EU and comparative law issues and challenges series (ECLIC)

ADDRESSING WRONGFUL CONVICTIONS IN CROATIA

Damir Primorac — 2024-07-24

This paper addresses the intricate challenges of genetic privacy in criminal investigations, particularly within the Croatian context. Conducted by the Croatian Innocence Project, workshops emphasized key issues like DNA material handling, databasing, and the need for legal framework improvements and further research on this topic. The findings of several cases of the ECtHR underscored the risk of miscarriages of justice when genetic privacy is neglected. The paper explores genetic privacy through three elements: treatment of genetic materials, forensic errors, and DNA databasing. Analyzing European Court of Human Rights cases and trends in the U.K., U.S., and E.U., it provides insights to enhance Croatia's legal framework. The study aims to demonstrate the delicate balance between genetic privacy in handling genetic data and effective criminal prosecutions.

SOME ASPECTS OF PLEA AGREEMENT IN CROATIAN MISDEMEANOUR PROCEEDINGS IN DOMESTIC VIOLENCE CASES

Ante Novokmet — 2024-07-24

This paper is dedicated to the issue of violence against women and domestic violence in the context of the plea agreement of the parties and the procedural position of the victim in these proceedings. Therefore, this paper first analyses the European legal standards that weave the positive legal basis for the limitation of alternative ways of solving cases in the domain of domestic violence. The two pillars of the Convention's supervisory mechanism are then considered, which ensure the effective implementation of the proclaimed standards, with special reference to the results of the evaluation of the legal systems of the member states of the Convention from the perspective of the victim's right to effective investigation and the prohibition of alternative dispute resolution processes in the context of entering into plea agreements in cases of violence against women and domestic violence. Finally, the current normative framework of the Misdemeanour Act on the procedure for entering into a plea agreement and sanction is critically analysed, shortcomings and inconsistencies of the current procedural solutions are pointed out, and proposals are made for the future aimed at reviving international legal standards in the Croatian Misdemeanour Act.

THE INTERCONNECTION OF THE RULE OF LAW, EUROPEAN CONVENTION ON HUMAN RIGHTS PRINCIPLE OF LEGALITY, AND ARTICLE 7 OF THE ECHR

Zrinka Erent Sunko — 2024-07-24

This paper will focus on the intricate interplay, the link between the rule of law, the principle of legality in a broader sense, and the principle of legality in a narrower sense (stricto sensu) contained in Article 7 (no punishment without the law, or nullum crimen, nulla poena sine lege) of the European Convention on Human Rights (ECHR), particularly its elements of foreseeability and accessibility. These three pillars collectively shape legal systems, ensuring justice, protecting human rights, and preventing the arbitrary exercise of power. This study's guiding concept and historical anchor is the rule of law and its connection to the principle of legality. Through a legal and historical analysis, the research seeks to define the core principles of the rule of law and trace its historical trajectory. Understanding the historical context illuminates how the rule of law has evolved, leading to the establishment of transparent, fair, and accountable legal systems. The research investigates how the ECtHR interprets and implements the principle of legality, focusing on accessibility and foreseeability, and the place and role of the judicial safeguards in connection to these two elements of legality. The authors seek to comprehend the ECtHR's scope and interpretation of these principles. In addition to legal analysis, the research incorporates a qualitative approach by reviewing relevant ECtHR case law on Article 7 ECHR and assessing its scope and impact. Therefore, the study applies the legal-historical and qualitative statistical methods, focusing on case studies of specific ECtHR cases that are significant in light of legalities in the broader sense and stricto sensu (Article 7).

DEPRIVATION OF LIBERTY IN CROATIAN MISDEMEANOUR PROCEEDINGS - APPLICATION OF EUROPEAN DETENTION AND PENITENTIARY STANDARDS

Marija Đuzel — 2024-07-24

The paper addresses the issue of deprivation of liberty in misdemeanour proceedings in the context of both pre-trial detention standards and penitentiary standards set out in the practice of the European Court of Human Rights and the documents of the European Union. The fundamental human right to liberty can be restricted in misdemeanour proceedings in accordance with the Misdemeanour Act of the Republic of Croatia, following a police arrest or based on a court decision on detention to ensure the defendant's presence. The paper aims to analyse material and procedural conditions for the arrest and detention, and the conditions for the execution of both the detention measure and the prison sentence imposed in misdemeanour proceedings within the Croatian prison system.

In addition to the rich jurisprudence of the European Court of Human Rights, which has been developing and strengthening detention standards and the rights of prisoners for decades, the past decade has been marked by intensive activities of the European Union in matters related to persons deprived of their liberty in criminal proceedings. Considering that the issue of deprivation of liberty in misdemeanour proceedings has not been systematically addressed in Croatian literature, the paper will particularly analyse how these standards established in binding and non-binding legal instruments apply to and affect issues related to deprivation of liberty in Croatian misdemeanour proceedings.

THE DANGER OF ORGANIZED CRIME IN THE AREA OF FALSIFICATION OF MEDICINES AND MEDICAL PRODUCTS (PROFIT VS. RIGHT TO HEALTH)

Nina Mladinić — 2024-07-24

Falsification of medicines and medical products as major risk to human life and health is new global threats facing the international community. By its nature, counterfeiting medicines and medical products as a very lucrative "business" falls under the term of organized crime. Precisely because of the large profits it is considered to be a new danger and one of the priorities for all countries in the fight against organized crime, especially because of its role in financing of terrorism. In the phenomenology of organized crime, represented by criminal associations, of the so-called adaptable or flexible type, the participation of counterfeiting and falsification of medicines and medical equipment is taking on an increasing share. In these organized activities legal entities are increasingly involved, which are companies that, due to profit, have no regard for what most the important goods for the individual or society are. Fake pharmaceutical products endanger not only public and individual health, but also the economy, because they "feed a parallel economy". A global problem is the illegal sale of counterfeit or fake medicines and medical products through websites that are difficult to detect or are the result of fraud by manipulating corporate websites. Although this trade has previously been recognized as a growing danger to human health, the pandemic of the disease COVID-19 has brought "to the light of day" countless glaring cases of organized trade in counterfeit medicines and, moreover, various fake low-quality medical equipment as new opportunities for profit. Enormous quantities of such equipment (protective masks, vaccines, disinfectants, home tests, antimalarial drugs, etc.) have appeared in different modus operandi of criminal trade, from fraud in large shipments, online sales of equipment with fake labels to direct package delivery. The expansion of the online trade in counterfeit pharmaceutical products through the Internet space of the Dark Web has significantly developed organized crime as the so-called "mafia super business". Moreover, illegal and legal markets are often intertwined in many ways. Although international legal frameworks have been established with bodies to combat very dangerous forms of transnational organized crime, such as Interpol, Europol, OLAF, etc., there are a number of difficulties in detecting and prosecuting illegal trade in counterfeit and fake medicines and medical products, especially in developing countries. Given that legal companies are also engaged in this trade, as direct traders or intermediaries, and that the connections between criminal networks facilitate the infiltration of such medical equipment into the legal supply and sales chain, in detection operations it is necessary, in addition to the police, to include the participation of customs, tax, inspection and health authorities. From the perspective of legislation and jurisprudence, this is a demanding challenge for the rule of law and a great risk for fundamental human rights, because the scale of trade, the development of the illegal market and the cross-border cooperation of organized criminal networks with counterfeit medicines and medical equipment represent a significant public health problem. From the perspective of public health danger and global security the problem is so worrying that it has led to the idea of declaring this crime an international crime. This paper will include a presentation of legal frameworks for combating counterfeiting medicines and medical products, as well as the operations of various bodies undertaken with the aim of prosecuting perpetrators. The goal of the treatment of criminal liability in this paper is the investigation of the problems of detection and suppression of an organized network of production and distribution medical counterfeits.

THE PRINCIPLE OF MUTUAL TRUST IN JUDICIAL COOPERATION

Ena Gotovuša — 2024-07-24

The principle of mutual recognition of judicial decisions among Member States was proclaimed as the cornerstone of judicial cooperation in criminal matters at the Tampere meeting in 1999. The implementation of this substantial and legally binding principle of EU primary law, since the entry of the Lisbon Treaty, is unattainable without a high level of mutual trust among Member States. The concept of mutual trust, crucial for enacting the principle of mutual recognition in criminal matters between Member States, lacks precision, yet the jurisprudence of the CJEU to some extent clarifies its boundaries. Starting with the logical presumption that all Member States, as outlined in the TEU, share common values of the European Union, including the rule of law and respect for human rights, a high level of mutual trust between Member States should be unquestionable. Consequently, judicial cooperation in criminal matters should operate seamlessly. However, CJEU decisions regarding the implementation of legal instruments of secondary EU law, based on principle of mutual recognition, such as the European Arrest Warrant (EAW) and the European Investigation Order (EIO), challenge this presumption. In the paper, the author scrutinizes CJEU jurisprudence, investigating shifts in stance on whether the principle of mutual trust constitutes an irrebuttable or rebuttable presumption in EU law. Special consideration is given to questions that arise in both cases. The author examines into pro and contra arguments of mutual trust as irrebuttable or rebuttable presumption in EU law, and its effects. Firstly, from the aspect that mutual trust between Member States, as irrebuttable presumption, reaffirms supremacy of secondary EU law and consequently primacy of EU law over national laws of Member States. Secondly, if the mutual trust between Member States in criminal matters is a rebuttable presumption, the decisions of CJEU show weak points of EU law in this area and they should be used as corrective measure to achieve overall aim of European Union: shared common values. In the paper, author emphasizes that all actions undertaken by EU are not strictly legal nature, but rather they are influenced by political decisions.

