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 Few Remarks About Challenges in Application of Restorative Justice: A Case Study of Bosnia and Herzegovina(Wydawnictwo KUL, 2022) Kazić-Çakar, Ena; Ćorović, RialdaRestorative justice is without any doubt one of the most important steps in the development of criminal law, which at the same time increased the level of humanity in the approach towards perpetrators and victims and managed to achieve the principle goals of criminal law. A few decades have passed since its idea and approach was borrowed from the traditional communities that among themselves applied it for centuries, and it was transformed into the new approach of justice offering many benefits to the community where it is established. Formally, it has been more than 20 years since Bosnia and Herzegovina embraced restorative justice within its criminal law. This paper aims to discuss how much de facto it has been applied in this country and to present results of interviews with representatives from legal theory and practice where they refer to restorative justice and its major challenges for application and propose mechanisms for overcoming existing difficulties. In this article, the authors use normative, descriptive scientific methods and statistics and interviews as tools for the collection of data.
- ItemA Gloss to the Judgment of the Appellate Court in Warsaw of 28 May 2013 (VI Aca 785/13)(Wydawnictwo KUL, 2022) Witczak, HannaIn the glossed judgement, the Appellate Court examined the possibility of declaring the respondent unworthy of succession should he have committed the offence of avoidance of the duty of maintenance of the testator (Article 209 PC) or the offence of abandonment of the testator (Article 210 PC). The court’s considerations were purely hypothetical, as in the course of the proceedings, it was not proven whether the heir had actually committed these offences. The court allowed the recognition of the heir as unworthy if he had committed the offence of persistent avoidance of the duty of maintenance, but only if it could be proven. The court’s position raises certain doubts. Any conduct that violates familial nexus, in particular, should be verified for the existence of grounds for exclusion from succession, since this bond, in the legal sense, has its source in the relationship of marriage, consanguinity, and affinity, and these determine the legal title to inheritance. In particular, it is not understandable why persistent failure to fulfil family obligations, even if it is not an offence that a civil tribunal could additionally qualify as serious, does not actually produce legal consequences for the parent if the other party to the family relationship is a minor. It seems that wherever we are confronted with malicious and intentional failure to perform family duties, it should be assumed, provided that the statutory criteria of this specific type of offence are met, that in abstracto a serious offence has taken place.
- ItemA Parent Company’s Liability for Anti-Monopoly Damages to its Subsidiary’s Creditors Considering the New Regulations of Corporate Groups(Wydawnictwo KUL, 2022) Wieczerzyńska, BeataThe operations of a corporate group managed by a parent and guided by a shared strategy and interests of the group may in some cases cause damage to a subsidiary’s creditors. This study will in particular focus on the liability towards creditors for anti-monopoly damages caused by a breach of competition laws and not resulting from the binding orders of a parent company to its subsidiary. It is especially important to establish if and possibly how a parent’s liability arises for antimonopoly damages to its subsidiary’s creditors where it’s not related to a binding order, considering the special regulations of liability for damages caused by breaches of competition laws in the context of the new regulations of corporate groups.
- ItemActual challenges for the implementation of judgments of the European Court of Human Rights(Wydawnictwo KUL, 2022) Jaskiernia, JerzyThe author analyzes the problem of the implementation of judgments of the European Court of Human Rights (ECtHR). In light of the European Convention on Human Rights (ECHR), a special role in its control mechanism is played by the Committee of Ministers of the Council of Europe. Despite the measures taken, there have been delays in the execution of judgments or the lack of their implementation for years. The author analyzed this problem in light of the latest reports of the Committee of Ministers and the recommendations of the Parliamentary Assembly. He pointed to the need for greater activity in this process of other bodies of the Council of Europe, including: the Commissioner for Human Rights, the Venice Commission, the CPT, the ECRI as well as institutions of the civil society. In the last decade, the interest of the Parliamentary Assembly of the Council of Europe in this matter has clearly increased. The author postulates that parliamentarians sitting in this body should be more active in this regard in their countries. They have instruments of control on the executive power, which could be used to increase the effectiveness of the execution of the ECtHR’s judgments.
