Laws Of Member States Research Articles

The Rule of Law Conditionality Under Regulation No 2092/2020\u2014Is it all About the Money?

Some say that the Union is built by moving from crisis to crisis. Crises in the last decade which affected the Union and its citizens concerned, inter alia, public finance (the financial crisis, 2008), migration (2014), public health (the COVID-19 pandemic, 2020) and the rule of law crisis (2018). This paper focus on the latter. It has been noted that some Member States have been happy to receive the benefits of EU membership, specifically the financial ones, while their commitment to European values, including the rule of law (Article 2 TEU), has been lacking. Since many instruments applied by EU institutions to improve this situation have proved rather insufficient, halting transfers of EU funds to these recalcitrant Member States has been touted as the way that might solve this crisis. Accordingly, a draft regulation was put on the table that authorised the EU institutions to suspend EU funds if a Member State is found to be in breach of the rule of law. This draft aimed to make the transfer of EU funds to the Member States conditional upon their continuous respect for the rule of law (and therefore became known as ‘the rule of law conditionality’). This paper comments on this draft as first proposed by the Commission in 2018 (Proposal for a regulation of the European Parliament and of the Council on the protection of the Union budget in the event of generalized gaps in the rule of law in the Member States [COM (2018) 324 final).], amended in 2019 by the European Parliament [European Parliament legislative resolution of 4 April 2019 on the proposal for a regulation of the European Parliament and of the Council on the protection of the Union's budget in case of generalised deficiencies as regards the rule of law in the Member States (COM(2018)0324–C8-0178/2018–2018/0136(COD)); https://www.europarl.europa.eu/RegData/seance_pleniere/textes_adoptes/provisoire/2019/04-04/0349/P8_TA-PROV(2019)0349_EN.pdf. A draft version of these provisions was presented in von Bogdandy and Łacny (Suspension of EU funds for breaching the rule of law - µ a dose of tough love needed? European Policy Analysis 2020, No 2, p. 1–15, https://sieps.se/en/publications/2020/suspension-of-eu-funds/, 2020).], and finally adopted by the European Parliament and the Council as Regulation (EU, Euratom) 2020/2092 of 16 December 2020 on a general regime of conditionality for the protection of the Union budget [Hungary and Poland voted against it and it is expected that its validity will be challenged before the CJEU via an action for annulment (Article 263 TFEU).] (henceforth called ‘Regulation 2020/2092′). This Regulation, containing 29 recitals in the preamble and 10 articles, entered into force on 1 January 2021 (Article 10 Regulation 2020/2092.). In the conclusions of the European Council meeting in December 2020 it was however accepted that it will be applied only in relation to budgetary commitments starting under the new Multiannual Financial Framework (MFF) 2021–2027, including Next Generation EU [Conclusions of the European Council meeting, 10 and 11 December 2020, para I (2) (k) https://www.consilium.europa.eu/media/47296/1011-12-20-euco-conclusions-en.pdf.]. This paper provides the legal characteristics of rule of law conditionality established under Regulation 2020/2092 and aims to determine whether financial incentives can restore compliance with the rule of law in Member States. Or in other words, is it all about the money?

Data Sharing Under the General Data Protection Regulation: Time to Harmonize Law and Research Ethics?

The General Data Protection Regulation (GDPR) became binding law in the European Union Member States in 2018, as a step toward harmonizing personal data protection legislation in the European Union. The Regulation governs almost all types of personal data processing, hence, also, those pertaining to biomedical research. The purpose of this article is to highlight the main practical issues related to data and biological sample sharing that biomedical researchers face regularly, and to specify how these are addressed in the context of GDPR, after consulting with ethics/legal experts. We identify areas in which clarifications of the GDPR are needed, particularly those related to consent requirements by study participants. Amendments should target the following: (1) restricting exceptions based on national laws and increasing harmonization, (2) confirming the concept of broad consent, and (3) defining a roadmap for secondary use of data. These changes will be achieved by acknowledged learned societies in the field taking the lead in preparing a document giving guidance for the optimal interpretation of the GDPR, which will be finalized following a period of commenting by a broad multistakeholder audience. In parallel, promoting engagement and education of the public in the relevant issues (such as different consent types or residual risk for re-identification), on both local/national and international levels, is considered critical for advancement. We hope that this article will open this broad discussion involving all major stakeholders, toward optimizing the GDPR and allowing a harmonized transnational research approach.