THE DAYTON CONCEPT OF PERFORMING LEGISLATIVE AND OTHER FUNCTIONS OF THE PARLIAMENTARY ASSEMBLY OF BOSNIA AND HERZEGOVINA

Zlatan Begić — 2024-07-24

Bosnia and Herzegovina is a State whose current constitutional solutions are not the result of an effort to ensure basic democratic principles regarding the way of election and functioning of the institutions of the system, but are the result of an effort to establish and ensure peace through the Peace Agreements. However, today - almost thirty years after the entry into force of the General Framework Agreement for Peace in Bosnia and Herzegovina, such constitutional solutions have proven to be an insurmountable obstacle to, in the first place, the realization of the rule of law and development of effective political democracy, that is, to the fulfillment of the necessary conditions on the path to European integration. The constitutional system of Bosnia and Herzegovina, as it is well known, is interwoven with norms of a discriminatory nature that are not in accordance with the European Convention and its protocols, which has resulted in several judgments of the European Court of Human Rights in Strasbourg. It is a matter of severe discrimination on an ethnic basis in domain of the electoral rights of citizens, which is visible at first glance. Maintaining such a state of affairs and not implementing the judgments of the European Court of Human Rights, despite the fact that Bosnia and Herzegovina has ratified the European Convention - and especially its Protocol 12 - along with other ratified protocols, as well as the fact that according to the Constitution of Bosnia and Herzegovina, the above mentioned instruments are the part of the legal system of Bosnia and Herzegovina Herzegovina, represents an insurmountable obstacle for the serious approach to fulfilling other conditions from the European integration process. In this place, it comes to the unequal value of the votes and discrimination within the decision-making process in the Parliamentary Assembly of Bosnia and Herzegovina (which is not visible at first glance) and - in the first place, through the so-called entity voting in both Houses of this representative body (House of Representatives and House of Peoples). Thanks to the Dayton constitutional solutions that produce a multiple inequality of the value of votes of MPs of the House of Representatives and delegates of the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina, along with other deviations, any serious approach to fulfilling the conditions of the European integration process is impossible, the violation of the rule of law has become a constant phenomenon, and all this it has a very harmful effect on the principle of effective political democracy to the point of its complete cancellation. This paper contains considerations regarding the procedures of execution the functions of the Parliamentary Assembly of Bosnia and Herzegovina, along with an analysis of the key causes of delays in fulfilling the conditions of the European integration process based on valid norms that produce an unequal value of the votes in the decision-making process of the Parliamentary Assembly of Bosnia and Herzegovina, but also in terms of violations generally accepted democratic standards of a legal nature that refer to the election of the Houses of this representative body, their mutual relationship and overall position. Due to the multiple inequality of vote and discrimination in the decision-making process of the House of Representatives of the Parliamentary Assembly of BH - as a directly elected House, and in relation to the delegates of the indirectly elected House of Peoples, proceeding has been initiated before the European Court of Human Rights in 2021 (case no. 34891/21), and a decision is expected in this case.

THE RULE OF LAW, THE DOCTRINE OF LEGITIMATE EXPECTATIONS AND THE CONSTITUTIONAL COURT OF THE REPUBLIC OF CROATIA

Anita Blagojević — 2024-07-24

An important source of the Croatian legal system is found in the Constitutional Court’s case law, which has been instrumental in shaping constitutional principles and implementing them in the proceedings of ordinary courts. Relying primarily on previously established constitutional principles, on doctrines legally binding to EU member states and their citizens, and on interpretations of EU law, legal proceedings must, above all, comply with the constitutional principle of the rule of law as one of the highest values of the constitutional order of the Republic of Croatia. All proceedings must include the requirement that legal consequences should be proportionate to legitimate expectations of parties in each individual case. Furthermore, requirements for laws stemming from the principle of the rule of law must not be such as to directly challenge the doctrine of legitimate expectation of individuals having faith in those laws and other individual legal acts. It should be noted that no legitimate expectation of exercising a certain right may arise without sufficient grounds in domestic law, separating mere “hope” and “belief” from a clear basis in a legal act or provision. Accordingly, protection of the doctrine of legitimate expectation can be viewed through the principle of procedural fairness/just proceedings guaranteed by Article 29 of the Constitution, but also as a component of ownership rights guaranteed by Article 48 thereof. The rule of law, as an essential component of every democracy, is thus also achieved through protection of the doctrine of legitimate expectation. This paper discusses the doctrine of legitimate expectation in general, as expressed by the Constitutional Court in its practice, and analyzes the most relevant Constitutional Court decisions pertaining to the protection of the doctrine of legitimate expectation within the standard of fair and just proceedings.

FREQUENT EXTRAORDINARY PARLIAMENTARY ELECTIONS AS A THREAT TO THE RULE OF LAW IN SERBIA

Vladimir Mikić — 2024-07-24

In December 2023, another extraordinary parliamentary election was held in the Republic of Serbia, the fourth in the last decade. Serbia has held no less than thirteen general elections since the multiparty system was introduced in 1990, with only three of them not being extraordinary. The aftermath of almost every early election consisted of the same dominant political party staying on power. This implies that almost every extraordinary election aimed at political capitalization on the status of current executive power-holder. In addition, this type of election is often held simultaneously with local elections. This cannot easily be regarded as a welcome democratic procedure. Resorting to untimely dissolution of the National Assembly of the Republic of Serbia may be assessed as a tool of expressing the dominant position of the executive in relation to the National Assembly. According to the frontal provision of its Constitution, Serbia is based on the rule of law, and it is committed to European principles and values. Another constitutional provision clearly determines that the duration of the term of a legislature is four years. However, caretaker governments, with much restricted legitimacy, appear to have become an objectionable rule rather than an exception. It seems to be quite unusual for a candidate state for membership in the European Union to hold so many elections earlier than constitutionally scheduled. While the practice is not formally endangering Serbia’s negotiations with the EU, relevant reports presented by the European Commission, the OSCE, and the Venice Commission express concern in this regard. In one of the reports, adopted in December 2022, it is recommended that the Serbian Constitution should be interpreted in such a way that a legitimate limitation of periodical recourse to early elections is enabled. In this paper, method of comparative normative analysis of legal framework of extraordinary parliamentary elections held throughout Europe is used, as well as method of analyzing comments and recommendations of competent European political and legal authorities. After the introductory part, the survey of Serbian legal framework envisaging possibilities for dissolving the National Assembly is presented. This part is followed by the analysis of the history of early dissolutions of the National Assembly. In the fourth part, comments and recommendations on Serbian snap elections of various European bodies are examined. In conclusive part of the paper, normative suggestions are laid out in order to curtail the possibly unconstitutional practice of arbitrary dissolution of the National Assembly. These are coupled with recommendations aiming at fostering a stable practice of protecting full-term legislative periods from frequent obstructions by the executive branch of power, since opportunistic parliamentary election timing appear to represent an indirect assault on the rule of law and on the separation of powers in Serbia.

THE ROLE OF THE EU AS A PROMOTER OF JUDICIARY REFORM IN CANDIDATE COUNTRIES

Gentjan Skara — 2024-07-24

The European Union (EU) enlargement policy has been considered the most effective tool of the EU as an “EU external governance” in exporting democracy, the rule of law, fundamental freedoms, and other values on which the EU is founded in third countries. Considering the lessons learned from previous accession cases– especially Romania, Bulgaria and Croatia, the EU approach to addressing the rule of law reforms early in the accession process shifted toward a bold strategy. This paper analyses the role of the EU as a promoter of judiciary reform in candidate countries, focusing on the vetting process in Albanian. The paper argues that a dilemma exists between legal compliance with EU standards and implementing reforms. While the EU, through judiciary reform, aims to transform the Albanian judiciary system in compliance with the Justice and Home Affairs acquis, political polarisation in Albania has hampered institutional set-up, effectiveness, independence, and the fight against corruption. Moreover, the vetting process has paralysed the judiciary system by increasing the backlog and delaying the length of proceedings. By adopting a dogmatic legal methodology, the paper provides a detailed theoretical discussion of the EU’s external dimension as a (legal) normative power and analyses the Europeanization of the judiciary system in Albania. Moreover, the paper assesses the impact of judiciary reform and discusses the extent to which judiciary reform in Albania is considered successful.

