Review of European and Comparative Law

Mater Sempre Certa Est – Should We Register Transsexual Woman-to-Man as a Father? Remarks on the ECHR Judgment O.H. and G.H. v. Germany

Marica Pirošíková, Jitka Fialová, Tomáš Zdechovský — Thu, 28 Mar 2024 00:00:00 +0100

The study is designed as an in-depth interdisciplinary report of the case O.H. and G.H. against Germany, which was analyzed by the European Court of Human Rights in Strasbourg (ECHR). The authors explain why the best interest of the child should prevail over the interests of a trans man, who gave birth to a child and requests to be registered as the father of the child. One of the reasons is mater semper certa est, a universally known principle of Roman law stating that “the mother is always certain” and no counterevidence can be made against this principle. In this regard, the best interest of the child and the child’s right to know his or her origin shall be observed. There are also several other life areas, that would be negatively impacted by breaking this principle.

Achmea, Kramer and Disconnection Clauses. EU Legal Regionalism in Action

Petra Lea Láncos — Thu, 28 Mar 2024 00:00:00 +0100

Over the past decades, the European Union has been
gradually developing and maintaining legal regionalism within its jurisdiction. Its purpose is to preserve the achievements of integration, as well as the unity and autonomy of EU law. In this paper, I recount the toolbox of EU legal regionalism from primary law, through the case law of the Court of Justice of the European Union, to the institution of the so-called disconnection clauses employed by the EU in certain international treaties, expanding also on their possible effects on international law and the Member States’ relations with third parties.

New Regulation on Membership and Investor Shares in Credit Unions. Comparative Interpretation of Polish Law on Credit Unions

Dominik Bierecki — Thu, 28 Mar 2024 00:00:00 +0100

This paper analyses the 2023 amendment to the Act on Credit Unions of 9 November 2009 using dogmatic and comparative methods. First, the author considers membership of partnerships in credit unions in the context of the requirement of a common bond for membership. Second, the author analyses the legal status of investor shares, conditions of dividend payment on their basis, as well as their termination. In conclusion, the author indicates that Polish regulation on membership of partnerships requires establishing multiple common bond credit unions and that restrictions for holders of investor shares in credit unions are similar in Poland and the UK.

Negative and Positive Freedom: The Case of Turkey

Tacettin Gökhan Özçelik — Thu, 28 Mar 2024 00:00:00 +0100

The meaning of the concept of freedom has constantly changed in history. In Ancient Greece, freedom referred to making a choice and doing something willingly; Hannah Arendt conceptualized it as a necessary discovery made by people in historical periods when the conditions for manifesting the idea of searching the same concept within oneself as an action were insufficient. Today, the concept of freedom has evolved into a dual meaning as negative and positive, shaped by the expressions of Isaiah Berlin. In this sense, the freedoms that we call classical freedoms, which the individual acquires because of being human, without considering the differences in religion, language, gender, and race, are evaluated in the context of negative freedoms. The basis of this understanding is the absence of pressure and coercion from the environment in which the individual lives rather than the creation of surplus value in the individual by external influence. However, with the deterioration of the freedom concept, the gains included in negative freedom have become a problem that the state needs to solve. The need for state intervention in creating a positive effect on the individual has emerged. The concept of positive freedom that emerged in this sense reveals itself in a structure that requires more than the intervention of others; it requires that individuals have control over their selves and that they have an active role in this dominance. Proponents of positive freedom argue that freedom means the individual dominates their own passions, desires, and all obstacles to self-realization. In order to achieve this, the state must firmly stand by the individual regarding collective freedoms. In this context, since the discussions on the concept of rights and freedoms in Turkey spread to negative and positive areas of freedom, this paper aims to show that presenting the concept with a single definition of freedom would be challenging. The re-reading has shown that the rights and freedoms in Turkey are derived from the concept of both positive and negative individual rights. However, it has been observed that the framers of the Constitution limited the fundamental rights and freedoms based on the idea that there should be a limit to the individual’s rights and covered it in the necessary sections in the Constitution to ensure that the fundamental rights and freedoms could not be abused.

EU Directive on Work-Life Balance for Parents and Carers in the Context of Human Resources Problems in the Polish Public Administration

Anna Łukaszuk — Thu, 28 Mar 2024 00:00:00 +0100

This article attempts to present and assess the adequacy of the solutions in the directive on work-life balance for parents and carers in the context of the problems and challenges faced by the Polish public administration in human resource management. The directive’s solutions are analyzed from the perspective of post-pandemic reality, demography, changes in the structure of society and equality, and growing numbers and activation of women in the labor market. An example of applying the WLB policy in the Polish civil service was also presented.

Limiting Social Assistance under the EU Temporary Protection Directive to Displaced Persons Working Remotely for the Public Administration of Their Country of Origin

Piotr Sadowski — Thu, 28 Mar 2024 00:00:00 +0100

This research focuses on the legal situation of displaced persons who benefit from Directive 2001/55/EC regulating the EU temporary protection mechanism. This law can be activated in the case of mass influx of persons in need of international protection. A displaced person (unlike a refugee) can work remotely for the authorities of their country of origin, although this should be verified individually. Thanks to this, the financial benefits from this type of work can be taken into account by the country of residence of the displaced person when determining the level of social assistance granted to that person under Directive 2001/55/EC.

Harmonizing European Financial Regulation: Is There a Need for Improved Similarity in Prospectus Liability Rules?

