EU Law Research Articles

Towards e-Lending by Libraries

The commentary discusses a judgment of the CJEU on the interpretation of EU law in relation to e-lending by libraries. E-lending conducted by libraries using digitized paper books is known as Independent Secure Digital Lending (iSDL), which is the European equivalent of the Control Digital Lending (CDL) system used in the USA. The Court clarified that lending digital copies of books by public libraries can be covered by the exception from the exclusive lending right provided it has similar characteristics to lending printed works. The “one copy, one user” model, where a digital copy is placed on the library’s server, and only one user can download it during the lending period, aligns with Directive 2006/115. However, the practical implementation of e-lending in public libraries still faces challenges. The judgment does not change the optional nature of the public lending exception, allowing Member States the freedom to implement it or not. Many countries are influenced by traditional interpretations that limit lending only to physical copies. Moreover, for e-lending to be considered legal under EU law, libraries must possess a digital copy from a legal source. This raises the question of whether libraries can, under the existing exceptions outlined in the InfoSoc Directive, digitize their physical book copies for subsequent e-lending. This issue was not definitively addressed in this judgment, but it found support in the Advocate General’s opinion. Simultaneously, due to the prevailing traditional approach to lending at the Member State level, e-lending is still not widespread in practice.

Вільний рух товарів: моніторинг та оцінка впровадження угоди «Про асоціацію між Україною та ЄС

Abstract. The article analyses and assesses the current state of Ukraine's implementation of the EU acquis under the Association Agreement in the sector ‘Trade and Trade-related Matters’ on free movement of goods. The legislative and institutional framework for free movement of goods, albeit partially, already exists, in particular for the sectors that the ACAA may cover, thanks to the DCFTA commitments. Currently, the Verkhovna Rada of Ukraine is considering several draft laws on state market surveillance and standardisation to enable Ukraine to become a full member of the EU customs union in the near future. It is noted that the rapid elimination of systemic problems and further adoption of horizontal and vertical legislation of Ukraine harmonised with the EU law on free movement of goods will allow to move the issue of signing the Agreement on Joint Recognition of Certificates of Conformity for Industrial Products by Ukraine and the European Union (ACAA) into the practical plane. Monitoring of the fulfilment of obligations in this area made it possible to conclude that the level of preparation for bringing domestic trade legislation in key sectors in line with the European acquis communautaireis average . The articleidentifies the measures used to formulate and implement the policy of free movement of goods to ensure the fulfilment of Ukraine's obligations under the EU-Ukraine Association Agreement. It is concluded that our country demonstrates a moderate level of preparation in the field of free movement of goods, which, on the basis of common rules and procedures, guarantees the possibility of free trade in goods to the Common Market member states in the European Union. At the same time, Ukraine still needs to analyse its legislation, especially in terms of its practical application in this area, and do its homework, in particular, on technical regulations, standards, conformity assessment, accreditation, metrology and market surveillance. Keywords: free movement of goods; Association Agreement; ACAA Agreement; EU acquis; EU internal market; Deep and Comprehensive Free Trade Area (DCFTA); customs union.

Privacy and Personal Data Protection v. the Protection of National Security and the Fight Against Crime: An Analysis of EU Law and Judicial Practice

Considering the risks that accompany technological progress, the need for personal data protection has significantly increased in today’s world. While digital technology offers many benefits, it has also created unprecedented opportunities for surveillance, posing a threat to human rights and democratic values. Fighting against crime and safeguarding national security are important legitimate aims, and processing data related to electronic communications is one of the means for their achievement. At the same time, the state’s extensive power can create a sense of constant surveillance and give rise to a chilling effect. The wide discretion of state authorities and the covert nature of implemented measures generate a high risk of human rights violations. Therefore, one of the main challenges in human rights law is finding a balance between combating crime and protecting national security, on the one hand, and safeguarding human rights, on the other. Over the past few years, the Court of Justice of the European Union has delivered significant judgments on the compliance of legal regimes governing the retention and transmission of electronic communications data with EU law. When ensuring a fair balance between different interests, the CJEU appropriately considers both the threats present in the modern world and the importance of human rights protection. The present article discusses the processing of personal data in the electronic communications sector under EU law and analyses the development of the case law of the Court of Justice of the European Union.

