Hasil untuk "Law of Europe"

B. Tamanaha

Sandra Wachter, B. Mittelstadt, Chris Russell

In recent years a substantial literature has emerged concerning bias, discrimination, and fairness in AI and machine learning. Connecting this work to existing legal non-discrimination frameworks is essential to create tools and methods that are practically useful across divergent legal regimes. While much work has been undertaken from an American legal perspective, comparatively little has mapped the effects and requirements of EU law. This Article addresses this critical gap between legal, technical, and organisational notions of algorithmic fairness. Through analysis of EU non-discrimination law and jurisprudence of the European Court of Justice (ECJ) and national courts, we identify a critical incompatibility between European notions of discrimination and existing work on algorithmic and automat-ed fairness. A clear gap exists between statistical measures of fairness as embedded in myriad fairness toolkits and governance mechanisms and the context-sensitive, often intuitive and ambiguous discrimination metrics and evidential requirements used by the ECJ; we refer to this approach as “contextual equality.”This Article makes three contributions. First, we review the evidential requirements to bring a claim under EU non-discrimination law. Due to the disparate nature of algorithmic and human discrimination, the EU’s current requirements are too contextual, reliant on intuition, and open to judicial interpretation to be automated. Many of the concepts fundamental to bringing a claim, such as the composition of the disadvantaged and advantaged group, the severity and type of harm suffered, and requirements for the relevance and admissibility of evidence, require normative or political choices to be made by the judiciary on a case-by-case basis. We show that automating fairness or non-discrimination in Europe may be impossible because the law, by design, does not provide a static or homogenous framework suited to testing for discrimination in AI systems.Second, we show how the legal protection offered by non-discrimination law is challenged when AI, not humans, discriminate. Humans discriminate due to negative attitudes (e.g. stereotypes, prejudice) and unintentional biases (e.g. organisational practices or internalised stereotypes) which can act as a signal to victims that discrimination has occurred. Equivalent signalling mechanisms and agency do not exist in algorithmic systems. Compared to traditional forms of discrimination, automated discrimination is more abstract and unintuitive, subtle, intangible, and difficult to detect. The increasing use of algorithms disrupts traditional legal remedies and procedures for detection, investigation, prevention, and correction of discrimination which have predominantly relied upon intuition. Consistent assessment procedures that define a common standard for statistical evidence to detect and assess prima facie automated discrimination are urgently needed to support judges, regulators, system controllers and developers, and claimants.Finally, we examine how existing work on fairness in machine learning lines up with procedures for assessing cases under EU non-discrimination law. A ‘gold standard’ for assessment of prima facie discrimination has been advanced by the European Court of Justice but not yet translated into standard assessment procedures for automated discrimination. We propose ‘conditional demographic disparity’ (CDD) as a standard baseline statistical measurement that aligns with the Court’s ‘gold standard’. Establishing a standard set of statistical evidence for automated discrimination cases can help ensure consistent procedures for assessment, but not judicial interpretation, of cases involving AI and automated systems. Through this proposal for procedural regularity in the identification and assessment of auto-mated discrimination, we clarify how to build considerations of fairness into automated systems as far as possible while still respecting and enabling the contextual approach to judicial interpretation practiced under EU non-discrimination law.

Alica Rétiová

2018 saw contentious shifts in European gender policy and public awareness. Among these was the suppression of gender studies in universities in Viktor Orban’s Hungary, where a conservative, nationalist majority has taken leadership despite fierce opposition not only from Hungarian academia but the international community. Other developments, while hopeful, serve to remind gender scholars that the success of human rights campaigns is not assured and victories, while brilliant, are precarious at best. The repeal of Ireland’s abortion laws by referendum, for example, carries with it new challenges in ethics and legislation and is still opposed by 33 per cent of the voting population, despite news sources lauding it as a ‘landslide victory’ (The Guardian 2018). It is in the context of such volatility that AntiGender Campaigns in Europe: Mobilizing Against Equality becomes a valuable resource to dissect and analyze the factors, figures and mechanisms of anti-gender movements in the continent.

Jan Beránek

Book review on LÖHNIG, M. – MOSZYŃSKA, A. (eds.) Reception of the ‘Limited Liability Company (GmbH)’. Vídeň: Böhlau Verlag, 2024, 284 s.

