EU Law Provisions Research Articles

INNOVATIVE TRANSFORMATIONS OF THE NATIONAL LEGAL SYSTEM OF UKRAINE AS A CONDITION FOR PARTICIPATION IN EUROPEAN POLICIES

Introduction. The article highlights the essence of the main innovative transformations taking place in the legal system of Ukraine in the context of intensification of the European integration processes from the standpoint of general theoretical analysis. The author focuses on the interrelation between changes in the national legal system of Ukraine and the State's involvement in European policies. Summary of the main results of the study. It is found that deepening of Ukraine's participation in European policies depends on several basic organizational and legal factors: formation of a unique regulatory framework for the implementation of EU legal standards into the system of national legislation of Ukraine, institutional reforms in the system of public authorities, improvement of the contractual framework for the development and deepening of political relations between Ukraine and the united Europe. The author reveals the main clusters of EU law provisions which are currently most implemented in the legal system of Ukraine (customs, food security, veterinary and phytosanitary policy, consumer protection and healthcare, statistics, foreign relations, transport policy, freedom of entrepreneurship and provision of services, financial services, freedom of movement of goods). It is proved that formal and legal support for the "transfer" of many areas of public administration and life in Ukraine to EU standards contributes to the formation of new social practices of their implementation similar to the European ones (functioning of public services, law enforcement and public safety, education and science, health care, etc.) Conclusion. The author substantiates the conclusion that innovative changes in the national legal system of Ukraine determine the degree and depth of our country's participation in European policies. The gradual deepening of involvement of employees of the system of public authorities and local self-government, as well as citizens involved in other spheres of society in the main areas of the EU's functioning, creates a real basis for accelerating Ukraine's accession to the EU. Accordingly, a promising task of legal science is to substantiate the most effective ways of further implementation of legal standards for the regulation of public relations, which are recognised as model ones at the EU level.

C-238/22 LATAM vs C‑180/22 Mensing II: Is the Court’s approach to the relevance of the wording used in EU law provisions too flexible?

C-238/22 LATAM vs C‑180/22 Mensing II: Is the Court’s approach to the relevance of the wording used in EU law provisions too flexible?

Syntax of European Union Law

The article investigates the significance of syntax in the multilingual EU law. It attempts to respond to the question whether syntax is apt to contribute to the uniformity of that law and how, with regard to this function, it relates to the (widely disputed yet uncontested) semantic and pragmatic methods of achieving such a uniformity. In order to respond to this question, the article firstly, recalls fundamental concepts which would help conceptualize the endeavour and, secondly, presents examples of analysis of syntax arrangements which can be deemed representative for the study of the said problem of contribution. The study finds that EU law (expressed in 24 official languages which have equal authentic status) relies on diversified syntax of its respective constitutive languages. Syntax structures used in respective language versions of EU law represent narrower, law-specific, form of syntax structures available in these languages. Its specificity is determined mostly by legislative traditions of respective EU member states. Syntactic structures of EU law produced in different official languages do not represent a single pattern because of diversified mode of producing illocutionary value of provisions in which strongly idiomatic modal verbs (modal operators) and even special modal structures (not necessarily containing modal verbs) are used to express legal norms. They also differ when it comes to their law-specific compositionality, i.e. flexibility of different syntax structure to produce the same meaning and, in the same time, to preserve their genre/register informational value. Notwithstanding, these structures have well pronounced and system-significant common features within respective Germanic, Romanic, and Slavic families of languages in which EU law is mostly reproduced. The sentence structure and the relevant register of EU law provisions are the same for respective versions of EU texts of law expressed in the languages belonging to the respective three language families which were examined for the sake of this study. These common features are re-enforced by the synoptic mode of producing EU law which imposes formal resemblance of provisions reproduced in respective EU official languages to each other. The multilingual EU legislator also uses patterns which grant legal text the relevant register, yet its specific EU character ultimately transpires through semantic aspects of EU texts rather than their mere syntax. The unity of the system is achieved most strongly through the EU specific interpretation, where the teleological methods (which can be conceived as a language means to achieve EU law goals and objectives at the pragmatic level) are of utmost importance. Thus, there is no EU-specific syntax which would, as such, contribute to unity of EU law. Instead, unity is achieved in the area of semantics and pragmatics. The well exposed anaphoric character of EU law (as any other type of law) may contribute to narrowing down possibility for differentiation of respective language versions of EU law.

How Many Appeals Does Effective Judicial Protection Require?

