EU Competition law has recently incurred main procedural reforms. Their basis must be found in Regulation 1/2003, decentralizing the control on the application of Articles 101 and 102 TFEU, thus emphasising the role of National Competition Authorities and Courts. This system has proved to be far from complete and perfect, as the first part of this article aims at demonstrating. A new political wave has enabled to strengthen the enforcement of EU Competition Law under two strands: the private and the public enforcement. Directive 2014/104 harmonises parts of the national (civil) procedural law regarding damages actions. Powers and duties of National Courts are its focus. Its main features are recalled within this contribution. The long-awaited Directive 2019/1 aims at further reinforcing the role of NCAs, establishing a very detailed piece of legislation, whose main elements are briefly examined here. Since the two acts have been adopted in a quite short period of time, their coordination is analysed too. This exam can lead us to offer some remarks on the perspective role of EU Competition Law, both from the Member States perspective and the needs for reform, and the new Commission’s approach to the consistent application of the new legislation.
{"title":"RECENT (AND FUTURE) DEVELOPMENTS OF EU COMPETITION LAW: MATTERS OF POLICY AND OF MEMBER STATES COOPERATION","authors":"S. Marino","doi":"10.25234/eclic/11925","DOIUrl":"https://doi.org/10.25234/eclic/11925","url":null,"abstract":"EU Competition law has recently incurred main procedural reforms. Their basis must be found in Regulation 1/2003, decentralizing the control on the application of Articles 101 and 102 TFEU, thus emphasising the role of National Competition Authorities and Courts. This system has proved to be far from complete and perfect, as the first part of this article aims at demonstrating. A new political wave has enabled to strengthen the enforcement of EU Competition Law under two strands: the private and the public enforcement. Directive 2014/104 harmonises parts of the national (civil) procedural law regarding damages actions. Powers and duties of National Courts are its focus. Its main features are recalled within this contribution. The long-awaited Directive 2019/1 aims at further reinforcing the role of NCAs, establishing a very detailed piece of legislation, whose main elements are briefly examined here. Since the two acts have been adopted in a quite short period of time, their coordination is analysed too. This exam can lead us to offer some remarks on the perspective role of EU Competition Law, both from the Member States perspective and the needs for reform, and the new Commission’s approach to the consistent application of the new legislation.","PeriodicalId":448091,"journal":{"name":"EU 2020 – lessons from the past and solutions for the future","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129795059","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 idea of reforming the investor-state dispute settlement system (hereinafter: ISDS) has been simmering at the international level with the EU as the most prominent proponent of a complete reconstruction of the ISDS system, and its voice was amplified by the 2018 decision of the ECJ in the Achmea case. The EU has since called for the establishment of a standing body established by means of a multilateral legal instrument investment court (hereinafter: MIC), dedicated to the resolution of treaty-based disputes within and outside of the EU. The MIC has been presented as a matter of urgency by its proponents who claim that the substantive issues in the global investment system – investor liability, the freedom of states to regulate and the interests of third affected parties - cannot be resolved under the existing framework. This proposal was met with some degree of resistance from other parts of the world, as critics find that the MIC would fix the flaws of the existing system, but that it would perpetuate the issues and tilt the scale in favor of the states. In their view, moderate and gradual reform would suffice to remove the major flaws in the existing ISDS system. Therefore, the ISDS landscape is being shaped in a battle of revolution versus evolution, which will determine whether the EU model will be adopted as the global solution, or will it remain within the boundaries of the EU. The authors give a critical overview of the rise and fall of ISDS as the preferred dispute resolution mechanism for investor claims (1), and the wave of resistance by states which prompted the global ISDS reform process (2). The paper than puts the spotlight on the EU perspective on ISDS reform, regarding intra-EU and extra-EU investor claims (3). This is followed by a discussion on the MIC which the EU is promoting as the universal replacement for the existing ISDS system (4), and the ISDS reform options developed through the UNCITRAL Working Group III (hereinafter: WG III) (5). Finally, the paper concludes with a discussion on whether the final solution could be compromise (6).
