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The Law of Recitals in European Community Legislation
Abstract
Recitals, those 'whereas' clauses, appear in contracts as well as legislation, although not all legislation contains recitals; indeed, recitals are 'against' the precepts of certain styles of legislation. When, however, there are recitals, parties will argue over the way they should be interpreted in view of the operative provisions, or that they have, or don't have, other legal repercussions. The courts must then choose among a number of interpretive variants: they may choose to view recitals as subordinate to, dominant over, or even equal to operative provisions. Recitals are also a feature of European Community (EC) legislation, so that the same variants exist. But the matter is complicated by a feature of EC legislation which is fairly unique: recitals in EC legislation must specify the reasons the operative provisions were adopted, and if they do not, the legislation is void. This is puzzling. Why would this be so? It does not seem to emanate from the nature of recitals themselves, nor does it seem to be reflected in the general law of recitals (principally contract law).At the same time it is claimed that while EC recitals have no legal value and cannot be the cause of derogation from an operative provision, they nevertheless create legitimate expectations (such as would defeat an operative provision). This is also strange. Recitals are supposed to be general statements. General statements are not something which ordinarily are recognized as giving rise to legitimate expectations. But also recitals in general (for instance, in contract law) are, well, recitals, not operative provisions and it is hard to fathom how they could give rise to positive obligations or defeat operative clauses.Thus, the doctrine surrounding recitals in EC law is mystifying. It is either irrational or so complicated as to amount to the same thing. The aim of the paper is to explain the mystery regarding EC recitals. Why is legislation void if recitals are lacking? Why are the purported rules concerning legitimate expectations so strange?Our findings can be summarized thusly:We began research for this paper thinking that an exposition on this general topic might be of some worth, as it might clear up what we felt were some contradictions in what was purported to be the EC law of recitals. Specifically, we felt something might be amiss with the received wisdom that recitals could justify legitimate expectations such as would give rise to positive rights. Something about it didn't jibe with what we knew of legitimate expectations in this regard: only sufficiently specific statements or acts could give rise to them. Recitals, at least in EC law, are supposed to be rather general expressions of purpose; such cannot readily justify reliance. We were gratified when we found that the received wisdom was incorrect, and that recitals in EC law do not create legitimate expectations. We certainly did feel, at the onset of our research, that the ECJ's case-law invalidating EC legal acts on the basis that the recitals in question were insufficient was curious and therefore worthy of comment; at the very least the provision seemed unusual. The ECJ's statements that recitals are necessary for the court to exercise its supervision seemed somewhat coy. We were, however, surprised when our research and analysis found that the imperative nature of the requirement to state reasons in recitals in EC law was due to the need for political reassurance.We then realized that it is only in supranational legislation where the justification assumes such importance, inasmuch as EU legislation which requires unanimity in order to be adopted does not require recitals at all.Thus de-mystified, the law of recitals in EC legislation falls within the realm of normality. Recitals in EC law are not considered to have independent legal value, but they can expand an ambiguous provision's scope. They cannot, however, restrict an unambiguous provision's scope, but they can be used to determine the nature of a provision, and this can have a restrictive effect. And the voidness of an EC legal act is traceable and due to political considerations, not legal ones. Alles ist klar.
... 14 See Case C-673/16 Coman EU:C:2018:385. 15 Uusen-Nacke, Vahaste-Pruul [30], pp. 19-21. ...
... 32 The application of this standpoint per analogiam to the Regulations (and assuming that all Member States are bound by the Regulations) may be illustrated by the following example: a judgment concerning a "conservative" Member State's citizen (for example an ex-spouse, who wants to divide the property after the divorce) and an immovable property (for example an apartment) located in that Member State issued in another Member State would have to be recognised in the "conservative" Member State without the possibility of any recourse to the public policy clause, as this recourse would be contradictory to the principle of non-discrimination established in the Charter of Fundamental Rights. 33 The above might raise the fears of the "conservative" Member States that obligatory recognition and enforcement in accordance 28 30 Klimas, Vaiciukaite [15], pp. 61-93. ...
This article briefly presents the attitude towards same sex-marriages and registered partnerships of legislators in those EU Member States which have decided not to participate in the adoption of EU regulations concerning property matters for spouses and registered partners. It also provides an overview of these regulations in order to indicate which provisions have triggered such decisions. Finally, it points out some examples of clashes resulting from the different systems being applied in participating Member States and non-participating Member States.
... The GDPR provides an example of how nonbinding rules can be used to direct interpretation, as the European Union regulation is accompanied by 173 Recitals, which expose "the reasons the act's operative provisions are being adopted" [Klimas and Vaiciukaite 2008]. Such recitals do not have any binding power on their own, they can be used to extend or reduce the scope of ambiguous provisions, or in more extreme situations, clarify their very nature [Klimas and Vaiciukaite 2008]. ...
... The GDPR provides an example of how nonbinding rules can be used to direct interpretation, as the European Union regulation is accompanied by 173 Recitals, which expose "the reasons the act's operative provisions are being adopted" [Klimas and Vaiciukaite 2008]. Such recitals do not have any binding power on their own, they can be used to extend or reduce the scope of ambiguous provisions, or in more extreme situations, clarify their very nature [Klimas and Vaiciukaite 2008]. ...
Concerns about “black box” machine learning algorithms have led many data protection laws and regulations to establish a right to human intervention on decision-making supported by artificial intelligence. Such interventions provide data subjects with means to protect their rights, freedoms, and legitimate interests, either as a bare minimum requirement for data processing or as a central norm governing decision-aiding artificial intelligence. In this paper, I present contestability by design as an approach to two kinds of issues with current legal implementations of the right to human intervention. The first kind is the uncertainty about what kind of decision should be covered by this right: while a narrow reading of rules such as GDPR Article 22(3) would include all sorts of fully-automated decisions, I show how a broader interpretation can provide more effective protection for data subjects against side-effects of automated decision-making. The second class of issues ensues from practical effects, or the lack thereof, of this right to intervention: even within a clear conceptual framework, data subjects might still lack the information they need to the concrete exercise of their right, or the human intervention itself might introduce biases and limitations that result in undesirable outcomes. After discussing how those effects can be identified and measured, I then explore how the proper protection of the rights of data subjects is possible only if the possibility of contesting decisions based solely on automated processing is not an afterthought, but instead a requirement at each stage of an artificial intelligence system’s lifecycle.
