European Law Research Articles

Fundamental Rights and Limited Possibilities: The Proviso of the Possible in European Fundamental Rights Doctrine

Abstract Fundamental rights to positive state action are costly. An allocation in favor of one individual rightsholder always results in lower allocations in favor of others. The dominant approach in fundamental rights doctrine assumes these conflicts can be resolved judicially by balancing competing rights and other public needs. In practice, carrying out an in-depth balancing in resource allocation cases proves challenging but constitutional courts developed different strategies and concepts to deal with costly rights. The European Court of Human Rights applies a “wide” margin of appreciation and requires that positive state obligations do “not impose an impossible or disproportionate burden on the authorities.” Following the German Federal Constitutional Court, several constitutional courts have applied a concept known as the “proviso of the possible.” The proviso of the possible constrains positive rights and results in a wide margin of discretion granted to political authorities. This article attempts to investigate the specific meaning of the “proviso of the possible” in the context of European fundamental rights law by comparing it against alternative doctrinal concepts. The investigation aims to identify common legal principles and methods to deal with fundamental rights conflicts over scarce public resources.

Artificial Intelligence - Curse or Blessing? Historical Analysis of Digital Developments up to the First European Law on Artificial Intelligence (AI-Act)

Changes in the way people live and work, driven by digitalization and automation, have always triggered fears. Developments in the field of digitalization and automation, as well as the use of artificial intelligence, which has been the subject of much discussion recently, require people in all areas to have a certain degree of adaptability. Increasing complexity, the loss of jobs and the challenges of data protection are just a few examples of the challenges facing not only society but also legislators. The simplification of daily life and the increasing efficiency gains made possible by AI are some of the arguments in favor of using AI. The EU law on artificial intelligence aims to ensure that AI systems brought to market and deployed in the EU are safe and in line with the EU's fundamental rights and values. The groundbreaking proposal is also intended to promote investment and innovation in the field of AI in Europe.

Abstract 2283: A targeted mutation calling workflow - end to end - from FASTQ to clinical report for single cells

Abstract Molecular profiling of rare cancer cells derived from liquid biopsy holds promise to monitor systemic cancer progression and guide personalized therapy interventions. However, this necessitates reliable and comprehensive profiling of samples at the single cell level and requires whole genome amplification (WGA), which adds amplification errors and bias to common sequencing errors. Therefore, we established a single-cell mutation calling workflow that can identify clinically actionable somatic mutations in rare single cell DNA with high sensitivity and accuracy. Our workflow is an end-to-end solution which can take FASTQ reads from any Panel Sequencing (PanelSeq) data and gives out single nucleotide variations (SNVs), insertion-deletions (InDels), and copy number variations (CNVs) in single cells alongside with mutation specific information from ClinVar, OncoKB, pathogenicity scores, conservations scores as well as known association to drug response and resistance. We incorporated a Bayesian Neural Network (NN) based Classifier algorithm that assigns a single statistical confidence score to the mutations, enabling prioritization of the mutations in a robust manner. On the training dataset including MDA-MB-453, BT474, BT549 and ZR-75.1 cell lines, the classifier achieved 91% sensitivity and 96% specificity (AUC=0.98), while on the independent test collective including HCC1395/HCC1395BL cell lines it achieved 84% sensitivity and 96% specificity (AUC=0.90). We applied the workflow to patient samples suffering from advanced metastatic Triple Negative Breast Cancer (TNBC) assayed with in-house single-cell Integrated Mutation Profiling of Actionable Cancer Targets (scIMPACT) and single-cell Whole Exome Sequencing (scWES). Using our method, we detected clinically actionable SNVs with pathogenic relevance in primary tumor, metastatic specimens, circulating tumor cells (CTCs) from blood and disseminated cancer cells (DCC) from pleural effusions, as well as the matched CTC-derived in vivo models (CDX). Notably, functional in vitro drug screens performed on CDX models uncovered susceptibility to approved drug treatments conferred by mutations detected in the samples. In summary, we introduce a novel mutation calling workflow facilitating detection of SNVs, Indels and CNVs in rare single cells with high sensitivity and precision. Confident scores assigned by the NN classifier enables identification of functionally actionable mutations. The workflow was executed in GDPR compliant fashion and follows all data protection standards imposed by the European laws. Accordingly, the method is well suited for molecular profiling, therapeutic target selection and longitudinal monitoring of liquid biopsy specimens in diagnostic environments. Citation Format: Adithi Ravikumar Varadarajan, Thomas Ragg, Jonas Grote, Vadim Dechand, Steffi Treitschke, Clara Chaiban, Christoph Klein, Zbigniew Czyz, Jens Warfsmann. A targeted mutation calling workflow - end to end - from FASTQ to clinical report for single cells [abstract]. In: Proceedings of the American Association for Cancer Research Annual Meeting 2024; Part 1 (Regular Abstracts); 2024 Apr 5-10; San Diego, CA. Philadelphia (PA): AACR; Cancer Res 2024;84(6_Suppl):Abstract nr 2283.

