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The Influence of the Acceleration of Time on Law. Law and Legal Culture in the Information Age

Wpływ przyspieszenia czasu na prawo.

Author(s): Tymoteusz Marzec / Language(s): Polish / Issue: 06/2013

Keywords: law; legal culture; postmodernism; inflation of law; time

In this article, I would like to point out some of the changes that have taken place in modern society, attempt to find new features of society in the positive law, show their impact on the legal system, and outline some of the challenges for the modern law, which have led to the emergence of a completely new type of society - often called the post-modern society. The paper zooms in on a select segment of the changes from a particular perspective: it looks at both society and the law in the context of their new operation in time. Currently, we can notice the manifestation of the acceleration of the pace of life in almost every expression of our culture. What is, therefore, the current state of the law? Has it also sped up? What is the future of the law in this context? These are the questions I try to answer in this article.

A ‘Secret Garden’ of Conforming Interpretation – European Union Law in Polish Courts Five Years after Accession

A ‘Secret Garden’ of Conforming Interpretation – European Union Law in Polish Courts Five Years after Accession

Author(s): Aleksandra Wentkowska / Language(s): English / Issue: 12/2009

The cooperation process between national courts and the European Court of Justice aims at attaining uniformity in the interpretation of Community law. Therefore, Polish courts must first of all accept the necessity of applying norms that do not belong to the national legal system, and moreover, unconditionally accept the method of sympathetic interpretation, which results from the principle of the supremacy of Community law over the national legal order. Therefore, decision making on issues related to interpretation (in terms of ensuring the uniform interpretation of Community law) and validity of norms (in terms of ensuring the effectiveness of Community law) have constituted the most frequent challenges for Polish judicial practice since the date of accession five years ago.

EUROPEAN COMPANY LAW – A REFLECTION OF THE DEVELOPMENT OF EUROPEAN IDENTITY IN THE EUROPEAN UNION AND IN BOSNIA AND HERZEGOVINA

EVROPSKO KOMPANIJSKO PRAVO – ODRAZ RAZVOJA EVROPSKOG IDENTITETA U EVROPSKOJ UNIJI I BOSNI I HERCEGOVINI

Author(s): Ivana Grubešić / Language(s): Bosnian / Issue: 07/2011

Keywords: European company law; european collective identity; national identity; single market; freedom of movement; single economic space.

The attempts to unite European lands and peoples with a view to develop European identity harking back centuries were concluded with the foundation of the European Steel and Coal Community in the 1950s. Necessity to join the postwar Europe thus rise to the status of an equal to the economies of USA and SSSR, the superpowers of the era, led to laying the first foundation for the further development of the modern European collective identity – the single European market. The insecurity incumbent in the national markets at that time induced the states to create the single market based on the four freedoms of movement, still taking into account the diversities and discrepancies between the national systems. The need for people to move and conduct business in a free manner regardless of the national borders and for free movement of capital, goods and services would not be entirely satisfied without also enabling companies to be founded in the likewise manner. Founded in the freedom to establish companies freely, and the recognition these companies received from all member states, respectful of the right to competitiveness, the 1970s in Europe can be distinguished by the ascent of European company law. Just as the European identity is constituted on the differences of national traditions, so has the European company law, as a basic pillar of European identity, developed respecting the differences of the economic systems, always striving for the optimal response, provided by the national legislature, to the current issues. The thirty-year development of the European company law points to the application of different legal remedies in accomplishing a single goal - creating an awareness of a unified Europe marked by the freedom of an individual to live and do business unimpeded by the restrictions the national borders pose to that ideal. With the same ideal in mind we are moving towards a modernization of European company law, as intended buy the Action plan from 2003 and 2006. This will be a step in the direction of further simplification and reducing the gap between the national regulations in the field of European company law. Aiming to create a single economic space as a prerequisite to the EU membership, Bosnia and Herzegovina is obliged to harmonize the national company law with the existing European company law. A gradual implementation of the guidelines and measures defined by the Accession and stabilization agreement will provide the business entities in Bosnian market with the necessary competitiveness to efficiently and successfully operate in the single European market creating the foundation for generating the European identity in domestic markets.

