Pub Date : 2022-05-13DOI: 10.1163/22134514-bja10039
Olha Shpakovych, Y. Kostyuchenko
The impact of international law on national legal systems varies considerably according to the forms not only of each national legal system, but also of specific regions. The highest level of influence has been traced on the European continent, especially the European Union (EU). The author investigates the acts of the European Union institutions and concludes that they can serve as a model for national legal regulation. In the relations of the European Union with third countries, there is a tendency to more actively promote the ideas of European integration and with different regions at different stages of integration. The aim of the paper is to analyze the legal capacity of the EU with third countries and its implementation in association agreements with third countries, which determine the first step towards “Europeanization”. Thus, the most common form of EU cooperation with third countries is association agreements. The authors carefully examine the features of associative agreements in the practice of the European Union’s external relations and pay great attention to the association as a special partnership of EU Member States with a third country.
{"title":"Legal Bases of the Association in the Relations of the European Union with Third Countries as a Step Towards ‘Europeanisation’","authors":"Olha Shpakovych, Y. Kostyuchenko","doi":"10.1163/22134514-bja10039","DOIUrl":"https://doi.org/10.1163/22134514-bja10039","url":null,"abstract":"\u0000The impact of international law on national legal systems varies considerably according to the forms not only of each national legal system, but also of specific regions. The highest level of influence has been traced on the European continent, especially the European Union (EU). The author investigates the acts of the European Union institutions and concludes that they can serve as a model for national legal regulation. In the relations of the European Union with third countries, there is a tendency to more actively promote the ideas of European integration and with different regions at different stages of integration. The aim of the paper is to analyze the legal capacity of the EU with third countries and its implementation in association agreements with third countries, which determine the first step towards “Europeanization”. Thus, the most common form of EU cooperation with third countries is association agreements. The authors carefully examine the features of associative agreements in the practice of the European Union’s external relations and pay great attention to the association as a special partnership of EU Member States with a third country.","PeriodicalId":37233,"journal":{"name":"European Journal of Comparative Law and Governance","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2022-05-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47864300","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}
Pub Date : 2022-04-26DOI: 10.1163/22134514-bja10034
Benedikt Schmitz
Consumer protection directly influences the design of choice of law rules in the EU. Article 6 Rome I Regulation stipulates that the law of the consumer’s habitual place of residence applies, unless another law has been chosen. This choice may not deprive the consumer of certain rules of her “home law”, however. This likely requires a comparison of the involved laws, putting the foreseeability of the parties’ legal rights in jeopardy. Such comparison also raises issues for the public, as it decreases administrability (measured by the amount of work necessary to apply a conflict rule) and hence increases costs for the courts. Through comparative analysis between Article 6 Rome I and the latter’s different interpretations, this article investigates how consumer protection affects the administrability and foreseeability of choice of law rules. It is shown how simple changes to Article 6 Rome I could increase administrability and foreseeability for all involved stakeholders.
{"title":"Rethinking the Public Interest in Consumer Protection","authors":"Benedikt Schmitz","doi":"10.1163/22134514-bja10034","DOIUrl":"https://doi.org/10.1163/22134514-bja10034","url":null,"abstract":"\u0000Consumer protection directly influences the design of choice of law rules in the EU. Article 6 Rome I Regulation stipulates that the law of the consumer’s habitual place of residence applies, unless another law has been chosen. This choice may not deprive the consumer of certain rules of her “home law”, however. This likely requires a comparison of the involved laws, putting the foreseeability of the parties’ legal rights in jeopardy. Such comparison also raises issues for the public, as it decreases administrability (measured by the amount of work necessary to apply a conflict rule) and hence increases costs for the courts. Through comparative analysis between Article 6 Rome I and the latter’s different interpretations, this article investigates how consumer protection affects the administrability and foreseeability of choice of law rules. It is shown how simple changes to Article 6 Rome I could increase administrability and foreseeability for all involved stakeholders.","PeriodicalId":37233,"journal":{"name":"European Journal of Comparative Law and Governance","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2022-04-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44946374","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}
Pub Date : 2022-04-22DOI: 10.1163/22134514-bja10033
A. Kapała
Consumers are increasingly interested in buying locally produced food but often cannot recognise it on the market. As the European Union has not introduced a local food labelling scheme, the study examines how selected countries defined and labelled local food and whether the implemented brands are suitable for fulfilling their functions of identifying, promoting and guaranteeing local products, avoiding misleading consumers. The question of to what extent geographical indications can be used as a tool to identify locally produced food is also considered. The analysis shows that there is a variety of local or regional, public and private brands that are the result of bottom-up initiatives and local self-governance, but their proliferation, differences in legal nature and the meaning of the messages conveyed adversely affect their function. Therefore, a harmonised labelling should be introduced at the UE level, otherwise at a national level, as a ready-made tool for promoting and distinguishing local products on the market, ensuring a uniform understanding of the label for all participants in the food chain, preventing fraud and unfair competition, and giving consumers confidence in its message.