- ItemAdministration of the Estate under Regulation (EU) No. 650/2012(Wydawnictwo KUL, 2021) Górecki, JacekIn the period between the deceased person’s death and division of assets in the deceased person’s estate among the heirs, an essential matter is administration of the estate. Persons exercising such administration should have adequate competences allowing them to perform factual and legal acts in relation to assets in the succession estate. The range of such persons and the scope of their competences differ in specific Member States of the EU. The law applicable to the administration of the estate, as well as other matters relating to succession, is currently designated by the Regulation (EU) No. 650/2012. This article is devoted to an analysis of the provisions of that Regulation on the administration of the estate. In addition, the article discusses the issue of qualifying the institution of succession administration as applicable in Poland with regard to an enterprise belonging to the succession estate. As a result of the investigations made, it can be concluded that administration of the estate is governed by the law applicable to the entirety of succession matters (lex successionis). This is the case also in respect of the succession administration recently introduced in Poland. Grounds for a different treatment of the succession administration cannot be found in Art. 30 of Regulation (EU) No. 650/2012.
- ItemAdmissibility of Evidence Obtained as a Result of Issuing an European Investigation Order in a Polish Criminal Trial(Wydawnictwo KUL, 2021) Kuczyńska, HannaThis article analyses the admissibility of evidence gathered by the Polish procedural authorities as a result of issuing an European Investigation Order, on the basis of provisions implemented due to the adoption on the 3rd of April 2014 of the Directive of the European Parliament and of the Council regarding the European Investigation Order in criminal matters. This Directive created a mechanism that allows for transfer of evidence between EU Member States. In this text, the question will be answered how to deal with results of investigative measures that have been legally obtained in the executing state but, despite acting in accordance with the legality principle by both states, happen to be illegal in the issuing Member State. Another discussed problem is how the rules of admissibility of evidence obtained from the result of issuing an EIO work in Poland – or at least how they should operate. The second discussed issue thus will refer to the current provisions in force in Poland regulating the method of dealing with evidence obtained abroad – that is also with evidence transferred from other Member States. It will be shown that they are unclear and may lead to undesirable results. In addition, suggested changes in Polish law will be proposed.
- ItemArtificial intelligence systems and the right to good administration(Wydawnictwo KUL, 2022) Wróbel, Izabela MałgorzataThe use of AI in public administration is becoming a reality, although it is still a long way from large-scale undertakings. The right to good administration, well-established in EU legal order, is equally real, however, it must be borne in mind that this right has so far been defined only in relation to traditional administration. Therefore, the purpose of the paper is to examine whether the use of AI in public administration would allow individuals to fully exercise their right to good administration. To achieve this purpose, it is reconstructed, on the basis of EU law provisions in force and the case-law of the CJEU, the meaning and scope of the right to good administration, and analysed, taking into account a definition of AI systems and planned legislative changes, whether and to what extent the reconstructed understanding of this right enables the use of AI systems in public administration. In the course of research, the hypothesis that the right to good administration does not preclude the use of AI systems in public administration is verified. As the conducted analysis shows, the right to good administration as interpreted in traditional administration enables the use of AI systems in public administration, provided that the appropriate quality of these systems and the level of knowledge and skills of the parties and authorities are ensured.
- ItemCausal Effect Relationship in Medical Cases. An Old Problem in a New Scenario. Commentary to CJEU Judgment (Second Chamber) of 21 June 2017, N.W. & Others V. Sanofi Pasteur MSD & Others, Case C-621/15, EU:C:2017:484. Approbative Gloss(Wydawnictwo KUL, 2021) Wnukiewicz-Kozłowska, Agata; Drozdowska, Urszula DorotaThis commentary evaluates the problem in assessing the role of a causal connection between damage and the use of a defective medical product, specifically a vaccine. The judgment of the Court of Justice of the European Union (CJEU) in the Sanofi Pasteur Case, which allowed the possibility of recognizing damage claims, even in cases where the prevailing scientific theory claims that there is no scientific evidence of a causal link between a vaccination and the disease, became a base for consideration. Consequently, procedural solutions (such as the standard of proof required, the admissibility of prima facie evidence reasoning and other solutions in cases of an uncertain causation) remain to be decided by national law. The authors assessed two legal systems: the French and Polish legal systems in the context of how to resolve these dilemmas and to describe the impact of the above-mentioned judgment on the case-law of French and Polish courts as regards the application of Directive 85/374/EEC. As a result, they concluded that the most important interpretative motive has become the individual interest of the vaccination’s victim as a consumer of medical services. It seems to be in accordance with Directive 85/374/EEC, which is motivated by the necessity of approximation of the laws of the Member States concerning the liability of the producer for damage caused by the defectiveness of his products. However, since the existing divergences may distort competition and affect the movement of goods within the common market and entail a differing degree of protection of the consumer against damage caused by a defective product to his health or property, in countries belonging to the European Union, the authors wonder how the commented judgment will affect the further development of consumers protection against defective vaccines.
