Varování NÚKIB v systematice zákona o kybernetické bezpečnosti a možnosti jeho zohlednění v zadávacím řízení

Author(s): Jakub Klodwig / Language(s): Czech Issue: 23/2021

At first, the article deals with the conceptual inconsistency and the use of the word "measures" in the system of the Cyber Security Act, to not to confuse these linguistically very similar legal institutes. After a clear definition of the nomenclature and nature of measures, the institute of warning is discussed in detail. It is a specific institute in international comparison, which places high demands on individual activity of its recipients. However, it enables the recipient's security measures to be appropriately stepped up, and thus to respond effectively to cybersecurity threats of different intensity. Furthermore, the problematic projection of performative rules of cyber security law and highly formalized administrative rules of public procurement law are practically discussed. After explaining the correct implementation of warning by public authorities, the ways in which the content of warning could be reflected as a subject of a public contract are also presented at various stages of the procurement procedure, in accordance with the supporting materials of NÚKIB and current decision-making practice.

Soudní kontrola excesivních úroků z prodlení

Author(s): Dominik Skočovský / Language(s): Czech Issue: 3/2021

This article deals with the issue of excessive contractual late payment interest. The author first takes into consideration the possible instruments the courts can use to reduce the excessive contractual late payment interest. These instruments are subsequently divided into two categories – those that aim at the content of the agreement and those aiming at the control of the proportionality of the amount of the claim. Further, the possibility of the use of the contemplated instruments for the excessive contractual late payment interest is analyzed. Using historical, partly foreign, but foremost functional comparation method, the text shows the similarities of the institutes of contractual penalty (concluded in a form corresponding with the contractual late payment interest) and contractual late payment interest. While the judge has the power to reduce disproportionately high contractual penalty according to § 2051 of the Civil Code, such instrument lacks with regards to the excessive contractual late payment interest. Hence, a conclusion about a value conflict is being further argued in detail. The conflict lies in a different treatment of contractual penalty in form corresponding with the late payment interest and the contractual late payment interest which can serve the same purpose. The value conflict is the basis for the conclusion about a legal gap which requires an analogous application of § 2051 of the Civil Code (or its teleological reduction). Last of all the text critically examines the latest practice of the Supreme Court related to the excessive contractual late payment interest.

Standard Setting Organisations for the IoT: How To Ensure a Better Degree of Liability?

Author(s): Gennari Francesca / Language(s): English Issue: 2/2021

This early stage research article aims to outline an issue that, though not strictly connected to the cyber-sphere, is most likely going to affect it. Standard Setting/Developing Organisations (SSOs/SDOs) are getting more and more important in the electronics manufacturing field and also in the IP field by setting de facto mandatory rules for products to be safer but, most importantly, more efficient. Standards create trust in complex objects such as IoT devices, that are increasingly more available, especially the ones for the house. It is worth mentioning that the standards these organisations envision are not comparable to legislation but carry a significant ‘moral’ weight (soft law). However, these organisations are private in character and work on a voluntary basis. The problem lies in the creation of the standard when the essentiality of a patented innovation has to be assessed. These processes rely on the self-certification of businesses that their invention is truly essential to the development of a certain standard, which has led to a proliferation of new Standard Essential Patents (S.E.P.s). But in this case, there are no means to ensure some form of liability of these organisations when defects and shortcomings arise. It is argued that unless some form of liability is created for these organisations, IoT objects will never gain the trust of final users.

Online Platforms and "Dependent Work" After Uber

Author(s): Silvia Lattová / Language(s): English Issue: 2/2021

Digitalization is bringing new challenges, including the way how people used to work. The future of work is uncertain. Technology driven innovations are changing the way, how society react to such development by creating different types of jobs and workplaces. What is important today can be redundant tomorrow. Having said that the labour law and civil law will most probably need to react in certain way. The main aim of this paper is to focus on the specific types of activities – such as virtual work or crowd work as well as on relationships between digital platforms, workers, employers and clients while offering and providing services via online platforms. Further the paper will outline the responsibility of online platforms if considered to be in a position of an employer. Due to the lack of compliance with labour laws related duties the online platforms are gaining the unfair competition advantage comparing with "traditional" employer. When it comes to the virtual workers, they can potentially suffer from inadequate or limited access to the certain kind of protection (when compared to the "traditional" employees).

