EU Secondary Legislation Research Articles

Implementation of the non-discrimination principle in the EU secondary legislation

Implementation of the non-discrimination principle in the EU secondary legislation

Reporting Tax Schemes Violates Legal Professional Privilege

In this article, the author discusses the judgment of the CJEU in the case C-694/20 Orde van Vlaamse Balies and Others, which extends the protection of professional secrecy for lawyers. In the context of combating aggressive tax planning, the CJEU ruled that requiring licensed lawyers to inform other intermediaries involved in a tax scheme is unnecessary and violates the right to respectful communication with the client. The CJEU’s view that legal professional privilege takes precedence over tax objectives and obligations is the main novelty of the judgment under review. Individuals who consult a lawyer, as well as a tax advisor, have a reasonable expectation that their communications will remain private and confidential. Therefore, except in exceptional circumstances, they have a legitimate expectation that their lawyer will not, without their consent, disclose to anyone the fact that they are the subject of his or her advice. Following the judgment, the European Commission will legislate to amend the DAC6 Directive so that it meets the requirements of EU primary law as identified by the Court.
 The judgment is also important because it recognises that legal professional privilege is not limited to advice given in the context of litigation, which has been a restrictive view in antitrust cases.
 In Orde van Vlaamse Balies and Others, in which the Court held that the duty to inform other intermediaries imposed by Article 8ab(5) DAC 6 interfered with the right to respect for communications between lawyers and their clients guaranteed by Article 7 of the Charter of Fundamental Rights, the Court gave primacy to primary law (the Charter of Fundamental Rights) over secondary law (DAC 6). In this context, a new jurisprudential trend can be observed in which a substantive review of the Tax Directive was carried out on the basis of the Charter of Fundamental Rights. In general, the CJEU has been reluctant to get involved in substantively reviewing EU secondary legislation. More recently, however, the CJEU seems to be carefully analysing provisions of EU directives that are not in line with fundamental rights.

European cultural heritage in the Strategic and Development priorities of the European Union (2010-2020)

Following the Treaty of Lisbon, the cultural heritage has become one of the priorities of the European Union’s (EU) policy. It was a direct result of the crises that shook the axiological foundations of integration process. Cultural policy was made, on the one hand, a medium of European memory, and, on the other hand – a catalyst for economic growth and an important component of sustainable development of the Union. This article presents the analysis of the strategic objectives of heritage as defined in EU secondary legislation and in the decision on establishing the European Year of Cultural Heritage (2018). The author determines correlations between the cultural heritage sector and sustainable development. They allow the sector to be structured in terms of multi-level management of 'resources', harnessing its capital-generating potential, and safeguarding it through EU financing and digitalisation mechanisms. The theoretical principles of the policy analysis are the concepts by David Thorsby and Jon Hawkes concerning the role of cultural strategies in sustainable development, transferred to EU policy initiatives addressing the coherence and synergy of culture with other public policies of the Union.

Legalism without adversarialism?: Bureaucratic legalism and the politics of regulatory implementation in the European Union

AbstractMany scholars predict that European integration will foster adversarial legalism in Europe. In this article, I empirically assess the Eurolegalism thesis by examining EU regulatory mandates in the competition and securities fields, two policy areas where adversarial legalism is seen as most likely to develop. I argue that the diffusion of adversarial legalism to Europe has faced significant political opposition in the EU policymaking process which has curtailed the use of private enforcement mandates in EU secondary legislation. European policymakers have relied more on administrative enforcement through public regulatory agencies, a mode of policy implementation closer to bureaucratic legalism. In practice, public authorities play the primary enforcement role and private litigation serves the narrower function of compensation following public enforcement actions. Drawing from institutionalist theory, I identify several factors that have encouraged the development of bureaucratic rather than adversarial styles of European legalism, especially member states' commitments to procedural subsidiarity, the negative feedback effects from the US experience with entrepreneurial litigation, and the stickiness of European legal and bureaucratic traditions.

Only Fair? The Right To A Fair Trial Challenged In Case C-420/20 HN (Procès d’un Accusé Éloigné du Territoire)

The right to a fair trial forms an integral part of the rule of law in the EU and is enshrined in Article 47 of the EU Charter of Fundamental Rights. It provides that 'Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law.' Everyone shall have the possibility of being advised, defended and represented. Further details, particularly on the right to be present as an essential element of the right to a fair trial, can be found in EU secondary legislation, such as Directive 2016/343.This came under scrutiny in the course of the criminal proceedings against HN.