Recognition and enforcement of the European protection order in the Romanian law. Some critical opinions. De lege ferenda proposals

Recognition and enforcement of the European protection order in the Romanian law. Some critical opinions. De lege ferenda proposals

Author(s): Ion Rusu / Language(s): English / Issue: Special/2017

Keywords: the competent Romanian authorities; recognition procedure; reasons for rejecting the request; the duration of the measure;

The current study examines the provisions of Law no. 151/2016 regarding the competences and concrete actions of the Romanian judicial authorities for the recognition and enforcement of a European protection order, sent for execution by a competent authority of another Member State. The novelty is the conducted examination, the critical opinions and de lege ferenda proposals. The paper is a continuation of other papers that relate to the complex activity of international judicial cooperation in criminal matters and the involvement of the Romanian legislator in transposing into the national law of the European legal instruments in the field. Given its structure and the way in which it has been designed, the paper can be useful to academics, practitioners in the field and to the Romanian legislator in terms of completion and modification of the legislative act under examination.

Law and morality in contemporary philosophy of law

Moral i pravo u savremenoj pravnoj filozofiji

Author(s): Dejan Vuk Stanković / Language(s): Serbian / Issue: 19-20/2002

Keywords: law; morality; identity; separation; polarity;

In this paper, author tries to analyze complex character of the relation between law and morality in contemporary law philosophy. There are three approaches to the issue of relation between law and morality: natural law theory (identity thesis), positivist (separation thesis) and Anglo-American analytical jurisprudence (polarity thesis). The identity thesis-law and morality are basically identical, although basic principles of morality are subordinated to the positive legal rules; the separation thesis-law and morality are quite different system of norms; positive legal rules are completely deprived of any moral content; Polarity thesis – law and morality are different systems of norms which complement to each other. The polarity thesis is exemplified in theories of Herbert Hart and Ronald Dworkin’s. At the logical level, polarity thesis overcomes and specifically synthesizes abstract character and reductionism of identity and separation thesis. At the socio-historical level, the polarity thesis is result of historical development of legal and political institutions.

PRINCIPLE OF NON-RETROACTIVITY OF CRIMINAL LAW ACCORDING TO ARTICLE 7 OF THE EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS

PRINCIPLE OF NON-RETROACTIVITY OF CRIMINAL LAW ACCORDING TO ARTICLE 7 OF THE EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS

Author(s): Bogdan Vîrjan / Language(s): English / Issue: XI/2012

Keywords: non-retroactivity of criminal law; European convention; European court; European case-law

The Convention for the protection of human rights and fundamental freedoms lays down a number of civil and political rights and freedoms and sets up a system of guarantee and compliance by the signatory states of the undertaken commitments. Being adopted under the aegis of the European Council, the Convention proved to be an effective method to protect the rights regulated by it, as well as by its supplementary protocols. The effectiveness of the Convention provisions results both from the number and the quality of the human rights it protects and mainly from the judicial mechanism whereby the control of the observance of such rights by the national authorities of the contracting states is ensured. This paper analyses the principle of non-retroactivity of criminal law, regulated by article 7 paragraph 1 second sentence of the European convention, under which ”nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed”, as well as the supporting clause of the second paragraph of the same article, under which “this article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations”. Furthermore, this paper covers the manner in which these Convention texts are transposed into the laws of the European states, but particularly the meaning given to the principle of non-retroactivity of criminal law and to the exception to this principle in the case-law of the European Court of Human Rights.

