Pub Date : 2021-12-08DOI: 10.1163/15730352-bja10055
Bartosz Ziemblicki, M. Lewandowski
In recent years, the Court of Justice of the European Union has issued a number of judgments addressing the issue of consumer protection in connection with the use of unfair terms by banks in loan agreements indexed with a foreign currency exchange rate. Most of them have concerned issues of exchange rate risk and exchange rate differences between the purchase and sale rates of a given currency applied by the bank. This article analyzes the recent ruling by the Court of Justice of the European Union in the Dziubak case, which was initiated by referring questions for a preliminary ruling by a Polish court. The article’s purpose is to assess the position taken by the cjeu in this respect and its significance for consumers in Poland. Particular attention was paid to the considerations with regard to the possibility of replacing unfair provisions with general provisions and assessing the consumer’s awareness of the consequences of declaring a contract invalid. The aim is to examine the issues that were dealt with by the Court of Justice of the European Union in the Dziubak case, including – in particular – the answer to the question of whether the issues discussed by the cjeu had already been considered in its previous jurisprudence and whether it presents new, previously unknown legal consequences of the inclusion of unfair contract terms in loan agreements.
{"title":"The Legal Consequences of Unfair Contract Terms in Consumer Loan Agreements Valorized with Foreign Currency","authors":"Bartosz Ziemblicki, M. Lewandowski","doi":"10.1163/15730352-bja10055","DOIUrl":"https://doi.org/10.1163/15730352-bja10055","url":null,"abstract":"\u0000In recent years, the Court of Justice of the European Union has issued a number of judgments addressing the issue of consumer protection in connection with the use of unfair terms by banks in loan agreements indexed with a foreign currency exchange rate. Most of them have concerned issues of exchange rate risk and exchange rate differences between the purchase and sale rates of a given currency applied by the bank.\u0000This article analyzes the recent ruling by the Court of Justice of the European Union in the Dziubak case, which was initiated by referring questions for a preliminary ruling by a Polish court. The article’s purpose is to assess the position taken by the cjeu in this respect and its significance for consumers in Poland. Particular attention was paid to the considerations with regard to the possibility of replacing unfair provisions with general provisions and assessing the consumer’s awareness of the consequences of declaring a contract invalid. The aim is to examine the issues that were dealt with by the Court of Justice of the European Union in the Dziubak case, including – in particular – the answer to the question of whether the issues discussed by the cjeu had already been considered in its previous jurisprudence and whether it presents new, previously unknown legal consequences of the inclusion of unfair contract terms in loan agreements.","PeriodicalId":42845,"journal":{"name":"Review of Central and East European Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2021-12-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87679987","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-12-08DOI: 10.1163/15730352-bja10053
V. Schatz
On 21 February 2020, the arbitral tribunal constituted under Annex vii of the United Nations Convention on the Law of the Sea (unclos) in the Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. the Russian Federation) rendered its award concerning preliminary objections. This comment focuses on the arbitral tribunal’s findings concerning Russia’s two most important and far-reaching objections, both of which concern jurisdiction ratione materiae. First, it argues that the arbitral tribunal convincingly declined jurisdiction over those of Ukraine’s claims, which would have required the arbitral tribunal to decide the dispute between Ukraine and Russia concerning sovereignty over Crimea. Second, this comment analyzes the arbitral tribunal’s conclusion that the parties’ dispute concerning the status of the Sea of Azov and Kerch Strait was not of an exclusively preliminary character and must, therefore, be reserved for the proceedings on the merits.