Cyber Security: Lessons Learned From Cyber-Attacks on Hospitals in the COVID-19 Pandemic

Author(s): Jan Kolouch,Tomáš Zahradnický,Adam Kučínský / Language(s): English Issue: 2/2021

The article deals with the issue of cyber security, specifically the security of medical facilities. The introduction summarizes and briefly analyzes the cyber attacks demonstrated on Czech health care facilities in the period from 12/2019 to 1/2021, together with the procedures adopted by the responsible authorities. The article also newly presents the current regulatory requirements for cyber security of hospitals. In the context of past attacks and based on analyzes of attacks, current legislation and events, the article will provide an opinion on whether the requirements for cyber security of hospitals are set sufficiently or whether this area should be revised. At the same time, measures will be recommended to strengthen the cyber security of hospitals.

Lobotka, A.: Umělá inteligence z pohledu antidiskriminačního práva a GDPR

Author(s): Anna Stárková / Language(s): Czech Issue: 24/2021

Wymogi konstytucyjne określone w art. 50 ust. 1 TUE – możliwe procedury podjęcia decyzji o wystąpieniu z Unii Europejskiej w państwach członkowskich

Author(s): Marcin Krawczak / Language(s): Polish Issue: 37 (1)/2022

The vast majority of the literature on the procedure of a Member State’s withdrawal from the European Union concerns the analysis of subsequent stages of the process at the EU level. Researchers rarely resort to internal (national) procedures related to making a decision on the withdrawal from the EU. According to Article 50(1) of the Treaty on European Union, which is the legal basis for a Member State’s withdrawal from the EU “Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements”. The term “constitutional requirements” has raised numerous problems of an interpretative nature in the Brexit process. This paper, therefore, addresses the possible procedure for making a decision to withdraw from the European Union in all Member States. The study analyzes national provisions relating to membership in the EU and international organizations in general. Although no Member State, except Poland, regulates the procedure of making a decision to withdraw from the EU directly, legal systems of all Member States include provisions concerning ratification and termination of international agreements.

Wyrok Wojewódzkiego Sądu Administracyjnego w Szczecinie z dnia 16 grudnia 2021 roku (I SA/Sz 61/20)

Author(s): Author Not Specified / Language(s): Polish Issue: 37 (1)/2022

Mariusz Bogusz (red.), Postępowanie odwoławcze w ogólnym postępowaniu administracyjnym, Wydawnictwo Uniwersytetu Gdańskiego, Gdańsk 2019

Author(s): Tomasz Kosicki / Language(s): Polish Issue: 37 (1)/2022

Następstwo prawne w świetle ustawy z dnia 20 lipca 2018 roku o przekształceniu prawa użytkowania wieczystego gruntów zabudowanych na cele mieszkaniowe w prawo własności tych gruntów

Author(s): Marek Stawecki / Language(s): Polish Issue: 15/2022

The Regulation from 20th July 2018 on Transformation the Right of Perpetual Usufruct of built-up land for residential purposes into Ownership Title came into force on 5th October 2018 (Journal of Law 2020 it.139 with further amendments). This regulation evoked numerous doubts that appeared in practice. Pursuant to assumption of the legislator this transformation supposed to be a paid service. However, a few exceptions to the above law were provided for i.e. relating to natural persons or their heirs in case when they paid an annual one-off payment for the whole period of perpetual usufruct. A personal nature of this entitlement justifies its rationing exclusively to natural persons who acquired both rights and obligations of their predecessor. The above entitlement is closely related to the way (mode) in which a perpetual user acquired a perpetual usufruct right. This means that not every case of a legal succession entitles to acquiring a real estate on preferential principles (i.e. free of charge) and only this case related to a hereditable succession. The purpose of my article is to prove that in case of legal successors there is no grounds for limitation (on a legal analogy basis) to free-of charge transformation only to the successors under a general title (i.e. heirs), excluding the acquirers of a perpetual usufruct right on a contract basis. The manifestation of a legislator’s will was granting privileges to the persons towards whom minimising the encumbrance resulted from a nature of the transformation (a paid service) would be justified. However, the above came into force with ‘a detriment’ for a specific category of entities. This problem is the consequence of a highly complex character of the transformation matter with regards to its legal effects, ambiguity of regulations, and above all, it is related to the fact that a legislator seems not to notice relevant issues connected to the above matter. In this article I analyse and evaluate the latest legislative changes as well as present the review of the attempts to liquidate a perpetual usufruct leading to transforming this right into a ownership title. The research method applied for the purpose of this article is the analysis of current laws and regulations as well as selected judicial decisions.

