FAMILY LAW 166

CONTENT

FOREWORD. Dalia Perkumienė, Olegas Beriozovas PRATARMĖ. Dalia Perkumienė, Olegas Beriozovas 7 9

PART I: SUSTAINABLE DEVELOPMENT OF LAW

11 1. LABOR LAW 12 MANDATORY MEDIATION IN TURKISH LABOR LAW. Anıl Berk Gümüş and Büşra Çoban 13 TELEWORKING CONDITIONS IN TURKISH LABOUR LAW. Özgür Oğuz 24 EMPLOYERS‘ OBLIGATIONS IN TURKISH OCCUPATIONAL HEALTH AND SAFETY. Emre Çiloğlu & Ferdi Yıldırım & Nisa Nur Altun 37 VIOLATION OF WOMEN‘S RIGHTS AND PROBLEMS OF THESE RIGHTS’ IMPLEMENTATION IN LABOR RELATIONS. Dalia Perkumienė, Olegas Beriozovas, Aistė Lukšaitė 47 ANEMPLOYMENT INSURANCE IN TURKEY. Özgür Oğuz 60

2. BUSINESS LAW

LEGAL ASPECTS OF APPLICATION OF “DECENTRALIZED SMART CONTRACTS” IN INTERNATIONAL BUSINESS. Bohdan Diachenko, Olegas Beriozovas REGULATION OF THE PRINCIPLES OF NON-TRANSFERABILITY AND DOCUMENTARY NATURE OF A BANK GUARANTEE IN INTERNATIONAL COMMERCIAL PRACTICE AND LITHUANIAN LAW. Giedrius Nemeikšis MOST FAVORED NATION TREATMENT CLAUSE IN BILATERAL INVESTMENT AGREEMENTS. Dalia Perkumienė, Oleksandr Matvieiev , , Olegas Beriozovas PECULIARITIES OF E-COMMERCE REGULATION DURING COVID-19 PANDEMIC. Dalia Perkumienė, Olegas Beriozovas, Oleksandra Puzanova EUROPEANIZATION OF UKRAINIAN BUSINESS LEGISLATION ON EXAMPLE OF EUROPEANIZATION OF UKRAINIAN FOOD LEGISLATION. Stanislav Kunts, Dalia Perkumienė 74

75

81

94

102

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3. PUBLIC LAW 116 ENVIRONMENTALLY FRIENDLY CAR IN HUNGARIAN LEGISLATION. Erika Farkas-Csamangó 117 THE NEW REGULATORY RULES OF APPLYING ANTI-CORRUPTION MEASURES FOR LITHUANIAN PUBLIC SECTOR. Raimundas Kalesnykas 124 THE RIGHT TO RESPECT DISTINCTIVE VALUES OF EACH INDIVIDUAL IN A NONINCLUSIVE CORPORATE CULTURE. Andrzej Gołębiowski, Aneta Montano 144 LANGUAGE, SCIENCE AND LAW. Antonio Silva Sánchez, Violeta Naujokienė 151 UNIVERSAL COMMUNITY OF GOODS AND PATRIMONY IN THE FUERO DEL BAYLÍO -BAYLÍO JURISDICTION- AS A SPECIFIC ECONOMIC REGIME IN A PART OF THE EXTREMADURA TERRITORY (SPAIN).Manuel de Peralta Carrasco 155

4. CRIMINAL LAW

PRACTICAL PROBLEMS OF ENFORCEMENT OF EUROPEAN NE BIS IN IDEM PRINCIPLE IN HUNGARY. Herke Csongor 160

161

5. FAMILY LAW

166

THE ISSUE OF THE CHILD‘S RIGHT TO KNOW HIS ORIGIN AND THE WAYS TO SOLVE IT. Sigita Šimbelytė PROBLEMS OF LEGAL REGULATION OF CHILDREN’S NON-PROPERTY RIGHTS. Dalia Perkumienė, Dovilė Bukauskaitė LEGAL PROBLEMS AND ISSUES OF UNMARRIED PERSONS RELATIONS REGULATION. Dalia Perkumienė, Viktorija Tverijonienė, Antonio Silva LEGAL PROBLEMS IN MARRIAGE DISSOLUTION THROUGH THE FAULT OF THE SPOUSE IN ESTABLISHING THE FAULT OF THE SPOUSE. Laura Seržintienė, Dalia Perkumienė, Antonio Silva 167

178

190

203

THE PENSION FOR IMBALANCE BETWEEN THE SPOUSES DERIVED FROM THE MARITAL CRISIS IN THE SPANISH LEGAL SYSTEM OF SEPARATION AND DIVORCE. Ángel Acedo Penco 216 PARENTAL AUTHORITY: DISTINCTION BETWEEN DEPRIVATION AND EXCLUSIVE EXERCISE BY ONE OF THE PARENTS. Cristina Cintora Egea 222 REFLECTIONS ON THE RIGHT TO BE TAKEN CARE OF FROM THE FAMILY AND SUCCESSION PERSPECTIVE. Leonardo B. Pérez Gallardo, Anabel Puentes Gómez 229

PART II: SUSTAINABLE DEVELOPMENT OF MANAGEMENT

1. LOGISTICS AND TRANSPORTATION

THE IMPORTANCE OF IMPROVING STORAGE PROCESSES AND PROBLEMATIC SITUATIONS. Kristina Ratautaitė, Dalia Perkumienė POSSIBLE SOLUTIONS FOR THE IMPROVEMENT OF THE STORAGE PROCESSES. Vaiva Žimontienė, Dalia Perkumienė ANALYSIS OF THE MARKET AND TRENDS OF THE AIR PASSENGER TRANSPORT. Monika Razutytė, Dalia Perkumienė, Regina Andriukaitienė 237 238

239

246

257

2. TOURISM MANAGEMENT CHALLENGES

264

CHALLENGES OF SUSTAINABLE TOURISM IN PANDEMIC TIMES: THE CASE OF ZYPLIAI MANOR, LITHUANIA. Nijole Petkeviciutė, Daiva Buksnienė, Rasa Pranskunienė 265 EVALUATION OF THE BURNING OF THE MUSEUM’S LEISURE ORGANIZERS. Biruta Švagždienė, Monika Česaitė 277

3. CHALLENGES OF MANAGEMENT

THEORETICAL ASPECTS OF SOCIAL MEDIA AND RURAL BUSINESS. Bidemi Yemi Bakare, Rasa Pranskuniene BUSINESSES WITHIN GLOBAL PANDEMIC AND LOCKDOWN: LITHUANIAN COMPANIES’ PERSPECTIVE. Airida Gotovtė, Tomas Butvilas, Deimantė Žilinskienė SIGNIFICANCE OF AIRPORT BRANDING ELEMENTS: A PASSENGER‘SPERSPECTIVE. Konstantinos Kalligiannis, Deimantė Žilinskienė APPLICATION OF NEW LEARNING POLICY STRATEGIES WITHIN VIRTUAL ENVIRONMENT. Sergejus Neifachas, Tomas Butvilas, Aidas Vasilis Vasiliauskas, Deimantė Žilinskienė, Olga Navickienė THE MEANING OFAN OPEN ADOPTION SYSTEMS MANAGEMENT: THEORETICALCONSIDERATIONS. Tomas Butvilas, Deimantė Žilinskienė 288

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FOREWORD

The modern world is facing a variety of changes, including pandemic outbreaks, global warming, and rapid technological development. The ongoing changes affect the economic and legal performance of various countries and encourage the search for legal and managerial solutions and means to meet their obligations. At the same time, this situation leads to the objective need to properly assess global legal regulations and managerial decisions in certain areas and situations where such research is not available in global practice. In these difficult times, major geopolitical changes require a review of the legal and managerial structure of the conceptual order and its operation, the exploration of opportunities, the development of new norms, tools, and paradigms.

The scientific monograph will provide an opportunity to rethink problematic areas of international law and possible management solutions critically and creatively, and to provide innovative approaches to solving emerging problems.

The research subject covers the sustainable development of law and management.

The aim of the monograph is to promote public scientific discussion of Lithuanian and international scholars, raising the problems and challenges of modern law and management in the context of international law, commercial, family, criminal, environmental and other branches of law.

The scientific monograph is the result of research by lecturers of the Institute of Law and Technology of Kazimieras Simonavičius University and their Lithuanian and foreign colleagues from other higher education institutions.

This monograph consists of two main parts: “Development of Sustainable Law” and “Development of Sustainable Management”.

In Part I of the monograph, “The Sustainable Development of Law”, researchers analyze the problems and challenges of labor, family, public, business, and criminal law. In this section, the researchers discuss the issues of compulsory mediation and teleworking in Turkish labor law, as well as vio-

lations of women’s rights and the problems of these rights in employment, business law, analysis includes issues such as legal issues related to the COVID-19 pandemic, also the right to respect everyone’s unique values, etc.

In the second part of the monograph “Sustainable Development of Management”, researchers delve into the importance of improving management processes and problems of solving, analyze the passenger air transport market and trends, emphasize the challenges of sustainable tourism during the pandemic times, discuss the management of open reception systems, etc.

Sincerely, Dalia Perkumienė Olegas Beriozovas

DARNI TEISĖS IR VADYBOS PLĖTRA ŠIUOLAIKINIAME PASAULYJE

Mokslinė monografija PRATARMĖ

Šiuolaikinis pasaulis susiduria su įvairiais pokyčiais, įskaitant pandemijos protrūkius, globalinį klimato atšilimą, spartų technologijų vystymąsi. Vykstantys pokyčiai įtakoja įvairių šalių ekonominę ir teisinę veiklą bei skatina ieškoti teisinių ir vadybinių sprendimų bei priemonių savo įsipareigojimams vykdyti. Kartu ši situacija lemia ir objektyvų poreikį tinkamai įvertinti globalų teisinį reguliavimą bei vadybinius sprendimus tam tikrose srityse ir situacijose, kai tokių tyrimų nėra pasaulinėje praktikoje. Šiais sudėtingais laikais, vykstant dideliems geopolitiniams pokyčiams, reikia peržiūrėti teisinę ir vadybinę konceptualios tvarkos struktūrą ir jos veikimą, ištirti galimybes, kurti naujas normas, įrankius ir paradigmas.

Mokslinė monografija suteiks galimybę kritiškai ir kūrybiškai permąstyti problemines tarptautinės teisės sritis bei galimus vadybinius sprendimus ir pateiks naujoviškų požiūrių, sprendžiant kylančias problemas.

Šios mokslinės monografijos tyrimo objektas apima darnų teisės ir vadybos vystymąsi. Monografijos tikslas – skatinti viešą Lietuvos ir tarptautinių mokslininkų mokslinę diskusiją, iškeliant šiuolaikinės teisės ir vadybos problemas bei iššūkius tarptautinės teisės, komercinės, šeimos, baudžiamosios, aplinkosaugos ir kitų teisės šakų kontekste.

Mokslinė monografija yra Kazimiero Simonavičiaus universiteto Teisės ir technologijos instituto dėstytojų bei jų Lietuvos ir užsienio kolegų iš kitų aukštųjų mokyklų tyrimų rezultatas.

Monografiją sudaro dvi pagrindinės dalys: „Darnios teisės vystymasis“ ir „Darnios vadybos vystymasis“.

Monografijos I dalyje „Darnus teisės vystymasis“ mokslininkai analizuoja darbo, šeimos, viešosios, verslo ir baudžiamosios teisės problemas ir iššūkius. Šioje dalyje tyrėjai aptaria privalomo tarpininkavimo ir nuotolinio darbo Turkijos darbo teisėje klausimus, taip pat moterų teisių pažeidimus ir šių teisių problemas, įgyvendinant darbo santykius, verslo teisės analizė apima tokius klausimus kaip: „Decentralizuotų išmaniųjų pirkimo sutarčių“ teisinių aspektų

taikymas, elektroninės prekybos reguliavimo ypatumai COVID-19 pandemijos metu, teisė gerbti kiekvieno unikalias vertybes ir kt.

Antrojoje monografijos dalyje „Tvari vadybos plėtra“ mokslininkai gilinasi į vadybinių procesų tobulinimo ir problemų sprendimo svarbą, analizuoja keleivinio oro transporto rinką ir tendencijas, akcentuoja darnaus turizmo iššūkius pandemijos laikotarpiu, aptaria atviro priėmimo sistemų valdymo prasmę ir kt.

Pagarbiai, Dalia Perkumienė Olegas Beriozovas

PART I: SUSTAINABLE DEVELOPMENT OF LAW

1. LABOR LAW

MANDATORY MEDIATION IN TURKISH LABOR LAW

Anıl Berk Gümüş and Büşra Çoban

Anadolu University, Turkey

Annotation

Disputes that arise with human history have been tried to be resolved differently in each period. Methods specific to each period have become more peaceful and professional with the increase of Legal Studies. Although it was expected that disputes would decrease with the progress of legal systems, the situation was different from expected. Especially in the Turkish Judiciary, the workload is quite high. In legal systems with excessive workload, the right to a fair trial is compromised, the procedural economy cannot be observed, and cases conclude too late. In order to eliminate this situation, alternative dispute resolution methods have been developed and mediation has been made more visible in particular. The nature of labour law is to carry out the work at the point of solving the problems between the business and the employer. The aim of labor law is to solve the problems between the employer who has power in the economic field and the employee who depends on the employer, to achieve a balance and to maintain this balance. In order to achieve the mentioned balance, many solution methods are also put forward. One of these methods is mediation. Mediation is one of the solutions that we can call new from the point of view of our country. Mediation in the Turkish Legal System was established on a legal basis in 2012. This method, which was previously discretionary, has become a condition of litigation with the Labour Courts Law No. 7036 in terms of being more applicable and has taken a place in our legal system in the form of mandatory mediation.

In this study, we will focus the historical development of mediation, its definition and how mediation activities are carried out, the qualities of the mediator and the characteristics that he should have were examined.

Key words: Mediation, Turkish Judiciary, Turkish Judicial System, Mediator, Alternative Dispute Resolution Methods.

Introduction

One of alternative dispute resolution method is mediation. There is no single accepted definition for mediation. The most accepted definition is resolution disputes by third party, which is voluntarily neutral. In this context, mediation is not a judicial activity, nor can it perform the actions taken

by the judicial activity. Listening to witnesses, discovery, or applying expert evidence is not involved in mediation. In mediation, the goal is not to make a decision, but to restore the deteriorated interest (Sedat, 2018).

In light of recent changes, it can be said that the mediation authority can propose a settlement for the dispute, as well as resolve the dispute by strengthening communication between the parties and creating a free environment. As a result of all these efforts, the parties will not go to trial and will ease the burden of Labour Courts. For this reason, mediation was established on a legal basis in 2012 as an institution that facilitated the work of the Turkish judicial system. The excessive agglomeration that exists in our judicial system is one of the most important problems that violate the right to a fair trial in the first place. As such, the reliance on mediation has increased considerably. One of the areas where this reliance is excessive has undoubtedly been in the field of Labour Law (Ceylan Yanaral, 2019).

The mediator is not an effective intervening party as of the stance. But in addition to a sense of confidence that will come from the competence of the mediator, its neutrality is the basis of mediation. These qualities, whatever the issue of compromise is, have the power to turn compromise on the positive side. Accordingly, it is not the multiplicity that matters in mediation, but the quality of the mediators who grow up.

We have witnessed that mandatory mediation before litigation is defined as a method in the relevant article in the Labour Courts Law No. 7036, that the concept of mediation is filled in and regulated. When the situation is examined by the law of Civil Procedure, it will be seen that the failure to resort to mediation means that one of the conditions of the case has not been met. In the opposite case, if the plaintiff files a lawsuit without going to the mediator, the court will have to dismiss the case duly. In addition, the plaintiff will not be given an additional period of time that will not be granted the right to correct this situation. The reason for such a sharp exit can be explained as the fact that the employment courts have been overworked recently. At such an intensity, their courts may not always draw fair and just conclusions. Mediation at this point eases the labor force of the courts, allowing people to get a fair trial. Another reason is that some of the articles contained in the current law have been annulled by the Constitutional Court. This creates serious gaps. In addition, it should be taken into account that the workers are unemployed for a long time during the trial,

and that they cannot immediately receive what they will receive, even if the case is concluded (Özveri, 2020). It is a well-known fact that in the conditions of Turkey, workers do not have many sources of income. In addition to the increase in the labor force of the courts, this victimization experienced by the workers will be somewhat eased thanks to mediation. During mediation negotiations, it is possible that the parties will waive some rights. For this reason, it is essential to create a legal system that protects workers in particular (Kurt, 2018). It is clear that there is no issue limitation in Labour Courts Law no. 7036. In addition, this openness is also in question for the parties. In this context, it is not impossible to see unions as parties in cases. The parties do not have to agree as a result of mediation. In the absence of an agreement, of course, the rights to use other legal channels are reserved. Mediation is a complementary element of judgment in terms of function. No matter how confused, 36th article of the Constitution, cannot be reconciled with the violation of the freedom to seek rights. There are also specific reasons that are not covered by mediation (Cebeci, 2018). Cases of accidents at work and material non-pecuniary compensation arising from them, again, cases of detection, objection and recourse arising in the context of this issue, mediation is evaluated in this context. As a justification, it is essential that a certain standard of these cases be resolved with a possible and qualified expert (Kurt, 2018).

Historical Development Of Mediation

With the beginning of human history, human interaction with each other has increased. As such, the occasional disagreement began to increase. Especially in the 1990s, with the increase of global competition and the loss of power of trade unions on the first day, peaceful solutions became even more important. Although it is desirable to resolve disputes by legal means, given the situation in Turkey, it will be seen that there is already an intensity. Because our judicial system is strictly adhered to the terms of the form, it takes 430 days for a case to be concluded in labour courts (Tanır, 2021). One of the ways to eliminate this intensity is to go to alternative solutions. Non-judicial peaceful settlement methods constitute alternative remedies. Alternative solutions have been a developing School in the Far East. But its development began in the US in the 1960s, while its institutional development was slower in continental Europe. In 2002, a book

entitled ‘Yesil book on Alternative Dispute Resolution methods in civil and Commercial Law’ was published and contributed to this development. In the book, there are definitions of alternative solutions. In 2004, the process accelerated with the adoption of the Code of Ethical Conduct for mediators law (Yağcıoğlu, 2018).

Alternative solution methods used extensively in Turkey are arbitration, conciliation and mediation. But in the first place, alternative solutions began to be discussed in our country, methods such as mediation, arbitration, and then emerged. Peaceful settlement methods in Turkey were on the agenda in the pre-republican period. In 1909, the mechanism for reconciling holiday with the Ottoman Strike Law was put into operation. If you look at the Republican era, the first Labor Law was introduced in 1936, but the Collective Labor Agreement Strike and Lockout Law No. 275, issued in 1963, was included in mediation. The years in which mediation is more visible are the arrangements made after 1980 (Yağcıoğlu, 2018).

In the recent past, the authorities, who signaled that alternative solutions will be focused on in the 10th Development Plan, have accelerated the studies. In this context, the Mediation of Legal Disputes Law (HUAK) No. 6325 on was first enacted, but the concept of mediation was also included in Law No. 7036 in order to see the desired demand for the mediation activities contained in this law (Sedat, 2018).

Basic Principles Of Mediation

In third article of HUAK, the concept of willpower in mediation is clearly explained. Accordingly, ‘ the parties are free to apply to the mediator, continue the process, conclude or abandon this process.’As can be seen, 3 different stages are mentioned. The aim of its phasing is undoubtedly to allow the current dispute to be resolved on a more comfortable and free ground. The principle of willpower is a principle that is valid and applied at every stage of the mediation institution. Although it is stated that mandatory mediation is contrary to the principle of wills, it should be noted that the parties have the right not to attend the first meeting. The existence of such a right is consistent with the principle of willpower, and it will be seen that the mandatory mediation institution does not fundamentally contradict the principle of willpower (Mustafa, 2018).

According to the principle of equality, the parties have equal rights at every stage of the mediation institution. Because of this, any party cannot be treated with privilege, the treatment applied to one party must be applied to the other party. The Constitutional Court also has opinions on this issue. (AYM 11.07.2018. 2017/178-2018/82) When looking at daily life, the worker is in a weaker position, while the employer is in a stronger position. In this judicial opinion, the Constitutional Court emphasized the strengthening of the hand of the worker and the equalization of his conditions with the employer (Albayrak, H. (2018).

The privacy policy has been developed to prevent the information and documents used in the mediation process from being used elsewhere. Since the parties in mediation will reveal all the data they have in order to reach a compromise, this principle is the principle that will eliminate the anxiety caused by this situation. Clear disclosure of the data available in the dispute resolution process will both allow the dispute to be resolved correctly and will play an important role in knowing the interests necessary for the settlement (Ceylan Yanaral, 2019). This principle is clearly stated in 4th article of HUAK. In principle, the parties provide easier communication and prevent a situation against them in a case that may be opened in the future.

In order for mediation activities to be carried out, there must be a dispute in the middle. Based on the definition of mediation, in addition to the parties, the existence of a neutral third party is required for the resolution of this dispute. Mentioned third party (mediator) must gather the parties to a table and continue the proceedings in a way that helps resolve the current dispute. It is also useful to note that the resulting solution is not binding (Lokmanoğlu, 2018).

The scope of mediation is stated in Article 3 of the Labor Courts Law No. 7036. Accordingly, wages, overwork fees, annual leave fees, week holiday fees, national holidays and general holiday fees fall into the category of receivables that can be requested from the employer. Since the subject of rights can be both parties, the employer can also claim compensation from the employee. Accordingly, items such as notice compensation, criminal condition, advance request can be requested from the employee by the employer. Since the issues are usually receivables and compensation axis, there is no specific subject limitation in the law. Out-of-scope cases are also available. Accordingly, material and moral compensation arising from an

occupational accident or occupational disease, as well as mediation in cases of detection, objection and recourse covering these issues, are not covered by the legal requirement. In order to implement mandatory mediation, it is necessary to apply the persons and the matter together with the law.

The mediation process can begin with people applying to mediation offices. Mediation offices are one of the main institutions of the system. The application to mediation offices is explained in the 5th paragraph of Article 3 of the Labor Courts Law No. 7036. Applications can be made to the mediation office at the place where the work is performed, as well as to the settlement of the opposite party. If the counterparty is not the only person, then the transaction can also be initiated by applying to the mediation office in the settlement of any of them. It cannot take into account whether the mediation offices are authorized or not. The party that will appeal is the opposite party. In order for the other party to make an objection to the authority, it is necessary to evaluate the period up to the first meeting at the latest. The mediator must immediately forward the file containing the objection to the other party to the mediation office. After the file is forwarded to the Bureau, the bureau will forward this file to the Civil Court of Peace. After the court has made the necessary examinations, it will make the decision determining the relevant Bureau, and this decision is in the final decision. After the operations are completed, the file is forwarded to the office. The Bureau is obliged to notify this situation to the parties in accordance with the Notification No. 7201. If the authority objection is rejected, the dispute between the parties is transferred to the same mediator. If an objection to authority has been accepted, an application must be made to the mediation office appointed by the court within one week. The competent bureau will assign mediation.

The choice of mediation is also explained in the 6th paragraph of the 3rd Article of the Labor Courts Law No. 7036. Accordingly, the mediator in the first place will be determined by the Justice Commission or the mediation office. But if there is a mediator who has already been determined by mutual agreement, then that mediator will start the proceedings. The purpose of giving priority to the mediator agreed by the parties is the belief that the dispute can be resolved faster.

During the appointment of a mediator, the parties must submit any information and documents requested to the relevant office. But if the infor-

mation in the hands of one party is not sufficient, the bureau is authorized to investigate this information or document.

The process of transferring the current dispute to the mediator is specified in the 8th paragraph of Article 3 of Law No. 7036. The relevant office will inform the mediator of the assignment, as well as provide the contact information of the parties. The mediator will begin processing the information transmitted to him, but he has the freedom to investigate it at his own expense, especially when he sees a lack of contact information. The mediator must call the parties and arrange a meeting in the light of the contact information reported to him. An invitation to a meeting is a situation where the mediator is responsible for the task. At this time, it is also necessary to record the entire legal process. These records will provide ease of proof for situations that will occur in later stages. If one of the parties does not attend the meeting or the mediation activity has ceased, the mediator will take the necessary actions with this data and aleyhe will be able to apply for sanctions.

The mediation period is limited by law to 3 weeks. However, it was considered appropriate to extend this period by no more than 1 Week, taking into account the necessary negotiations for the settlement of the dispute and other situations.

The conclusion of mediation activities is regulated in paragraph 11 of Article 3 of Law No. 7036. Mediation activities may be terminated for 3 different reasons. First, mediation activities will cease when the mediator cannot reach the parties. In addition, the meeting will be terminated when the parties do not participate in the meeting or if no conclusion has been reached in the negotiations.

The state supports mandatory mediation and makes this clear in Article 3 Paragraph 12 of Law No. 7036. The relevant paragraph explains the situations that will occur when one of the parties does not participate in the negotiations without justification. Accordingly, when one of the parties does not attend the organized meeting without justification, the party participating in the meeting will be responsible for the entire cost of the trial, even if it is completely justified. If both parties did not attend the meeting, then the costs of the trial will remain above the parties. The mediator must evaluate and determine whether the presented excuse is valid together with the specific incident. When the mediator considers the presented excuse to be unwarranted and transfers the situation to the court, the dispute shall not

be transferred to the mediator again when the court accepts the presented excuse as valid. The court makes a final decision on the current dispute. In this case, no sanctions will be imposed on the parties.

If the parties agree at the end of the mediation activity, the mediator must pay the amount specified in the second part of the mediation minimum wage tariff equally. The amount of payment will be ‘at least 2 hours’ and no less can be decided. This provision comes across as a commanding provision.

If the parties have failed to agree on mediation activities, then the fee will be paid in the budget of the Ministry of Justice. This payment will be covered by the Ministry of Justice budget not only in case of failure to agree, but also when the parties do not attend the meeting or the meeting takes less than two hours and the situation of failure to agree in this way. But if the interview lasted more than two hours, but it was not concluded, then the parties must share and pay equally for the part that exceeds two hours. One of the parties can make the payment entirely by himself, the law has not imposed a limit here.

Two different options have also been prepared to cover the necessary costs incurred by mediation offices. First, if the parties have reached an agreement as a result of mediation activities, then the payment must be made by the parties. If no agreement is reached, then the necessary costs will be covered from the budget of the Ministry of Justice.

The persons who will participate in the mediation negotiations are also regulated in the Law No. 7036. Accordingly, only the parties themselves can participate in the meeting, as well as legal representatives or lawyers with the parties can participate in the meeting.

The place where the mediation negotiations will take place is explained in the 19th paragraph of Article 3 of Law No. 7036. But since the provision is not a mandatory provision, the parties can also identify these places differently.

Necessity Of Mediation In Procedural Economics

Since the Republic of Turkey is a state of law, it is a state of law requirement for the state to conduct judicial proceedings in accordance with procedural law. One of the notable elements of procedural economics is that the trial is conducted in a reasonable time and at a reasonable expense. But it is a well-known fact that our legal system has a heavy workload. A system with

a heavy workload will not be able to make a trial within a reasonable time, nor will it be able to complete it at a reasonable fee. From the point of view of reducing the workload, it will be important to implement alternative solutions and resort to mediation activities in particular for these applications.

Conditions Of Being A Mediator

The qualifications of being a mediator are specified in Article 20 of the HUAK No. 6325. Accordingly, the person must be a Turkish citizen. He must be at least 5 years senior in his profession and be a graduate of the Faculty of Law. In addition to being in contact with or not being affiliated with terrorist organizations, it is also necessary not to be convicted of a crime committed deliberately in accordance with Article 53 of the Criminal Code No.5237, and not to be dismissed from the profession or public service as a result of a final disciplinary decision. Finally, it is necessary to complete mediation training and succeed in the written and practical examination conducted by the Ministry of Justice.

Qualification Of The Mediator

There are different views on this issue in the doctrine. According to the first opinion, the mediator cannot, should not, advise the parties. The source of this opinion is shown as Article 2 of HUAK. Another opinion is the freedom in this regard, which the mediator can propose. The recommendations given should be for reconciliation. Another view is that advice is again given, but the point on which this view is based is that the rights of the parties are taken into the center. Therefore, in this opinion the mediator is more active than the second opinion. When both Article 17 of Law No. 7036 and Article 2 Paragraph 1 Subparagraph B of HUAK are examined, it will be seen that there is no problem in the mediator’s proposal for a solution (Salim Yunus Lokmanoğlu, 2018).

In addition to all these qualities, the mediator is the most important of the qualities that are desired and sought to be neutral. Accordingly, in order for the mediator to be neutral, he must not be in a relationship with any of the parties and must not have an interest in resolving the dispute. The mediator’s job is to provide the necessary environment for resolving the dispute between the parties and to ensure that the parties are effectively involved in the settlement process. The mediator should not be able to try to

eliminate equality between the parties. In such a case, the mediator will not be able to be neutral and this rule will be violated. In terms of general functioning, the employer may be more experienced in these matters than the worker, in which case the conditions will not be equal. In this context, workers will be disadvantaged. The principle of Employee Protection should also be taken into account in this case. As a judicial solution, the principle of employee protection should be actively used here. In spite of all, if there is doubt about the mediator’s impartiality and strong evidence is present, the mediator must inform the parties. If the parties still want to carry out the same mediation process, then the mediator is obliged to perform his duty (Sedat, 2018).

Results

It can be seen that the workload in the Turkish legal system prevents the proceedings from being held at a fair and appropriate time. This situation is one of the characteristics that should not be in the state of law. Although the judicial system is often preferred in terms of the satisfaction of the parties, long-term litigation processes and economic difficulties during the litigation process lead citizens to alternative dispute resolution methods and in this context make mediation a more functional system. The Law on Mediation in Legal Disputes No. 6325 was regulated and in terms of further acceptance of mediation, the Labor Courts Law No. 7036 defined mediation as a condition of litigation. Over time, other laws have also been harmonised with the mediation activity, and continue to be introduced. Mediation is an activity that promises a quick solution, as well as being very economical and peaceful in terms of applicability in daily life. The willingness of the parties to resolve the dispute is one of the most important points that will make mediation successful. In addition, the necessary costs incurred by the mediation offices will be wasted.

Another point is whether mediation is mandatory conflicts with the principle of will, which is one of the principles of mediation. As mentioned, the parties have the right not to come to the first meeting. It is also not necessary for the parties to reach an agreement during the negotiations. Although there are different opinions, the situation specified in Article 36 of the Constitution and the freedom to seek remedies means that the citizen does not meet with an obstacle, is able to seek his right, and applies to legal

remedies. Although people do not come to the first meeting to resolve the dispute with their will, they can end the mediation process of their own free will. Although people do not come to the first meeting to resolve the dispute of their own volition, they can again terminate the mediation process of their own volition. If the parties are unable to reach an agreement, they can terminate the mediation process and proceed to the litigation process, and in this context they do not face any obstacles. Mediation is a complementary element of the judiciary, so this element is included in people’s access to justice. Mediation cannot be considered independently in the dispute resolution process.

Although mediation is a new way of solving the Turkish judicial system, it is necessary to make it mandatory as a condition of litigation in terms of increasing its preferability, citizens see this process as a procedure and those who see it as an obstacle that must be overcome in order to examine the case in essence is the biggest problem of this system. If this problem is eliminated, it will function in accordance with the purpose of introducing mandatory mediation.

Bibliography

1. Cebeci, İ. C. (2018). İş güvencesinin hukuki sonuçları ve zorunlu arabuluculuk (Master’s thesis, İstanbul Ticaret Üniversitesi). 2. Lokmanoğlu, S. Y. (2018). İş Mahkemeleri Kanunu Işığında Arabuluculuk Kavramı. Türkiye Adalet Akademisi Dergisi, 33, 863-885. 3. Özveri, M. (2020). İş Mahkemeleri Kanunu ve Zorunlu Arabuluculuk Uygulamaları.

Calisma ve Toplum, 65(2). 4. Tanır, Z. B. (2021). İtirazın kesin olarak kaldırılması (Doctoral dissertation, Bursa Uludag University (Turkey). 5. Sedat, K. A. Y. A. (2018). 7036 Sayılı İş Mahkemeleri Kanunu Çerçevesinde Bireysel İş

Uyuşmazlıklarında Zorunlu Arabuluculuk. Erzincan Binali Yıldırım Üniversitesi Hukuk

Fakültesi Dergisi, 22(1-2), 209-261. 6. Yağcıoğlu, K. M. (2018). Yeni iş mahkemeleri kanunu uyarınca arabuluculuk ve arabuluculuğun iş yargılamasına etkileri. Dokuz Eylül Üniversitesi Hukuk Fakültesi Dergisi, 20(2), 457-486. 7. Albayrak, H. (2018). Eşitlik ve Tarafsızlık İlkelerinin Zorunlu Arabuluculuk Bağlamında

Yeniden Değerlendirilmesi Zorunluluğu. Gaziantep University Journal of Social Sciences, 17, 12-24. 8. Kurt, R. (2018). İş yargısında “arabuluculuk”. Türkiye Barolar Birliği Dergisi, 135, 405 - 444. 9. Ceylan Yanaral, H. (2019). Bireysel iş hukukunda dava şartı arabululuculuk (Master’s thesis, Sosyal Bilimler Enstitüsü).

TELEWORKING CONDITIONS IN TURKISH LABOUR LAW

Özgür Oğuz

Anadolu University, Turkey

Annotation

Due to the structure of labor law and developing technology and economic interests, flexible working models have become widespread. In many workplaces, the presence of workers in person is no longer compulsory. As a result of the Covid-19 epidemic that threatens our health these days, the need for flexible working models has increased and remote working methods have become mandatory in many areas. In our study, the regulations made with the remote working system and the Covid-19 epidemic were included, the obligations of the employer on occupational health and safety and the changes in the Remote Work Regulation were evaluated.

Key words: Remote work, Covid-19, occupational health and safety.

Introduction

In the developing and changing world, the adoption of remote working systems has increased due to the increase in technological developments, the need for the employee to carry out the job in a healthy way, in addition to the wage payment debt of the employer, the economic activities of the employer and the obligation to protect the worker. Remote working, one of the flexible working models that have long been needed in many business areas, is one of the working methods in which the work can be carried out regardless of the workplace.

In Article 14 of the Labor Law numbered 4857, remote working is defined as a business relationship established in writing based on the principle of fulfilling the work of the worker at home or outside the workplace with technological communication tools within the scope of the work organization created by the employer.

In cases where teleworking is adopted, the issue of occupational health and safety should be particularly addressed in terms of both employers and workers.

According to Article 14/6 of the Labor Law, the employer has the obligations to inform the employee about occupational health and safety, to provide the necessary training, to provide health surveillance and to take the necessary occupational safety measures regarding the equipment he provides, taking into account the nature of the work done by the employee with whom he / she works remotely (Cihan, 2019; Decision of the Supreme Court of Law General Assembly 2015/139; The act of employment is fulfilled outside the workplace..., 2018).

The Occupational Health and Safety Law No. 6331 determines the obligations of the employer and requires the observation of the worker and the protection of his health. In practice, remote work emerges as an atypical way of working, which has increased especially with the emergence of the Covid-19 epidemic and has become mandatory in some workplaces.

With the amendment made in the Labor Law, the legal basis for remote working can be performed in many ways. Therefore, the employer’s obligation to protect the workers cannot be drawn with clear boundaries in the lines of work in which this working style is adopted.

As a result of the Covid-19 epidemic becoming a pandemic, remote working has been adopted in many different sectors, and it has inevitably started to be applied in business lines where remote work has not been applied before.

Therefore, due to the need for a detailed regulation regarding remote working, the Remote Working Regulation was published on March 10, 2021.

In the study, it was aimed to draw attention to the remote working system and the issues that should be applied in the Covid-19 period.

Remote operation system in general

With the structure of labor law and the effect of developing technology, flexible working understanding gains increasing importance within the scope of economic interests.

In many workplaces and lines of work, the obligation of workers to be in the workplace is disappearing as a result of technological developments.

In addition, if the employers want to get rid of the burden of determining a workplace and paying the necessary expenses of the workplace, and

if some, if not all, of the workers have the opportunity to work outside the workplace, it is possible to get rid of various costs (Emine and Senyen, 2019). However, as these changes go beyond the basic concepts of labor law, some new regulations were needed. In this context, the Law on Amendment of the Labor Law No. 6715 and the Law on the Turkish Employment Organization and Article 14 of the Labor Law No. 4857 titled Working On-Call have been changed to Work on Call and Remote Work. With these changes, remote working has been regulated as an atypical type of work and remote working is accepted as a supreme concept (Gözdenur, 2020; Özdemir, Case; Employer’s Obligations Regarding Occupational Health and Safety in Distance Working..., 2016).

In the justification of Article 14 of the Law No. 6715, it is aimed to adapt the labor legislation to the changing economic conditions, and in this context, working from home and telework are gathered under the concept of remote working (Arzu, 2016).

Turkish Code of Obligations Art.461 et al. Telework concept, which is applied within the scope of home-work and home-work, has also been arranged as forms of work that include work done without direct supervision of the employer.

One of the employer’s debts is the duty of taking care of the worker. The workplace refers to the field of application of the work in terms of labor law.

The legislator acknowledges that the workplace is organized with material and non-material elements only for the purpose of producing goods or services, but also add-ons and tools are within the scope of the business organization. If the employer finds it appropriate for the employee to work at home or in a place other than the workplace, that place is considered within the scope of the work organization.

According to the definition made in the law, remote work is a business relationship established in writing based on the principle that the worker performs his / her job at home or outside the workplace with technological communication tools within the scope of the work organization created by the employer.

Employers may request to work remotely, as well as employers may want to switch to a remote work system.

The arrangements to be made regarding the place of remote work should be completed before the start of the work and the method of meeting the costs should be determined (Rasul, 2021).

According to the provisions of the Regulation, the method of covering the expenses such as electricity, water, internet usage, which are considered as compulsory expenses, is determined jointly by the employer and the employee (Şeker, et al., 2021).

After it is decided to work remotely, the time interval and duration of the work must be specified in the employment contract.

Within the scope of the employer’s right of management, it is also possible to change the working hours and durations by notifying the employee in writing, but it is claimed that the record regarding this issue should be included in the contract.

The teleworking contract should include the description of the job, the method of performing the work, the method of payment of wages and wages, and the conditions for the protection of equipment and equipment to be provided by the employer.

In the Covid-19 process, there have been many workplaces that have switched from home to work. In this context, the efforts of the employer and the worker are important for the continuation of the employment contract. Workers with the opportunity to work remotely should continue to be paid (Yasemin, 2020).

Liabilities of the employer arising from occupational health and safety in the remote work system

Occupational health and safety regulations were needed due to the aim of preventing the accident, rather than compensating for serious injuries and deaths as a result of work accidents and the damage caused after the accident.

In a narrow sense, occupational health and safety refers to the protection of the health and integrity of the worker within the boundaries of the workplace and therefore against the dangers arising from the execution of the work, while occupational health and safety in a broad sense is the possibility of affecting the health and safety of the worker in relation to the execution of the work, not only in the workplace but outside the workplace. It states that measures should be taken against any negative risks found (Ercan, 2018).

Various obligations have been imposed on the employer by regulating the Occupational Health and Safety Law No. 6331. While determining the

limit of the employer’s obligation to ensure occupational health and safety within the scope of occupational health and safety, the criterion of doing everything necessary was taken as a basis (Kılkış, 2018).

In this context, what obligations the employer has in the remote working system will be examined in terms of our subject.

The measures taken within the scope of occupational health and safety aim to eliminate occupational accidents and occupational diseases firstly, and to reduce them as much as possible when they cannot be removed.

The workplace concept, which is important in terms of work accidents, is also important in terms of the place where remote work is performed. The accident that occurs during the execution of the work is regarded as a work accident, rather than whether the place of work is considered a workplace or not (Kübra, 2016).

In studies involving hazardous chemicals and radioactive materials, remote work will not be possible in cases where there is a risk of processing these materials, working with material wastes and exposure to biological factors (Ersun, 2016). Again, in accordance with Article 13 of the Regulation, the works carried out by public institutions and organizations through the service procurement according to the relevant legislation and the unit, project, facility or service in which units, projects, facilities or services that have strategic importance in terms of national security cannot work remotely, and determined by their organizations.

Characteristics of occupational health and safety obligations in remote work and the covid-19 outbreak

Business areas have also been under various threats due to the Covid-19 virus, which is spreading rapidly in the world and in our country and threatening life. Due to the measures taken in this context, remote working system has become inevitable.

Especially for reasons arising from the nature of the work, it has become almost mandatory to implement the remote working system in work branches that do not directly depend on the production of goods and the employee’s presence in the workplace (Ender, 2021).

In the telework system, the employment contract should include the description of the job, the way it is done, the duration and place, the price, the equipment that should be provided by the employer and the protection of

these equipment, the communication of the employer with the employee and other working conditions.

