In this article the author tries to answer the difficult question of the roots of the welfare state. The study of the French example shows that if some roots are ideological, at the same time they are sociological, too. In the article the main streams of ideological roots are described and conclusion is drawn that nowadays sociological issues are very important. The popularity of the welfare state shows that dismantlement is impossible in the democratic States. Yet, its crisis due to (...) its cost in a globalized world asks the question of the balance point between the fight against assistantship and maintenance of the redistributive nature of the welfare state. The answer to that question still remains the key challenge for European politicians. (shrink)

Legal acts of the Republic of Lithuania establish several types of material liability of workers engaged in labour (professional) relations: material liability applied pursuant to the Labour Code of the Republic of Lithuania (hereinafter referred to as the LC) and material liability applied pursuant to the Law on Public Service of the Republic of Lithuania (hereinafter referred to as the LPC). In the present article, theoretical and practical aspects of material liability of Lithuanian public servants for material damage caused are (...) analysed. The authors of the article study the conditions for the application of the material liability and identify the main circumstances that must be determined in applying this type of legal compulsion. Furthermore, the authors investigate the relation between the material and disciplinary liabilities, study the limits of the application of labour law norms (that regulate material liability of employees) and civil law norms (regulating personal civil liability) in professional legal relations, identify the means and procedure for solving disputes arising in the application of the material liability. Practical mistakes in the application of the material liability of public servants and violations are analysed on the basis of a rather sparse case-law of the Supreme Administrative Court of Lithuania related to the material liability. (shrink)

There are two types of responsibilities of civil service enshrined in the Law of the Republic of Lithuania on the Civil Service – disciplinary and material liability. Disciplinary liability is the structural part of the Lithuanian civil service. It directly impacts the frame of the civil service, improves the image and gives people’s trust. That is the main reason to analyse the legal base and the practical application of the disciplinary liability in analytical-critical way. The article deals with the theoretical (...) and practical aspects of the responsibility of civil servants. This article also covers the peculiarities of the concept of disciplinary liability in order to reveal the procedural grounds of application of this kind of liability and the consequences for the status of a civil servant. The authors also analyse practical situations of demarcation between disciplinary and administrative liabilities. One part of the article is devoted to the analysis of procedural application of the disciplinary liability issues. The main goal of the article is to discuss problematic aspects of executing stage. The authors of the article come to the conclusion that there are two types of civil servant liabilities laid down in the Law – disciplinary and material liability. Taking into account the results of the analysis, it must be stated that the same things are defined differently in the legal acts. Disciplinary liability must be applied to civil servants and to public officers, whereas other kinds of liability must be applied to persons working on the basis of contracts. Moreover, the authors of the article draw the conclusion that the procedural mistakes made while applying disciplinary liability cannot fully eliminate the results of punishment. Here it must be clarified whether the rights of a civil servant were not restricted and whether the impartiality of the disciplinary inspection was guaranteed. That kind of analysis of procedural mistakes allows us estimating their status and the ultimate impact on the legality of disciplinary liability. (shrink)

Šio straipsnio tikslas – aptarti geriausios santvarkos problemą Aristotelio politinėje teorijoje, atsižvelgiant į Nikomacho etikoje pateiktą žmogiško klestėjimo sampratą. Joje Aristotelis teigia, kad monarchija yra geriausia santvarka (1160a35–36). Šis teiginys pakartojamas ir Politikoje (1288a15–18). Straipsnyje aiškinama, kodėl šie Aristotelio teiginiai prieštarauja Politikoje aptartoms teleologinėms polio, piliečio ir gero piliečio vs. gero žmogaus dorybių sampratoms. Atsižvelgiant į Aristotelio filosofinį valstybės apibrėžimą, jog ji yra „lygių asmenų susivienijimas dėl geriausio įmanomo gyvenimo“, ir teiginį, kad „geriausia yra laimė, o tai susideda iš tobulumo, (...) tobulo jos aktualizavimo ir panaudojimo“, be to, jo argumentus apie gero žmogaus ir gero piliečio santykį, straipsnyje teigiama, kad geriausia politinė santvarka yra politėja, o ne monarchija. Tačiau tokios interpretacijos nepakanka, jei norime išgelbėti Aristotelį nuo jo nenuoseklumo ir filosofiškai abejotinų teiginių apie „prigimtinę nelygybę“. Siūloma radikalesnė Aristotelio interpretacija, atmetanti šio filosofo ontologinę skirtį tarp oikos ir polio. Teigiama, kad Aristotelio socialinių santykių šeimoje-ūkyje (oikos) vertikalumas yra filosofiškai nepagrįstas ir prieštarauja revoliuciniams šio filosofo normatyvinės teleologijos aspektams ir jos radikalioms implikacijoms. (shrink)

