Review of European and Comparative Law

Culpa in Contrahendo: A Testimony to the Changing Methodologies in Private International Law

Maria-Anna Zachariasiewicz — 2025-06-27

The concept of culpa in contrahendo traditionally encompasses cases of disloyal conduct by the parties during the negotiation stage of a contract. It applies to a broad range of factual scenarios. Furthermore, the legal nature of culpa in contrahendo has long been the subject of debate, with some legal systems favouring its classification as a contractual matter and others as a delict. In the realm of private international law, these issues present significant challenges in terms of legal characterization as aptly demonstrated by the well-known case of Tacconi v. Wagner (2002), in which the Court of Justice of the European Union (CJEU) delineated the application of Articles 5(1) and 5(3) of the Brussels Convention (now Articles 7(1) and 7(2) of the Brussels I bis Regulation). The CJEU favored a tort-based qualification for claims arising from the breach of pre-contractual duties, but only insofar as they were not grounded in “obligations freely assumed by one party towards another.” Despite the stance taken by the CJEU – which reflects the traditional conflict-of-laws approach, strictly distinguishing torts from contracts – the EU legislator, in Article 12 of the Rome II Regulation (2007), adopted a solution that can be described as an “accessory connection.” According to this provision, the law applicable to a non-contractual obligation arising from dealings prior to the conclusion of a contract – regardless of whether the contract was ultimately concluded – is the law that applies to the contract or that would have applied to it had it been entered into. Only in exceptional cases will the applicable law be determined by connecting factors traditionally associated with torts, such as the place of damage (Article 12(2)). Thus, regardless of the delictual nature of culpa in contrahendo, such obligations are governed by the law applicable to the contract, even in instances where the contract never materialized. The article explores various approaches to the conflict-of-law characterization of pre-contractual liability and contrasts tchem with the pragmatic method of identifying the spatial “center of gravity” of the relevant legal relationship. Additionally, the article examines how the “accessory connection” operates under Article 12 of the Rome II Regulation with respect to pre-contractual liability, highlighting its advantages. It argues that while the adopted solution does not entirely dispense with traditional conflict-of-laws characterization, it significantly diminishes its practical application, as the lex contractus will invariably apply. Consequently, the EU legislator favors an independent localization of the legal relationship based on pragmatic criteria – specifically, an accessory reference to the law applicable to the contract.

Judicial Independence in Croatia Under European Scrutiny: Analysis of the Ruling Hann-Invest and Others (Or How to Save Judges from Other Judges)

Susana Sanz-Caballero — 2025-06-27

This contribution analyses the first case presented to the Court of Justice of the EU that questions the independence of the judiciary in Croatia. The case has several unique aspects. First, it addresses threats to judicial independence from within the judiciary itself, which is unusual, as most cases typically involve external pressures from the executive or legislative branches. Second, while the judicial practice under scrutiny was deemed contrary to EU law, interestingly the Court explained to Croatian authorities how they could rectify the situation. Third, the Advocate General’s Conclusions largely diverge from the Court’s ruling. While this is not so uncommon, it proves that this was not an easy case. Last, the case challenges and ultimately deems unjust a judicial practice that persists in Croatia as a remnant of the country’s communist past and which draws inspiration from an era when judges were subject to a strict judicial hierarchy to the detriment of their own autonomous opinion. The paper delves into the specifics of the Croatian case. It compares the legal reasoning of the Advocate General and that the Court of Justice, illustrating their differing approaches. The contribution explores other arguments that were not raised in the Conclusions that, interestingly, were included in the Court’s judgement. The Court ruled that Croatia’s practice – where a registrar judge, not involved in the case, could override a decision made by the court handling the case, and where an extended section of the court could also force the judges handling the case to give up their legal reasoning before they could even rule on the case – was incompatible with Article 19 TEU.

Virtual Conciliation and Mediation Hearings: A Systematic Review

André Luiz Alves — 2025-06-27

This article aims to conduct a systematic review on virtual conciliation and mediation hearings to identify their strengths, weaknesses, and areas for concern. The study employs a systematic review methodology, allowing for the identification, selection, analysis, and synthesis of relevant academic works. The research is directly linked to digital judicial governance, examining its dimensions in terms of accessibility, resources, structure, and judicial performance. By reviewing and analyzing the scientific studies available on Scopus, Web of Science, HeinOnline and Google Scholar databases, this study identifies recurring analytical dimensions and provides a framework that can serve as a basis for future research, contributing to the advancement of this area of knowledge.