Wybrane aspekty odtwarzania celów w prawie gospodarki odpadami (cz. II)

Author(s): Marek Łazor / Language(s): Polish Issue: 15/2022

The axiological plane in the interpretation of provisions of the waste management law plays a significant role due to dynamic changes which are taking place concerning its values and which are related to waste management procedures. Although they are, to a large extent, one of the elements forming the structure of the general objectives of the environmental law, they also retain their individual systemic properties, as presented in part 1 of the study. Analyzing the main structural assumptions of the teleological aspect in the derivational theory of legal interpretation created by Maciej Zieliński will allow us to examine whether it may be a valuable tool in the interpretation of provisions of waste management law. In this context, we must note that supporting a particular ideology of interpretation may be conducive to maintaining axiological consistency when applying provisions of a given branch of law. Furthermore, the detachment of particular interpretative directives from the methodology of their use (or as M. Zieliński puts it in his conception - from certain principles, rules or guidelines) makes them a “passive” instrument in the hands of the interpreter that may lead to interpretative results that are often irreconcilable with the objectives of the law ascribed to the legislator.

Zarządzanie finansami gminy

Author(s): Krzysztof Kłak / Language(s): Polish Issue: 15/2022

The aim of this study is to present and assess the methods of public management in local government units. For this purpose, the author used the dogmatic-legal method and analyzed the literature. The sources supporting the budget and its expenses have been indicated. This article describes two basic methods which are the budget and the long-term financial forecast and presents the basic assumptions of these methods.

Tax Avoidance and European Law. Redesigning Sovereignty Through Multilateral Regulation. Mihaela Tofan,

Author(s): Ionel Bostan / Language(s): English Issue: SI/2022

Review of: Mihaela Tofan, Tax Avoidance and European Law. Redesigning Sovereignty Through Multilateral Regulation, Routledge: London, 2022, eBook ISBN 978-100-33-0997-0

Statutul viceprimarului versus statutul administratorului public. Studiu de caz

Author(s): Dana Apostol Tofan / Language(s): Romanian Issue: 10/2022

The study briefly analyzes the status of the deputy mayor in relation to the status of the public administrator in order to debate a possible conflict between them. The similarities and differences between these two functions are highlighted.The delegation of attributions by the mayor is discussed from the perspective of the possibility for the mayor to appoint like substitute the public administrator during his vacation. There are three situations provided by law in which the deputy mayor becomes the legal substitute of the mayor presented in detail in the study: the vacancy of the position of mayor; the suspension from office of the mayor and the cases of impossibility to exercise the mandate by the mayor. In any other situation, there is no legal provision for the deputy mayor to become the legal substitute for the mayor.Two issues need to be debated in this context, namely: identification of the status of the public administrator in the public administration staff and like a consequence, the legal nature of the management contract concluded by public administrator with the mayor.Finally, it is argued the impossibility of suspending the addendum to the management contract, under the conditions of Article 14 of the Law on Administrative Litigation.

Charakter prawny i podstawy prawne funkcjonowania gminnych komisji rozwiązywania problemów alkoholowych

Author(s): Tomasz Kuczyński / Language(s): Polish Issue: 54/2021

The article addresses the problematic issue of the legal nature of commune commissions for solving alcohol-related problems. The statutory regulation relating to the status of these commissions was discussed, as well as the doctrine and judicature positions expressed so far in this subject. The article aims to characterize the acts which are the basis for the functioning of the commission, as well as to define their legal nature. As part of the article, an analysis was made of acts taken by commune heads (mayors, city presidents) and commune councils, which constitute the basis for the functioning of the commission, based on examples of acts taken by specific commune authorities. The legal nature of the commission was also analyzed, referring to the concepts of internal organs of the commune council and the concept of a public administration body. As part of the conclusion, de lege ferenda conclusions were formulated based on the assessment of the current regulation contained in the Act of October 26, 1982, on Upbringing in Sobriety and Counteracting Alcoholism. There are quite large discrepancies between the individual acts of the commune authorities that affect the status and functioning of the commissions. Ultimately, the analysis of the aforementioned Act and the implementing acts issued on its basis indicates the inconsistent nature of the commission itself, as well as the actions were taken by it.

