Review of European and Comparative Law
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The Review of European and Comparative Law (od 1988 do 2018 r. jako The Review of Comparative Law; ISSN 0860-8156) ukazuje się jako czasopismo publikujące w języku angielskim artykuły autorów polskich i zagranicznych.
Review służy jako forum wymiany poglądów w szerszym, międzynarodowym kontekście. Dzięki niemu istnieje również możliwość prezentowania polskiego jurydycznego dorobku naukowego za granicą. Zgodnie z nazwą periodyku, zamysłem redaktorów jest chęć prezentowania instytucji prawnych w perspektywie europejskiej i komparatystycznej.
(English) Review of European and Comparative Law (from 1988 to 2018 as The Review of Comparative Law; ISSN 0860-8156) is a journal publishing articles by Polish and foreign authors, in English. The main purposes of Review of European and Comparative Law:
- to create a forum for exchanging views in a broader international context;
- to present Polish juridical scientific achievements abroad;
- to present legal institutions in a European and comparative perspective.
EDITORIAL TEAM:
Editor in chief:
Andrzej HERBET (Faculty of Law, Canon Law and Administration, The John Paul II Catholic University of Lublin, Poland)
Members of the editorial board:
Marcin BURZEC (Faculty of Law, Canon Law and Administration, The John Paul II Catholic University of Lublin, Poland)
Małgorzata GANCZAR (Faculty of Law, Canon Law and Administration, The John Paul II Catholic University of Lublin, Poland)
Luigi Mariano GUZZO (Università "Magna Graecia" di Catanzaro, Italy)
Milena KLOCZKOWSKA (Faculty of Law, Canon Law and Administration, The John Paul II Catholic University of Lublin, Poland)
Katarzyna MIASKOWSKA-DASZKIEWICZ (Faculty of Law, Canon Law and Administration, The John Paul II Catholic University of Lublin, Poland)
Soraya RODRIGUEZ LOSADA (University of Vigo, Spain)
Robert TABASZEWSKI (Faculty of Law, Canon Law and Administration, The John Paul II Catholic University of Lublin, Poland)
Jacek TRZEWIK (Faculty of Law, Canon Law and Administration, The John Paul II Catholic University of Lublin, Poland)
SCIENTIFIC COUNCIL:
Prof. Gabriel Bocksang Hola (Pontificia Universidad Católica de Chile, Republic of Chile)
Prof. Paolo Carozza (Notre Dame Law School, USA)
Ks. Prof. dr hab. Antoni Dębiński (The John Paul II Catholic University of Lublin, Poland)
Prof. Xiangshun Ding (Renmin Law School, University of China, China)
Prof. Dr. Tamás M. Horváth (University of Debrecen, Hungary)
Prof. Miomira Kostić (University of Niš, Republic of Serbia)
Prof. Alfonso Martínez-Echevarría y García de Dueñas (University CEU San Pablo, Spain)
Prof. Carmen Parra Rodriguez (University Abat Oliba CEU, Spain)
Prof. Christoph U. Schmid (University of Bremen, Germany)
Prof. Gianluca Selicato (University of Bari Aldo Moro, Italy)
Prof. dr. Stanka Setnikar-Cankar (Dean of the Faculty of Administration, University of Ljubljana, Slovenia)
Prof. Dr. Dr. h.c. mult. Reinhard Zimmermann (Max-Planck-Institut für ausländisches und internationales Privatrecht Hamburg, Germany)
e-ISSN: 2545-384X
DOI: 10.31743/recl
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Contact:
Review of European and Comparative Law
The John Paul II Catholic University of Lublin
Al. Racławickie 14, 20-950 Lublin, Poland
Konwikt, pok. 114
Główna osoba do kontaktu:
Agata Tkaczyk - review@kul.pl
tel. 81 454 53 40
Review of European and Comparative Law
The John Paul II Catholic University of Lublin
Al. Racławickie 14, 20-950 Lublin, Poland
Konwikt, pok. 114
Główna osoba do kontaktu:
Agata Tkaczyk - review@kul.pl
tel. 81 454 53 40
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- ItemA Bottom-up Look at Mutual Trust and the Legal Practice of the Aranyosi Test(Wydawnictwo KUL, 2023) Peristeridou, ChristinaThis contribution offers an insight into the legal practice of the Aranyosi test during the EAW proceedings in seven Member States, an outcome of the research conducted during the ImprovEAW Project. Only the executing judicial authorities of some Member States do trigger the test. Member States are roughly differentiated between those having facilities with usually bad or usually good detention conditions, promoting antagonistic relationships instead of equal partnership. The lack of streamlining of the communication when supplementary information is