European Law Research Papers - Academia.edu (original) (raw)

This paper provides a detailed analysis of two institutional reforms, respectively put forward by the European Commission in March 2014 and by the Council of the EU in December 2014 – on how to tackle the problem of Member States’... more

This paper provides a detailed analysis of two institutional reforms, respectively put forward by the European Commission in March 2014 and by the Council of the EU in December 2014 – on how to tackle the problem of Member States’ non-compliance with the principle of the rule of law, which is one of the fundamental values of the Union according to Article 2 TEU. It is submitted that while both proposals definitely represent a timid step in the right direction, the Commission’s ‘light-touch’ proposal falls short of what is required to effectively address ongoing and serious threats to the rule of law within the EU but is however clearly preferable to the Council’s alternative proposal to hold an annual rule of law dialogue among all Member States within the Council itself.

The European Union is facing with difficulty the management of migrant flows, above all of asylum seekers. According to the principle of solidarity and responsibility sharing, Member States are demanded a huge collaboration. However,... more

The European Union is facing with difficulty the management of migrant flows, above all of asylum seekers. According to the principle of solidarity and responsibility sharing, Member States are demanded a huge collaboration. However, some of them (the Visegard Group) have adopted a set of policies in conflict with the European Union’s approach on migration. Since 2015, Hungary, with its legal developments, has seriously undermined human rights and the right to asylum, in violation of international and EU law. Alarmed by the March 2017’s Asylum law, below discussed in detail, the aim of the Brief is to underline the illegitimacy of the measures contained in the Act. Supported by some Reports drawn up by UNHCR, the Hungarian Helsinki Committee and Amnesty International, this document focuses on illegal return, detention and push back of migrants and asylum seekers who arrive in the ‘Transit Zones’. To highlight the unlawfulness of actual Hungary’s legal framework on asylum, a reference is also made to the recent jurisprudential developments of the European Court of Justice (ECJ), the European Court of Human Rights (ECHR) and to judgements handed down by Member States’ national Courts. In the final part of the Brief it is strongly suggested to Hungary to set remedy to EU and international law violations, and are also underlined the consequences that may emerge if the State would perpetrate its unlawful behaviour.

J.F. Kennedy once said: “Consumers, by definition, include us all.” Indeed, no matter where we look in the Croatian legal system, we come across a new consumer. Sometimes this is a consumer protected by lex generalis for consumer... more

J.F. Kennedy once said: “Consumers, by definition, include us all.” Indeed, no matter where we look in the Croatian legal system, we come across a new consumer. Sometimes this is a consumer protected by lex generalis for consumer protection, the Consumer Protection Act. Another time it is a consumer protected by the Obligations Act or, more specifically, the Consumer Credit Act and even more specifically by the Mortgage Consumer Credit Act. If he pays for something he has bought, he is also a consumer protected by the Payment System Act, and if he has decided to travel around by means of a package travel arrangement, he is a consumer enjoying protection under the Act on Provision of Services in Tourism. The first part of this paper is devoted to legal development of the Croatian consumer protection law and presentation of consumer rights as guaranteed by the main source of consumer protection in Croatia, namely, by the Consumer Protection Act.

This Article aims to constructively analyze the emerging constitutional dialogue between the Constitutional Court of Romania (the CCR or the Court) and the Court of Justice of the European Union (CJEU). It focuses, in particular, on the... more

This Article aims to constructively analyze the emerging constitutional dialogue between the Constitutional Court of Romania (the CCR or the Court) and the Court of Justice of the European Union (CJEU). It focuses, in particular, on the lack of a reference for a preliminary ruling from the first court, and aims to unveil the possible motives underlying this passive behavior.

