European Law Research Articles

Harmonization of Ukrainian legislation with European law in the field of digital transformation of courts

The article is devoted to the problems of harmonization of national legislation in the era of digital transformation of courts with European law. The article reveals the essence of harmonization of Ukrainian legislation with European law in the field of digital transformation of courts. The main areas of research of scientists who at various stages were engaged in the study of problems related to the general characteristics of the harmonization of Ukrainian legislation with European law in the field of digital transformation of courts were studied. The European experience of the digital transformation of courts was analyzed and ways of harmonizing Ukrainian legislation with European law in the above-mentioned area were proposed. The theoretical problems of the digital transformation of the judiciary of Ukraine with European law are determined. A system of measures, functions and principles of harmonization of national legislation in the era of digital transformation of courts with European law is proposed. The stages of harmonization of legislation on the digital transformation of Ukrainian courts with European law are named. A comparative analysis of the legislative regulation of the judiciary in the era of digital transformation in Ukraine and in foreign countries was carried out, on the basis of which proposals were developed regarding the possibility of using foreign experience in the law-making activity of the state.The author argues that the observance of fundamental digital human rights and freedoms to some extent depends on the perfection of national legislation on judicial proceedings and legal mechanisms that will regulate the field of artificial intelligence used in courts. The article substantiates that the draft resolution of the European Parliament and the Council, proposed by the European Commission, establishing unified rules for artificial intelligence (Artificial Intelligence Act) and amending some EU legislative acts, is an important stage in the formation of the legal basis for regulating the use of artificial intelligence systems in courts, which must stand the test of time, balance the protection of fundamental rights, ensure legal certainty and stimulate innovation. Key words: digital transformation, national courts, European law, European judiciary, electronic court, digital technologies.

The administrative process of Ukraine under martial law

The article reveals the concept, essence, and peculiarities of the administrative process of Ukraine under martial law. The main areas of research of scientists who at various stages were engaged in the study of problems related to the general characteristics of the administrative process of Ukraine under martial law were studied. The European experience of the administrative process is analyzed and ways of improving the legal regulation of the administrative process of Ukraine are proposed. The article is devoted to the analysis of the legal foundations of the administrative process of Ukraine during martial law. The essence, features and tasks of such administrative proceedings of Ukraine are defined. The system of regulatory and legal regulation and the principles of administrative justice in Ukraine during martial law are characterized. The characterization of administrative courts as the leading subjects of administrative proceedings in Ukraine has been carried out, in particular, their concepts and types have been clarified, the essence and features of their jurisdiction, the concepts, types and features of their jurisdiction over public legal disputes have been revealed. A definition of the concept was proposed and a classification of participants in the administrative process was carried out.The essence and peculiarities of procedural representation and procedural succession in administrative proceedings are clarified. The concepts and types of provision of administrative justice of Ukraine are defined and characterized. The peculiarities of the participation of military personnel in the administrative proceedings of Ukraine have been established. Ways to improve the legislation regulating the organization and implementation of administrative justice in Ukraine are proposed. Key words: administrative process, national courts, European law, administrative proceedings, martial law.

Ku ustawie z 17 maja 1989 r. Ewolucja postaw władzy wobec Kościoła i idei wolności sumienia i wyznania w Polsce

Freedom of conscience and belief belongs to basic human rights. Furthermore, they stay under the influence of individual generations of human rights, European and international law, judgments of courts and constitutional tribunals. Freedom of conscience is identical to liberty of thoughts and beliefs. These rights are guaranteed by countries and are determinant of their rule of law. On the 17th of May 1989, the Sejm of the Polish People’s Republic adopted a law on guaranteeing conscience and belief freedom. The purpose of this elaboration was to present the evolution of the attitude of the socialist country authority towards the Church and the idea of the freedom of conscience. There were also selected premises that contributed to the elaboration of this act: documents of international law and political trials that had an impact on the authority’s attitude. Attention was paid to the difficult relationship between the Church and the country in the 40s and 50s and the effect of human rights development, that was implemented by international organizations, particularly by ONZ, UNESCO, and CSCE on warranty policy for conscience and belief freedom in Poland. The country-Church relationship was shown in the declining period of PPR. The process of preparing the law from 17 May 1989 was examined.