О перспективах развития уголовного законодательства стран Евразийского экономического союза, обеспечивающего охрану национальных интересов в сфере внешнеэкономической деятельности

Тhe subject of this research is the international normative acts concluded in connection with the creation of interstate unions and associations in the post-Soviet space. Attention is drawn to the active development of regulatory legislation on the specifics of economic relations between representatives of the union states, in the complete absence of any processes of unification of national criminal law in the field of foreign economic activity. The emerging situation can significantly complicate the implementation of international foreign economic cooperation, despite the membership of states in the Eurasian Economic Union (hereinafter — the EAEU). In this regard, it is concluded that it is necessary to develop a unified EAEU normative act that defines the specifics of establishing and implementing responsibility for committing foreign economic crimes, as well as the appropriate unification of the national criminal laws of the EAEU member states.

Polish industrial property law

In recent years, entrepreneurs have become increasingly aware of the legal means to protect intangible goods, but to ensure proper protection it is necessary to possess certain knowledge of the ways how to do it efficiently. The article is intended to explain the basic issues of Polish industrial property law. The systematics of Polish law including the issues concerning inventions, utility models, industrial designs, trademarks and geographical indication have been presented. However, currently it is not enough to be familiar with the national laws of each member states of the EU. It is also necessary to know EU law which affects strongly the law of individual member states. Therefore Polish industrial property law cannot be interpreted without taking into account EU law. At the same time, it is difficult to accurately delineate the boundaries of EU law. For example, there is the concept of a “European patent”, which will be granted by the European Patent Office in Munich. The “European Patent” is based on the European Patent Convention of 5 October 1973. It must be noted that the European patent is not an EU instrument and the Convention itself is not part of the EU acquis communautaire. Nevertheless, it is an important instrument signed by 38 countries, including all EU Member States. The European patent is often referred to as a “bundle of national patents”, and patent protection may differ from country to country. On the other hand, the law of EU Member States has only been harmonised to some extent. Thus, there is a need for further harmonisation as well as uniform interpretation of the existing provisions by the national courts and by the Court of Justice of the European Union. Thus, in the coming years, also Polish industrial property law may be expected to have been amended accordingly.

Tryb ratyfikacji decyzji Rady 2020/2053 z 14 grudnia 2020 r. w sprawie systemu zasobów własnych Unii Europejskiej oraz uchylającej decyzję 2014/335/UE, Euratom oraz przedstawionego Sejmowi RP projektu ustawy ratyfikacyjnej (druk sejmowy nr 1123)

The author points out that the Council Decision 2020/2053 requires ratification in accordance with the law of Member States. In the case of Poland it should be the procedure specified in Article 89 para. 1 of the Constitution, therefore requiring a prior consent granted in a statute. This mode has to be chosen to avoid imposing a significant financial burden on the state and because of earlier practice regarding the ratification of such decisions. The author excludes the possibility of the so called great ratification (Article 90 of the Constitution, majority of 2/3 votes in the Sejm), because the decision does not grant any new powers to the Union.

Brexit and workers' rights

The labour law of the UK and of other Member States is, and will become, more truly European than appears from the formal imprint of EC labour law. It is European rather by reflecting the cumulative experience of national labour laws, filtered through the prism of the EC institutions and refined in the crucible of the developing European polity. The tendency towards convergence of UK labour law with the labour laws of other Member States of the EC is driven in the main by the institutional pressures of EC membership, and, to a lesser extent, is the consequence of the workings of the international economy and, though less significant, a single European labour market. The dynamic of this convergence process is complex and its results are far from complete.

EIA Directive Procedural Guarantees as Substantive Individual Rights in IL v. Land Nordrhein-Westfalen

Environmental impact assessments serve as a necessary tool for attaining the goals of the Aarhus Convention and the EIA Directive (2011/92). The Aarhus Convention and EIA Directive aim to guarantee the public’s right to participate in environmental decision-making, to be provided information necessary to effectively participate, and to have access to a procedure to challenge a decision. The ECJ’s recent case IL v. Land Nordrhein-Westfalen articulates the current interpretation of the European Union Member States’ obligations under the EIA Directive to provide individuals standing to challenge impact assessment decisions. This opinion reaffirmed that in cases where the procedural defect did not affect the outcome of the project’s authorization decision, Member States may restrict standing only to individuals’ claims based on procedural defects where it prevented their participation in the entire decision-making process. Drawing from Advocate General Hogan’s opinion in IL v. Land Nordrhein-Westfalen, this paper advocates for designating the procedural guarantees themselves as substantive individual rights. The existing EIA Directive and Aarhus Convention procedural rights are rendered ineffective if the information required to be disseminated in environmental impact statements is not provided. Lacking this information and blocked from challenging these decisions in court, individuals cannot be informed participants, cannot access a review procedure, and cannot fully execute their rights under EU law. If unchanged in light of this rights designation, current Member State laws may violate the Charter of Fundamental Rights of the European Union, the Treaty on the Functioning of the European Union, and general principles of Community law.

