The presumption “Mater semper certa est”, that is known from Roman law, indicates that the mother is always certain as she was traditionally seen as the progenitor and the one who had given birth. However, traditional view on motherhood is lately changing due to new procreation techniques that made the content of motherhood depended on contractual arrangements and opened the possibility to differentiate the progenitor from the person who has given birth. The surrogacy motherhood is considered as one of the new procreation techniques that made possible for single persons and couples with or without fertility problems to become parents. However, surrogacy motherhood made the notion of the mother interchangeable and depended on various arrangements between adults. It all represents a serious threat to various children’s rights including their right to know their origin and to be cared for by parents. Many Member States of the European Union (EU) realized the dangers of surrogacy arrangements and, in pursuit of the best interest of the child, enacted legislation to ban or restrict surrogacy. However, cross-border surrogacy arrangements, that are nowadays popular and untraceable, made possible to bypass those domestic legislations. The absence of any formal consensus within the EU on how to address the problem of cross-border surrogacy represents a serious threat to the protection of children’s rights.
从罗马法中可知的“Mater semper certa est”的假设表明，母亲总是确定的，因为她在传统上被视为祖先和生育的人。然而，由于新的生育技术使母性的内容取决于契约安排，并开辟了将祖先与生育者区分开来的可能性，传统的母性观最近正在发生变化。代孕母亲被认为是一种新的生殖技术，使有或没有生育问题的单身人士和夫妇成为父母成为可能。然而，代孕母亲使母亲的概念可以互换，并取决于成年人之间的各种安排。这一切都是对各种儿童权利的严重威胁，包括他们知道自己的出身和得到父母照顾的权利。欧洲联盟(欧盟)的许多成员国认识到代孕安排的危险，为了追求儿童的最大利益，颁布了禁止或限制代孕的立法。然而，如今流行且无法追踪的跨境代孕安排使得绕过这些国内立法成为可能。在如何解决跨境代孕问题上，欧盟内部缺乏任何正式共识，这对保护儿童权利构成了严重威胁。
{"title":"PRESUMPTION OF MOTHERHOOD ON CROSSROAD OF SURROGACY ARRANGEMENTS IN EU","authors":"A. Margaletić, Barbara Preložnjak, I. Šimović","doi":"10.25234/ECLIC/9031","DOIUrl":"https://doi.org/10.25234/ECLIC/9031","url":null,"abstract":"The presumption “Mater semper certa est”, that is known from Roman law, indicates that the mother is always certain as she was traditionally seen as the progenitor and the one who had given birth. However, traditional view on motherhood is lately changing due to new procreation techniques that made the content of motherhood depended on contractual arrangements and opened the possibility to differentiate the progenitor from the person who has given birth. The surrogacy motherhood is considered as one of the new procreation techniques that made possible for single persons and couples with or without fertility problems to become parents. However, surrogacy motherhood made the notion of the mother interchangeable and depended on various arrangements between adults. It all represents a serious threat to various children’s rights including their right to know their origin and to be cared for by parents. Many Member States of the European Union (EU) realized the dangers of surrogacy arrangements and, in pursuit of the best interest of the child, enacted legislation to ban or restrict surrogacy. However, cross-border surrogacy arrangements, that are nowadays popular and untraceable, made possible to bypass those domestic legislations. The absence of any formal consensus within the EU on how to address the problem of cross-border surrogacy represents a serious threat to the protection of children’s rights.","PeriodicalId":246552,"journal":{"name":"EU AND MEMBER STATES – LEGAL AND ECONOMIC ISSUES","volume":"132 16","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132800680","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The European humanitarian and migration crisis created by the mass influx of migrants into the European Union that began in 2015 opened up many issues and areas that have not been systematically discussed. The area of irregular entry is certainly one of the most important, precisely because of the legal gaps in the application of the Dublin III Regulation. Recently, the question of irregular entry came before the Court of Justice of the European Union (CJEU) in two cases brought by Slovenia and Austria, whose outcomes have significant consequences for the Republic of Croatia. In the Court’s opinion, admission of third-country nationals in the Member State, with the intention of transferring to another Member State to seek international protection, is considered irregular entry, even in emergencies such as the mass influx of migrants to the state border. Member States receiving a third-country national on their territory shall ensure that all conditions for legitimate entry are met. Without legal preconditions for entry, legitimate residence on the territory of the country of first entry or legitimate transit to another Member State is not possible. The passage of third-country nationals from the Republic of Croatia for humanitarian reasons has resulted in irregular migration because requirements for entry into the state territory were not met. Within these judgments, the CJEU has discussed issues relating to the presumption of lawful entry into the territory of the European Union and the issue of the treatment of a Member State in which a third-country national has first entered. The importance of the CJEU decision is in the fact that it clarifies that the mechanism established by the Dublin III Regulation must inevitably apply, even in exceptional circumstances. The established form of action will certainly be of great importance in the further treatment of Member States because the inflow of migrants to the external borders of the European Union is still expected. This paper will analyse the legal framework regulating the issue of irregular entry and the protection of external borders of the European Union and the main arguments of the CJEU, as well as the opinion of the Advocate General, which was opposing the opinion of the CJEU. The impact of such a Court decision will be critically analysed in this paper as well.