The Consul and the Hungarian Diaspora: Legal Background and Practical Considerations

Endre Domaniczky — 2025-06-27

The study reviews the legislation governing the relationship between the consul and the Hungarian diaspora. In doing so, we have referred to the historical background, when the consul, who basically had other tasks, was given official tasks already after the Compromise of 1867. We then saw how the Vienna Consular Convention of 1963 established a new and uniform catalogue of tasks for consuls, which, because of its acceptance, gradually became a basic standard. Hungary ratified this treaty in 1987, and initially consuls did indeed exercise their administrative and other – cultural, scientific and economic – duties as provided for in Article 5 of the VCC. Later, however, after 2010, the administrative tasks of the consuls became primary, while the other tasks, including general liaison with the diaspora, were taken over by other levels of the emerging national diaspora policy institutions. All this means that although the consul will continue to be in contact with Hungarian communities abroad and their members, and this relationship will be fundamentally shaped by the legal framework, the consul will no longer participate in this role primarily as a diplomat, but as a public administration professional.

The “Russian Law” in Georgia: Human Rights, Legal Certainty, and the Passions of the Georgian Lawmakers

Dimitry Gegenava — 2025-06-27

The article examines Georgia’s Law “On Transparency of Foreign Influence” (the “Russian Law”), analyzing its implications for fundamental rights and democratic governance within Georgia’s post-Soviet context. Through comparative analysis of the United States’ Foreign Agents Registration Act (FARA) and the Russian Federation’s Foreign Agents Laws (RFAL), the research demonstrates how Georgia’s legislation substantively aligns with the Russian rather than the American act, despite claims by its proponents. The study reveals how the Georgian legislation creates substantial barriers to civil socjety operations through mandatory registration requirements, intrusive monitoring mechanisms, and punitive financial sanctions. Drawing upon the European Court of Human Rights jurisprudence and the Venice Commission’s opinions, the analysis shows that while the law ostensibly pursues transparency objectives, its practical effect significantly impedes democratic development and Euro-Atlantic integration aspirations, potentially constituting a regression in Georgia’s post-Soviet democratic trajectory. The findings contribute to discourse on legal mechanisms for civil society regulation in emerging democracies, offering critical insights into how transparency frameworks can become instruments of institutional control. This investigation holds particular significance for understanding contemporary challenges to democratic consolidation in post-Soviet states and the complex interplay between legal frameworks and political transformation processes.

Establishment of the Authority for Anti-Money Laundering. Why Does the European Union Need to Institutionalize Anti-Money Laundering?

Tomasz Matras — 2025-06-27

The Regulation of the European Parliament and of the Council of 31 May 2024 establishing the Authority for Anti-Money Laundering and Countering the Financing of Terrorism (AMLA) is an important step in combating money laundering and the financing of terrorism. This article outlines why this initiative was deemed necessary and what the objectives and powers of the new Authority will be. The primary method used during the research was the formal-dogmatic method through an analysis of the provisions regulating AML. The new Authority’s goals and functions were verified using legal acts, reports and studies from European Union bodies. On the basis of these, conclusions are presented on the purposefulness of the AMLA’s establishment, its scope of tasks and how it is expected to function. Some of the proposed assumptions – especially regarding the effectiveness of the direct supervision the AMLA is to perform – were subject to critical analysis. The research results show that, to increase the effectiveness of overall AML policy in the European Union, the new Authority must cooperate successfully with both EU and national authorities – primarily the Financial Intelligence Units of Member States.

State as an Heir: Balancing Public and Private Interests in Georgia and Europe. Part II: Dilemma of the State as Legal Successor

Irakli Leonidze — 2025-06-27

As previously stated in Part I, Article 1343 of the Civil Code of Georgia establishes the state as a “sixth-degree” heir, signifying that the state possesses a legitimate public interest in acquiring heirless property. Considering the state as a heir in the same capacity as individuals would conflict with the private interests of those individuals, particularly when they might have a legitimate claim to the heirless property. It is vital to circumscribe the state’s involvement to the minimum necessary in order to fulfil its public interest. The Part II of the article is dedicated to an examination of the dilemma faced by the state in its capacity as legal successor, posing the question of whether it should assume the role of “sixth degree” heir or defender of the public order.

A Framework for Conditional Sunset Clauses

Petr Gangur — 2025-06-27

Sunset clauses are a legislative method ensuring that a law expires at a certain time. This legislative tool can be further divided into conditional and unconditional sunset clauses. While unconditional sunset clauses are well-known and without much controversy – the duration of a law in such a case is usually dependent on a specific date – conditional sunset clauses are more complex and less debated. This article develops a structured framework of conditional sunset clauses that distinguishes these clauses primarily by a measure of legal certainty. The article divides conditional sunset clauses into three distinct categories: formal, semi-formal, and non-formal sunset clauses. With examples of their use across jurisdictions, it shows their differences – formal sunset clauses are based on public authority and are an official source of law (they are typically also published in an official statute book or public register), while semi-formal ones are also based on public authority, but any transparently published information is sufficient for their classification. Non-formal sunset clauses may be linked to actors other than the public authority and the reference to them may be non-public; however, the key question regarding these sunset clauses is whether they can be considered legal. This study highlights the challenges in applying conditional sunset clauses, their impact on the predictability of law, the separation of powers and the democratic rule of law as a whole. This framework enables legislators, judges and especially legal scholars to effectively classify these sunset clauses and to contrast them with their local legal orders, constitutions and laws.