Succession of states regains its importance in current geopolitical situation as now we are witnessing a possible new wave of state succession: South Sudan has been accepted to the United Nations, Kosovo’s independence has been recognized by many countries, Palestine has gained new status in the United Nations, etc. This would lead to the necessity to resolve questions related to succession of states, which might, among other subjects, include issues of diplomatic protection which was subject to international legislation – International (...) Law Commission has prepared the Draft Articles on Diplomatic Protection. However, General Assembly is still not ready to adopt this document as a convention, therefore the term to consider possible ways of handling the issues on diplomatic protection within the UN was extended till 2013. Draft articles give the definition of diplomatic protection, indicating the main features of this institute. However, sometimes the difference among the institutes being called the same name with diplomatic protection might cause misunderstandings when analyzing the issue both in general and in the context of succession of states. One of the main prerequisites for diplomatic protection recognized in the jurisprudence of International Court of Justice is the Mavrommatis rule, which indicates that when protecting the citizen’s rights, state in reality is asserting its own right. This rule has been cited in other cases, however, especially now, when individuals already have quite a number of measures to protect their individual rights independently from the actions of state, it has been acknowledged that the rule is fictitious. This recognition, reflected in the Draft Articles and indicated in the commentary of it, is most welcomed as it helps to resolve questions related to the succession of states. There is a need to understand that there is a difference between international obligations under which state is entitled to diplomatic protection and those under which it really asserts its own rights, despite the fact that the latter might also be related to the rights of individuals. This difference is also important in the context of the succession of states, as the consequences arising out of the breach of these obligations in the context of state succession might differ. The last but not least issue addressed in the article is the question of the succession to treaties, which indicate individual rights, but does not form a customary international law. The question is whether the successor state is entitled to diplomatic protection on behalf of its succeeded citizen in a case of a breach of international treaty which was not subject to succession by the successor state. Taking everything into account, there are issues which are not addressed in the Draft Articles on Diplomatic Protection. Herewith there are issues of diplomatic protection which should be addressed in a case of state succession. Nonetheless, it should be reminded that diplomatic protection is always subject to the decision of the state itself, it is just important that newly created states understand and know the possibility to invoke international responsibility of the third state using the means of diplomatic protection, even if the injury was made to its national before the moment of state succession. (shrink)

The article deals with the concept of the court’s fault in the action for damages against a state suffered due to infringement of European Union law. The author searches for the right position of the criterion in the system of the conditions of state liability and discusses whether European Union law establishes a uniform standard of fault, or at least the guidance on the application of the criterion that would enable uniform national judicial practices concerning state liability for the infringements (...) attributable to the courts of last instance. The article also analyses national legal regulation and jurisprudence of several Member States such as France, Belgium and Italy, providing the definitions of different forms of fault and (or) examples of their practical implementation. (shrink)

Criminal liability of legal entities was legitimised in the Republic of Lithuania nine years ago, and in the ruling of the Constitutional Court of 8 June 2009, a conclusive confirmation on its accordance with the Constitution was made. It should be noted that this penal law novelty (providing the extension of the concept of criminal offence subject) caused considerable debate among Lithuanian scientists. One of the most controversial issues of this penal law novelty are the exceptions listed in Article 20(5) (...) of the Criminal Code. (shrink)

The article offers a concise view on the problems related to the Church and State relationship in Latvia. The article presents the author’s hypothesis that under the new circumstances when special legal provisions apply to traditional churches, it must discussed whether the rest of religious organizations could be classified as religious societies, operating in accordance with the Law on Societies and foundations. The author also holds an opinion that it is important for every country to follow the principle of separation (...) of church from state; however, it must be combined with religious freedom. Nevertheless, the article reveals that the task is difficult to follow in practice, in Latvia and in other EU member states alike. (shrink)