{"title":"ILLEGAL MIGRATION THROUGH THE PRACTICE OF THE COURT OF JUSTICE OF THE EUROPEAN UNION AND THE CONSEQUENCES FOR THE REPUBLIC OF CROATIA","authors":"M. Čepo","doi":"10.25234/ECLIC/8999","DOIUrl":"https://doi.org/10.25234/ECLIC/8999","url":null,"abstract":"The European humanitarian and migration crisis created by the mass influx of migrants into the European Union that began in 2015 opened up many issues and areas that have not been systematically discussed. The area of irregular entry is certainly one of the most important, precisely because of the legal gaps in the application of the Dublin III Regulation. Recently, the question of irregular entry came before the Court of Justice of the European Union (CJEU) in two cases brought by Slovenia and Austria, whose outcomes have significant consequences for the Republic of Croatia. In the Court’s opinion, admission of third-country nationals in the Member State, with the intention of transferring to another Member State to seek international protection, is considered irregular entry, even in emergencies such as the mass influx of migrants to the state border. Member States receiving a third-country national on their territory shall ensure that all conditions for legitimate entry are met. Without legal preconditions for entry, legitimate residence on the territory of the country of first entry or legitimate transit to another Member State is not possible. The passage of third-country nationals from the Republic of Croatia for humanitarian reasons has resulted in irregular migration because requirements for entry into the state territory were not met. Within these judgments, the CJEU has discussed issues relating to the presumption of lawful entry into the territory of the European Union and the issue of the treatment of a Member State in which a third-country national has first entered. The importance of the CJEU decision is in the fact that it clarifies that the mechanism established by the Dublin III Regulation must inevitably apply, even in exceptional circumstances. The established form of action will certainly be of great importance in the further treatment of Member States because the inflow of migrants to the external borders of the European Union is still expected. This paper will analyse the legal framework regulating the issue of irregular entry and the protection of external borders of the European Union and the main arguments of the CJEU, as well as the opinion of the Advocate General, which was opposing the opinion of the CJEU. The impact of such a Court decision will be critically analysed in this paper as well.","PeriodicalId":246552,"journal":{"name":"EU AND MEMBER STATES – LEGAL AND ECONOMIC ISSUES","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131996215","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
At the request of the European Parliament’s Committee on Legal Affairs (JURI Committee), the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs issued a study titled “Building Competence in Commercial Law in the Member States”1, aimed at shedding light on cross-border commercial contracts and their operation in theory and practice, mainly within European Union Member States. Most of the measures analysed and proposed for building competence in commercial law, despite the title of the study not being explicit in the matter, are cross-border measures, and thus of private international law. The last proposal of the study is the improvement of legal education in the field of private international law. The present paper aims to assess the level of the Romanian legal system and its compatibility with the measures proposed in the above-mentioned study, while focusing, throughout, on the role of legal education. Is improving private international legal education the final (least important) measure to be taken? Can legal education in the member states be improved on a E.U. level, and if so, how? These are just some of the issues that the present paper looks to tackle.
