European Union Jurisdictions Research Articles

Rethinking non-conformity of a serious nature: From the CISG and the PICC’s concept of fundamental breach towards a Nachfrist principle—learning from the amendments to Catalan sales law’s cure regime

Abstract Whereas the European Commission’s endeavours to codify European contract law are at an impasse, the harmonization effect of European Union (EU) Directive 2019/771 should not be under-estimated. Such effect extends beyond consumer legislation and is particularly remarkable in EU jurisdictions that did not enact ad hoc consumer acts. This article takes the amendments to Catalan sales law after the transposition of Article 13 of the Directive as a benchmark. It delves into the recently introduced seriousness threshold under Article 13(4) lit. (c) of the Directive as an additional basis for contract avoidance in case of the delivery of non-conforming goods. The article further discusses whether such a serious nature threshold should (or can) coexist with the previous notion of fundamental breach and rethinks the contours of these legal thresholds from a cure perspective.

The Geoeconomics of the Single Market for Financial Services

AbstractWe discuss the geoeconomics of the Single Market in financial services in the European Union (EU). We examine three case studies that concern the EU and other major jurisdictions and that range from incipient geoeconomic use to outward weaponisation of the Single Market in finance. These cases are (1) the post‐2008 crisis transatlantic tug of war, whereby the EU leveraged its Single Market vis‐à‐vis the United States, seeking to set the rules for global finance; (2) the Brexit negotiations, when the EU acted as a bloc against the United Kingdom and successfully safeguarded the integrity of the Single Market; and (3) the fulsome war in Ukraine, during which the EU ‘weaponised’ its Single Market through the adoption of financial sanctions against Russia. We argue that a combination of external and internal factors accounts for this pattern: the evolution of the international economic and political system, in particular, the increasing challenges to the liberal international order, and intra‐EU developments, namely, the EU's ability to deploy its Single Market geoeconomically.

Does Pakistan's Copyright and Antitrust Law Protect Creators of AI-Generated Content? A Comparative Study with European Union Jurisdictions

With the rise of artificial intelligence (AI), how should copyright and antitrust law handle AI-created creative work? The Copyright Ordinance 1962 and Competition Act 2010 are examined in this context to examine Pakistan's legal system. This study compares Pakistan's legal system to the EU's. The study focuses on the DMA and the EU Copyright Directive (2019/790). These two laws measure Pakistan's legal strength. Compare and contrast the legal systems of Pakistan with those of the European Union to find weaknesses and opportunities for progress in Pakistan's legal structure. This study may assist Pakistani policymakers and stakeholders in finding the best methods to adapt and update current regulations to handle the evolving environment of AI-generated content creation. Additionally, the article examines how antitrust laws affect AI-generated material and whether competition limits are enough to prevent AI corporations from monopolizing authors' rights. The article examines monopolization, norms, and AI-powered media. The research intends to illuminate artists' rights issues and identify legal loopholes that might hinder AI-generated material protection. It also suggests clarifying or amending rules to accommodate AI innovation. This detailed study illuminates Pakistan's complex copyright and antitrust relationship with AI-generated material. The findings of the research have added to the digital intellectual property rights conversation by revealing future rules and safeguards for artists working with AI-generated creations. Questions have been raised about how AI-generated material affects creative rights laws. The study begins with Pakistani AI content production IP rights. The research explores authorship, originality, and rights in the future when human programmers and algorithmic computers collaborate on creative creations. The study found that Pakistan's copyright and antitrust legislation does not address rising infringement problems, so aggrieved parties may have to use conventional remedies.