In the telework system, workers cannot be treated separately from other workers unless there is a substantial reason.

The employer should take occupational health and safety measures, inform the employee about this, take health surveillance and necessary safety measures, taking into account the work carried out by the employee who is in a remote working relationship.

Due to Covid-19, a permanent or temporary remote working system may be preferred in terms of existing business contracts.

In this respect, a protocol between the parties is considered sufficient. In order to switch to the remote working system, first of all, the parties must agree on this issue. The employer cannot make remote work compulsory unilaterally. Again, the additional expenses and expenses arising from the transition to remote work are paid by the employer as a rule.

However, with the regulation made as a result of the impact of the disease on the business life due to the Covid-19 epidemic, it can be argued that the approval or consent of the worker will not be sought for the transition to remote work if remote work is to be applied in the whole or part of the workplace due to compelling reasons specified in the legislation. However, the employer may unilaterally change the working conditions, provided that the obligation to monitor the health of the worker during the Covid-19 epidemic, which is based on health reasons, is decided to temporarily work remotely, and that the worker does not aggravate the working conditions.

There is no explicit definition of force majeure or compelling reason in the law. In our opinion, epidemic disease should be accepted as a compelling cause.

Therefore, the request or approval of the worker will not be required to switch to remote work due to the Covid-19 epidemic or compelling reasons specified in the legislation.

In addition, although there is an impression that a contract should be made in the form of permanent work in a workplace or working remotely in the Regulation regulation, in our opinion, there is no obstacle to the transition of some of the workers to the remote working model, so an additional protocol can be prepared in the mixed working model. On the other hand, teleworking is not considered as a fixed-term employment contract in practice.

Employers should be given occupational health and safety training, reporting possible risks, and regular health checks for workers who have started to work remotely. With the application of the remote working system, it is not possible to reduce the wage of the worker or to cut the wage.

With the widespread use of the remote working system becoming mandatory, the Remote Working Regulation was also published on March 10, 2021, and the procedures and principles of remote work were wanted to be determined (Demir, 2019).

The employer’s obligation to take all necessary precautions is the first condition in terms of occupational health and safety. In this context, it is seen that the employer is obliged to take all occupational health and safety measures that can be expected from him in fairness and must comply with this rule for all workers without discrimination, in accordance with Article 4/1-a of Law No. 6331. Another obligation of the employer is to make a risk assessment.

Although there is no clear regulation for the remote working system, the employer should make a risk assessment with questions such as which hazard class the work is in, and take preventive measures.

Because, with the risk assessment, the danger factors at the place of work can be determined by the employer and the risks arising from these factors can be analyzed. If the risk is unavoidable, it is aimed to be minimized. In order to make a risk assessment, first of all, the hazard class in which the workplace is located must be determined.

Another obligation of the employer within the scope of the Law No. 6331 is to check whether the occupational health and safety measures taken at the workplace are implemented.

As in the main workplace, the necessary supervision should be made by the employer in places where remote work is performed. However, various issues may hinder the actual performance of the inspection here. For example, if working at home is in question, the violation of dwelling immunity is the first to come across. In this case, the employer can only fulfill the inspection obligation with the permission of the worker.

In case of telework, specific supervision arrangements are included in the Telework Agreement. According to the agreement, in order to ensure the correct implementation of occupational health and safety regulations, the employer and authorized persons may inspect the place where telework is performed within the limits set by the legislation. If the worker is doing

telework at home, then the employer’s prior notification and the worker’s consent will be sought.

Another obstacle of control, other than the immunity of housing, is the privacy of the worker and the interference with his private life. Accordingly, the employer should protect and respect the personality and private life of the employee and act in accordance with the principle of honesty.

In the case of teleworking, the employer has the right to check whether the work-specific devices such as telephones and computers are suitable for the purpose of the work.

The employer is also obliged to inform the workers against possible occupational health and safety risks in the workplace in accordance with the article 4/1-a of the Law No. 6331. In cases of remote work, the employer should inform the worker about the machinery and equipment used by the worker (Gamze, 2020).

It is also necessary to provide the necessary training on the use of the mentioned machinery and equipment. In addition to the tools to be used by the worker, it is the employer’s obligation to provide occupational health and safety training. In the Covid-19 period, if the employer does not have the opportunity to obtain written approval from the workers about the conditions of remote working conditions, it will fulfill the notification obligation by sending the conditions to the e-mail addresses of the workers.

The determination and follow-up of whether the health status of the worker is suitable for the job and whether the worker’s health will be endangered due to the work is also included among the obligations of the employer in accordance with the Law No. 6331.

In this context, the employer is required to establish an organization related to occupational health and safety, in other words, to employ a workplace doctor and health personnel or to get support from third parties who do this job (Yücesoy, 2020).

If it is a matter of working remotely, it will be difficult for the employer to track whether the worker has a professional illness as long as he is away from him. In this context, the employer can request a regular health report from the employee.

In these days when the Covid-19 epidemic seriously threatened our health and business areas, various measures have been required, reaching

up to the curfew. According to the 13th article of the Law No. 6331, in case of a serious and imminent danger, workers can apply to the workplace occupational health and safety board or, if there is no board, the employer to determine the situation and request the necessary measures to be taken.

In this case, the board should convene urgently, and if the committee is not present, the employer should immediately determine the situation by keeping a report. The decision is notified to the workers in writing. If a decision is made on the demand of the workers, the workers may avoid working until the necessary measures are taken.

During this period when the right to abstain from work is exercised, the rights arising from the law and the employment contract are reserved. If the danger is serious and imminent or unavoidable, they may leave the workplace or dangerous area without notice. The rights of the workers cannot be restricted as a result of these movements. In case the necessary measures are not taken against the Covid-19 epidemic, workers can request the employer to take the necessary measures, if the necessary measures are not taken, they can avoid working and gain rights to wages and other legal rights during the period of avoidance of work.

Working together by workers due to epidemic disease can be life-threatening. For this reason, remote work can be extremely beneficial if there is the possibility of preventing the possibility of transmission of the epidemic disease, the importance of social isolation and the possibility of doing the work outside the workplace.

On the other hand, for employees in some risk groups, the application of alternative working methods such as remote work is also a requirement of the employer’s oversight debt.

It is controversial whether the employees have an accident while working at home in the remote working system, whether this accident can be considered as a work accident. If an accident occurs due to the work done and during the performance of the work, this accident can be considered as a work accident even at home.

Therefore, it is important to inform those who work remotely or from home about occupational health and safety. Care should be taken that there is no matter in the working environment that will endanger the health and safety of the work and the worker, the supervision of the working environment and the suitability for the job should be ensured.

Conclusion

In the developing and changing world, various alternative working methods were needed as a result of technological developments, economic benefits, and the need to carry out the business in a healthy way with the goals of employers to reduce costs.

The remote working system is one of these alternative methods. In the Labor Law numbered 4857, it was emphasized that the work can be performed outside of the workplace by including the definition of working remotely. In cases where remote working methods are adopted, the issue of occupational health and safety has a significant place in terms of both the employee and the employer.

Again, in the Labor Law numbered 4857, the employer has the obligations to take into account the nature of the work of the employee with whom he / she works remotely, to inform the worker about occupational health and safety, to provide the necessary training, to provide health surveillance and to take the necessary measures regarding the equipment provided.

The Occupational Health and Safety Law No. 6331, which is the basic regulation on occupational health and safety, determined the obligations of the employer and underlined the importance of supervising the worker and protecting his health in this context.

Remote working systems have become much more widespread and inevitable these days when we are struggling with the pandemic. The Covid-19 outbreak has made remote working systems mandatory in some business lines, and essentially, remote working emerges as an atypical way of working.

The remote working system, the basic regulation of which is included in the Labor Law, can be applied in various ways. The Remote Working Regulation was published on March 10, 2021, with the aim of preventing problems arising in the applicability of remote working systems that became widespread in the Covid-19 period. In this Regulation, the general framework of the procedures and principles of remote working has been established.

Especially the Covid-19 epidemic has also increased the importance of working remotely, with the changing conditions and the effect of developing technology, and the flexible working understanding.

In many workplaces and lines of work, there is no obligation for workers to be present in the workplace. Also, employers’ desire to get away from

various costs has made working remotely preferable. Telework can also be accomplished in ways called home work or telework. For example, face-toface education, which has been interrupted today due to the epidemic, continues as working at home.

One of the employer’s obligations in the workplace, which can be considered as basic in terms of occupational health and safety, is the duty of observing the worker.

If the Covid-19 epidemic reaches dimensions that threaten the general health in the workplace and the nature of the job does not have to stop at the workplace itself, then working remotely will become a necessity rather than a choice.

The concept of the workplace should not be interpreted narrowly, and every place where the work is carried out within the scope of the business organization should be considered as a part of the workplace.

Therefore, within the scope of the business organization, the home or places used outside the workplace with the help of technological devices are included in the business relationship. The remote working system can be switched from the normal employment contract, or a contract can be made in the form of remote work from the beginning. Again, remote work can be requested by the employee or employer. If the remote working system is preferred, the time interval and duration of the work must be specified in the employment contract.

In the employment contract in which remote work is adopted, the description of the work, the way of performing the work, the issues related to the wage, the equipment to be provided by the employer for the execution of the work and the conditions regarding the protection of these equipment should be included. If the employee working at the workplace switches to the remote working system, the wage continues to be paid. Remote work can be applied temporarily when necessary, or there is no obstacle in choosing it permanently.

Choosing the remote working system does not eliminate the employer’s obligations arising from occupational health and safety. In terms of occupational health and safety, the employer’s doing everything necessary is taken as a measure. The aim is to eliminate occupational accidents and diseases completely, and when it is not possible, possible risks should be minimized.

The workplace concept, which is also important in terms of work accidents, also applies to the place where remote work is performed. The accident that occurs during the execution of the work is accepted as a work accident.

The situations where remote work cannot be performed are also specified in the Regulation, and it has been stated that remote work cannot be performed if these substances are processed in work areas where dangerous chemical and radioactive materials are used, or if there is a risk of exposure to material wastes or biological factors.

In the process of the Covid-19 epidemic, working remotely has been a savior, especially in business lines where the worker is not required to be at the workplace due to the nature of the job.

Because, workers working remotely cannot be treated differently from other workers due to the principle of equality. It also affects the reduction of the transmission rate of the epidemic. With the contract to be made between the employee and the employer during the epidemic, remote working may be temporary, there is no obstacle to its permanent implementation. As a rule, the remote working system is dependent on the agreement of the parties.

However, in case of compelling reasons, it can be argued that it is not necessary to obtain the consent or consent of the worker in switching to the remote working system. The point to be considered here is that within the scope of occupational health and safety, within the scope of the obligation to monitor the health of the worker, the temporary applicable nature of working remotely and the worker’s working conditions are not aggravated.

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7. Gülmez, Cihan L .; Telecommuting During Economic Recession, HR Magazine, January 2019, https://hrdergi.com/ekonomik-daralma-donemlarda- remote-calisma. 8. Kaplan, Emine Tuncay Senyen; Individual Business Law, Ankara: Gazi Bookstore, 2019. 9. Sword, Gözdenur; The Difference of Telework and Working from Home as a Type of

Remote Work, Terazi Hukuk Dergisi, Vol: 15, Issue: 164, April 2020. 10. Kılkış, İlknur; Occupational Health and Safety, Bursa: Dora Publications, 2018. 11. Kuban, Arzu; The Concept of Worker in Terms of New Types of Employment, Problems

Regarding Labor Law and Solution Proposals, Galatasaray University Publications, 1997, Istanbul. 12. Kurt, Rasul; Labor and Social Security Law in the Process of Coronavirus (Covid-19) in 250 Questions, Ankara: Seçkin Yayıncılık, 2021. 13. Özdemir, Case; Employer’s Obligations Regarding Occupational Health and Safety in

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Covid-19, 2020, https://aksan.av.tr/tr/blog/detail/1069. 16. Yücesoy, Yasemin; Short Work in Turkish Labor Law and Other Legal Institutions Applied in Case of Epidemic Disease, Ankara: Adalet Yayınevi, 2020. 17. https://www.resmigazete.gov.tr/eskiler/2021/03/20210310-2.htm. 18. https://www.tuhis.org.tr/upload/dergi/1349179482.pdf. 19. https://offcampus.anadolu.edu.tr:2081/ictihat/yargitay/hukuk-genel-kurulu-e-2015139-k-2018-316-t-21-2-2018.

EMPLOYERS’ OBLIGATIONS IN TURKISH OCCUPATIONAL HEALTH AND SAFETY

Emre Çiloğlu & Ferdi Yıldırım & Nisa Nur Altun

Anadolu University, Turkey

Annotation

In the period since the industrial revolution, with the evolution of production and stages, occupational accidents and occupational diseases have changed noticeably and become serious social problems. With the evolution of the mechanization and production stages, it has become inevitable to take security measures to prevent these problems from occurring. With the Occupational Health and Safety Law No. 6331 in line with the Council Directive no. 89/391/EEC issued by the European Union in Turkey, measures to improve the health and safety of employees have been answered and systematized for the first time. While most of the law constitutes the obligations of the employer, the general obligations of the employer are regulated in Article 4. Although it will not be able to fill all the gaps, the obligations of the employer are clearly stated, and the remaining issues are removed and left to the regulations to be issued. In cases where the employer does not meet its occupational health and obligations, the legislator foresees some sanctions for the employer and has granted the employee some rights. In cases where a healthy and safe environment cannot be provided in the employee workplace, the employee will be able to exercise his rights to refrain from working and terminate the employment contract according to the conditions of the law to which he/she is affiliated. In this study, the concept of occupational health and safety is explained, and the general obligations of the employer will be evaluated within the framework of the Occupational Health and Safety Law No. 6331.

Key words: Occupational Health and Safety, Employer Obligations, Termination, Avoidance

Introduction

The concept of occupational health and safety has been in a movement since the day people needed to work. This deviation is the evolution of the way historical developments are produced. The differentiation of the work has been carried out since hunter-gatherer societies. The change of the tools used undoubtedly revealed the necessity of health and safety measures of

the one who did this work, and especially the situation of the workers who lost their bodily integrity because of the work accidents that occurred after the industrial revolution and as a result lost all or part of the workforce permanently, revealed the need to define these two concepts.

Council Directive 89/391/EEC issued by the European Union on Measures to Improve Employees’ Health and Safety is among the essential documents of occupational health and safety in the EU. This directive approaches the field of occupational health and safety with the principle of “common responsibility”. When we look at Turkey, there is an understanding based on the principle of shared responsibility. In other words, both the employee and the employer are burdened with guilt, and both are included in this process.

Historical Development of Occupational

Health and Business Security

To understand the two concepts mentioned more clearly, the chronological analysis of the worker who is in the construction process of the work and who will reveal his/her labor should be analyzed in this historical process.

With the introduction of settled life, the beginning of a remarkable transformation in working life was made. Imhotep, an architect, and engineer who lived in 2600 BC, was the first person to point out the problems people faced with the health problems they experienced in relation to their work. In ancient Greece, Heredot emphasized employees’ need to be fed highenergy nutrients and that their work could harm employees in Hippocrates (Yigit, 2011). Following previous scientific developments, Dr Bernardino Ramazzini wrote about occupational diseases with his book “De Morbis Artificum Diatriba” and wrote about preventive safety measures on preventing occupational diseases and was recognized as the founder of the concept of occupational health with this work. With this work, he introduced the concept of ergonomics and expressed, for the first time, the effects of work and worker cohesion on the health of the employee (Gerek, 2008).

While the function of production was in the hands of the ruling class under the relationship of custody, the economic and social order that existed with the industrial revolution collapsed and the so-called capitalism; A new order has been formed in which labor is presented to the mechanism called the market and strives to sustain its life.

During the industrial revolution, which first occurred in England in the 18th century, the risks and accidents caused by the work carried out due to mechanization, brought some health and safety problems. This was reflected in the British Parliament in the form of the Chimney Sweeps Act of 1788, the Health and Morals of Apprentices act of 1802, and the “10 Hours Act” enacted in 1847 (Cetindag, 2010). These regulations in England are also modelled within Europe: Germany enacted provisions on occupational health and safety in 1849, Switzerland in 1840 and France in 1842 (Gençler, 2007). In the United States, Alice Hamilton’s work in 1919 and Alexander Semashko’s work in the USSR came to the fore (Fisek, A.G., 2014). In addition to all these national-scale studies, the International Labor Organization (ILO), founded in 1919, has also started to participate in the international field (History of the ILO, 2021). The ILO, which has become an independent specialist organization, has also researched the name of healthy and efficient work with changes in legal legislation.

Historical Development of Occupational Health and Safety in Turkey

It is seen that industrialization breakthroughs started with the Republican period, and therefore occupational health and intensive safety arrangements were made. The Labor Law No. 3008, dated 1936, which is the first labor law in Turkey to regulate the subject of work fully, has also introduced occupational health and safety regulations. Multiple statutes have been issued for its implementation. In 1945, the Labor Insurance Institution No. 4792 and the Occupational Accidents, Occupational Diseases and Maternity Insurance Law No. 4772 were enacted. These scattered insurance practices were collected under one subject in 1964 with the Social Insurance Law No. 506. In the same year, the Occupational Health and Safety Inspectorate Organization and the Occupational Health and Safety Center were established. For those who are subject to different social security laws, the Social Insurance and General Health Insurance Law No. 5510 came into force gradually in 2008. In place of Labor Law No. 3008, the new Labor Law no. 1475 dated 1971 has come into force. Unlike the previous labor law, Labor Law No. 1475, which is then fed by statutes and regulations on occupational health and safety, has more modern and detailed regulations. However, this law was introduced in 2003 with the Labor Law No. 4857 in the European

Union harmonization process and many regulations were issued in addition to this newly enacted law (List of Legislation of MINISTRY OF FAMILY, 2021). On June 29, 2012, occupational health and safety legislation in our country is equipped with modern provisions with the adoption of the Occupational Health and Safety Law No. 6331 and the implementation of its regulations as of January 1, 2013.

“These regulations are criticized for their direct translation from European Union norms, and it is stated that it would be more accurate to issue regulations that are in accordance with the country’s own internal conditions and comprehensively regulated (Süzek, 2011).”

General obligations of the employer

Occupational Safety and Health Law No. 6331 Article 4 regulates some obligations of the employer under the heading ‘employer’s general obligation’, but many issues related to both general obligations and other obligations have been raised or left to the Regulations to be issued.” It is possible to say that the obligations of the employer are embodied by the law in question. It is clearly stated in the first paragraph of OHS Article 4 that the main responsibility in the field of occupational health and safety is placed on the employer. The employer has some debts arising from the employment contract against its employees. These debts are a wide-ranging debt with no concrete limits, which refers to the protection of the interests of the worker and the avoidance of situations and behaviors that may harm the worker, taking into account the employer’s obligation of care, honesty and goodwill rules. In addition, turkish debts law Article 417 is the norm that regulates the employer’s obligation to protect the employee in general under the heading ‘Protection of the personality of the worker’, and in the second paragraph the employer is obliged to take all measures to create a healthy and safe working environment in the workplace and to have the work tools and equipment in full. “Receiving services from specialists and organizations outside the workplace does not eliminate the responsibilities of the employer.” (OHS Article 4/2) The obligations contained in the law are placed on the employer, so the responsibility will be the employer’s.” Finally, employees’ obligations under occupational health and safety will not affect the employer’s responsibilities. (OHS Article 4/3) In accordance with OHS Article 4/4, the employer cannot reflect the cost of occupational health and safety measures to employees. In

other words, the expenditures made or to be made related to occupational health and safety belong to the employer.

Employer is the 12th, 15th, 17th, 49th, 50th, 56th and 60th amendments of the Constitution. It is obliged to comply with the articles and related clauses, Articles 2 and 3 of the Civil Code, Articles 19, 20, 332 of the Law on Debts, all other laws, statutes, and regulations related to the Law No. 6331. In OHS Articles 4/1-a, it is stated that employers are obliged to take ‘all necessary measures’, including the prevention of occupational risks, training, and information. In addition to the measures mentioned in the legislation, the employer should follow the innovations and developments required by science and technology and take all kinds of measures, even if they are not written. “These measures are sufficient to be reasonably enforceable to ensure a safe and healthy workplace (Caniklioglu, 2012). “ The Supreme Court said, ‘The regulation in question is based on the need to supervise the worker and protect human life as a superior value; it is imperative that the measures to be taken not only with the measures stipulated in the legislation, but also in accordance with the stage reached by scientific and technological development, should be taken by the employer (Y10HD, 2008).”

In English law, the employer’s obligation to take measures is limited to “reasonable measures” (Health and Safety at Work etc., Act 1974).

Obligation to Conduct a Risk Assessment

According to OHS Article 4/1-c, the employer is obliged to ensure the health and safety of employees related to work, but accordingly, it conducts or has a risk assessment. Definitions of the concepts of ‘risk’ and ‘risk assessment’ were made in OHS Article 3 and ‘Occupational Health and Safety Risk Assessment Regulation Article 4. “Accordingly, the risk may result from loss of danger, injury or other harmful consequences; risk assessment refers to the work that needs to be done to identify existing or external hazards in the workplace, to analyze and rate the risks arising from the risks leading to the transformation of these hazards into risks, and to decide on control measures.”

Obligation to Consider Suitability for Work

According to OHS Article 4/1-ç, the employer is obliged to consider the employee’s suitability for the job in terms of health and safety when assigning duties to the employee. The employer, who is prohibited from discrimi-

nating in the business relationship based on language, religion and sect, race, color, gender, philosophical belief, political opinion, and similar reasons, should look at the age, education, health status of the employee and place him in the most appropriate job position. Uncertified workers should not be employed in jobs that require certification. According to OHS Article 4/1-d, the employer should take the necessary measures to prevent employees from entering places where there is a life and special danger, except for those who have been given adequate information and instructions. Employees who know these measures should not enter these areas without the instruction of the employer.

Effect of employer’s non-compliance with occupational health and safety obligations on business relations

Working in a healthy and safely dangerous work circle causes workers to work peacefully in good physical and mental condition, as well as helping them to thrive, and benefiting the enterprise by working more efficiently. Because unless the mental and physical integrity of the employees in the workplace is protected, the negative repercussions of this will affect the enterprises financially and spiritually in the long term, and the work done without ensuring production safety in the workplace will lead to a decrease in productivity (Guzel, 2011). As you can see, it will be to his detriment if the employer does not fulfill its obligations. With the Occupational Health and Safety Law No. 6331, all obligations imposed on employers are brought in to ensure the right to occupational health and safety of employees (Baycık Gaye, 2013). As explained in the previous sections, the employer has the obligations to take all measures, to prevent risks, to provide training, to organize, to provide the necessary tools and equipment, to bring health and safety measures into line with changing conditions and to improve the current situation, to monitor, supervise and nonconformities, to carry out risk assessments, to take into account compliance with work, to take the necessary measures to avoid entering places where there is a life and special danger. In addition, sanctions are stipulated by the administration for obligations that the employer does not fulfill.

To prevent occupational accidents and occupational diseases, this legislation should be applied in the most effective way by all actors in occupational health and safety, except to renew and enact the legislation. The

legislator gave workers certain rights to implement this, while imposing various sanctions on the employer.

Conclusion

Occupational accidents and occupational diseases are a big problem for all countries in the world. The reason for this problem is the failure to comply with occupational health and safety obligations. Millions of employees die due to heavy work accidents and occupational diseases. Everyone has the right to work in a healthy and safe environment. It is also a requirement of the right to life, which is regulated in Article 17 of the Turkish Constitution. Occupational health and safety concept is systemic studies to protect employees from the dangers that may arise due to the construction of work in the workplace, to improve working conditions in the workplace and to create a prosperous working environment for the employee. Although the leading actor in occupational health and safety obligations appears to be the employer, some obligations arise of employees and the state.

In recent years, numerous regulations have been made on occupational health and safety in line with the European Union Harmonization process. In particular, the Occupational Health and Safety Law No. 6331 and the regulations issued within the framework of these laws have a lot of importance in this field, which is revealed by the Council Directive no. 89/391/EEC issued by the European Union and the Council Directive on Taking Measures to Improve the Health and Safety of Employees. It is also seen that most of the Law is formed in the obligations of the employer. All jobs and workplaces, employers and employer representatives of these workplaces, all employees, including apprentices and interns, were evaluated within the scope of the law by not discriminating publicly and privately. In the law, it is stated that the employer is obliged to ensure the health and safety of the employees related to the work and will work to organize within this framework, to provide the necessary tools and equipment, to make the health and safety measures in accordance with changing conditions and to improve the current situation. On the other hand, the employer will monitor, supervise, and ensure that the occupational health and safety measures taken in the workplace are observed and that nonconformity is eliminated. It will carry out or carry out risk assessments to determine the dangers that exist in the workplace or may come from outside and to decide on control measures. When

assigning the employee, he/she will consider the employee’s suitability for the job in terms of health and safety; will take the necessary measures to ensure that employees other than those who are given sufficient information and instructions do not enter places where there is a life and special danger. To provide occupational health and safety services, it will be obliged to have an occupational safety specialist and workplace physician and will create the necessary organization. Thus, it will be tried to prevent deaths and injuries caused by occupational accidents, minimize them, and reduce the rate of occupational disease, and establish a healthy and safe working environment.

In cases where the employer does not meet its occupational health and obligations, the legislator foresees some sanctions for the employer and has granted the employee some rights. Accordingly, the employee will be able to exercise these rights in cases where a healthy and safe environment cannot be provided in the workplace. One of these rights is the right to terminate employment contracts. Employees with employment contracts can terminate their employment contracts according to the provisions of the law to which they are affiliated in cases where necessary measures are not taken despite their demands. (HSC. 13/4). Another right is the right to avoid working. This right, regulated by Article 13 of the Occupational Health and Safety Act, allows the employee to refrain from working if the employer does not comply with occupational health and obligations. When using this right, the conditions in the provisions of the law to which the employee is affiliated will be complied with.

In both the Debts Law No. 6098 and the Provisions of the Occupational Health and Safety Law 6331; it is stated that employers are obliged to take “all kinds” measures necessary to ensure occupational health and safety in the workplace, and it is seen that the measures to be taken on occupational health and safety are not only legal regulations, but that employers are obliged and therefore held accountable even in matters that are not regulated by law.

Finally, it is worth noting that the realization of occupational health and safety in the society will be primarily through the formation of “occupational health and safety awareness”. Whether it’s new laws or tough sanctions, without that awareness, the law can’t set its own purpose and remains on paper. The realization of the purpose of the laws in force is only with a

mature occupational health and safety awareness to be established in the society. In this consciousness, the employee, and the state, especially the employer, must fulfill their role properly.

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Aktüel Publications.

VIOLATION OF WOMEN’S RIGHTS AND PROBLEMS OF THESE RIGHTS’ IMPLEMENTATION IN LABOR RELATIONS

Dalia Perkumienė, Olegas Beriozovas, Aistė Lukšaitė

Kazimieras Simonavičius University (Lithuania)

Annotation

Gender inequality in employment is a complex phenomenon that can be observed in organizational structures, work processes and practice. For women, some harmful conditions of gender inequality are embedded in human resource practices. This is because human resource practices i.e., policies, decision-making and their implementation have an impact on women’s employment, training, pay, as well as promotion. It should be noted that this is a global problem, as equal rights, and opportunities for both sexes have not been fully and comprehensively implemented either in Lithuania or in many other countries. It should be noted that in 1998 Lithuania was one of the first in Eastern and Central Europe to adopt the Law on Equal Opportunities for Women and Men.

Key words: gender inequality, an employment, women’s rights, labor legal relations.

Introduction

The analyzed topic is especially relevant, as the number of violations of women’s rights in labor relations is increasing in Lithuania. According to the Special Investigation Service, there is an increasing number of cases of such offenses with signs of discrimination. However, political confidence in Lithuania remains relatively low due to the democratic deficit: democracy is not yet rooted enough to give the public absolute confidence in state institutions, and state institutions themselves do not function in a way that promotes trust in them. All this creates a negative image of the Lithuanian work environment. Some employment authorities are passive in responding to this situation and are not looking for solutions to prevent this phenomenon. There is currently no system in place to reveal or recommend the most effective methods of combating discrimination in employment. In Lithuania, the number of violations of women’s rights in labor relations is increasing. According to the Special Investigation Service, there is an increasing num-

ber of cases of such offenses with signs of discrimination. However, political confidence in Lithuania remains relatively low due to the democratic deficit: democracy is not yet rooted enough to give the public absolute confidence in state institutions, and state institutions themselves do not function in a way that promotes trust in them. All this creates a negative image of the Lithuanian work environment (Blažienė, et al., 2019). Some employment authorities are passive in responding to this situation and are not looking for solutions to prevent this phenomenon. There is currently no system in place to reveal or recommend the most effective methods of combating discrimination in employment. Women’s rights are most often violated in employment. In specific cases, it is more difficult for women to access company management positions and to see the existing minority of women in management positions and the apparent dominance of men in top business positions (Novelskaitė, 2019). One of the reasons for the representation of women in employment is the persistence of gender discrimination, which has been abolished by decisions taken in the Member States and the European Union institutions which help to achieve gender equality.

Although various measures are being taken, both at legislative and political level, to increase women‘s participation in as wide a range of areas as possible, while at the same time reducing discrimination and exclusion, discrimination against women is quite common. It should be noted that this is a global problem that is not unique to Lithuania, as equal rights, and opportunities for both sexes have not been fully implemented. It should be noted that in 1998 Lithuania was one of the first in Eastern and Central Europe to adopt the Law on Equal Opportunities for Women and Men (Lithuanian Center for Human Rights, 2004).

Research object. Violations of women ‘s rights in employment relations.

The aim. Analyze the legal acts ensuring women’s rights and identify areas for improvement in the fight against of women’s rights violations in labor relations.

Results

Different physical data of men and women affect the importance of social and cultural society and lead to a hierarchical relationship between men and women, as well as a distribution of power and rights that is more often more favorable to men. The different social status of women and men

is influenced by economic, political, social, cultural, religious, ideological, and environmental factors. It should be noted that gender structures are dynamic and change over time and may vary across cultures. For example, the role of women in most traditional societies was to take care of the household and children, and the duty of men was to provide for the family while working outside the home. In most societies, this traditional perception of the roles of women and men has changed and continues to change. Violations of women’s rights are a common societal problem that has existed since the earliest times of human development. Violations of women’s rights are encountered in various areas of life. Probably the biggest problem of discrimination against women arises in employment.

Regarding the grounds for discrimination, the current legislation emphasizes the various grounds for discrimination against individuals: race and ethnic origin, sex, as well as age, and disability, including discrimination based on sexual orientation, religion, or belief (Janušauskienė, 2019).

All women have the right to decent working conditions, fair pay and work without discrimination. This is guaranteed by the International Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). This Convention obliges States Parties to ensure that: “all appropriate measures to eliminate discrimination against women in the field of employment”. Under the specific protection provided by CEDAW, both men and women have equal rights to employment, social security, and paid leave (CEDAW, 2021).

The term gender equality can be used to perpetuate stereotypes about the role of women in society, to suggest that women are treated “fairly”, according to their roles, and to perpetuate gender stereotypes that are harmful to women (Mažuolienė, 2020). In its general recommendations and concluding remarks, to ensure gender equality, the Committee on the Elimination of Discrimination against Women noted that the Parties must properly interpret and use the concepts of equality between women and men or gender equality. The legal term gender equality must be used in accordance with the Convention and cannot be replaced by the concept of equality, which is determined by subjective criteria (Equity and Non-Discrimination Working Group…, 2021).

Gender equality does not mean that men and women are equal or must become equal, or that all labor market measures must achieve the same re-

sults (Grigužauskaitė S., Skučienė, et. al., 2019). In the context of work, gender equality includes equal opportunities and equal pay, access to a safe and healthy working environment, equality in associations and collective bargaining, equality for meaningful career development, maternity protection, and a fair work-life balance for both men and women (ABC of women workers’ rights and gender equality…, 2021).

Non-discrimination against women is also addressed by the Human Rights Committee in its General Comment no. 18 (1989) on non-discrimination and the Committee on Economic, Social and Cultural Rights in its general remarks no. 16 (2005) on equal rights for men and women to enjoy all economic, social and cultural rights and 20 (2009) on non-discrimination in economic, social and cultural rights also reaffirm the same principle of material equality, guaranteeing non-discrimination and equal access for men and women. civil, economic, social, and cultural rights (Committee on Economic, Social and Cultural Rights…, 2021).

Researchers explain the gap between men and women salaries for a variety of reasons: starting in different industries where women and men work, racist recruitment and discriminatory promotion practices, mismatching hours worked, lack of work experience. Governments in various countries also do not promote policies to increase support for women in the workplace and in institutions such as schools. For example, systematic discrimination against working women in the U.S. has created a rather disadvantage for working women since the country was founded. The colonies passed laws that prevented workers from retaining control of their wages even in 1769. Due to the lack of suffrage, women could not vote until 1920. A lower minimum wage was also set for women and men, even if women did the same job. In addition, women continue to experience sexual harassment and assault in the workplace as they have throughout American history (History of women in the workplace…, 2021).

Discrimination against women in employment quite often has a negative impact on women’s earnings and opportunities, as well as a noticeable lack of women in management positions, women need more time to pursue a career (Eagly, et. al. 2007). In other words, discrimination in the workplace contributes to the lower socio-economic situation of women. Such discrimination against women can often be linked to human resources (HR) policy and human resource decision-making. In addition, when employees may

experience personal discrimination when sexist comments are made. Both the objective shortcomings of lower pay, status and opportunities at work, and the subjective experience of stigmatization, affect women’s psychological and physical stress, mental and physical health, job satisfaction and organizational commitments, and ultimately their performance (Blau, et. al., 2007).

Discrimination can be ‘direct’, where a person is sexually discriminated against, or manifestly neutral, or also known as ‘indirect’ discrimination. Regarding employment relationships, it should be noted that there is institutional discrimination arising from labor market forces or structural employment and occupational characteristics. In most countries, modern labor inspection services are less and less perceived as ‘workplace police’, and their role is now to provide information and advice to employers and employees on the most effective way to comply with the law. Labor inspectors may have the power to refer a complaint to the relevant authorities or to initiate legal proceedings (Janušauskienė D. (2019).

Probably the main factor that causes women to experience discrimination and rights violations in employment is motherhood. Workplaces, work schedules that do not consider the family responsibilities of workers, can be considered as indirect discrimination, as they force such workers to “do not work well enough” and thus harm their career prospects. Women‘s career advancement can suffer when they take a ‚career break‘ for family care purposes longer than the statutory maternity leave or take parental leave immediately after the maternity leave (Elder et. al., 2004).

Another quite common violation of women’s rights in employment is sexual harassment. This is confirmed by statistics and reports from the Office of the Equal Opportunities Ombudsman, reflecting the number of victims of sexual harassment, which falls far short of reality, as women do not always dare to seek help for sexual harassment. legal liability measures (Čeponytė, et. al., 2018).

Another fairly common form of discrimination against women in the workplace is violence against women. The concept of violence is interpreted as any violence, both physical and psychological, that can be experienced because of gender and can result in sexual, physical, or psychological harm that causes a person pain. The concept of violence also includes threats, use of force and unlawful restriction of liberty. Discrimination at work can

be compounded by physical or psychological violence, which can be gender related (Guobaitė-Kirslienė et. al., 2020).

It should also be noted that women do not have the same access to finance, property, technology or services as men, often have relatively low levels of education and vocational training (more common in developing countries) and have to „play“ their business management and responsibilities. In many agrarian countries, women cannot own or inherit the land they farm on, cannot be self-employed as farmers, and cannot join cooperatives and credit unions. While women entrepreneurs undoubtedly face difficulties in running small and medium-sized enterprises, it should be noted that many barriers and problems are common to both sexes (Čeponytė, et. al., 2018). Workers in the informal economy are among those without social security, and women predominate in this sector. Most women in developing countries work some form of informal work. Women working in the informal economy are particularly vulnerable to several risks, due to their dual roles at work and at home, but also to greater social exclusion and difficulties in expanding social protection in a sector characterized by occupational diversity and geographical dispersion. Traditional social security mechanisms. The extent of social protection that women need must cover a wide range of issues: food, water, health care, childcare, shelter, and education. These can be small-scale social security schemes implemented through membership organizations for women. Social protection must not be a way of imposing social choices that depend on national sovereignty and individual freedom. This means, for example, that social security systems must respect the rights of women who have devoted all or part of their lives to family work rather than the commercial sector (Jhabvala, et. al., 2006).

The principle of equality between men and women and non-discrimination is characterized by the concept that all people, regardless of gender, are free to develop their personal abilities, pursue a professional career and choose without stereotypes, strict gender roles and prejudices. The concept of equality between men and women includes both formal and material equality. In the implementation of this principle, justice is considered a moral imperative, therefore the elimination of discriminatory differences is based on the criteria of fairness and justice. However, from a human rights perspective, trust in justice poses some risks, as its definition is a formative concept that is not legally binding (Albuquerque, 2012).

Equality as a fundamental human right is guaranteed in the basic law of the country. Article 29 of the Constitution of the Republic of Lithuania enshrines the principle of equality of all persons, which prohibits the granting of any more favorable treatment to persons on grounds of personal characteristics such as “sex, race, nationality, language, origin, religion, social status, personal views or beliefs”(Constitution of the Republic of Lithuania …, 1992).

Women quite often experience sexual discrimination. For example, in 2018. June 19 ECtHR Hülya EbruDemirel v. In the Turkey Hülya case, the applicant complained of sexual discrimination because she had been banned from working as a civil servant safety officer in a state-owned regional electricity distribution company. The Supreme Administrative Court had not examined its observations. The ECtHR found that the decisions of the domestic authorities constituted discriminatory treatment, as they did not provide reasons other than the applicant’s gender, which prevented her from being appointed to the post in question. The court further concluded that the Supreme Administrative Court had failed in its duty to state adequate reasons by rejecting the applicant’s request for redress, as her arguments concerning the prohibition of discrimination between men and women had not been examined by the courts. The Court found violations of Article 14 of the United Nations Convention on the Elimination of All Forms of Discrimination against Women (right to non-discrimination) in conjunction with Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (right to privacy and family life) and Article 6 (1) of the European Convention due to the fact that the decision of the Supreme Administrative Court was not sufficiently substantiated and there was no violation of Article 6 (1) due to contradictory decisions made by the Supreme Administrative Court (ECtHR case Hülya EbruDemirel v. Turkey, No. 30733/08, 19 June 2018).

ECtHR 2014 December 2 in the case of Emel Boyraz v. The applicant, a Turkish national, was appointed as a security officer for a branch of a state - owned electricity company. She worked under contract for almost three years, until 2004. March. was fired because of his gender. She was informed that she would not be appointed because she did not meet gender requirements and was required to perform military service. 2006 February. The courts dismissed Mr Boyraz’s case in the light of a previous decision of the

Supreme Administrative Court finding that the requirement of military service had shown that the relevant posts had been assigned to male candidates and that that requirement was lawful. The Court found a violation of Article 14 of the Convention (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life) and a violation of Article 6 § 1 (right to a fair trial) of excessive length of proceedings (ECtHR case of Emel Boyraz v. Turkey, No. 32, 2 December 2014).

ECtHR 23 May 2006 in Grant v Commission the United Kingdom applicant, a 68-year-old post-operative male and female transsexual, complained that her sex had not been legally recognized and that she had been refused a retirement pension, the age for other women (60). Her application was rejected because she would only be entitled to a state pension at the age of 65, i.e., upon reaching the retirement age for men. The applicant requested that her case be reopened in the light of the European Court of Human Rights’ July 11 Christine Goodwin v. the United Kingdom. 2002 September 5 The Department of Labor and Pensions refused to grant her a state pension, following a decision by Christine Goodwin. 2002 In December 2006, when the applicant reached the age of 65, her pension began to be paid. The court ruled that there had been a violation of Article 8 of the Convention (right to respect for private and family life) (ECtHR case Christine Goodwin v. United Kingdom, No. 28957/95, 11 July 2002).

Women are also discriminated against in employment because of their religious beliefs. For example, the ECtHR of 15 February 2001 in Dahlab v In Switzerland, the applicant, a primary school teacher who had converted to the Islamic faith, complained about the school authorities’ decision to ban the wearing of headgear, which was also upheld by the Federal Court. She used to wear a scarf at school for several years without causing obvious problems. The ECtHR declared this statement inadmissible (manifestly unfounded), holding that the measure was not unjustified, given that the children for whom the applicant was responsible were between four and eight years old, an age at which children were more easily affected than older pupils, therefore, the head teacher’s cover could have had a negative impact on them (ECtHR case Dahlab v. Switzerland, No. 42393/98, 15 February 2001).

