European Legal Systems Research Articles

The Reluctance of Civil Law Systems in Adopting the UCC Article 9 'Without Breach of Peace' StandarddEvidence from National and International Legal Instruments Governing Secured Transactions

One of the defining features of the Uniform Commercial Code Article 9 is the secured creditor’s ability to take possession of the collateral upon the debtor’s default “without breach of peace.” This standard is meant to protect the debtor from abusive secured creditors, the meaning of which has been shaped by courts on a case-by-case basis. In reforming their secured transactions laws to enhance access to credit, continental legal systems have shown great reception to Article 9 by adopting the unitary concept and functional approach to security interests, introducing private enforcement mechanisms, including various forms of self-help repossession. However, the “without breach of peace” standard seems to be rejected by most national laws and international legal instruments acceded to by civil law countries, to accommodate the supposedly alien idea of self-help repossession with civil law tradition. Based on comparative analysis of secured transactions laws of the US, the UK, Romania, and Hungary (representing national laws), and the Cape Town Convention on International Interests in Mobile Equipment along with the Aircraft Protocol and the Draft Common Frame of Reference (representing international legal instruments), this article demonstrates that continental European legal systems are generally apprehensive with the “without breach of peace” standard. Thus, they are reluctant to transplant it to their legislation and try to either modify it or replace it with different legal requirements. This article concludes that the alternatives of the “without breach of peace” standard prevailing in continental legal systems undermine the privilege of the secured creditor, pose enforcement problems (such as uncertainty of creditors’ rights and possible abuses against consumer-debtors), and restrain out-of-court enforcement.

Libertad de expresión y religión en la cultura liberal de la moralidad cristiana al miedo postsecular

This paper explores a common issue in the modern and pluralistic democratic societies: could the protection of religious feelings serves as a basis for establishing limits on freedom of expression? To do this, first, we will explore the constitutional paradigm of the United States, where since the early fifties the Supreme Court has affirmed the constitutional protection under the First Amendment to those discourses that may be offensive to certain religious communities. Subsequently, we will analyze through comparative law, how the religion's legal tutelage survives in the European legal systems, and how it has been gradually changed in its arguments with the secularization of the state. Subsequently, we will try to explain how in the postmodern societies the new blasphemous is now an insider of the political community while the new religious communities are the demanders of protection of their dogmas and symbols. Finally, this paper will attempt to show how the protection of beliefs or religious beliefs against certain offensive speech is incompatible with the basic assumptions of liberal culture. To this end, we will differentiate between hate speeches directed to certain individuals because of their religious affiliation, and other kind of discourse that only critics or affects religious beliefs or religious ideas which in any case could be excluded from the protection of freedom of expression.

Remedies for Damage Caused by Vaccines: A Comparative Study of Four European Legal Systems

