Review of European and Comparative Law最新文献

{"title":"European Investigation Order – Selected Problems on Polish Implementation","authors":"Krzysztof Woźniewski","doi":"10.31743/recl.12359","DOIUrl":"https://doi.org/10.31743/recl.12359","url":null,"abstract":"The paper presents selected key problems of Directive 2014/41/EU regarding the European Investigation Order in criminal matters within the context of its Polish implementation in 2018. The paper focuses on the concept of investigative measures, administration of justice and exclusionary evidence rules as a limitation of issuing a Polish EIO. Additionally, the study attempts to approximate the reduced procedural mechanism in the context of issuing the ECI.","PeriodicalId":337306,"journal":{"name":"Review of European and Comparative Law","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129409688","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Protection of Social Rights as a Permament Challenge for the European Union","authors":"Joanna Ryszka","doi":"10.31743/recl.11955","DOIUrl":"https://doi.org/10.31743/recl.11955","url":null,"abstract":"Social rights protection in the European Union has undergone significant development. Currently their protection is regulated by relevant treaty provisions and the Charter of Fundamental Rights (Charter), both of a primary law nature, as well as by the non-binding European Pillar of Social Rights (Pillar). The aim of the paper is the assessment of the social rights protection in the EU, and whether all social rights provided in the CFR have their counterparts in the EPSR, hence whether and in what way the EPSR assists the actual exercise of social rights provided by the CFR. Comparing the content of the above-mentioned legal instruments makes it possible to answer the question whether all social rights provided in the Charter have their counterparts in the Pillar. This can help determine whether the latter affects the implementation of the former. If the answer is in the affirmative, it can further allow for determining in what way the principles of the Pillar assist in the actual exercise of social rights provided by the Charter. This is very important taking into account the need for an ongoing response to unforeseen threats, like for example COVID-19. The social aspects of EU integration thus are and will remain a subject of interest in the nearest future.","PeriodicalId":337306,"journal":{"name":"Review of European and Comparative Law","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122002773","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Admissibility of Evidence Obtained as a Result of Issuing an European Investigation Order in a Polish Criminal Trial","authors":"Hanna Kuczyńska","doi":"10.31743/recl.11815","DOIUrl":"https://doi.org/10.31743/recl.11815","url":null,"abstract":"This article analyses the admissibility of evidence gathered by the Polish procedural authorities as a  result of issuing an European Investigation Order, on the basis of provisions implemented due to the adoption on the 3th of April 2014 of the Directive of the European Parliament and of the Council regarding the European Investigation Order in criminal matters. This Directive created a mechanism that allows for transfer of evidence between EU Member States. In this text the question will be answered how to deal with results of investigative measures that have been legally obtained in the executing state but despite acting in accordance with the legality principle by both states, happen to be illegal in the issuing Member State. Another discussed problem is how the rules of admissibility of evidence obtained from the result of issuing an EIO work in Poland – or at least how they should operate. The second discussed issue thus will refer to the current provisions in force in Poland regulating the method of dealing with evidence obtained abroad – that is also with evidence transferred from other Member States. It will be shown that they are unclear and may lead to undesirable results. In addition,  suggested changes in Polish law will be proposed.","PeriodicalId":337306,"journal":{"name":"Review of European and Comparative Law","volume":"49 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125692768","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Universalism of Human Rights: Notion of Global Consensus or Regional Idea","authors":"Krzysztof Orzeszyna","doi":"10.31743/recl.12428","DOIUrl":"https://doi.org/10.31743/recl.12428","url":null,"abstract":"This article deals with the universal nature of human rights recognised by all civilisations and legal systems. The important thing is that the actions of the state are consistent with the content of these rights is justified by the fact that they protect the dignity of every human being and enable cooperation between people. Universal treaties impose the same international legal obligations in the field of human rights on as many states as possible. Regional treaties perform this function in relation to a group of states. It seems, however, that for the full protection of an individual’s rights, the ideas of universalism and regionalism of human rights need to complement each other. No regional system can exist if it is inconsistent with the norms and principles of the Universal Declaration of Human Rights.","PeriodicalId":337306,"journal":{"name":"Review of European and Comparative Law","volume":"07 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131349044","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"United States Supreme Court Approach to First Amendment Freedom of Religion in Response to the COVID Pandemic","authors":"Delaine Russell Swenson","doi":"10.31743/recl.12707","DOIUrl":"https://doi.org/10.31743/recl.12707","url":null,"abstract":"The 2020-21 Covid 19 Pandemic has raised many legal challenges as governments world-wide have struggled