European Legislation Journal Archive
European Legislation Vol. 20 No. 75/2021
IMPLEMENTATION OF THE EUROPEAN UNION LEGAL FRAMEWORK FOR THE SCREENING OF FOREIGN DIRECT INVESTMENTS DURING THE COVID19 PANDEMIC
European Legislation, 2021 20(75):5-19
The European Union’s common trade policy pays special attention to foreign direct investment. This is because foreign direct investment is an important source of economic growth, employment and innovation and a key factor in the Union’s socio-economic development. In the period before the outbreak of the Covid-19 virus pandemic, the European Union was the main investor and the most important destination for foreign investment in the world. The spread of the virus has led to disruptions in global supply chains, destabilisation of financial markets, and then to the negative effects of foreign direct investment resulting from the takeover of assets and technologies in strategically important sectors of the European economy. To avoid a new recession, the European Union has reacted decisively in order to protect its own economic interests. Thus, in March 2019, the European Union adopted Regulation 2019/454, which established a legal framework for screening foreign direct investments from third countries. The operational implementation of this legal framework began on 11 October 2020. The member states of the European Union are authorised to supervise foreign direct investments through the existing and newly established screening mechanisms, calling for reasons of security and protection of public order. Screening mechanisms presuppose compliance of domestic legislation with the adopted legal framework. Its implementation in practice should not lead to more drastic deviations from the usual standards of international business in the field of trade and investment.
HARMONISATION OF THE LEGISLATIVE SYSTEM OF THE REPUBLIC OF SERBIA WITH THE LAW OF THE EUROPEAN UNION IN THE FIELD OF CIVIL AVIATION
European Legislation, 2021 20(75):21-42
The “terms approximation” and “harmonisation” of national legal systems have been used carefully since the very beginning of the creation of the Community. The term harmonisation is a necessary precondition for harmonising the legal systems of different countries at the highest possible level. The reason for the harmonisation of legal systems lies in the basic need for the establishment or functioning of the common market, which is one of the main pillars of the Community. The legal basis for harmonisation for the EU Member States may be sought in the provisions of Articles 3 (f) and 94 of the Treaty establishing the European Community. Following the establishment of the single European aviation market and the expansion of air traffic in a liberalized market, the EU has developed a foreign aviation policy based on the accession of third countries to the European Common Aviation Area (hereinafter ECAA), provided that national legislative systems comply with EU regulations. For the Republic of Serbia, which is not a member of the EU, the harmonisation of national regulations with EU law is part of the overall strategy for joining the EU. The Stabilisation and Association Agreement entered into force on 1 September 2013, giving Serbia the status of an EU associated state. The transport policy and harmonisation of aviation laws with the acquis communautaire was provided for in Chapter 14. The two most important obligations our country has undertaken are establishing a free trade zone and harmonising legislation with EU law. The process of harmonisation of the legislative system of Serbia with the EU law in the field of civil aviation has been going on for almost 15 years through the process of accession to the ECAA. The question remains whether efforts to harmonise all aspects of air traffic will bring economic and social benefits to Serbia as well.
European Legislation, 2021 20(75):43-52
By adopting amendments to the Audiovisual Media Services Directive, the European Union has extended the concept of audiovisual media services to video-sharing platforms. The new approach also means new obligations for the member states, but also the European Union’s response to the growing influence of the Internet as a mass medium. This article provides an overview of the novelties in the Directive, with special reference to a key part, which is video sharing platforms. The paper also presents potential challenges and solutions in the implementation of new measures, both for the member states of the European Union and the Republic of Serbia.