Addressing the Use of AI by EU Tax Authorities: Towards a Common Framework of Taxpayer Protection

The implementation of AI in tax administration is transforming the structure of tax audits, raising potential conflicts with the principles of EU law. This article explores how the automation of tax audits intersects with data protection law, requiring tax authorities to adhere to the provisions of the GDPR and, specifically, respect the rights and obligations related to automated decision-making. Building on this perspective, the authors elaborate on a two-rule framework that is meant to extend the provisions of the GDPR to individual tax proceedings, enhancing the safeguards of taxpayer protection in the field of automated tax audits.

Energy Transition and Democratic Challenges: The Contribution of EU Law

The legal design of future energy systems should be inserted in a far-reaching reflection on how energy is used and distributed according to the social goals defined within the framework of an institutional arrangement interacting with technological innovation. Energy law is then not to be seen as an independent branch of public law but as a particular approach in the overall legal framing of social reproduction processes. Energy democracy should be tackled according to this mindset. It had become almost a truism to think that energy transition to a post-fossil model is as such a way to enhance democracy. However, significant boost of socio-environmental conflicts related to renewable energy facilities raise doubts about an alleged necessary relation between new sources of energy, technological innovation and increasing democratization within the framework of a more or less smooth transition.The implementation of renewable energy in the context of energy transition has opened a debate about energy democracy. However, the discussion is often centred in the acceptability of renewable energy generation projects. Energy communities provide a way to develop robust democratic practices in the energy system, addressing inequalities and exclusions and promoting democracy as a fundamental social value. EU law has incorporated these entities and, thus, provide opportunities to bridge energy systems with democratic practices according with core values of the Union, although an explicit democratic principle is not to be found in EU law, which can contribute in a significant way to achieve a profound democratization of the energy systems. This contribution would be enhanced with a more explicit assumption of the democratic principle in energy related directives.

Energy Transition and Democratic Challenges: The Contribution of EU Law

The legal design of future energy systems should be inserted in a far-reaching reflection on how energy is used and distributed according to the social goals defined within the framework of an institutional arrangement interacting with technological innovation. Energy law is then not to be seen as an independent branch of public law but as a particular approach in the overall legal framing of social reproduction processes. Energy democracy should be tackled according to this mindset. It had become almost a truism to think that energy transition to a post-fossil model is as such a way to enhance democracy. However, significant boost of socio-environmental conflicts related to renewable energy facilities raise doubts about an alleged necessary relation between new sources of energy, technological innovation and increasing democratization within the framework of a more or less smooth transition.The implementation of renewable energy in the context of energy transition has opened a debate about energy democracy. However, the discussion is often centred in the acceptability of renewable energy generation projects. Energy communities provide a way to develop robust democratic practices in the energy system, addressing inequalities and exclusions and promoting democracy as a fundamental social value. EU law has incorporated these entities and, thus, provide opportunities to bridge energy systems with democratic practices according with core values of the Union, although an explicit democratic principle is not to be found in EU law, which can contribute in a significant way to achieve a profound democratization of the energy systems. This contribution would be enhanced with a more explicit assumption of the democratic principle in energy related directives.

Form follows function: Reopening of judicial proceedings and EU law in Profi Credit Polska

Form follows function: Reopening of judicial proceedings and EU law in Profi Credit Polska

The non-emergency economic policy competence in Article 122(1) TFEU

The Next Generation EU (NGEU) programme has sparked a major constitutional debate in EU law, with assessments ranging from approving NGEU as creative legal engineering to repudiating it as breaching EU primary law.A third approach aims to transcend the first two by qualifying NGEU as a “constitutional moment” for the EU. What most of these assessments nonetheless have in common is that they – implicitly or explicitly – qualify Article 122(1)TFEU as an emergency legal basis. This contribution challenges the idea that Article 122(1) TFEU exclusively contains an emergency legal basis and provides a textual, systemic, historic and teleological reading of that legal basis in support. While reading Article 122(1)TFEU as such would both do away with most of the constitutional objections against NGEU and allow the EU to develop its own dedicated economic policy, complementing its coordination of the Member States’ national economic policies, a risk also arises of that legal basis conferring an unchecked executive power on the Council.To counter that risk, this contribution further identifies useful safeguards, ensuring that the vertical and horizontal balances of power within the EU construct remain intact.