{"title":"THE PATH OF (R)EVOLUTION OF THE INTERNATIONAL INVESTOR STATE DISPUTE SETTLEMENT REGIME","authors":"Fahira Brodlija, Lidija Šimunović","doi":"10.25234/eclic/11929","DOIUrl":"https://doi.org/10.25234/eclic/11929","url":null,"abstract":"The idea of reforming the investor-state dispute settlement system (hereinafter: ISDS) has been simmering at the international level with the EU as the most prominent proponent of a complete reconstruction of the ISDS system, and its voice was amplified by the 2018 decision of the ECJ in the Achmea case. The EU has since called for the establishment of a standing body established by means of a multilateral legal instrument investment court (hereinafter: MIC), dedicated to the resolution of treaty-based disputes within and outside of the EU. The MIC has been presented as a matter of urgency by its proponents who claim that the substantive issues in the global investment system – investor liability, the freedom of states to regulate and the interests of third affected parties - cannot be resolved under the existing framework. This proposal was met with some degree of resistance from other parts of the world, as critics find that the MIC would fix the flaws of the existing system, but that it would perpetuate the issues and tilt the scale in favor of the states. In their view, moderate and gradual reform would suffice to remove the major flaws in the existing ISDS system. Therefore, the ISDS landscape is being shaped in a battle of revolution versus evolution, which will determine whether the EU model will be adopted as the global solution, or will it remain within the boundaries of the EU. The authors give a critical overview of the rise and fall of ISDS as the preferred dispute resolution mechanism for investor claims (1), and the wave of resistance by states which prompted the global ISDS reform process (2). The paper than puts the spotlight on the EU perspective on ISDS reform, regarding intra-EU and extra-EU investor claims (3). This is followed by a discussion on the MIC which the EU is promoting as the universal replacement for the existing ISDS system (4), and the ISDS reform options developed through the UNCITRAL Working Group III (hereinafter: WG III) (5). Finally, the paper concludes with a discussion on whether the final solution could be compromise (6).","PeriodicalId":448091,"journal":{"name":"EU 2020 – lessons from the past and solutions for the future","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132190664","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}
Creation of more and better jobs is a central issue of the ILO’s Decent Work Agenda, OECD’s jobs strategy and the European Union’s quality of work policies. While recent reports show an increase of new jobs in the European Union, the number of quality jobs is diminishing. On the other hand, there is a problematic mismatch between the education system and labour market needs. According to statistical data, Croatia is among the EU Member States with the highest rate of precarious work and the highest share of fixed-term employment in total employment. Almost a quarter of the Croatian population is at risk of poverty or social exclusion. Precarious work is closely related to non-standard or atypical forms of employment (e.g. part-time work, fixed-term employment, temporary agency work and (bogus or dependent) self-employment). These forms of employment have negative consequences for the functioning of the labour market, individual workers and the society as a whole. The authors underline shortcomings of the Croatian legislation regarding atypical forms of employment and give possible solutions that could improve the employment status and social security entitlements of those categories of workers.