Actio Directa as an Element of the Polish and European System of Protection of Victims of Traffic Accidents

Ewa Wójtowicz — 2025-06-27

Liability insurance involves a direct claim by the injured party against the insurer (actio directa). In the case of compulsory motor insurance, it is guaranteed not only by the Polish Civil Code, but also by EU directives (currently Directive 2009/103/EC of the European Parliament and of the Council of 16 September 2009 relating to insurance against civil liability in respect of the use of motor vehicles and the enforcement of the obligation to insure against such liability). Doubtful issues related to the application of this power have repeatedly been the subject of rulings by Polish courts and statements by the doctrine. The purpose of the article is to present the nature of the actio directa and selected problems related to the application of this entitlement in practice, in particular by presenting the jurisprudence of Polish courts and the CJEU. At the same time, the article highlights the issues arising in the situation of the application of national civil liability provisions and harmonized provisions on compulsory motor vehicle insurance to this entitlement. One of the important problems is the difficulty in drawing clear boundaries between national, non-harmonized regulation, and European Union law. The research methodology used includes: analysis of the legal provisions, the caselaw of the Polish courts and CJEU as well as the views of the doctrine.

The Legal Character of Polish Disciplinary Proceedings for Advocates and Legal Advisers in Light of the Case Law of the Polish Constitutional Tribunal and the European Court of Human Rights

Tymon Markiewicz — 2025-06-27

The article presents an analysis of the case law of the Polish Constitutional Court and the European Court of Human Rights regarding the nature of disciplinary proceedings for advocates and legal advisers in Poland. The analysis is based on a comparison of the standards outlined in the case law of both courts, demonstrating that disciplinary proceedings in legal professions in Poland have a repressive character, even though they are not formally criminal proceedings.

The Effectiveness of North Macedonia’s Legal and Institutional Framework for Combating Human Trafficking

Gjorgi Slamkov — 2025-06-27

Human trafficking is a global problem that fundamentally violates human freedoms and rights because a person is treated as an object exposed to various forms of exploitation, primarily sexual, forced labor, slavery, violation of bodily integrity, and other unlawful acts. The paper focuses on the normative and institutional framework of North Macedonia for combating human trafficking with an emphasis on effectiveness, i.e. the extent to which the established framework achieves its goal. The hypothesis of the research is that the creation of a national normative and institutional framework for combating human trafficking is not in itself a guarantee that it will be effective, i.e. that a substantive approach by the state is needed in the implementation of policies and the provision of the necessary resources for effectiveness. The research resulted in conclusions that point to several weaknesses in the framework for combating human trafficking in North Macedonia, including the lack of resources among competent institutions, inadequate sanctioning practices, weaknesses in coordination, and inadequate assistance and protection of victims. The paper contains several proposals for improving the effects of the fight against human trafficking, which are aimed at all segments of the social response through awareness-raising, education, prevention and repression. Several methods have been applied, namely, content analysis, historical and comparative methods. The paper also presents statistical data from several national and international institutions and organizations.

Commercial Agent as a Self-Employed Intermediary : A Gloss to the Judgment of the CJEU of 21 November 2018 in Case 452/17, Zako SPRL v. Sanidel SA

Dariusz Bucior — 2025-06-27

According to Article 1(2) of Directive 86/653, only a self-employed intermediary can be considered a commercial agent. The first and only judgment of the CJEU that deals with the interpretation of the condition of self-employment is the judgment of November 21, 2018, in Case 452/17, Zako SPRL v. Sanidel SA. In this judgment, the CJEU pointed to some general guidelines on how to assess self-employment (independence) and assumed that the premise of self-employment (independence) also applies to intermediaries who are legal persons. The gloss positively assessed the CJEU’s indication that the assessment of self-employment (independence) should be made taking into account all the circumstances of the case, which seems to confirm that, in the CJEU’s opinion, the typological method should be applied in this respect. There is also no doubt about the specific criteria indicated by the CJEU, such as the extent to which the intermediary is subject to the principal’s instructions, the degree of freedom in organizing his activities, the degree of economic risk, and the method of calculating the remuneration. It can be assumed that the CJEU correctly took the view that it is the personal independence of the intermediary that matters, not economic independence. What raises the most doubts is the assumption that the condition of self-employment (independence) also applies to intermediaries that are legal persons. The meaning of the term “self-employed” and systemic argumentation (referring to the TFEU provisions on the freedom of establishment) justify the view that, according to the legislator’s intention, the self-employment (independence) requirement was to apply only to natural persons. The position of the CJEU that this requirement also applies to legal persons has no functional justification (legal persons cannot be employees). In addition, it unnecessarily hinders the application of the regulations on agency agreements.