BALANCING HOUSING POLICIES

Meliha Sermin Paksoy — 2024-07-24

The social housing policies in many European Union (EU) member and candidate countries, coupled with challenges in the private property market, have resulted in an inability to adequately address the housing needs of low and middle-income households. Approximately one-third of the EU population resides in privately rented housing, prompting several member and candidate countries to implement rent controls due to a significant surge in rents within the private housing sector. These controls may involve setting rent ceilings, limiting the annual increase in rental rates, and other similar interventions.

For instance, in Turkey, the legislature has imposed a 25% limit on the increase of rental prices in existing contracts over the past two years. It is noteworthy, however, that the official inflation rates declared by the government in 2022 and 2023 were almost three times higher than the rental increase limit imposed by the legislature. The implementation of such interventions has sparked debates on the compatibility of such rent controls with the constitutions of the relevant countries and the European Convention on Human Rights (ECHR).

Various cases, including James and Others v the United Kingdom, Aquilina v Malta, and Urbárska Obec Trenčianske Biskupice v Slovakia, illustrate instances where the European Court of Human Rights (ECtHR) has addressed restrictions on landlords' rights. According to the court, countries have a margin of appreciation in implementing such restrictions, but they must ensure that the limitations imposed are proportionate and guarantee fair and adequate rent.

Several constitutional courts, including the Turkish Constitutional Court, have also examined the constitutionality of rent controls. The objective of this paper is to establish criteria for acceptable rent controls based on the decisions of the ECtHR and the constitutional courts of EU member and candidate countries. These criteria aim to guide policymakers in striking a balance between addressing housing challenges and respecting property rights and freedom of contract for landlords.

PROTOCOL NO. 16 TO THE ECHR IN SERBIA? PRO ET CONTRA

Aleksa Nikolić — 2024-07-24

Protocol No. 16. to the European Convention on Human Rights (ECHR) represents a new instrument in ECHR’ toolkit. Entered into force on August 1, 2018 he allowed national high courts and tribunals including Constitutional Courts to request advisory opinions from the European Court of Human Rights (ECtHR) on questions of principle relating to the interpretation or application of the rights and freedoms defined in the ECHR or its protocols. Under Protocol No. 16 to the ECHR, highest national courts and tribunals may submit questions to the ECtHR on issues that are not covered by the ECtHR’s existing case law or on which there is significant disagreement among the national courts of different countries. The advisory opinions of the ECtHR are not binding on the national courts but they can provide authoritative guidance on how to interpret and apply the ECHR’s provisions in specific cases.

However, so far only 25 members of the Council of Europe signed and 22 members ratified them while only nine requests have been made in the four years of operation. Why? What are the advantages and disadvantages of Protocol No. 16 to the ECHR? The goal of this paper is to answer the aforementioned questions in order to answer the question of whether Serbia needs its adoption and implementation.

LEGAL DYNAMICS IN EU-UKRAINE RELATIONS

Ana Jović-Lazić — 2024-07-24

The article examines the changing relations between Ukraine and the European Union in light of the increased EU backing of Ukraine after the Russian invasion. It argues that Ukraine's steadfast pro-EU stance has intensified in response to many challenges caused by Russian actions in that country, resulting in a noteworthy increase in legal backing from the EU. The qualitative research method is used to explore the EU-Ukraine relationship through historical context, official documents, and expert analysis. It starts by setting the historical background of Ukraine's ties with the EU, highlighting the key documents and events, and tracking the advancement of Ukraine's pro-European stance. The main emphasis is on how the Russian actions in Ukraine, starting with the annexation of Crimea, backing of separatists in eastern Ukraine, and finally, the invasion, changed relations between the EU and Ukraine. This entails estimating how Ukraine's adherence to EU values and legal standards has changed in response to Russia's gradually intensifying actions in Ukraine. Also, it involves an analysis of varied aspects of the EU's assistance mechanisms and tools used by the EU to strengthen its backing for Ukraine, emphasising the reciprocal nature of their legal dynamics. The article concludes by examining Ukraine's path towards EU membership and the criteria and legal requirements that Ukraine has to meet. This provides insights into the legal dynamics shaping EU-Ukraine relations in the context of intense external pressures.

MARKET INTEGRATION AND COMPETITION AS A WAY TO STRENGTHEN THE RULE OF LAW AND DEMOCRACY IN THE ENLARGED EUROPEAN UNION

Andrea Piletta Massaro — 2024-07-24

The European Union has guaranteed peace and economic advancement for a long period since its creation. Nevertheless, the European project – in particular in 2024, year in which the European Parliament and the European Commission will be renewed – appears at the crossroad, threatened by the complex global geopolitical situation, the emergence of strong industrial players, the rise of populist parties, and an economic downturn which lowered the ‘social safety net’ which has always characterised the EU area. The correlation between the ‘health’ of the common market and its implications on the social and political level, with particular reference to democracy and the rule of law, have not been at the forefront of the political and legal debate and, especially, solutions have not been proposed in a satisfactory and effective manner. This paper aims at analysing the correlation between the state of the European market and its impact on democracy and the rule of law through the lens of competition law, in order to establish a link between the competitiveness of the European market and better social conditions for European citizens. This analysis will follow as lodestar the programmatic description of the ‘social market economy’ contained in Article 3, paragraph 3, of the Treaty on the European Union. The paper sustains that exactly a revamped version of the social market economy model – with its Ordoliberal roots – represents the key in order to boost the European economy and to restore a proper level of social protection in the European Union, being this a driver also towards a healthily democratic society. Furthermore, only by sticking to the core values permeating its market and its society, the EU could fight in the Global scenario, cause its model, differently from others, still represents the most mature sublimation of concepts such as democracy, rule of law, social wellness and inclusion. Therefore, the EU can regain its propulsive and attractive force – especially in light of the awaited expansion in the Western Balkans region – only by turning back to the Treaties and the political roots which were at the basis of the EU project, with particular reference to a healthy and workable competition in the market. Only this approach is deemed to provide the EU with the essential tools in order to find a proper role in the international scenario in light of challenges such as digitalisation (and the advent of AI), the green transition, and the complex political scenario. This paper, in conclusion, will therefore provide a framework which explains how the European competitive market model is to be regarded as a ‘guardian’ of values such as democracy and the rule of law and how the EU can keep its leadership in the promotion and maintenance of these values through a renewed version of the ‘social market economy’ concept.

PROPOSAL FOR PERMISSION TO REVISE - WHERE ARE WE FIVE YEARS LATER?

Vedrana Švedl Blažeka — 2024-07-24

The amendment to the Civil Procedure Act from 2019 established revision by permission as the basic form of this extraordinary legal remedy, which in legal theory and practice caused numerous controversies and lively articulations of (counter)arguments by supporters and opponents of implementation. In the circumstances in which this kind of legislative intervention was carried out, which certainly has an impact on access to the court, it caused considerable resistance among practitioners and a part of the theory of law. On the other hand, there was a need to position the role of the Supreme Court of the Republic of Croatia in the Croatian legal system in accordance with the function established by the constitution and law. However, the intervention in the revision institute was carried out without a comprehensive analysis of all the factors that objectively endangered that function until that moment. This is therefore the starting point in this research, which aims to examine the achievements of the implementation of this institute in practice after five years of existence and to examine whether the goal that part of the professional and scientific community intensively strived for in the process of its implementation was truly realized. In the end, has the authority of the Supreme Court of the Republic of Croatia, with its newly strengthened function, set an example for the courts as a whole and is it correcting the mistakes of the lower courts that until then stifled its actual function. In addition to the effects of the introduction of this institute into the Croatian civil procedural law in today's conditions, the success of the proposal for permission to revise will be analysed in relation to practical challenges and doubts. The analysis of the problem of objectification and transparency of the admissibility criteria is considered extremely important in order to truly enable the applicants of the proposal for permission to revise to realize and protect their rights in a unique and equal way in relation to everyone. Clear and objective criteria for drawing up a proposal for permission to revise still do not exist, and they unjustifiably depend solely on the discretionary assessment of the court. The above cannot be an example of acting in the spirit of encouraging legal certainty. The previous disastrous passage of the proposal for permission to revise and the observed length of time in solving socially extremely sensitive issues indicate caution and the necessity of certain corrections in the institute of revision by permission itself. In the final remarks, an approach to the solution of open controversies and doubts will be offered in order to demystify the institute of revision by permission, or more specifically, the proposal for permission to revise, which at this moment is still a lottery for professionals who are authorized to invest it.