In 2011 there are 76 countries of the world still criminalising same-sex sexual acts between consenting adults. In seven of those countries homosexual acts are punishable with death penalty (i.e., Mauritania, Sudan, the northern states of Nigeria, the southern parts of Somalia, Iran, Saudi Arabia, Yemen). Homophobic (transphobic) attitudes are also frequent in many societies. However, the LGBT asylum seekers are frequently left outside the refugee definition due to many refugee qualification problems in LGBT cases. Therefore, in this article the (...) author aims to describe the main refugee qualification problems in LGBT asylum cases (i.e., criminalisation; state protection against non-state persecution; concealment of sexual or gender identity; internal protection) and propose their solutions. Council Directive 2004/83/EC of 29 April 2004 has several important provisions including LGBT asylum seekers into otherwise gender-neutral refugee definition. Today these provisions need to be correctly interpreted and transposed into practice of the Member States. (shrink)

The application of the state immunity doctrine with regard to the guarantee of access to court in the case-law of the European Court of Human Rights has been proved to be a complicated issue. In the ECHR’s case-law before the case Cudak v. Lithuania, the application of the state immunity doctrine had been considered as a proportionate restriction of the right of access to court even in cases of the realization of the protection of the jus cogens norm which was (...) very much criticized by the scholars of international law. Thus, the referral of the case Cudak v. Lithuania to the Grand Chamber could or should change the ECHR’s case-law in this sphere or at least develop certain criteria which would afford ground for a more effective protection to the right of access to court in cases of the application of the state immunity doctrine despite the fact that this right is not absolute. However, the case Cudak v. Lithuania has not fully satisfied these aims. Contrary, the case Cudak v. Lithuania left much obscurity, giving a strong indication that, what regards the realization of the right of access to court, the state immunity doctrine is more a material than a procedural ban, since the argumentation given by the ECHR in this case does not guarantee practical protection of this right. (shrink)

The article describes the main publications of emigrant press during the period of 1945-1990. These publications reflect a significant contribution to the academic research of the constitutional development problematics of an independent Republic of Lithuania in 1918-1940, made by the emigrants who escaped Soviet aggression by going to the West. Among emigrants these topics were mostly analysed and described at the time when any possibilities of objective academic research in Lithuania were widely limited by Soviet ideology and politics. Exceptional attention (...) of emigrant authors was attracted by the democratic constitutional structure of Lithuania, established by the Constituent Assembly. The article describes the academic research made by emigrants on the main constitutional acts established by the Constituent Assembly, such as the resolution of the 15th of May, 1920, ascertaining the fact of reconstructing the independence of the state of Lithuania, as well as the Constitution of Lithuania of August the 1st, 1922. (shrink)

T. G. Masaryk and M. Romeris are certainly prominent personalities and great names in history. It would be hard to understand the Czech nation and the development of the state of Czechoslovakia without T. G. Masaryk’s philosophical views on person, nation, state, and his political activity; and it would be hard to understand certain aspects of the interwar Lithuania’s legal and political development without M. Romeris’ scientific heritage. These are the personalities, who have left a significant inheritance due to their (...) scientific, political and social activities. (shrink)

The paper deals with mutual conditionality of existence between the civil society and legal state. The paper is based on the 1918-1940 doctrine of independent Lithuania, the models of the legal state and the tentative models of the civil society created at that time. In the first part of the article, the concept of the legal state is discussed. In terms of creation of the model of the legal state, M. Romeris works are of exceptional importance. It his works, M. (...) Romeris related the legal state in essence with the legal, procedural system for ensuring the lawfulness. On the basis of works of European scholars of the 19th–20th centuries, M. Romeris conducted a critical analysis of the legal state and elucidated its most significant traits. It is notable that M. Romeris was able to make a correct insight into the strategy of advancing towards the legal state. (shrink)

The paper focuses on the constitutional foundations of the finance system of the Republic of Lithuania. Constitutional jurisprudence pays due respect to the issues of budget system, and to interpret and analyse tax problems. The main purpose of this paper is to analyse separate institutes of the financial system of Lithuania, reflected in the main law of the country – the Constitution, and how these norms are interpreted in the constitutional doctrine. Notably, although the main analysed provisions are entrenched in (...) the Chapter XI “Finances and state budget,” the paper is not restricted only on the analysis of these norms, but also provides a complex analysis of other connected norms and their interpretation in the constitutional jurisprudence. (shrink)

