bluuebunny/crossref_metadata_2025 huggingface dataset:
International Cooperation on the International Law Applicable to Cyber Operations
Authors: Delerue François
Published: April 2022

International law, and in particular the Charter of the United Nations, are the backbone of international relations and are crucial for maintaining international peace and security. From this perspective, it is important to note that the applicability of international law to cyberspace and cyber operations has been a matter of controversy. There are two main challenges in this regard: on the one hand, given the unique characteristics of cyberspace, interpreting the application of the norms of international law to cyber operations may require a certain level of adaptation, not transformation. On the other hand, the subjects of international law, and particularly States, may have different if not divergent interpretations of certain specific norms of international law. This article aims at outlining the major international processes and initiatives dealing with the question of application of international law to cyberspace and cyber operations. This article shows the specific situation of the European Union and its Member States in these processes. It focuses first on the cooperation at the multilateral level, and mainly within the United Nations. The second part highlights the diversity of States’ approaches on these questions. Finally, the two last parts exposes the growing involvement of non-state actors, notably major companies and the academic community.
Diversity without Unity: The European Unions Cultural Diplomacy vis-à-vis the United States
Authors: Trobbiani Riccardo , Schunz Simon
Published: April 2022

This article examines how, to what extent and why the European Union (EU) engages in cultural diplomacy (CD) vis-à-vis the United States (US). While providing an empirical review of and conceptual reflection on the current state of the EU’s (including key Member States’ (MS’)) CD efforts vis-à-vis the US, it also strives to explain the forms of this activity. It finds that a complex, multi-level, multi-actor, multifaceted and multipurpose EU CD in the US currently exists, which displays ‘diversity without unity’ and faces several incoherencies. This finding can be explained primarily by a latent competition for attention between EU MS. The article concludes by reflecting on how a more coherent EU CD could be achieved, thereby helping to reinvigorate EU-US relations.
The EUs Approach to Transatlantic Science and Research Relations: Between Laissez Faire and Science Diplomacy
Authors: Prange-Gstöhl Heiko
Published: April 2022

This article assesses and explains the emergence, forms and extent of the EU-US science and research relations. It does so through the lens of ‘soft power’ since international cooperation in science and research is increasingly seen as an instrument of ‘soft power’ and a mechanism for improving international relations more generally. Drawing on the concept of ‘actorness’ I argue that the forms of engagement with the US are limited to a ‘laissez faire’ approach combined with elements of ‘science diplomacy’. However, there is no evidence that the EU uses science and research actively as a ‘soft power’ tool by trying to shape the behaviour of actors in order to push for policy outcomes the EU wants to see in other policy areas. As long as science and research policy in the EU is characterized by both a highly fragmented governance structure, and competitiveness and sovereignty concerns amongst Member States, the use of science and research as a ‘soft power’ tool in transatlantic relations remains uncharted territory.
Rhythms of Soft Power Influence and Transatlantic Higher Education Relations
Authors: Boers Elke , Higgott Richard
Published: April 2022

This article looks at transatlantic educational relations as an element of cultural relations more generally. It begins by locating higher education within the context of EU cultural diplomacy (CD) and soft power and in a comparative transatlantic context. Based on a study of key historical components in the transatlantic relationship and dialogue in higher education, it then shows how higher education relations across the Atlantic are subject to what we describe as the ‘rhythms of soft power’. The article concludes that while CD in general, and higher education relations as a component of soft power in particular, might try to assist in the mitigation of prevailing politicosecurity and economic dynamics, it is going to be an uphill battle in an era in which we are witnessing at best a crisis and at worst the pending collapse of the liberal international order.
Contesting ‘EU as Empire’ from Within? Analysing European Perceptions on EU Presence and Practices in the Mediterranean
Authors: Huber Daniela , Paciello Maria Cristina
Published: April 2022

In a context of ongoing popular resistance in the Arab world, the question of how this has affected the view of the EU’s role in the region by European stakeholders has not yet sufficiently be inquired into. How is the EU – and its presence and practices particularly – perceived within its own core, by its policymakers on one hand, and by the European civil society it also involves in its policies, on the other? Institutional stakeholders see the space the EU occupies in the Mediterranean as rather limited with other powers growing in the region. In contrast to this, resistance of European civil society to the current EU role is growing. Not only is the EU now criticized of massive human rights violation itself, specifically in the area of migration, but its whole development model is called into question, including within Europe itself. At the same time, civil society presents a strong alternative imagination of the EU as a non-colonial presence whose practices are based on a universal human rights approach with a strong focus on socio-economic rights/social justice and the inclusion of a variety of actors.

