European Legal Framework Research Articles

ПРОБЛЕМЫ ИМПЛЕМЕНТАЦИИ КОНВЕНЦИИ О ПРАВАХ ЧЕЛОВЕКА

The article is devoted to the problems of implementation into the domestic law of the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECPHRFF) and Convention-based decisions of the European Court of Human Rights (ECHR). The author notes that the complexity of the ECPHRFF provisions’ implementation process is caused by the lack of efficient legal remedies at the national level. Among the reasons for failure to execute or for the delay in execution of the ECPHRFF requirements and ECHR decisions, there are lack of coordination of actions between different government agencies and differences in approaches to ECPHRFF interpretation, political contradictions. The article justifies an important role of the Constitutional Court of the Russian Federation in improving the Russian legislation and lawenforcement by means of implementation of the ECPHRFF provisions and ECHR case law. The author underlines that the Constitutional Court of the Russian Federation activity is aimed at resolving two tasks: harmonization of the Russian legal system with the European legal framework and protection of own constitutional identity. The author considers the problem of “judicial activism” in the ECHR activity, that is aimed at extended interpretation of the ECPHRFF articles. The author pays special attention to the issue of application by the ECHR of the European consensus methodology which it used to determine the discretion of states in safeguarding conventional rights. At the same time the author points to the inconsistency of this concept in regard to the ECPHRFF basic principles. The author justifies the Constitutional Court of the Russian Federation position, in accordance with which ECPHRFF and the ECPHRFF-based decisions of ECHR do not override the priority of the Russian Constitution for national constitutional courts and the Russian legal system in those cases when the Russian Constitution is capable to ensure better protection of human and civil rights and freedoms. The author draws the conclusion that cooperation of the European and Russian legal orders is not possible in the context of subordination; it is necessary to establish a dialogue between the legal systems which is a guarantee of the all-European law development.

ИСТОРИЯ РАЗВИТИЯ УГОЛОВНОГО ЗАКОНОДАТЕЛЬСТВА СЛОВАКИИ

The subject of this research is criminal legislation of the Slovak Republic since the merge of Slovakia in the AustroHungarian Empire (XIX century) to the present day. The article analyzes the emergency criminal legislation of the World War II period, the socialist Criminal Codes of the Czechoslovak Republic (1950, 1961) and the existing Criminal Code of the Slovak Republic of 2005. The article also touches upon the country’s constitutional development on the example of the adopted Constitutions of the Czechoslovak Socialist Republic (1948, 1960) and the Constitution of the Slovak Republic (1992). The author pays special attention to the integration of Slovakia into the European legal framework when it became a member of the European Union in 2004. The article also contains comparative analysis of the main institutions of the criminal law in Russia and Slovakia. During the research the author used the following special methods: historical, logical, and comparative law method, which includes a variety of techniques (doctrinal, regulatory, functional comparison). As opposed to the criminal law of other European Union countries, the Slovak criminal law has remained practically unexplored by the Russian criminal law doctrine. But it is very unique because it comprises the combination of Austrian, German and Russian criminal law ideas which is conditioned by historical peculiarities of this state’s development. On the example of Slovakia, the author demonstrates possibility of combining the national legal legacy and directives of the European Union.

An Evolution of COMI in the European Insolvency Regulation: From Insolvenzimperialismuss to the Recast

The Centre of Main Interests (COMI) is one of the most relevant concepts in the international insolvency scene. It is used as the main criterion to assign jurisdiction in cross border insolvency cases in the vast majority of the European countries, the United States and every state that has incorporated UNCITRAL's Model Law on Cross Border Insolvency (since the recent adoption by Kenya, 41 states across the globe). The concept, as such, was for the first time introduced in a normative text in Europe. This paper analyses the evolution of the concept in the context of the European legal framework. First, its origins are traced with a view to identifying the reasons for its creation and the main policies behind its adoption. Then a general description of the interpretation of COMI in the most important judicial cases is provided. And finally the current state of things, with the recent recast of the European Insolvency Regulation, is assessed. It will be here argued that, despite its faltering inception, the evolution of the COMI has turned it into an adequate criterion to determine jurisdiction in cross border insolvency cases, and that, looking forward, an interpretation that is respectful with the economic rationale of the concept may help ensure that only positive forum shopping takes place between EU countries.