Social life is changing very fast. People are trying to find out reasons of living in a safe society and understand their role in it. The ‘wrong’ and ‘right‘ models of the social life, state and law systems are appearing. In the XXth century, one of them – socialism – made suggestion how to solve social problems, determinated of capitalism. This work deals with the situation of Lithuanian social thought in the Republic of Lithuania (1900-1940). In the article, the standpoint (...) of catholics of socialism is reflected. Catholics displayed socialism as a system, which accumulated many distorted images about human nature, motivations of human behavior, society and its functionating. Considering the society being an organic totality of individuals, but not a faceless mass, and an individual being a personality having natural rights to be respected, but not considered as a little screw without any rights in the state machine, with whom any experiments may be performed, they disclosed Utopia of the idea, proposed by socialists, of the possibility of a perfect society creation by the only preliminarily arranged correct plan,. For this purpose to be achieved, they constructed a model of socialist economy and then destroyed it, demonstrating economical unefficiency of this system. In this manner, intellectuals warned Lithuania and its people about the destructiveness of the realization of such an experiment. In spite of criticism of socialism, some intellectuals, such as A. Maceina, S. Šultė and S. Šalkauskis, appeared to be rather respective to the new social ideas and did not distinguish any social economic system as the best and only one. They thought that all the world, including Lithuania, has to create a new social life and take as a base the progressive ideas of socialism and capitalism. According to the opinion of the catholics, the most reliable way to a safe sočiety and economical welfare passes through the cooperation of individuals and state’s duty to create right laws. Ideological spirit was the main obstacle for the intellectuals to recognize trends of socialism by their aims and methods. That is the reason, why socialism was identified as bolsevism. However, the expression of the intellectuals’ opinion about socialism, its ideological herritage and perspectives enriches the research of the Lithuanian legal phylosophical and political thought and allows to understand better the ideological development of socialism and to define its competence and limits of validity in the contemporary world. Valuable ideas may be fruitfully used in creating a democratic society, social state and the rule of law. (shrink)

The present article is a subjective commentary on the case Kononov v. Latvia dealt by the European Court of Human Rights, in particular drawing attention to the Courts intention not to regard context of the case as important for the substantial issues. Author considers this approach in a bigger picture of clash of historical and legal paradigms of the heritage of the Second World War in different countries (namely, Western Europe, Russia, the Baltic States). Author also discusses what impact Kononov (...) case might have on Soviet crimes prosecution in the future. (shrink)

In 2012 there are 76 countries of the world still criminalising same-sex sexual acts between consenting adults. In seven of those countries homosexual acts are punishable with death penalty (i. e., Mauritania, Sudan, the northern states of Nigeria, the southern parts of Somalia, Iran, Saudi Arabia and Yemen). Homophobic (transphobic) attitudes are also frequent in many societies. However, the LGBT asylum seekers are frequently left outside the refugee definition due to many refugee qualification and procedural problems in LGBT cases. Criminalisation, (...) state protection against non-state persecution, concealment of sexual or gender identity, internal protection were discussed in the previous article ‘The Refugee Qualification Problems in LGBT Asylum Cases’ by Laurynas Biekša2. In this article the authors aim to describe the main procedural problems in LGBT asylum cases (i. e., credibility assessment, late disclosure, country of origin information and reception) and propose their solutions. Guiding European and international standards are laid down in the Reception Directive3, Qualification Directive4, Procedures Directive5 and UNHCR Guidance Note6. Today these standards should serve as a starting point for identifying the problems LGBT asylum seekers may have during their asylum procedures and for finding possible solutions. (shrink)

