Review of European and Comparative Law

Marriage Invalidity – A Comparison of English and Hungarian Rules

Sarolta Molnár — Fri, 20 Dec 2024 00:00:00 +0100

Through a dogmatic comparative lens, the paper scrutinises the nuanced criteria for determining marriage invalidity through a comparative analysis of English and Hungarian legal frameworks. It explores the divergent historical trajectories and legal traditions that have shaped the conceptualisation of marriage in these two jurisdictions, noting the transition from ecclesiastical to secular regulation. It highlights the impact of recent legislative reforms, such as the ongoing revision of marriage law in England and Wales led by the Law Commission and the incorporation of family law into the Civil Code in Hungary. Furthermore, the analysis includes insights from the jurisprudence of the European Court of Human Rights, providing a common frame of reference for evaluating fundamental rights within both legal systems. By illuminating the complexities surrounding marriage invalidity, this study contributes to a deeper understanding of the intersection between legal tradition, social norms, and individual rights in the context of marital relationships.

By illuminating the complexities surrounding marriage invalidity, this study contributes to a deeper understanding of the intersection between legal tradition, social norms, and individual rights in the context of marital relationships.

Letterbox Companies and the Corporate Mobility Regime in the EU After Directive 2019/2121

Ariel Mucha — Fri, 20 Dec 2024 00:00:00 +0100

This paper analyses the solutions aimed at fighting letterbox companies introduced alongside certain enabling rules on cross-border corporate restructuring transactions, namely conversions, mergers and divisions, into the Company Law Directive (2017/1132). The new law introduces an anti-abuse clause, which is embedded into the certification procedure of each cross-border restructuring. The results of the analysis suggest that the new anti-abuse tool lacks an accurate indication of what type of practices it is supposed to curb. Additionally, the law allows public authorities to view letterbox companies as systemic threats to the values of the single market without providing compelling reasons for such an assessment.

A Comparative Analysis of Data Protection in E-commerce B2C Contracts in Georgia and the European Union

Nato Gugava, Lika Kobaladze, Tamta Kenia, Oliko Kobakhidze — Fri, 20 Dec 2024 00:00:00 +0100

Development of technologies is a great human achievement. Online portals, mobile applications and digital platforms allow citizens to receive servicies remotely, which, on the one hand, reduces necessity of on-site visits and bureauctratic procedures, however, on the other hand, increases the risk of personal data disclosure processed in such manner. Digital tools play significant role in the process of E-commerce, especially in improving efficiency and accessibility of communication between the consumer and the trader. A lot of people communicate with the extensive use of the internet and technologies, including e-procurement, which, in these relationships require the correct processing of personal data, whereas improper protection of great deal of information increases risks of using data for criminal purposes and threatens personal privacy of consumers. Hence, it is important that organizations providing the internet services, especially those involved in e-commerce business, be well aware of obligations they are imposed by law. It is worth noting, that Law of Georgia “On Personal Data Protection” was adopted by Georgia in 2011, and its renewed version is quite similar to General Data Protection Regulation of Europe (DGPR) – which was adopted on June 14, 2023 and will enter into force on March 1, 2024. Within changes, the existed standard for personal data processing/protection will be substantially improved. As for protecting personal data processed on the basis of the B2C contracts concluded in the process of E-commerce, the interest regarding these topics increased after spread of coronavirus (Covid-19), when country faced new challenges. This issue is relevant even in the present time, since staying current with technological and legal development, renewed legal regulation and Association Agreement between the European Union and Georgia, imposes additional obligations on the country in the process of perfecting the mentioned field. Accordingly, this article will discuss compliance of regulatory framework of processing/protection of Georgian consumers’ personal data in the online contracts with international standards and existing challenges, to assume obligations of the country under the Association Agreement between Georgia and the European Union to implement E-commerce in practice, best practices of European countries in this regard and the perspective, which Georgia should implement in E-commerce process, in order to insure effective protection of consumers’ data security.

It is worth noting, that Law of Georgia “On Personal Data Protection” was adopted in 2011 by Georgia, and its renewed version is quite similar to General Data Protection Regulation of Europe (DGPR) – which was adopted on June 14^th, 2023 and will enter into force on March 1, 2024. Within changes, the existed standard for personal data processing/protection will be substantially improved. As for protecting personal data processed on the basis of the B2C contracts concluded in the process of E-commerce, the interest regarding these topics increased after spread of Corona Virus (“Covid-19”), when country faced new challenges. This issue is relevant even in the present time, since staying current with technological and legal development, renewed legal regulation and Association Agreement between the European Union and Georgia, imposes additional obligations on the country in the process of perfecting the mentioned field.

