The intent of the essay is to verify if the Proposal on a Single Market For Digital Services (Digital Services Act), in the part where it aims to define the provider’s liability for illegal activity or illegal content stored at the request of a recipient of the hosting service, ends up providing greater protection for the passive provider than the Electronic Commerce Directive. It is also the intent to examine to what extent the actual increased protection of the passive provider is compensated for by greater rigor in ruling out the possibility of the providers playing an active role in hosting.
{"title":"The Liability of Internet Service Providers in the Proposed Digital Services Act","authors":"Sara Tommasi","doi":"10.54648/erpl2021048","DOIUrl":"https://doi.org/10.54648/erpl2021048","url":null,"abstract":"The intent of the essay is to verify if the Proposal on a Single Market For Digital Services (Digital Services Act), in the part where it aims to define the provider’s liability for illegal activity or illegal content stored at the request of a recipient of the hosting service, ends up providing greater protection for the passive provider than the Electronic Commerce Directive. It is also the intent to examine to what extent the actual increased protection of the passive provider is compensated for by greater rigor in ruling out the possibility of the providers playing an active role in hosting.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43955955","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}
This article discusses the relations between land registration systems and underlying discourses of property from a comparative perspective. It is based on the example of French law which, characteristically, uses a declaratory land recordation system, i.e., registration is informative in nature, it affects the rules of evidence but it does not convey property nor does it affect complete strangers in any way. It is found that such a system implies that people will need to prove their ownership of land, and therefore presupposes rules of evidence which are based on possession or title to possess, since land registration is not used for that purpose. The historical reason for this choice was inherited from the French Revolution. It rests on the idea that property is held from no one, least of all from the State. Most countries in the world have opted for a land registration system which is constitutive of title, meaning that the State guarantees the registered owner’s title to land. This system was originally inherited from the remnants of the feudal system in which land was held through a tenure, i.e., from someone else. This conception of ownership also traditionally implies a greater tolerance – in legal discourse – for legislative or State interference in the ownership of land which is merely granted by public authority. It may therefore be said that the more efficient the title, the less absolute ownership seems to be, at least in the collective imagination of lawyers as to what property entails.
{"title":"Land Registration Systems & Discourses of Property","authors":"Flora Vern","doi":"10.54648/erpl2021044","DOIUrl":"https://doi.org/10.54648/erpl2021044","url":null,"abstract":"This article discusses the relations between land registration systems and underlying discourses of property from a comparative perspective. It is based on the example of French law which, characteristically, uses a declaratory land recordation system, i.e., registration is informative in nature, it affects the rules of evidence but it does not convey property nor does it affect complete strangers in any way. It is found that such a system implies that people will need to prove their ownership of land, and therefore presupposes rules of evidence which are based on possession or title to possess, since land registration is not used for that purpose. The historical reason for this choice was inherited from the French Revolution. It rests on the idea that property is held from no one, least of all from the State. Most countries in the world have opted for a land registration system which is constitutive of title, meaning that the State guarantees the registered owner’s title to land. This system was originally inherited from the remnants of the feudal system in which land was held through a tenure, i.e., from someone else. This conception of ownership also traditionally implies a greater tolerance – in legal discourse – for legislative or State interference in the ownership of land which is merely granted by public authority. It may therefore be said that the more efficient the title, the less absolute ownership seems to be, at least in the collective imagination of lawyers as to what property entails.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46333016","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}
{"title":"Rechtsvergleichung ist kein Hobby: Das Beispiel des „anticipatory breach“ in Belgien","authors":"A. Janssen","doi":"10.54648/erpl2021043","DOIUrl":"https://doi.org/10.54648/erpl2021043","url":null,"abstract":"","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45743035","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}
Within the Civilian legal tradition, the unworthy heir rule has been established on both objective and subjective grounds. In France, the Code Napoleon enshrined said rule as a creation of law, without the deceased having any say in its operation. The Napoleonic model was later borrowed into the civil codes of Italy and Romania, thus expanding the doctrine of an objective unworthiness to their legal systems. Nevertheless, the Romanian Civil Code of 2009 empowered the deceased to remove said penalty through an explicit pardon. Since this new prerogative is a distinctive feature of the subjective foundation, the reform has rather significant implications for Romanian succession law. Essentially, the authors argue that the unworthy heir rule has always been founded upon a mixture of public policy and private interest, with the only variable being the dominating factor. Within the broader field of succession law, the legislator aims to achieve balance between the imperative nature of public policy and freedom of testation on the one hand, and between the private interests of the deceased and his family on the other. Whilst the Civil Code of 2009 does restore the Roman notion of an unworthiness subordinated to the deceased’s intention, it also preserves the public policy foundation. Its real merit consists of acknowledging that the very concept of inheritance is based upon the presumed intention of the deceased: an unworthy heir forfeits his right to inherit the deceased as a result of breaching the bond of affection which is presumed to exist between them, yet only the latter can have the final say in this matter. In contrast, the Civil Code of 1864 failed to achieve such a balance since it transplanted an ideologized public policy, residue of the French Revolution.