THE RIGHT OF ACCESS TO FIREARMS OF POLISH CITIZENS IN THE LIGHT OF LAW AND SAFETY

PRAWO DOSTĘPU DO BRONI PALNEJ OBYWATELI POLSKICH W ŚWIETLE UNORMOWAŃ PRAWNYCH I BEZPIECZEŃSTWA

Author(s): Wojciech Depa-Wasiłek / Language(s): Polish / Issue: 27/2019

Keywords: firearms;access to weapons;permission for weapons;law

The article presents the problem related to the right to firearms by citizens of theRepublic of Poland in the context of safety and current legislative solutions. It showshow the right to own firearms functions, what is the historical background and what isimportant for security in the United States, Switzerland and the Czech Republic.Attention was drawn to the restrictive policy of the Polish legislator regarding this law.The final part of the article posed a question whether the difficulties in obtainingweapons by Polish citizens could be explained by the possible fear of the legislator aboutthe increase in crime with the use of firearms, and thus concern for the safety of citizens.The answer was to synthetically and logically explain the necessity to change the currentlegal status. To show the problem, a map was presented where Poland was at the end ofthe list of European countries in terms of the number of weapons per 100 citizens.

A Systematic Review of Law & Technology Master Programs in Selected European Union Universities (pilot research report)

A Systematic Review of Law & Technology Master Programs in Selected European Union Universities (pilot research report)

Author(s): Paulius Astromskis / Language(s): English / Issue: 1(19)/2019

Keywords: Technology Law; Legal Technologies; Law & Tech; LegalTech; Legal Education;

This pilot research provides a systematic review of Law & Tech master programs in selected European Union (EU) universities. The systematic multi-stage sampling process completed the list of 38 Law & Tech master programs, offered by 35 leading universities in 11 high-tech EU member states, for extraction and grouping of almost 600 subjects offered in these programs. This analysis exposed the frequency of subject appearance in the sample of programs, followed by the choice of 16 most frequent subjects using the rule of thumb for a hypothetical Law & Tech master program. Moreover, this analysis revealed the need of inquiry into (i) the alternative practices of technology related skills infusion into the law curriculum; and (ii) variables that impact the choices of Law & Tech program’s structure and curriculum. Following these conclusions, universities in the Netherlands were purposively selected for content analysis of their Law & Tech program’s descriptions. Such inquiry enabled categorization of arguments that supports radical inclusion of technology’s domain into law’s curriculum, thus completing the list of key variables for further research on Future of Legal Education.

THE INTERNATIONAL LEGAL ORDER AND THE EUROPEAN UNION LEGAL ORDER - IMPLICATIONS IN MODERNIZATION OF RULE OF LAW

THE INTERNATIONAL LEGAL ORDER AND THE EUROPEAN UNION LEGAL ORDER - IMPLICATIONS IN MODERNIZATION OF RULE OF LAW

Author(s): Emilian Ciongaru / Language(s): English / Issue: IX/2015

Keywords: rule of law; globalisation of the law and of justice; legal order; European Union law; the legal systems;

Through the globalisation of the law and of justice at an international level, the premises for the consecration of a new global order are laid-down and implicitly, of a global procedural law, which will prevail precisely because of the need to establish and maintain social peace worldwide and also, a certain attraction between juridical cultures and orders and an attempt to improve the differences between the legal systems. The rules of a legal order at an international level are created by agreement of the sovereign states that have equal rights. The free expression of the States’ agreement is characterises the implication thereof in the international normative process. From a juridical perspective, the European Union was set-up as a new international law legal order, for the benefit of which the States limited their sovereign rights, although only in specific fields, and the subject matters of which are not only the States, but also the citizens thereof. Between these two orders there is a certain logical and theoretical unity, leaning towards the legal monism, which makes the international law prevalent over the European Union law and with concept of the rule of law.

Principle of the Rule of Law in the Recent Design of the European Union. Challenges Regarding the National Sovereignty

Principle of the Rule of Law in the Recent Design of the European Union. Challenges Regarding the National Sovereignty

Author(s): Ioana-Cristina Vida / Language(s): English / Issue: VI/2018

Keywords: rule of law; conceptualization; sovereignty; European Union;

The rule of law has become, in recent years, a symbol of the democratic States of the European Union. The symbol of the rule of law began to represent a paved road with complementary principles such as the fight against corruption to achieve economic and social prosperity. In the struggle of highlighting the consequences arising from the alleged violation of the rule of law, the legal conceptualization of this process appears to be topical. In light of recent developments at European Union level, we are wondering whether the concept of the rule of law must be rethought at national level.In this study we aim to analyze at the legitimacy and legality of the European Union's 'rule of law' vision and to observe whether the national constitutional regulation of the rule of law reflects in its contents and values of the European Union's understanding concerning this topic. We aim to find out whether the rule of law is the faithful reflection of the strict and severe application of the law, of the independent justice, of total transparency, of economic stability.