requested, the lack of common standards and approach towards guarantees lead to further misunderstandings and frustration. The findings of this research have revealed the importance of departing from a pure legal understanding of mutual trust and follow a more empirical, experiential or bottom-up concept. Mutual trust is not only a legal concept, but it underpins the legal culture of the cooperation and collegial attitudes of authorities towards one another. This expression of mutual trust remains quite undiscovered: how is miscommunication affecting mutual trust? Do judicial authorities of legal systems express collegiality to one another? How do cultural aspects and preconceived ideas regarding the quality of other legal systems influence mutual trust? Accordingly, some suggestions have been made to improve the cooperation and the establishment of rapport when supplementary information is requested. Finally, I advocate for a more neutral view towards the Aranyosi test. As opposed to considering it as a supervisory mechanism, I have explored the idea of approaching it as a risk management tool: it tackles risks created by mutual trust. Such approach helps both sides to take responsibility to avert ad hoc risks, instead of experiencing Aranyosi as a testing moment. Such approach centres the real problem, i.e. the risks created by mutual trust for individuals and it can stimulate more proactive policy-making in this regard.
- ItemA Double-Edged-Sword Approach to Fighting Pandemics: Patent Waivers and Incentives to Innovate(Wydawnictwo KUL, 2023) Kostka, Katarzyna; Kovač, MitjaAlthough continents recently experienced an apocalyptic pandemic that posed a mortal danger to millions of people, a new, even deadlier pandemic could soon emerge… The paper seeks to address the role played by patent waivers and current contractual arrangements in the pharmaceutical industry in addressing the dangers caused by the current and future pandemics. The process of waiving patents is explored where it is argued that it sadly cannot amount to the knight in shining armour that everyone has been expecting. Due to the lack of coordination, the tremendously long process, and the potential block in innovation arising from pharmaceutical companies having smaller incentives, more attention must be paid to other alternative institutional solutions. Drawing from the economics literature on innovation in the pharmaceutical sector, a conceptual framework is proposed for improved legal intervention in the case of patent waivers in international intellectual property law instruments. In addition, the paper provides a comparative law and economics treatment of current patent waivers in US, EU, and international law instruments.
- ItemAchmea, Kramer and Disconnection Clauses. EU Legal Regionalism in Action(Wydawnictwo KUL, 2024) Láncos, Petra LeaOver the past decades, the European Union has been gradually developing and maintaining legal regionalism within its jurisdiction. Its purpose is to preserve the achievements of integration, as well as the unity and autonomy of EU law. In this paper, I recount the toolbox of EU legal regionalism from primary law, through the case law of the Court of Justice of the European Union, to the institution of the so-called disconnection clauses employed by the EU in certain international treaties, expanding also on their possible effects on international law and the Member States’ relations with third parties.
- ItemADR in Sport on the Example of Association Football in Poland and Ukraine(Wydawnictwo KUL, 2023) Sławicki, Piotr; Kryzhanivskyi, ViktorThe subject of this article is the use of ADR in sports disputes in association football under the Polish and Ukrainian law. Professional and amateur sport generates various types of disputes related to both disciplinary and civil cases, an example of which may be disputes arising during the execution of contracts binding players and football clubs. In the first part, the scope of disputes that are subject to ADR in association football is outlined. The next part presents legal solutions adopted under the Polish law in this respect, of which the activity of the Football Arbitration Court of the Polish Football Association is a particular example. The last chapter is devoted to the Ukrainian perspective on the resolution of disputes in association football.
