Laws Of Member States Research Articles

Rechtliche Lösungen für politische Konflikte? Rechtsstaatsbezogene Vertragsverletzungsverfahren gegen Ungarn

Recently, there has been a renewed interest in infringement procedures as a tool against dismantling the rule of law and democracy in Member States of the European Union (EU). Against this background, this article analyses all seven rule of law-related infringement procedures against Hungary since 2010. It examines how the European Commission justified the opening of the procedures and how the Hungarian government reacted legally and in its public communications. While it has been suggested that infringement procedures would lead to a miscategorisation of rule of law problems, this contribution shows that in the majority of cases, the Commission made clear references to democracy and the rule of law. Nevertheless, the procedures could not dissuade the Hungarian government from its controversial reforms, nor were they able to depoliticise the conflicts over EU foundational values.

The EU’s Trifecta Mechanisms: Analysis of EU’s Response to the Challenges to the Rule of Law and Corruption

The following paper examines the envisaged framework and effectiveness of the triangulation of mechanisms currently planned at the EU level: the establishment of the European Public Prosecutor’s Office (EPPO), proceedings under Article 7 of the Treaty on European Union (TEU) against Poland and Hungary, and the mechanism to protect EU’s budget in deficiencies withregards to the rule of law in Member States. This research focuses on the overall structure and powers of the EPPO with special attention on its role in investigating and prosecuting offences affecting to the EU’s financial interests. This includes active and passive corruption among others with particular emphasis on the expected interaction between the EPPO and the national authorities. However, not all EU Member States have joined the EPPO framework. Here the role of the EU institutions is analyzed in light of the recent developments in Article 7 TEU proceedings. A third possible mechanism to react to the growth of executive powers in some states and the corresponding imbalances is the EU Commission’s proposal for a mechanism on the protection of the EU’s budget in case of generalized deficiencies as regards the rule of law. This may include corruption or other breaches to the implementation of the Union budget.

Recent Council of Europe and European Union legislation on preventing terrorism and its impact on the criminal law of Member States the example of Poland

The paper seeks to draw comparisons between recent instruments adopted by the Council of Europe CoE and the European Union EU in the field of prevention of terrorism. The examined instruments are the CoE convention on the prevention of terrorism of 2005 with its additional protocol of 2015 and the EU’s 2017 directive on combating terrorism. The paper demonstrates the different scope of criminalisation required by these instruments, highlighting areas in which the EU’s legal regime is stricter, providing for criminalisation of a wider array of activities aiming to prepare for the commission of terrorist offences in particular with regard to public provocation, receiving terrorist training and terrorist travel. The paper then examines implementation of both sets of international instruments into a national legal system using the Polish transposition as an example. Both good and poor examples of implementation are presented. The former includes comprehensive criminalisation of public provocation to commit a terrorist offence and membership of a terrorist organisation, while the latter includes insufficient transposition of provisions requiring the criminalisation of receiving terrorist training and terrorist travel as well as introducing unwarranted powers of the public prosecutor to grant leniency to terrorist travellers.

«Газовый треугольник» РФ–ЕС–Украина: в ожидании рисков

The preparation for the conclusion of a new gas transit contract between Russia and Ukraine, at the end of 2019, turned out to be an extremely difficult political and economic process affecting the interests of various actors. Conflicting interests and positions of Russian and Ukrainian political leaderships and business companies, as well as those of the USA, EU, Germany have been involved. Another important political context for energy diplomacy have been the EU integration policies, including the implementation of the updated EU Gas Directive into the national laws of member states.

The Guarantees of Human Rights and Freedoms in the European Union: The Experience for Ukraine

The article examines the issues of guarantees of human rights and freedoms in the European Union, in particular, their concepts and varieties. The attention is focused on some differences in the understanding of the nature of human rights guarantees in domestic legal doctrine and in European law. In general terms, the content of the system of guarantees of human rights and freedoms operating within the European Union is revealed. It is concluded that within the European Union such guarantees always have a legal nature, since their implementation in public practice it is associated with the existence of relevant norms enshrined in both supranational EU law and in the law of the national member states of the EU.

