Karmen Lutman’s research while affiliated with University of Ljubljana and other places

The protection of creditors’ human rights and procedural guarantees is important and necessary in both enforcement and insolvency procedures. They are guaranteed in national constitutions and international treaties, in particular the European Convention of Human Rights and Fundamental Freedoms. The purpose of this paper is to compare the position of the creditor in both types of procedures from a human rights perspective. In particular, it focuses on the procedural right to a fair trial (Article 6) and the substantive right to peaceful enjoyment of one’s possessions (Article 1 of Protocol No. 1) as understood by the European Court of Human Rights. The article critically analyses its relevant case law, which, by interpreting both rights, defines the limits of national rules on enforcement and insolvency procedures.

While European contract law is traditionally based on a monetary economy, the recently adopted Digital Content and Services Directive has introduced certain novelties in this regard. It establishes a set of rules whereby a consumer obtains digital goods and services in exchange for their personal data. While this concept brought some new challenges throughout the contract lifecycle, this paper focuses on the restitutionary consequences of the terminating such contracts. Where money serves as the counter-performance, the Directive’s restitution rules are relatively clear and align closely with established EU private law. However, the situation is markedly different when restitution involves data. By examining the evolving trends in European private law, this paper seeks to conceptualise the restitution rules introduced by the Digital Content and Services Directive and to provide guidelines for their application and interpretation in practice.

Online shopping across the EU is one of the most tangible benefits of the single market for the average consumer. Since most EU consumer protection rules are contained in Directives, one needs to determine which Member State's transposition of these rules is to be applied to cross-border B2C transactions. Rome I and Rome II Regulations lay down criteria for determining the applicable law in civil and commercial relations. But no conflict-of-laws rules exist in connection with consumer protection rules laid down as mandatory rules of public law and enforced by national administrative authorities. The paper argues that cross-border B2C cases of e-commerce within the EU should be governed by the law of the Member State whose consumers the trader is targeting through online commercial activities, regardless of whether the national consumer protection provisions qualify as rules of private or of public law. The competence rules should ensure that national administrative authorities always exercise their powers and impose sanctions under their own Member State's consumer protection law. The Consumer Protection Cooperation Regulation establishes the framework for cooperation between the national authorities competent for the enforcement of consumer rules. Their mutual assistance is essential due to the fragmented system of Member States' consumer rules and mechanisms for their enforcement. Yet, to facilitate the compliance with and the enforcement of consumer rules in pan-European e-commerce, a more unified solution would be welcome.

Air pollution severely damages human health and causes premature deaths. In order to fight against it, the European Commission initiated a revision of the Ambient Air Quality Directives aiming to improve the quality of outdoor air and to reach the Zero Pollution goal. However, the CJEU is already facing requests for a preliminary ruling dealing with state liability for health damage caused by excessive air pollution. The old common law maxim <The King does no wrong= according to which a citizen may not seek redress from the government for wrongs committedmby the latter has long been surpassed. The institution of state liability is thus a widely recognised concept. The paper analyses the main features of state liability for health damage caused by polluted air and its boundaries. It focuses on the recent development of EU law in this regard and the established case law of the ECtHR. Since the right to a healthy living environment is recognised by several constitutions across the world, including Slovenia, the paper deals also with the Slovenian case law on state liability for damages caused by air and noise pollution from road and rail transport.

The increasingly widespread use of AI tools in various stages of a contract’s life cycle has brought many challenges, including human rights protection. Discriminatory practices have been detected in many areas of private law where algorithms are used in the selection or decision-making process (e.g. in the context of loan financing, marketing, employment, and insurance). By looking into the EU legal framework, this chapter aims to analyse the selected instances of discriminatory practices caused by AI systems that occur in horizontal relationships (i.e. relationships between private individuals). More precisely, it focuses on two major fields of private law where the EU offers protection against discrimination, that is, employment matters and access to and the supply of goods and services. Although EU Member States may provide a higher level of protection in their national laws, this analysis takes a supranational approach and focuses exclusively on the protection guaranteed by EU law.

In Slovenian law, the compensation scheme for medical practice is primarily organized within the court system. Its main function is the recovery of damage (indemnity), while it has also a preventive character. Slovenian courts are rather reluctant to award damages in an amount exceeding the “objective” amount of damage (punitive damages). There are several problematic aspects of classical damages claims in medical liability cases, such as the costs and the length of proceedings, the negative effect of a claim on the doctor-patient relationship, a “defensive medicine” resulting of damages claims and being focused on a mistake of the doctor rather than on promotion of safety in the healthcare system. The patients have also difficulties in proving the breach of professional standards due to circumstances such as the lack of expert knowledge or difficult access to evidence. Therefore, alternatives to court proceedings are very welcome, although not very often used in practice. At its earliest stage, a dispute can be resolved in a procedure before a competent person of the health service provider. If no agreement is reached, the patient can start proceedings before the Commission of the Republic of Slovenia for the Protection of Patient Rights. Some further alternative dispute resolution methods are mediation and arbitration.

The unjustified enrichment law creates an independent source of obligations, which for historic reasons often overlaps with other fields of private law-the law of delict, property law, contract law, and negotiorum gestio. This raises many issues concerning the relationship between enrichment claims and other private law claims. The paper examines the issue whether the enrichment claim has a subsidiary role and is excluded in the event that the creditor disposes of a more specific claim based on contract, tort or ownership. In doing so it analyses the principle of subsidiarity and examines the role of unjustified enrichment in the system of private law. While the discussion mainly focuses on the Slovenian law of unjustified enrichment, it takes into consideration the approaches adopted in selected foreign jurisdictions.