The Integration of Mediation Within Justice System: An Assessment from the Brazilian and European Legal Frameworks

Lately Europe and Brazil have been suffering from the systemic inefficiency of their Courts, with a significant impact on the guarantee of access to justice for their citizens, making the alternative dispute resolution a constant presence in both civil law and common law systems of jurisdiction. The upshot has been the institutionalization of ADRs, taking the form as a routine presence at codes of civil procedure, while its practice is introduced into the courts. However, both institutionalization and the obligation to take part in mediation programs before or after starting the suit are exceptional measures, which must be adopted with caution. This article will examine the institutionalization of mediation in the European Union with its Directive as well as the required adjustments intended to deliver a court-connected mediation along a procedural justice enhanced by the Brazilian Civil Procedure Code sanctioned on 16th March 2015 and enforced as from 17th march 2016 with regard to mediation and the Mediation Act n. 13.140 sanctioned on 26th June 2015, enforced as from 27th December 2015, analyzing the adjustments that should be held to incorporate mediation process within a procedural justice paradigm.

Technical Standards and the Draft General Data Protection Regulation

This chapter explores the complex relation between data protection and technical standards from a legal perspective. It first describes the relationship between the technical standards and the European data protection legal framework. The chapter also reflects on the development of privacy standards in complex technological environments, such as cloud computing and radio-frequency identification (RFID) applications. It finally examines the role of technical standards in the GDPR and analyses the specific provisions of the GDPR that relate to standardisation.

After thalidomide - do we have the right balance between public health and intellectual property.

The current European regulatory and consumer protection legal framework is the legacy of Thalidomide. The disaster led to the introduction of systematic biological and clinical data to endorse the safety and efficacy of new medicines. The European Medicines Directive outlined the pre-clinical, clinical data and product information to evaluate an appropriate benefit. Risk profile of new medicines and also allowed innovative companies to extend patent protection and data/marketing exclusivity periods to compensate for the cost for research and development. However in recent years it has become apparent that the costs and time for research and development are becoming increasingly burdensome, particularly for new drugs with recently discovered mechanisms of action for cancers and neurodegenerative disorders. The costs of development and the commercial uncertainty of such products is reducing commercialisation of these medicines. There is now considerable debate in the regulatory community as to how this regulatory burden may be eased by making earlier review of benefit risk and hence earlier access to authorised medicines. The Courts are moving away from the wide definition of medicinal product to a more nuanced view of the biological and clinical therapeutic mechanisms to satisfy the 'functional' limb definition in the Directive. This may be a move away from the rigorous scientific methodology generated after thalidomide. We discuss the ethical and public health implications of this shift in policy and the implications for intellectual property mechanisms currently available to protect the commercial needs of companies.

Access to Justice for Children, An Evolving Concept

Nowadays, the access to justice for children has gained widely importance and has been addressed at the international as well as the domestic level. In the last decades this concept is further developed which led to considerable modifications and further revision of international and European legal framework and thus directly affecting the domestic legal systems and policies in place. Access to justice for children is affected by social and cultural practices that should aim to enable children to seek justice without fearing of any kind of discrimination, discriminatory practices and stigmatization. What is worth mentioning is the approach that combines the need to always guarantee the rights of the child in relation to information, participation and representation in administrative and judicial proceedings, recognizing these rights in all stages of the proceedings, considering that the private life, interests, special needs, individual dignity of the child must be respected, protected and further promoted. Part of this approach are also the legal and institutional reforms within the justice system and institutional organizations of professionals and services in a number of countries, including Albania. It is not enough to have laws and adopt a legal framework that formally outline and prescribe children’s rights and that tries to address their needs. These ought to be accompanied by applicable effective interventions and mechanisms that allow all children to gain the awareness and resources required to access the justice system, with no discrimination or prejudices. DOI: 10.5901/mjss.2015.v6n3p103

The European Legislative Framework for Audit Committees

This first analysis of the new European legal framework of audit committees of public-interest entities shows that the role and importance of this committee is considered to be pivotal. The requirements to monitor the work and independence of the auditor should not be underestimated. There are some doubts, however, whether all the new measures are all equally advantageous for reaching the goal of an effective statutory audit.

