Union Law Research Articles

Aspects regarding the sale of agricultural land located outside the built-up area boundary in Romania, by reference to the Romanian Constitution and the European Union Law

The aim of this study is to present and evaluate the possible impact of the most recent legislative amendments from Romania that include important regulations regarding the sale and purchase of agricultural land located outside the built-up area boundary. At the same time, our aim is to study the compliance of the adopted legal norms with the requirements of EU law in this field, with reference to the case-law of the European Court of Justice and of the Constitutional Court of Romania.

Notes on the transposition in Italy of the principle of ‘appropriate and proportionate remuneration’ with reference to the film and audiovisual sector

Article 18 of the Directive on Copyright in the Digital Single Market1 introduces a principle of ‘Fair remuneration in exploitation contracts of authors and performers’ within Title IV entitled ‘Measures to achieve a well-functioning marketplace for copyright’. As it is clear from recitals 72 and 75, the principle is based on the fact that authors and performers tend to be in the weaker contractual position, so as to require protection through rights harmonized under Union law. Before the enactment of the legislative decree no. 177/2021,2 which implemented the Directive in Italy, a discussion took place as to the exact meaning and effects of Article 18. According to a commentator, in particular, this provision could have been considered as merely establishing the principle (and intrinsic limitations) inspiring the subsequent provisions of the Directive. Therefore, the Italian legislator could have fulfilled its obligations without affirming a right to adequate and proportionate remuneration. The parties would remain free to agree as they wish on the remuneration due to the author or performer, leaving it to the right of information and the contract adjustment mechanism provided for in Article 20 of the Directive the correction of grossly disbalanced agreements.3

Respect for the Right of the Defence in the Romanian Criminal Process from the Perspective of European Union Law and Internal Criminal Procedural Law

Respect for the Right of the Defence in the Romanian Criminal Process from the Perspective of European Union Law and Internal Criminal Procedural Law

The political drivers of information exchange: Explaining interactions in the European Migration Network

ABSTRACT European administrative networks (EANs) are groups of national administrative organizations which are established to improve national-level implementation of European Union (EU) law. This paper addresses a key question concerning these networks: what drives interactions within them? To this end, the paper adds a dynamic political perspective to institutional hypotheses. It tests the resulting hypotheses using a most likely case, interactions in the European Migration Network (EMN) in the wake of the 2015–16 refugee crisis. Using social network analysis, it shows that two domestic political incentives are associated with interactions: the problem pressure experienced by member states following the 2015–16 refugee crisis and post-2015 declines in popular support for immigration. Our analysis also reveals that interactions occurred among member states with similarly high levels of government effectiveness. In sum, we show that EANs can provide significant added value for their members in politicized policy areas, although their utility may vary between network members.

Food safety and public health within the frame of the EU legislation

The purpose of this article is to examine some of the issues related to qualitative food safety within the framework of European Union legislation. The development of a multidimensional regulatory system at European level, which has necessarily included international sources, regulations and European Union laws, also relating to national and regional legislations, has rendered finding a balance between the legitimate interests of food producers and consumers problematic. In recent years, the ethical dimension of food has progressively developed, which has led to a greater attention to the way food is produced and consumed, while respecting health protection, food quality and European and international trade dynamics. On the consumer side, however, there has been a growing awareness of the possible risks linked to food and an attention to the issues of food safety. Such awareness is intensified by the use of certain technologies in the food sector. Consumers are increasingly looking to buy commercial products capable of minimizing damage to their health. Consumers consciousness has also influenced the industry, which has increasingly felt the need to pay greater attention to the entire production cycle, thus encouraging production carried out by following the correct methods of supply, processing, up to the final stages of packaging, storage, processing and distribution, in accordance with the “Good Agricultural Practices” (GAP). In conclusion, the important monitoring path of product traceability that has led to a significant increase in the commitment to EU legislative supervision, risk assessment and review of the substances used in food production.

