European Union Legislation

The European Legislation is a specialized scientific journal that studies the law and legal practice of the European Union. Considering the importance of the journal for the harmonization of domestic law with the law of the European Union, i.e. for harmonizing the legal system of the Republic of Serbia with the European legal acquis (acquis communautaire), the journal has a special importance for the achievement of strategic state goals. The journal publishes unpublished original and review scientific works, as well as expert analyzes in which new experiences from the empirical study of certain legal and political areas of European integration are offered. The magazine has been published continuously for over two decades, four times a year in four separate volumes or in the form of two issues.

  

Latest issue: European Legislation Vol. 23 No. 86/2024

Institutions

Election of the European Commission
European Legislation, 2024 23(86):11-20
Abstract ▼
According to the ideas of Jean Monnet, one of the creators of the European Communities, the European Commission was supposed to be a specific supranational body. In practice, the Commission has hybrid elements marked by the influence of member state governments on its composition. The governments of the member states first propose members of the Commission, ensuring they are unbiased and qualified individuals. For membership in the Commission, member states nominate experienced national politicians with professional experience performing the functions of ministers or prime ministers. The role of the European Parliament in the election of the European Commission is indispensable since the European Parliament approves the selection of candidates for the president and members of the European Commission and the appointment of the Commission as a whole.

Legislation

Anonimity in the EU law: the right or abuse of the right
European Legislation, 2024 23(86):21-33
Abstract ▼
Anonymity means concealing one\\\'s identity. Anonymity protects against many things and is primarily used under the pretext of protection against possible retaliation to which a person who anonymously reports something or points out a problem may be exposed. On the other hand, anonymity also protects against liability, which means that a person who reports something anonymously cannot be held criminally liable if it is established that his reporting was false. According to what has been stated, anonymity can be seen as a right and a legal possibility to report possible illegalities in the work of certain state bodies, officials, political organisations, and the like. It can also be seen as an abuse of rights because, behind anonymity, extreme and malicious reports can be hidden without a logical and truthful foundation. The European Anti-Fraud Office (OLAF) publicly invites all interested citizens of the European Union to report any form of fraud with the aim of harming a person. Also, Europeans are called to report irregularities in handling. As a solution, the possibility of anonymous registration is given, with the most precise indication of the available information. Therefore, anonymity is encouraged, and it guarantees the reporting person that he will enjoy special protection. The issue of abuses is ignored or deliberately marginalised.
Interpretation of cyberstalking in the Austrian Criminal Code
European Legislation, 2024 23(86):34-46
Abstract ▼
Cyberstalking, the use of digital communication and technology to harass, intimidate, or persecute another individual, is a negative consequence of technological development. In the European Union, illegal cyberstalking is regulated by framework legislation such as the E-Commerce Directive or the Digital Services Act. Essentially, however, these activities within the EU member states are sanctioned by national criminal legislation. In order to illustrate the solutions present in the EU member states, the authors will analyse the Criminal Code of Austria in the subject paper. Through the legal interpretation of the Austrian Criminal Code, the authors will try to provide explanations about the illegality of cyberstalking as a criminal offence by drawing certain conclusions regarding the essence of this offence, its elements, legal consequences, and punishment. In a broader context, the authors analyse the challenges and risks brought by the development of digital technologies. In this regard, the authors state the facts that victims of cyberstalking often suffer from anxiety, sleep disorders, nightmares, or depressive moods. They frequently change their social behaviour, which manifests through introversion and passivation, leading to a significant decline in their professional activities. As a rule, such mental disorders cause grave damage to the health of the victims of this crime, as evidenced by the analyses from health practice.

Economy, competition, entrepreneurship

European Union regulation on foreign subsidies which distort the internal market
European Legislation, 2024 23(86):47-66
Abstract ▼
In recent years, foreign subsidies have significantly damaged the EU internal market. They led to unequal market competition among companies in various economic sectors, which, thanks to foreign financial aid, achieved profits that they could not have achieved under normal market conditions. The approval of subsidies by third countries negatively impacted public procurement procedures, capital concentration, and the acquisition of strategic assets, such as critical infrastructure or innovative technologies. Since no existing EU instrument on the provision of state aid dealt with this issue specifically, especially not with the problem of subsidised investments, financial investments, and subsidies in the field of service provision, it was necessary to fill the existing legal gap by adopting a new regulatory framework that would improve this situation. Therefore, in May 2021, the EU Commission presented a proposal for the Regulation on Foreign Subsidies. The proposal was adopted by the European Parliament and the Council after a mutual agreement in December of the same year. The regulation on foreign subsidies establishes a set of rules for the EU to deal more effectively with foreign subsidies that cause distortions and undermine the level playing field in its internal market based on a competitive market economy.

