Union Law Research Articles

The right to effective access to justice in the European Union

The article will be devoted to investigation of the essence of access to justice as the general legal concept through its dynamic nature in Europe. It will analyze the European Union (EU) law and the case-law of the European Court of Human Rights (ECtHR) and Court of Justice of the EU (CJEU) to determine access to justice as the principle of access to court, that follows from the concept of justice, which is an integral part of the right to a fair trial and the rule of law. Key issues, special rights as component parts of the access to justice will be described. The study also aims to identify and understand the issues affecting effective access to justice raised by the EU citizens and residents. The recommendation to consider widening the rules on legal standing before the CJEU, ensuring changes in member state’s legislation required to avoid repetitive violations. The scope of this research is defined on the basis of the theory and understanding of the concept of the effectiveness of access to justice as developed in the literature, legislation and case law at the EU level. It looks at a large range of factors, including legal and procedural issues as well as practical, social, historical and political factors that influence the access to justice in the EU. In the article, the authors concluded that the concept of effective access to justice includes such principles as ensuring respect for community law, equal treatment, effectiveness, state liability for violations of EU law, access to national and supranational courts (the Francovich rule), where citizens are active subjects of protection under the EU legal order.

Excessive Pharmaceutical Pricing and Repercussions on Paediatric Health Services

Context: Paediatric pharmaceutics have a significant share in expensive drugs. Recent years have seen significant calls for intervention against high prices for pharmaceutical products. The prohibition of prices that are excessive as a form of abuse of dominance is considered as Competition law violation in the European Union Law and national legal orders of its Member States. Majority of the Organization for Economic Cooperation and Development (OECD) member countries have similar prohibitions in their respective Competition laws with important exemption of United States (US) Antirust Law, although there is some indication of change in US exactly in the area of pharmaceutical sector. Regulation of excessive prices also exists in Competition laws of all BRICS (Brazil, Russian Federation, India, China, and South Africa) countries. The problem of excessive prices in pharmaceutics is one of the emerging themes in Competition law literature and case law development. This is the area where intellectual property rights, usually patent protection, collide with competition rules. Costs of research and development for such pharmaceutics are often very high emphasizing the need for balance between colliding legitimate interests: access to health and research development. Aim: To present regulatory and case law development of application of excessive prices as form of abuse of dominance in pharmaceutical sector with emphasis on paediatric health services. Data source: OECD, PubMed, Google Scholar, Scopus. Conclusion: Balance between competition rules on excessive prices as form of abuse of dominance and intellectual property rights in the area of expensive paediatric pharmaceutics can be regarded as suboptimal. Thus, there is a need for further regulatory development and application of rules on excessive prices in that field.

The Triumph of Soft Law in the Financial Sector: Can Non-binding Law Have Binding Domestic Legal Effects?

Examining the seemingly simple question of whether guidelines in the financial sector are mandatory reveals a highly complex landscape for supervision of the financial sector across the European Union, where international and national financial law enter collision and the participants come to the table with differing mandates/expectations. The article addresses the results, with focus on banking regulation, wherein the European Banking Authority and, in Estonia, the Financial Supervision and Resolution Authority are among the main guideline-issuers. The balance achieved is critical because the fines that the supervisory and resolution authorities can impose on banks for non-compliance with mandatory rules can reach 10% of these entities’ total annual net turnover from the preceding business year. An effort to consider all of the relevant factors for understanding which side of the mandatory/advisory line the guidelines stand on, the article constitutes an attempt to initiate vital discussion of the environment created in the financial sector for soft law (i.e., guidelines), which may under certain circumstances take on a larger role than that soft law’s legal nature allows.

The Effect of European Union Law on the Criminal and Quasi-Criminal Liability of Legal Persons in Estonia

The punitive competence of the European Union encompasses both criminal law and, in the form of administrative sanctions, quasi-criminal law. Now undergoing vast changes amid rapid development, the latter field of Union legislation is anything but systematic. The sporadic evolution of EU punitive law recently led to the European Court of Justice judgement in the case Deutsche Wohnen, wherein the substantive provisions for liability of legal persons in Germany were found to be in contradiction with European Union law. The article gives an overview of the European Union’s legislation on criminal and quasi-criminal liability of legal persons, presents reflections on the Estonian experience, and articulates conclusions from the Deutsche Wohnen case.

