Review of European and Comparative Law

Gloss to the Decision of the European Court of Human Rights of May 15, 2018, Case Number 2451/16 , Association of Academics v. Iceland, Hudoc.int

Karol Sołtys — Thu, 30 Mar 2023 00:00:00 +0200

In the judgment of the ECtHR in the case of Association of Academics v. Iceland, the Court commented on two important issues concerning the broadly understood procedure for resolving collective disputes. Firstly, the Court pointed out that “found that the taking of industrial action should be accorded the status of an essential element of the Article 11 guarantee but it is clear that strike action is protected by Article 11 as it is considered to be a part of trade union activity”. Secondly, it considered that the institution of mandatory arbitration could be a substitute for the right to strike, which was prohibited due to the need to protect the health of Icelandic citizens. In the context of the issues outlined in this way, the aim of the gloss is to verify the two theses mentioned above. First, the thesis was analyzed according to which the right to strike is not an essential element of freedom of association. For this reason, the jurisprudence of the Tribunal has been discussed against the background of ILO standards, taking into account the doctrine’s views on the status of the right to strike in the system of human rights protection and its relationship with other irenic methods of dispute resolution. Secondly, the thesis of the ECtHR was verified, according to which the mandatory arbitration established by the Icelandic legislator in the circumstances presented in the facts of the case does not constitute a violation of the right to strike. As part of the second thesis, the concept of mandatory arbitration and its status in the jurisprudence of the Court, as well as ILO bodies and labor law doctrine were analyzed. Finally, the relationship between the right to strike and social arbitration was examined.

The Obligations of Entrepreneurs Providing Services by Electronic Means

Małgorzata Ganczar — Thu, 30 Mar 2023 00:00:00 +0200

The development of new information and communication technologies affects economic development. E-services, along with the accompanying social changes, are being implemented in almost every area of human life, and the development of information and communication technologies makes it possible to employ a number of new instruments in its various spheres (e-banking, e-commerce, e-education, etc.). Currently, the information space in the context of the provision and use of e-services includes consumers and entrepreneurs although it assigns them different rights and obligations in this area. It seems necessary to assess the impact of the implementation by entrepreneurs of obligations related to the provision of e-services and their impact on the economy and on consumer safety in online trade. Legal changes concerning the obligations imposed on entrepreneurs in that field appear periodically in response to new threats related to dynamic technological development.The publication is devoted to an analysis of the provision of on-line services and an assessment of the law, in particular with regard to fulfilling information obligations with respect to consumers in cyberspace.

The Principle of the Social Market Economy from the Perspective of Public Economic Law

Andrzej Powałowski — Thu, 30 Mar 2023 00:00:00 +0200

The social market economy is a conceptual category transposed to the provisions of the Constitution of the Republic of Poland, within which it is defined as a principle. It constitutes an appropriate foundation for the construction and functioning of the system of public economic law. It is a starting point for actions of the state and its bodies and defines the range of influence on the economy, as well as directs state activity in the economy. The premises for the participation and influence of the state on the economy which, according to the assumptions, should be both market-oriented and responsive to social needs, result from the principle of a social market economy. The objective so outlined should be pursued through the rules of public economic law and the legal constructions and institutions introduced in this normative area. They must remain, in terms of their content and nature, in close connection with the essence of the principle in question and its constituent elements.

Settlement of Conflicts of Values in the Area of Public Commercial Law . Comments in Relation to European Union Law

Tomasz Długosz — Thu, 30 Mar 2023 00:00:00 +0200

The author identifies two ways in which value conflicts can be solved in the area of public commercial law and proves that the method of weighing values and finding a compromise solution is predominant because of the strong politicization of public commercial law and the need to respond to dynamic changes in the economy. He also makes other suggestions on the values present in public commercial law and raises issues, among others, of Europeanisation of law and the impact of European Union law on the resolution of value conflicts, as well as the problems of economization of law and judicial review of decisions that are carried out in conditions of strong politicization.

The Role of Values in Decision-Making for National Development Planning (a study in light of legal orders in Poland and Norway)

Katarzyna Kokocińska — Thu, 30 Mar 2023 00:00:00 +0200

The issues discussed in this paper relate to the axiological justification of planning decisions as part of development policy pursued by public authority bodies, using the example of Polish and Norwegian planning systems. This study derived from the premise that the contemporary model of planning for socio-economic development is crucially significant in terms of organizing the activities of public administration that aim to meet socio-economic needs. In addition to values, the article also identifies legal institutions through which the values in question may be integrated in planning decisions for the development pursued with public participation.

Economic Freedom and Imperative Requirements in the General Interest-Conflict of Coexistence of Values in European and Polish Economic Law? Remarks Against the Background of Cross-Border Business Activities of Companies in the European Union

Katarzyna Pokryszka — Thu, 30 Mar 2023 00:00:00 +0200

Economic freedom is one of the basic principles of Poland’s economic system and, at the same time, a fundamental rule on which the functioning of the European Union’s internal market is based. In the judgment in Case C-106/16 Polbud, which was issued on the basis of Polish law, the Court of Justice confirmed the possibility for companies to carry out activities in the territories of EU Member States in the form of a cross-border conversion into a company governed by the law of another Member State, and stressed the need for Member States to verify the restrictions imposed on companies in connection with their cross-border activities in terms of their compliance with EU law. The article focuses on analysis of the idea of economic freedom in the context of cross-border business activities of companies and on the presentation of the concept of “imperative requirements in the general interest” as conditions determining the admissibility of restrictions on cross-border activities of companies by the company’s home State in the light of European Union and Polish law.

