THE RIGHT TO TERMINATE NON-COMPETITION AGREEMENTS DURING THE STATE OF EPIDEMIC EMERGENCY OR STATE OF EPIDEMIC, ANNOUNCED ON GROUNDS OF COVID-19. COMMENTS DE LEGE LATA AND DE LEGE FERENDA

In Art. 15 gf of the Act of 2 March 2020 on special solutions relating to the prevention, counteraction and combatting COVID-19, other infectious diseases and the resulting crisis situations, the legislator introduced a right to terminate non-competition agreements. The purpose of this article is to examine if that right does not interfere excessively with the interests of employees, mandatories and contractors, and if it does not disturb the balance between the parties to non-competition agreements. The research problem is analysed on several levels. The constitutional approach is adopted (in terms of compatibility with: the principle of a democratic state ruled by law; principle of proportionality; principle of equality before the law). Also, interpretation of the examined provisions is presented and complexities it may trigger in practice. Conclusions of the performed analysis are a basis for the presented amendment proposals intended to mitigate the negative consequences of the examined provisions.

Saving EU digital constitutionalism through the proportionality principle and a transatlantic digital accord

The article explains the importance of the emerging movement for EU digital constitutionalism (EUDC), which reflects a Union-wide effort to address through regulation the challenges posed by digitalisation. The article outlines the core legislative acts that have been introduced by proponents of EUDC. It describes why EUDC is important for fundamental rights protection and European foreign policy, and how the ‘Brussels effect’ extends the impact of EUDC. It enquires into whether EUDC is sustainable, taking into consideration waning EU global influence and the need for economic growth. The EU needs to strike a balance between fundamental rights protection and economic growth. The proportionality principle is the right tool for this. A proportional approach should be followed in establishing a transatlantic digital accord with the US—an agreement on the basic principles governing the digital space. A more proportional approach will pave the way to such an agreement—giving EUDC a global scope.

Humanizing siege warfare: Applying the principle of proportionality to sieges

Siege warfare and its devastating humanitarian consequences have been one of the defining features of contemporary armed conflicts. While the most apparent restriction of siege warfare appears to be provided by the prohibition against starvation of the civilian population as a method of warfare, the prevailing restrictive interpretation of this prohibition has left civilians remaining in a besieged area unprotected from the hardships they endure. This article demonstrates that shifting the focus from the prohibition against starvation to the rules regulating humanitarian relief operations does not seem helpful due to the ambiguities regarding the requirement of consent and the right of control of the besieging party. In remedying this protection gap, this article examines whether and how the principle of proportionality applies in the context of a siege. After analyzing whether the encirclement and isolation aspect of a siege can be considered an attack in the sense of Article 49(1) of Additional Protocol I (AP I), to which the proportionality principle applies, the article investigates how this principle operates in the context of a siege. It will be demonstrated that Article 57(2)(b) of AP I requires that the proportionality of a siege must be continuously monitored.

COVID-19 “Green Pass”: a Lesson on the Proportionality Principle from Galicia

Coronavirus Disease 2019 (COVID-19) is the most dramatic pandemic of the new millennium, and extraordinary measures concerning with health, law and policy are required around the world. One of these is without doubts the “green pass”, officially known in the European Union (EU) as EU Digital COVID Certificate (EUDCC). Initially conceived as a tool for overcoming the lockdown restrictions, it has unexpectedly turned into a means of discrimination between pass holders and non-holders, thus increasing social tension at the expense of solidarity and brotherhood. Here, we analyze in depth the dark sides of the “green pass” in the light of the European and international legislation and of the ongoing pandemic scenario.

