Review of European and Comparative Law

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EISSN : 2545-384X
Total articles ≅ 177
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Review of European and Comparative Law; https://doi.org/10.31743/recl.13498

Abstract:
The subject of the paper is the legal status of consultative bodies dedicated to young people, which are established both in the Polish local government and in the French local government community. In both legal orders these bodies have a consultative and advisory character. However, there are some differences in their structure and forms of action, which may constitute a field of reflection on their legal status. In Poland and in France, there is a noticeable trend towards expanding the importance and tasks of these bodies in self-governing communities, which indicates a good direction of change. Due to an increase in civic awareness, youth structures in Polish and French local government are becoming an essential element in the creation of democratic administrative structures.
Review of European and Comparative Law; https://doi.org/10.31743/recl.13207

Abstract:
In its jurisprudence, the Constitutional Tribunal of the Republic of Poland often uses the comparative law method. For it, comparative material is not only the normative acts in force in other countries, but also foreign jurisprudence. This article presents the results of a quantitative and qualitative study of the judgments of the Polish Constitutional Tribunal in terms of the presence of references to the judgments of other constitutional courts. Reference by the Tribunal to foreign constitutional jurisprudence is a relatively rare practice, but not an occasional one. It was intensified after Poland’s accession to the European Union. Although the main point of reference for the Tribunal in its comparative analysis is still the jurisprudence of the German Federal Constitutional Court and constitutional courts of other Western countries, it also increasingly frequently reaches to the judgments of the constitutional courts of Central European and Baltic countries. The subject issue is part of the progressive process of the so-called transnational judicial discourse or judicial globalization. The reluctance of the Tribunal to reach in its rulings to judgments of foreign constitutional courts, which has been observed since 2017, may be the beginning of its assumption of an exceptionalistic attitude similar to the U.S. Supreme Court.
Review of European and Comparative Law; https://doi.org/10.31743/recl.13441

Abstract:
The effective Serbian Law on Obligations in the most part retained the general rules on invalidity of contracts from the former federal Law on Obligations from 1978. The Law explicitly differentiates two categories of invalid contracts: null and void contracts, on the one hand, and voidable contracts, on the other. Whereas the general legal consequences of both categories are principally the same, restitutio in integrum, null and void contracts have some other, more stringent legal consequences as well. The most important is the ban of restitution of performance of the party who acted in bad faith, which in cases when the contract grossly violates good morals may be supplemented by the forfeiture of the object of performance. The effective Serbian Law on Obligations, namely, still contains the rule retained from the former federal Law from 1978, according to which the court may order the party who acted in bad faith to transfer the object of his/her performance to the municipality of his/her residence or domicile. Voidable are considered contracts with flawed contractual intention, such as contracts concluded in mistake, deceit or under threat. In addition, voidable are contracts of minors older than 14 years concluded without the consent of their natural or legal guardian, or contracts of adults whose capacity is not completely excluded, but only partially reduced, concluded outside their capacity or without the consent of their legal guardian. Furthermore, since leasio is considered a case of mistake making the contractual intention flawed, the remedy is also the voidability of the contract. Under Serbian law, a contract is null and void, if it infringes public order, imperative rules or good morals, unless something else is prescribed by the law or the purpose of the infringed rule implies a different remedy. The illegality and immorality of a contract is scrutinised through its object (content) and cause. Aside these general rules, the Law on Obligations specifically qualifies usurious contracts as null. Yet, there are several means of „saving” a contract from the consequences of invalidity, primarily by performance, convalidation and partial invalidity. Non-existent contracts are clearly distinguished in the doctrine, but it is questionable whether the Law on Obligations envisages separate legal regime applicable to this category, distinct from the one applicable to null and void contracts. The law, namely, uses wording or implies in certain cases as if the contract had not been concluded at all. However, in the rules pertaining to legal consequences of invalidity refers only to null and void, and avoidable contracts. The doctrinal standpoints differ whether a separate legal regime applicable only to non-existent contracts could be implied from the general rules, regardless that no specific set of rules exists.
Review of European and Comparative Law; https://doi.org/10.31743/recl.13248

Abstract:
In a common law jurisdiction, according to the principle of stare decisis judges are bound to interpret a constitutional or common law principle by applying authoritative cases already decided. Parties in disputes pending before the courts must find and assess the prior cases on which they can expect that judges will rely. Not very long ago, research for such precedent involved reviewing known cases and linking them to other cases using topical digests and citators. Success with this approach required a patient, persistent, thorough, and open-minded methodology. Modern information accessibility gives previously unimaginable quick access to cases, including with tools that promise to predict judicial tendencies. But this technological accessibility can have negative side effects, including a diminished research aptitude and a stilted capacity to synthesize information. It can also lead to an inadequate account of the human factors that often cause judges to depart from predictions based on logical inference from prior cases. This article considers the extent to which the identification of precedent is essential in legal analysis, yet is of limited value in predictability as a result of judges’ unavoidably human perspectives. With examples from landmark cases, the article illustrates that judges sometimes make decisions based on considerations that will not be revealed in a mechanistic application of precedent. The article considers how evolving legal research tools and methods give access to precedent that in some respects makes the process more scientific, but in other respects can obscure the realities of how cases are decided. The article also gives examples of this paradox as demonstrated by today’s students who are learning how to do research, drawn from years of the authors’ teaching experience.
Review of European and Comparative Law, Volume 48, pp 67-84; https://doi.org/10.31743/recl.12336