This book aims to address ‘boat migration’ with a holistic approach. The different chapters consider the multiple facets of the phenomenon and the complex challenges they pose, bringing together knowledge from several disciplines and... more

This book aims to address ‘boat migration’ with a holistic approach. The different chapters consider the multiple facets of the phenomenon and the complex challenges they pose, bringing together knowledge from several disciplines and regions of the world within a single collection. Together, they provide an integrated picture of transnational movements of people by sea with a view to making a decisive contribution to our understanding of current trends and future perspectives and their treatment from legal-doctrinal, legal-theoretical, and non-legal angles. The final goal is to unpack the tension that exists between security concerns and individual rights in this context and identify tools and strategies to adequately manage its various components, garnering an inter-regional / multi-disciplinary dialogue, including input from international law, law of the sea, maritime security, migration and refugee studies, and human rights, to address the position of ‘migrants at sea’ thoroughly.

In recent decades, civil society organisations (CSOs) have grown both in number and in their impact on policy-making, at European and also non-Member state level. Public institutions, motivated by the need to increase their legitimacy,... more

In recent decades, civil society organisations (CSOs) have grown both in number and in their impact on policy-making, at European and also non-Member state level. Public institutions, motivated by the need to increase their legitimacy, have increasingly delegated functions to CSOs. Concomitantly, CSOs have expanded their access to public funding. In part because of increased access to public funding, and in part because of a stronger relationship with public powers, CSOs are under pressure to demonstrate that they use the resources they are given in an efficient, accountable and transparent manner, e.g. by adopting policies on fiscal transparency, and by maintaining financial solvency. The EU's interest in regulating CSOs is relatively recent. At present, the legal framework addressing CSOs' financial accountability includes two 'categories' of norms: those that regulate the award of public contracts and the concession of grants, and those norms that address transparency and openness. The first category includes the rules on public contracts and the rules on (co-)financing of CSO projects; whereas the second category includes the Financial Transparency Initiative (FTJ) and the Joint Transparency Register
(JTR). The FTJ gathers all information on EU funding in a single database. The JTR gathers information produced by the various organisations (including CSOs) that are interested in lobbying the EU, and who register voluntarily. Defining the boundaries of CSO fiscal accountability and effectively tackling cases of fraud or financial mismanagement remains a difficult endeavor. On the one hand, the EU still lacks a single overarching understanding (and, consequently, legal definition) of CSOs. This translates into the absence of clear legal definitions, and more generally into
the opacity of the information available on CSOs through EU databases. Moreover, as CSOs are 'private entities', they are not submitted to the same integrity mechanisms and norms that apply to public institutions, including internal and external oversight. Finally, a significant administrative burden imposed on CSOs may, in the end, counter EU efforts to tackle financial mismanagement by CSOs. In many respects, the issue of CSO financial accountability has come to resemble a dialogue of the deaf: EU institution-proposed reforms have been postponed, or have not produced the outcomes expected, or have been fiercely opposed by CSOs. At the same time, the self-regulatory tools (including policies on selecting donors, self monitoring and codes of conduct and standards) developed by CSOs to enhance their
financial accountability have not obtained official recognition from EU institutions.

During their evolution, legal informatics and digital law have undergone a growing development linked to the constant transformations and continuous experimentation of the technique, so much that the affirmation of the Internet and the... more

During their evolution, legal informatics and digital law have undergone a growing development linked to the constant transformations and continuous experimentation of the technique, so much that the affirmation of the Internet and the global network today shows all the pervasiveness of digital technologies in our actions.
Over time, the EU and italian legal framework on digital technologies has been enriched with numerous measures to encourage the wider dissemination of information technology and innovations.
And, in the coming years, investments and the promotion of technological development, throughout the EU, will be aimed at ensuring competitiveness in the business world, the complete digital transformation of public administrations, the creation of an open, democratic and sustainable society.
Despite significant delays, especially at national level, in social and economic reorganization and digitization, legal informatics and digital law, represent fundamental competences in the field of legal sciences and are destined to take on an increasing incidence in the legal field, given that computers and communication technologies are, in every way, an integral part of our lives.