{"title":"About the Need for a Harmonised Labelling for Locally Produced Food","authors":"A. Kapała","doi":"10.1163/22134514-bja10033","DOIUrl":"https://doi.org/10.1163/22134514-bja10033","url":null,"abstract":"\u0000Consumers are increasingly interested in buying locally produced food but often cannot recognise it on the market. As the European Union has not introduced a local food labelling scheme, the study examines how selected countries defined and labelled local food and whether the implemented brands are suitable for fulfilling their functions of identifying, promoting and guaranteeing local products, avoiding misleading consumers. The question of to what extent geographical indications can be used as a tool to identify locally produced food is also considered. The analysis shows that there is a variety of local or regional, public and private brands that are the result of bottom-up initiatives and local self-governance, but their proliferation, differences in legal nature and the meaning of the messages conveyed adversely affect their function. Therefore, a harmonised labelling should be introduced at the UE level, otherwise at a national level, as a ready-made tool for promoting and distinguishing local products on the market, ensuring a uniform understanding of the label for all participants in the food chain, preventing fraud and unfair competition, and giving consumers confidence in its message.","PeriodicalId":37233,"journal":{"name":"European Journal of Comparative Law and Governance","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2022-04-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41830810","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}
Pub Date : 2022-04-19DOI: 10.1163/22134514-bja10032
I. Visser, Jamie A. Breedeveld, Yassine Hasnaoui
The international credit crisis of 2008–2013 changed the legal landscape of mortgage enforcement proceedings in Europe dramatically. The growing influence of the international right to housing, the increasing attention towards homeowner protection, the renewed policies towards mortgage financing and the changes in national legislation, make the study of these proceedings relevant and interesting. Moreover, the phase between default of the mortgage debtor and the actual start of these proceedings is becoming more and more relevant because of these developments. Nonetheless, this phase is quite underresearched, especially from a comparative legal research point of view. Our comparative study therefore takes a different approach than classical comparative studies on mortgage enforcement procedures. With this project, we investigate the approaches of mortgage lenders after the mortgage debtor is in default with his mortgage obligations. These approaches can be based on legislation, self-regulation or agreements with the mortgagor. The aim of this project is to discover how these regulations function in practice. This paper provides an introduction to this emerging legal comparative research project on, what we call, default resolution approaches in Europe. We explain the main interests involved in default resolution approaches and the dimensions that should be taken into account in our study. We then sketch our comparative framework for further research.
{"title":"Different Models of Forbearance and Mortgage Enforcement Proceedings","authors":"I. Visser, Jamie A. Breedeveld, Yassine Hasnaoui","doi":"10.1163/22134514-bja10032","DOIUrl":"https://doi.org/10.1163/22134514-bja10032","url":null,"abstract":"\u0000 The international credit crisis of 2008–2013 changed the legal landscape of mortgage enforcement proceedings in Europe dramatically. The growing influence of the international right to housing, the increasing attention towards homeowner protection, the renewed policies towards mortgage financing and the changes in national legislation, make the study of these proceedings relevant and interesting. Moreover, the phase between default of the mortgage debtor and the actual start of these proceedings is becoming more and more relevant because of these developments. Nonetheless, this phase is quite underresearched, especially from a comparative legal research point of view. Our comparative study therefore takes a different approach than classical comparative studies on mortgage enforcement procedures. With this project, we investigate the approaches of mortgage lenders after the mortgage debtor is in default with his mortgage obligations. These approaches can be based on legislation, self-regulation or agreements with the mortgagor. The aim of this project is to discover how these regulations function in practice. This paper provides an introduction to this emerging legal comparative research project on, what we call, default resolution approaches in Europe. We explain the main interests involved in default resolution approaches and the dimensions that should be taken into account in our study. We then sketch our comparative framework for further research.","PeriodicalId":37233,"journal":{"name":"European Journal of Comparative Law and Governance","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2022-04-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49653158","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}
Pub Date : 2022-04-15DOI: 10.1163/22134514-bja10035
A. Karapetian
Jurisdictions around the world are adjusting their insolvency laws with the aim to offer debtors in financial difficulties instruments that enable them to bring the company to a healthy state as soon as the problems arise. The rationale is that viable companies should have access to procedures that permit them to continue business, in whole or in part, by changing their capital structure as well as carrying out operational changes. Directors’ duties to creditors form a regular part of the laws concerning insolvency and therefore, a change in the insolvency laws will, arguably, have consequences for directors’ duties. In this paper, the impact of new preventive restructuring tools in the Netherlands and the UK on directors’ duties is discussed.