The present article analyses the qualitative and quantitative parameters of the execution of foreign policy in the Constitution of the Republic of Lithuania. It should be noted that the matters of foreign policy were on the brink of constitutional regulation for a long time. The powers of institutions of the state in the field of foreign relations were established laconically by the Constitutions of first and second “waves” of establishment of constitutionalism. It was argued that the choices of decisions and (...) the execution of foreign policy were determined by political reasons and the law could only fix the results of that policy. That is why these constitutions should be seen as establishing quantitative characteristics of action of the state institutions in the field of foreign policy. As a result of the changes in the concept of the Constitution and the general recognition of the relevance of constitutional regulation from the middle of the twentieth century the constitutional acts began to define not only the powers of certain state institutions in the field of the foreign policy but also the objectives and principles of this policy. These objectives and principles are qualitative parameters of the action of state institutions, which are mandatory constitutional requirements to all subjects engaged in foreign policy. From a qualitative standpoint, the powers of the state institutions can be exercised only by taking the constitutional objectives into account and by respecting the Constitution. The Constitution establishing both qualitative and quantitative characteristics of the execution of foreign policy becomes an actual basis of this policy. It is unlawful to execute foreign policy without complying with its objectives and constitutional principles. The institutions of constitutional review have the powers to determine the constitutionality of legal acts related to the execution of foreign policy. Constitutional regulations previous to the Constitution of the Republic of Lithuania of 1992 only defined the powers of state institutions, i.e. the quantitative parameters of their action. The Lithuanian Constitution of 1992 also established the constitutional objectives and principles of foreign policy. This area of constitutional regulation has been enhanced by the participation of the Republic of Lithuania in the European Union. The author suggests analysing this matter as an autonomous constitutional principle and not only as a case of participation in international organisations or an integral element of the principle of geopolitical orientation. Constitutional objectives and principles of foreign policy, as well as the other provisions of the Constitution regarding the exercise of foreign policy, are interpreted in constitutional jurisprudence. In cases concerning the constitutionality of international treaties, laws and other legislative acts directly related to the exercise of foreign policy, the Constitutional Court reveals the content and meaning of the qualitative and quantitative constitutional parameters of foreign policy. Despite the fragmented nature of the case law one can see the precise contours of the foreign policy system. (shrink)

The article deals with the criteria upon which the powers of the Seimas (the Parliament of the Republic of Lithuania) and the Government are delimited in the constitutional jurisprudence of Lithuania. It analyses how the Constitutional Court construes the principle of separation of powers as entrenched in the Constitution and evaluates the meaning of the provision of the Constitution that corresponding ‘relations are regulated by law’. If the Constitution provides that certain relations are regulated by means of a law, such (...) relations may be regulated only by means of a legal act, which takes the form of a law, and it is, therefore, not permissible to regulate such relations by Government resolutions or other acts of the executive. The most important elements of legal relations must be regulated (established) by means of a law, whereas Government resolutions might establish the procedure for the implementation of such laws. Rulings of the Constitutional Court reveal that once the powers of a specific branch of state power have been directly established in the Constitution, an institution of state power may not assume the said powers fr om another state institution. It may not transfer or waive them; and such powers may not be amended or limited by means of a law. The question remains, whether the provision of the Law on the Diplomatic Service wh ereby the candidacy of a diplomatic representative must be reviewed by the Seimas Committee on Foreign Affairs in advance is not in conflict with the Constitution. (shrink)

The article deals with the legal acts which were adopted by the Supreme Council Reconstituting the Seimas of the Republic of Lithuania on 11 March 1990, and which are related to the restoration of the independent State of Lithuania. The author discloses the chronology of the legal acts adopted on that day and investigates why some particular act was adopted first, and only later another act was passed; he investigates the circumstances which determined the content of the legal acts and (...) shows the interconnection between these acts. The sequence and content of the legal acts of restoration of independence were determined by the fact that the independent State of Lithuania could not arise from the so-called “Lithuanian SSR” which had never been a form of Lithuanian statehood. The restoration of independence could and had to be grounded only upon the continuation of the pre-war Republic of Lithuania. One had to draw a boundary line between the Supreme Soviet of the Lithuanian SSR, which was elected in democratic and free elections on 24 February 1990, and which was a genuine representation of the Nation, from the former Supreme Soviets of the Lithuanian SSR—the essence and formation procedure of which was completely different. This was done by adopting the Declaration “On the Powers of the Supreme Soviet of the Lithuanian SSR” in which it was held that in the 24 February 1990 elections the Nation vested to the deputies of the Supreme Soviet of the Lithuanian SSR the mandate and the duty to restore the State of Lithuania and express the sovereign will of the Nation through this body, which, from 11 March 1990, 6 p.m., would be referred to as the Supreme Council of Lithuania. (shrink)

The article deals with the question whether a state might be held liable for the infringement of the European Convention on Human Rights if its national court of last instance fails to implement the obligation to make a reference for a preliminary ruling to the Court of Justice of the European Union under the conditions laid down in Article 267 of the Treaty on the Functioning of the European Union and developed in the case-law of the Court. Relying on well-established (...) practice that an arbitrary decision not to refer a question for a preliminary ruling theoretically could infringe the right to a fair trial, the author analyses the practical application of the “arbitrariness rule” and discusses whether the European Court of Human Rights has established any specific criteria that national courts are required to bring into play in order to substantiate the decision not to refer. (shrink)

