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Суверенна Європа: перспективи та виклики для верховенства права

Author(s): Stefan Braum / Language(s): Ukrainian Issue: 166/2024

The article is based on the materials from the introductory online lecture by Professor Stefan Braum on the occasion of the opening of the Jean Monnet Chair "Advanced Study of EU Values and Law: The Ukrainian Context" at the Yaroslav Mudryi National Law University. Against the backdrop of Russia’s aggressive war in Ukraine, which violates international law, the article reflects on the legitimacy and practice of European sovereignty. The coordinates of sometimes conflicting concepts of sovereignty arise within the sovereignty matrix. One of the conclusions is that a just peace can only result from an unequivocal recognition of citizens’ right to self-determination within a democratic and constitutional framework—whether within or beyond the state’s borders.

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Carbon tax and plastic levy as examples of tributes that can have an impact on environmental protection

Author(s): Katarzyna Kopyściańska / Language(s): English Issue: 50 (4)/2024

The basic aim of this article is to examine the benefits and threats for consumers and the environment resulting from the introduction of the Carbon Border Adjustment Mechanism (hereinafter: CBAM) and Single Use Plastic (hereinafter: SUP) in the European Union. Due to the too short period of validity of the analyzed regulations, this goal can only be achieved at the level of assessment of the law in force, i.e. by comparing the assumptions of the “originators” of the analyzed regulations with the method of their implementation into Polish regulations, also comparing it with currently biding regulations, such as the CO2 emissions trading mechanism (EU ETS). Climate protection is primarily about reducing the negative impact of human activity on the atmosphere. This impact mainly involves excessive emissions of greenhouse gases into the air in the course of technological processes, such as burning coal to generate electricity. Climate change is a global problem that requires global solutions. As the EU increases its climate ambitions and as less stringent climate policies prevail in many non-EU countries, there is a risk of so-called carbon leakage. Carbon leakage occurs when EU-based companies move carbon-intensive production abroad to countries with less stringent climate policies than in the EU, or when EU products are replaced by imported products with higher carbon emissions. The EU CO2 Emissions Trading System (EU ETS) was launched in 2005. Nearly two decades later, were are witnessing the implementation of a solution that has the potential to reduce the phenomenon of “emission leakage” more than previous measures. The Carbon- Based Price Adjustment Mechanism (CBAM) heralds a breakthrough tool for imposing a fair price on the carbon emitted in the production of carbon-intensive goods that enter the EU, and for encouraging cleaner industrial production in non-EU countries. The phasing-in of CBAM is aligned with the phasing out of free allocation under the EU Emissions Trading Scheme (ETS) to support the decarbonisation of EU industry. Nevertheless, a key question should be asked whether CBAM actually shapes a coherent systemic framework for CO2 and whether it does not raise significant doubts regarding its compliance with international agreements binding on the European Union and its economic sense. Moreover, from 1 January 2024, a new fee for single-use plastic products will apply in Poland. The so-called “plastic tax” is another step towards reducing environmental pollution. It aims to encourage consumers to use reusable products and reduce the amount of plastic waste. The article uses the dogmatic-legal method, taking into account current literature and applicable legal regulations.

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Uwagi na temat stosowania w polskim porządku prawnym prawa międzynarodowego publicznego i prawa Unii Europejskiej. Zarys problematyki

Author(s): Piotr Laski / Language(s): English Issue: 50 (4)/2024

This article aims to analyse the relationship between Polish law and European Union law. The central issue is to examine the primacy of EU law norms in the context of national law. The author attempts to understand the dominant nature of both legal systems, pointing to the issue of Poland’s sovereignty in the context of integration with the European Union. The starting point for this discussion was an analysis of the approach taken by the Polish Constitutional Tribunal towards EU bodies, with particular emphasis on the role of the Court of Justice of the European Union. The text highlights the essence of sovereignty of the Polish state in the context of transferring the competences of state authorities to the EU, especially in the area of justice. It is argued that such interaction does not constitute a violation of sovereignty, but is the result of a Member State’s compliance with international agreements. The author shows the complexity of the relationship between the domestic law, the EU law and the sovereignty of the Polish state, which may affect the perception of sovereignty in the context of the formation of domestic law in the face of integration with the EU The author tries to shed light on the dynamic interactions between the two legal systems, focusing on changing the shape of Poland’s national law in the prism of European integration. The ultimate aim of this study is to debate the possibility of reconciling the principle of the primacy of the Constitution of the Republic of Poland on the one hand and the principle of the primacy of EU law on the other.