Data Retention in Labour Law

The age of information has a massive impact on society. New possibilities including search engines, sensor networks, security agencies, marketers and highly accessible databases require multiple and careful legal frameworks that will help to protect personal data on an advanced level. Its protection is a subject of comprehensive analysis that requires the assessment of multiple international or domestic legislation. Multiple perspectives regarding the protection of personal data in the employment context make the subject more important as it’s crucial to make a proper assessment in order to determine the differences in between the visions of legislators as all of them are trying to do their best in order to protect the personal data but they still have many dissimilarities. This paper analyses the differences in European and Georgian Legislation and determines the main aspects of data retention in labour law. European treaties, directives and domestic law of Georgia might carry certain similarities and values but every aspect carries lots of important outcomes from the perspective of data protection that needs to be properly addressed.

Modern Georgian corporate law in the mirror of European law. General review of the reform

One of the obligations under the Georgia-EU Association Agreement was to undertake reforms of Georgian corporate law. Since 1 January 2022, Georgia has had a new corporate law, which is built on a regulatory function. From the point of view of law policy, it is based upon the regime of dispositional arrangement, though regulation of joint-stock companies constitutes an exception. Saturation of modern Georgian corporate law with legislative norms is the best way to overcome corporate impasses. As a result of the recent reform, the new corporate law contributes to the foreseeability and predictability of the corporate-legal relationships, which at once should provide more confidence for both foreign and domestic investors. The norms contained in the present reform are also equipped with a didactic function, which is especially necessary for the post-Soviet corporate economy.

The Role of Administrative Courts in Ensuring the Protection of the Rights of Children of Same-Sex Couples (in the Context of European Law)

The role of courts in the protection of individual and the so-called judicial lawmaking are theoretical issues of a major importance for legal practice (law application), as they concern the answer to the question of what a judge when the statutory provisions, in the opinion of the court, are outdated or insufficient in relation to the factual situation being resolved, due to ongoing alterations in social relations. The aim of the study is to point out the role of administrative courts in protecting the rights of children of same-sex couples. Contemporary phenomena operating on a European scale, such as open borders and migrations, pluralism of lifestyles, or the development in infotech and biotech (also medical technologies), are reflected in legal relationships regulated by various branches of law, including the norms regulating cases falling within the scope of cognition of administrative courts. They are also, inter alia, a source of problems in the title area related to the interpretation of such norms. Case-law can play an important role in both dynamically interpreting the law within social realities, unifying practice and rising the awareness of rights protection. The title subject is presented in the light of European law – primarily in the light of standards and principles of law, the sources of which are: traditions of European states and national law, inter- and supranational regulations and case-law of the European Court of Human Rights (ECHR) and the Court of Justice of the European Union (CJEU). It is worth noting that, as far as EU law is concerned, there has been no harmonisation or unification at the community (or Convention) level in this area due to lack of delegation the relevant competences to the European Union by the Member States. According to the principle of conferral, the Union can only act within the scope of its competence and has only as much competence as the Member States have conferred on it. Thus, all matters not explicitly indicated as EU competences remain under the autonomous regulation of the Member States. However, these title matters fall – indirectly – within the scope of the norms provided for by the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights – ECHR). The paper shows that administrative courts – which as a rule are to pass conservative and formalistic judgements – are able to refer to the value of flexibility in the law application, when it is necessary to grant protection to the rights of children of same-sex couples.

Maternity and Paternity Leave in the Case of Single-parent Families. Problems and Proposals

The Spanish regulatory framework on Work-Life balance and co-responsibility has evolved slowly but continuously in recent decades, constantly hand in hand with European social law. The advances have been notable, although there are still certain areas in which the legislator is reluctant to enter. One of them is that of single-parent families. The data shows that it is a family model that is on the rise and that both the parents in charge and the boys and girls who make it up need protection. In terms of conciliation and co-responsibility, specifically, studies show that a specific adjustment is necessary so that this fundamental right can be exercised and protected within the framework of all types of families, including those where there is only one parent, and this is impossible to share parenting in a co-responsible way. The classic schemes and mechanisms of reconciliation policies must be rethought, modulating alternatives that consider novel issues such as the “best interests of the child” or “parenting in a network”. In order to operate this change of perspective, a study of the existing regulations is proposed considering the most advanced jurisprudential debate related to the accumulation of birth permits in the assumption of single-parent families.