Accordingly, this article will discuss compliance of regulatory framework of processing/protection of Georgian consumers’ personal data in the online contracts with international standards and existing challenges, to assume obligations of the country under the Association Agreement between Georgia and the European Union to implement E-commerce in practice, best practices of European countries in this regard and the perspective, which Georgia should implement in E-commerce process, in order to insure effective protection of consumers’ data security.

General Characteristics of Service of Procedural Documents in Polish Civil Proceedings Compared to Selected European Countries

Emil Kowalik — Fri, 20 Dec 2024 00:00:00 +0100

The institution of service by a court enforcement officer has had a significant impact on the regularity of the service of court letters. The provisions introduced put an end to the so-called fiction of service on individuals, which meant that after two attempts at service, the court could assume that the document had been effectively served. It was recognized that this too often led to prejudice to the rights of defendants, in particular those who had not lived at the addresses indicated by the plaintiffs for a long time - often, due to the correct (fictitious) service of payment orders, they were obliged to pay the amounts resulting from final court decisions. Unfortunately, under the previous legislation, there were cases of claimants giving unverified or even false information. The legislator obligatorily introduced into the Polish legal order, in Article 1391 of the Code of Civil Procedure, the service of letters through a court bailiff in the event that a statement of claim or any other writ of summons that gives rise to the need to defend the rights of the defendant has not been effectively served on the defendant in accordance with 131–139 of the Code of Civil Procedure. Thus, the legislator, contrary to the principle of routine service, imposed the resulting obligations not on the procedural authority, but on the initiator of the proceedings in the case. This study aims to present the institution of the bailiff in Polish civil proceedings and discuss its advantages and disadvantages. It is particularly relevant in light of the changes introduced by the amendment of the CPC of 9 March 2023, effective from 1 July 2023, which are designed to improve this type of service.

Defining Documents in the EU Integration of Bosnia and Herzegovina: Where Is the “European Choice” Heading?

Hamza Preljevic — Fri, 20 Dec 2024 00:00:00 +0100

Over the past two decades, Bosnia and Herzegovina’s (BiH) European Union (EU) integration process has garnered significant scholarly attention in the context of Western Balkans studies. This article contributes to this discourse by employing a descriptive analysis approach to examine thirty-one key legal documents issued between 1992 and 2022 by the BiH Parliamentary Assembly, Council of Ministers, and Presidency. These documents serve as primary sources, offering crucial insights into BiH’s legal framework governing its EU integration efforts. Through rigorous textual analysis, this article evaluates the efficacy of these documents in facilitating the necessary reforms for EU accession. The findings reveal a significant discrepancy between the rhetoric of reform in governmental papers and the actual implementation of these reforms in BiH’s political landscape. This highlights systemic challenges within BiH’s governance that hinder effective reform implementation and EU accession progress. By critically analyzing these legal documents, this article provides a nuanced understanding of BiH’s EU integration trajectory, emphasizing the gap between policy formulation and implementation. It argues that mere rhetorical commitments in governmental documents are insufficient to drive meaningful reform in BiH and achieve EU membership.

Stabilitocracy as the Pitfall for Post-war Ukraine: A Lesson from the Western Balkans

Benjamin Nurkić — Fri, 20 Dec 2024 00:00:00 +0100

This paper aims to detect possible pitfalls for post-war Ukraine with regard to establishing the rule of law and the path to joining the EU. Since countries in the Western Balkans were in a similar situation to that Ukraine is facing nowadays, the author explains what Ukraine should learn from their post-war experiences. The author identifies the main pitfall for Ukraine after the Russian aggression ends, which is stabilitocracy. The author then suggests what should be the post-war strategy for Ukraine should be, and what should be done to avoid the “stabilitocratization” of Ukraine.

A New Legal Framework for Online Platforms in the European Union (and Beyond)

Julián López Richart — Fri, 20 Dec 2024 00:00:00 +0100

In the early 2000s, the EU adopted the Electronic Commerce Directive to regulate information society service providers. An important part of this piece of legislation was the safe harbor provisions, which exempted intermediary service providers from liability for illegal content transmitted or hosted by their users, provided that they complied with specific conditions. After more than twenty years, the emergence of significant online platforms and the increased use of those services has resulted in new risks and challenges for individuals, companies, and society as a whole, which led the European Union to adopt a new regulatory framework for intermediary services. The Digital Services Act retains the liability exemption regime of the Electronic Commerce Directive but introduces new transparency and due diligence obligations for intermediary services, especially for online platforms. The new regulatory framework is expected to substantially impact globally, as it applies to all intermediary service providers offering services within the EU, regardless of their location. This study explores the main features of the DSA and their potential effects on the future development of the Internet.