European Union, Mediterranean, civil society, democracy, human rights, resilience
The EU’s Contribution to State Recognition: An Instrumental Approach
Authors: Hamonic Anne , Rapoport Cécile
Published: April 2022

The European Union has no legal capacity to recognize or to refuse to recognize States. However, the broad array of instruments contributing to the diversity and scope of its external action singles it out within the highly varied category of international organizations. The changing degree of mobilization of its different instruments depending on the geographical proximity of the contested entity, on political considerations such as the power of the third States supporting the contested entity, or on past experience reveals that the EU modulates its interventions in accordance with its own interests to the extent they are compatible with its Member States’ interests. Framed by the EU’s principles and objectives of external action as laid down by Article 21 TEU, foremost among which is respect for international law, such mobilization of its external action instruments enables it to support certain contested entities in their state-building process, as well as to help to prevent the unlawful emergence of new entities and so work towards non-recognition of their statehood.

Crimea, European Union, external action (instruments), Kosovo, Northern Cyprus, Palestine, statehood, state-building (process), State recognition, territorial integrity
Esprit De Corps : Has the EEAS Missed Something?
Authors: Vimont Pierre
Published: April 2022

The EEAS has often been criticized for its inability to implement a genuine esprit de corps. This article deconstructs the notion, questions the viability of the nevertheless indispensable aspiration and argues that in order to shape its specific esprit de corps, the EEAS needs to correct the birth defects that have prevented it from inventing its own brand of diplomacy.
EU Human Rights Sanctions Regime: Striving for Utopia Backed by Sovereign Power?
Authors: Eckes Christina
Published: April 2022

On 7 December 2020, the EU Foreign Affairs Council adopted an ‘EU Global Human Rights Sanctions Regime’ (EU HRSR). The objective of the EU HRSR is to give the EU to a flexible tool to address serious human rights violations and abuses worldwide. This article starts from the position that setting up an EU HRSR serves a noble objective. The EU HRSR could be desirable tool to flexibly confront those with consequences that commit serious human rights violations. Yet, it would crucially need to comply with human rights itself. This is not a small feat to accomplish. Much hinges on the listing and delisting criteria, the required evidentiary standard, and the information on which the listing decisions are based. Based on a detailed analysis of the Court of Justice’s sanctions case law, the article sets out the requirements with which the EU HRSR would have to comply. Finally, the horizontal EU HRSR is an attempt to decouple the protection of human rights from specific (political) conflicts. This decoupling directly charges the protection of human rights, which is traditionally portrayed as ‘neutral’, with sovereign politics.

Human rights, sanctions, restrictive measures, listing criteria, evidentiary standard, delisting
The Rationales Behind the EU-OACPS Agreement: Process, Outcome, Contestations
Authors: Carbone Maurizio
Published: April 2022

This article examines the rationales of the European Union (EU) and the Organisation of African, Caribbean and Pacific States (OACPS) in the preparations and negotiations of the successor to the Cotonou Agreement, paying particular attention to contested issues. It argues that the EU-OACPS Agreement constitutes a fundamental break from past practices, at least apparently: with regards to form, it introduces an unprecedented framework for cooperation, articulated in a common base with three distinct regional pillars; in terms of substance, it proposes a list of equally important strategic priorities, thus going beyond the previous focus on development. Furthermore, unlike its predecessor but like many other agreements signed by the EU with third states, it sets out a comprehensive political partnership for mutually beneficial outcomes. This article, importantly, unravels sources of tensions between and within the two sides. It also shows that negotiations were more symmetrical than in previous instances, not least because contentious issues such as aid volumes and trade cooperation fall outside the remit of the EUOACPS Agreement, and less participatory, as they were largely conducted by a small number of official representatives, with limited involvement of other stakeholders.

EU-OACPS Agreement, Cotonou Agreement, post-Cotonou, ACP Group, African Union, EU development policy
The Politics of Competence in Global Health: The European Commission’s Global Response to the COVID-19 Pandemic
Authors: Svendsen Øyvind
Published: April 2022

What was the European Commission’s (EC) global response to the COVID-19 pandemic and how did it use the crisis to claim competence in the area of global health? This article explores the EC’s global coronavirus response. In so doing, it suggests studying the crisis response in terms of how the EC struggled to be recognized as a competent player in the international community of states and institutions. In particular, the article shows how the EC utilized the crisis unleashed by the pandemic to engage in geopolitical positioning in relation to World Health Organization (WHO) funding and the vaccine race, and by using its financial clout to struggle for mastery as a global health actor. The article responds to the challenge of understanding differentiation in the broader field of European foreign, security and defence policies. By treating informal practices by the EC on the world stage in and of themselves, the article shows how the constant struggle for competence plays into the politics of European integration and considers its potential for being instantiated in formal transfers of competence in the area of global health. (This article is an output of the EUFLEX project, which has been funded by the Research Council of Norway (project number 287131).