NEW EUROPEAN REGIME FOR COMBATTING LATE PAYMENTS IN COMMERCIAL TRANSACTIONS – KEY ELEMENTS OF REVISION AFTER A DECADE

Sanja Gongeta — 2024-07-24

It has been a decade since the Late Payment Directive (2011/7/EU) came into force. At the time of its adoption and implementation into the legislation of Member States marked by the circumstances of a less digital world, it provided legal certainty and protection to small and medium-sized enterprises in case larger or more powerful businesses failed to fulfil their financial obligations on time. Business digitization, geopolitical events, and inflation have influenced entrepreneurs' operations and their decision-making in the allocation of financial resources, indirectly leading to a disruption of payment culture and an increase in the number of unpaid invoices. According to available data from the European Payment Report, late payments affect entrepreneurs in all sectors and all Member States, with small and medium-sized enterprises, the generators of the European Union's gross domestic product, being the most affected. In order to address this growing issue, the European Commission has presented a proposal for revised rules on late payments at the end of 2023. The paper analyses secondary data to answer the question of the effectiveness of existing rules in preventing late payments and highlights the most significant elements of the new Regulation proposal. By comparing existing and revised legal solutions, paper addresses whether the new rules can solve this problem.

ECONOMIC SANCTIONS BASED ON INTERNATIONAL AND EU LAW

Gábor Fekete — 2024-07-24

The use of "sanctions" is an instrument of the Common Foreign and Security Policy for the EU, which aims to prevent and respond to various crises. The term "sanctions" covers a range of measures, particularly arms embargoes, travel restrictions, asset freezes and other economic restrictions. The EU currently applies several sanctions packages, some of which are part of a range of sanctions based on international law and others which go beyond it.

The economic effects of the restrictions also affect civil law relations. Their scope is not limited to the actors on the sanctions list but extends to persons directly and indirectly associated with them, ultimately affecting the legal relations of persons not on the sanctions list who have no economic links with the sanctioned country or region.

In the first part, the study provides an overview of the system of "sanctions policy", the reasons for and the means of applying restrictive measures, including an introduction to the powers and case law of the Court of Justice of the European Union concerning sanctions. The second part of the study deals with economic sanctions. Firstly, it identifies the scope of restrictive measures as economic restrictions. Secondly, it describes the civil law implications of economic sanctions from the courts' perspective when applying the law by describing the applicable legal provisions. On the other hand, the case law of the Court of Justice of the European Union will be presented to show the obligations imposed by the EU on the courts applying economic restrictions in the conclusion and performance of specific legal transactions and in resolving disputes arising from them.

The study is not concerned with assessing the necessity and effectiveness of sanctions but only with their effects as legal facts on the application of the law.

JUDICIALIZATION OF INTERNAL MARKET LAW

Živa Šuta — 2024-07-24

Digital, economic, and societal development has prompted the industry to shift its focus from offering products or services to bundles of products and services. Given the breadth of product-service systems in the modern economy, it is becoming increasingly important to consider how they should be regulated at the EU level. This paper investigates whether the traditional distinction between goods and services in EU free movement law applies to product-service systems. To this end, EU primary law, specifically the distinction between goods and services under Article 26(2) of the TFEU, is examined. The argument of this paper builds on the body of case-law of the CJEU where the predominance test was applied to traditional cases of product-service bundles and the medium test to cases with a digital component. It proposes a functional, normative, and constitutional inquiry to determine whether product-service systems fall under the rules governing free movement of goods, services, or a sui generis category. It concludes that coherence of EU law, rather than convergence of the two freedoms, is required to ensure predictability and legal certainty for business owners and consumers.

ELECTRONIFICATION OF INSOLVENCY PROCEEDINGS IN THE LIGHT OF THE PROTECTION OF CREDITORS' FUNDAMENTAL RIGHTS

Kateřina Hrabánková — 2024-07-24

The aim of our paper is to focus on the electronicisation of insolvency proceedings through the newly introduced insolvency register, which is supposed to represent a single centralised system for insolvency and liquidation proceedings with an emphasis on the protection of creditors' personal data. The European Union is also currently commenting on several issues in the area of business entities and the transparency of business activities. In the individual sections, we have focused on the approach to the computerisation of insolvency proceedings, the definition of personal data provided in insolvency proceedings by the creditors themselves, the principles of personal data protection, also outlining the case law of the Court of Justice of the European Union dealing with this area. We have also focused on the problems that have arisen in application practice in relation to the disclosure of personal data of individuals. We conclude that the legislator should focus more specifically on the protection of creditors' personal data and tighten up the possibilities of accessing it, but also consider whether its public availability is necessary.

ABUSE OF A DOMINANT POSITION ON THE DIGITAL MARKETS – CASE META VS. BUNDESKARTELLAMT

Simona Rudohradská — 2024-07-24

During the previous years of the ECLIC conference series, the case of Facebook (Meta), which started at the German national competition authority Bundeskartellamt, was analysed by our (broader or narrower) author team, from different perspectives. At issue was primarily the question that links the areas of data protection and competition - and thus whether the use and linking of personal data from this social network and from third parties can be considered an abuse of a dominant position in light of the fact that the collection of this data is a condition for the use of the platform. The legal case was transferred from the administrative phase, to the German national court, which referred the case to the Court of the Justice of European union (hereafter also as “CJEU”) for a preliminary ruling. Advocate General Athanasios Rantos also submitted his opinion in the case, and the CJEU in its judgment of 04 July 2023, answered the questions referred for a preliminary ruling. By answering the questions referred for a preliminary ruling in case C-252/21, CJEU drawed conclusions both in relation to the principle of sincere cooperation under Article 4(3) TEU between the competent data protection and competition authorities, and in relation to the regulation of personal data and competition. From a methodological point of view, the analysis will focus in particular on the decision in the case (C-252/21), taking into account the findings presented in professional literature with emphasis on the abuse of dominant position. The aim of this paper is to select the most relevant generally applicable conclusions of the judgement of 04 July 2023 for the application of the abuse of dominance in the context of extensive data collection.

THE RIGHT OF CHILDREN TO BE HEARD IN CROATIAN CIVIL LAW

Katarina Knol Radoja — 2024-07-24

The active involvement of a person in court proceedings is essential for his effective participation and is a reflection of his right to be heard. The right to be heard is one of the basic procedural rights, which implies that a person should be allowed to express his concerns as well as his experience that what he said has be taken into account in the decision-making process. Competent authorities are obliged to listen to the participants in the procedure and talk with them, not about them. Although in some situations this will be difficult and incomprehensible, especially in relation to children or persons deprived of legal capacity, everyone capable of expressing their will and preferences in some way needs support to facilitate that expression. That is, to every person should be made possible to participate in court proceedings in such a way that they can influence its outcome by articulating their will. In this paper, we will analyze the child's right to be heard and express his opinion, and in this regard, we will warn about the inconsistency of the provisions of the Croatian general procedural regulation - the Law on Civil Procedure with the provisions of the Croatian Family Law, as well as international regulations and practice. We will refer to the question of the procedural legitimation of the child in court proceedings in which his rights are decided. Also, we will analyze the issue of the procedural legitimation of a child in family law disputes, in which the individual rights of the child are adhesivelly decided in accordance with the principle that everyone should have the opportunity to actively participate in the litigation that is conducted about his rights and interests.

CHALLENGES OF PROTECTING THE RIGHTS OF CHILDREN AND PARENTS WHEN SEPARATING A CHILD FROM THE FAMILY

Anica Čulo Margaletić — 2024-07-24

The right of the child and parents to enjoy each other's company is guaranteed by Article 35 of the Constitution of the Republic of Croatia, Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and Article 7 of the EU Charter of Fundamental Rights. However, when parents do not comply with their responsibilities, duties and rights for the proper growth and development of children, there is a threat and/or a violation of the children's personal rights and well-being. If we begin with the understanding that children's personal rights and well-being are of the highest value and are part of the public order, the state must provide their protection, which includes not only the imposition of repressive measures, but also the provision of special care and assistance in preserving the family unit.

The paper will provide an outline of the Republic of Croatia's international commitments concerning family law protection measures, as well as obligations emanating from national normative acts. In addition, the constitutional judicial practice and the practice of the European Court of Human Rights will be analyzed to determine whether the state follows its obligations to protect the rights of the child and parents when imposing repressive measures to protect the personal rights and well-being of the child, and de lege ferenda proposals for the improvement of national normative acts, i.e. guidelines for a more consistent application of the existing legal framework in the practice of imposing measures by which a child is separated from the family in accordance with European standards of respect for the right to family life.

CHALLENGES IN THE LIVES OF CHILDREN WITH DEVELOPMENT DISABILITIES AND THEIR PARENTS IN THE CITY OF VUKOVAR

Matea Radić — 2024-07-24

Children with development disabilities are guaranteed at the international and national full and effective participation in society on an equal basis with others. They exercise their rights in the family and community in which they live. Therefore, the family and the community, as well as public policies, are factors that affect the life and realization of the rights of children with development disabilities.

