The Slovak Yearbook of European Union Law is scientific journal focused on the issues of European Union law, analysis of the examples of the transposition and implementation of EU law (from the legislative and executive perspective), the enforcement of EU law in the judicial system and case law important from the EU perspective (interpreting treaties and secondary law) as well as from the national perspectives. The comparative perspective of analyses is welcomed. The SYEUL is: Open access: In order to guarantee the widest possible readership, all articles are available free of charge on the website, according to CC BY-NC license , Peer-reviewed: Submissions go through a rigorous double-blind peer-review process involving the editorial team and members of the international research community, Researcher-led: All managerial and editorial work is carried out by experienced senior staff at Comenius University in Bratislava, Faculty of Law, Institute of European Law, supervised by the Editorial Board.
Comenius University in Bratislava, Faculty of Law
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Slovakia Before the European Court of Human Rights in Recent Years – an Upcoming Fair Trial Problem?
The paper aims to clarify whether the recent applications made against Slovakia and communicated by the European Court of Human Rights to the government for observations disclose presence of increasing fair trial issues for the country. More specifically, the paper focuses on whether applications alleging deficiencies in the fairness of criminal proceedings in Slovakia have recently gained traction. The paper contributes to the debate by performing a quantitative analysis of applications communicated to the government of Slovakia from 2019 to 2023, considering the proportion of criminal proceedings-related applications in relation to the overall amount of applications communicated. It shows that as the overall amount of communicated cases declined between 2019 and 2021, the issues associated with criminal proceedings remained consistent in absolute terms, but gained traction in relative numbers. Moreover, in 2023, when the overall amount of cases communicated is again on the rise, the issues of fair trial in criminal proceedings are similarly on the rise. Finally, the paper seeks to identify the most common topics of interest to the European Court of Human Rights, and discuss the potential implications arising for Slovakia.
Copyright (c) 2024 Slovak Yearbook of European Union Law https://creativecommons.org/licenses/by-nc/4.0
Commerce Clause vs. Harmonisation Clause – Ideal Tool for Expanding Powers in the Field of Market Regulation?
The European Union, like the United States, is creating an internal market within its Member States, which it is adopting the necessary coherent framework of measures to ensure the functioning of that market. In both cases, the measures derive their legal basis from provisions of supreme legal force in the form of the Treaty on the Functioning of the European Union or the Constitution of the United States of America. The paper focuses on a comparison of the provisions of Article 114 of the Treaty on the Functioning of the European Union, the so-called Harmonization Clause, and Article 1, Section 8 (3) of the United States Constitution, the Commerce Clause, the application of which poses a problem in some cases and raises several jurisdictional issues. The aim of this paper is to analyse and compare the limits of the legislator’s powers in relation to the use of internal market regulatory instruments.
The EU Competence in Criminal Law and National Identity as an Opt-Out for the Member States of the European Union
The article examines the EU's competence in criminal law, and the ways in which the EU can intervene in this area within the national law of the Member States. Considering the current debate in Slovakia regarding amendments to criminal codes and the proposal to abolish the Special Prosecutor's Office, the paper discusses the delimitation of competence in this respect between the EU and the Member State. The article also discusses the possibility of a Member State to argue national identity in Article 4(2) TEU on the issue at hand.
Bilateral Investment Treaties Within the EU
Foreign direct investment falls under the scope of the common commercial policy, a competence exclusively defined for the Union by the Lisbon Treaty. Bilateral investment treaties are also encompassed within the realm of foreign direct investment. Within the context of the European Union, this area is also important from the perspective of completing the EU's internal market. EU Member States have been, and continue to be, parties to numerous bilateral investment treaties. The present article aims to delineate the effects of the Lisbon Treaty on bilateral investment treaties, both intra- and extra-EU, and to present the status quo of this area under analysis within the European Union. A partial objective is also to scrutinize the potential impact on practice and assurances afforded to investors within the Union.
EU Sanctions Against Russia - The Impact on the Russian and EU Markets
The nature of sanctions imposed on Russia, especially by the European Union, goes beyond mere punitive measures and takes on a multifaceted character with global repercussions. These sanctions are designed not only to exert economic pressure on Russia but also to serve as a diplomatic tool to influence behavior and promote adherence to international norms. The global impact of these sanctions extends beyond the direct consequences felt within Russia and the EU, touching various aspects of the world economy and geopolitical landscape. This paper analyses the impact of sanctions against Russia adopted following Russia’s military aggression against Ukraine and its consequences in the EU and Russian economy. The author will primarily delve into shifts in import and export dynamics among these nations within the specified timeframe, with a particular emphasis on the oil and gas market. Within this framework, the focus will be directed towards discerning anticipated economic projections and their implications.