{"title":"PRIVATE INTERNATIONAL LEGAL EDUCATION AND ITS RELEVANCE IN A EUROPEAN CONTEXT","authors":"S. Popovici","doi":"10.25234/ECLIC/9007","DOIUrl":"https://doi.org/10.25234/ECLIC/9007","url":null,"abstract":"At the request of the European Parliament’s Committee on Legal Affairs (JURI Committee), the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs issued a study titled “Building Competence in Commercial Law in the Member States”1, aimed at shedding light on cross-border commercial contracts and their operation in theory and practice, mainly within European Union Member States. Most of the measures analysed and proposed for building competence in commercial law, despite the title of the study not being explicit in the matter, are cross-border measures, and thus of private international law. The last proposal of the study is the improvement of legal education in the field of private international law. The present paper aims to assess the level of the Romanian legal system and its compatibility with the measures proposed in the above-mentioned study, while focusing, throughout, on the role of legal education. Is improving private international legal education the final (least important) measure to be taken? Can legal education in the member states be improved on a E.U. level, and if so, how? These are just some of the issues that the present paper looks to tackle.","PeriodicalId":246552,"journal":{"name":"EU AND MEMBER STATES – LEGAL AND ECONOMIC ISSUES","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127223551","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Authors are researching development and analyzing first effects of cross-border investigative measures, following enactment of the European Investigation Order (EIO). The EIO extends number of investigative actions which can be requested from other countries, and simplifies the process of evidence transfer. The paper is discussing problems during development of the EIO, its’ reception in Croatian system and a case study of the first orders received in Croatian police in 2018 is performed. This instrument is not imposing common legislative standards, but introducing the principle of mutual recognition which is derived from other law fields. The main risk is that diversity of some investigative measures could lead to the inadmissibility of evidence in subsequent criminal procedure. Results are showing that there hadn’t been obstacles in police practice so far. Main issues on principle of mutual recognition, double criminality or admissibility of evidence were not manifested in case study, but research indicates areas of potential problems.
{"title":"EVALUATION OF THE RESULTS OF THE EUROPEAN INVESTIGATION ORDER","authors":"Željko Karas, Silvija Pejaković Đipić","doi":"10.25234/ECLIC/9014","DOIUrl":"https://doi.org/10.25234/ECLIC/9014","url":null,"abstract":"Authors are researching development and analyzing first effects of cross-border investigative measures, following enactment of the European Investigation Order (EIO). The EIO extends number of investigative actions which can be requested from other countries, and simplifies the process of evidence transfer. The paper is discussing problems during development of the EIO, its’ reception in Croatian system and a case study of the first orders received in Croatian police in 2018 is performed. This instrument is not imposing common legislative standards, but introducing the principle of mutual recognition which is derived from other law fields. The main risk is that diversity of some investigative measures could lead to the inadmissibility of evidence in subsequent criminal procedure. Results are showing that there hadn’t been obstacles in police practice so far. Main issues on principle of mutual recognition, double criminality or admissibility of evidence were not manifested in case study, but research indicates areas of potential problems.","PeriodicalId":246552,"journal":{"name":"EU AND MEMBER STATES – LEGAL AND ECONOMIC ISSUES","volume":"241 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122470864","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The diplomatic session of the Hague Conference on Private International Law (Hague Conference) regarding the “Judgments Project” will be held between 18 June – 02 July 2019 in the Hague when it is expected that the long awaited Hague Convention on Recognition and Enforcement of Foreign Judgments (new 2019 Hague Convention) will be adopted. This Convention comes as a result of 27 years of work that has been done in the course of this project of the Hague Conference and it can be said that is one of the most awaited developments in Private International Law. The success of the convention cannot be predicted at this point because large number of factors impact the outcome of the convention. However benefits from having an international agreement dealing with cross border recognition and enforcement of foreign judgments is self-evident. More than ever there is a need of a single instrument that will contain unified conditions for recognition and enforcement and ease the cross border circulation of judgments. Only a brief look at the New York Convention on recognition and enforcement of foreign arbitral awards (New York Convention) provides for glimpse of the benefits from having such instrument. So what will this mean for the countries of South Eastern Europe? What will be the interest of the countries to be part of this Convention? How much are the national legal systems compatible with the rules provided in the Hague convention? This article will try to answer these questions, together with the implications that the Hague Convention will have on the South Eastern Europe region. Moreover this is of huge importance since most of the countries of South Eastern Europe region are part of the European Union or are candidate countries. So has the time come for a structural change of the national recognition and enforcement systems and how far reaching will be the consequences on the national legal systems?