... Consequently, EU legislation is typically preceded by a preamble consisting of recitals laying out the justification behind the legislative measure at issue. Klimas and Vaiciukaite explain that while recitals themselves in EU law are not legally binding, the CJEU-which employs a purposive approach to interpreting legislation-frequently cites preambles of various EU measures to substantiate its interpretation [65]. Consequently, in Recital 7 to the AI Act, the EU institutions assert that the common rules governing high-risk AI are to be consistent with the EU Charter of Fundamental Rights, and they should also take into account the European Declaration on Digital Rights and Principles for the Digital Decade (OJ C 23/1), as well as the abovementioned ethics guidelines for trustworthy AI of the High-Level Expert Group (HLEG) on Artificial Intelligence. ...
As AI-driven solutions continue to revolutionise the tech industry, scholars have rightly cautioned about the risks of ‘ethics washing’. In this paper, we make a case for adopting a human rights-based ethical framework for regulating AI. We argue that human rights frameworks can be regarded as the common denominator between law and ethics and have a crucial role to play in the ethics-based legal governance of AI. This article examines the extent to which human rights-based regulation has been achieved in the primary example of legislation regulating AI governance, i.e., the EU AI Act 2024/1689. While the AI Act has a firm commitment to protect human rights, which in the EU legal order have been given expression in the Charter of Fundamental Rights, we argue that this alone does not contain adequate guarantees for enforcing some of these rights. This is because issues such as EU competence and the principle of subsidiarity make the idea of protection of fundamental rights by the EU rather than national constitutions controversial. However, we argue that human rights-based, ethical regulation of AI in the EU could be achieved through contextualisation within a values-based framing. In this context, we explore what are termed ‘European values’, which are values on which the EU was founded, notably Article 2 TEU, and consider the extent to which these could provide an interpretative framework to support effective regulation of AI and avoid ‘ethics washing’.
... In Figure 4, we consider only risk categories that are accompanied by mandatory requirements in the AI Act. Unlike government policies outside of the EU that we consider, the EU AI Act and GDPR have a large number of recitals, or nonbinding provisions that explain the objectives of the law [48,28]. Recitals are helpful in understanding how EU policymakers conceive of the risks related to AI-and may play a role in how binding Codes of Practice are drafted-and so we include the risks they describe in Figure 3. ...
We present a comprehensive AI risk taxonomy derived from eight government poli- cies from the European Union, United States, and China and 16 company policies worldwide, making a significant step towards establishing a unified language for generative AI safety evaluation. We identify 314 unique risk categories, organized into a four-tiered taxonomy. At the highest level, this taxonomy encompasses System & Operational Risks, Content Safety Risks, Societal Risks, and Legal & Rights Risks. The taxonomy establishes connections between various descriptions and approaches to risk, highlighting the overlaps and discrepancies between public and private sector conceptions of risk. By providing this unified framework, we aim to advance AI safety through information sharing across sectors and the promotion of best practices in risk mitigation for generative AI models and systems.
... The only reference to encrypted data is found in Recital 25 which includes within the broad term of intrusive surveillance software the activity of "access[ing] encrypted content data," as prohibited under Para.3.c. However, as several legal scholars point out, recitals do not hold the same legal weight as article provisions (Klimas et al., 2008). At most, Article 4, para.3 states, albeit rather loosely, that "confidential communications are effectively protected". ...
The article explores the attempts to answer the research question: Are the odds
of engaging with innovation activities higher in companies who implement EU
projects? Based on mixed methods of empirical data collection we find out that
EU projects increase statistically the likelihood of innovation. The highest
differences are observed in process innovations, followed by product and marketing
innovations. There is no difference in organizational innovations.
... In Figure 4, we consider only risk categories that are accompanied by mandatory requirements in the AI Act. Unlike government policies outside of the EU that we consider, the EU AI Act and GDPR have a large number of recitals, or nonbinding provisions that explain the objectives of the law [48,28]. Recitals are helpful in understanding how EU policymakers conceive of the risks related to AI-and may play a role in how binding Codes of Practice are drafted-and so we include the risks they describe in Figure 3. ...
We present a comprehensive AI risk taxonomy derived from eight government policies from the European Union, United States, and China and 16 company policies worldwide, making a significant step towards establishing a unified language for generative AI safety evaluation. We identify 314 unique risk categories organized into a four-tiered taxonomy. At the highest level, this taxonomy encompasses System & Operational Risks, Content Safety Risks, Societal Risks, and Legal & Rights Risks. The taxonomy establishes connections between various descriptions and approaches to risk, highlighting the overlaps and discrepancies between public and private sector conceptions of risk. By providing this unified framework, we aim to advance AI safety through information sharing across sectors and the promotion of best practices in risk mitigation for generative AI models and systems.
... Regulatory interpretation has an established history (cf. [18]), including formal studies of case law [19] or recitals [20]. We refer to interpretations as any body of operationalized legal demands or rules for the purposes of the regulated [18]. ...
... They can affect the meaning of an ambiguous provision but cannot restrict the meaning of an unambiguous provision (Case C-424/10 and C-425/10, 2010, paras. 37 & 43-43;Case C-162/97, 1998, para 54;Klimas & Vaičiukaitė, 2008). In this respect, the operative provisions of the Food Claims Regulation state that the average consumer benchmark is the applicable test. ...