In Randstad, the Court of Justice was improperly called to arbitrate competence conflicts amongst Italy's highest courts. Specifically, the Court was asked whether the EU principle of effective judicial protection required a third level review of decisions giving – or, rather, not giving – effect to substantive EU law provisions. While the somewhat hands off take on the principle of effective judicial protection was more than appropriate on the facts of the case given the residual procedural autonomy of the Member States, the judgement and – to some extent – the more demanding opinion of the Advocate General raised questions as to what limits are placed on that autonomy by the principle of effective judicial protection.

Artificial intelligence systems and the right to good administration

The use of AI in public administration is becoming a reality, although it is still a long way from large-scale undertakings . The right to good administration, well-established in EU legal order, is equally real, however, it must be borne in mind that this right has so far been defined only in relation to traditional administration . Therefore, the purpose of the paper is to examine whether the use of AI in public administration would allow individuals to fully exercise their right to good administration. To achieve this purpose, it is reconstructed, on the basis of EU law provisions in force and the case-law of the CJEU, the meaning and scope of the right to good administration, and analysed, taking into account a definition of AI systems and planned legislative changes, whether and to what extent the reconstructed understanding of this right enables the use of AI systems in public administration. In the course of research the hypothesis that the right to good administration does not preclude the use of AI systems in public administration is verified . As the conducted analysis shows, the right to good administration as interpreted in traditional administration enables the use of AI systems in public administration, provided that the appropriate quality of these systems and the level of knowledge and skills of the parties and authorities are ensured .

Parliamentary Sovereignty before and beyond Brexit

Abstract This article assesses the doctrine of parliamentary sovereignty against the background that, at the time of UK’s withdrawal from the EU, UK parliament proclaimed it to be preserved despite the continuing domestic legal effect accorded, under 2018 and 2020 Acts, to pertinent EU law provisions in the UK legal system. The relevant evidence is analysed to show whether that position is one to which English law subscribes.

Prohibition of Discrimination on Grounds of Nationality in the Freedom of Movement of Persons within the EU in the Light of Case Law of the Court of Justice of the European Union

Prohibition of Discrimination on Grounds of Nationality in the Freedom of Movement of Persons within the EU in the Light of Case Law of the Court of Justice of the European Union

Digital Services Taxes: The International Experience and Relevance for the Russian Federation

The article deals with the problems arising in connection with the taxation of the digital economy, using the example of the proposals of the OECD and the EU on the introduction of a tax on digital services, as well as unilateral measures of national states in the area of taxation of the digital economy (on the example of the French digital tax). The main question for the study is whether unilateral measures imposing taxes on digital services represent a suitable solution to the tax problems that arise in connection with digitalization. Based on the legal analysis of both the EU Law provisions and domestic legal reality the author substantiates conclusions as applied to the Russian Federation.

The Interrelation between Public Participation and Access to Justice in the eia Context in the Face of the Increasing Use of Digital Technologies: Comment on the cjeu Judgment in the A.Flausch et al Case (C-280/18)

Abstract The article analyzes the cjeu Judgment in the A. Flausch et al case, which concerns the compatibility of the Greek procedural rules relating to specific aspects of the public participation in the eia context and to a specific aspect of access to justice (time limit) with the respective EU Law provisions in the face of the increasing use of digital technologies in the public participation procedures. This ruling is important, because it sets limits to the procedural autonomy of ms when it comes to the rules that are applied to the eia-related disputes and those that concern the public participation arrangements. It demonstrates, though, the lack of a steady line in the Court’s jurisprudence concerning the standards for assessing the national procedural rules and the role of Article 47 cfr. Moreover, the Court did not lay the ground for an interpretation of the ΕU public participation provisions in a way that an obligation for taking measures could be established, with the aim to ensure equal participation opportunities.