Online Formation of Companies in Lithuania in a Comparative Context: Implementation of the Digitalisation Directive and Beyond

For many years, paper was the main format for the registration of companies. The Digitalisation Directive, adopted in 2019, obliged European Union (EU) Member States to provide founders with the option to form private companies digitally. Although for Lithuania, where online formation of legal entities had already existed even before 2019, these regulatory developments did not bring about radical change, they forced the national legislator to introduce the required amendments. This article aims at studying the provisions of the Digitalisation Directive and the results of its implementation in Lithuania to suggest possible improvements in the online registration of companies. The laws of both EU jurisdictions (Estonia, Latvia, and Poland) and one non-EU jurisdiction (Ukraine) with experience of online registration of companies are investigated in comparison with Lithuanian law. In addition, the results of a survey Among Lithuanian law firms are presented and contribute to the analysis and interpretation of the legislation at hand. The article’s conclusions about the state of implementation of the Digitalisation Directive and the recommended steps beyond the Directive’s transposition provide for further enhancement of statutes and practices in this area.

Transitioning to lead-free ammunition use in hunting: socio-economic and regulatory considerations for the European Union and other jurisdictions

BackgroundHunting throughout the European Union (EU) has left an accumulating legacy of spent lead ammunition that has deleterious toxic effects upon the environment, wildlife, and humans who consume hunted game meat. Non-toxic lead substitutes for both rifle and shotgun ammunition have been developed and are required in some EU jurisdictions. Within the EU, at least 28 companies make or distribute non-lead shotgun ammunition, and a further 14 companies distribute non-lead rifle ammunition. However, a broad transition to the use of these products has been resisted by the hunting and ammunition-making communities.Results and conclusionsIt is in the self-interest of these communities to recognize the consequences of externalizing the effects of spent lead ammunition to society, and to make hunting more sustainable and socially acceptable. The paper endorses the ongoing process under the European Commission (EC) to introduce wide and fundamental restrictions on the use, trade and possession of lead ammunition for all types of hunting within 3 years, and within 5 years for clay target shooting. This would align EC regulations on lead from ammunition with lead from other anthropogenic sources, and EC regulations that protect the natural environment, especially the conservation of wild birds. Simultaneous EC regulation of lead in marketed game meats would provide extra health protection and assure a safe source of game meat products for consumers.

Real Effects of a Widespread CSR Reporting Mandate: Evidence from the European Union’s CSR Directive

In 2014, the European Union (EU) passed a corporate social responsibility (CSR) directive that mandates large listed firms to prepare annual non-financial reports, beginning from fiscal year 2017 onward. We examine whether firms within the scope of the directive (hereafter, “treated firms”), in line with the stated regulatory intent, increase their CSR activities in response to the disclosure mandate. Consistent with such real effects, our results from a difference-in-differences test document that treated firms on average increase their CSR activities in response to the regulation, and that they start doing so already before the disclosure mandate comes into force in 2018. We show that real effects are concentrated in firms that are more strongly affected by the disclosure mandate (i.e., firms with pre-directive low levels of CSR and CSR disclosures). Ensuing analyses reveal that affected firms also alter their CSR infrastructure, which is consistent with the regulatory intent of nudging firms’ business models towards CSR orientation. Finally, we show that our real effects cluster in firms from EU jurisdictions that had relatively weak CSR-related institutions in place at the time the directive was passed. This “catching up” effect speaks to the EU policymaker’s objective of harmonizing EU firms’ CSR disclosures. Taken together, our study demonstrates that widespread adoption of a CSR disclosure mandate creates real effects across industries and jurisdictions, and it does so even before the entry-into-force date.

Subject Matter Specialization of European Union Jurisdiction in the Preliminary Rulings Procedure

AbstractOver the years, judgments by the European Court of Justice (“ECJ”) have been—sometimes heavily—criticized. While the recent reforms to the EU’s judicial system have addressed the high caseload of the General Court of the European Union (“GC”), the perceived lack of quality of the ECJ’s judgments in preliminary rulings procedures remains an issue. This Article will outline in what way these judgments are criticized and try to examine the root causes of the criticism. It goes on to argue that subject matter specialization is an adequate answer to this criticism and examines how subject matter specialization can be introduced into the European Union (“EU”) judicial system.