EPIGENÉTICA: NUEVOS DESAFÍOS PARA LOS DERECHOS FUNDAMENTALES

Based on the work done to date by the R+D project DER 2010-14896, this article seeks to identify the new challenges posed by epigenetic for fundamental rights at international, European and national order. Epigenetics refers to the possible alterations in the expression of genes of an individual by various environmental conditions (epimutations). These are reversible and thanks to new technologies for data processing, predictable. This opens the door to better treat many diseases but it also carries risks on some fundamental rights (right to privacy and genetic determination, the right to non-discrimination) because heritable epigenetic changes in the structure and organization of DNA affect information concerning not only to a specific individual but also to others (family, community or group associated with environmental conditions that cause a certain epimutation). International law on the issue is almost nonexistent. At European level, apart from a few Recommendations of the Council of Europe, the Directive 95/46/EC and the draft EP and the Council Regulation on the protection of personal data, still in process, do not give an adequate response to these challenges. That inadequate European regulation is particularly problematic considering threats to fundamental rights in the field of private law relations (labor relations, insurance contracts of life and health) due to advances in computer processing of information in large epigenetic databases. The proposed research should be conducted, from an international and comparative approach to Law, combining an empirical-inductive method with another logical-deductive, and articulated through various methodological techniques. The general objective pursuid is to provide a legal basis from a multidisciplinary, cross-cutting and integrated approach that allows establish a common legal framework in Europe facing the new challenges posed by epigenetic to protection of fundamental rights.

Droit des biotechnologies (janvier 2014-avril 2015)

Biotechnology Law (january 2014-april 2015). The year 2013 was characterized by repetitions on GMO authorisation procedure. The year 2014 was clearly different. A major legal transformation was added to repetitions. This year, there is indeed a review of the European legal framework and a new possibility of Member States to restrict or ban GMO cultivation which is logically raised many questions.

The Swedish duty hour enigma

BackgroundThe Swedish resident duty hour limit is regulated by Swedish and European legal frameworks. With a maximum average of 40 working hours per week, the Swedish duty hour regulation is one of the most restrictive in the world. At the same time, the effects of resident duty hour limits have been neither debated nor researched in the Swedish context. As a result, little is known about the Swedish conceptual framework for resident duty hours, their restriction, or their outcomes: we call this “the Swedish duty hour enigma.” This situation poses a further question: How do Swedish residents themselves construct a conceptual framework for duty hour restrictions?MethodsA case study was conducted at Karolinska University Hospital, Stockholm – an urban, research-intensive hospital setting. Semi-structured interviews were carried out with 34 residents currently in training in 6 specialties. The empirical data analysis relied on theoretical propositions and was conducted thematically using a pattern-matching technique. The interview guide was based on four main topics: the perceived effect of duty hour restrictions on (1) patient care, (2) resident education, (3) resident well-being, and (4) research.ResultsThe residents did not perceive the volume of duty hours to be the main determinant of success or failure in the four contextual domains of patient care, resident education, resident well-being, and research. Instead, they emphasized resident well-being and a desire for flexibility.ConclusionsAccording to Swedish residents’ conceptual framework on duty hours, the amount of time spent on duty is not a proxy for the quality of resident training. Instead, flexibility, organization, and scheduling of duty hours are considered to be the factors that have the greatest influence on resident well-being, quality of learning, and opportunities to attain the competence needed for independent practice.

The Dublin System of Refugee Admission: A Law and Economics Analysis

The Dublin system of refugee admission is a European legal framework designed to address the problem of refugees in Europe by allocating responsibility [of examining asylum applications] to Member States. It is intended to facilitate the asylum application process of third country nationals coming to Europe by, inter alia, ensuring effective and accessible asylum procedures, maintaining family unity, guaranteeing the full respect for the principle of non-refoulement and by preventing potential 'forum shopping' by asylum seekers. For this, it consists of hierarchy of objective criteria on which the responsibility of the Member States is determined. Following such criteria, once a Member State found that another Member State is responsible to evaluate the asylum application of a particular asylum seeker, it can request the latter State to take charge of the claim. Upon acceptance of such request, it can also transfer the asylum seeker to the responsible Member State. This paper questions the efficiency of this System by examining it both from theoretical and practical scenarios. Accordingly, by modeling the various universal refugee Conventions and those EU agreements establishing the Dublin System as 'contracts with the object of providing a public good of international protection to refugees' and using the 'Cost-Incentive-Risk Sharing' Analysis, it contends that the Dublin framework is inherently flawed and inefficient system for it not only entails high transaction costs but also gives no /low/ incentive for States to discharge their contractual obligations. Besides, despite the solidarity and shared responsibility that it seeks to promote, the System lacks proper burden sharing mechanism among the various Member States that consequently made some handful States to bear the larger burden than others.