Charalampos Stamelos

This paper presents reflections of the laws of Romania and a comparison of family law of Romania to Ancient Greek family law. Roman law has left a profound and enduring legacy on the legal system of Romania. The introduction of Roman law in the region began with the Roman conquest of Dacia in 106 AD under Emperor Trajan. This marked the beginning of a period of significant Romanization, during which Roman legal principles, institutions, and practices were extensively implemented. Later, the influence of Byzantine law on Romania is a critical chapter in the nation's legal history, reflecting the cultural and political interactions between the Byzantine Empire and the Romanian principalities of Wallachia and Moldavia. Byzantine law began to permeate the region following the withdrawal of Roman forces from Dacia in 271 AD and continued to shape Romanian legal traditions through the Middle Ages. Further, the Ottoman Empire's dominion over these principalities from the 15th to the 19th centuries introduced a complex interplay between local traditions and Ottoman legal principles. Lastly, family law in Greece from Roman times to the Ottoman era shares several parallels with the evolution of similar laws in Romania, reflecting the broader legal and cultural influences of the region.

Ran Abuhasira, L. Shbiro, Yuval Landschaft

H. Barnett

Introduction - the scope of constitutional law sources of the constitution the structure of the United Kingdom the rule of law the separation of powers the Royal prerogative parliamentary sovereignty central government local government -an outline the electoral system introduction to the House of Commons the legislative process scrutiny of the executive the House of Lords parliamentary privilege the European Community and Union civil liberties the European Convention on Human Rights and fundamental freedoms state security judicial review of administrative action commissioners for administration - "ombudsmen".

Stanisław Krzymkowski

Prawo karne Pierwszej Republiki Czechosłowackiej opierało się na austriackim kodeksie karnym z 1852 r. na terenie Czech i Moraw oraz na kodeksie karnym węgierskim z 1878 r. na Słowacji i Rusi Zakarpackiej. Regulacje tych kodeksów były przez wielu uczonych uznawane za przestarzałe w dobie niepodległej Czechosłowacji. Uchwalono zatem kilka istotnych ustaw reformujących prawo karne, m.in. ustawę o ochronie Republiki z 1923 r., ustawę o sądownictwie nad młodzieżą z 1931 r. oraz ustawę o ochronie czci z 1933 r. Choć zmodernizowały one niektóre elementy prawa karnego, to dziewiętnastowieczne kodeksy pozostały jego podstawą. Przygotowano też dwa projekty kodeksu karnego, jednak nigdy ich nie uchwalono. Poważniejsze reformy były niemożliwe ze względu na brak zainteresowania politycznego, jak również na obawy co do ich kosztów i na czechosłowacki konserwatyzm prawniczy.

Laurent Pech

Against increasing rule of law backsliding within the EU, the European Commission has presented the rule of law as a well-established and well-defined principle whose core meaning is furthermore shared as a common value among all Member States. In refute, the national governments of the two EU countries, which are both subject to special EU procedures on account of the systemic threat to the rule of law their repeated actions have caused, have claimed that the rule of law is neither defined in EU law, nor could it be defined in EU law. This article’s primary aim is to assess these conflicting assertions. It does so by first offering an overview of the EU legal framework on the basis of which it is shown that the rule of law, as asserted by the Commission, is a well-established constitutional principle of EU law. It furthermore shows that it is well-defined, not least because of the Court of Justice’s extensive case law, the European Commission’s definitional codification of it and most recently, the adoption of the Rule of Law Conditionality Regulation 2020/2092 which provides the first comprehensive allen compassing internal-oriented definition of the rule of law adopted by the EU co-legislators. This article furthermore contends that the EU’s understanding of the rule of law reflects what may be presented as a broad consensus in the European legal space on its core meaning and components; its legal use as a primary principle of judicial interpretation and a source from which standards of judicial review may be derived; and how the rule of law relates to other fundamental values. Finally, this article concludes by examining the reality of a potentially emerging East-West dissensus as regards the rule of law. In light of evidence of strong and widespread support for the rule of law in every single EU Member State in the face of top-down attempts to systemically undermine it, it is however submitted that there is no meaningful East-West divide but an authoritarian-liberal divide at elite level.

Marek Stojan

This paper focuses on the comparison of two crucial legal codes of the Bohemian land law of the first half of the 16th century, i.e., Land Constitution of Vladislav enacted in the year 1500 (in Czech Vladislavské zřízení zemské) and Land Constitution of 1549. The aim is to answer the question whether it is possible to perceive Land Constitution of 1549 in the same way as it is understood by the majority of the current historiography, meaning whether Land Constitution of 1549 is only redaction of Land Constitution of Vladislav. The paper shall concentrate on the issue if there is a reason to reconsider the general view on this matter. It may be established that these legal codes are relatively independent works due to their dissimilarities as they differ significantly in their origin, authors, historical context, central ideas, and structure. In general, the distribution of power is a key aspect of forming the law, which applies not only to the early modern period, and this idea is reflected in the structure and content of both these codifications. The paper focuses on the comparison of the various aspects of Land Constitution of Vladislav and Land Constitution of 1549. The core of the comparison is analysis of a number of key articles about, e.g., the relationship between the monarch and the estates, the distribution of power in the state, the functioning of the basic institutions of the early modern state, and of selected areas of private and public law.

