Review of European and Comparative Law

The Concept and Legal Nature of EU Values

Volodymyr Motyl — Mon, 31 Mar 2025 00:00:00 +0200

Values are a fairly common concept that is used extensively at the everyday level and is the subject of study in many sciences, including philosophy, sociology, psychology, cultural studies, religious studies, economic theory, political science, etc. Following the substantiation of values as a separate philosophical category, a branch of philosophy that deals with the study of values – axiology – was formed. Values began to move into the field of law and were used mainly as categories of philosophy of law or axiology of law and only partially became the subject of study of constitutional law and legal theory, as their nature as legal categories remained questionable for a long time. The enshrining of the values on which the European Union (EU) is based in Article 2 of the TEU, together with the introduction of a special liability mechanism for the breach of values in Article 7 of the TEU, as well as the validation by the Court of Justice of the EU of the mechanism outlined in Articles 258–260 of TFEU in case of breach of EU values, has put on the agenda the issue of a paradigm shift in the legal nature of values. Have EU values become a part of law or a legal category? Have they become part of the EU legal order? The confirmation of the legal nature of values and their properties as a separate legal category of the EU’s legal system would have far-reaching consequences in the future shaping of the interpretation, application, and development of EU law, national legal systems of Member States and of third counties that cooperate with the EU. The absence of such a transformation and property of values would significantly reduce the potential for influence and significance of the core values of the EU. The article defines which values are the core values of the EU. The author draws a conceptual distinction from related legal concepts and categories, primarily principles and norms. The author formulates law’s main characteristics or attributes from the perspective of both Legal positivism and natural law doctrine, namely: normativity, binding nature, formal certainty, systematicity and coerciveness or liability, compliance with the ideals of freedom, justice, and fundamental human rights. It also analyzes the compliance of values with these attributes or key characteristics. The analysis confirms that the core EU values enshrined in Article 2 of the TEU meet these criteria, and the author concludes that values are a new category of law that has emerged within the EU legal order. The author uses mainly doctrinal legal and inter-disciplinary legal research methods to characterize the basic concepts of law and the concept of values, as well as to identify and formulate their main attributes. The comparative method is used to compare values with related legal categories, in particular principles and norms, to determine their common and distinctive features. Deduction techniques were used to identify the main characteristics of law from the perspective of Legal positivism and natural law doctrine and assess the compliance of the EU’s core values with these features.

A Global Analysis of Menstruation-Friendly Working Practices Through an Evaluation of International Examples

Bernadett Solymosi-Szekeres — Mon, 31 Mar 2025 00:00:00 +0200

Gender equality is a key issue and an important element of basic human rights, especially when it comes to the workplace. Labor laws often fail to address the specific challenges women face, like menstruation and menopause. This study focuses on how menstruation is treated in labor law, with a spotlight on international practices around menstrual leave. It looks at the purpose behind these national legislation-policies, how legal frameworks differ, and how the literature evaluates the function of these institutions. The aim of the paper is to provide useful insights for future lawmakers, social partners, drawing lessons from Spain – the only EU country with such a policy – Japan, Indonesia, Taiwan and other national examples, showing how menstrual leave can support women’s wellbeing at work. The research focuses only on the legal aspects of these menstrual leave policies, which is a very rare aspect in the literature.

European and EU Standards of Rights and Protection of Child Victims of Crime and Their Implementation in the Polish Criminal Process Through Amendments to the Code of Criminal Procedure in 2020–2023

Cezary Kulesza — Mon, 31 Mar 2025 00:00:00 +0200

The basic assumption of the article is to examine to what extent the latest amendments to the Polish Code of Criminal Procedure (CCP) are in line with international standards of rights and protection of child victims of crime. It should be noted that between 2020 and 2023, the Polish justice system has undergone significant evolution in this area, striving to meet the standards of child-friendly justice specified by legal acts of the Council of Europe and European Union legislation. The following acts were of particular importance here: of 13 January 2023, 7 July 2023, 27 July 2023 amending the provisions of CCP introducing, among others, the institution of individual assessment of the needs of victims (Article 52a), the legal representative of a minor victim (Article 51 § 2a) and amending the procedures for interviewing minor victims and witnesses specified in Articles 185a–185c and f of the Polish CCP. All these amendments will be assessed in the context of the standards set by the Council of Europe Convention on the Protection of Children against sexual exploitation of 25 October 2007 and the Council of Europe Convention on preventing and combating violence against women and domestic violence of 11 May 2011. Regarding EU standards, it is necessary to examine the standards of rights and protection of child victims of crime contained in Directive 2011/93/EU of 13 December 2011 on combating sexual abuse and sexual exploitation of children and Directive 2012/29/EU of 25 October 2012 on minimum standards of protection, rights and support for victims of crime and the draft amendments to this directive of 23 July 2023. This article highlights the most important of the Polish CCP changes in 2020–2023 and presents the current state of implementation of the above mentioned European and EU standards into Polish criminal procedure.