European Commission, COVID-19, Global health policy, competence, practice
European Union-Asia Pacific: Working Together on Global Security
Authors: Pérez De Las Heras Beatriz , Fernández Rojo David , Herbosa Martínez Inmaculada
Published: April 2022

The Asia Pacific is not only the world’s largest and most populous region, it is also home to some of its fastest growing economies. At the same time, it is also a region that contains complex security hotspots, including tensions on the Korean Peninsula and maritime disputes in the East and South China Seas. The United States and China are vying for economic and military influence in the region, affecting the balance of power and security dynamics on a global scale. In recent years, the European Union (EU) has become a key trading partner for most countries in the Asia-Pacific region and is also seeking to play a relevant role as a security actor. Both regions face the same challenges and share an interest in preserving peace in their respective areas, while upholding the rules-based international order. Specifically, the EU wants to step up its security role in the Asia-Pacific by boosting cooperation with the Association of South East Asian Nations (ASEAN) countries and other strategic partners. In the current context of huge global shifts, this article argues that the area in which the EU can make a valuable contribution to stability in the region is in supporting Asia-Pacific nations to address non-traditional security challenges.

European Union, Asia Pacific, Indo Pacific, non-traditional security, interregional cooperation, ASEAN, Strategic Partnerships
The Brussels Effect: How the GDPR Conquered Silicon Valley
Authors: Gunst Simon , De Ville Ferdi
Published: April 2022

In 2018, the Californian government adopted a new data protection framework. The flagship of this framework is the California Consumer Privacy Act (CCPA). As this new framework is widely considered to resemble the European Union’s (EU’s) General Data Protection Regulation (GDPR), this article intends to investigate whether the Brussels Effect could explain this resemblance. We apply process-tracing to test if the Brussels Effect causally connects the GDPR with the CCPA. The analysis is based on a careful evaluation of three sets of evidence. Firstly, privacy policies of Apple, Facebook, and Google are examined. Secondly, lobbying concerning the alignment of the implementation of the CCPA with the GDPR is scrutinized. Lastly, it is investigated whether the Californian government has used arguments linked to the Brussels Effect while drafting the CCPA and its subsequent implementing regulations. It is concluded that the Brussels Effect has indeed played a role in the adoption of the CCPA. Nevertheless, it has become clear that the impact of the Effect varies depending on exactly which provision of the GDPR is examined.

Brussels Effect, process-tracing, California, CCPA, European Union, GDPR, Data Protection, Lobbying, Big Tech
La codification
Authors: Terré François
Published: April 2022

Résumé. Entendue comme un regroupement de règles, la codification est une manifestation du droit très ancienne et très répandue. Dans la tradition occidentale, plus spécialement européenne, sa définition et sa signification modemes se sont dégagéees au siècle des Lumières sous l’influence des grands courants issus de l’humanisme juridique, du rationalisme et du jusnaturalisme. Bien qu’il ne fut pas le premier dans son genre, le Code Napoléon a été, à partir de 1804, le modbie de référence quant à la notion modeme de code, y compris de la part de ceux qui furent hostiles à la codification. Cependant, au fil des temps, la philosophie, ostensible ou non, qui inspire celle-ci n’a pas été indifftrente tant aux circonstances entourant l’élaboration des codes, qu’à l’objet et à la méthode de la codification.

Abstract. Understood as the regrouping of a body of rules, codification is a very old and widespread form of law. In the western tradition, more particularly the European tradition, the modem definition and meaning of codification emerged during the century of the Enlightenment, under the influence of the major streams of humanism in law, rationalism and of natural law. Although it was not the first of its kind, the Napoleonic Code was taken, from 1804, as being the reference point for the modem conception of a code, even by those who were hostile to codification. However, as time has passed, the philosophy, whether or not apparent, which influences codification, has not been immune to the circumstances which have surrounded the adoption of codes, both with regard to the object and the method of codification.