Importance (a Mechanism) of Constitutionally Stipulated Basic Human Rights and Personal Data Protection in Enforcement Proceeding Process

In a modern juridical state, the presence of a flexible and effective executive system has special importance, as not only the juridical act’s smooth functioning but also the country’s economic development and population’s social state is in direct proportion to the effectiveness of the mentioned system. Executive law term is often defined in doctrine as a law of constraint, power, as “enforcement” itself means using force and involvement in a person's rights (by executive party and/or 3rd party) such as ownership, freedom, inviolability of personal life, etc. Therefore, particular significance is given to protection of party interests and their basic rights during executive proceedings to avoid unallowable and disproportional involvement in human rights. Precisely the mentioned matters condition the topicality of the article. Besides this, in a world full of challenges and threats, it is most important to defend personal data in any process to avoid its usage for unnecessary aims. In the enforcement process, out of proceeding means personal data is certainly processed. As in any law field, in the executive law proportionality principle has the vastest load, so protection of this principle in the mentioned process is significant. In the article, faults connected to human rights protection mechanisms in doctrine and enforcement process, and authorial ways of resolving them are presented.

Means of Review

This chapter examines appeals and other types of recourse, including extraordinary motion for review. The ability to appeal from or otherwise challenge judgments is a well-established feature amongst procedural systems, albeit it is, in principle, not recognised by the European Court of Human Rights as falling within the ambit of the right to fair trial under Article 6 of the European Convention on Human Rights. The present European Rules of Civil Procedure adopt the approach that there is a right to appeal, albeit one that may only be exercised with the permission of the appellate court according to special provisions with respect to access and scope. In this way the appellate process, and the right to appeal, provides an effective balance between the principles of finality in litigation, accuracy in decision-making, expedition, and proportionality. Principle 27 of the ALI/UNIDROIT Principles addresses the necessity of keeping the right balance between diverging aspects of the rule of law as follows: ‘(2) The scope of appellate review should ordinarily be limited to claims and defenses addressed in first-instance proceeding. (3) The appellate court may in the interest of justice consider new facts and evidence’.

Applying the Proportionality Principle to COVID-19 Certificates

With the SARS-CoV-2 pandemic entering its second year, public and private actors alike grow eager to achieve some semblance of normality. In this context, the idea of “vaccination passports” or “immunity certificates” as a means of resuming social and economic activity has been gaining momentum all around the world. This article aims to provide a legal analysis of this initiative through the lens of the proportionality principle. A proportionality test is conducted in order to determine whether the degree of infringement of the human rights implicated is balanced by the potential of a certification system to mitigate the risks of the virus. The results from this analysis show that the targeted aims can be achieved through already existing measures with a lesser impact on civil and fundamental human rights. Moreover, in a context of uncertainty around the immunopathology of COVID-19, the introduction of these certificates presents ethical and scientific challenges, which lead us to believe that this measure is unlikely to play a central role in stopping the spread of the disease, and it could set the pace for a dangerous precedent, allowing for extensive discrimination and exacerbating already existing inequalities and disparities.

Basel IV: The Challenge of II Pillar for Risk Management Function

The book is based on Supervisory Review and Evaluation Process (SREP) is conducted annually by the Supervisory Authorities to verify that each bank (Significant/Less Significant) has implemented strategies, processes, capital, and liquidity assessment process appropriate to the business model and overall planning activity and risk governance system. Analysis of the aims, the features, and the different phases of SREP and the proportionality principles on which the Single Rulebook is based. Some reflections about proportionality principle of Single Rule Book and new skills required to Risk Management function. The research emphasised the need for a holistic approach also in Risk Management and the bank’s business activity.

The Proportionality Principle in the Jurisprudence of the Russian Constitutional Court

This paper addresses the boundaries on restrictions of human rights imposed by the proportionality principle, examines the elements of the structure of this principle, and attempts to present the meaning of its elements consistently in terms of the potential for the protection of fundamental rights that are subject to restrictions. The main criticisms of some proportionality tests are considered, as well as ways to minimize the risks associated with the use of proportionality. These theoretical considerations are placed in the context of the jurisprudence of the Russian Constitutional Court, to demonstrate that the Court, instead of consistently applying proportionality tests, often draws generalized conclusions regarding the proportionality (or disproportionality) of restrictions and therefore tends to heighten some of the risks of applying the principle. One can observe some positive changes in the application of the principle, and in further requests for this. Conclusions are formulated concerning the improvement of the Court’s activities in terms of a more consistent and structured implementation of the principle of proportionality.