Union Law Research Articles

The EU and law in context: the context

AbstractIt is widely acknowledged that the contextual study of European Community law, later European Union law, has contributed to a richer understanding of EC/EU law. This review proposes a contextual reconstruction and analysis of EC/EU law in context, or what is the same, it considers the institutions, milieus and debates which fostered the analysis and assessment of EC and EU law as ‘an intricate web of politics, economics and law’, at the same time that facilitated the development of critical self-consciousness about the underlying assumptions that scholars (including contextual scholars) bring to their study of law. This is done by engaging with the work of Francis Snyder, and in particular, with his groundbreaking collection “New Directions in European Community law”.

EU law, down to earth

AbstractThe emergence and consolidation of European Community law (later European Union law) was rendered possible by key legal and political actors drawing a map of supranational law with the key concepts of direct effect, primacy and uniformity. The underlying assumption was that the actual territory of the law, the law on the ground, would come to fit into the drawn map. However, the last two decades have seen trust on the transformative power of the map drawn through such concepts decline, not least due to related developments. First, what looked like residual points of resistance have become polarized sources of contention over the scope and meaning of EU law; (2) sheer indifference towards EU law has emerged as a relevant attitude, partially replacing acceptance or opposition. Both developments have not led not only to a crisis of European law, but also to an existential crisis of the very actors (the “cartographers”) in charge of drawing the map of European law.

Jurisdiction over Cross-Border Insolvency Proceedings

The analysis of the opening of insolvency proceedings under European Union law involves the identification of incidental rules applicable to the insolvency proceedings with an element of foreignness when it concerns the Member States. In order to ensure a comprehensive understanding of cross-border insolvency proceedings, it is necessary to analyze the relevant rules in the field of private international law, when the international character of the insolvency legal relationship is reflected in relation to another third country of the European Union.

Legal Issues within EU and Member States concerning Bilateral Investments Treaties

The article’s aim is to analyse the legal issues concerning the compatibility with the EU law of Bilateral Investments Treaties concluded between Member States themselves (intra-EU BITs), on the one hand, and Member State and Third State on the other hand (extra-EU BITs). The questions arise as a consequence of the shift of competence for Foreign Direct Investments from the Member States to the EU, so it is approached as a problem of compatibility between sources of law that belong to different legal systems: international law and European Union law. The author’s conclusion is that the EU has, despite several difficulties, succeeded in preserving the autonomy and the primacy of its legal order.

Civil and Procedural Instruments of the Consumer Protection on the Retail Electricity Market—Original Polish Model

In the article, the authors present the specificity of the Polish retail electricity market, shaped to a considerable extent by the provisions of European Union law. The main feature of this market is granting special legal protection to individual final customers (referred to by the legislator as “household customers”) who have obtained the status of consumers in the Polish legal system. The essence of the study is not only to analyze the subjective and quantitative aspects of this market, but, above all, to analyze the civil law measures protecting these electricity consumers. These aspects constitute a unique legal structure, which is a continuation of the administrative proceedings before the President of the Energy Regulatory Office (regulatory entity). The Court of Competition and Consumer Protection (hereinafter referred to as the Court of Protection) is a specialized civil court that hears appeals against decisions of the regulatory entity, the subjects of which are actions or omissions of professional participants of the retail electricity market, which infringe the collective interests of consumers (“household customers”) as individual final customer on this market.

