EU Law Research Articles

Dispute Settlement Mechanisms in International Agreements of the European Union

This article attempts a systematisation of the types of dispute settlement mechanisms in EU international agreements, and it comments upon their most salient features from the perspective of EU law. All EU dispute settlement is peaceful dispute settlement. Within this type of dispute settlement, several categories can be distinguished: some EU international agreements contain no dispute settlement clause; some allow for the imposition of coercive measures such as sanctions; and most foresee the recourse to judicial or quasi-judicial avenues. In addition to judicial avenues in an independent court, EU international agreements in fact also include ‘softer’ mechanisms for consultation, mediation, or cooperation whereby the parties endeavour to reach a mutually agreed solution for solving any dispute before recurring to judicial avenues. This article suggests possible taxonomies of judicial or quasi-judicial mechanisms based on the body in charge of setting the dispute, on the procedure and on the subject matter, and it identifies common patterns in the inclusion of these forms of dispute settlement in EU international agreements.

Study of directions of unification of technology transfer in ukraine with the regulation of the European Union

Problem setting. In modern economic conditions, the key to effective economic development of any country is the development of the production sphere of the national economy. At the same time, its level depends on the penetration of knowledge-intensive, advanced and breakthrough technologies. Most economically developed countries even implement integrated state policies aimed at stimulating and scaling technology transfer processes. Thanks to this, the number of those technologies that are implemented in the sphere of public production increases, and the share of highly competitive products increases significantly. The economic system of Ukraine is no exception to this rule. Thus, since 2006, Ukraine has had a special official document the Law of Ukraine “On State Regulation of Activities in the Field of Technology Transfer”. Its main task is to determine the requirements of how the state (in the form of authorized bodies) will contribute to the scaling process of technology transfer. The course announced by Ukraine for joining the European Union (hereinafter referred to as “the EU”) imposes on it special obligations regarding the unification of regulatory approaches to the identification of technology transfer with EU requirements. The specified situation determines, on the one hand, the relevance of scientific research on this topic, and places on scientists the task of forming relevant proposals. It is science that should shape them and determine effective directions, methods and forms of unification of the principles of functioning of Ukraine with EU requirements and thereby stabilize and intensify the transfer of technologies. Purpose of research is to develop methods and techniques for unifying the regulatory approach to defining the essence of technology transfer in Ukraine with the requirements of the European Union. This will make it possible to formulate recommendations for the Ukrainian public authorities when they implement managerial decisions within the framework of the State technology policy and form the basis for proposals for amending its national regulatory acts. To achieve this goal, it is necessary to solve the following interrelated tasks: (1) to analyze the state of regulatory support for technology transfer under EU law; (2) to study the state of regulatory support for technology transfer under Ukrainian law; (3) to formulate proposals on the main directions of unification of legal regulation of technology transfer under Ukrainian law with the requirements of EU law. Analysis of recent research and publications. An analysis of recent research and publications on the topic shows that many scholars have considered the general issues of state intervention in the national economy. The problem of the essence of technology transfer has been studied both at the level of independent economic systems and within international organizational entities. Article’s main body. The object of this research is a set of regulatory methods and techniques for determining the content and essence of such a category as technology transfer. Both the requirements of Ukraine and the regulatory approaches of the European Union are studied. The analysis and generalization of the existing world and international approaches to the identification of the essence of technology transfer established that they are not unified among themselves and differ significantly from each other. It has been proven that this does not meet the needs of technology transfer participants and does not meet the strategic goals of Ukraine’s development. The expediency of expanding the existing concept of determining the essence of technology transfer defined in Ukraine is substantiated. Recommendations on directions for the unification of regulatory approaches to the definition of technology transfer with the European Union have been formed. The need to amend the provisions of the Law of Ukraine “On State Regulation of Activities in the Field of Technology Transfer” in order to bring it into line with the requirements of the European Union has been proven. Conclusions and prospects for development. It was determined that the current legislation of Ukraine contains a narrower approach to determining the essence of technology transfer. Recommendations on the unification of the requirements of Ukraine with the requirements of the EU, on the issue of identification of technology transfer, have been formed. The expediency of expanding the forms of technology transfer is substantiated by supplementing them with the following: – Transfer of technology during the implementation of special interstate defense and industrial programs. – Transfer of technology within the framework of grant funding and cooperation. – Transfer of technology during the implementation of public procurement. – Transfer of technology as a contribution to the integral property complex (statutory or accumulated capital) of economic entities. – Transfer of technology during the creation of startups.