Innovation through regulation: A comprehensive regulatory framework for blockchain-based services and products

This paper analyses the regulatory approach currently adopted both at European Union (EU) level (in particular, making reference to the guidelines, opinions and consultations issued by the European Supervisory Authorities [ESAs]), and at national level, focusing on the sole jurisdiction, which, so far, has created a bespoke regime for distributed ledger technology (DLT)-based services and/or products. After having briefly outlined the concept of DLT and crypto-assets and their potential applications within the financial services industry, this paper looks at the current approach developed by the ESAs with respect to DLT-based services and products. The paper then focuses focus on the recent framework introduced by Malta, the first EU jurisdiction regulating DLT-based services and products in a comprehensive manner. In particular, this paper analyses, adopting a pragmatic approach, the main features of the aforesaid bespoke regime. In conclusion the paper analyses whether a harmonised approach, adopted at EU level, should be preferred to a series of nation-wide regimes, which, given the cross-national nature of financial services, might lead to harmful regulatory arbitrage across the continent.

Connecting EU Jurisdictions: Exploring How to Open Justice Across Member States Through ICT

This article explores the concept of open justice in the context of European Union (EU) cross-border litigation and focusing on the e-justice dimension. It does it looking both at the open justice principle coming from the legal tradition and at the new ideas coming from the open government discourse. More in detail, the article investigates the attempt to create an open area of justice in Europe through the development and implementation of an European Justice Digital Service Infrastructure and the opening of such infrastructure to users and service providers. It is a development and implementation effort, which builds on the EU’s multilevel legal frameworks, which uses available technological innovations, which responds to the economic needs and challenges of an EU without internal borders, and which result should be capable of being embedded in the existing cultural communities. EU Member States (MSs) have developed such infrastructure and tested it successfully. Currently, EU institutions are faced with the serious and unavoidable challenge to open up such infrastructure and to ensure its use. In a dynamic environment in which EU and MSs laws, technologies, economies, and cultures coevolve, this is not an easy task.

The introduction of data breach notification legislation in Australia: A comparative view

This article argues that Australia's recently-passed data breach notification legislation, the Privacy Amendment (Notifiable Data Breaches) Act 2017 (Cth), and its coming into force in 2018, makes an internationally important, yet imperfect, contribution to data breach notification law. Against the backdrop of data breach legislation in the United States and European Union, a comparative analysis is undertaken between these jurisdictions and the Australian scheme to elucidate this argument. Firstly, some context to data breach notification provisions is offered, which are designed to address some of the problems data breaches cause for data privacy and information security. There have been various prominent data breaches affecting Australians over the last few years, which have led to discussion of what can be done to deal with their negative effects. The international context of data breach notification legislation will be discussed, with a focus on the United States and European Union jurisdictions, which have already adopted similar laws. The background to the adoption of the Australia legislation will be examined, including the general context of data privacy and security protection in Australia. The reform itself will be then be considered, along with the extent to which this law is fit for purpose and some outstanding concerns about its application. While data breach notification requirements are likely to be a positive step for data security, further reform is probably necessary to ensure strong cybersecurity. However, such reform should be cognisant of the international trends towards the adoption of data security measures including data breach notification, but lack of alignment in standards, which may be burdensome for entities operating in the transnational data economy.

Direct lending by funds: a comparison of the key EU jurisdictions

PurposeTo compare the key EU regimes regulating direct lending by private funds.Design/methodology/approachProvides a summary of the key factors to be examined when looking at the provision of direct loans by private funds in the key jurisdictions, followed by a summary of existing pan-European regulations, followed by a focus regulations in on the UK, Germany, France and Italy.FindingsThe liberalisation of the national regimes for loan origination by funds in many European Union jurisdictions is a welcome development for both credit fund sponsors wishing to access investment opportunities in these jurisdictions and the borrowers unable to secure adequate financing from traditional sources such as banks. At the same time, the creation of a pan-European regulatory regime, with a passport for lending activities, would further facilitate market access by loan originating funds, as long as such regime does not impose onerous burdens or unnecessary restrictions on the funds and their managers.Practical implicationsThe article gives an insight on the relative opportunities for direct lending funds in the EU, and how best to structure to take advantage of them.Originality/valuePractical guidance from experienced financial services lawyers