- ItemBeneficial Ownership – Demand for Transparency, Threat to Privacy(Wydawnictwo KUL, 2023) Cindori, SonjaThe basic idea behind establishing the register of beneficial owners is to increase the transparency and accessibility of data on beneficial ownership of companies and other legal entities with the aim of ensuring the public availability of data on domestic and foreign natural and legal persons. However, the possibility of the data being accessible to the general public instead of to persons or organizations that can demonstrate a legitimate interest raised the issue of violating the principles of respect for private or family life and the protection of personal data. Consequently, this raises the question of drawing the line between contributing to the common good and fighting against money laundering and terrorist financing, on the one hand, and protecting personal data, with the possibility of their misuse, on the other. A balance as well as a response to the possibility of setting soft limits of legitimate interest that would result in the achievement of all set goals was sought in the practice of the European Court of Justice. One of the legislative solutions regarding the extent of access to data on beneficial owners for the entire public, along with the establishment of different types of registers in order to prevent money laundering and terrorist financing, is described using the example of Croatia.
- ItemBetween Enabling Law and Protecting Law – Some Remarks on the Method of Regulating the Law of Groups of Companies in Polish Commercial Companies Code(Wydawnictwo KUL, 2023) Herbet, AndrzejAlthough the groups of companies have been an indispensable part of the modern economy for several decades, they still continue to attract unwavering attention of both practice and doctrine of corporate law. The numerous legal challenges posed by the functioning of multi-level structures, based on diverse types of dominance and dependance relations adopt different regulatory strategies manifest a universal appeal. Yet, the national legislators adopt different regulatory strategies, aimed at securing the interests of various stakeholders, including minority shareholders, dependent companies and their creditors. As a result, the contemporary discourse entails two concepts – one emphasizing the risks and responsibilities associated with it (protecting law) and the other one, supporting the creation of groups, as well as instruments for their effective management (enabling law). The aim of the article is to verify the extent to which these concepts are addressed by the most recent Polish group law regulations, viewed in a comparative context outlined by selected European jurisdictions.
- ItemCopyright Protection for Works Created by AI Technology under the EU Law and Vietnamese Law(Wydawnictwo KUL, 2023) Le Thi, MinhThe legislation of the European Union increasingly focuses on expanding the scope of works protected by intellectual property rights, including literary works, music, films, and phonograms. The breakthrough in artificial intelligence (AI) has contributed significantly to creating works of art with little or no human intervention. The article examines the current situation of EU copyright law and Vietnamese law regarding AI-generated works. The article concludes that EU law governs copyright for these works based on the extent of human contribution to the creation of the work. Meanwhile, Vietnamese law still needs to resolve the issue of intellectual property rights for works created by AI.
- ItemCourt of Justice of the European Union and Ukrainian Legal Order: Some Pre-accession Considerations(Wydawnictwo KUL, 2023) Haletska, Nataliya; Savchuk, AnastasiiaAs the European Union candidate country (hereinafter the EU), Ukraine is one step away from becoming an EU Member State. From this point on, the country will be subject to the influence of EU institutions, including the Court of Justice of the European Union (hereinafter the CJEU). It is suggested that upon the accession of Ukraine, the CJEU’s impact will be comparable to the influence on legal orders of other EU Members States provided necessary preparatory steps, such as training for judges, are taken. It is established that the main functions of the CJEU are to interpret and ensure the uniform application of EU law in each EU Member State, to ensure compliance with EU law by EU countries and institutions, to ensure respect for the rights and freedoms of individuals, to provide clarifications to national courts, and to promote “positive integration” and “negative integration” of EU Member States. With respect to the above-mentioned functions, it is argued that the CJEU will become an effective tool for Ukraine after it accedes to the EU. It will facilitate the harmonization of national legislation with EU standards through the application of precedents by national courts, influence the activities of legislative bodies, and help prevent future complaints by becoming an additional “quasi-supervisory” body in Ukraine. It will also provide interpretation of the EU law at the request of national courts through the preliminary rulings and procedures, protecting human rights and freedoms by enabling individuals to apply to the CJEU for protection. At the same time, arguably, Ukraine will also impact the functioning of the CJEU by increasing the caseload and appointing judges from Ukraine as well as potentially Advocate-General. Given these potential implications, certain preparatory actions, like preparing a cadre reserve, may be considered at the present moment. Finally, the authors argue that even before Ukraine’s accession, the CJEU has an indirect impact on the Ukrainian legal order. It is suggested that constitutional amendments, as well as certain institutional changes like the establishment of an impartial judicial system and empowering a Ukrainian state body with powers to execute CJEU decisions, will need to take place prior to the accession, which is a demonstration of the CJEU’s indirect influence.
