Review of European and Comparative Law 2021-08-23T13:54:28+02:00 Magdalena Sawa Open Journal Systems <p style="text-align: justify;"><strong>Review of European and Comparative Law</strong> (RECoL, poprzednio&nbsp;<em>Review of Comparative Law</em>) ukazuje się jako czasopismo publikujące w języku angielskim artykuły autorów polskich i zagranicznych. <em>Review</em> 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. Periodyk uzyskał pozytywną ocenę zespołu specjalistycznego powołanego przez Ministra Nauki i Szkolnictwa Wyższego do oceny czasopism naukowych i w&nbsp;<a href="">wykazie czasopism naukowych</a>&nbsp;ogłoszonym <a href="">komunikatem MEiN z 9 lutego 2021 r.</a> przyznano mu 70 pkt.</p> <p style="text-align: justify;">Wersja elektroniczna czasopisma jest jego wersją pierwotną.</p> <p style="text-align: justify;">&nbsp;</p> Information Pollution in a Digital and Polarized World as a Challenge to Human Rights Protection – the Council of Europe’s Approach 2021-08-23T13:30:14+02:00 Alicja Jaskiernia <p>Information pollution in a digitally connected and increasingly polarized world, the spread of disinformation campaigns aimed at shaping public opinion, trends of foreign electoral interference and manipulation, as well as abusive behaviour and the intensification of hate speech on the internet and social media are the phenomenon which concern international public opinion. These all represent a challenge for democracy, and in particular for the electoral processes affecting the right to freedom of expression, including the right to receive information, and the right to free elections. It is a growing international effort to deal with these problems. Among international organizations engaged to seek solutions is the Council of Europe (CoE). The author analyses CoE’s instruments, legally binding (as European Convention on Human Rights), as well of the character of “soft law”, especially resolution of the CoE’s Parliamentary Assembly 2326 (2020)<em> Democracy hacked? How to respond?</em> She exposes the need for better cooperation of international organizations and states’ authorities in this matter.</p> 2021-08-21T00:00:00+02:00 ##submission.copyrightStatement## The Right to be Forgotten: Emerging Legal Issues 2021-08-23T13:25:20+02:00 Oksana Vasylivna Kiriiak <p>This paper contextualizes and analyzes the main emerging approaches to the understanding of the right to be forgotten and its application in praxis, using legislation and judicial practice of the European Union and Ukraine as reference scales. By bridging the gap between positive and interpretative orders of law implementation, which were previously imperatively opposed and considered mutually exclusive in the Ukrainian legal system, the paper supports the arguments that the process of mastering the protection of right to be forgotten requires a further mindset shift equally for-Internet providers and all involved law enforcers.</p> 2021-08-21T00:00:00+02:00 ##submission.copyrightStatement## Legal Basis for Introducing Restrictions on Human Rights and Freedoms during the First Wave of the COVID-19 Pandemic 2021-08-23T13:20:35+02:00 Karol Dobrzeniecki Bogusław Przywora <p>In this article, we attempt to present the legal grounds for introducing restrictions on human rights during the COVID-19 pandemic from a comparative legal perspective. We refer to the findings of a research project completed in 2020, trying to synthesize them and confront them with existing theoretical models. We strive to capture general patterns in the legal basis for states’ actions in response to global threats such as the COVID-19 pandemic. Comparative legal research contributes to the creation of universal solutions, which, taking into account the specificity of the system, can then be applied in local conditions.</p> 2021-08-21T00:00:00+02:00 ##submission.copyrightStatement## Admissibility of Evidence Obtained as a Result of Issuing an European Investigation Order in a Polish Criminal Trial 2021-08-23T13:54:28+02:00 Hanna Kuczyńska <p>This article analyses the admissibility of evidence gathered by the Polish procedural authorities as a &nbsp;result of issuing an European Investigation Order, on the basis of provisions implemented due to the adoption on the 3th 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,&nbsp; suggested changes in Polish law will be proposed.</p> 2021-08-21T00:00:00+02:00 ##submission.copyrightStatement## Pro-Constitutional Interpretation of Statutes. A Few Remarks Related to the Dispute about Judicial Activism 2021-08-23T13:38:51+02:00 Hubert Kaczmarczyk <p>The article presents an opinion in the discussion on the limits of judicial activism. The active attitude of judges in the law-making process according to the so-called concept of ‘pro-constitutional interpretation of the law’ can be observed more and more often. While we may agree with the view that the role of a judge is to pronounce a fair verdict based on the applicable law and judges may give meaning to statutory provisions supplemented with an axiology of the Constitution, the problem appears with particular sharpness when such a pro-constitutional interpretation leads to a specific application of the provisions <em>contra legem</em>.