EU Freedom Of Establishment And The Theories Of Incorporation In The Context Of Free Movement Of MNEs

The creation of a single market with no internal borders where free mobility is guaranteed is one of the main goals of the European Union. Accordingly, along with certain fundamental freedoms, Treaty on the Functioning of the European Union (TFEU) provides the right of establishment for nationals as well as companies in a territory of another Member State. Accordingly, a decentralized nature of multinational enterprises (MNEs) involves various cross-border operations. The aim of this paper is to explore to what extent these transnational objectives of MNEs can be achieved under the freedom of establishment principle of EU law and incorporation theories of Member States. Firstly, it analyzes different scenarios of company mobility such as transfer of registered office or real seat and transnational mergers. Secondly, it examines the freedom of companies to choose legal forms of their cross-border establishment. Finally, it evaluates the most recent judgment in Polbud case in the light of decisions made in previous cases.

Eiropas Savienības Tiesas spriedumu teksta interpretācija un analīze

The aim of the work is to analyse the texts of the case law of the Court of Justice of the European Union (CJEU), to study the influence of the language form on the interpretation of the content of these texts. The Court must ensure the uniform interpretation and application of European Union (EU) law in all Member States and all the official EU languages through translations from one language to another, thus affecting the form and content of judgments and making them difficult to read. This study uses discourse analysis to examine the narrative form of judgments – their syntactic and semantic macrostructure – to determine how such textual form affects the communication process in a situation where there is no single official language for communication between EU Member States. This paper finds that, although the structure of CJEU judgments is specific and difficult for many readers to understand, it serves as a key to the correct interpretation of these texts.

Locality in EU Energy Law

This article identifies ‘locality’ as an overarching concept in EU energy law. This has two consequences. First, it highlights the need for coherent law-making on EU level, specifically by avoiding multiplication of similar-but-not-identical concepts. Second, I argue locality can be considered a specific expression of subsidiarity. To support these claims, this article takes Belgium as a case study for diverse interpretations of this locality concept in Member State law. This is done by an analysis of both regional legislation and the regulator’s decision practice. Furthermore, I revisit theory on the EU constitutional principle of subsidiarity. Finally, a counter-example is offered: the second generation of network codes and guidelines will increasingly impact ‘local’ aspects of the electricity markets. In conclusion, locality serves a double theoretical role: it offers a descriptive classification for EU energy law and provides a substantive hermeneutic tool for subsidiarity assessments. EU energy law, Clean Energy Package, subsidiarity, locality, proximity, single market, integration, harmonization, network codes and guidelines

‘Optional’ Exclusion from Public Tenders Grounded on Conflicts of Interests and Principle of Proportionality: Whose Choice?

Focusing on the current regulation of conflicts of interest in public procurement by Directive 2014/24/EU we try to answer two main questions: (1) what is the core content of its regulation and which implications does it have in daily public procurement activity; and (2) whether this core content and the way it is materialized in Directive 2014/24/EU leaves any leeway to Member States law to modify or create new conflict of interests provisions. The first part of the article is devoted to the analysis of the ‘conflict of interest’ concept under the procurement Directive, concluding that it rests on three fundamental pillars: (a) a broad and functional subjective application based on the objective nature of the phenomenon; (b) a transfer of power (and responsibility) to the contracting entities; and (c) the strong relevance of the principle of proportionality. This new concept of conflict of interest at EU level and the recent CJEU case law in the field suggest a reduction of Member States’ deference in the transposition of optional exclusion grounds. In the present article, the case of Spain is used as an example to illustrate how the interpretative implications of the current EU framework do not leave virtually any margin to Member States to adapt the conflict of interests provisions to national legal traditions. public procurement law, administrative law, EU law, public law, conflicts of interests, causes of exclusion, integrity, anti-corruption

Multilevel hardening in progress – Transition from soft towards hard regulation of CSR in the EU

Corporate social responsibility (CSR) is gradually undergoing multilevel transformation in the European Union (EU). Hardening of the initially voluntary CSR approach of the EU is progressively taking place in an interaction between the law of the Member States and EU law. Domestic solutions can serve as a model for EU legislation. In this progress, the Non-Financial Reporting Directive, granting considerable flexibility both to companies and the Member States, can indeed be seen as an intermediate stage and it is expected that, under the impact of human rights due diligence requirements recently imposed on companies by Member States, more substantive obligations will also be introduced at an EU level in the future.