Injunctions Against Online Intermediaries Towards a Balanced Model for International Harmonisation

The development of internet brought many challenges to the traditional intellectual property rights protection and enforcement, particularly copyright. Web 2.0 interactive websites, besides contributing to a wider distribution of new literary and artistic works, also allow the illegal copy and spread of protected contents by “anonymous” users with almost no costs. In this scenario, internet intermediaries are seen as the key to the combat of online piracy, since they are in a privileged position to identify infringers and to implement technologies destined to remove infringing material. Considering that injunctions against intermediaries may have severe consequences for the fundamental rights of other internet players, it is essential to define clear limits in an attempt to achieve a fair balance of those interests. Furthermore, since the internet is a reality without borders, an international definition of those boundaries would contribute to a more effective system for combat to copyright infringements. While in some cases the similarities between the practices permit an international harmonisation, in other circumstances minimum protection may be considered a large step towards a more harmonised enforcement system. After outlining the main fundamental rights involved, this work identifies the most commonly issued injunctions against intermediaries and the limits imposed by the European Union jurisdiction in the light of those fundamental rights. Furthermore, it examines the new challenges brought by the Proposed Copyright Directive and the main limits imposed by the United States framework. Finally, after concluding for the need of an internationally harmonised regime, this work identifies the major shared aspects and practices found in both the European Union and the United States legal systems and extracts the common principles that may serve as a basis for an international model that provides higher harmonisation, brings legal certainty and fixes the necessary limits to reconcile all the fundamental rights involved.

Convergence of Dividend and Capital Gains Taxation in the European Union from 1990 to 2015

The common regulatory framework and the European integration process determine the taxation of corporate distributions in the European Union (EU). Against the background of EU law and jurisdiction, we examine the development of the domestic tax rules and tax burdens on distributions in the form of dividend payments and capital gains in fourteen EU Member States from 1990 to 2015. We find that tax burdens differ for individual and corporate shareholders, particularly at the beginning of the observation period. Individual shareholders face higher tax burdens on dividend payments than on capital gains. For distributions to corporate shareholders, tax systems provide opposed tax incentives due to higher tax burdens on capital gains than on dividend payments. Despite the overall lack of EU harmonization regulation for direct taxes, our results reveal implicit convergence of the tax systems. Hence, tax reforms in the EU Member States show a trend toward equally taxed dividends and capital gains for both shareholder groups.

An overview analysis of selected challenges in the enforcement of the prohibition of insider trading and market manipulation in the European Union and South African regulatory frameworks

It is submitted that cross-border trading in securities has caused a great number of challenges for various national regulators, especially with regard to the enforcement of market abuse laws. For instance, cross-border trading in securities has exacerbated the commission of other related illicit trading practices, such as, high frequency trading, credit default swaps, short selling and front running, particularly during the 2008-2009 global financial crises. Moreover, cross-border trading in securities has, to some extent, given rise to the inconsistent application and enforcement of the market abuse prohibition in South Africa and other European Union (EU) Member States. Accordingly, the need for strong co-operation and co-ordination between such regulators is still crucial and inevitable for the purposes of combatting market abuse in the EU and other jurisdictions, such as, South Africa. It is against this background that some selected national regulators and/or role players in the enforcement of the market abuse prohibition in South Africa, such as, the Financial Services Board (FSB), the Directorate of Market Abuse (DMA) and the Enforcement Committee as well as the EU’s Committee, of the Wise Men, the Forum of European Securities Commissions (FESCO), the Committee of European Securities Commissions Regulators (CESR), the European Securities and Markets Authority (ESMA), the Lamfalussy Process and the EU’s Action Plan for Financial Services, will be discussed. This is mainly done to isolate and expose the challenges and/or flaws in the enforcement of market abuse laws in both the EU and South Africa8 in order to recommend, where applicable, possible anti-market abuse measures that could be employed to enhance the curbing of market abuse activities in their respective jurisdictions. Thereafter, some concluding remarks will be provided