</p> 2021-08-21T00:00:00+02:00 ##submission.copyrightStatement## Protection of Social Rights as a Permament Challenge for the European Union 2021-08-23T13:49:05+02:00 Joanna Ryszka <p>Social rights protection in the European Union has undergone significant development. Currently their protection is regulated by relevant treaty provisions and the Charter of Fundamental Rights (Charter), both of a primary law nature, as well as by the non-binding European Pillar of Social Rights (Pillar). The aim of the paper is the assessment of the social rights protection in the EU, and whether all social rights provided in the CFR have their counterparts in the EPSR, hence whether and in what way the EPSR assists the actual exercise of social rights provided by the CFR. Comparing the content of the above-mentioned legal instruments makes it possible to answer the question whether all social rights provided in the Charter have their counterparts in the Pillar. This can help determine whether the latter affects the implementation of the former. If the answer is in the affirmative, it can further allow for determining in what way the principles of the Pillar assist in the actual exercise of social rights provided by the Charter. This is very important taking into account the need for an ongoing response to unforeseen threats, like for example COVID-19. The social aspects of EU integration thus are and will remain a subject of interest in the nearest future.</p> 2021-08-21T00:00:00+02:00 ##submission.copyrightStatement## European Investigation Order – Selected Problems on Polish Implementation 2021-08-23T13:34:30+02:00 Krzysztof Wiesław Woźniewski <p>The 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.</p> 2021-08-21T00:00:00+02:00 ##submission.copyrightStatement## Universalism of Human Rights: Notion of Global Consensus or Regional Idea 2021-08-23T13:27:10+02:00 Krzysztof Orzeszyna <p style="text-align: justify; line-height: 150%;"><span lang="EN-GB">This article deals with the universal nature of human rights recognised by all civilisations and legal systems. The important thing is that the actions of the state are consistent with the content of these rights is justified by the fact that they protect the dignity of every human being and enable cooperation between people. Universal treaties impose the same international legal obligations in the field of human rights on as many states as possible. Regional treaties perform this function in relation to a group of states. It seems, however, that for the full protection of an individual’s rights, the ideas of universalism and regionalism of human rights need to complement each other. No regional system can exist if it is inconsistent with the norms and principles of the Universal Declaration of Human Rights.</span></p> 2021-08-21T00:00:00+02:00 ##submission.copyrightStatement## The Inter-American Court of Human Rights Advisory Opinion OC-23/17 on the Relationship between Human Rights and the Environment 2021-08-23T13:51:12+02:00 Przemysław Siwior <p>On 15 November 2017, the Inter-American Court of Human Rights issued an advisory opinion OC-23/17 on the relationship between human rights and the environment. The opinion responded to a request made by Colombia pursuant to Article 64(1) of the American Convention on Human Rights regarding extraterritorial jurisdiction of state parties to the Convention resulting from mega-infrastructure projects in the Greater Caribbean region.</p> <p>The purpose of this article is to discuss the general issues dealt with by the Court, concentrating on the significance of this Advisory Opinion for international law. The opinion contains two main interesting aspects. First, in the light of the opinion, states are responsible for the environmental damage they cause, regardless of whether it occurs within their borders or beyond them. Second, the Advisory Opinion recognizes that the right to a healthy environment is an autonomous, fundamental human right that shall be protected.</p> 2021-08-21T00:00:00+02:00 ##submission.copyrightStatement## Prohibition of Discrimination on Grounds of Nationality in the Freedom of Movement of Persons within the EU in the Light of Case Law of the Court of Justice of the European Union 2021-08-23T13:37:22+02:00 Monika Patrycja Bator-Bryła <p>The subject of this article is to analyze the meaning of the prohibition of discrimination on grounds of nationality in the light of the provisions of primary and secondary European Union law and the case law of the Court of Justice of the European Union, which is inherent to the functioning of the internal market and EU citizenship.