The aim of the paper is to gain insight into the community support for children with development disabilities and their families as well as into the realization of the rights of children with development disabilities in the city of Vukovar from the perspective of their parents.

The qualitative research was conducted with parents of children with development disabilities. The results indicate the following challenges faced by parents of children with development disabilities living in the city of Vukovar: late diagnosis, lack of public and community services and professionals, lack of understanding and support in the family and community, lack of information about the rights of children and parents, challenges in the field of education, absence of parents' right to balance professional and private life, lack of leisure time for parents and fear of parents for the future of the child.

SELF-DETERMINATION OF THE EUROPEAN UNION

Aleksandar V. Gajić — 2024-07-24

The European Union is not just an international organization. It is a unique political and legal system based primarily on the fundamental principles of democracy and the rule of law. As such the European Union has a right of self-determination, namely that its own political mechanisms “freely determine its political status and freely pursue its economic, social and cultural development. While it is undisputable that Members of the European Union have the right of “national” self-determination within the European Union, the self-determination of the European Union, as such, is a concept still almost unknown in political and legal theory and practice. However, the Treaty on the European Union and the Treaty on the Functioning of the European Union already provide enough elements for the identification and conceptualization of the self-determination of the European Union as understood in international law (and politics).

Self-determination of the Member States and self-determination of the European Union can exist as separate and interconnected concepts that might provide an adequate legal and political framework for further development of the European Union, its identity, key values and ends of its internal and foreign policy. Recognition and conceptualization of the right of self-determination, not only in political and legal theory but also in the political practice of the European Union might be a further step in the development of the European Union, as “a new stage in the process of creation an ever-closer union among the peoples of Europe”.

While the concept of self-determination of the European Union might be developed in the existing legal framework, namely in accordance with the founding treaties, it seems that it should have a proper place in its forthcoming revision. The recognition of the self-determination of the European Union certainly improves the very concept of the identity of the European Union and the perception of its role in international affairs.

CHALLENGES AND ISSUES FOR (THE RIGHT TO) AFFORDABLE HOUSING IN CROATIA

Mira Lulić — 2024-07-24

Real estate prices in the 2020s reached record figures for purchases in the Republic of Croatia, Europe and beyond, and with the increase in real estate prices on the market, apartment rents also rose. The cost of living is extremely high, loans are more and more expensive and unattainable, interest rates are high, recession and inflation dominate, all of which affects real estate prices that are too high for an increasing number of citizens. The focus of the work is not the most vulnerable groups of the population who already live below the poverty line and are fully exposed to state and social assistance, but mid-income groups who are often unjustifiably ignored on the scale of those whose rights to housing are threatened. The paper contributes to the understanding of the problem of affordable housing, the terminological determination and definition of the term affordable housing, but also the clarification of the specific international legal obligations of states regarding the realization of the right to affordable housing, and the providing a basis for innovative legal solutions and models for realizing affordable housing in the Republic of Croatia.

THE PRINCIPLE OF SOLIDARITY AND THE CHALLENGES OF SYSTEM AND SOCIAL (DIS)INTEGRATION

Adrijana Martinović — 2024-07-24

In the wake of the political agreement reached in December 2023 by the European Parliament and the Council on the New Pact on Migration and Asylum, it is necessary to reconsider the concept of solidarity as its breaking point. Although it is crucial for a fair sharing of burden and responsibility among Member States in the face of persistent migratory pressure, a workable solidarity mechanism seems elusive and difficult to achieve. The Pact’s intended paradigm-changing approach towards a more flexible solidarity has initially been criticised by Member States, human rights organisations, and academia alike.

This paper aims to examine the conceptual issues surrounding the proposed solidarity mechanism from an interdisciplinary perspective, relying on the analytical distinction of the concepts of system and social integration in the understanding and explication of the processes of constitution, transformation and (dis)integration of the social order. The aforementioned distinction is conceptually useful for analysing the process of functioning and (dis)integration of the social order because it allows scholars to simultaneously analyse how different institutional solutions affect the functioning and compatibility of the social (sub)systems of that order, and how they affect the character of the relationships between social actors with different interests and identities operating within that order.

Building on the existing extensive legal scholarship on solidarity in the EU migration and asylum policy, the paper will analyse the role of solidarity in the context of processes related to constitution, transformation and (dis)integration of EU. As an underlying value and a principle, solidarity permeates numerous areas of EU law and represents the “ideological” basis legitimising the European integration. However, it is often misunderstood or implemented in the manner which accommodates current political and social circumstances. Thus, it becomes a political tool, at the expense of its legal coherence. This has a far-reaching impact on the functionality and efficiency of the legal system, and potentially disintegrating effects both on the relations between the EU and the Member States institutional systems, and on the cooperativeness between political and social actors regarding the creation and adoption of future EU policies and laws. Lessons from other fields of law, notably from institutionalisation of solidarity within the social security law, will be explored to evaluate the position of solidarity in the context of the EU migration and asylum policy. The aim is to establish whether the patterns of flexible solidarity can represent a viable option which is in line with the legal conceptualisation of solidarity, and to investigate how strong is their (dis)integrative potential. This innovative approach will offer a wider and fresh perspective to the on-going debate surrounding the institutionalisation of the principle of solidarity in the EU migration and asylum law.

BETWEEN GEOPOLITICS AND LEGAL OBLIGATIONS

Dragan Đukanović — 2024-07-24

The article deals with the challenges in the implementation of the Agreement on the path to normalization of relations between Kosovo and Serbia signed on February 27, 2022, and its Implementation Annex from March 2022. There has been no significant application of these documents so far, in addition to the similar lackluster fate of numerous other documents concluded in the normalization process. Therefore, the authors argue that the EU’s image of the mediator in the process, intending to bring democracy and rule of law through these agreements to both parties, is increasingly brought into question.

In relation to this, the first part of the article explains how the European Union, in the context of its policy of conditionality, increasingly exerts significant influence on Belgrade to accelerate this process. The opening of new clusters according to the Union's new methodology concerning Serbia depends on the continuation and acceleration of this process, which is now an integral part of its negotiation framework (Chapter 35). Similarly, for Kosovo, within the broader framework of conditions for future candidate status and future membership negotiations, this question of the successful normalization of relations with Belgrade is a priority. Also, in the New Growth Plan for the Western Balkans presented in November, the withdrawal of significant financial resources by the authorities in Belgrade and Pristina will depend on the further dynamics of the implementation of all previous agreements between the two parties, especially the last year's Agreement on the path to normalization of relations between Kosovo and Serbia. This Agreement was primarily the result of the joint initiative of Germany and France, with significant diplomatic support from the United States of America.

The second part of the article deals with the issue of the legality of such EU actions. The authors argue that despite a certain objective inability to accelerate the implementation process of all the agreements reached during the thirteen-year normalization process, the European Union can condition Belgrade and Pristina regarding additional donor funds—that is, an investment and financial aid package—in line with the fact that the parties themselves have accepted and committed to it. Simultaneously, through this Agreement, in principle, the parties committed in Article 5 to harmonize their foreign policy actions with the EU's Common Foreign and Security Policy, which is particularly important for Serbia.

In conclusion, the authors point out that the EU credibility in the Western Balkans will largely depend on the successful implementation of everything agreed in the dialogue between Belgrade and Pristina. As noted in the Agreement, the issue of these relations is fundamental and closely connected to the context of broader European security. The European Union has assumed a dominant role in implementing all agreed-upon aspects between Belgrade and Pristina, thereby leaving a realistic possibility that there could be serious consequences for their EU accession process and the financial aid they are expected to receive.

REMEDYING THE JUDICIARY SYSTEM IN POLAND – RESTORING THE RULE OF LAW

Tadeusz Zembrzuski — 2024-07-24

A European Union member state since May 2004, Poland has in recent years been repeatedly challenging fundamental values and principles of European Union law: the rule of law, loyal co-operation, and the primacy of applying EU law. The significance of multiple international agreements binding for Poland has been depreciated, the constitutionally guaranteed tripartite division of power and hierarchy of legal acts seriously distorted.

According to the prevailing consensus, the judiciary is one of the areas to the greatest extent affected by far-reaching violations and problems. Amendments to the Common Courts Law (so-called muzzle law) made it possible to penalise judges for rulings designed to implement standards arising from international agreements Poland is signatory to and the Treaty on European Union, or even implement international courts’ case law. Consequently, disciplinary proceedings had been initiated against judges referring to European Union law and/or the European Convention on Human Rights in their rulings. Poland’s Constitutional Court – the correctness of its staffing procedures questionable – has issued judgements undermining the validity of European Union law and the European Convention on Human Rights in Poland.