- Item“Chilling Effect” in the Judicial Decisions of the Polish Constitutional Tribunal as an Example of a Legal Transplant(Wydawnictwo KUL, 2022) Chybalski, PiotrThe paper is dedicated to describing the way of reception by the Polish Constitutional Tribunal of the “chilling effect”, i.e. an institution related to such activities of public authorities that form an indirect act of deterrence regarding the execution of constitutionally guaranteed rights and freedoms, esp. the freedom of expression. The discussed concept has originated in judicial decisions of the US Supreme Court and has spread into many contemporary legal systems, including jurisprudence of the European Court of Human Rights. Although it is evident that the Tribunal “took over” that concept from the ECHR, it in fact developed its own, unfortunately internally inconsistent, understanding of the chilling effect. Four different ways of application of chilling effect may be noticed in judicial decisions of the Polish CT, while only two of them reflect the perception of this institution by the US Supreme Court and the ECHR.
- ItemCollective Work as an Inspiration for Legal Qualification of Computer-Generated Works – Comparative Analysis of the Institution from Polish and French Copyright Law Perspective(Wydawnictwo KUL, 2021) Kowala, MichalinaThe paper focuses on the question whether the institution of collective work could be used as an inspiration in order to regulate the legal situation of computer-generated works. Technological progress makes the creation of art by artificial intelligence with only minimal human participation an increasingly popular phenomenon. For this reason, world literature more and more often discusses how to legally qualify algorithmic creativity. An interesting idea, proposed in January 2020 by French Superior Council of Literary and Artistic Property, is to regulate the issue alike the institution of a collective work. The study of the nature of computer-generated creativity on the example of the Endel musical start-up conducted in this paper will help to understand the complexity of the problem of algorithmic creativity. It will be also a valuable introduction to the analysis of the institution of collective work in Polish and French law. This comparative study will be important in the context of assessing the French proposals for the legal qualification of algorithmic creativity and examining to what extent the model of the collective work can be applied to computer-generated works in Polish copyright law.
- ItemCombining Legal and Economic Theory. An Interdisciplinary Approach to Dutch and Polish Family Provisions in Succession Law(Wydawnictwo KUL, 2021) Beuker, MarkAlthough testamentary freedom is an important principle in succession law, legislators and judges across the world have recognized the importance of certain family members by granting them mandatory claims in the inheritance of their deceased relative (in spite of wishes of the deceased). This article focuses on these rights. The goal is to introduce the Dutch framework of imperative succession law and to demonstrate the possibilities of combining the legal and economic discipline to deepen knowledge on these provisions. Whilst examples will focus upon succession law, the concepts will be described in a general manner. This might inspire researchers to apply a similar interdisciplinary approach in other fields of law. The imperative provisions that currently exist for family members in the Netherlands can be divided into two types of claims. The first is the legitime, a fixed claim for children of the deceased. The second type are the other statutory entitlements that cover a specified range of situations in which judges have freedom in deciding upon the requests of family members. However, this discretion raises many questions on the way judges should handle such claims. A combination of law and economics can aid in describing and interpreting the law, for example by defining the need for support that is often required for a successful claim. By relying on economic data and theory, judges can come to a more consistent and substantiated way of establishing the need for support. The interdisciplinary methodology can also improve comparative legal research. The functional approach, that is common in comparative legal research, assumes that law fulfills certain functions. Economic figures provide an objective basis that demonstrates what functions a law fulfills and to what extent this is done efficiently. This information can be used to compare the functioning of laws in different countries.