A key focus of much scholarly attention is on the (theoretical) relationship between legal orders. The practical question I intend to answer in this article is the following: how can we know who has the final say – international, European... more

A key focus of much scholarly attention is on the (theoretical) relationship between legal orders. The practical question I intend to answer in this article is the following: how can we know who has the final say – international, European Union (EU) or national law? I proceed in three steps. First, I critically sketch major current theories – monism and dualism, as well as global legal pluralism and global constitutionalism. However, because none of them offers a satisfactory answer to the question posed, I move to the reconceptualization stage of the theoretical relationship between legal orders. In the second step, I offer my account of how to think about the relationship between legal orders by introducing the theory of the law creators' circle (TLCC). The TLCC provides a theoretical foundation for deciding on the source of the decisive norm. It does not, however, provide a general solution which fits any norm conflict stemming from overlapping legal orders. Thus, the purpose of this article is to develop a legal theory which facilitates the understanding of the interaction between international law, EU and national law. Third, I use a doctrinal analysis to show the results of the TLCC application. For instance, in the famous Kadi saga, according to the TLCC, the EU should have either claimed that the UN Security Council was acting ultra vires or considered the UN Security Council Resolution faulty because UN human rights (instead of EU human rights) had been violated.

Il processo innovativo che ha coinvolto negli ultimi decenni il sistema finanziario ha assistito all’affermazione nei mercati degli Exchange Traded Products (ETP), la macrofamiglia di strumenti finanziari ad indice quotati e negoziati in... more

Il processo innovativo che ha coinvolto negli ultimi decenni il sistema finanziario ha assistito all’affermazione nei mercati degli Exchange Traded Products (ETP), la macrofamiglia di strumenti finanziari ad indice quotati e negoziati in un mercato regolamentato. Il presente lavoro si concentra nella disamina degli Exchange Traded Commodities (ETC), strumenti finanziari emessi da una società costituita ad hoc per effettuare esclusivamente una o più operazioni di emissione di strumenti finanziari a fronte dell’investimento diretto dell’emittente in materie prime o in contratti derivati su materie prime. Dopo un inquadramento della fattispecie, la disamina si sposta sulla riconducibilità di tali strumenti agli strumenti finanziari derivati e sulle principali problematiche di natura civilistica relative all’istituto, soprattutto alla luce della più recente evoluzione del panorama normativo comunitario.

The book strives to provide a historical, comparative, and multidisciplinary introduction to the study of private law. Against the backdrop of the predominant position enjoyed by legal positivism, private law is thus understood as a... more

The book strives to provide a historical, comparative, and multidisciplinary introduction to the study of private law. Against the backdrop of the predominant position enjoyed by legal positivism, private law is thus understood as a complex social phenomenon, which intercats with human culture as a whole. The national jurisdictions belonging to the Western legal tradition are mainly depicted, as well as the supranational trends that point towards a global law. Particularly, the rise of a European law is accounted for not only within the framework of the Union's legislature, but also through the development of a rediscovered ius commune that emerges from comparative studies conducted by scholars and from the creative attitude of the courts. A special attention is paid to the sources of uniform law and to the development of soft law as a means of integration of legal systems. Traditional doctrines of juridical facts and duties are finally reinterpreted as devices designed to construct a jurisprudence that extends beyond national borders.

This paper argues that the Treaties of Rome and the process of European integration they heralded had a lasting impact on the development of international law. However, their significance is usually misattributed. While European law has... more

This paper argues that the Treaties of Rome and the process of European integration they heralded had a lasting impact on the development of international law. However, their significance
is usually misattributed. While European law has had little impact on international legal doctrine, and while European integration has remained unique as a political project, European law and the process of European integration have served international law as an important progress narrative. In this respect, they have had an influence on important background understandings characterizing international law since the postwar era, including on the perception of international law as universal, autonomous, pluralistic, and economically liberal. The progress narrative culminates in the view that international law is in a normatively ambitious process of constitutionalization, an idea imported from European law. This progress narrative is now under threat as European integration faces existential difficulties. The crisis of European integration might therefore anticipate a crisis of international law.