to deal with the public health and safety challenges of Covid. At the center of many of these decisions is the need to balance public health protections against other rights that have been infringed by legislation related to Covid Pandemic restrictions. One of the most important rights that have been implicated by Covid restrictions in the United States has been in the area of restrictions on religious worship which implicates the right to freedom of religion as enshrined in the United States Constitution. During the time of the Pandemic the United States Supreme Court, as the final arbiter of the United States Constitution has had to work to balance the interests of the government in protecting public health and safety with the right to freedom of religion. The Supreme Court’s approach to these cases reflects the difficulties inherent in balancing two such important interests in difficult circumstances and also represents the reality of the shifting majority in the Court as a result of new Justices appointed under the administration of Donald Trump. The Court has transitioned from a majority that opposed restrictions on governmental action during COVID to a majority that is more willing to stop governmental action that is deemed to be in violation of the Free Exercise of Religion Clause of the First Amendment.","PeriodicalId":337306,"journal":{"name":"Review of European and Comparative Law","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127811075","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Prohibition of Discrimination on Grounds of Nationality in the Freedom of Movement of Persons within the EU in the Light of Case Law of the Court of Justice of the European Union","authors":"M. Bator-Bryła","doi":"10.31743/recl.12340","DOIUrl":"https://doi.org/10.31743/recl.12340","url":null,"abstract":"The subject of this article is to analyze the meaning of the prohibition of discrimination on grounds of nationality in the light of the provisions of primary and secondary European Union law and the case law of the Court of Justice of the European Union, which is inherent to the functioning of the internal market and EU citizenship. \u0000The prohibition of discrimination on grounds of nationality is undoubtedly one of the main goals of the European Union[1] in the social and economic context, which was reflected in the localization of the matter in question in the primary law of the European Union[2], in secondary law and in the jurisprudence of the Court of Justice of the European Union (CJEU). The Treaty on European Union (TEU)[3] and the Treaty on the Functioning of the European Union (TFEU)[4] indicate equality as one of the EU values (Article 2 TEU), require it to be promoted and combat all discrimination (Articles 8 and 10 TFEU) and prohibit discrimination due to the criteria indicated therein (Articles 18 and 19 TFEU). In secondary law, this principle was expressed primarily in the Regulation of the European Parliament and of the Council No. 492/2011 on the free movement of workers within the Union and in art. 24 of Directive 2004/38/EC 2004 on the right of citizens of the Union and their relatives to move freely[5]. \u0000A special role in this area is played by the case law of the Court of Justice of the European Union (CJEU), which stated that all authorities of the Member States are obliged to refuse to apply a provision of national law that is contrary to the prohibition of discrimination on the grounds of citizenship (Article 18 TFEU)[6]. Moreover, national measures may be examined in the light of art. 18 TFEU, but only to the extent that they apply to situations not covered by specific non-discrimination provisions included in the Treaty[7]. \u0000The author puts forward the thesis that the analysis of CJEU jurisprudence reveals a visible dissonance between the application of national regulations of the Member States and the provisions of EU law in this matter, which significantly hinders the implementation of the principle of non-discrimination in practice. Discrepancies mainly occur in domestic legal acts due to the improper drafting of national legal provisions and / or their misinterpretation by national judicial or administrative authorities. It should be emphasized that the Member States are obliged to comply with EU law, which is not tantamount only to the obligation of state authorities to respect directly applicable acts, or to implement required regulations into internal law, but also the obligation to interpret and apply internal law in a manner that does not violate the requirement resulting from EU law[8]. Judicial and administrative authorities of the Member States should therefore interpret national law as far as possible, in line with EU law, because the limits of the pro-EU interpretation will be determined by the powers conferr","PeriodicalId":337306,"journal":{"name":"Review of European and Comparative Law","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132674989","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Inter-American Court of Human Rights Advisory Opinion OC-23/17 on the Relationship between Human Rights and the Environment","authors":"Przemysław Siwior","doi":"10.31743/recl.11915","DOIUrl":"https://doi.org/10.31743/recl.11915","url":null,"abstract":"On 15 November 2017, the Inter-American Court of Human Rights issued an advisory opinion OC-23/17 on the relationship between human rights and the environment. The opinion responded to a request made by Colombia pursuant to Article 64(1) of the American Convention on Human Rights regarding extraterritorial jurisdiction of state parties to the Convention resulting from mega-infrastructure projects in the Greater Caribbean region. \u0000The purpose of this article is to discuss the general issues dealt with by the Court, concentrating on the significance of this Advisory Opinion for international law. The