Abstract: Compensation for damage caused to patients by vaccination is an increasingly prominent issue given the important public health consideration of ensuring the highest possible take-up of vaccination. This study explores the approach to vaccine damage cases in four different European countries (France, Germany, Italy and the UK), examining the variety of different mechanisms for providing redress, including specific compensation funds, social security systems, the operation of orthodox regimes of tort law and product liability, as well as in certain jurisdictions bespoke legislation for healthcare products or pharmaceuticals. The authors then go on to examine the recent case law on this topic at a Member State and European level, focussing particularly on issues relating to the notion of defect and that of causation in vaccine damage cases. Zusammenfassung: Der Ersatz von Impfschäden gewinnt angesichts des Bestrebens, zur Sicherung der Volksgesundheit eine möglichst hohe Impfdichte zu erreichen, ständig an Bedeutung. Diese Studie untersucht die Herangehensweise an Impfschäden in vier EU-Mitgliedstaaten (Deutschland, Frankreich, Großbritannien und Italien), indem sie die verschiedenen Mechanismen, den Geschädigten Ersatz zu verschaffen, analysiert, darunter spezielle Entschädigungsfonds, sozialrechtliche Instrumente, klassisches Delikts- und Produkthaftungsrecht und schließlich sektorspezifische Gesetzgebung. Zudem erörtern die Autoren die jüngste Rechtsprechung auf mitgliedstaatlicher wie auf EU-Ebene, unter besonderer Berücksichtigung des Fehlerbegriffs und der Kausalität in Impfschadensfällen. Résumé: La réparation des dommages causés par les vaccins est une question majeure, compte tenu notamment de l’objectif de santé publique visant à obtenir une couverture vaccinale aussi large que possible de la population. Cette étude s’intéresse à la manière dont sont appréhendés les dommages imputés aux vaccins dans quatre pays européens (l’Allemagne, la France, la Grande-Bretagne et l’Italie) et envisage différents mécanismes d’indemnisation, en particulier les fonds d’indemnisation, la sécurité sociale, les règles de droit commun de la responsabilité civile ainsi que les règles spéciales applicables aux produits de santé et aux médicaments dans certains pays. Les auteurs se penchent également sur la jurisprudence en la matière, au niveau national et européen, s’intéressant particulièrement à la notion de défaut et à la caractérisation du lien de causalité dans les affaires relatives aux dommages attribués aux vaccins.

GDPR – A Y2K-II for Business?

GDPR is not an easy read, so most do not read it. They might read about it, but don’t read the Regulation itself; remaining unacquainted with what it actually says. Such unfamiliarity can affect the approach businesses take to data protection negatively. This article aims to provide a method and a process of making GDPR digestible and workable. A historical background and a generic explanation of the European legal system are provided to set the context in which the regulation exists. A simple method of getting a grasp on GDPR by using mind maps follows this contextual setting. A case is made for using mind maps highlighting the need to empower the mind to consolidate the immediacy of perception and to store information effectively in long term memory. The process of creating action items from the sense making described enables the reader to have a better understanding of the structure and the intent of the regulation. The key benefits of the method and the process conclude the article.

Taking Aesthetics Seriously in Planning Law: Seeking Inspiration for Flanders in France, the Netherlands and the uk

The aesthetics of the built environment in Flanders (Belgium) often faces heavy criticism. What role, if any, can planning law play in promoting beauty? An increasing number of studies claim that the appearance of buildings influences our psychological wellbeing. Yet, government intervention via aesthetic regulation remains controversial. This article looks at Flemish planning law and analyzes the position that aesthetics occupy as a material consideration. It compares Flanders to France, the Netherlands and the uk to see if the region is doing worse or better in recognizing the role of aesthetics in the system of development control. It then looks at some particular challenges that aesthetic regulation in Flanders faces and assesses possible remedies, again looking for inspiration in these other European legal systems.

До питання про підвищення ролі та активності громадських об’єднань у законотворчому процесі

У статті надається порівняльний аналіз законодавчого регулювання діяльності громадських об’єднань та їх ролі і значення в удосконаленні законотворчого процесу в європейській та національній правових системах.

Bulgarian Financial Law and the European Legal and Financial System

Financial Law Review » Issue 12 (4)/ 2017 » Bulgarian Financial Law and the European Legal and Financial System A A A

УСЛОЖНЕНИЕ СУБЪЕКТНОГО СОСТАВА ЧАСТНЫХ ПРАВООТНОШЕНИЙ КАК НЕОБХОДИМОЕ УСЛОВИЕ ПОВЫШЕНИЯ ИНВЕСТИЦИОННОЙ ПРИВЛЕКАТЕЛЬНОСТИ РОССИЙСКОЙ ПРАВОВОЙ СИСТЕМЫ: НА ПРИМЕРЕ ПРАВОВОГО РЕГУЛИРОВАНИЯ КОНЦЕРНОВ

the article is devoted to the problem of legal regulation of concerns as participants in civil relations characterized by a complex legal status. The article notes that "the law of concerns" has received the most careful development in German corporate law within the framework of jointstock legislation and today it is rightfully recognized as a standard for other European legal systems, most of which pay attention to the "law of concerns" only fragmentally. As a result, the author comes to the conclusion that in the Russian corporate legislation there is an obvious need to create a harmonious interdisciplinary block of norms, specially dedicated to concerns and their legal status, which is actual in the conditions of the actual existence of concerns.