- ItemCorruption and Human Rights in the Case Law of Inter-American Human Rights Treaty Bodies(Wydawnictwo KUL, 2022) Lis, EdytaThe first attempts to combat corruption date back to ancient times and had mainly moral connotation. Despite being an old phenomena, nowadays it takes new shapes and becomes a more common feature of social life, especially in the Latin America region. Corruption is a complex, and multidimensional phenomenon that negatively impacts human rights on many levels. Therefore, serious effort have long been made at global, regional and state levels to combat corruption. The United Nations and regional organizations have adopted numerous non-binding and binding documents with a view to stifling this phenomenon, but none of them refer to the issue of impact of corruption on human rights. But it should be stressed that it is very hard to establish a link between corruption and human rights violations. Some efforts has been made by the Inter-American Court of Human Rights (IACHR) and the Inter-American Commission on Human Rights (IAComHR). This article considers whether and how the IACHR and the IAComHR establish the link between corruption and violation of human rights in the inter-American system. It also determines which groups of people are, according the IACHR and the IAComHR, particularly affected by corruption, what measures should be taken to protect those exposed to acts of corruption, what obligations are incumbent on States with a view to preventing, combating and eradicating corruption.
- ItemCritical evaluation of new Council of Europe guidelines concerning digital courts(Wydawnictwo KUL, 2022) Świerczyński, MarekDigitalisation of courts plays an increasingly important role in dispute resolution. It has the ability to improve access to justice by facilitating faster and less costly access to courts, thereby making dispute resolution more effective and efficient. However, wide use of digital courts also has the potential to restrict access to justice. Attention needs to be given to issues of authentication and identification of the parties, digital divide, cybersecurity and personal data protection. This paper concerns recent guidelines of the Council of Europe that aim to fully address these issues and assist member States in ensuring that implemented digital techniques in the courts do not undermine human dignity, human rights and fundamental freedoms. The author answers and critically evaluates the specific questions and doubts relating to the content of the guidelines. The author’s recommendations can be taken into consideration by the Council of Europe in future updates of the guidelines.
- ItemDeath in Times of SARS-CoV-2 Pandemic. Legal Regulations of the Burial of the COVID-19 Deceased in Poland(Wydawnictwo KUL, 2021) Szczot, ElżbietaThe article discusses the issues of death in times of the SARS-CoV-2 pandemic and burial of the COVID-19 deceased. It also presents some currently binding legal regulations as well as restrictions and obligations for the organizers of the funeral connected with the infection of the deceased with COVID-19. Moreover, it shows the influence of state law on funeral regulations in the denominational form and the cult of memory of the dead.
- ItemDisinformation regarding COVID-19 in light of the priorities of the European Commission and the legal regulations binding and currently drafted in Poland(Wydawnictwo KUL, 2022) Jaskuła, Lidia KatarzynaDisinformation regarding the COVID-19 pandemic is a global phenomenon. It constitutes a threat to the values protected under the law, health in particular. The primary issue tackled in “Disinformation regarding COVID-19 in the light of priorities of the European Commission and the legal regulations binding and currently drafted in Poland” paper is an attempt at answering the following question: Is eliminating COVID-19 disinformation from public space possible in light of the priorities of the European Commission and the legal regulations already effective and currently being drafted in Poland? The analyses conducted under the paper lead to the conclusions that the provisions currently regulating freedom of expression theoretically constitute a basis for eliminating disinformation from public space but are, in practice, not very effective. This leads to the need for searching for other, more effective legal instruments in this field, both on the level of European Union law making and domestic legislation. Although we may speak of a consensus concerning assessment of the very phenomenon of disinformation the legislative and practical actions taken, both on the domestic level and the European Union level, enable us to indicate substantial and frequently disturbing differences regarding shifting the aspects emphasized by legislation. As compared to the proposed solutions drafted by the European Commission and the drafts of domestic acts, the vastly different approach to the idea of controlling disinformation is clearly visible. Therefore, it must be stated that such circumstances will lead to development of varied legal effects of the drafted regulations that will decide, among other issues, the practical effectiveness or lack thereof in the case of the drafted solutions. In the course of the analysis of the issue constituting the subject of this paper, we should concurrently bear in mind that freedom of expression is one of the principles in a democratic state governed by the rule of law.