Soil Governance in current European Union Law and in the European Green Deal

The chapter deals with the system of soil governance in the European Union and focuses on legal instruments for the protection and sustainable use of soil. In addition, other aspects of soil governance, like the policies, strategies, and the processes of decision-making, are addressed. Reference points for this assessment are the identified soil threats in the EU and the need for soil protection, based on the results of scientific studies, especially of the Intergovernmental Platform on Climate Change (IPCC 2019) and the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IP-BES 2018). Currently, there is no comprehensive directive to address soil threats and soil-related issues in a coherent way in the European Union, although several legal instruments refer to certain soil threats, mainly in the field of soil pollution. The European Union has the competence for soil legislation and, on the basis of the principle of subsidiarity, would be legally able to enact it. Therefore, the current mosaic of approaches can be overcome and replaced by an overall harmonised and comprehensive EU soil protection framework. This is all the more true as the United Nations' 2030 Agenda has set in motion a process that will have far-reaching implications for connected thinking: Sustainable Development Goal 15 and its target 15.3 stipulate that land degradation neutrality should be achieved by 2030, although this is not binding. This requires more than the envisaged revision of the 2006 Thematic Strategy for Soil Protection. In particular, possible legal instruments to protect soils from chemical, biological and physical threats need to be reviewed and further developed. The chapter also explains why elements of the European Green Deal are once again falling short of the need to protect Europe's soils, and, for this purpose, analyzes the EU Climate Law, the Biodiversity Strategy, the Zero Pollution Strategy and the Farm to Fork Strategy in particular. It concludes that the time is ripe for the EU to finally become aware of the importance of soils and to act responsibly and unlike 2007, when the former Soil Protection Framework Directive failed in the Environmental Council. Only through joint efforts and effective action can Member States prevent soils from deteriorating further, becoming unusable, and the loss of soil quality and quantity leading to damage to people and the environment.

Procedural Law as an Exercise in Reconciling Public Interest and Individual Rights: The Example of Res Judicata

Res judicata is a quasi-universal principle, present in every modern European legal system. Although it is understood in very different ways in Civil Law and Common Law traditions, it plays a remarkably similar role in both. This is notably due to the fact that res judicata is based on overarching aims present in all procedural legal systems: the public interest in ensuring the finality of litigation and the authority of courts, and the protection of litigants’ rights. It is necessary to take into account both objectives in order to understand the doctrine of res judicata. These aims sometimes conflict and each legal system attempts to reconcile them within its specific rules concerning res judicata. A comparative analysis based on English, French, Italian, Spanish and European Union law shows how the choices made in each system express a balancing act between them.

Regulating algorithms at work: Lessons for a ‘European approach to artificial intelligence’

This article scrutinises the potential of the existing regulatory apparatus in Union law to tackle the social, technical, and legal challenges inherent in deploying automated systems in high-risk settings such as the workplace, with a view to setting out key lessons for the proposed EU Artificial Intelligence Act. Surveying data protection and discrimination rules as well as the social acquis, it highlights key areas for further development, from coherence between different regulatory regimes to the role of social partnership in shaping key standards and monitoring their implementation.

A Review Paper on Natural and Synthetic Refrigerants

The Montreal Protocol (1987) prohibited halogenated hydrocarbons with a high ozone depletion potential (ODP) because of their harmful effects on the ozone layer, which protects the earth from UV radiation. The greenhouse gases (GHG) utilized in contemporary refrigeration, air conditioning, and heat-pumping systems are subject to a time-limited permit term under the Kyoto Protocol (1997). The European Union law (2014) and the Paris Accord (2016) place a significant emphasis on the phase-out of hazardous synthetic refrigerants in order to prevent ozone depletion and reverse climate change impacts. The usage of natural refrigerants results in no net increase in greenhouse gas (GHG) emissions in the environment. Extensive research is being conducted globally to adapt and alter current cooling and heating systems utilizing natural refrigerants. This study uses the Refrigerant Qualitative Parametric (RQP) quantification model to examine timeworn, current, and next-generation refrigerants in order to aid the refrigerant selection process. It is calculated using the arithmetic sums of real refrigerant parametric values adjusted to corresponding ideal values. This model may aid in the selection of alternative refrigerants for temporary replacement of CFCs with HCFCs or HFCs, and eventual replacement of HCFCs or HFCs with low GWP and ODP synthetic and natural refrigerants.