Time of Signing: Legal Requirements and Technical Options for Hand-written and Electronic Signatures

The article examines the legal and technical aspects of determining the time of signing for both hand-written and electronic signatures. Of particular relevance in light of the widespread utilisation of electronic signatures in Estonia, involving both government-issued and private-sector e-signatures, it explores how signatures are linked to the time of transactions and whether the time of signing affects the validity of signatures under Estonian and European Union law. The paper discusses the general principle of freedom of form in transactions, highlighting the formal requirements imposed by law for certain transactions and wills, with special focus on comparing the traditional analogue world with the digital environment. Additionally, a review of recent amendments to the eIDAS Regulation examines their impact on the union’s electronic-signature ecosystem. Discussion addresses technical challenges also, with specific regard to linking a signature to the time of the transaction and the legal implications of timestamping in the domain of electronic signatures. For broader context, the insight is informed by comparison with Norway, another member of the European Economic Area. The research reported upon contributes to awareness of the importance of understanding both the legislative framework and technical practices involved in identifying the time of signing for ensuring the legal validity and reliability of electronic signatures.

Environmental legislation analysis improvement approach of global marine plastic pollution from the perspective of holistic system view

Marine plastic pollution (MPP) has posed an unavoidable challenge to the conservation of marine ecosystems, escalating at an unprecedented rate. It extends beyond visible pollution, infiltrating the food chain and microcirculation, ultimately affecting the life and health of marine organisms. Of even greater concern is the fact that MPP has been found to penetrate human bloodstreams. The international community increasingly focuses on MPP, and has formulated a series of laws and regulations. This article analyses marine pollution prevention legislation within the context of international environmental resolutions and conventions, including those established by the United Nations, the European Union law and the domestic legislation of sovereign states. It is evident that the current legislation has played a pivotal role in the preventing MPP. However, global legislation on preventing MPP remains fragmented. The problems existing in the current legislation should be reviewed from the holistic systems perspective, and the integrity and systematicness of new plastics convention should be demonstrated. The proposed Marine Plastics Convention should emphasize environmental justice, protect the rights of vulnerable populations, lower the threshold for risk prevention, and focus on addressing residual risks. It must include clear provisions for regulating hydrosphere plastic pollution (HPP) to mitigate land-based pollution and scientifically define fundamental legal concepts to foster coordinated action among States. Moreover, the convention should establish standardized monitoring methodologies and assessment criteria to ensure accurate evaluation of the pollution status.

The Spectre of Re-Fencing Off the Public Domain: Italian Copyright and Cultural Heritage Legal Scenarios

Abstract International and European Union (EU) law jointly promote cultural development as a global and cross-border value, mandating national efforts for the preservation, enjoyment, and enhancement of cultural heritage. Cultural development is also the specific objective underlying Art. 14 of the EU Copyright in Digital Single Market Directive (CDSMD), designed to ensure that works of visual arts in the public domain remain a vital source of cultural enrichment across the Union. Against this backdrop, the Italian legal system is currently showing some resistance against such legal obligations. Its transposition of Art. 14 CDSMD explicitly refers to the applicability of the Italian Cultural Heritage Code, which typically requires permission and, in many cases, a fee payment to use reproductions of works of cultural significance, notwithstanding their public domain status. Concurrently, Italian courts have engineered new forms of exclusivity over cultural heritage belonging to the public domain, ignoring copyright law and other applicable norms. The study examines the Italian legal framework on public domain cultural heritage, unveiling a significant degree of incompatibility with international and EU legal obligations. Through a literal, systematic, and teleological legal analysis, the authors unearth how the Italian legal system fails to balance norms regarding cultural heritage, copyright, and data, thus calling for coordinated EU and national interventions towards a sound application of legal rules safeguarding the public domain.