Regarding religious discrimination against women, the ECtHR in 2012 July 10 Staatkundig Gereformeerde Partij v. the Netherlands, the church did

not allow women to run for office as civil servants. 2006 in June, following rulings in the District Court in Civil Proceedings, it changed its principles to allow women to become members of the party, also by not allowing them to run for public office. The Supreme Court of the Netherlands has ruled that the courts have no jurisdiction and cannot oblige the state to take specific measures, so the state itself must ensure by legal means the elimination of party discrimination based on women’s right to stand as a candidate. The court ruled that the applications were inadmissible, that the court could not dictate in its decision what the Dutch government should do given the current situation. The Court reiterated that “the promotion of gender equality is today a key objective in the member states of the Council of Europe. This means that very different reasons should be given before a difference in treatment based on sex can be considered compatible with the Convention. “ In addition, the Court found that “the promotion of gender equality in the member states of the Council of Europe prevents the state from maintaining a view of the role of men as primary and women as secondary” (ECtHR case Staatkundig Gereformeerde Partij v the Netherlands, No. 58369/10, July 2012).

Another problem faced by working women is motherhood. For example, in 2014 April 15 ECtHR case Radu v. the Republic complaint against the disclosure of medical information about it to the employer by the State Hospital. She was a lecturer at the Police Academy and in 2003 August. became pregnant and waited for twins, was hospitalized for two weeks because of the risk of being able to miscarriage. She submitted a sick leave certificate confirming her absence from work. However, the Police Academy asked the hospital for additional information about her sick leave and the hospital provided more information about the pregnancy, health condition and treatment provided. The information was widely disseminated in the applicant’s workplace, and shortly afterwards she suffered a miscarriage due to stress. She unsuccessfully sued the hospital and the Police Academy, seeking compensation for a breach of her privacy. The court found a violation of Article 8. He held that the interference complained of by the applicant was not “in accordance with the law” within the meaning of Article 8 (ECtHR case Radu v. the Republic of Moldova, No. 50073/07, 15 April 2014).

In another ECtHR case in 2013, García Mateos v. The Spanish applicant worked full-time in the supermarket. 2003 she asked her employer to

shorten her working hours because she was raising her son, who was not six years old. Since her employer refused, she brought an action before the Employment Tribunal. 2007 The Constitutional Court found that the principle of non-discrimination on grounds of sex had been violated in respect of the applicant, as her employer had prevented her from reconciling professional and family life. 2009 The Constitutional Court has established that its 2007 January 15 The decision was not properly enforced, but the new decision of the Employment Court was unfavorable to the applicants. The court found that the principle of non-discrimination on grounds of sex had not been complied with by the relevant decisions and that the applicant had not been compensated. The Court found a violation of Article 6 § 1 of the Convention (right to a fair trial within a reasonable time) in conjunction with Article 14 (prohibition of discrimination) (ECtHR case García Mateos v. Spain, No. 38285/09, 19 February 2013).

Analyzing the case law, it has been noticed that although violations of women’s rights in labor relations are a very common problem, in case law, especially in Lithuanian courts, it is a rare phenomenon. Although the court is the most effective remedy for violated rights, the small number of cases of discrimination at work reveals that employees do not defend their rights in court. Such assistance could be justified by the existing pre-litigation procedure for such disputes. However, perhaps the most important reason for the low number of cases is the problem of non-recognition of discrimination. “Cases of sexual harassment, or open statements and actions of the employer against a person’s gender, age, nationality, are usually imagined when thinking about discrimination.” Employees are waiting for direct action that will have evidence of discrimination. For this reason, many cases of discrimination simply go unnoticed and unnamed.

Summarizing it can be stated that the most common problems related to discrimination against women are due to the sexual discrimination that women experience at work, another fairly common problem is related to the religious beliefs of working women. The ECtHR quite often encounters complaints from women about sexual harassment, as well as about exploitation and physical and mental violence against women. Another problem faced by working women is motherhood.

Conclusions

1. Women’s rights can be described as general human rights and freedoms, which are determined by the biological characteristics of women, the specifics of their social and family status. They are distinguished from general human rights when, due to historical traditions, they are treated differently by men and women or are treated differently. 2. The reasons for discrimination against women in employment can be divided into three main groups or problems: 1) Stereotypes that are rooted in society; 2) Insufficient social support services; 3) Gaps in the law. 3. Gender equality and equity means fair treatment of women and men according to their needs and interests. The aim of the principle of non-discrimination is to provide all persons with equal and fair conditions for access to opportunities in society. 4. It should be noted that quite a often violations of women’s rights in employment process are sexual harassment, another type of violation of women’s rights in employment is violence against women. Discrimination at work can be compounded by physical or psychological violence, which can be gender related. 5. An analysis of ECtHR practice has shown that the most common problem of discrimination against women stems from the sexual discrimination that women experience at work, another fairly common problem being related to the religious beliefs of working women. The ECtHR quite often encounters complaints from women about sexual harassment, as well as about exploitation and physical and mental violence against women. Another problem faced by working women is motherhood.

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ANEMPLOYMENT INSURANCE IN TURKEY

Özgür Oğuz

Anadolu University, Turkey

Annotation

Unemployment is a socio-economic problem that all the countries of the world are struggling to confront and affect a wide range of people. As the number of unemployed increases day by day, the need for the protection of this sector is increasing day by day and the related regulations are being made as a requirement of the social state. In this direction, the “Unemployment Insurance Law” no 4447 was enacted in order to protect the unemployed people in terms of social security law in our country and it was tried to take measures against the social problems brought by unemployment and compensate the negative conditions of the individual.

The main objective of the unemployment insurance established by the state, based on compulsory participation and operating under the insurance technique, is to secure the employers against future unemployment risk.

Key words: Unemployment, Social Security, Unemployment Insurance, Social Security.

Introduction

Unemployment is defined as the inability to find a job despite the ability to work, having the ability, ability and will and being ready to accept the job to be offered under current conditions. Unemployment is an important risk in terms of social security law, and it can occur in various ways and in any case, affects the person negatively in terms of material and moral aspects (Arıcı, et. al., 2014; Kandemir, 2001; Dergisi, 2012; Toker, 2002).

The first form of unemployment is that the person who has the power and ability to work cannot find a job despite looking for a job under current conditions (Andaç, et al., 2010). This type of unemployment is also referred to as “open unemployment”. On the other hand, it is also possible for the person to be unemployed by firing or leaving his job while working. Regardless of the reason and the type of occurrence, people with unemployment may experience social problems as well as loss of income, and this situation can also trigger social problems (Uğur, 2011).

When the latest unemployment data are evaluated, it is seen that 10.3% of the total population over the age of 15 are faced with the problem of unemployment; It is striking that the number of unemployed has increased by 124 thousand compared to the previous year and reached 3 million 454 thousand people. The unemployed who represent a considerable part in the total population should be protected against the risk of being unemployed and in terms of social security in case of unemployment, various measures are taken in this direction as a requirement of the “social state” principle in the Constitution; The unemployment problem is tried to be solved by applying active and passive policies. Although it is more possible to find a real solution to the problem of unemployment with active employment policies, the applicability and sustainability of these policies have various difficulties and costs, and passively implemented policies need to be evaluated.

Unemployment insurance, which is one of the passive policies taken on unemployment, targets people who were unemployed while working and who were included in the social insurance system thanks to their previous work and is based on the principle of protecting these people against the risk of unemployment by using social insurance technique.

In this respect, unemployment insurance, which is a compulsory insurance, provides unemployment support from the unemployment insurance for a limited period of time to the insured who lost their job against their own will and will, covers the health insurance premiums and provides employment support during the process of unemployment support. With the aforementioned aids, it is ensured that the unemployed are provided with a minimum income guarantee against the risk of unemployment and they can benefit from the health insurance support during this period by providing them with financial support that will enable them to find a new job and to minimize the possible risks.

Historical development of unemployment insurance in Turkey

Unemployment insurance, which was applied in England in 1911 for the first time in the world, found its application in the Turkish Social Security Law for the first time in 1999 with the law numbered 4447, but its development took place in a long process.

Turkey’s first entry into the agenda of unemployment insurance in 1946 and was led by the Institute of Business and Employment to the first seri-

ous work on this issue and the State Planning Organization was started in 1959. Opinions regarding the acceptance of unemployment insurance have been included in all development plans as of the First Five-Year Development Plan and the necessity of establishing unemployment insurance for permanent workers has been mentioned during this period (Çolak, 2018).

Although 30 draft laws were prepared until 1999, when the law was enacted; Of these draft laws and proposals, the draft made in 1968 was rejected, and no results were obtained from the drafts prepared in 1980 and 1993 (Arıcı, 2015; Ayhan, 2002).

Although the establishment of unemployment insurance was delayed due to the intense opposition of some groups in the establishment of unemployment insurance, the concern that adding unemployment insurance premium to high SSK premiums will bring heavy costs, the unemployment rate in addition to budget deficits, insufficient savings funds and complicated implementation, Law No. 4447 of 25.08.1999. and unemployment insurance, Article 60 of the Constitution and Article 96 of Labor Law No. 1475, “social insurances are regulated by the state by law.” It was established by the state in accordance with its provisions. With Law No. 4447, unemployment insurance was adopted as a compulsory insurance branch at the whole country level, and as of June 1, 2000, the collection of premiums from related parties (employee, employer, state) started; insurance services also restructured the executive authority of the Turkey Business Association was created in the General Directorate of Unemployment Insurance has been given to the Department (Görücü, et. al., 2012; Arıcı, 2015; Koşulları, 2005).

Definition and features of unemployment insurance

In the doctrine, many definitions have been made on unemployment insurance. According to one definition, unemployment insurance is a social insurance branch established by the state within the social security system that has to participate and operates with the insurance technique in order to meet the livelihood and living needs of dependent employees who are willing and able to work but whose earnings have been discontinued due to socioeconomic reasons. According to another definition, unemployment insurance is an insurance branch operating with the insurance technique, which covers the loss of income they suffer due to unemployment to the insured employees who lost their jobs without any intent or fault, even though they have the will, ability and competence to work in a workplace.

According to another definition, unemployment insurance is a social security program developed for those who have the desire and ability to work but have lost their jobs against their will, temporarily to cover some of their previous income, and to prevent themselves and their family from falling into a socio-economic difficult situation (Tatoğlu, 2012).

As can be seen, there is no agreed definition on the concept of unemployment insurance. A definition of the concept is included in the law no 4447. According to the clause c of the 47/1 provision of the Law, unemployment insurance covers insurance holders who lost their jobs without any intent or fault, even though they have the desire, ability, health and competence to work in a workplace, with the insurance technique, which compensates the loss of income they suffer due to their unemployment for a certain period of time and to a certain extent. is the compulsory insurance operating. According to this definition, unemployment insurance; It is based on four basic elements: “compensation for unemployment risk”, “obligation”, “premium payment” and “establishment by the state”. Among these factors, it is necessary to focus on the premium payment principle (Ediyam, 2016).

Unemployment insurance, as a social insurance branch regulated according to general insurance principles, is financed by premiums. Indeed, as in other insurance branches, there is no unrequited aid provided by the state in unemployment insurance, and the aids are made through previously paid premiums, provided that they are covered by the insurance, in case of a possible risk. In terms of unemployment insurance (Ayhan, 2002), it was stipulated that the premiums would be covered by the insured, employer and the state, and at this point, the system envisaged three separate sources. The said premium rates are foreseen as 1% of the insured’s earning subject to premium, 2% for the employer and 1% for the state. The Social Security Institution has been authorized and authorized for the collection of the premiums, keeping records on the basis of the insured and the workplace, transferring the total premiums and default increment, interest and penalties to the Unemployment Insurance Fund, keeping the guarantees and progress payments against the premium debt and returning the unnecessary premiums.

Benefits from unemployment insurance

The benefits provided from unemployment insurance are regulated in the 48th article of the law numbered 4447. According to this regulation, providing unemployment benefit from unemployment insurance, meeting the

insurance premiums to be paid in accordance with the law numbered 5510, support for finding new jobs and providing vocational development, training and training are the benefits offered within the scope of unemployment insurance (Toker, 2002).

Giving Unemployment Allowance

1. General

Undoubtedly, the most basic need of the insured who lost their job and became unemployed due to the reasons listed in the law and will be examined below is monetary assistance. Because, in this process, the insured cannot earn an income due to being unemployed; Despite this, the expenses continue to increase, and they cannot have any income or allowance to meet this.

To compensate for this situation, even partially, it has been deemed appropriate to give an allowance that undertakes the function of providing economic security to the insured, who face the risk of unemployment, in order to sustain their life at a minimum level. With this allowance called unemployment allowance, it is aimed to compensate partially the loss of income due to unemployment by providing cash aid to the unemployed insured who meet the conditions specified in the law.

2. Conditions of Eligibility for Unemployment Benefit

Law No. 4447 did not recognize the right to benefit from unemployment insurance provisions; It includes those who work under certain conditions and are unemployed. However, being included in the aforementioned scope was not deemed sufficient to receive the aids offered within the scope of the law, and some additional conditions were also sought. From this point of view, in order to benefit from unemployment insurance, first of all, to be one of the “unemployed insured” whose scope is indicated in the law; In addition, it is necessary to fulfil the conditions listed in the law (Güzel, et. al., 2016).

a. Being Insured Under the Unemployment Insurance Law

In the second paragraph of Article 46 of the Unemployment Insurance Law, groups covered by insurance are mentioned. According to this provision, the insured who work with a service contract in accordance with the provisions of 4/1-a or 4/2 of the Social Insurance and General Health Insur-

ance Law No.5510, work with a partial-term employment contract within the scope of the Labor Law No.4857 and have unemployment insurance in accordance with the provisions of voluntary insurance. Those who pay the premium are the insurance holders within the scope of additional article 6 of the same law and the insurance holders who are subject to the funds included in the temporary article 20 of the SSK law numbered 506, and are the groups that can benefit from unemployment insurance, provided that they also meet the other conditions.

In the regulation “4. The group included in the scope with the expression “item (a) of the first paragraph of the article” is the workers. In this respect, it is not important to which law the service performed by the employment contract is subject to; According to the Labor Law No. 4857, the Maritime Labor Law and Press Labor Laws and the service contract under the TBK, employees are covered by unemployment insurance. Besides, although it does not fall within the scope of the aforementioned regulation, “4. In accordance with the provision stating that the individuals included in the groups listed in the second paragraph of the article are also within the scope of unemployment insurance in terms of person, those who are elected to the presidencies and management boards of trade unions and confederations, artists and fine arts workers, thinkers and writers, the country with which an international social security agreement has been made. Those who are foreign nationals (Bektaş, 2015), excluding their citizens and who work under a service contract, those who are employed according to the Law on the Protection of Farmers’ Property, general women, master trainers and those who work in public administrations in return for a course fee, those who are employed within the scope of subparagraph (C) of Article 4 of the Law on Civil Servants and Working for the Benefit of the Community Those who benefit from the programs can also benefit from unemployment insurance.

Another group within the scope of unemployment insurance is, as they work according to service contracts, they are subject to the basic rule explained above; However, they are the people who work according to the part-time employment contract, which is subject to special regulation due to the difference in working hours. Those in this group are those who work with part-time contracts within the scope of Labour Law No. 4857 and who have completed the missing premium payment days voluntarily, within the scope of the provision of Article 50 of Law No. 5510 (Yiğit, 2005).

The Unemployment Insurance Law also covers the insured under the additional article 6 of the law numbered 5510. Within the scope of the provision, the number of working days calculated according to the working hours in the month with the person they work with and who are employed by one or more people with a partial-term employment contract in the business places of commercial taxis, minibuses and similar in-city public transportation vehicles and fine arts branches to be determined by the Ministry of Culture and Tourism. Those less than 10 days are included and these people are also covered by unemployment insurance in terms of persons.

The last group within the scope of the law numbered 4447 is shown as the insured persons who are subject to the funds in the provisional article 20 of the Social Security Law No.506. Banks, insurance companies, chambers of commerce and industry and stock exchanges that are within the scope of this provision that is still in force are also covered by unemployment insurance.

Law No. 4447 explicitly regulates the groups that are not covered by unemployment insurance, as well as the groups that are not covered by the insurance, in the third paragraph of the same article. According to the provision, those who are included in sub-clauses b and c of paragraph 1 of Article 4 of Law No. 5510, those who do not work based on a service contract and those within the scope of the third paragraph, 5th, 6th and provisional 13th paragraphs and 506 Civil servants within the scope of the provisional article 20 of the Social Insurance Law, or those who have contractual status subject to the Decree Law No. 399 dated 22/1/1990 and Civil Servants Law No. 657, Turkish Armed Forces Personnel Law No. 926, Specialist Soldiers Law No. 3269, Contracted personnel in accordance with the provisions of the Specialist Gendarmerie Law no 3466, the Law on Judges and Prosecutors no 2802, the Higher Education Law no 2547, the Higher Education Personnel Law no 2914, the statutory decrees no 233 and 399 and the organization laws of the public institutions and organizations subject to the Decree No.190. (31 of the Decree Law No. 527 of 18/5/1994 Including contracted personnel within the scope of article n) and those employed as temporary personnel according to the Civil Servants Law No.657 are not included in the scope (Caniklioğlu, 2016).

b. Being Unemployed While Working as Insured

According to the law no 4447, the insured unemployed is defined as the person who loses his job due to the reasons stated in the relevant articles of the law and declares his readiness to work by applying to the Institution based on a service contract and working as an insurance holder in a workplace within the scope of the law; The aforementioned reasons are included in Article 51 of the law. In this respect, it is not possible to benefit from the provisions of unemployment insurance every time the employment contract concluded between the parties is terminated; The contract must also have expired in certain ways. In this context, it should be noted that in suspended cases where the contract is not legally terminated but the parties do not actually fulfil their debts arising from the contract, there is no possibility to benefit from unemployment allowance; the contractual relationship must be completely terminated.

In this direction, the first state regulated in the law is foreseen as the termination of the service (work) contract by the employer with a term termination notice. In case the contract is terminated with a termination made by the employer in compliance with the notification periods specified in Article 17 of Labour Law No. 4857, Article 16 of Maritime Labour Law No. 854 and Article 6/4 of Press Labour Law No. 5953, it is included in the scope of unemployment insurance, provided that other conditions are met.

The second situation regulated in the law is the termination of the contract according to the immediate termination provisions by the employee or employer. Since the lawmaker does not make any discrimination in termination of the employment contract for just cause within the scope of Article 24 of the Labour Law in terms of the worker, health reasons, situations that do not comply with the rules of morality and goodwill and the like and similar cases will be included in the scope of unemployment insurance. However, in cases where immediate termination is made by the employer, a distinction has been made and the condition that the termination has not occurred under the name of cases that do not comply with the rules of morality and good faith and the like. On the other hand, in cases of termination due to health reasons and compelling reasons, the worker’s fault was not sought; Termination is deemed sufficient only due to the situation. In the law, if the employment contract is for a definite period, unemployment after the expiry of the term is also considered within the scope of unemployment

insurance. Similarly, with the termination of the work done for a certain period, the employment contract terminates automatically and is included in the scope of unemployment insurance.

Another condition regulated in the law is the termination of the employment contract by the employer as a result of the workplace changing hands, closing or changing its nature. Similar to this regulation, workers whose employment contracts are terminated through temporary termination due to privatization at workplaces covered by privatization in accordance with the provisions of Article 21 of the Law on Privatization Practices are also covered by unemployment insurance (Sözer, 2015).

Finally, it is necessary to mention the situation of the insured, whose service performance is not covered by the above-mentioned labour laws. If there is a collective bargaining agreement concluded within the scope of the Trade Unions Law (2821) and Collective Bargaining, Strike and Lockout Law (2822), or if there is a contract made in line with the provisions of the Code of Obligations, the termination of the contract in parallel with the reasons explained above, unemployment has been deemed sufficient to be covered by insurance. In this respect, the law numbered 4447, not only employees within the scope of labour laws; It is possible to say that it aims to cover a wide audience as much as possible by protecting its employees, subject to the law of obligations.

c. Fulfilling the Insurance Conditions

To benefit from the unemployment insurance allowance, a certain period of time, in addition to the conditions listed, premium payments must also be made to the system. According to the 2nd paragraph of Article 50 of Law numbered 4447, among those who worked continuously for the last 120 days before the expiry of their service contract, those who worked as insured for 600 days in the last 3 years and paid unemployment insurance premiums, 180; 240 for those who work for 900 days and pay premiums; For those who work for 1080 days and pay premiums, it is stipulated that unemployment benefits will be paid for 300 days.

According to the regulation of the law, to be entitled to allowance, it is required to have paid unemployment insurance premium for at least 600 days in the last 3 years. The expression “in the last 3 years” means that an insurance period of at least 3 years is required in order to be entitled to action, and if this condition is met, it is checked whether it has been worked

continuously by paying a premium for 120 days before the termination of the employment contract. If the 120-day premium payment condition has not been met in the period before the termination of the employment contract, even if the total number of premium days exceeds the lower limit of 600, unemployment allowance will not be eligible. However, according to the Communiqué on the Implementation of the Unemployment Insurance Law No.4447, sickness, unpaid leave, disciplinary punishment, detention, detention that does not result in convictions, partial employment, strike, lockout, events affecting general life, economic crisis, discontinuation of activity at the workplace due to natural disasters or in the event of a break from work, periods without premiums are not considered as deductions (Günay, 2015).

d. Applying to the Institution

Although fulfilling all these conditions listed above is necessary for getting unemployment benefits, it is not sufficient. At the same time, the insured unemployed must apply personally to İŞKUR within the time limit and register that they are ready to take a new job.

In addition, a notification obligation has been stipulated for the employer in line with the application requirement for the insured unemployed. According to Article 51 of Law No. 4447, if the employment contract is terminated due to the reasons we have explained above, the employer shall issue three copies of a dismissal declaration to be prepared by the Institution and send one copy to the Institution within 15 days, deliver one copy to the insured unemployed and keep the other copy at the workplace. is obliged. If this provision is not complied with and the said declaration is not sent to İŞKUR, separate administrative fines are also stipulated against the employer for each act. It is of great importance that the said declaration is prepared and given to İŞKUR and the insured. Because, according to the 48/5 provision of the law, the insured unemployed must apply to İŞKUR with a dismissal notice. The period foreseen for the application is 30 days; The periods delayed in applying, except for compelling reasons, are deducted from the total period of entitlement to unemployment benefits.

e. Other Conditions

These conditions, which are not included in Article 51, which regulates the conditions for entitlement to unemployment benefits, lead to the ces-

sation of the entitled unemployment benefit and result in the deprivation of payment. For this reason, in addition to the conditions we have discussed under the four headings above, they appear as conditions that should be sought. The conditions under the heading “reasons for reducing the unemployment benefit in payment” in Article 52 can be listed as follows: - Proposed by the institution; Rejection of the work within the boundaries of the municipality adjacent area of the place of residence, which is close to the occupation of the worker and the wage and working conditions of the last job (except in cases of refusal based on a just cause), - Not working in an income-generating job and not receiving old-age pension during the period of unemployment benefit (Ekmekçi, 2015), - Not refusing the vocational development, training and training offered by the institution without a justifiable reason and continuing to the accepted education, - Answering the calls made by the institution on time, providing the requested information and documents within the prescribed time.

Amount and Payment of Unemployment Benefit

It is also necessary to mention the calculation and payment principles of the unemployment allowance for the insured unemployed who meet all these conditions. The issue is regulated in Article 50 of the Law numbered 4447 and it has been stipulated that the daily unemployment allowance will be 40% of the daily average gross earning calculated by taking into account the earnings of the insured for the last four months premium. In addition, by stipulating an upper limit for the amount of unemployment benefit, it has been stipulated that the unemployment allowance cannot exceed 80% of the monthly gross minimum wage applied for workers older than 16 years of age. The period of payment of unemployment benefit, which is foreseen as 40% of the minimum wage, varies depending on the number of premium days paid; It is 180 days if the insured has 600 premium days in the 3 years before the expiry of the service contract, 240 days for the 900 premium payment days, and 300 days if the number of premium payment days is 1080.

The Law envisaged a special provision regarding the re-employment of the insured before completing the period of benefiting from the unemployment benefit and becoming unemployed again without fulfilling the condi-

tions stipulated in the Unemployment Insurance Law No. 4447 to benefit from the unemployment insurance payment. According to the provision, in this case, the insured unemployed will continue to benefit from this right until the period of unemployment benefit, he deserved before; However, if he becomes unemployed again by fulfilling the conditions stipulated by the law, he will be entitled to unemployment allowance only for the period arising from the new right ownership.

The unemployment allowance calculated according to the principles we have explained above will be paid to the unemployed on the fifth of each month; that the allowance will not be subjected to any tax or deduction other than stamp duty; It is also clearly stated in the law that it cannot be attached, transferred or assigned except for alimony debts.

Finding New Jobs and Providing Vocational Training Opportunities

Although unemployment insurance is not a program to prevent unemployment, but an insurance program aimed at alleviating the negative effects of unemployment, it cannot be completely independent from policies aimed at preventing unemployment. With regard to unemployment insurance and assistance in making all kinds of services is Turkey Business Association and authorized officials; It is also obliged to work on finding a job suitable for the occupation of the insured unemployed who receive unemployment benefits and close to the wage and working conditions of their last job. In this respect, it is also possible for the Institution to offer a job to the unemployed insured who is receiving allowance. This task is fulfilled by the “Employment Department”, which is among the main service units of İŞKUR.

As the rapid change and progress in technological developments increase the need for qualified and equipped workforce day by day, vocational training studies are becoming more and more important day by day. At this point the 4447 law, Turkey Business Council to not only provide jobs for the unemployed insured; It also imposed the task of providing vocational training, development, and upbringing services to it. To fulfil this duty, it conducts many training programs under the name of workforce training activities; Those who attend these courses are also given a pocket money for each actual day they attend the training. This training includes initial training after general education as well as continuing or on-the-job re-training. Payment of General Health Insurance Premiums (Sözer, 2015).

Another assistance recognized by Law No. 4447 is the payment of universal health insurance premiums. According to the 60 / I-e provision of the Law numbered 5510, individuals who benefit from unemployment allowance, craftsmen’s fund allowance and short-time work allowance are also considered as general health insurance holders from the date of benefiting from the said allowances. Law, which is connected to one of Turkey from the date of unemployment benefits by the Employment Agency has been notified to the Authority anticipates that they will within a month.

General health insurance premiums of the insured who receive unemployment benefits are paid by the unemployment fund within the period of payment. The premium rate to be paid is determined as 12% of the earning subject to premium under the provision 81 / I-f (c.3) of the same law. The general health insurance premiums of the insured who receive half work allowance are covered by the Unemployment Insurance Fund at the rate of 32.5% in total over the lower limit of earning subject to premium, the employee and employer shares of the premiums equal to the number of days that this allowance is received.

Conclusion

Today, it is possible to say that the number of unemployed is increasing and unemployment has become a serious problem. Although the most powerful method in the fight against unemployment is active employment policies, the implementation of these policies brings a serious cost, and it is not always possible to apply them. For this reason, the necessity of developing passive policies against possible unemployment alongside active methods in combating unemployment has emerged. In this context, it is aimed to prevent the problems caused by unemployment, even partially, by putting the Unemployment Insurance Law No. 4447 into force.

Within the scope of the law, it is aimed to have a minimum living standard by making a certain payment to the insured who is unemployed even for a certain period. In addition to the payment of unemployment allowance to the insured unemployed who meet the stipulated conditions, consultancy services in the field of labour market and vocational training are provided, vocational development, training and training are provided, assistance in finding new jobs and general health insurance premiums are paid to SSI. Unemployment insurance is also criticized for the fact that the unemployment problem is not a temporary problem, because the allowance is

given temporarily, the possibility of exhaustion of the limited allowance, and if the allowance is sufficient, it is seen as a more appropriate solution to direct the resource to investments that increase employment instead of distributing it to the unemployed masses. Other criticized aspects of unemployment insurance are the fact that the benefits are aimed at those who are unemployed while working and therefore unfairness can be inflicted on those who have never worked, the failure to solve structural unemployment and the fact that those who have never found a job are having more difficulty in starting work due to the priority given to those who receive unemployment benefits in job placements.

Bibliography

1. Andaç Faruk, Unemployment Insurance, TÜHİS Education Publication, Ankara: 2010,

Publication No: 66. 2. Arıcı Kadir, Turkish Social Security Law, Ankara 2015. 3. Ayhan Abdurrahman, “The Importance of Unemployment Insurance According to Law

No. 4447, Benefiting Conditions and Grants”. Muğla University Institute of Social Sciences Journal, Muğla 2002, P: 7, pp.1-9. (Date of access: 09.04.2018). 4. Bedir Gökhan, “Conditions of Qualifying for Unemployment Benefit According to Unemployment Insurance Law”. Terazi Hukuk Dergisi, Ankara: 2014, P: 100, pp. 353- 355. 5. Bal Bektaş Özlem, “Unemployment Insurance Allowance”. Terazi Hukuk Dergisi, Ankara 2015, S: 104, pp. 14- 20. 6. Aytul Colak, “Development of Unemployment Insurance in Turkey”. International

Journal of Social Sciences and Education Research, Year: 2017, Volume. 3 (4), ss. 1381- 1389. (http://dergipark.gov.tr/ijsser, Access Date: 11.04.2018). 7. Günay Cevdet İlhan, Labor and Social Security Law Lessons, 5th Edition, Ankara 2015. 8. Güzel Ali / Okur Ali Rıza / Caniklioğlu Nurşen, Social Security Law, 16th Edition, Istanbul 2016. 9. Murat Kandemir, “Angle from the Unemployment Insurance Law No. 4447”, Turkey Bar

Association Journal, Ankara 2001, Issue 2, pp. 533-555. 10. Saraç Coşkun, “Unemployment Insurance Performance Conditions”, Dokuz Eylül University Faculty of Law Journal, İzmir 2012, C: 13, P: 1, p. 1-26. 11. Sözer Ali Nazım, Turkish Social Insurance Law, 2nd Edition, Istanbul 2015. 12. Tezel Şevket “Principles of Unemployment Insurance Application”. Lebib Yalkın

Legislation Magazine, Year: 2006, P: 2, ss. 1-9. (www.lebibyalkin.com, Access Date: 11.04.2018) 13. Toker Murat, “Unemployment Insurance”. Court of Accounts Magazine, Ankara 2002,

P: 46-47, p. 83-108. 14. Tuncay A. Can / Ekmekçi Ömer, Social Security Law Lessons, 17th Edition, Istanbul 2015. 15. Suat Ugur, “Development of Unemployment Insurance in Turkey”. Journal of Management Sciences, Year: 2011, Issue: 9: 2, ss. 99-113. 16. Üçışık H. Fehim, Social Security Law, Ankara 2015.

2. BUSINESS LAW

LEGAL ASPECTS OF APPLICATION OF “DECENTRALIZED SMART CONTRACTS” IN INTERNATIONAL BUSINESS

Bohdan Diachenko, Olegas Beriozovas

Taras Shevchenko National University of Kyiv (Ukraine); Kazimieras Simonavičius University (Lithuania)

Annotation

Smart contract is a new word in contractual law, transforming contract from paper-based document into machine executed code. Basically, it`s a special computer program, which exist in the framework of blockchain network (flex Ethereum) and has got programmed activities of execution due to some conditions in real of virtual world. The smart contracts are the new developing technology, which is due to it sue generis nature. The cross-border application of smart contracts could be hardly determined by the existing law.

Key words: Blockchain, “smart contracts”, contract law, contracts, automatically generated contracts

Introduction

With the appearance of blockchain technology, which allows subjects to operate in the decentralized, highly reliable network, which cannot be manipulated by any of the users due to its nature is appeared, the other applicable technology called smart contracts is appeared. Smart contracts use the opportunities of blockchain network to conclude agreements between parties, and put its execution on the machine, which allows to enforce it in timely manner, on lower costs. However, due to that fact, that it`s novelty, various legal issues arise.

Purpose of this article is to analyse legal aspects of application of blockchain based smart contracts in the legal relationships between different parties.

Legal concept of smart contracts.

Before analyzing the concept of smart contracts, it`s neccesary to analyze the blockchain concept.Conceptually, blockchain is specifically designed database network, without any central point, whcih keep records (block) of specific information, and conncect them to other blocks, with

possibility to watch, but without possibility to change (chain). The information, which is stored in the blockchain are transmitted to all users in network, which make it highly reliable, and due to cryptographic mechanisms it`s impossible to manipulate the data within (Savelyev, 2017). The first concept of blockchain was realised on the example of BitCoin crypto currency, where all transactions was recorded in such manner, which gave a proof of posesing of BitCoin as cryptocurrency within a network (BitCoin blockchain network fully consist of record of transactions only). There are few official definitions of blockchain, according to the European Central Bank it`s: “the ledger (book of records) of all transactions, grouped in blocks, formulated with a (decentralized) virtual currency schema” (ECB, 2015). Due, to Arizona law, the smart contracts are: “distributed ledger technology that uses a distributed, decentralized, shared and replicated ledger, which may be public or private, permissioned or permissionless, or driven by tokenized crypto economics or token less. The data on the ledger is protected with cryptography, is immutable and auditable and provides an uncensored truth” (AZ HB2417, 2017). Smart contract is defined by scholars, as: ‘a piece of computer code that is capable of monitoring, executing and enforcing an agreement’ (O’Shields, 2017). Basically, it`s a special computer program, which exist in the framework of blockchain network (flex Ethereum) and has got programmed activities of execution due to some conditions in real of virtual world (Raskin, M. (2017). For application in real-world, the smart contracts using oracles, which can be human or computer program, or Internet of Things sensors, which allows to proof the conditions in real world concerning the contract conditions. It`s important to notice, that decentralized smart contracts couldn`t be used out of the blockchain system, thus it wouldn’t differentiate it from paper contracts. (Contracts, in electronic form, used without layer technologies are called “digital contracts”). Furthermore, it`s important to notice that money exchange shall be executed in the cryptocurrency of blockchain of contract (Perugini, 2018). Some of the blockchain prescribes full anonymity of parties.

Practical usage of smart contracts and problems

Decentralized smart contracts could be used in such way: Travell agency (A) obliged to pay it`s customer (B) fee, it the plane didn`t arrive at specific date.They conclude a smart contract in any blockchain network, at the spe-

cific date smart contract through the oracle will check if the plane arrived (for example throught the automatic programe interface of the airport), and in case, if the plane don`t arrive, the smart contract will pay the fee to the customer, and if plane arrived timely, the money will get back on the account of travel agency.Through this method, we can see, that smart contract is well executable, don`t need much time to prove, that, plane don`t arrive, and exclude bureacracy (Tjong Tjin Tai, Eric, 2017). According to the nature of blockchain, there are no any ways to manipulate the contract.Furthermore, the currency of such manipulation shall be the currency of such platform.

There are two practical ways, for concluding smart contracts: • paper (electronic) form with an automated system of monetary transactions; • paper (electronic) form with elements performed in automatic mode; • paper (electronic) form and its exact copy, recorded by computer code; • the contract is fully in the form of a computer program (Cong, Lin William, 2017).

However, there are some practical questions arrise: 1. Malfunctioning in a code could lead to the mistakes in an execution of a contracts; 2.Due to the nature of computer logic, the could will execute only program, and cannot count any other obstacles 3.If the contract created in a form of a. computer program in decentralized manner, it is impossible, according to the nature of such contract to analyze it by court.

Legal framework of smart contracts

There is a lack of legislation which dealing with such technologies, as blockchain and smart contracts, for few reasons: • Sue generis nature of such technogolies • Will of government regulators no to influence such technologies,but influence a consequence which it may bring.

However, in some US states so-called “blockchain legislation was adopted”, for instance state of Vermont adopted such provisions: (a) ‘a fact

or record verified through a valid application of blockchain technology is authentic’, (b) ‘the date and time of the recordation of the fact or record established through such a blockchain is the date and time that the fact or record was added to the blockchain’, (c) ‘the person established through such a blockchain as the person who made such recordation is the person who made the recordation’ and that, in any case, ‘a presumption does not extend to the truthfulness, validity, or legal status of the contents of the fact or record. Particularly the same provisions were adopted in Arizona, Hawaii, New Hampshire, Illinois and Nevada. However, if there is no special law on the blockchain and cryptocurrency, the exisitng law shall be applicated to such issues.

Court practise on issues of smart contracts and cryptocurrency

Due to the novelty of blockchain technology and cryptocurrency, it`s impossible to see specific judicial practise. However, the disputes between such technologies arise. The most recent case connected with the nature of electronic contracts happened in Singapore international commercial court (B2C2 Ltd v Quoine Pte Ltd [2019] SGHC(I) 03z). The plaintiff was B2C2 Limited Liability company, and the defendant was Quinine Pte Limited Liability Company. Defendant company was cryptocurrency stock exchange, and the Plaintiff was its client, trading with cryptocurrency to other parties or exchanging it to any other currency. Due to mistake, B2C2 was able to trade in rate 242 times higher. The Chief Technical Officer noticed the mistake and denied the transactions. There were several questions raised in this case, however, the most important question related to the topic of the article: Does the automated contracts, which was concluded between the parties give rise to an enforceable contract? Though, it wasn`t decentralized smart contract in the full meaning, answering to these issues could give an opportunity to set practise further (Riccardo De Carria, 2017). In this case court accepted the legal force of the contract, due to that fact, that both parties agreed, that contract was concluded. Another important question, solved in this case, is: who responsible for machine mistake? It`s clearly defined in court citation: “It is not really in issue that contracts can be effectively concluded over the internet and that programmed computers sending out automated responses can bind the sender. The fact that the acceptance was automatically generated by a computer software cannot in any manner ex-

onerate the defendant from responsibility. It was the defendant’s computer system. The defendant programmed the software…” From this statement, we can presume, that all issues in deterministic system must be solved on the stage of programming.

Another cases, related to contracts appeared virtually, are related to the English court is Software Solutions Partners Ltd (SSP), R (on the application of) vs HM Customs & Excise [2007] EWHC 971 (Scheinert, C., 2016). SSP was company, providing software to insurance brokers, which adding data to the program, and program analyse risks and conclude the insurance contracts with the client. The question was, if the SSP services could be determined as VAT exempted, due to the related EU Directive. However, what`s important here is the argumentation of the court. The court presumed: “All the information necessary for electronic contract formation has been pre-programmed, according to strict parameters laid down by the insurer, in the SSP computer software. The relevant data is, therefore, processed automatically by electronic means through the computer software, and the transactions are self-executing within the specified parameters pre-determined in the programme. Once the broker, using his computer and accessing the SSP software, has input the appropriate data, the ‘offer’ is automatically generated by the programme itself without further human intervention; and once the broker has taken the steps required by the computer programme necessary for an ‘acceptance’ of the offer, the acceptance is automatically processed by the programme itself, again without further human intervention…. the correct legal analysis is that the relevant insurers, expressly or impliedly, invited brokers who had access to the appropriate SSP software to use the computer programme for the purpose of contract formation, and that the insurers undertook that, if the brokers followed the pre-programmed procedures, they would be bound by the automatically generated result, even if they (the insurers) were temporarily unaware of that result. Similarly, in the present case, insurers hold out the SSP software as the automatic medium for contract formation. Once the broker, like the plaintiff in Thornton (Thornton v Shoe Lane Parking, 1971) putting his money into the machine, has input the necessary data into the electronic process, no further human intervention is necessary for the formation of a binding contract between broker and insurer”.

Conclusions

1. The smart contracts are the new developing technology, which is due to it sue generis nature. The modern legal regulation is hardly applicable to this technology, due to its specifical technological nature, and type of assets within. 2. There is lack of specialized legislation, which specifically regulates the blockchain and smart contracts, and they are mostly adopted locally (mostly in the United States). The cross-border application of smart contracts could be hardly determined by the existing law. 3. Practical observance of the smart contracts, and creation of new legal norms, as well as adoption of existing basic legal principles, and application of them to the smart contracts, blockchain and cryptocurrency could be the key to the regulation.

Bibliography

1. Scheinert, C. (2016).Virtual currencies, Challenges following their introduction. 2. Savelyev, A. (2017). Contract law 2.0: ‘Smart’ contracts as the beginning of the end of classic contract law. Information & Communications Technology Law, t 26(2). 3. O’Shields, R. (2017).‘Smart Contracts: Legal Agreements for the Blockchain’, 21 N.C.