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The Role of the OECD Commentary in the Practice of the Bulgarian National Revenue Agency

Author(s): Stoycho Dulevski / Language(s): English Issue: 2/2024

The aim of this article is to examine the role of the OECD Commentary as an interpretative tool in the practice of the Bulgarian National Revenue Agency (NRA). In this regard, a brief overview of the position of the Bulgarian doctrine regarding soft law, the role of the narrow, and the extensive interpretation in the Bulgarian tax law, as well as the significance of the NRA’s instructions and opinions will be made.

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The Evolution of the Banking Union in Response to the Economic Crisis, from Concept to Implementation Mechanisms

Author(s): Dragoș Mihail Mănescu,Adelina-Elena BĂDESCU / Language(s): English Issue: 2/2024

The European Union's response to the 2008 financial crisis was a complex one, based on a multitude of legislative and institutional measures. In this context, it was considered that from the point of view of the Union's institutional architecture, the responses to the effects of the crisis were insufficient. Moreover, the need to build a single market at a European level has increased. The main pillars of the Single Market are the Economic and Monetary Union and the Banking Union. The complex process of building the banking market is based on a set of regulations and instruments that have been adjusted over time according to the evolution and typology of risks and vulnerabilities that have emerged in the European banking sector. The instruments, developed mainly by the European authorities, respectively the European Banking Authority and the European Central Bank, laid the foundations both for the process of building the two Unions, and for the regulatory framework that governs them.

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Foreign Subsidies and the European Union Internal Market: Regulatory Challenges and Opportunities

Author(s): Ioan Lazăr,Laura Lazăr / Language(s): English Issue: 2/2024

The European Union (EU), as a global economic power, engages in extensive trade and financial interactions with non-EU countries. Foreign governments and organisations frequently extend financial aid, including subsidies and tax incentives, to support specific sectors or enterprises. While such subsidies can bolster economic activities, drive innovation, and support regional development, they also pose significant challenges to the EU's internal market. Unregulated foreign subsidies risk distorting competition, undermining transparency, and affecting fair access in sectors such as public procurement and mergers. Recognising these risks, the EU introduced the Foreign Subsidies Regulation (FSR) to bridge regulatory gaps in state aid control for subsidies granted by non-EU states. This paper explores the impact of foreign subsidies on the EU’s market, assessing the regulatory framework's potential to ensure fair competition, protect economic sovereignty, and foster equitable trade relations with third countries.

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"AI Oppenheimer Moment": Steps towards Regulatory Response to AI's Existential Risk to Humanity

Author(s): Oana GHERGHINA / Language(s): English Issue: 2/2024

Most public and institutional discourse surrounding the Artificial Intelligence (AI) revolution is predominantly optimistic and focuses on the race to develop it, emphasising the benefits: economic growth, advances in healthcare, and solutions to global issues. This optimistic outlook highlights AI's potential to revolutionise various sectors and improve lives. However, strong voices in the industry, including some of AI's own pioneers, are raising serious concerns about the risks of super-intelligent artificial intelligence (AI). These experts warn that once AI surpasses human intelligence, we may lose control over it. In this scenario, AI’s autonomous decisions could no longer align with human interests, potentially posing a profound threat to humanity’s well-being and even survival. This dichotomy underscores a vital question: Will AI serve as an instrument to enhance human existence, or does it pose an existential threat to humanity? As former Google X Chief Business Officer Mo Gawdat suggests, AI presents society with an "Oppenheimer moment", a crucial turning point in technological history that calls for ethical foresight and legal restraint. This paper aims to dissect these risks, considering both existential and immediate concerns, and propose legal and ethical recommendations to enhance AI safety and utility.