The role of collective interest representatives in enforcing EU labour rights

This article explores the role of collective interest representatives (CIR) in the enforcement of EU labour rights. To that end, the article starts with an analysis of the regulation of CIR in other fields of EU law, particularly consumer protection law and non-discrimination law. The analysis follows the approach of the Court of Justice of the European Union (CJEU) in cases on the legal standing of actors to enforce EU rights, namely, by defining first the protective scope as a matter of Union law itself based on a textual and teleological analysis and, second, the margin of discretion left to Member States to exercise their own procedural autonomy, including the possibility for Member States to determine locus standi according to their own legal systems. The article continues with drawing inspiration from forms of CIR in international and transnational law, particularly the collective complaints procedure of the European Social Charter (ESC), the representation procedure of the International Labour Organization, and the specific instances of the National Contact Points of the Organisation of Economic Cooperation and Development (NCP OECD). The article concludes with an assessment of the acceptance of CIR in the enforcement of (EU) labour rights from a substantive perspective and elaborates on the possible tasks, requirements, and powers of CIR in enforcing EU labour rights.

Contractual Liability and Compensation for Moral Harm

In Greece, the breach of contractual obligation is in principle disapproved by law, it crea­tes, however, only an obligation for the payment of compensation and not an additional obligation for the restoration of moral harm, because the sole non-performance of the contractual obligations cannot cause moral harm. Consequently, according to the Greek legislator, a possibility for the existence of a relevant pecuniary compensation does not exist. Pecuniary compensation for non-pecuniary damage is exceptio­nally recognized and only in cases defined by law (Art. 299 GCC). For example, it is recognized in the cases of infringement of the personality (Arts. 57, 59 GCC) and of tort, especially for the person who suffered an attack upon his health, honour, or chastity or who was deprived of his liberty (Art. 932 GCC). In case, however, the violation of the contractual obligation constitutes at the same time - and in­dependently from the existence of the contract - a tort, then it is settled case law in Greece that there is concurrence of contractual and delictual obligation. In that case, the provisions of tort (art. 914 ff. GCC) may apply, in which case, provided that moral harm is sustained, compensation for such moral harm may be sought. Deciding, however, whether the violation of the contractual obligation constitutes at the same time - and independently from the existence of the contract - a tort is not always easy. The tendency noted in the international texts aiming at the unification of law in Europe is the res­toration of moral harm also in cases of breach of a contract. For example, art. 9:501 of the Principles of European Contract Law, PECL and art. 7.4.2 of the Unidroit Principles provide for the possibility of the contracting party to request the restoration of non-pecuniary damage in cases of unjustifiable breach of a contract. Thus, the override of the prohibition set in art. 299 GCC attempted by the Greek doctrine and jurisprudence through the provisions about personality protection and the application of art. 932 GCC, where there is concurrence of contractual and delictual liability, is justified and confirms that art. 299 GCC was rightly criticized almost unanimously by the Greek doctrine already since its introduction as against the tradition of Greek Law and due to the non-lenient situations it causes.

Does European Union law need an a priori method ?

D’une manière générale, un a priori peut être décrit comme un présupposé qui sous-tend nos constructions juridiques avec cette caractéristique d’être faiblement discuté. Cet article vise à questionner cet état des choses dans le contexte du droit de l’Union européenne. Pour ce faire, il reconsidère le chemin que pourrait parcourir le droit pour aborder les a priori à propos des situations en mouvement, qui sont au cœur de la construction européenne.