{"title":"The Status of Crimea and the Sea of Azov as a Jurisdictional Hurdle in Ukraine v. Russia","authors":"V. Schatz","doi":"10.1163/15730352-bja10053","DOIUrl":"https://doi.org/10.1163/15730352-bja10053","url":null,"abstract":"\u0000On 21 February 2020, the arbitral tribunal constituted under Annex vii of the United Nations Convention on the Law of the Sea (unclos) in the Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. the Russian Federation) rendered its award concerning preliminary objections. This comment focuses on the arbitral tribunal’s findings concerning Russia’s two most important and far-reaching objections, both of which concern jurisdiction ratione materiae. First, it argues that the arbitral tribunal convincingly declined jurisdiction over those of Ukraine’s claims, which would have required the arbitral tribunal to decide the dispute between Ukraine and Russia concerning sovereignty over Crimea. Second, this comment analyzes the arbitral tribunal’s conclusion that the parties’ dispute concerning the status of the Sea of Azov and Kerch Strait was not of an exclusively preliminary character and must, therefore, be reserved for the proceedings on the merits.","PeriodicalId":42845,"journal":{"name":"Review of Central and East European Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2021-12-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90835536","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-12-08DOI: 10.1163/15730352-bja10056
Robert Grzeszczak, J. Mazur
The development of automated decision-making technologies creates the threat of de-iuridification: replacement of the legal acts’ provisions with automated, technological solutions. The article examines how selected provisions of the General Data Protection Regulation concerning, among other things, data protection impact assessments, the right to not be subject to automated decision-making, information obligations and the right to access are applied in the Polish national legal order. We focus on the institutional and procedural solutions regarding the involvement of expert bodies and other stakeholders in the process of specification of the norms included in the gdpr and their enforcement. We argue that the example of Poland shows that the solutions adopted in the gdpr do not shift the balance concerning regulatory power in regard to automated decision-making to other stakeholders and as such do not favor of a more participative approach to the regulatory processes.
{"title":"Regulating without Regulation? Regulating without the Sovereign?","authors":"Robert Grzeszczak, J. Mazur","doi":"10.1163/15730352-bja10056","DOIUrl":"https://doi.org/10.1163/15730352-bja10056","url":null,"abstract":"\u0000The development of automated decision-making technologies creates the threat of de-iuridification: replacement of the legal acts’ provisions with automated, technological solutions. The article examines how selected provisions of the General Data Protection Regulation concerning, among other things, data protection impact assessments, the right to not be subject to automated decision-making, information obligations and the right to access are applied in the Polish national legal order. We focus on the institutional and procedural solutions regarding the involvement of expert bodies and other stakeholders in the process of specification of the norms included in the gdpr and their enforcement. We argue that the example of Poland shows that the solutions adopted in the gdpr do not shift the balance concerning regulatory power in regard to automated decision-making to other stakeholders and as such do not favor of a more participative approach to the regulatory processes.","PeriodicalId":42845,"journal":{"name":"Review of Central and East European Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2021-12-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89357672","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-12-08DOI: 10.1163/15730352-bja10054
M. Sekerák, L. Novotný
In the Czech context, the issue of same-sex partnerships can be viewed as a “hot potato”. After long political debates, a law allowing civil unions was adopted in 2006. In the post-communist area, there has been a political struggle over the marriage. The Czech Constitutional Court recently published two key decisions that moved this debate forward. At the same time, two major legislative bills were tabled in the Chamber of Deputies: the first extending marriage to non-heterosexual couples, the second preserving the current status quo with regard to marriage. In the article, we explain these recent Czech legal events in the broader context of the perception of marriage in the post-communist area. We argue that if the Court decides in the future on the constitutionality of same-sex marriages, it should take into account the principles of human dignity and the best interest of the child.
{"title":"Legislation on Same-Sex Partnerships in the Post-Communist Area: Case Study of the Czech Republic","authors":"M. Sekerák, L. Novotný","doi":"10.1163/15730352-bja10054","DOIUrl":"https://doi.org/10.1163/15730352-bja10054","url":null,"abstract":"\u0000In the Czech context, the issue of same-sex partnerships can be viewed as a “hot potato”. After long political debates, a law allowing civil unions was adopted in 2006. In the post-communist area, there has been a political struggle over the marriage. The Czech Constitutional Court recently published two key decisions that moved this debate forward. At the same time, two major legislative bills were tabled in the Chamber of Deputies: the first extending marriage to non-heterosexual couples, the second preserving the current status quo with regard to marriage. In the article, we explain these recent Czech legal events in the broader context of the perception of marriage in the post-communist area. We argue that if the Court decides in the future on the constitutionality of same-sex marriages, it should take into account the principles of human dignity and the best interest of the child.","PeriodicalId":42845,"journal":{"name":"Review of Central and East European Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2021-12-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86605746","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-05-27DOI: 10.1163/15730352-BJA10045
Marko Davinić, V. Cucić
Serbia (as well as other countries of the Western Balkan region) recently adopted the new General Administrative Procedure Act (gapa). The drafting and adoption process was strongly influenced by the European Union and its experts from the sigma organization. The paper first analyzes the novelties introduced and improvements made under European influence. The authors then go on to analyze deficiencies of European influence in the drafting process. Two main shortcomings thereof were the false deregulation and debureaucratization of gapa and the ‘one-size-fits-all’ approach applied in all the countries of the Western Balkan region, in spite of inherent differences in their legal systems. The purpose of the criticism given in the paper is to avoid the same issues in the future, during the process of harmonization of Serbian law with the acquis communautaire.