- ItemCriminal Mediation in Polish and Bosnian Legislation – Similarities, Differences, and Challenges in the 21st Century(Wydawnictwo KUL, 2023) Skrobotowicz, Grzegorz Adam; Kazić-Çakar, EnaWorldwide, mediation is one of the most used mechanisms of alternative dispute resolution across many fields of law and one of the most common forms of restorative justice. Although it brings advantages to criminal law, some criticize its potential application for certain types of crimes. However, its benefits seen through effectiveness, efficiency in reaching conflict solutions, and the positive impact on victims and perpetrators are irrefutable. Having that in mind, this article aims to conduct comparative research, discuss the functioning of mediation in criminal cases in Polish and Bosnian criminal law and present similarities and differences between their legal regulations. Mediacja jest jednym z najczęściej stosowanych na świecie mechanizmów alternatywnego rozwiązywania sporów w większości dziedzin prawa i jedną z najbardziej znanych form sprawiedliwości naprawczej. Choć ma swoje zalety dla prawa karnego, niektórzy krytykują jej potencjalne zastosowanie w przypadku niektórych rodzajów przestępstw. Jednakże korzyści płynące z jej stosowania, postrzegane poprzez skuteczność, efektywność w osiąganiu rozwiązań konfliktu oraz pozytywny wpływ na ofiary i sprawców, są niepodważalne. Mając to na uwadze, celem artykułu jest przeprowadzenie badań porównawczych i omówienie funkcjonowania mediacji w sprawach karnych w polskim i bośniackim prawie karnym oraz przedstawienie podobieństw i różnic pomiędzy tymi regulacjami prawnymi.
- ItemDemocratic Transition or Autocratic Adjustment? Constitutional Amendments in Kazakhstan and Uzbekistan in 2022–2023(Wydawnictwo KUL, 2024) Czachor, RafałCentral Asian states have recently implemented significant constitutional reforms. In the case of the authoritarian republics of Kazakhstan and Uzbekistan, the nature of the constitutional amendments, introduced in 2022 and 2023, respectively, is hard to accurately assess. On the one hand, they are a step towards democratization and strengthened guarantees of human rights and freedoms; on the other, they reinforce the current undemocratic government mechanisms. This article discusses the most recent constitutional reforms in both countries, distinguishing three main areas of change: ideology, social issues, and governance mechanisms. It is argued that these reforms generally fall within the paradigm of authoritarian constitutionalism and are an adjustment of the countries’ constitutions to the current needs of their undemocratic presidents.
- ItemDetention Pending Execution of the European Arrest Warrant – Dutch and Polish Experience. Some Reflection from the Human Rights Perspective(Wydawnictwo KUL, 2023) Glerum, Vincent; Wąsek-Wiaderek, MałgorzataThis article focuses on detention pending surrender, i.e. detention of the requested person in the executing Member State on the basis of the European Arrest Warrant (EAW). It defines the scope of application of Article 5 of the European Convention on Human Rights to such detention and analyses the case-law of the Court of Justice of the European Union on time limits of keeping the requested person in detention in the executing MS as well as on the notion of “the executing judicial authority” entitled to decide on detention pending surrender. Both issues are explored with reference to national law and practice of the Netherlands and Poland. The article provides the answer to the question whether national provisions which limit the duration of detention pending surrender properly reflect the normative content of the framework decision on the EAW. The answer to this question is given with due regard to the standard of protection of the requested person stemming from Article 5 § 1 ECHR and Article 6 of the Charter of Fundamental Rights. Furthermore, the analyses focus on Dutch and Polish provisions concerning the authority entitled to decide on detention pending surrender and their compliance with the CJEU’s jurisprudence on the notion of “the executing judicial authority.” Recognising that detention is the basic measure for ensuring the effectiveness of surrender, we try to define the limits of its use in the EAW procedure, stemming from the requirements of protection of human rights.