Oportunidad legal y necesidad democrática de crear una Autoridad Administrativa Independiente de lucha contra la Corrupción y Protección del Denunciante

It is necessary to take advantage of the great opportunity offered by the necessary transposition of the Directive (EU) 2019/1937 of the Parliament and of the Council, of October 23, 2019, regarding the protection of people who report violations of European Union Law to incorporate into our institutional apparatus an Independent Administrative Authority for the Fight against Corruption and Whistleblower Protection that, among other functions, is entrusted with the centralised management of an external channel for complaints and that works as an institution for closing the security network of the administrative system for the prevention and fight against corruption and irregular practices, whether public agents participate in these actions on their own or in agreement with private agents. The present work, in its first part, analyses some of the resistances that are usually raised to oppose the constitution of an authority such as the one proposed and concludes the inconsistency of such opposition. In particular, it is justified that its institutional position and its legal function would not overlap or deprive the rest of the administrative and judicial institutions that are currently actively fighting corruption, but would strengthen their effectiveness and allow a coordinated function of a reticularly articulated system to act against this scourge in Spain. Likewise, the need for its creation is justified from an institutional (national and international), economic and democratic health point of view. In a second part, it addresses a description of what could be the paradigmatic configuration of this Independent Administrative Authority for the Fight against Corruption and Whistleblower Protection, both in terms of its institutional status, its functions and powers.  

European Union Law and Mitigation of Artificial Intelligence-Related Discrimination Risks in the Private Sector: With Special Focus on the Proposed Artificial Intelligence Act

Yapay zeka sistemlerini özel sektördeki karar alma süreçlerine dahil etmek, ayrımcılık yasağının uygulanmasını tehlikeye atabilir. Bu çalışmada, mezkûr tehdidi göstermek için istihdam, bankacılık, reklamcılık, fiyatlandırma ve sigorta gibi özel sektörün bu açıdan riskli alanları, gerçek yaşamdan alınan yapay zeka ile ilişkili ayrımcılık örnekleri ile birlikte incelenmektedir. Ardından, güncel AB ayrımcılık yasağı ve veri koruma düzenlemeleri mercek altına alınmakta ve söz konusu AB düzenlemelerinin özel sektörde yapay zekâ ile ilişkili ayrımcılıktan kaynaklanan risklerle mücadele etmek için gerekli araçlara sahip olmadığı tespit edilmektedir. Bu nedenle, özel sektörde, yapay zekâ ile ilişkili ayrımcılık risklerini yok etmeyi açıkça hedefleyen yeni AB düzenlemelerine acil gereksinim olduğu anlaşılmaktadır. Yapay Zekâ Tüzüğü taslağı, özel sektörde yapay zekâ ile ilişkili ayrımcılığa karşı mücadele için yeni araçlar sağlayabilir. Bu nedenle, bu çalışma, Yapay Zekâ Tüzüğü taslağını, yapay zekâ ile ilişkili ayrımcılık risklerine potansiyel etkisi açısından incelemektedir. Yapay Zekâ Tüzüğü taslağı tarafından benimsenen beşikten mezara yaklaşımı sayesinde, yüksek riskli yapay zekâ sistemlerinin sağlayıcıları ve kullanıcılarının çeşitli öncül ve ardıl yükümlülüklere uyması gerekmektedir. Bu çalışmada, Yapay Zekâ Tüzüğü taslağı tarafından getirilen bu yükümlülüklerin, yeni yasal araçlar sağlayarak yapay zekâ ile ilişkili ayrımcılığın azaltılmasına katkıda bulunabileceği tespit edilmiştir. Ancak bu araçlar, yapay zekâ ile ilişkili ayrımcılık riskleri karşısında yeterli değildir. Bu nedenle, özel sektördeki yapay zekâ ile ilişkili ayrımcılık risklerini azaltmak için bu alana özgü hukuki düzenlemelere duyulan yaşamsal gereksinimin varlığını hâlen devam ettirdiği kanaatine varılmıştır.

When does the European Commission Pursue Noncompliance?

Under what conditions will international compliance-monitoring institutions pursue violations of international law? The European Commission’s infringement procedure is a multi-step process that culminates at the Court of Justice of the European Union when a member state has allegedly violated European Union law. The Commission, however, does not have meaningful enforcement powers, and may potentially spend valuable time and resources on a case only for a member state to not comply with European Union law. To manage this opportunity cost of pursuing other violations of European Union law, I argue that the Commission will strategically delay advancing a case through the infringement procedure when it anticipates that the political conditions will be more favorable for compliance in the future. I provide evidence that the Commission delays infringement proceedings when it expects the election of a new government that will be more likely to comply than the incumbent government.