The Compatibility of the draft EU-Mercosur Free Trade Agreement with EU and International Climate Protection Law

Since 1999, the EU and the Mercosur countries have negotiated an Association Agreement (AA) which will include a trade pillar, the Free Trade Agreement (FTA). The latter aims at increasing the amount of goods crossing borders, including products associated with high greenhouse gas emissions or having adverse impacts on forests and other valuable ecosystems. This article assesses whether the adoption of the FTA would contravene the EU’s obligations under international law and EU primary law – with a focus on climate protection.

Facial recognition technology in law enforcement: Regulating data analysis of another kind

Facial recognition technology (FRT) has emerged as a powerful tool for law enforcement, enabling the automated identification of individuals based on their unique facial features. Authorities have more and more made use of the technology to enhance criminal investigations through the analysis of images and video footage. In view of its increased use in Europe, this paper explores the legal implications of FRT in law enforcement under EU law and evaluates approaches to regulation. FRT use constitutes biometric data processing and comes with a particularly sensitive analysis of data. Its specific nature is grounded in the creation of a new (biometric) quality of data in order to subsequently compare for matches. Due to its impact on fundamental rights, this approach differs from conventional forensic analyses and must be appropriately regulated. Such regulation should consider the multiple data processing steps and reflect each step's impact on fundamental rights. From this procedural stance, the shortcomings of the EU Artificial Intelligence Act (AI Act) become evident. The AI Act contains specific rules for biometric AI systems but does not provide the necessary legal bases to justify FRT use by law enforcement. Without a comprehensive legal framework, such use is not permitted. This article provides concrete guidelines for addressing such regulation.

Defending Judicial Independence in Court: A Subjective Right to Independence in EU Law

Defending Judicial Independence in Court: A Subjective Right to Independence in EU Law

Tackling Disinformation Through Public Administration Recommendations –The Czech Experience

Purpose: The aim of this paper is to critically evaluate the practice of public administration, in which it influences the addressees of public administration not through classical forms of public administration (e.g., administrative decisions) but by issuing recommendations to third parties, who then carry out regulatory interventions.Design/Methodology/Approach: The paper employs qualitative research methodology and a case study approach, focusing on the analysis of the specific situation in the Czech legal environment (including existing case law), which it frames as a broader issue that can be replicated and thus requires a more general solution.Findings: The text critiques the conclusion drawn from the Czech administrative court case law, which holds that public administration recommendations, if not legally binding, are not subject to judicial review. This conclusion suggests, at first glance, that public administration recommendations are an activity which has no legal limits. However, this interpretation is challenged in particular from the perspective of the rule of law. Specifically, the regulatory model outlined above, where public administration (the state) achieves its objectives by influencing third parties, raises concerns.Practical Implications: It is inadvisable to view non-binding public administration activity as incapable of infringing upon or otherwise influencing the rights of the addressees of public administration. Political accountability in this area seems inadequate, particularly because of a potential lack of transparency. On the contrary, changes to legislation and greater sensitivity from administrative courts towards these non-traditional forms of public administration might be advisable.Originality/Value: The topic can be considered novel, given the limited attention it has received in the literature. This is especially true for national literature (in the case of the Czech background on which the text is primarily based). While it has been explored within EU law in the context of debates about the nature of EU soft law, the issue under study does not align well with soft law (understood as a type of normative legal act, albeit legally non-binding). Therefore, only partial reference can be made to EU law. The topic of the paper is thus more closely related to the general principles of public administration rather than EU law, making it a presumably original contribution.

Going beyond the wordlessness of EU law

Abstract This essay explores what can be learned from understanding EU law as a language in the literary sense of being a set of resources for manifold ethical and political expression and social action. As a contribution to new methodological approaches to studying EU law, it will propose a method highlighting how EU law can be studied in such a way by paying attention to the various linguistic and structural features of a legal text while, at the same time, diversifying the rationales through which we understand and make sense of such textual features. The Sayn–Wittgenstein decision will serve as point of reference in order to illustrate the value-added of this new theoretical and methodological insight to understanding EU law. This essay will conclude that it is not only worth taking the language of EU law seriously because it allows us to ’see’ more in the law, but also because it enables us to elevate the deeper ideas about Europe to the surface of the language we use when writing and speaking about EU law and to thereby contribute to a more productive dialogue about the foundations and future of the EU polity.