Chapter 1: On the Dismissal of the MSPI Action by the General Court of the EU (Case T-158/21)

Abstract In its judgment of 9 November 2022, the General Court (GC) of the European Union fully upheld the European Commission’s Communication setting out the reasons for not adopting any of the (legislative) proposals put forward by the Minority SafePack Initiative (MSPI). This paper argues that several MSPI proposals do indeed tie in with existing EU competences and would lead to a significant extension of the protection of persons belonging to minorities within the Union. However, given the Commission’s wide discretion in responding to European Citizens’ Initiatives (ECI) and the limited standard of judicial review in this regard, it will be difficult to challenge the Commission’s dismissive response even on appeal. This does not necessarily mean the end of the initiative. The validity of its proposals under EU law is visibly consolidating and even the outcome of the appeal proceedings would not prejudice seeking to implement them by other (political) means. This paper provides a legal assessment of the above-mentioned first instance decision.

Investment protection standards: Can EU law fill the shoes of investment treaties?

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The New Swedish Investment Screening Legislation: Is It Compatible with EU Law?

The New Swedish Investment Screening Legislation: Is It Compatible with EU Law?

Silent boundaries: exploring the limits of legal confidentiality in Poland

ABSTRACT Legal confidentiality, an integral aspect of European legal culture and legal services, plays a pivotal role in safeguarding the trust and privacy of professional-client relationships. This study focuses on the multifaceted dimensions of legal secrecy, particularly within the context of commercial lawyers in the European legal services market, using Polish legal advisers as an exemplar. The research explores evolving attitudes, expectations, and perceptions of legal secrecy amidst dynamic legal changes and discrepancies in interpretations among lawyers, public authorities, and citizens. A comprehensive mixed-method approach was used, including surveys, structured in-depth interviews, content analysis, and desk research, to investigate the diverse facets of legal secrecy. Findings reveal that while legal secrecy remains highly esteemed, its interpretation varies significantly across national and EU laws and among stakeholders. There are a multitude of types of legal secrecy, creating confusion and opportunities for public authorities to breach confidentiality. The study underscores the critical need for standardisation and unification of legal secrecy across European countries to enhance cross-border legal services, streamline justice systems, and bolster citizen protection. It emphasises that despite legal and societal changes, the fundamental essence and importance of legal secrecy in upholding democracy, justice, and trust remain steadfast.

National discretion or broadening acceptable interpretation? A comparative overview of the transposition and implementation of the Water Framework Directive

AbstractEuropean Union (EU) directives must be transposed into national systems and effectively implemented by all Member States. Differences between national legal systems are an inevitable reality when implementing EU law. Variations in the transposition and implementation of directives can lead to significant differences in the regulatory environment. This article discusses the variations in the transposition and implementation of the EU Water Framework Directive (WFD) in Austria, Finland, Germany and Sweden. What all the analysed Member States have in common are efforts to find ways to comply with the stringent requirements of the WFD. As Member States aim to achieve the requirements of the WFD, they simultaneously appear to look for ways to broaden acceptable interpretations of the WFD requirements to accommodate the national context. This article identifies and examines the different instances where such broadening of interpretation of the WFD has taken place in the four Member States.

Admissibility of Requests for a Preliminary Ruling in the Case Law of the CJEU on Judicial Independence

In recent years, the CJEU has experienced a significant increase in requests for preliminary rulings on the interpretation of Article 19(1) TEU in the area of judicial independence. However, not all requests concerning this provision have been deemed admissible by the CJEU. This article examines the underlying principles of the preliminary ruling procedure under Article 267 TFEU that guide the CJEU in accepting or rejecting requests from national courts in this critically important area of EU law. It focuses on the concept of ‘court or tribunal’ within the meaning of Article 267 TFEU and the ‘necessity’ of the Court’s ruling.