Financial services education

Purpose – The purpose of this paper is to chart the development of financial services education from its origins in the insurance industry to the current offering for people who wish to work in the life and non-life insurance industry. Financial services education within Ireland has evolved over time. Originally perceived to be an outpost of the British Insurance Institute, it is the responsibility of a variety of institutes that operate in the financial sectors, covering a range which includes insurance, banking and credit unions. Where tertiary education was optional, it is now a requirement of the regulator that people working in this sector have achieved at least this standard. Additionally, specialist qualifications for those working in the industry are being developed with academic involvement, as the institutes work to provide professional qualifications. Design/methodology/approach – To compare and contrast the Irish regulatory requirements, an analysis of other European Union (EU) national requirements was conducted, illustrating differences in education and current certification requirements. Findings – Educational requirements in Ireland go a long way in terms of ensuring that workers in financial services are adequately skilled in terms of academic, professional, ethical and continuous professional development (CPD). The Irish system covers a lot of aspects of financial services minimum competency code that is implemented in other EU jurisdictions, and in some cases, it has a unique approach in CPD. Practical implications – Serves as a comparable study of minimum competency requirements of EU for financial services employees and highlights differences in requirements across borders. Originality/value – This is a unique study of minimum competency code that has been implemented by financial regulators across EU member states and its impact in the industry in terms of raising the requirements of people involved in the sector.

The treating psychiatrist as expert in the courts: is it necessary or possible to separate the roles of physician and expert?

Certified medical specialists, including forensic psychiatrists, from the 27 member states of the European Union (EU) may practise in each other's countries, but there are professional and legal differences between them. One may lie in whether a patient's treating doctor/clinician may give expert evidence about that person in court. To examine similarities and differences between EU jurisdictions in law and practice in combining or separating such roles and to review the evidence in support of either position. A psychiatrist with court experience was contacted in each EU country about law, practice and guidance on division of clinician-expert roles. Published literature was searched for an evidence base for practice in the field. Additional material is from discussion at a residential meeting of practising forensic psychiatrists from Austria, Belgium, Denmark, Germany, Hungary, the Netherlands, Switzerland and the UK. All acknowledge that a treating clinician can never be an independent expert in that case, but the 22 (of 27) EU countries responding vary in law and practice on whether the dual role may be assumed. There has been almost no research interest in factors relevant to separation of roles. International discussion revealed that ethical and practice issues are not straightforward. On current evidence, either separation or combination of clinical and expert roles in a particular case may be acceptable. Insofar as there are national legal or professional guidelines on this issue, anyone practising in that country must follow them and may safely do so, regardless of practice in their native country. The most important ethical issue lies in clarity for all parties on the nature and extent of roles in the case. This paper has additional material online.

Buyer beware? Does the information provided with herbal products available over the counter enable safe use?

BackgroundHerbal products obtained over the counter are commonly used in Europe, North America and Australia. Although there is concern about a lack of information provided to consumers to allow the safe use of these products, there has been no published research to confirm these fears. In this study, we evaluated written information provided with commonly used herbal products in the UK in advance of a European Union Directive issued in April 2011 that tightened regulations for some herbal products, including requirements to provide safety information.MethodsFive commonly used herbal products were purchased from pharmacies, health food shops and supermarkets: St John's wort, Asian ginseng, echinacea, garlic and ginkgo. Written information provided with the products (on the package or on a leaflet contained in the package) was evaluated for inclusion of each of the key safety messages included in the monographs of the US National Center for Complementary and Alternative Medicine. Specifically, we looked for information on precautions (such as Asian ginseng not being suitable for people with diabetes), interactions with conventional medicines (such as St John's wort with the contraceptive pill and warfarin) and side effects (such as ginkgo and allergic reactions).ResultsOur analysis showed that, overall, 51 (75%) of 68 products contained none of the key safety messages. This included 4 of 12 St John's wort products, 12 of 12 ginkgo products, 6 of 7 Asian ginseng products, 20 of 21 garlic products and 9 of 13 echinacea products. The two products purchased that are registered under the new European Union regulations (for St John's wort) contained at least 85% of the safety messages.ConclusionsMost of the herbal medicine products studied did not provide key safety information which consumers need for their safe use. The new European Union legislation should ensure that St John's wort and echinacea products will include the previously missing information in due course. The legislation does not apply to existing stock. Depending on therapeutic claims made by manufacturers, garlic, ginkgo and Asian ginseng products may not be covered by the legislation and can continue to be bought without the safety information. Also, consumers will still be able to buy products over the internet from locations outside European Union jurisdiction. Potential purchasers need to know, in both the short term and the long term, how to purchase herbal products which provide the information they need for the safe use of these products.