The Interaction Between Administrative and Judicial Review at the European Level: Notes on the Judgment of the General Court of 6 October 2021 in Joined Cases T-351/18 and T-584/18, Ukrselhosprom PCF LLC and Versobank AS v ECB

In many fields of EU administration, it has become common for secondary law to establish a pre-judicial appeal procedure that allows applicants to contest decisions administratively before initiating court litigation. Unlike many national systems, however, Union law does not contain a general and positively defined concept of administrative review. This forces secondary law legislators to construct such an edifice through the available administrative law toolkit, most importantly, the decision under Article 288 TFEU as the main instrument. In a recent case that arose in the context of the ECB's banking supervision activities in the Single Supervisory Mechanism, this has caused problems for the General Court to arrive at a pragmatically reasonable outcome in a doctrinally sound manner. The present case note discusses this judgment in the context of prior precedents from which it partially deviates. It also undertakes some conjecture as to the possible consequences of the ruling for the future and administrative appeal procedures beyond the Banking Union.

Правовое регулирование криминализации отмывания денежных средств, полученных преступным путем, в Европейском Союзе: современные тенденции

Countering the legalization (laundering) of proceeds from crime is one of the key priorities of the EU Security Union Strategy. Taking into account the development of European integration and the emergence of new criminal threats, there has been an intensive reform of the regulatory framework of the European Union in the area of preventing and combating money laundering and terrorist financing. The criminalization of money laundering is considered to be a central component of the anti-money laundering regime. The article analyzes the stages of development of the legal framework for combating the legalization (laundering) of money in the European Union. There are considered the modern trends of criminal law regulation in this area. The features of the criminalization of money laundering in the European Union law are revealed.

Damages claims as a legal remedy in disputes arising from procurement procedures under EU law

European Union law has largely harmonized the legislation of the Member States on public procurement. At the same time, the provisions of the EU law on liability to procurement participants are less detailed and specific than other provisions of EU procurement law. Some clarifications can be found in the Court of justice’s jurisprudence. EU case law establishes legal tests to assess the possibility of finding the member state accountable for violation of the provisions of Union legal acts, including for violation of procurement legislation, and also formulates a number of general requirements for national legislation in terms of recovery of losses caused by violation of the rights of procurement participants. In particular, it is not allowed to make the possibility of recovering losses dependent on the presence of fault in the actions of the customer, the need to vest the contractor the right to seek compensation not only for actual loss but also for loss of profit plus interest, etc. However, the scope of EU procurement law is limited only to issues of establishing grounds of liability, but does not cover the procedural aspects applicable to claims and actions filed by economic operators, which are subject to national legal norms.

Fraud detection in motor insurance: privacy and data protection concerns under EU Law

Abstract This article focuses on the privacy and data protection concerns under European Union (EU) law with respect to the detection of insurance fraud in motor insurance. Insurance fraud—in the context of this article—encompasses all claims where an insured intends to deceive an insurer, aiming to direct payment towards a person who is not the intended recipient, or to procure payment to which the insured is not entitled. More and more frequently, insurers rely on advanced technologies (such as network analysis) to detect fraudulent claims. Evidently, these techniques need to operate within the boundaries of the law governing the protection of personal data and the right to privacy. The EU General Data Protection Regulation imposes certain restrictions on the processing of personal data. This article analyses the legal restrictions Articles 6 and 22 General Data Protection Regulation impose on insurers with respect to the processing of personal data for the purpose of fraud detection. Moreover, insurers work together to identify known fraudsters by sharing access to a database that contains registered cases of fraud (blacklists). This article analyses the legality of such blacklists in light of the EU law on data protection.

Scenarios of the Union State of Belarus and Russia Evolution: values and pragmatics

Introduction. The Union State of Russia and Belarus, as well as its participating countries, are once again in their history facing a choice of further development path. Multiple challenges and threats affect the formulation and interpretation of many issues, including those related to axiological parameters, determining the variability of their solutions and increasing the need to anticipate, prevent or minimize the negative consequences of existing/probable risk situations. The purpose of this study is to identify possible options for the evolution of the Union State of Belarus and Russia as an integration format from the perspective of its geopolitical significance and socio-philosophical meaning in a dynamically changing internal and external environment. Methods. The study was based on a systematic approach that allowed us to consider the Union State of Belarus and Russia as a complex integration system. The methods of traditional document study, comparative analysis, political diagnostics, scenario analysis were used. Results and Discussion. The key parameters of the complexity of the Union State as an integration association are determined, the scenarios of its evolution in the positive and negative spectrum are substantiated. The generalized trends for them are the deepening of integration – with a wide coverage of the spheres and sectors of integration and the deactualization of bilateral integration with the loss of the creativity of the idea and the effectiveness of integration practice, the narrowing of the overall integration field, respectively. Conclusion. The most plausible scenarios of the first group include the option of “Belarusian-Russian Confederation”, the least acceptable – “Russian-Belarusian Federation” and “Slavic integration”, although their axiological component is the most obvious. Among the scenarios of the second group are “Back to the Future” and “Marginalization of the Union State”, as well as a catastrophic option. Systemic vulnerabilities that enhance the prospects for the implementation of negative scenarios are shown. The ill-considered nature of the general strategy, ideology and model of union construction, the lack of formation of union law, the rudimentary nature of supranationality in the management system of the Union State, the imbalance of integration levers, the limited tools of integration, the elitism of political communications, the insufficiency of socio-political support for union construction are emphasized. Conclusions are drawn about the need to ensure a reasonable balance between values and pragmatics in the Russian-Belarusian integration, the importance of constructive and active work in the internal dimension, a joint response to external destructive influence.