</p> <p>The prohibition of discrimination on grounds of nationality is undoubtedly one of the main goals of the European Union<a href="#_ftn1" name="_ftnref1">[1]</a> in the social and economic context, which was reflected in the localization of the matter in question in the primary law of the European Union<a href="#_ftn2" name="_ftnref2">[2]</a>, in secondary law and in the jurisprudence of the Court of Justice of the European Union (CJEU). The Treaty on European Union (TEU)<a href="#_ftn3" name="_ftnref3">[3]</a> and the Treaty on the Functioning of the European Union (TFEU)<a href="#_ftn4" name="_ftnref4">[4]</a> indicate equality as one of the EU values (Article 2 TEU), require it to be promoted and combat all discrimination (Articles 8 and 10 TFEU) and prohibit discrimination due to the criteria indicated therein (Articles 18 and 19 TFEU). In secondary law, this principle was expressed primarily in the Regulation of the European Parliament and of the Council No. 492/2011 on the free movement of workers within the Union and in art. 24 of Directive 2004/38/EC 2004 on the right of citizens of the Union and their relatives to move freely<a href="#_ftn5" name="_ftnref5">[5]</a>.</p> <p>A special role in this area is played by the case law of the Court of Justice of the European Union (CJEU), which stated that all authorities of the Member States are obliged to refuse to apply a provision of national law that is contrary to the prohibition of discrimination on the grounds of citizenship (Article 18 TFEU)<a href="#_ftn6" name="_ftnref6">[6]</a>. Moreover, national measures may be examined in the light of art. 18 TFEU, but only to the extent that they apply to situations not covered by specific non-discrimination provisions included in the Treaty<a href="#_ftn7" name="_ftnref7">[7]</a>.</p> <p>The author puts forward the thesis that the analysis of CJEU jurisprudence reveals a visible dissonance between the application of national regulations of the Member States and the provisions of EU law in this matter, which significantly hinders the implementation of the principle of non-discrimination in practice. Discrepancies mainly occur in domestic legal acts due to the improper drafting of national legal provisions and / or their misinterpretation by national judicial or administrative authorities. It should be emphasized that the Member States are obliged to comply with EU law, which is not tantamount only to the obligation of state authorities to respect directly applicable acts, or to implement required regulations into internal law, but also the obligation to interpret and apply internal law in a manner that does not violate the requirement resulting from EU law<a href="#_ftn8" name="_ftnref8">[8]</a>. Judicial and administrative authorities of the Member States should therefore interpret national law as far as possible, in line with EU law, because the limits of the pro-EU interpretation will be determined by the powers conferred by domestic law<a href="#_ftn9" name="_ftnref9">[9]</a>.</p> <p>The study uses the legal-comparative method, consisting in a comparative analysis of the legal systems of the Member States and the European Union in the field of non-discrimination on the basis of nationality, rights and restrictions on the freedom of movement of authorized entities. Comparative verification of EU acts with the internal standards of individual EU Member States allows to reveal the degree of advancement of the implementation process of EU law provisions under the free movement of EU citizens and their family members in the discussed area in the legal systems of European Union Member States. The purpose of this analysis is to, inter alia, diagnose areas in which these countries have not implemented or improperly implemented EU regulations, or have misinterpreted them.</p> <p>The second method used is the method of analyzing the jurisprudence of the Court of Justice of the European Union - the rulings of the CJEU constitute a significant part of the study. The case law in question covers the period from the establishment of the Treaties of Rome to the present day. The use of the latter obligated the author to apply the comparative method of judgments based on same or similar legal bases in similar circumstances from different stages of the evolution of the free movement of citizens of the European Union and their family members under the prohibition of discrimination on the basis of nationality.</p> <p><a href="#_ftnref1" name="_ftn1">[1]</a> Cf. Olivier De Schutter, Links between migration and discrimination. A legal analysis of the situation in EU Member States (Brussels: European Commission, 2016), 102 and next; See also Brita Sundberg-Weitman, Discrimination on Grounds of Nationality. Free Movement of Workers and Freedom of Establishment under the EEC Treaty (Amsterdam, New York, Oxford: North-Holland Publishing Co., 1977).</p> <p><a href="#_ftnref2" name="_ftn2">[2]</a> Erica Szyszczak, “Antidiscrimination Law in the European Union,” <em>Fordham International Law Journal</em>, no. 32 (2008): 635.</p> <p><a href="#_ftnref3" name="_ftn3">[3]</a> The Treaty on European Union (consolidated version) OJ of the EU 2012, No. C 326/01<em>.</em></p> <p><a href="#_ftnref4" name="_ftn4">[4]</a> The Treaty on the Functioning of the European Union (consolidated version) OJ of the EU 2012, No. C 326/01<em>.</em></p> <p><a href="#_ftnref5" name="_ftn5">[5]</a> Directive of the European Parliament and of the Council No. 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No. 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (O.J.E.C. L 158, 30 April 2004).