European Law Systems Research Articles

Theoretical and Practical Aspects of the Procedure for Lodging an Application at the Court of Justice of the EU

In order to ensure the uniformity and effectiveness of the European Union law, the Court of Justice of the European Union has been given clearly defined jurisdictional powers, which it exercises on references for preliminary rulings and in various categories of proceedings. Below are set out the proceedings in detail. Discussed are not just the main conditions of each proceeding already known from the European law systems but also those developed by the Court of Justice of the European Union.

Analysis of Anticipatory Breach and Unsafe Right of Defense

The unsafe right of defense is the system of the civil law system, and the anticipatory breach system is a unique system developed by the British and American law departments according to the jurisprudence. Both institutions are stipulated in the Civil Code, issued in 2020. The establishment of the unsafe right of defense system originated from the European law system. However, the establishment of the anticipatory breach system originated from the standard law system. The two are to reduce the losses caused by one party's default to the other party. At present, countries have introduced both systems, such as the introduction of France and Germany and the anticipatory breach system in the United States. Both institutions are of great practical significance in civil Law.

THE DUTCH COLONIAL ECONOMIC’S POLICY ON NATIVES LAND PROPERTY OF INDONESIA

This paper analyzes the historical shifts of land property rights in Indonesia's archipelago and how new land laws were formed, especially during the Dutch colonization era. After the Netherlands East Indies (NEI) established in the 18th century and proclaimed itself as a sovereign landlord over the East Indies (Indonesia), the role of indigenous law (adat law) and its rights to lands have diminished by a new form of law namely the European law system (the civil code). By adopting the European civil code, the colonial Dutch declared all uncertified lands and all forests’ resources were the Dutch colonial State's property and to be managed by the colonial authority [State’s domain]. For Adat peoples, these rights belong to them, either as individuals or as groups, and it had been recognized by their customary law (adat law) legally, which they have had since their ancestors inhabited within the land, territories, and resources. Further significant impact toward the adat rights to land, when the Agrarian Act (agrarisch wet) applied in 1870 by the colonial government, had severely impacted towards the land right of indigenous peoples in Indonesia, by which most of them had lost their adat property right to lands and forest resources. In contrast, the Dutch colonial State was gained millions of guldens for economic profit from the expropriation of the native land and from unpaid native slaves who worked in the Dutch plantation sectors.

Droit privé, réglementation et justice

Cet article porte un regard critique sur la thèse du Droit privé réglementaire européen (ERPL). La plus grande force de l’ERPL est qu’il offre une perspective entièrement nouvelle sur le droit privé européen. Toutefois, en tant que théorie exhaustive du droit privé européen, l’ERPL est trop unilatéral, d’un point de vue à la fois descriptif et normatif. Le fait qu’il se concentre fortement sur le droit privé enfermé dans des silos réglementaires pour des secteurs du marché spécifiques dissimule la réalité de l’acquis touchant au droit de la consommation et sa force transformative. Un tableau plus complet inclurait les contours d’un système plus ou moins cohérent de droit privé européen qui émerge à l’heure actuelle. Les principaux piliers de ce système pragmatique sont (pour l’instant) les droits de rétractation, le contrôle des clauses abusives et les remèdes en cas de non-conformité. De plus, la contribution du droit privé européen à la justice de l’accès ne peut pas être l’unique standard pour son évaluation et sa critique ; la justice interpersonnelle et la légitimité démocratique sont au moins aussi importantes.

POSTANOWIENIA ZAKAZUJĄCE STRONIE STOSUNKU UBEZPIECZENIA ODPOWIEDZIALNOŚCI CYWILNEJ SAMODZIELNEGO DOKONYWANIA CZYNNOŚCI USTALAJĄCYCH W USTAWODAWSTWACH PAŃSTW CZŁONKOWSKICH UNII EUROPEJSKIEJ

PROVISIONS PROHIBITING A PARTY TO A CIVIL LIABILITY INSURANCE CONTRACT FROM PERFORMING DECLARATORY ACTS IN THE LEGISISLATIONS OF THE MEMBER STATESSummaryAt the m om ent of the insurance occurence a stage o f cooperation, in a broad sense, comes into existence between the parties of a civil liability insurance contract. Its aim is not only a defense against a debt but also against fixing it at an excessive level.An insurance agency, which is actually threatened with an obligation to pay damages, imposes additional duties on the other party. The main duties are the following: a ban on fulfilling the injured party’s claims on his own, concluding a settlement or adm itting the claims. The aim of these bans is protection against overhasty decisions and statements of the insured person as well as against the unfairness o f an entity being in collusion with the injured party which may deliberately mislead the insurer in order to get excessive damages. In some instances the insured party may be led by compassion or regret or act under the influence o f strong emotions justified by the circumstances of the accident. Independently of the intentions of the insured, an insurance agency’s liability has an accessorial nature; it is responsible w ithin the same scope as the insured.The topic of this article are the provisions prohibiting the insured from declaratory actions w ithout a prior consent o f the isnsurance agency. Although they are on principle applied in all European law systems, they are not uniform. My analysis regards the solutions of French and German law as well as in the com m on law system; Polish accession to European U nion makes it necssary not only to prom ote our own practice but also to familiarise with the experience of foreign legislations.