STATE LIABILITY IN THE CONTEXT OF EUROPEAN INTEGRATION

The main idea in the pursuit of European integration in Ukraine is that the reception of foreign legal institutions is increasingly spreading among lawyers and ordinary citizens, and is the simplest and fastest way to solve problems that have accumulated in society. However, on the favor of the populist nature of such calls, a critical approach to such a complex process as reception is pushed to the background. The best example of the ambiguity of this approach can be demonstrated by the illustration of German law - the institution of state liability of bod­ies and their representatives for caused damage. The institute itself is not something new; it is also familiar to the Ukrainian law. Moreover, it even has similar regulatory mechanisms that in both the Constitution of Ukraine and the Civil Code of Ukraine are easy to find. However, the internal content of the institution has fundamental differences. The main reason is the difference in the law practice, which is aimed at compensating for the rather meagre regulatory body for such a complex legal institution. Being a two-component element that consists of a civil and a public liability, it includes an administrative liability which is fully subordinated to the German civil law logic in the context of the federal structure of the state, it often leads neither only to confusing casuistry, nor comes into conflict with the European law, there is a struggle for the right to determine independently the responsibility of its state bodies. Not the least role in this is played by the degree-rank of the responsibility of the state as such with a complex mechanism of interaction of all these elements with each other. Thus, we can say that the implementation of any institution in isolation, outside the context of the legal system, where it has been nurtured and reinforced by the law practice, is doomed to failure in advance. This is why even two similar in form legal institutions in different countries will have different degrees of efficiency and are not always suitable to solve the same tasks.

Legal Nature of Smart Contracts: Contract or Program Code?

Objective: due to the rapid technological changes, digital economy and contractual relations determine law transformation and legislation development towards adaptation to prospective spreading and application of smart contracts in civil and commercial turnover. In this regard, the study focuses on determining the legal essence of smart contracts as a fundamental step towards the development of their timely and clear regulation.Methods: the research is based on the methodology of formal-legal and comparative legal analysis. It compares the current Bulgarian legislation with supranational legal sources and identifies the characteristic features of smart contracts as demanded instruments necessary for modern law and economy. The article also compares them with the classical understanding of contracts, making it possible to understand and define the nature of smart contracts more accurately.Results: it was determined that a smart contract is a software code in which the parties predetermine conditions under which the contractual relationship between them is created, modified and terminated. The research proved that the contract execution does not depend on the action or inaction of its parties, but rather on the occurrence of a predetermined condition (a certain fact relevant to the parties) under which the contract must self-execute. It was substantiated that the will of the parties cannot be changed or replaced because of the special way in which the smart contract is recorded in a distributed ledger. It is found that the fundamental problem of transferring the will from the legal language to the program code of the smart contract persists: if the will of the parties is incorrectly transferred to the program code, the smart contract may self-execute, but its execution will not be the result that the parties counted on.Scientific novelty: the analysis made it possible to compare the current national (Bulgarian) legislation and supranational (European) law. It revealed the vagueness of smart contracts regulation, both at the national and international level, and identified a number of issues in need of scientific and legal interpretation, which refer to the legal nature of smart contracts in view of the self-executing program code concept.Practical significance: the study can serve as a basis for further development of legislation towards its adaptation to the prospects of smart contracts spreading and application in civil and commercial turnover. It also allows an in-depth analysis of the smart contracts practice referring to such unsolved problems as accurate transference of the parties' will to the program code (translation of specific terms from the legal language into the smart contract program code), electronic identification of subjects - parties to the transaction and many other issues.

A European Panorama on the Copyright Status of Stage Directors

The 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions states outright in its guiding principles that culture is one of the main aspects of development, which is as important as its economic aspects, and which individuals and people have the fundamental right to participate in and enjoy. Theatrical productions are one of the best-selling forms of entertainment. From a cultural and artistic perspective, they are one of the oldest methods of expression which, in addition to self-expression, is also a mirror of the social and political order. The aim of this article is to present the theoretical, legislative, and jurisprudential positions on the copyright situation of the theatre director. The focus of the article is on the question of how the legal status of the theatre director is settled and regulated in different European legal systems. In several European countries there are no specific legal provisions on this matter. This article is organized as follows. First, the historical and cultural aspects of theatrical productions are introduced. After that, the most important copyright law features of dramatic works are reviewed, together with an overview of some European laws. In the core of the article, the current legal situation – and possible copyright law solutions for theatre directors – are elaborated.

Identification and demarcation—A general definition and method to address information technology in European IT security law

Information technology (IT) as a regulatory object is defined and viewed differently across various domains of European IT security law. However, common definitions and methods for the demarcation and separation of operational information technology can contribute to coherence in the historically grown body of regulation. This paper identifies three different general approaches for the treatment of information technology within the existing body of law: information technology as a means, as a service and as a product. Furthermore, we compile a general definition of information technology, which consists of three logical subentities: components, systems, and services. Additionally, steps for the practical identification of the operational information technology addressed by material law requirements are shown. First, all services that affect an articulated protected good must be identified. Within the identification of the systems used to realize those services, two dimensions must be considered. There is the functional dimension as well as the control and power of the disposal dimension. An identified weakness of the current state of IT security law is a lack of clearly formulated protected goods within the existing regulations, which contributes to the difficulties of addressing information technology in general. Furthermore, this paper discusses which actors are responsible for a demarcated piece of information technology and what responsibilities are assigned to them. This section also elaborates on the difficulty of appropriately addressing commercial and non-commercial actors.