Origin and development of the values of the European Union

The article analyzes the emergence of European values in the concepts of philosophers of Ancient Greece and state thinkers of Ancient Rome. The author shows their further development under the influence of Christianity, social church doctrine, ideas of German classical philosophers, thinkers of the Enlightenment, and founders of the concept of natural law.The significance of the first European documents on the protection of fundamental rights and freedoms, in particular the Magna Charta of 1215, the Habeas Corpus of 1679, the English Bill of Rights of 1689, the Declaration of the Rights of Man and of the Citizen of 1789, the first constitutions in Europe, and the US Constitution (1787) are studied. The study of the genesis of the values on which the EU is based today takes into account the development of the Ukrainian state and law and their impact on this process, in particular the establishment of Greek city-states in the Southern Black Sea region, the introduction of Christianity in Kyivan Rus. The significance of the documents and treaties of Kyivan Rus and the Constitution of Pylyp Orlyk (1710) in terms of their compliance with the values of the EU and their influence on their formation is clarified. Particular attention is paid to the evolution of EU values after the conclusion of the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms within the framework of the Council of Europe and the creation of the European Communities. The author analyzes the texts of the Treaty establishing the European Coal and Steel Community (1951), the Treaty on the European Economic Community (1957), and the Single European Act (1986).The transformation of EU values and their legal nature from the Draft Treaty on a Constitution for Europe (2003) to the Charter of Fundamental Rights (2001), which became part of the Lisbon Treaty (2009), is studied in more detail. Special attention is paid to the evolution of legal terminology in EU law, when the term «principles» is still used in the text of the Treaty of Amsterdam, and the term «values» is used in the text of the Treaty of Lisbon. The author shows how values developed from philosophical, concepts, under the influence of religious and political teachings, supplemented and transformed in EU law from legal principles to values. In the final part of the article, conclusions are formulated.

The sphere of lending according to the legislation of Ukraine and the EU regarding the protection of consumer rights

The article examines the peculiarities of the protection of consumer rights in the field of lending under the legislation of Ukraine and the EU from the point of view of bringing national legislation into line with the requirements of EU law in this area. It was determined that the EU is actively working on improving legal mechanisms for the protection of consumer rights in the field of consumer credit through the adoption of new acts. The article analyzes individual changes in this area, as well as outlines the reasons for such changes. In modern banking practice, a fairly wide list of types of consumer loans is used, the main classification features of which are: types of creditors; types of borrowers; repayment methods; terms of use; degree of credit coverage of the cost of goods, works, and services; software; interest payment methods; lending facilities, loan amounts, loan currency, etc. But the presence of a large number of banking products does not exclude the possibility and does not reduce the need for their further development and expansion, which should contribute to the development of consumer lending in general. The level of socio-economic development of the country directly affects the development of consumer lending, at the same time, the dynamics of such macro-indicators as gross domestic product, income and expenditure of the population, volumes of services provided, retail turnover, average monthly nominal wages, etc. have the greatest influence. Consumer lending has a higher efficiency compared to corporate lending, and this is explained not only by its high profitability, but also by the presence of additional income that accompanies the provision of consumer loans. At the same time, the effectiveness of consumer lending depends on the terms of granting, and accordingly, short-term consumer loans are more effective. Therefore, the performance of banks in general as part of the banking system of Ukraine depends on how the mechanism of consumer lending in banking institutions is formed, how regulation and regulation of consumer lending is carried out. Positively evaluating the adoption of the relevant Law in 2016, the author notes the need for its revision and improvement, taking into account Ukraine’s European integration progress, as well as the importance of preserving the economic well-being of the population of our state in the face of a full-scale invasion. According to the author, the corresponding changes should concern the requirements for information about consumer credit, the specifics of its conclusion from the point of view of accompanying financial instruments, as well as the simplification and improvement of legal mechanisms for early termination of consumer credit contracts.

The European Public Prosecutor’s office: competence, tasks and prospects of cooperation with the state authorities of Ukraine