Banking Inst. 177. 4. ECB, Virtual currency schemes – a further analysis (ECB 2015). 5. Riccardo de Caria,The legal meaning of smart contracts,European Review of Private

Law,2019, p.731-752 6. Raskin, M. (2017). The law and legality of smart contracts. GEO.L.TECH.REV.305(2017). 7. Perugini, M. L. & Dal Checco, P. ‘Smart Contracts: A Preliminary Evaluation’, (2015), ssrn. com/abstract=2729548 (accessed 18 November 2018. 8. Tjong Tjin Tai, Eric, Formalizing Contract Law for Smart Contracts (September 18, 2017). Tilburg Private Law Working Paper Series No. 6/2017, Available at SSRN: https:// ssrn.com/abstract=3038800 or http://dx.doi.org/10.2139/ssrn.3038800. 9. Riccardo De Carria, (2017). A Digital Revolution in International Trade? The International Legal Framework for Blockchain Technologies, Virtual Currencies and Smart

Contracts: Challenges and Opportunities’, in VV.AA. ‘Modernizing International Trade

Law to Support Innovation and Sustainable Development. Proceedings of the Congress of the United Nations Commission on International Trade Law, Vienna, 4–6 July 2017, Volume 4: Papers presented at the Congress’ (United Nations, Vienna 2017), p 105, www.uncitral.org/pdf/english/congress/17-06783_ebook. pdf. 10. Cong, Lin William, 2017, Auctions of real options,Chicago Booth Working Paper. 11. Thornton v Shoe Lane Parking [1971] 2 QB 163, where English court stated, that the vending machine is an offer.

REGULATION OF THE PRINCIPLES OF NON-TRANSFERABILITY AND DOCUMENTARY NATURE OF A BANK GUARANTEE IN INTERNATIONAL COMMERCIAL PRACTICE AND LITHUANIAN LAW

Giedrius Nemeikšis

Kazimieras Simonavičius University

Annotation

Pandemic outbreaks have a negative impact on the economic performance of countries and encourage businesses to look for reliable ways of securing their obligations, which increases the importance of bank guarantees as one of the safest instruments for creditors, and at the same time prompts a proper assessment of the Lithuanian regulation on this issue, when there is no such research in the legal doctrine. Therefore, the object of this article is limited to the analysis of the principles of non-transferability and documentary nature of bank guarantee, and the article aims to identify the peculiarities of the regulation of these principles in the international commercial practice and to compare them with the experience of Lithuanian regulation. The main research methods used in this paper are document analysis, systematic analysis, comparative analysis, and generalisation. The analysis carried out supported not only the inconsistent regulation of these principles in different international instruments regulating the legal relations of the bank guarantee, but also the incompleteness of the Lithuanian legal regulation governing the principles of the bank.

Key words: bank guarantee, principle of non-transferability, documentary nature, security for obligations.

Introduction

The global pandemic of COVID-19 is having a negative impact on national economic performance and the global economy, forcing businesses to slow down or even shut down (BBC portal article “Koronos virusas: vaizdinis ekonomikos poveikio vadovas..., 2021), as well as international media warnings of an imminent second wave of the virus, which will further affect economies (BBC portal article “Koronos virusas: kas yra antroji banga ir ar ji ateina?..., 2021). This has significant implications for businesses seeking to operate reliably in a constantly changing and currently difficult to define

economic environment, while at the same time looking for reliable ways of securing obligations that effectively mitigate the risk of default. Therefore, the importance of the bank guarantee as one of the safest means of securing the performance of the creditor’s obligations in the world is growing. However, the special legal regulation of guarantee and bank guarantee provided for in Articles 6.90-6.97 of the Civil Code of the Republic of Lithuania (Civil Code of the Republic of Lithuania..., 2001), which is absent in the regulatory practice of neighbouring countries, such as Latvia, Estonia or some other, objectively justifies the need to analyse the compliance of the national regulation with the standards set by international commercial practice. However, given the formal requirements of the article, the scope of this article is limited to the two main principles of a bank guarantee – its non-transferability and its documentary nature. Although these two principles of bank guarantee are the necessary foundations for the proper functioning of these legal relations and their significance and specificity are emphasised in international commercial practice and legal doctrine, but these issues are not addressed in the Lithuanian legal doctrine, especially considering that the national regulation also provides for a separate legal regulation of the bank guarantee. Unfortunately, the provisions of the Civil Code of the Republic of Lithuania regulating the legal relations of guarantee are mainly commented on in publications devoted to the study process, which deal only with general aspects of the methods of securing obligations (Juodka, 2006; Ambrasienė, et. al., 2006), or on the topic of international settlements (Ambrasienė et. al., 2006; Katkus, 2000), or in the commentary on the Civil Code (Šato, 2004). However, such sources focus only on familiarisation with the peculiarities of the regulation of a guarantee or a bank guarantee, without analysing the basic principles for the proper functioning of a bank guarantee.

Object of the research is the regulation of the principles of non-transferability and documentary nature of bank guarantees in international commercial practice and Lithuanian law.

Aim of the research is to analyse the peculiarities of the principles of non-transferability and documentary nature of a bank guarantee and the regulatory issues in international commercial practice and Lithuanian law.

Objectives of the research: 1) to highlight the concept and features of the principle of non-transferability of bank guarantees in international com-

mercial practice; 2) analyse the concept and features of the principle of the documentary nature of a bank guarantee in international commercial practice; 3) to compare the regulation of the principles of non-transferability and documentary nature of bank guarantees in Lithuanian law with international standards.

Research methodology: in view of the subject matter, aims and objectives of the paper, the following research methods are applied: methods of document analysis, systematic analysis, comparative analysis, and synthesis.

Abbreviations used in the work: 1. UNCITRAL Convention – the Convention on Independent Guarantees and Stand-by Letters of Credit, approved by the General Assembly of the United Nations by Resolution 50/48 of 11 December 1995 (Jungtinių Tautų Generalinės asamblėjos patvirtinta Konvencija „Dėl nepriklausomų garantijų ir akreditavimų“..., 2021); 2. URDG Rules – Uniform Rules for Demand Guarantees of the International Chamber of Commerce (Tarptautinių prekybos rūmų patvirtintos Vieningas garantijų pagal pareikalavimą taisykles..., 2010); 3. The draft PECL means a Draft Common Frame of Reference of the European Civil Code Research Group and the European Private Law Research Group: Principles of European law in the field of personal security (Tarptautinių prekybos rūmų patvirtintos Vieningas garantijų pagal pareikalavimą taisykles..., 2010); 4. CC – Civil Code of the Republic of Lithuania (Civil Code of the Republic of Lithuania Official Gazette..., 2021).

Non-transferability of a bank guarantee

The principle of non-transferability of a bank guarantee is some of the mandatory features of such legal relationships, the content whereof is not as complex and broad as other features of a bank guarantee (e.g. the solvet el repete principle, the principle of abstractness, etc.), and which implies that the creditor may not assign to other persons the rights under the bank guarantee which it has against the guarantor.

The prohibition on the assignment of a claim under a bank guarantee is not absolute and its application is limited by the principle of freedom of contract. The assignment of such a right is subject to the guarantor’s own consent, which may be given either at the time of the issue of the bank guar-

antee, with a general provision, or after the bank guarantee has been issued, but in such a case it is necessary to formalise the guarantor’s consent by means of a specific amendment to the bank guarantee, which is an integral part of the bank guarantee (Khotenashvili, 2003). The debtor’s will and consent, however, are irrelevant in this case. The rationale for this position is that the transfer of a creditor’s claim to another person may increase the risk that the guarantor has assumed by issuing the bank guarantee, i.e., the new transferee of the claim may be less reliable than the previous holder of the claim (De Ly F., 1999). In fact, a rather interesting situation is modelled by international banking practitioners, who emphasise the partial assignment of a claim under a bank guarantee, in which case each beneficiary of the bank guarantee acts entirely independently in the part of the claim assigned to them (Schich, 2009). Such situations are quite rare in practice due to their complex operating mechanism and are even avoided, as this increases the risk of using such a transferred right of claim in bad faith, i.e., for deception or in order to abuse the existing right (Bailey, 2003). However, while some scholars question whether the free change of creditor in the obligation implies a mismatch in the substance of the legal relationship of the bank guarantee, and note that in international commercial practice, bank guarantees are usually used to secure large contracts which are not overly trusted (Affaki and Goode, 2011). However, the prevailing view in international instruments supports the importance of such a limitation in these legal relations.

The URDG Rules cover this issue quite extensively and Article 33(a) of the URDG Rules states that a bank guarantee is only transferable if it expressly provides for it, while counter-guarantees are prohibited. It should be noted that Article 33(d) of the URDG Rules even sets out certain requirements applicable to the assignment of rights under a bank guarantee, i.e. a transferred guarantee should include all amendments to which the transferor and guarantor have agreed as of the date of transfer; and a guarantee can only be transferred where the transferor has provided a signed statement to the guarantor that the transferee has acquired the transferor’s rights and obligations in the underlying relationship. Article 9 of the UNCITRAL Convention contains a similar but less detailed rule on the non-transferability of a bank guarantee, but, unlike the URDG Rules, Article 9(2) deals with the issue of the mandatory consent of the other person, i.e., if the text of the

bank guarantee does not specify precisely whether the consent of another person is necessary for its transfer, neither the guarantor nor other persons have the right to influence such transfer of rights. Meanwhile, the regulatory practice of the draft PECL on the matter in question is to be criticised, since Article 3:108(1) of the draft PECL expressly provides that the creditor’s right of claim against the guarantor under the performance bond is assignable, which is not in line with the above-mentioned international regulatory practice. However, Article 3:108(2) of the draft PECL already provides for an exemption for independent means of securing obligations on first demand (which corresponds to the legal relationship of a bank guarantee), which is analogous to the regulation of the URDG Rules and the UNCITRAL Convention. The commentary to the draft PECL states that such regulation aims to strike a balance between the general principle of the free disposal of rights by the right holder and the protection of the guarantor against the threat of abuse by a potential creditor (Byrne, 2015). Although it is not entirely clear why the drafters of the PECL have chosen such a regulation, and why they have included in a single provision two essentially contradictory rules of principle regarding the principle in question, as long as Article 3:108(2) of the draft PECL provides for an exception limiting the transferability of the rights under independent security arrangements of the first-call collateral (which is equivalent to a bank guarantee), this is in line with general international standards.

Meanwhile, in the Lithuanian legal system, this principle of bank guarantee is established in a similar way as in the above-mentioned international documents, but in a less detailed manner, i.e., Article 6.95 of the Civil Code provides that the creditor shall not have the right to transfer the right of claim secured by a bank guarantee to another person, unless otherwise provided for in the guarantee. Thus, the principle of non-transferability of the guarantee is enshrined in a dispositive legal rule, which shows that this principle is not absolute, i.e., although there is a presumption of its application, it is not necessary for the existence of a legal relationship of a guarantee on first demand, and its non-application depends only on the common will of the parties to such a legal relationship.

At the same time, it is necessary to analyse another limitation of the prohibition on the non-transferability of a bank guarantee, which requires an assessment of the nature of the rights that are not transferable under the bank

guarantee, as another group of property rights that are relevant to this legal relationship are the rights to receivables under a bank guarantee. The main feature of the assignment of this right is that the transferee has only those rights which their assignor can claim under the bank guarantee. This is also different from the assignment of a claim under a bank guarantee, since only in the latter case a new legal relationship is created between the guarantor and the new beneficiary (Mugasha, 2003). It should be noted that such an assignment of a right to receivables under a bank guarantee does not involve the guarantor, since the guarantor, upon receipt of a valid claim from the creditor (the beneficiary of the guarantee), pays the relevant amount set out in the bank guarantee, at which point the guarantor’s interest ends (Byrne, 2014). It is therefore irrelevant to the guarantor who exactly will receive the payment and who will be the “end-user” of it. It also follows that the creditor’s freedom to assign its right to the receivables under the bank guarantee is not restricted by any requirement to obtain the guarantor’s consent to such an assignment, since the legal relationship between the provider and the beneficiary of the bank guarantee remains unchanged after the creditor has assigned the right to the receivables to others (Byrne, 2014).

This approach towards the possibility of transferring the property rights to the receivables under the bank guarantee is also enshrined in international instruments, i.e. Article 33(g) of the URDG Rules explicitly states that, irrespective of whether a bank guarantee provides for the possibility of transferring the rights held on the basis of that guarantee, the creditor may still entrust the payment of the benefit received under the bank guarantee to another person, but at the same time it provides that such an instruction by the creditor is not binding unless the guarantor has agreed to do so. The same rule is provided for in Article 10(1) of the UNCITRAL Convention and Article 3:108(2) of the draft PECL, but these provisions are more concise than in the URDG Rules. Thus, these international instruments share the same position that the principle of non-transferability of a bank guarantee cannot be interpreted broadly and cannot cover the right of a creditor to assign receivables under a bank guarantee. Accordingly, in international regulation, the term ‘transfer’ should be treated in two different ways, i.e. when exclusive rights or receivables under a bank guarantee are transferred. While the impact of the assignment of receivables under a bank guarantee on this legal relationship is not discussed further in Article 33(g) of the URDG Rules

and in Article 3:108(2) of the Draft PECL, and only general provisions are established, the UNCITRAL Convention analyses this issue in more detail, stating that if the creditor (the beneficiary of the guarantee) has transferred the right to receivables under the bank guarantee and if the guarantor or another person obliged to execute the payment under the bank guarantee has received from the creditor notice (warning) of such transfer, the guarantor, having paid the amount specified in the bank guarantee to the assignee, shall be relieved of liability to the creditor in the amount of the amount paid. Unfortunately, it should be noted that Article 6.95 CC, which directly establishes the principle of non-transferability of a bank guarantee in general terms, does not differentiate the application of the prohibition of transferability of a bank guarantee and does not exclude the transfer of receivables under a bank guarantee from its content. As a result, such legal regulation is imprecise and risks unjustifiably extending the scope of such prohibition, i.e., by preventing the creditor from transferring the receivables under the bank guarantee to another person. Based on the above, it is obvious that the Lithuanian legal system needs to take measures to remove this inaccuracy from the legal regulation, as such regulation directly threatens the interests of the subjects of the bank guarantee legal relationship.

Documentary nature of a bank guarantee

The documentary nature of the bank guarantee is a necessary feature and a prerequisite for the proper functioning of this legal relationship. The legal doctrine defines the legal relationship of a bank guarantee as purely documentary in nature, on the ground that it is this characteristic that enables other features of the bank guarantee to be realised, i.e., that this characteristic is relevant for ensuring the principle of abstractness, since only a written agreement can effectively distinguish the guarantor’s obligation from the underlying agreement (Bendros pagrindų sistemos projektas..., 2021), and this characteristic protects the guarantor from external additional negative factors by reducing the risk of its operation and limiting it to the conditions agreed in the bank guarantee itself, so that only under these conditions can a specific operating mechanism under the bank guarantee based on the principle of selvet et repete be realised (Bailey, 2003). The authors also point out that the purpose of such a requirement is to create a certain clarity and certainty in these legal relations, on the one hand, and

to enable the guarantor to be aware of the legal consequences assumed, on the other hand, and that such a requirement also determines the question of the validity of the bank guarantee itself (Malek, 2009).

The rules governing international commercial practice define the documentary nature of a guarantee in several different ways, but it is unconditionally accepted. The URDG Rules do not explicitly identify the documentary nature of a bank guarantee as an independent and obligatory feature of such a guarantee, but it can be identified from the mechanism of operation of the bank guarantee as set out in the URDG Rules, i.e. the documentary nature is a necessary condition for the entry into force of the bank guarantee (Article 6 of the URDG Rules), reducing the amount of the guarantee (Article 8 of the URDG Rules), payment under such a guarantee (Articles 9, 10, 19 and 20 of the URDG Rules) and its end (Article 22 of the URDG Rules). Thus, the documentary character of the bank guarantee is revealed in the most important stages of the existence of such legal relations, when these legal relations arise, develop, modify and end. In the same way, the documentary character of this legal relationship is enshrined in the UNCITRAL Convention. Meanwhile, the provisions of the draft PECL intended to regulate security measures for the performance of obligations of a personal nature do not clearly define the aforementioned principle either, but the systematic analysis of the provisions of this document governing the mechanism of operation of such measures reveals their documentary nature, and in particular, in accordance with Article 3:103 of the draft PECL, establishing the obligations of the guarantor upon receipt of a written demand for payment from the creditor, Article 3:104, establishing the rules of operation, Article 3:107 of the draft PECL, defining the peculiarities of the operation of a security for the performance of independent obligations of a personal nature on first demand, and other provisions.

Meanwhile, when assessing the practice of legal regulation of Lithuania, it should be noted that this is probably the only characteristic of the bank, which is enshrined in the legal regulation, but with certain peculiarities. Article 6.91 of the CC, which defines the form of the guarantee itself and mandatorily states that the guarantee must be made in writing, is intended to establish the documentary feature of the guarantee, and failure to comply with such form invalidates it. The documentary character is also enshrined in the special provisions governing the legal relationship of the

bank guarantee, i.e., Article 6.93 (1) of the CC, defining the concept of bank guarantee, emphasises the obligation of a written form of a bank or other credit institution (guarantor) under the bank guarantee agreement to the debtor’s creditor. It should be noted that Article 6.93 (4) of the CC defines the documentary process not only in the area of activity of the guarantor, but also in the area of activity of the creditor, i.e., this norm states that the creditor’s claim to perform the contract must be submitted to the bank also in written form and accompanied by all the necessary documents. Thus, the regulation established by the CC, which speaks separately expresis verbis about the documentary nature of the bank guarantee in comparison with international regulation, is quite innovative and represents a significant step forward.

In this context, it is also necessary to briefly discuss another important aspect – the problem of non-documentary conditions, which has been the subject of much attention in legal doctrine, not only in terms of its legal assessment, but also in terms of its significance in the legal relations in question. In particular, it should be noted that such conditions are conditions which do not require the submission of specific documents in order to exercise the guarantor’s right to obtain the necessary amount of money under the bank guarantee (Bethell-Jones, 2006). In practice, this takes the form of the provision of certain important circumstances in the text of the bank guarantee, but the text does not specify the procedure for how and in what way the existence of such circumstances should be documented and confirmed by the guarantor when making a claim for payment under the bank guarantee, and often such abstract circumstances by their very nature are even the subject of a possible separate dispute, e.g.: breach of the lease, etc. (Bethell-Jones, 2006).

In the past, banks acting under bank guarantees have sought to specify such conditions in various ways, either by specifying the specific documents that were required to be provided in order to obtain payment under the bank guarantee, or by requiring the creditor to provide the necessary documents to confirm the fulfilment of the relevant condition in the text of the bank guarantee, for the purposes of a subsequent assessment of their sufficiency (De Ly, 1999).

It was subsequently observed that it is quite difficult for banks to determine, in each different and sometimes quite specific legal relationship, which

specific documents submitted to the guarantor could prove the existence of the legal fact stated in the guarantee. As a result, the international community dealing with bank guarantee legal relations and the subjects of this legal relationship have reached a common position that such commercial practice is flawed, i.e. such terms should be ignored as they pose a real threat to the principle of independence of the bank guarantee, especially as the bank’s assessment of the facts, which is beyond its knowledge, is not robust, and it is for the court or other body that settles disputes between the parties to decide on such a matter, where the parties are in extreme disagreement (Ellinger, et. al. 2010). In such a situation in business practice, this prohibition of bank guarantee conditions of non-documentary nature was later enshrined in the documents regulating international commercial practice. Both Article 6© of the UNCITRAL Convention, which defines the content of the term counterguarantee as used in this instrument, and Article 6(e), which defines the content of the term confirmation, expressly state that this regulation is applicable only to terms of a documentary nature. Meanwhile, the URDG rules, unlike the UNCITRAL Convention, make a separate Article 7 for the solution of this problem, which expresses a specific prohibition on invoking and complying with the conditions of the bank guarantee, which does not require the production of any documentary evidence, or the fulfilment of such conditions cannot be understood on the basis of the previous practice of the parties. Thus, it can be seen that the URDG Rules are in step with the current needs of business practice and provide not only a comprehensive solution to this issue but also a liberal approach to it, since the aforementioned Article 7 of the URDG Rules allows for the specification of the terms and conditions of such an undocumented bank guarantee, based on the parties’ previous practice, which in fact gives sufficient flexibility to such an insurance.

Meanwhile, the concise regulation set out in the draft PECL does not foresee or address this problem. The same situation exists in the Lithuanian legal framework, as the laconic legal regulation of guarantees and bank guarantees in Article 6.90-6.97 CC does not directly address this situation. Although the above-mentioned provision of Article 6.93(4) of the CC establishes an obligation for the creditor to submit the relevant documents substantiating his claim under the bank guarantee, the submission of such documents is essentially linked to the existence of such a claim in the text of the bank guarantee, and, therefore, the provision of non-documentary con-

ditions in the bank guarantee for the performance of the guarantee would not lead to any breach of the law, which makes it difficult to make an objective assessment of such conditions, requiring attention to be paid to the conditions of the bank guarantee. Therefore, such an important issue as the prohibition of non-documentary clauses in bank guarantee legal relations should be resolved expressis verbis in the legal regulation, since leaving this issue to the court practice, there is a risk of inappropriate treatment of such situations when resolving disputes between persons.

Conclusions

1. Although the principle of non-transferability of a bank guarantee is a mandatory feature of this legal relationship, it is not absolute, as it is based on the principle of freedom of contract and does not apply in its entirety to the creditor’s rights under a bank guarantee. The URDG Rules, the UNCITRAL Convention and the draft PECL set out the same position, both by providing for the prohibition of the transferability of a bank guarantee in the dispositive provisions and by excluding from its application the property rights of a creditor to transfer receivables under a bank guarantee. 2. As in international instruments, the principle of non-transferability of a bank guarantee in Article 6.95 CC is also enshrined in a dispositive legal norm, but the legislative regulation does not differentiate the creditor’s property rights under a bank guarantee and does not limit the application of this principle to the creditor’s rights to assign receivables under a bank guarantee as in the practice of the regulation of the international instruments, which leaves a risk of unjustified expansion of the scope of application of such insurance. 3. The documentary nature of the bank guarantee is a prerequisite for the proper functioning of this legal relationship, as the obligation of the bank guarantee and its performance should itself be documentary. While the URDG Rules, the UNCITRAL Convention and the draft PECL regulations reveal this feature by systematically analysing the provisions regulating the stages of the existence of such legal relations, the Lithuanian legal regulation is more advanced and clearly defines the documentary nature already in the very concept of bank guarantee. 4. The analysis carried out showed that only the URDG Rules and the UNCITRAL Convention address the issue of non-documentary clauses by es-

tablishing an unambiguous prohibition of such clauses in the bank guarantee, whereas the laconic regulation of the draft PECL and the CC addresses these issues, thereby preserving the risk of such a problem and distorting the mechanism of operation of the bank guarantee.

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MOST FAVORED NATION TREATMENT CLAUSE IN BILATERAL INVESTMENT AGREEMENTS

Dalia Perkumienė, Oleksandr Matvieiev, O legas Beriozovas

Vytautas Magnus University (Lithuania); Taras Shevchenko National University of Kyiv (Ukraine), Kazimieras Simonavičius University (Lithuania)

Annotation

The Investment activities is the area of law most commonly relating to the relationship between states and investment-actors. Unlike international trade law, investment law does not have a large number of multilateral and universal agreements that could serve as a basis for international investment relations. In this regard Bilateral Investment Agreements (BIT) along with its specific provisions are regarded as a commonly shared mechanism of investment protection.

Key words: the most-favored-nation provision, fair and equal treatment, bilateral investment treaties, International Center for the Settlement of Investment Disputes.

Introduction

In the context of a globalized system of international investment relations, the issue of regulation of rule-making activities deserves special attention. The modern system of investment relations is based on very specific bilateral investment agreements, which contain the basic principles of cooperation for certain categories of legal entities, that include states as parties to the agreement and investors (Odio, 2020).

The fact that countries have chosen a special method of investment relations regulation, by concluding separate agreements between two countries, suggests that there is no complete system of international investment law. However, this assumption is extremely erroneous, because in such agreements there is a provision that turns individual acts into a single system, and this is really about provision on the most-favored-nation treatment (MFN). The peculiarity of this provision is to ensure equal legal treatment for all participants in investment relations and to accord participants of such relations with the right to import, any provision of investment agreements concluded with third countries.

The relevance of the study: The provisions on MFN, by their significance, play the role of a guarantee for ensuring the principle of equality in international investment relations and have very specific features in the context of application. Particularly acute is the issue of international investment disputes, in which arbitrations create decisions that give rise to contradictory approaches to the interpretation of the provisions on MFNs, which in the future directly flow to international investment relations. This topic is especially relevant for Ukraine, given the investment arbitrations against the aggressor country of the Russian Federation.

The purpose and objectives of the article: The purpose of article is to study the legal framework, approaches to the interpretation and application of the provisions on MFN. To achieve this goal, the following tasks are expected to be achieved: - Study of the legal nature and purpose of such a provision; and - Study of problematic aspects of the provisions on MFN in the context of investment disputes.

Research methods: The following basic methods were used in solving the tasks: 1. Analysis of legal documents (study and processing of the content of bilateral and model investment agreements). 2. Analysis of arbitration decisions (study and processing of the content of investment arbitration decisions). 3. Systematic-legal method (determination of regularities and connections between the essence of the provisions on MFN and the purposes of their application in practice); and 4. Generalization method (formulation of own conclusions on the basis of the processed sources).

Purpose of application of the most-favored-nation provisions

In the context of international investment activities, MFN is an important to ensure equal level of treatment between all partners and it is a central pillar of the international investment system. The MFN aims to ensure an equality between investors in different countries and provides strong guarantees to avoid any discrimination that could potentially lead to unfavorable competition. Thus, MFN standards help to establish equal competitive

opportunities between investors from different countries. Such guarantees provide investors with the opportunity, in case of violation of the principle of equality, to import more favorable provisions of agreements concluded with third parties (Sauvant, Sachs, 2009).

The MFN clause is essential and key contractual instrument that very clearly follows the purpose of the Investment Agreement itself, ensures equality of treatment, conditions between foreign entities and offers protection for investments, providing less limited opportunities for investment activities. In practice, the MFN provisions are part of about 2,600 agreements, the subject of which is regarded as protection of foreign investment (Stanivuković, 2012).

Of course, given the large array of bilateral investment protection agreements, a number of issues inevitably arise regarding the heterogeneity of the wording of the provisions on MFN. However, despite the different scope and exceptions provided for in the separate agreements, the purpose of the MFN remains the same and is to ensure equal protection of all partners and / or their investments. The issue of „multilateralization“ of rights and freedoms, which arises in the case of the application of the provisions on the MFN, is more acute now, as the parties to international investment relations are essentially creating a mechanism for directly borrowing provisions that may seem more favorable to them.

Problematic issues of MFN application

The most common category of investment disputes is a contradiction over the granting of a regime that is less favorable than that granted to third parties. In other words, this is a violation of the provisions on MFN.

In practice, the most common solution to such investment disputes is to apply the so-called “import provisions”, which are based on the existence of the same MFN provisions. The essence of such a mechanism is interpretated as follows: in case of proving the existence of a regime that is less favorable than that provided to third countries based on the provisions on MFN, it is allowed to import entire provisions of bilateral investment agreements with third countries.

It is due to such imports that the injured party receives a favorable regime that will meet the conditions of the provisions on MFN. Such imports, as a rule, cover: a) essential provisions; b) procedural provisions; and (c) se-

lective provisions contained in agreements with third countries. The following is a more detailed disclosure of certain aspects of the import of various types of provisions.

Import of essential provisions from investment agreements with third parties

Investors apply the provisions on MFN in order to import from investment agreements with third countries essential provisions, the wording of which seems to them more “favorable” than those contained in their own agreement. Especially often such imports are carried out to replace the provision of fair and equal treatment (hereinafter - “FET”), the content and scope of which is very controversial.

The reason for such disputes is the lack of a single standard for the wording of certain provisions, as a result, party to bilateral investment agreements resort to importing significant provisions (such as the provisions on FET) from agreements with third countries. However, it should be recognized that the dynamics of such disputes are declining, especially in the Western Hemisphere. I propose to investigate this issue further on the example of the provisions on FET.

Several investment arbitrations have examined the content and scope of the FET in the context of disputes between NAFTA States. As a result, the NAFTA Free Trade Commission provided an explanatory note stating that the content and scope of the FET provisions are limited by customary international law and cannot be arbitrarily interpreted in bilateral investment treaties between NAFTA member countries (Notes on the Interpretation of Chapter 11 of the North American Free Trade Agreement..., 2021).

As a result, the largest investors, North America Canada and the United States, reflected the interpretation of the FET provisions in their model bilateral investment treaties in the same way as the explanatory note to the NAFTA Free Trade Commission (Nikièma, 2017).

This example shows that the repeated import of the same provisions encourages countries to develop unified types of provisions to ensure a more favorable field for investment activities and to avoid future disputes.

It is pertinent to note that even after the unification of the wording of the FET provisions, there have been cases of importing the FET provisions to establish a more favorable regime.

In the case between the investor ADF Group v. The United States, the investor referred to the superiority of the FET provisions of the old bilateral investment agreements between the United States and Albania; The United States and Estonia, in which the FET provisions were treated in the old way.

The arbitral tribunal rejected the investor’s claim, ruling that the investor had not proved that the FET provisions contained in the agreements with Albania and Estonia were more favorable than those contained in the new model bilateral US investment agreement (Arbitration award in the case “ADF Group versus United States of America”..., 2021). However, despite the rejection of the investor’s claim, the arbitration in principle allowed the possibility of importing significant provisions on the basis of the provisions on MFN.

Import of new provisions that have no analogues in a separate investment agreement

There is a special type of import under which investors ask the arbitration to add a new provision to their own investment agreement, which can give them additional protection and promote regime which is no less favorable than that granted to third countries.

There is a certain practice of such imports, for example the Bayindir v. Pakistan dispute. In this case, the International Center for the Settlement of Investment Disputes (ICSID) allowed the application of the FET provisions of the 1995 bilateral investment agreement between Pakistan and Switzerland and the 1995 similar agreement between Pakistan and Turkey through the application of the SNA Regulation. The arbitration came to this conclusion based on two main arguments: first, the preamble to Pakistan’s basic investment agreement referred to the concept of FET, and second, the MFN provision was vague because Pakistan did not allow foreign investors to import provisions on FET (Arbitration award in the case of Bayindir versus Pakistan, 2003) properly.

In the case of MTD Equity v. Chile, the investor stated the need to import the “important provisions” provided for in the bilateral investment agreement between Chile and Denmark in 1993 and in a similar agreement between Chile and Croatia in 1994. These agreements contained provisions that could provide the investor with a regime no less favorable than that provided to investors from third countries. The ICSID arbitration accepted

the investor’s request on the grounds that this interpretation was consistent with the object and purpose of the preamble to Chile’s model bilateral investment agreement, according to which Chile “protects and creates an investment-friendly climate (Arbitration award in the case of MTD versus Chile, 2004)”.

Exclusion of provisions from the investment agreement

There are also cases when, investors sought to exclude certain provisions from bilateral investment agreements in order to ensure equal treatment. For example, in CMS v. Argentina, the plaintiff sought the exclusion of a specific provision in a bilateral investment agreement between Argentina and the United States of America. With the help of the MFN provision, he referred to other investment agreements between Argentina and third countries which did not contain a provision which placed him in a less favorable position. However, the ICSID Arbitration upheld the Argentine position: “the mere absence of such a provision in other treaties does not confirm the existence of a more favorable regime (Arbitration award in the case of “CMS versus Argentina”, 2005).”

It is important to note that the arbitral tribunal did not definitively rule out the possibility of such an exclusion, as it noted that the provisions on the MFN could be used to remove discriminatory provisions. However, in practice such a withdrawal has no place.

Expanding the scope of the agreement

The provisions on MFN are also applied in some cases to expand the scope of a bilateral investment agreement, extend its duration or expand the material scope. With regard to the extension of the contract, the plaintiff in Tecmed v. Argentina (Arbitration award in the case of “Tecnicas Mediambientales Tecmed S.A. versus United Mexican States”, 2003) tried unsuccessfully to reverse the provisions of the investment agreement in order to extend the provisions to events that occurred before the entry into force of the bilateral investment agreement.

As for the expansion of the material sphere, with the help of the provisions on MFN tried to import a more favorable definition of “investment”, which allows to extend the effect of the investment agreement an additional type of economic activity of the investor. Thus, in the case of Société

Générale v. The Dominican Republic (Arbitration award in the case “Société Générale In respect of DR..., 2003)), the arbitral tribunal rejected the investor’s position. Despite the fact that in attempts to extend the contract in time and expand the material part, in both cases the plaintiffs’ claims were not satisfied, however, it should be recognized that in both cases, the arbitration allowed the possibility of satisfying the claims of investors.

Conclusion

Given the precedent practice, it is clear that the provisions on MFN occupy an important place in international investment law. We shall acknowledge that this provision has played a major role in the process of international trade liberalization and promotion of investment relations. In addition, the provision on the MFN at the universal level ensures compliance with one of the key principles of international law - the equality of all actors.

However, it is obvious that this provision has significant problems in the context of interpretation. The problem of the so-called “multilateralization” of rights and freedoms, which arises as a result of the use of the provisions on the MFN, is particularly acute. In other words, investors have the opportunity to use a very unstable legal mechanism to protect their interests, which in theory allows them to import favorable provisions from investment agreements with third countries. The unlimited scope of the provision in conjunction with controversial practice (when in similar investment disputes arbitrations come to different conclusions) brings the issue of MFN to a particularly complex level, and sometimes leads to the interpretation of a particular set of words from MFN.

This problem is still relevant, the uncertainty of the scope of the provision is a potentially dangerous reason to believe that in the future MFN will either be used in bad faith, or lead to a protracted investment dispute.

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Limited and Empresa Distribuidora de Electricidad del Este, S.A. versus Dominican », (2003). Available via internet: https://www.italaw.com/sites/default/files/case-documents/ita0854.pdf, [visited 2021 04 08].

PECULIARITIES OF E-COMMERCE REGULATION DURING COVID-19 PANDEMIC

Dalia Perkumienė, Olegas Beriozovas, Oleksandra Puzanova

Kazimieras Simonavičius University (Lithuania); Kazimieras Simonavičius University (Lithuania); Taras Shevchenko National University of Kyiv (Ukraine)

Annotation

The electronic environment is gradually becoming a place of emergence of a wide range of public relations. At this stage, educational, social, as well as economic and other relations arise and develop. It should be noted that the rapid development of public relations needs a relevant legal regulation. Thus, the regulation of private economic relations in the electronic environment requires detailed research and regulation.

Key words: e-commerce, e Europe, electronic environment, external market, internal market, trade, pandemic, private economic relations.

Introduction

The rapid development of e-commerce plays an important role in various spheres of life and significantly contributes to the intensification of civil and economic turnover. However, the implementation and regulation of e-commerce during a pandemic is currently an important issue. Nowadays, the practice of states to regulate economic relations in the electronic environment is quite diverse, and specific rules of regulation are set by members of the international community (Bygrave, 2000). However, e-commerce gained momentum after the spread of COVID-19 (Coronavirus Survey Report..., 2021; Unpacking E-Commerce: Business Models, Trends and Policies..., 2019), so the issues of in-depth legal regulation of this phenomenon require detailed study.

The purpose of the research is to establish the peculiarities of e-commerce regulation in private international law, as well identify the main trends in the regulation of this issue.

E-commerce is considered to be business processes that involve a number of operations aimed at obtaining economic benefits through digital data transmission to obtain certain goods or services. As a business concept, e-

commerce also includes commercial transactions that take place through electronic means (Kwilinski, 2019).

It is worth noting that the commercial agreements cover a number of elements, in particular: direct e-commerce, electronic messaging and data exchange, electronic bulletin boards, electronic forms and catalogs.

Currently, there is no unified definition and legal document that would regulate uniform rules and standards of e-commerce at the global level. However, it should be noted that the World Trade Organization has taken the initiative to create such rules and standards - the decision was made at the World Economic Forum in Davos1 in 2019. In particular, about 75 countries took part in the talks on this issue, including the United States, Japan, China and the EU.

It should also be considered that the World Trade Organization in the definition of “e-commerce” directly implements the manufacture and distribution of goods through the electronic network.

Similarly, the UNCITRAL Model Law on Electronic Commerce of 1996 does not disclose the definition of electronic commerce, but in the meantime, the law provides for a broad interpretation of trade relations, both contractual and non-contractual.

As mentioned earlier, e-commerce includes the purchase and sale of raw materials, products and services through electronic platforms. Factors contributing to the growth of the e-commerce market during the COVID-19 pandemic include strong and stable growth of Internet users and increasing their awareness of online shopping (Taxation: Commission proposes postponement of taxation rules due to Coronavirus crisis..., 2020), as well as low prices due to mass purchases. In addition, the growing number of exclusive products on the market and lower commodity prices through direct distribution and economies of scale further contribute to the growth of the global e-commerce market. Moreover, following the COVID-19 pandemic (Serrano, 2021), social distancing and staying at home are expected to continue to motivate consumers to shop online.

To effectively implement social exclusion measures to curb the further spread of COVID-19, several governments around the world have encouraged online shopping as an alternative to physical shopping, and consumers have adapted their trading patterns and behaviors to minimize the risk of disease. In some developed countries, e-commerce platforms have

managed to solve problems without government intervention. In developing countries, some governments have been more proactive than others, particularly in countries where face-to-face operations have remained the norm.

Despite the constant challenges, in a pandemic, online shopping and ecommerce have actually become a backup solution. Therefore, questions arise as to whether the experience of the COVID-19 pandemic will encourage more consumers to change their purchasing behavior and increasingly resort to online shopping, and whether governments in these regions will prioritize and invest more in e-commerce and its infrastructure and legal regulation that facilitates e-commerce.

25 %

22,5 %

Share of e-retail sales 20 %

17,5 %

15 %

12,5 %

10 %

7,5 %

5 % 7,4 % 8,6 % 10,4 % 12,2 % 14,1 % 16,1 % 18,1 % 20 % 22 %

2015 2016 2017 2018 2019 2020* 2021* 2022* 2023*

Figure 1. Share of e-commerce in total retail sales worldwide 2015-2023 (E-commerce share of total global retail sales from 2015 to 2023, J.Clement, Statista 2020).

These statistics only confirm the extent to which the pandemic has affected consumer behavior and, consequently, the rapid growth of e-commerce.

An interesting study can also be found in the report of Ecommerce Europe, which was conducted among members of the National Association

of E-Commerce. The study addressed the general situation in European countries in the context of the spread of the virus and its impact on the ecommerce sector (E-Commerce, Trade And The Covid-19 Pandemic..., 2021; The role of the coronavirus crisis in e-Commerce, potentially boosting automation..., 2020; The Future of E-commerce..., 2017).

The results show that 93% of all respondents are completely or partially isolated, ie citizens of these countries can leave their homes only with some or very severe restrictions. However, in all cases, online stores are still allowed to maintain their activities. However, in 60% of cases, online stores have problems with their delivery mechanism. This may be due to restrictions on imports from third countries, and may also be related to general supply restrictions, such as on-site production, which lead to shortages of certain products. Although the closure of insignificant physical stores in many countries was expected to lead to a significant development of online stores, only 27% of respondents believe so. However, more than half (64%) of respondents said that while it is forbidden to open physical stores, in different countries they offer alternative options for delivery of products to their consumers. Of these respondents, in 78% of cases, the same physical stores start e-commerce (Impact of the Coronavirus on e-commerce [E-source] // Ecommerce Europe..., 2020; Statement on consumer and payment issues in light of COVID19..., 2020).

Thus, it can be concluded that the e-commerce sector is particularly important during the current COVID-19 outbreak.

States, international organizations, and other members of the international community have already taken or are taking budgetary and policy measures to increase the capacity of e-commerce and to provide assistance to those citizens and sectors particularly affected by the pandemic.

First, the recommendation of the European Banking Authority on encouraging and enabling online payments should be considered. This recommendation is in line with numerous statements by the European Banking Authority in the context of the situation caused by COVID-19. In this regard, it should be noted that this statement recommended that payment service providers support consumers in making payments without physical contact, using existing fraud reduction tools available for contactless payments at the point of sale in accordance with Article 11 of European Commission Regulation 2018/389, which complements the so-called PSD2.

Secondly, the European Commission (European Commission..., 1999) is currently working on taxation and e-commerce assistance to small and medium-sized businesses, given the difficulties currently facing businesses and Member States during the viral crisis. Accordingly, the Commission proposed to postpone the entry into force of the new provisions on VAT regulation in e-commerce for 6 months. These rules will apply from 1 July 2021 instead of 1 January 2021, giving Member States and businesses more time to prepare for the new regulation of VAT in the field of e-commerce (Statement on consumer and payment issues in light of COVID19..., 2020).

The Commission also decided to propose to set certain deadlines for the submission and exchange of information in accordance with the Directive on Administrative Cooperation (DAC). Based on the proposed changes, Member States will have three months to exchange information on financial accounts received by tax residents in another Member State. Similarly, Member States will have three additional months to exchange information on certain cross-border tax planning mechanisms (European E-commerce Report, E-commerce Europe..., 2019).