Personal Branding "Gemoy"Prabowo (Case Study On The Tiktok Account @Partai Gerindra)

Personal Branding is described as a process or effort to build a unique, strong and relevant self-image in the minds of other people. This involves identifying and building on our personal strengths, abilities, and uniqueness as characteristics that differentiate us from others. One of the social media that reflects Prabowo's branding as "gemoy" is the tiktok account @Partai Gerindra. This research aims to dig deeper into the process of forming Gemoy Prabowo's Personal Branding, especially related to the 'gemoy' image that is seen in his public interactions and increasing popularity and having a significant impact on Tiktok social media. The type of research method used in this thesis is descriptive qualitative research. The importance of this research lies in an in-depth understanding of the relationship between Personal Branding of political figures and public perception of their political image. The theory used is Peter Montoya's theory where Personal Branding marketing is the process of building and strengthening a person's personal image and reputation in the minds of other people. There are eight processes for forming Personal Branding owned by Peter Montonya, namely: 1. Specialization (The Law of Specialization), 2. Leadership (The Law of Leadership), 3. Personality (The Law of Personality), 4. Difference (The Law of Distinctiveness) , 5. Visibility (The Law of Visibility), 6. Unity (The Law of Unity), 7. Firmness (The Law of Peristence), 8. Good name (The Law of Goodwill).The results of the research and discussion are concluded as follows from the results of research conducted on Gemoy Prabowo's Personal Brandingon the Gerindra Party TikTok account, that this Personal Branding has succeeded in creating a strong and positive image among social media users. Gemoy Prabowo was able to build a unique and attractive personal identity by introducing the Gerindra Party to the public via the TikTok platform.

Digital anatomical features of morphological development in the atlantoaxial synchondroses in children aged 1 to 6 years old: a retrospective study of CT images.

To investigate the anatomical indexes and anatomical positional indexes of the atlantoaxial synchondroses in normal Chinese Han children aged 1-6 years, and to analyze the changing law of the atlantoaxial cartilage union with the growth and development of age and its influence on the atlantoaxial ossification in children. A retrospective collection of CT imaging of 160 cases of normal cervical spine in children aged 1 to 6 years old was conducted. The cases were divided into six age groups, with each group representing a one-year age range. Measure the morphological anatomical indicators and anatomical positional indicators of the atlantoaxial synchondroses. Record and statistically analyze the measurements of each indicator. Measurements were taken on various parameters of the atlantoaxial synchondroses. TD, SD, height, area, and perimeter all gradually decreased among the groups. Distance between bilateral atlantal anterolateral synchondroses increased gradually from Group A to Group F, while the angle formed along the long axis in the cross-section showed a decreasing trend. Distance between the axoid dentolateral synchondroses and between the neurocentral synchondroses increased gradually from Group A to Group F, with the angle value in the cross-section showing a gradual decrease, and distance from the odontoid apex increasing from Group A to Group F. The atlantoaxial synchondroses gradually decrease in size with age, and ossification levels increase with age, with faster ossification occurring during a 1-2 years-old period. The anterolateral synchondroses, dentolateral synchondroses, and neurocentral synchondroses all gradually ossify towards the lateral direction with increasing age.

Attributes of the Romanian State. Special View on the Rule of Law

The attributes of a state constitute its defining features and principal values of its constitutional order, which differentiate or resemble it as a political-legal physiognomy from other states. The rule of law, pluralism, democracy, civil society are universal values of contemporary political thought and practice and can be found normatively expressed in international documents, but also in the Romanian Constitution. Starting from the specialised doctrine and jurisprudence of the Constitutional Court of Romania in the matter, this article analyses the attributes of the Romanian state enshrined by the Constitution, respectively: rule of law; welfare state; pluralistic state; democratic state. In this study, a special attention is dedicated to the rule of law, considering the dangers that threaten it in the current period. Legislative inflation, superficial legislation, increasing the role of the Executive in the field of legislation at the expense of Parliament, the intrusions of politicians into the sphere of judicial power are just some of the dysfunctions of the Romanian rule of law. In this context, this article highlights the essential role of the Constitutional Court in guaranteeing and respecting the requirements of the rule of law. Through its jurisprudence, an important contribution is made not only in the correct interpretation and application of constitutional norms, but also in their elaboration. Under the influence of the specific socio-political factors in each country, the pressures of the Union and international law, the rule of law cannot reach perfection, but it remains a fundamental constitutional necessity whose primary purpose is to ensure the rights and freedoms of citizens. Keywords: attributes of the state, rule of law, the jurisprudence of the Constitutional Court of Romania, dysfunctionalities of the Romanian rule of law.