Recent Novelties About Appeal Term in Controversies Concerning Public Tenders in Italian Legal Environment
The aim of this paper is to outline overview of amendments present in the Italian legal environment regarding appeal in public tender controversies. The content analysis will be conducted based on the Court of Justice of the European Union rulings, then referring to Italian administrative case law and finally focused on the Italian new legislative regulation concerning public tenders.
Current Process of Optimisation of the Legal System of the Czech Republic, including the Implementation of the Present EU Strategy in the Fight against Terrorism and Radicalism
The programme statement of the new government of the Czech Republic (CR) from the beginning of 2022 about the current security situation in the country and the European Union (EU) foresees the implementation of a significant optimisation of legal regulations in dealing with crises and emergency events. In addition to the experience of the fight against the Covid-19 pandemic, the worsening effects of weather, and the current negative indicators in the economy, the government decided to focus its legislative efforts on combating terrorism in line with the policy of both the EU and NATO. The paper provides an overview of relevant EU documents and discusses some specific problems encountered by the Member States, including the CR. In these regards, due attention is also paid to the consistent implementation of the EU Directives into national legislation. The paper also discusses some of the Department of Crisis Management activities as part of scientific research at the Police Academy of the CR in Prague (PACR), which is partially related to the optimisation of the legislative process in the security field.
Copyright (c) 2023 Slovak Yearbook of European Union Law https://creativecommons.org/licenses/by-nc/4.0
Effective Judicial Protection and the Regulation Implementing Enhanced Cooperation on the Establishment of the European Public Prosecutor's Office
Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office contains several ambiguous provisions which spark the interest of European Union law scholars. One of them is the Recital 30 of said regulation, according to which where the national law of a Member State provides for the internal review of certain acts within the structure of the national prosecutor’s office, Member States should not be obliged to provide for review by national courts. The article therefore examines the notion of effective judicial protection within the European Union, its expression in the EPPO Regulation, some of the pressing issues relating (although not only) to the wording of the Recital 30 of the Preamble of the EPPO Regulation with regard to the principle of effective judicial protection and contemplates on possible reaction from the Court of Justice of the European Union.
Impact of European Union Tariff Preferences on International Human Rights Treaties
Tariff preferences of the EU seek to, inter alia, incentivize third countries through more beneficial scheme of preferences to act in accordance with international human rights standards and other values prioritized by the EU. The aim of this contribution is to assess whether this motivation has real impact on third countries as regards their approach to core international human rights treaties and provide answer to the question whether improved tariff preferences influenced conduct of those countries, as regards accession to the said treaties and expansion of their territorial applicability. Through this assessment, the research seeks to analyse impact the positive conditionality had on acceptance and ratification of human rights treaties by countries that have not showed previous inclination to ratifications without the prospect of obtaining tariff preferences by the EU. The central method is to consider the international human rights treaty ratification years of all states benefitting from the EU regime of tariff preferences. By comparing the time of ratifying the required human rights treaties, and the year in which the respective states became beneficiaries of tariff preferences, the study confirms that, safe for several specific cases, the states receiving tariff preferences had little to no new obligations in terms of ratifying human rights conventions they were previously not bound by.
An Overview of the Doctrine of Ultra Vires from the Perspective of the German Federal Constitutional Court and the Polish Constitutional Court
European Union law is based on a number of principles of application, such as the principle of primacy or the principle of conferral. Over the years of this project's existence, we have witnessed Member States being excessively cautious on the subject of the primacy of European Union law. Among these Member States is Germany, which has for years shown its vigilance towards the proceedings and acts of the European Union, whether through the well-known Solange judgement or the recent judgment in the PSPP case. The Federal Constitutional Court has thus created a controlling competence vis-à-vis the bodies and institutions of the European Union by which it seeks to ensure that its standard of constitutional protection is maintained. The present article focuses on the development of the ultra vires review competence and it analyses the manner in which it has been exercised. It also focuses on the use of the ultra vires review by Poland in the K 3/21 case, which has resonated with both the professional and non-professional public. The article also aims to compare the judgment in the PSPP case and the judgment in K 3/21 and to assess whether the ultra vires review was properly activated by the Polish Constitutional Court.