«ПАРАД СУВЕРЕНИТЕТОВ» В СССР И ЕГО ПРОЯВЛЕНИЕ В ЦЕНТРАЛЬНОЙ СИБИРИ В 1988–1992 ГОДАХ

The period of "perestroika" (1985-1991) had an impact on all spheres of human life. Reformatory transformations affected all regions of the USSR. One of the directions of political modernization in this period is the change in the form of the territorial structure of the state. In the late 1980s, the problem of federalism aggravated, which led to a process that went down in history as a “parade of sovereignties” — a conflict between republican and union legislation associated with declaring the priority of republican laws over union laws. This process affected Central Siberia, in particular the territory of the Khakass Autonomous Region, which has been part of the Krasnoyarsk Territory since 1934. The transformation of the administrative-territorial status of the KhAO can be divided into four stages: the end of 1987 — January 1988, June — July 1988, February — December 1989, 1990 — January 1992.

Pretrial risk assessment instruments in the US criminal justice system—what lessons can be learned for the European Union

Abstract This article explores the possibilities of using artificial intelligence (AI) in the European judicial area with a special emphasis on risk assessment instruments and the justification of their use in determining the likelihood that a defendant at large will seek to thwart the goal of criminal proceedings. In this regard, experiences in the application of various risk assessment instruments in US judicial practice are first analysed. Then the European normative framework established at the level of the Council of Europe and European Union (EU) law is considered with special emphasis on the ‘Proposal for a Regulation of the European Parliament and of the Council laying down harmonized rules on artificial intelligence’ as a key normative act that will determine the long-term preconditions for the application of the risk assessment instruments in the criminal proceedings of EU Member States. Finally, an attempt is made to give answers to some specific questions that arose from the implementation of AI in EU criminal justice systems taking into account the presumption of innocence, the right to an objective and impartial judge and the principle of proportionality.

Conceptualization of legal terminology: the need for a transparent terminological approach

The article is devoted to the study of the peculiarities of the conceptualization of legal terminology. It has been emphasized that legal concepts are important for the functioning of legal institutions. It has been noted that most of the legal terms aimed at unambiguous and consistent interpretation of legal texts are established in various legal documents. The boundaries of most subject areas are unclear, and their use in different areas of law may lead to the application of different criteria to establish the essence of the term.Attention is drawn to the fact that terminological work traditionally focuses on the organization of concepts and lexical items in a specialized field, in which each term is one concept, and each concept is denoted by one term. The definition of a particular area of law and terms related to that area includes the establishment of both terminological and conceptual boundaries, which allows clear and unambiguous use of the relevant categories. A clear approach to understanding the term contributes to the quality of legislation that affects the stability of state life.It is emphasized that ambiguous terms are used in modern legislation. Given the foreign experience in the context of European Union law, the timing of interdisciplinary concepts seems more appropriate due to the complex relationship between the national law of the Member States and the law of the European Union. Emphasis is placed on interdisciplinary concepts, i.e. concepts or institutions that arise in more than one legal field. More specifically, such concepts may apply to both the national legal system and the law of the European Union. Although the same term is used to denote an interdisciplinary concept, its conceptualization may differ in various areas of law and different legal systems, which may adversely affect the case because there will be no common approach to understanding the term.It is noted that the study of legal terminology should focus on the elements of the legal solution of the real problem.