Impact of European Integration on Substantive and Formal Constitutional Amendments in Spain in the Light of the Spanish Constitutional Court’s Jurisprudence and Constitutional Practice

The purpose of the article is to answer the question of how the process of European integration has influenced the Spanish constitutional order. Taking the European clause set out in Article 93 of the Spanish Constitution as a starting point, it analyzes both impacts of a formal-legal nature, but also influences of a substantive nature affecting the normative content of the Spanish Constitution. The study demonstrates that EU law, based on the principle of “direct applicability” and “direct effect,” intensively influences Spanish constitutional law and has been the strongest factor influencing the Spanish legal order since the enactment of the Spanish Constitution in 1978. Thus, while the Spanish Constitution in the formal sense remains a rigid constitution, when viewed in the category of a substantive constitution, it has proved to be flexible and susceptible to external influence, despite the fact that this occurs de jure with the consent of Spain expressed in respect of the principle of state sovereignty, on the basis of the provisions contained in Article 93 of the Spanish Constitution.

Intersectional discrimination and EU law: Time to revisit Parris

In this article it is argued that the CJEU judgment in Parris needs to be revisited to recognise that intersectional discrimination is covered by the EU anti-discrimination Directives. There are several reasons for this. First, a prohibition of intersectional discrimination is now laid down in an EU anti-discrimination Directive (Directive, 2023/970/EC); second, this would fit in with developments in the EU Commission, Council and Parliament; third Parris turns on its own facts; fourth a purposive or capacious interpretation of these Directives already allows for such discrimination to be included in the Directives; fifth, the shift in CJEU case law towards a intra-group comparison for discrimination can make comparisons in intersectional discrimination cases easier. It is argued that without acknowledging that intersectional discrimination is covered by the EU anti-discrimination Directives, victims of such discrimination, like Mr Parris and others, like headscarf wearing women, might be left without a remedy when they suffer discrimination on a combination of grounds.

Grand confusion after Sanchez v. France: Seven reasons for concern about Strasbourg jurisprudence on intermediaries

The latest Grand Chamber decision of the European Court of Human Rights in Sanchez v. France makes the previous Delfi test absolutely unpredictable. This article explains why the uncertainty now concerns almost every single aspect of this test, and why case law hardly offers any guidance on the most basic questions. It is argued that with Sanchez, the Strasbourg case law on liability for the speech of others online officially descended into chaos without a proper sense of direction. Grand confusion about Sanchez now has the potential to threaten legal certainty introduced by EU law, as illustrated by its application in Zöchling v. Austria. Despite the Court's proclaimed deference to national law and increased use of the subsidiarity principle, it is striking that democratically adopted European legislation about digital services has been ignored for so long in Strasbourg. Sanchez now raises a serious prospect that the ECtHR is on a collision course with the EU's newly adopted legislation, the Digital Services Act, that builds on the last 20 years of rules.

Contract award criteria in public procurement procedures – The possibility of improving the situation of society from the perspective of the European Union and Poland

Background Public tenders are vital for a country’s GDP and citizens’ quality of life, enabling public administration to achieve various goals. Developing and developed countries allocate over 10% of their GDP to public procurement. This highlights the significant societal support public tenders can provide, making it important to consider how they can further benefit society. Policy and implications Public procurement can achieve policy objectives and benefit society by selecting tenders based on criteria beyond price, such as economic advantage and social benefits. This approach, endorsed by EU directives since 2014, encourages innovation and socially responsible practices. Contracting authorities in the EU can use social, environmental, and qualitative criteria to determine the most advantageous offers. Poland’s Public Procurement Law (PPL) allows contract award criteria based on quality and price, including social aspects. Contracting authorities can specify criteria like employing marginalized groups, though these criteria often face scrutiny and legal challenges. Non-price criteria aim to enhance competition and achieve social, environmental, and economic goals. Recommendations EU and Polish laws permit and encourage using social aspects as contract award criteria in public procurement. However, contracting authorities must analyze priorities, risk balancing, time constraints, and departmental coordination to effectively implement these criteria. This approach can improve the social situation and support specific groups. Conclusions Public procurement significantly influences a country’s economy and quality of life, with EU and Polish laws allowing social criteria in contract awards. Directive 2014/24/EU supports tenders based on economic and social benefits. Poland’s PPL aligns with this, emphasizing marginalized group employment. Effective implementation fosters job creation, social integration, and improved living standards.