Przetwarzanie i ochrona danych dotyczących zdrowia przez organizatora systemu opieki zdrowotnej

The protection of individuals regarding to the processing of personal data is one of the fundamental rights. The General Data Protection Regulation (GDPR) lays down rules relating to the protection of natural persons with regard to the processing of personal data and rules relating to the free movement of personal data. Data concerning health is one of the areas the GDPR defines as special personal data, the so-called sensitive data. With regard to these data, the GDPR allows their processing only on an exceptional basis, in certain situations. According to Art. 6 sec. 1 let. e GDPR and art. 9 sec. 2 let. b GDPR, data processing is allowed, inter alia, when such processing is necessary for the purposes of meeting the obligations and exercising specific rights of the controller or of the data subject in the field of employment and social security and social protection law. In turn, Art. 9 sec. 2 let. h GDPR permits the processing of health data that is necessary for the purposes of providing health or social care or treatment, or for managing health or social care systems and services on the basis of European Union or Member State law. The article discusses the national legal regulations regarding the collection and processing of personal data concerning health in the light of the organization of the health care system and the tasks of the National Health Fund (NFZ) as a placeholder, whose task is only to manage financial resources and conclude health care contracts on its own behalf with independent healthcare providers and their accounting. Against the background of the GDPR, the author discusses the provisions of the acts on health care services financed from public funds and on the information system in health care. Finally, specific regulation regarding the COVID-19 pandemic are presented.

Audiovisual Works in EU and Member State Law

Audiovisual Works in EU and Member State Law

Commercial Agents, the Directive and European Private International Law

The protection of commercial agents under Directive 86/653 in international cases raises questions of private international law. Here, several different fact situations are analysed: In, first, the normal single market case where commercial agent and principal both are active in Member States, Article 3 (4) Reg. Rome I assures protection of the commercial agent even where the law of a third country has been chosen by the parties. Where, second, the principal is from a third state but the commercial agent is active in the single market, the European Court of Justice (ECJ) in Ingmar has ruled that the protection according to the Directive applies. Its rules then should be considered as overriding mandatory provisions in the sense of Article 9 Reg. Rome I. Where, third, the protection provided for by the Directive has in Member State law been extended to commercial agents not covered by the Directive, this extended protection according to the UNAMAR judgment of the ECJ may under certain conditions override even the law of another Member State – and the Belgian Court of Cassation has actually decided in this sense. In the specific case, though, the result is odd and apparently helped to oust an arbitration clause. Fourthly, in case of an extra-EU commercial agent and an EU-principal, according to the ECJ case Agro the protection foreseen by the Directive need not necessarily be granted to the foreign commercial agent by the applicable Member State law. This, according to the ECJ, even is the case where the EU-provisions have been transplanted into the legal system of the third state where the commercial agent is active. It is shown that this is very questionable and that the third state rule can – similarly to Ingmar – be an overriding mandatory provision. The restrictive Article 9 (3) Reg. Rome I here poses some problems, which, however, can be overcome. The Belgian Enterprise Court in Ghent in fact used Article 7 Rome Convention

Towards Nearly Zero Energy and Environmentally Sustainable Agritourisms: The Effectiveness of the Application of the European Ecolabel Brand

Tourism represents an important economic driver in Italy, being responsible for approximately 13.2% of the total GDP (a value higher than the reference European average) and for nearly 10% of the regional GDP. Among the touristic sectors, the agritourist ones show a persistent growth, experiencing in 2019 a 6.7 point percentage improvement compared to the 2017 figures. Given this situation, the transition towards a low-carbon path, affecting the building sector for some time, should also involve agritourist buildings, through the release of EU directives, member state laws, and technical rules. On the other hand, agritourism sites could be awarded the Community EU Ecolabel. Unfortunately, awarding the EU environmental excellence brand implies the availability of several data on building energy behavior that should then be managed by complex evaluation tools. To overcome this issue, the use of the simplified ARERA (Italian Regulatory Authority for Energy Networks and Environment) technical datasheets, issued to assess environmental improvements consequent to energy efficiency interventions in the urban residential building stock, is proposed. The application of this tool totally avoids using building computer-based simulation models, thus facilitating the preparation of the EU Ecolabel request documentation by agritourism owners. Being awarded the Community EU Ecolabel also implies approaching a net zero energy condition because of a lower energy consumption and a minor recourse to fossil fuels. For this purpose, an application of an easy graphical method, previously developed for residential and commercial buildings, which visually represents improvements achievable by a given agritourism when implementing energy efficiency measures, is presented.