Zusammenfassung. Die Kodifikation ist – verstanden als eine Umgrupierung von Normen – eine Manifestation des sehr alten Rechts und sehr verbreitet. In der abendländischen, spezieller der europäischen Tradition, ist ihre Definition und modeme Bedeutung im Zeitalter der Aufklärung unter dem Einfluß der großen Ströme des juristischen Humanismus, des Rationalismus und des Naturalismus entstanden. Seit 1804 ist der Code Napoléon – obgleich er nicht das erste in seiner Zeit war – das Model1 auf dem Weg zu dem modemen Begriff von einem Gesetzbuch gewesen, der auch den Teil derjenigen umfaßte, die dem Kodifikationsgedanken feindlich gegenüber standen. Indessen ist die den Kodifikationsgedanken bestimmende Philosophie – entsprechend den Strömungen der Zeit, sichtbar oder nicht – sowohl gegenüber den Umständen im Zusammenhang mit der Ausarbeitung der Gesetzbücher, als auch gegenüber dem Gegenstand und der Methode der Kodifikation nicht gleichgültig gewesen
Harmonization of law, foreign and private international law
Authors: Glenn H. Patrick
Published: April 2022

Abstract. The systemic concept of national law which emerged in the XIXth century in Europe had important consequences for the definition and use of foreign law. Foreign law came to be sharply distinguished from national law, and the principle of global disunity which underlay national unifications of law meant that foreign law had to be presumed to be in conflict with national law. Private international law became a necessary form of international ordering.

This article explores the effect on such thinking of the current process of harmonization of law, which is taking place in Europe and elsewhere in the world. The reasons for this harmonization are also examined. It is argued that harmonization blurs the distinction between foreign and national law; that the presumption of conflict amongst national laws can no longer be sustained; and that current rules and principles governing the use of foreign law should therefore be re-examined, to reflect the harmonization process.

Résumé. La conception systémique de droit national qui est devenue courante au XIXe siècle avait des conséquences importantes pour la définition et l’emploi du droit étranger. Le droit étranger est devenu radicalement distinct du droit national et le principe de désunion global qui était à la base des unifications nationales du droit a mené à une présomption de conflit entre le droit national et le droit étranger. Le droit international privé est devenu un moyen essentiel de la coordination international.

Cet article examine l’effet sur ces idées du processus d’harmonisation des droits qui a lieu actuellement en Europe et dans le monde. Sont examinées aussi les raisons pour cette harmonisation. L’article suggère que l’harmonisation rend moins nette la distinction entre le droit national et le droit étranger; qu’une présomption de conflit entre les droits nationaux ne peut plus étre soutenue; et que les règles et les principes qui gouvernent l’emploi du droit étranger devraient étre ré-examinés pour mieux refleter le processus d’harmonisation.
Das neue niederländische bürgerliche Gesetzbuch aus vergleichender und deutscher Sicht
Authors: Drobnig Ulrich
Published: April 2022

Abstract. On January 1, 1992, the core part of the patrimonial law contained in the New Civil Code came into force in the Netherlands. With the exception of Book 4 on inheritance law and parts of Book 7 on certain specific types of contract, the task of reform aimed at creating a New Civil Code, which has lasted for decades, is now complete.

The New Civil Code no longer makes a division between civil law and commercial law. It therefore also governs the most important institutions and contracts of commercial law: company law (Book 2) and the law of transport (Book 8) as well as commercial contracts (Book 7).

Although it does not have a General Part in the style of the German code, the General Patrimonial Law is dealt with comprehensively in a separate Book (Book 3). In addition, the General Law of Obligations is also dealt with in detail in a separate Book (Book 6). The General Law of Obligations also includes important specific types of non-contractual obligations, such as management of the affairs of another, unjust enrichment and the law of tort.

In contrast to the Civil Code of 1838 which was previously in force, which was greatly influenced by the French code civil, it is not so easy to point to the influences of a single foreign legal system upon the New Civil Code. Above all, it is the Romanistic law element which dominates, now as before; this applies, for instance, in the case of the law of tort and unjust enrichment. In the General Patrimonial Law, as well as in the law of contract, there are also many similarities to German law. The general clause concerned with ‘reasonableness and equity’ corresponds to the German principle of ‘Treu und Glauben’ (good faith); the provisions which govern the general conditions of business are closely related to the provisions of the relevant German law of 1976. Even the most recent German attempts to bring about a reform of the Law of Obligations have quite clearly been taken into account, such as the rule regarding the influence of changed circumstances and the rule governing recission of contracts.

In sum the Dutch New Civil Code can be characterised as an original and mature codification, in which much independent thought, practical experience, and wide comparative research have been invested. As the newest European Codex for civil law, the Civil Code will also certainly exercise an influence upon the endeavours of the countries of Eastern and South-Eastern Europe who are seeking to adjust and build their civil and commercial laws so that they meet the demands of a free legal order based on a market economy.
European Perspectives of Tort Liability
Authors: Magnus Ulrich
Published: April 2022

Abstract. The law of tort serves two main functions: compensation of damage and prevention of damage. During the period of industrialisation in the nineteenth century the law aimed to secure the greatest possible freedom of action for economic operators and required proof of fault. Modern laws recognise the dangers inherent in many economic activities and have increasingly objectivised the notion of fault. In addition, the special risks that attach to certain forms of activity have led to strict liability for harm arising from such activity. Czech law takes a modem approach, and indeed includes a general presumption of fault once it has been shown that damage has resulted from the infringement of a legal duty. The onus is on the tortfeasor to prove that all reasonable care has been taken. Czech law also includes a very general liability for damage caused in the course of business and a num ber of special liabilities. The relationship between the different approaches to liability is not entirely clear. Although other European states are increasing the scope of their laws on strict liability, few national laws are as wide ranging as the Czech law.