{"title":"Europeanization of General Administrative Procedure in Serbia","authors":"Marko Davinić, V. Cucić","doi":"10.1163/15730352-BJA10045","DOIUrl":"https://doi.org/10.1163/15730352-BJA10045","url":null,"abstract":"\u0000Serbia (as well as other countries of the Western Balkan region) recently adopted the new General Administrative Procedure Act (gapa). The drafting and adoption process was strongly influenced by the European Union and its experts from the sigma organization. The paper first analyzes the novelties introduced and improvements made under European influence. The authors then go on to analyze deficiencies of European influence in the drafting process. Two main shortcomings thereof were the false deregulation and debureaucratization of gapa and the ‘one-size-fits-all’ approach applied in all the countries of the Western Balkan region, in spite of inherent differences in their legal systems. The purpose of the criticism given in the paper is to avoid the same issues in the future, during the process of harmonization of Serbian law with the acquis communautaire.","PeriodicalId":42845,"journal":{"name":"Review of Central and East European Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2021-05-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79776191","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
There is a great deal of legislation that has been adopted by the European Union which, in one way or another, aims at ensuring equal opportunities and a good work–life balance. One specific issue in this area relates to childcare leave. In practice, providing for equal opportunities has meant enabling women to integrate into the labor market, to advance their careers, and to have more guarantees and rights at work. In reality, thus far these measures have not been effective enough. The new Directive (EU) 2019/1158 on work–life balance for parents and carers, adopted on 20 June 2019, seeks to increase the take-up of family-related leave and flexible working arrangements by men (fathers). The purpose of this article is to assess what effects this new EU directive will have upon Lithuanian law in this area.
{"title":"A Father’s Entitlement to Paternity and Parental Leave in Lithuania: Necessary Legislative Changes Following the Adoption of the Directive on Work–Life Balance","authors":"Ingrida Mačernytė-Panomariovienė, Rytis Krasauskas","doi":"10.1163/15730352-BJA10047","DOIUrl":"https://doi.org/10.1163/15730352-BJA10047","url":null,"abstract":"\u0000There is a great deal of legislation that has been adopted by the European Union which, in one way or another, aims at ensuring equal opportunities and a good work–life balance. One specific issue in this area relates to childcare leave. In practice, providing for equal opportunities has meant enabling women to integrate into the labor market, to advance their careers, and to have more guarantees and rights at work. In reality, thus far these measures have not been effective enough. The new Directive (EU) 2019/1158 on work–life balance for parents and carers, adopted on 20 June 2019, seeks to increase the take-up of family-related leave and flexible working arrangements by men (fathers). The purpose of this article is to assess what effects this new EU directive will have upon Lithuanian law in this area.","PeriodicalId":42845,"journal":{"name":"Review of Central and East European Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2021-05-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84330554","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-05-27DOI: 10.1163/15730352-BJA10049
A. Troitskaya
This paper addresses the boundaries on restrictions of human rights imposed by the proportionality principle, examines the elements of the structure of this principle, and attempts to present the meaning of its elements consistently in terms of the potential for the protection of fundamental rights that are subject to restrictions. The main criticisms of some proportionality tests are considered, as well as ways to minimize the risks associated with the use of proportionality. These theoretical considerations are placed in the context of the jurisprudence of the Russian Constitutional Court, to demonstrate that the Court, instead of consistently applying proportionality tests, often draws generalized conclusions regarding the proportionality (or disproportionality) of restrictions and therefore tends to heighten some of the risks of applying the principle. One can observe some positive changes in the application of the principle, and in further requests for this. Conclusions are formulated concerning the improvement of the Court’s activities in terms of a more consistent and structured implementation of the principle of proportionality.