L'articolo esamina il principio di effettività, descrivendone la storia e la evoluzione nel nostro sistema. In principio, l'effettività del rimedio era prevista nell'ambito della tutela dello straniero propria del diritto internazionale... more

L'articolo esamina il principio di effettività, descrivendone la storia e la evoluzione nel nostro sistema. In principio, l'effettività del rimedio era prevista nell'ambito della tutela dello straniero propria del diritto internazionale generale: esso costituiva un obbligo dello Stato territoriale nei confronti degli altri Stati. Successivamente alla seconda guerra mondiale, l'effettività del rimedio ricorre anche nelle carte poste a tutela dei diritti umani (Art. 8 UDHR, Art. 13 ECHR e art. 47 CFREU) e poi diventa parte centrale del diritto dell'unione europea quale diritto del singolo (art. 19 TEU). Di recente anche la nostra giurisprudenza ha impiegato il principio, quale significato ulteriore dell'art. 24 Cost. (Corte di Cassazione 21255/2013 e Corte Costituzionale 238/2014), così da realizzare appieno la strumentalità del processo rispetto al diritto.

These Conference Proceedings are one of the last outputs of the Jean Monnet Chair in EU Procedural Law (reg. no. 553095-EPP-1-2014-1-HR-EPPJMO-CHAIR) that was granted to the Faculty of Law Osijek three years ago. The Jean Monnet Chair is... more

These Conference Proceedings are one of the last outputs of the Jean Monnet Chair in EU Procedural Law (reg. no. 553095-EPP-1-2014-1-HR-EPPJMO-CHAIR) that was granted to the Faculty of Law Osijek three years ago. The Jean Monnet Chair is funded by the European Commission in the framework of the Erasmus+ Programme with the aim of encouraging professors, students and professionals to teach and research EU law and especially EU procedural law. Symbolically, this
conference marks the end of the Jean Monnet Chair in EU Procedural Law, but also the beginning of the EU and comparative law issues and challenges series that aspires to pursue the scientific idea conceived by Jean Monnet Chair projects.

Against the backdrop of the predominant legal positivism, this book strives to depict private law as a complex social phenomenon interacting with human culture as a whole and its history. The author sketches the national jurisdictions... more

Against the backdrop of the predominant legal positivism, this book strives to depict private law as a complex social phenomenon interacting with human culture as a whole and its history. The author sketches the national jurisdictions belonging to the Western legal tradition, as well as the supranational trends that point towards a global law. In particular, the rise of a European law is accounted for not only within the framework of the Union, but also through the development of a rediscovered ius commune that has emerged from comparative studies conducted by scholars and from the dialogue among national and international courts. Traditional doctrines regarding juridical facts and rights are presented as analytical tools aimed to construct a jurisprudence that extends beyond national borders.

It is sometimes argued that the non-therapeutic, non-consensual alteration of children’s genitals should be discussed in two separate ethical discourses: one for girls (in which such alterations should be termed ‘female genital... more

It is sometimes argued that the non-therapeutic, non-consensual alteration of children’s genitals should be discussed in two separate ethical discourses: one for girls (in which such alterations should be termed ‘female genital mutilation’ or FGM), and one for boys (in which such alterations should be termed ‘male circumcision’). In this article, I call into question the moral and empirical basis for such a distinction, and argue that all children—whether female, male, or intersex—should be free from having parts of their genitals removed unless there is a pressing medical indication.

The massive flow of asylum seekers, most of them from third countries such as Syria, Afghanistan, Iraq and Eritrea, led the EU institutions to recognize in April 2015 the exceptional nature of the situation, calling unsuccessfully for the... more

The massive flow of asylum seekers, most of them from third countries such as Syria, Afghanistan, Iraq and Eritrea, led the EU institutions to recognize in April 2015 the exceptional nature of the situation, calling unsuccessfully for the adoption of solidarity measures to overcome the catastrophic humanitarian situation in the so-called "frontline Member States", such as the Hellenic Republic and the Italian Republic. In this context, the European Commission's Pact on Migration and Asylum of 23 September 2020 represents a package of proposals that incorporates previous measures advanced by the Commission after this migration crisis. Despite the expectations and premises of the new Pact, it retains an emergency and state-centered approach that has so far characterized the measures adopted by the Union. Therefore, article wants to show that the crisis is still ongoing and, for certain aspects, unresolved and unsolvable, because it is a deeper crisis that concerns the values of the Union which is intended differently by the EU Member States.