The joined cases of Dwyer, SpaceNet and VD and SR before the European Court of Justice: The judgments of the Grand Chamber about data retention continue falling on deaf ears in Member States

On 5 April and 20 September 2022, the Grand Chamber of the European Court of Justice rendered three judgments in the cases of Dwyer, SpaceNet and VD and SR. It mainly reiterated its own applicable case law on the retention of and access to traffic and location data. In the VD and SR judgment, the Grand Chamber however expanded its scope to the area of market abuse.Legislation adopted by Member States and decisions rendered by most domestic courts, tribunals and judges do not fully comply with the case law of the Grand Chamber on the retention of and access to traffic and location data. In this particular context, the EU legislature should urgently adopt EU secondary legislation on the retention of personal data to provide legal clarity to all players involved.

Space Traffic Management and Space Situational Awareness: The EU Perspective

The article aims to provide a brief analysis of the EU approach on Space Traffic Management (STM), with a focus on the European Commission and the High Representative for Foreign Affairs and Security Policy (EC-HR) Joint Communication of 15 February 2022. After some references to the relevant international and EU legal framework, the Joint Communication will be examined, taking into account the definition of STM as well as the main policy actions and regulatory measures (a blend of binding and non-binding ones). This approach will be compared with other possible levels of intervention, such as international governance (a possible International Civil Aviation Organization - ICAO model), national law (as envisaged by the US in Space Policy Directive No. 3 of 2018) or self-regulation. The EU regulatory approach to STM seems to replicate the modus operandi adopted in other policy areas (such as climate change and digitalization). Issues concerning the legal basis of future EU secondary legislation on STM, however, cannot be overlooked. The emphasis on EU strategic autonomy and security issues linked to STM shows an increasing awareness in EU institutions of the Union’s geopolitical role. Space Traffic Management, Space Situational Awareness, European Union, Joint Communication of 15 Feb. 2022, regulatory approach, legal basis

To the issue of legal enforcement of provisions of legal acts of the Commission of the EU by national courts of Ukraine

The scientific article is devoted to the analysis of actual state of legal enforcement of provisions of legal acts of the Commission of the EU by judicial bodies of Ukraine. It is specified that explicit legal obligation conferred on national Ukrainian judicial and other national state bodies to apply provisions of the EU’s acquis is absent at all. Nevertheless, taking into account provisions of the Association agreement between Ukraine and the EU, an effective adaptation of valid and future Ukrainian legislation in line with requirements of the EU’s acquis is impossible without an active legal enforcement activity of Ukrainian courts. Analysis of the relevant practice of the Constitutional Court of Ukraine and courts of general jurisdiction showed that current legal enforcement level of provisions which are contained in legal acts of the Commission of the EU and Association agreement between Ukraine and the EU is unsatisfied due to the several reasons. The problem of absence of the common approach both on doctrinal and legislative levels regarding the possibility of provisions of the Association agreement between Ukraine and the EU to create direct effect for individuals and legal entities has a negative impact on the legal enforcement level of provisions of legal acts of the Commission of the EU. It is emphasized that one of the main problems of judges of the Constitutional Court of Ukraine and courts of general jurisdiction which causes insufficient legal enforcement level of legal acts of the Commission of the EU and Association agreement between Ukraine and the EU is considered to be the absence of an explicit legal basis that provide judges with an opportunity to freely apply provisions of the EU secondary legislation when legal disputes arise, especially in the event of conflict between provisions of national legislation and valid provisions of the EU secondary legislation. Summarizing, the author believes that it is possible to solve the mentioned-above problems when Verkhovna Rada of Ukraine drafts and enacts legal act that will explicitly specify legal basis and legal mechanisms for courts to apply provisions of the Association Agreement between Ukraine and the EU and the EU secondary legislation.

Current state of harmonization of domestic legislation in the field of protection of consumer rights with the legislation of the European Union

The current state of harmonization of Ukrainian legislation, which protects the rights and legitimate interests of consumers in distance trade is analyzed. The current state of electronic communication (interaction) between public authorities, businesses and consumers.
 Approaches to the formation of EU secondary legislation in the field of consumer policy are revealed. The first approach, based on the principle of full harmonization, increases the level of consumption, provides a high degree of consumers protection. Another one provides Member States with the right to go beyond consumer protection, and to maintain more strict national rules, which must comply with primary EU law.
 The expediency of creating an "E-buyer" platform for sellers who carry out business activities in online stores is argued.
 It is noted that the procedure of e-seller identification will simplify the identification of the seller at the stage of online shopping, should be free and carried out by the consumer himself online.
 The innovations of draft laws on consumer protection in the remote conclusion of contracts are described.
 Amendments to the legislation on establishing the right to apply to the competent authority on restrictions, restoring access to the website of the provider (owner or owner) of electronic communications services, where the information is posted, are proposed.
 The necessity to provide a warning mechanism in case of restriction of access to e-sellers' websites and to set a deadline for providing sellers with additional time (within two days) to correct their data is considered.
 It is suggested that requests to block websites should be sent to the provider (owner or owner) of electronic communications services.
 It is noted that the procedure for restricting and restoring access to information resources should be provided only by law.