{"title":"The Impact of Emerging Preventive Restructuring Mechanisms on Directors’ Duties to Creditors in the Event of (Pre-)Insolvency in the UK and the Netherlands","authors":"A. Karapetian","doi":"10.1163/22134514-bja10035","DOIUrl":"https://doi.org/10.1163/22134514-bja10035","url":null,"abstract":"\u0000 Jurisdictions around the world are adjusting their insolvency laws with the aim to offer debtors in financial difficulties instruments that enable them to bring the company to a healthy state as soon as the problems arise. The rationale is that viable companies should have access to procedures that permit them to continue business, in whole or in part, by changing their capital structure as well as carrying out operational changes. Directors’ duties to creditors form a regular part of the laws concerning insolvency and therefore, a change in the insolvency laws will, arguably, have consequences for directors’ duties. In this paper, the impact of new preventive restructuring tools in the Netherlands and the UK on directors’ duties is discussed.","PeriodicalId":37233,"journal":{"name":"European Journal of Comparative Law and Governance","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2022-04-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48396079","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}
Pub Date : 2022-02-21DOI: 10.1163/22134514-bja10027
Sarah Fick, Michel Vols
In the recent decision of fjm v. the United Kingdom, the ECtHR made a decision on the required protection against private evictions that threatens to water-down the protection of housing rights offered by the echr. This article sets out to determine the effect of the fjm judgment on the protection provided by Article 8, especially in matters concerning private evictions. The analysis of the case includes a discussion on whether the decision of the ECtHR was correct, considering both its previous decisions, as well as the sa Constitutional Court’s findings in similar matters. It analyses the recent European and South African case law with the help of a number of concepts developed in legal theory. These concepts concern vertical and horizontal relations between actors involved in housing law cases, as well as direct and indirect effect of human and constitutional rights.
{"title":"Horizontality and Housing Rights","authors":"Sarah Fick, Michel Vols","doi":"10.1163/22134514-bja10027","DOIUrl":"https://doi.org/10.1163/22134514-bja10027","url":null,"abstract":"\u0000 In the recent decision of fjm v. the United Kingdom, the ECtHR made a decision on the required protection against private evictions that threatens to water-down the protection of housing rights offered by the echr. This article sets out to determine the effect of the fjm judgment on the protection provided by Article 8, especially in matters concerning private evictions. The analysis of the case includes a discussion on whether the decision of the ECtHR was correct, considering both its previous decisions, as well as the sa Constitutional Court’s findings in similar matters. It analyses the recent European and South African case law with the help of a number of concepts developed in legal theory. These concepts concern vertical and horizontal relations between actors involved in housing law cases, as well as direct and indirect effect of human and constitutional rights.","PeriodicalId":37233,"journal":{"name":"European Journal of Comparative Law and Governance","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2022-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48688597","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}
Pub Date : 2022-02-21DOI: 10.1163/22134514-bja10030
Andrea Vigorito
Climate change, pandemics and urban planning are just a few of the societal challenges that an efficient exploit of data could allow the public sector to tackle. In this perspective, business-to-government (B2G) data sharing can benefit the social good and allow for better policy decisions. Nevertheless, the possibility for the public sector to access privately-held data remains mostly unexplored. This contribution aims to explore the possible evolution of B2G sharing models within the future systems of data governance by evaluating rationales to foster government access to privately-held data and by analysing some of the barriers that hinder this kind of exploitation. This essay then seeks to present models of B2G data circulation through which societal benefits and data sharing could be improved; specifically, it focuses on the options of voluntary and mandatory B2G data sharing and outlines concrete experiences of B2G data sharing between private entities and European local administrations.
