European Legislation Journal Archive
European Legislation Vol. 18 No. 67/2019
WITHDRAWAL OF A MEMBER STATE FROM THE MEMBERSHIP IN THE EUROPEAN UNION – THE CASE OF UNITED KINGDOM OF GREAT BRITAIN
European Legislation, 2019 18(67):9-19
Almost two years since the UK government has announced to the European Council its intention to leave the European Union the situation has not changed much. The British plan to leave this organization has remained confused, and the consequences are unpredictable and unclear. Theresa May did not have a parliamentary majority to adopt a withdrawal agreement concluded on 14 November 2018 with the European Union. Therefore, both sides are cautiously causing the consequence of the so-called hard Brexit, which would involve a withdrawal from the European Union without a concrete agreement. That way, it would be difficult to achieve the four basic freedoms of movement which would have as a consequence quite a decisive downturn in economic growth, not only in Great Britain but also in Europe. The third option mentioned in the British public is postponing the decision on Brexit. As time goes by, it seems that the step forward made towards the confederal arrangement of the European Union through the introduction of the right to withdraw from the founding treaty was not a good solution. Instead of discussing the essential reforms of the European institutional system, the public is increasingly concerned with destructive debates about the potential exit of the member states from the European Union, which ultimately calls into question the further course of European integration.
European Legislation, 2019 18(67):20-35
The paper analyzes the provisions of the domestic Law on extrajudicial proceedings of 2014, which regulate the procedure for deprivation of legal capacity. In that sense, the author points to certain conceptual changes whose purpose consists in the fact that the procedure of deprivation of legal capacity is pronounced by the extrajudicial court as a protective measure of limited duration. The Republic of Serbia harmonized its legislation with the aforementioned decision, as well as the introduction of periodic review of the court decision with the Recommendation of the Committee of Ministers of the Council of Europe no. R (99) 4 Principle 14. An analysis of the procedure for deprivation of legal capacity as a special legal protection procedure indicates the operationalization of the basic principles of the noncontentious proceedings that are conducted before the extrajudicial court. In principle, the extrajudicial court acts in accordance with the rules of the procedure by conducting the procedure for deprivation of legal capacity, the procedure for verifying the existence of the reason for the further duration of the imposed measure of deprivation of legal capacity, as well as the procedure for restoring legal capacity when the reasons for deprivation cease to exist.
Economy, competition, entrepreneurship
European Legislation, 2019 18(67):36-46
In the global economy, there is a tendency for changes in industrial policy. These changes encompass a series of innovations in production structures and the international market. It implies the entry of new actors into the world economic scene, such as China, Russia and India. The changes also include institutional changes that should lead to comprehensive European integration. Hence, new approaches in industrial policy aim to create a favorable environment for the development of the industry. An analysis of the development of industrial policy in the European Union is interesting and useful for several reasons. First, it sublimates different national economic interests. Secondly, it starts from a proactive attitude towards the implementation of activities focused on the harmonization of industrial systems and the promotion of market competition. In contemporary conditions, the EU industrial policy tends to adapt to the dynamic flows of industrial, technological and social development of the society.
European Legislation, 2019 18(67):47-64
Entrepreneurial policies in the EU were embedded in the EU 2020 Strategy devoted to smart, sustainable and inclusive growth. That announced the readiness of the EU to change the current entrepreneurial conceptual as well as the methodological paradigm in favour of the Schumpeterian type of entrepreneurship centered on innovativeness. When it comes to the sector oriented entrepreneurship policies they were devised with the aim to boost the fertility of the SMEs, but also with the aim to encourage the growth of the high growth companies in the European Union. The European Union prefers being “the most innovative region in the world,\" which allows us to reveal their twofold macroeconomic aims: more jobs, and sustainable as well as innovative economic growth. When it comes to the SEE region, it is important to note that the SEE 2020 Strategy was adopted in 2013 with the aim to encourage the SEE economies in their EU accession process. The SEE 2020 Strategy was prepared based on the principles inherent for the EU 2020 Strategy, taking into account limitation linked with the SEE stage of the economic and social development. One of the most important aims of the SEE 2020 Strategy is centered on more jobs in the SEE region, which allows us to conclude about the preference towards the completely different desirable type of entrepreneurship in the region, known as Knight’s Type of entrepreneurship. These findings were confirmed by the SEE population perceptions, presented in the Public Opinion Research (Public Opinion Barometer - Balkan Barometer) about a stronger willingness to work for the public sector instead for the private sector. Based on the fact that the Republic of Serbia is a part of the functional southeast European region, entrepreneurial policies in Serbia were devised with the aim to provide more jobs. The entrepreneurship policies devised in the Republic of Serbia were observed and created as an active labour policy tool, instead of the competitiveness and the development drivers. The entrepreneurial policies in the Republic of Serbia were created without regulatory impact analysis. They are mainly horizontal, devoted to the creation of the necessary preconditions for the SMEs fertility issues, rather than the vertical devoted to the innovative high growth companies with strong growth potentials. One of the main findings of the impact of the entrepreneurial policies in the Republic of Serbia on the business sector working conditions revealed strong preferences of the Serbian respondents towards the work for the public sector instead for the private.