- ItemDuty of loyalty and due care of the board member under Polish law(Wydawnictwo KUL, 2022) Pinior, PiotrDuty of loyalty and due care of the board’s members have been lately introduced to the provisions of the Polish Commercial Companies Code. This paper aims to define the duty of loyalty and due care of the board members, as presented in the Polish doctrine, as well as in the British, Spanish, and German laws. Additionally, the impact of the new provisions on the liability of the board members shall be described.
- ItemEmployment of Adolescents and Children in the Aspect of Polish Educational Reform – Chosen Legal Problems(Wydawnictwo KUL, 2021) Kloczkowska, MilenaThe employment of adolescents is an extremely important phenomenon, although doctrine rarely discusses it. This solution enables young people to gain qualifications early and promises long and successful cooperation for the employer. It should be remembered, however, that at such a young age the most important sphere of life is not work, but education and appropriate psycho-physical development. Bearing in mind the delicacy of children and adolescents, it is necessary to create legal constructions which will protect young people from too early collision with problems connected with work such as: stress, exhaustion, and pressure. The notion of adolescence is constantly intertwined with the notion of child, and it is not easy to judge when these terms are used. This article intends to discuss these terms, and to present them through the applicable laws. In addition, the article presents research on the employment of adolescents and children in Poland based on reports from the National Labour Inspectorate. The legislator had a difficult task - to create appropriate regulations which would not only make work possible, but at the same time properly secure the already mentioned most important spheres of life of adolescents and children. This task undoubtedly becomes even more difficult when the change of other legal acts forces a rush to regulate such a delicate legal sphere. The aim of this article is to present advantages and disadvantages of current legal constructions based on the analysis of regulations and statistics.
- ItemEuropean Investigation Order – Selected Problems on Polish Implementation(Wydawnictwo KUL, 2021) Woźniewski, Krzysztof WiesławThe paper presents selected key problems of Directive 2014/41/EU regarding the European Investigation Order in criminal matters within the context of its Polish implementation in 2018. The paper focuses on the concept of investigative measures, administration of justice and exclusionary evidence rules as a limitation of issuing a Polish EIO. Additionally, the study attempts to approximate the reduced procedural mechanism in the context of issuing the ECI.
- ItemEuropean Union model of whistleblowing(Wydawnictwo KUL, 2022) Kobroń-Gąsiorowska, ŁucjaIn October 2019, the European Union adopted the Directive on protecting persons reporting breaches of European Union law, commonly known as the „Whistleblower Protection Directive” (EU Directive). The protection of national policies is beyond the scope of the Directive, as its sole purpose is to encourage people to report "breaches of EU law", ie, to strengthen „enforcement of the Union law and policies in specific areas”. The Directive is not concerned with the protection of workers or employees. The Directive treats whistleblowers as an instrument for reporting irregularities. Another proof of the instrumental approach adopted in the Directive is the lack of any financial incentives for whistleblowers. This article's basic thesis is that despite dynamic and multifaceted changes in the economy of individual countries, the accepted model of whistleblowing in the European Union will depend on repeated multidimensional analysis of the principle of the lawyer's loyalty to the organization. The research presented below aims to prove the validity of the adopted thesis.
- ItemExcluding Forced Heirs due to a Lack of Personal Relationship with the Deceased in Spain in a Comparative Perspective(Wydawnictwo KUL, 2021) Garcia-Teruel, Rosa M.Forced heirship is considered a limit on the freedom of will of the deceased in favour of intergenerational solidarity. It involves that some relatives, usually descendants, have the right to claim a share of the deceased’s assets or estate. Although recognized in most EU jurisdictions, authors discuss about the need to regulate this institution taking into account new family models and societal changes. In fact, this debate has been intensified due to the COVID-19 pandemic, which showed that several elders died alone in nursing homes without family support, and part of their assets shall be reserved to their relatives. This paper analyses the legal framework of forced heirship in Spain and examines to which extent it is possible to exclude this right due to a lack of personal relationship with the beneficiaries in view of comparative models.