Private Antitrust Enforcement Without Punitive Damages: A Half-Baked Reform?

Directive 2014/104/EU on private antitrust enforcement opted for the exclusion of punitive damages from the category of recoverable damages following a violation of antitrust law. This article will outline the concept of punitive damages and analyse the relevant case-law of the courts of the Member States, of the ECtHR and of the ECJ. Then, it will examine the regime laid down in the Directive and consider the possible reasons why the European legislator opted for this exclusion. Thus, the opportunity to introduce such a provision into the European legal system will be evaluated, taking into consideration the problem of overdeterrence, the problem of the division of functions between public and private enforcement, and enforcement of intellectual property rights. Finally, a possible modification of Article 3(3) of the Directive will be suggested, in the framework of the review that the Commission is required to undertake by December 27, 2020

Tajno zaveštanje u pojedinim savremenim Evropskim pravnim sistemima

The paper analyzes a secret (mystic or closed) will, as one of the forms of the last will and testament regulated in some contemporary European legal systems. The analysis is based on the normative framework and theoretical disputes about the legal nature of the secret will in the laws of France, Germany, Italy and Russia. The author highlights the differences between these legal systems in terms of the legal conditions for making a valid secret will. Particular attention has been given to the advantages and disadvantages of a secret will. In the conclusion, the author argues for adequate regulation of the secret will in the national succession legislation.

Algunos problemas jurídicos relativos al caso de los atentados del 11 de marzo de 2004 en Madrid

<p>This article intends to analyse some of the legal problems that led to the acquittal of <em>Rabei Osman El Sayed Ahmed, </em>alias <em>Mohamed El Egipcio, </em>charged with the crime of belonging to and/or being a member of a terrorist organisation and an abettor of the attacks in Madrid on the 11th of March. Via the examination of his acquittal we will highlight, on the one hand the way the complicated structure of the network of a Jihadist terrorist group can hinder the reconstruction of facts as well as the pinpointing of those who physically carried out the criminal attacks and/or the «mastermind» behind them within the framework of these kinds of organisations. On the other hand we will underline the urgent need for addressing some of the loopholes detected in the national as well as European legal systems in order to ensure the effective <em>punishability </em>of the culprits of terrorist crimes, and in particular those of a Jihadist nature.</p><p><strong>Published online</strong>: 11 December 2017</p>

Land Register Entry as the Condition for Real Estate Transactions and Investments

Abstract This article deals mostly with land registers. It demonstrates clearly what is the significance of this legal element in continental European legal systems especially those who follow Germanic legal tradition (like Croatia). As such, land registers provide legal certainty and transparency which are highly desired and valued among potential business investors. Therefore, we may rightly award it with cornerstone status within the law of real property.

Non-statutory Rulemaking and the Rule of Law: towards a ‘Law of Rules’?

In various European legal systems, autonomous public bodies and private actors are increasingly invested with rulemaking powers. The phenomenon is usually assessed through the looking glass of the democracy principle, because these actors have a weaker electoral connection to the People than other (non-statutory) rule makers such as e.g. the Government and its ministers. What is still largely missing from legal scholarship is an analysis of how the rule of law, and more specifically legal certainty, is safeguarded when private actors and autonomous public bodies receive rulemaking powers. This contribution reveals that the rules and practices applied by these actors sometimes lead to higher degrees of legal certainty than those in place for central administrations. Hence, these ‘non-politically-accountable actors’ offer inspiration for the development of an overarching Law of Rules that can further the Rule of Law for all non-statutory rulemaking.