Settlement and Release in European Legislation

Since the current contractual practice demonstrates the active use of settlement and release construction by the parties of civil legal relations as one of the most flexible instruments of termination of an obligation, the issue of ensuring unity in the interpretation and practice of this legal institution remains relevant. The subject matter of this study is the norms of civil law of different Member States of the European Union, and the purpose is the study of the conceptual approaches of other states to the legislative consolidation of settlement and release structure, its recognition as one of the ways to terminate the obligation and specific features of the interpretation and application of this institution that will make it possible to enlarge the view on the essence and role of settlement and release within the system of grounds for the termination of civil obligation and national contractual practice.
 The comparative and legal method was chosen as the main method of scientific research, due to which the author characterizes the main elements, purpose and essential features of legal constructions in civil law of other states, which are similar to the institution of settlement and release in Ukraine; the author pays attention to distinctive technical and legal peculiarities of civil legislation of some EU countries.
 According to the results of the conducted research the author has established that civil legislation of the most European countries does not enshrine settlement and release as the institution of obligation law and does not recognize it as an independent method to terminate the obligation. At the same time, the codified acts of some states contain certain legal norms, which provide for cases of transferring a certain good by the debtor to the creditor instead of fulfillment of an obligation, as well as enshrine legal institutions that act as settlement and release.
 The significance and practical significance of the paper is that the conducted study reveals new directions for further research, demonstrates the relevance and need for a more detailed and comprehensive analysis of the content and legal features of settlement and release, its importance and role in national contractual practice, as well as in the practice of other states.

White Smoke, but Smoke Nonetheless: Some (Burning) Questions Regarding the Directives on Sale of Goods and Supply of Digital Content

The spring of 2019 saw the adoption of two EU directives concerning, respectively, the sale of goods (Directive 2019/771, ‘SGD’) and the supply of digital content (Directive 2019/770, ‘DCD’), which must be implemented into Member State law by 1 July 2021. The modified national rules must apply from 1 January 2022, the date on which the accompanying repeal of the 1999 consumer sales directive (Directive 1999/44, ‘CSD’) will take effect. The question arises whether the EU legislator has succeeded in drawing up a clear, consistent consumer protection framework. This article submits that this is not necessarily the case, focusing on ambiguities and interpretative issues in the scope of application of the two new directives (1) as well as the provisions regarding conformity (2). The paper concludes with a number of evaluative observations on the possible long-term effects of the new rules (3).

Criminal liability for anticompetitive crimes in the EAEU member states: prospects for harmonization

The limits and severity of criminal liability for anti­competitive crimes in the member states of the Eurasian Economic Union (EAEU) have significant differences, despite the fact that the EAEU combines a common (single) economic space, the Model Law "On Competition" has been adopted, a single administrative responsibility for anti-competitive offenses committed in cross-border markets.These differences are manifested, first of all, in the fact that in different EAEU member states the issues of criminalization of anticompetitive socially dangerous behavior have been resolved differently, and for similar anticompetitive crimes, punishments significantly differing in nature and gravity have been established.The unsolved problem in the conditions of free movement of goods, finances and labor resources in the EAEU, according to the author, not only contradicts the principles of justice and equality of citizens before the law, which are enshrined in the criminal codes of all EAEU member states, but also hinders the successful economic development of the EAEU. In particular, significant differences in antitrust criminal policy can stimulate the “flow” of monopolistic criminal activity into the least rigid national jurisdictions within the EAEU.To solve the corresponding problem, the author proposes to supplement the Treaty on the Eurasian Economic Union with provisions on the implementation of an agreed EAEU policy in order to harmonize administrative and criminal liability for violations of the antitrust laws of EAEU member states.

The Applicability of the Revised Limits of Liability Under the Montreal Convention to Civil Aviation Claims in Nigeria

This piece seeks to discuss the applicability of the revision of the limits of liability under the Montreal Convention 1999 to civil aviation claims in Nigeria, the consequences of the revision of the limits of liability on domestic laws of member states and their constitutional guarantees, if any. It contrasts the Nigerian position with some other Montreal Convention member jurisdictions to see areas of convergence or divergence. The scope of the comment shall be limited to deaths even though the revision of the limits of liability affects other claims under the convention occurring in international and non-international carriage by air in view of their peculiarities. The article ends with a call on the relevant public officers in Nigeria to take urgent steps to bring Nigeria’s aviation industry and applicable laws in tune with global standards.