Policy Report: Priority Setting in EU and National Competition Law Enforcement

Effective enforcement of competition law is vital for the functioning of competitive markets. As competition authorities are constrained by scarce financial and human resources, it is neither possible, nor desirable, to enforce every possible competition law infringement. Hence, the power to set priorities – that is the competition authorities’ legal competence and de facto ability to choose which cases to pursue and which to disregard - is a precondition for preserving society’s resources to tackle the most harmful infringements. Credible enforcement priorities build independent and accountable competition authorities. A degree of discretion to set enforcement priorities, therefore, serves a double purpose of effective allocation of scarce resources and the concretisation of the open-ended and broadly formulated competition law norms. At the same time, the exercise of such discretion is subject to external and internal constraints and influenced by substantive, procedural, and institutional rules guiding the authorities’ course of action. Despite its importance, the theoretical foundations and practices underlying the setting of enforcement priorities in competition law are vastly unexplored in Europe: they remain largely overlooked by policy and decision-makers; there is no clear set of definitions or criteria to guide prioritisation; and effective accountability mechanisms to evaluate and reform prioritisation choices remain underdeveloped or are completely absent. In particular, the question of priority setting had limited relevance in the enforcement of EU competition law for many years. Under the pre-2004 notification based and centralised regime, the Commission had devoted much of its resources to respond to notifications, leaving only limited room to devise its enforcement strategy. Even after the shift to the decentralised enforcement regime, which enabled the Commission and national competition authorities to set their priorities, there are few EU law provisions to guide the priority setting principles and practices of the competition authorities. This remains valid even after the implementation period of the ECN+ Directive has ended. This Policy Report fills this gap by offering four main contributions: first, it introduces a new theoretical framework, developed by the authors to establish a common typology to guide the analysis of priority setting rules and practices. More specifically, the Report identifies seven different legal, economic, and political aspects of setting priorities for competition law enforcement, each of which may be subject to external or internal control. Those seven aspects include: (i) setting an enforcement agenda; (ii) legal (de jure) competence to prioritise; (iii) (de facto) ability to prioritise; (iv) procedural rules framing the prioritisation decision; (v) substantive criteria that determine which cases are priority and which are not; (vi) alternative enforcement mechanisms: instrument and outcome discretion; and (vii) impact assessment. Second, the Report provides a systematic and comprehensive mapping of the procedural and substantive priority setting rules and practices guiding the competition authorities of the 27 EU Member States, the United Kingdom, and the EU Commission according to the proposed typology. Pointing to a great divergence in this regard, it demonstrates that each competition authority’s priority setting powers and practices are deeply embedded in, and directly shaped by its respective administrative law systems and constitutional and political order. Accordingly, the Report classifies the competition authorities into four representative models on the basis of their specific rules and practices to set their enforcement priorities. Third, the priority setting rules and practices are evaluated against a set of administrative law principles of good governance, including effectiveness, efficiency, independence, transparency, and accountability. The Report demonstrates that each of the four representative models entail a different trade-off between those administrative law principles. Fourth, based on the above, the Report provides policy options (a “checklist”) on how legislators and CAs could review and if necessary, reform their existing practices or design new priority setting rules and practices to meet the administrative law principles of good governance. Notably, the Report does not intend to provide a single best model for priority setting. Rather, it offers competition authorities legal and practical solutions on how to design and apply priority setting in a way that fits their respective legal framework and mandate, thereby offering country-specific trade-offs.

Cross-Border Commercial Disputes: Jurisdiction, Recognition and Enforcement of Judgments After Brexit

Brexit raises a whole range of legal issues in multiple areas. The consequences on the EU framework for jurisdiction, recognition and enforcement of judgments are of particular interest for private parties involved in cross-border commercial agreements. This paper explores the legal basis for the jurisdiction of courts and the enforcement and recognition of judgments between the UK and EU-27 courts after Brexit. In addition, it broadly contrasts the main differences of the proposed solutions compared to the EU system. The paper argues that international conventions can provide answers to some of the questions as they set out rules for the jurisdiction, enforcement and recognition of judgments. However, there are factors that can have an impact on possible legal outcomes, such as the framework of the future deal between the UK and the EU-27, the moment of the commencement of proceedings by the parties in the transition period, or the fact that the parties did not opt for exclusive jurisdiction in their agreements. The Withdrawal Agreement provides for some clarity on which EU law provisions apply during the transition period. In addition, the EC Notices and the UK Brexit legislation provide for guidelines as to the rules applicable in and immediately after the transition period. Nevertheless, as the paper analyses, there is still a need for further clarification. Therefore, other methods of dispute resolution proposed in the article such as moving to arbitration instead of English court jurisdiction could provide legal certainty for private parties. Keywords: EU law, Brexit, art 50, withdrawal agreement, recognition and enforcement of judgements, EU civil justice and judicial cooperation, cross-border commercial disputes. This work is licensed under the Creative Commons Attribution − Non-Commercial − No Derivatives 4.0 International License. Suggested citation: M Kulinska, ‘Cross-Border Commercial Disputes: Jurisdiction, Recognition and Enforcement of Judgments After Brexit’ (2020) 16 CYELP 279.