{"title":"The Foundations of the Unworthy Heir Rule in Romania","authors":"Mircea Dan Bob-Bocșan, Anthony D. Murphy","doi":"10.54648/erpl2021047","DOIUrl":"https://doi.org/10.54648/erpl2021047","url":null,"abstract":"Within the Civilian legal tradition, the unworthy heir rule has been established on both objective and subjective grounds. In France, the Code Napoleon enshrined said rule as a creation of law, without the deceased having any say in its operation. The Napoleonic model was later borrowed into the civil codes of Italy and Romania, thus expanding the doctrine of an objective unworthiness to their legal systems. Nevertheless, the Romanian Civil Code of 2009 empowered the deceased to remove said penalty through an explicit pardon. Since this new prerogative is a distinctive feature of the subjective foundation, the reform has rather significant implications for Romanian succession law. Essentially, the authors argue that the unworthy heir rule has always been founded upon a mixture of public policy and private interest, with the only variable being the dominating factor. Within the broader field of succession law, the legislator aims to achieve balance between the imperative nature of public policy and freedom of testation on the one hand, and between the private interests of the deceased and his family on the other. Whilst the Civil Code of 2009 does restore the Roman notion of an unworthiness subordinated to the deceased’s intention, it also preserves the public policy foundation. Its real merit consists of acknowledging that the very concept of inheritance is based upon the presumed intention of the deceased: an unworthy heir forfeits his right to inherit the deceased as a result of breaching the bond of affection which is presumed to exist between them, yet only the latter can have the final say in this matter. In contrast, the Civil Code of 1864 failed to achieve such a balance since it transplanted an ideologized public policy, residue of the French Revolution.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48286044","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 aim of this study is to provide a comprehensive presentation of the peculiarities of private foundations in certain legal systems. The study reviews the formation of private foundations, their current legal background and change trends. The research covers the features of certain characteristics of private foundations, such as the establishment and operation of the various bodies. Particularly important factors include the possibility of economic activity at private foundations, the regulations related to the necessary assets, and state supervision. The legal background of private foundations in many cases provides an opportunity to compete with trusts and business companies, especially in terms of planning, managing and protecting assets as well as enabling generational asset transfers.
{"title":"Key Features of Private Foundations in a Comparative Law Approach: With Special Emphasize on Asset Management","authors":"I. Sândor","doi":"10.54648/erpl2021046","DOIUrl":"https://doi.org/10.54648/erpl2021046","url":null,"abstract":"The aim of this study is to provide a comprehensive presentation of the peculiarities of private foundations in certain legal systems. The study reviews the formation of private foundations, their current legal background and change trends. The research covers the features of certain characteristics of private foundations, such as the establishment and operation of the various bodies. Particularly important factors include the possibility of economic activity at private foundations, the regulations related to the necessary assets, and state supervision. The legal background of private foundations in many cases provides an opportunity to compete with trusts and business companies, especially in terms of planning, managing and protecting assets as well as enabling generational asset transfers.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47626544","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 sanctity of contracts, a guiding principle of contract law in civil law systems, requires that both or all contracting parties be expected to meet their contractual obligations, thereby ensuring efficacy and efficiency of private ordering. Under extraordinary circumstances, however, legal systems provide for mechanisms, which may excuse contractual performance or lead to adaption or termination of contractual obligations. Since the coronavirus pandemic, these mechanisms have clearly gained traction. Drawing on five important civil law jurisdictions (Germany, Austria, Switzerland, France, Italy), this article elaborates on excuses of contractual performance and remedies for breach of contract and on adaption or termination of contractual obligations. The article aims to address the fundamental questions, whether these excuses and remedies and institutions on adaption or termination still serve their purpose in times of pandemic or whether and to what extent a uniform breach of contract action or a codification of such institutions is needed in European Contract Law. A functional and comparative approach is used to unfold and analyse these timeless questions from a contemporary perspective.