The Development of Digital Economy and the Future of the Trade Union Law of the People's Republic of China

On December 24, 2021, the 32nd Conference of the Standing Committee of the 13th National People's Congress voted to adopt the Decision of the Standing Committee of the National People's Congress on Amending the Trade Union Law of the People's Republic of China, and the amended Trade Union Law has come into effect since January 1, 2022. This is the third amendment to the Trade Union Law since its promulgation in 1992. One of the highlights of this amendment is that it has adapted to the changes brought by the rapid development of China's digital economy in recent years in terms of enterprise organization, structure of the workforce, labor relations and employment patterns, recognizing the right of part-time employment groups to join and organize trade unions in this economic situation. This amendment is of great historical significance to the protection of workers' rights and interests in the digital economy, but the relevant legal content still needs to be refined and perfected, and the supporting system also needs to be improved. As the impact of the new generation of digital technology on social development gradually increases and the production mode, lifestyle and business model evolve at an accelerated pace, it is necessary for us to further consider the future direction and improvement path of the Trade Union Law, explore new ways for trade unions to play their rights protection functions in the context of digital economy, and promote the law to better meet the needs of economic and social development.

Transformation Of The EU Law Related To The Etabilishment Of National Law In The England In The Law Perspective Of International Organizations

The economic upheaval of a country is one of the reasons for the formation of an international organization, namely the European Union. The goal of the European Union itself is to promote through the community the harmonious, sustainable development of economic activity, steady improvement, rapid improvement of living standards, quality of life and closer relations between member states. This research has a problem formulation consisting of the transformation of EU law into law in the member states of the European Union, the transformation of EU law in the UK, and a challenge as a legal effort related to the transformation of EU law in the UK according to International Organization Law. This study uses a normative juridical research method. The results of the research on the transformation of European Union Law into National Law of member countries, namely by establishing Regulations, Directives, Decisions that must be applied in member countries. EU law has the supremacy of overriding the National Laws of member states. The transformation of European Union Law in the UK began with the agreement of the European Communities Act 1972 which was the UK's ratification of EU Law. Challenge as a legal remedy related to the transformation of European Union Law in the UK is permitted under Articles 230 and 232 of the European Union Agreement, namely by submitting a complaint to the national court in accordance with the time specified to carry out the challenge, this challenge action can end with an amendment. The conclusion of the research is the transformation of European Union Law in member countries in the form of Regulations, Directives, and Decisions. The European Union Law Transformation in the UK is regulated through the European Communities Act 1972. Challenge as a legal remedy related to the transformation of EU Law in the UK is allowed in order to create a good implementation. Suggestions related to research is that it is better to ensure that the transformation of European Union Law has been implemented as intended. The transformation of EU Law in the UK should ensure that UK National Law can be waived in the event of a conflict with EU Law which is immediately effective. Conduct in-depth negotiations, ask for opinions from representatives of each member country so that unity is achieved to facilitate the implementation of European Union Law in member countries and minimize challenges to European Union Law.

The German transposition of Article 17 of the Copyright DSM Directive and its ‘presumed legal use’: incompatible with EU law or a model for balancing fundamental rights in the age of upload filters?

ABSTRACT • With its Copyright Service Provider Act, the German legislator implemented its final version of Article 17 CDSMD into national law as of 1 August 2021. After the compatibility with European Union (EU) law was rightly doubted in previous drafts, the situation in the final implementation is now different. With the introduction of ‘presumed legal use’, a mechanism was found that is to locate somewhere between a presumption and an exception or limitation. • The classification is of utmost practical relevance because this construction is found in neither Article 17 CDSMD nor Article 5 InfoSoc Directive.1Therefore, if the mechanism of ‘presumed legal use’ is considered as an exception or limitation, compatibility with EU law can hardly be justified. This article explains the German regulatory mechanism and the considerations behind it and presents arguments for and against compatibility with European law. • The thesis is that the mechanism in its current form is unlikely to meet the requirements under EU law. At the same time, there are good reasons for such an implementation, as it meets the challenges for a balance between fundamental rights probably in the best possible way under the current EU legislative framework.

Product Liability under Turkish and European Union Law

12.03.2021'de yürürlüğe giren 7223 sayılı Ürün Güvenliği ve Teknik Düzenlemeler Kanunu’nun 6. maddesinde ürün sorumluluğuna yer verilmiştir. Kanun koyucu bu hükümle, 85/374/AET Ürün Sorumluluğu Yönergesi’nde öngörülen ürün sorumluluğu rejimini Türk hukukuna aktarmayı amaçlamıştır. Ancak ürün sorumluluğunun bu Kanunda düzenlenmesi isabetsiz olmuştur. Zira Kanun, adı, amacı, kapsamı ve çoğunluk hükümleri itibariyle ürün güvenliğine ilişkindir. Bu isabetsizliğin sonucu olarak, terim ve tanımlar başta olmak üzere, 7223 sayılı Kanun pek çok yönden sorun arz etmektedir. Bu makalede, Kanunda düzenlenen ürün sorumluluğu Yönerge ile karşılaştırmalı olarak incelenip gerekli görülen yerlerde çözüm önerilerinde bulunulacaktır.