opinion contains two main interesting aspects. First, in the light of the opinion, states are responsible for the environmental damage they cause, regardless of whether it occurs within their borders or beyond them. Second, the Advisory Opinion recognizes that the right to a healthy environment is an autonomous, fundamental human right that shall be protected.","PeriodicalId":337306,"journal":{"name":"Review of European and Comparative Law","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129862591","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Powers of the Supervisory Body in the GDPR as a Basis for Shaping the Practices of Personal Data Processing","authors":"Paweł Hajduk","doi":"10.31743/recl.10733","DOIUrl":"https://doi.org/10.31743/recl.10733","url":null,"abstract":"The purpose of this article is to analyse the competences of the supervisory authority provided for in the General Data Protection Regulation (GDPR) as a tool to shape the practice of personal data processing. This article verifies the thesis that the status of the supervisory authority formed in the GDPR, taking into account the authority’s independence, makes it possible to exercise the authority thoroughly, which is the basis for shaping personal data processing practice. Supervisory authorities have a wide range of powers to carry out the duties assigned to them. This is guaranteed by their independence. The exercise of powers resonates with all entities that fall under the jurisdiction of those authorities. The decisions of the authorities become the subject of interest of both the literature and personal data administrators. The powers connected with imposing administrative penalties might play a particular role. Their imposition causes that entities which are in similar circumstances may expect to be subject to the same penalties. In order to avoid this situation, they tend to adapt their practices to the model adopted in the decision. Opinions and recommendations, as well as codes of conduct approved by the supervisory authorities for particular sectors, which are a benchmark for administrators in those sectors, play an important preventive role.","PeriodicalId":337306,"journal":{"name":"Review of European and Comparative Law","volume":"61 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124441375","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Employment of Adolescents and Children in the Aspect of Polish Educational Reform – Chosen Legal Problems","authors":"M. Kloczkowska","doi":"10.31743/recl.11442","DOIUrl":"https://doi.org/10.31743/recl.11442","url":null,"abstract":"The employment of adolescents is an extremely important phenomenon, although doctrine rarely discusses it. This solution enables young people to gain qualifications early and promises long and successful cooperation for the employer. It should be remembered, however, that at such a young age the most important sphere of life is not work, but education and appropriate psycho-physical development. Bearing in mind the delicacy of children and adolescents, it is necessary to create legal constructions which will protect young people from too early collision with problems connected with work such as: stress, exhaustion, and pressure. \u0000The notion of adolescence is constantly intertwined with the notion of child and it is not easy to judge when these terms are used. This article intends to discuss these terms, and to present them through the applicable laws. In addition, the article presents research on the employment of adolescents and children in Poland based on reports from the National Labour Inspectorate. \u0000The legislator had a difficult task - to create appropriate regulations which would not only make work possible, but at the same time properly secure the already mentioned most important spheres of life of adolescents and children. This task undoubtedly becomes even more difficult when the change of other legal acts forces a rush to regulate such a delicate legal sphere. The aim of this article is to present advantages and disadvantages of current legal constructions based on the analysis of regulations and statistics.","PeriodicalId":337306,"journal":{"name":"Review of European and Comparative Law","volume":"53 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122113663","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Space Tourism Challenges","authors":"M. Polkowska","doi":"10.31743/recl.12223","DOIUrl":"https://doi.org/10.31743/recl.12223","url":null,"abstract":"Space is a new destination for tourism. Today tourists can travel the world using many different modes of transportation, including road, maritime, and air. People always want to discover new destinations. Human beings strive to break borders and go beyond - even to the stars. There are new technical and commercial challenges and innovations in reaching outer space. The new transportation business of today has already experienced many ups and downs, but definitely big projects, such as traveling to the Moon or Mars remain the purview of the perennial space powers. The Author considers what kind of challenges space tourism brings (in the commercialization era) and what kind of space governance and policy is needed to make this tourism efficient. Some comparisons referring to airspace and outer space aspects, such as managerial, organizational, and legal have been made. The basic analysis made in this article indicates that the commercial space industry seeks to be new space operators, provided that they operate in a safe and secure manner according to international rules and policies. Good strategic planning and management of space is the key.","PeriodicalId":337306,"journal":{"name":"Review of European and Comparative Law","volume":"124 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116315838","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}