- ItemDigital Competences and Digital Skills in the Legal Regulation of the Digital Transformation of the European Union(Wydawnictwo KUL, 2024) Szpor, Grażyna; Hajduk, PawełIn the digital transformation process, the phases focusing on technical and economic aspects were followed by a phase exposing human capital issues. In approximately 3,000 acts of the European Union relating to the digital transformation process published in Eur-lex, as well as in an increasing number of national acts of the Member States, the terms “digital competences” and “digital skills” appear. They occur, inter alia, in the context of the financing of development tasks and their achievement indicators. In the application of existing law, it must be taken into account that the scopes and interrelationships of these new terms are framed differently. This ambiguity may have a negative impact on the effectiveness of digital transformation. It is postulated that the terminological consistency of the multi-level regulation should be improved and, in doing so, it should be noted that the prominence of digital skills in prospective acts and the way in which knowledge is captured can affect the use of the potential of universities.
- ItemDo the Rules of Europe’s Leading Institutional Arbitration Courts and the UNCITRAL Arbitration Rules Need to Be Revised? Assessment from the Perspective of 2023(Wydawnictwo KUL, 2023) Asłanowicz, MarcinWhile some issues (e.g. the principles of service, the expedited procedure for resolving cases and the admissibility of securing a claim before initiating proceedings) are regulated in a manner that satisfies the requirements of 2023, other issues (e.g. the rules of holding remote hearings or the consequences of failing to meet deadlines in arbitration, in particular the deadlines for issuing an award) would require a number of modifications and improvements. This suggests that a postulate should be presented for a broader discussion within the community – both in Poland and abroad – on the shape of the regulations in this area that would be the most comfortable for the parties to the proceedings, the arbitral tribunals and the arbitral institutions, while respecting the basic (universal) arbitration rules.
- ItemEAW: Next Steps, Will Pandora’s Box Be Opened?(Wydawnictwo KUL, 2023) Glerum, Vincent; Kijlstra, HansThe authors advocate operational improvement of the European Arrest Warrant system. When applying the judicial cooperation instruments concerning criminal matters, more attention should be devoted to the requirements of proportionality, effective judicial protection, and coherence. The power to issue an EAW should be more circumscribed whereas executing authorities should be allowed more flexibility in the decision making process as far as the execution of an EAW is concerned. The authors conclude by sketching amendments to the legal and practical framework and the efforts required to implement them as well as by addressing the issue of political feasibility.
- ItemEconomic Dependence as a Criterion for the Protection of the Self-Employed under EU Law and in Selected Member States(Wydawnictwo KUL, 2024) Duraj, TomaszThis paper presents the cornerstones of the conceptual distinctions necessary to map out a separate category of workers, namely “economically dependent self-employed workers” (who fall between dependent subordinated employees and independent self-employed entrepreneurs) from the perspective of the EU law and the laws of selected Member States. The author considers how the economic dependency of self-employed workers should be defined, which method(s) of protection should be applied to these workers, and what scope of protection they should enjoy. The observations in this paper serve as a basis for de lege ferenda recommendations for the Polish legislator. At present, there is no separate category of “economically dependent self-employed workers” in Polish law.
- ItemEnergy Exchange, Association Agreement with the European Union and Legal Challenges for the Georgian Energy Law(Wydawnictwo KUL, 2023) Partsvania, Maka; Gegenava, DimitryGeorgia signed an Association Agreement with the European Union in 2014, and this launched a process of approximation and harmonization with EU law. Energy law is one of the most important areas, which has to be developed and modified in accordance with the EU directives, regulations and rules of the Energy Community. Georgia took responsibility for establishing the energy exchange system and reorganizing the Georgian electricity market on a new model. In fact, these issues have not been studied, as they require, on the one hand, a very in-depth, practical knowledge of the issue and, on the other hand, erudition in the issues of legal approximation and information about the obligations assumed by the association agreement. The purpose of the article is to review the legislative regulations on the Georgian electricity market, the legal framework that defines the main principles of the market, the basis of operation, and sociopolitical and legal mechanisms of market stability. In the article, special attention will be paid to the status of the energy exchange in Georgia, its concept, its legal basis, problematic issues related to its implementation, and the future perspective. As a result of the analysis of the issues, based on the evaluation of the existing problems, the necessary legal ways of the development of energy law and the mechanisms promoting harmonization with the laws of the European Union are determined.