География горнозаводской промышленности в законодательстве России XIX в.

The article attempts to consider changes of notions about the geography of the mining industry in the Russian Empire’s legislation in the 19th century. It reveals that the legislator’s ideas about the geography of the mining industry in the XIX century went through three stages: 1) the “stage of divisions” (the beginning of the 19th century); 2) the “stage of grades” (1830s — 50s); 3) the “stage of mountain regions” (the end of the 19th century), which split into two sub-stages – the creation of mountain districts for the supervision of private industry and the formation of mountain regions. With each subsequent stage, it covered more and more space, more and more segments of the mining and metallurgical industry fell within the scope of the “Mining statute”. All territorial formations were increasingly unified in their structure. At the first stage, the “divisions” did not have clearly defined borders (with the exception of the Urals). At the second stage, the localization of the “grades” was recorded quite clearly. At the third stage, a single two-level structure of territorial formations was introduced, consisting of mountain regions and mountain districts. The mountainous regions covered almost the entire space of the Russian Empire. It is concluded that these changes in the mining industry map can be well explained by modernization processes (industrialization, unification of law, unification and bureaucratization of management). It is noted that the creation of the mountain regions system coincided with the rapid growth of the mining industry in the 1890s.

INTEGRITY IN LAW ENFORCEMENT BODIES: CONCEPTS AND SUBJECTS OF SECURITY

INTEGRITY IN LAW ENFORCEMENT BODIES: CONCEPTS AND SUBJECTS OF SECURITY

Identifying and Describing Ecologically or Biologically Significant Marine Areas (EBSAs): A Key Tool for the Protection of Ocean Biodiversity in Dispute

The distribution of legal authority to protect biodiversity in marine areas beyond national jurisdiction (ABNJ) between the Convention on Biological Diversity (CBD) and the UN Law of the Sea Convention (LOSC) has been a contentious issue. In practice, main responsibility has been allocated to LOSC, under which a new implementing agreement on conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (BBNJ) is currently being negotiated. CBD was allocated responsibility for providing scientific information and advice on marine biodiversity, which has resulted in the identification and description of 321 Ecologically or Biologically Significant Marine Areas (EBSAs) worldwide, within and beyond national jurisdiction. These could provide important scientific backing for a coming BBNJ instrument under LOSC, especially as regards the designation of marine protected areas and the conduct of environmental impact assessments in ABNJ. However, the process of modifying EBSAs and identifying new ones has recently been challenged by the CBD Conference of the Parties, harking back to previous disputes over the legal mandate and thereby threatening the entire mechanism that has been established. In the context of international environmental law and law of the sea, this article discusses the potential importance of EBSAs for the expected BBNJ instrument, using the Central Arctic Ocean EBSA as an example.

Zaštita divljih životinja i biljaka u međunarodnom i mađarskom pravu

The subjects of this analysis are normative acts and their practical applications in the protection of wild flora and fauna, that is, international and Hungarian regulations on the protection of nature. Naturally, the laws on protecting the environment are much wider in scope than the subject matter of this article, as they include the protection of the elements that constitute the environment as well as sanctions regarding behaviours related to waste disposal. In describing the regulations that protect the environment, we have primarily focused on analysing the criminal law situation. Then, we present the regulatory solutions of the European Union and international law in detail, with an accompanying analysis of the most important international organizations. The final part of this paper is dedicated to a description of the domestic organizations charged with processing criminal offences against the environment.

The origin and development of the European Union sports policy and law.