European Insolvency Law: Development, Harmonisation, Application and Reform

This article overall explores the legislative changes in corporate insolvency law that occurred over the past number of years, especially in relation to the concept of corporate rescue. Specifically, this paper tackles the theoretical and practical issues of the current corporate rescue laws at European level. The key objective is to consider the implications of the variations that can be found in the different Member States for the harmonisation of insolvency laws movement happening at Community level. The article evaluates the adequacy of the existing rules at European levels and analyses the current changes occurring within the Community. It especially looks at the European insolvency legal framework, notably the 2000 European Insolvency Regulation and the scope of the reform currently occurring at European level. This paper will show the difficulty, albeit the necessity of reform in the field of cross-border insolvencies in the European Union. It will be seen that because the EU legislative process is based on negotiations between states, the EU legislator was not apt to decide on substantive insolvency rules.

Enforcing Copyright Online: Internet Service Provider Obligations and the European Charter of Fundamental Rights

This article considers whether an internet service provider can rely on Art.16 of the European Charter of Fundamental Rights (Charter) in curbing its obligations under the European legal framework as to copyright enforcement. It will consider recent, contradictory case law from the Member States and argue that the Charter plays a limited role for ISPs in this context.

Trends in european bioenergy law problems, perspectives and risks

Research into new forms of energy is a current challenge. This paper aims to inquire into the real advantages of bioenergy and its sustainable development within the European legal framework, while also considering the negative aspects of bioenergy use. The European Union, in fact, is an important supporter of bioenergy and shows that, through good legislative policy, the negative aspects of bioenergy use can be surmounted . In conclusion, bioenergy and sustainable development can still be a plausible solution to feed the planet.

DOCTRINAL BASICS OF THE LEGAL TECHNIQUE: COMPARATIVE ANALYSIS WITHIN THE EUROPEAN LEGAL FRAMEWORK

The legal technique was initially developed as a kind of “interpreter” for the legislative will in the legal language using a specific ingenuity of legal engineering. Historically, the theoretical base of the legal technique was formed on a phased basis, essentially stimulated by state reforms, social transformations, and active legislation systematization. It should be mentioned here that legal technique is a distinctive category reflecting the political, economic, and legal situation in the historical period of a certain state development, but being extra-national in itself.The resource harmonization of the legal technique within the European legal framework means norm-setting regulations, coordination, and elaboration of common recommendations for the European countries. The cooperation in the legal technique standards harmonization will require the all-European cooperation to the new level as far as legal standards, human rights, democratic development, legitimacy and cultural cooperation are concerned.

In this Issue

In this Issue

Challenges facing teleradiology services across borders in the European union: A qualitative study

RationaleThis paper aims to identify factors that support or impede the introduction and expansion of teleradiology across borders in the European Union (EU), focusing on both those factors acting within countries and those that are specifically cross-border as well as discussing how the current EU legislation impacts on the provision of this type of services. MethodsA qualitative study was developed to explore the issues that arise when implementing teleradiology services across European borders. A total of 12 semi-structured interviews with key actors were conducted, recorded and fully transcribed. These were analysed using thematic analysis. ResultsThe factors supporting provision of new services in teleradiology were increasing demand for reading images in countries with few radiologists; long waiting lists for MRI reading; and new demand for second and sub-specialized reading of images. The obstacles to the introduction and expansion of teleradiology services included uncertainty about liability in case of malpractice, registration of health care professionals, data security, non-standard contracts and quality reporting systems; and health care system and cultural differences. Radiologists identified as positive experiences the chance to learn and improve their skills in a shorter period of time, having flexibility, and sharing knowledge in a network environment. The most frequently reported negative aspect was the inability to interact with referring clinicians. Language barriers were not identified as a constraint. When asked about policy implications and potential recommendations, participants proposed the introduction of EU wide policies on radiologists׳ credentials; greater clarity within the EU on data access and sharing; and minimum quality requirements for teleradiology providers. ConclusionTeleradiology services face several challenges; most can be overcome if those engaging in this type of collaborations are eager to make it a success. However, it would be beneficial to have a transparent European legal framework that clarifies issues related to the registration and licensing of healthcare professionals; clarifies arrangements for data sharing and protection; and specifies liability and means of access to redress. Once this legal framework is in place it should be communicated to regulators, health care professionals and patients in a clear way so that it cannot be undermined or ignored and it truly promotes services of good quality which are beneficial to European citizens.