Definition "farmer" in EU legislation and its implementation into the legislation of Ukraine

The article is devoted to the issue of unification in Ukrainian legislation the definitions that are used in the European legislative acts concerning the Common Agricultural policy (hereinafter - CAP), particularly, the definition of "farmer" as a beneficiary of direct payments.
 There are numerous definitions of subjects providing agricultural activity according to the current Ukrainian legislation: agricultural producer, manufacturer of agricultural products, household, agricultural enterprise, subject of agro-industrial complex, agricultural cooperative, individual farm, farming enterprise, family farming enterprise, farming enterprise as an individual entrepreneur. Instead of this the European agricultural law operates with the term "farmer".
 In order to provide the correct and barrier-free applying of CAP provisions that would regulate the agricultural activity of Ukrainian persons, legal and natural ones, after Ukraine becomes the member of the European Union, it is necessary now to conduct a research of the concept of term "farmer" according to EU legislation and the related definitions such as "agricultural activity", "agricultural products", "active farmer", "young farmer", "new farmer". The obtained results could be taking into account in the legislative amendment process that is taking place in Ukraine due to the granted status as a candidate to the EU. Abovementioned is the aim of these thesis.
 In order to gain correct understanding of the term "farmer” in the EU countries the structure of the European agricultural sector is analyzed by the author. Summarizing the conducted research it is stated that due to the European approach enshrined in the CAP the term "farmer” is a general definition to all the persons that provide agricultural activity irrespectively to their size, organizational structure, type of management etc. In order to harmonize the national Ukrainian legislation to the European one there are several propositions how to amend the legislation.

Impact of New Technologies on Economic Behavior and Consumer Freedom of Choice: from Neuromarketing to Neuro-Rights

Objective: to identify the possibilities for an adequate response of the existing legal regime to the various challenges posed to European law by artificial intelligence systems underlying neuromarketing techniques.Methods: the study is based on the risk-oriented approach, formal-logical, formal-legal and comparative-legal methods, as well as on the method of legal forecasting, in order to identify the problems of legislation caused by the emerging technologies capable of recognizing human emotions and using them to control consumer behavior, and to propose ways to solve them.Results: the conducted research provides a brief overview of the most widely used neuromarketing techniques used by algorithms and machine learning. These allow identifying points of cognitive and emotional vulnerability, collecting and processing data, and then building the most effective marketing techniques that push a consumer to choose a certain product or service. Ethical problems are analyzed which arise from the use of neuromarketing techniques in relation to some basic values such as individual independence, human dignity, and freedom of choice. The subtle line is shown between techniques that manipulate consumer behavior (manipulation technique) and those that, on the contrary, have a persuasive effect, which in itself does not make them illegal (persuasion technique). An overview of the existing legal framework is presented, as well as case law from both the European Court of Justice and national courts of member states with a particular focus on the Unfair Commercial Practices Directive, the EU General Regulation on the Protection of Personal Data (hard law), and codes of ethics (soft law).Scientific novelty: the paper points out the transformation of traditional legal categories and important problem points of the existing regulation due to the growing recognition of the potential of neuromarketing as a tool capable of explaining and predicting consumer behavior, as well as influencing the economic behavior of the subjects of relations.Practical significance: the obtained conclusions and proposals can be taken into account in improving the regulation of artificial intelligence in terms of its safety and reliability, increasing trust in the system, given the need to protect ethical principles and maintain fundamental values.