{"title":"Contractual Performance, Breach of Contract and Contractual Obligations in Times of Crisis: On the Need for Unification and Codification in European Contract Law","authors":"Valentin Jentsch","doi":"10.54648/erpl2021045","DOIUrl":"https://doi.org/10.54648/erpl2021045","url":null,"abstract":"The sanctity of contracts, a guiding principle of contract law in civil law systems, requires that both or all contracting parties be expected to meet their contractual obligations, thereby ensuring efficacy and efficiency of private ordering. Under extraordinary circumstances, however, legal systems provide for mechanisms, which may excuse contractual performance or lead to adaption or termination of contractual obligations. Since the coronavirus pandemic, these mechanisms have clearly gained traction. Drawing on five important civil law jurisdictions (Germany, Austria, Switzerland, France, Italy), this article elaborates on excuses of contractual performance and remedies for breach of contract and on adaption or termination of contractual obligations. The article aims to address the fundamental questions, whether these excuses and remedies and institutions on adaption or termination still serve their purpose in times of pandemic or whether and to what extent a uniform breach of contract action or a codification of such institutions is needed in European Contract Law. A functional and comparative approach is used to unfold and analyse these timeless questions from a contemporary perspective.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49340822","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}
Commercialization of consumers’ personal data in the digital economy poses serious, both conceptual and practical, challenges to the traditional approach of European Union (EU) Consumer Law. This article argues that mass-spread, automated, algorithmic decision-making casts doubt on the foundational paradigm of EU consumer law: consent and autonomy. Moreover, it poses threats of discrimination and undermining of consumer privacy. It is argued that the recent legislative reaction by the EU Commission, in the form of the ‘New Deal for Consumers’, was a step in the right direction, but fell short due to its continued reliance on consent, autonomy and failure to adequately protect consumers from indirect discrimination. It is posited that a focus on creating a contracting landscape where the consumer may be properly informed in material respects is required, which in turn necessitates blending the approaches of competition, consumer protection and data protection laws.
{"title":"A Consumer Law Perspective on the Commercialization of Data","authors":"Franciszek Lech, M. Durovic","doi":"10.54648/erpl2021038","DOIUrl":"https://doi.org/10.54648/erpl2021038","url":null,"abstract":"Commercialization of consumers’ personal data in the digital economy poses serious, both conceptual and practical, challenges to the traditional approach of European Union (EU) Consumer Law. This article argues that mass-spread, automated, algorithmic decision-making casts doubt on the foundational paradigm of EU consumer law: consent and autonomy. Moreover, it poses threats of discrimination and undermining of consumer privacy. It is argued that the recent legislative reaction by the EU Commission, in the form of the ‘New Deal for Consumers’, was a step in the right direction, but fell short due to its continued reliance on consent, autonomy and failure to adequately protect consumers from indirect discrimination. It is posited that a focus on creating a contracting landscape where the consumer may be properly informed in material respects is required, which in turn necessitates blending the approaches of competition, consumer protection and data protection laws.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43918901","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}
Í. de Miguel Beriain, A. Duardo-Sánchez, José Antonio Castillo Parrilla
The health and genetic data of deceased people are a particularly important asset in the field of biomedical research. However, in practice, using them is complicated, as the legal framework that should regulate their use has not been fully developed yet. The General Data Protection Regulation (GDPR) is not applicable to such data and the Member States have not been able to agree on an alternative regulation. Recently, normative models have been proposed in an attempt to face this issue. The most wellknown of these is posthumous medical data donation (PMDD). This proposal supports an opt-in donation system of health data for research purposes. In this article, we argue that PMDD is not a useful model for addressing the issue at hand, as it does not consider that some of these data (the genetic data) may be the personal data of the living relatives of the deceased. Furthermore, we find the reasons supporting an opt-in model less convincing than those that vouch for alternative systems. Indeed, we propose a normative framework that is based on the opt-out system for non-personal data combined with the application of the GDPR to the relatives’ personal data.