This article evaluates the European Union’s efforts to regulate consumer food information with the aim of improving consumer nutrition as part of its broader consumer protection agenda. With nearly a million deaths attributed to unhealthy diets annually, the EU’s New Consumer Agenda, its Farm to Fork Strategy, and Europe’s Beating Cancer Plan all highlight the objective of empowering consumers to make informed, healthy food choices. This underscores the EU’s longstanding emphasis on regulating information to protect consumers, an approach which is even stronger with nutrition more specifically. This article shows that the EU food information law is based on two beliefs. First, consumers are given food information that is sufficient, accurate, non-misleading, clear and easy to understand and they are, therefore, well-informed. Second, well-informed consumers are empowered. This article argues that both of these beliefs are misguided. The current food information rules do not truly inform consumers well and do not, on their own, empower consumers to make healthy dietary decisions. Consequently, this article expresses scepticism about the ability of the current rules to promote improved nutrition. In light of the critiques of the current rules, this article offers suggestions for an improved food information paradigm. In addition to rules that would more effectively inform consumers, such a paradigm would acknowledge the limitations of information to empower healthier food choices and, therefore, give greater weight to more substantive interventions. This would align food law with broader trends in consumer protection law and thereby genuinely promote healthier nutrition.
... R ecitals are a mandatory part of the structure (preamble) of the legal acts of the Union, the content of which motivates the main provisions of the enacting terms of the act and which do not contain provisions of a normative nature. In an attempt to demystify their legal nature, an opinion is expressed that the reason why recitals are binding may be a political one based upon a need for reassurance (Klimas & Vaiciukaite, 2008). According to the Court of Justice of the European Union (hereinafter CJEU), "the undoubted legal value of the recitals is to give the parties to a dispute the opportunity to defend their interests and to enable the Court of Justice of the European Union to exercise its power of review" (see Case 24/62 Germany v Commission; Case C-367/95 P Commission v Sytraval and Brink's France, paragraph 63; Case C-413/06 P Bertelsmann and Sony v Impala, paragraph 166; Case 2/56 Geitling v High Authority; Case 73/74 Groupement des fabricants de papiers peints de Belgique and Others v Commission ("Papiers peints"), paragraph 30 and Case C-439/11 P Ziegler SA v European Commission, parаs 81 and 82). ...
In February 2022, the European Commission published the proposal of the Data Act, Art. 35 which deals with the sui generis right of database manufacturers. The Database Directive 1996/9/EC has survived again and is about to enter the EU cloud federation almost intact. This fact received several academic headlines while almost overshadowing a landmark decision of the Court of Justice of the European Union. It is the decision in the case C-762/19 – SIA “CV-Online Latvia” v SIA “Melons”, which signals the beginning of a significant change in the existing jurisprudence and has the potential to focus the blurred image of The Directive. The Court attached great importance to recital 42 from her, which gives rise towell-founded interest. This is because the qualitative and quantitative weight of recitals in the jurisprudence of the Court of Justice of the EU is little studied and not at all in the field of the legal protection of databases. It is precisely some selected aspects of the place and the meaning of recitals in the judgments of the Court of Justice of the EU in proceedings on preliminary rulings that occupy a central area in the present study.
... If this is the case, then it is hard to see what role certain provisions -such as Arts. 4(3), 5(8), 17(2)(c) and 19(1) of the 113 On the role of recitals in EU law see Klimas and Vaiciukaite (2008). 114 See https://digital-strategy.ec.europa.eu/en/library/data-act-proposal-regulation-harmonised-rulesfair-access-and-use-data. ...
This article draws on a recently completed study for the European Commission on trade secrets in the data economy. It distils the main findings of that Study and advances it by reflecting on and analyzing these findings in the context of existing legal, management and economics literature, as well as their implications for EU legal policymaking when it comes to trade secrets law. In order to facilitate data sharing, the article argues for a cautious approach, with very modest legislative reforms to the EU Trade Secrets Directive, instead preferring soft law and practical steps to be taken. There is, however, greater scope to reform legal regimes that are complementary to EU trade secrets law, such as the sui generis database right.
... The initial part of the document consists of recitals, which are ostensibly explanatory and do not have the same status as normative provisions. The relationship between recitals and normative provisions is a debated topic relying on different doctrinal positions [19]. ...
Automatic analysis of legal texts is increasingly of interest to address the issue of interpretation and compliance concerns. This paper proposes a two-step framework to investigate implicit relationships in legal documents, starting with a corpus-based approach. By introducing an annotation process, the goal is to obtain a gold standard corpus suitable for machine learning experiments. In a second step, we propose a set of features to perform the task of predicting relationships between parts of a norm, as a way to improve legal interpretation. We discuss our first results concerning the annotation task, as well as the adoption of graph-based measures derived from social network analysis. We perform a practical application to an European Union regulation. The proposed framework exploiting network analysis in addition to a corpus-based approach can be applied to address a binary classification task.
... Se trata de una doctrina que, por ejemplo, no ha impedido que se recurriese a un considerando para apoyar una interpretación amplia del ámbito material de un precepto; una lectura expansiva de la disposición que, ciertamente, no podía inferirse de su solo tenor literal (Sentencia de 29 de abril de 1999, asunto C-288/97, par. 23) 73 . ...
El objetivo del trabajo reside en analizar si el derecho fundamental a la protección de datos personales consagrado en el art. 18.4 CE comprende el derecho a acceder a los algoritmos utilizados en la toma de decisiones. El artículo se centra especialmente en las obligaciones de información que el Reglamento General de Protección de Datos impone al responsable del tratamiento, que han suscitado la muy debatida cuestión acerca de si el Reglamento atribuye a los afectados el derecho a obtener una explicación sobre la decisión automatizada.
... 6 The Court use of recitals to interpret enacting terms establishes the authority of recitals as guiding principles which determine the scope of the directives. Therefore, despite precise lacking legal authority, recital II of the APD continues to hold significant importance in determining the scope and nature of the enacting terms of the Directive (Klimas & Vaiciukaite, 2008). The recital prevents the Member States from expanding the scope of the APD beyond the guideline of its Preamble. ...