De nuevo (y todavía) Polonia: "Rule of law" y art.7 TUE en el Parlamento Europeo y el Tribunal de Justicia

Como una de las consecuencias de la prolongada crisis de la UE que arrancó con la Gran Recesión desatada en 2009 —la más profunda y severa de la construcción europea a lo largo de su historia—, tanto el conjunto de la UE como sus EE.MM han visto crecer la preocupación sobre el deterioro democrático y los retrocesos en materia de protección de derechos. Desde la entrada en vigor del Tratado de Lisboa y la Carta de Derechos Fundamentales de la UE, diciembre de 2009, las instituciones europeas han diseñado y desarrollado estrategias para reforzar el examen de los niveles de respeto a los valores fundacionales y principios constitucionales comunes consagrados en el art.2 TUE («criterios de Copenague). Y para desarrollar instrumentos de prevención, control y corrección de retrocesos democráticos y en materia de derechos en eventuales reformas constitucionales y legales en los EE.MM. Los casos de Hungría y Polonia resultan paradigmáticos, en la medida en que han suscitado respuestas extraordinarias: entre ellas, la activación de mecanismos extrajudiciales (el «Mecanismo Estructurado del Estado de Derecho»); la incoación de acciones por incumplimiento del Derecho europeo por parte de la Comisión (art.258 TFUE); una serie Resoluciones del PE solicitando de la Comisión y el Consejo la activación de lo dispuesto en el art.7 TUE.; y, en el caso polaco, importantes decisiones jurisdiccionales del TJ. Este trabajo examina los recientes desarrollos en materia de Rule of Law y la extensión del instrumento actualmente disponible hacia un Mecanismo amplio de Estado de Derecho, democracia y derechos fundamentales. Este Mecanismo comprende —en un nuevo Policy Cycle— el escrutinio general, periódico y regular de la legislación de los EE.MM, apuntándose sanciones extrajudiciales previas a las de «botón nuclear» (de terminación improbable) del art.7 TUE: asi, la de vincular el acceso a Fondos europeos y presupuestarios de la UE al pleno respeto del Derecho y los derechos fundamentales. El artículo se centra singularmente en el examen a Polonia. Se completa el estudio con una exposición de las últimas decisiones del TJ en relación con las reformas judiciales llevadas a cabo por la mayoría absoluta del ultraconservador partido en el Gobierno polaco (Pis). Concluye con reflexiones sobre la necesidad de profundizar el carácter vinculante de la integración en un orden regido por el Derecho, en una singular experiencia de ciudadanía abierta a círculos concéntricos (constitucionalismo multinivel) frente a lecturas regresivas de la «identidad nacional».As one of the consequences of the protracted EU crisis aroused by the 2009 Great Recession —the deepest and the longest ever throughout the European process—, both the EU and its Member States have witnessed a growing concern about democratic backsliding and fundamental rights backlashes. Since both the Lisbon Treaty and the ECFR entered into force (December 2009, the EU Institutions have developed new strategies to reinforce and strengthen their ability to test Member States Law making standards as to their due respect to common constitutional values and principles, enshrined in art. 2 TEU («Copenhagen Criteria»). By doing that, they have unfolded as well new instruments to prevent, control and correct potential risk of backward steps at the Member States National level, be it via constitutional or via legal reforms. Hungary and Poland are paramount cases, in as much as they have called for: extrajudicial actions (Rule of Law Mechanism); infringement procedures by the Commission (art.258 TFEU), and EP Resolutions calling both the Commission and the Council to initiate art.7 TEU. This Paper examines recent developments in the sphere of Rule of Law, in view of extending its scope to a new Policy Cycle on Rule of Law, Democracy and Fundamental Rights, encompassing overall and regular scrutiny of all of the Member States by means of objective indicators, as a way to overcome the limits (and unlikely outcome) of the so-called «nuclear option» of art. 7 TEU. It builds on the proposal of linking access to EU Funds and budgetary benefits with full compliance with Rule of Law, Democracy and Rights EU standards. This Article focuses mainly on Poland. It adds to an overview and assessment of the latest ECJ rulings on Polish Judicial reforms led by the far conservative ruling Party (PiS), deemed to be incompatible with EU Law. It ends with conclusive remarks on the need on the need of making progress in the European path to multilayer constitutionalism and binding European Law above «national identity».

