Juridica International

Dear reader,

Aleksei Kelli — Thu, 24 Oct 2024 17:27:27 EEST

Back in 1996, the foreword to the first issue of Juridica International conceptualised JI as a special edition of Juridica, the Estonian-language law journal published by the Faculty of Law of the University of Tartu. The purpose of the international edition was articulated as ‘providing an overview of the Estonian legal system and reporting on developments in legal reform’.

The concept and aim of Juridica International have evolved considerably since. Over the years, JI has developed into a well-established international law journal. Many globally renowned scholars and jurists have published pieces in Juridica International. This forum continues to provide insight into developments cultivated in Estonia’s legal system, thereby maintaining its de facto position as one of the most reliable sources of information on the Estonian legal order for an international audience. However, most of the works published in today’s Juridica International are analytical articles that clearly meet international research standards.

Juridica International’s core aspects have remained unchanged over time. Faculty of Law members still are expected to publish quality papers in Juridica International. Doctoral students and other early-career researchers find publication in this journal to be both a key ambition and a worthy challenge on their path as scholars. While Juridica International is open to submissions from young researchers, it offers them no concessions; in fact, the peer-review process involved is often more stringent than that applied to their senior colleagues internationally. Furthermore, the noteworthy standing of the Faculty of Law’s doctoral students – who are typically leading legal practitioners in their respective fields – renders their contributions particularly compelling and inspiring. For their senior colleagues with the faculty, publishing research in Juridica International is a matter of professional pride. Consequently, one can justifiably conclude that JI has become an essential part of the institutional identity. In other words, it serves as a conditio sine qua non for the University of Tartu’s Faculty of Law.

The volume you are now perusing continues to follow the journal’s solidly established direction. The articles range from legal analysis and case studies to interdisciplinary empirical research, with topics encompassing both traditional legal matters and various emerging challenges posed by technological advances. Some cover both. For instance, the pages of this issue provide an overview of empirical data on today’s handling of education-related exceptions to copyright protections. Additionally, readers will find two articles focusing directly on intellectual property, specifically the patent system and the author’s right to integrity in public contracts. Constitutional and human-rights issues are explored in connection with constitutions’ preambles and in discussion of the global garment industry. Several of the articles address highly pressing contemporary challenges, among them data-driven public administration and electronic signatures. Another prominent facet is EU law, particularly with regard to criminal liability and competition. In addition, the papers grapple with the complexities of soft law in the financial sector and public procurement. Drawing together several threads encompassed by this issue’s discussion, one article declares in its title that there are more questions than answers.

That is a significant observation indeed. Often, identifying the problems, delineating them properly, and asking the right questions proves more difficult than offering technically correct answers. As Voltaire suggested, we should judge people by their questions rather than their answers. Juridica International No. 33 certainly raises many important and thought-provoking questions.

An Empirical View of the Extent of Exercising the Education Exception to Copyright in Cultural Heritage Institutions

Aleksei Kelli, Margus Pedaste, Äli Leijen — Thu, 24 Oct 2024 17:27:27 EEST

The article presents findings from a study funded by the Estonian Ministry of Justice titled ‘Extent of Use of Educational Exceptions of Copyright in Cultural Heritage Institutions’. The impetus for this work came from the fact that rights-holders, who are not compensated for the use of copyrighted works and material covered by related rights under the educational exception, desire compensation for such use yet data pertaining to the practices of educators conducting education programmes in cultural heritage institutions are scarce. The study’s results are important for the holders of the rights but also for policymakers and for those providing professional-development courses to the educators such that their practices could be fully aligned with the education exception to copyright. A 105-respondent questionnaire – adapted from an instrument used in a similar study that focused on educators in pre-school education, basic schools, upper secondary schools, vocational-education institutions, institutions for professional higher education, universities, ‘hobby schools’, and continuing-education institutions – among educators who are not copyright experts helped answer the question ‘What is the extent of exercising the education exception to copyright in cultural heritage institutions in Estonia?’. The paper explains the quantitative results further in light of focus-group interviews with seven representatives of cultural heritage institutions, of several types. Also, the results of this study are compared with the findings from the earlier one. The results, which shed light on copyright awareness, the form and extent of copying, etc. in relation to literary and reference works, photographs, musical works, and audiovisual works, indicate that Estonian cultural heritage institutions’ reliance on the education exception is in accordance with copyright law and, therefore, significant changes in related policy are unnecessary. However, responses to the survey and interview questions revealed aspects that could be addressed in designing guidelines and professional-development activities for educators in cultural heritage institutions.