Preispitivanje institucionalnog modela EU za primenu prava konkurencije - koliko vladavine prava je dovoljno?

The EU model of competition law enforcement has been criticized by many authors ever since antitrust provisions in the EEC Treaty became effective. The fundamental contradiction between the high level of fines threatened (and often imposed) for antitrust violations and the administrative, inquisitorial procedure for investigating antitrust offences and imposing sanctions has principally inspired the critics. The compatibility of the EU model with Article 6 of the European Convention on Human Rights (the ECHR) was disputed, instigating the EU institutions to take steps to improve the institutional and procedural framework for applying competition rules. This process has not been completed yet. Directive 2019/1 raised additional controversies regarding the compliance of variegated national enforcement models with the rule of law. This article aims to analyze the genesis of the competition enforcement model in the EU, which materialized mainly through the EU secondary legislation and ECJ case law. We evaluate the EU model against the enforcement system imagined by the Ordoliberal school of thought and, secondly, against administrative models existing in two "old" Member States, in which the rule of law has deeply rooted - France and Germany. We conclude by identifying the most cumbersome deficiencies of the EU model and proposing possible solutions for eliminating them.

New-Generation Trade Agreements and Their Importance to Trade Relations Between European Union and Third Countries – Vietnam Case

This work aims to show key provisions and importance of new-generation trade agreements made by the European Union on the example of the agreement with Vietnam. Empirical research centred around an agreement signed between the EU and Vietnam, which is the third new-generation trade agreement entered into by the EU with an Asian country, following an agreement with the Republic of Korea and Singapore. The agreement with Vietnam introduced liberalisation covering almost the entire mutual trade (goods), also providing for the liberalisation of services and eliminating certain non-tariff barriers. Due to a word limit applicable to this article, the research into the importance of the agreement to the EU-Vietnam trade relations was limited mainly to trade in goods. Having considered the fact that relatively too short period of time has elapsed since the entry into force of the agreement, it is not possible to comprehensively assess its importance to bilateral trade relations, especially in a long-term perspective. Such research should be continued in the future. In particular, this concerns research into the effects of liberalisation of mutual trade after the end of transition periods applicable to the elimination of barriers to trade – seven years for the European Union and ten years for Vietnam respectively. Following more than a year since the signature of the agreement, it can be claimed that the EU’s imports from Vietnam have increased considerably, which not only led to the greater negative balance of mutual trade, but also resulted in greater trade volumes for selected goods, and consequently, this may entail the elimination of certain barriers to mutual trade on the entry into force of the agreement. In this article, a descriptive and comparative method was employed, domestic and foreign literature sources were used and the provisions of the EU-Vietnam agreement and legal acts of the EU secondary legislation in the form of regulations were referred to.

РЕГУЛИРОВАНИЕ ЛЕГАЛЬНОЙ ТРУДОВОЙ МИГРАЦИИ ИЗ ТРЕТЬИХ СТРАН В СООТВЕТСТВИИ С ЗАКОНОДАТЕЛЬСТВОМ ЕВРОПЕЙСКОГО СОЮЗА

The article deals with the EU legal framework in the sphere of regulation of legal labor migration of citizens from third countries. In recent years this issue has become one of the most discussed in the European Union due to the migration crisis and the development of geopolitical transformations. By examining the relevant provisions of primary and secondary EU law, especially certain provisions of EU secondary legislation, as well as the case law of the Court of Justice of the European Union (hereinafter — CJEU), the author concludes that the European Union institutions and competent authorities need to change their approach when it comes to labor market needs. The migration crisis of 2015-2019 has shown the need to develop and further adopt a common migration policy at the supranational level, with particular attention to the regulation of labor migration. Details on improving and developing a program for the integration and assimilation of migrants in host countries are extremely important. There is also a need to develop online platforms and tools to help potential migrants better integrate, which could be similar to the European Job Mobility Portal (EURES). Particular attention needs to be paid to the implementation of European law at the supranational level, as individual countries complicate administrative and bureaucratic regulation in order to reduce the flow of migration into their countries. In general, despite some progress in the development of EU migration law, there is a need to improve it in order to bring it into line with the reality of migration regulation.