DIRECTIVES IN THE LEGAL SYSTEM OF THE EUROPEAN UNION AND THEIR TRANSPOSITION INTO THE INTERNAL LEGAL SYSTEMS OF THE MEMBER STATES
European Legislation, 2021 20(75):53-71
The main goal of this paper is to examine the manner in which the place and role of the Directives are regulated in the legal system of the European Union (EU) in the context of the obligation of their transposition into the internal legal systems of the Member States. The paper discusses the hypothesis that the transposition of directives is not clearly regulated, and in some elements leaves room for different interpretations and implementation, including non-compliance with the norms of the directive. The analysis is based on the content of Article 288 of the Treaty on the Functioning of the European Union (TFEU), as well as other relevant provisions of this Treaty and the Treaty on the European Union. Starting from the specificities of the Directives as sources of law, the key elements important for understanding the obligation of their transposition into domestic legal systems are discussed (the concept and meaning of “transposition”, purpose, the competence of EU bodies, “result to be achieved”, the method of transposition, deadlines for transposition, reporting obligation to the Commission, etc.). The practice of some Member States, as well as various theoretical approaches and difficulties in the process of Directives’ transposition, are pointed out. The conclusion states that the transposition of directives into internal legal systems is a systemic issue that should be more precisely regulated having in mind several factors (competencies of this organisation, manner of adopting Directives, their implementation and control over compliance, specificities of the Member States’ legal systems in which Directives are transposed, etc.).
THE COURT OF JUSTICE OF THE EUROPEAN UNION AS A LAST RESORT OPTION FOR THE RULE OF LAW BACKSLIDING IN POLAND – A SPECIAL REVIEW OF THE POLISH JUDICIAL REFORM
European Legislation, 2021 20(75):73-89
The latest judicial reform in Poland has provoked numerous reactions in the academic legal space for threatening the rule of law as one of the founding pillars of the European Union. A series of controversial, politically motivated judicial reforms have been discussed before the Court of Justice of the European Union on several occasions, where the Court successfully identified shortcomings of the reformed Polish judicial system. The Court even went a step further by applying an extensive interpretative method when it comes to its scope of jurisdiction, contrary to the previous cases of this kind where mainly technical issues were at stake. Although the Court has significantly contributed to the protection and preservation of the rule of law principle, the Union is still faced with a lack of general consensus on this matter, as political institutions insist on tackling the Polish question primarily as a discrimination issue, rather than a rule of law issue, even though the reverse approach would be much desirable. The hand-down of a CJEU final judgment in the latest case on Polish judicial reform is expected to take place in the coming period, which will be interesting to observe given the lack of general will and cooperation among the main political actors in fighting the rule of law backsliding in Poland. Finally, the current situation in Poland can certainly be perceived both as an external and internal danger, hence requiring more attention at all levels in the forthcoming period. The CJEU has come under the spotlight once again as a final arbiter of constitutional issues in the Union, as it has always been the case in times of crisis.
European Legislation, 2021 20(75):91-106
The author deals with the issue of the position of employees with family in European law. Given that employees with family duties face a number of challenges in their professional lives, it is necessary for legislation to recognise these challenges and difficulties and to adequately respond to them. Establishing a balance between professional and family life is an imperative that must be adequately reflected in the legislation. In that sense, the paper analyses the regulation of the position of employees from family duties in European Community and non-Community law, i.e., the law of the European Union. Although this category of employees is to some extent protected, the guarantee of the highest possible level of protection in European legislation and practice should be encouraged.
FREE MOVEMENT OF PEOPLE WITHIN “THE FIRST WAVE” OF THE CORONAVIRUS PANDEMIC IN THE EUROPEAN UNION MEMBER STATES
European Legislation, 2021 20(75):107-126
The article deals with the limitation of certain human rights in order to protect human health and its justification. The paper focuses on examining the degree of restriction of freedom of movement of people from March to June 2020. In accordance with the principle of derogation from human rights, regardless of the state of urgency, restrictions must meet the requirements of legality, proportionality and necessity in a democratic society. The author examines the conditions of restriction from the aspect of correlation of the principles on which the concept of human rights is based, primarily the principle of limitation and the principle of prohibition of Abuse of Rights, as well as their derogation as a special kind of limitation. The author examines freedom of movement of people during the current pandemic, relating to the implementation of restrictive measures imposed within the EU Member States and evaluates their justification by the public interest.