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Advancing Digital Transformation in European Trade: Integrating Smart Contracts with CISG and UNCITRAL Model Law on Automated Contracting

Author(s): Larisa-Antonia Capisizu / Language(s): English Issue: 2/2024

A smart contract is an agreement written wholly or partially in computer code which is automatically executed on a blockchain or a distributed ledger technology (DLT). The legal nature of smart contracts has been widely debated in legal literature. This paper analyses the validity and formation of smart contracts through the lens of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and the UNCITRAL Model Law on Automated Contracting, providing insights into their alignment with international legal principles. The paper concludes that a smart contract used as an international sales contract can be deemed valid under the CISG. Specifically, such a contract can satisfy the formation requirements set forth by the Convention, as it demonstrates a clear indication of the parties’ intent and fulfills the essential elements of offer, acceptance, and sufficient definite indication of the goods, price, and quantity. Moreover, the UNCITRAL Model Law on Automated Contracting has put an end to the controversy regarding the legal validity of smart contracts.

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The Legal Assistance Contract in the New Digital Age

Author(s): George-Bogdan Ionita / Language(s): English Issue: 2/2024

This study aims to analyse the impact that technological development has on the legal profession, through the lens of digitisation. In this sense, we will turn our attention to observing the current regulation of the legal assistance contract and whether the latter can be "transformed" and considered a smart contract that can be stored on the Blockchain.

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TAX Treatment of Insurance Benefits

Author(s): Elena-Cristina Savu / Language(s): English Issue: 2/2024

The recent provisions of the Fiscal Procedure Code of Romania introduced by GEO 125/2024 and justified to ensure compliance with Article 5 of Directive 2010/24/EU on mutual assistance in recovery of claims relating to taxes, duties, and other measures are about to create a new obligation for the insurers, namely to report information on life insurance and other financial products concluded on the territory of Romania. This mechanism allows the authorities to know if a person concluded a life insurance contract in Romania with the purpose of recovery eventual taxes or fines from another member state. The issue at stake is that these measures are about to affect the tax treatment of insurance benefits in some cases.

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European Law and the Obligations of Internet Service Providers and Social Media Platforms in Reporting Child Sexual Abuse

Author(s): Horia-Șerban Tiugan / Language(s): English Issue: 2/2024

The scope of the article pertains to the legal responsibilities of internet service providers (ISPs) and social media platforms within the context of European Business Law, focusing on their obligations to report cases falling under the boarder spectrum of child sexual abuse. With the rise of digital communication, effective judicial protection of minors has become a pressing concern, prompting the European Union to implement stringent regulations or to adapt its legal perspectives on the matter. For this reason, the following paper shall analyse (i) the legal framework, including the General Data Protection Regulation and the Digital Services Act; (ii) conjunctively exploring the balance between user privacy and the social imperative to safeguard children against any forms of sexual abuse, in order to highlight the challenges in reporting abusive online content.

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ZNAČAJ PRIMJENE DIGITALNIH MODELA I EU REGULATIVA PRILIKOM PLANIRANJA RADA PROIZVODNIH ELEKTROENERGETSKIH OBJEKATA ZASNOVANIH NA OIE

Author(s): Saša Đekić / Language(s): Bosnian Issue: 28/2024

The significance of applying digital models in the planning of operation for manufacturing electro-energy objects based on renewable energy sources is of paramount importance, especially in the context of compliance with the international obligations of Southeast European countries in the energy sector, which are largely contained in the provisions of the Treaty establishing the Energy Community. Governments in the Southeast European region aim for the decentralization of production in the energy sector by encouraging the construction of electro-energy production facilities based on renewable energy sources and power plants, as well as by promoting citizen energy generation. A large number of such production facilities are connected to the electro-energy distribution grid, known as distributed generators (DG). The aim of this paper is to highlight the significance of employing digital models and specialized software packages designed for calculations and simulations in the power system (EES), as well as the specific application of EU regulations related to the connection of generation facilities in Bosnia and Herzegovina (BiH).