Leif Sandtorv — Thu, 28 Mar 2024 00:00:00 +0100

This paper on financial regulation addresses the extent to which rules on liability for information should be standardized across the EU/EEA region. The method applied is an analysis of legal documents. My finding is that further harmonization may lead to difficulties concerning procedural rules. Some authors suggest harmonizing the civil procedure for prospectus liability cases. This could reduce asymmetric information and thus contribute to efficient markets. However, mandatory disclosure comes with costs. These may increase if standards inconsistent with domestic procedures are imposed. The topic may be of interest for regulating other aspects of life, such as environmental information disclosure.

Economic Dependence as a Criterion for the Protection of the Self-Employed under EU Law and in Selected Member States

Tomasz Duraj — Thu, 28 Mar 2024 00:00:00 +0100

This paper presents the cornerstones of the conceptual distinctions necessary to map out a separate category of workers, namely “economically dependent self-employed workers” (who fall between dependent subordinated employees and independent self-employed entrepreneurs) from the perspective of the EU law and the laws of selected Member States. The author considers how the economic dependency of self-employed workers should be defined, which method(s) of protection should be applied to these workers, and what scope of protection they should enjoy. The observations in this paper serve as a basis for de lege ferenda recommendations for the Polish legislator. At present, there is no separate category of “economically dependent self-employed workers” in Polish law.

Democratic Transition or Autocratic Adjustment? Constitutional Amendments in Kazakhstan and Uzbekistan in 2022–2023

Rafał Czachor — Thu, 28 Mar 2024 00:00:00 +0100

Central Asian states have recently implemented significant constitutional reforms. In the case of the authoritarian republics of Kazakhstan and Uzbekistan, the nature of the constitutional amendments, introduced in 2022 and 2023, respectively, is hard to accurately assess. On the one hand, they are a step towards democratization and strengthened guarantees of human rights and freedoms; on the other, they reinforce the current undemocratic government mechanisms. This article discusses the most recent constitutional reforms in both countries, distinguishing three main areas of change: ideology, social issues, and governance mechanisms. It is argued that these reforms generally fall within the paradigm of authoritarian constitutionalism and are an adjustment of the countries’ constitutions to the current needs of their undemocratic presidents.

Digital Competences and Digital Skills in the Legal Regulation of the Digital Transformation of the European Union

Grażyna Szpor, Paweł Hajduk — Thu, 28 Mar 2024 00:00:00 +0100

In the digital transformation process, the phases focusing on technical and economic aspects were followed by a phase exposing human capital issues. In approximately 3,000 acts of the European Union relating to the digital transformation process published in Eur-lex, as well as in an increasing number of national acts of the Member States, the terms “digital competences” and “digital skills” appear. They occur, inter alia, in the context of the financing of development tasks and their achievement indicators. In the application of existing law, it must be taken into account that the scopes and interrelationships of these new terms are framed differently. This ambiguity may have a negative impact on the effectiveness of digital transformation. It is postulated that the terminological consistency of the multi-level regulation should be improved and, in doing so, it should be noted that the prominence of digital skills in prospective acts and the way in which knowledge is captured can affect the use of the potential of universities.

Suspension of the Main Proceedings and Referral for a Preliminary Rul-ing. Gloss to the Judgment of the CJEU in Case C-176/22, Bk And ZhP, of 17 May 2023

Dimitris Liakopoulos — Thu, 28 Mar 2024 00:00:00 +0100

The preliminary reference as an appeal of the Court of Justice of the European Union presents many complexities and complicated interpretations over time, given that we have a national judge in the scene of the appeal process, often creating problems but also solutions for greater effectiveness of the law of the European Union and respect for domestic law. The preliminary ruling aims to resolve disputes between internal jurisdictions and evaluate compatibility with EU law, especially in the national procedural sector. Ensuring a postponement of the EU and, above all, protecting the rights of individuals in a concrete, complete and effective way is still questionable research, not so much on a theoretical level but also on a procedural one.

The European Citizens’ Initiative “One of us”. A Gloss to the Judgment of the CJEU of 19 December 2019 in Case C-418/18 P. Puppinck and Others v. Commission

Agnieszka Parol — Thu, 28 Mar 2024 00:00:00 +0100

In December 2019, the Court of Justice issued a judgment in Case C-418/18 P. Puppinck and Others v. European Commission, ending a long-standing dispute between the organizers of the European Citizens’ Initiative “One of Us” and the EuropeanCommission. Ruling in the appeal proceedings, the CJEU dismissed in its entirety the application to set aside the judgment of the General Court of the European Union of 23 April 2018 in case T 561/14 One of Us and Others v. Commission. The “One of Us” organizing committee requested the repeal of the European Commission’s communication following the public initiative on the grounds that it lacked follow-up. The aim of the “One of Us” initiative was to strengthen the protection of dignity, the right to life and the integrity of every human being from conception in the EU’s areas of competence. The initiative proposed amendments to three legislative acts on research, humanitarian cooperation and their funding. The judgment under discussion is important for the interpretation of EU law in two areas. First, this is the first judgment that interprets the systemic position of the European Citizens’ Initiative in such a comprehensive manner. The case confirms that the ECI is an autonomous institution of EU law, whose systemic position is shaped by the principle of institutional balance and participatory democracy. The ECI is a form of emanation of deliberative democracy. Second, the judgment may be considered as confirming the exclusive competence of the Member States in the area of protecting human life at the prenatal stage. On the one hand, this means that EU law cannot impose its own standards on the right to life on Member States. On the other hand, in the area of its competences, it seems that the EU can have its own ethical position, allowing, while respecting the triple lock system, research involving the use of human embryonic stem cells and financing abortions as part of the package of medical assistance offered to the developing countries.