This volume purports to provide an overview of the national and international measures developed to fight the COVID-19 pandemic in Europe, and aims to serve as a “toolbox” for judges and practitioners. By the time the book goes to print, the coronavirus, we are afraid, has not finished its devastating work. Virus mutations were even threatening that worse is still to come. Vaccination, however, is hopefully showing a way out. Developments such as these make it difficult to predict what the future will bring. We have therefore refrained from presenting the reader with a fully-fledged conclusion. Instead, we intend to offer you some ideas of a methodological nature, as well as some acknowledgements.

As regards the methodology: how did our project come into being? The historical background is to be found in the late 20th century, when several working groups of legal academics from various countries emerged. Commissions, such as Ole Lando’s Commission on European Contract Law, were created and working groups, such as those begun by Christian von Bar, Giuseppe Gandolfiand Reiner Schulze, among others, came up with drafts for a European Civil Code. By the early years of the current millennium, such projects began to run out of steam. The work was done, the money was spent. This did not mean that the members of the various groups lost touch. On occasions such as New Year, or disasters – as perceived by many – such as Brexit, contacts were again taken up, instigated by academics such as Hugh Beale and Matthias Storme. Likewise, early in 2020, when the pandemic started spreading, the group of former Commission members, now at around 100 members, proposed the idea of turning the negative development of the pandemic into something positive. The idea of a special volume was born. Over the past few months, this project has come to fruition. We will now present the way in which we have approached our task.

One of the first questions posed was: what purpose should the volume have? Two options were raised. The majority of the potential authors considered a classical overview of the law the best option.

PREAMBLE

The outbreak of COVID-19 has brought immense suffering and death to a considerable number of people around the world. It has impacted fundamentally the functioning of States, their democratic institutions and legal systems. Therefore, it is understandable that governments have and are continuing to resort to exceptional measures in seeking to get control over the spread of COVID-19. These exceptional measures inevitably restrict the fundamental rights of citizens in ways that can be justified only in these extraordinary circumstances. It is in the greatest interest of society that these measures against COVID-19 are imposed and enforced within the framework of established democratic principles, the international legal order and the rule of law.

Therefore, although the spread of COVID-19 justifies limitations on the functioning of institutions such as Parliaments and courts, these limitations must be subject to democratic control, must not be misused and not applied for purposes other than measures related directly to the COVID-19 crisis.

The measures taken by governments such as mandatory quarantine, the closure of borders, restrictions in mobility, are also having a dramatic impact on business, trade and employment. It is essential that the legal measures taken to address the hardship and other difficulties caused by COVID-19 take into account principles of solidarity and fairness as well as the need for co-ordinated action between States at an international or EU level as appropriate.

In these circumstances, the European Law Institute (ELI), an entirely independent non-profit organisation established to provide practical guidance in relation to European legal development, puts forward a summary of some of the important legal issues that arise in relation to the COVID-19 crisis.

Its summary, made from an independent non-governmental perspective with due consideration of what has been published by other bodies, is set out in 15 principles. These are addressed to all European States (whether or not Member States of the EU), and are intended to guide European States, EU institutions and other bodies with the object of ensuring that everything that is done accords with the rule of law and democratic values.

The COVID-19 crisis has marked nearly all spheres of our lives. To combat the spread of the virus, the Republic of Poland decided to impose severe restrictions as to the rights and freedoms of citizens and entities without applying the formal extraordinary measures as provided by the Constitution. Businesses have been significantly affected, but it is highly disputable whether they will be compensated by the State. Two compensation regimes are potentially applicable: the one provided for in the Polish Civil Code and the other regulated in the Extraordinary Measures Compensation Law. In both cases, the conditions for the compensation are ambiguous. Therefore, the aim of this contribution is to determine the main factual and regulatory issues which might inhibit compensation of COVID-19-related damage.

THE POLISH STATE ON THE VERGE OF THE PANDEMIC: MANAGING IMMINENT LOSSES

On 4 March 2020, the Polish minister of health informed that the first case of coronavirus in Poland had been diagnosed. Between then and 20 April 2020 several restrictions on conducting business activities as well as social life were imposed.

Restrictions with regard to the functioning of enterprises (e.g. shops, restaurants, hotels, gyms, hairdressers and cosmetics), as well as people’s mobility (e.g. border closure affecting tourist traffic) during the epidemic, caused and are still causing various types of damage. Companies’ revenues are reduced while the fixed costs (e.g. rent, employee remuneration, public law liabilities) remain unchanged. As a result, the latter tend either not to be paid, or to be paid with funds from sources atypical for the entrepreneur at hand (e.g. loan or credit). In addition, new expenditures, linked directly with the epidemic, emerge (for instance, purchase of disinfectants or costs of maintenance of unused machinery).

The government has declined to declare a state of natural disaster as provided in Article 228.1 of the Constitution. It was argued that the introduction of a state of natural disaster, would have catastrophic consequences for the State Treasury, because, following the Extraordinary Measures Compensation Law (hereinafter EMCL), the actual loss suffered as a result of limiting civil rights during this state is to be compensated. Also, the state of natural disaster forces the rescheduling of elections (Art 228.7 of the Constitution), whereas the presidential election was planned on 10 May 2020. Instead, the extraconstitutional “state of epidemic” was declared, and a series of special laws (so-called Anti-crisis Shields) and ordinances were adopted.