A colossus with feet of clay? Assessing Germany’s prevalence in European Union lawmaking

The distributive bargaining literature argues that Germany prevails in the European Union due to its superior power resources. This paper tests this expectation empirically by assessing Germany’s success on actual EU legislation with three sources of data: Council voting records (2009–2019), decision outcomes on the most controversial proposals (1999–2009) and the outcomes of the Eurozone reform (2010–2015). The results provide no support for Germany’s prevalence in daily EU lawmaking. This country is found to cast a substantive number of contestations in the Council and attain significantly lower bargaining success than other member states on key EU secondary legislation. The paper suggests that such poor showing stems from a high extremity and intensity of Germany’s preferences. Generally, this study contributes to the scholarly knowledge by refuting the narrative that Germany dictates actual EU legislation and challenging the distributive bargaining argument that states with greater power resources are more successful in the EU.

Единый внутренний рынок оружия в ЕС: реальность и перспективы

The article deals with basic aspects of application of EU single market rules to arms trade. In particular the author analyses main barriers to free movement of firearms and other types of weapon in inter-EU trade. The author comes to conclusion that the most effective way to cope such obstacles is a harmonization of Member-States legislation on arms trade at EU level. Current EU secondary legislation seeks to eliminate a threats arising from free movement of arms which makes Member States to close national arms markets for foreign goods in order to protect national security. Doing so the EU uses already existing standards of functioning of internal market and at the same time establishes in its secondary legislation legal guaranties providing the same level of security protection in all Member States. Th us importing and exporting Member States are assured that in both states the same EU security standards are observed and as a rule there is no need to apply national norms to protect security and public order.

The EU legislation on the supervision of activities of economic operators: substance of procedural rights and impact on Lithuanian law

This article discusses the EU legislation, regarding main procedural rights of economic operators applied in the supervision procedure of their activities and its impact on supervisory procedures in Lithuania, as well as the institute of supervision of activities of economic operators in Lithuania and regulation of main procedural rights granted to economic operators. By analysing the EU primary, secondary and Lithuanian (national) legislation, as well as the case law of European and Lithuanian judicial authorities, the insights into future challenges for both the EU and Lithuanian law are provided. It is being claimed that the EU is moving towards codification and strengthening of procedural rights, which inevitably influences Lithuanian legal system and the protection of individuals, inter alia legal persons.

An Alternative to Data Ownership: Managing Access to Non-Personal Data through the Commons

Abstract In today’s algorithmic society, access to large-scale datasets is the sine qua non for any economic actor to reap the benefits of data-driven innovation (DDI). This article explores alternative mechanisms of data management in large-scale processing environments which can bolster access in view of the shortcomings of the existing data ownership-centric system. The scope of the analysis is limited to non-personal data. First, this contribution elaborates on the features and shortcomings of the data ownership-centric system and the existing legislation on data access. In fact, despite its ground-breaking potential, data access is not a widely available resource. It is subject, meanwhile, to the ability of several actors to control it, originating from data holders’ position of de facto control over data (“data ownership”), which is mostly anchored in technological, behavioural, and legal access barriers. This ownership-oriented setting thus stifles data sharing and opportunities for novel reuses of data. Despite these concerns, EU secondary legislation and case law (including the “essential facilities doctrine” of competition law) have not yet offered appropriate means to enable data access across society. Second, this article investigates whether alternative systems of data management based on the commons is a viable solution to open up access to raw non-personal data (RNPD). The commons as a conceptual notion and institutional mechanism values access and freedom to operate, instead of power to appropriate. The article homes in on two main reasons which substantiate why commons management of RNPD can be desirable. On the one hand, RNPD can be deemed a cooperative infrastructural resource that calls for being pulled out of its factual enclosure (“structuralist approach” of the commons). On the other hand, grasping RNPD as a commons means valuing its functional nature, making data available to a wide number of actors for the fulfilment of fundamental rights and enhancing human flourishing (“functionalist approach”). The article concludes with some thoughts on the lines of research which are still to be explored to put the commons-based vision of data management into practice.