The presented work is devoted to highlighting the processes of evolution of the EU sports law and policy, identifying facts and events that have contributed to the development of communitarian regulation in this area and establishing trends and directions significant for Ukraine in the European integration aspect. Integration processes, first purely economic and then increasingly multidirectional, could not but affect this vital sphere of social life on the European continent and internationally. Sport is an essential element of the self-realization of a human personality and a sphere of economic activity. It is also a form of international communication, cross-cultural communication, the assertion of authority, and a positive image of countries. Also, sports can be an instrument of political and diplomatic influence or even a means of responding to violations of international law and order. The evolution of EU sports policy and law has been a difficult and long way in the general context of European integration processes. Initially, the sport was not covered by Community law and the spheres of competence of the Communities. However, since the 60s of the last century, the foundations of the European sports model began to form. Implementing the Council of Europe’s standards in the Member States’ practice was essential in forming this model. The European sports model implies, on the one hand, the unity of values and sports traditions of Europe. On the other hand, it is based on considering the national characteristics of European countries, pluralism, and diversity of the organization of sports relations and activities of non-governmental sports organizations. To the main features of the European sports model, which have developed historically and are preserved to this day, the author refers voluntary participation in sports competitions, non-discrimination, democracy, solidarity, compliance with the rules of “fair play,” good governance, and prevention of corruption and abuse. The article characterizes the role of the Court of Justice of the European Union (CJEU) in the creation of the EU acquis in the field of sport. CJEU developed the legal criteria system for extending communitarian rules and principles to the economic aspects of sports activities, including regulating relations with non-state actors such as national Olympic committees, sports federations, etc. Relevant CJEU decisions are analyzed in the study, approaches to the application of EU competition rules in sports, as well as to labor relations, freedom of movement of workers, and the provision of services, are revealed. Further integration and reform of the EU under the provisions of the Lisbon Treaty led to the emergence of a sector of the EU policy in the field of sports and several regulations and organizational measures aimed at realization of this policy. Implementation of the relevant standards in the national legislation, introduction of the best practices of governance in the field of sports in the state policy and activities of non-governmental sports organizations are important components of the implementation of Ukraine’s European integration aspirations, fulfillment of obligations under the Association Agreement and prospectively – the criteria for the EU membership.

Compartmentalised data protection in South Africa: The right to privacy in the Protection of Personal Information Act

In European Union (‘EU’) law, the entrenched right to data protection is an independent fundamental right. EU case law has gradually disconnected the right to data protection from the right to a private life. South Africa’s first exclusive data protection legislation, the Protection of Personal Information Act 4 of 2013 (‘POPIA’), is redolent of EU data protection legislation. However, the stated purpose of the POPIA is to give effect to the right to privacy. This article examines whether the laws of data protection can be wholly encapsulated within s 14 of the Constitution. To this end, this article considers two main conceptions of privacy in our law. The first is Neethling’s informational privacy and the reasonable expectation of privacy. The second is Rautenbach’s theory of informational control over personal matters in relation to other rights. On either approach, I argue that the substantive provisions of the POPIA are irreducible to privacy protection alone. Ultimately, framing the POPIA exclusively within the domain of privacy will either (i) unduly restrict legislative interpretation; or (ii) the true meaning of privacy will be diluted, leading to legal uncertainty. To avoid this, I suggest distinguishing between the value of privacy in the POPIA and the actual loss of privacy.

Novela Zakona o zabrani diskriminacije - korak napred?

The amendment to the Law on Prohibition of Discrimination ("Official Gazette of RS" No. 52/21) amended and supplemented almost half of the provisions of the general anti-discrimination law of Serbia, in order to harmonize with European Union and domestic laws. This paper examines the legal justification and expediency of this intervention of the legislator and assesses the extent to which the accepted novelties have improved protection against discrimination. The results of the research indicate positive prospects, mainly due to the specifying of provisions, the expansion of the scope of antidiscrimination law and the authority of the Commissioner for the protection of equality, the clarification of the concepts of discrimination and affirmative action, the tightening of penal policy, and the recognition of statistical records as evidence. However, the realisation of these positive effects seems dubious, because the opportunity to concretize concepts of the binding anti-discrimination law of the Council of Europe and the Constitution of Serbia was missed.