A Comparative Approach to Amendments to Constitutional Preambles: Questions of Amendability, Substance, and Reasons

Kristel Urke — Thu, 24 Oct 2024 17:27:27 EEST

Preambles of constitutions tend to express general principles, overarching values, and aspirational ideas that underpin the whole constitution. Whether they are deemed legally binding or not, their special character seems to suggest that constitutional preambles should be difficult to amend and that amendment of them should occur only rarely. Attention seldom extends beyond this, however: there is a distinct lack of comprehensive comparative analysis of amendments to constitutional preambles, with these preambles remaining the least researched part of constitutions. The paper represents an effort to fill this void by presenting a comparative empirical analysis of amendments to constitutional preambles around the world. After providing an overview of what sets constitutional preambles apart from the main body of constitutions and analysing their overall amendability, it reports specific results from empirical research into amendments to constitutional preambles, which identified 55 constitutional events occurring since 1949 that have resulted in some change in a constitutional preamble. The paper offers a typology of those amendments, from 42 countries, which involves 20 general characteristic elements of preambles, of which amendments related to political movements, ideology, or ideologues / political leaders were identified as most frequent. Lastly, it directs focus to the socio-political and other factors that lead to amendments in constitutional preambles.

Protection of Human Rights in the Global Garment Industry

Stina-Maria Lusti — Thu, 24 Oct 2024 17:27:27 EEST

Considerable expansion of the global garment industry, which in recent decades has become one of the largest employment sectors worldwide, has intensified scrutiny of states’ and businesses’ responsibilities, especially as production increasingly shifts to countries with less strict labour regulations. Analysis of the landscape reveals that, significant progress notwithstanding, world dialogue on business responsibilities has still not arrived at a solution. The complex network of stakeholders in the garment industry brings particular challenges to enforcing human-rights protection in this domain. The article explores the intersection of business practices and human rights within the garment sector, focusing on Bangladesh, India, and Pakistan, three countries which play a pivotal role in global fashion exports. Examining the legal obligations of state and non-state actors under various UN instruments by analysing the Universal Periodic Review mechanism and the concluding observations of the Committee on Economic, Social and Cultural Rights, it identifies critical issues in protecting human rights in these countries and briefly also reviews recent advances in the EU in the realm of business and human rights. The paper presents evidence that the growing influence of non-state actors calls for extending the obligations from traditional approaches’, which have focused on state responsibilities. Among the solutions proposed are reforming wage systems and imposing direct human-rights requirements on corporations, supported by more vigorous enforcement.

Data-driven Public Administration and the GDPR: Seeing the Court of Justice's Judgement in Case C-175/20 in a Broader Context

Monika Mikiver, Nele Siitam — Thu, 24 Oct 2024 17:27:27 EEST

Increasingly, public authorities are looking to get the most from their records, with the aid of new technologies that allow them to extract the desired features or patterns from large volumes of data. This could position these authorities well for efficiency and to identify offenders – and, in some cases, future offenders. At the same time, the General Data Protection Regulation lays down the principle of purpose limitation and requires both the European Union and its member states to ensure that the rules by which personal data get processed are foreseeable for the individuals affected. In this context, a distinction must be made between two steps to processing, each with its own issues – the request for or direct access to personal data and mass analysis of the data obtained. The European Court of Justice dealt with several of these after the Latvian tax authority requested ‘big data’ from a private company. The article examines the guidance that the Court issued in this case (C-175/20) to both national legislators and administrations with regard to the distinct stages of mass processing of data, and it considers which questions remain unanswered.