European Legislation, 2019 18(67):65-80
Consumer protection legislation in the European Union generally refers to security measures (general product safety and responsibility for their malfunction), as well as on the protection of the economic interests of consumers (misleading and parallel advertising, distance contracts, unfair terms in consumer contracts, etc.). In the subsequent period, the consumer protection policy in the European Union will face different challenges due to certain processes and phenomena which condition the entire international economic order. These processes and phenomena primarily include the globalization of the market and rapid technological development due to which the EU member states will have to adapt their legislation to achieve more efficient and effective market competition.
European Legislation, 2019 18(67):81-93
The subject analysis involves examining the application of electronic documents in modern business transactions. Due to the importance of electronic business, the paper emphasizes the necessity of improving the legal regulations for the correct and objective recording of business transactions based on electronic documentation. The authors analyze the rules that follow the application of the electronic document. Based on the obtained results, the authors believe the implementation of electronic documentation must be in line with the global standards of electronic business. Further research on the subject matter would be useful in considering the possibility of introducing green public procurement into the legislative framework of the Republic of Serbia.
European Legislation, 2019 18(67):94-106
he process of globalization and strong escalation of economic life which especially intensified at the end of the previous century and the beginning of this has led to radical changes in international relations. Instead of traditional political goals, economic priorities have come to the forefront, while the economy has become the foundation of international relations. Therefore, the diplomatic economic engagement became the first-rate activity of states in their foreign policy appearance. For this purpose, they use diverse consular relations which represent the activities of the state on the basis of reciprocity. Through consular missions, relevant data is collected in a timely manner to protect the interests of states and their citizens. In this regard, the smooth functioning of the functions of business diplomacy in the European Union is of great importance. Assistance and support to all subjects of the foreign policy of the member states are provided by consular law. In this work, the role and place of this law in the EU and wider international environment will be considered.
DIRECTIVE (EU) 2015/849 ON THE PREVENTION OF THE USE OF THE FINANCIAL SYSTEM FOR MONEY LAUNDERING OR TERRORIST FINANCING
European Legislation, 2019 18(67):107-127
After Serbia entered into the enhanced supervision procedure by the Committee of Experts of the Council of Europe for Evaluation of Measures against Money Laundering and Financing of Terrorism (MONEYVAL), the problem of harmonization of domestic regulations with European and international standards, first of all with the recommendations of the Financial Аction Task Force (FATF) from February 2012, was updated. Since Serbia is leading negotiations on EU accession, it must fully harmonize its legislation with European standards in this area, in particular with the Fourth Anti Money Laundering Directive (Directive 2015/849 of the European Parliament and the Council of 20 May 2015 on the prevention of the use of a financial system for the purpose of money laundering or terrorist financing). Although Serbia at the beginning of 2019 made progress in meeting the FATF recommendations, it will have to take concrete measures from the action plan in the coming period to avoid the risk to remain on the so-called \"blacklist\" of countries that do not respect international standards in this field. Lack of political will to complete international obligations in this area could be a decisive factor in stopping institutional reforms and then, quite certain, the process of Serbia\'s accession to the European Union.
