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So this is interesting. What happens if national (eg. polish) law specifically disallows reverse engineering? Which law takes precedence?

by jasiek 14y ago

toyg 14y ago
ECJ follows EU directives, which take precedence over national law. When individual countries refuse compliance (it happens quite often), an "infraction procedure" is open, which can potentially result in heavy fines for the country. More often than not, the country could pass a law that complies with the directive in question, then "forget" to enforce it as soon as the original process is terminated in a satisfactory way; individuals would then appeal to the ECJ again and the process would be repeated, this time resulting almost certainly in fines. And so on ad infinitum, or (usually) until the political winds change at the national level. In almost every case, EU laws and directives take precedence over national law, but the mechanisms to enforce this primacy are still somewhat vague and weak. This is by design: if they had been too clearly stated, most countries would not have signed the treaties. The "plan" was to state the overall principles, then find a way to enact them further down the line. It's a very pragmatic approach, and it's producing results in many areas, but clearly it's not something that, today, will satisfy all individuals in their lifetimes.
grabeh 14y ago
National governments in the EU have a duty to implement EU Directives. If a government implemented a law inconsistent with a directive, the EU would take enforcement action for failure to implement the directive properly.
jwildeboer 14y ago
The rule is simple. EU directives must be implemented in national laws of all EU member states. If Poland fails to implement the directive by such an action a EU violation case would start ultimately leading to consequences. OTOH this is a tested way to get stuff in laws that are hard to find national support for. Make it an EU directive and explain to your people that "Sorry, but even if we don't like it, we must implement this now." - see EU data retention directive etc.
- jasiek 14y ago
  What if the law in question has existed before Poland joined the EU?
  - Gmo 14y ago
    Part of the process of joining the EU is to make your legislation compatible with the EU legislation.
ojosilva 14y ago
Since this is Union Law, and according to the treaties, a party in Poland could escalate such a copyright case to the ECJ, which could then overrule any Polish higher court. The thing is that the ECJ requires (or advices) Poland courts to comply to its decisions, but cannot actually enforce them, which is totally up to the country. So if Poland decided to go on its own on this, theoretically it could since the EU states are sovereign, but in practical terms, and this is a really fuzzy divide, Poland would not do it if it wants to remain a politically "healthy" member of the EU.

So this is interesting. What happens if national (eg. polish) law specifically disallows reverse engineering? Which law takes precedence?

by jasiek 14y ago

So this is interesting. What happens if national (eg. polish) law specifically disallows reverse engineering? Which law takes precedence?

toyg 14y ago

ECJ follows EU directives, which take precedence over national law. When individual countries refuse compliance (it happens quite often), an "infraction procedure" is open, which can potentially result in heavy fines for the country. More often than not, the country could pass a law that complies with the directive in question, then "forget" to enforce it as soon as the original process is terminated in a satisfactory way; individuals would then appeal to the ECJ again and the process would be repeated, this time resulting almost certainly in fines. And so on ad infinitum, or (usually) until the political winds change at the national level. In almost every case, EU laws and directives take precedence over national law, but the mechanisms to enforce this primacy are still somewhat vague and weak. This is by design: if they had been too clearly stated, most countries would not have signed the treaties. The "plan" was to state the overall principles, then find a way to enact them further down the line. It's a very pragmatic approach, and it's producing results in many areas, but clearly it's not something that, today, will satisfy all individuals in their lifetimes.

grabeh 14y ago

National governments in the EU have a duty to implement EU Directives. If a government implemented a law inconsistent with a directive, the EU would take enforcement action for failure to implement the directive properly.

jwildeboer 14y ago

The rule is simple. EU directives must be implemented in national laws of all EU member states. If Poland fails to implement the directive by such an action a EU violation case would start ultimately leading to consequences. OTOH this is a tested way to get stuff in laws that are hard to find national support for. Make it an EU directive and explain to your people that "Sorry, but even if we don't like it, we must implement this now." - see EU data retention directive etc.

jasiek 14y ago
What if the law in question has existed before Poland joined the EU?
- Gmo 14y ago
  Part of the process of joining the EU is to make your legislation compatible with the EU legislation.

ojosilva 14y ago

Since this is Union Law, and according to the treaties, a party in Poland could escalate such a copyright case to the ECJ, which could then overrule any Polish higher court. The thing is that the ECJ requires (or advices) Poland courts to comply to its decisions, but cannot actually enforce them, which is totally up to the country. So if Poland decided to go on its own on this, theoretically it could since the EU states are sovereign, but in practical terms, and this is a really fuzzy divide, Poland would not do it if it wants to remain a politically "healthy" member of the EU.