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Pojęcie państwa trzeciego w prawie Unii Europejskiej – uwagi ogólne do Wyroku Trybunału Sprawiedliwości Unii Europejskiej w sprawie C-632/20P, Hiszpania vs. Komisja Europejska

Author(s): Adriana Kalicka-Mikołajczyk / Language(s): English,Polish Issue: 5/2024

In the judgement in case C-632/20P, Spain v. European Commission, the Court of Justice of the European Union (CJEU) had to determine whether Kosovo fell into the scope of the definition “third country” for the purposes of Article 35 of Regulation (EU) 2018/1971. The CJEU ruled that the term “country” can be used interchangeably with the term “State” and the European Commission did not err in law in finding that Kosovo can be considered a third country in order to provide for the participation of its national regulatory authority in the Body of European Regulators for Electronic Communications (BEREC). The CJEU stressed that the treatment of Kosovo as a third country does not affect the individual positions of EU Member States as to whether Kosovo has the character of an independent state under international law. This judgement confirms the status quo in relations between Kosovo and the EU. It also safeguards the position of those EU Member States that do not recognise Kosovo, while ensuring the further development of EU cooperation with Kosovo. By ruling that there is no difference between the concepts of “country” and “State”, and thus allowing their interchangeable use, the CJEU has prevented their artificial separation. This judgement, in a broader perspective than the EU’s bilateral relations with Kosovo, demonstrates that the question of establishing international cooperation with states not recognised by all member states is of little relevance to the development of their bilateral relations with the EU. Such a state can therefore join various forms of multilateral cooperation in the international arena, which does not affect the bilateral relations between it and a member state that has not recognised it. In this vein, Kosovo has established multilateral relations with various international organisations without having to engage in bilateral cooperation with states that do not recognise it.

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Glosa do wyroku Trybunału Sprawiedliwości Unii Europejskiej z dnia 2 lutego 2023 r., C-208/21, w sprawach nieuczciwych praktyk handlowych w zakresie obowiązków informacyjnych w ubezpieczeniach na życie z ubezpieczeniowym funduszem kapitałowym (…)

Author(s): Magdalena Szczepańska / Language(s): Polish Issue: 115/2023

The subject of this gloss is the judgment of the Court of Justice of the European Union (CJEU)of 2 February 2023, C-208/21 on unfair commercial practices with reference to the informationdisclosure in life assurance contracts linked to investment funds, called unit-linked life insurance.The judgment contains guidelines on information disclosure in this insurance by entities thatprepare and distribute such insurance products. The issue is of vital importance for insuranceindustry and has not been unambiguously defi ned either in legal regulations or in judicial decisions.Rather than addressing all the questions referred to the Court of Justice, the gloss concentrateson entities responsible for communicating the information to the consumers before they accedeto unit-linked group life insurance contracts.

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Glosa do wyroku Trybunału Sprawiedliwości Unii Europejskiej (piąta izba) z dnia 30 marca 2023 r. (C-618/21) dotyczącego zakresu kompetencji ustawodawców krajowych w zakresie zasad prawa odszkodowawczego oraz ubezpieczenia odpowiedzialności (…)

Author(s): Marcin Orlicki / Language(s): Polish Issue: 114/2023

The gloss concerns the judgment of the Court of Justice of the EU which confi rmed the rightof national legislators to determine the shape of insurance compensation under the compulsorymotor third party liability insurance. However, it is necessary to ensure that the aggrieved partyhas the right to claim damages from the insurer under direct claim to have the damage remediedin the full due extent.