The Digital Services Act retains the liability exemption regime of the Electronic Commerce Directive but introduces new transparency and due diligence obligations for intermediary services, especially for online platforms. The new regulatory framework is expected to have a substantial impact globally, as it applies to all intermediary service providers offering services within the EU, regardless of their location. This study explores the main features of the DSA and their potential effects on the future development of the Internet.

Applying Soft-Law Mechanisms and Responsive Regulation Theory to Labor Law: A Case Study of Poland

Karol Sołtys — Fri, 20 Dec 2024 00:00:00 +0100

Focusing on selected international experiences, this article explores the role of soft regulation in the context of responsive enforcement of labor law. The analysis aims to answer the main research question of whether there is a method for the effective application of soft regulation in the responsive procedure of enforcing labor law in Polish legislation based on the experiences of Anglo-Saxon countries. Formal-dogmatic and comparative methods were used to address this question. The analysis includes experiences from the Canadian province of Ontario and Australian and British legislators. This article describes the mechanism of using soft regulation in the responsive procedure of enforcing labor law, which enabled the description of potential legal and governmental system consequences of its hypothetical application in Poland. The significant reliance of the responsive regulation model on soft regulation may, among other things, limit the ability of employers to challenge unresponsive treatment by public authorities. It also conflicts with certain constitutional principles, including the exclusivity of statutes and the principle of a democratic legal state. This, in turn, could prevent the implementation of responsive regulation in European legal systems. Finally, this article considers ways to minimise the risk of violating the Polish Constitution while maintaining the flexibility and potential effectiveness of responsive regulation.

Prohibition of Discrimination Based on Sexual Orientation: Analysis of CJEU and ECtHR Case Law Concerning Human Rights

Monika Patrycja Bator-Bryła — Fri, 20 Dec 2024 00:00:00 +0100

This article analyses the importance of the prohibition of discrimination based on sexual orientation in light of the primary and secondary legislation of the European Union, as well as the case law of the Court of Justice of the European Union and the European Court of Human Rights. In the context of human rights protection, the prohibition of discrimination based on sexual orientation is a key element of modern judicial rulings in Europe. Both the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) play crucial roles in shaping the standards for the protection of LGBT+ persons by interpreting legal provisions and issuing judgments that influence national legislation. Both institutions emphasize the importance of equal treatment within the framework of human rights, and their rulings contribute to the elimination of prejudice and discrimination. The analysis of the case law of the CJEU and ECtHR demonstrates how LGBT+ rights are integrated into the broader context of human rights protection, which in the long term may lead to changes in social norms and legislation in member states. The prohibition of discrimination, including on the grounds of sexual orientation, undoubtedly constitutes one of the main social and economic objectives of the European Union. This is reflected in the incorporation of this matter into EU primary law, secondary law, and CJEU jurisprudence. The Treaty on the European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) identify equality as one of the Union’s values, mandate its promotion, and call for combating all forms of discrimination, prohibiting discrimination based on specified criteria. Furthermore, national measures can be examined in light of the treaty provisions only to the extent that they apply to situations not covered by the treaty’s specific anti-discrimination provisions. The author proposes the following theses: firstly, an analysis of CJEU case law reveals a noticeable dissonance between the application of national regulations by member states and EU law in the examined area, which significantly complicates the practical implementation of the prohibition of discrimination based on sexual orientation. Discrepancies mainly arise in national law due to improper drafting of national legal provisions or their erroneous interpretation by relevant national authorities. In particular, the author compares the regulations of member states with Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation. An analysis of the directive’s content, considering its interpretation by the CJEU, leads to the conclusion that member states implement the directive incorrectly, and the level of protection against discrimination based on sexual orientation is insufficient compared to the requirements of EU law. Member states are obliged to comply with EU law, which includes not only the duty of state authorities to respect directly applicable acts or implement them into national law but also the obligation to interpret and apply national law in accordance with the requirements of EU law. The second thesis results from the analysis of CJEU case law regarding the prohibition of discrimination based on sexual orientation. Although anti-discrimination directives form the foundation of the European Union’s anti-discrimination system, particularly in the areas of employment and occupation, the phenomenon of unequal treatment also occurs in other spheres such as access to goods and services or education. This necessitates the adoption of comprehensive legal measures to effectively combat discrimination. The study employs a comparative legal method, involving a comparative analysis of the legal acts of EU member states and the European Union regarding the prohibition of discrimination based on sexual orientation. The comparison of EU acts and national norms reveals the extent of the implementation of the provisions of EU law in this area within the legal systems of EU member states. The aim of this analysis is, among other things, to diagnose areas where these states have improperly implemented provisions of EU law or have incorrectly interpreted them. However, due to the limited amount of case law in this area, the author has limited the analysis to a few judgments. The second method applied is the analysis of the case law of the CJEU. CJEU rulings constitute a significant part of the study, compelling the author to use the comparative method to analyse judgments based on the same or similar legal grounds in analogous circumstances within the framework of the prohibition of discrimination based on sexual orientation.