A Commentary on the Right to an Effective Remedy in the Case Law of the CJEU

The right to an effective judicial remedy is an essential element of realising the rule of law. It is the fundamental right granting individuals the possibility to request independent review of compliance with the legal provisions. The genius of protecting as an individual fundamental right this structural notion of independent judicial review, has much contributed to the prominence and the protection of judicial accountability and effective enforcement of EU law. Yet, this critical commentary on the right to an effective remedy shows that the case law of the CJEU has predominantly aimed at ensuring Member State compliance with the right to an effective remedy. When it comes to reviewing EU law provisions against this right, the general considerations of ensuring effective judicial remedies are a lot less pressing, and accordingly, the CJEU has decided to be less stringent in its application of the right. Such case law of the CJEU has left gaps in protection. The commentary ends with the observations that additional problems for the enforcement of the right to an effective remedy arise from the often-composite nature of procedures, linking one or several Member State bodies with European institutions and bodies in one single procedure.

Religious slaughter and animal welfare revisited: CJEU, Liga van Moskeeën en islamitische Organisaties Provincie Antwerpen (2018)

The article comments on a Grand Chamber judgment by the Court of the European Union on animal slaughter according to Islamic prescriptions. The relevant European Union laws prescribe that religious slaughter without stunning of the animal may only take place in approved slaughterhouses which causes a shortage during the Muslim feast of sacrifice in the Belgian province of Antwerp. The EU law provisions are in conformity with the animal welfare mainstreaming clause of the Treaty on the Functioning of the European Union. Moreover, the EU regulation and its application in the concrete case does not violate the fundamental right of free exercise of religion as guaranteed by the EU Fundamental Rights Charter. Finally, the refusal to make an exception for the peak demand for slaughter facilities during the feast does not constitute an indirect discrimination against Muslims. The paper agrees with the outcome of the judgment but criticises the Court for failing to consider the rights of religious minorities more broadly, and for not addressing the animal welfare point sufficiently.

Article 7 of the Directive 2012/13/EU on the Right to Information in Criminal Proceedings: A Missed Opportunity to Ensure Equality of Arms in Pre-Trial Proceedings?

This article critically examines the EU law provisions on the right of access to the materials of the case in pre-trial criminal proceedings (Article 7 of Directive 2012/13/EU). It argues that they are insufficient to ensure adequate protection of this right in Member States. Furthermore, the approach chosen by EU legislator did not properly implement the European principle of the equality of arms in pre-trial proceedings. It is submitted that a clearer standard is needed to ensure an appropriate balance between the interests of adequate protection of individual rights and of protecting safety and security. It is suggested that although some room for national interpretation is desirable, the right of early access to the case materials should be endorsed by all Member States with derogations applied sparingly and under specific circumstances. Here further guidelines from the cjeu play significant role in order to ensure equality of arms in pre-trial proceedings.

UberPop, UberBlack, and the Regulation of Digital Platforms after the Asociación Profesional Elite Taxi Judgment of the CJEU

The Uber case, decided by the Grand Chamber of the CJEU on 20 December 2017, has the potential to reshape the regulation of contracting in the digital economy. More precisely, it specifies the rules applicable to online platforms serving as intermediaries between parties demanding and offering services. The criteria the CJEU uses to reach its conclusion are likely to have repercussions far beyond the area of transportation applications. This Case Note starts by presenting the facts of the case and the legal background of those EU law provisions potentially governing digital intermediaries. It then explores the criteria the Court uses to distinguish Uber from simple intermediation services, followed by a discussion and critique of these criteria. In the last two sections, it maps out the implications of the judgment for the platform economy, and suggests that one decisive impetus of the judgment should be a thorough review of regulations governing the provision of services in the EU.

Ivan Franko National University of Lviv

The paper examines legal foundations of adaptation of the Ukrainian laws to the EU Law in the area of company regulation, in particular in the context of the EU-Ukraine Association Agreement. Specific aspects of the corporate law implementation as well as topical acts and provisions are outlined in the research, which should be harmonized with the EU Law provisions in the process of law making on accompany regulation. The laws of Ukraine are analyzed with the view of defining the state of play with the implementation of relevant provisions of the Association Agreement on company regulation. New laws are subject to analysis, in particular, those related to coming into force of the Law of Ukraine «On amending some legislation on enhancing the level of corporate management in joint ventures» (of 23 March 2017, № 1983-VIII) and «On ventures with limited and additional liability», which takes into account certain provisions of EU Directive № 89/667/ЄЕС of 21 December 1989 on one-person private companies with limited liability in the edition of EU Directive 2009/102/ЄС of 16 September 2009, obligatory for implementation by Ukraine according to the EU-Ukraine Association Agreement. Key words : corporate law; EU-Ukraine Association Agreement implementation; company law.