Climate change and forced migration

Abstract Climate change is increasingly recognized as a significant driver of migration patterns worldwide. As the global temperatures rise, extreme weather events become more frequent, leading to disruptions in livelihoods displacement, and migration. Every day, climate change becomes a more urgent economic, social and existential threat to countries and their people. Climate changes are becoming more and more evident every day, a factor that undoubtedly directly or indirectly affects the displacement of populations. This article provides answers to basic questions starting with how, and where climate change triggers migration and displacement, the second question is if we have a definition for the climate migration, or climate refugee, can they have protection from the Convention relating to the Status of Refugees and the last analysis is the inadequacy of the protection afforded by international law and European Union law and the Albania Legislation to individuals who leave their country of origin for reasons related to environmental issues. The methodology used to answer the questions of this paper includes desk review on existing literature, legal texts, reports from international organizations, legal framework regulating climate migration rights and the decision of the UN Human Rights Committee (HRC) regarding the “climate refugees”, the case of Teitiota v New Zealand.

The Institute of Enhanced Cooperation in European Union Law: Evolution of Legal Regulation

INTRODUCTION. The article presents the evolution of legal regulation of the institution of enhanced cooperation as a legal form of flexible integration in European Union (EU) law. Flexible integration is a fairly widespread and objectively existing legal phenomenon in the practice of various integration associations. However, it is within the framework of EU law that the concept of enhanced cooperation has received the greatest development and legal regulation. This was largely due to the EU's desire to regularize and subordinate alternative forms of co natural that interstate cooperation within the framework of one or another integration cooperation acquires more and more complex character, and cooperation of the member states of an integration association within the framework of one or another direction of interaction has uneven and heterogeneous character. MATERIALS AND METHODS. The methodological basis of the study was traditional general scientific and special methods of cognition of legal phenomena: comparative legal method; method of scientific analysis; formal legal method; method of synthesis of social and legal phenomena.RESEARCH RESULTS. As a result of the analysis, the main stages of development of prerequisites and reasons for the legal regulation of enhanced cooperation have been identified and the periodization of the development of legal regulation of this institution has been proposed. DISCUSSION AND CONCLUSIONS. Within the framework of the proposals on the periodization of the development of legal regulation of the institution of enhanced cooperation the following stages can be distinguished. The first stage can be labeled as “pre-Amsterdam”. This period is characterized by the formation of conceptual foundations of enhanced cooperation as a legal form of flexible integration. Within the framework of the “pre-Amsterdam” period there is an application of some form of flexible integration (Schengen, euro zone, etc.). The conceptualization of enhanced cooperation as a form of flexible integration was the basis for the normative-legal consolidation of this institution in the founding treaties of the EU. The next stage can be called “Amsterdam-Nicean”. Although the institution of enhanced cooperation received different names in the Amsterdam and Nice versions of the establishing treaties, it seems possible to unite this period into one: despite the normative-legal consolidation of enhanced cooperation as a form of flexible integration, the relevant norms of the establishing treaties have not actually received practical application. Finally, the next stage – the “Lisbon” period is characterized by the active ap[1]plication of the norms of the establishing treaties in the EU practice, including judicial.

Challenges and opportunities in managing biodegradable plastic waste: A review.

Biodegradable plastics have certain challenges in a waste management perspective. The existing literature reviews fail to provide a consolidated overview of different process steps of biodegradable plastic waste management and to discuss the support provided by the existing legislation for the same. The present review provides a holistic overview of these process steps and a comprehensive relative summary of 13 existing European Union (EU) laws related to waste management and circular economy, and national legislations plus source separation guidelines of 13 countries, to ensure the optimal use of resources in the future. Following were the major findings: (i) numerous types and low volumes of biodegradable plastics pose a challenge to developing cost-effective waste management infrastructure; (ii) biodegradable plastics are promoted as food-waste collection aids, but consumers are often confused about their proper disposal and are prone to greenwashing from manufacturers; (iii) industry-level studies demonstrating mechanical recycling on a full scale are unavailable; (iv) the existing EU legislation dealt with general topics related to biodegradable plastics; however, only the new proposal on plastic packaging waste and the EU policy framework for bioplastics clearly mentioned their disposal and (v) clear disparities were observed between disposal methods suggested by national legislation and available source separation guidelines. Thus, to appropriately manage biodegradable plastic waste, it is necessary to develop waste processing and material utilization infrastructure as well as create consumer awareness. In the end, recommendations were provided for improved biodegradable plastic waste management from the perspective of systemic challenges identified from the literature review.