Harmonization and Deharmonization of Excise Duty in the European Union as Contemporary Challenges of the EU Tax Law

In order to ensure the effective functioning of the EU internal market, in particular the exercise of its freedoms, it is necessary to harmonize indirect taxes at the level of European Union law. This harmonization also covers excise duty. At the same time, when analyzing the harmonization of excise duty in the EU Member States, certain gradually emerging differences can be noticed at the level of national legislation. As a consequence, it should be considered whether they are the beginning of deharmonization processes and strengthening the tax sovereignty of EU Member States, which may become a major challenge for the tax law of the European Union overtime. The article discusses the idea of indirect tax harmonization at the European Union level, indicates the specificity of the harmonization of excise duty, presents contemporary deharmonization tendencies of excise duty in European Union law, as well as presents contemporary challenges related to the issue of excise duty in European Union law. The analysis of this issue was based on the following research methods characteristic for legal sciences: theoretical-legal, formal-dogmatic, literature criticism and comparative-legal method. Using these methods, it was concluded that there are contemporary deharmonization tendencies in the field of excise tax which are connected with legal, political, economic, financial, social, cultural and ecological conditions. Moreover, it has been noted that although the de-harmonization tendency is not yet universal, it is slowly affecting the functioning of the common internal market in the European Union. The problem of excise duty de-harmonization noticed by the authors of this article is a challenge for common economic and legal turnover in the European Union. The aim of the article is to analyze the harmonization and deharmonization trends in excise duty from the perspective of the European Union law, as well as to identify challenges for the EU legislation in this area.

The application of African Union (human rights) law in Uganda: trends and prospects from a comparative review

ABSTRACT: The body of public international law that may be known as ‘African Union (AU) law’, that is to say, the treaties, resolutions, constitutive documents, jurisprudence and practices of the AU, now constitute a respectable corpus of legal material. However, not only is this body of law under-theorised and under-studied by general public international law scholars, the nature of its reception and application within the domestic legal orders of AU member states is even more neglected. This article seeks to address the dearth of scholarship in this regard by critically analysing the judicial reference to AU law in one African country – Uganda – having particular regard to the reception of human rights related AU law.
 
 TITRE ET RÉSUMÉ EN FRANCAIS: L’application du droit (des droits de l’homme) de l’Union africaine en Ouganda: une analyse comparée des tendances et perspectives
 RÉSUMÉ: Le corpus du droit international public pouvant être dénommé ‘droit de l’Union africaine’, composé des traités, des résolutions, des documents statutaires, de la jurisprudence et des pratiques de l’UA constituent désormais un corpus respectable de textes juridiques. Cependant, non seulement ces normes juridiques sont sousétudiées et sous-théorisées par les spécialistes du droit international public général mais encore la nature de leur incorporation et de leur application dans l’ordre juridique internes des États membres de l’Union africaine est encore plus négligée. Cet article conduit une analyse critique de la référence à ces normes par les juridictions de un pays africain – l’Ouganda – avec un accent particulier sur la réception et l’intégration des normes de l’Union africaine en matière des droits de l’homme.

European public law after empires

AbstractThis article seeks to remedy a fundamental flaw in the debate about European integration and European Union (EU) law: the almost complete absence of a reckoning with the legacy of empire and imperialism. The article shows that the significance of EU law can be understood only against the background of the historical transformation of the European public law order with the decline of the European empires. European integration is an integral part of a new European public law order that finally replaced the public law order of the European empires – Droit Public de l’Europe or Jus Publicum Europaeum – in which the European states held a privileged place as the only ‘civilised’, and hence, sovereign states in the world. The post-World War II European public law order entailed a new vision for domestic public law, but also constituted intra-European relations anew, and established a new set of external relations between Europe and its former colonies. With the shift from ‘European’ international law to ‘universal’ international law in the twentieth century, European integration helped carve out a space for ‘Europe’ in a world where Europe was no longer the centre of gravity.

A way of critique: What can EU law scholars learn from critical theory?

AbstractThis article detects a persistent imbalance between the zest for critical research and the thinness of critical methodology in the study of European Union (EU) law. The question that drives this investigation is: What can critique contribute to EU legal studies? The article draws on the methodological wealth of critical social theory to explicate how the critique of EU law could further evolve and why it matters. This analysis posits that the lack of adequate methodological engagement leaves EU law scholarship to drift between the problematic idea of unmasking critique, on the one hand, and that of supposedly non-normative critique, on the other hand. The article makes a case for a more dialectical method of critique to clarify how the critique of EU law is always preceded by a choice between competing rationalisations of society. These findings highlight that social theory should be of continuous interest to EU law scholars and that a socio-legal critique of EU law is not reducible to empirical research alone.