{"title":"IMPLICATIONS OF THE NEW 2019 HAGUE CONVENTION ON RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS ON THE NATIONAL LEGAL SYSTEMS OF COUNTRIES IN SOUTH EASTERN EUROPE","authors":"I. Rumenov","doi":"10.25234/ECLIC/9008","DOIUrl":"https://doi.org/10.25234/ECLIC/9008","url":null,"abstract":"The diplomatic session of the Hague Conference on Private International Law (Hague Conference) regarding the “Judgments Project” will be held between 18 June – 02 July 2019 in the Hague when it is expected that the long awaited Hague Convention on Recognition and Enforcement of Foreign Judgments (new 2019 Hague Convention) will be adopted. This Convention comes as a result of 27 years of work that has been done in the course of this project of the Hague Conference and it can be said that is one of the most awaited developments in Private International Law. The success of the convention cannot be predicted at this point because large number of factors impact the outcome of the convention. However benefits from having an international agreement dealing with cross border recognition and enforcement of foreign judgments is self-evident. More than ever there is a need of a single instrument that will contain unified conditions for recognition and enforcement and ease the cross border circulation of judgments. Only a brief look at the New York Convention on recognition and enforcement of foreign arbitral awards (New York Convention) provides for glimpse of the benefits from having such instrument. So what will this mean for the countries of South Eastern Europe? What will be the interest of the countries to be part of this Convention? How much are the national legal systems compatible with the rules provided in the Hague convention? This article will try to answer these questions, together with the implications that the Hague Convention will have on the South Eastern Europe region. Moreover this is of huge importance since most of the countries of South Eastern Europe region are part of the European Union or are candidate countries. So has the time come for a structural change of the national recognition and enforcement systems and how far reaching will be the consequences on the national legal systems?","PeriodicalId":246552,"journal":{"name":"EU AND MEMBER STATES – LEGAL AND ECONOMIC ISSUES","volume":"110 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129861976","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Collaborative economy creates new business models in different sectors of the economy and produces new impulses for the development and innovations in the traditional areas. However, to answer the new questions arising from this segment of the economy, we must consider the existing legal framework regarding the central subjects of the collaborative economy - online platforms. In this paper we examine one legal aspect of particular relevance in this regard, specifically the liability of online platforms for content that they host. In particular, we consider the existing liability regime of these platforms, new proposals approved by the European Parliament and we conclude this paper with the critical examination of the liability regime in relation to the push for the adoption of voluntary proactive measures on the EU level.