Much like initial public offerings produce publicly traded securities, Initial Coin Offerings (icos) produce crypto tokens tradeable on crypto exchanges. Despite an apparent need for investor protection the ico and the tokenisation... more

Much like initial public offerings produce publicly traded securities, Initial Coin Offerings (icos) produce crypto tokens tradeable on crypto exchanges. Despite an apparent need for investor protection the ico and the tokenisation phenomenon have yet to be addressed by legislative action on the EU level. The paper studies the suitability of the EU regulatory framework to capture tokenised financial instruments and utility tokens based on the views of the EU supervisory and national competent authorities. It is argued that EU regulators shall first ensure legal certainty by defining the scope of to-kenised financial instruments subject to MiFID. Further, authorisation and ongoing requirements shall be adapted to address the risks posed by distributed technology and direct global access of investors to crypto markets. Finally, there is no immediate need for a bespoke EU-wide regime governing utility tokens; fragmentation of the market is a positive development providing a testing field for future supranational initiatives.

Apresentação destinada a um Seminário na disciplina "Cibercriminalidade" do Mestrado em Direito e Informática da Escola de Direito da Universidade do Minho, no dia 19 de maio de 2023, o qual tenho lecionado desde 2012. Uma versão... more

Apresentação destinada a um Seminário na disciplina "Cibercriminalidade" do Mestrado em Direito e Informática da Escola de Direito da Universidade do Minho, no dia 19 de maio de 2023, o qual tenho lecionado desde 2012.
Uma versão anterior servira de apoio uma aula da disciplina "Direito e Segurança Informática" do Mestrado em Segurança Informática da Universidade de Coimbra, no dia 2 de dezembro de 2022.

El perfilado puede ser definido como una técnica que <<consiste en el tratamiento de los datos personales para analizar o predecir los elementos en relación a una persona>>» . Los avances tecnológicos en esta materia pueden incitar a los... more

El perfilado puede ser definido como una técnica que <<consiste en el tratamiento de los datos personales para analizar o predecir los elementos en relación a una persona>>» .
Los avances tecnológicos en esta materia pueden incitar a los gobiernos a utilizar las técnicas de perfilado con el fin de combatir el terrorismo de una manera más eficiente. Además de la técnica aquí descrita, otras técnicas en desarrollo, son capaces de “predecir” los ataques terroristas con una gran precisión .
Dicho desarrollo, necesita una colecta de datos personales. Sin embargo, el grupo europeo de protección de datos se opone a la colecta abusiva de datos personales. La utilización de estas técnicas puede plantear problemas en cuanto al respecto de las exigencias de la Carta de los derechos fundamentales, concretamente, a la luz de su artículo 8 .La directiva 2016/680 del 27 de abril de 2016 relativa a la protección de las personas físicas en lo que respecta al tratamiento de datos personales en materia penal prevé en su artículo 16 el “derecho al olvido” como un derecho a la supresión de datos personales.
El objeto de la presente contribución consiste en analizar el alcance del derecho a la supresión de datos personales (“derecho al olvido”) previsto en dicha directiva en relación a los condenados por terrorismo y a la luz de los avances tecnológicos.