{"title":"What Can We Do with the Data of Deceased People? A Normative Proposal","authors":"Í. de Miguel Beriain, A. Duardo-Sánchez, José Antonio Castillo Parrilla","doi":"10.54648/erpl2021041","DOIUrl":"https://doi.org/10.54648/erpl2021041","url":null,"abstract":"The health and genetic data of deceased people are a particularly important asset in the field of biomedical research. However, in practice, using them is complicated, as the legal framework that should regulate their use has not been fully developed yet. The General Data Protection Regulation (GDPR) is not applicable to such data and the Member States have not been able to agree on an alternative regulation. Recently, normative models have been proposed in an attempt to face this issue. The most wellknown of these is posthumous medical data donation (PMDD). This proposal supports an opt-in donation system of health data for research purposes. In this article, we argue that PMDD is not a useful model for addressing the issue at hand, as it does not consider that some of these data (the genetic data) may be the personal data of the living relatives of the deceased. Furthermore, we find the reasons supporting an opt-in model less convincing than those that vouch for alternative systems. Indeed, we propose a normative framework that is based on the opt-out system for non-personal data combined with the application of the GDPR to the relatives’ personal data.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47234999","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}
When we think on initiatives on access to and reuse of data, we must consider both the European Intellectual Property Law and the General Data Protection Regulation (GDPR). The first one provides a special intellectual property (IP) right – the sui generis right – for those makers that made a substantial investment when creating the database, whether it contains personal or non-personal data. That substantial investment can be made by just one person, but, in many cases, it is the result of the activities of many people and/or some undertakings processing and aggregating data. In the modern digital economy, data are being dubbed the ‘new oil’ and the sui generis right might be considered a right to control any access to the database, thus having an undeniable relevance. Besides, there are still important inconsistences between IP Law and the GDPR, which must be removed by the European legislator. The genuine and free consent of the data subject for the use of his/her data must remain the first step of the legal analysis.
{"title":"Ownership Of Databases: Personal Data Protection And Intellectual Property Rights On Databases","authors":"Gemma Minero Alejandre","doi":"10.54648/erpl2021039","DOIUrl":"https://doi.org/10.54648/erpl2021039","url":null,"abstract":"When we think on initiatives on access to and reuse of data, we must consider both the European Intellectual Property Law and the General Data Protection Regulation (GDPR). The first one provides a special intellectual property (IP) right – the sui generis right – for those makers that made a substantial investment when creating the database, whether it contains personal or non-personal data. That substantial investment can be made by just one person, but, in many cases, it is the result of the activities of many people and/or some undertakings processing and aggregating data. In the modern digital economy, data are being dubbed the ‘new oil’ and the sui generis right might be considered a right to control any access to the database, thus having an undeniable relevance. Besides, there are still important inconsistences between IP Law and the GDPR, which must be removed by the European legislator. The genuine and free consent of the data subject for the use of his/her data must remain the first step of the legal analysis.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43170574","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}
Under the current legal paradigm, the rights to privacy and data protection provide natural persons with subjective rights to protect their private interests, such as related to human dignity, individual autonomy and personal freedom. In principle, when data processing is based on non-personal or aggregated data or when such data processes have an impact on societal, rather than individual interests, citizens cannot rely on these rights. Although this legal paradigm has worked well for decades, it is increasingly put under pressure because Big Data processes are typically based indiscriminate rather than targeted data collection, because the high volumes of data are processed on an aggregated rather than a personal level and because the policies and decisions based on the statistical correlations found through algorithmic analytics are mostly addressed at large groups or society as a whole rather than specific individuals. This means that large parts of the data-driven environment are currently left unregulated and that individuals are often unable to rely on their fundamental rights when addressing the more systemic effects of Big Data processes. This article will discuss how this tension might be relieved by turning to the notion ‘quality of life’, which has the potential of becoming the new standard for the European Court of Human Rights (ECtHR) when dealing with privacy related cases.
{"title":"The Quality of Life: Protecting Non-personal Interests and Non-personal Data in the Age of Big Data","authors":"B. van der Sloot","doi":"10.54648/erpl2021040","DOIUrl":"https://doi.org/10.54648/erpl2021040","url":null,"abstract":"Under the current legal paradigm, the rights to privacy and data protection provide natural persons with subjective rights to protect their private interests, such as related to human dignity, individual autonomy and personal freedom. In principle, when data processing is based on non-personal or aggregated data or when such data processes have an impact on societal, rather than individual interests, citizens cannot rely on these rights. Although this legal paradigm has worked well for decades, it is increasingly put under pressure because Big Data processes are typically based indiscriminate rather than targeted data collection, because the high volumes of data are processed on an aggregated rather than a personal level and because the policies and decisions based on the statistical correlations found through algorithmic analytics are mostly addressed at large groups or society as a whole rather than specific individuals. This means that large parts of the data-driven environment are currently left unregulated and that individuals are often unable to rely on their fundamental rights when addressing the more systemic effects of Big Data processes. This article will discuss how this tension might be relieved by turning to the notion ‘quality of life’, which has the potential of becoming the new standard for the European Court of Human Rights (ECtHR) when dealing with privacy related cases.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43272841","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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