Developments at the European level are limited. Greater harmonisation of rules would increase transparency for the consumer. Such legislation and proposals for legislation as exist demonstrate the same trends as are apparent at national level. These trends include: imputation of fault either because of objective ncglect of reasonable care or because of the assumption of an unusual risk; a presumption of unlawfulness where harm to person or property occur; the need for personal capacity to bear responsibility; vicarious liability of employers; recognition of the possibility of contributory negligence.

This convergence of thought is not evident in relation to the law of unjust enrichment, and there are no moves to harmonise the law at the European level. Czech law includes a general principle that enrichment unjustly acquired must be restored. This covers acquisition of both property and other benefits.
ECJ, 12 March 2002, Case C-168/00 Leitner v. TUI Deutschland GmbH & Co. KGCompensation for Non-Material Damage under the Directive on Package Travel
Authors: Loos Marco B.M. , Arnokouros Georgios I. , Dickie John
Published: April 2022

Abstract: The ECJ (Sixth Chamber) held in the case of Leitner that Article 5 of Directive 90/314/EEC on package travel is to be interpreted as conferring on consumers, in principle, a right to compensation for non-material damage resulting from the non-performance or improper performance of the services constituting a package holiday.

The following text analyses the case itself, and compares it with Dutch, English, Greek and Polish law.
ECJ, 5 November 2002, Case C-208/00 Überseering BV v. NCC Nordic Construction Company Baumanagement GmbH – The Überseering ruling: a tale of serendipity
Authors: Thoma Ioanna
Published: April 2022

Abstract: To a great extent, the Überseering ruling of the ECJ has been regarded as a landmark decision that signified the introduction of the incorporation theory in the private international law systems of the Member States and the Community. On this basis, some scholars have argued that the future of domestic corporate laws within the EC will be dependent on their competitive features. The current contribution sheds light on some background-particularities of German substantive law that eventually amounted to an infringement against the fundamental freedom of establishment. In order to prove the circumstantial pronouncement of ECJ’s ruling, a parallel to Greek law is drawn. At the end, the issue of regulatory competition is approached in its real dimensions.
The Dutch Real Rights can be the Basis of International Interests under the Convention of Cape Town, just like their equivalent American Security Interests.
Authors: Honnebier B. Patrick
Published: April 2022

Abstract: The Convention on International Interests in Mobile Equipment (CIME) and the Aircraft Equipment Protocol (AEP) establishes the creation of an autonomous international interest. In the Netherlands, the property law status of aircraft was laid down in the Dutch Civil Code (DCC) with effect from 1996. Dutch air law provides for the possibility of granting an airline company a full right in rem in the acquisition or possession of an aircraft. The rights in rem of Dutch airlines originate in the laws of certain states of the United States pre-dating World War II. These proprietary interests were incorporated into the Geneva Convention under American influence. In turn they were transposed into Dutch domestic legislation to facilitate the financing of aircraft. Presently, in the United States these legal devices are covered by Article 9 of the Uniform Commercial Code. Furthermore, they fall within the sphere of application of the new regime of the CIME/AEP. In this article it is argued that the sphere of application of the CIME/AEP also extends to the Dutch real rights of the holder of an aircraft. Therefore, these Dutch rights can be the basis of an international interest.
Terms and Conceps: Towards a syllabus for European Private Law
Authors: Rossi Piercarlo , Vogel Christian
Published: April 2022

The legal orders of the EC Member States are currently on the verge of further convergence of their respective private law – a process which is strongly influenced and directed by European primary and secondary legislation. One tool which might help to increase consistency during this process through the means of highlighting European and national legal terms and concepts could be the Legal Taxonomy Syllabus (Consumer Law) which is developed at the University of Turin. This project could complement current research activities in the field of European private law which is targeting the identification of similarities and differences, common principles and concepts within national and European legal acts.
EULIS – At the Beginning of the Road to Harmonization of Land Registry in Europe
Authors: Ploeger Hendrik , Van Loenen Bastiaan
Published: April 2022