{"title":"LIABILITY REGIME OF ONLINE PLATFORMS NEW APPROACHES AND PERSPECTIVES","authors":"Laura Rózenfeldová, Pavol Sokol","doi":"10.25234/ECLIC/9034","DOIUrl":"https://doi.org/10.25234/ECLIC/9034","url":null,"abstract":"Collaborative economy creates new business models in different sectors of the economy and produces new impulses for the development and innovations in the traditional areas. However, to answer the new questions arising from this segment of the economy, we must consider the existing legal framework regarding the central subjects of the collaborative economy - online platforms. In this paper we examine one legal aspect of particular relevance in this regard, specifically the liability of online platforms for content that they host. In particular, we consider the existing liability regime of these platforms, new proposals approved by the European Parliament and we conclude this paper with the critical examination of the liability regime in relation to the push for the adoption of voluntary proactive measures on the EU level.","PeriodicalId":246552,"journal":{"name":"EU AND MEMBER STATES – LEGAL AND ECONOMIC ISSUES","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129094161","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Taking into account the continuous changes regarding the definition of attempt, a “magic formula” for distinguishing preparatory actions from attempts has not been found yet. Some suggest looking at the matter from objective observer’s standpoint, considering the circumstances the third party must be aware of, as well as the existing causal line. The objective observer fiction is the main point in the observation mode of attempt. This thesis can be applied by analysing two stages to “filter” the actions that represent attempt. In the first stage, it is necessary to decide whether and which prohibited activities may possibly be the result of a criminal offence attainment (in abstracto). In the second stage, it is necessary to ascertain whether these activities really are true, and if they are, whether or not they have reached the beginning of attempt by the CC, taking into account the perpetrator’s plan (in concreto). If a criminal offence cannot be completed, either due to natural or legal circumstances, we are referring to impossible attempt. With impossible attempt, a perpetrator needs to believe that he or she can complete a criminal offence. There are different types of impossibility, like attempt on impossible object, attempt with impossible means and double impossibility. This paper also analyses gross lack of understanding, imaginary offence and supernatural attempt as important institutes for impossible attempt. Punishment of these types of attempts is analysed in European Union instrument in the field of criminal law and related texts.
{"title":"PUNISHMENT OF ATTEMPT IN EU “CRIMINAL” INSTRUMENTS","authors":"I. Vukušič","doi":"10.25234/ECLIC/9020","DOIUrl":"https://doi.org/10.25234/ECLIC/9020","url":null,"abstract":"Taking into account the continuous changes regarding the definition of attempt, a “magic formula” for distinguishing preparatory actions from attempts has not been found yet. Some suggest looking at the matter from objective observer’s standpoint, considering the circumstances the third party must be aware of, as well as the existing causal line. The objective observer fiction is the main point in the observation mode of attempt. This thesis can be applied by analysing two stages to “filter” the actions that represent attempt. In the first stage, it is necessary to decide whether and which prohibited activities may possibly be the result of a criminal offence attainment (in abstracto). In the second stage, it is necessary to ascertain whether these activities really are true, and if they are, whether or not they have reached the beginning of attempt by the CC, taking into account the perpetrator’s plan (in concreto). If a criminal offence cannot be completed, either due to natural or legal circumstances, we are referring to impossible attempt. With impossible attempt, a perpetrator needs to believe that he or she can complete a criminal offence. There are different types of impossibility, like attempt on impossible object, attempt with impossible means and double impossibility. This paper also analyses gross lack of understanding, imaginary offence and supernatural attempt as important institutes for impossible attempt. Punishment of these types of attempts is analysed in European Union instrument in the field of criminal law and related texts.","PeriodicalId":246552,"journal":{"name":"EU AND MEMBER STATES – LEGAL AND ECONOMIC ISSUES","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127812597","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The freedom of services by correspondence should be one of the most important market freedoms in the EU legislative politics and the CJEU jurisprudence. The announcement of the establishment of a fifth market freedom on data flow is directly addressed by the freedom of services by correspondence. The growing importance of the freedom of services in general is in line with the rise of the EU service sector as the main contributor to growth and employment in the EU, accounting for about two thirds of both EU employment and value added. In addition, since 2015 the Digital Single Market is one of European Commission’s political priority that aims at providing free access to online services. Online services are in most part services by correspondence, where neither provider nor recipient travels cross border. The truth is that the freedom of services by correspondence is barely ever mentioned explicitly neither by EU legislator nor by the CJEU. The EU legislator has rather chosen a sectoral approach to the Digital Single Market, fragmenting the fifth market freedom to several narrow pieces of legislation. The paper deals with the question why the freedom of services by correspondence has not acquired the same position as the freedom of goods. The analysis will focus on answering this question on the grounds of the theory of convergence of market freedoms and its limits.