Issues of appointing justices and the consequences of their rulings have triggered greatest doubt in Poland. Circumstances of post-2017 changes to the composition of the National Council of the Judiciary (NCJ) have undermined the body’s independence from legislative and executive powers. Most lawyers believe that the Council’s composition contradicts Article 187 of the Constitution of the Republic of Poland: justices making up the NCJ are selected by representatives of political parties rather than the judicial community. The situation has impacted the capacity for proposing independent and impartial candidates to judicial positions at Polish courts of law, currently involving as many as around 3,000 judges on all levels of the judiciary. Many believe that they have been appointed in violation of fundamental national regulations governing the procedure for judicial appointments.

In a ruling in Case C-718/21 of December 21st 2023, and in reference to the European Court of Human Rights’ ruling of November 8th 2021 in the case of Dolińska-Ficek and Ozimek (Application Nos. 49868/19 and 57511/19), the Court of Justice of the European Union found that the panel of judges of the Chamber of Extraordinary Control and Public Affairs of the Supreme Court of Poland, the panel having been appointed by the politicised NCJ, is not an independent or impartial court previously established pursuant to legislation, as required by European Union law. It has been recognised that the totality of circumstances behind the appointment of justices forming the panel who had submitted questions in the case may – in the eyes of the public – raise reasonable doubt with regard to the independence and/or impartiality of aforesaid judges. It may further undermine the confidence that the judiciary should inspire in any democratic society or a state of law.

Poland’s parliamentary elections of October 15th 2023 brought a change in government, the established majority facing the task of remedying the judiciary and restoring the rule of law. Notable early announcements include measures intended to block the works of the National Council of the Judiciary, by preventing the Minister of Justice from publishing announcements concerning new judicial competitions. The Council has been continuing operations and making decisions crucial to the community, with the likely consequence of slowing down the tempo of expected changes in Poland. Such changes should be achieved through the systemic introduction of remedial laws accounting for the importance of the rule of law and principles resulting from European Union membership.

THE COST OF HUMAN RIGHTS FOR THE EU IN POST-CONFLCIT SOCIETIES

Attila Nagy — 2024-07-24

The EU invests immense resources to promote human rights in a number of societies outside of its borders. Notably, the European Neighbourhood Policy and Enlargement focus on societies right next to the EU and with the potential to become an EU member states. In this chapter, we will focus on the cost of human rights in post-conflict societies, with a focus on the Western Balkans and Kosovo. If we understand the case of Kosovo, we will be better prepared to understand the costs the EU is ready to invest in countries such as Ukraine or any other country in its neighbourhood. The non-recognition of Kosovo by the UN and the EU places it in a very interesting legal and political disambiguation that makes the assistance of the EU vital. The EU-run EULEX mission in Kosovo, its mandate, costs and also corruption scandals put an additional burden and cost on its work. The future success and integrity of the EU run Kosovo Specialist Chambers, which should finalise the justice efforts in Kosovo are at stake due to a declining support for EULEX from both the Kosovo Serbs and Albanians. The corruption allegations of EULEX put in danger the future work of the Kosovo Specialist Chambers and the costs the EU bears. If EULEX fails it will come at a very high cost for the EU and even the already very low level of human and minority rights in Kosovo could not be further guaranteed. The final implementation of informal agreements regarding Kosovo in the form of The Brussels Agreement from 2013 and The Washington Agreement from 2020 having only a partial implementation success is a challenge for the rule of law in Kosovo. The future of post-conflict development is gaining a new shape and its formation is something we are able to witness and follow in Kosovo, through the lenses through which the EU supports is coming with all its various challenges and possible shortcomings.

THE COMPATIBILITY OF RESTRICTIVE MEASURES REGARDING CYBERATTACKS WITH THE CHARTER OF FUNDAMENTAL RIGHTS OF THE EU

Eimys Ortiz-Hernández — 2024-07-24

The realm of cyberspace presents a landscape of both promise and peril, spanning economic domains to matters of security. In response, the EU has diligently crafted a comprehensive cybersecurity framework, rooted in cyber diplomacy, to mitigate and counter cyber disruptions and threats. This work embarks on an exploration of the legal underpinnings of restrictive measures or sanctions as outlined in Council Decision 2019/797 and Council Regulation 2019/796. Through a thorough analysis of this framework, the paper scrutinizes the compatibility of unilateral cyber sanctions with the fundamental rights enshrined in the Charter of Fundamental Rights of the EU. It underscores the imperative of clear and unambiguous legislation in upholding due process, safeguarding the rule of law, and preserving the core values of the EU.

ARTIFICIAL INTELLIGENCE IN CYBERSECURITY

Herke Csongor — 2024-07-24

This research comprehensively explores the interplay between artificial intelligence (AI) crime and cybersecurity. The study aims to perform a criminological analysis to understand AI’s impacts on cybersecurity, highlighting its benefits and potential risks.

A significant aspect of this research is investigating liability issues associated with AI’s deployment. These concerns are not limited to specific applications, such as self-driving vehicles, but extend across various AI-utilizing sectors. AI’s capability to autonomously make decisions, sometimes with severe implications for individuals, poses the critical question of responsibility. When AI-driven decisions lead to adverse outcomes, the dilemma arises: who should be held accountable - the developers, the users, or the AI itself?

Another vital research question examines how AI influences cybercrime. This study scrutinises AI’s role in transforming cybercrime’s nature and the new security risks it introduces. It questions the adequacy of current criminal laws in addressing novel crime forms emerging from AI advancements and explores how these laws might need to evolve. Moreover, the research investigates AI’s role in amplifying or simplifying traditional crimes, such as through the creation of phishing programs or the use of DeepFake in identity theft.

The impact of AI on digital evidence forms another critical area of investigation. AI algorithms, capable of efficiently analysing vast data sets, can significantly aid in crime detection and perpetrator identification. However, this advancement also raises concerns about the authenticity of digital evidence. Technologies like deepfake, capable of producing convincing fake images and videos, present a formidable challenge in distinguishing real from fabricated evidence, especially in legal contexts.

Lastly, the research delves into AI’s potential in crime prevention. It assesses how AI-driven predictive models can identify likely crime hotspots and timings, enabling more effective resource allocation by police and security services. The study also explores advancements in AI’s facial and object recognition technologies, highlighting their potential in criminal identification.

In summary, this research offers a detailed examination of AI’s multifaceted impact on cybersecurity, liability issues, cybercrime, digital evidence, and crime prevention, presenting a nuanced understanding of AI’s challenges and opportunities in law enforcement and legal accountability.

THE INTERSECTION BETWEEN ARTIFICIAL INTELLIGENCE AND SUSTAINABILITY

Ana Pošćić — 2024-07-24

The development of the digital revolution facilitates innovative models that generate new markets and business opportunities. The reappearance of artificial intelligence (AI) has created further potentials and types of market participation. AI is understood as a cutting-edge technology and a key driver of the transition of our economy into the digital economy.

It is important to recognize and constantly bear in mind that artificial intelligence systems provide certain benefits but are associated with certain risks and potential negative effects. The European Commission, in its Ethical Guidelines for Trustworthy Artificial Intelligence (2019), emphasizes ethical principles and associated values that must be respected in the development, introduction, and use of artificial intelligence systems: respect for human autonomy, prevention of harm, fairness, and explainability.

The question arises as to whether the emerging fundamental ethical principles and regulatory policies concerning AI systems require certain adaptations when it comes to the application of AI technology in connection with the sustainable development goals. The development of artificial intelligence systems compatible with the goals of sustainable development, as defined in the 1987 report of the UN Brundtland Commission as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”, is encouraged. Sustainability or sustainable development is defined in the literature as a concept based on three pillars - encompassing social, economic, and environmental aspects. The European Commission highlights that sustainable development is a fundamental principle of the Union Treaty and a priority goal of Union policies, along with digitization and a robust single market.

In recent years, doctrine has sought to bridge the gap between the two disciplines by introducing the term “Sustainable AI”. The aim of the paper is to understand the development of AI that is compatible with sustainable goals. To understand this, it is necessary to comprehend the basic concepts of artificial intelligence systems and explore the sociological, ecological, and economic implications of these systems, all with the aim of finding ways to achieve the goals of sustainable development and the sustainability of AI systems themselves. These are closely tied to adhering to the highest ethical principles with the responsible use of artificial intelligence systems.

HUMAN RIGHTS AS A VEHICLE FOR (BETTER) INTERNATIONAL PROTECTION OF THE ELDERLY

Ines Medić — 2024-07-24

Despite the fact that 21st century's society has been defined as an „ageing society“, law has not yet responded adequatly to the needs of the „aging“ part of that same society. National legislators are often waiting for the „push“ from international community and national laws are still quite short with provisions aimed at the specific protection of the elderly. On the international level, apart from general human rights treaties and some soft law provisions on the right of older people, there is still no international convention which recognizes the specific rights of all older persons. There are different public and private international law instruments though, but they are diverse and either too general or too limited.

The Convention on International Protection of Adults (CIPA) and the Convention on the Rights of Persons with Disabilities (CRPD) as the most prominent ones both have their limitations. First and foremost, their personal scope of application is limited in a way that covers only the most vulnerable among the elderly. EU's Proposal for a Regulation on jurisdiction, applicable law, recognition and enforcement of measures and cooperation in matters relating to the protection of the adults complements the CIPA, thus it is also limited in its scope.