European Legislation, 2019 18(67):128-139
The paper presents an overview of the most important provisions of the Treaty Establishing the Transport Community between the European Union and the Southeast European Parties: the Republic of Albania, Bosnia and Herzegovina, the Former Yugoslav Republic of Macedonia, Kosovo*, Montenegro and the Republic of Serbia (signed in Trieste and Brussels, 2017) (“Treaty”). The Treaty represents a continuation of EU activities in terms of strengthening the regional integration of candidate countries and potential candidates for the EU membership. The first part of the paper points to the objectives of the Treaty, as well as the content of the rights and obligations that the Treaty prescribes. One of the key general obligations of the contracting parties of Southeast Europe could be the obligation to make relevant provisions of the European Union (EU) acts (set out in Annex I) “part of their internal legal order”. In general terms, the Treaty also specifies how the Contracting Parties from Southeast Europe should make the provisions of the EU acts (regulations, directives, decisions) part of their internal legal order. In that sense, the Treaty refers directly to seven groups of the EU rules (in total 179), which are considered directly relevant to the achievement of its objectives. The second part of the paper is dedicated to the EU rules to which the Treaty refers. These are rules concerning the following issues: transport infrastructure, rail transport, road transport, maritime traffic, inland waterway transport, environment, public procurement, competition and state aid. The final part of the paper emphasizes the (potential) significance of the Treaty on the Republic of Serbia (RS), especially from the standpoint of stronger regional integration, the implementation of the EU integration process and the harmonization of the internal with the EU rules.
European Legislation, 2019 18(67):140-152
This paper is written to present the concept and specifics of multi-modal transport, and the importance it has for the EU and neighbouring countries. Different scientific methods have been used during the research, of which the most significant are the historical method and method of content analysis. Sea freight transport has existed since ancient times. By developing a steam engine, the waterbearing transport of goods has become faster and safer and increased the load and power of ships, resulting in the possibility of transporting more goods. Over time, the specialization of ships for different types of cargo has arrived reducing the impact of natural conditions on the flow of travel and the cost of shrinking. However, sometimes only the use of waterways is not enough. The advantage of multi-modal transport is lower energy consumption and lower transport costs. The TransEuropean Transport Network envisages the development, improvement and maintenance of the existing transport infrastructure or the increase of the existing capacity of this infrastructure. Although the Member States are still the main entities in charge of the creation and maintenance of transport infrastructure, other entities such as regional and local authorities, concessionaires or airport and port authorities, are becoming important for the improvement of the multi-modal transport network and related investments. Cooperation with neighbouring and third countries is necessary to ensure inter-connectivity and interoperability between individual infrastructure networks. Therefore, the Union should support projects of common interest with those countries, and countries in the neighbourhood of the Union have the opportunity to improve their own infrastructure and engage in modern transport flows using additional financial resources. It is about large investments in infrastructure projects, but also in the education of personnel that will be able to follow technological innovations. The position and geographical features of the Republic of Serbia enable inclusion in projects related to the construction of the multi-modal transport network and the connection with the network existing in the Union.
THE TREATY ESTABLISHING THE ENERGY COMMUNITY AND IMPLEMENTATION OF THE EU REGULATIONS IN THE FIELD OF ENVIRONMENTAL PROTECTION
European Legislation, 2019 18(67):153-185
In this work, the author analyzes the Treaty establishing the Energy Community from the aspect of environmental protection and in relation to the obligations undertaken by the contracting parties by its signing and especially those that should be undertaken in order to protect, preserve and improve the environment. The obligations on the protection, conservation and improvement of the environment imply the adoption of the appropriate national regulations and policies to mitigate the effects of climate change. In this regard, the Treaty establishing the Energy Community aims to contribute to the strengthening of the regional ties, and to the faster economic and political integration of the countries of Southeastern Europe into the European Union. Starting from the fact that the functioning of the internal energy market of the European Union presupposes a single legal framework in all the territories in which it is applied, the contracting parties to the Treaty establishing the Energy Community which are not the members of the European Union are obliged to harmonize their internal legislation with the law of the European Union. This, per se, includes the harmonization of regulations in the field of environmental protection.