{"title":"ATYPICAL FORMS OF EMPLOYMENT – A HINT OF PRECARIOUSNESS? STRUGGLING WITH THE SEGMENTATION AND PRECARISATION OF THE LABOUR MARKET","authors":"Karla Kotulovski, Sandra Laleta","doi":"10.25234/eclic/11922","DOIUrl":"https://doi.org/10.25234/eclic/11922","url":null,"abstract":"Creation of more and better jobs is a central issue of the ILO’s Decent Work Agenda, OECD’s jobs strategy and the European Union’s quality of work policies. While recent reports show an increase of new jobs in the European Union, the number of quality jobs is diminishing. On the other hand, there is a problematic mismatch between the education system and labour market needs. According to statistical data, Croatia is among the EU Member States with the highest rate of precarious work and the highest share of fixed-term employment in total employment. Almost a quarter of the Croatian population is at risk of poverty or social exclusion. Precarious work is closely related to non-standard or atypical forms of employment (e.g. part-time work, fixed-term employment, temporary agency work and (bogus or dependent) self-employment). These forms of employment have negative consequences for the functioning of the labour market, individual workers and the society as a whole. The authors underline shortcomings of the Croatian legislation regarding atypical forms of employment and give possible solutions that could improve the employment status and social security entitlements of those categories of workers.","PeriodicalId":448091,"journal":{"name":"EU 2020 – lessons from the past and solutions for the future","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127141025","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}
Teaching environmental law and climate change issues one may open a number of questions on relations between environmental protection, governmental duties and public rights, starting with: has a government duty to care and maintain a dissent environment and stable climate conditions?; what is a ground for governmental decision-making on actions threatening sustainability of the climate conditions?; where is the beginning and the end of the responsibility of an individual or of an country? The article outlines the elements that provide the criteria under which one may discus on whether it should be the court to force the government to act or should it be a parliament to set laws initiating actions to protect citizens and their human rights from irreversible climate change? The article points out the recent cases State of the Netherlands v. Urgenda Foundation (court decision from December 2019) and Kelsey Cascadia Rose Juliana v. USA (court decision from January 2020). In Urgenda, the court concerned questions: whether the Netherlands is obliged to reduce the emission of greenhouse gases from its soil by at least 25% by the end of 2020 compared to 1990, whether the court can order the State to do so and whether the government is bound to protect human rights in climate crisis? In Juliana, a group of children between the ages of eight and nineteen filed suit against the federal government, claiming that the government violated their constitutional rights by causing dangerous carbon dioxide concentrations. Although the court had found the injury and evidence on causation between government’s actions and climate crisis, it found a lack of redressability. The aim of the article is to examine if the concepts of European Green Deal presented on January 2019 by the Von der Leyen Commission to enshrine the 2050 climate neutrality target into life are in line with conclusions from analysed cases and lessons learned from COVID-19 crisis.
{"title":"STANDING IN ENVIRONMENTAL LAW AFTER URGENDA, JULIANA AND COVID-19 CRISES: WHO SHOULD FORCE GOVERNMENTS TO ACT IN ENVIRONMENTAL ISSUES RELATED TO CLIMATE CHANGE?","authors":"Mirjana Drenovak-Ivanović","doi":"10.25234/eclic/11893","DOIUrl":"https://doi.org/10.25234/eclic/11893","url":null,"abstract":"Teaching environmental law and climate change issues one may open a number of questions on relations between environmental protection, governmental duties and public rights, starting with: has a government duty to care and maintain a dissent environment and stable climate conditions?; what is a ground for governmental decision-making on actions threatening sustainability of the climate conditions?; where is the beginning and the end of the responsibility of an individual or of an country? The article outlines the elements that provide the criteria under which one may discus on whether it should be the court