The Czech Republic today belongs to the minority of European republics whose presidents are elected indirectly. It is a paradox that, even when direct election of the President has stable support not only of the majority of Czech society but also of the majority of parliamentary parties, this issue is constantly only discussed. Should direct election gain passage in the Czech Republic, there are formally better preconditions for this than there were in the past. With regard to the fact that (...) a change in the manner of the election of the Head of State hides in itself the potential to impact the functioning of the whole constitutional system, it is worth it to follow how this problem conceived in the Czech Republic. This article is devoted to the standing of the President of the Republic in the contemporary Czech constitutional system and to considerations about direct election from the year 1918 to the present. Attention is also devoted to the difficulties which it is necessary to come to terms with during a potential change in the manner of the election of the President if the current balance of powers between the constitutional organs is to remain preserved. (shrink)

The object of this research is the law created and enforced by different selfgoverning institutions such as the Church, the town, province and village communities in Lithuania in the Middle Ages. The author examines what was the contribution of this law to the realization of the law-governed state model in the Grand Duchy of Lithuania. The author believes that this problem can be viewed through the prism of the competition of these communities and their law with the aristocratic Lithuanian state (...) and the law created and ruled by noblemen. This aspect is not considered in the known scientific studies. Pluralism of law is highly preferable as an idea and in practice in law-governed states, because some regress of this conception in one community can be compensated by a progress in any other community. The author thus aimed to advance the hypothesis that favourable conditions for the law-governed state conception in Lithuania in the Middle Ages potentially existed. (shrink)

Today’s Lithuania is the historical-legal result of many processes, including the creation of the country in the thirteen century, ongoing life during five hundred years, two annexations resulting in the disappearance from the political map and two rebirths. The tradition of statehood and extended experience has greatly contributed to its survival and its ability to regain statehood in the light of the changed political, economic and social circumstances. Upon the climax of the First World War, the reinstatement of the statehood (...) of Lithuania has been influenced by favourable international situation, the popularity of the principle of nation’s free choice, and the decisive actions by the Lithuanian politicians. The relationship of the modern Lithuanian statehood with the historical state of Lithuania meant the continuity of this statehood, even though it was a multinational country. Without any other prospects upon the fall of other European empires, it has been replaced by the statehood based on national ethnicity. Together with the determination to manage the reinstated country of Lithuania according to the democratic principles, this was the main difference from the historical Lithuania. The state of Lithuania has managed to keep its own legal formal framework even though it has lost sovereignty upon annexation by the Soviet Union. The statehood has been reinstated once favourable circumstances came into place within the Union. The High Council of Lithuania has transformed from being a marionette structure forced upon by alien country into an instrument of parliamentary struggle for independence that has represented the second rebirth of the statehood of Lithuania. The formation of own law in both cases occurred by temporarily using current alien legislation that was not in conflict with the newly adopted constitutional legislation. The former has been gradually replaced by own legislation. (shrink)

This article reveals the implications that made the Lithuanian Council to step aside allowing the Temporary Government to continue the further process of restitution of Lithuania, immediately after becoming the central constitutional state institution. Prior to that, Lithuanian (State) Council had managed to declare the independence of Lithuania on the 16th of February 1918 under extremely difficult political circumstances and established the statehood on the 2nd of November of the same year. Under the will of the Vilnius conference of Lithuania (...) that took place in autumn of 1917, all Lithuanian political streams of these days have been represented in the Lithuanian Council. However, the Council itself has not managed to save the representative ability by agreeing with the resignation of its left element and by continuing the expansion and distance from the community of Lithuania. The Council has become an institution representing the right wing of the Lithuanian community which could not ensure any greater support. (shrink)