Analysis of the Use of Rational Electric Vehicle Battery Design as an Example of the Introduction of the Fit for 55 Package in the Real Estate Market

The European climate law contains a mandatory EU climate target of reducing emissions in the EU by at least 55% by 2030; to realistically implement it, a transformation of many economic sectors is required. The main solutions focus on energy production. However, an equally important aspect is its storage. It represents the biggest challenge to ensure the stability of energy use in the real estate market. Today, lithium-ion batteries are the most promising batteries. They have the advantages of high efficiency during the charge–discharge process, and high density of electrical energy. The potential range of electric vehicles on a single charge depends on the battery. Accumulator batteries, depending on their purpose, are assembled from a certain number of lithium-ion cells. At the same time, the battery connection scheme depends on what the goal is. This can be an increase in battery capacity, an increase in voltage, or a combination of both parametric characteristics of the device. This approach and research results can be implemented not only in the automotive field, but also in industry, the real estate market, etc.

Uplatňování zákazu diskriminace ve státní službě

The article discusses the application of the principle of equal treatment and the prohibition of discrimination in the context of public service. While employees who feel discriminated against often resort to legal action in civil courts or raise discrimination claims in other civil proceedings, the situation in employment relationships within the public service is less clear. The author examines how the law on public service refers to the relevant provisions of the Labor Code and explores the compatibility of the regulations designed for employment relationships with the specific nature of public service relationships. The article also emphasizes the importance of addressing discrimination claims in the appropriate procedural framework. Despite the increased element of subordination in public service, the principle of equal treatment and the prohibition of discrimination can still be invoked by public servants, as European law does not allow otherwise. The article analyzes the case law of the Czech supreme courts and its consequences.

The protection offered by European Union consumer law as an area of dialogue between the Court of Justice of the European Union and national courts

Consumer protection is not the only area of EU law in which significant progress has been made both through the adoption of formal legal instruments and through the interpretation of existing rules by the Court of Justice of the European Union, mostly on the initiative of national courts through the preliminary reference procedure provided for in Article 267 of the Treaty on the Functioning of the European Union. However, EU consumer law is unique in that the Court of Justice, with the assistance of national judges, has developed what can be described as a surprising interpretation of the secondary legislation in this area, going beyond the substantive aspects which it seeks to regulate and touching on important procedural aspects relating to the procedural position of consumers seeking to enforce their rights under European law and the remedies which can be used within the national legal systems of the Member States to promote more effective enforcement of consumer protection law..
 The article begins by highlighting the approach taken by the Court of Justice in this decision and the implications of this approach, and then goes on to highlight two of the main mechanisms used in this approach - the progressive development of a broad concept of consumer in its procedural dimension and the principle of ex officio action by the national judge in consumer cases. The case-law relating to these mechanisms is presented in terms of its dynamics, including the most recent developments and a reading grid is proposed for each of them, which goes beyond the issue of consumer protection in order to identify the implications from an institutional perspective of the relationship between the European Union and the Member States. The final part of the paper brings the two sets of jurisprudence together in order to draw some conclusions on the growing role of European jurisprudence.

Giving voice: a public sphere theory of European private law adjudication

AbstractThis Article addresses the question of how to explain and justify the allocation of politically sensitive legal questions to civil courts in the European Union. It proposes a pluralist theoretical view on interactions of private law adjudication with legislative initiatives in the process of building a European political community. This is elaborated on the basis of a reconstruction of the interaction between judicial and legislative processes in three high-profile cases (concerning non-discrimination, housing and climate change) in light of three theoretical perspectives: social justice, constitutionalism and public sphere theory. The first two perspectives shed light on the legal-political dimension of private legal questions in the European Union and manners in which to handle the plurality of sources and institutions in this field. They do, however, not fully clarify the distinction and relation between Habermasian discourses of justification and discourses of application of law in European Private Law adjudication. The Article suggests that public sphere theory, with a basis in Fraser’s work on transnationalisation, can complement the theoretical understanding of the role of judges in European Private Law. It is submitted that the interaction between national and European levels of adjudication helps maintain transnational deliberative spheres in which the legal-political stakes behind private law can be discussed. This opens up space for the inclusion of different voices in democratic deliberations on questions of social justice. Private law adjudication may thus be considered to contribute to the initiation of discourses of justification which serve the re-imagination of a European political community.