Online Intermediation Platforms and Free Trade Principles Some Reflections on the Uber Preliminary Ruling Case

Commercial Court No 3 of Barcelona sent a request for a preliminary ruling to the CJEU regarding the extent to which Uber which operated its uberPOP service in Spain without an authorization from the Spanish authorities should be protected by EU law provisions designed to ensure the free movement of services in the European Union. The paper demonstrates that uberPOP is not a “transport service” falling under under Title VI TFEU, but an “information society service” within the meaning of the E-commerce Directive. Therefore, uberPop benefits from the protection against undue trade restrictions provided by this directive, as well as by Article 56 TFEU. This implies that regulatory requirements that do not protect a public interest objective in a proportionate and non-discriminatory manner are incompatible with EU law. The judgment of the CJEU will have significant implications on the way EU Member States are able to regulate Uber services, but also the services provided by other intermediation platforms in the future.

The Regulatory Consumer: Prosumer-Driven Local Energy Production Initiatives

This paper analyzes the (pro)active role consumers could (and are encouraged by the respective policy to) assume in markets that emerged due to European market liberalization and technological changes. These changes expanded consumer markets and changed regulatory architectures accordingly. Consumers’ purchasing decisions became key to the well-functioning of markets: they are entrusted to regulate markets and contribute to the competitiveness and the legitimacy of market processes. In the EU, consumers are expected to contribute both to EU market integration and to European society. However, this new regulatory role of the consumer is not matched with a corresponding legal framework. The policy discourse on consumers’ active participation in markets and even their accountability for regulating markets is not matched with the necessary legal (consumer) provisions to do so. The mismatch between legal rules and consumers’ new role in market regulation may lead to regulatory ineffectiveness and legal uncertainty. Moreover, while technological developments make this active consumer role possible, there is in fact also a gap between law and technological development, which can lead to the problem of ‘regulatory disconnection.’ These problems are especially present in the EU energy sector, where technical developments such as smart meters, solar panels, decentralized energy storage, etc., enable a proactive role of energy consumers. Consumers are often prosumers of energy i.e. consumers who produce their own energy. This paper critically analyzes current EU law on the (energy) consumers’ new role in market regulation. It analyzes normative EU law concepts and definitions of the consumer and examines whether and how rules comply with the concept of the active regulatory consumer. The paper uses a case-study of the prosumer-driven local energy production initiatives and examines whether the energy consumers’ new role creates regulatory disconnection, especially if it is not matched by the progress in corresponding EU law provisions.

Conclusions on the 'Proceduralisation' of EU Law Through the Backdoor

Despite the limited procedural competence of the EU, there has been a bourgeoning of initiatives and rules placing emphasis on judicial enforcement and remedies across several EU policies, such as those relating to competition law, the free movement of workers, environment, consumers and data protection. The questions arising as a result of these legislative initiatives is whether and to what extent a process of ‘incidental proceduralisation’ of EU law is taking place and is legitimate. The six contributions compiled in this Special Issue seek to critically examine the process of incidental proceduralisation by looking at which procedural rules have been introduced, their rationale, coherence within the policy field as well as perceived usefulness for the application of the substantive EU law provisions they were enacted to serve. On the basis of these sectoral analyses, this paper seeks to draw general observations on the dynamics and characteristics of this incidental proceduralisation process. It concludes that the legitimacy of the proceduralisation process has not yet been significantly called into question. Furthermore, despite the wide variety of rules examined, it is possible to identify general trends in the way the EU initiates or supports changes in enforcement or litigation cultures.

The Evolution of Direct Effect in the EU: Stocktaking, Problems, Projections (Abstract only)

Focusing on the case law developed by the Court of Justice of the European Union since Van Gend en Loos, this article contends that three important shifts occurred concerning the effects of EU law in national courts since that case was decided. First, the existence of a particular category of effect) EU norms, which implies a process of selection among EU law provisions, is no longer as problematic as the method of comparison and combination of norms in judicial reasoning that has become a vehicle for the penetration of EU law in courts. Second, the possibility for individuals to claim (subjective) rights on the basis of the Treaty is overshadowed by questions concerning obligations imposed by the Treaty on individuals, and more generally, on the methods through which this horizontal effect occurs. Third, the duty for national courts to apply EU law provisions directly (direct enforcement) is now coupled with one prior question that these courts have to address, and which has become much more sensitive than before in view of the growing centrality of fundamental rights' protection in the EU system: the question of the applicability of EU and national (constitutional) law. Having examined these three shifts, the article concludes that it has become urgent to reconsider the effects of EU law in member states in order to avoid a decline of individual rights and freedoms resulting from EU law enforcement. Thus, Revisiting Van Gend en Loos leads to a reflection on the hypothesis, in which EU law should yield and national courts should be granted more discretion, when confronted with the resisting substance of national law (especially fundamental rights or freedoms protected by national constitutions).