Abstract:
The objective of the study is to verify the implementation, by the EU, of the treaties’ obligations to proliferate “non-trade” European values in agreements with Asian countries. The thesis of the study is that the EU with “new generation” agreements strengthens the cohesion of the western hemisphere and creates the conditions for its enlargement. An instrument supporting the strengthening and development of the western hemisphere is the policy of “change through trade” combined with the promotion of “free and fair trade”. We claim that this policy contributed to political change in the world – the expansion of international law, the principles of the UN Charter, and EU values. Influence beyond the parties to the agreements takes place, although formally the agreements only govern the relationship between the parties. This influence is the outcome of, among other things, demonstrating the implementation of the values and benefits of value-based cooperation. By agreements (FTAs, IPAs and political) with Asian countries, the network of connections among the states of the Western hemisphere is developed and the community of values reinforced. The institutionalisation of the community of values of EU-Asian countries also fosters the institutionalisation of ties among the democratic Asian countries.
Krzysztof Lasiński-Sulecki, , Ewa Prejs
Review of European and Comparative Law, Volume 48, pp 85-101; https://doi.org/10.31743/recl.12438

Abstract:
Although the general principles of law at first sight do not bring about numerous associations with the sphere of taxation where the processes of compliance with legal rules or applying them must end with a precise numerical result, both the relevance and the significance of these principles in the sphere of tax law are more and more noticeable. The principle of proportionality has been invoked in probably every second VAT judgment of the Court of Justice for years. The principle of legal certainty has made its way to the case law of the said court as well as the Constitutional Tribunal in Poland. The importance of other principles is definitely on the rise.
Review of European and Comparative Law, Volume 48, pp 157-173; https://doi.org/10.31743/recl.13007

Abstract:
The aim of this article is to present a general forecast of the development of processes of legal integration in the European Union in the coming years. The European Union is in ‘multi-crisis’, which may force the member states to adopt an organizational development scenario based on differentiation. The selectivity of this differentiation is understood both in terms of the heterogeneity of integration in some areas and the reduction in the number of states fully participating in integration. An analysis of the current trends and solutions proposed and taken by EU decision-makers shows that the EU legal system is not subject to federalization, but in fact the tendency to deepen integration does not conflict with intergovernmentalism. The multiplicity of problems resulting from the multi-crisis will most likely require the deepening of the current differentiation mechanisms and the emergence of new ones.
Review of European and Comparative Law, Volume 48, pp 7-28; https://doi.org/10.31743/recl.12240

Abstract:
Social arbitration as the third method of resolution of collective disputes can be used to resolve a dispute in an amicable manner. Thanks to this method, parties to the collective dispute can end their conflict thanks to the arbitration award with no need to go on strike. The author analyses the legal nature of arbitration awards and presents consequences of the related labour law legislation. The conclusion is as follows: current legal regulations are in need of change, especially when it comes to the execution, amendment and supplementation of an award issues as a part of social arbitration with the involvement of trade unions, employers or their organisations.
Review of European and Comparative Law, Volume 48, pp 209-234; https://doi.org/10.31743/recl.12857

Abstract:
The paper is dedicated to describing the way of reception by the Polish Constitutional Tribunal of the “chilling effect”, i.e. an institution related to such activities of public authorities that form an indirect act of deterrence regarding the execution of constitutionally guaranteed rights and freedoms, esp. the freedom of expression. The discussed concept has originated in judicial decisions of the US Supreme Court and has spread into many contemporary legal systems, including jurisprudence of the European Court of Human Rights. Although it is evident that the Tribunal “took over” that concept from the ECHR, it in fact developed its own, unfortunately internally inconsistent, understanding of the chilling effect. Four different ways of application of chilling effect may be noticed in judicial decisions of the Polish CT, while only two of them reflect the perception of this institution by the US Supreme Court and the ECHR.
Review of European and Comparative Law, Volume 48, pp 103-131; https://doi.org/10.31743/recl.12447

Abstract:
The author analyzes the problem of the implementation of judgments of the European Court of Human Rights (ECtHR). In light of the European Convention on Human Rights (ECHR), a special role in its control mechanism is played by the Committee of Ministers of the Council of Europe. Despite the measures taken, there have been delays in the execution of judgments or the lack of their implementation for years. The author analyzed this problem in light of the latest reports of the Committee of Ministers and the recommendations of the Parliamentary Assembly. He pointed to the need for greater activity in this process of other bodies of the Council of Europe, including: the Commissioner for Human Rights, the Venice Commission, the CPT, the ECRI as well as institutions of the civil society. In the last decade, the interest of the Parliamentary Assembly of the Council of Europe in this matter has clearly increased. The author postulates that parliamentarians sitting in this body should be more active in this regard in their countries. They have instruments of control on the executive power, which could be used to increase the effectiveness of the execution of the ECtHR’s judgements.
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