J. Chamberlain

Abstract How can tort law contribute to a better understanding of the risk-based approach in the European Union’s (EU) Artificial Intelligence Act proposal and evolving liability regime? In a new legal area of intense development, it is pivotal to make the best use possible of existing regulation and legal knowledge. The main objective of this article is thus to investigate the relationship between traditional tort law principles, with a focus on risk assessments, and the developing legislation on artificial intelligence (AI) in the EU. The article offers a critical analysis and evaluation from a tort law perspective of the risk-based approach in the proposed AI Act and the European Parliament resolution on a civil liability regime for AI, with comparisons also to the proposal for a revised and AI-adapted product liability directive and the recently proposed directive on civil liability for AI. The discussion leads to the illumination of both challenges and possibilities in the interplay between AI, tort law and the concept of risk, displaying the large potential of tort law as a tool for handling rising AI issues.

Laurent Pech, Patryk Wachowiec, D. Mazur

To reinstate what amounts to a “Soviet-style justice system”, Polish authorities have repeatedly and deliberately violated the Polish Constitution and EU law. Rather than comprehensively detailing these repeated violations, this article focuses on the EU dimension of Poland’s rule of law breakdown. Using the activation of the Rule of Law Framework by the European Commission on 13 January 2016 as a starting point, this article offers a critical five-year assessment of EU’s (in)action starting with an overview of the extent to which virtually all of the multiple problematical issues identified early on by the Commission have yet to be addressed by Polish authorities by January 2021. Regarding the Commission and the Council’s (in)action, this article argues that the Commission has systematically acted in a too little too late fashion while the Council has systematically failed to meaningfully act, with the inaction of these two EU institutions amounting, at times, to dereliction of duties. By contrast, the Court of Justice has forcefully defended judicial independence whenever an infringement case was lodged with it by the Commission. The Court of Justice’s record in preliminary ruling cases is more mixed due, in part, to the Court’s apprehension to undermine the principle of mutual trust. The article ends with a list of key lessons and recommendations which reflect the EU’s few successes and many failures highlighted in this article. It is submitted inter alia that more statements, dialogue and reports are not going to help contain, let alone solve Poland’s rule of law crisis. It is indeed no longer a crisis the EU is facing but a total breakdown in the rule of law in Poland which, in turn, represents a threat to the interconnected legal order that underpins the EU.

K. Scheppele, D. Kochenov, Barbara Grabowska-Moroz

Although compliance with the founding values is presumed in its law, the Union is now confronted with persistent disregard of these values in two Member States. If it ceases to be a union of Rule-of-Law-abiding democracies, the European Union (EU) is unthinkable. Purely political mechanisms to safeguard the Rule of Law, such as those in Article 7 Treaty of European Union (TEU), do not work. Worse still, their existence has disguised the fact that the violations of the values of Article 2 TEU are also violations of EU law. The legal mechanisms tried thus far, however, do not work either. The fundamental jurisprudence on judicial independence and irremovability under Article 19(1) TEU is a good start, but it has been unable to change the situation on the ground. Despite ten years of EU attempts at reining in Rule of Law violations and even as backsliding Member States have lost cases at the Court of Justice, illiberal regimes inside the EU have become more consolidated: the EU has been losing through winning. More creative work is needed to find ways to enforce the values of Article 2 TEU more effectively. Taking this insight, we propose to turn the EU into a militant democracy, able to defend its basic principles, by using the traditional tools for the enforcement of EU law in a novel manner. We demonstrate how the familiar infringement actions—both under Article 258 and 259 TFEU—can be adapted as instruments for enforcing EU values by bundling a set of specific violations into a single general infringement action to show how a pattern of unlawful activity rises to the level of being a systemic violation. A systemic violation, because of its general and pervasive nature, in itself threatens basic values above and beyond violations of individual provisions of the acquis. Certified by the Court of Justice, a systemic violation of EU law should call for systemic compliance that would require the Member State to undo the effects of its attacks on the values of Article 2. The use of Article 260 Treaty on the Functioning of the EU (TFEU) to deduct fines from EU funds due to be received by the troubled Member State would provide additional incentives for systemic compliance. We illustrate this proposed militant democratic structure by explaining and critiquing what the Commission and Court together have done to reign in the governments of Hungary and Poland so far and then showing how they can do better.