EUROPEAN SUBSTANTIVE LAW PRINCIPLES THAT GOVERN EU’S ACTION IN THE COMMON SECURITY AND DEFENCE FIELD

EUROPEAN SUBSTANTIVE LAW PRINCIPLES THAT GOVERN EU’S ACTION IN THE COMMON SECURITY AND DEFENCE FIELD

Author(s): Laura Simona Todoruţ / Language(s): English / Issue: XIII/2019

Keywords: European Union; European law principles; external action; common security and defence;

The fundamental characteristic of the European Union law principles is precisely that it encompasses the typicality of the European law in relation to other judicial systems, at international and state level. These principles represent, on the one hand, the expression of the fundamental values enshrined in the founding treaties of the organization, and on the other hand, they are a reflection of the case law of the Court of Justice of the European Union and are at the foundation of the whole European legal system. The legitimacy of placing these principles at the core of the European security and common defence policies is given by the status of the European Union as a subject of law. The importance of identifying and shaping the principles that govern European construction, and consequently its policies of common security and defence, is all the more justified if we consider the increasingly active role that the EU has assumed in the last years in managing the 'globalized world'. Starting from these premises, the present article aims to analyze the influence that the principles of European law have on the European security and common defence policies.

Hard law versus soft law in international law

Hard law versus soft law in international law

Author(s): Felicia Maxim / Language(s): English / Issue: VIII/2020

Keywords: hard law; soft law; Treaty; custom; recommendation;

The use of hard law and soft law instruments in international relations has led to the need to clarify the relationship between them, the advantages and disadvantages of each category of instruments, but also their effectiveness in the relations between the subjects of international law. In the doctrine of international law, the term hard law refers to binding international legal instruments, while the term soft law includes non-binding international legal instruments. In the analysis and delimitation of the two concepts (hard law and soft law) we start from the research of the sources of international law, especially the content of Article 38 of the Statute of the International Court of Justice (ICJ). However, research into traditional mechanisms for drafting international law, ie the list of sources of international law listed in Article 38 of the ICJ Statute, must take into account that they have not evolved at the same pace as international law. Therefore, a reassessment of traditional sources is needed.

Member States Liability in Damages for the Breach of European Union Law—legal Basis and Conditions for Liability

Member States Liability in Damages for the Breach of European Union Law—legal Basis and Conditions for Liability

Author(s): Agnė Vaitkevičiūtė / Language(s): English / Issue: 1/2011

Keywords: state liability in damages; infringement of EU law; recovery of damage; conditions for liability; conferment of rights to private parties; sufficiently serious breach; direct causal link; damage;

This article analyses the legal basics of the Member States liability in damages for the breach of European Union law and the conditions for liability. It is emphasized that the Member States liability in damages for the breach of European Union law has three different grounds—one direct legal background (Article 4 of the Treaty of the European Union) and two indirect basics—principles of direct effect and that of effectiveness of European Union law. The author subsequently examines the content of each condition for liability established in the practice of the Court of Justice of the European Union —the intention of the rule of European Union law infringed to confer rights on private parties, the sufficiently seriousness of the breach and the direct causal link between the breach and the damage. It is stated that in order to prove that a Member State is liable for the breach of European Union law, one more condition for liability should be established—a private party must prove that he has incurred particular damage. It is also highlighted that the second condition for the Member States liability in damages for the breach of European Union law —sufficiently seriousness of the breach—restricts the right of a private party to obtain compensation.