{"title":"FREEDOM OF SERVICES BY CORRESPONDENCE AS THE “FIFTH FREEDOM” FOR THE DIGITAL SINGLE MARKET – LIMITATIONS BY THE TFEU","authors":"Z. Meskic","doi":"10.25234/ECLIC/9028","DOIUrl":"https://doi.org/10.25234/ECLIC/9028","url":null,"abstract":"The freedom of services by correspondence should be one of the most important market freedoms in the EU legislative politics and the CJEU jurisprudence. The announcement of the establishment of a fifth market freedom on data flow is directly addressed by the freedom of services by correspondence. The growing importance of the freedom of services in general is in line with the rise of the EU service sector as the main contributor to growth and employment in the EU, accounting for about two thirds of both EU employment and value added. In addition, since 2015 the Digital Single Market is one of European Commission’s political priority that aims at providing free access to online services. Online services are in most part services by correspondence, where neither provider nor recipient travels cross border. The truth is that the freedom of services by correspondence is barely ever mentioned explicitly neither by EU legislator nor by the CJEU. The EU legislator has rather chosen a sectoral approach to the Digital Single Market, fragmenting the fifth market freedom to several narrow pieces of legislation. The paper deals with the question why the freedom of services by correspondence has not acquired the same position as the freedom of goods. The analysis will focus on answering this question on the grounds of the theory of convergence of market freedoms and its limits.","PeriodicalId":246552,"journal":{"name":"EU AND MEMBER STATES – LEGAL AND ECONOMIC ISSUES","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126590809","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The field of regulation of construction at the European Union level is complex and it encompasses standardisation at several levels by various stakeholders in the system. Namely, construction regulatory systems are the work of various European Union institutions and European standardisation organisations (European Committee for Standardization and European Committee for Electrotechnical Standardization). Precisely this fact may lead to specific misalignments of the system itself thereby jeopardizing legal certainty as well as physical safety of citizens. Therefore, this paper aims to present regulations in the field of construction at the European Union level, placing an emphasis on individual standards of the above standardisation organisations, and discuss problems attached to regulation at multiple levels. The aforementioned instances and European standardisation organisations regulate construction products, works, professional qualifications of stakeholders in the system, occupational safety and health, environmental impact etc. and therefore the paper provides a review of sources of law which exist at the European Union level in the ambit of construction – regulations and decisions of appropriate European Union bodies – and significance of Eurocodes as standards. In terms of contents, these documents are related to regulation of the field of a technical nature and technical rules. Therefore, awareness and application of these sources of law is important because the general design itself and its components, as parts of documentation submitted in special administrative proceedings to obtain a construction licence, for instance in the Republic of Croatia, must be aligned with the aforementioned sources of law. Such alignment contributes to the principle of lawfulness and ultimately to legal certainty in the procedure to obtain a construction licence. This paper employs, with the purpose of a scientific approach to this topic, analyses and syntheses as well as inductive and deductive methods to research the theoretical part of the paper. A part of results obtained through an empirical research conducted for the purpose of development of a doctoral thesis is also analysed in this paper and descriptive statistical methods are used within the framework of this analysis. The analysis of the results reviews the degree of use of the European Union sources of law in procedures to obtain construction and operating licences in the Republic of Croatia. The discussion employs logical and teleological methods of interpretation. Recommendations for improvements to the system considering a part of the analysed empirical research results are provided accordingly within the concluding considerations.