</p> <p><a href="#_ftnref6" name="_ftn6">[6]</a> CJEU Judgement of 7 May 1998, Clean Car Autoservice GmbH p. Landeshauptmann von Wien, Case C-350/96, ECLI:EU:C:1998:205.</p> <p><a href="#_ftnref7" name="_ftn7">[7]</a> CJEU Judgement of 18 June 2019, Republic of Austria v Federal Republic of Germany, Case C-591/17, ECLI:EU:C:2019:504, pt 41.</p> <p><a href="#_ftnref8" name="_ftn8">[8]</a> Marek Górski, “Wpływ orzecznictwa Europejskiego Trybunału Sprawiedliwości na interpretację i stosowanie przepisów o ochronie środowiska,” in <em>Wspólnotowe prawo ochrony środowiska i jego implementacja<br> &nbsp;w Polsce trzy lata po akcesji</em>, ed. Jerzy Jendrośka and Magdalena Bar (Wrocław: Centrum Prawa Ekologicznego Press, 2008), 31.</p> <p><a href="#_ftnref9" name="_ftn9">[9]</a> Monika Niedźwiedź, “Stosowanie prawa wspólnotowego przez organy administracyjne,” <em>Casus</em>, no. 32 (October 2004): 6.</p> 2021-08-21T00:00:00+02:00 ##submission.copyrightStatement## The Evolution of Cybersecurity Regulation in the European Union Law and Its Implementation in Poland 2021-08-23T13:18:26+02:00 Grażyna Maria Szpor <p>The 2013 European Union Cybersecurity Strategy, the 2016 Directive, and the 2019 Regulation mark the next steps in strengthening the protection of cybersecurity by European Union bodies, linked to changes in member states’ laws. The rapid increase in threats, referred to as the “cyberpandemic”, requires prompt adaptation of legal instruments to new needs, but at the same time complicates ensuring consistency of multi-level regulation. The analysis of changes in the legal status in Poland shows that this concerns terminology, subject matter scope and the structure of cyber security systems. In order to reduce difficulties, it is worth considering introducing immediate amendments to those provisions in force which were negatively assessed during works on drafting new acts. Such a conclusion is prompted by the evolution of the definition of cybersecurity, which, according to the 2019 Regulation as well as the draft amendments to the Polish Act on National Cyber Security System and the draft of the new Directive, is to be understood as activities necessary to protect networks and information systems, users of such systems and other persons against cyber threats such as any potential circumstance, event or action that may cause damage, disruption or otherwise adversely affect networks and information systems. Another example is the maintenance of the distinction between key service operators and digital service providers in the 2019 EU Regulation and the 2021 draft amendment to the Polish law, although the 2020 NIS 2 directive draft recognizes that it has become irrelevant and replaces it with a distinction between essential and relevant entities. Also, other changes currently proposed are justified by the blurring of the boundaries between virtual and real space.</p> 2021-08-21T00:00:00+02:00 ##submission.copyrightStatement## United States Supreme Court Approach to First Amendment Freedom of Religion in Response to the COVID Pandemic 2021-08-23T13:16:19+02:00 Delaine Russell Swenson <p>The 2020-21 Covid 19 Pandemic has raised many legal challenges as governments world-wide have struggled to deal with the public health and safety challenges of Covid. At the center of many of these decisions is the need to balance public health protections against other rights that have been infringed by legislation related to Covid Pandemic restrictions. One of the most important rights that have been implicated by Covid restrictions in the United States has been in the area of restrictions on religious worship which implicates the right to freedom of religion as enshrined in the United States Constitution. During the time of the Pandemic the United States Supreme Court, as the final arbiter of the United States Constitution has had to work to balance the interests of the government in protecting public health and safety with the right to freedom of religion. The Supreme Court’s approach to these cases reflects the difficulties inherent in balancing two such important interests in difficult circumstances and also represents the reality of the shifting majority in the Court as a result of new Justices appointed under the administration of Donald Trump. The Court has transitioned from a majority that opposed restrictions on governmental action during COVID to a majority that is more willing to stop governmental action that is deemed to be in violation of the Free Exercise of Religion Clause of the First Amendment.</p> 2021-08-21T00:00:00+02:00 ##submission.copyrightStatement## Causal 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 2021-08-23T13:44:07+02:00 Agata Wnukiewicz-Kozłowska Urszula Dorota Drozdowska <p>This 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 <em>prima facie</em> 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.</p> 2021-08-21T00:00:00+02:00 ##submission.copyrightStatement## Review of Erik Ringmar, History of International Relations: A Non-European Perspective, Open Book Publishers, Cambridge 2019, pp. 206, ISBN 978-1-78374-022-2 2021-08-23T13:08:42+02:00 Marcin Krzysztof Nabożny 2021-08-21T00:00:00+02:00 ##submission.copyrightStatement##