Application of the Principle of Good Governance in the Activities of the European Court of Human Rights

Application of the Principle of Good Governance in the Activities of the European Court of Human Rights

Author(s): Serhiy Melenko,Dan Paranyuk / Language(s): English / Issue: 2/2020

Keywords: law; state; individual; justice; the principle of Good Governance; human rights; state’s obligations; the European Court of Human Rights; administrative judiciary; the effectiveness of regulatory;

Based on the methodology of performing axiological and logical-gnoseological analysis of juridically significant factors, the article under discussion presents a partial investigation of the practical application of one of the most fundamental principles of state functioning in the field of human rights protection. The object of investigation in the paper is the way the European Court of Human Rights (ECHR) perceives, understands and interprets the principle of Good Governance in the course of implementing it in Court’s activities. The precedents, formulated and adopted by the ECHR frequently acquire the status of legal sources for the member states of the Council of Europe. Therefore, the judiciary bodies of these countries have to rely in their practice on the conclusions, the ECHR came to in the course of considering certain cases. Qualitively equal understanding and application of the above decisions is a cornerstone in forming a common European legal space, as well as plays a leading role in the field of human rights protection, guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 (hereinafter - the Convention) (Council of Europe, 1950). The principle of Good Governance is a complex notion. It directly or indirectly regards the rights and interests of both individuals (ensuring them certain rights and freedoms in a vast number of articles of the Convention) and social groups. This requires a complex analysis of the principle in both theoretical and practical aspects of its definition and application. Relying on the methodology of profound analysis of the axiological component of a certain legal phenomenon, like the content of some decisions of the Strasbourg Court, the authors of the article attempt to practically trace the implementation of the principle of Good Governance in the course of administering justice in Ukraine, as a member state of the Council of Europe. Therefore, the article under studies deals with the specifics of practical application of the principle of Good Governance in the ECHR activities, as well as with using precedent experience in the system of administrative judiciary of Ukraine.

DEFENDING THE FINANCIAL INTERESTS OF THE EUROPEAN UNION THROUGH CRIMINAL LAW INSTRUMENTS - IMPLEMENTATION IN ROMANIA

DEFENDING THE FINANCIAL INTERESTS OF THE EUROPEAN UNION THROUGH CRIMINAL LAW INSTRUMENTS - IMPLEMENTATION IN ROMANIA

Author(s): Daniela Cristina Valea / Language(s): English / Issue: 3/2020

Keywords: protection of the European Union's financial interests; administrative law instruments; criminal law instruments; Directive (EU) 210/1319; fraud;

The spread of the fraudulent phenomenon, both quantitatively and qualitatively (through the use of new and increasingly complex means of fraud), has led the European Union to take an increasingly firm position both by establishing structural and legal means of fight against fraud, as well as by raising the fight against tax fraud to the level of an objective taken on by the European Union. It has proved imperative for a more complex system to be outlined that would protect the European Union's financial interests, inclusively through criminal law instruments, given that protection through administrative instruments alone has proved insufficient. In shaping such a protection system, not only the legislative intervention of the European Union (referring to the adoption of Directive (EU) 2017/1371 as ultimate legislative document) is relvant, but also the case law of the European Union Court of Justice and the establishment of the European Public Prosecutor's Office.

THE RELEVANCE OF THE COURT OF JUSTICE OF THE EUROPEAN UNION IN THE DEVELOPMENT OF EUROPEAN LAW

ZNACZENIE ORZECZNICTWA TRYBUNAŁU SPRAWIEDLIWOŚCII UNII EUROPEJSKIEJ W PROCESIE ROZWOJU PRAWA EUROPEJSKIEGO

Author(s): Władysław Czapliński / Language(s): Polish

INTERPRETATION AND APPLICATION OF EUROPEAN UNION LAW BY THE COURT OF INTERNATIONAL COMMERCIAL ARBITRATION ATTACHED TO THE CHAMBER OF COMMERCE AND INDUSTRY OF ROMANIA