A Critical Assessment of the Relation of Information Freedom and the Protection of Personal Data in Today's EU Law

This contribution to the debate on the modern regulatory framework for collection and transfer of personal data in networks and data basis addresses questions of necessary changes in the European legal system and its driving forces arises from my presentation at the Institut Grand Ducale in Luxembourg on March 14, 2017. The development of a broad legal framework regarding information rights, requires orientation with some basic guiding principles. Importantly in that context, law of information is not only about privacy and secrecy but also about transparency, openness and democratic government. This paper discusses and evaluates some elements of the debate and the judicial responses to the challenges of public law and information in today’s digital age.

Роль судебной практики в правовой системе: российский опыт в мировом контексте

In Russian legal science there is a wide-spread belief according to which legal precedents are not sources of Russian law, because Russian legal system forms a part of continental legal system. Various researchers believe that judicial practice does not contain legal norms and consequently case law is not a component of Russian legal framework.
 The present paper contains the theoretical and historical legal research of the place and role of case law in Anglo-American and continental legal systems. It’s shown that for long historical periods legal precedents were recognized as sources of law not only in Great Britain and the USA, but also in major European legal systems, while at the present time differentiation of legal systems with respect to their attitude towards case law is becoming outdated. Furthermore, based on the research of various legal scholars’ traditions (principally of the positivistic and the sociological traditions) this article demonstrates that negative attitude towards case law is largely determined by the formalistic and obsolete understanding of the term ”source of law”, coming from the misinterpretation of positivism.
 The paper also presents the current development trends of case law as a source of law. In particular the article outlines the proactive interpretations of new statutory provisions issued by the Plenum of the Supreme Court of the Russian Federation, the global uniqueness of such interpretations and the influence of scientific–technological progress and public needs on the highest court’s interpretations. The mutual interference of case law and statutory law is shown.

The Historical Development of the Scandinavian Functional Approach to Transfer of Ownership: A Tale of Change and Continuity

In the field of transfer of ownership, the Scandinavian legal systems currently stand out in a European context by applying a approach, rather than a approach, as the rest of European legal systems do. However, the Scandinavian systems have not always stood apart. The development towards the functional approach - which occurred under the influence of legal realist thought- began around the turn of the 20th century and is often considered completed in the second half of the same century. Prior to this Scandinavian legal doctrine agreed upon a unitary approach. This paper discusses the historical development of the functional approach to transfer of ownership in Scandinavian legal systems. The process of transformation is reviewed through the lens of three different sources of law, namely legal doctrine, legislation and case law. It is found that even though the general view of transfer of ownership underwent major changes with the development of the functional approach, only minor changes occurred in the underlying legal framework. In legal scholarship, which was the driving force of the transformation, we observe an image of great change. However, this development was not mirrored in legislation and case law, which present us with an image of continuity. We are thus confronted with conflicting images in legal scholarship on the one hand and legislation and case law on the other. This triggers the question of how such a great paradigm change could occur with only minor changes to the legal framework. How could two vastly different theories on transfer of ownership fit a virtually unchanged legal framework? The paper proposes an explanation to this question. It suggests that the new functional theory fit the existing legal framework because the legal framework at place already contained many features that were -if not directly functional- at least compatible with a functional approach. This suggests that even though the scholars of the time agreed upon the existence of a unitary transfer requirement in both Sweden and Norway it is questionable whether this was the case, at least in the sense of modern unitary legal systems. Further, the paper offers a possible explanation as to why Scandinavian legal scholars of the time insisted upon a unitary rule despite the fact that the legal framework provided little support for such a theory.

De Minimis and Artistic Freedom: Sampling on the Right Track?