The European Parliament proposal for the new EU General Data Protection Regulation may severely restrict European epidemiological research.

In January 2012, the European Commission presented the draft of a new General Data Protection Regulation (GDPR) to the European Parliament and the Council of the European Union. The GDPR is planned to replace the 1995 Directive 95/46/EC, which constitutes the present European legal framework for processing of personal data. Hence, this new binding Regulation will lay the legal foundation for future European epidemiology based on personal data, including register-based research. The intentions behind the new GDPR are commendable: [1] to protect the fundamental rights and freedoms of individuals, in particular their right to protection of personal data, in a society where commercial enterprises and authorities have rapidly increasing capabilities to collect, store and combine personal information; and [2] to facilitate free movement of personal data within the European Union through a uniform legislation in all member states. The Commission’s proposal is being reviewed and amended independently by the Council of the European Union and the European Parliament. In the Parliament, the Committee on Civil Liberties, Justice and Home Affairs (LIBE) was assigned the task of formulating the Parliament’s amendments. The first draft by the chairman of the Committee, Jan Philipp Albrecht, was criticized for insufficient consideration to the needs of epidemiological research. The proposed text threatened to restrict currently existing possibilities to produce scientific evidence based on European data analysis and, in turn, to impede efforts to improve public health and welfare in the union and elsewhere. In October 2013, after a long period of negotiations surrounded by intense lobbying efforts, the LIBE Committee voted on its final amendments to the Commission’s proposal [1]. Alas, although some improvements were noted, the overall outcome was largely disappointing from an epidemiological perspective. The main points are summarized in the following. The first Articles with specific relevance for scientific research are concerned with general principles (Article 5) and lawfulness (Article 6) of personal data processing. Article 5b lays down that personal data shall be collected for specified, explicit and legitimate purposes and may not be further processed in a way incompatible with those purposes (“purpose limitation”). This corresponds to an identical principle in the current 95/46/EC Directive. However, in Directive 95/46/EC there was an exemption for research, namely that further processing of data for historical, statistical or scientific purposes is not to be considered as incompatible with the original purpose as long as Member States provide appropriate safeguards. This exemption was omitted in LIBE’s amendments, dramatically reducing the scope for data sharing between research groups and severely restraining the use of retrospective (historic) cohort study designs. Such studies utilize old data collections with exposure information that was collected for other purposes than the current scientific research. Thus, hundreds of thousands person-years of follow-up may have accumulated already at the start of the retrospective cohort study, making it possible to immediately test important public health hypotheses that would otherwise take decades to address. A typical example is the study of long-term health effects of Swedish snus (snuff) in an already existing cohort of construction workers [2]. If taken literally, the omission of the exemption threatens to eliminate the possibility to use administrative registers for epidemiological research altogether.

The case of the electronic cigarette in the EU.

Although the electronic cigarette was invented in 2004, only recently the product has started to provoke discussion. On the one hand, the electronic cigarette is characterized by scientific uncertainties. It is not clear whether the device can be used in smoking cessation therapy, whether the use induces non-smokers--including minors--to start smoking and whether the vaporized substances and the act of vaporizing itself (which is smoking an electronic cigarette) is harmful. On the other hand, there is no harmonised European legal framework and different Member States attribute a different legal status to the e-cigarette. In this article, the author analyses how the e-cigarette should be qualified according to the current European legislation and ECJ case law and describes how the e-cigarette is qualified in the UK, France, The Netherlands, Belgium and Spain.