HARMONISATION OR UNIFICATION OF EUROPEAN UNION COPYRIGHT LAW

Over the past 20 years, the European Union ('EU') (formerly the European Community) has carried out an ambitious agenda of copyright harmonisation, with the aim of promoting the Internal Market by removing disparities between the laws of the Member States. This has resulted in seven directives on copyright and related rights that were adopted between 1991 and 2001. While the seven directives have created a measure of uniformity between the laws of Member States, harmonisation has come at considerable cost to the Member States. Also, the directives have largely ignored the single-most important obstacle to the creation of an Internal Market in content-based services: the territorial nature of copyright. Despite extensive harmonisation, copyright law in the EU is still largely linked to the geographic boundaries of sovereign Member States. Consequently, copyright markets in the EU remain vulnerable to compartmentalisation along national borderlines.

ANALYSIS OF DATA LOCALIZATION IN DIGITAL MARKET INTEGRATION IN SOUTH EAST ASIAN REGION

The development of information and communication technology (ICT) has influenced various human life sectors, including trade. On November, Association of South East Asian Nation (ASEAN) member countries signed a cooperation framework for digital market integration as manifestation of member willingness to facilitate cross border e-commerce transaction within region. One of its concerns is trade barrier originating from digital data protection schemes applied by ASEAN states particularly data localization policy. Using the descriptive qualitative approach through literature study, this research aims to 1) introduce existing status and rationales behind digital data localization law in ASEAN countries, 2) describe possible economic implication by allowing data exchange across borders among ASEAN countries, 3) propose mechanism to address cross border data transfer issues in the perspective of regional integration theory. Results show that localization law in ASEAN member states particularly in Indonesia, Malaysia, and Singapore have different attitude but same economic motives towards cross border data transfer. Besides having positive influence on economic performance, trans-border data transfer may result in capital concentration within business-friendly territory in the condition of development disparity and may harm the existing ICT business. Thus, ASEAN could jointly established commission to develop new single regulation framework. ASEAN countries also must develop more mature ICT infrastructure and business environment in order to support the implementation of existing law. In this conditions, the role of international relation in addressing data localization issues considering various political regimes within ASEAN is needed.

A Study on the Extraterritorial Application of the General Data Protection Regulation with a Focus on Computing

A Study on the Extraterritorial Application of the General Data Protection Regulation with a Focus on Computing

Dealing with Corporate Scandal under European Market Abuse Law: The Case of VW

This paper uses the current proceedings against Volkswagen Aktiengesellschaft for violations of its continuous disclosure obligation as a backdrop for addressing fundamental questions of European market abuse law. Specifically, we ask how the Market Abuse Directive and Regulation (MAD/R) and Member State corporate law together shape management’s disclosure policy vis-à-vis the stock market. Taking the perspective of German stock corporation law, our main findings are twofold: First, while European market abuse law severely limits management’s discretion when market integrity is at stake, Member States can still largely control its influence on internal corporate governance – i.e., on the distribution of information between management and shareholders. Second, MAD and MAR directly draw on conceptions of public interest in Member State law when determining the outer bounds of issuers’ ability to delay disclosure, thereby potentially promoting compliance. Based on these insights, the paper then closes with a note of caution for national legislators and suggests a more profound discussion of their responsibility for the optimal functioning of European market abuse law.

