Search

Bosnia and Herzegovina has been one of the first European states to introduce a generous consumer collective redress mechanism. It was established under the influence of the EU, the United States and former Yugoslav law. The legislation of Bosnia and Herzegovina provides an excellent opportunity to examine to which extent the collective redress remedies emanating from different legal traditions may co-exist and function together. The number and variety of collective consumer remedies in Bosnia and Herzegovina is quite impressive. But the mechanism has still not been used because of the weaknesses of those who are supposed to trigger it. The very generous solutions for consumer associations and a specialized Ombudsman for Consumer Protection, both with wide powers to initiate collective proceedings, have not proved to be sufficient. The lack of appropriate funding has so far been an obstacle that is too great for any collective initiative. It also does not help that legislation allows traders to file for compensation in the case of unfounded collective claims when the reputation and business of the trader have been seriously harmed. The new EU Directive on consumer representative actions will certainly require further reforms in Bosnia and Herzegovina, especially with regard to collective claims for damages. This will provide the legislator with the opportunity not only to introduce more options for collective redress, but also to add the missing pieces of the jigsaw so that the mechanism finally fulfils its purpose of providing legal protection for consumers.

The question of a general part for EU Private International Law has attracted research and debate among PIL scholars long before the EU started to codify this legal field after the Amsterdam Treaty. However, the EU has made no attempt to make use of the existing research to adopt a comprehensive regulation of the general part of EU PIL and has adopted sector-specific regulation with inconsistent regulation of several general institutes. For the occasion of the anniversary of the Zeitschrift für Europarechtliche Studien this paper revisits the topic to answer the question which institutes of PIL should be codified in a general part of EU PIL. The conclusions are made based on four criteria: which general institutes of PIL are already regulated in the EU; are they generally applicable to all special parts of EU PIL; what is their practical relevance; and is there a need for their uniform regulation. The paper analyzes the discrepancies between existing general institutes of EU PIL and offers brief discussions on the possible formulation of some of the institutes for the general part.

The Supreme Court of the Federation of Bosnia and Herzegovina had to determine the applicable law to the arbitration clause contained in general conditions of sale on seller's website. The sales agreement was concluded orally and the reference to the website with general conditions of sale was made on a pro forma invoice paid by the buyer. The arbitration clause provided for ICC Rules and seat of arbitration in Amsterdam, while French law was chosen to apply to the contract. The buyer, a domestic company from Bosnia and Herzegovina, filed for damages before domestic courts, claiming that the arbitration clause was not consented to, nor was it concluded in written. The Supreme Court of the Federation of Bosnia and Herzegovina issued in the "chicken breed" case in 2019 a pro-arbitration judgment with reference to the New York Convention of 1958 and European Convention on Interna New York Convention of 1958 and European Convention on International Commercial Arbitration of 1961. It is a landmark decision on one of the most difficult questions of applicable law to formal and substantive validity of the arbitration agreement.

FIDIC Forms of Contract in recent years are often used for regulation of rights and obligations of the investors and the contractors on the construction projects in Bosnia and Herzegovina, in particular in construction of the highways, railways and dams. Majority of the projects is finalized without significant disputes between the parties. However, in certain cases disputes between the parties escalate in such magnitude that one of the parties decides to terminate the contract. Due to severity of the financial consequences of the termination, it is necessary to emphasise interplay between the Laws on Obligations in Bosnia and Herzegovina and FIDIC Forms. A careful approach to the issue of the termination could prevent complicated and expensive arbitral proceedings.

Through the judgments Digital Rights Ireland and Tele2 Sverige, the CJEU emphasised the power of the CFR (in particular arts 7, 8, 52) through the fundamental right of data protection and general principles of law such as the principle of proportionality and legal certainty. Article 52 CFR represents the essence of justification. In the spirit of article 52(3) and (4) CFR it becomes evident that the CJEU, the ECtHR and the German Constitutional Court go in the same direction. The CJEU was brave enough to deliver a scathing verdict on data retention. More strongly than the German CC, the CJEU safeguards data protection. Hence, the decisions of the CJEU were described as milestone decisions and the CJEU as a Court of fundamental rights. On the other hand, the CJEU focused all its power on proportionality expressed through the element of strict necessity. It is astonishing that the Court does not use the existing methodology on proportionality to strengthen legal discipline and confidence. Although proportionality may be assessed differently in single legal systems and cultures, the broad constitutionalisation and application of proportionality in jurisdiction proves the power of this general principle of law. The exploration of this principle is rather challenging, but most beneficial for the future application of primary law.

The freedom of services by correspondence should be one of the most important market freedoms in the EU legislative politics and the CJEU jurisprudence. The announcement of the establishment of a fifth market freedom on data flow is directly addressed by the freedom of services by correspondence. The growing importance of the freedom of services in general is in line with the rise of the EU service sector as the main contributor to growth and employment in the EU, accounting for about two thirds of both EU employment and value added. In addition, since 2015 the Digital Single Market is one of European Commission’s political priority that aims at providing free access to online services. Online services are in most part services by correspondence, where neither provider nor recipient travels cross border. The truth is that the freedom of services by correspondence is barely ever mentioned explicitly neither by EU legislator nor by the CJEU. The EU legislator has rather chosen a sectoral approach to the Digital Single Market, fragmenting the fifth market freedom to several narrow pieces of legislation. The paper deals with the question why the freedom of services by correspondence has not acquired the same position as the freedom of goods. The analysis will focus on answering this question on the grounds of the theory of convergence of market freedoms and its limits.

The application of international law in national legal systems is a well-established question in legal literature. Both the globalisation and internationalisation of legal systems have given rise to questions that need to be answered legally, by laws and jurisprudence, and in legal literature. The question of the enforcement of inter- or supranational obligations is directly linked to this application. The goal of Bosnia and Herzegovina (BiH) to become a member of the EU has raised the question of the application of supranational law (EU law) in BiH, both in terms of preparing for membership and the country’s status after entering the EU. The Europeanisation of the national constitutions is already taking place. For BiH, this is evident in the signing of the SAA and confirmed by the jurisprudence and literature oriented towards EU law. Formally, the EU is not a state and the treaties are not a constitution. Nevertheless, the European treaties deal with constitutional questions and provide answers in a legally binding way. At the same time, international law has taken on the characteristics of constitutional law. Hence, we have to clarify the relationships between international, supranational and constitutional competences, particularly the competences of the courts, the ECtHR (European Court of Human Rights), the ECJ (European Court of Justice) and national constitutional courts. The need for such clarification is also based on the principle of the effectiveness of legal protection as an integral part of the principle of the rule of law. The complexity of jurisdiction at the multi-system level can be described as ‘conflicts among courts of different levels in networking legal systems’. Other Member States of the EU and their constitutional courts likewise struggle with the hierarchy of norms and clarification of competences, both in terms of EU law and international law. It is remarkable that the Solange decision of the German Constitutional Court of 1974–1986 is used as a model both in jurisprudence and legislation. The key idea here is the ‘model of co-operation’ (Kooperationsverhaltnis) instead of extremely divided competences creating a strict hierarchy among different legal systems. Articles 52 and 53 of the Charter of Fundamental Rights of the EU guarantee a minimum standard of protection and acknowledge the guarantees provided by the ECHR. The Charter of Fundamental Rights of the EU aims to achieve coherence in the protection of human rights at the different national, supra- and international levels. To this end, the ECJ and ECtHR respect each other’s decisions to ensure the greatest possible coherence of human rights standards by respecting other courts that are responsible for the protection of human rights.