{"title":"The Proportionality Principle in the Jurisprudence of the Russian Constitutional Court","authors":"A. Troitskaya","doi":"10.1163/15730352-BJA10049","DOIUrl":"https://doi.org/10.1163/15730352-BJA10049","url":null,"abstract":"\u0000This paper addresses the boundaries on restrictions of human rights imposed by the proportionality principle, examines the elements of the structure of this principle, and attempts to present the meaning of its elements consistently in terms of the potential for the protection of fundamental rights that are subject to restrictions. The main criticisms of some proportionality tests are considered, as well as ways to minimize the risks associated with the use of proportionality. These theoretical considerations are placed in the context of the jurisprudence of the Russian Constitutional Court, to demonstrate that the Court, instead of consistently applying proportionality tests, often draws generalized conclusions regarding the proportionality (or disproportionality) of restrictions and therefore tends to heighten some of the risks of applying the principle. One can observe some positive changes in the application of the principle, and in further requests for this. Conclusions are formulated concerning the improvement of the Court’s activities in terms of a more consistent and structured implementation of the principle of proportionality.","PeriodicalId":42845,"journal":{"name":"Review of Central and East European Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2021-05-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72881066","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-05-27DOI: 10.1163/15730352-BJA10048
V. Nekrošius, Kinga Flaga-Gieruszyńska
The article analyses the peculiarities of the regulation of Class Action institution in the civil proceedings of Lithuania and Poland. Due to its limited scope, this article investigates the civil proceedings in the first instance courts only. The authors draw a special focus on the comparative analysis and the analysis of the effectiveness of the procedure in the current regulation by investigating both the doctrine and the available limited case law. The subject of considerations are problems relating both to the admissibility of filing a class action, as well as the course of court proceedings in cases concerning group proceedings, with particular emphasis on their differences from other procedural structures in Poland and Lithuania.
{"title":"The Class Action in Lithuania and Poland: History, Experiences and Lessons","authors":"V. Nekrošius, Kinga Flaga-Gieruszyńska","doi":"10.1163/15730352-BJA10048","DOIUrl":"https://doi.org/10.1163/15730352-BJA10048","url":null,"abstract":"\u0000The article analyses the peculiarities of the regulation of Class Action institution in the civil proceedings of Lithuania and Poland. Due to its limited scope, this article investigates the civil proceedings in the first instance courts only. The authors draw a special focus on the comparative analysis and the analysis of the effectiveness of the procedure in the current regulation by investigating both the doctrine and the available limited case law. The subject of considerations are problems relating both to the admissibility of filing a class action, as well as the course of court proceedings in cases concerning group proceedings, with particular emphasis on their differences from other procedural structures in Poland and Lithuania.","PeriodicalId":42845,"journal":{"name":"Review of Central and East European Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2021-05-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80857355","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-05-27DOI: 10.1163/15730352-BJA10051
R. Janik
{"title":"Sergey Yu. Marochkin, The Operation of International Law in the Russian Legal System","authors":"R. Janik","doi":"10.1163/15730352-BJA10051","DOIUrl":"https://doi.org/10.1163/15730352-BJA10051","url":null,"abstract":"","PeriodicalId":42845,"journal":{"name":"Review of Central and East European Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2021-05-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91369228","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-05-27DOI: 10.1163/15730352-BJA10050
Anna Lukina
{"title":"David M. Crowe (ed), Stalin’s Soviet Justice: ‘Show’ Trials, War Crimes Trials, and Nuremberg","authors":"Anna Lukina","doi":"10.1163/15730352-BJA10050","DOIUrl":"https://doi.org/10.1163/15730352-BJA10050","url":null,"abstract":"","PeriodicalId":42845,"journal":{"name":"Review of Central and East European Law","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2021-05-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75603084","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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