The author presents the following theses: firstly, an analysis of CJEU case law reveals a noticeable dissonance between the application of national regulations by member states and EU law in the examined area, which significantly complicates the practical implementation of the prohibition of discrimination based on sexual orientation. Discrepancies mainly arise in national internal law due to improper drafting of national legal provisions or their erroneous interpretation by relevant national authorities. In particular, the author compares the regulations of member states with Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation. An analysis of the directive's content, considering its interpretation by the CJEU in limited rulings, leads to the conclusion that member states implement the directive inadequately, and the level of protection against discrimination based on sexual orientation is insufficient compared to the requirements of EU law. Member states are obliged to comply with EU law, which not only includes the duty of state authorities to respect directly applicable acts or implement them into national law but also the obligation to interpret and apply national law in accordance with EU law requirements[1]. The second thesis results from the analysis of CJEU case law regarding the prohibition of discrimination based on sexual orientation. Although anti-discrimination directives form the foundation of the European Union's anti-discrimination system, particularly in the areas of employment and occupation, the phenomenon of unequal treatment also occurs in other spheres such as access to goods and services or education. This necessitates the adoption of comprehensive legal solutions to effectively combat discrimination in a practical dimension.

Instructions to Perform in Contract Negotiations: Comparative and Interdisciplinary Approach

Erman Benli — Fri, 20 Dec 2024 00:00:00 +0100

Contract negotiation is the phase before the conclusion of the main contract. Although contract performance consists in the fulfilment of obligation, and therefore mostly occurs after the conclusion of a contract, in practice, contract negotiators may provide instructions to perform before contract conclusion, particularly in the sectors of national defense, construction and consulting services. This paper examines the legal consequences of instructions to perform provided during negotiations and whether or not they lead to the conclusion of the main contract. According to the legal policy of protection of the weaker party that in law and economics is consistent with the cheapest cost avoider principle and the Gunderson decision in the USA, a conclusion is reached that if the stronger party imposes the instructions to perform on the weaker party, it should be accepted that the main contract is concluded, because the stronger party in these type of cases will mostly be the cheapest cost avoider and should take the risk of non-reliance or incomplete reliance.

Approaches of the ECtHR and the US Supreme Court to the Conflict Between “The Best Interests of the Child and Parents’ Rights” on Home Education (Homeschooling)

Peri Uran Murphy — Fri, 20 Dec 2024 00:00:00 +0100

Home education (homeschooling), a practice that has been increasingly popular especially since the Covid-19 pandemic, has recently begun to be discussed again in the academic circles (environment). The main questions revolve around whether homeschooling is an alternative to mainstream school education; whether home education serves the child’s interests better than conventional school education; whether parents’ right to determine the education of their children can be interfered with by the state and what role the state plays in balancing parents’ rights and the children’s best interests regarding home education. This paper outlines the concept of home education and its criticism in general, and then evaluates the question of balancing parents’ rights and the best interests of the child in homeschooling, by taking into account the international instruments that protect the rights of parents and children. In this context, the Convention on the Rights of the Child, as an international human rights treaty that fully recognizes and ensures the rights of children will be looked at in terms of the best interest of the child. The European Court of Human Rights and the US Supreme Court have different approaches to home education practice. In the rest of this paper, home education case law will be analyzed from a comparative perspective. This will be done with reference to the landmark decisions of the European Court of Human Rights and the US Supreme Court in order to understand these two judicial authorities’ approaches to the conflict between the best interests of the child and parents’ rights on homeschooling. In conclusion, evaluations will be provided in line with the jurisprudence of both Courts on cases regarding home education.

Biotechnology and Intellectual Property: The Limits of Animal Patentability in the European Union

Mariia Golubei, Liliia Pankova — Fri, 20 Dec 2024 00:00:00 +0100

The study considers the possibility of patenting animal breeds as objects of intellectual property, taking into account the legislation and law enforcement practices of the European Union. It presents a retrospective analysis and detailed interpretation of the conventional and directive provisions related to the patent protection of animal breeds, and characterizes the differences between the latter and the microbiological process. It was observed that the position of the European Patent Office on this issue was not always unanimous, which was manifested in the contradictory interpretation of the relevant, not perfectly formulated, legislative norms. It was analyzed under what conditions the current position of the EU manifests itself in the fact that an animal breed, as a product of an exclusively biological process, cannot be subject to patent protection. In addition, the concepts of “biological” and “technical processes” were interpreted as additional criteria for patentability concerning living organisms. Attention was also paid to the ethical component of biotechnological inventions and the still problematic aspects of animal breeding as possible results of biotechnological activity were emphasized.