Combating Trafficking in Human Beings (Sexual Exploitation) in EU Law: Current Challenges.
Trafficking in human beings is a serious organised crime that appears in several forms. Sexual exploitation is the most common form of trafficking in human beings. The European Union combats sexual exploitation by harmonising substantive criminal law (Directives 2011/36/EU and 2011/93/EU) and certain procedural issues and by actively enforcing its policies. Nevertheless, the statistical data from the Member States concerning this crime indicate that the fight against this serious social phenomenon is not sufficiently effective. The European Commission has proposed a reform of Directive 2011/36/EU, but several aspects of this reform are insufficient and problematic.
Protection of Rule of Law While Protecting Rule of Law
The paper focuses on judicial review of political or quasi-political/quasi-legal decisions or other acts of the institutions of the EU involved in following procedures designed to protect the value of rule of law: a) mechanism for protection of values under Art. 7 of the Treaty on European Union and b) measures adopted within the conditionality for the protection of the EU budget (Regulation 2020/2029). At a first sight, the difference between the judicial review of measures aimed to protect rule of law in the Member States under Art. 7 TEU and under Regulation 2020/2029 can appear straightforward: a limited procedural review of measures adopted under Art 7 TEU due to specific powers stipulated in Art. 269 TFEU and full judicial review of measures adopted under Regulation 2020/2029. However, notwithstanding different structures, and uncertainties stemming from the wording of the Treaties, the Treaties provide a comprehensive framework of judicial control of analyzed types of measures aimed to avoid backsliding rule of law in the Member States
European Union’s Value-Based Approach to Sustainability of Accession Process
The Union cornerstones are respect for the rule of law and the fundamental rights on which it is founded - as stipulated in Article 2 of the Treaty on European Union. EU law is supreme to national law and has direct effect, as evidence of the significance of mutual trust among its member states and their respective legal systems. The EU promotes a broad and substantive understanding of the rule of law whereby this concept is viewed as intertwined with and mutually reinforcing of the principles of democracy and respect for human rights, all of which underpin political stability and sustained economic and social development. The EU Charter of Fundamental Rights is binding on European institutions’ internal and external policies when implementing EU law: it includes a legal obligation to ensure that all EU actions promote and respect human rights and fundamental freedoms, including external policies. Mirroring its internal policies, the EU seeks to prevent violations of human rights and related rule of law throughout the world. This paper analyses the EU’s approach to supporting rule of law reforms and human rights protection in candidate countries base on analysis of particular agreements. It first situates European fundamental values to demonstrate how values are embedded in the association agreement and then focus on the assessment of the goals which aimed to be achieved. The paper also examines EU tools applicable in concrete cases. We argue that the EU has consistently putting the rule of law and human rights at the centre of its action and contribute to more effective protection of these values in candidate countries.
What Has Changed in European Concept of Undertaking? From „FENIN“ to „EASY PAY“
Competition is the main self-regulatory principle of the market in general, internal market included. Competition law has the form of general clauses making its application dependant on the correct interpretation of general concepts. Core competition rules of the Functional Treaty („TFEU“) are addressed to undertakings; undertaking thus belongs to key concepts of competition law. Interpretation of this concept is decisive for the scope of competition rules application. So, the article explores different approaches of the case law to the interpretation of the concept of undertaking based on economic activity. It compares the FENIN doctrine and the new functional test of separability developed in EASY PAY. It drives attention to the impact of this new test for the evaluation of procurement activities under competition scrutiny.
Copyright (c) 2021 Slovak Yearbook of European Union Law https://creativecommons.org/licenses/by-nc/4.0
The Development of the German Immigration Policy after 2015
Germany is seen and presented by itself as a welcome country. It is a country of immigration. First, there was the “Gastarbeiter” period when within agreements made by Germany and southern European states several thousand worker arrived in Germany and most of them made the country their permanent home. The country experienced another migration wave when the former Central-European countries became members of the European Union. In 2015, similar to other European States, Germany too experienced a migration-shock which resulted in a political-social turmoil in the German society. Not only politicians, but average people faced the same never-seen-before challenge on different levels, due to the number of migrants arriving in short term onto the territory of the state: one in the everyday life of its community, one in the political and legal perspective. Irrespectively of their reactions or adaptation methods, one common point of these actors was that they had to come to terms with the fact that a huge number of irregular migrants will stay long-term in Germany. However, the wave challenged the “welcome” country attitude both at political and at societal level. The author argues that roles, namely, the country affected by the migration wave, and the country being a leading European Union Member State became contradicted because of the measures introduced after 2015. This is underlined by the normative analysis of the main measures in this article, but because migration policy overlaps other policy areas, for example integration policy, interior policy, these measures touch upon different issues.