THE LEGISLATIVE CONCEPT OF IMPLEMENTATION

The process of implementing the directives in Polish law used to be quite chaotic. Some directives were implemented into the Civil Code directly (like the directives on unfair terms and product liability); others were implemented in separate statutes. The directives on off-premises contracts, distance contracts and the distance marketing of financial services were all implemented under the statute on specific consumer rights. The directives on time-share contracts and consumer credit were each implemented in a particular individual statute. The Consumer Sales Directive was also implemented in the special statute. It is quite difficult to find deeper reasoning behind Polish consumer law's fragmented structure, despite the technical difficulties in the process of drafting. One of the reasons for this structure was the inflexible ‘pandectistic’ scheme of the Polish Civil Code. The European lawmaker followed the ‘problem approach’ to adopting the directives, an approach which does not take into account the holistic concept of the Polish Civil Code. The directives usually address a specific problem (e.g. package travel) and contain rules, which potentially could govern also other matters beyond the scope of the directive (are feasible for generalisation). They differ however often from the Member States’ law which causes difficulties in the process of the implementation of the acquis communautaire in the national law.

In the case of minimum harmonisation directives, the national lawmaker naturally has more freedom to bend the rules to fit into the structure of the Code. However, in the case of full harmonisation directives (which the Consumer Rights Directive predominantly is), the process of integrating such directives into the structure of the Code is naturally much more challenging.

In the case of some directives governing the institutions or legal concepts that did not traditionally form part of the codified law, like the right of withdrawal or pre-contractual information duties, the fact that they have been implemented outside of the Civil Code has not caused major problems from the point of view of the internal coherence of the system.

1. A New Wave of Codifications – sometimes new content, but almost always old form

We are now experiencing in Europe a new wave of codifications. Some of them are like a breath of fresh air; others merely develop or alter existing concepts. Appealing, however, is the reluctance to adopt new structures for the codes. The mode of the presentation of the legal matter remains mostly unaffected. Perhaps the most recent innovation in this field was (and this was more than 20 years ago) the new Dutch Civil Code. At least the system of numbering of the articles facilitates the development and the revisions of the text, albeit the quotation of the provisions is much more difficult. The system of the Dutch Civil Code is also interesting because it endorses a lot of the German tradition of the codification (one must remember that the starting point for the Dutch law is the French Code Civil), but it does not follow the pandectistic structure of the code. Despite all of these innovations, since the pandectistic structure was developed and in reaction to it the anti-pandectistic codes (as a Swiss law) drafted, nothing entirely new has happened which would revolutionize the structure of the codifications.

Whilst the use of technology has also changed the manner of usage of the legal texts immensely, it has not influenced the way in which texts are drafted.

Introduction

The legal clinic program at the Jagiellonian University was established more than ten years ago. Since then, almost every law school in Poland has organized a program that at least aspires to be a “legal clinic.” Even the Polish private law schools competing with the established state institutions have accepted clinical programs as necessary components of the law schools. Poland has been extremely successful in organizing, promoting, and developing these programs, establishing a national Foundation for Legal Clinics that supervises clinical programs by testing their setting, equipment, reliability, and compliance with adopted ethical standards. The clinical programs survived the cutoff of the substantial external funding of the pioneer era. Despite this success, however, the role and function of the legal clinics in Poland is still not fully decided.

Clinical programs are entering a phase of transition from the first generation of clinical teachers to the next. This transition is sometimes complicated. The clinics’ founders benefited immensely from their participation in the process of establishing the clinics: they were supported by external international funding; they developed professional and personal relationships; and they had opportunities to travel for conferences, receive training, and to train others. Moreover, they have witnessed the development of the project, as well as its success. The next generation of teachers is beginning its work with far fewer incentives.

Introduction:

It is not surprising, considering European integration and increasing migration, that non-discrimination law in the European Union has developed significantly. Europe has experienced many terrible events due to intolerance. The development of non-discrimination law in Europe attempts to create a community of tolerance and reciprocal respect in order to avoid future experiences born of discrimination. The right not to be subjected to discrimination is mentioned in numerous sources of international law, such as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. The right not to be discriminated against is embodied in the European Convention on Human Rights (Article 14) and in Article E of the Revised European Social Charter. Therefore, European legislation also identifies the right not to be discriminated against as a fundamental freedom.

There is another explanation for non-discrimination law: discrimination is an obstacle to the free movement of people. In order for the EU to attain its fundamental objectives, it needs to combat every form of discrimination. The cultural diversity of Europe, which is of great value, is also endangered by discriminatory practices. Therefore, the basis of EU non-discrimination law is prominently placed in the primary Sources of the Union. Articles 12 and 13 EC [Articles 18 and 19 TFEU] deal directly with the issue of discrimination. Article 12 [Article 18 TFEU] prohibits any kind of discrimination based on nationality (that is, Member State nationality). It also contains a basis for the Council to adopt rules designed to prohibit such discrimination. Article 13(1) [Article 19(1) TFEU] provides the Council with a further competence to adopt unanimously, following a proposal of the Commission and after consultation with the European Parliament, appropriate measures in order to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.