Having in mind that according to the World Social Report 2023 the shift towards older population is largely irreversible and by 2050 the number of persons aged 65 years or older is expected to be surpassing 1,6 billion, a question arises „is the existing legal framework the best we can offer for the protection of the elderly?“. Based on the protection offered to other underprivileged groups, it is obvious that the time has come that not only the vulnerable but all the elderly should be granted internationally recognized charter of rights instead of just general standards scattered throughout different international instruments.

Such charter of rights should establish specific standards related to the rights of elderly, complementary with the existing general standards. It should also include an effective mechanism of enforcement of those rights. This will create a new legal dimension and a new obligation for national and international legislators, leading towards better protection of elderly on national and international level.

Thus, the aim of this article is to establish and explore the current state of play with regard to, particularly, international protection of the elderly, as well as to articulate arguments in favour of the proposed convention on the rights of the elderly.

CONTEXTUALISATION OF PROVISIONAL MEASURES IN CROSS BORDER CASES IN THE WESTERN BALKANS – STRIKING A BALANCE BETWEEN FINALITY AND LEGAL CERTAINTY

Ilija Rumenov — 2024-07-24

Provisional measures as legal instruments are intended to be of effect for a limited period conditioned by occurrence of a certain event or passing of a specific period. Therefore, in essence, these measures are not final and for a long time their circulation in cross border cases was disputed. However, their frequent use in practice provides for them to be able to be recognized and enforced from one jurisdiction to another. The importance of these measures in the European Union is acknowledged by the possibility provided in the Brussels I, Brussels Ibis, Brussels IIter, Maintenance and Succession Regulation for their recognition and enforcement. Moreover, some European national acts, such as the Spanish Act on international judicial cooperation in civil matters have provided for their circulation under certain conditions. However, such effect of these measures remains in the “grey” zone for the countries in the Western Balkans. Recent trends in the North Macedonian case-law show certain acceptance of the foreign provisional measures and their recognition and enforcement. This paper is intended to contextualize the provisional measures in cross border cases within the legal doctrine and the jurisprudence of the Western Balkan countries and show the importance of the balance between finality and legal certainty.

THE DEVELOPMENT OF THE RIGHT TO MATERNITY LEAVE IN THE REPUBLIC OF CROATIA - LOOKING BACK AT THE PAST AND A LOOK INTO THE FUTURE

Dragana Bjelić Gaćeša — 2024-07-24

Today, the right to maternity leave is the right of an employed or self-employed pregnant woman, that is, an employed or self-employed mother, which she uses during pregnancy, childbirth and child care, and which has its own time and financial component. Since the accession of the Republic of Croatia to the European Union, Croatian legislation has been marked by the implementation of relevant European directives that emphasize gender equality and the balance of the private and business life of parents. However, if we look into the past, the situation was different. The aim of this article is to show the development of the right to maternity leave through different periods of Croatian legal history and, finally, by comparing the results with contemporary reality, question their continuity and suggest possible improvements. The article provides an overview of the time and financial components of maternity leave, the conditions for its realization, as well as the possibility of transferring it to the father. Applying the method of historical comparison of legal acts related to the topic of maternity leave, the article presents the development of legal acts, their current status in Croatian and contemporary European Union law, and proposes a perspective proposal for the future.

EUROPEAN CONSUMER IN SALES CONTRACT – THE ANCIENT APPROACH, DE LEGE LATA & DE LEGE FERENDA

Marko Sukačić — 2024-07-24

This paper delves into the historical roots of consumer protection in European legal history, looking beyond its contemporary association with EU regulations from the mid-70s. It explores buyer-seller dynamics, prevalent in both ancient and post-industrial societies, with a particular focus on ancient Rome. Specifically, it studies the need to shield buyers, as the vulnerable party, in sales contracts with professional sellers. It also examines who qualified as a consumer in ancient European legal history and compares it to the contemporary definition in European private law.

The first section explores the position of the consumer in ancient Roman society, analyzing legal and non-legal sources to uncover measures aimed at enhancing consumer rights against professional sellers. The role of the curule aediles, particularly their legal innovations in buyer protection, is scrutinized. The paper then transitions to EU law, specifically examining the definition of consumers in Directive 1999/44/EC and the subsequent changes introduced in Directive (EU) 2019/771.

The paper concludes with a proposal for a unified definition of consumers at the EU level, drawing insights from the ancient Roman society. It questions the feasibility of crafting a comprehensive consumer definition applicable across directives to foster consistency in consumer protection laws. In essence, the paper explores the historical inception of consumer protection, its current status in contemporary law, and suggests a forward-looking proposition for the future.

THE GROWING ROLE OF SOCIAL CONTEXT AS A CRITERION OF JUDICIAL INDEPENDENCE

Magdalena Hilt — 2024-07-24

Judicial independence is immanently connected with the rule of law and as such is regularly scrutinized by multiple international organizations. Bodies such as the Council of Europe and the Venice Commission have issued numerous “soft law” instruments establishing guidelines for judicial independence standards. Meanwhile, the European judiciary system, on its part, has analyzed and ruled on specific issues on a case by case basis.

The judiciary reforms introduced in Poland within the past decade have sparked immense discussions as to whether they remain in line with the EU rule of law, in particular whether the judicial independence standard has been upheld or jeopardized. As a result, an ideal environment has been created for the European Court of Justice to shape the EU standards, as the number of recent rulings on the matter of judicial independence has grown rapidly. While the European Court of Justice is key in establishing common standards across the EU, the Court seemingly avoids creating general, common standard of judicial independence.

Recently, while assessing the judicial independence the European Court of Justice has focused on aspects such as social perception and impressions of individuals involved in the proceedings, thus stressing the importance of the “context”, rather than working towards establishing a clear European standard for the assessment of the independence (or lack thereof) of judges. With such ambiguous rules, however, it cannot be excluded that an objectively independent court could fail the test due to e.g. a widespread misinformation campaign, while a judiciary subjected to numerous minor reforms kept under the radar of the public eye, which effectively undermine its independence, could avoid the ECJ’s scrutiny. As the concerns regarding the future of the rule of law in the European Union spread, the need for a clear and objective roadmap becomes more evident.

In this context, this article aims at analyzing a sample of three recent ECJ cases: Land Hessen (Case C-272/19), W. B. et al. (Joined Cases C 748/19 to C 754/19) and Asociaţia "Forumul Judecătorilor din România" (Case C-216/21) in order to assess whether such roadmap has been created – or whether steps towards its creation have been taken by the European institutions.

CROATIA'S CONSTITUTIONAL DEBATE ON DE IURE AND DE FACTO INDEPENDENCE OF THE JUDICIARY

Helena Majić — 2024-07-24

The paper first analyses recent legislative restructuring of higher courts in Croatia that has limited access to the said courts and their procedural powers. The initiatives for divesting appellate courts and the Supreme Court of their case-law harmonisation powers have been discussed, as well as the character of section meeting opinions that are legally binding on judges of the section concerned, which allegedly raise questions as to the incompatibility with the right to an independent court established by law. This discussion includes the views of AG Pikamäe expressed in the pending case C-554/21 et al. (HANN-INVEST). The paper also reviews legislative interventions in the procedure for appointment of the President of the Supreme Court and a failed attempt to introduce periodic security vetting of all judges with special quasi-disciplinary chamber of the Supreme Court. These processes are then explained by law and economics models of de iure and de facto judicial independence and constitutional arrangements, applied to the case-law of the ECtHR, the CJEU and the Croatian Constitutional Court. The paper concludes that the Croatian legislature has undermined de iure and de facto judicial independence of Croatia's higher courts. On the other hand, the Croatian Constitutional Court has been observing both formal and informal factors of judicial independence and has thus established that: 1. no constitutional or legal check against the executive's interference with independence of the judiciary should be dismantled or construed narrowly, no matter how hypothetical de iure independence of judges may appear; 2. no abstract aspect of the principle of judicial independence may run counter practical and effective enjoyment of individual right to a non-arbitrary judge or the principles of lawfulness and proper administration of justice. It has been inferred from the law and economics model that the Supreme Court has become the most important institutional actor of judicial independence in Croatia and therefore legislative restructuring of the said court should be put to an end.

NEW CROATIAN LAW ON ADMINISTRATIVE DISPUTES

Boris Ljubanović — 2024-07-24

After more than a decade of extensive reform of administrative litigation, which, despite clearly defined goals, did not yield the expected results, and after numerous requests and criticisms from practice and legal theory, a new Law on Administrative Disputes has been prepared. It contains numerous innovations primarily aimed at increasing the efficiency of administrative litigation. The paper presents and analyzes the basic novelties introduced by the new legislation.