... This second function has been developed by the case law of the European Court of Justice (ECJ). Authors in [41] state that ''evidence, albeit indirect, of the importance of recitals in transposition can be found in every case in which the ECJ strikes down a local provision in a transposed rule due to the influence of a recital upon the scope of the transposed operative provision''. Recitals are also used in the interpretation of cases brought by individual claimants. ...
The interpretation of any legal norm typically requires consideration of relationships between parts within the same piece of legislation. This work describes a general framework for the development of a system to identify and classify implicit inter-relationships between parts of a legal text. In particular, our approach demonstrates the usefulness of co-occurrence networks of terms, in a practical experimental setting based on an EU Regulation. First, a manual annotation task identify instances of different kinds of implicit links in the norm. In addition to a typical NLP pipeline, our framework includes a technique from Information Architecture, i.e. card sorting. Second, we construct co-occurrence networks of the law terms to derive graph metrics. Third, binary classification experiments identify the existence (and the type) of inter-relationships by using a Bag-of-Ngrams model integrated with network analysis features. The results demonstrate how the adoption of co-occurrence network features improves the identification of links, for all the classifiers here considered. This is encouraging toward a wider adoption of this kind of network analysis technique in legal informatics.
... Parts of the GDPR could be characterized as 'principles-based regulation' (Baldwin, Cave, & Lodge, 2012). The GDPR's provisions are supplemented with even more indeterminate 'recitals' (Klimas & Vaiciukaite, 2008). Such text flummoxes U.S. lawyers because of its lack of specificity. ...
... The Court rejected the notion that previous legal basis choices would bind future legislation, whatever the similarities between them (case 131/86, para 29). 66 By this point the Court also established a practice of determining, not always exclusively, the "aim and content" of a measure from its preamble (Wainwright 1996;Klimas and Vaiciukaite 2008), thus creating incentives for strategic framing of an otherwise largely non-binding part of the legislative text (Jupille 2004). ...
Politics is usually thought of as taking place given a set of constitutional constraints. The constitution notably defines rules governing the exercise of legislative competences by which institutional players must abide when making laws. But sometimes the rules of the game themselves become the object of political contestation. This thesis investigates the conditions under which competences are contested in the European Union (EU). When an institutional system contains more than a single procedural rule for enacting legislation, actors can argue about which rule is more appropriate, in what Joseph Jupille called "procedural politics". The doctoral research shows that in the European Union institutional actors are more likely to dispute legislation when its subject matter touches upon several issue areas and when an alternative procedure would confer more influence on one of the players. Disputes are also more likely in the wake of constitutional amendments of the EU Treaties, which introduce uncertainty about applicable procedural rules. Based on their positions in litigation before the European Court of Justice, EU institutions and Member States are shown to have different preferences about European integration. The European Parliament has the most pro-supranational preferences, followed by the Commission and the Court. Competence contestation, however, has a clear cost in that procedurally disputed legislation that ends up before the Court of Justice takes twice as long to adopt compared to uncontested laws.
... 68 The CJEU has developed a number of principles regarding the effect of recitals to EU legislation. 69 It has been held that the language of a recital cannot limit a right contained in the enacting provisions, 70 but equally, neither can it confer a right clearly not granted nor denied by the operative provisions. 71 The Court is, however, ready to use recitals to interpret the scope of enacting provisions although this is unclear from the enacting provisions themselves. ...
The relationship between the European jurisdiction regime and arbitration is one of the areas generating confusion and disputes. The Brussels I Regulation clearly excludes arbitration from its scope to avoid conflicts with the New York Convention, but arbitration-related issues, such as the validity of arbitration agreements, either as an independent claim or an incidental question, frequently arise in courts. The scope of the Brussels I Regulation in terms of arbitration has been addressed by the Court of Justice of the European Union in a number of decisions, such as Marc Rich v Societa Italiano Impianti, Van Uden, and Front Comor. None of them have provided a satisfactory answer. In order to provide clarification and to reconcile the European jurisdiction Regulation and the New York Convention, the Brussels I Recast has inserted a new recital specifically addressing the relationship between court jurisdiction and arbitration. This article aims to assess the effect of the new recital and whether it has appropriately resolved the difficult questions on the relationship between jurisdiction and arbitration in the European Union.
... http://eur-lex.europa.eu/content/techleg/EN-legislative-drafting-guide.pdf p. 31, accessed on 20 May 2018; Klimas and Vaiciukaite (2008) 19 Especially the Scandinavian countries and the Netherlands advocated the introduction of a fair-uselike clause (Renda et al. 2015, p. 28). 20 Dreier (2010). ...
In the EU, the complex relationship between copyright and fundamental rights is accommodated in inter alia the Copyright Directive, which uses an internal system of exhaustive exceptions and limitations to copyright. However, it remains unclear whether fundamental rights can serve as autonomous grounds for limiting a copyright. Recently, the German Federal Supreme Court referred preliminary questions to the CJEU in the so-called Afghanistan Papiere case in order for the CJEU to address this unclarity. To sketch the context in which these questions have to be answered, this article explores the tension between copyright and fundamental rights in the EU legal order and identifies the boundaries of the system of exhaustive exceptions and limitations. After describing the EU legislative framework, it offers a typology of the CJEU’s case law, before moving onto the ECtHR’s Ashby Donald judgment, in which the issue of balancing copyright and other fundamental rights was addressed. It follows that whereas the Copyright Directive and the CJEU do not seem to allow for an external role for fundamental rights, this exact role seems to be required by the ECtHR for certain types of cases. This difference is assessed in light of the relationship of the two courts, which is essentially characterised by a need to prevent divergence between them. It is argued that the pending preliminary questions can probably be answered using the internal system of the Copyright Directive, but that they clearly indicate the limitations and problems connected to the CJEU’s current approach towards copyright and fundamental rights.
