This article concerns constitutional problems related to the implementation of EU directives seen from both the legal and comparative perspectives. The directives are a source of law which share a number of characteristic features that significantly affect and determine the specificity of Member States’ constitutional review of the directives as well as the legal acts that implement them. The review of the constitutionality of EU directives is carried out in accordance with the provisions of national implementing acts. Member States’ constitutional courts adopt two basic positions in this respect. The first position (adopted by, inter alia, the French Constitutional Council and German Federal Constitutional Court) is based on the assumption of a partial “constitutional immunity” of the act implementing the directive, which results in only a partial control of the constitutionality of the implementing acts, i.e. the acts of national law implementing such directives. The second position, (adopted, explicitly or implicitly by, inter alia, the Austrian Federal Constitutional Court, Czech Constitutional Court, Polish Constitutional Court, Romanian Constitutional Court and Slovak Constitutional Court) concerns the admissibility of a full review of the implementing acts. This leads to the admissibility of an indirect review of the content of the directive if the Court examines the provision as identical in terms of content with an act of EU law. Another issue is related to the application of the EU directives as indirect yardsticks of review. The French Constitutional Council case-law on review of the proper implementation of EU directives represents the canon in this regard. Nonetheless, interesting case studies of further uses of EU directives as indirect yardsticks of review can be found in the case law of other constitutional courts, such as the Belgian Constitutional Court or Spanish Constitutional Court. The research presented in this paper is based on the comparative method. The scope of the analysis covers case law of the constitutional courts of both old and new Member States. It also includes a presentation of recent jurisprudential developments, focusing on the constitutional case-law regarding the Data Retention Directive and the Directive on Combating Terrorism.

This commentary on the Court of Justice’s ruling in the Pawlak case concentrates on questions of the judicial application of EU law, in particular EU Directives. On the basis of the recent jurisprudence of the Court the authors present three issues: 1) the incidental effects of EU law for the procedural provisions of Member States; 2) the inability to rely on an EU directive by a member state’s authority in order to exclude the application of national provisions which are contrary to a directive; 3) the limits of the duty to interpret national law in conformity with EU law from the perspective of the Court of Justice and the referring court. Further, the article presents the judicial practice of the Polish Supreme Court, and in particular the follow-up decision of this Court not only taking into the account the ruling of the ECJ but also showing how the limitation of a conforming interpretation can be overcome in order to give full effect to EU law. In the authors’ view, this case is worth noting as an example of judicial dialogue in the EU.

Five years ago, the Act on the protection of animals used for scientific or educational purposes entered into force. It is the implementation of Directive 2010/63/ EU into the Polish legal system. During the work on the Directive, most scientists were convinced that the previous Act on animal experiments of 2005 was in line with the new EU law and only minor modifications would be necessary. Legislators, however, decided to create a completely new legal act. Already at the time of the Act's creation, the scientific community made many critical comments regarding the law. Significant discrepancies between the Directive and the proposed provisions of the Act were far more stringent, and in many places with imprecise provisions which could have resulted in difficulties in conducting research using animals. Unfortunately, most of the postulates of the scientific community were not considered at that time. What does the Act look like 5 years after its adoption? Instead of a transparent and balanced law modeled on the EU Directive, which provides real protection for experimental animals, while safeguarding the intellectual rights of animal testing units, a patch of underdeveloped, sometimes mutually exclusive provisions has been issued. Instead of raising the welfare of the animals used for research to a higher level, it significantly increased the costs of operating research units and increased bureaucracy. Instead of rationalizing the system of issuing consents for research, it has been weakened and entangled in administrative and legal disputes without the provision of basic administrative facilities. Instead of increasing the international mobility of scientists and technicians working with experimental animals, the implementation of the law created a training “system” that is not recognized in any other EU country. In the light of the 5-year experience of the scientific community and the expert part of the composition of local ethics committees, we postulate to introduce a number of significant changes to the act so that its amended version actually ensures animal protection, respect for researchers and returns to the current of European legislation.

This is response of the authors of the article published in the “Nauka” (3/2020) to the polemic note published in the issue 1/2021. In the response, authors signaled the progressive difficulties in conducting research on animals, attributed to the practices of applying the “Act on the protection of animals used for scientific or educational purposes” of January 15, 2015. The use of animals for research in accordance with the provisions of the Act of 2015 was paid for by a number of ambiguities in the interpretation of the provisions of the Act, increased official reporting without any real effect on animal welfare, and increased pressure from some non-governmental organizations, whose aim is to completely block the conduct of animal research.