Implementation in the European Union. A concept structural meta-study of environmental and social policy

ABSTRACT The implementation of EU law has been investigated since the 1980s without pinpointing any general explanatory mechanisms, while most studies focus on highly specific empirical analysis without going beyond basic conceptual descriptions. Theoretically, this paper proposes an alternative comparative framework to conceptualize and analyze differentiated policy implementation based on concept structural considerations. Empirically, existing case studies are compared in a meta-study by transferring their statements on explanatory conditions and outcomes into a parsimonious, procedural model. This approach enables a theory-guided, systematic comparison of qualitative case studies which has long been considered a desideratum in the implementation literature. The paper addresses the question under which conditions correct implementation (i.e. transposition and application) of EU directives occurs. Starting from a literature assessment, explanatory patterns are extracted and formalized as set-theoretic conditions connected to transposition and application as outcomes. The resulting concept structural model links the conceptual and explanatory levels of the underlying concepts. Using fuzzy set QCA, cases from environmental and social policy directives are assessed empirically based on case study data. The results largely confirm the expectation that only a conjunction of willingness- and ability-related conditions leads to correct implementation, particularly conjunctions of favourable attitudes and compatible institutional structures or capacities.

The European Green Deal, the rush for critical raw materials, and colonialism

ABSTRACT One of the core pathways under the European Green Deal to achieving climate neutrality by 2050 is ensuring a secure, resilient and sustainable supply of the critical raw materials needed for a net zero economy. The emphasis on supply, however, risks overlooking conflicts that critical raw material mining may give rise to, including land disputes, social unrest and displacement of local communities, which, in the case of some Member States, involves indigenous people and perpetuates colonial legacies. These conflicts are polycentric in the sense that they are formally independent of actions under the European Green Deal but still create a complex cause-and-effect relationship that involves a vast number of unrepresented but relevant interests. Mapping these relationships requires addressing colonialism – past and present – as well as the role of indigenous communities in EU law, and the significance of sustainability in supplying resources for the functioning of the internal market.

The Changing Substance of European Law

Intrinsic relation between form and substance in law and between the institutional law of the EU and its substantive goals – idea and criteria for a ‘substantive core’ to the legal order – the internal market as early EU law’s substantive core – the EU’s changing policy substance and the subsequent ‘de-coring’ of the legal order – the consequences of de-coring and its impact on EU law’s relevance and legitimacy – early attempts to reconcile EU law with the changing substance of EU policy.

The impact of EU law on national legal systems and the world order

The article analyzes the impact of EU law on national legal systems and the world order. With the collapse of the Soviet Union, the EU began active work on strengthening its authority and influence. In the 1990s, the EU (whose members also belonged to the Council of Europe) made the ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms (with Protocols) (European Convention on Human Rights) a necessary condition for EU membership, which involved a lot of preparatory work in the field of human rights for candidate countries. The founding treaties of the EU, in contrast to ordinary international treaties, established a new legal order with its own institutions, in favor of which states limited their sovereign rights in increasingly wide areas, the subjects of which are not only member states, but also their citizens. The active development of integration processes taking place within the framework of the EU leads to further convergence and closer interaction of the national legal systems of the member states with the EU, as a result of which the circle of legal relations, which are legally regulated by the norms of EU law, is expanding. A key role in the proper functioning and implementation of these norms (EU law) is played by the specific procedure of their implementation into the national law of the member states, which is understood as the process of transposition of the norms of EU law, including the creation of the order and procedures for their introduction into the national legal systems of the member states. With the deepening of European integration, the constitutionalization of EU law began: the founding treaties evolved from a set of agreements binding only on member states to founding treaties that provide the basis of a single legal regime. This regime grants rights and imposes obligations on all public and natural persons on the territory of the EU, since the norms of the founding treaties have direct effect and absolute supremacy, forming a kind of integration legal system. Currently, there is a close connection between EU law and the national legislation of the EU member states. The impact of EU law on the national legal systems of candidate countries for EU membership is indisputable. These trends suggest that while the emergence of Community (now Union) law has given rise to a new legal order, distinct from national law, these historically distinct legal orders now form a common legal system.