Business Interest versus Consumer Protection. Conflicts within the Safety Assurance System of NonFood Products – Selected Issues

Agnieszka Żywicka — Thu, 30 Mar 2023 00:00:00 +0200

Technological progress and the introduction of more and more new products to the market have intensified the process of changes in EU and national law within the product safety system. Legislative activities aimed at intensifying consumer protection have been observed in this area for several years. The primary role of instruments and legal mechanisms under this system is currently to guarantee consumer protection (protection of health and life) against the risks generated by various new products introduced to the market. In this respect, public law institutions adopted in this system play the leading role. These include market control and surveillance, product monitoring, and a coordinated system of informing about dangerous products.

Harmonizing Duties of Board Members in the Anthropocene: When Expectations Meet Reality

Anne-Marie Weber, Anne-Christin Mittwoch — Thu, 30 Mar 2023 00:00:00 +0200

The article confronts the European Commission’s climate policy-seconded endeavors regarding board members’ duties which it has expressed in its proposal for a Corporate Sustainability Due Diligence Directive (CSDDD Proposal) published in February 2022 with a comparative analysis of the current legal state of play in Germany and Poland. We claim that the Commission has neglected to adequately address the current understanding of board members’ duties across the Member States, which has ultimately led to the deletion of the Proposals’ provisions’ referring to the board members’ duty of care in the legislative work conducted within the Council of the European Union in November 2022. There is a possibility that these provisions (Art. 25 and 26 CSDDD Proposal) will be reinserted during the trialogue, but this is unlikely at this point. Notably, the Commission’s declaration on a mere clarifying role of the proposed harmonization measure regarding board members’ duties seems imprecise and prompts a weak interpretation of the proposed provisions, which contradicts the proclaimed policy goals. Germany might serve as an example of a Member State in which implementing the Commission’s understanding of the board members’ duty of care would not have significantly modified national company law, regardless of the interpretation chosen for the depth of the provision. If, however, a strong or medium mode of interpretation was applicable, Poland would actually be obliged to amend its legal framework fundamentally. Therefore, we contend that the legislative work on the discussed proposal was tainted by the flawed presumption that the proposed harmonization measure would merely summarize existing rules for board members’ duties. Based on the observations from our emblematic comparative juxtaposition, we argue that the idiosyncratic concepts of board members’ duties across Member States have not been sufficiently recognized as a harmonization challenge by the Commission. We contend that these methodological deficiencies led to an inconclusive wording of Article 25 of the Commission’s proposal and ultimately created an insurmountable barrier to political agreement within the Council and the “fall” of the complete concept of setting a standard of due care for board members in the proposed directive. Consequently, we claim that when jostling such a controversial and deep harmonization measure, the Commission must play its legislative A-game to have a shot at approval by the Council and later effective implementation by the Member States.

Applicable Law Concerning Obligations Arising from the Infringements of Personal Data Laws Due to the Use of Artificial Intelligence Systems

Zbigniew Więckowski, Marek Świerczyński — Thu, 30 Mar 2023 00:00:00 +0200

An issue that is characteristic of AI is data processing on a massive scale (giga data, Big Data). This issue is also important because of the proposition to require manufacturers to equip AI systems with a means to record information about the operation of the technology, in particular the type and magnitude of the risk posed by the technology and any negative effects that logging may have on the rights of others. Data gathering must be carried out in accordance with the applicable laws, particularly data protection laws and trade secret protection laws. Therefore, it is necessary to determine the applicable law in line with existing conflict-of-law regulations.

Transformation of Migration Terminology: From ‘Illegal Migrant’ to ‘Irregular Migrant’ (English-Ukrainian Aspect)

Svitlana Matvieieva, Serhii Matvieiev — Thu, 30 Mar 2023 00:00:00 +0200

This article deals with the study of the semantic transformation of terminological units for migration law. The question of standardization of national terminology, as well as inter- and intra-linguistic harmonization and unification of migration units is raised and substantiated. It is noted that changes in English terminology cause difficulties in national terminology due to, on the one hand, the need to find the most accurate and correct equivalent of the unit of the source language, and on the other – differences in the semantic volume of units of different languages. The article considers English terms for migrants: illegal migrant, irregular migrant, undocumented migrant. Analysis of international normative and advisory documents, as well as data from lexicographic sources of English and Ukrainian languages allow the authors to provide recommendations for the use of the Ukrainian equivalent to these terms – мігрант із неврегульованим статусом. At the same time, the authors note that the current Ukrainian legal documents operate on the term нелегальний мігрант, despite the long-standing recommendations of the Council of Europe and the UN to replace the term illegal migrant in national legislation with irregular migrant or undocumented migrant.