Security and defense policy
European Legislation, 2019 18(67):186-206
The new strategic concepts of NATO and the European Union should contribute to overcoming differences and shaping solutions that will lead to longterm stabilization. In this respect, the NATO Smart Defense concept and the EU Pooling & Sharing concept should contribute to building common capacities to provide an adequate and effective response to contemporary security challenges. In these concepts, NATO member states and the European Union can take military participation in order to eliminate the most diverse risks and threats. Participation involves joint and reciprocal engagement in the defined missions and tasks. Intensification of participation involves the use of new techniques, technologies and knowledge to preserve the existing resources. In the internal political plan, states are therefore obliged to anticipate measures to eliminate all potential threats, challenges and risks at the national and international level.
European Legislation, 2019 18(67):207-217
The Schengen Agreement has allowed the free movement of goods, people, services and capital as four basic freedoms of movement within the European Union. Observed from the security aspect, the diversification of threats and the current crisis in Ukraine affect the formation of a common EU foreign and security policy. In this work, the author analyzes the possibilities for creating a “Schengen zone” necessary for the transportation of military troops in case of an outbreak of the armed conflict. European security is largely dependent on the NATO Alliance as the dominant factor in this part of the world. There is a need within the official EU circles to form such a zone to respond quickly to potential threats. The basic hypothesis of the subject matter is based on the assumption that for the “Schengen military” a unified EU defense force must be formed beforehand.
European Legislation, 2019 18(67):218-236
The development of cross-border cooperation is necessary for the development of the member states of the European Union, but also for this very international organization based on the foundations of integrative processes in all social domains. Although the integrative processes are in constant dynamics and there are obviously visible positive effects, however, in these processes there are certain deviations that present contemporary international security challenges. Recognizing the fact that European integrations also include certain negative tendencies, one cannot lose sight of the fact that these processes, however hard and complex, have nevertheless led to a shift in the perception of European citizens about the common benefits by unifying the interests of their countries of origin. The European Union’s integration through regional integration is, hence, an unstoppable process that is not only based on the creation of more secure regions but also in the development of economic, political, cultural and social interregional relations. The subject analysis considers some of the basic issues of cross-border cooperation related to the role of the Council of European Municipalities and Regions, as well as the Euroregions in the context of European integrations.
European Legislation, 2019 18(67):237-245
Emergency situations are frequently happening and require a high level of preparedness in order to respond quickly and efficiently. The Netherlands has regulated its activities in emergency situations in the form of security regions. In the Netherlands, there is a high level of autonomy of the local self-government units, so their inclusion in the security regions is very simple. The establishment of the security regions refers exclusively to the operation of relevant entities in emergency situations in a given territory. The security regions are some type of organization whose members, in addition to the local self-government units, are subjects whose primary activity is an emergency response. The main participants in the security regions in the Netherlands are representatives of local self-government. The security regions do not jeopardize the system of local self-government in the Netherlands, but overlap with that system and cover the other sphere. The system of local selfgovernment in the Netherlands and the security regions cover different areas of the functioning of the state. It is a form of local self-government in the field of emergency situations. These two systems are merged through the units of local self-government and their competencies. The inclusion of the local self-government units in the security regions affects the design of these regions in accordance with the needs of a particular territory. At the same time, the division of work among the relevant entities is carried out in accordance with their capacities to increase efficiency. Each security region formulates its goals separately but also coordinates with other security regions. It may happen that an emergency situation hit two or more regions, so it is important that there is mutual cooperation. Carriers of activities in the field of security in these regions are emergency services, like the firefighting-rescue units, police and emergency services. The most important role is played by the firefightingrescue units because of the areas they cover in their regular activities and the knowledge they possess.
Science and technology
European Legislation, 2019 18(67):246-257
Modern technologies allow the transnational character of cyberspace. Hence, it is not at all sporadic that computer networks can become subject to various misuses. In this sense, computer wrecks can have a triple meaning. First, they can appear as a target or object of attack. Second, computer networks are both a technical tool and an attack tool. Third, they allow for the commission of a criminal offense. The cybercriminal act is carried out concealed and difficult to disclose, and it is even more difficult to prove it before the competent authorities. A particularly prominent problem in this matter is the abuse of the internet as a basic global communications computer network. In the following analysis, the authors pointed to the fact that 85.7% of the population in the European Union used the Internet in 2017, while 49.8% of the population used Facebook. Moreover, at the global level, 51.7% of the population used the internet in 2017 while 26.3% used Facebook. In the Republic of Serbia, in the period from 2015 to 2017, a continuous increase in the number of users in the field of application of information and communication technologies was observed. Also, certain criminological tendencies were identified, due to which it is necessary to improve the monitoring of the dynamics and structure of crime in the future.