The paper deals with the treatment – both legislative and judicial – of maritime concessions in Italy. It first analyses legal provisions regarding the term of duration of such concessions and then focuses on some recent sentences. The first of them could have made stronger the conflict between the Italian legal environment and EU one, as the legislative automatic prorogation of concessions was deemed to be legitimate. Luckily, further rulings stated that this legislative statute is not in line with EU law and so has to be non applied. The Council of State solved the question very recently: not only Italian legal discipline was sentenced not to be in line with the EU law, but also some guidelines were given to step out the impasse. Judicial review so proved out to be once again the key element to grant rule of law, even when relationships between different legal environments are concerned.
New EU Enlargement Strategy Towards the Western Balkans and Its Impact on Rule of Law
The rule of law is incorporated in the EU Founding Treaties and case-law of the Court of Justice of the EU and was included as a key requirement already in 1993 Copenhagen accession criteria. The EU enlargement is not only territorial increase, but also transposition of EU acquis to third countries. Since 1993, the monitoring mechanism of the rule of law reform in the EU accession countries was enhanced, including two specific negotiation chapters, Chapter 23 – judiciary and fundamental rights and Chapter 24 – justice, freedom and security. Over the last two decades, the EU was struggling to develop an adequate mechanism in this area, from mechanism for coordination and verification, to action plans for Chapter 23, to more specific tools like perception and experience surveys of the judiciary and functional reviews. Due to the challenges to measure progress and track record in the rule of law, in February 2020 the European Commission presented the new approach to EU Enlargement that aims to push reforms forward. The intention is to make the accession negotiations more credible, predictable and dynamic and criteria for assessing reforms in the accession countries will be based on the clearer criteria and more concise EU requirements. The article examines how EU enlargement policies influenced the rule of law reforms in Western Balkan countries over the years and what could be expected from the new approach. The research hypothesis is based on the correlation between Enlargement strategy towards the Western Balkans and its impact on rule of law in countries of the mentioned region. The methodological approach applied in the assessment is based on analysis of Enlargement strategy and other EU and national documents, as well as results of the work of judicial institutions in order to provide insight into the bottlenecks of the state rule of law in Western Balkan countries and enable identification of recommendations for improvement. The authors concluded that the new methodology would improve the measurability of the achieved results in the rule of law area, however, the approach might slow down the accession process of Serbia and Montenegro as a frontrunners in the process.
Protection of Whistleblowers by the European Union, the Council of Europe, and the European Court of Human Rights
Whistleblower protection in the European Union is undergoing significant developments. The new Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons reporting breaches of Union law sets a minimum standard for the protection of whistleblowers. It is awaiting implementation in Member States' national law by December 2021. However, a certain level of protection is also guaranteed by the European Court of Human Rights case law principles. Reports of illegal activities provided from close internal sources can strengthen the protection of the EU's financial interests. Adequate protection is needed to prevent retaliation against whistleblowers. As the deadline for transposing this directive approaches, the article aims to analyse the Directive 2019/1973 and compare it with the protection guaranteed by Article 10 of the European Convention on Human Rights.
Torpedoing v. Carpet Bombing: Mutual Trust and the Rule of Law
The aim of this paper is to assess the most recent developments in the arising threats to the rule of law, in particular from the viewpoint of their impact on the judicial cooperation in light of the principle of mutual trust in the European Union. The paper analyses the development of this principle, the position of the Court of Justice of the European Union on the issue, and its views on recent challenges to the rule of law as a fundamental value of the EU, along with positions of other judicial bodies. The assessment then seeks to establish the impact the arising threats to rule of law in the EU, including judicial independence, may exert on the future application of the principle of mutual trust amongst judicial authorities of the Member States, and outline the implications arising therefrom.