to force the government to act or should it be a parliament to set laws initiating actions to protect citizens and their human rights from irreversible climate change? The article points out the recent cases State of the Netherlands v. Urgenda Foundation (court decision from December 2019) and Kelsey Cascadia Rose Juliana v. USA (court decision from January 2020). In Urgenda, the court concerned questions: whether the Netherlands is obliged to reduce the emission of greenhouse gases from its soil by at least 25% by the end of 2020 compared to 1990, whether the court can order the State to do so and whether the government is bound to protect human rights in climate crisis? In Juliana, a group of children between the ages of eight and nineteen filed suit against the federal government, claiming that the government violated their constitutional rights by causing dangerous carbon dioxide concentrations. Although the court had found the injury and evidence on causation between government’s actions and climate crisis, it found a lack of redressability. The aim of the article is to examine if the concepts of European Green Deal presented on January 2019 by the Von der Leyen Commission to enshrine the 2050 climate neutrality target into life are in line with conclusions from analysed cases and lessons learned from COVID-19 crisis.","PeriodicalId":448091,"journal":{"name":"EU 2020 – lessons from the past and solutions for the future","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126227480","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}
Although the rule of law is globally and regionally increasingly in focus, there are various attempts to blur the separation of powers and weaken judiciary, its integrity and independence through institutional reforms and in individual cases. Judicial independence and integrity are under threat in several EU member states, including Hungary, Romania, and Poland. Judicial crises in the EU jeopardize essential principle of mutual recognition in judicial matters and free movement of goods, services, people and capital. The recent decision of the Irish high judge to refuse to extradite a suspected drugs trafficker to Poland due to concerns about the integrity of the Polish justice system, re-confirms the relevance of the rule of law for the EU and judgement of Court of Justice of EU (CJEU) in case LM, C216/18 PPU. Following Court of Justice decisions related to the Polish judiciary are relevant for shaping Court of Justice position on independence and impartiality of judiciary (i.e. judgment of 24 June 2019, Commission v Poland, C619/18; judgement of 19 November 2019, joined cases A.K. and Others v Krajowa Rada Sadownictwa, C585/18, C624/18 and C625/18). Backsliding on rule of law in the EU is a possibility that the Court of Justice of the European Union is seeking to prevent and mitigate. In doing so, the Court of Justice is establishing EU standards on independence and accountability of judiciary. There have also been signs that citizens care about the rule of law, highlighting he importance of demand-side initiatives that foster citizen voice. In all, in the current European environment, the rule of law is highly visible and increasingly relevant for citizens, businesses, governments, and EU institutions, especially EU Court of Justice. In the article author is reviewing Court of Justice decisions relevant for the independence of judiciary, its influence on national legislators, European Commission policy towards access countries and strengthening requests for genuine reform of justice in candidate countries. Consequently, author emphasized the advantages of active role of Court of Justice in establishment of EU standards on independence and impartiality of judiciary in order to prevent further erosion of rule of law, separation of powers and position of judiciary in the member states.
尽管法治日益受到全球和区域的关注，但仍有各种企图通过机构改革和在个别案件中模糊三权分立，削弱司法的完整性和独立性。包括匈牙利、罗马尼亚和波兰在内的几个欧盟成员国的司法独立和廉正受到威胁。欧盟的司法危机危及司法事务中相互承认的基本原则以及商品、服务、人员和资本的自由流动。爱尔兰高级法官最近决定，出于对波兰司法系统完整性的担忧，拒绝将一名贩毒嫌疑人引渡到波兰，这再次确认了欧盟法治与欧盟法院(CJEU)在LM, C216/18 PPU案件中的判决的相关性。以下法院与波兰司法机构有关的决定与形成法院在司法独立和公正方面的立场相关(即2019年6月24日的判决，委员会诉波兰，C619/18;2019年11月19日的判决，合并A.K.和其他人诉Krajowa Rada Sadownictwa案(C585/18、C624/18和C625/18)。欧盟法治倒退是欧盟法院(Court of Justice of European Union)正在寻求预防和缓解的一种可能性。在这样做的过程中，法院正在制定欧盟关于司法独立和问责制的标准。也有迹象表明，公民关心法治，这凸显了促进公民发声的需求方倡议的重要性。总而言之，在当前的欧洲环境中，法治对公民、企业、政府和欧盟机构，尤其是欧盟法院来说，是高度可见和日益相关的。在这篇文章中，作者正在审查法院有关司法独立的决定、司法独立对国家立法者的影响、欧洲委员会对准入国的政策，以及加强对候选国进行真正司法改革的要求。因此，笔者强调了法院在建立欧盟司法独立和公正标准方面发挥积极作用的优势，以防止法治、权力分立和成员国司法地位的进一步侵蚀。
