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Abstract: Abstract The Digital Services Acts (DSA) tackles challenges arising from the evolution of online intermediary services and inevitably brings forth a multitude of legal issues regarding its operation. While the first rulings of the EU courts, delivered in incidental proceedings, have to be read in the specific context in which they were rendered, these decisions could serve as a noteworthy reference point for future discussions on the broader understanding of the DSA. An intriguing aspect of these rulings is their potential to illustrate two prospective approaches that may emerge in future case law concerning the DSA at both EU and national levels. PubDate: 2024-08-14
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Abstract: Abstract The European Union’s enlargement of 2004 was a significant and symbolic event. From the legal perspective, it was also an event of a constitutional significance both for the European Union and for each of the ten acceding States. It was preceded by the complex legal process of harmonisation of laws, accession negotiations and the drafting and conclusion of the Treaty of Accession. The European Union enlargements have led to the development of dedicated case law of the European Union Courts with very characteristic features. In this respect the 2004 enlargement has given rise to a number of important judicial decisions that have contributed to the development of European Union law. The present article discusses the accession-related case law of European Union Courts classifying it along three categories. The first category concerns the ‘procedural’ case law covering the very process of accession and the legal status of the related legal instruments. Secondly, the ‘inter-temporal’ case law, that is the legal disputes related to the issues on the application of law in time are discussed. This category is particularly relevant in the context of accession, which entails, for the acceding State, the obligation to accept and immediately apply the entire body of European Union law, subject to any transitional measures agreed in the accession negotiations. Thirdly, the overview of the cases touching upon a broader, ‘constitutional’ perspective allows to complete the analysis by touching upon the axiology of the process of accession. PubDate: 2024-08-01
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Abstract: Abstract Will the challenges faced by both the European Union and a candidate country during a future enlargement process be ‘new’ challenges, or will they be reiterations of challenges successfully overcome during previous enlargements, notably during the ‘Big Enlargement 1.0’ in 2004' This contribution argues that many of the challenges (institutional, political, economic, legal, and linguistic) are indeed not new; but that a future EU enlargement is likely to take place within a far more uncomfortable global environment. In particular, the presence of a hostile and aggressive near neighbour in the shape of Russia will require a concerted and intelligent response. PubDate: 2024-07-31
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Abstract: Abstract This article evaluates the objectives of the legal framework on public procurement in the European Union and assesses its contribution to the internal market. The author provides for a critical analysis of the evolution of the public procurement acquis, which reveals an environment occupied with conceptual and regulatory interfaces, exhibiting advanced interoperability with legal systems of Member States and faced with continuous market-driven modality changes in awarding and financing public contracts for the delivery of public services. PubDate: 2024-07-30
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Abstract: Abstract In U.S. antitrust, a level of implied immunity is afforded to matters governed by sector regulation, often referred to as the “Trinko-doctrine.” In contrast, no such immunity is assumed in European Union competition law, where by contrast, there is only a very narrow regulatory defence if laws mandate a specific (anti-competitive) course of action. As always, matters are more nuanced in practice. Not only did the Court of Justice of the European Union, the European Union’s highest legal authority, recently suggest an obligation to halt competition law investigation if sector regulations are available, this has tacitly been practiced for years, indicating a more complex relationship and a possible European Union Trinko-doctrine. Following the adoption of the EU’s Digital Market Act, this has relevance beyond the traditional regulated sector, warranting some considerations. PubDate: 2024-07-30
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Abstract: Abstract This article examines the evolving framework of the European Union’s approach to environmental sanctions. It dissects the cornerstone principle of effective and dissuasive penalties, exploring its foundation in the Treaty on the Functioning of the European Union (TFEU) and its interpretation by the Court of Justice of the European Union (CJEU). The analysis then progresses by scrutinising specific legislative instruments, such as the Environmental Crime Directive, which establish more detailed requirements for environmental offences, including the types and levels of penalties. Furthermore, the article explores the intricate relationship between criminal and administrative liability in the context of environmental law. This exploration incorporates recent case law on the application of the principle of legality and the ne bis in idem principle in environmental matters. PubDate: 2024-07-25
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Abstract: Abstract In this paper the author focuses on some core notions linking together judicial independence and good administration through the thread of the rule of law. The rule of law is the golden thread running through all public administration (which includes also the judicial administration) of a state, with the ultimate aim being the common good. This is an ideal to which all modern, so-called democratic, states should aspire. The author looks at the practical meaning of the rule of law and suggests an approach based on a core of eight principles, the so-called Bingham’s “sub-principles”, and adds two more to them. Finally, it is argued that one cannot speak of the rule of law, of fundamental human rights and of good administration as if these were concepts isolated from each other PubDate: 2024-07-15
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Abstract: Abstract In recent years the European Court of Human Rights has been confronted with cases where the problems concerning judicial careers and the bodies governing the judiciary are in the centre of the debate. This article examines two recent cases on the competencies and the mandate of the Spanish Council for the Judiciary: Alonso Saura v. Spain, on the margin of discretionary councils have when appointing judges for governing positions and Lorenzo Bragado and others v. Spain, in which the Court examines the situation of the Spanish Council, which has not been renewed in a timely manner. PubDate: 2024-07-09
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Abstract: Abstract This article revisits the rational and symbolic elements of assumed and earned trust, and how social and political trust is intertwined with trust in the judiciary and the media, as key control points in a democratic system. As such, they are also primary targets of populist-autocratic movements. The article enumerates how the transformation of the information environment has shattered traditional structures and opened new ways of questioning existing injustices. The result is an information landscape which is not only post-truth but also post-trust. New methods and processes of institutionalising processes of earning trust and structuring distrust have become necessary. PubDate: 2024-07-04
