Papers by Dorota Leczykiewicz
European Law Journal, 2008
The article considers the reasons why the European Court of Justice (ECJ) judges need legal conce... more The article considers the reasons why the European Court of Justice (ECJ) judges need legal concepts when they pronounce their judgments. It points out that the ECJ as a law-interpreting and an ipso facto law-making court needs legal concepts to communicate results of its interpretative and law-making enterprise. The article also shows how in the context of Article 234 EC preliminary ruling procedure legal concepts become useful tools of portraying ECJ judgments as mere products of interpretation and not as the results of subsuming the facts of the case into a legal provision. It is by means of application of legal concepts, that the ECJ judges are able to justify that they are not overstepping the mandate they have been entrusted with. In the same time the use of legal concepts enables them to engage in dialogue with national judges, who seek guidance as to the content of EC law rules, and to maintain a strong doctrine of precedent. Most importantly, however, the use of concepts promotes coherence which, the article maintains, is the primary source of Community law's authority, and thus constitutes the foundational technique of persuading the relevant audience that Community law is indeed a legal system.
French Civil Liability in Comparative Perspective, 2019
The article discusses the provisions of the Projet de réforme du droit de la responsabilité civil... more The article discusses the provisions of the Projet de réforme du droit de la responsabilité civile relating to harm and its compensation in the light of the Projet’s stated objectives of increasing protection to victims of personal injury and of improving predictability of the civil liability law. The article considers two main questions: how recovery for different types of harm/losses is to be controlled under the new regime and how successful the proposed provisions are in protecting victims of personal injury against indemnity entitlements of third party payers. In the context of these questions, the article investigates two distinctions proposed by the Projet; between dommage and préjudice, and between préjudices patrimoniaux and extrapatrimoniaux. The article concludes by assessing the proposed solutions relating to the calculation of damages and their impact on the scope of discretion of courts of different levels.
European Review of Contract Law, 2020
The case note considers the judgment in Bauer, a preliminary reference case decided by the Court ... more The case note considers the judgment in Bauer, a preliminary reference case decided by the Court of Justice of the EU, which concerned the question of the effect of the EU Charter of Fundamental Rights in horizontal situations. It investigates whether the Bauer judgment unequivocally transformed the EU Charter into an independent source of private parties’ duties, and whether it is clear which specific Charter provisions could impose duties on private parties. In doing so, the case note evaluates the reasoning of the EU Court and locates the judgment within in the longer strand of EU case law concerning the question of horizontal effect of EU fundamental rights and EU norms more generally.
General Principles of EU Law and the EU Digital Order, edited by Sybe de Vries and Ulf Bernitz, 2020
Since the Charter of Fundamental Rights was made formally binding, it is not clear what continued... more Since the Charter of Fundamental Rights was made formally binding, it is not clear what continued use the category of ‘general principles’ should have in EU law. The Charter introduced a whole range of new standards against which national laws and practices can be assessed. The practice of the Court of Justice of the EU shows that more rights can be introduced as ‘interpretations’ of particular Charter provisions or merely by reference to Charter Explanations. Thus, it would thus seem that there is now limited role for principles in EU fundamental rights law. But we should not be deceived by the less frequent use of the concept of ‘general principles’ in the CJEU judgments. By no account does it mean that judicial activism has stopped or that the masters of the Treaties or the EU legislator have necessarily gained more control over the structure of EU fundamental rights law.
In this chapter I consider the ways in which the Court of Justice of the EU is developing EU fundamental rights law in the Digital Era. I start by discussing the transactional and non-transactional protection which EU (private) law offers to consumers of digital products and users of digital services. I then move on to consider EU legislation protecting the fundamental rights of individuals in the Digital Market. I discuss the ways in which EU fundamental rights interact with private law-based relationships between consumers and users, on the one hand, and online traders and providers of digital services, on the other, given the ways in which EU fundamental rights have been interacting with national private laws and contracts so far. I then move on to investigate the instances in which the Court of Justice of the EU is developing an overlay of EU fundamental rights law, adding, in different ways, to the legislative content of EU fundamental rights law in the digital context. This overlay can be presented as containing additional ‘principles’ of EU fundamental rights law, which could even be described as ‘general principles’ in the light of the fact that they often themselves express fundamental rights, can be balanced against Charter rights or prevent more expansive interpretation of EU legislation protecting privacy and personal information.