{"title":"ROLE OF COURT OF JUSTICE OF THE EUROPEAN UNION IN ESTABLISHMENT OF EU STANDARDS ON INDEPENDENCE OF JUDICIARY","authors":"M. Bošković","doi":"10.25234/eclic/11907","DOIUrl":"https://doi.org/10.25234/eclic/11907","url":null,"abstract":"Although the rule of law is globally and regionally increasingly in focus, there are various attempts to blur the separation of powers and weaken judiciary, its integrity and independence through institutional reforms and in individual cases. Judicial independence and integrity are under threat in several EU member states, including Hungary, Romania, and Poland. Judicial crises in the EU jeopardize essential principle of mutual recognition in judicial matters and free movement of goods, services, people and capital. The recent decision of the Irish high judge to refuse to extradite a suspected drugs trafficker to Poland due to concerns about the integrity of the Polish justice system, re-confirms the relevance of the rule of law for the EU and judgement of Court of Justice of EU (CJEU) in case LM, C216/18 PPU. Following Court of Justice decisions related to the Polish judiciary are relevant for shaping Court of Justice position on independence and impartiality of judiciary (i.e. judgment of 24 June 2019, Commission v Poland, C619/18; judgement of 19 November 2019, joined cases A.K. and Others v Krajowa Rada Sadownictwa, C585/18, C624/18 and C625/18). Backsliding on rule of law in the EU is a possibility that the Court of Justice of the European Union is seeking to prevent and mitigate. In doing so, the Court of Justice is establishing EU standards on independence and accountability of judiciary. There have also been signs that citizens care about the rule of law, highlighting he importance of demand-side initiatives that foster citizen voice. In all, in the current European environment, the rule of law is highly visible and increasingly relevant for citizens, businesses, governments, and EU institutions, especially EU Court of Justice. In the article author is reviewing Court of Justice decisions relevant for the independence of judiciary, its influence on national legislators, European Commission policy towards access countries and strengthening requests for genuine reform of justice in candidate countries. Consequently, author emphasized the advantages of active role of Court of Justice in establishment of EU standards on independence and impartiality of judiciary in order to prevent further erosion of rule of law, separation of powers and position of judiciary in the member states.","PeriodicalId":448091,"journal":{"name":"EU 2020 – lessons from the past and solutions for the future","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125426100","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 paper analyses the possibilities of detainees to effectively exercise their defence rights during the pre- trial detention. Deprivation of liberty presupposes limited abilities of detainees to move and to take actions and, consequently, it may affect their possibilities to exercise the rights guaranteed by the law. Hence, a correlation between material conditions of detention and defence rights can be perceived. Inadequate detention conditions, in addition to leading to inhuman and degrading treatment, can also pose an obstacle for the full enjoyment of procedural rights, primarily the right of access to a lawyer, the right to have adequate time and facilities for the preparation of defence. In this regard, detention conditions can lead to the violation of the right to a fair trial. On the other hand, effective exercise of the right to access to a lawyer is one of the most important guarantees of protection against torture, inhuman and degrading treatment during detention. Therefore it is necessary not only to legally prescribe the special procedural guarantees for suspects and accused deprived of their liberty but also to provide such material conditions, which are often limited and insufficient within the prison systems, for the enforcement of the pre-trial detention in a way which will enable the full and efficient exercise of the defence rights guaranteed by the law. In the paper, the author analyses the procedural guarantees for detainees which are enshrined within the EU directives on procedural rights of suspects and accused persons and the ECtHR case law in the light of detention conditions. Special attention in paper has been given to the Croatian law and an assessment of the procedural rights and detention conditions in pre-trial detention within the national legal framework and case law.