Abstract: An increase in cross-border transactions of real estate within the European Union demands for easy access to the information of the national land registries of the member states. The EULIS project brings together the registrations of eight European countries in one portal. Thus it provides access to cross-border information about the rights on real estate, using the information in the computerized databases of the participating organizations. The EULIS project is the first step towards a more transparent system of real estate transactions in Europe. The next logical step, from the viewpoint of international accessibility of the information, is the harmonization or even integration of the national land registries within Europe in one European land registry.
The Enforcement of EC Law in Contractual Relations: Case Studies in How Not to ’Constitutionalize’ Private Law
Authors: Schepel Harm
Published: April 2022

Abstract: In two very different contexts, the ECJ has effectively held that national private law is to be set aside where it impedes the effectiveness of certain EC law values. This article analyses these instances in order to try and make sense of the concept of the European ?constitutionalization? of private law. It argues, on the one hand, that EC law values should only be imposed upon national private law where they can be translated into subjective rights and, on the other, that the application of EC law provisions on private parties should be limited to cases where these can reasonably be said to carry responsibility for the implementation of those provisions. To enforce EC law in contractual relations beyond these limits not only leads to fragmentation and uncertainty but also, it is submitted, defeats the purpose of enhancing the effectiveness of EC law.
OGH, 28.6.2001, 2 Ob 271/00t, JBl 2002, 42 et seq. - Zur Hemmung der Verjährung wegen psychischer Erkrankung oder geistiger Behinderung
Authors: van Schaick Bert , Shúilleabháin Máire Ní , Fages Bertrand
Published: April 2022

The facts of this case before the Austrian OGH were as follows. The late plaintiff suffered severe head injuries in a traffic accident in November 1994. The insurer of the defendant was notified in the same month; consequently, criminal charges were raised against the defendant. In May 1996 the late Plaintiff was placed under guardianship in respect of legal representation before civil authorities and vis-à-vis private contractual partners. In mid-1996 the late plaintiff engaged a lawyer, who entered into negotiations with the Defendant?s insurer. In October 1996 the plaintiff was diagnosed with a severe psychological disorder in the context of introducing legal guardianship. In April 1998 the defendant was convicted to pay a fine in the criminal proceedings; the late plaintiff was referred to the civil courts as regards his claim for compensation. The late plaintiff lodged a claim in June 1998; the proceedings were continued by his heirs after his death. The defendant invoked prescription of the claim.

The Court of first instance rejected the claim. The Court of Appeal squashed the judgement and referred the case back to the Court of first instance, while allowing an appeal to the OGH.

The OGH rejected this appeal by the defendant. The interruption of prescription under Section 1494 ABGB applies also if the psychological disorder or mental disability is of such nature that a legal guardian is needed to lodge, or defend against, legal claims. This holds even more true if a legal guardian has been appointed for exactly this reason. It is irrelevant that the late plaintiff was then represented by a lawyer, because Section 1494 ABGB cites only the representation by guardianship as a ground for ending the interruption. The prescription of the claims has been interrupted at least since October 1996; thus, they were not prescribed when lodging the claim in June 1998.
Non-Legislative Harmonisation of Private Law under the European Constitution: The Case of Unfair Suretyships
Authors: Colombi Ciacchi Aurelia
Published: April 2022

This paper explores the horizontal effect of European constitutional rights, freedoms and principles as an alternative method of harmonisation based on case-law convergence. The feasibility and the appeal of this method are illustrated with specific reference to the case of unfair suretyships. A comparison of the existing national instruments protecting vulnerable sureties from disproportionate obligations enables us to detect spontaneous convergences and ?cryptotypes?, but also dramatically different levels of protection. This paper argues that to give equally effective protection to sureties? (and lenders?) fundamental rights in all Member States, a new system of judicial harmonisation would be necessary.
Surety Agreements and the Principle of Accessority - Personal Security in the Light of a European Property Law Principle
Authors: Van Erp Sjef
Published: April 2022

The surety?s duty is both subsidiary and accessory to the principal debtor?s duty. Subsidiarity means that the surety only has to pay in case the principal debtor is unable or unwilling to do so. Accessority means that the (continued) existence, extent and contents of the surety?s duty depend on the (continued) existence, extent and contents of the principal debtor?s duty. The accessority principle applies particularly to real securities, but it also plays an important role with regard to personal securities, protecting (non-professional) sureties. It is submitted that the accessority principle should be seen as a fundamental principle of surety protection, not only at a national, but also at a European level.
Non-Optional Elements in an Optional European Contract Law. Reflections from a Private International Law Perspective
Authors: Downes Noemí , Heiss Helmut
Published: April 2022

The EC Commission is considering the enactment of an optional instrument of European Contract Law. From a common market perspective such instrument will only be successful if it covers areas of mandatory law (consumer protection and insurance). A fundamental question relates to the regulatory model that could be used to provide parties with an option to choose the instrument. Legal literature proposes a change of Art. 3 para. 1 of the Rome Convention to the effect that an optional instrument may be chosen as the lex causae of a contract. There are, however, several technical problems making this regulatory model burdensome. This is particularly true with an optional instrument covering areas of mandatory law (?non-optional elements?).