European Law Review, 2013
The article examines the use of the Charter of Fundamental Rights in the so-called “horizontal” c... more The article examines the use of the Charter of Fundamental Rights in the so-called “horizontal” cases. For this purpose it investigates three questions: first, the formal status of the Charter in horizontal situations; secondly, the problems which arise when open-textured provisions guaranteeing fundamental rights are applied horizontally; and thirdly, the different ways in which restrictions could be imposed on the horizontal use of the Charter. It argues that the question of the appropriate scope of horizontal application of the Charter goes beyond the technical subtleties of distinguishing between the Charter and the “general principles” of fundamental rights, or between their “direct” and “indirect” effect. Starting from the assumption that constitutionalisation of contract law should have limits, the article argues for a substantive doctrine to regulate the reach of the Charter in horizontal cases. The article considers the possibility of reconciling a traditional private law perspective, focused on protection of contractual freedom and efficiency, with the concern for ensuring efficacy of fundamental rights in situations where substantive freedom and equality are in need of protection.
Common Market Law Review, 2019
This article discusses the proposition that EU law contains a "general principle" laying down a p... more This article discusses the proposition that EU law contains a "general principle" laying down a prohibition of abusive practices of various kinds, which does not have to be implemented by national law before the prohibition can be relied on against a private party. This principle was first introduced in Cussens v. Brosman, and recently confirmed by the Grand Chamber, in Ömer Altun and in N Luxembourg 1. Because of its scope and the power it creates for national authorities, the principle differs from the abuse of rights doctrine previously operating in EU law. The article argues that a principle which prohibits unspecified "abusive practices" at a general level, capable of creating new enforcement powers, is alien to pre-existing ECJ case law; and to the extent it covers also abuses of national law, it cannot be justified on constitutional grounds. It is also incorrect to refer to it as a "general principle", a tactic used by the Court to make the principle enforceable against a private party. The article argues that EU law in fact contains a limited set of abuse principles generating different effects, only some of which could be brought under an umbrella of a single principle.
THE RISE AND FALL OF THE EUROPEAN CONSTITUTION, edited by N Barber, M Cahill and R Ekins, 2019
The chapter assesses the transformative role of the Charter of Fundamental Rights in the EU Const... more The chapter assesses the transformative role of the Charter of Fundamental Rights in the EU Constitution. It argues that neither the content of the Charter of Fundamental Rights nor the case law of the Court interpreting and applying this document have enabled the Charter to deliver on the constitutional promise that a written bill of rights adopted by a political organisation constitutes. The analysis is carried out by making a distinction between ‘deep’ and ‘shallow’ constitutionalism. The chapter explains why the Charter’s contribution to deep constitutionalism is limited. It is observed that despite various regulatory attempts the Charter has not managed to successfully constrain and direct the CJEU and thus has done little to counteract the Court’s expansionist and integrationist tendencies. As a result, the EU remains deficient vis-à-vis the two most fundamental constitutional principles – the principle of limited government and the principle of individual liberty. The chapter concludes by briefly discussing the connection between the Charter’s limited role in deepening EU constitutionalism and the outcome of the Brexit referendum.
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Papers by Dorota Leczykiewicz
In this chapter I consider the ways in which the Court of Justice of the EU is developing EU fundamental rights law in the Digital Era. I start by discussing the transactional and non-transactional protection which EU (private) law offers to consumers of digital products and users of digital services. I then move on to consider EU legislation protecting the fundamental rights of individuals in the Digital Market. I discuss the ways in which EU fundamental rights interact with private law-based relationships between consumers and users, on the one hand, and online traders and providers of digital services, on the other, given the ways in which EU fundamental rights have been interacting with national private laws and contracts so far. I then move on to investigate the instances in which the Court of Justice of the EU is developing an overlay of EU fundamental rights law, adding, in different ways, to the legislative content of EU fundamental rights law in the digital context. This overlay can be presented as containing additional ‘principles’ of EU fundamental rights law, which could even be described as ‘general principles’ in the light of the fact that they often themselves express fundamental rights, can be balanced against Charter rights or prevent more expansive interpretation of EU legislation protecting privacy and personal information.
In this chapter I consider the ways in which the Court of Justice of the EU is developing EU fundamental rights law in the Digital Era. I start by discussing the transactional and non-transactional protection which EU (private) law offers to consumers of digital products and users of digital services. I then move on to consider EU legislation protecting the fundamental rights of individuals in the Digital Market. I discuss the ways in which EU fundamental rights interact with private law-based relationships between consumers and users, on the one hand, and online traders and providers of digital services, on the other, given the ways in which EU fundamental rights have been interacting with national private laws and contracts so far. I then move on to investigate the instances in which the Court of Justice of the EU is developing an overlay of EU fundamental rights law, adding, in different ways, to the legislative content of EU fundamental rights law in the digital context. This overlay can be presented as containing additional ‘principles’ of EU fundamental rights law, which could even be described as ‘general principles’ in the light of the fact that they often themselves express fundamental rights, can be balanced against Charter rights or prevent more expansive interpretation of EU legislation protecting privacy and personal information.