However, it should be noted that the proposed tax measures only affect the timing of reporting liabilities. The Commission remains committed to combating tax evasion. Both the European Parliament and the Council of the EU have been informed of these proposals. The Commission expects that both institutions will accept these proposals as soon as possible to ensure legal certainty for all stakeholders.

Third, such measures are taken at the national level in our country. Two bills No. 3220 “On Amendments to the Tax Code of Ukraine and Other Laws of Ukraine Concerning Taxpayer Support for the Period of Measures to Prevent the Occurrence and Spread of Coronavirus Disease (COVID-19) of March 17 and No. 3275 “On Amendments” were adopted to certain legislative acts aimed at providing additional social and economic guarantees in connection with the spread of coronavirus disease (COVID-2019) of 30 March. These regulations extend a number of provisions of previous legislation and provide additional steps to support business, fiscal easing and change the timing of taxes, which, of course, will support the development of small and medium-sized businesses that have transferred physical business to online trading platforms.

Therefore, we remain confident that the proliferation of COVID-19 will have a particular impact on e-commerce platforms even after the quaran-

tine measures have been eased, given the processes that significantly contribute to the expected development and growth of the e-commerce sector.

Conclusions

1. So, after analyzing all this material, we can conclude that this topic is extremely relevant given the process of globalization prevailing in the modern world, due to which the implementation and regulation of e-commerce is becoming increasingly important. 2. In the course of the work, the characteristics and specifics of the concept of e-commerce, which should be defined as the implementation of any commercial transactions carried out by electronic means, were studied. 3. The impact of the spread of COVID-19 on the development and regulation of e-commerce, which is extremely relevant today, was also considered as well as measures of states, international institutions and other members of the international community aimed at tax relief and assistance to those citizens and sectors that were particularly affected by the COVID-19 pandemic were analyzed. 4. In addition, the main challenges for Ukraine in the field of regulation and implementation of e-commerce in a pandemic, as well as the impact of the above factors on the adoption of regulations to reduce the tax burden and provide assistance to small and medium businesses, which will also affect the rise of e-commerce.

Bibliography

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Europe-Coronavirus-survey-results- summary-19-March-2020.pdf; [visited 2021 03 18]. 3. E-Commerce, Trade And The Covid-19 Pandemic [E-source] // World Trade Organization. – 2020. – Resource access: https:// www.wto.org/english/tratop_e/covid19_e/ ecommerce_report_e.pdf; [visited 2021 04 08]. 4. eEurope Action Plan [E-source] // European Commission. – 1999. – Resource access: https://ec.europa.eu/idabc/en/document/ 70/5849.html; [visited 2021 04 08]. 5. European E-commerce Report [E-source] // E-commerce Europe. – 2019. – Resource access: https://www.ecommerce-europe.eu/wp- content/uploads/2019/07/European_

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Department for Economic, Scientific and Quality of Life Policies Directorate-General for

Internal Policies. – 2020. – Resource access: https://www.europarl.europa.eu/RegData/ etudes/STUD/ 2020/648797/IPOL_STU(2020)648797_EN.pdf; [visited 2021 04 02]. 12. The Future of E-commerce: The Road to 2026 [E-source] // OVUM. – 2017. – Resource access: https://www.criteo.com/es/wp- content/uploads/sites/8/2017/09/ovum-thefuture-of-e-commerce-the-road- to-2026.pdf; [visited 2021 04 08]. 13. The role of the coronavirus crisis in e-Commerce, potentially boosting automation and digitalisation processes [E-source] // Osborne Clarke. – 2020. – Resource access: https://www.osborneclarke.com/insights/ role-coronavirus-crisis-e-commerce-potentially-boosting-automation- digitalisation-processes/; [visited 2021 02 08]. 14. Unpacking E-Commerce: Business Models, Trends and Policies [E-source] // OECD. – 2019. – Resource access: www.oecd.org/going- digital/ unlocking-the-potential-of-ecommerce.pdf; [visited 2021 02 15].

EUROPEANIZATION OF UKRAINIAN BUSINESS LEGISLATION ON EXAMPLE OF EUROPEANIZATION OF UKRAINIAN FOOD LEGISLATION

Stanislav Kunts, Dalia Perkumienė

Taras Shevchenko National University of Kyiv (Ukraine), Vytautas Magnus University (Lithuania)

Annotation

The article notes that the launch of the Deep and Comprehensive Free Trade Area stipulated by the EU-Ukraine Association Agreement triggered a new stage in the Europeanization of Ukrainian Food legislation. The economic integration of Ukraine with the EU involves the mutual opening of markets for a great part of goods and services through an extensive regulatory approximation of legislation. It is argued that as a result of Ukraine’s implementation of the commitments undertaken under the Agreement to gradually bring its legislation closer to EU norms and standards in trade and related sectors, there will be a modernization of current Ukrainian legislation on the basis of the EU acquis.

Key words: Europeanization, Deep and Comprehensive Free Trade Area, Food legislation, Association Agreement, aquis.

Introduction

The launch of Ukraine’s Deep and Comprehensive Free Trade Area (“DCFTA”) with the European Union (“EU”) on 1 January 2016 as a result of the partial implementation of the Association Agreement between Ukraine and the European Union (“AA”) opened a new stage in the development of Ukraine’s relations with the EU. The practical implementation of the AA became a factor determining further directions of development of the Ukrainian legal order. First of all, it is a significant strengthening of the impact of EU law on Ukraine’s legal system, especially in the areas covered by the DCFTA, where the AA provides clear commitments for Ukraine to gradually bring its legislation closer to EU norms and standards. As a consequence of these commitments, the gradual Europeanization of Ukrainian legislation will take place.

The Ukrainian agricultural sector is to benefit most from the reduction in import duties: € 330 million for agricultural products and € 53 million for

processed agricultural products. Therefore, we decided to describe the Europeanization of Ukrainian Food legislation as a major regulator of Ukrainian business and Ukrainian trade relations with the EU (Olsen, 2004).

Ukrainian food legislation is a good example to illustrate the mechanism of sectoral Europeanization. The development of food legislation is of considerable interest as it affects both the export potential of domestic farmers and the health of average citizens. In the Association Agreement (“AA”) the issue of food legislation is covered in Chapter 4 “Sanitary and Phytosanitary Measures”, Section IV, including Articles 59-74 of the AA (“Chapter 4 of the AA”), as well as Annexes IV, V of the AA.

In accordance with Art. 59 of the AA, the purpose of Chapter 4 of the AA is to facilitate trade between Ukraine and the EU with regards to goods covered by sanitary and phytosanitary measures (“SPM”) while ensuring the protection of human, animal, and plant health by bringing the Ukrainian legal system closer to the European Union legal system.

The immediate legal basis for the Europeanization of Ukrainian food legislation is Art. 64 of the AA. In particular, it contains a clear commitment by Ukraine to approximate its phytosanitary and animal welfare legislation to that of the EU, as defined in Annex V of the AA. There is an obligation for the Parties to cooperate on approximation legislation and capacity building opportunities. The obligation of the Sub-Committee on SFO management to regularly monitor the implementation of the approximation process provided for in Annex V of the AA in order to advise on approximation measures is enshrined in the AA.

Of particular importance for the further development of national food legislation is Ukraine’s obligation under Article 64 of the AA to provide the SFTA Management Sub-Committee within three months after the entry into force of the AA with a comprehensive strategy for the implementation of the provisions of Chapter 4 of the AA, divided into priority sectors concerning measures identified in Annex IV-A, Annex IV-b and Annex IV-c of the AA aimed at facilitating trade with regards to a particular type of product or group of products. The Agreement stipulates that this strategy will serve as a reference document for the implementation of Chapter IV of the AA and will be added to Annex V of the AA.

In pursuance of these commitments, the Cabinet of Ministers of Ukraine adopted by Order No 228-p of 24 February 2016 a comprehensive strategy

for the implementation of Chapter IV of the AA (“Strategy”), which contains a detailed list of agreed measures for systematic regulatory approximation of Ukrainian legislation, references to the relevant EU legislation, and fixes the planned preparation and implementation period of the respective measure.

Section 1 of the Strategy “Public Health” includes activities related to the definition of basic principles and requirements for food and feed safety; state control of SPM; labelling and information on food products. A separate block of the said section consists of measures applied to products of animal origin, including the main categories of products of animal origin for human consumption (meat, fishery products, milk, eggs, food additives, flavorings etc.).

Section 2 of the Strategy “Animal Health” includes measures applied to the main categories of live animals, measures on animal diseases, animal identification and registration, animal by-products, feed additives and feedstuffs, standards for animal housing and handling.

Section 3 of the Strategy “Phytosanitary Measures” covers measures for plants, plant products and other regulated articles. In particular, measures in relation to plant health, protection of plant variety rights, fertilizers, seeds and planting material, control of GMOs.

In accordance with Berezovska I. A. the Strategy includes in its implementation plan almost the entire set of basic (horizontal) and sectoral (vertical) EU food rules and covers more than 200 EU legal acts (Berezovska, 2017). The list of these acts is truly astounding, ranging from the basic Regulation No 178 / 2002, which defines the concept and principles of all EU food legislation, Regulation No 853/2004 on specific hygiene rules for food of animal origin and Regulation No 854/2004 on standards for the official control of animal products intended for human consumption, including the Animal Health and Veterinary Requirements Directives, to the Commission decisions on placing certain types of genetic material for human consumption on the market and the Regulation No 853/2004 on the regulation of the EU Council.

The Strategy sets a deadline for the implementation of each measure within the period from 2016 to 2021. A significant part of the EU food legislation was to be implemented in Ukrainian legislation during 2018. The assessment of the voluminous list of measures that cover almost all areas of public health, animal health and phytosanitary regulations suggests that

the gradual implementation of the Strategy begins an unprecedented reform of the Ukrainian food legislation, which will essentially result in the extension of the European food and phytosanitary legislation to Ukraine. Obviously, such a reform, driven by the need to develop trade relations between Ukraine and the EU, will have much broader implications for both the economy and other public relations in Ukraine.

It is important to notify those similar mechanisms of sectoral Europeanization are envisaged by the AA in other fields where the European Union is willing to share a portion of its domestic market with Ukraine, subject to approximation of Ukrainian legislation. At the same time, in different areas of trade relations covered by the Agreement, provisions on harmonization of legislation are presented differently: in some areas the process of legislative approximation is clearly related to the entry of relevant goods into the EU internal market and therefore the annexes contain a detailed list of relevant EU legal framework, while others are more general or do not even imply a clear legal obligation to approximate legislation. To a certain extent, this difference in approach to harmonization is due to the different objectives of each chapter.

Separately, we should enumerate the sectors in which innovative approaches to the legal regulation and modernization of Ukrainian sectoral legislation based on the EU acquis are applied, that shall affect the Ukrainian Food legislation as well, in particular: – technical barriers to trade (Chapter 3 of the AA, Annex III to the AA, Art. 56 AA, obligations of Ukraine in order to gradually achieve compliance with EU technical regulations, European procedures for standardization, metrology, accreditation and conformity assessment and market surveillance system to incorporate the relevant EU acquis into the legislation of Ukraine, as well as gradually transpose into national standards the corpus of European standards (EN)); – grounds of business, trade in services and electronic commerce (Ch. 6 AA, Annex XVII - obligations of Ukraine to ensure that “existing laws and future legislation will gradually achieve compatibility with the EU acquis”, in particular in the field of postal and courier services (Article 114), electronic communication services (Article 124), financial services (Article 133), international maritime transport services (Article 138);

– public procurement (Ch.8 Annex XXI - gradual approximation of

Ukraine’s current and future public procurement legislation to the EU acquis communautaire (Art. 153 AA); – the requirement to pay due attention to the relevant EU case-law and the measures introduced by the European Commission, as well as any changes to the acquis communautaire at the time of the adaptation of the Ukrainian legislation) competition (Ch.10 Annex XXI - Ukraine will bring its legislation and practice closer to the EU acquis Article 256).

The scope of planned legal regulation reforms to be implemented as a result of Ukraine’s obligations under the AA gives grounds to speak of the expected large-scale Europeanization of a number of branches of Ukrainian legislation.

In general, the provisions of the AA on DCFTA and the annexes to the Agreement provide for Ukraine’s obligation to implement hundreds of EU acquis acts, in particular EU regulations and directives, as well as international treaties and other normative documents. The CA establishes specific deadlines for such approximation, which range from 2 to 10 years after the Agreement enters into force.

It should be noted that the AA makes a clear conditionality in the practical implementation of the DCFTA and liberalization of trade relations on the timing, completeness, and quality of approximation of Ukrainian legislation to the EU acquis, including implementation and enforcement aspects.

Finally point that should be addressed in regard to the Europeanization of Ukrainian Food legislation, as well as all other branches of the Ukrainian legislation is the approximation to common European values. It is essential part in describing the horizontal Europeanization of Ukrainian legislation caused by the DCFTA. As pointed out by O. Sviatun, the European Union pays great attention to the issue of protection of European values both within the integration association itself and in its external relations (Sviatun, 2013; Muravyova et al, 2011). European values have a special place in the AA. In fact, they serve as «the foundation and cross-cutting component of the AA» (Kuzio, 2012). Article 2 of Section I «General Principles» lists the principles that should form the basis of the parties’ domestic and foreign policies and define them as the basic elements of the Agreement. Among them: respect for democratic principles, human rights and fundamental

freedoms, respect for the rule of law, ensuring respect for the principles of sovereignty and territorial integrity, inviolability of borders and independence, and combating the proliferation of weapons of mass destruction, related materials, and their means of delivery.

Conclusions

In conclusion we should point out that the value of the Association Agreement and the legal framework that it enshrines lies in the comprehensiveness of the manner of implementation agreed upon between the EU and Ukraine.

Thus, we may outline such basic approaches as strategical, technical, and political, which are applied in the course of Europeanization of Ukrainian Food legislation. It facilitates transformation of Ukrainian business at various levels and enhances not only a mere legal development, but also the core cultural development of Ukrainian business.

Moreover, it should be noted that the strategy of Europeanization of Ukrainian Food legislation includes t the entire set of basic (horizontal) and sectoral (vertical) EU food rules that only enhances its comprehensiveness.

After all, analysis shows that, as a result of the functioning of the DCFTA of Ukraine with the EU, Europeanization becomes a systemic legal phenomenon, ensures Ukraine’s integration with the EU internal market and determines the direction of the entire legal system of Ukraine.

Bibliography

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Agreement between Ukraine, on the one hand, and the European Union, the European

Atomic Energy Community and their Member States, on the other hand. Government

Courier dated 06.04.2016 No 65. 2. Association Agreement between Ukraine and the European Union and its member states.

Official Gazette of Ukraine of September 26, 2014, No. 75, Volume 1, p. 83, Article 2125. 3. Berezovska, I. A. Free trade zone with the EU as a driver of Europeanization of Ukrainian legislation. Journal of European and Comparative Law, Issue 1, 2017 4. Berezovska, I. A. Legal instruments for the implementation of the free trade zone of

Ukraine with the European Union. Law of Ukraine - K., 2016. - No4. P.35-45. 5. Sviatun, O. V. The principle of respect for human rights as a European value in the international agreements of the EU with third countries. Current issues of international relations K.: IIR, Vol. 115, Part 2, 2013, pp. 134-144.

6. Kuzio, M. Association Agreement between Ukraine and the European Union: special relationships based on values. NGO “Laboratory of Legislative Initiatives”, 2012. [Electronic resource]. - Access mode: http://parlament.org.ua/upload/docs/EU-Ukraine%20

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Marchenko. - Moscow, 2015. - 369 c. 8. Olsen, J. The Many Faces of Europeanization. ARENA Working Papers, 2002. P.1. Radaelli C. Europeanization: Solution or Problem? // EIoP. 2004. No 8 (16), P.1 9. Claudio, M. Radaelli European Integration online Papers (EIoP) Vol. 8 (2004) No. 16; http://eiop.or.at/eiop/texte/2004-016a.htm 10. Muravyov, V. I. Legal bases of regulation of economic relations of the European Union with third countries (theory and practice). - Kyiv: Akadem-Press, 2002. - 426 p. 11. European Union Law: a textbook. Ed. V. I. Muravyova. - K .: Jurinkom Inter, 2011. - 704 p.

3. PUBLIC LAW

ENVIRONMENTALLY FRIENDLY CAR IN HUNGARIAN LEGISLATION

Erika Farkas-Csamangó

University of Szeged, Hungary

Annotation

The EU considers it a strategic goal to propagate electric transport. This goal ties into (among others) the Europe 2020 Strategy, the Clean Transport Systems Initiative, and the Horizon 2020. In Hungary, the propagation of electric cars was accelerated by the adoption of the Jedlik Ányos Plan (Henceforth: Plan) in 2015.Electric vehicles reduce the sound pollution of traffic, they are significantly quieter than traditional motor vehicles.

Key words: environmentally friendly car, range extender, fast-charging, electric, charging station

Introduction

Thanks to the EU’s transport policy, recent decades saw the pollution caused by transport decline, while environmentally friendly transport technologies advanced. Reforms in this sector include methods which go beyond the usage of fossil fuels. The United Nations Climate Change World Report 2018, following the Paris climate summit in 2015, points the way to keeping warming below 1.5 ° C. This includes using alternative energy sources and switching to electric transport.

Today, we can find hybrid cars in every manufacturer’s catalogue, but electromobility is not just simply about electric motor vehicles (Kovács, 2018). Its purpose is to reduce pollution at the place of operation during the full lifecycle of the vehicle.

The beginning of electromobility lies in the appearance of the world’s first electric automobile, built by the Hungarian engineer Jedlik Ányos in 1828 (Wakefield, 1994). The electric motor vehicle was not invented by a single person but came into being through a series of revolutionary developments (Hawken, 2019).

One of their most important advantages is reducing CO2 emissions. Their environmental effect manifest globally (indirectly) and locally (direct-

ly). Their direct emissions consist of tailpipe emission, while their indirect emissions, well-to-wheel, are produced throughout their life cycle, from their manufacturing (and the manufacturing of their components) all the way to them becoming scrap. The electric car does not pollute its direct environment, and if electric power is generated through an environmentally friendly method (which can be covered through renewable energy), it does not pollute elsewhere as well.

These vehicles have the important advantage that they balance the strain on electric power system. When charging electric motor vehicles, energy is stored in the battery besides the energy gained from the electric power system.

Legal Background

The EU considers it a strategic goal to propagate electric transport. This goal ties into (among others) the Europe 2020 Strategy (Europe 2020 A strategy for smart..., 2020), the Clean Transport Systems Initiative, and the Horizon 2020 (Within Horizon 2020..., 2020). Car manufacturers are forced by ever more strict environmental rules and standards to develop hybrid, plug-in hybrid, and purely electric cars (Kovács, 2018). The EU’s regulation regarding the reduction of CO2 emissions incentivizes manufacturers to market low-emission motor vehicles (According to the transport white paper, 1990). And in order to incentivize the propagation of alternative fuels (Parliament adopted Act CXVII of 2010), the European Parliament and Council adopted the 2014/94/EU Directive (Directive 2014/94/EU of the European Parliament) (AFI Directive). Based on this, the member states are obligated to create national rules based on which a European infrastructure could be built for alternative fuels (electric power, biofuels, CNG, LNG, LPG and hydrogen). It established uniform requirements on the EU level too for electric motor vehicle charging stations, technical specifications, and consumer information. Member states are obligated to ensure that public charging stations provide adequate coverage for the use of electric motor vehicles at least in the urban/suburban agglomerations and other densely populated areas.

From the perspective of e-mobility, electric power is the cleanest of alternative fuels (In November 2016, the European Commission proposed..., 2020). When it comes to Hungarian regulations, the 17/2017. (V.26) NFM

(Nemzeti Fejlesztési Minisztérium – National Development Ministry) statute on the quality requirements of engine fuel, which expanded the category of allowed fuels (gasoline, diesel, biodiesel, E85, CNG, liquid hydrocarbon gas) with electric power used in transport.

The first step of Hungarian legislature was the 6/1990. (IV. 12.) KÖHÉM (Közlekedési, Hírközlési és Építésügyi Minisztérium – Transportation, Communication and Construction Ministry) statute, (Section (6)-(7) of paragraph 2 of the 6/1990) which created the definition of environmentally friendly motor vehicle. This included the electric motor vehicle (Electric vehicle: (a) a purely electric vehicle..., 2021) and the zero-emission motor vehicle (A zero-emission car is one which, 2021).

The Hungarian legislature partially addressed its obligations under the AFI by introducing electromobility-related amendments to the 2007. LXXXVI. law on electric power (VET). The Ministry of National Development adopted The National Policy Framework Program set up by the Deployment of Alternative Fuels Infrastructure Directive in the fall of 2016, in which the development of electric vehicles and charging infrastructure by 2030 has set out.

It contains that the charging of electric motor vehicles requires licensing, which can be acquired through the licence produced by the MEKH (Magyar Energetikai és Közmű-szabályozási Hivatal – Hungarian Energy- and Utility-regulating Bureau), except if the charging is accomplished through the personal measured user equipment of the residential or non-residential consumer (and this cannot be for the purposes of generating revenue).

In Hungary, the propagation of electric cars was accelerated by the adoption of the Jedlik Ányos Plan (Henceforth: Plan) in 2015 (The primary legislative tasks are set out by the 1487/2015). As part of the Plan, public administration proceedings related to the establishment of a fundamental charging infrastructure were deemed high priority proceedings by the 369/2015. (XII. 2.) Government statute. In a similar fashion, the 10/2016. (II. 9.) Government statute – modifying the 253/1997. (XII. 20.) Government statute (OTÉK) on national urban design and construction requirements – ensured that the propagation of electromobility is considered in residential environments.

The 170/2017 (VI. 29.) Government statute on certain questions of electric motor vehicle charging services created the foundations for the regulation of the charging market. The statues reinforced and expanded the fundamental definitions, and established the basic requirements related to

electric motor vehicle charging service and its pricing. It also made it clear that charging is not energy-trading but a service and defined the concept of electromobility service. A new pack of legislation was promulgated on 09.07.2019 (No. 120 of the Magyar Közlöny (Hungarian Official Journal) 2019) that (among other things) expanded the 1998. I. law on public traffic, (Points (f) and (g) of Section (1) of paragraph 2..., 2019) providing electromobility with a framework in the process.

According to point g) of the second section of paragraph 60. in the 326/2011. (XII. 28.) Government statute (on the administrative tasks related to public road traffic, the issuing of documents related to public road traffic and their revocation), it is possible to request special light green numberplates (According to 326/2011 (XII. 28, 2021) for environmentally friendly vehicles (Environmentally friendly vehicles as defined in Chapter I..., 2021). This can be accompanied by special advantages and rights (Such discounts include free parking, tax..., 2020). According to 326/2011 (XII. 28.) Government statute on the issuance and withdrawal of road transport documents, the color of the license plate issued to the environmentally friendly car is light green, its characters and the color of the frame are black, consisting of three letters and three numbers. In the case of a uniquely authorized registration plate, it shall consist of at least four, and at most five, continuous letters, and at least one, and at most two, continuous numbers, and together, it shall consist of six characters.

The acceptance and propagation of electromobility is limited by the acquisition costs, the effective range, the established charging infrastructure, environmental protection, security, and reliability (These factors are also confirmed by a survey conducted..., 2013). On one hand, the propagation of electric cars is slowed by the issue of effective range.

On the other hand, that these vehicles are more expensive to purchase compared to traditional combustible engine-based vehicles. The prices of plug-in hybrids and purely electric motor vehicles are increased by the inbuilt batteries. Subsidies could assist with purchases. A supportive system for purchasing electric cars is thus a highlightable element of governmental priorities.

Furthermore, propagation is slowed by the situation of the charging infrastructure. The charging network is ever-expanding, public chargers, fast-charging stations and commercial chargers are getting more innova-

tive and advanced (Zsebik, 2018). The spread of home-charging will also be important.

A further critical element of electromobility’s propagation is a security question related to the treatment of used up batteries. These are considered hazardous waste, and as such, manufacturers are working on solutions for repurposing and reuse.

The establishment of charging stations, supporting the purchase of electric cars through various systems and the support of technologies related to charging stations (from an industrial development perspective) are all important parts of the government’s tasks in this regard. Many areas of the electromobility sector (which has shown extensive development and innovation in the past years) could be regulated not just on the governmental side, but also on the market side. Hungary also provides support for purchasing electric vehicles and developing the charging infrastructure.

The propagation of solutions integrating smart cities and smart energy is desirable for Hungary as well, and these solutions will also provide charging services. Smart measuring will be indispensable for supporting electric transport on the long term.

Conclusions

In conclusion, legislation related to e-mobility in Hungary started with the amendments to the VET and the VET Vhr., which established the basic framework for the establishment of electric charging stations. This process is still at its beginning, and thus it would be worthwhile to wait for further detailed rules related to e-mobility investments. An electromobility law has been planned for years, but the Hungarian Parliament has not yet received a concrete proposal in this regard. Certain public duties connected to the propagation of electromobility in Hungary are handled by the so-called eMobi Elektromobilitás Nonprofit LLC. Electromobility is a rapidly evolving area, and has become the symbol of environmental consciousness, climate protection and sustainable development. It can also assist with fulfilling the 2030 EU objectives regarding climate and energy.

Bibliography

1. Kovács, Péter: Hol tartunk most, és merre tart az elektromobilitás? Elektronet. 2018.

Vol. 27. Issue 6, p.15. 2. Wakefield, Ernest H.: History of the Electric Automobile. Society of Automotive Engineers, 1994. 3. Hawken, Paul (ed.): Visszafordítható. HVG Könyvek, Budapest, 2019. 158. and Kampker, Achim: Elektromobilproduktion. Springer – Verlag Berlin Heidelberg, 2014. 4. Europe 2020 A strategy for smart, sustainable and inclusive growth, 2010, Brussels. 5. Within Horizon 2020, it provides funding specifically for electric vehicle developments. 6. Kovács, Péter: Az elektromobilitás kihívásai. Elektronet. 2018. Vol. 27. Issue 6, p. 3. 7. According to the transport white paper, the transport sector as a whole should reduce its CO2 emissions by 60% by 2050 compared to 1990 levels. In line with the „European strategy for low-emission mobility”, the European Commission presented three sets of proposals to Member States under the title „Europe on the move”. EU legislation has set the framework for the electromobility market by reducing CO2 emissions from new cars by 35 % by 2030 and from light commercial vehicles by 20 % by 2021. (European strategy for low-emission mobility) Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Brussels, 20.7.2016 COM(2016) 501 final {SWD(2016) 244 final} https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:52016DC 0501&from=HU (2020.01.17.) Regulation (EC) No 443/2009 of the European Parliament and of the Council of 23 April 2009 set out emission performance standards for new passenger cars. 8. Parliament adopted Act CXVII of 2010 on the Promotion of the Use of Renewable Energy for Transport and the Reduction of Greenhouse Gas Emissions from Transport.

This law defined the concept of alternative fuels, which could be at least partially substituting oil sources for transport energy: electricity, hydrogen, biofuels, synthetic fuels, Compressed Natural Gas (CNG) and Liquefied Natural Gas (LNG); and Liquid Petroleum Gas (LPG). 9. Directive 2014/94/EU of the European Parliament and of the Council on the deployment of alternative fuels infrastructure. OJ L 307., 2014.10.28. https://eur-lex.europa. eu/legal-content/EN/TXT/?uri=celex%3A32014L0094 (2020.01.05.) 10. In November 2016, the European Commission proposed a „Clean Energy for all

Europeans” package (IV or Winter Energy Package) to reform the energy market.

The share of renewables in electricity generation is already over 10% at EU level (up to 50% by 2050). https://www.kormany.hu/download/f/a9/a1000/Hazai%20 elektromobilit%C3%A1si%20strat%C3%A9gia.pdf 45. p. (2020. 01.18.) 11. Section (6)-(7) of paragraph 2 of the 6/1990. (IV. 12.) KÖHÉM statute on the technical conditions of registration and entry into service of road vehicles 12. Electric vehicle: (a) a purely electric vehicle, the power train of which comprises at least one electrical energy storage device, an electrical power conversion unit and an electrical machine which converts stored electrical energy to propel the vehicle into mechanical energy and has no other means of propelling the vehicle (i.e. BEV); (b) a plug-in hybrid electric vehicle, which is equipped with a connector and a converter, as factory design, to charge its electrical energy storage device from an external source of electrical power, with an electric range of at least 25 km (PHEV); (c) hybrid electric

vehicles with extended range, which comply with point (b) and have a pure electric drive range of at least 50 km (ie EREV). 13. A zero-emission car is one which, when used normally, does not emit air pollutants covered by the statute. 14. The primary legislative tasks are set out by the 1487/2015. (VII. 21.) Government statute by the adoption of the Jedlik Ányos Action Plan. 15. No. 120 of the Magyar Közlöny (Hungarian Official Journal) 2019. Act LXVII of 2019 on the Promotion of Long-Term Shareholder Participation and the Amendment of Certain Acts for Legal Harmonization. Effective October 1, 2019. 16. Points (f) and (g) of Section (1) of paragraph 2 have been added to the Act. Paragraph 32-34 of the Act LXVII of 2019 17. According to 326/2011 (XII. 28.) Government statute on the issuance and withdrawal of road transport documents, the color of the license plate issued to the environmentally friendly car is light green, its characters and the color of the frame are black, consisting of three letters and three numbers. In the case of a uniquely authorized registration plate, it shall consist of at least four, and at most five, continuous letters, and at least one, and at most two, continuous numbers, and together, it shall consist of six characters. 18. Environmentally friendly vehicles as defined in Chapter I, point 6 of paragraph 2 of the 6/1990. (IV.12.) KÖHÉM statute. 19. Such discounts include free parking, tax breaks, etc. See more financial incentives and benefits with regard to some countries: Polgári, Beáta – Farkas, Csaba: Villamos autók rendszerszintű szabályozási szerepkörei. https://www.mvmpartner.hu/huHU/Szolgaltatasok/Villamosenergia/Erdekessegek/Villamosautokrendszerszintuszabalyozasiszerepkorei (2020.01.28.) 1/1975. (II. 5.) KPM-BM joint decree prohibits the use of the bus lane by green license plates. 20. These factors are also confirmed by a survey conducted by Automotive World in 2013. (Automotive World: Technology Roadmap - Battery Electric Vehicles, 2013), which interviewed global automotive players. Among other things, they were asked what they thought was the only factor that would improve the sales of electric vehicles the most.

Almost half of the respondents mentioned the lower price in their response. 21. Zsebik, A. – Novák, D.: Alternatív hajtású járművek – melyiket válasszam? Energiagazdálkodás. Vol. 59. 2018. Issue 3-4. pp. 48-55.

THE NEW REGULATORY RULES OF APPLYING ANTICORRUPTION MEASURES FOR LITHUANIAN PUBLIC SECTOR

Raimundas Kalesnykas

Kazimieras Simonavičius University (Lithuania)

Annotation

The article presents a systematic approach on development a universal model for the prevention of corruption and applying anti-corruption measures for public sector entities (organizations) in Lithuania. Over the last two years, a number of new laws have been adopted in the field of the regulation the adjustment public and private interests, lobbying, protection of whistle-blowers, which have set the mandatory requirements for the public sector in applying the appropriate measures against corruption. From 1 January 2022, a new version of the Law on Corruption Prevention will enter into force, which shall lay down the basic principles, objectives and tasks of the prevention of corruption. One of the key changes in the new anti-corruption law is that public sector organizations will have to create an environment resistant to corruption, in other words, an anti-corruption environment.

Research focus on justification the hypothesis, that in order to minimize the spread of corruption, public sector organization need to find the reasonable and effective measures to create an anti-corruption environment. The purpose of the research is to assess whether the measures to prevent corruption set out in the new anti-corruption law will allow to create an environment resilience to corruption and to manage the risk of corruption prevalence in the public sector organization. Research results shows that the corruption prevention is fragmented and superficial in Lithuania, there is no clear system of measures to prevent corruption and subjects those responsible for resistance to corruption. By conveying new regulatory rules applied for Lithuanian public sector, the author presented an evidence - based approach for developing anti-corruption environment in which public entity will be able eliminate corruption risk factors, reduce corruption risk and successfully implement measures to prevent corruption.

Logical and comparative analysis, document analysis, problem analysis and systematic approach research methods are used analyzing issues related with the impact of new regulatory requirements for creating the environment resilience to corruption in public sector. The author concludes, that the development of an anti-corruption environment should become a strategic priority of the public sector organization and it would allow such organizations to promote transparent, fair and open provision of administrative, public and other services.

Key words: anti-corruption law, anti-corruption environment, public sector.

Introduction

Relevance of the subject. One of the main political priority of the Lithuanian Government is to reduce the scope and extent of corruption, increase transparency, fairness and openness in the public sector (Programme of the Eighteenth Government of the Republic of Lithuania, 2020). It demonstrates a Lithuanian Government wish to re-build a comprehensive normative and institutional framework for the fight against corruption. Over the last two years, a number of new legal acts have been adopted and entered into force, i.e. Law on the Adjustment of Public and Private Interests (2020), Law on Lobbying Activities (2021), Law on the Protection of Whistle-blowers (2019) and etc. For implementing these laws, a set of rules and recommendations was developed by different anti-corruption bodies (Special Investigation Service, Chief Official Ethics Commission, Prosecutor General‘s Office), which are acting as supervisors and controllers of the established rules. However, the public sector has faced difficulties of implementation the applicable rules due a lack of a clear systemic approach to the prevention of corruption and coordinated action in its implementation.

President of the Republic of Lithuania initiated and proposed to develop a new law on corruption prevention with the purpose to make leaders of public sector organizations personally liable for corruption risk management and the implementation of anti-corruption measures (President seeks to create an effective anti-corruption system, 2019). To address these issues, a new Law on the Prevention of Corruption was adopted by Lithuanian Parliament on 2021 and will enter into force on 1 January 2022. It enshrined the basic principles, objectives and tasks of the prevention of corruption, the measures to create an anti-corruption environment in the public sector organizations, also enshrined the primary responsibility to public sector organization to prevent corruption among themselves and their staff. The new anti-corruption legislation shows that the public sector must make a consistent transition and move from fragmented to a systemic prevention of corruption, which is based on the principles of subsidiarity and proportionality.

The novelty of research is manifested through the author’s critical analysis of assessing the effectiveness of new regulatory requirements to prevent corruption in public sector as a sustainable response to corruption. Lithuanian Government have made progress in addressing corruption in

public sector. It is a long-term strategic goal of the welfare of the state inscribed in the National Anti-Corruption Programme of the Republic of Lithuania for 2015-2025. Accordingly, the regulatory and institutional framework has changed setting the mandatory obligations for strengthening national security by reducing the threats posed by corruption in the public sector. The purpose of the research is to disclose the advantages of creating an anti-corruption environment within public sector organizations by applying the new regulatory rules of choosing the effective measures to prevent corruption. To achieve the purpose of the research, the author in this article sets two interrelated research tasks: 1) to identify the impact of a new legislation on the selection and application of appropriate anti-corruption measures by public sector organizations, and 2) to reveal the peculiarities of establishment an anti-corporate environment in order to justify its benefits in increasing the resistance of public sector organizations to corruption.

Measuring the implementation of anti-corruption policy in Lithuania shows that nearly 90% of public administration institutions, especially municipalities, ministries and institutions under the ministries, have followed the formal path of complying with regulatory requirements, other public administration institutions aware of corruption risk factors with which organizations are confronted in their everyday activities (Kalesnykas, 2017; Kalesnykas, 2020). In anti-corruption terms, such public sector organizations are considered highly trustworthy organizations, which, in addition to legal measures, also take the initiative in creating a secure anti-corruption environment. This article explores the research problem related with validation of standardized regulatory requirements of extending the scope of anti-corruption measures creating a resilience to corruption environment in the public sector. Research studies and legal analysis shows that there are perceptual gaps among the top managers of the public sector organizations on benefit integrating anti-corruption tools in the public administration and public governance processes. This is explained by the fact that very often the top managers of public sector organizations do not know where to begin in creating an anti-corruption environment and what components of the anti-corruption environment to choose first. This is a research hypothesis, that in order to substantiate it, the author uses the following research methods: logical and comparative analysis, document analysis, problem analysis and systematic approach. This may serve as an outcome of the re-

search for seeking alternative, but standardized tools of development the sustainable anti-corruption environment in public sector organizations covering appropriate legal instruments and regulatory mechanism to realize them.

The concept of anti-corruption environment in public sector

The term “anti-corruption environment” is a new concept that is rarely found in empirical research. Only in some several studies or methodological guidelines, we can find out an interpretive analysis of such concept (Kalesnykas, 2020). Quite often, the concept “anti-corruption environment” is used as synonymous with other similar categories such as “zero tolerance for corruption”, “environment unfavourable to corruption”, “corruptionresistant environment” (Guide for creation and implementation of an anticorruption environment in the public sector, 2018).

The most common perception of the anti-corruption environment is its association with the term “corruption prevention”. Corruption prevention as a legal category is enshrined in Art. 2 of the Law on Prevention of Corruption of the Republic of Lithuania, and defined as the systematic activities to improve the anti-corruption environment of public and private sectors entities, which includes detecting, eliminating and (or) reducing the corruption risk factors through the development and implementation of a system of measures to create an anti-corruption environment (Law on Prevention of Corruption, 2021).

A comparison of the content of above – mentioned terms indicated, that the term “corruption prevention” is a much narrower than the concept “anti-corruption environment”. From legal definition of the term “corruption prevention”, it could distinguished three essential elements, which could only partially compose the content of anti-corruption environment, i.e. corruption risk assessment and analysis, development and implementation anti-corruption programmes and imposition of sanctions for corruption - related offences. The concept “anti-corruption environment” covers a much wider spectrum of measures to reduce the prevalence of corruption in public sector organizations and these measures do not always based solely on legal requirements.

An assessment of the design and implementation of Lithuania’s anticorruption policy over the last 15 years shows that some measures to pre-

vent corruption have become ineffective and applied formally without analysis of their impact to the public sector organization’s activities. Realizing this, in 2018 the Special Investigation Service of the Republic of Lithuania drafted the Outline of Corruption Prevention (Corruption Resilience), which presented a comprehensive system for the development an environment of resilience to corruption (Outline of Corruption Prevention (Corruption Resilience, 2018).The main purpose listed in such document is to provide direction for updating the system of measures to prevent corruption and creating a new model of resilience to corruption in the public sector. Also, in the Outline of Corruption Prevention (Corruption Resilience) proposed to change the term “corruption prevention” to the term “resistance to corruption (or public integrity)”, as it more closely reflects the purpose of the objective, i.e. not only to strive to prevent corruption, but also real resilience to corruption. As can be seen, the Outline of Corruption Prevention (Corruption Resilience) has drawn guidelines for the transition from preventing corruption to a broader concept of corruption resistance, which is perceived as a model of the anti-corruption environment. Consequently, the term “anti-corruption environment” gradually acquires the meaning as a legal category, which is characterized by a holistic approach that encompasses a complex system using pro-active ir re-active corruption prevention measures in public sector organizations.

Currently, top executive managers of public sector organizations facing with situations when it comes to define what we consider an anti-corruption environment, what its components are and what the real benefits it can bring to an organization. It is necessary to be aware that development an anti-corruption environment should be one of a strategic goal of the public sector organization, in order to achieve it requires setting inner regulatory mechanism, which help an organization to prevent, detect and respond to corruption and comply with anti-corruption laws and commitments applicable to its activities.

In 2016, Special Investigation Service of the Republic of Lithuania initiated and developed Guide for creation and implementation of an anti-corruption environment in the public sector, which were updated in 2018 (Special Investigation Service, 2018). It is like a national anti-corruption standard and first structured document in Lithuania aimed at creating a sustainable anti-corruption environment in the public sector. While this document pro-

vides recommendations to public sector organizations how to identify and properly manage the corruption risks, strengthen its employees intolerance to corruption, build transparent and fair standards of behaviour, however, not all objectives of such document are clearly understood by the heads of organizations.

To sum, the term “anti-corruption environment” could be defined as follows, anti-corruption environment it is a regulatory-based environment in the public sector organization, in which constantly functioning a set of complex measures (pro-active and re-active) designed to ensure resistance (integrity) to corruption by reducing the scope of its prevalence in the organization. When designing the anti-corruption environment, the organization should prioritize activities that oppose or inhibit corruption and its efforts or commitments should be reflected in organizations’ strategy or anti-corruption policy.