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Glosa do wyroku Trybunału Sprawiedliwości Unii Europejskiej z dnia 13 października 2022 r. w sprawie prawa agenta do prowizji od umów z klientami pozyskanymi poprzednio przez agenta (sprawa C-64/21)

Author(s): Jakub Nawracała / Language(s): Polish Issue: 113/2022

The gloss refers to the judgment of the Court of Justice of the European Union of 13 October2022 in Case C-64/21. The court adjudicated on the problem presented in the request for a pre-liminary ruling from the Polish Supreme Court (Case I CSK 483/18). The issue considered bythe Supreme Court related to the legal nature of the provision of Article 761 §1 in fi ne of thePolish Civil Code, and more specifi cally to the determination whether this provision is dispositive,imperative or semi-imperative. In reality, the question was whether Article 761 §1 in fi ne of thePolish Civil Code ‘imposes’ the agent’s entitlement to commission on contracts entered into bythe ordering party with clients previously acquired by the agent for contracts of the same kind, or whether that entitlement may be contractually excluded. The referral to the CJEU for a pre-liminary ruling resulted from the fact that Article 7(1)(b) of Council Directive 86/653/EEC hadbeen transposed into Polish law by means of Article 761 §1 in fi ne of the Polish Civil Code and,in the Supreme Court’s opinion, it was desirable to apply a pro-EU interpretation. In the glossedjudgment, the Court ruled that Article 7(1)(b) of the Directive is dispositive and that the agent’sentitlement to commission on such contracts may be derogated. In general, the author of thisgloss considers the CJEU’s judgment to be correct in the context of the arguments cited by theCourt, with those arguments being based on the interpretation borne out by the legislative historyof the directive, its genesis and the process of creating its legal provisions at the initial stage.

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New Ukrainian Insurance System

Author(s): Anna Kalinichenko / Language(s): English Issue: 112/2022

The article discusses the new insurance system in Ukraine introduced by the Law of Ukraine“On Insurance” dated 18 November 2021, which became effective on 19 December 2021 andwill come into full effect on 1 January 2024. In 2020 the National Bank of Ukraine became thenew regulator of the Ukrainian insurance market and initiated the development of a new regu-latory and oversight model in the insurance sector. The article discusses the problems relatedto the Ukrainian insurance market which are expected to be solved by the new regulation andoversight model. The author presents the most important new solutions introduced by the Law,such as requirements relaed to entering the insurance market, ownership structure, capital , theprotection of consumer rights and exiting the insurance market. The article also shows a briefcomparative analysis of the relevant provisions of the Law and Directive 2009/138/EC. The authorconcludes that the new regulations are comprehensive and consumer-oriented, which will helpto solve existing problems and build a solvent and competitive insurance market.

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Les juridictions roumaines compétentes à solliciter des avis consultatifs à la Cour européenne des Droit de l’Homme

Author(s): Corneliu Liviu Popescu / Language(s): French Issue: 4/2024

The High Court of Cassation and Justice and the Constitutional Court, as the two supreme courts in Romania, are the highest national courts and they are included in the declaration addressed by Romania to the Secretary General of the Council of Europe at the time of signing Protocol no. 16 to the European Convention on Human Rights, and in the list established by the law ratifying this treaty, so they are competent to address requests for advisory opinions to the European Court of Human Rights. Courts of appeal, on the other hand, have no such competence, despite their inclusion in the declaration deposited when Protocol no 16 was signed, although a second declaration, eliminating them, requested by the ratification law, was never deposited, because they do not meet the conventional requirement of being the highest courts at least in certain matters, the European Court of Human Rights having jurisdiction to verify compliance with this condition and to declare, where appropriate, inadmissible a request for an advisory opinion from a court of appeal.

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Trimitere preliminară. Servicii de plată în cadrul pieței interne. Directiva 2007/64/CE. Noțiunea de «instrument de plată». Procură a unui mandatar care acționează în numele titularului contului. Copie a procurii certificată prin apostilă...

Author(s): Author Not Specified / Language(s): Romanian Issue: 2/2024

CJEU, Fifth Chamber, judgment of July 11, 2024, case C-409/22.

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Trimitere preliminară. Protecția consumatorilor. Contracte de credit pentru consumatori. Directiva 2008/48/CE. Risc de îndatorare excesivă. Obligația creditorului de a verifica bonitatea consumatorului. Informație care trebuie menționată în ...

Author(s): Author Not Specified / Language(s): Romanian Issue: 2/2024

CJEU, Tenth Chamber, judgment of October 24, 2024, case C-339/23.

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