The Aarhus Convention and the Democratic Involvement in Enviromental Issues: The Italian Case

The Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters was adopted on 25 June 1998 in Aarhus and ratified in Italy by the law 168/2001. Article 6 and Article 7 preview that “Each Party shall ensure that in the decision due account is taken of the outcome of the public participation”. It promotes public participation in environmental decisions, realized by two main strategies. On the one hand the enforcement of the right to environmental information and on the other hand the public involvement in the decision-making related to the carrying on of specific infrastructures such as industrial assets, landfills, incinerators, railway lines, roads and so on. The Aarhus Convention has been implemented by the European Law System with the Directive 2003/4/EC and the Decision 2005/370/EC. The European Court of Human Rights has implemented it as a specific aspect of the right to express a proper and informed opinion according to Article 10 ECHR and of the right to the respect of family and private life. Although Italy has implemented the Convention, it never seems to have fully accomplished its effects. Indeed, the local communities involved in industrial or infrastructural realizations have not been consulted or their opinion has not been taken into account. The aim of this paper is to evaluate what is the impact of those policies and the related attitude of the Italian system on the protection of human rights of the people involved.

The Self‐Referential European Polity, its Legal Context and Systemic Differentiation: Theoretical Reflections on the Emergence of the EU's Political and Legal Autopoiesis

Abstract: This article starts by summarising major theoretical debates regarding European polity and governance. It highlights the role of statehood in those debates and suggests moving beyond the constraints of institutionalist and constructivist perspectives by adopting specific notions from the theory of autopoietic social systems. The following part describes the EU political system as self‐referential, functionally differentiated from the system of European law, and internally differentiated between European institutions and Member State governments. Although the Union transgresses its nation‐state segmentation, the notions of statehood and democratic legitimacy continue to inform legal and political semantics of the EU and specific responses to the Union's systemic tensions, such as the policy of differentiated integration legislated by the flexibility clauses. The democratic deficit of instrumental legitimation justified by outcomes, the most recent example of which is the Lisbon Treaty, subsequently reveals the level of EU functional differentiation and the impossibility of fostering the ultimate construction of a normatively integrated and culturally united European polity. It shows a much more profound social dynamics of differentiation at the level of emerging European society—dynamics which do not adopt the concept of the European polity as an encompassing metaphor of this society, but makes it part of self‐referential and self‐limiting semantics of the functionally differentiated European political system.

Regulace evropského účetnictví z pohledu mezinárodní harmonizace

Článek se zabývá procesem harmonizace účetnictví z hlediska evropského vývoje. Proces harmonizace je rozčleněn do několika historických etap včetně přehledu evropských právních norem regulující účetnictví a vysvětlení podstaty mechanismu implementace mezinárodních účetních standardů do právního systému EU. Článek zároveň upozorňuje na kvalitativní změnu v regulaci evropského účetnictví.

Systemwechsel im Internationalen Anerkennungsrecht: Von der EuGVVO Zur Geplanten Abschaffung des Exequaturs

The communitarisation of judicial cooperation in civil matters by the Treaty of Amsterdam marks a new epoch in the unification of law in Europe. The European law of conflict of jurisdictions is affected by this, too. On 1 March 2002 Council Regulation (EC) No. 44/2001 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters entered into force, thus replacing the European Convention of 27 September 1968 (the so-called Brussels Convention). However, the “re-enactment” of the Brussels Convention as a Community regulation is only the first move towards a profound change in the European law system of recognition, a change aimed at the abolition of the exequatur. In accordance with the principle of mutual recognition the objective is to create “freedom of movement for judgments” between the EU Member States (I). First this paper presents the procedure of recognition and enforcement of foreign judgments under the Brussels Convention as well as the modifications introduced by the new regulation (II), focussing on the catalogue of defences to recognition in article 27 of the Brussels Convention, which until now have had to be controlled ex officio by the judge responsible for the recognition of proceedings. Under the new regulation the test of defences to recognition is no longer applied ex officio but shifts to the appellate procedure (articles 43 and 45; III). The paper concentrates on the consequences of the new regulation for the equity of the procedure. Therefore problems resulting from the intended abolition of the exequatur are discussed (IV). Central features of the analysis are the ensuing curtailment of judicial review (and thus of legal protection) and the abolition of the ordre public test. The concludes that the latter cannot be given up as ultima ratio as long as there remain differences between procedural (and hence constitutional) standards in the EU member states, i.e. as long as there is no truly European judicial area (cf. Article 61 EC Treaty; V).