Automated decision-making in the EU Member States: The right to explanation and other “suitable safeguards” in the national legislations

The aim of this paper is to analyse the very recently approved national Member States’ laws that have implemented the GDPR in the field of automated decision-making (prohibition, exceptions, safeguards): all national legislations have been analysed and in particular 9 Member States Law address the case of automated decision making providing specific exemptions and relevant safeguards, as requested by Article 22(2)(b) of the GDPR (Belgium, The Netherlands, France, Germany, Hungary, Slovenia, Austria, the United Kingdom, Ireland).The approaches are very diverse: the scope of the provision can be narrow (just automated decisions producing legal or similarly detrimental effects) or wide (any decision with a significant impact) and even specific safeguards proposed are very diverse.After this overview, this article will also address the following questions: are Member States free to broaden the scope of automated decision-making regulation? Are ‘positive decisions’ allowed under Article 22, GDPR, as some Member States seem to affirm? Which safeguards can better guarantee rights and freedoms of the data subject?In particular, while most Member States refers just to the three safeguards mentioned at Article 22(3) (i.e. subject's right to express one's point of view; right to obtain human intervention; right to contest the decision), three approaches seem very innovative: a) some States guarantee a right to legibility/explanation about the algorithmic decisions (France and Hungary); b) other States (Ireland and United Kingdom) regulate human intervention on algorithmic decisions through an effective accountability mechanism (e.g. notification, explanation of why such contestation has not been accepted, etc.); c) another State (Slovenia) require an innovative form of human rights impact assessments on automated decision-making.

Feeling fine! Harmonisation and inconsistency in EU supervisory authority administrative fines

GDPR has a stated goal of harmonisation in general, and of penalties in particular. This article demonstrates that under GDPR penalties, and especially fines, are inconsistently applied across EU member states, and that GDPR has left many of the most important topics relating to fines to member state legislation. The article starts by showing that the One-Stop Shop mechanism actually incentivises forum-shopping. Next, it is shown that the method of calculating fines is inconsistent and unsettled. Different language versions of GDPR lead to different conclusions as to how to calculate an undertaking’s revenue, and the meaning of an undertaking is neither entirely consistent within GDPR itself, nor across member states. The role of regulators is likewise unclear, and in some member states the regulators do not even have the power to impose an administrative fine under GDPR. The role of non-regulators, such as data subjects and representatives of classes of data subjects similarly lacks consistency across member states. Public bodies are another area of disharmony between member states: the scope of applicability of GDPR to public bodies is a matter for member state legislation, and the outcomes are in fact different across member states. Additional areas discussed include: the responsibility and liability of directors and officers of a company; the enforceability of a contract for insurances against GDPR fines; choice of law clauses as governing data being processed under GDPR; and issuance of warnings prior to imposition of fines. In all these areas, GDPR itself and member state law is inconsistent and is far from harmonised. Finally, the role of the economic model of the infringing party in calculation of the applicable fine is unsettled, and is left to member states, and is therefore similarly at odds with a goal of harmonisation.

Constitutional Courts and the Rule of Law in the New EU Member States

This paper analyses the use of the rule-of-law principle in the jurisprudence of the constitutional courts of the new Member States of the European Union. The purpose is to discover whether past or recent decisions could clarify the use of the principle in these countries. An example is the legalistic concept of the rule of law as expressed by the Hungarian and Polish constitutional courts in examining the constitutionality of lustration laws. On the other hand, some constitutional courts (such as the Czech one) have used a wider and more sophisticated application of the rule of law. Considering the severe rule-of-law crisis which has been taking place in Hungary and Poland in recent years, this recognition is particularly important in order to avoid cumulative judgments that could devalue the former communist countries in general, trivializing the harsh path of democratic conditionality with its strengths and weaknesses.

Core versus Non-Core Terms and Legal Controls over Consumer Contract Terms: (Bad) Lessons from Europe?