Impact of Brexit and Subsequent Food Regulatory Divergence on the Irish Food and Drink Industry

On 24 June 2016, the majority of the UK voted to leave the European Union and formally departed the EU on 31 December 2020. With this departure, the UK started diverging from EU law. Some of the major divergences are the UK’s animal export ban, identifying gene editing separately from genetic modification, the new UKCA mark, rules of origin requirements, not banning Titanium Dioxide, removing radioactivity restrictions on food imports from Japan, and not following the EU’s reduction of permissible Arsenic level by 80%. According to the Windsor Framework, the products destined for the Republic of Ireland (ROI), or any EU location will undergo the ‘red lane’ process, which includes customs declarations and specific inspections. UK has introduced a Border Target Operating Model (BTOM), which categorizes the food imported into the UK based on the risk and requires pre-notifications and an Export Health Certificate for high-risk Sanitary and Phytosanitary goods. The UK landbridge can be still utilized, but with increased requirements and documentary checks, potentially leading to higher costs and possible delays. Even with all those challenges, 95% of Irish food businesses are optimistic about growth, and in 2022, the UK remained Ireland’s primary agri-food export destination, with a value of EUR6.7 billion.

Recalibrating the ‘Strict Obligations’ Requirement of the Bosphorus Doctrine of Equivalent Protection: The Strasbourg Court vis-à-vis the EU Principle of Mutual Trust

Bosphorus doctrine of equivalent protection activated when states implement strict international organisations’ obligations – EU principle of mutual trust requires executing member states to presume issuing member states’ human rights compliance – Presumption influences the Bosphorus doctrine’s application – The European Court of Human Rights drew four relevant scenarios (full discretion; strict obligations; qualified discretion; EU law breach) – Case law consistent with Bosphorus logic but unfair to applicants – Court’s subsequent recalibration of ‘strict obligations’ requirement renders it moot, empties Bosphorus doctrine of its substance and equally undermines mutual trust regimes – Absence of equivalence of mutual trust regimes or EU accession to the ECHR as sole remedies

Introduction: Future‐proofing policies – How foresight shapes European Union governance

AbstractIntroducing this issue, the present article notes how the growing political importance given to foresight in EU governance has so far only sparked limited interest among scholars of EU law and policy‐making. To address this gap, the article starts by clarifying concepts and defining the key terminology at the intersection between (strategic) foresight and EU governance ‘in the law’ (involving societal actors in law‐making processes) and ‘through law’ (governmental actors steering society via law). It then offers a comparative discussion of the main insights of the contributions to the issue, highlighting how and why foresight has become institutionalised and how it operates across EU institutions today. In the concluding section, the article turns to the future and calls for more research into how foresight shapes EU governance, setting a research agenda for the study of foresight as a practice informing law‐ and policy‐making in the European Union.

The development of regulation of pharmaceuticals turn-over in EU and the USA in 1992-2020. Report 3. The making of the EU legislation of pharmaceuticals turn-over in 2001-2020

This article proceeds the topic of the article "The development of regulation of the circulation of medicines in the EU and the USA in 1992-2020." The history of development of European pharmaceutical legislation in 2001-2020 is considered. The acts of indirect action adopted by EU Parliament at first stage of development of legislation concerning medications failed to fully harmonize normative base of the EU Member States in pharmaceutical market. Since 2000, the EU Parliament and the EU Council adopt laws of direct action - the Regulations. Alongside with the pharmaceutical Code, the Regulations for single segments of pharmaceutical market constituted set of laws related to turn-over of medications. The legislators, at developing EU laws, took into account the US regulatory standards. Despite differences in history, legislative traditions and structure, regulatory systems of the USA and the EU concerning medications turn-over were basically harmonized.