‘To every cow its calf, to every book its copy’: Copyright and illegal downloading after EMI (Ireland) Ltd and Ors v. Eircom Ltd [2010] IEHC 108

The decision of EMI (Ireland) Ltd and Ors v. Eircom Ltd [2010] IEHC 108 in the Irish High Court has attracted much interest as it gives effect to the private settlement reached between Eircom (the principal Irish Internet Service Provider) and four record companies, which provides that Eircom will adopt a ‘three strikes’ policy against its Internet subscribers. This means that those subscribers whose Internet protocol addresses have been detected as being the site of continuous illegal downloading have the potential to have their subscriptions completely ‘cut-off’ by Eircom. This is the first decision of its kind in the Irish jurisdiction as previously, actions that were taken by record companies were against individual illegal down-loaders rather than the conduits of downloading. The judgment was primarily concerned with the validity of the ‘three strikes’ policy in the light if Irish data protection legislation. In his decision, Charleton J. sweeps aside the concerns raised by the Data Protection Commissioner regarding the policy. The decision that the policy does not offend data protection law is, in itself, interesting (given the hostility towards such ‘three strikes’ policies in other European Union jurisdictions, most notably, France) – but the decision also raises interesting questions about the status of constitutional rights such as right of freedom of expression and to privacy in Ireland – in the face of the ‘three strikes’ policy.

Stress, Absence and Reintegration: Perceptions and Practice of Professionals in Six European Jurisdictions

AbstractAs part of a larger study into stress, absence and reintegration (Stress Impact 2003–2005), semistructured interviews were carried out with a range of professionals including general practitioners, occupational health physicians, health and safety officers, human resource professionals, general managers, mental health professionals and return-to-work coordinators. The aim of the study was to explore professional perceptions of stress recognition/diagnosis, experiences, stress factors, interventions, referrals, the return-to-work process and disability management in six European Union jurisdictions (Austria, Finland, Ireland, Italy, the Netherlands and the United Kingdom). The most striking characteristic of the responses was the lack of congruence in views and beliefs within the same professional group across jurisdictional boundaries and between professionals within the same jurisdiction. There was little evidence that any clear message is getting across to professionals. Professionals need to respond more flexibly to stress-related absence, particularly in the use of psychosocial and work-based disability management supports or interventions.

Bilgi Edinme Hakkı Kanunu ve Kurumsal Bilgi Yönetimi İlişkisi

Türkiye’de sürdürülmekte olan e-Devlet çalışmaları ve Avrupa Birliği uyum projeleri kapsamında birçok kanun ve yeni düzenleme yapılmaktadır. Bu düzenlemelerden biri de, hem kamu kurum ve kuruluşların ellerindeki bilgiyi daha verimli ve etkin bir biçimde yönetmelerini sağlayacak, hem de vatandaşların kamu hizmetleri konusunda bilgi edinme hakkını yerine getirecek olan “Bilgi Edinme Hakkı Kanunu”dur. Sözü edilen kanun, şu anda 50 kadar ülkede yürürlüktedir ve demokratik ve şeffaf yönetimin gereği olan eşitlik, tarafsızlık ve açıklık ilkelerine uygun olarak kişilerin bilgi edinme hakkını kullanmalarına ilişkin esas ve usulleri düzenlemek için hazırlanmıştır. Böylece kurum ve kuruluşların üretmiş oldukları kurumsal bilgi kontrol altına alınacak, güvenlik, gizlilik ve paylaşılabilirlik sınırları belirlenecektir.