Once again, Europe is at a crossroads: Although there is regular talk of crisis, trust in the European Union remains stable and there is a strong upwards trend regarding its positive image (the latest Standard-Eurobarometer90 shows a... more

Once again, Europe is at a crossroads: Although there is regular talk of crisis, trust in the European Union remains stable and there is a strong upwards trend regarding its positive image (the latest Standard-Eurobarometer90 shows a record high).Nonetheless, Europe faces many internal and external challenges, such as Euroscepticism, the return of nationalism, societal and technological developments, climate change, terrorism, and an ever-changing global political, economic and societal landscape, and may be in need of structural modifications.It is precisely against this backdrop that we pose this question: What should these modifications look like, and, more generally, how should we shape the future of Europe?
We invite young scholars to propose ideas and to discuss their views on how to shape the future of Europe. This warrants a forward-looking conceptual analysis on how to properly address Europe’s internal and external challenges and a bold and visionary approach. Instead of proposals that focus on current shortcomings, we encourage submissions that propose new, hands-on approaches to tackling Europe’s challenges in an innovative and future-oriented way, or pieces that revisit existing but promising approaches that were never put into practice. Additionally, in asking ourselves how we ought to shape the future of Europe, we also need to inquire how we will be studying EU law in the future. We therefore also welcome contributions on how and in which direction legal scholarship itself should develop.

This case note proceeds as follows: first, it presents the facts of the case; secondly, it analyses the ruling of the Court and, where relevant, the opinion of the Advocate General (AG); thirdly, it discusses a number of implications... more

This case note proceeds as follows: first, it presents the facts of the case; secondly, it analyses the ruling of the Court and, where relevant, the opinion of the Advocate General (AG); thirdly, it discusses a number of implications arising from the ruling, and places it in the wider context of the Court’s case law on the ECB and European multi-level administrative governance. In particular, this case note argues that, while unsurprising in the context of earlier case law on composite procedures, the Berlusconi ruling contributes to clarifying the conditions and modalities of the Court’s jurisdiction in composite procedures, but still leaves a number of unanswered questions concerning the ‘reach’ of judicial review when shared administration is at stake.

O polityce równościowej Unii Europejskiej napisano i wciąż pisze się sporo,szczególnie w ostatnim czasie, kiedy w publicznym dyskursie w społeczeństwach państw Unii Europejskiej oraz w instytucjach unijnych kwestie równości płci zajmują... more

O polityce równościowej Unii Europejskiej napisano i wciąż pisze się sporo,szczególnie w ostatnim czasie, kiedy w publicznym dyskursie w społeczeństwach państw Unii Europejskiej oraz w instytucjach unijnych kwestie równości płci zajmują coraz więcej miejsca. Dało temu impuls kilka znaczących wydarzeń z ostatnich lat, które wpłynęły na intensyfikację dyskusji na tematkwestii płci w społecznym, gospodarczym, wreszcie politycznym funkcjonowaniu Unii Europejskiej.
Niniejszy artykuł nie ma na celu przybliżenia czytelnikowi założeń europejskiej polityki równościowej – te zostały już w dużej mierze przedstawione zarówno w dokumentach instytucji unijnych, jak i w opracowaniachtego dotyczących. Jego zadaniem jest natomiast wskazanie wyzwań związanych z wykorzystaniem właściwych metod do badania polityki równościowej, jej podstaw i znaczenia.

This chapter describes characteristic features of Polish law concerning fruit-fermented flavored beverages against the background of the EU law regulating “other fermented beverages”. Particular attention is given to the classification of... more

This chapter describes characteristic features of Polish law concerning fruit-fermented flavored beverages against the background of the EU law regulating “other fermented beverages”. Particular attention is given to the classification of the specific fermented beverages either as flavored fruit-wine or spirit drink category. In other words, this analysis is an attempt to capture the essence of the nature of alcoholic beverages obtained from fruits other than grapes, especially those products whose taste and smell differ from those of the fruits that have been used for fermentation. The paper proposes also legislative changes in the provisions of the Combined Nomenclature as well as in the industry regulations aimed that would provide legal coherence in this market sektor.

On the whole, this dissertation aims to address an overarching research question, i.e. how the right of education of persons with disabilities can be best protected and promoted to fulfil the obligations laid down in Article 24 UNCRPD.... more

On the whole, this dissertation aims to address an overarching research question, i.e. how the right of education of persons with disabilities can be best protected and promoted to fulfil the obligations laid down in Article 24 UNCRPD. This dissertation in consonance with the UNCRPD, adopts a broad conception of disability as informed by the social model of disability.