- ItemErosion of the Principle of Mutual Recognition. European Arrest Warrant and the Principle of Mutual Recognition in the Light of the Recent CJEU Rulings(Wydawnictwo KUL, 2023) Sakowicz, AndrzejAn effective implementation of mutual recognition in the Area of Freedom, Security, and Justice requires mutual trust between the Member State. Mutual trust has been eroded in some Member States due to the rule of law crisis. However, it is not only the rule of law crisis, but also the departure of the Member States from the shared values of respect for fundamental rights, as well as the differences in the prosecutorial systems of individual Member States, that have caused changes in the perception of the principle of mutual recognition. This paper will examine the evolving approach to the principle of mutual recognition based on the recent Court of Justice of the European Union rulings on the European arrest warrant. The analysis concludes that the CJEU attaches more importance to the protection of the principle of mutual recognition, the prosecution of perpetrators of crime, and the unwavering presumption of respect for fundamental rights by the Member states than to the effective protection of fundamental rights.
- ItemEU Directive on Work-Life Balance for Parents and Carers in the Context of Human Resources Problems in the Polish Public Administration(Wydawnictwo KUL, 2024) Łukaszuk, AnnaThis article attempts to present and assess the adequacy of the solutions in the directive on work-life balance for parents and carers in the context of the problems and challenges faced by the Polish public administration in human resource management. The directive’s solutions are analyzed from the perspective of post-pandemic reality, demography, changes in the structure of society and equality, and growing numbers and activation of women in the labor market. An example of applying the WLB policy in the Polish civil service was also presented.
- ItemEvidence Limitations on the Part of the Entrepreneur in the Economic Process(Wydawnictwo KUL, 2023) Rzewuski, MaciejThis article addresses an issue that is highly debatable both in the theory of civil procedural law and in the practice of jurisprudence, namely the entrepreneur’s right to a court and, consequently, the possibility of respecting the principle of material truth in a separate proceeding in commercial cases in the context of evidentiary limitations introduced by the legislator under the Act of 4 July 2019 amending the Code of Civil Procedure. Due to the fact that eponymous matters are complex and multifaceted, the present article shall describe and signal selected specific issues, which seem to raise the most doubts among representatives of the world of science and practitioners who apply civil law daily.
- ItemGloss on the Judgement of the Polish Supreme Court of 2 June 2022, I KZP 17/21(Wydawnictwo KUL, 2023) Kosowski, JakubThe article discusses the decision of the Polish Supreme Court of 2 June 2022, I KZP 17/21. The ruling of the Supreme Court was issued based on a legal question submitted by a common court in relation to the European Investigation Order (EIO). The Author refers to the ruling by discussing broadly both the issues of the legal question and the authority issuing the European Investigation Order within the framework of pre-trial proceedings. Of paramount importance are the characteristics of the subjective sphere, i.e. the authority empowered to issue a European Investigation Order from the point of view of legally protected confidential information, in particular bank secrecy constituting the subject matter that served the basis for the ruling of the Supreme Court being commented herein. Artykuł odnosi się do postanowienia Sądu Najwyższego z dnia 2 czerwca 2022 r., I KZP 17/21. Orzeczenie Sądu Najwyższego wydano na kanwie pytania prawnego skierowanego przez sąd powszechny a odnoszącego się do europejskiego nakazu dochodzeniowego (END). Autor odnosi się do przedmiotowego rozstrzygnięcia szeroko omawiając zarówno zagadnienia pytania prawnego, jak i zagadnienie organu wydającego europejski nakaz dochodzeniowy w postępowaniu przygotowawczym. Niebagatelne znaczenie ma charakterystyka sfery podmiotowej, tj. organu uprawnionego do wydania europejskiego nakazu aresztowania z perspektywy tajemnic chronionych prawem, w szczególności tajemnicy bankowej, której dotyczy stan faktyczny będący przyczynkiem do wydania glosowanego postanowienia Sądu Najwyższego.
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