INTERPRETATION AND APPLICATION OF EUROPEAN UNION LAW BY THE COURT OF INTERNATIONAL COMMERCIAL ARBITRATION ATTACHED TO THE CHAMBER OF COMMERCE AND INDUSTRY OF ROMANIA

Author(s): Daniel - Mihail Şandru / Language(s): English / Issue: 01/2018

Keywords: international commercial arbitration; International Commercial Arbitration Court attached to the Romanian Chamber of Commerce and Industry; Romania; arbitration; case law;

The interpretation and application of the European Union law, including the case-law of the Court of Justice of the European Union, by the arbitral tribunals is a subject which is little approached. This is due on the one hand as a result of the confidentiality of the arbitration awards and on the other hand to the specificity of the legal order of the European Union and of the International commercial arbitration. This article aims to illustrate the interpretation and application of the European Union law by the International Commercial Arbitration Court attached to the Romanian Chamber of Commerce and Industry as it emerges from the recent arbitration awards.

The genesis of the EU’s rule of law mechanisms applied against Central European Member States

The genesis of the EU’s rule of law mechanisms applied against Central European Member States

Author(s): Ákos Bence Gát / Language(s): English / Issue: 2/2021

Keywords: rule of law; European Union; Central Europe; European institutions; institutional power

European rule of law criticism towards some Central and Eastern European Member States led European institutions to put in place several instruments which aim at controlling EU countries in the name of the rule of law. The analysis of each instrument as well as of their interaction shows that their structure and workings differ depending on the institution which created them, and generally tend to increase the political and institutional power of the creating institution.

Protocol no.16 to the European Convention on Human Rights and Its Implementation through the Law no. 173/2022

Protocol no.16 to the European Convention on Human Rights and Its Implementation through the Law no. 173/2022

Author(s): Mariana Grădinescu / Language(s): English / Issue: 15/2022

Keywords: Protocol 16 European Convention on Human Rights; advisory opinion; institutionalization of dialogue; designated High Courts; harmonizatio

The idea of harmonization of national law with conventional law generated the necesity of finding an instrument to facilitate this dialogue. Protocol no. 16 to the European Convention on Human Rights created a new path towards the cooperation between national courts and the European Court, institutionalized the dialogue between them, with the purpose of ensuring a unitary jurisprudence regarding the conventional rights. Although consultative, the opinion emitted by the Court will ensure guidance for national courts regarding the interpretation and implementation of conventional rights.

The Formation of English-Language Lexical Competence of Application of the Conditionality Mechanism Concerning the Rule of Law in the European Union

The Formation of English-Language Lexical Competence of Application of the Conditionality Mechanism Concerning the Rule of Law in the European Union

Author(s): Crina Mihaela Verga / Language(s): English / Issue: 2/2023

Keywords: rule of law; conditionality mechanism; European Union; Poland; Hungary;

The paper focuses first on the concept of “rule of law” and its requirements. The legislative framework of the European Union on the conditionality mechanism on the rule of law is analyzed in detail. The last part of the exposition concerns the effective application of the legislation ensuring the protection of the European budget in case of violation of the principles of the rule of law by a Member State. In this regard, some judgments of the Court of Justice of the European Union are commented on, given by it in a few cases involving Hungary and Poland, on the one hand, and the European Parliament and the Council of the European Union, on the other part. The purpose of this article is to highlight the complexity and the very special importance of the concept of the rule of law, essential value expressis verb is consecrated, to analyze the specific legislation in the field existing at the level of the European Union. Finally, the shortcomings of the Member States in respecting the principle examined are highlighted; in this respect, several judgments of the Court of Justice concerning systematic infringements of the rule of law by some Member States of the European Union are analyzed. The historical and the comparative methods are used in this presentation. The article is of particular importance to the European Union, to the experts in the field, but especially to the Member States of the European Union, which have undertaken to take over and give priority to its specific legislation by joining this regional organization. Although Poland and Hungary have been convicted for the systematic violations of the rule of law, they have not remedied their situation, despite the sanctions applied.