Postępowanie skargowe w sprawie naruszenia przepisów o ochronie danych osobowych

Author(s): Małgorzata Szalewska / Language(s): Polish Issue: 54/2021

The procedure of complaint about infringement of provisions on the protection of personal data is a jurisdictional administrative procedure aimed at protecting the individual rights of the complainant, by resolving their complaint about the infringement of the law and by taking remedial measures by the competent authority which remedy the effects of the infringement both concerning the legal situation of the complainant and the public interest. This study aims to present the key elements of the jurisdictional administrative procedure, regulated in Chapter VII of the uodo, which allows determining its specificity and possible distinctions. The shape of the proceedings in question is fundamentally influenced by the co-application of EU and national procedural norms, including the subsidiary application of the Code of Administrative Procedure. The procedure shaped in this way corresponds to the model of classic administrative proceedings with clearly marked distinct features determined by the implementation of the substantive law on personal data protection, which is particularly visible in the way the administrative case is settled.

Glosa krytyczna do wyroku Naczelnego Sądu Administracyjnego z 17 sierpnia 2017 r., sygn. akt II GSK 1041/17

Author(s): Przemysław Kuczkowski,Piotr Pawłowski / Language(s): Polish Issue: 54/2021

The subject of the commentary on the judgment of the Supreme Administrative Court of 17 August 2017, ref. II GSK 1041/17 is the issue of establishing acts of local law concerning sports scholarships established and financed by a local government unit. The Supreme Administrative Court stated in the commented judgment, that it is permissible to pass a resolution of the voivodeship assembly, which would provide for the possibility of suspending the sports scholarship. Local legal acts are issued based on statutory authorization, which cannot be exceeded. The legislator did not grant the voivodeship assembly the power to regulate the suspension of the payment of sports scholarships. Therefore the judgment of the Supreme Administrative Court should be assessed critically.

Glosa do wyroku Naczelnego Sądu Administracyjnego z 11 stycznia 2018 r., sygn. akt II OSK 1103/17

Author(s): Sławomir Zwolak / Language(s): Polish Issue: 54/2021

The Supreme Administrative Court in the judgment of 11 January 2018, file ref. II OSK 1103/17, stated that the decision ordering the demolition of a part of the structure cannot be considered unenforceable because its execution will have negative economic consequences for the party or will cause difficulties in the use of technical equipment. Issuing an order to demolish a part of a building structure allows for precise determination of the scope of the demolition obligation and adjusting it adequately to the subject of unauthorized construction, leaving part of the building object constructed under the law.

Особености на дължимата престация по договора за разпределение на ползването между съсобственици

Author(s): Krum Todorov / Language(s): Bulgarian Issue: 4/2021

Until now the topic of the due prestation of the agreement of apportionment of use of a common property between joint owners has not been considered in full in our legal literature. The idea is, through deduction from the general concepts, to bring out the distinctive characteristics of the prestation in the agreement of apportionment of use. The path from general to particular leads to the opportunity to get acquainted with the subject matter and to make the needed distinctions, as some of the conclusions are made for the first time in the legal theory.

ОТНОСНО ВЪЗМОЖНОСТТА ЗА СЪДЕБЕН КОНТРОЛ ПО РЕДА НА АПК НА АКТОВЕТЕ НА КОМИСИЯТА ЗА НОМИНИРАНЕ НА ЧЛЕНОВЕ НА СД НА ЛЕЧЕБНИТЕ ЗАВЕДЕНИЯ СПОРЕД СЪДЕБНАТА ПРАКТИКА

Author(s): Rositsa Roumenova Rogova / Language(s): Bulgarian Issue: 3/2022

The article aims to consider the procedure for conducting a competition for the selection of the management bodies of medical institutions according to the Law on Public Enterprises and the Regulations for the Implementation of the Law on Public Enterprises and the possibility of judicial control over the acts of the Nomination Commission on the occasion of the election of a member in the Board of Directors of the medical facility.