Abstract Not all contract terms pose the same perils for efficient contracting and for consumer welfare. EU Law and the laws of many Member States make a distinction between core and non-core contract terms and tend to exempt the former from the ex-post substantive unfairness review to which the latter are subject to. By reviewing how the CJEU and European legal commentators have justified and construed the terms of Art. 4(2) of Directive 93/13 we may obtain a general picture of the analytical underpinnings deployed to provide useful content to that provision. The prevailing European approach is (unsurprisingly, perhaps) predominantly legalistic and uninterested in empirics. The CJEU analysis remains (unsurprisingly, perhaps) immune to the implications from the theoretical and empirical literature that economics and Law & Economics has produced in order to understand how market forces and other non-legal incentives for contract quality interact with ex post controls implemented by courts and based on broad legal standards. The ALI Restatement on Consumer Contracts may cogently make use of that input in crafting a less formalistic legal regime.

Data Protection as a Fundamental Right: The European General Data Protection Regulation and Its Extraterritorial Application in China

he right to data protection is a fundamental right recognized by the EU Charter of Fundamental Rights (Art. 8) and constitutional law of most Member States, as well as ECJ case law. As a leading legislation, the European General Data Protection Regulation (GDPR) concretizes and materializes the right by means of granting a constellation of specific rights to data subjects, and establishes stringent law compliance mechanisms for their realization. Further, the GDPR claims a wide extraterritorial jurisdiction to protect all data subjects on the EU territory – regardless of their nationalities, when their personal data are transferred to third countries outside the EU. Apparently, many controllers and processors processing their data on Chinese territory will be directly influenced and may encounter law breaches with negative consequences that may lead to conflict of law and jurisdiction. This short article will first discuss data protection as a fundamental right under the EU law and how GDPR can protect that right with different instruments. Then, it will analyze in detail GDPR’s exterritorial application to controllers and processors in China and their related data protection roles and duties under various processing circumstances, as well as the different impacts on their data processing operations for law compliance and the potential incurred costs.

EU environmental compliance assurance

As part of his overall strategy to create a closer dialogue with citizens, Commission President Juncker pledged to regain the credibility of citizens by focusing on matters of importance to them. In order to fulfil the environmental objectives which are addressed in the context of creating new jobs and boosting growth and investment, the European Commission had to address the issues of poor compliance in the environmental policy area. To that end, the Commission published the 2018 Environmental Compliance Assurance Action Plan containing a set of nine measures specific to environmental policy with the aim of improving compliance with EU environmental law and strengthening environmental governance in both Member States and the EU. This article analyses the approach to compliance in the new Environmental Compliance Assurance Action Plan by exploring the measures set out within it and their alignment with previous initiatives of the Commission to address poor compliance. The Commission’s choice of measures to address sources of non-compliance is assessed using the management theory of compliance. The article concludes that pursuit of the management approach to compliance under the Environmental Compliance Assurance Action Plan should allow for a more coherent and strategic approach to compliance aimed at preventing non-compliance at an earlier stage and addressing the most common reasons of non-compliance in Member States.

The GDPR and the research exemption: considerations on the necessary safeguards for research biobanks

The General Data Protection Regulation (GDPR) came into force in May 2018. The aspiration of providing for a high level of protection to individuals’ personal data risked placing considerable constraints on scientific research, which was contrary to various research traditions across the EU. Therefore, along with the set of carefully outlined data subjects’ rights, the GDPR provides for a two-level framework to enable derogations from these rights when scientific research is concerned. First, by directly invoking provisions of the GDPR on a condition that safeguards that must include ‘technical and organisational measures’ are in place and second, through the Member State law. Although these derogations are allowed in the name of scientific research, they can simultaneously be challenging in light of the ethical requirements and well-established standards in biobanking that have been set forth in various research-related soft legal tools, international treaties and other legal instruments. In this article, we review such soft legal tools, international treaties and other legal instruments that regulate the use of health research data. We report on the results of this review, and analyse the rights contained within the GDPR and Article 89 of the GDPR vis-à-vis these instruments. These instruments were also reviewed to provide guidance on possible safeguards that should be followed when implementing any derogations. To conclude, we will offer some commentary on limits of the derogations under the GDPR and appropriate safeguards to ensure compliance with standard ethical requirements.