Legal framework and mandatory requirements for the creation an anti-corruption environment

Perception of corruption in Lithuania shows a gradual improvement in recent years. Lithuania ranks 35th out of 180 countries in Transparency International’s corruption perception index 2021 (Transparency International, 2021) with a score of 60 points out of 100, compared to 48/100 in 2011. Public sector worldwide is increasingly taking steps to prevent and combat corruption effectively. This requires a comprehensive and multidisciplinary approach, focused on the performance of complex actions: legal, management, financial, promoting organizational culture and ethical behaviour of employees and awareness, why this is necessary (Kalesnykas, 2014). The United Nation Convention against Corruption (2005) defines main international standards in the area of prevention of corruption, also indicates the main directions for developing and implementing effective and coordinated anticorruption policies in public sector. As recognized by articles 7 and 8 of UNCAC, the States should put in place specific preventive measures, including adopting merit-based systems for the recruitment and promotion of civil servants, prescribing criteria for election to public office, enhancing transparency in the funding of political parties, preventing conflicts of interest, promoting codes of conduct for the public sector, and establishing systems for the declaration of assets (The United Nation Convention against

Corruption, 2005). It should be noted that several other binding and nonbinding international standards set up recommendations of developing the effective system for corruption prevention1 .

Lithuania takes an active role in anti-corruption efforts, most notably by adhering to and implementing relevant recommendations of international organizations in the field of strengthening public sector resistance to corruption. The last achievements are that in 2017 Lithuania acceded to the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (Law on Ratification the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, 2017), and that from 2019 entered into force the Law on Protection of Whistleblowers (Law on Protection of Whistle-blowers, 2019). In 2015, Lithuanian Government demonstrated a political will and paid due attention to building an effective mechanism on corruption prevention in public sector. The strategic impetus to create the anti-corruption environment is stated at the National Anti-Corruption Programme of the Republic of Lithuania for 2015-2025, whose paragraph 29.1.2 promoting the creation of the anti-corruption environment in the public sector (National Anti-Corruption Programme of the Republic of Lithuania for 2015-2025). Assumptions to create an anti-corruption environment in the public sector are diverse.

First, currently there are several different mandatory regulatory provisions applicable to the public sector organisations in the field of prevention of corruption. Mandatory legal requirements have not been systematized and the managers of public sector organizations often do not know where to begin, and what to do in preventing the manifestation of corruption

1 Report of OECD Anti-Corruption Network for Eastern Europe and Central Asia

“Prevention of corruption in the public sector in Eastern Europe and Central

Asia” (OECD, 2015); Report of OECD Anti-Corruption Network for Eastern Europe and Central Asia “Anti-Corruption Reforms in Eastern Europe and Central Asia:

Progress and Challenges, 2013-2015” (OECD, 2016); OECD Recommendation on

Public Integrity: a Strategy against Corruption (OECD, 2017); OSCE Handbook on

Combating Corruption (OSCE, 2016), Committee of Ministers of the Council of

Europe Resolution (97)24 on the Twenty guiding principles for the fight against corruption (CoE, 1997); “Quality of Public Administration - A Toolbox for Practitioners”, developed by the European Commission’s Inter-service group on Public

Administration Quality and Innovation (EC, 2017) and etc.

(Kalesnykas, 2017).

Second, the effectiveness of public sector organizations performance in preventing corruption and measurement of its achievements in such area is lacking due of the prevailing attitude of avoiding personal liability if the anti-corruption goals will not be achieved. Only rare public sector organization periodically perform self-evaluation to assess the effectiveness of applying corruption prevention measures. Most public sector organizations do not take the initiative and leave the right to deal issues related with the implementation of corruption prevention to a specialized anti-corruption agency. T. Hoope highlighted, that a well-functioning monitoring mechanism helps to ensure collection and analysis of data needed to track progress and assess results of corruption prevention, as well as the involvement of civil society in the process (Hoope, 2015, 41).

Third, the anti-corruption awareness of the leadership of public sector organizations and their support for anti-corruption initiatives is weak. Commitment to create a corruption-resistant environment should be the duty of a “leader” of the public sector organization. Such “leader” should be aware of corruption risk factors with which employees are confronted in their everyday activities, support employees with real actions and advice and promote an appropriate anti-corruption culture within the public sector organization. A. Van der Merwe argues that an effective anti-corruption measures should consider both the nature and causes of public sector corruption (Van der Merwe, 2006, 32). The lack of solid evidentiary bases for effective implementation of corruption prevention measures (including the failure to assess the feasibility of proposed anti-corruption measures), the absence of specific timelines and measurable indicators to assess the level and impact of corruption to public sector remain the main challenges for Lithuania. This is particularly evident in the health care sector (Buinickienė, 2017).

Lithuania has already developed legal framework that would allow public sector organizations to ensure adequate measures of resilience to corruption and the creation an anti-corruption environment (see Figure 1).

BEFORE

The new LAW ON CORRUPTION PREVENTION (from 2022)

Insufficient anti-corruption awareness Non - professional persons responsible for the prevention of corruption

Voluntary involvement of the private sector is encouraged

Ineffective, superficial measures to prevent corruption

FRAGMENTAL PREVENTION OF CORRUPTION

SYSTEMIC PREVENTION OF CORRUPTION

Level of resilience to corruption in institutions is unknown Insufficient involvement of the private sector to the prevention of corruption

Corruption prevention is fragmented and superficial, there is no clear system of actors responsible for resistance to corruption

Prevention of corruption is a systematic, clear rights, duties and responsibilities of persons responsible for resistance to corruption

AFTER

The transition from violence to volunteering is taking place

Renewed corruption prevention measures

Public sector entities are concerned with preventing the corruption of themselves and, as appropriate, of their subordinates

The rights and operational guarantees of persons responsible for the prevention of corruption have been established

Figure 1. The transition from fragmented to systemic prevention of corruption

Since 1997, anti-corruption laws of various kinds have proliferated in Lithuania and mostly dedicated to the issues of public sector integrity, corruption prevention and conflict of interest prevention. In Lithuania, separate laws cover a variety of anti-corruption measures, such as rules on the prevention of conflict of interest, declarations of assets and incomes of public officials, mandate of specialized anti-corruption agency, reporting

of corruption and protection of whistleblowers, anti-corruption expertise of legal acts, corruption risk analysis in public administration institutions, principles and obligations for the developing of the programmes on corruption prevention and etc. National anti-corruption laws were adopted in the framework of Lithuania’s commitments under the ratified the main international conventions on the fight against corruption, i.e. UN Convention against Corruption (Lithuania ratified in 2006), Criminal Law Convention on Corruption (Lithuania ratified in 2002), Civil Law Convention on Corruption (Lithuania ratified in 2002), OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (Lithuania ratified in 2017).

National regulatory framework in the anti-corruption area consists of two groups legal acts: primary legislative acts and secondary legislative acts. Primary anti-corruption legislative acts includes: 1) Law on Prevention of Corruption of the Republic of Lithuania, which was adopted on 29 June 2021 and replaced the former law, which had been in place for almost 20 years. The new law will enter into force on 1 January 2022 and its one of the cornerstones in the legal framework on the creation an environment of resilience to corruption. It is aimed at providing a systemic approach to the prevention of corruption in public sector organizations and its key features: a) being the primary responsibility of public sector organizations to prevent corruption among themselves and their staff; b) providing adequate rights, duties and operational guarantees for in-house corruption prevention; c) creating the conditions for measuring and comparing the level of resilience to corruption of public sector institutions, in order to foster greater incentives to implement anti-corruption measures. 2) Law on the Adjustment of Public and Private Interests in the Civil Service of the Republic of Lithuania (adopted in 1997, amended in 2020) set-up anti-corruption measures to prevent conflicts of interest such as declaration of private interests, self-exclusion in procedures related with decision-making, restriction of the right of representation, restrictions on the acceptance gifts or services and other limitations after expiration in the civil service. 3) Laws, regulating status, legal basis of activities, procedure for setting up, competence and organisational structure of the specialized anticorruption agencies, such as Law on the Special Investigation Service of the

Republic of Lithuania (adopted in 2000, amended in 2018) and Law on the Chief Official Ethics Commission of the Republic of Lithuania (adopted in 2008, amended in 2020). The role of these institutions is very important in that they provide recommendations and methodological assistance on the improvement and implementation of the provisions of anti-corruption laws.

Secondary anti-corruption legislative acts include specific anticorruption measures, embedded in Law on Lobbying Activities (adopted in 2000, amended in 2017), Law on Protection of Whistle-blowers (adopted in 2017, entered into force 2019), Law on Funding of and Control over Funding of Political Parties and Political Campaigns (adopted in 2004, amended in 2013), Law on Civil Service (adopted in 2000, amended in 2019) and Law on Public Administration (adopted in 1999, amended in 2014).

The analysis of anti-corruption laws shows, that in the process of creating the anti-corruption environment it is important for the public sector organization to evaluate and properly select the anti-corruption measures enshrined in the legislation. On the other hand, the anti-corruption measures contained in the above-mentioned legislation are not always presented as being reasonable and proportionate in practice. In this situation, public sector organizations do not fully apply the regulatory requirements on a full-scale basis, and if they apply, but do not feel the real and measurable benefits of such enforcement. Creation of anti-corruption environment based on legal requirements should become the initial direction for further actions in the public sector organization’s management system.

System of measures to create an environment resistant to corruption

Components composing the anti-corruption environment in public sector organizations are diverse (Handbook on Combating Corruption, 2016). In many cases, public sector organizations integrated mandatory regulatory measures into the anti-corruption environment. However, the regulatory measures are not always sufficient to solve issues related with the prevalence of corruption in those public sector organizations that pose high risk, for example, healthcare and medicine sector, municipalities, etc. (EU Anti-Corruption Report, 2014). Such type of organizations must search additional anti-corruption tools by which would be easier prevent, detect, and respond to corruption – related cases. These tools should be combined,

encompassing preventive (normative frameworks, risk assessment, recruitment, and training of personnel) or reactive (detection and investigation, disciplinary actions, penalties). Some scholars also supported this position as well and recommend the adoption of a holistic anti-corruption approach that addresses systematic aspects of corruption through a combination of measures: clear guidelines and policies, training, operational and HR management measures, risk analysis and monitoring, internal and external oversight, prosecution, and penalties (Klitgaard, 2008; Andersson, et.al, 2019).

As was noted before, Lithuania is trying to unify the creation of an anti-corruption environment by setting guidelines for the public and private sectors. Guide of anti-corruption environment in the public sector (Special Investigation Service, 2018) is the first structured document in Lithuania, which provides detailed information on how to develop and implement the anti-corruption environment in the public sector organization. Although the drafters of the guidelines stated that components forming an anti-corruption environment may be different and that there is no single universal model for creating anti-corruption environment in public sector organisation, but such a position is debatable. International good practice shows, that irrespective of the size and organizational structure of the public sector organization, the location in which the organization operates, the nature, scale and complexity of the organization’s activities, the constituent components of an anti-corruption environment must be uniform.

Components of anti-corruption environment that needed to be implemented are well recognized by international organizations (UN, OECD, OSCE, Transparency International GRECO, EPAC, European Commission and others), but the detail of the measures, incorporated in a separate component, to be used differ widely according to the relevant circumstances. Then, it is difficult or sometimes impossible to prescribe in detail what kind of anticorruption measures the public sector organization should apply in any situation. Then, the public sector organization is free to choose any anticorruption measures at its discretion, but such measures should be appropriate to corruption risk and their aim of preventing corruption. It should be noted that selected anticorruption measures could not be so expensive, burdensome, and bureaucratic that they are bring the public sector organizations’ activities to a halt, nor can they be so simple and ineffective that corruption can easily occur in the public sector organization. In the process

of developing an anti-corruption environment, attention should be paid not only to measures set out in the legislation but also follow to recognized international standards that prescribes a system of establishing, implementing, maintaining, reviewing and improving such measures. In other words, the anti-corruption environment is created by using a standardized model of anti-corruption management systems (ISO 37001: Anti-Bribery Management Systems, 2016; ISO 19600: Compliance management systems, 2014).

A newly drafted Law on Prevention of Corruption (2021) propose the system of measures to create an anti-corruption environment in public sector. Some anti-corruption measures become mandatory to incorporate in the activities of public sector organizations, and others are implemented in the light of the results of the corruption risk assessment. Based on the analysis of the new Law on Prevention of Corruption, it can be assumed that provided measures to prevent corruption set out in law constitutes the anti-corruption environment standard. Currently, there are useful to set up a uniform standard for building a system of anti-corruption measures in the public sector organization. In Lithuanian public sector, there is a peculiar model of the anti-corruption environment, the implementation of which is based on the set of the components and measures comprising the anticorruption environment (see Figure 2).

MEASURES TO PREVENT CORRUPTION

1) Corruption risk analysis 2) Corruption prevention planning documents 3) Anti-corruption assessment of legal acts or drafts thereof 4) Reporting of criminal acts of a corruptive nature 5) Determination of the probability of manifestation of corruption 6) Assessment of corruption risk management 7) Determination of the level of resilience to corruption 8) Implementation of anticorruption standards of conduct

Education, Training, Seminars, Methodological assistance events, Publicity campaigns

RAISING ANTI-CORRUPTION AWARENESS

ANTI-CORRUPTION ENVIRONMENT IN PUBLIC SECTOR

MEASURES TO ENSURE THE RELIABILITY OF STAFF

Provision of information about a person seeking or holding a position in a public sector organization 1) Declaration of private interests 2) Management of conflicts of interest 3) Declaration and management of lobbying activities 4) Reporting channels and protection of whistleblowers 5) Establishment of anti-corruption compliance function 6) Investigalion of breaches of the law and application of sanctions 7) Monitoring and control of the implementation of measures to prevent corruption

OTHER MANDATORY MEASURES PROVIDED BY LAW

Figure 2. Components and measures of anti-corruption environment

The anti-corruption environment is creating with the purpose of ensuring a long-term and effective control system of the prevention of corruption in the public sector. Public sector organizations should define the directions for creating the anti-corruption environment, i.e. directions might be: a) political, consolidating the fundamental values of the organization (integrity, good governance, openness, precedence of public interests over the private interests); b) legal, defining the legal framework for creating the anti-corruption environment; c) organizational, defining the management of the organization’s business processes in order to reduce the corruption risks and prevalence of corruption; d) economic, providing the resources (financial, human) needed for ensuring the establishment of the anti-corruption environment; e) cultural, encouraging personnel behaviour to comply with the code of conduct; f) education, ensuring appropriate anti-corruption awareness and training to personnel. Clearly defining the directions for creating the anti-corruption environment would allow the public sector organization to choose and properly implement corruption prevention mechanism.

The practical benefit of creating an anti-corruption environment in the public sector organization

During the past three years, some Lithuanian public sector organizations have made rapid progress in creating an environment unfavourable to corruption. Examples of good practice shows, how various components composing the anticorruption environment are perfectly integrated into the public sector organization’s business processes. Positive results and benefits are observed, as public sector organizations really perceive the impact of created anti-corruption environment in their daily activities. This is evident through the following features: improved the quality of administrative and public service, increased the transparency and openness of administrative procedures and decision-making, public trust to organizations’ activities, enhanced intolerance for and resistance to corruption, encouraged ethical behaviour, responsibility and accountability.

Some researchers argues that before creating an anti-corruption environment, it is important for the public sector organization to appreciate the benefits of implementing such an environment (Hanna, et.al, 2011; Spector, 2016). Of course, strong and sustained political will from top management is required for its effective implementation (OECD: Istanbul Anti-Corruption

Action Plan, 2008, 19). The drive for anti-corruption commitments and practices invariably demands leadership: the willingness to seek long-term and widely-shared benefits form from the created anti-corruption environment.

Anti-corruption commitments should be formalized in the anti-corruption policy of the public sector organization. Anti-corruption policy is a key, publicly available and binding document, stating main principles and basic provisions for implementing the anti-corruption environment. By this document the public sector organization refers what preventive action it will take of strengthening intolerance for corruption (for example, for unethical behaviour, nepotism, conflict of interest, bribery, trading in influence and other corrupt-related offences and less dangerous forms of corruption) and that comply with the requirements of the international and national legal acts in the field of corruption prevention. Anti-corruption policy is intended to ensure that the performance and behaviour of the public sector organization comply with the highest standards of reliability, integrity, transparency, accountability, openness and professional ethics acceptable to the society. Usually, the main objectives of the anti-corruption policy implemented by the public sector organization oriented: a) to reduce the risk of corruption in the organization‘s activities and properly manage it; b) to ensure proper and timely implementation of anti-corruption measures set out by the laws and other legal acts; c) to set requirements for employee behaviour in the field of corruption prevention and to make these requirements become recognized and voluntary implemented not only for the employees but also for all stakeholders and interested parties.

Analysing the implementation practice of corruption prevention measures in some public sector organizations shows, that development of anticorruption environment usually is based on two models: 1. Basic model of anti-corruption environment, which is based on the methods of correcting the behaviour of the public sector organization staff at the process of creating the anti-corruption environment. The main purpose of this model is to create and maintain an organisation’s micro-climate, which would encourage the employees to be fair, responsible, transparent and loyal in performing the duties assigned to them, as well as adhere to the rules of conduct, avoid any conflict of interests, etc. (Handbook for the Creation and Implementation of Anti-Corruption Environment in the Private Sector, 2018, 30)

2. Advanced model of anti-corruption environment, which is refers to formation of anti-corruption environment based on behaviour correction and organisational-regulatory methods focused on elimination of the key corruption problems, reasons and preconditions of the prevalence of corruption at the public sector organisation. Its purpose is to create and maintain an organisation’s micro-climate by using regulatory and organisational measures to withdraw or markedly restrict the opportunity to act not in compliance with behavioural standards, and to enhance the probability of being caught upon violating them (Handbook for the Creation and Implementation of Anti-Corruption Environment in the Private Sector, 2018, 30).

Summing up the benefit that the public sector organization can gain from creating an anti-corruption environment, it can be seen that it allows for public sector organizations to improve effectiveness of administration procedures, transparency and openness of decision making, accountability to the public and higher resilience to corruption (strategic outcome). Also, it helps public sector organizations in a timely manner to manage reputational, operational, legal and financial risks related to corruption (management outcome). As well, it allows to set up conditions for timely identification of corruption risks occurring in organization’s public administration processes and, after evaluating them, to select proportionate and effective preventive measures to manage them (legal outcome). Managers are responsible for full implementation of the prevention of corruption in the public sector organization and they must take various measures to achieve positive results. Creation anti-corruption environment is a management tool based on legal instruments, which should be regularly review and updated if the public sector organization wants to achieve the success in in the field of tackling corruption.

Conclusions and recommendations

1. The findings of the author of the article highlight the obvious impact of the new regulatory rules for the activities of Lithuanian public sector organizations applying measures to prevent corruption and to minimize the risk of prevalence of corruption. The main measures to prevent corruption according to the new Law on the Prevention of Corruption are inter alia the corruption risk analysis, anti-corruption assessment of (draft) legal acts, reporting of corruption-related criminal acts, determination of the prob-

ability of manifestation of corruption, assessment of corruption risk management and vetting procedures. In other hands, the implementation of the pertinent legislation and rules, measures to prevent corruption and the overall coordination and monitoring activities in this area still required for improvement. 2. There should be clarity in the legal and regulatory framework regarding the creation an anti-corruption environment, whereby the high standards of transparency, openness and accountability in the area of public administration must be applied to public sector organizations. The legal framework and new regulatory rules should facilitate a level playing field in the State’s expectations for anti-corruption and integrity in public sector. 3. Creation of anti-corruption environment is a new concept and policy against corruption of Lithuanian state governance focused on reducing the prevalence of corruption, management of corruption risk, strengthening resilience and intolerance to corruption in public sector organizations. The practice of creating an anti-corruption environment is based on the regulatory and institutional framework that sets binding rules for the application measures to prevent corruption. 4. Research indicates that anti-corruption environment in the public sector organization consists of a package of comprehensive measures to prevent corruption covering the areas such as leadership and compliance with anti-corruption commitments by top executive managers of public sector organizations, prevention and management conflicts of interests, application of binging legislative preventive measures, corruption risk assessment and management, establishment of anti-corruption compliance units, standards of professional behaviour and code of conducts, personnel recruitment, anti-corruption awareness raising and training, investigating of corruption related offences and whistleblowers protection. This is universal and standardized tools, which can be used if public sector organizations would like to make progress in reducing manifestations of corruption, otherwise, individual will be effective in isolation or completely ineffective in anti-corruption activities. 5. The author takes a provision that regardless of the size of the public sector organization, the type of public sector in which the organizations operate, the nature, scale and complexity of the organization’s activities, its anti-corruption efforts must be obvious and realistic. Creating an anti-

corruption environment will not provide a comprehensive guarantee that there will be no corruption associated with the activities of public sector organizations, because not possible to eliminate all risks of corruption. The presence of the anti-corruption environment essentially creates the conditions and help the public sector organization to implement measures designed to prevent, detect and respond to corruption.

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THE RIGHT TO RESPECT DISTINCTIVE VALUES OF EACH INDIVIDUAL IN A NONINCLUSIVE CORPORATE CULTURE

Andrzej Gołębiowski, Aneta Montano

Radom Academy of Economics (Poland)

Annotation

The nature of values is universal; however, each person holds his or her own diverse set. Therefore, what is very dear and important for one person may be unimportant for another. Unique personal values serve as a lens, a life-long guide to pursue what matches an individual’s value-scripted life. When a person becomes an employee, the employer expects an immediate embracement and conformation to the existing corporate values and behavioral standards. A corporate culture, driven by a few individuals, is to become everyone’s paramount, sometimes at a cost of clashing with distinctive and enriching values of each employee. By maintaining a corporate culture nonexclusive of individual differences derived from values, organizations are creating an environment prone to conflict, demotivation, reduced loyalty and quick burn-out. How can the existing systematic dilemma, which is present in many organizations, be solved? We argue that by adopting the Servant Leadership philosophy to modernize the organization’s view on their greater than just financial role, especially in the new BANI world. This paper discusses how these leaders, who are able and willing to respect the distinctive values of everyone, can build healthy, wellperforming and inclusive organizations.

Key words: corporate culture, human values, right to respect individual values, Servant Leadership.

Introduction

One of the most important causes why an individual decides to invest his or her time into any activity is personal values. Values connect the individual with the outside world, they drive decisions, behaviors, and career choices. By taking the time to read articles such as this one, it becomes apparent that one of your values may be academic achievement, self- realization, wisdom, or learning.

Each person develops a very personal zoom, the most deeply rooted individual lens, through which he or she wants to experience life. Values are not stable. As life progresses, one’s values can change. However, this

should always be a willing transformation. Oftentimes people are forced to transform their developed set of distinctive values. In such cases, the transformation is often paid with a very high price - heavy psychological cost. Therefore, the question arises, what more can be done in organizations to foster respect for the distinctive values of everyone? We formulate a view that Servant Leadership may be the answer to fueling respect for individual’s values within organizations which have a nonexclusive culture and consequently aiding in building a platform of inclusiveness, development, and respect. Even though human values are universal in nature, today’s European Union labor law is not comprehensive enough to protect the right of each employee to maintain and cherish his or her own socially conscious value system.

Definition and Number of Values

Wikipedia defines values as: “…providing an internal reference for what is good, beneficial, important, useful, beautiful, desirable and constructive. Values are one of the factors that generate behavior (besides needs, interests and habits) and influence the choices made by an individual.”

Rokeach and Schwartz view values as “enduring belief”, Kluckhohn and Guth and Tagiuri see values as a “conception” but Braithwaite & Blamey view values as “principles” (Cheng, 2021). Rokeach considered values a link between self and society (Rokeach M., 1973). Knowing how some psychologists define values, still leaves an important question: how many values have been identified?

Cheng & Fleishmanns in 2010 developed a “Meta-inventory of human values” – total of 104 of them. During research one can came across a varying number of personal values, where more than 104 of them can be named (Cheng, 2021). Whatever the number of values we can isolate today, it is not stable or finite. As the environment in which we live transforms, so do the values humans harbor. This is only to prove that each of us is a unique fusion and individually optimal blend of various values.

On the other hand, Shalom Schwartz concentrated on ten types of universal values - power, achievement, hedonism, stimulation, self-direction, universalism, benevolence, tradition, conformity, and security (Schwartz, 2012). According to Schwartz these values are likely to be universal because they are stemming from one or more universal requirements of human

existence such as social interaction, survival, and welfare needs of groups (Schwartz, 2012).

Lack of Comprehensiveness of Law

Considering values, it is worth examining the legal aspect of how values of everyone are protected in the work environment. The European Union Charter of Fundamental Rights is to assure transparent and predictable working conditions in the EU; it aims to protect specific categories of workers, working conditions, general rules and working time rules.

The values which are defined and protected by law are dignity, fairness, equality, respect, and independence. These basic rights are based on shared values. Therefore, every EU employee has the right to: health and safety at work, equal opportunities for women and men, protection against discrimination based on sex, race, religion, age, disability, and sexual orientation, and all favors of labor law (Ex.europa.eu/summary/chapter/employment…, 2021). After examining the legal connotation, it is evident that more could be done by the European Union and/or local governments to support an individual’s right to hold on to their values at work despite organizational pressures. Values, as an important element of diversity, are not explicitly protected by labor-related legislation.

Individual Values in a Corporate Value Driven Culture

To further investigate the scope of the value dilemma, it is essential to check how the corporate culture and corporate values impact and interact with distinctive values of each induvial. Business executives link culture to ethical choices (compliance, short-termism), innovation (creativity, taking appropriate risk), and value creation (productivity, acquisition premia) (Graham, et. al., 2017). Today corporate values are pronouncedly displayed and have become a publicity and hiring tool. By visiting a website of a company one can easily learn about their corporate values. As an example, IKEA publishes eight key values on their website - togetherness, caring for people and planet, costconsciousness, simplicity, renew and improve, different with a meaning, give and take responsibility and lead by example. The explanation of the beforementioned value reads: “We see leadership as an action, not a position. We look for people’s values before competence and experience. People

who ‘walk the talk’ and lead by example. It is about being our best self and bringing out the best in each other (About ikea…, 2021).” This encouraging consciousness is not a norm within profit-driven, often dehumanized corporate culture.

Reggie Van Lee, Lisa Fabish, and Nancy McGaw, 2005 conducted a survey in which they found that 89 percent of respondents globally possess written values statements and that nearly three-quarters believe that both executives and employees are under significant pressure to demonstrate strong corporate values (Lee, et al., 2021). Employees and executives alike are under significant pressure to demonstrate, which translates into adopt, corporate values (Strategy-business…, 2021). Values that may not be compatible to their own. Therefore, one should ask if finding synergy is possible. How do we ensure that everyone’s distinctive values are respected? How can businesses manage this polarity? IKEA’s example is encouraging and shows that a corporate culture may reflect declarative values used to support the vision, coined to steer value-respectful behaviors.

The World Economic Forum Suggests the New Standards

The World Economic Forum [WEF] in 2020 published a report entitled “Diversity, Equity and Inclusion 4.0: A toolkit for leaders to accelerate social progress in the future of work.” This report states that companies look away from taking the responsibility for addressing social justice and the persistent inequities. Therefore, ensuring that diversity and equality becomes the norm in the very near future can be achieved by commonly adopting a renewed commitment to tangible change. That is the key pathway to achieve an integrated approach to diversity, equity, and inclusion in the workplace. Diversity describes the range of human differences and variations, whether they are inherent (by birth) or acquired (by experience, such as values). In today’s labor markets, these differences can be the basis for different forms of exclusion and result in different forms of discrimination. In some organizations a wide range of characteristics pose a risk of exclusion, preferential treatment, or discrimination. Among these characteristics are age and generation, gender and gender expression, sexual orientation, mental and physical abilities, level of health, personality traits and behaviors, race, ethnicity and religion, language and nationality, location (such as rural and urban), social origin and parental background, income, education and

socio-economic status and appearance (World Economic Forum…, 2021). Distinctive personal values should be explicitly added to an already long list yet non-exhaustive list.

Organizations must create policies and practices that create inclusion making all employees feel welcome, valued, and respected. There are examples of such companies, like IKEA, which do not boast their values for profit but practice and enforce them due to a fundamentally focused leadership philosophy. All employees who are provided equitable and fair access to progression opportunities, good working conditions and fair wages, feel a vital part of inclusive organizations experience a deep sense of belonging as well as being empowered and personally growing. The WEF report adds that having a sense of belonging at work means that the work environment provides high psychological safety and employees can bring their full selves to work without fear of judgement. Employees feel comfortable expressing their opinions and ideas freely and are appreciated for their unique contributions and recognized for their accomplishments.

According to our interpretation, the WEF advocates a psychological costfree working place, where personal values are respected and possibly even used to enhance business and social awareness of the importance of diversity in increasing commitment, creativity and profitability of each company. Such inclusive organizations take wider responsibility not just for the impact they have in the lives of their employees but also on the broader communities in which they operate, working towards social justice and equity for all.

Servant Leadership

The World Economic Forum report in its essence describes organizations governed by the Servant Leadership standards. Servant Leadership is a leadership philosophy conceptualized by Robert Greenleaf in his revolutionary essay about how leaders by becoming servants to people bring about positive change not only to those they manage but to the whole team, organization and often society (Greenleaf, 1977). The Servant Leadership method has not been keenly introduced by many organizations. Maybe because of its name, suggesting that the leader becomes “the servant”, signifying weakness and lack of personal effectives. As a business starts to understand that its true strength lies in attracting best candidates who can

offer maximum diversity, as well as diversity of personal values, the way it is managed will have to evolve to better understand inclusion and employee experience paradigm.

There are, however, examples of companies that are already openly “servant” and enjoy the benefits of their wise business decision leading organizational transformation. To name a few: SAS, Marriott International, Starbucks, Nordstrom’s, The Container Store and Zappos.com. However, that is not all. A recent study published by www.modernservantleader.com shows a much larger percentage of companies had employees recognized for practicing Servant Leadership within them - 61 of the 100 companies on Fortune’s list had employees recognized online (by themselves, such as in profiles, or by others) as practicing Servant Leadership (Modern servant leader…, 2021).These individuals and organizations that strive to be more servant like IKEA undoubtedly have big impact on how they are perceived by their employees and enjoy countless benefits of having such company culture.

Regardless of how businesses feel and what they know about Servant Leadership, this type of leadership benefits an organization. More and more organizations should adopt Servant Leadership. It guarantees emotionally healthier teams, more empathetic working environment, inclusion, attention to personal growth and organizational stewardship (Spears, 2005). Servant Leaders are not weak, they deliver exceptional results and display personal courage to transform inside out (Kent M. K., 2016).

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Center. 7. Lee, R.V, Fabish L., McGaw N., The Value of Corporate Values. Available at SSRN: https://ssrn.com/abstract=956170 or http://dx.doi.org/10.2139/ssrn.956170. 8. Rokeach, M. (1973). The nature of human values. New York: Free Press. 9. Schwartz, S. H. (2012). An Overview of the Schwartz Theory of Basic Values. Online

Readings in Psychology and Culture, 2(1), http://dx.doi.org/10.9707/2307-0919.111 10. Spears, L.C. (2005). The Understanding and Practice of Servant Leadership, Servant

Leadership Research Roundtable. The International Journal of Servant Leadership. 11. World Economic Forum, Diversity, Equity and Inclusion 4.0: A toolkit for leaders to accelerate social progress in the future of work. https://www.weforum.org/reports/diversity-equity-and-inclusion-4-0-a-toolkit-for-leaders-to-accelerate-social-progressin-the-future-of-work 12. https://eur-Ex.europa.eu/summary/chapter/employment_and_social_policy. html?root_default=SUM_1_CODED%3D17&locale=en, [23.04.2021] 13. https://www.ohchr.org/documents/publications/hr.pub.12.2_en.pdf [23.04.2021] 14. https://www.polaritypartnerships.com/, [26.04.2021] 15. https://en.wikipedia.org/wiki/Value_(ethics) [26.04.2021] 16. https://about.ikea.com/en/about-us/ikea-culture-and-values, [23.05.2021] 17. https://www.strategy-business.com/article/05206?gko=987a9, [23.05.2021] 18. https://www.modernservantleader.com/servant-leadership/fortunes-best-companies-to-work-for-with-servant-leadership/, [23.05.2021] 19. https://www.inc.com/lee-colan/a-lesson-from-roy-a-disney-on-making-valuesbased-decisions.html, [23.05.2021]

LANGUAGE, SCIENCE AND LAW

Antonio Silva Sánchez, Violeta Naujokienė

Extremadura University (Spain), Kaunas University of Applied Sciences (Lithuania)

Annotation

In this work is tries to be summarized the possible origins of the continuous contradictions in which the legal norm often seems to incur. In this sense, we usually see the root of the problem in the ignorance of jurists, their disparity of criteria based on their political positions or the so-called legal indeterminacy of the concept.

Keywords: Science, Law, Language,

Results

If we stop for a moment to reflect on all this, focusing mainly on the notion and significance of the so called indeterminate legal concept, the root of such contradiction it will not be the ignorance of jurists or their different criteria to justify a political position, but may be another deeper reason hidden behind the problem. Could we think that is the use of the language what, in this way, is contrary and harmful to the law?

In my opinion, the answer to this question is a concise yes, and so we would have to face a problem that is difficult to solve, and so we must clarify it, certainly. Not always that take place an indeterminate legal concept, it has the roots in a political interpretation or reason or even on the ignorance of jurists. The use of language itself has in most of situations presented equivocal and rarely univocal meanings in relation to a term, which, when we apply that same language to the field of law, the terms are already flawed. It follows that, on innumerable occasions, the jurist himself is unable to give a concept or definition that fully satisfies expectations with respect to the specific case.

It is not a novelty to add in this regard that to alleviate these drawbacks there were attempts to analyze language by applying it to law, such as those made by Austin, Hart and many others. Such an attempt is what is called analytical philosophy (Camara, 1997) applied in the development of legal theory.

The real problem that arises from that moment on is that such an analysis is going to limit, frame and put-up barriers to the law; that is, to systematize it (Schulz, Wieacker, Canaris, etc., without mentioning in this respect the important German interpretation and reasoning of law initiated from the Aufklärung).

A question that collides head-on with its intrinsic nature, such as the ability to adapt to social changes, shed what is useless –that does not necessary mean archaic- and recover or maintain validity what is still traditional.

Many examples of what we have just said can be found today in the law, while legal institutions typically with Roman roots still survive even though on many occasions such legal figures appear as new under another identity or pseudonym (leasing, renting, performance bond, etc.).

Thus, the first thing that is questioned is the term law itself. Today, attempts to define and delimit (carrying on a so called system) such a legal concept oscillate between the position based on coercibility (Austin 1995) as a form of differentiation from social uses: moral but not legal norms, and on the other hand a legal realism (Wendel Holmes 1975) embodied in former author as the greatest exponent, supported by the practice of judicial bodies. Along with these two movements, it is still worth mentioning a third represented that suggests that in order to understand and define the law, two layers must be used: primary and secondary norms (Hart 1963).

In my opinion, the first two streams show important shortcomings. Thus, in the first place, it is for every known jurist that the law also protects and regulates facts on which even no coercion can be exercised (remember the well-known case of natural obligations). On the other hand, it is true that, on many occasions, the application of the law is left to the prudent or iurisprudentia. But it is also true that its fundamental mission is the practice of it, its wisdom –prudentia- and application, but without entering into terminological or conceptual evaluations, being, in my opinion, dangerous to leave in the use of language the theoretical development - not practical - of the norm or legal arrangement, considered as a set of rules.

Finally, an important attempt to break up a hypothetical concept of law in order to define it (Hart, 1963) already denotes its difficulty -if not impossibility- and reminds us again of the systematizing attempts already initiated in Greece and Rome to order, define, classify and systematize law as form of knowledge and exact general application, without gaps and, there-

fore, equanimous of legal science with the hypothetical advantages that this would represent and thus being considered almost as an exact science as authors like Comte, Bacon, Bentham liked to take as an undoubted certainty (Silva 2005).

Conclusions

In conclusion, it is not true that the concept of law can be the object of linguistic analysis and that its scientific study can be applied (which was already evidenced in Rome) since iurisprudentia must be understood as a mere intellectual activity aimed at achieving justice, a harmonious social coexistence and not in the sense that it takes from the seventeenth and eighteenth centuries.

For this reason, it cannot be said that a system can be applied to the law that confines it and that it is nothing more than a set of rational principles that collect the values of a society at a specific moment (Coing 1985), which already indicates that it bears a date of expiration.

Nor is it possible to impose a systematic method on it, but rather casuistic or problematic (Viehweg 1966) in which the jurist poses a problem and tries to find the arguments to give it a solution and does not look for an initial solution to which to adapt the problems by moving away, from the latter form, from practice, becoming stagnant and becoming a useless and rigid fossil.

In short, it is not possible to give a concept to the law, nor to the norm that derives from it and any attempt made in this regard will be in vain because it is impossible to take a photo of something in continuous movement, since the freshness and vivacity that the law requires it could never be achieved. In this way, in most cases we would be witnessing a deferred justice.

As example of this is the sentence of the Spanish Constitutional Court about the Law 13/2005 about same sex marriage, when the Constitutional Court says: «[…] Marriage is a legal figure of law, and law as such is an instrument at the service of society. For this reason, the legal institutions regulated by the law could not remain anchored in history, impassive before the passage of time, while society evolves, because there would come a time when there would be such an anachronism between social reality and legal reality that the law would cease to be effective and useful. The legal system must

adapt to the new needs and demands required by the society in which it is imposed, and this is what has been happening over time. Just as it happened when the divorce law appeared in 1981, after years of social demand, the law yielded to the new type of society and the configuration of the right to marriage was modified, shaping a more modern conception of Family Law[…]».

For once, let us not deny the past and learn from what, for more than two thousand and five hundred years ago, was not a priority such as turning Law into a science through the application of the systematic method (Kaser 1962), establishing not very precise meanings to the words through language and creating rules, definitions and classifications that would finish in many cases with that freshness that law requires for a right interpretation and application.

In Rome, defining the term ius (as in many other cases) is of little interest because architecture or legal construction is indifferent to them (Biondi 1946).

Bibliography

1. Sánchez Cámara, I., Derecho y Lenguaje, Madrid, 1997. 2. Schulz, F., Roman legal Science, Oxford, 1967. 3. Wieacker, F., Fundamentos de la formación del sistema en la jurisprudencia romana,

Barcelona, 1991. 4. Canaris, C. W., Pensamento sistemático e conceito de sistema na ciencia do dereito, Lisboa, 1989. 5. Austin, J., The Province of Jurisprudence Determined, Cambridge, 1995. 6. Wendell Holmes, O., La senda del Derecho, Buenos Aires, 1975. 7. Hart, J., The Concept of Law, Oxford, 1963. 8. D. 1.1.10.2.: «Iurisprudenti est divinarum atque humanarum rerum notitia, iusti atque iniusti scientia». 9. Silva Sánchez, A., «La ciencia jurídica actual y el derecho romano», Jurídica, Anuario del Departamento de Derecho de la Universidad Iberoamericana 35 (2005). 10. Coing, H., Derecho Privado Europeo, Madrid, 1996. 11. Vieweg, T., Tópica y Jurisprudencia, Madrid, 1966. 12. Law 13/2005 of July 1st about Same sex marriage. 13. Sentence 198/2012 of the Spanish Constitutional Court. 14. Kaser, M., En torno al método de los juristas romanos, Valladolid, 1962. 15. D. 1.1.10 pr. (Celso): «Constans et perpetua voluntas ius suum cuique tribuendi». 16. Biondi, B., «Obbieto e metodi della sciencia giuridica romana», Scritti Ferrini, Milano, 1946.

UNIVERSAL COMMUNITY OF GOODS AND PATRIMONY IN THE FUERO DEL BAYLÍO -BAYLÍO JURISDICTION- AS A SPECIFIC ECONOMIC REGIME IN A PART OF THE EXTREMADURA TERRITORY (SPAIN)

Manuel de Peralta Carrasco

Extremadura University (Spain)

Annotation

The Baylío Jurisdiction is the atypical matrimonial economic regime that governs a portion of the territory of the Autonomous Community of Extremadura (Spain), and that is different from the common matrimonial systems included in the Spanish Civil Code. An atypical regime, consisting of the universal communication of goods and patrimony, so we can say that it was and still is the most consistent with the principles of unity and indissolubility of marriage, which is enshrined in Canon Law, and previously required by Civil Law.

Keywords: Fuero, economic matrimonial regime, universal community of patrimony

Results

The Jurisdiction of Baylío acquired meaning from the year 1801, in which by the Treaty of Badajoz, Olivenza passed from the Portuguese Crown to the Crown of Spain; being then, when, under the name of Jurisdiction of Baylío, the Bayliato custom is mentioned, and the current custom in Olivenza, since in its origins, it is the same (RODRIGUEZ CAMPOMANES 1747). King Carlos III, on December 20th, 1778, in a Royal disposition, collected in the Newest Compilation of Carlos IV of 1805, regarding the Jurisdiction of Baylio, stated that: “All property that married people bring to marriage or acquire by for whatever reason they are communicated and subject to partition as joint assets”. Subsequently, the Law of Relationships was promulgated in October 1820, in which the validity of the Jurisdiction was confirmed again by Fernando VII (CASTÁN TOBEÑAS 1.994).