Archives in Stone: Cemeteries, Burial, and Urban Ownership in Late Colonial Ghana

While many scholars have examined the influence of European law, writing, and record-keeping on African land rights and property, few have analyzed semi-textual records such as cemetery gravestones. This essay argues that urban cemeteries, introduced by the British colonial state to the Gold Coast Colony (southern Ghana) in the nineteenth century, became archives in stone. As one of the few public records forums available inside Gold Coast towns, cemeteries offered basic, but crucial, information. They indirectly dated immigration history and reflected ancestral political status. Over the course of colonial rule, Gold Coast citizens petitioned the state to have their elders buried in particular cemeteries to augment their claims to land and authority. This essay demonstrates that urban ownership—the status of belonging to a town as an authochthon—came to depend partly upon cemetery burial. Like any archive, cemeteries were highly curated collections, shaping legal contestations over residency, leadership, and land ownership.

Prioritisation under Value Chain Due Diligence

Abstract This article analyses the mechanisms of prioritisation and hierarchisation of risk contained under influential soft law frameworks on value chain due diligence. It identifies the main stages of the due diligence process where prioritisation may be required and clarifies the criteria that may be used by corporations for prioritisation decisions. The article contributes to the development of the literature concerning prioritisation mechanisms under value chain due diligence norms, highlighting, from a compliance perspective, how corporations are expected to prioritise both their evaluations to identify and assess adverse impacts as well as their actions to address specific impacts identified and assessed. In doing so, it showcases the challenges present when comparing the significance of adverse impacts pertaining to different policy fields and their implications in a prioritisation context. It then compares the solutions found in these soft law frameworks concerning prioritisation to the ones contained in European laws and legislative proposals on the subject. The analysis reveals the different approaches used by legislators and reflects on their repercussions for prioritisation mechanisms, suggesting the reinforcement and clarification of prioritisation requirements in accordance with international frameworks of reference.

Gender Equity in Deanship of the Central and Eastern European Law Schools

The paper aims to analyze the scope of female leadership (deanship) at public and non-public law faculties in selected countries from the region of Central and Eastern Europe: Poland, Hungary, Czechia, Slovakia, Lithuania, Latvia, Estonia, Bulgaria, Romania, Slovenia, Croatia, Serbia, Kosovo, Bosnia and Hercegovina, Montenegro. The paper will explore the engagement of women in the administration of law schools operating within public (and non-public) schools (universities) across the region in the latest years. The paper aims to show the number of female deanships at law faculties in the analyzed states. This analysis will be based on statistical data obtained from the available public sources (including national databases as well as the European Union resources) providing the number of female deans and vice-deans appointed or elected by the academia at all higher education institutions within the country. The initial hypothesis states that gender inequality has been present in the deanship of analyzed law schools and reflects general trends in gender equality in Europe. Comprehensive analysis of the central and eastern European states will allow formulating the key conclusions and answering the following research questions concerning the differences in the numbers of women on the key positions within the law faculties in terms of public versus non-public institutions and in the light of the general gender equality trends in the continent. The research methods used for the analysis include a dogmatic method, statistical method as well as comparative method.