Rosa María Ricoy-Casas

In June 2019, Facebook announced its own cryptocurrency “Libra” to be used through WhatsApp and Messenger, in order for its value to remain stable thanks to the support from banks and electronic commerce companies, linking to different currencies and the support of important companies. EU antitrust regulators investigated it as a “threat to monetary sovereignty”. China is already testing its own DCEP cryptocurrency tied to state banks and major companies, with notable advantages. It will probably displace cash and be used even for world trade, which can make it an alternative to the traditional international payment system, compared to the current one led by the United States with the USD. The Belt and Road Initiative (BRI) offers “the area and the route” to extend the Yen as a global digital currency. These new developments, and their rapid and high competitiveness produced as the “art of bian lian”, have generated intense concerns in the international financial system. Will the EU, Japan or the US be able to counter the virtual yuan so quickly? Received: 01 September 2021 Accepted: 05 November 2021

Krzysztof Fokt

A. Odone, G. Dallagiacoma, Beatrice Frascella et al.

ABSTRACT Vaccinations are among the most successful preventive tools to protect collective health. In response to alarming vaccines preventable diseases (VPDs) outbreaks resurgence, decreased vaccination coverage and vaccine refusal, several European countries have recently revised their vaccination policies introducing or extending mandatory vaccinations. This review examines the health, political and ethical aspects of mandatory vaccination. The authors first clarify terms and definitions and propose a conceptual framework of mandatory policies. Second, they describe the current status of mandatory childhood immunization programmes in Europe, assessing selected mandatory laws. Third, as the authors conduct a systematic review of the literature (retrieving from Medline 17 relevant records between 2010 and 2020), they take an analytical approach to measure the impact of mandatory vaccination policies on both VPDs control and immunization coverage, but also on population attitudes toward vaccines. 40% of European countries currently have mandatory vaccination policies; however, policies vary widely and, although there is evidence of increased vaccine uptake, their impact on informed adherence to preventive behaviors is scant. Although mandatory vaccination policies might be needed to protect collective health in times of emergency, public health goals of VPD prevention and health promotion should primarily be pursued through health education and population empowerment.

S. De Zordo, G. Zanini, J. Mishtal et al.

Little is known about the experiences of women who travel within Europe for abortion care from countries with relatively liberal laws. This paper aims to assess the primary reasons for travel among a sample of women who travelled from European countries with relatively liberal abortion laws to obtain abortion care mainly in the UK and the Netherlands.

C. Dauvergne

Kostić Milan M.

A termination of employment by being dismissed by an employer is the most delicate form of an employment termination. As such, in the modern Labor Law, is mostly regulated by a state regulation. The legislator is in obligation, during regulating of this institute, to adjust regulations related to termination of employment with the ratified international contracts, and certain directives during making the law are present in acts that do not fall under the process of ratification. Thus, in the paper, the review of the most important acts in the international and regional level is presented, and they regulate termination of employment by an employer's initiative, starting from the acts of the international labor organizations to the acts of the Council of Europe and Communitarian Law. In Positive Law of Serbia, the analyze of justified dismissal reasons in a contract by an employer has been made.

Zbigniew Lasocik

Prostitution has not received the academic interest it deserves in Poland. On the one hand the issue of eroticism and human sexuality is a relatively strong cultural taboo, on the other research on prostitution raises numerous methodological diffi culties. The purpose of this article is to explore two issues. The first is go back to unsatisfactory attempts to define the commercial sex. The second is to look at legal regulations regarding this issue in Poland and several European countries. At the level of sociological reflection, prostitution can be defined by referring to the elements of a specific interaction between two people, one of whom offers paid sex and the other of whom is interested in using such a service. Prostitution is defi ned completely differently in law and in several European countries, for example in Great Britain and Austria there are interesting legal provisions. But I propose my own defi nition of prostitution or sex work in which the eight elements are combined. As far as legal regulations of prostitution are concern four categories of countries can be mentioned in Europe. From these in which the provision and purchase of sexual services is prohibited, to those where prostitution is legal and the professional status of the person engaging in it is regulated. There is also variety of perceptions of prostitution as a social phenomenon and different typologies of policies implemented by individual countries. But it appears that further studies on sex business and prostitution as a social phenomenon are needed.