of the right is also hampered by incomplete statistical data on disability in Poland. Th is paper presents the implementation of the right to employment in the period between ratification of the CRPD by Poland in 2012 until the drafting of this paper at the end 2018.
Keywords: the UN Convention on the Rights of Persons with Disabilities (CRPD), Article 27 of the CRPD, the implementation of the right to work in Poland
Page range: 91-100
Ondrej Blažo, Mária Patakyová
International Responsibility of Business for Violation of Human Rights – Customers Perspective
DOI: 10.15290/bsp.2019.24.02.05
Abstract: This paper deals with possible avenues for enforcement liability of human rights violations that occur in less industrially developed countries. Since food, clothing and other economic goods are oft en produced in states where the rule of law may not be as effective as elsewhere, it is difficult to both establish and remedy the human rights violations that are frequently seen to occur in such states. Therefore, the paper analyses whether it would be possible to remedy human rights violations from abroad, in other words from within those states where these products are sold to end-users. The paper focuses on selected instruments of international, European and national law in order to establish whether a remedy for such violations is present. It takes the bottom-up principle, i.e. it concentrates on such instruments which might be used by individuals, consumers in particular, rather than by states. The outcome of the contribution is that, in theory, it is possible to hold retailers partially liable for human rights violations as a means of applying remote leverage on the manufacturers.
Keywords: human rights violations, UN Guiding Principles on Business and Human Rights, consumer protection, sweatshops, fair-trade, eco-label
Page range: 101-122
DOI: 10.15290/bsp.2019.24.02.06
Abstract: In this paper the author analyzes the free movement of companies between EU Member States, one of the most essential conditions enabling the freedom of business in the European Union. It is obvious that in every European country, the constitution and/or legal order guarantees the basic fundamental rights for the people and settles the exercise of power. In conducting the research it is very important to examine the appearance of the two fundamental freedoms which are the essence of present topic, the freedom to provide services and the freedom of establishment. Both rights are listed in the basic treaties of the European Union and their nature is explained herein through interpretation of the text of the treaties, and through the jurisdiction, by analyzing case law using the decisions of the Court of Justice of the European Union (CJEU). The research centres on the examination of the practical side of the freedom to provide services and freedom of business. The study is presented through analysis and evaluation of the decisions of the CJEU and the Hungarian national jurisdiction. The goal is to provide a general picture through the jurisdiction of the CJEU and to examine whether the rights mentioned truly emerge in real life. Older decisions have also been taken into consideration in this regard as they were fundamental to the founding principles of the freedoms discussed and their present regulation.
Keywords: freedom of establishment, company law, transfer of seat
Page range: 123-135
Ondrej Blažo, Hana Kováčiková
Right for Equal Opportunity for Fair Public Contract? Human Rights in Public Procurement
DOI: 10.15290/bsp.2019.24.02.07
Abstract: According to the new European Union’ Public procurement legislation (hereinafter 2014 PP Directives), the award of public contracts by or on behalf public authority has to comply with the principles of the Functioning of the European Union, and in particular the free movement of goods, freedom of establishment and freedom to provide services, as well as the principles deriving therefrom such as equal treatment, non-discrimination, mutual recognition, proportionality and transparency and sound procedural management. We understand that the main goal of public procurement is not to protect human or fundamental rights, but to put public funds to effective use. However, by adopting the new concept of procurement, there exists space for the penetration of such rights in the public procurement arena. Human and fundamental rights protection shall be applied continuously during the process of procurement, and in both the contracting and implementation phases. The authors will focus their research especially on the competitor´s right to good administration which shall guarantee the competitor´s right for equal opportunity for fair contract. Nowadays, it is not rare a situation, when the contracting authority due to breach of the principle of sound administration prioritizes another competitor rather than one, who was supposed to win. Therefore, a competitor´s right to adequate compensation under such circumstances will also be examined.