A second model would be to implement a rule on direct applicability similar to Art. 1 para. 1 lit. a) CISG. However, since a European optional instrument would cover all types of contracts, it would be very hard if not impossible to find a proper rule of direct applicability for all possible cases. Therefore, an optional instrument should simply be enacted as an EC regulation establishing substantive contract law that is directly applicable in all member states and providing parties with an option. The choice granted in the optional instrument would thus depend on the applicability of the law of an EC member state to the contract. An analysis shows that such a regulatory approach would produce the best results.
Credit Cards, Overdraft Facilities and European Consumer Protection – A Blank Cheque for Unfairness?
Authors: De Muynck Michiel
Published: April 2022

Abstract: This contribution takes a closer look at overdraft facilities, the most eccentric type of credit under the scope of Directive 2008/48 EC on credit agreements for consumers. Even in the absence of a ‘smoking gun’ linking consumer credit to personal insolvency, the tacit nature of this type of credit represents a significant ‘spiral of debts’ risk. Armed with some overdraft facility basics we provide several theoretical insights on imperfect markets for consumer finance and consumer (un)awareness and biases when contracting for money. Today’s information requirements only partly capture the reality of Homo sapiens kind of borrowers. European consumer protection ought to safeguard consumers from behaviour diverging from (perfect) rationality. It should therefore abandon narrow legal reasoning and include ethical, economical and social norms. In an attempt to reach a substantial information equilibrium we call for multi-layered and intelligent credit regulation incorporating aforementioned behavioural evidence. While such rules might be better aligned with product legislation, new IT solutions pave the way for targeted point of sale disclosure and tailored monthly statements. A strict regulatory dichotomy between regulation with regard to a consumer’s assets (e.g., investor protection) and debts (e.g., consumer credit) seems superseded. The last part of our contribution shines a light on the evolved Belgian approach with regard to overdraft facilities, foreclosing an unlimited freedom of the market for price setting.
Why It Is Ill-Advised to Translate Consequential Damage by Dommage Indirect
Authors: Herbots Jacques
Published: April 2022

Abstract: The purpose of this contribution is to show the importance and the difficulty of legal translation for the project of a European contract law. The concept of consequential loss was chosen for this objective. An attempt to define this concept could be that it is foreseeable, that is, it is a probable or possible damage, which is directly traceable to a breach of contract or tort. Since it is foreseeable, it is not considered too remote. It may or it may not follow upon an earlier direct damage to a person or a thing; it may or it may not have been within the contemplation of the parties at the time the contract was made; it may or it may not be beyond the normal measures of damages. So, the Anglo-American term consequential damage is ambiguous. At least, five meanings can be noticed, in particular (1) expectation loss, (2) reliance loss, (3) indirectly caused damage, (4) indirect damage according to the second branch of the Hadley rule, (5) abnormal damage. The translation of this concept into French by dommage indirect - term that has different meanings as well, notably (1) indirectly caused damage, (2) too remote a damage, (3) damage suffered by another person than the direct victim - is misleading and can be confusing. To translate that concept, it is advisable to use a term in the target language that has no legal connotations, in French, for instance, dommage consécutif.

Résumé: Le but de cet article est d'attirer l'attention sur l'importance et la difficulté de la traduction juridique pour le projet de droit européen des contrats. Le concept de « consequential loss » a été choisi dans cette perspective. Un essai de définition de ce concept pourrait être fait comme suit. Il s'agit d'un dommage prévisible, donc probable ou possible, qui est une suite nécessaire d'une inexécution du contrat ou d'une faute. Comme il est prévisible il n'est pas considéré comme trop indirect. Il peut ou non découler d'un dommage antérieur causé à une personne ou une chose; il peut ou non avoir été porté à la connaissance des parties lors de la conclusion du contrat; il peut ou non être anormal. Le terme anglo-américain 'consequential damage' est ambigu. On peut détecter au moins cinq significations, notamment (1) « expectation loss », (2) « reliance loss », (3) dommage causé de manière médiate, (4) dommage indirect dans le sens de la seconde branche de Hadley v. Baxendale, (5) dommage anormal. Traduire ce terme en fran¸cais par « dommage indirect » - expression qui a elle-même trois significations (dommage causé de manière médiate, dommage trop éloigné, dommage par ricochet) - peut faire désordre et créer de la confusion. Il est préférable de le traduire par un terme qui n'a aucune connotation juridique dans la langue cible, en français par exemple par « dommage consécutif ».
Hungarian Report
Authors: Burger Georgina Suto
Published: April 2022