{"title":"REGULATING THE AREA OF CONSTRUCTION AT EUROPEAN UNION LEVEL","authors":"Marijeta Vitez Pandžić, B. Ljubanović","doi":"10.25234/ECLIC/9001","DOIUrl":"https://doi.org/10.25234/ECLIC/9001","url":null,"abstract":"The field of regulation of construction at the European Union level is complex and it encompasses standardisation at several levels by various stakeholders in the system. Namely, construction regulatory systems are the work of various European Union institutions and European standardisation organisations (European Committee for Standardization and European Committee for Electrotechnical Standardization). Precisely this fact may lead to specific misalignments of the system itself thereby jeopardizing legal certainty as well as physical safety of citizens. Therefore, this paper aims to present regulations in the field of construction at the European Union level, placing an emphasis on individual standards of the above standardisation organisations, and discuss problems attached to regulation at multiple levels. The aforementioned instances and European standardisation organisations regulate construction products, works, professional qualifications of stakeholders in the system, occupational safety and health, environmental impact etc. and therefore the paper provides a review of sources of law which exist at the European Union level in the ambit of construction – regulations and decisions of appropriate European Union bodies – and significance of Eurocodes as standards. In terms of contents, these documents are related to regulation of the field of a technical nature and technical rules. Therefore, awareness and application of these sources of law is important because the general design itself and its components, as parts of documentation submitted in special administrative proceedings to obtain a construction licence, for instance in the Republic of Croatia, must be aligned with the aforementioned sources of law. Such alignment contributes to the principle of lawfulness and ultimately to legal certainty in the procedure to obtain a construction licence. This paper employs, with the purpose of a scientific approach to this topic, analyses and syntheses as well as inductive and deductive methods to research the theoretical part of the paper. A part of results obtained through an empirical research conducted for the purpose of development of a doctoral thesis is also analysed in this paper and descriptive statistical methods are used within the framework of this analysis. The analysis of the results reviews the degree of use of the European Union sources of law in procedures to obtain construction and operating licences in the Republic of Croatia. The discussion employs logical and teleological methods of interpretation. Recommendations for improvements to the system considering a part of the analysed empirical research results are provided accordingly within the concluding considerations.","PeriodicalId":246552,"journal":{"name":"EU AND MEMBER STATES – LEGAL AND ECONOMIC ISSUES","volume":"46 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133051684","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Water is a resource with the capacity to generate power in many forms whether be it access to drinking water or use as hydropower or steam power to produce electricity. Renewable recourses open issues where environmental protection meets different requirements: to protect the quality and national potential of water, but to develop the use of emission-free hydropower; to strengthen constitutional and legal guaranties to access to water but to provide adequate type of rights to use hydropower. The right to use water for hydropower must be weighed with its impact on the quality and quantity of water courses. In comparative law we may find different approaches that should guarantee the right to water. The concept that the right to water might be protected only if water is recognized as a legal person (exercised in recent cases the Amazon River, Ganges and Yamuna rivers, Whanganui river) will be challenged with EU approach where measurement on different interests of environmental protection is the base for water protection. The article outline elements that provide minimum guarantees for including the both rights in decision-making process singled out in practice of jurisprudence of the Court of Justice of the European Union. The article points out the most important case under the Serbian Administrative Court on small hydropower licensing in 2018. The aim of the article is to examine if the conclusions from EU may be find in Serbian law and to suggest legal changes that could lead to full transposition of environmental acquis.
{"title":"THE RIGHT TO WATER AND THE RIGHT TO USE HYDROPOWER: THE CASE OF SERBIA AND LESSONS LEARNED FROM THE EU","authors":"M. Ivanović","doi":"10.25234/ECLIC/9000","DOIUrl":"https://doi.org/10.25234/ECLIC/9000","url":null,"abstract":"Water is a resource with the capacity to generate power in many forms whether be it access to drinking water or use as hydropower or steam power to produce electricity. Renewable recourses open issues where environmental protection meets different requirements: to protect the quality and national potential of water, but to develop the use of emission-free hydropower; to strengthen constitutional and legal guaranties to access to water but to provide adequate type of rights to use hydropower. The right to use water for hydropower must be weighed with its impact on the quality and quantity of water courses. In comparative law we may find different approaches that should guarantee the right to water. The concept that the right to water might be protected only if water is recognized as a legal person (exercised in recent cases the Amazon River, Ganges and Yamuna rivers, Whanganui river) will be challenged with EU approach where measurement on different interests of environmental protection is the base for water protection. The article outline elements that provide minimum guarantees for including the both rights in decision-making process singled out in practice of jurisprudence of the Court of Justice of the European Union. The article points out the most important case under the Serbian Administrative Court on small hydropower licensing in 2018. The aim of the article is to examine if the conclusions from EU may be find in Serbian law and to suggest legal changes that could lead to full transposition of environmental acquis.","PeriodicalId":246552,"journal":{"name":"EU AND MEMBER STATES – LEGAL AND ECONOMIC ISSUES","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123746992","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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