Especially since the COVID-19 pandemic, more and more automated systems are involved in the formulation of decisions which have a significant impact on individual and collective life and which increasingly affect key public functions. Automation has proved to be able to produce extremely positive results in terms of greater efficiency and speed in decision-making, but often conceals the risk of discrimination, longstanding and newly minted.
Based on an analytical examination of the most important legal provisions and a close comparison with the stances of law scholars and the European Court of Justice jurisprudence, the study examines the topic of discriminatory automated decisions in the light of the European General Data Protection Regulation, in order to ascertain whether the GDPR provides effective tools for counteracting them.
Recitals are open to interpretations although you can find legal implications. They aren't essential for contracts but it can save you in the arbitration process. This paper will give you some other advantages for making the Recitals functional.
According to the ideology underlying our legal systems, parliamentary debates are supposed to be a crucial element of the public justification and hence of the legitimacy of legislation. Yet, the question of how to analyse their (potential and actual) justificatory value has largely been neglected up to date in mainstream legisprudential scholarship, and still remains undertheorised. The present chapter introduces the general hypothesis that legislative debates in parliament are a privileged—albeit ‘condensed’—source of legislative justification and outlines a legisprudential method to reconstruct and analyse them, with the aim of exploring the plausibility of this hypothesis. Furthermore, the paper suggests some evaluative criteria or guidelines that may help to establish whether a bill (or an individual legislative measure) has been reasonably justified by those who pass it, i.e. by the elected lawmakers. These criteria attempt to account for the ‘extent’ (the ‘scope’ and ‘depth’), the ‘structural correctness’, the ‘dialectical-deliberative adequacy’ (or ‘thoroughness’) and the ‘plausibility’ of the legislative justification that MPs offer during parliamentary debates on bills.
Policymakers implement regulations with limited capacity to register the unexpected. We argue that unexpected events do occur when regulations are implemented and we develop the concept of explication to account for the performative misfires that generate them. Explication is the organizational process that allows abstract ideas to be transposed into material realities and it allows us to identify how regulatory texts can carry signs and intentions in absence of their authors. We investigate the implementation of Markets in Financial Instruments Directive (MiFID), a regulatory package that generated a market context that was significantly different from what its economic programme sought to achieve. The competitive model underlying MiFID aimed to create a level-playing field among European financial markets but in reality its explication reduced transparency. We make four contributions to organization studies. First, we show that explication is a source of contingency in implementation. Second, we shed light on the individual and collective hermeneutic performance as the source of counterperformativity. Third, explication brings intention back into the discussion: intention emerges from the unintended consequences borne by regulatory texts from the moment interpretation begins. Fourth, we show how explication can be a widely useful concept in organization studies because it brings the performativity of language back into material semiotics whilst maintaining a place for contingency.
A particularity of the Twin Regulations, the most recent sources of EU private international law on cross-border couples’ property regimes, is the fact that their material scope of application might differ depending on whether the proceedings are instituted before the participating Member State which recognises same-sex marriages. This is the consequence of the fact that Regulation 2016/1104 offers the definition of registered partnership, whereas Regulation 2016/1103 leaves to national legislations to define marriage. The paper analyses which of the Twin Regulations will the Croatian court, seised with a property claim of same-sex spouses, apply. After defining the material ambit of each of the Twin Regulations from the perspective of the Croatian court, family formations, which are not covered by these instruments, are identified. The paper tries to untangle the complex interrelation of Croatian PIL provisions and other relevant EU private international law sources, in the attempt of delimiting which of these family formations’ property claims are left to Croatian PIL Act.KeywordsPrivate international lawCross-border couplesDe facto unionsMatrimonial property regimeProperty regime of registered partnershipTwin regulationsEUCroatia
Global Navigation Satellite Systems (GNSS), such as GPS or Galileo, have become indispensable in various sectors, including road traffic, aviation, and emergency response services. With recent technological advancements, GNSS have been incorporated as a fundamental constituent of artificial intelligence (AI) systems. Self-driving vehicles, autonomous aircraft, and drones rely increasingly on GNSS, as these technologies are currently the sole source of globally consistent, precise positioning and timing. However, GNSS are not entirely risk-free as satellite signals can be susceptible to interference and other technical malfunctions may cause disruptive impacts on the proper functioning of AI systems. In such context, this article aims to explore the legal foundations for ascribing liability in case accidents are caused by AI systems due to a GNSS malfunctions, in the light of the recent European regulatory initiatives, namely the AI Act, the AI Liability Directive and the revised Product Liability Directive.
Can the history of European integration be told on the basis of the textual development of the preambles to the European treaties? This is the fundamental question of this text which looks at European integration through the eyes of its treaties’ preambles. In a first step, possible forms, content and functions of preambles are introduced. This provides the analytical framework for the following part that explores the European treaties’ preambles and layers of integration. It focusses on three central hypotheses: Beginning with thoughts on the speaking entity of the preambles, i.e. their subjects, the text examines directions and reasons of European integration. Starting point to this is the “ever closer union among the European peoples” and the discussion on values.
The raise and progresses of golden powers depend on economic factors, which inevitably produce effects on the law. In this context, Regulation (EU) 2019/452 determines a concrete shift of paradigm. However, the boundaries of the EU lawmakers’ intervention on the screening of foreign investments remain uncertain. Among the different solutions adopted by the EU Member States, this study underlines the relevance of the Italian approach in showing that even though the law must adapt to the instances of the economy, it is also necessary that the law itself governs the market.
The prevention of conflicts of criminal jurisdiction between EU Member States was not expressly recognized in the primary law of the Union, until this issue acquired greater relevance for these with the creation of the AFSJ and the extension of the Schengen area. It was the TEU, as drafted after the Treaty of Amsterdam, which included for the first time the prevention of jurisdiction conflicts of jurisdiction among EU Member States with regard to common action in the field of judicial cooperation in criminal matters. Later, following the Treaty of Nice, this prevision was expanded to include and recognize the role of the then recently established Eurojust in assisting judicial cooperation in criminal matters between Member States—Art. 31(1)(d) and 31(2) TEU. These provisions served as the legal basis for adopting all secondary legislation on this matter: Framework Decision 2009/948/JHA and the powers granted to Eurojust by its Decision (currently replaced by Regulation (EU) 2018/1727).