Unijne uwarunkowania publicznego prawa gospodarczego

The aim of the study is to present the influence and importance of European Union law on the development of public economic law in Poland. This impact was undoubtedly very significant – it changed in the pre-accession period and after Poland’s accession to the EU and covered many areas. The science of public economic law has long addressed current issues concerning the impact of EU law as well as the acquis communautaire of the European Union on the subject matter of this particular discipline of jurisprudence. The interest in European (EU) topics affected domestic legal studies as a whole and was, for understandable reasons, also applied by other scientific disciplines from their own respective research perspectives. Even in the previous socio-political-economic system, in the period of the Polish People’s Republic, scholars dealing with current public economic law analyzed systemic and specific (detailed) issues of various types, which is confirmed by a review of the literature. Undoubtedly, this influence of legal norms and the EU acquis, both in the pre-accession period and then in the period of EU membership, has increased significantly and has transformed the legal order. These changes concern both the legal situation of entrepreneurs and the position (status) of public authorities, especially economic administration bodies, and the entire mechanism of implementing the multicentric legal system in the social market economy. Substantive, procedural and organizational norms have been transformed, which at the same time sometimes required a revision of previous research attitudes. However, this has definitely opened up new prospects for scientific cognition and teaching in the university world and significantly influenced economic turnover

Why Incorporate the ECHR? The Domestic Incentives of Human Rights Commitment

Abstract Why do consolidated democracies incorporate international human rights law (IHRL) treaties into national law? Existing research suggests contrastive accounts of the participation of democracies in IHRL regimes. While overall more likely to ratify, consolidated democracies are sometimes reluctant to accept demanding human rights commitments and less likely than both newly democratic and authoritarian regimes to incorporate international law in their constitutions. To theorize why established democracies commit to IHRL, this paper provides a comparative process tracing of the decisions to incorporate the European Convention on Human Rights (ECHR) into national law in Denmark and Sweden in the early 1990s. Why did these solid democracies with an exceptional commitment to human rights wait over 40 years to give domestic effect to a treaty they had helped create? Assessing rival theories of state commitment to human rights norms, the findings suggest that contextual developments in European law provided an opportunity for domestic political elites to seek insurance by incorporating the ECHR to place constraints on executive power. The argument qualifies claims about material strategizing or socialization to European norms as the primary drivers of incorporation.

REALIZATION OF THE RIGHT TO ENSURE A HIGH LEVEL OF CONSUMER PROTECTION IN THE EUROPEAN UNION

The subject of the article is the realization of the right to ensure a high level of consumer protection in the European Union. The basis for constructing this law is Art. 38 of the Charter of Fundamental Rights of the European Union, the provisions of the Treaty on the Functioning of the European Union and EU directives defining the subject of consumer law. The article discusses the normative basis for the protection of consumer rights in European Union law. Selected standards of consumer rights protection in the case law of the Court of Justice of the European Union were discussed, too. The article also discusses the role of European Union consumer law in realization of the right to consumer protection in the Republic of Poland. According to the author Art. 76 of the Constitution of the Republic of Poland does not provide grounds for constructing a subjective right to ensure a high level of consumer protection. Therefore, the provisions of European Union law and the case law of the Court of Justice of the European Union are of key importance.

The European Union’s Response to the Catalan Secessionist Process

AbstractArticle 4.2 TEU enshrines the EU’s respect for the exclusive right of each Member State to ensure its territorial integrity. No EU Member State allows referendums for part of the population to decide on the national territory. The Commission and European Council have recognized that the effect of a secession in a Member State is to leave the new state outside the EU. Whether or not European citizenship is retained is a matter not of European but national law, as European citizenship is an automatic complement to the nationality of a Member State. The position of the Commission and the European Council regarding the Catalan authorities’ illegal referendum and declaration of independence was to support the constitutional mechanism for intervention authorized by the Spanish Senate. Nationalisms erode the integration process by weakening the cohesion of states and undermining the equality of their citizens.