Work-life balance in US law using the example of California

Wioletta Witoszko — Mon, 31 Mar 2025 00:00:00 +0200

In the United States, parents’ entitlements, including the right to childcare leave, are regulated primarily by federal law and state law. An example of a state law, which is discussed in this paper, is the law of California, which is one of the leading states in terms of worker rights. The implementation of a work-life balance policy in California is mainly focused on extending childcare leave entitlements, guaranteeing that this leave is paid, enabling flexible work arrangements and facilitating the use of these entitlements by men.

The ICJ’s Advisory Opinion on Kosovo as a Tool of Costly Counter-Secession

Asim Jusic — Mon, 31 Mar 2025 00:00:00 +0200

Secessions are costly. That does not mean that counter-secessions more generally, and international judicial opinions as tools of counter-secession specifically, are costless. The trajectory of the International Court of Justice’s 2010 Advisory Opinion (Opinion) on Kosovo’s declaration of independence is a case in point. Initially deemed as not unfavorable to Kosovo’s independence from Serbia, over time, the Opinion proved a useful counter-secession tool for the opponents of Kosovo’s independence. The current structure of the international legal system and the dynamics of power politics facilitated leveraging the Opinion as a mechanism of counter-secession efforts. It is shown that not even the sponsorship of a secessionist state such as Kosovo by an individual dominant power like the United States can override the structural impediment to recognizing new states: the absence of coherent norms on state recognition in international law. Moreover, the support of powers such as Russia and China has meant that Serbia, as a counter-secessionist state, could use the Opinion to sustain the lack of international consensus on Kosovo’s independence, engage in a campaign for Kosovo’s derecognition, and extract concessions from Kosovo’s main independence sponsors. Serbia’s use of the Opinion as a tool for counter-secession has proven costly, however, as its sovereignty has become beholden to the whims of great power politics in a similar way to which Kosovo is indebted to the main sponsors of its independence.

Non-parliamentary Representative Bodies in Post-Soviet Authoritarian States: Cases of Belarus, Kazakhstan, Kyrgyzstan and Turkmenistan. A Comparative Study

Rafał Czachor — Mon, 31 Mar 2025 00:00:00 +0200

The following paper zooms in on the legal frameworks and the roles in the governance processes of non-parliamentary representative bodies in four post-Soviet authoritarian states: Belarus, Kazakhstan, Kyrgyzstan, and Turkmenistan. These bodies – rooted in the principles of authoritarian and populist constitutionalism – serve as instruments to strengthen executive power while presenting a façade of democratic governance. The study highlights the diverse origins, organization, and functions of these institutions, including the All-Belarusian People’s Assembly, the Assembly of the People of Kazakhstan, the People’s Kurultai of Kyrgyzstan, and the Halk Maslahaty of Turkmenistan. Despite differences in structure and legal mandates, these bodies share a common purpose: consolidating state authority to enhance formal societal representation. The paper reveals the instrumental role of these bodies in maintaining autocratic regimes, manipulating democratic norms, and ensuring regime stability through direct control by the executive power (the Presidents).

The Human Right to Take Part in Cultural Life

Krzysztof Orzeszyna — Mon, 31 Mar 2025 00:00:00 +0200

The human right to take part in cultural life is rooted in dignity of the person. Cultural rights form an integral part of human rights and, like all other rights, are universal, indivisible and interdependent, that is why respecting them is essential for the preservation of human dignity and the positive social interaction between individuals and communities in a diverse and multicultural world. The concept of unity of human rights implies equality of personal, political, economic, social and cultural rights. It is a universal right to participation, contributing and access to culture. The human right to take part in cultural life must be considered in two dimensions: individual and collective. This emphasizes both the autonomy of the individual and the importance of the community. An analysis of this law allows us to point out its most fundamental elements. Both the Universal Declaration of Human Rights (Article 27) and the International Covenant on Economic, Social and Cultural Rights (Article 15) state that the human right to take part in cultural life is vested in all members of the human community. In view of this fact, States are obliged to promote culture among all social groups. States are also obliged to recognize the diversity of identities of individuals and communities residing on their territory. The international community attaches great importance to cooperation in the field of culture.

The “Objective Friends” of the CJEU. The Role and Practice of the Amicus Curiae in the Procedural Law of the European Union

Dimitris Liakopoulos — Mon, 31 Mar 2025 00:00:00 +0200

The figure of amicus curiae in the law of the European Union does not allow and has not even foreseen up to now the participation of a subject/subjects outside of a dispute, but with their own legal interest to participate as amicus curiae. The Court of Justice of the European Union does not allow the possibility of participation in a figure that only allows the intervention of subjects other than states and institutions, which are pre-established by Article 40 of the Statute. According to the procedural rules of the Union, the observation of a series of elements testify that such a figure is also obvious but often necessary on some disputes such as those relating to technical matters, such as competition and the environment. The practice up to now has shown that the intervention is used by associations that carry general and legal interests allowing the performance of the function of amicus curiae in a rigorous manner within the limits of this figure. This work, based on a more jurisprudential practice, tries to reconstruct such institute in a comparative way also through other supranational courts, thus regulating the insertions of the amicus curiae to the judges of Kirchenberg.