This article aims to cast light on how the fast-evolving European cybersecurity regulatory framework would impact the Internet of Things (IoT) domain. The legal analysis investigates whether and to what extent existing and proposed sectoral EU legislation addresses the manifold challenges in securing IoT and its supply chain. It firstly takes into account the Cybersecurity Act, being the most recent and relevant EU legal act covering ICT products and cybersecurity services. Then, EU product legislation is scrutinised. The analysis focuses on the delegated act recently adopted by the Commission under the Radio Equipment Directive (RED), strengthening wireless devices’ cybersecurity, the Medical Devices Regulation, the Proposal for a General Product Safety Regulation and the Proposal for a Machinery Regulation. Lastly, the proposal for a revised Network and Information Systems Directive (NIS2) is assessed in terms of its potential impact on the field of IoT cybersecurity. Against this backdrop, the article concludes by advocating the need for a separate horizontal legislation on cybersecurity for connected products. To avoid fragmentation of the EU's Single Market, a horizontal legal act should be based on the principles of the New Legislative Framework, with ex-ante and ex-post cybersecurity requirements for all IoT sectors and products categories.
In June 2013, the Commission proposed a draft directive as part of a three-part package aiming to harmonise certain aspects of private actions across the EU level. Approved and signed in November 2014, the Directive 2014/104/EU on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union represents a novelty in two aspects. Firstly, it is the first time that the Commission submits draft legislation in the area of EU competition law. Secondly, it is also the first time that the European Parliament is involved as a co-legislator under the ordinary legislative procedure in the competition domain. This chapter provides a legal analysis of the Antitrust Damages Directive and analysis the main substantial and procedural rules introduced. Furthermore, this chapter assesses whether the harmonisation has achieved its goal and outlines main problems encountered by the EU Member States.
Aims
We profile the lack of specific regulation for direct‐to‐patient postal supply (DTP) of clinical trial medications (investigational medicinal products, IMPs) calling for increased efficiency of patient‐centred multi‐country remote clinical trials.
Methods
Questionnaires emailed to 28 European Economic Area (EEA) Medical Product Licensing Authorities (MPLAs) and Swissmedic MPLA were analysed in 2019/2020. The questionnaire asked whether DTP of IMPs was legal, followed by comparative legal analysis profiling relevant national civil and criminal liability provisions in 30 European jurisdictions (including The Netherlands), finally summarising accessible COVID‐19‐related guidance in searches of 30 official MPLA websites in January 2021.
Results
Twenty MPLAs responded. Twelve consented to response publication in 2021. DTP was not widely authorised, though different phrases were used to explain this. Our legal review of national laws in 29 EEA jurisdictions and Switzerland did not identify any specific sanctions for DTP of IMPs; however, we identified potential national civil and criminal liability provisions. Switzerland provides legal clarity where DTP of IMPs is conditionally legal. MPLA webpage searches for COVID‐19 guidance noted conditional acceptance by 19 MPLAs.
Conclusions
Specific national legislation authorising DTP of IMPs, defining IMP categories, and conditions permitting the postage and delivery by courier in an EEA‐wide clinical trial, would support innovative patient‐centred research for multi‐country remote clinical trials. Despite it appearing more acceptable to do this between EU Member States, provided each EU MPLA and ethics board authorises it, temporary Covid‐19 restrictions in national Good Clinical Practice (GCP) guidance discourages innovative research into the safety and effectiveness of clinical trial medications.
Artificial intelligence techniques have been used to automate various procedures in modern life, ranging from ludic applications to substantial decisions about the lives of individuals and groups. Given the variety of automat-ed decision-making applications and the different forms in which decisions may harm humans, the law has struggled to provide adequate responses to automation. This paper examines the role of a specific branch of law — data protection law — in the regulation of artificial intelligence. Data protection law is applicable to automation scenarios which rely on data about natural persons, and it seeks to address risks to these persons through three approaches: allowing persons to exercise rights against specific automated decisions, disclosing information about the decision-making systems and imposing design requirements for those systems. By exploring the potentials and limits of such approaches, this paper presents a por-trait of the relevance of data protection law for regulating AI.
z Yaygın bir şekilde özel alan çevirisi yapılmasına rağmen edebi metinlerin dışındaki metinlerin çevirileri ile ilgili yapılan araştırmaların sayısı oldukça azdır. Edebi metinlerin dışında ve bir hukuk metin türü olarak sınıflandırılan kira sözleşmelerinin metin dilbilimsel betimlenmesi, sözcük ve söz dizimi çerçevesinde bu çalışmada ele alınmıştır. Bütünce, Türkçe (kaynak metin olarak) ve İngilizce (kaynak metin ve erek metin olarak) hazırlanan sınırlı sayıdaki kira sözleşmelerinden oluşmaktadır. Bu metinler çözümlendiğinde, benzer hukuk metinlerinde olduğu gibi, kişisel olmayan zamirler ve belirgin bir üslupla yazılan cins isimleri gibi nesnel kullanımlara yer verildiği görülmektedir. Diğer normatif metinlerden farklı olarak, bu kira sözleşmelerinde daha kısa cümlelerin ve az sayıda eski kelime ve yapıların yer aldığı ve temel cümle fiillerinde edilgen yapıdan ziyade etken yapının kullanıldığı görülmektedir. Yasal olarak bağlayıcı olan diğer hukuk metin türleri kıyaslandığında, bütünce içerisinde yer alan kira sözleşmelerinin metin dilbilimsel özellikleri, daha sade, hukuk benzeri bir dil kullanıldığına da işaret etmektedir. Eğitim seviyeleri, ekonomik ve kültürel durumları ve kiralama konusundaki birikimleri birbirinden farklı olan sözleşme taraflarının, hukuk benzeri bir dil kullanılmasıyla sözleşme maddelerini daha kolay anlayacakları aşikardır. Anahtar Kelimeler: özel alan çevirisi, hukuk benzeri dil, kira sözleşmeleri, hukuk metin türleri Abstract Despite the high frequency of the specific field translation, there are considerably few studies on the translation of the non-literary (non-fictional) texts. Accordingly, this study was pursued to elaborate one specific legal genre, namely lease contracts, by describing its textually-defined linguistic units within the lexical and syntactic framework. Upon analysing a limited corpus of Turkish leasing contracts (as source texts) and those of English (as source and target texts), it has been found out that like other similar legal texts, they embrace such impartial usages as the gender-neutral pronouns and conspicuously stated common nouns. Unlike the other normative texts, these lease contracts include shorter sentences and few archaic words and structures, and active voice rather than passive voice is used in the verbs of their main clauses. When contrasting with the other legally enforceable texts, these textually-defined linguistic units of the Ayşegül ANGI 2 corpus can be associated with a plain language usage; thus, it can be stated that a quasi-legal language is used in these lease contracts. Obviously, by virtue of this quasi-legal language, all the parties with different educational, economic, and cultural backgrounds as well as having different levels of experience and knowledge on leasing may comprehend the contractual terms much more easily.