Round-up of European enforcement case law 2023

Abstract In 2023, several noteworthy decisions relating to the enforcement of intellectual property rights (IPRs) were handed down, including in relation to anti-counterfeiting, parallel trade, litigation aspects and restrictions on the enforcement of IPRs. The decisions of the Court of Justice of the European Union and Supreme Courts and Courts of Appeals of the European Union Member States that the authors consider important are summarized in this contribution. The judgments were rendered between 1 January 2023 and 31 December 2023. As in previous editions, the authors have adopted a practical approach aimed at readers seeking an overview of the key IPR enforcement decisions of 2023.

Design of an Enhanced Dynamic Regulation Controller Considering the State of Charge of Battery Energy Storage Systems

In recent years, the escalating electricity demand in Taiwan has heightened the prominence and discourse surrounding the issue of power supply. With the enactment of the European climate law, global commitment to achieving net-zero emissions has gained momentum. Concurrently, the Taiwanese government has articulated the Taiwan 2050 net-zero emissions policy. To realize this objective, Taiwan has vigorously promoted renewable energy in recent years, increasing the proportion of renewable energy in its energy mix. However, confronted with the intermittent and unpredictable nature of renewable energy generation, challenges arise concerning the stability and quality of power supply. In response to the impact of integrating renewable energy into the grid, the Taiwan Power Company (Taipower) has introduced the day-ahead ancillary service market. Through this platform, power generation and battery energy storage systems (BESSs) engage in competitive bidding, fostering the integration of diverse distributed energy resources into the system. These resources serve as dispatchable assets for Taipower, contributing to grid stability by providing ancillary services. This study has developed an advanced dynamic regulation reserve controller by employing an industrial PC (IPC) in conjunction with a multifunctional power meter. Through real-time measurement of the power grid frequency by the multifunctional power meter, a sophisticated dynamic frequency reserve control strategy has been devised, taking into account the charging state of energy storage systems. This strategy exhibits high operational quality, effectively regulating the charging and discharging of energy storage systems. In addition to swiftly adjusting the current grid frequency, it encompasses the capability to facilitate the transfer of peak electrical energy. This effectively stabilizes the power grid, alleviating supply pressures during nighttime peaks and enhancing the overall supply stability of the power system.

Forensic Hypoglycaemia & Neuroglycopenia — A Clinical Legal Social Endocrinology Challenge for 2024, Forensic Law in Hypoglycaemia 4

Forensic Hypoglycaemia & Neuroglycopenia — A Clinical Legal Social Endocrinology Challenge for 2024, Forensic Law in Hypoglycaemia 4

Vizantijskij tranzit yuridicheskoj iudaiki v otechestvennoe ugolovnoe pravo

he purpose of this work is to study the historical and legal phenomena of penetration into the legal space of Russia provisions of Hebrew law in the process of global reception of Christianized law of the Eastern Roman Empire in the 11th 17th centuries. Judaica not only influenced the formation of domestic legal acts (in the aspects of legal goal-setting, the specifics of legal technology, etc.) the provisions of the Law of Moses were included as an autonomous segment in systematized domestic codes and were subject to direct application by state authorities of Russia. Understanding the true historical roots of the formation of domestic law forms the foundation for its development currently and release the reform of Russian criminal law from artificially imposed dependence on the trends in the development of European public law.

Recent developments in European Corporate Taxation Law

Recent developments in European Corporate Taxation Law

ALLEGIANCE BLINDNESS, EXTRA-TERRITORIAL EXUBERANCE, AND SECURITY AMBIVALENCE: A CRITICAL ANALYSIS OF THE RULING OF THE EUROPEAN COURT OF JUSTICE ON PRODUCTS ORIGINATING FROM WESTERN SAHARA