For many years, U.S. and European case law has offered a negative and restrictive interpretation on the sampling of sound recordings. Courts have traditionally deemed sampling as an infringement on the copyrighted material (and in Europe the related rights), even if the sample lasted for less than 2 seconds. Several notable precedents have been published in the wake of the first ruling on sampling, published in 1989 in the U.S., all of which have confirmed this interpretation. However, more recently, four decisions have been published, two in the United States and two in Germany, which deviate from this line of jurisprudence. It is these decisions which will form the crux of the analysis within the present article. To outline them briefly, the TufAmerica and the VMG Salsoul rulings highlighted that the de minimis test applies to the sampling of trivial portions and thus liability is excluded in such situations. The German Goldrapper ruling of the Federal Supreme Court (BGH) and the Metall auf Metall III decision of the German Federal Constitutional Court (BVerfG) have also opened the doors for sampling in Continental European legal systems. The Goldrapper ruling focused on the length of the sample, whilst the BVerfG in Metall auf Metall III introduced a novel discourse based on fundamental rights, concluding that sampling functions as a practical example of artistic freedom. Nevertheless, it remains unclear whether the ECJ will accept such an interpretation. However, this may become clearer in the not too distant future with a preliminary ruling being initiated by the BGH in June 2017. This article will analyze these four cases, as well as offering a view on the possible outcome of the preliminary ruling.

The Contractual Prohibition of Assignment A Comparative Overview of the Legal Protection of the Assignee

This paper examines the effect of a contractual prohibition on assignment and its embodiment in major European legal systems. A thorough comparative overview reveals two legal principles concerning the contractual prohibition on assignment in any national legislation that serve as a founding stone of any respective set of rules in this matter. The first one, referred to as “the autonomy of the will” principle acknowledges the possibility for parties to exclude the transferability of a receivable with an absolute effect, enforceable against any third party. The second one, known as the “free alienability of assets” principle aims to promote the unrestricted transfer of rights over objects, thus limiting the effect of a prohibition on assignment to contracting parties only. This existing diversity testifies for the need to provide a harmonized approach to the anti-assignment clause. The paper calls for an adoption of the provisions of several soft law instruments with regard to the contractual prohibition on assignment due to their balanced legal approach.

The Revival of Roman Law and the European Legal Tradition

From the eleventh century onward, Justinian’s Roman law permeated all European legal systems to different degrees and at different times. The development of Roman law in Europe was not uniform. It followed different courses, had different emphases, and took on different details in each of the major European countries. The fusion of Roman law, canon law, and feudal law produced the ius commune, a common legal system in Europe in force until the era of national codifications. At the end of the sixteenth century, almost all of continental Europe was ruled by ius commune, with significant local variants (ius proprium), and a body of common legal literature. Roman law infused both Catholic Europe and the Protestant culture of Northern Europe. Around 1700, Roman law was used to identify the basic moral principles of natural law and the law of nations. Around 1800, Roman law influenced the French Civil Code and many others in the so-called age of codification. With the German Civil Code (BGB) coming into force in 1900, Roman law lost its direct applicability in European legal practice. Yet the Roman law tradition itself has survived: civil law systems have been so influenced by Roman law that legal interpretation remains incomplete if it does not take into consideration Roman legal sources. In our own day, the study of Roman law has educational purposes and may prove instrumental in the development of a new global law.

Penalty Clauses and the Recent Decisions by the UK Supreme Court in Cavendish v. Makdessi & ParkingEye v.Beavis

Abstract: The UK Supreme court recently rendered two important decisions on penalty clauses: Cavendish v. Makdessi and ParkingEye v. Beavis. The penalty clause is a controversial legal concept in Europe because it can result in high and unreasonable payment obligations. Most European legal systems agree that some form of protection against unreasonable penalty clauses is needed, but differ in the way penalty clauses are restricted. The most extreme approach is followed by English law, where a distinction is made between invalid penalty clauses and valid liquidated damages clauses. The new UK Supreme Court cases introduce new elements in English law in this respect. In this issue, the two decisions are discussed from a comparative perspective by a number of authors from different legal systems (English & Welsh, Belgian, German, Dutch, French, Italian, Swedish and Polish law).