In modern times, the Statute of Autonomy of the Community of Extremadura, in its first draft, approved by Organic Law 1/1983, of February 25th, recognized customary law but inadequately together with popular and local customs and traditions. The modification of the Autonomous Statute by Organic Law 12/1999, of May 12th, made a much more exact recognition, since in its

article 11 it determines the competence of the Extremadura Assembly to legislate on the Baylío Jurisdiction; since it is an authentic customary norm, which has nothing to do with popular traditions and customs (SÁNCHEZ-ARJONA 2004); although the reality is that nothing has yet been regulated about it.

On the other hand, according to the Spanish Constitution, the validity of the Jurisdiction is indisputable, since article 149.1.8 not only ratifies its validity, but also establishes the possibility of its preservation, modification, and development, when it says: “that the State will have among its exclusive powers: Civil legislation, without prejudice to the conservation, modification and development by the Autonomous Communities of civil, provincial or special rights, wherever they exist. In any case, the rules relating to the application and effectiveness of legal norms, legal-civil relations relating to forms of marriage, organization of public registers and instruments, bases of contractual obligations, norms to resolve the conflicts of laws and determination of the sources of law, with respect, in the latter case, to the rules of regional or special law”. Article that must be put in connection with to articles 14 and 32 of our Constitution that proclaim the principle of equality between spouses.

Likewise, the Courts have long recognized the applicability of this sui generis law; thus, we find the sentences of the Supreme Court of June 30th , 1869, February 8th, 1892, or January 28th, 1896. As well as the Resolutions of the General Directorate of Registries and Notaries of Spain of August 19th, 1914, November 10th, 1926, August 11th, 1939 or January 9th, 1946. More recent in time is the sentence no. 308/89, of November 2nd, of the Cáceres Provincial Court, which considered the Jurisdiction in force in the town of Valencia del Ventoso after the Spanish Constitution of 1978; being understood that regional regulations are compatible with the systematic principle of equality of the spouses in their patrimonial actions, all in accordance with the latest revisions that have arisen in matters of Family Law and the economic regime of marriage.

Regarding its content, we can say that it is a regional jurisdiction, of an immemorial and unwritten nature, that is, customary, based on custom, which was never made a Law, so many experts and jurists discuss its exact content and validity. It constitutes, with unanimous criteria, an absolute or universal community regime (CERDEIRA 2003), by which all property, of any kind, both real estate and personal property, regardless of the titles by which they were acquired; acquired in any way, by either spouse, before or after the celebration of the marriage, they become common between both spouses and are divided in half upon dissolution of the marriage. The

contribution of the assets that each spouse will be full, even if one of them contributes absolutely nothing, thus not being necessary the reciprocal contribution of assets; but demanding the consummation of the marriage.

Due to such a universal community of property, the husband could not alienate or encumber any kind of real estate, without the express consent of his wife. Must not be forgotten that the regime of the Jurisdiction of Baylío is a conventional regime, that is to say, voluntary; in such a way that, as we have said, the bride and groom, or later the spouses, can avoid its application through marriage agreements.

The spouses under to this Regime would be all the residents of the localities under the sphere of influence of the Jurisdiction, which coincide with the Portuguese areas of influence. The combination of the regional jurisdiction of Baylío tradition admitted by article 13.2., with article 14 of the Spanish CC., allows establishing that the specific law accompanies the people under such a regime wherever he is: 1. Married couples who have the Baylío jurisdiction under civil neighborhood (according to article 14. of the CC.), being irrelevant whether the marriage has taken place within or outside the province, and even outside of Spain. 2. Spouses, even when only one is under this law by birth, the place in which they marry is indifferent. 3. When no one is under the Baylío jurisdiction, but at least one acquires the civil neighborhood by continuous residence for two years, provided that the interested party states that this is his will, and by continued residence for ten years without a statement to the contrary.

Currently, and despite the specialty of this jurisdiction, the fact that any of the spouses who, pursuant to art. 14 and 16 of the CC., acquire or hold the civil neighborhood of the Foral territory of Baylío enables them so that this Regime is applicable to marriage.

Starting from the idea that total communication operates from the moment the marriage is celebrated (ROMAN GARCIA, 1990), the effects will be produced in the practical administration and disposition of the community’s assets. And it would be possible to consider whether the disposition acts carried out by both contracting parties individually are admissible, insofar as they can dispose of the assets held in the marriage, understanding that the division of the assets, in half, had to be carried out upon the dis-

solution of the marriage bond, and not during marriage. This criterion has been followed and accepted by some of the most significant researchers of the Baylío Jurisdiction, considering it a mixed of economic-matrimonial regime (MARTÍNEZ PEREDA, 1925), in such a way that, based on said criterion, each of the spouses can freely dispose to manage, administer, or dispose of the assets of their particular patrimony contributed to the marriage. In our opinion, this position maintains a wrong interpretation of the custom as we consider right the opinion expressed by Don Rafael de la Escosura (PERALTA, 2000) that must be followed, who stated: “That the effects of the Jurisdiction must begin to produce their result from the constitution of the conjugal society and therefore the assets of the marriage. They are not considered property, nor can therefore the husband alienate or tax them by himself, since the universal community is not understood without the two participants having equal rights and equal prerogatives”. That mentioned criterion appears in the Judgment of January 21st, 1896 of the Supreme Court: “the marriage produces the complete communication of all the goods contributed and acquired by the spouses”.

Thus, any act of the spouses that exceeds the mere ordinary administration or free provision, in accordance with the daily flow of family life, will require the consent of the other spouse to participate when is affecting the common heritage, that coincides more fully with those ethical and religious values that marriage presupposes, under which the Baylío Jurisdiction is born; since the marital and patrimonial union that was pursued was the intercommunication of everything that the spouses possess, that is, their lives and assets (VILLALBA LAVA, 1996).

An opinion, which also is not contrary to the Spanish current Magna Carta, but in line with it, since it, in its articles 14 and 32, establishes the equality element unfailingly present in the mentioned Jurisdiction.

One of the last controversies, still persistent, is that when the Baylío Jurisdiction appeared there was no dissolution of the marriage, except by death. Currently Baylío Jurisdiction and divorce constitute two confronted realities, since the spirit of the first demands a unity of life and property, and the second seeks a cessation of conjugal life.

Beyond the doctrinal discussion, judicial practice admits, as proclaimed in the sentence of the Supreme Court of Extremadura 11/5/2015, that the Baylío Jurisdiction also displays effects in marital dissolutions due to divorce. Thus, where the divorced spouses are assessed, all their assets, in-

cluding those that already belonged to them at the time of marriage and those they acquired later, belong to both in equal parts.

Even recognizing the serious legal doubts of the matter, we must conclude that, with the dissolution of the matrimonial property regime due to divorce and given the undisputed condition of the spouses as certified, the assets of one and the other in their fullness should be part of the inventory assets to the time to end the marriage.

Conclusions

We are faced with an economic - matrimonial regime of unknown origins called Fuero del baylío -Baylío Jurisdiction- in which the spouses make that all their assets, whatever they may be, pass to a universal community by their own will to subject themselves to said regime of full communication. Therefore, from the moment of the celebration of the marriage, all acts of disposition and administration must have the consent or concurrence of the two spouses, and at any moment in which the bond is dissolved, the patrimony will be divided as a single unit between both spouses. We therefore see how the principle of equality and non-discrimination between the sexes, historically, already constituted, in the Baylío Jurisdiction, a reality in marital relations that is more present today than ever.

Bibliography

1. Cerdeira Bravo De Mansilla, G., “El Fuero del Baylío: Su pervivencia y contenido en parte de Extremadura”, Revista Critica de Derecho Inmobiliario, núm. 679, septiembre-octubre 2003, pp. 2-3. 2. Rodríguez Campomanes Disertaciones Históricas de la Orden de los Templarios. 1747 –

FACSIMIL 3. Antonio Román García “El régimen económico-matrimonial del Fuero del Baylío. (Aproximación al estudio de la normativa del Fuero del Baylío”. Anuario de la Facultad de Derecho de la Universidad de Extremadura - Cáceres - nº 8/1990. 4. Manuel Peralta Carrasco “El llamado Fuero de Baylío: Historia y vigencia del fuero extremeño”. Rev. Brocar: Cuadernos de investigación histórica, Nº 24, 2000, pags. 7-18. 5. Castán Tobeñas, J.: “Derecho Civil Español Común y Foral”. Tomo V, Vol. I, 1.994, pág. 975. 6. Martínez Pereda: “El Fuero de Baylío, residuo vigente del Derecho Celtibérico: errores de la doctrina y de la jurisprudencia sobre dicho Fuero”. En RCDI, 1925, pág. 213 y ss 7. Javier Sánchez-Arjona y Macías. “Origen Jurídico del Fuero de Baylío” Servicio de Publicaciones de la Diputación de Badajoz, 2004. 462 págs. 8. Mercenario Villalba Lava El Fuero del Baylío paradigma del Derecho civil tradicional propio de Extremadura: contenido, aplicación y vigencia. Actualidad Civil, Madrid, nº 29/julio/1996.

4. CRIMINAL LAW

PRACTICAL PROBLEMS OF ENFORCEMENT OF EUROPEAN NE BIS IN IDEM PRINCIPLE IN HUNGARY

Herke Csongor University of Pécs (Hungary)

Annotation

The ne bis in idem principle has raised not only the problem of legal certainty but also central question of several preliminary ruling procedure before the European Court is what can be regarded as same offense according to European practice. The ne bis in idem principle at international level means that the states must accept the decision taken by another state as res judicata. In the definition of same act legal classification is not governing, the “same act” refers to the statement of facts. Related to same act the existence of a set of facts which are inextricably linked together has sole significance. This study tries to present the implementation of the European ne bis in idem principle through a specific Hungarian case.

Key words: European ne bis in idem principle, Fundamental Law, narcotic drug trafficking, decisions of the European Court of Justice, European charter of Fundamental Rights, Schengen Agreement

Introduction

Several studies have been published concerning the enforcement of the European ne bis in idem principle in Hungary in recent decades (Jánosi, 2013; Karsai, 2007; Ligeti, et. al., 2006; Wiener, 2003; Wiener, 1990). However, while the authors have a unified position on the matter – especially since the principle has been embedded within the Fundamental Law – in practice, the courts still interpret or apply the principle extremely difficult (or not at all).

Section 6 of Article XXVIII of the Fundamental Law of Hungary clearly states: “With the exception of cases of remedy defined by law, no one shall be liable to be tried or punished again in criminal proceedings for an offense for which he or she has already been finally acquitted or convicted in Hungary or - within the meaning specified by international treaty or any legislation of the European Union -in another Member State in accordance with the law (Karsai, 2016).”

Likewise, the regulation is non-contradictive in cases if a preliminary ruling procedure of the Court of Justice of the European Union is initiated in

accordance with the rules stipulated in the Treaty on European Union and in the Treaty on the Functioning of the European Union. In that case according to Section 490 of Act XC of 2017 (the new Criminal Procedure Code) allows the rejection of a thereto related motion.

The reviewed case

In the case reviewed in this study a criminal procedure against the accused was firstly indicted in Austria. The Budapest-Capital Regional Court (Hungary) in its final order Nr. 29.Bk.916/2011/14. acknowledged the final judgment Nr. 13.Hv.22/11b. of the Provinzial Court for criminal matters Graz (Austria), in which the accused was convicted of narcotic drug trafficking. In this Austrian case has been ordered that search (that is the Hungarian authorities were requested for execution of search warrant), which resulted in finding the illegal drug related to the domestic case in the Hungarian apartment of the accused, which was otherwise the same drug as sold by the accused in Austria.

It is not a question to Hungarian law either, that in case of narcotic drug trafficking quantity not sold yet cannot be committed to the criminal offense of illegal drug possession, since it merges with the unlawful trafficking (Belovics, et. al, 2014).

According to IV of the criminal uniformity decisions no. 1/2007 BJE the judicial decision no. 1999/101 BH gives guiding essentials to the interpretation of the compliance with the statutory provisions to commit trafficking. As stated in the forementioned decision as a principle, criminal offenses with narcotic drugs committed with trafficking are extended conducts as distribution. Realizations are by sale and purchases, financial gain oriented, and include all activities that contribute the delivery of illegal drug to the retailer or the consumer. According to the reasoning of the decision, if the distribution purpose is proven and for the closure the defendant has no opportunity for example because he/she has been caught in the act, his/her act remained in attempt phase. Therefore, this act committed by distribution of substantial quantity in narcotic drugs constitutes an attempt of the criminal offence of narcotic drug abuse (and not possession).

According to the reasoning of Curia of Hungary (at that time Supreme Court), the drug dealer must buy repeatedly to support the further selling. By comparison the acquisition (purchase) for the purpose of trafficking in narcotic drugs is an act within the framework of trafficking itself even if surplus conduct is not connected. Acquisition of narcotic drugs for the purpose of resale to reach commercial financial gain by purchasing and the so pur-

chased illegal drug possession prior to the further sale is also a criminal conduct that falls into the definition of trafficking. Thus, acquisition of narcotic drugs for the purpose of trafficking falls into the frame of trafficking even if surplus conduct is not connected.

Afterwards in the Hungarian case the question was that the fact that trafficking in narcotic drugs was sentential judged in Austria how influences the criminal meaning of that narcotic drugs possessed and found in Hungary but aimed to be sold in Austria within this framework. Already the court of first instance should have applied Section 266 subsection 1 of Act XIX of 1998 on the former Criminal Procedure Code of Hungary which stated that the Court shall suspend the procedure ex officio or upon a motion, if the preparatory ruling of the European Court of Justice is initiated according to the rules set forth in the Treaty on European Union or the Treaty on the Functioning of the European Union. In its decision the court specifies the question requiring the preliminary ruling of the European Court of Justice and – to the extent required for answering the question – describes the facts and the affected Hungarian legal regulations. The decision shall be sent to the European Court of Justice, as well as to the Minister of Justice for guidance (Tarr, 2007; Tarr, 2006).

In comparison, the court of first instance ordered a half-sentence to say that the two cases had nothing to do with each other, although it was obvious from the casefile that the Hungarian search happened because of the request ordered in the Austrian criminal proceeding.

The ne bis in idem principle at international level

Nowadays the lawyer society has become basically expected to know the decisions of the European Court of Justice, since EU law must be applied in practice as well. Following our accession to the EU, Hungary is also involved in the problem that free movement of persons and easier interoperability of borders have facilitated the movement of offenders within Europe. It can easily happen that criminal procedure against the defendant for the same crime is being prosecuted in the territory of several Member States, which happened in the present case as well. The right not to be tried twice for the same offence prevents the decision of different courts in the same issue twice or more times.

Although it is important to determine what exactly is against the prohibition of being tried twice for the same offence according to the European case law. The ne bis in idem principle however has raised not only the problem of legal certainty but also central question of several preliminary ruling

procedure before the European Court of Justice is what can be regarded as same offense according to European practice.

The ne bis in idem principle at international level means that the states have to accept the decision taken by another state as res judicata. The international recognition of the ne bis in idem principle was stated first in the conventions on legal assistance made under the auspices of the Council of Europe. Accordingly, for example, the Extradition Convention realizes the principle in the refusal of extradition which means that a state refuses extradition related to a person against whom a final decision has already been taken by the criminal authority of that State. In addition to the conventions of the Council of Europe, EU also has some conventions to regulate certain types of crimes which also enforce the ne bis in idem principle (see Article 7 (1) of the Convention on the Protection of Financial Interests in the European Community or Article 10 of the EU Anti-Corruption Convention) (Tarr, 2007; Tarr, 2006).

According to Article 50 of the Charter of Fundamental Rights, adopted on 7 December 2000, “no one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.”

The EU currently enforces the ne bis in idem principle based on the Schengen Agreement. Article 54 of the convention on the Implementation of Schengen Agreement (CISA) stipulates the followings: “person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party.”

One of the cases before the Court of Justice was a unified case from the scope of ne bis in idem, where the central question to be answered was whether it would exhaust the category of res judicata, if in a Member State, without bringing the case to court, the prosecutor terminates the proceedings in the framework of a settlement in case of paying a certain amount of money (see Gözütok case) [8, 9]. The main question is whether Article 54 of the CISA loses the right of a Member State to start the criminal procedure if that opportunity has been dissolved under the law of another Member State for the same act. In the case it was answered affirmative, which means that it can be stated that there are principles in criminal law as well which influence criminal law without creating a legal harmonization obligation.

The Esbroeck case has also great importance in relation to the ne bis in idem, in connection therewith the European Court of Justice held that the

same act does not depend on the protection of the same legal interest or the same legal classification, the only relevant criterion is the statement of facts, that is the existence of a set of facts which are inextricably linked together [8, 9]. In relation to this case, the European Court of Justice has just been considering whether possessing the same illegal drug in one country and the export therefrom and taking it into another country constitutes the same act? The exercise of right to free movement has also been associated to the right of the perpetrator can be sure, that after having been convicted by a final judgement and the penalty has been enforced or may be finally acquitted in a Member State, he/she is able to move in the Schengen area without fear of prosecution in another Member State based on the same act on the ground that the other Member State classified the offense differently. According to the European Court of Justice it is clear from the wording of Article 54 that in the definition of same act legal classification is not governing, the “same act” refers to the statement of facts (Varga, 2013; Nagy, 2015). On this basis, the European Court of Justice’s final conclusion was that related to same act “the existence of a set of facts which are inextricably linked together” has sole significance (Tarr, 2007; Tarr, 2006).

Bybliography

1. Jánosi, A. (2013). A bűnüldözési célú adatkezelés és a ne bis in idem elv gyakorlati érvényesülésének összefüggései az Európai Unióban. Advocat, p. 1-4, 27-34. 2. Karsai, K. (2007). A kétszeres eljárás alapelvi tilalmának európai érvényessége. Ad futuram memoriam, p. 85-101. 3. Ligeti, K. – Wiener A. I. (2006). A büntető joghatóság gyakorlásának korlátai, különös tekintettel a korrupciós bűncselekményekre. ELTE Acta. 42. köt. p. 101-119. 4. Wiener A. I. (2003). A ne bis in idem elv érvényesítéséről. Büntetőjogi Kodifikáció 2003/12. p. 62-68. 5. Wiener A. I. (1990). A ne bis in idem elve a nemzetközi büntetőjogban. Jogtudományi

Közlöny 1990/7-8. p. 272-275. 6. Karsai, K. (2016). A ne bis in idem alkotmányba iktatása: az Alaptörvény XXVIII. cikk (6) bekezdése. In: Számadás az Alaptörvényről: tanulmányok a Szegedi Tudományegyetem Állam- és Jogtudományi Kar oktatóinak tollából. Budapest, p. 433-452. 7. Belovics. E. – Nagy, F. – Tóth, M (2014). Büntetőjog 1., Általános rész. Budapest. p. 816. 8. Pápai Tarr, Á. (2007). A ne bis in idem elv az Európai Bíróság gyakorlatában. Miskolci

Jogi Szemle, 2007/2. p. 100-118. 9. Tarr, Á. (2006). Gondolatok a kétszeres eljárás tilalmáról az Európai Bíróság esetjoga kapcsán. Collega, 2006/2-3. p. 114-118. 10. Varga, Zs. (2013). Az Európai Bíróság ítélete az Akerberg Fransson-ügyben. A ne bis in idem mint az EU Alapjogi Karta és az EJEE által biztosított elv. Jogesetek Magyarázata, 2013/4. p. 68-78. 11. Nagy, F. (2015). Törvényességi, büntetőjogi normák Európa egyes alkotmányaiban. Jogtudományi Közlöny 2015/12. p. 561-569.

5. FAMILY LAW

THE ISSUE OF THE CHILD’S RIGHT TO KNOW HIS ORIGIN AND THE WAYS TO SOLVE IT

Sigita Šimbelytė

Kazimieras Simonavičius University (Lithuania)

Annotation

In today’s world, the protection of personal information - is an important value without which the existence of a legal relationship would be made more difficult. It appears that this right of the individual is absolute, therefore, there is a need to assess the relationship of this individual right with other individual rights, and especially with the currently relevant right of the child to know his origin. At the same time, a moral and legal question arises as to whether a child born by artificial insemination should be treated differently from other children, limiting his ability to dispose of all his or her natural rights? To properly resolve this conflict of two values, Lithuanian legal regulation, foreign practice and, most importantly, international regulation and the position of the European Court of Human Rights on this issue are analyzed.

Key words: child rights, child origin, family law.

Introduction

Today, confidentiality and the protection of personal information have become very important, therefore confidentiality agreements are common in practice and especially in business legal relationships and this legal protection of personal data is successfully extending to other areas, including family legal relations. It is safe to say that confidentiality relates not only to the individual himself, but also to his activities and to the case law developed by the ECHR, this one of the most important human rights, the right to the protection of private information, tends to be treated quite broadly and to expand its scope. The significance of this fundamental right of a person is based on the fact that it is a guarantor without which the existence of a legal relationship would be aggravated, otherwise it may have negative consequences not only for the person himself but also for his social well-being, his rights, his reputation, his business, his environment, etc.

All the above circumstances give the impression that this right of the individual to the protection of private information is absolute or at least has a

very wide scope. It is therefore necessary to assess the relationship between that person’s right and other individual rights, and especially in practice, it is currently relevant to assess the relationship between this person’s rights to the child’s right to know the identity of his biological parents.

It is the problems of this relationship that are not only relevant and new, little scientifically researched and causing discussions not only in the international space, but also in today’s Lithuania, because recently developed methods of treating infertility by donating one’s own gametes are not yet properly regulated in Lithuanian law.

From a moral point of view, a child born by artificial insemination may feel the need to look for his biological parents, however, there is a legal barrier to identity searches - the principle of confidentiality, which works in many areas, is no exception artificial insemination processes. The law generally provides for confidentiality, which leads to legal confusion, as there is an incompatibility (collision) between the right to know one’s origin and another person’s right to confidentiality. This raises a question of a moral as well as a legal nature, whether a child born under artificial insemination should be treated differently from other children, limiting his ability to exercise all his rights, that is, the right to know their origin on the basis that the law protects the confidentiality of the individual?

The object of the article - the field of family law, the protection of the rights of the child, the application of the principle of confidentiality in the case of the problem in question.

The purpose of the article - to analyze the relationship between the child’s right to know his origin and the right of biological parents to confidentiality and how this problem is addressed based on international practice.

Scientific methods used: analysis of scientific literature, comparative, systematic, descriptive and generalization methods.

Abbreviations are used in the work:

UNCRC - United Nations Convention on the Rights of the Child.

ECPHR - European Convention for the Protection of Human Rights and Fundamental Freedoms.

CCRL - Civil Code of the Republic of Lithuania.

FPRC - Law of the Republic of Lithuania on the Fundamentals of the Protection of the Rights of the Child.

ECHR - European Court of Human Rights.

Regulation of the child’s right to know his origin at the international level and in Lithuania

Although the child’s innate right to know his biological parents is recognized as a fundamental right, however, its implementation is one of the most difficult legal issues. At the international level, the child’s right to know his origin is in principle governed by two international instruments – UNCRC and ECPHR (United Nations Convention on the Rights of the Child, 1995).

Talking about UNCRC, there are even five rights closely related to the child’s right to know his identity: the best interests of the child, the right to know his parents, respect for identity, respect for family and private life, access to information. However, that right is expressly enshrined in Article 7 of the UNCRC, which provides that “the child is registered immediately after birth and has the right to a name and a nationality from birth, as well as, as far as possible, the right to know and be cared for by his parents”. It should be noted that although the child is directly guaranteed this right to know his origin, however, this right is and may be limited by providing that it is exercised “as far as possible” and by leaving it to the discretion of the national courts to decide on the limits of the possibility of knowing the matter (Kilkelly, 2021).

It should also be noted that Article 8 of the UNCRC imposes a significant obligation on the state to assist the child in restoring his lost identity and sense of identity, it can therefore be argued that the state has an obligation not only to delimit this right of the child to know his origin, but also to establish the most effective legal regulation of the implementation of this fundamental right in the best interests of the child.

The right to know one’s origin is also enshrined in the ECPHR, establishing the importance of the relationship between the child and the parents in Article 8. However, it should be noted that UNCRC is specifically concerned with the protection of children’s rights and the ECPHR - with human rights in general, therefore, the regulation of the latter legal act is much more detailed in the UNCRC, the regulation of the protection of the rights of the child is of a more abstract nature (Hodgkin and Newell, 2002). The right to know one’s origin can be deducted from Article 8 of the ECPHR, which does not explicitly state this right, but protects through the individual’s right to privacy, respect for family life, it can therefore be argued that the child’s right to know his origin is an integral part of his private life and that if the

child does not know his origin, he cannot fully exercise his right to private and family life (Garison, 2002).

Thus, the right to know one’s biological information, enshrined in the UNCRC and the ECPHR, guarantees the child not only legal autonomy, but points to the obligation of States to take a more responsible approach to this issue and leaves it to them to specify this legal order.

Meanwhile, in Lithuania, this right is implemented through legal provisions regulating the assurance of a person’s identity and determination of paternity, as well as a person’s right to family ties, which is provided for in Article 3.161 of CCRL and Article 9 of FPRC.

Article 3.161 of the CCRL clearly states that “a child has the right to know his parents if it does not harm his interests”. It becomes clear from such a statutory provision that the child must know his origin and have the right to receive information about the identity of the parents if there is an interest. And this means that there must be procedures in place to help the child have access to information related to his origin. Restricting this right would constitute an infringement. Section 1 of Article 9 of the FPRC establishes the child’s right to family ties. Family ties must be understood in such a way that the child has the right to have his own family, to know who his parents are, to communicate with them. It should be noted that the child’s right to family ties needs to be understood broadly, that this right consists not only of the child’s right to know his parents, but also to have constant contact with them, to live with them (Sagatys, 2006). The special importance of the family is emphasized in Article 38 of the Constitution, establishing that the family is the foundation of society and the State and that the State shall protect and foster the family, motherhood, fatherhood, and childhood.

The problem of confidentiality in the process of artificial insemination

More and more families, who are unable to have children due to one or another medical or genetic problem, have decided to try to solve this problem by means of modern medical aids - artificial insemination.

Some countries have enacted laws on artificial insemination, others, as well as Lithuania, are still considering the adoption of the law. Therefore, only the general principles set out in European Union Directive 2006/17/EC 141 implementing Directive 2004/23/EC of the European Parliament and of

the Council on the quality of donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells and safety standards should apply in such situations as well as the May 24th, 1999 Order of the Minister of Health No. 248, which specified the procedure for artificial insemination. Unfortunately, it must be acknowledged that this ruling does not solve all the problems related to artificial insemination, that is, the issue of donor anonymity is not resolved, the object of legal regulation is considerably narrowed, limited only to the fertilization of a woman with the sperm of the spouse, etc., therefore more detailed legal regulation of such relations is necessary.

Various draft laws on artificial insemination were discussed in Lithuania, however, no law on artificial insemination has been passed so far. The latest bills on artificial insemination were proposed back in 2011. Draft Law on Assisted Reproduction No. XIP-2388 and Alternative Artificial Insemination Bill No. XIP-2502 were presented to the Seimas. It should be noted that the provision in the draft law prohibiting the provision of information on the identity of a gamete donor is in conflict with Article 7 of the UNCRC, the principle of the best interests of the child enshrined in Article 3. Also, such legal regulation in the above-mentioned draft laws contradicts Section 3 of Article 3.161 of the CCRL, which establishes the right of a child to communicate with his relatives and to have family ties and Point 1 of Section 1 of Article 4 of FPRC. Meanwhile, the draft law No. XIP-2502 did not provide any legal regulation on the issue of gamete donor confidentiality at all, as donation is only allowed between married individuals.

Looking at this issue from a broader perspective and the experience of foreign countries, it should be noted that the doctrine of the best interests of the child is strongly observed in the world, that is, the interests of the child take precedence over the interests of others. The attitude that a child born by artificial insemination does not need to know the identity of the donor has changed greatly today. Sweden was the first country to abolish donor anonymity at the end of the 20th century. Later, its example was followed by other countries - England, Austria, the Netherlands, Norway, and their number is only growing (Garison, 2002). The same practice applies in the US (Sylvester, 2021). It should be noted, however, that even such a practice does not take such a drastic stance, determining providing for the refusal of confidential gamete donation only if the donor agrees and the

child reached adulthood, that is, the age limit for informing the child is more often chosen than when the donor’s right to confidentiality is completely abolished (Vonk, 2007). Although most countries in the world refuse to ensure the anonymity of donors, the ultimate goal of achieving this fundamental individual right is not being achieved, as this would create another “disruption” - this right is limited by the parents’ desire to preserve the secret of the child’s origin in order to establish a strong bond and union with the child (Kilkelly, 2021). A child can often find out about his true origin only in the good faith of his parents.

In most cases, donors want to maintain their anonymity by signing a confidentiality contract with a sperm bank or hospital. The donor does not influence the conceiving and birth of the child, there are no emotional ties to the child, and the future parents take care of the child’s conceiving, they initiate the process of artificial insemination. As a result, it is clear that the interests of the donor and the parents are different. The donor does not seek to have a child and make a legal commitment to him, he has an interest in helping families or receiving compensation (Willenbacher, 2004).

This situation is further aggravated by the fact that the donor and the sperm bank or hospital are usually linked by a contractual legal relationship by signing a confidentiality agreement. The fundamental principle of contract law indicates that according to Section 1 of Article 6.189 of the CCRL, a contract has the force of law for its parties and cannot be broken without the donor’s knowledge and consent to the disclosure of information. As a result, the interest in preserving the anonymity of donors is, in practice, far more important than other fundamental human rights, such as the right to know one’s origin, however, researchers have found that children from whom their history of origin is hidden have negative psychological consequences, that is, they experience all sorts of doubts, experience psychological trauma, depression. Children who know that one of his parents is not a biological father seek to know him (Cowden, 2012).

Thus, the conflict between the rights of the donor child, the interests of the parents, and the donor’s desire to preserve anonymity is complex and profound, requiring a re-examination of the value system and an assessment of the significance of each.

Conflict between confidentiality and the child’s right to know: the position of the ECHR

The right to know one’s origin under Article 8 of the ECHR was first examined in the Gaskin v. United Kingdom case (case Gaskin v. United Kingdom, 1989). It should be noted that the court, in taking the first steps in defending a person’s right to know his origin, was not as categorical as to the priority of this person’s right as in subsequent case law. In the mentioned case, the ECHR found that the State had violated Article 8 of the ECHR by failing to comply with a positive obligation to grant access to confidential documents held in an orphanage. Nor has the ECHR denied that the confidentiality of information is an important factor in the functioning of the care system, however, in all cases, it is very important to find a balance between the interests of the individual and the interests of the third party. Although the court did not specifically and categorically argue or rule on the supremacy of the best interests of the child over the principle of confidentiality, however, from the decision made, it is possible to understand a court position that upholds a person’s right to know their identity.

In other cases – M.B. v. United Kingdom (case M.B. v. United Kingdom, 1994) and Ibrahim Yildirim v. Austria (Yildirim v. Austria, 1999), the ECHR defended the best interests of the child and took into account the best interests of the child, even if this meant restricting the individual’s right to privacy or a possible restriction on the child’s right to know his origin. In the first of these cases, the ECHR ruled that ensuring the security of family ties allows states to establish and maintain a general presumption of paternity when the child’s father is considered to be the mother’s husband. The court in this case defended the interests of the family and saw no reason why the welfare of the family could be jeopardized in order to protect the child’s right to know his origin. In this case, it is clear that the best interests of the child were safeguarded at that time because he lived in a harmonious family that guaranteed the child’s well-being and there is no basis for a paternity test just because a stranger wants to know if he is the child’s biological father. In the case Ibrahim Yildirim v. Austria (Yildirim v. Austria, 1999), the ECHR has ruled that this complaint does not protect the best interests of the child, because if the wife’s husband renounces paternity and the biological father does not recognize paternity, the child will be in a worse position than it is now. The best interests of the child are more important than the individual’s desire to deny his parenthood

by failing to meet deadlines. Thus, it can be concluded that in both cases, the ECHR stated that the best interests of the child took precedence over the privacy of the individual, but an even more important rule established by the court is that the fundamental right of the child to know his origin is directly linked to the best interests of the child and the protection of his well-being, for it can reasonably be assumed that if the child had doubts about his biological father, the court decisions would be the opposite.

In the Mikulič v. Croatia case (case Mikulič v. Croatia, 2002), the applicant had a legitimate interest, protected by the ECHR, in obtaining information relating to the disclosure of her identity, therefore, in deciding the issue of paternity, the courts must take into account the principle of the best interests of the child. The court thus emphasized the importance of the best interests of the child and emphasized the right to information relating to the identity of the person, because, according to the court, the establishment of paternity has a significant impact on the child because of his identity, so the alleged refusal of the father to perform DNA tests and the attempt to conceal information violates the interests and rights of the child. From all this, it can be concluded that a person’s right to know his identity takes precedence over the implied parent’s desire to preserve privacy.

In the case Ebru v. Turkey (case Ebru v. Turkey, 2006), emphasis was placed on the fundamental right of the individual to know his origin over time, that is, this human right does not disappear over time and vice versa - it only grows stronger, whereas a person living in ignorance and in order to find out his origin experiences certain psychological experiences, a feeling of uncertainty. It is these experiences that, according to the court, are the basis for the disclosure of identity.

In the other Haas v. The Netherlands case (case Haas v. The Netherlands, 2004), the court noted the person’s motives for seeking his origin. The Court noted, in accordance with Article 8 of the ECHR, that a person must have an interest in the disclosure of his origin and not an economic advantage derived from it. It can therefore be said that in the present case the scope of Article 8 of the ECHR has been delimited, stating that in such cases, where a person has known his or her true origin for a number of years, he or she has never had any doubts about his or her personal identity and has not suffered any real harm, psychological or health-related, the right to know his or her origin has not been violated in this case.

It should be noted, however, that the ECHR’s case-law on the fundamental right of a person to know his origin takes precedence over the confidentiality of a person is unequivocal in one such case: Odievre v. France case (case Odievre v. France, 2003), in which the court held that courts must strike a balance between the best interests of the child and the right to know their origin and the mother’s desire to maintain anonymity and the state’s interest in preventing illegal abortions and preserving the health of the child and his mother. In the case, the court gave priority to the protection of maternal health so as not to increase the number of illegal abortions and to protect not only the mother but also the child. Thus, the case law of the ECHR in this unprecedented case took precedence over the public interest and the privacy of the individual over the child’s right to know his origin. Although the decision was not favorable to the individual’s right to know his or her origin, this case did not become a precedent either (Deloney, 2008).

In summarizing the case law of the ECHR, it should therefore be noted that the child’s right to know his origin under Article 8 of the ECHR is not absolute, as it must meet several important criteria, that is, it is necessary to assess the real interests of the parties to exercise this fundamental right and to strike a balance between the rights and interests of individuals. Proof of origin for economic gain, although the origin has been known to the person in the past, does not fall within the scope of the ECHR; it is also necessary to assess the real impact on the child, the real harm it will do to himself and his normal development in the family environment, by restricting his right to know his origin. In particular, the child’s well-being is and must be more important than his right to know his origin, especially if the person does not question his own rights.

Conclusion

1. The regulation of the right of the child to know his origin at the international level is quite abstract in the ECPHR and the UNCRC and a lot of space is left to the competence of national law. Nevertheless, there are no provisions in Lithuanian law that develop and specify the protection of this fundamental right of the child, and this right is exercised through general legal provisions governing the establishment of a person’s identity and the establishment of paternity.

2. While the problematic issue of the relationship between the child’s right to know his origin and ensuring the anonymity of donors has been unsuccessfully resolved in Lithuania, most countries in the world refuse to ensure the anonymity of donors to protect the child’s right to know their origin. It can be assumed that, over time, confidentiality in these processes will be abandoned globally. 3. However, when legal barriers disappear in practice, others emerge - the desire of parents to preserve the secrecy of the child’s origin to maintain a strong relationship with the child, or a contractual legal relationship between the donor and the sperm bank or hospital - the signed agreement has the force of law for its parties, so the real effectiveness of the removal of legal barriers is questionable. 4. An analysis of the case law of the ECHR has shown that the court still gives priority to the individual’s right to know his origin, while outlining the limits to the priority application of this fundamental right in relation to the child’s motives, the interests in exercising that fundamental right, and the harm suffered. The principle of the best interests of the child must be upheld, and it can be argued that this position of the ECHR is supported by the emerging global practice of abandoning the anonymity of donors.

Bibliography

1. United Nations Convention on the Rights of the Child. The Official Gazette, 1995, No. 60-1501. 2. European Convention for the Protection of Human Rights and Fundamental Freedoms. The Official Gazette, 1995, No. 40-987. 3. Commission Directive 2006/17/EC of 08.02.2006 implementing Directive 2004/23/ EC of the European Parliament and of the Council on setting standards of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells. 4. Civil Code of the Republic of Lithuania. The Official Gazette. 2002, No. 74-2262. Relevant from 01.09.2012 5. Law of the Republic of Lithuania on the Fundamentals of the Protection of the Rights of the Child. The Official Gazette. 1996, No. 33-807. Relevant from 08.06.2006. 6. The May 24th, 1999 order No. 248 of the Minister of Health of the Republic of Lithuania on “Approval of the procedure for artificial insemination”. 7. Draft Law of the Republic of Lithuania on Assisted Reproduction No. XIP 2388 and No.

XIP 2502. 8. Cowden M. (2012). No harm, no foul: a child‘s right to know their genetic parents. International journal of law, policy and the family. Oxford University, No. 26 (1).

9. Deloney W. (2008). Unsealing Adoption Records: The right to privacy Versus the Right of Adult Adoptees to Find Their Birthparents. Whittier J. Child. & Fam. Advoc. Vol. 117. 10. Garison M. (2002). Law making for baby making: An interpretative Approach to the

Determination of Legal Parentage. Harvard law review, Vol. 113. 11. Hodgkin R., Newell P. (2002). The implementation Handbook for the Convention on the

Rights of the child. New York : UNICEF, 2002. 12. Kilkelly U. A guide to the implementation of Article 8 of the European Convention on

Human Rights. Human rights handbooks. No. 1. Retrieved on 20.06.2021 from the website: http://echr.coe.int/NR/rdonlyres/77A6BD48-CD95-4CFF-BAB4-ECB974C5BD15/0/

DG2 ENHRHAND 012003.pdf. 13. Sagatys, G. (2006). Vaiko teisė į šeimos ryšius. Vilnius: Teisinės informacijos centras. 14. Sylvester, T. K. The case against sperm donor anonymity. Yale Law School. Retrieved on 20.06.2021 from website: http://donorsiblingregistry.com/legal.pdf. 15. Vonk, M.J. (2007). Children and their parents: A comparative study of the legal position of children. Doctoral thesis, Utrecht University, Retrieved on 20.06.2021 from website: http://igiturarchive.library.uu.nl/dissertations/2007-1219-220809/. 16. Willenbacher, B. (2004). Legal transfer of French traditions? German and Austrian initiatives to introduce anonimous birth. International journal of law, policy and the family. Vol. 18, No 3. 17. July 7th, 1989 decision of European Court of Human Rights in a case Gaskin v. United

Kingdom (case No. 10454/83); 18. April 6th, 1994 decision of European Court of Human Rights in a case M.B. v. United

Kingdom (case No. 22920/93). 19. October 19th, 1999 decision of European Court of Human Rights in a case Yildirim v.

Austria (case No. 34308/96). 20. January 7th, 2002 decision of European Court of Human Rights in a case Mikulič v.

Croatia (case No. 53176/99). 21. January 13th, 2004 decision of European Court of Human Rights in a case Haas v. The

Netherlands (case No. 36983/97). 22. February 13th, 2003 decision of European Court of Human Rights in a case Odievre v.

France (case No. 42326/98). 23. May 30th, 2006 decision of European Court of Human Rights in a case Ebru v. Turkey (case No. 60176/00).

PROBLEMS OF LEGAL REGULATION OF CHILDREN’S NON-PROPERTY RIGHTS

Dalia Perkumienė, Dovilė Bukauskaitė

Kazimieras Simonavičius University (Lithuania)

Annotation

The child is the basis of society, the value nurtured by the state, and at the same time the child is also a weak link in society, as he is dependent on the environment, is often unable and unable to take care of himself and defend his rights and legitimate interests. The problematic situation regarding the legal enforcement and implementation of children’s non-property rights in the family can be assessed in three ways: first, the child cannot defend his or her rights and legitimate interests on his or her own due to his or her vulnerability and partial incapacity; second, violations of the non-property rights of the child arise when addressing the issue of determining the place of residence of a minor child and third, problems also arise when parents do not agree on the child’s upbringing, upbringing, and communication with the child. The exercise of the right to communicate with the child is understood as the statutory duty of parents to communicate with the child by participating in the child’s upbringing.

Key words: child, children’s non-property rights, family.