European Legislation, 2019 18(67):258-277
The new industrial revolution and the development of information technologies in the conditions of the globalization process, lead to the rapid growth of scientific and technological innovations in all areas. Also, the emergence of an increasing presence of international competition in the trade of goods and services has stimulated higher investments in science, that is, in technological innovations, knowledge and creation of technical and technological new solutions, which intensified the economic development and improvement of international trade. One of the important factors of economic advancement is intellectual property, and investments in it have accelerated the economic development of those countries that saw the importance of intellectual creativity and provided to these countries significant advantage and even a monopolistic position in the international market. A significant influence on the world economy has a wide application of new products of intellectual property. Therefore, the legal aspects of intellectual property cannot be considered separately from the economic aspects. The processes of automation, control and automatic data processing are of increasing importance both for production and the provision of services. The lifetime of a product on the market is shortened either by the performance of new products or by technical and technological improvements of the existing ones. Therefore, the survival of the market is linked to the increasing importance of the traffic in industrial property rights, which provide and satisfy the need for innovation and improvement of the quality of products and services. In Serbia, more and more entrepreneurs take measures for the adoption of programs in order to strategically connect with the West and to train companies for business according to international standards. Quality enhancement processes increasingly appear as an organized need to satisfy all participants in business life. In this way, intellectual property becomes a TQM, a knowledge capital, where knowledge is the most important factor of success. In such relations well-designed and set up management should contribute to the manifestation of knowledge as a lever of development, and investment in it becomes an investment that requires continuity. The authors will present the main differences in the basic approaches to quality management, the purpose of the implementation of ISO 9000 and TQM, as well as the mutual relationship and the participation of intellectual property in upgrading and improving quality. Moreover, the analysis of intellectual property and management of the organization from the aspect of participation of employees in the research and the role of Benchmarking in the conditions of TQM operation, is necessary for the purpose of a more complete and clear understanding of TQM tools and quality techniques in the function of the results of the organization.
European Legislation, 2019 18(67):278-298
For thousands of years, women have been fighting for the right to education, a better position in society and against male domination. Despite the fact that justice and wisdom are female deities, women have been in a subordinate position for centuries. Women were in the best position in Egypt. Three millennia ago, Egyptian women could have been Pharaohs, army commanders, scribes and priests, which is not possible today. Under the influence of Greek civilization and later Christianity, women in Egypt gradually lost their rights. The equality between men and women in the land of Pharaohs disappeared, which was one of the essential values of this civilization never again realized in any country in the world until the First World War. In ancient Greece, despite many ideas that led to the progress of civilization, the position of women was rather unfavorable. During the Middle Ages, with the blessing of the church, the persecution of witches began to spread representing the most hideous violence against women. Paradoxically, women enjoyed the most extensive rights in monasteries. Viewed through the prism of history, women are in a subordinate position compared to men. In contemporary times, not only in Europe but also in the wider international milieu, the premature death of women and girls due to gender discrimination, unequal access to resources, due to violence and neglect are identified with the \"phenomenon of missing women\". The theory of the Nordic paradox shows that women with a higher economic status than their traditional partners are more exposed to violence. In the subject analysis, the author considered the process of developing and evolving the rights of women and concluded that gender equality through the reduction of traditional gender roles strengthened the view that violence against women was justified, and their success in life circumstances was often regarded as a certain threat..