The Brussels effect in Ankara: the case of climate policy

Abstract Turkey’s Europeanization process provides a particularly interesting case study of the extra-jurisdictional impact of European Union (EU) law, both through policy convergence and through the so-called Brussels effect. Formally, Turkey must adopt certain EU rules due to its status as an EU candidate country, but its candidacy process has been lengthy and uncertain, resulting in partial and uneven adoption of EU rules. Nevertheless, EU-style policymaking has persisted in various policy areas, including environmental and climate policy. This paper aims to analyze the convergence of climate change policies between the EU and Turkey by employing multidimensional scaling, a method that enables the visualization and examination of the connectivity and intensity of cooperation between states. For the period from 2007 to 2023, our comparative analysis demonstrates that policy divergence occurs when the EU’s share of Turkey’s total trade decreases and when political challenges are experienced. On the other hand, periods of policy convergence coincide with periods of increased trade volume and expanded trade opportunities. The results suggest that through its market size and regulatory capacity, the EU exerts soft power which forces Turkey to align its climate policies with the EU to protect and maintain its competitiveness in the European marketplace.

“(…) here I have freedom”—A study of refugees' and asylum seekers' legal consciousness in Greece: Self‐identity, human rights, and expectations from European Union law

AbstractThis paper adds to the existing knowledge on migration and the law by empirically exploring the legal consciousness of 33 refugees and asylum seekers in Greece, more specifically, by discussing how their experiences, self‐identity and expectations of the law inform their reactions to the restrictions imposed upon them. The findings suggest that (1) legal knowledge is acquired in the countries of origin and from contact with smugglers, other migrants, law enforcement agents and staff from NGOs; (2) this knowledge allows them to forge an identity as “rights‐bearers,” which (3) together with perceptions and expectations of human rights law and European Union policies on migration, (4) empower them to claim protection from the Greek state, and (5) legitimizes their actions, even if these sometimes involve subterfuge. Despite their particularly vulnerable positions, refugees and asylum seekers are, therefore, not mere passive receivers of state power, but also try to use the law to overcome adversity, in an almost game‐like fashion.

Is a distributive analysis enough? A critical take on the case law of the European Court of Justice

ABSTRACT This essay articulates both empirical and historical insights of a distributive analysis, which entails presenting a critical intervention in a legal field dominated by a mainstream scholarly or policy view that is both ideologically tainted and empirically inaccurate. The transition from distributive consequences to what critical scholars refer to as a distributive analysis is a strategic intervention within each specific legal field that ought to be historicised. This article shows how the application of a distributive analysis to two canonical case studies in consumer law and gender discrimination as two distinct and relatively marginal fields in European Union law developed through the jurisprudence of the European Court of Justice. Finally, this article questions whether a distributive analysis, without a theoretical grounding in critical theory, is sufficient to ensure that it is not only an empirical tool but also committed to not perpetuating the existing inequalities within the liberal or neoliberal foundations of the European legal order.

Соотношение права на соразмерное уменьшение цены с возмещением убытков: сравнительно-правовой аспект

The work is devoted to the comparative analysis of the proportionate price reduction in the context of its comparison with damages in international instruments of unification of private law and foreign legislations. The author comes to the conclusion that Civil law systems and instruments of private law unification have a legal tradition of distinguishing between price reduction and damages as separate remedies, which may provide a considerable argument for distinguishing between these remedies in Russian law.