Time of Signing: Legal Requirements and Technical Options for Hand-written and Electronic Signatures

Laura Kask — Thu, 24 Oct 2024 17:27:27 EEST

The article examines the legal and technical aspects of determining the time of signing for both hand-written and electronic signatures. Of particular relevance in light of the widespread utilisation of electronic signatures in Estonia, involving both government-issued and private-sector e-signatures, it explores how signatures are linked to the time of transactions and whether the time of signing affects the validity of signatures under Estonian and European Union law. The paper discusses the general principle of freedom of form in transactions, highlighting the formal requirements imposed by law for certain transactions and wills, with special focus on comparing the traditional analogue world with the digital environment. Additionally, a review of recent amendments to the eIDAS Regulation examines their impact on the union’s electronic-signature ecosystem. Discussion addresses technical challenges also, with specific regard to linking a signature to the time of the transaction and the legal implications of timestamping in the domain of electronic signatures. For broader context, the insight is informed by comparison with Norway, another member of the European Economic Area. The research reported upon contributes to awareness of the importance of understanding both the legislative framework and technical practices involved in identifying the time of signing for ensuring the legal validity and reliability of electronic signatures.

Preserving Secrecy within the Patent System to Safeguard Western Countries’ Technological Innovation

Lisette Põld — Thu, 24 Oct 2024 17:27:27 EEST

Russia’s aggression in Ukraine has brought patent-policy debates into sharp focus with regard to secrecy. Russian violations of international and multilateral agreements on intellectual property have drawn significant attention and highlighted potential risks pertaining to safeguarding of technological innovation by Western countries, not least European Union member states. Against this backdrop, the article reflects on the secret-invention regulations in place and opportunities to keep an invention secret under European patent law. While the concept of a secret invention may appear contradictory to the patent system’s primary aim – disclosure – secret patents are nothing new in the history of patenting. The paper presents a recommendation to expand the scope of secrecy in current patent law, thereby allowing Western countries to implement sufficient counter-measures in response to adversaries’ flouting of international intellectual-property law. The article directs particular attention to expansion of this secrecy’s scope to the technical description of a patent application involving dual-use inventions.

The Effect of European Union Law on the Criminal and Quasi-Criminal Liability of Legal Persons in Estonia

Priit Pikamäe, Markus Kärner — Thu, 24 Oct 2024 17:27:27 EEST

The punitive competence of the European Union encompasses both criminal law and, in the form of administrative sanctions, quasi-criminal law. Now undergoing vast changes amid rapid development, the latter field of Union legislation is anything but systematic. The sporadic evolution of EU punitive law recently led to the European Court of Justice judgement in the case Deutsche Wohnen, wherein the substantive provisions for liability of legal persons in Germany were found to be in contradiction with European Union law. The article gives an overview of the European Union’s legislation on criminal and quasi-criminal liability of legal persons, presents reflections on the Estonian experience, and articulates conclusions from the Deutsche Wohnen case.

The Triumph of Soft Law in the Financial Sector: Can Non-binding Law Have Binding Domestic Legal Effects?

Siim Tammer — Thu, 24 Oct 2024 17:27:27 EEST

Examining the seemingly simple question of whether guidelines in the financial sector are mandatory reveals a highly complex landscape for supervision of the financial sector across the European Union, where international and national financial law enter collision and the participants come to the table with differing mandates/expectations. The article addresses the results, with focus on banking regulation, wherein the European Banking Authority and, in Estonia, the Financial Supervision and Resolution Authority are among the main guideline-issuers. The balance achieved is critical because the fines that the supervisory and resolution authorities can impose on banks for non-compliance with mandatory rules can reach 10% of these entities’ total annual net turnover from the preceding business year. An effort to consider all of the relevant factors for understanding which side of the mandatory/advisory line the guidelines stand on, the article constitutes an attempt to initiate vital discussion of the environment created in the financial sector for soft law (i.e., guidelines), which may under certain circumstances take on a larger role than that soft law’s legal nature allows.

The Interplay between EU Competition Law and Professional Sports: Recent Developments and Their Potential Impact on Small States

Natalia Mäekivi — Thu, 24 Oct 2024 17:27:27 EEST

In its December 2023 judgements delivered in the European Superleague Company and International Skating Union v Commission cases, the Court of Justice of the European Union concluded that the rules established by such sports governing bodies as FIFA, UEFA, and the International Skating Union with regard to prior authorisation of alternative competitions falling outside their jurisdiction were restrictive ‘by object’ under the union’s competition law, thus forming a pathway to creating such alternative competitions in one respect. Analysing these rulings’ potential impact on professional sports, the article discusses possible harmful effects that certain alternative competitions could have on sports in small states in particular. The author advocates taking the potential for such effects into account when national courts direct their attention to further assessing the governing bodies’ pre-authorisation rules and their specific refusals to authorise certain alternative competitions.