Background: The European Court of Justice recently annulled Council Decision (EU) No. 2019/217, which had authorised the conclusion of an agreement—in the form of an exchange of letters—between the European Union and the Kingdom of Morocco. This agreement initially extended coverage of preferential trade treatment between the two parties to products originating in Western Sahara and subject to the control of Moroccan customs authorities. The ECJ’s ruling has removed those trade preferences and imposed a de facto EU embargo on the region. This article critically discusses the ECJ’s ruling on both legal and policy grounds. From a legal standpoint, the ECJ’s decision foregoes consideration of notions of sovereignty applicable to Western Sahara in virtue of Islamic law, which would have led to recognition of its enduring ‘allegiance’ to Morocco. Moreover, the same decision amounts to an instance of extra-territorial application of EU law and infringes the principle of indivisibility of agreements. From a policy standpoint, by acknowledging standing in virtue of mere non-State armed military presence, the ECJ’s ruling has offered to terrorist groups and rebel militias— in a context of profound instability in the Sahel region—a blackmail strategy vis-à-vis regional governments. Methods: This critical review uses the descriptive approach to outline, analyse, interpret, and criticise the 2021 ECJ ruling, which denies preferential trade treatment to products from the Western Sahara region, even when under the control of Moroccan customs authorities, while Moroccan products continue to receive such treatment. Results and Conclusions: The European Court of Justice partially used the concepts of international law as it paid no regard to the concept of sovereignty in the Islamic world, which is connected to tribe, allegiance and loyalty. Further, extending the application of the European Law to a third state, which has several agreements with the European Union, must be devoid of any political dimension affected by regional conflicts and international balances. The enforcement of the referred ruling is tantamount to the economic embargo on the Western Sahara Region, which will inevitably affect the security situation thereof and thus bring it closer to the influence of terrorist groups.

Article: Anti-Avoidance Jurisprudence in Direct Taxation: The CJEU Between Politics and Certainty

Over a span of several years, the Court of Justice of the European Union (CJEU) developed a framework for anti-abuse in the context of European law and particularly established criteria for justifying restrictions on the fundamental freedoms in the tax context. In tax cases on anti-avoidance that are more recent, however, the court has demonstrated a notable change in its stance towards this issue that represents a disruption in the consistent development of its jurisprudence on abuse. While the court covers the contradictions in its case law by passing an impression of continuity between disparate decisions, it is remarkable how recent rulings draw from Organisation for Economic Co-operation and Development (OECD) language. This reliance on concepts from a non-EU institution, however, leads to legitimacy concerns. The increasing importance of international organizations and public opinion – for example, in reaction to the Panama Papers – in shaping the international tax landscape is undeniable. While high-profile projects like Base Erosion and Profit Shifting (BEPS) and Global Anti-Base Erosion (GloBE) highlight international tax issues, they also exert political pressure on judicial bodies such as the CJEU which leads to less methodological decisions that will align the court with political interests. In this context, the CJEU’s acting as a political player at the borderline of its competences is to be viewed critically, especially regarding the recent shift in its case law on abuse and tax avoidance that leads to concerns over legal certainty. Anti-abuse principle, anti-avoidance jurisprudence, CJEU, international organizations, international taxation, legal certainty, legitimacy, political influence

Just Title as Justification for Acquisitive Prescription: Global Discussion and Roman Legal Roots

There are statements in contemporary legal discussion that undermine the legitimacy of maintaining the institution of usucaption in specific legal orders. It is uncertain if there is any justification for acquisitive prescription at all. European law experience is also familiar with this discussion. The institution of usucaption is not a uniform concept – there are many variants in different countries. Are we really talking about one institution or different ones, depending on the existence of one prerequisite or another? One of the prerequisites for acquisitive prescription, not present in every legal system, is interesting - the prerequisite of ‘just cause of usucapion’. Polish law does not require such a prerequisite, for instance. The basic and unquestionable requirement of usucaption in the classical legal development of this institution, in Roman Law, is unquestionable. The first statements of such jurists as Trebatius, Sabinus and Cassius show us the first conceptualization of acquisitive prescription, in which the just cause of usucaption prerequisite is immediately present and affects the nature of this legal institution - without it, these jurists did not see the possibility of acquiring things by usucapio.