(RE)POZICIONIRANJE EVROPSKE KOMISIJE NA TRŽIŠTU PRIRODNOG GASA: OD NOSIOCA LIBERALIZACIJE ENERGETSKOG TRŽIŠTA DO „EVROPSKOG REGULATORA”?
European Legislation, 2021 20(75):127-144
This paper deals with the position of the European Commission on the natural gas market, in the period from the adoption of the First Energy Package to the adoption of the Third Energy Package. The aim of this paper is to analyse the role of the European Commission regarding the process of liberalization and integration of the natural gas market in the European Union. The methods used in this paper include the analysis of the acts contained in energy packages, but also the comparison of different legislative solutions in three energy packages. In that sense, the posed research question is whether the European Commission has become a new “European regulator” on the gas market, thanks to the powers granted to it by energy packages, especially the Third Energy Package. The conclusion of the research is that the legislator did not envisage assigning the role of energy regulator to the Commission, but granted it far-reaching powers - especially when deciding on the exemption of new energy infrastructure. The last part of the paper covers legislative changes initiated by the Commission, which go in the direction of expanding the scope of implementation of the Third Energy Package, thus further strengthening the Commission’s position on the energy market.
REGULATION (EU) 910/2014 ON ELECTRONIC IDENTIFICATION AND TRUST SERVICES FOR ELECTRONIC TRANSACTIONS
European Legislation, 2021 20(75):145-156
In the modern world, information technologies and electronic business are unavoidable parts of our lives, and therefore it is necessary to regulate these issues. The legal framework is already set by Directive 1999/93/EC and other acts enacted in this area, but the development of e-business requires constant adaptation to the new needs. In order to increase the trust of users and the efficiency of services provided within the e-business, it was necessary to expand the existing legal framework and regulate in detail the trust services, as well as electronic identification. This paper analyses Regulation (EU) 910/2014 on electronic identification and trusted services for electronic transactions. In the Republic of Serbia, following provisions of this Regulation, the Law on Electronic Document, Electronic Identification and Trust Services in Electronic Business was passed in 2017, and the analysis of the Regulation aims to give a better understanding of the provisions of this law, which has been in force for three years.
LEGAL ASPECTS OF THE COVID19 PANDEMIC AND IMPACT ON THE PROCEEDINGS BEFORE BASKETBALL ARBITRAL TRIBUNAL (BAT)
European Legislation, 2021 20(75):157-172
The coronavirus global pandemic has endangered basketball as a professional sport. Contractual Obligations have been shaded by the uncertainty of the global situation, and in that sense, many questions arose. The Basketball Arbitral Tribunal offered some answers to the situation quickly and paved some directions. The Basketball Arbitral Tribunal is an international arbitration body formed to resolve contractual disputes arising in the basketball sports industry. The BAT is already a significantly celebrated arbitration that has given a great contribution to the regulation of legal relations in basketball as a professional sport. New circumstances in the form of a global Covid-19 pandemic have put this arbitration to another important test, and all the results of the work and the solutions offered in the BAT Covid-19 Guidelines are still subject to different opinions and interpretations. The BAT responded to the situation by publishing the BAT Covid-19 Guidelines, which are the main focus of this article. The effects of the BAT before the pandemic are indisputable, and most often its values are described through fast, efficient and safe dispute resolution with simple BAT rules of arbitration, which imply the existence of solutions that speed up and simplify the procedure, all built around many factors. Before the global coronavirus pandemic, a respectable practice in resolving disputes was built, and a similar practice was continued based on the use of instructions published in the first two months of the pandemic.
ASPECTS OF THE ENERGY UNION: APPLICATION AND EFFECTS OF EUROPEAN ENERGY POLICIES IN SE EUROPE AND EASTERN MEDITERRANEAN
European Legislation, 2021 20(75):173-175
LEGITIMIZING EUROPEAN CRIMINAL LAW: JUSTIFICATIONS AND RESTRICTIONS
European Legislation, 2021 20(75):177-180