Finances

The influence of the progressive development of international tax law within the framework of the OECD on the tax law of the European Union
European Legislation, 2024 23(86):67-90
Abstract ▼
The paper examines the impact of the progressive development of international tax law within the Organisation for Economic Cooperation and Development (OECD) framework on the Tax Law of the European Union (EU). Through the analysis of the activities of the OECD in the previous few decades, the author concludes that this organisation made a significant contribution to the systematisation and legislation of the rules of international tax law, leading in many respects ahead of the United Nations. Using the Tax Law Institute\'s method of conceptual analysis of “tax base erosion and profit shifting”, the author presents the latest legal solutions proposed by the OECD, accepted at the world level. Through a comparative analysis, the author also examines the relationship between the OECD\'s general anti-abuse rule against tax base erosion and profit shifting and the general anti-abuse rule accepted within the EU. In the final part of the paper, the author presents the results of the analysis, which determine that in solving the problem of erosion of the tax base and profit shifting, with the help of the general anti-abuse rule, the OECD exerted a significant, even decisive influence on the EU rules. In this sense, the general legal act of the EU in this matter represents an adaptation to its specific needs for solutions previously adopted by the OECD.

Agriculture

Regulation of the European Union on organic production
European Legislation, 2024 23(86):91-112
Abstract ▼
The paper discusses the European Union Regulation 2018/848 on organic production. Through the application of legal methodology, the author tries to explain the processes and measures prescribed by this regulatory act. At the same time, through the analysis of the text of the Regulation and the processing of current statistical data, the author pays special attention to the interpretation of the rules on organic production. Organic production has an important social role as it provides market demand for specific products intended for human consumption with a high level of biodiversity, conservation of natural resources, and application of high animal welfare standards. In addition to the general rules on organic production, the regulation also contains rules related to the conversion period, the ban on GMOs, and the rules on the production of plants, livestock, etc. Through the interpretation of the mentioned rules and rules related to marking, certification, and official control, the author tries to inform the wider professional public about the necessity of harmonising domestic legislation with the legislation of the European Union in the field of organic production. Finally, he concludes that by transposing the solutions contained in the Regulation in question, the Republic of Serbia would be able to approach unique European standards in the fields of organic production and rural development.

Security policy

Civil control of the security sector
European Legislation, 2024 23(86):113-126
Abstract ▼
A rational approach to modern civilian control of the security sector is a very important issue for achieving the well-being of people in our society. Bearing this in mind, the Assembly of the Republic of Serbia, made up of elected representatives of the people, would have to cooperate very closely with the government, security authorities, and services. The Assembly is responsible for establishing legal frameworks, regulating budget funds, and overseeing the work of the entire security sector. The execution of the aforementioned powers would have to be done in acordance with the principles of mutual trust and public dialogue. In addition to the Assembly, the Protector of Citizens (Ombudsman) and the independent media should help citizens and their political representatives with timely and accurate reporting. Considering the importance of the security sector not only in Europe but also in the wider international community, every country should strive to legally regulate this specific area. In this regard, the authors of this work also strive to bring certain knowledge and professional experiences closer to a wider readership to point out the importance of the system and principles of modern civilian control of the security sector

Regional policy

The role of the Serbian Orthodox Church in the regional political activity of the Republic of Serbia
European Legislation, 2024 23(86):127-139
Abstract ▼
The paper analyses the role of the Serbian Orthodox Church in the current political activity of the Republic of Serbia. Through a case study, the authors examine the relations of the Serbian Patriarchate with the Bulgarian and Macedonian Orthodox Church—Ohrid Archdiocese. In this sense, they strive to shed light on the role of the Serbian Orthodox Church in social trends through a historical-political sequence. In this sense, the paper seeks answers as to whether the Serbian Orthodox Church is a de facto determinant of political events in Serbia, i.e., whether it influences state decisions on foreign policy, including those related to political processes such as European integration. Through the analysis of current political events in relations with Bulgaria and North Macedonia, the authors emphasise the importance of the recently closed church dispute with the Macedonian Orthodox Church. At the same time, they express their concern regarding the open issues between Belgrade and Sofia, not only about the disagreement regarding the autocephaly of the Macedonian Orthodox Church but also about other important political issues.

Social policy

Analysis of key strategies for employment and employment protection in the EU and the Republic of North Macedonia
European Legislation, 2024 23(86):141-160
Abstract ▼
The author of the subject paper will discuss employment strategies that are a fundamental component of the European Union’s (EU) employment policy and employment strategies found in the Republic of North Macedonia’s system. The goal is to see their advantages and possible disadvantages through comparative legal analysis, synthesis, and deduction of the key documents of the EU and the Republic of North Macedonia. The documentary basis used in this paper covers a wide range of written documents (strategies) created by key institutions of the EU and the Republic of North Macedonia, such as the Strategy for the Employment of Young Personnel and the Employment of Foreign Nationals in the EU and the Employment Strategy in the Republic of North Macedonia for 2022-2027. In conclusion, the author makes predictions about the possibilities of implementing employment strategies, their comparability, and their interdependence in the context of the European integration process of the Republic of North Macedonia.