{"title":"PROCEDURAL RIGHTS OF SUSPECTS AND ACCUSED PERSONS DURING PRE-TRIAL DETENTION – IMPACT OF DETENTION CONDITIONS ON EFFICIENT EXERCISE OF DEFENCE RIGHTS","authors":"Marija Pleić","doi":"10.25234/eclic/11914","DOIUrl":"https://doi.org/10.25234/eclic/11914","url":null,"abstract":"The paper analyses the possibilities of detainees to effectively exercise their defence rights during the pre- trial detention. Deprivation of liberty presupposes limited abilities of detainees to move and to take actions and, consequently, it may affect their possibilities to exercise the rights guaranteed by the law. Hence, a correlation between material conditions of detention and defence rights can be perceived. Inadequate detention conditions, in addition to leading to inhuman and degrading treatment, can also pose an obstacle for the full enjoyment of procedural rights, primarily the right of access to a lawyer, the right to have adequate time and facilities for the preparation of defence. In this regard, detention conditions can lead to the violation of the right to a fair trial. On the other hand, effective exercise of the right to access to a lawyer is one of the most important guarantees of protection against torture, inhuman and degrading treatment during detention. Therefore it is necessary not only to legally prescribe the special procedural guarantees for suspects and accused deprived of their liberty but also to provide such material conditions, which are often limited and insufficient within the prison systems, for the enforcement of the pre-trial detention in a way which will enable the full and efficient exercise of the defence rights guaranteed by the law. In the paper, the author analyses the procedural guarantees for detainees which are enshrined within the EU directives on procedural rights of suspects and accused persons and the ECtHR case law in the light of detention conditions. Special attention in paper has been given to the Croatian law and an assessment of the procedural rights and detention conditions in pre-trial detention within the national legal framework and case law.","PeriodicalId":448091,"journal":{"name":"EU 2020 – lessons from the past and solutions for the future","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124904822","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 right to know one’s origins means the right to know one’s parentage, i.e. one’s biological family and ascendance and one’s conditions of birth. This right raises some of the hardest legal and ethical issues in the case of adopted children, but also in cases of abandoned or displaced children, children conceived by artificial insemination or of children born out of wedlock. This particular child’s right was increasingly debated in recent years, as it conflicts with the right of the biological parent to remain anonymous. The Article 8 of the European Convention on Human Rights, while ensuring respect and protection for private and family life, guarantees at the same time two opposing rights - the right to privacy and the protection of the personal data and the right to know one’s origins. This legal solution raises the question whether the right to know the origin in case of children who have reached a certain psycho-physical maturity should prevail when it comes into the conflict with the right of the biological parent to remain anonymous? Although the legal instruments protect both rights, in recent years there is aim to promote the child’s right to know their origin rather than the anonymity of the biological parents. To address the issue of conflict between those rights this paper aims to suggest ways in which rights can be balanced against each other to provide the principles guiding the enforcement of the child’s right to known his origin in practice.
{"title":"MODERN CHALLENGES IN THE IMPLEMENTATION OF THE CHILD’S RIGHT TO KNOW HIS ORIGIN","authors":"Barbara Preložnjak","doi":"10.25234/eclic/11944","DOIUrl":"https://doi.org/10.25234/eclic/11944","url":null,"abstract":"The right to know one’s origins means the right to know one’s parentage, i.e. one’s biological family and ascendance and one’s conditions of birth. This right raises some of the hardest legal and ethical issues in the case of adopted children, but also in cases of abandoned or displaced children, children conceived by artificial insemination or of children born out of wedlock. This particular child’s right was increasingly debated in recent years, as it conflicts with the right of the biological parent to remain anonymous. The Article 8 of the European Convention on Human Rights, while ensuring respect and protection for private and family life, guarantees at the same time two opposing rights - the right to privacy and the protection of the personal data and the right to know one’s origins. This legal solution raises the question whether the right to know the origin in case of children who have reached a certain psycho-physical maturity should prevail when it comes into the conflict with the right of the biological parent to remain anonymous? Although the legal instruments protect both rights, in recent years there is aim to promote the child’s right to know their origin rather than the anonymity of the biological parents. To address the issue of conflict between those rights this paper aims to suggest ways in which rights can be balanced against each other to provide the principles guiding the enforcement of the child’s right to known his origin in practice.","PeriodicalId":448091,"journal":{"name":"EU 2020 – lessons from the past and solutions for the future","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115205972","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 paper focuses on the Comprehensive Economic and Trade Agreement between Canada and the European Union and its Member States, signed in Brussels on 30 October 2016 (CETA), on the investor-state dispute settlement mechanism contained therein and its compatibility with the EU legal system. It analyses the question of autonomy of the EU legal system and the difficult relationship between the Court of Justice of the European Union (CJEU) and other international jurisdictions. It identifies the compatibility conditions of different dispute settlement mechanisms developed in the CJEU’s earlier case law; e.g. the allocation of powers fixed by the treaties founding the EU must not be affected, the primacy of EU law and its direct effect must be assured, the mechanism must preserve the role of national courts and tribunals to ensure the full application of EU law in all Member States, the CJEU’s exclusive jurisdiction to give binding interpretations of the EU law must be assured and any action by the international tribunal must not have the effect of binding the EU and its institutions, in the exercise of their internal powers. In its opinion 1/17, the CJEU softened its approach. The paper examines how different the Investment Court System under CETA is.