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Abstract: Abstract This contribution analyses the conflict between the Constitutional Court of Romania (the ‘CCR’) and the Court of Justice of the European Union (the ‘CJEU’) from the perspective of the affirmation of constitutional identity by the Constitutional Court of Romania as a national independent court, to the detriment of the principle of primacy of EU law enshrined in the settled case-law of the European Court of Justice. The following analysis focuses on two aspects of this conflict. The first involves consideration of the use of the concept of constitutional identity by the Constitutional Court of Romania as a tool to limit the principle of primacy of EU law, with the main argument being that the Constitutional Court is the supreme national institution the task of which is to ensure the supremacy of the Romanian Constitution on Romanian territory even insofar as concerns EU law and the case-law of the Court of Justice of the European Union. The second aspect focused upon in this analysis consists of the effects of the conflict between the two jurisdictions - the constitutional and the European Union – as seen in the constitutional decisions adopted by the Constitutional Court of Romania. PubDate: 2024-06-27
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Abstract: Abstract The paper critically analyses the Digital Operational Resilience Act (DORA) within the European Union (EU) with respect to challenges such as supervision and the oversight framework coordination. It delves into the adequacy of the European System of Financial Supervision (ESFS) in ensuring compliance with this regulation, highlighting issues of fragmented supervision at national level and inconsistent approaches. The main argument suggests that while the DORA Regulation is a positive step for harmonising digital operational resilience regulation, it brings about challenges in supervisory convergence and cooperation due to the existing fragmented supervisory architecture. The authors propose potential solutions like a more centralised supervision model to address these challenges. The paper follows a structured format with an overview of the DORA Regulation, discussion on identified challenges, and a concluding section. PubDate: 2024-06-20
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Abstract: Abstract This article provides an overview of the process leading up to the adoption of the Corporate Sustainability Due Diligence Directive (CSDDD) and delivers a comprehensive analysis of the Directive’s final text. The article contextualises the design process of the CSDDD within the international normative framework on sustainability due diligence and elaborates on key events surrounding the inter-institutional negotiations between the European Commission, the European Parliament and the Council of the European Union on the Directive. The article then delves into the content of the newly adopted text, highlighting key differences between the final version and the Commission’s original proposal. PubDate: 2024-06-19 DOI: 10.1007/s12027-024-00791-y
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Abstract: Abstract In comparison to other Member States, Poland has had experience in dealing with mass claims for quite some time, having introduced the Act of Pursuing Claims in Group Proceedings way back in 2009. This paper includes a brief overview of the legislative framework for collective redress in Poland with special consideration of consumer claims. Further, it examines the evidence-based reality of group proceedings with the purpose of identifying and addressing the problems in functioning of this mechanism in practice. To achieve this aim, it delves into a case study of one of the most significant group proceedings so far – that related to the so-called ‘Swiss loan crisis’ in Poland. PubDate: 2024-06-12 DOI: 10.1007/s12027-024-00790-z
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Abstract: Abstract In the last couple of years, the EU and its Member States have increasingly been the target of a number of third-country measures, including US extra-territorial sanctions and Chinese trade embargoes. Some of these measures are ‘caught’ by the Blocking Statute but some have caused headaches to EU policy-makers on how to best tackle them. The Anti-Coercion Instrument, adopted in 2023, is one of the latest tools at the European Union’s (EU) disposal to tackle economic coercion. The aim of this article is to show the legislative history of this new EU instrument and how it came about. The key role of preparing this legislation was played by the so-called ‘geopolitical Commission’ that is nowadays committed to assertively use the EU’s trade competences to advance foreign and security policy objectives. Due to the foreign and security policy implications of the Anti-Coercion Instrument, the article includes some political and security policy statements to better contextualise the need to adopt such a legislation. PubDate: 2024-06-12 DOI: 10.1007/s12027-024-00784-x
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Abstract: Abstract The article investigates domestic and supranational responses towards new forms of parenthood in the light of the child’s best interest. Examining the case law of the European Court of Human Rights and the Italian Courts on artificial reproductive technologies and surrogacy agreements, this article contends that the European Court of Human Rights did not abandon the ideal type of families based on biological bonds despite efforts to ensure the paramount relevance of children’s rights. Interlacing the Italian case and the European Court of Human Rights’ judgments against Italy, this article argues that persists a long way before the full recognition of forms of parenthood lacking genetic links, despite the willingness to safeguard the legal status of the child. PubDate: 2024-06-12 DOI: 10.1007/s12027-024-00787-8
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Abstract: Abstract This article assesses whether the Artificial Intelligence Act sufficiently addresses issues of gender equality and non-discrimination law. To this end, the substantive provisions of the AI Act are analysed through the lens of gender equality and non-discrimination law, highlighting the proposed tools of fundamental rights impact assessments and bias audits to reduce gender biases and discriminatory risk. Furthermore, the role of the AI Office and its cooperation with national, European, and international bodies for gender equality enforcement are discussed and positioned within the global landscape of AI regulation. PubDate: 2024-06-12 DOI: 10.1007/s12027-024-00785-w
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Abstract: Abstract This article examines two rulings of the European Court of Human Rights on the rights of independent Polish judges in Juszczyszyn v. Poland and Tuleya v. Poland, focusing on two key aspects. First, it addresses the Court’s finding that the Polish authorities aimed to undermine judicial independence and deter the applicants from questioning the Government’s controversial judicial reforms. Secondly, it explores the potential evolution of the case law of the European Court of Human Rights regarding recognising the subjective right of judges under Article 6 of the European Convention on Human Rights to have their independence protected and respected by the State. The article also discusses problems concerning implementation of the two judgments. PubDate: 2024-05-29 DOI: 10.1007/s12027-024-00783-y
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