Educational policy

Safe schools: the world and Serbia - possible models
European Legislation, 2024 23(86):161-194
Abstract ▼
The deadly attack on the lives of students and staff at the “Vladislav Ribnikar” school in Belgrade on May 3, 2023, caused protests by citizens and the concern of parents and the community for the safety of students in schools in the Republic of Serbia. Professionals and the lay public immediately asked the question: How and why did such a crime happen? Politicians immediately vowed never to let it happen again. After a few days, questions were raised about the safety of students in schools, and conclusions were drawn with claims about who was responsible. There are a lot of questions and conclusions about whether Serbia has the mechanisms to provide security to schools, students, and staff, including claims that a physical approach to security must be included by turning the police into guards. The results of the research on criminal events in schools in the European Union and around the world indicate that it is not enough to turn the police into guards but that a multi-layered set of measures is needed as elements of support in the security process of protection of students, teachers, non-teaching staff, schools, and their environment. In Serbia, some other solution, approach, or model has not been offered, except for two traditional models: the “model of physical police work” and the “model of police guarding”. The paper presents the possibility of building and establishing the following safety models: “Safe School Model”, “National Service for Student and School Safety”, “National Association of Directors for School Safety”, “Office for Student and School Safety” at the level of cities and local self-governments, and “School Safety Auditors at all levels, from national through city to local”. At the same time, the possibility of adopting special legal acts such as the “Declaration on the Safety of Students, Staff, and Schools”, the “Code on School Safety” and the “Law on School Safety”, and other acts necessary to preserve the safety of schools in Serbia is examined.

Technology and media

European Union regulatory framework on artificial intelligence
European Legislation, 2024 23(86):195-216
Abstract ▼
As applications of generative artificial intelligence become more prevalent and sophisticated systems and models become commercial commodities, there is an increasing focus on regulating the abuse and use of this advanced technology. Although there are a large number of initiatives, both at the level of national jurisdictions and the global level (proposals on international agreements or the establishment of an international supervisory body), so far, only the European Union has made a serious attempt to protect citizens from the risks associated with the use of artificial intelligence. In 2021, the European Commission drafted a Proposal for the Regulation of artificial intelligence. It is expected to enter into force in 2026 at the earliest after it has been formally adopted by the Council and Parliament. By then, though, AI models could advance beyond recognition. In this article, the Proposal for the Regulation is considered in its entirety to indicate the importance of the legal matter in question and provide a basis for further research. The critical views put forward in the literature are presented. In addition, certain shortcomings in terms of the content of the draft regulation are indicated. It follows from the analysis that the backbone of the European approach to artificial intelligence regulation is twofold. On the one hand, the EU seeks to protect fundamental rights and ethical principles and takes into account legal certainty and transparency requirements. On the other hand, the intention to ensure that Europe does not fall behind in the technological competition on the international stage is also evident. An effort was made not to hinder the innovative potential and benefits of the European countries borne by new technologies. However, it is not always possible to achieve these two goals simultaneously.

Human rights

The position of irregular migrants in serious health conditions in the European Union
European Legislation, 2024 23(86):217-242
Abstract ▼
The Return Directive adopted by the European Parliament and the Council aims to establish common standards in procedures for the return of third country nationals illegally residing in the EU member states. The Directive aims to increase the number of implemented return decisions and establish an effective procedure. However, the Directive also foresees situations when a person cannot be returned due to the risk of violating the principle of non-refoulement. One of these situations is when a person cannot be returned due to their medical condition or lack of health care in their country of origin. In this regard, the author will represent the basic principles of the Return Directive and the practice of the European Court of Human Rights and the Court of Justice of the EU. The paper examines issues related to the regulation of legal status based on the Return Directive and the position of states at the national level. Second, the practice of the Court of Justice of the European Union concerning procedural rights is presented, as well as the implementation of standards at the national level. Based on the analysis of the first question, it can be seen that the Court of Justice of the European Union ruled out the possibility of providing subsidiary protection, pointing out that states do not have the obligation to provide a residence permit, which leaves the possibility of solving the legal status at the national level. The analysis shows the existence of divergent practices in resolving the status of long-term irregularly staying migrants as well as the lack of enabling permanent protection. The second part of the analysis leads to the conclusion that there are positive changes in the improvement of procedural rights. However, they also require an analysis of the non-refoulement principle before issuing a return decision.
The status of children from same-sex partnerships in the European Union law
European Legislation, 2024 23(86):243-262
Abstract ▼
Within the European Union, the freedom of movement of citizens is one of the “cornerstones” of its legal order. However, for LGBT people, this guaranteed right has not been fully realized. Different legal regulations on parental rights for same-sex couples can cause problems when families move to another EU member state that does not recognise same-sex unions in its legislation. Children from these families may find themselves at a disadvantage, and the legal status of their parents may be unclear. Only a small number of states recognise full parental rights for same-sex unions. This paper examines the position of children from same-sex unions in EU law, focusing on their right to freedom of movement, family reunification, and family ties. The article analyses the practice of the Court of the European Union on these issues, and special attention is paid to the case of V.M.A., which represents a turning point in the recognition of the right of children from same-sex families to have both parents registered in the birth register. At the end of the analysis, the author indicates possible further directions for the reform of the position of children from same-sex unions in the communitarian law of the European Union and the importance of this topic for the Republic of Serbia.