Abstract: This article focuses on how the transnational law is processed in Hungary. First, the author examines how the fragmentation of transnational sources is expressed in her country. In Hungary, practically, scholars and elite professionals were always at the forefront in resolving such problems in international context without any institutional framework set up or supported by the government. However, a new act has replaced recently the former act on the treaties, and there has been also a responsible body for decades for treaties. This latter is not a framework for the transnational sources, but at least, the treaties are handled on administration level. Where the complexity of transnational sources comes up is rather their application: the judgments. Therefore, the focus will be largely on this question in this study. Are the judges well educated for these complex cases? If not, how do they elude such a complexity? Is it possible to measure the efficiency of courts in dealing with such issues? Besides some positive answers, the effect of communism is still detectable in some chaos in the organization and in the poor education for the elder generation of judges.

Résumé: Cet article analyse la réception du problèmeet aussi l'application des sources transnationales du droit en Hongrie. D'abord, l'auteur présente comment la fragmentation des sources transnationales est évoqué dans son pays. En Hongrie, pratiquement les savants et l'élite des professeurs s'occupent de ce problème á l'égard d'un contexte international mais toujours sans cadre institutionnel soutenu par le gouvernement. Toutefois, le parlement a voté récemment la nouvelle loi sur les traits qui succède la version communiste et il existe aussi,depuis longtemps, un organe gouvernemental responsable des traités. Même si ce dernier se s'occupe vraiment des sources transnationales, on peut affirmer que les traités sont bien gérés au niveau administratif. Où la complexité des sources internationales s'évoque, c'est plutôt leur application: la question de la jurisprudence. C'est pourquoi cet article a mis l'accent sur cette question. Sont les juges bien éduqués pour ces cas complexes? Si non, si et comment essayent-ils éviter les difficultés de cette complexité? Est-il possible de mesurer l'efficacité des tribunaux en ce qui concerne le jugement de ces cas? Même si l'on a des réponses positives á ces questions, le trace du communisme est toujours détectable, de même avec le petit chaos, de temps en temps, en organisation et bien en éducation des juges de la génération ainée.
General Principles of Law in Administrative Law under European Influence
Authors: Widdershoven Rob , Remac Milan
Published: April 2022

Abstract: Since 1935, general principles of law have represented an important feature in the face of Dutch administrative law and its development. Dutch administrative courts have played and still play an important role in the development of these principles and in bringing them to life. Although the evolution of legal principles has, in the past, depended mainly on the decision-making of national administrative courts, today we can see a shift from national courts to the European ones. European influence whether it is influence of the Court of Justice of the European Union or of the European Court of Human Rights (ECtHR) cannot be overlooked and has today a deep and indisputable impact on changes in the content of several national principles. In the last decade, we have also noted the emergence of a new type of normative standards - principles of good administration. All these changes are often reflected in existing national legal principles and the general principles of administrative law in the Netherlands are not an exception. Because of these reasons, we will discuss in the following article the essential features of the development of general principles of law in Dutch administrative law, while pinpointing the importance of European influences and the possible future of the principles.

Résumé: Depuis 1935, les principes généraux du droit ont représenté une caractéristique importante de l'aspect du droit administratif néerlandais et de son évolution.Les tribunaux administratifs néerlandais ont joué et jouent encore un role important dans le développement de ces principes et dans leur création. Quoique l´évolution des principes légaux dépendait autrefois principalement des décisions des cours administratives nationales, on peut voir aujourd´hui un changement de direction partant des tribunaux nationaux vers les tribunaux européens. L´influence européenne, que ce soit l´influence de la Cour de Justice de l´Union européenne ou de la Cour européenne des Droits de l´Homme, ne peut être ignoréeet elle a aujourd´hui un impact profond et incontestable sur les changements du contenu de plusieurs principes nationaux. Durant la dernière décennie, on a pu également remarquer l´émergence d´un nouveau type de modèle normatif - les principes de bonne administration. Tous ces changements se reflètent souvent dans les principes légaux nationaux existants, et les principes généraux de droit administratif aux Pays-Bas ne font pas figure d'exception. Pour ces raisons, nous discuterons dans cet article des aspects essentiels de l´évolution de principes généraux de droit en droit administratif néerlandais, tout en mettant l´accent sur l´importance des influences européennes et sur l´avenir possible de ces principes.