The Revision of Directive 2013/11/EU on ADR for Consumer Disputes: Strengthening or Only Reorganizing ADR Rights for Consumers?

Marek Dąbrowski, Marcin Rokosz — Mon, 31 Mar 2025 00:00:00 +0200

The consumer protection model introduced in 2013 by Directive 2013/11/EU has proven to be insufficient. The data have shown that not only consumers but also traders show little enthusiasm for resolving disputes based on the out-ofcourt procedures introduced by this act. This has resulted from the low awareness among consumers, as well as the limited objective and geographical scope of disputes that can be resolved by means of fast, transparent, and equitable ADR procedures. The stagnation and the so-far unexplored potential of the ADR framework, further intensified by the rapidly increasing virtualization of socio-economic life, justifies the need to implement changes in the field of out-of-court methods for consumer dispute resolution. The package of legislative proposals presented by the Commission, including the Proposal for Directive 2013/11/EU, can be assessed as a reorganization rather than a significant step towards the strengthening of the EU-wide ADR framework. Despite positive elements, such as the extension of the objective and geographical scope of the Directive, this document does not contain proposals for changes that would eliminate all the problems identified during the 10-year-long application of Directive 2013/11/EU. This, in fact, requires the adoption of solutions that have a greater impact on corporate social responsibility, including the responsibility for consumer relations, increasing the degree of readiness to apply ADR procedures as determined by the parties’ high awareness, the ease of implementing and transparency of the procedures while ensuring adequate quality and bridging the significant structural gaps between ADR solutions employed by the individual Member States.

Opportunity Makes the Thief. A Risk Analysis and Vulnerability Identification Approach in Information Security Management Systems as a Method of Countering Cybercrimes

Krzysztof Świtała — Mon, 31 Mar 2025 00:00:00 +0200

Data processing in ICT systems is a fundamental activity in the information society. The aim of this article is to present tools specific to information security management systems, such as risk and vulnerability analysis as solutions that can contribute to reducing the incidence of cybercrimes. Limiting the occurrence of such incidents can therefore be considered as a proactive method of preventing the presence of such criminal acts. Considerations include legal instruments such as the GDPR and the NIS2 Directive, which provide for breach and incident management procedures, as well as a risk-based approach. An analysis of vulnerabilities, together with mechanisms for their reporting and the exchange of such information between authorized entities, is proposed in the new NIS2 Directive. It is an essential tool for increasing the resilience of ICT systems by securing their weakest links. Technical standards from the information security area ISO 27000 are also covered in this article. The interdisciplinary nature of the subject matter analyzed implies a discussion of such methods of increasing the effectiveness of security in ICT systems as penetration testing and hardening.

Standing of Vulnerable Victims in Criminal Proceedings: Polish Regulations Vis-à-Vis EU Law

Joanna Beata Banach-Gutierrez, Anna Muszyńska — Mon, 31 Mar 2025 00:00:00 +0200

The aim of this article is to show the impact of the EU Victims’ Rights Directive on the Polish regulations. The main focus is placed on the concept of victim, the role of victims in criminal proceedings, and also individual assessment of crime victims’ needs. The findings of the analysis indicate that a set of victims’ rights adopted within the framework of the EU is largely reflected in Polish regulations, as a result of efforts made by the legislator to implement the EU Directive 29/2012. At the same time, we should remember the objectives of the “EU Strategy on Victims’ Rights (2020–2025)” and the proposed amendments to the EU Victims’ Rights Directive, which aim to serve a more effective use of their rights in accordance with the Union’s standards.

State as an Heir: Balancing Public and Private Interests in Georgia and Europe. Part I: Comparative Overview

Irakli Leonidze — Mon, 31 Mar 2025 00:00:00 +0200

The Civil Code of Georgia establishes the state’s right to inherit heirless estates. According to the Georgian law, the state is referred to as the legal successor. Should we always consider the state as the legitimate successor, or is this only a necessity to maintain public order? Does the state have a legitimate public interest of heirless estate and how can this be balanced against the private interests? The following subjects will be discussed in this article from the perspectives of Georgia and European countries. The question of whether the state should assume ownership of the private property in the absence of heirs is a subject that has given rise to significant discourse on topics of justice, property rights, and the role of the state in private affairs. Numerous scholars have presented a range of arguments both in favour of and in opposition to the notion of the state becoming the recipient of property that lacks heirs. Given the legal nature of the problems, it is necessary to explicitly define the state’s status as a special legal heir in Article 1343 of the Civil Code of Georgia to prevent the confusion of rights and duties from leading to excessive state intervention in inheritance matters. European countries’ experience is very important for creating a new legal status of the state. Because of the problem of transferring an estate when there is no heir, balancing public and private interests is a most popular issue. The purpose of this paper is to examine the rights and obligations of the state as a legal heir under the different regulations and how these principles affect inheritance relations in socio-legal perspectives. It compares how this issue is addressed in other European countries’ legal systems and draws conclusions about the dual role of the state based on the different practice. This article aims to explore the theoretical possibilities about the state’s right on the heirless estate, offering valuable recommentations for the Constitutional Court of Georgia in justifying and making decisions on this issue.