The very idea of the draft European Union (EU) Constitutional Treaty was reexamined after the failed French and Dutch referendums and the Treaty of Lisbon (also known as the Reform Treaty) was drafted and entered into force on 1 December 2009 after it’s ratification by all 27 member states. The traditional notion of a Constitution as a national legal document establishing the social contract and a moral minimum for a particular socially unified group still prevails in legal and political thinking. (...) Indeed, the European Union has some constitutional elements, but absence of the so called ‘European demos’ prevents us from recognizing the founding treaties as a real ‘European constitution’ in the proper sense of the word. The author agrees with the decision to exclude the term ‘Constitution’ from the title and contents of the new Reform Treaty. The author also suggests that softer terms, like ‘European constitutional order’ and ‘European Constitutionalism’ might better reflect the scope of contemporary European integration than the term of ‘a Constitution for Europe’. A rethinking of the ‘constitutional core’ of the Lisbon Treaty was inspired following the so-called Lisbon judgments of Czech, Latvian and German constitutional courts. (shrink)

This article analyses the legal basics of the Member States liability in damages for the breach of European Union law and the conditions for liability. It is emphasized that the Member States liability in damages for the breach of European Union law has three different grounds—one direct legal background (Article 4 of the Treaty of the European Union) and two indirect basics—principles of direct effect and that of effectiveness of European Union law. The author subsequently examines the content of each (...) condition for liability established in the practice of the Court of Justice of the European Union —the intention of the rule of European Union law infringed to confer rights on private parties, the sufficiently seriousness of the breach and the direct causal link between the breach and the damage. It is stated that in order to prove that a Member State is liable for the breach of European Union law, one more condition for liability should be established—a private party must prove that he has incurred particular damage. It is also highlighted that the second condition for the Member States liability in damages for the breach of European Union law —sufficiently seriousness of the breach—restricts the right of a private party to obtain compensation. (shrink)

This article analyses that state responsibility in international law is contractual liability, as a state infringes its obligations to another state (states), stemming out of international law. Member State liability in damages to a private party for breach of European Union law is, contrarily, non-contractual liability to a private party. Having analysed the elements of internationally wrongful act, it is stated that the elements of internationally wrongful act can be used to determine the elements of breach of the European Union (...) law. Thus if an international court declares that a state committed an internationally wrongful act, it would be possible to maintain that the elements of breach of the European Union law are met as well. The author of this article notes that it is very important to identify a particular state institution, which has infringed the European Union or international law, as not attributing to the state the acts of the state institution under the European Union or international law, there should be no possibility to apply state liability in damages to a private party for breach of the European Union law or state responsibility in international law – the state can be liable only for acts of its institutions. This article also analyses the cases where application of both Member State’s liability in damages to a private party for breach of the European Union law and state responsibility in international could be possible. In such case a private party can suffer damages if a Member State breaches an international agreement, concluded by the European Union, imposing particular obligations on that Member State. Therefore, it is ascertained that a private party should not have to prove the second condition of liability – sufficient seriousness of the breach1 – if an international court foremost states that a Member State commited an internationally wrongful act – breached its obligation arising out of an international agreement entered into by the European Union. Such an infringement would be considered to be as sufficiently serious per se. (shrink)

The article deals with the question whether a state might be held liable for the infringement of constitutional law if its national court of last instance violates the obligation to make a reference for a preliminary ruling to the Court of Justice of the European Union under the conditions laid down in Article 267 of the Treaty on the Functioning of the European Union and developed in the case-law of the Court. Relying on the well-established practice of the European Court (...) of Human Rights, which accepts that in theory an arbitrary decision not to refer a question for a preliminary ruling could infringe the right to a fair trial established in the ECHR, the author analyses whether constitutional courts of Germany, Czech Republic, Spain and Lithuania have elaborated the equivalent practice and if so, whether they have established any specific criteria that national courts are required to bring into play in order to substantiate the decision not to refer. (shrink)

The article discusses the possible consequences that can be faced by a Member State of the European Union if its national court does not comply with the obligation to make a reference for a preliminary ruling to the Court of Justice. The TFEU does not specify any sanctions applicable to a state when its national court disregards its obligation under Article 267 TFEU. Therefore, the analysis focuses on the practice of the Court of Justice and its interpretation by scholars. At (...) the outset, the author analyses whether refraining from making a reference for a preliminary ruling can lead to the duty to pay damages to an individual. Taking into account the criteria of a sufficiently serious breach formulated in the Köbler case, the author comes to the conclusion that the infringement of the obligation to make a reference for a preliminary ruling is one of the most important criteria in assessing whether a Member State has to pay damages for any loss suffered by an individual, but the infringement itself is not sufficient to make a state liable. (shrink)