European Legislation, 2019 18(67):299-322
European integrations are attributed with the power of beneficial influence to the realization of the rights of ethnic groups within the candidate countries for the membership in the European Union. In this sense, the process of joining the Union has pacifying effects on intra-state ethnic conflicts, since the state is expected to settle disputes and achieve internal political stability before accession. Namely, the candidate country is expected to provide its minority ethnic communities with rights in accordance with the standards set by certain acts and values embedded in the foundations of the European Union. The process of European integration, by its nature, implies states’ harmonization with the communitarian system, values and legislative. Besides harmonization, which is universal, known in advance and the same for every candidate, European integration provides the Union with a capability to condition candidate state’s advancement with the implementation of certain policies, some of which may refer to the protection of minorities. European integration, of course, is not the only factor that shapes the process of regulation of ethnic relations in a state. It is also affected and determined by domestic forces and circumstances in a candidate state. This article examines the determinants and potential of European integration’s power of regulation of intrastate ethnic conflicts. For that purpose, we will explore the role of the EU and integration’s effects on the problem of the Russian population in Estonia, the Albanian question in Macedonia and the Kurdish problem in Turkey. Conditionality of European integration has a positive impact on the status of minorities in candidate states, but not always the same or as a sole factor. Conditionality, on the one hand, is affected by strong EU’s or its important members’ interests, and in that sense, it may act inconsistently and with different degree of conditioning in different cases. On the other hand, conditionality may affect ethnic conflict only in combination with other factors, primarily, domestic circumstances in a candidate state, such as its political elites’ evaluation of the reward and its cost or relative distribution of power between the state and its minority community.
PRACTICE OF THE COURT OF JUSTICE AND THE EUROPEAN COURT OF HUMAN RIGHTS IN THE FIELD OF HUMAN RIGHTS PROTECTION
European Legislation, 2019 18(67):323-338
The development of the human rights system is one of the basic factors for the recovery of the international legal order after the Second World War. The European Union and the Council of Europe have implemented cooperation in the field of human rights, democracy and the rule of law in countries bordering the EU. The framework for the relationship between these two bodies is defined over several “exchanges of letters” between the two organizations concerning the consolidation and intensification of cooperation. The European Union sees human rights as universal and indivisible and actively promotes and defends it. This raises the question of the relationship between the two European courts, the European Court of Human Rights and the Court of Justice of the European Union in the field of human rights and fundamental freedoms. Namely, between these courts, there are no formal institutional ties. On that basis, there is a divergence in the case law of the two courts. Upon the Opinion 2/13, the notion of a dialogue between two European courts and thus the attempt to harmonize the judicial practice is somewhat pointless.
THE NON-REFOULEMENT PRINCIPLE IN THE ABSENCE OF ADEQUATE HEALTH CARE IN THE COUNTRY OF RETURN PRACTICE OF THE COURT OF JUSTICE OF THE EUROPEAN UNION
European Legislation, 2019 18(67):339-356
Application of the non-refoulement principle in the cases in which the risk of returning a seriously ill person emanates from the lack of adequate means for treatment in the country of return has developed relatively recently, first before the European Court of Human Rights and then before the Court of Justice of the EU. The inclusion of these cases involves the expansion of the non-refoulement principle. In addition to the request that the risk of persecution must emanate from the State authorities, or in some cases from persons who are not public officials, this type of cases implies that the risk also stems from the socioeconomic conditions in the country of return. However, since the third type of risk is very general in nature, it was interpreted very restrictively and linked to the notion of very exceptional circumstances and compelling humanitarian grounds. The application of the principle of non-refoulement in such cases was explained to some although limited extent in recent practice of the European Court of Human Rights. The Court of Justice of the European Union has followed this scarce practice of the European Court of Human Rights. However, the risk of deterioration in the health of a third country national suffering from a serious illness as a result of inappropriate treatment in his country of origin is not sufficient to warrant subsidiary protection secured by Directive 2011/95/EU, unless that third country national is intentionally deprived of health care. This means this person will be allowed to reside in the territory of the Member State, but will not be granted subsidiary protection status..
European Legislation, 2019 18(67):357-375
One of the most significant sources of arbitration is the Model Law of the UN Commission on International Trade Law (UNCITRAL). This Model is recommended to the countries since the inclusion of its norms in national legislation will contribute to the harmonization of the legal rules on the arbitration judiciary. The UNCITRAL Model Law strives to be an example or a model for the legal regulation of international trade arbitration, which means it has the character of an optional rather than a normative legal source. The solutions contained in this Model Law may be accepted by the national legislature in an integrated text or may be modified, with the degree of modification depending on the specific interests that the State concerned wants to protect. Many countries have accepted the legal concepts and solutions contained in the UNCITRAL Model Law either by adopting new ones or by amending the existing arbitration regulations. On the other hand, some national legislation did not accept the solutions offered by this Model. Using the comparative legal method in the analysis of national legislation, the author came to the realization of the extent to which the UNCITRAL Model Law has influenced the legislation of some of the most influential European countries.