DEMOCRACY AND ITS ABUSE - MALIGNANT INFLUENCES ON SERBIA'S FOREIGN POLICY AND SECURITY ORIENTATION

Miroslav Mitrović — 2024-07-24

The marginal areas of Europe can threaten the legal, economic, and democratic achievements of the European Union. Conflicts, crises, and extreme political options affect political and democratic trends in Europe. The Western Balkans' approach to European and Euro-Atlantic integration affects the EU's stability and democracy. Russia maintains the Western Balkans as a potential hotbed of crises that drain democratic resources and relativize the political achievements of the EU. A paper analyzes Russia's hybrid forms of action towards the countries of the Western Balkans. Russia seeks to expand its area of influence through Serbia's media, energy, and political influence. Russia encourages Serbia's frustrations to stop its European integration and distance it from cooperation with NATO. These findings should generate a broader horizon of the national interest of transforming the Balkans into a region of stability and prosperity, which would achieve the strengthening of the general values, political and democratic achievements of the EU.

HOW TO ENSURE FREE AND FAIR ELECTIONS IN THE EU AND BEYOND

Vesna Ćorić — 2024-07-24

The objective of the paper is to examine the available mechanisms of the EU institutions to ensure a free and fair national and local election process in the EU Member States in the EU acceding countries. Over the past few decades, the EU institutions designed several mechanisms to protect the principle of the rule of law, that, however, have not been used in the election context. A need for securing free and fair elections has instead been recently emphasized through the European Democracy Action Plan adopted in 2020. Moreover, the right to political participation which contains explicit requirements regarding elections is also reflected in supranational human rights instruments, including the Charter of Fundamental Rights of the EU and the ECtHR, and as such justiciable before both supranational courts. The ECtHR case law in particular offers helpful insights into the level of protection of citizens voting rights.

For the acceding countries, elections come under the EU radar primarily through the annual Commissions reports, but could also become the subject of discussion earlier, depending on the EU institutions' views. In line with the 2020 Revised enlargement methodology, elections have been identified as one of the key sub-areas of the Fundamentals (Cluster 1), as part of the assessment of the Functioning of Democratic Institutions, without a clear link to the rule of law principle.

The authors argue in order to ensure fair and free elections, especially in countries which have lower level of democratic tradition, the rule of law principle and human rights protection also need to be put at the forefront and all three mentioned values treated as a “holy” trinity. The authors posit that the existing EU mechanisms are not sufficiently clear and mutually coherent to provide needed guarantees against the violation of free and fair election processes within both Member States and accession countries. Their identified shortcomings may lead to a possibility that the EU institutions “turn a blind eye” in particular cases, e.g. the Serbian 2023 elections, which are still awaiting the official EU Commission's reaction. In order to address these challenges, the authors attempt to propose how to develop a more comprehensive legal and methodological framework for ensuring fair and free elections, especially for acceding countries, but also within the EU realm.

THE ROLE OF SUB-MUNICIPAL SELF-GOVERNMENT IN STRENGTHENING DEMOCRACY

Danijela Romić — 2024-07-24

The basis of every democratic legal order is the involvement of citizens in decision-making. The Member States of the European Union have established such a legal framework that encourages democracy, especially the involvement of citizens, openness and transparency, the principle of subsidiarity and other principles expressed in the corresponding legal documents. Numerous scientific studies have proven that the Europeans expect much more from democracy than the minimum. The model of liberal democracy rests on achieving the widest possible consensus when making decisions. Nevertheless, citizen involvement in making political decisions has its shortcomings, which are often overemphasized, all with the aim of excluding citizens from the decision-making process on public policies. The biggest opponents of true citizen involvement are politicians whose “power” is limited by citizen involvement models. One of the key arguments against citizen involvement is the inability and reluctance of “ordinary” citizens to make quality decisions. Inclusion and participation models are very diverse. This paper puts an emphasis on realizing the principle of subsidiarity through citizen participation in decision-making at local levels through sub-municipal self-government form.

This paper presents the results of research aimed at gaining insight into the attitudes and opinions of local politicians (chiefs/mayors, presidents of representative bodies of local self-government units and council members of sub-municipal committees) in Osijek-Baranja and Vukovar-Srijem counties on the need for and opportunities for citizen participation through sub-municipal self-government form. For the purposes of the research, a questionnaire was prepared and sent to the respondents via e-mail. The starting hypothesis of the paper is H1: Local politicians do not support sub-municipal decentralization. Descriptive statistics and appropriate statistical analyses were used to analyse the research results (Kruskal-Wallis H test with Bonferroni test as a post-hoc test, Mann Whitney U test, Kendall's Tau-b correlation coefficient (τb), Cramer's V (φc) and Ordinal Regression PLUM analysis). The results show statistically significant differences in the responses between individual categories of respondents.

In addition to the introductory part, the paper consists of a theoretical part that argues the importance of citizen participation in decision-making as a key element of democracy, a description of the methodology of the conducted research, research results, and finally the conclusion. The paper’s contribution to administrative science is reflected in a comprehensive theoretical analysis and original research results that can serve as a basis for empowering citizens and their true involvement in decision-making.

CHALLENGES OF PERSONAL DATA PROTECTION ON THE INTERNET -IMPACT ON DEMOCRACY, PUBLIC ADMINISTRATION AND THE RULE OF LAW IN THE EU

Mirko Klarić — 2024-07-24

Rapid development of information and communication technologies brings many challenges and risks for the protection of personal data since the internet has become enormously influential in virtually every aspect of daily life. Privacy and data protection are interrelated since data protection is a legal mechanism that ensures privacy of the subject on the Internet. Privacy is a fundamental human right, recognized in many international and regional human rights documents. The misuse of technologies has just recently shed some light on the meaning and importance of this subjective right in contemporary societies, and has also pointed to the problem of defining its content in context of informational and technological development. Digital transformation also affects the way how companies analyse consumer preferences in order to create personalized ads. The paper examines the right to privacy of personal data, existing legal framework for the protection of privacy and personal data and its impact on the rule of law in the EU, focusing on the examining of existing rules on processing personal data on the Internet, particularly legal regulation and challenges of processing personal data for the purpose of profiling and behavioral advertising on the Internet, using cookies. By processing data, companies on the Internet aim to develop new advertisements, products, and services specified to the particular consumer needs. Recent landmark decision of the Court of Justice of the European Union C – 252/21, (Meta Platforms and Others v. Bundeskartellamt) is analyzed as well, because it clarifies several points of data protection law, namely GDPR, regarding personalized use of consumers' personal data for behavioral advertising on social network platforms. The Court of Justice of the European Union made it clear that the personalization of advertising financed by the Internet social network Facebook cannot justify the processing of (sensitive) data if there is no consent given by the data subject. According to development of legislation of the European Council and the European Parliament and legal practice of the Court of Justice in digital transformation development, personal data protection became more significant and important part of regulatory framework the European Single Market. This regulation specific influences on approach and acting of public institutions, governmental bodies and private entities in personal data protection. This paper will analyze how challenges of personal data protection can influence on public institutions activity and citizens’ rights in two fields of regulation: access to personal data and possibility of collecting, using and manipulation of personal data with role of public institutions in personal data protection.

THE RULE OF LAW IN SPATIAL PLANNING AND BUILDING

Mateja Held — 2024-07-24

As stated in the Venice Commission Report, the rule of law embraces several aspects, such as legality, legal certainty, prevention of abuse (misuse of powers), equality before the law and non-discrimination, and access to justice. Stability and consistency of law and legitimate expectations as a part of legal certainty are key factors in every democratic country. However, even for countries where democratic standards are highly developed, achievement of all aspects of the rule of law can be a challenge.

Areas such as spatial planning and building are very dynamic in their core. However, this should not be an obstacle for stable and long-term regulation. Western democracies are characterized by the long-lasting acts and other regulation in building and spatial planning. Croatia, however, has constant changes in the basic regulation covering mentioned areas. For example, in issuing a building permit, the procedure can be so long lasting that all the relevant regulation may change in the meantime. This affects the investor, the owner of the property and possibly infringes their constitutional rights. Since the issuing of a building permit is in the area of administrative law, the aim of this paper is to analyse which constitutional rights may be affected during frequent changes of basic regulation. The other aim is to research and analyse whether national bodies and courts protect constitutional guarantees in administrative proceedings, and if not, what are the reasons for such practice.

This paper is divided into five sections: background and regulatory framework, the rule of law in spatial planning and building, right to a fair trial, protection of property in administrative matters, and conclusion.

Methodology used in this paper is normative, comparative, teleological and deductive. The research includes relevant regulation and available domestic and case law of the European Court on Human Rights. Paper is based on domestic and international documentation issued by relevant bodies, such as European Commission Reports, Venice Commission Report, etc. Teleological method is used for interpretation of the regulation and deductive method for the conclusion. Teleological method is used also for recommendations regarding a better application of the principle of the rule of law.