This article analyses the functioning of the European Public Prosecutor’s Office (EPPO) as an independent EU body responsible for investigating, prosecuting and bringing to justice those who have committed criminal offences affecting the financial interests of the European Union - a topical issue for both EU institutions and Member States, including Ukraine as a candidate country. The importance of expanding the powers of the EPPO is mentioned in the Political Guidelines for the next European Commission 2024−2029 «Europe’s Choice». It points to the need to discuss areas where it is seen necessary to increase the powers of this body to combat cross-border serious crime, including corruption, which affects EU funds and which Member States cannot tackle on their own at the national level. In terms of the adaptation of Ukrainian legislation to EU law, accession negotiations and Ukraine’s gradual integration into the EU’s area of freedom, security and justice. The cooperation and interaction of the Ukrainian state authorities with the EPPO plays a significant role. The European Union’s cooperation in the area of freedom, security and justice (hereinafter referred to as the AFSJ) takes place both at the level of the EU and its Member States and is regulated under the Association Agreement between a third country and the EU and its Member States (for the Western Balkan countries - the Stabilisation and Association Agreement). Thus, the EU-Ukraine Association Agreement contains Chapter 3 «Justice, Freedom and Security». The research article analyses the competence of the EPPO, the mandate of the EPPO and the European Anti-Fraud Office was clarified. The article examines the legal framework (Council Regulation (EU) 2017/1939 (the «EPPO Regulation») and Directive (EU) 2017/1371 (the «PIF Directive»), as well as the procedure and status of accession of EU Member States to the EPPO, including the organisation of the body’s work, which is organised at two levels: centralised and decentralised. The authors conclude that Ukraine should join the EPPO after becoming a full member of the EU.

Safeguards of Fair Trial in Constitutional Court Proceedings: Efficient Access to Justice as a Key Factor

The right to fair trial, which is usually described as an essential starting point of the protection of human rights, as a basic safeguard of the rule of law, as a general principle of EU law and as a certain quality of procedure, plays a crucial role in defining the framework of judicial proceedings in the European states both in criminal and civil matters. The current paper examines how the concept of fair trial applies to constitutional court proceedings, with special regard to the safeguards of an efficient access to such procedures. The study raises questions like: What cornerstones for an efficient access can be identified in the case-law? What are the most typical obstacles of obtaining a decision by a constitutional court? How can a more efficient access to these procedures be promoted? The analysis offers a synthesis of the theoretical background and the general requirements identified by the relevant international and European fora (complemented by references to the related jurisprudence of the constitutional courts of certain EU Member States). This way the study can give useful insights not only into the understanding of the concept of fair trial but also into the possibilities of enhancing the efficiency of constitutional court proceedings.

Beyond administrative guidance: legal effects of state aid guidelines and the need for judicial review

ABSTRACT Under EU law, state aid is in principle prohibited to ensure fair competition within the internal market. The European Commission reviews proposed state aid schemes submitted by Member States and issues administrative guidelines to lead the process. This paper focuses on the legal effects of state aid guidelines, particularly in relation to the energy transition and the Temporary Crisis and Transition Framework adopted during the 2022 energy crisis. The Courts have reasoned that state aid guidelines are only binding on the Commission, as Member States are not obligated to adopt any state aid schemes. However, this article argues that state aid guidelines are often closely linked to policy objectives of the European Union and should not be considered in isolation. The connections between administrative guidelines and other regulations raises important questions about the Commission's role in ensuring fair competition through state aid control.

Recognition of Professional Qualifications of Third-country Nationals in the European Union: A comment

The regulation of the recognition of professional qualifications is an oft-overlooked and generally under-explored area of EU law. However, it is a vital facilitator of access to employment, particularly in respect of vulnerable groups such as third-country nationals. Since the 2015 European Migration Crisis, the recognition of professional qualifications of third-country nationals in the EU has attracted some significant political attention. This has recently culminated in two recommendations from the European Commission on people fleeing Russia's invasion of Ukraine and third-country nationals more generally, as well as the Commission's proposal for a regulation establishing an EU Talent Pool. This note describes and analyses the current legal position in EU law, the specific rules applicable to third-country nationals and these recent developments.

Knowledge, deception, and freedom of expression: a critical examination of Ireland’s approach to disinformation under the Electoral Reform Act 2022

ABSTRACT Ireland’s Electoral Reform Act introduces several key provisions under Parts 4 and 5 which are designed to curtail the spread of misleading electoral communications. This article’s focus is on how these provisions enable divergence from established EU standards surrounding intermediary liability for harmful online communications. Identifying how the application of these provisions may undermine the right to freedom of expression under EU law, this article further distils the applicable principles which should inform how online platforms limit access to misleading information in electoral settings. This article filters these principles from applicable case law of the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR). Drawing from the analytical approaches of these courts to false electoral communications, this article not only assesses how Ireland’s Electoral Reform Act may undermine the right to freedom of expression but also provides a template for how EU and Member State legislation in the disinformation field can promote compatibility with human rights.