{"title":"INVESTMENT COURT SYSTEM UNDER CETA AND THE AUTONOMY OF EU LAW","authors":"Igor Materljan","doi":"10.25234/eclic/11901","DOIUrl":"https://doi.org/10.25234/eclic/11901","url":null,"abstract":"The paper focuses on the Comprehensive Economic and Trade Agreement between Canada and the European Union and its Member States, signed in Brussels on 30 October 2016 (CETA), on the investor-state dispute settlement mechanism contained therein and its compatibility with the EU legal system. It analyses the question of autonomy of the EU legal system and the difficult relationship between the Court of Justice of the European Union (CJEU) and other international jurisdictions. It identifies the compatibility conditions of different dispute settlement mechanisms developed in the CJEU’s earlier case law; e.g. the allocation of powers fixed by the treaties founding the EU must not be affected, the primacy of EU law and its direct effect must be assured, the mechanism must preserve the role of national courts and tribunals to ensure the full application of EU law in all Member States, the CJEU’s exclusive jurisdiction to give binding interpretations of the EU law must be assured and any action by the international tribunal must not have the effect of binding the EU and its institutions, in the exercise of their internal powers. In its opinion 1/17, the CJEU softened its approach. The paper examines how different the Investment Court System under CETA is.","PeriodicalId":448091,"journal":{"name":"EU 2020 – lessons from the past and solutions for the future","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132757401","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}
In administrative matters, parties enforce their rights and legal interests against obligations before the administrative authority of first instance; furthermore, they can file an appeal to the second instance if they deem decisions as illegal or as an injustice done. Exhaustion of the appeal is in most legal systems as well as according to Croatian (2009) and Slovenian (1999) General Administrative Procedure Acts ((G)APA) as a procedural prerequisite to file further courts action, also in a situation of administrative silence with a negative act fiction. Besides said national GAPAs, the paper addresses draft EU Regulation (2016) as an EU APA too, in order to provide a comparative analysis of various acts. The right to good administration requires that administrative acts be taken by EU administration among others pursuant to timeliness and efficient legal protection. Based on normative national law analysis and case study focus of this paper is put on the administrative appeal, including through the lenses of an access to court. Paper provides an insight in Croatian, Slovenian, and EU APAs in prominent matter since it addresses constitutional and international principles of sound public governance. Authors establish that Croatian and Slovenian GAPAs provide an appropriate legal ground to achieve common European standards, yet they seem too detailed and fragmented in several dimensions; hence, EU APA can serve as a role model of their modernisation.