Alternatives to Public Procurement: Free Choice in Marketised Social Services – Legal Challenges Illustrated via Long-Term Care

Mari-Liis Viirsalu — Thu, 24 Oct 2024 17:27:27 EEST

In light of Europe’s ageing population, the article explores the legal dimensions to freedom of choice within marketised social services, especially in the context of long-term care. It offers critical analysis of the implementation of the free-choice model in Estonia within the framework of European Union public-procurement law and Estonian law on administrative co-operation. The landscape has been a legal ‘no man’s land’ somewhat: this demand-based model with an unlimited number of providers falls outside the traditional public-procurement framework, and how the general principles for transfer of public tasks to the private sector might apply to a free-choice model, which does not entail explicit ‘transfer’, has remained unclear. Although the Estonian care reform of 2023 established a funding model, it did not resolve the legal uncertainties surrounding public–private co-operation and user rights. As care homes in Estonia are largely run by the private sector, vague legal regulation and weak state supervision pose a threat to access, the care services’ quality, and their economic efficiency. Drawing on international comparisons with the Nordic countries, the article warns against uncritical adoption of market-based models, stressing the need to balance the roles of public authorities and private providers. The paper underscores the crucial role of legal professionals in ensuring that public–private co-operation for social services upholds both individuals’ fundamental rights and public interests.

Life after Irgita (C-285/18) – More Questions Than Answers

Pilleriin Peedosk — Thu, 24 Oct 2024 17:27:27 EEST

The principles governing public procurement – equal treatment, non-discrimination, transparency, proportionality, etc. – serve upholding the fair use of public resources and ensuring compliance with EU‑level law. Sometimes, the open market is not the most efficient option, particularly when the public sector possesses the necessary resources. To address this, the EU’s procurement directives permit deviations from established public procurement rules for in-house transactions or horizontal co‑operation within the public sector. These involve determining whether to utilise internal resources or external ones, however, recent European Court of Justice cases have revealed uncertainties with regard to the process of this ‘make or buy?’ decision. While Member States retain freedom in evaluating how to meet their needs, that freedom is not unlimited and must be balanced with adherence to general principles of EU law. The article addresses the doubts that persist notwithstanding the Court’s analysis, most notably in Irgita (C-285/18). In light of a clear need for clarity related to the addressees of the key rule, its applicability, and the impact of general principles of EU law on the make-or-buy decision, the discussion tackles these matters as pressing questions.

The Author’s Right of Integrity in Public Contracts in Estonia Based on Architectural Work

Gerli Helene Gritsenko — Thu, 24 Oct 2024 17:27:27 EEST

The paper presents analysis of whether an author’s moral rights are transferable or licensable in public contracts. At present, the European Union lacks a unified approach to regulating intellectual-property rights in public procurement: its public-procurement directives leave open the option of assigning these rights to a particular contracting entity and do not set minimal or default conditions for handling them in case the public contract does not specify intellectual-property rights’ allocation. The paper delves into the question of whether moral rights are transferable/licensable and of how moral rights should be regulated in public contracts in Estonia through the lens of analysis based on legal literature. Specific attention is given to case law on moral rights in Germany, France, and Spain, in aims finding a mechanism for moral rights’ regulation that is suitable for the Estonian setting. These first steps of examination reveal that the essence of moral rights precludes them being transferable since moral rights are bound to the personality of the author. Initial analysis shows also that moral rights in Estonia are only partly licensable, with only those moral rights that overlap the author’s economic rights proving licensable, while the rights connected to the author’s personality are not subject to licensing. For these reasons, courts need to weigh how authors might exercise their moral rights such that any transfer of their those rights cannot enable authors to interfere with the exercise of the economic rights. This entails limiting the exercise of moral rights, a matter that merits deeper examination.

38th Estonian Lawyers’ Days – Rule of Law and Security

Thu, 24 Oct 2024 17:27:27 EEST