How to improve the EU legal framework in view of the circular economy

This paper aims to contribute to a better understanding of the legal conditions that ideally should be fulfilled to support the transition towards a circular economy in the European Union. More specifically, the paper examines how the current legal framework can be improved and how coherence within and between the relevant laws can be established in view of life-cycle thinking. This topic is underexposed in the literature. Three key laws are analysed separately: the Ecodesign Framework Directive, the Waste Framework Directive and the Registration, Evaluation, Authorisation and Restriction of Chemicals Regulation. Besides the identification of specific improvements for each key law, common challenges are formulated. Based on this analysis, the following conclusions are drawn. Firstly, as the concept of life-cycle thinking lies at the heart of the circular economy, it should be explicitly referred to as an environmental principle in EU primary and secondary legislation, or in any case be recognised as such by the EU institutions. Secondly, the acknowledgement of the existence of ‘EU materials law’ as a branch of EU environmental law could further strengthen the legal transition to a circular economy. Thirdly, product passports and the launch of an online product registration database could also facilitate the transition through the gathering and supply of information.

An Alternative to Data Ownership: Managing Access to Non-Personal Data through the Commons

In today’s algorithmic society, access to large-scale datasets is the sine qua non for any economic actor to reap the benefits of data-driven innovation (DDI). This article explores alternative mechanisms of data management in large-scale processing environments which can bolster access in view of the shortcomings of the existing data ownership-centric system. The scope of the analysis is limited to non-personal data. First, this contribution elaborates on the features and shortcomings of the data ownership-centric system and the existing legislation on data access. In fact, despite its ground-breaking potential, data access is not a widely available resource. It is subject, meanwhile, to the ability of several actors to control it, originating from data holders’ position of de facto control over data (“data ownership”), which is mostly anchored in technological, behavioural, and legal access barriers. This ownership-oriented setting thus stifles data sharing and opportunities for novel reuses of data. Despite these concerns, EU secondary legislation and case law (including the “essential facilities doctrine” of competition law) have not yet offered appropriate means to enable data access across society. Second, this article investigates whether alternative systems of data management based on the commons is a viable solution to open up access to raw non-personal data (RNPD). The commons as a conceptual notion and institutional mechanism values access and freedom to operate, instead of power to appropriate. The article homes in on two main reasons which substantiate why commons management of RNPD can be desirable. On the one hand, RNPD can be deemed a cooperative infrastructural resource that calls for being pulled out of its factual enclosure (“structuralist approach” of the commons). On the other hand, grasping RNPD as a commons means valuing its functional nature, making data available to a wide number of actors for the fulfilment of fundamental rights and enhancing human flourishing (“functionalist approach”). The article concludes with some thoughts on the lines of research which are still to be explored to put the commons-based vision of data management into practice.

IMPLEMENTATION OF DIGITAL TECHNOLOGIES IN HUMAN RIGHTS TO HEALTHCARE

The aim: The aim of the study is to examine the blockchain technology in the field of healthcare, to analyze the principles of the European Convention on Human Rights regarding respect for private and family life, home and correspondence, to analyze the key positions of the European Court of Human Rights (hereinafter - ECHR) in the field of human rights to privacy, to analyze the European Union (hereinafter - EU) secondary legislation regarding the supply of medicines, prospects for the blockchain usage in order to protect human rights to privacy and improve the quality of medicines. Materials and methods:Scientific works that are devoted to the outspread of digital technologies in healthcare, the provisions of the European Convention on Human Rights, the ECHR's practice on the protection of human rights to privacy, the provisions of the EU secondary legislation that regulate the supply of medicines are studied. The methodology of this article is based on comparative and legal analysis techniques and includes system-structural method, method of generalization, method of analysis and synthesis as well. Conclusions:The blockchain technology in medicine and pharmacology will increase the level of protection of human rights to healthcare quality.

Breathing Life into the Union’s Common Values: On the Judicial Application of Article 2 TEU in the EU Value Crisis

AbstractThe EU faces one of the deepest crises since its formation. A dangerous rule of law backsliding in several Member States undermines the Union’s common values and puts Europe to the test. This raises the question of how to substantially address violations of EU values in judicial proceedings before the Court of Justice. Unfortunately, relying on fundamental freedoms, EU secondary legislation and even the Charter will not help much to resolve this value crisis. This Article takes a different path and calls for engaging with Article 2 TEU itself. Yet this proposal rests on a crucial premise: The judicial applicability of the values enshrined in Article 2 TEU. Based on recent jurisprudential developments, this Article will elaborate a framework for the operationalization of Article 2 TEU values and demonstrate how their judicial applicability can be construed. The judgments of Associação Sindical dos Juízes Portugueses, Minister for Justice and Equality (“L.M.”) and Commission v. Poland will be at the heart of this proposal.