{"title":"COMPARATIVE ANALYSIS OF AN ADMINISTRATIVE APPEAL IN CROATIAN, SLOVENIAN, AND EU LAW","authors":"Ana Đanić Čeko, P. Kovač","doi":"10.25234/eclic/11940","DOIUrl":"https://doi.org/10.25234/eclic/11940","url":null,"abstract":"In administrative matters, parties enforce their rights and legal interests against obligations before the administrative authority of first instance; furthermore, they can file an appeal to the second instance if they deem decisions as illegal or as an injustice done. Exhaustion of the appeal is in most legal systems as well as according to Croatian (2009) and Slovenian (1999) General Administrative Procedure Acts ((G)APA) as a procedural prerequisite to file further courts action, also in a situation of administrative silence with a negative act fiction. Besides said national GAPAs, the paper addresses draft EU Regulation (2016) as an EU APA too, in order to provide a comparative analysis of various acts. The right to good administration requires that administrative acts be taken by EU administration among others pursuant to timeliness and efficient legal protection. Based on normative national law analysis and case study focus of this paper is put on the administrative appeal, including through the lenses of an access to court. Paper provides an insight in Croatian, Slovenian, and EU APAs in prominent matter since it addresses constitutional and international principles of sound public governance. Authors establish that Croatian and Slovenian GAPAs provide an appropriate legal ground to achieve common European standards, yet they seem too detailed and fragmented in several dimensions; hence, EU APA can serve as a role model of their modernisation.","PeriodicalId":448091,"journal":{"name":"EU 2020 – lessons from the past and solutions for the future","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122481790","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}
Mostly due to negative demographic trends and unfavourable ratios between the inactive and active working population, prejudiced ideas against older people, that they are unproduc-tive and redundant, are contributing to discrimination and their exclusion. Although human rights should not diminish with age, we are nowadays witnessing discriminatory practices against the older persons considering employment, social protection and access to services. The social construct of ‘ageism’, according to which older people are treated differently because of the attitudes relating to their age, is not a contemporary idea. Rather, it is a human rights issue that has existed throughout history. Examining the extremely positive and negative descriptions of elderly in ancient Roman literature, the first part of this article contains an analysis of the legal and social position of older people and, consequentially, their contribution to society. Focusing on the concept of ‘active ageing’, specifically propagated by the Article 25 of the Charter of Fundamental Rights, the second part of the paper will tackle the existing efforts of the EU in the struggle against ageism. Although Croatian national legislation is largely aligned with the European acquis, due to the large margin of discretion left to Member States, a systematic approach to care for the elderly is still lacking, not to mention its effective implementation. Finally, by exploring the experiences from the past and reflecting on the current EU policy advancements, the goal of this paper is to facilitate a vital shift from the paradigm of the old people as a burden of passive service recipients towards active participants in society.
{"title":"ROMAN VIEWS ON ‘ACTIVE AGEING’ – LESSONS AGAINST AGEISM","authors":"Nikol Žiha, Marko Sukačić","doi":"10.25234/eclic/11946","DOIUrl":"https://doi.org/10.25234/eclic/11946","url":null,"abstract":"Mostly due to negative demographic trends and unfavourable ratios between the inactive and active working population, prejudiced ideas against older people, that they are unproduc-tive and redundant, are contributing to discrimination and their exclusion. Although human rights should not diminish with age, we are nowadays witnessing discriminatory practices against the older persons considering employment, social protection and access to services. The social construct of ‘ageism’, according to which older people are treated differently because of the attitudes relating to their age, is not a contemporary idea. Rather, it is a human rights issue that has existed throughout history. Examining the extremely positive and negative descriptions of elderly in ancient Roman literature, the first part of this article contains an analysis of the legal and social position of older people and, consequentially, their contribution to society. Focusing on the concept of ‘active ageing’, specifically propagated by the Article 25 of the Charter of Fundamental Rights, the second part of the paper will tackle the existing efforts of the EU in the struggle against ageism. Although Croatian national legislation is largely aligned with the European acquis, due to the large margin of discretion left to Member States, a systematic approach to care for the elderly is still lacking, not to mention its effective implementation. Finally, by exploring the experiences from the past and reflecting on the current EU policy advancements, the goal of this paper is to facilitate a vital shift from the paradigm of the old people as a burden of passive service recipients towards active participants in society.","PeriodicalId":448091,"journal":{"name":"EU 2020 – lessons from the past and solutions for the future","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130140307","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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