Despite the high frequency of the specific field translation, there are considerably few studies on the translation of the non-literary (non-fictional) texts. Accordingly, this study was pursued to elaborate one specific legal genre, namely lease contracts, by describing its textually-defined linguistic units within the lexical and syntactic framework. Upon analysing a limited corpus of Turkish leasing contracts (as source texts) and those of English (as source and target texts), it has been found out that like other similar legal texts, they embrace such impartial usages as the gender-neutral pronouns and conspicuously stated common nouns. Unlike the other normative texts, these lease contracts include shorter sentences and few archaic words and structures, and active voice rather than passive voice is used in the verbs of their main clauses. When contrasting with the other legally enforceable texts, these textually-defined linguistic units of the corpus can be associated with a plain language usage; thus, it can be stated that a quasi-legal language is used in these lease contracts. Obviously, by virtue of this quasi-legal language, all the parties with different educational, economic, and cultural backgrounds as well as having different levels of experience and knowledge on leasing may comprehend the contractual terms much more easily.
It is often said that the EU General Data Protection Regulation (GDPR) has a much broader material and territorial scope than the EU Data Protection Directive it has recently replaced. This chapter tries to find out if (and, if so, to what extent) this assumption is correct. To this end, it analyzes, in the light of the existing case-law of the Court of Justice of the EU, the relevant provisions of the GDPR, namely Articles 2 and 3. It comes out that the GDPR has a slightly different (but not necessarily broader) material scope and a broader (but not as broad as one would expect) territorial scope than the old EU Data Protection Directive.
The European Court of Justice (ECJ) has, in its ruling of 25 July 2018 on case C-528/16, settled the question whether crops (or organisms in general) that have been produced by means of new mutagenesis techniques are subject to the obligations of European GMO rules, specifically the obligations of Directive 2001/18/EC. According to the ruling, organisms obtained by any mutagenesis technique are GMOs within the meaning of Directive 2001/18. Products of conventional techniques of mutagenesis are then exempted from the Directive, but products of new mutagenesis techniques, specifically directed mutagenesis, fall outside the scope of the exemption, because, contrary to conventional techniques of mutagenesis, the new techniques are not considered to have a ‘long safety record’.
Plant breeders have high expectations of techniques of directed mutagenesis for the targeted and fast development of new varieties of crops that, for instance, meet the requirements of sustainable agriculture. They consider the ruling of the ECJ a considerable setback, because of the problems that are experienced with placing GMO crops on the EU-market.
The Netherlands Commission on Genetic Modification (COGEM) has commissioned an investigation into the scientific and societal implications of the ruling of the ECJ. The present report is the result of this investigation. Next to exploring the implications, the goal of the report also is to provide information to policy and politics in support of decision making processes.
In the light of the analysis conducted hitherto, in my opinion, only a few unsafe human actions are deliberate and require criminal-law punishments.
The natural consequence of finding an infringement of Article 102 TFEU is to offset the harm to consumer welfare by restoring competition through effective remedies. As big data constitutes the most vital resource in data-driven markets, a dominant undertaking can exclude its rivals from accessing user data and thus deprive them of scale in markets that are characterised by network effects. Indeed, the European Commission found Google guilty of excluding its rivals in the Android licensing case by adopting this strategy. It is, however, unclear as to which remedy can most efficiently restore competition in such cases. This paper analyses the viability of mandatory data sharing as a remedy to restore competition in the affected market. The paper approaches this research question from both theoretical and practical standpoints. First, it analyses the viability of mandatory data sharing remedy from legal, economic and, technological perspective, followed by an assessment of such a remedy within the framework of the GDPR. Based on this comprehensive investigation, it concludes that mandatory data sharing is not the optimal solution to remedy loss to consumer welfare. In view of this, reliance can be placed on other behavioural and structural remedies.
The purpose of this paper is to analyse the rules of the General Data Protection Regulation on automated decision making in the age of Big Data and to explore how to ensure transparency of such decisions, in particular those taken with the help of algorithms. The GDPR, in its Article 22, prohibits automated individual decision-making, including profiling. On the first impression, it seems that this provision strongly protects individuals and potentially even hampers the future development of AI in decision making. However, it can be argued that this prohibition, containing numerous limitations and exceptions, looks like a Swiss cheese with giant holes in it. Moreover, in case of automated decisions involving personal data of the data subject, the GDPR obliges the controller to provide the data subject with 'meaningful information about the logic involved' (Articles 13 and 14). If we link this information to the rights of data subject, we can see that the information about the logic involved needs to enable him/her to express his/her point of view and to contest the automated decision. While this requirement fits well within the broader framework of GDPR's quest for a high level of transparency, it also raises several queries particularly in cases where the decision is taken with the help of algorithms: What exactly needs to be revealed to the data subject? How can an algorithm-based decision be explained? Apart from technical obstacles, we are facing also intellectual property and state secrecy obstacles to this 'algorithmic transparency'.