{"title":"Government Access to Privately-Held Data: Business-to-Government Data Sharing","authors":"Andrea Vigorito","doi":"10.1163/22134514-bja10030","DOIUrl":"https://doi.org/10.1163/22134514-bja10030","url":null,"abstract":"\u0000 Climate change, pandemics and urban planning are just a few of the societal challenges that an efficient exploit of data could allow the public sector to tackle. In this perspective, business-to-government (B2G) data sharing can benefit the social good and allow for better policy decisions. Nevertheless, the possibility for the public sector to access privately-held data remains mostly unexplored. This contribution aims to explore the possible evolution of B2G sharing models within the future systems of data governance by evaluating rationales to foster government access to privately-held data and by analysing some of the barriers that hinder this kind of exploitation. This essay then seeks to present models of B2G data circulation through which societal benefits and data sharing could be improved; specifically, it focuses on the options of voluntary and mandatory B2G data sharing and outlines concrete experiences of B2G data sharing between private entities and European local administrations.","PeriodicalId":37233,"journal":{"name":"European Journal of Comparative Law and Governance","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2022-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45069312","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}
Pub Date : 2022-02-18DOI: 10.1163/22134514-09010002
{"title":"European Journal of Comparative Law and Governance","authors":"","doi":"10.1163/22134514-09010002","DOIUrl":"https://doi.org/10.1163/22134514-09010002","url":null,"abstract":"","PeriodicalId":37233,"journal":{"name":"European Journal of Comparative Law and Governance","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2022-02-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43352598","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}
Pub Date : 2022-01-28DOI: 10.1163/22134514-bja10029
Łukasz Jakubiak
The paper deals with the impact of the Senate of France’s Fifth Republic on the functioning of the premier-presidential version of semi-presidentialism. This phenomenon is comparatively explored with reference to Polish bicameralism. The author argues that the two basic variants of French semi-presidentialism – politically congruent executive branch and cohabitation – may be influenced by the bicameral structure. The lack of internal political cohesion within the bicameral legislative causes the government to activate mechanisms of rationalized parliamentarianism. ‘Manual control’ over relations between the chambers may occur under both versions of semi-presidentialism. Hence, semi-presidentialism in France is even more susceptible to the impact of different political configurations. Thus, both variants may be further diversified. The author maintains that as a result of Polish bicameralism’s fairly high resistance to the influence of the political environment, such a kind of diversification in the government’s role is not an inherent feature of premier-presidentialism.
{"title":"‘Manually Steered’ Bicameralism of France’s Fifth Republic as Compared to Polish Institutional Designs","authors":"Łukasz Jakubiak","doi":"10.1163/22134514-bja10029","DOIUrl":"https://doi.org/10.1163/22134514-bja10029","url":null,"abstract":"\u0000The paper deals with the impact of the Senate of France’s Fifth Republic on the functioning of the premier-presidential version of semi-presidentialism. This phenomenon is comparatively explored with reference to Polish bicameralism. The author argues that the two basic variants of French semi-presidentialism – politically congruent executive branch and cohabitation – may be influenced by the bicameral structure. The lack of internal political cohesion within the bicameral legislative causes the government to activate mechanisms of rationalized parliamentarianism. ‘Manual control’ over relations between the chambers may occur under both versions of semi-presidentialism. Hence, semi-presidentialism in France is even more susceptible to the impact of different political configurations. Thus, both variants may be further diversified. The author maintains that as a result of Polish bicameralism’s fairly high resistance to the influence of the political environment, such a kind of diversification in the government’s role is not an inherent feature of premier-presidentialism.","PeriodicalId":37233,"journal":{"name":"European Journal of Comparative Law and Governance","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2022-01-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43631969","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}
Pub Date : 2022-01-28DOI: 10.1163/22134514-bja10028
Wladimir von Samsonow
This article aims to explore the consequences of covid-19 related laws upon democracy, concentrating on the separation of powers and the system of checks and balances. To analyse the effectiveness of measures, a comparison between England-Wales and Germany is made, in order to compare how two countries with similar demographic and economy, but different constitutional and political systems, have dealt with the epidemic. The main question that is being asked and answered is whether a constitutional crisis has taken place. And finally, the analysis how the judiciary has been the most helpful branch in the separation of powers to uphold a system of checks and balances during the epidemic in both England-Wales and Germany.
{"title":"Executive Powers During the covid-19 Epidemic","authors":"Wladimir von Samsonow","doi":"10.1163/22134514-bja10028","DOIUrl":"https://doi.org/10.1163/22134514-bja10028","url":null,"abstract":"\u0000This article aims to explore the consequences of covid-19 related laws upon democracy, concentrating on the separation of powers and the system of checks and balances. To analyse the effectiveness of measures, a comparison between England-Wales and Germany is made, in order to compare how two countries with similar demographic and economy, but different constitutional and political systems, have dealt with the epidemic.\u0000The main question that is being asked and answered is whether a constitutional crisis has taken place. And finally, the analysis how the judiciary has been the most helpful branch in the separation of powers to uphold a system of checks and balances during the epidemic in both England-Wales and Germany.","PeriodicalId":37233,"journal":{"name":"European Journal of Comparative Law and Governance","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2022-01-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41679633","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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