Bargaining inequality: ways to overcome it in international commercial law and in private international law

The basic tenet of contract law is freedom of contract, including the freedom to negotiate and the autonomy of the will of the parties. However, practice and doctrine show that many international commercial contracts are formed in conditions of actual inequality of counterparties. The present work is the first comprehensive study of the problem of cross-border bargaining inequality among professional merchants. The aim of the study is to systematize and critically evaluate the effectiveness of legal conditions formulated in the unified acts of international commercial law and private international law to overcome inequality of counterparties at the pre-contractual stage. The study is based on logical, formal-legal and comparative-legal methods. The results and conclusions may be formulated as follows: (1) The set of legal means to resolve the problem of unequal position of the contracting parties is represented by a complex of complementary spheres of unified normative regulation - substantive norms and conflict-of-law norms. (2) Universal conventional legal regulation of the pre-contractual stage has not been developed. (3) Recommendatory acts of substantive unification of commercial law enshrine developed models of regulation of the parties’ conduct in cross-border negotiations. The main legal means to balance the position of the counterparties is the institution of the pre-contractual liability based on the principle of good faith. (4) Both in European law and in Russian law, the conflict-of-law issue is resolved through a combination of non-contractual qualification of the pre-contractual relations and the complex nature of regulation involving the consecutive use of contractual and tort-based connecting factors. (4) Where there is inequality, conflict-of-laws must provide for an equitable solution to situations where the choice of law applicable to each of the contracting parties is not truly free, including permitting a deviation from the principle of autonomy of will. (5) In the absence of parties’ choice of applicable law, the list of criteria for establishing the closest connection between the pre-contractual legal relation and the competent legal order should be expanded: the court should be able to consider the law of the future contractual obligations’ place of performance and the law governing other related contracts.

The Tension between the National and ECHR Human Rights Adjudication: A Normative Account

Abstract This article examines cases of conflicting decisions between the ECHR and State Courts. I argue for ‘discordant adjudicative parity.’ According to discordant adjudicative parity, there are compelling non-instrumental reasons for having both international adjudicative institutions and state adjudicative institutions that can make binding, conflicting decisions. Binding decisions by international adjudicative institutions embody the understanding that human rights are duties rather than decisions that are voluntarily undertaken. State Courts facilitate deliberative engagement on the part of citizens as, ultimately, the citizens are in charge of States’ courts. I use this analysis to justify the principle of subsidiarity in European law.

Constructing the Viking and Laval cases as a major defeat for social Europe: a contextual and processual analysis

AbstractThis Article brings new perspectives on the well-known Viking and Laval cases, decided by the Court of Justice of the European Union (CJEU) in December 2007, by studying the processes and modalities of the construction of this case law as a major defeat for social Europe. It demonstrates that the political and legal implications of these two rulings were socially constructed by a variety of European actors (especially trade unionists and academics specialising in labour law) rather than legally inscribed in the rulings. In doing so, the author defends a constructivist approach in the analysis of European case law, both contextual and processual. The Article is divided into two parts. The first retraces the pre-ruling construction of the Viking and Laval cases, and shows that trade union and academic actors as well as parliamentarians worked to construct the judgements on these cases as decisive landmarks for social Europe. The second part considers the process of interpretation of the rulings after they were delivered by the CJEU. It evidences the central role played by trade union and academic actors in promoting a critical reading of the rulings, arguing that the Court subordinated social rights to economic liberties. The Article concludes by showing that this interpretation has tended to become subject to consensus, to the extent that it is now European common sense.

2023/26 The obligation to record working time in the light of European and national (German) case law - part 1 (GE)

2023/26 The obligation to record working time in the light of European and national (German) case law - part 1 (GE)

Unveiling Deceptive Claims: A Cross-Sectional Observational Assessment of Dietary Supplement Advertisements from Three News Channels in Romania

Abstract Dietary supplements can provide the necessary nutrients for groups of people who need them, but their use comes with a few risks, such as excessive or unwarranted utilization, side effects, unwanted interactions, and the promotion of unhealthy behaviors or neglecting professional health care. This cross-sectional study analyzed 49 TV advertisements on three major news channels in Romania regarding their compliance with European and national laws concerning the advertisement of dietary supplements. A list of criteria was extracted from the current laws in Romania and was used to check the video promotional materials’ compliance systematically. Despite more than half of the commercials complying with the technical criteria, it was found that a concerning amount of advertisements targeted people with various or specific pathologies, while a third of the ads included non-compliant words or representations associated with pathologies and medical professionals or institutions. As a practical implication, the study suggests a need for more consistent and closer surveillance of dietary supplement commercials broadcasted in the Romanian media.