This article contributes to the study of the preliminary reference procedure and the literature on the decentralized enforcement of European Union (EU) law through national courts. Drawing on the ‘compliance pull’ explanation for why national courts submit preliminary references to the Court of Justice of the European Union (ECJ), it suggests that a greater need to clarify ‘the validity and interpretation’ of one act compared to another is associated with variation in Article 267 submissions. Drawing on a sample of 1,300 national court decisions on EU directives with variation in Article 267 Treaty on the Functioning of the European Union (TFEU) submissions, this article finds that disputes relating to directives leaving more room for manoeuvre in implementation (‘delegation’) and relating to more complex regulatory issues (‘information intensity’) are more likely to be referred to the ECJ for interpretation. It argues that neglecting the ‘compliance pull’ explanations has consequences for how we conceptualize ‘decentralized enforcement’.
The paper focuses on concerns and legal challenges brought on by the use of algorithms. A particular class of algorithms that augment or replace analysis and decision-making by humans, i.e. data analytics and machine learning, is under scrutiny. Taking into account Balkin’s work on “the laws of an algorithmic society”, attention is drawn to obligations of transparency, matters of due process, and accountability. This US-centric analysis on drawbacks and loopholes of current legal systems is complemented with the analysis of norms and principles of the EU data protection law, or “GDPR”. The aim is twofold. On the one hand, the intent is to shed light on some crucial differences between the US and EU law on the regulation of algorithmic operators, both public and private. Whereas, in the USA, scholars debate whether and to what extent new duties and responsibilities of algorithmic operators, e.g. information fiduciaries, have to amend the current framework of self-regulation and light government—as shown by the White House’s Office of Science and Technology Policy report from November 2016—in EU law much of the new duties and responsibilities of algorithmic operators have been passed upon them as data controllers. Whether such approaches will successfully tackle the normative challenges of the algorithmic society is, on the other hand, an open issue that will likely represent the main topic of debate over the next years. Disagreement may concern: (i) the terms framing the legal question in e.g. statistical purposes of the data processing; (ii) how such terms are related to each other in legal reasoning (e.g. a right to explanation as valid law in the EU); and (iii) legal hard cases that will increasingly have to do with the principles that are at stake also but not only in data protection (e.g. informational self-determination). By entrusting such legal hard cases to algorithms, or some sort of smart artificial agent, humans still bear full responsibility for the judgment of what is socially, ethically, and legally “plain” and “hard” in social affairs. The balance between delegation of decisions to algorithms and non-delegation will be the leitmotiv of the algorithmic society. Since the devil is in the detail, the current paper is devoted to some of them.
The ubiquity of the Internet has given rise to new hybrid types of online users such as hybrid consumers and prosumers. This paper looks at some of the new legal challenges raised by the exciting opportunities for active participation and co-creation by such users in electronic commerce transactions. The method employed, in homage to Jon Bing, is to look back in time to understand how users in sales transactions have been progressively regarded—alternatively exposed to risk, alternatively protected—and how contract law has adapted to such new developments. The paper shows that, even following the emergence of the hybrid consumer and the prosumer, there are strong arguments for the consumer’s continued protection, not least because of the increase in technological sophistication and complexity. The paper seeks to test somewhat the limits where consumer protection ends and where general contract law—with its attendant doctrines like caveat emptor—would apply again with respect to the aforementioned new users.
The doctrine of legitimate expectation was authoritatively accepted as part of South African administrative law in the landmark case of Administrator, Transvaal v Traub in 1989. In that case Chief Justice Corbett extended the scope of application of the rules of natural justice, specifically the audi principle, beyond the traditional “liberty, property and existing rights” formula to cases where something less than an existing right, a legitimate expectation, required a fair procedure to be followed. This acceptance followed the trend in other Commonwealth jurisdictions to extend the application of the rules of natural justice and hence afford greater procedural protection to individuals affected by administrative decisions. Although Chief Justice Corbett expressly stated that the content of the expectation may be substantive or procedural in nature, the protection of that expectation, if found to be legitimate, was exclusively procedural. Since the Traub decision, the doctrine of legitimate expectation has been deeply entrenched in South African administrative law to extend the scope of procedural rights afforded individuals affected by administrative action. It is now an established principle of South African administrative law that a person, who has a legitimate expectation, flowing from an express promise by an administrator or a regular administrative practice, has a right to be heard before administrative action affecting that expectation is taken. The doctrine, has however, by and large, remained one that provides procedural protection in South Africa. In a number of recent decisions by South African courts, ranging from the High Court to the Supreme Court of Appeal and the Constitutional Court, there have been increasing calls for the application of legitimate expectations beyond procedural claims.
of the term 'supranational' to describe the first pillar, see generally EU Information Centre of the Riksdag, Fact Sheet 3: Laws and Decisions in the EU 2
For an illustration of the use of the term 'intergovernmental' to describe the second and
third, and of the term 'supranational' to describe the first pillar, see generally EU Information
Centre of the Riksdag, Fact Sheet 3: Laws and Decisions in the EU 2, Jan. 2008, http://www.euupplysningen.se/upload/dokument/Trycksaker/eng_faktablad_3_080206_webb.pdf).
104. Interview with Julian Schutte, Dir. of Directorate of Justice and Internal Affairs, Leg.
Serv., Gen. Secretariat, Council of the EU in Brussels, Belg. (Apr. 10, 2008).
105. Id.
106. Interview with a jurist of Directorate of External Relations, Leg. Serv., Gen. Secretariat,
Council of the EU in Brussels, Belg. (Apr. 10, 2008).
107. Id.