Keywords: public procurement, fundamental rights, fair public contract, equality, discrimination, principle of sound administration, conflict of interests, principle of legal certainty, the principle of legitimate expectations
Page range: 137-146
Petr Frischmann
Freedom of Enterprise in the Perspective of Czech Professional Self-governing Associations
DOI: 10.15290/bsp.2019.24.02.08
Abstract: The present text addresses the specific nature of regulated professions in relation to the reasonable and justifiable restrictions as principles of free enterprise. Based on recent Czech experience, the article provides considerations and analysis identifying current trends in regulated self-governing associations with compulsory membership focusing on the principal questions concerning the constitutional conformity of compulsory membership, justifiable level of restrictions of free access to professions and training and pre-requisites for entry to a profession with special regard to the protection of free economic competition. The article analyzes the different forms of restrictions of free enterprise in regulated services having their origin in the legislation, internal rules and the decision making of professional associations themselves. The analyses illustrate the search for the optimum balance between legitimate professional group interests and fundamental rights, which is not easy to determine, as the present text tries to demonstrate by analyzing the existing Czech approach to the issue. Furthermore, the article presents the considerations based on the recent leading decisions analysing immanent and persistent tendencies for the expansion of influence of the existing associations together with tendencies for the formation of new self-governing associations.
Keywords: professional association, self-governance, access to profession, price regulation, internal rules, economic competition
Page range: 147-163
Raimundas Moisejevas, Justina Nasutavičienė
Guarantees of Human Rights in Competition Proceedings in the European Union and the Republic of Lithuania
DOI: 10.15290/bsp.2019.24.02.09
Abstract: This article focuses on the protection of human rights in disputes related to competition proceedings. The European Convention on Human Rights is regarded as a most effective instrument for the protection of human rights at the international level. National courts of the European Union member states have also developed specific systems for the protection of human rights. Entities that are charged with breaches of EU competition law, in most cases complain about breaches of two provisions of the ECHR: Article 6 of the Convention which guarantees the right to a fair trial and Article 8 which guarantees the right to respect for private life. In this article, we also discuss a couple of cases decided by the Competition Council of Lithuania, which raise doubts regarding proper guarantee of the right to a fair trial. One of the key problems is that during the questioning of witnesses the Competition Council makes an audio recording of the interview but afterwards deletes the recording without allowing the undertakings under investigation to have access to the Council’s case file. The article concludes with a short summary.
Keywords: antitrust damage, human rights, procedural rights, Competition Council, Lithuania, the European Convention on Human Rights
Page range: 165-184
Commentary:
DOI: 10.15290/bsp.2019.24.02.10
Abstract: The article discusses a recent legal change in relation to inspections conducted by the Polish Office of Competition and Consumer Protection (the “OCCP”) in light of the standards of procedural safeguards that should be available to companies during inspections of competition authorities as described by the European Court of Human Rights (the “ECtHR”) in case Delta Pekárny v. the Czech Republic. During inspections the OCCP could obtain access to documents unrelated to the subject of the proceedings, including private documents. This may lead to the infringement of the right to respect for private and family life protected under Article 8 of the European Convention on Human Rights (the “Convention”). In light of the Delta Pekárny judgment, decisions about the initiation of the inspection of competition authorities should be subject to effective judicial review. The judicial review should take place either prior to inspection or thereafter (ex post facto). The goal of the article is to verify the consistency of procedural safeguards during controls and searches conducted by the OCCP with the standards of protection in the Delta Pekárny judgement.
Keywords: right to privacy, competition law, controls, searches, judicial review
Page range: 187-197
Review:
Jiří Malý
Václav Šmejkal, Stanislav Šaroch and Pavel Svoboda,
European Union as a Highly Competitive Social Market Economy – Legal and Economic Analysis, rw & w Science & New Media, Passau-Berlin-Prague 2016, pp. 178
DOI: 10.15290/bsp.2019.24.02.11
Page range: 201-204