Data Protection as a Fundamental Right: The European General Data Protection Regulation and Its Exterritorial Application in China

The right to data protection is a fundamental right recognized by the EU Charter of Fundamental Rights (Art. 8) and constitutional law of most Member States, as well as ECJ case law. As a leading legislation, the European General Data Protection Regulation (GDPR) concretizes and materializes the right by means of granting a constellation of specific rights to data subjects, and establishes stringent law compliance mechanisms for their realization. Further, the GDPR claims a wide extraterritorial jurisdiction to protect all data subjects on the EU territory – regardless of their nationalities, when their personal data are transferred to third countries outside the EU. Apparently, many controllers and processors processing their data on Chinese territory will be directly influenced and may encounter law breaches with negative consequences that may lead to conflict of law and jurisdiction. This short article will first discuss data protection as a fundamental right under the EU law and how GDPR can protect that right with different instruments. Then, it will analyze in detail GDPR’s exterritorial application to controllers and processors in China and their related data protection roles and duties under various processing circumstances, as well as the different impacts on their data processing operations for law compliance and the potential incurred costs.

Case law note: The ECJ as a Protector of Tax Optimization via Holding Companies

This contribution discusses and analyses the saga of the ECJ case law in the Eqiom (C-6/16), Deister Holding/Juhler Holding (C-504/16 & C-613/16) and Hornbach-Baumarkt (C-382/16) cases. The article demonstrates that the Court is the protector of tax optimization via holding companies that are established within the EU/EEA. Although the analysed conclusions of the ECJ arise from the examination of the compatibility of domestic tax law of Member States in question (France and Germany) with EU primary and secondary law in force before 2016, their relevance goes a way beyond it, in particular to Article 6 of the ATAD and Article 7(1) of the MLI. Once again, the ECJ case law analysed here shows that fight against tax avoidance must not go beyond its objective. Ultimately, a tax system of the EU should be designed so that the prevention of tax avoidance (proportional anti-tax avoidance measures) should go hand-in-hand with maintaining an attractive business and investment climate (tax exemptions and intelligent incentives). This would significantly stimulate fair competition by creating a level playing field between different stakeholders (taxpayers and Member States).

Choice of law in relation to matrimonial property in the 21st century

The traditional lack of consensus in relation to the choice of law rule/s governing matrimonial property has become topical and relevant over the last few years. The European Union, concerned about the impact of the disparities between the laws of Member States in this field, in the light of increasing divorce and migration, embarked on an initiative to harmonize private international law rules in relation to matrimonial property. However, the Regulation which it produced did not command universal support. Moreover, the recent demographic changes in Europe have added a new dimension to the problem. To date, relatively little attention has been paid to the choice of law implications of migration from non-Western States, in which religious or customary law governs the economic consequences of marriage and which typically have separate property systems which discriminate against women. The mass migration into Europe from such States over the past few years makes it imperative to consider the implications of the choice of law rules in relation to matrimonial property for migrants from non-Western States.Accordingly, in the light of these developments, there is a need to revisit critically the issues involved and the different approaches to choice of law in relation to matrimonial property in the light of modern choice of law theory. This article meets this need by analysing the extent to which the various approaches best promote central choice of law objectives. In addition, insights are gleaned from the experience of the Israeli legal system in relation to couples migrating from Islamic States. The conclusions drawn from this analysis, which are significantly different from those which informed the EU Regulation, will be of value to law and policymakers throughout the world, when facing the challenge of making decisions pertaining to choice of law in relation to matrimonial property in the twenty-first century.