Introduction

Children are the future of every country, so they would have the right to grow up in an environment where they would find security, well-being, and love. Parents and other family members should take care of the child’s emotional, material, moral and physical well-being and make proper use of their rights and responsibilities arising from parental responsibility. Parents, authorities, and courts should give priority to the best interests of the child when making decisions (Shestani, 2016).

The child’s age and / or maturity criteria become the child’s essential ability to understand both his or her own rights and those of others and to assess the consequences of his or her actions. Much of the case law of the European Courts consists of cases initiated by the parents of children or their other legal representatives, as the children’s capacity is limited. Due to their specifics,

children cannot properly fulfill their legitimate needs and interests on their own, therefore the child’s parents, guardians or other representatives of the child have a legal obligation to help children implement children’s rights. The implementation of children’s rights respects the provisions of the United Nations (UN) Convention on the Rights of the Child (CRC): the exercise of parental responsibility must safeguard the rights and legitimate interests of the child and take due account of the child’s development. To ensure the most effective implementation of children’s rights in the family, it is important to ensure proper regulation of these rights (United Nations Convention on the Rights of the Child, 1989). Although at present a child, like an adult, has all the universal rights enshrined in human rights instruments, this is not enough. It is important to understand the rights of the child as independent interests. The child is not yet a fully formed personality, therefore he is more vulnerable, and the child has difficulties in defending his rights and legitimate interests, therefore the role of the child’s family and his parents is especially important in this situation (Guide to European law on the rights of the child, 2015).

Today’s society, which is still undergoing fundamental changes and reforms in the areas of public life, the problem of the family crisis is also evident, manifested in the large number of divorces, single mothers (parents) and children growing up in a single-parent family (Kairienė, 2012). However, the changed state attitude towards the child has not changed the attitude of parents and society towards him. In Lithuania, as in other Central and Eastern European countries, children are the group of society whose wellbeing has been and is the most vulnerable. The child is not yet a fully formed personality, therefore he is more vulnerable, and the child has difficulties in defending his rights and legitimate interests, therefore the role of the child’s family and his parents is especially important in this situation.

Research object. Non - property legal relations of children in the family.

The aim. To analyze the regulation of children’s non-property rights in the family, identifying the problems arising based on these relationships.

Results

The concept of a child is presented by the current Lithuanian dictionary, according to which a child is: a) a daughter or son to his parents; (b) a girl or a boy; (c) a person with any environmental or age characteristics (Dabartinis lietuvių kalbos žodynas, 2000).

According to J. Žukauskaitė and A. Širinskienė, every person in a biological sense is someone’s child. In a social sense, a child is a person who has social ties with his or her parents (Žukauskaitė, et. al., 2007).

Under European Union (EU) law, there is no single official definition of a “child”. Under EU law, the definition of a child can vary greatly depending on the regulatory context. For example, EU law on the free movement of EU citizens and their family members defines “children” as “direct descendants who are under the age of 21 or are dependent” (Handbook on European law..., 2015).

The rights of the child, as an integral part of the Institute of Human Rights, are divided according to certain criteria. Human rights are usually divided into political, civil, social, economic, and cultural rights. All human rights can be divided according to the general principle of “3 P”. According to this principle, human rights include: 1. Provision of citizens - this is the right of individuals to receive support and services, such as education, health care, etc. 2. Protection, which includes the right to be protected from exploitation, ill-treatment, violence, sexual abuse, etc. 3. Participation - i.e., the right to act and the right to participate in certain circumstances (Spanjaar, et. al., 2008).

In the Middle Ages, the concepts of child and childhood were practically non-existent. The children prepared in the same way as the adults and engaged in the same activities. Their training was carried out through an apprenticeship, during which they worked with adults. It was only during the Revival and Reformation that the concept of the child and childhood developed (Barn, Franklin, 1996). During this period, children were perceived as innocent and weak. They were considered to need discipline to ensure that they evolved into the right people. According to Michael Freeman, children of this era were “specially treated” and quarantined before being allowed to enter adult society (Freeman, 1983). From the 1500s onwards, children were not considered to have an independent will, so young people were completely subordinate to their parents. Victorian times were characterized by strict child discipline and repressive parenting practices (Van Praagh, 1997). It was not until the late twentieth century, especially in the 1970s and early 1980s, that the concept of the rights of the child emerged. It has been recognized that children have interests, perhaps even rights, that need to be considered clearly and separately from the interests of adults, especially their parents (The concept of children’s rights…, 2021).

The concept of “childhood” is quite young, “it originated only from the highest social strata of the 16th-17th centuries and was developed until the 20th century, when it was fully established in all classes of society.” Childhood includes a period of human development during which the specific characteristics of a child dominate (Sagatys, 2006).

The current concept of the rights of the child was influenced by the 1989 United Nations Convention on the Rights of the Child. This convention established the economic, civil, social, cultural, and other rights of the child. The United Nations Convention on the Rights of the Child establishes the relationship between the exercise and enforcement of parental responsibility for children (Theobald, 2019).

According to Vaišvila, “creating a privileged position for children does not have a negative meaning”. According to the scientist, children due to mental and physical immaturity, as well as emotional instability, exercise their fundamental rights and freedoms themselves (Vaišvila, 2000).

The rights of children and their duties and their implementation are regulated by the third book of the Civil Code of the Republic of Lithuania. The rights and responsibilities of parents to children are defined in Articles 3.185 - 3.191 of the CC. CK 1,137 p. 1 d. provides for the free exercise of civil rights by individuals. As already mentioned, a child cannot freely exercise this right granted to him or her due to mental and physical immaturity. It should be noted that this provision is applied together with Article 3.163 of the CC. 3, according to which the child, having acquired full legal capacity, defends his rights and legitimate interests himself. It should be noted that a person who reaches the age of 14 is guaranteed substantive and procedural legal norms that guarantee the right of such a person to go to court when, in the child’s opinion, the parents violate the child’s rights and legitimate interests. A child may apply to the state institution for the protection of the rights of the child to defend his or her rights. CK 3,163 p. it is provided that the child is represented by parents, guardians (caregivers) or adoptive parents when defending the rights of the child (Civil Code of the Republic of Lithuania, 2000).

Parents must first carry out the duties assigned to their children so that, at the age of majority, the children can carry out their duties to their parents. The provision of Paragraph 1 of Article 3.155 of the CC establishes that parental authority is valid for children until the age of majority or emancipa-

tion. Parental authority is the totality of parental rights and responsibilities. Article 3.155 (2) of the CC defines the content of parental authority, which consists of a number of rights obligations, such as: 1. Parents’ right and duty to protect the child; 2. The duty of parents to bring up, educate, and teach a child; 3. Parents’ duty to support the child; 4. The duty of parents to ensure the child’s right to health; 5. Implementation of the parents’ right and duty to see and communicate with the child; 6. Parents’ right and duty to administer the child’s property; 7. Parents’ right and duty to represent the child in accordance with the law. It is important to discuss when children have an obligation to fulfill their responsibilities to their parents. A. Vaišvila, in the theory of law, states that “a person acquires rights only when he assumes office” and this statement is especially relevant when we talk about children in general. It should be noted that the principle of unity of rights and responsibilities has certain reservations, as the already born child acquires rights, i. has legitimacy (Vaišvila, 2000).

Kairienė, discussing the relationship between children and parents, states that “the obligation to a child arises only when he is able to understand his own rights and later begins to understand the other person’s rights, and even later acquires the ability to assess what his actions violate another person’s rights, to be able to abstain from them.” The child’s age and / or maturity criteria, in the opinion of the lawyer, become an essential ability of the child to understand both his or her own rights and those of others and to assess the consequences of his or her actions (Kairienė, 2012).

According to D. Kabašinskaitė, everyone must be respected, because this is a fundamental idea of human rights. According to the researcher, the rights of the child are also the protection of the child and the environment, which ensures the child’s full development (Kabašinskaitė, 2002).

The child’s family responsibilities until the age of majority, governed by national law, can be divided into the following groups: 1. The child’s duty to respect parents and other family members, to support them; 2. The child has a duty to respect adults and other children, without prejudice to their rights and legitimate interests; 3. The child’s duty to observe the norms of conduct both in public places and in the household; 4. The child’s duty to respect and preserve cultural values and private property. All these responsibilities of children can be organized into two larger groups, one of which

is respect for parents and all the people around the child (both adults and children), the other - the child’s behavior in public places such as school, street, nature, museum, and others (Law of the Republic of Lithuania on the Fundamentals of the Protection of the Rights of the Child, 1996). Article 3.162 of the CC also defines the responsibilities of children, which stipulate that the child must respect his or her parents and perform his or her duties properly (Civil Code of the Republic of Lithuania, 2000).

Children’s rights are an important and integral part of every individual’s rights system. It should be noted that to fully exercise the rights, the child needs special care and protection, as he is unable to fully realize and enforce them due to his subjective and physical characteristics. As the child is considered a weak part of society, the proper exercise of his or her rights must be guaranteed by the child’s parents/adoptive parents, guardians, as well as certain institutions that are responsible for the implementation of the child’s rights.

As children are not able to exercise their rights at the same level as adults, they need special help and protection. The state must ensure in its legal system that the child can exercise his or her rights (Kietytė, 2005). Researchers compare the rights of the child to needs that are not always understood and can be explained in human rights categories. Various social and scientific discussions argue that the child has the right to grow up in a happy family where he or she would be loved and happy. The child must be guaranteed legal protection both before and after the birth of the child, as the child is the most sensitive and vulnerable part of society, unable to exercise his or her rights. According to Sagatys, children must be guaranteed rights that are not typical of adults, such as the right to healthy development, the right to education, the right to be protected from violence and neglect, and the like. At the same time, these rights reflect the position of the child as a privileged person in society (Sagatys, 2006). Many scholars studying the rights of the child agree that the rights of the child are equivalent to those of an adult. Because of their vulnerability, children must be protected from other people and at the same time from themselves, so the most important need for children is the protection of parents and society.

It should be noted that the uniqueness of a child’s non-property rights is that these rights are characterized by a special personal nature, emphasizing the ownership of these rights by the child and at the same time requiring

comprehensive protection of rights, which does not depend on the will of others (Šimonis and Januškienė, 2001).

As children are vulnerable and unable to defend their rights, ensuring and enforcing children’s rights poses challenges due to the uncertainty of legal provisions and regulatory gaps. Therefore, this section of the thesis will analyze legal documents and scientific papers to determine whether the applicable legal norms fully and comprehensively define and ensure the best interests of the child.

It should be noted that the presentation of the concept of protection of the rights of the child in the legal acts of the Republic of Lithuania is not comprehensive and exhaustive, it lacks clarity and consistency. For example, the Law on the Fundamental Rights of the Child, defining the concept of protection of the rights of the child, states that the purpose of this law is to improve the implementation of the legal protection of children. The main and most important goal of the protection of the rights of the child is to formulate a policy that meets the needs of the child and ensures his or her rights and legitimate interests and to ensure the effective implementation of these rights. The rights of the child as the weakest and most vulnerable member of society must be protected by pursuing his or her legitimate interests and expectations and ensuring a safe and full childhood, by properly preparing children for a full life, and by learning to respect established norms and values (UNICEF, 2021).

Article 3 (1) of the Convention on the Rights of the Child provides that the best interests of the child shall be a primary consideration in any action concerning the child, whether taken by public or private social security courts, courts, administrations, or legislatures. It is always necessary to assess the decision or any other action in the best interests of the child and to ensure that it is not prejudiced, both when adopting and applying the legislation and when dealing with matters not covered by the legislation (United Nations Convention on the Rights of the Child, 1989).

To adequately protect the rights of the child, problematic situations arise from the negative influence of the media. The situation has improved. September 10 after the adoption of the Law on the Protection of Minors from the Negative Impact of Public Information, the purpose of which is to investigate available information that has a negative impact on children’s development and to provide for the responsibility for the dissemination of

such information. The principles of protection of minors in relation to their mental, physical, and moral development, which may be affected by inappropriate publicly available information, in particular information relating to violence and pornography, are enshrined in Article 18 of the Law on Public Information (Law on Public Information of the Republic of Lithuania, 2004).

Research shows that children value their family relationships relative to all other factors, and for most children, family is a very happy place. Even though corporal punishment has been banned in many European countries, children say they have experienced domestic violence. For example, in a study in Germany, one in five children say they have experienced domestic violence. In many European countries, corporal punishment of children remains acceptable from both a social and legal point of view. In a study on the rights of the child in Moldova, one child states that “parents abuse their child without cause because they are annoying” the child is like a toy in the mood of the parents. Irish research also shows that parents physically punish children: “feel bad in some way, including sadness, resentment, dislike, pain, fear, anger and shame.” Young people across Europe emphasize the need to end corporal punishment and recommend teaching positive parenting (European Network of Ombudspersons for Children, 2011).

The child’s right to live and / or communicate with parents or legal representatives is guaranteed by the United Nations Convention on the Rights of the Child, as well as by the Framework Law on the Protection of the Rights of the Child of the Republic of Lithuania. For example, FUŞCĂ v. Romania raised the issue of a child’s ability to communicate and see his or her father. In the present case, the Court has not established Article 8 of the Convention, i. violations of the right to respect for private and family life, the bailiff immediately took enforcement action and accompanied the applicant to the orphanage in good time to communicate with the child. Enforcement efforts were unsuccessful not only because the mother prevented the child from seeing the father (the fines imposed on the mother, which cannot be considered unreasonably low), but also because the child was unwilling to join the father (ECtHR case Fuşcă v. R-ia, no. 34630/07, 2010).

Article 3.180 of the Civil Code of the Republic of Lithuania states that for parents to avoid performing their duties to properly educate their children, the court may restrict parental authority or when the children are abused, or the parents are adversely affected by their immoral behavior without car-

ing for the children. In a civil case, the Supreme Court of Lithuania stated “in case of unfavorable circumstances due to which the child’s father or mother is unable to live with the child and take care of him, a decision may be made to separate the child from the parents. Parental authority shall be subject to a restriction on parental authority to avoid the performance of their duties. It should be noted that the court restricts parental authority in the light of specific cases to protect the rights and legitimate interests of children. It should be noted that an indefinite restriction of parental authority applies in cases where the court decides that the harm caused by the parents to the child is detrimental to the child’s development, or the parents do not take care of the child at all. In this case, parental authority and the personal and property rights of the parents based on kinship and / or established by law are suspended, but the right to see the child remains, except when this is detrimental to the interests of the child (Civil Code of the Republic of Lithuania, 2000).

If it is proved that the parents’ behavior has changed and they can raise their child, the restriction of parental authority can be lifted, but only in cases where it is not contrary to the best interests of the child. If circumstances change, but without sufficient grounds for lifting the indefinite restriction of parental authority, it may be changed to a temporary restriction of parental authority, and if it becomes clear that the conditions under which the child cannot live with the parents remain, separation from parents.

It should be emphasized that in cases of restriction of parental authority or separation of a child from the parents, the court makes decisions considering the interests of the child and the situation, as well as if possible after hearing the opinion of the child, who can express his or her thoughts and views (Civil Code of the Republic of Lithuania, 2000).

In summary, both father and mother have equal responsibilities and rights for their children. As already mentioned, parents have the same rights and responsibilities for their children, regardless of whether the child was born to unmarried or married parents, whether the child’s parents’ marriage was annulled by a court decision and / or the child’s parents were divorced. The content of children’s personal rights related to their non-property rights in the family is established by Article 3.165 of the CC, which states that children have the right to be brought up by their parents and parents are responsible for the upbringing, upbringing and develop-

ment of their children. Children also have the right to health, spiritual and moral education. In the performance of these duties, the child’s parents have priority over other persons. Issues related to the education, care and upbringing of children must be resolved by mutual agreement of both parents. Although the child’s parents live separately, the child must have the right and opportunity to communicate directly and permanently with both parents, regardless of the parents’ place of residence. In the event of disagreement between parents over the participation and communication of a non-cohabiting parent, the procedure for communicating with the child is established by the court, often by referring enforcement to bailiffs if the dispute cannot be settled amicably and / or not followed.

Conclusions

1. The child’s non-property rights such as a right to privacy, a right personal integrity and liberty is protected by law. Even the privacy of children who break the law must be protected. 2. Parental responsibilities are not defined in terms of the exercise of the rights of the child, but in ensuring their exercise. Depending on age, children can exercise their rights independently or with the help of parents, guardians, or adoptive parents. Not all parents are able to provide their children with suitable living conditions in their families, provide what is needed for the full development of children - leisure, games, cultural events, protection from all forms of abuse, exploitation, rude behavior, listen to children’s opinions and suggestions. Respect for and violations of the rights of the child is strongly determined by the social and economic situation of the family (even the whole state). 3. Legal disputes usually arise regarding the determination of the child’s place of residence and the determination of the time of communication with the children, regarding the social care and care of the child in the family, etc.

The following recommendations can be made for problems solving: 1. To ensure that both children and adults are properly informed not only of the child’s rights but also of human rights instruments in general. This would help to raise awareness that it is not just children who have rights and the documents that protect them, that rights do not expire when

a person turns 18 years. Awareness and knowledge of human rights would help to promote respect for the human being in principle, respectful relationships between children and adults. 2. To ensure more efficient determination of the child’s place of residence in accordance with the child’s legitimate interests, it is proposed to supplement Article 3.164 of the CC of the Republic of Lithuania by separating the provisions for determining the child’s place of residence. 3. To create a common system for monitoring the implementation of the rights of the child at both the national and local municipal levels. Monitoring must be continuous, consistent, and systematic. At both national and local level, professionals must be properly trained for monitoring and provided with the practical tools and mechanisms to do so.

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LEGAL PROBLEMS AND ISSUES OF UNMARRIED PERSONS RELATIONS REGULATION

Dalia Perkumienė, Viktorija Tverijonienė, Antonio Silva

Kazimieras Simonavičius University (Lithuania), Kazimieras Simonavičius University (Lithuania), Extremadura university (Spain)

Annotation

The relationship between unmarried, cohabiting but unregistered persons, also known as cohabitants, is regulated by the 2001 July. 1 d. the Civil Code of the Republic of Lithuania (hereinafter the CC) has entered into force. It should be noted that this is the first and probably the only significant attempt of the state for the legal regulation of such family relations. Although two decades have passed since the entry into force of the Civil Code, even today there are no legal acts in Lithuania that directly regulate the property and non-property legal relations of unmarried persons living together. It should be noted that what is considered the cohabitation of persons without marriage and what are the legal consequences of such cohabitation of persons is also not regulated by law.

Key words: unmarried persons, cohabitation, legal problems.

Introduction

In Lithuania, we do not have legal acts that would directly address the property and / or non-property relations of unmarried persons living together. It should be noted that we do not have legally defined concepts of what is the cohabitation of persons without registration of marriage and what legal consequences may arise from such cohabitation of unmarried persons.

The Supreme Court of Lithuania explains the cohabitation and joint management of unmarried persons that the joint management of unmarried persons and the acquisition of joint property may be recognized as an important basis for concluding a joint activity agreement and joint property and in the absence of a written agreement of such persons. Although the property of unmarried persons is registered as the personal property of one of them, this cannot be considered as an obstacle to the recognition of such property as joint property of cohabitants in the future. An applicant seeking recognition of such property as common must follow the criteria

established by the courts, which he must prove. Most importantly, it must be proved that such a person contributed to the creation or acquisition of such property by his own work or by personal or cohabitation funds. In the absence of direct statutory regulation, there are regular problems of interpretation and application of the law in the courts (Order of the Civil Cases Division of the Supreme Court of the Republic of Lithuania, 2006; 2013).

Under Article 8 of the ECHR, the right to family life should be guaranteed not only to married persons but also to persons who have not entered a marriage but who are living in a family life (European Convention for the Protection of Human Rights and Fundamental Freedoms, 1995). People have the right to choose to live together without getting married and to bypass the marriage system to start a family, but that does not mean that they have given up legal protection of their legal rights. The laws of the Republic of Lithuania clearly and in detail determine the property and nonproperty relations of married persons, as well as the consequences arising after marriage, but the legal regulation of cohabiting unmarried persons analysis of the norms of the chapter “Cohabitation without marriage”. As the law responds to public relations that arise in real life, the participants in these relations need legal regulation and the clarity of their legal position. The problematic situation regarding the provision and implementation of cohabitation can be assessed by distinguishing the following problems: 1. In the absence of direct legal regulation, the courts regularly encounter problems of interpretation and application of law related to the recognition of inheritance, inheritance, and the resolution of property and other social issues. 2. According to the CC, a new marriage may be entered into by persons only after the dissolution of a valid marriage, and the cohabitation of another person may become cohabitation even without the dissolution of the marriage, thus maintaining both marital and cohabiting relations. 3. In the event of a property dispute between cohabiting unmarried persons, the courts must assess and decide in each case whether there was an agreement between the persons to run a joint farm and to act jointly in a joint venture with shared costs.

Research object. Regulation of legal relations of unmarried persons.

The aim. To evaluate the effectiveness of legal regulation of unmarried relations based on civil law.

Results

Since ancient times, the lives of unmarried people have long been suppressed by society and prohibited by law. The institute of partnership was already enshrined in Ancient Roman law next to the institute of marriage. According to V. Mikelėnas, “Emperor Augustus made an exception for a man’s extramarital life with a woman, not considering such life as infidelity and fornication, if they were not entitled to marry for reasons specified by law, such as senators, liberated persons and the like.” sex life together was called concubinate (Girard, 1931 Digesto 23.2.24; D. 25.7.3 pr Astolfi, R., Studi sul matrimonio nel diritto romano postclassico e giustinianeo, Napoli, 2012). Children born in such families did not acquire the same rights as children born in a married family, but over time, children born in unmarried families acquired more and more rights, such as inheritance or some non-property rights. According to historical sources, the church’s approach to unmarried marriage at the time was very hostile. With the collapse of the Roman Empire, the church even imposed punishments for life without getting married (Popiežius sušvelnino bažnyčios požiūrį į nesusituokusias poras, 2016).

The modern Lithuanian family institution is supplemented with new family types and forms. In addition to the established traditional type of family (spouses with or without children), cohabiting and transnational families began to spread. Although it is clear from the Lithuanian legal framework that the family has an uninterrupted connection with marriage, the concept of family is not directly provided even in the Constitution, and in various legal acts the concepts of family or family member are often different or even contradictory: sometimes the family is identified with close relatives. sometimes the concept of family is developed, even by interpreting that family is all persons who consider themselves family or family members (Donauskaitė, 2007). It is often said today that the basis of family law is no longer as strong as it used to be, so any reforms are needed to strengthen that basis. The popularity of unmarried families, the number of illegitimate children and the number of registered partnerships is growing rapidly in society, and such phenomena call for a rethink of what is really considered a ‘family’ today. In the legal literature, the concept of married persons has many different and abstract definitions, but the concept of unmarried persons is sufficiently clearly and concisely defined (Burton, 2015).

In the legal literature, unmarried, cohabiting individuals are called partners or cohabitants. The partnership of these individuals can be de facto (informal). It should be noted that there has never been legal regulation of such relations in Lithuania, except for the period when under the Russian (RTFSR) Code of Marriage, Family and Custody, persons living together without marriage registration, their legal marriage was equated to registered marriage.

Partnership in the Civil Code of the Republic of Lithuania defines two types of relations: 1) A partnership may be an association of two or more persons which pursues objectives which are not contrary to law. 2) The relationship between a man and a woman who have registered their partnership in accordance with the procedure established by law shall live together for at least one year without the registration of marriage, to establish a family legal relationship in the future (Civil Code of the Republic of Lithuania, 2000).

A partnership is defined as the formal cohabitation of two people (a man and a woman) for the purpose of establishing a family relationship. In Lithuania, the terms “cohabitants” and “partners” are considered synonymous (Čivilytė-Gylienė, 2006). In foreign literature, partnership is often referred to as a completely new legal status that establishes same-sex extramarital relationships. It should be noted that the legal status of both marriage and partnership confers similar rights and obligations, but these institutions cannot be identified (Welsted, M. & Edwards, 2013). The legal regulation on partnerships does not regulate cohabitation between the same or different sexes, as in a foreign legal system, a partnership arises only after it has been legally registered between persons of the same sex. Thus, both the Lithuanian and foreign legal systems ensure that the partnership has a fully legal status (Burton, 2015).

The CC of the Republic of Lithuania, defining cohabitation relations, distinguishes the following main requirements: persons living together must be male and female; their cohabitation must last at least one year; the said persons must also have the purpose of establishing a family relationship and registering a partnership in accordance with the procedure established by law.

According to the Civil Code of the Republic of Lithuania, cohabitants or partners are men and women who have lived for at least one year without registering a marriage, with the aim of establishing a family relationship. A.

Vaišvila emphasizes that in determining the legal basis of these relations, there is a lack of legal certainty and specificity (Vaišvila, 2012). According to V. Mikelėnas (2009), the word “cohabitation” has several meanings: cohabitation of future spouses before marriage; cohabitation without deliberate registration of marriage; coexistence of people who do not have sex, such as several students renting the same apartment (Mikelėnas, 2009). The cohabitation of persons before marriage, or cohabitation, is the cohabitation of a man and a woman without marriage and without formalizing such a relationship. Formalized cohabitation is the common life of a man and a woman without formalizing the marriage but legalizing such a relationship in some form.

The concept of cohabiting persons is also defined in the Law of the Republic of Lithuania on Monetary Social Assistance to the Deprived. Paragraph 2 of Article 2 of this Law provides that cohabiting persons - spouses and their children (adopted children) under 18 years of age; a married person with whom their minor children (adopted children) or one of the parents and his or her children (adopted children) under the age of 18 have survived by a court decision regarding the separation of the spouses; unregistered marriage and adults managing a joint farm or recognized minors man and woman and their children (adopted) under 18 years of age (KudinavičiūtėMichailovienė, 2008). 2019 January 11 The Constitutional Court in its ruling was very clearly emphasized, the court made a distinction between a married and an illegitimate family. According to Paragraph 3 of Article 38 of the Constitution, a married family is formed between a man and a woman, and according to the position of the court, a different interpretation of marriage would require an amendment of the Constitution. And extramarital family life can occur both between the opposite sex and between same-sex couples. However, according to the Constitution, all non-marital families living a family life, regardless of whether they have formalized the family legal relationship (if permitted by applicable law) or are living as a family, are entitled to legal protection. It is also important that the court stated that all families that comply with the constitutional concept of the family, based on the content of permanent or long-term family relationships, are protected and defended in accordance with the principle of equality of persons and nondiscrimination (Ruling of the Constitutional Court in 2019).

In Sweden, for example, it does not matter whether the cohabitants are of the opposite sex or of the same sex. It should be noted that relationships between couples living together are not covered by the Cohabitation Act if one of the parties is married or has registered a partnership with another person, or if, for example, two adult siblings live together. It should be noted that the legislator gives a rather narrow meaning to the “family relations” of cohabitants in comparison with the “family legal relations” of the spouses. Although the “family relationship” of the cohabitants can be considered legal and this relationship is protected by legal norms, the legal norms establish the legal regime of the property in the case when the cohabitants have acquired and use this property jointly (Civil Code of the Republic of Lithuania, 2000).

Family legal relations in Lithuania are based on the principles of equality of spouses, voluntary marriage, raising children in the family, protection of all maternity and paternity and other legal regulation of civil relations, including significantly wider legal family relations than most partners.

General fact of life of cohabitants is not registered. It is based on the honesty of roommates. In Lithuania, the registered partnership model has been chosen. “In this case, the legal status of cohabitants is acquired by registering a common fact of life in accordance with the procedure provided by law. However, this model is not yet operational in Lithuania. In foreign countries, this model is more applicable to the legalization of same-sex unions “ (Miškinis, 2003).

The last few decades have seen a decline in the number of marriages in almost all of Europe, an increase in the number of cohabitations without marriages, and an increase in the number of out-of-wedlock births. However, the pace of change in this area has not been the same in different countries: in some country’s cohabitation has grown rapidly, premarital life has become commonplace and direct marriage has begun to decline rapidly, while in others it has changed very little. Although worldwide research provides important information on the dynamics of the formation of unmarried unions at the population level, they can provide only a limited understanding of the root causes of the formation of such unions in different societies. In general, we have very little understanding of how people talk about cohabitation and marriage in different countries and what importance they attach to these relationships. Alternative arguments, on the other hand,

suggest that cohabitation does not necessarily have to be a rejection of marriage, but can be chosen because it is a temporary union better suited to the uncertainties of life (Kiernan, 2004).

In the United States, for example, people often live together, and this is an alternative to not being alone. American “cohabitants” often “transition” into cohabitation, and finances, convenience, and housing are more conducive to their decisions than a commitment to a long-term relationship. The U.S. model, as well as the negative educational gradient of childbirth across Europe, suggests that cohesive growth may not only be due to a shift in values to expressive and unconventional values, but may instead be a symptom of increased uncertainty and instability (Perelli-Harris, B., SigleRushton, et. al. 2010).

In the United Kingdom, common marriage is understood as the life of an unmarried couple while maintaining a long-term relationship like marriage. Technically, “cohabiting” can refer to any number of people living together, but a cohabiting couple would be defined as a couple who are not married but live together. Many common couples consider that they are legally recognized as “common law marriages”. This is a risky assumption because many unmarried people mistakenly believe that if their relationship broke down or if their partner died, they would be given a similar level of legal protection as if they were married. Therefore, there is no proper definition of the concept of legal cohabitation, which usually means living together as a couple only without marriage (What Does Cohabiting Mean, 2021). Individuals can formalize aspects of their status with a partner by entering into a legal agreement called a joint agreement. The framework agreement describes the rights and obligations of each partner in relation to each other. It is unclear whether cohabitation agreements are legally enforceable, but they may be useful if the couple has initial intentions. In practice, instead of a general agreement, it is also possible to conclude several legally enforceable agreements on specific issues, such as how a shared house is shared. If you want to do this, you need legal advice. Then you need a lawyer with experience in family law (What Does Cohabiting Mean, 2021).

In the Netherlands, partner status is also available to people of the same sex and of different genders. In Sweden, a partnership is designed, as in England, for a relationship between two people of the same sex. In the above-mentioned countries, the use of the term partnership is linked

only to the registration of the relationship, i. as in Lithuania, while the term cohabitant is used to describe different genders and unregistered relationships (Klüsener, et. al., 2013).

There are seven Autonomous Communities in Spain: Galicia, the Basque Country, Navarre, Aragon, Catalonia, the Balearic Islands and Valencia. These communities regulate the property consequences of unmarried couples, property relations (González, 2014).

The Spanish law of Social Security (8/2015 October 30th) defines theses unions as: a union constituted with an analogous relationship of affection to the conjugal one, by those who, not having been prevented from entering marriage, do not have a marital bond with another person and demonstrate a stable and notorious cohabitation. There is no mention in the Spanish civil code to different unions apart from those whose origin is the marriage nor a general law about cohabitation with very specific exceptions such as the Social Security Law mentioned and are the Autonomous Communities that regulate the unmarried couples with the exception of Castilla-La Mancha, Castilla León and La Rioja. The regulation can be divided into three different groups: a) laws about certain civil legal aspects of the couple (Aragón, Cataluña, Baleares, Galicia, Navarra, País Vasco and Valencia), b) laws about administrative protection of the couples (Andalucía, Asturias, Cantabria, Canarias, Extremadura, Madrid and Murcia). Most of them enacted also some autonomous decrees that regulate registration and affects of unmarried couples. Is also important the law of Galicia that considers the unmarried couples as similar to married ones with or without intention of a stable union but with same rights and duties as married couples (Acedo, 2021).

The legal regulation of cohabitation varies from country to country. While some countries have a comprehensive legal framework governing the relationship between such couples, others refuse to formally recognize such a relationship in their national law. Pashynsky (2020) divides the country into three groups because of their legal approach to unmarried couples (Pashynsky, 2020): 1. The first group includes states that have little regulation of the relationship between such couples, i. recognizes only minor legal consequences of such relationships that are not related to the regime, maintenance, or inheritance of property. This group includes African and Asian countries and many European democracies (Austria, Belgium, Denmark, Estonia, France, Germany, Greece, Lithuania, Poland, Slovakia, Slo-

venia, Switzerland, etc.). 2. The second group of States recognizes certain consequences of cohabitation in relation to the regime of property, maintenance and / or inheritance, but has not yet adopted comprehensive legislation to fully regulate this relationship (For example, the Czech Republic, Mexico, Paraguay and others). 3. The third group includes states in which extramarital cohabitation is regulated in detail by several laws (Croatia, Hungary, Finland, Ukraine).

It should be noted that the Central Committee of the Republic of Lithuania pays a lot of attention to the regulation of property relations of the subjects of family legal relations, and their personal relations, which form the main part of family law, are often governed by civil law principles and methods. Family law regulates property and personal non-property relations of family members, and the norms of property, obligation law and civil law branches and institutes apply to family relations to the extent that they are not regulated by the norms of the Third Book of the CC. This means that the norms of the third book of the CC are special in comparison with the norms of other books of the CC, as their entry into force and application are subject to the condition that they come into force from the moment of entry into force of the law regulating the partnership registration procedure (Civil Code of the Republic of Lithuania, 2000).

According to the case law of the Supreme Court of Lithuania, according to which cohabitation of cohabiting persons, creation of joint property with personal funds and / or joint work, joint farm management may be recognized as a sufficient basis to establish or deny the existence of an agreement creation (Civil Cases Division of the Supreme Court of Lithuania, 2008; Civil Division of the Supreme Court of Lithuania, 2009 September 28; Civil Cases Division of the Supreme Court of Lithuania, 2010; Civil Division of the Supreme Court of Lithuania, 2011 October 24 order in civil case no. 3K-3-410).

It should be noted that such cases form the case law that the property relations of unmarried persons (cohabitants) living together are not subject to the legal norms regulating the legal status of the property of the spouses. Chapter XV of Part VI of the Third Book of the CC of the Republic of Lithuania regulating these legal relations is still not valid, as no special laws have been adopted regulating the procedure for registration of partnership. It should be noted that the case law of the Court of Cassation confirms that the norms of the fourth book of the CC of the Republic of Lithuania estab-

lishing the general right of ownership for co-owners are applied to the protection of the property relations of the said persons to the jointly acquired property (Civil Code of the Republic of Lithuania, 2000).

Problems also arise with the recognition of unmarried persons (cohabitants) as family members. For example, in the decision of the Šiauliai District Court E2YT-11215-251 / 2017 the applicant D. B. Ž. requested to establish the fact of legal significance that together with his cohabitant VS, who died (-), he married a joint farm and was a member of his family, therefore he has equal rights of tenants to an apartment in (-) belonging to Šiauliai City Municipality (1-2 bl). The applicant stated that “since 1985 she lived with her cousin V. S. and, from 5 October 2001, they lived at (-) based on a tenancy agreement. He married a cohabitation with his partner, bought food together, paid utility bills, rented an apartment, lived in an actual marriage as a family, and their relationship corresponded to that of family members. From 11/04/2002, with the consent of the partner, declared his / her place of residence at (-). (-) a cohabitant died.” The applicant indicated to the court that she had nowhere to live, therefore she applied to the Šiauliai City Municipality Administration to change the lease agreement, recognizing her as a family member of V. S. The court decided to recognize D. B. Ž., V. S. as a family member of the deceased (Šiauliai District Court Civil Cases Division, 2017).

In summary, it can be stated that the legal protection of the property interests of currently unmarried persons is assessed only based on the contribution of cohabitation property or its contribution to the acquisition of a property object acquired during cohabitation. A cohabitant who has not proved to the court the part of his or her property contribution to the property object cannot expect legal protection of his or her property interests. Problems also arise with the recognition of unmarried persons (cohabitants) as family members. The cohabitation of unmarried persons and the management of a farm together, as well as the creation of joint property with personal funds and their own work, can be proved by all possible evidence and the court can be recognized as a basis for joint venture.

Conclusions

1. The obligations of unmarried cohabitants are essentially like those of spouses, but less rights are granted to unmarried and cohabiting persons. Individuals who live together and have the goal of establishing a family re-

lationship in the future acquire cohabiting status that is partially equivalent to that of a spouse. The law governs these relationships to the extent necessary to protect public and private interests. 2. According to the CC of the Republic of Lithuania. 3.210 p. 3d. unmarried persons cannot adopt the same child. It should be noted that one of the peculiarities of family relations is that personal non-property relations between family members regulated by law may affect their property relations, but in the case of unmarried persons living together, such relations are practically not regulated. 3. In the event of a property dispute between cohabiting unmarried persons, the courts shall in each case assess and decide whether there was an agreement between the persons to run a joint farm and to act jointly in a joint venture with shared costs. In determining the fact of the formation of a joint activity relationship between cohabiting unmarried persons, the case law assesses circumstances such as the long cohabitation of such persons together, joint financial obligations, meeting common needs from common and personal funds, common children, and other important circumstances. 4. Regarding the legal regulation of cohabitation relations, it is important to mention that the possibility to exercise the rights established by the Central Committee of the Republic of Lithuania arises only for partners living together for at least one year, and the spouses’ property becomes joint property immediately after marriage. Such a special criterion is like a measure that confirms the authenticity of the cohabiting family relationship. Regarding the duration of the actual marital relationship, the most common criteria are distinguished, such as long life together, running a joint farm, raising children, and fostering family relationships. Although the case law emphasizes that short-term, intermittent cohabitation is not considered to be the basis of an actual marriage. 5. An analysis of the case-law leads to the conclusion that the cohabitants are held liable for all personal obligations entered on their own behalf and that the cohabitation in proportion to its share of the contribution, shall be liable to third parties in respect of the obligations relating to the common property and shall also pay the costs of maintaining and preserving it, taxes, and other contributions.

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LEGAL PROBLEMS IN MARRIAGE DISSOLUTION THROUGH THE FAULT OF THE SPOUSE IN ESTABLISHING THE FAULT OF THE SPOUSE

Laura Seržintienė, Dalia Perkumienė, Antonio Silva

Kazimieras Simonavičius University, Kazimieras Simonavičius University, Extremadura University

Annotation

Under Lithuanian law, a spouse can request marriage dissolution if the marriage was actually dissolved due to the fault of the other spouse, and this right cannot be abused like any other right. In order to dissolve a marriage in this way, the fault of the spouse is a prerequisite for marriage dissolution. According to the provisions of Book III of the Civil Code, fault of a spouse for breaking up the marriage is defined as a fundamental breach of the spousal obligations which makes the joint marital life of the spouses together impossible. The most difficult parts of this process are proving and establishing the fault of the spouse. Key words: evidence, fault, marriage dissolution, presumption.

Introduction

Nowadays, many countries have abandoned fault as the sole ground for marriage dissolution, and in some countries, the fault of the spouse is only one of several possible grounds for marriage dissolution. Since marriage is a form of contract, the legal liability of the person at fault for non-performance or improper performance of the contract can be enforced through the institution of marriage dissolution through the fault of the spouse. In cases where one of the spouses has been found by the court to be at fault for the dissolution of the marriage, the legal consequences of the divorce, both pecuniary and non-pecuniary, are characterised by certain specific features. In Lithuania, the current Civil Code provides for certain benefits for the innocent spouse in this case, and certain sanctions for the guilty spouse for breaking up the marriage. The legal consequences of marriage dissolution through the fault of the spouse mean that the guilty spouse is worse off after the marriage dissolution, and that the innocent spouse enjoys certain ad-

vantages. Although one spouse applies for marriage dissolution on grounds of fault of the spouse, in most cases the court will find that both spouses are at fault. Practical legal problems in marriage dissolution through the fault of the spouse arise when deciding which spouse is at fault for the breakdown of the marriage. This leads to legal problems: Are all means of proof recognised as legitimate in proving the guilt of a spouse? In which cases does the court find that one spouse is at fault and when both spouses are at fault for the breakdown of the marriage?

Subject of the research is the fault of the spouse in the dissolution of the marriage.

Aim of the research is to analyse the legal framework for marriage dissolution through the fault of the spouse and to determine whether all the means of proof are admissible to prove the fault of the spouse.

Tasks: (1) to analyse the fault of the spouse (2) to give a brief overview of fault and no-fault marriage dissolution (3) determine whether all the means of proof are admissible in proving the fault of the spouse (4) determine, on the basis of the case law, in which cases the court finds that one of the spouses is at fault, and in which cases the fault of both is accepted.

Methods used in the research: descriptive, systematic, literature and case law analysis methods.

Matrimonial duties

Ancient Rome gave rise to a contractual theory of the interpretation of marriage that continues to this day. Under Roman law, marriage is a contract between a man and a woman. It required the consent of both parties, as well as other formal and substantive conditions (Girard, 1931).

An agreement between parties to create a legal relationship is a transaction in civil law, and a transaction which requires the intention of two persons to enter it is called a contract (Article 6.154 Civil Code of the Republic of Lithuania), which must comply with the material conditions of conclusion and must be registered in accordance with the procedure established by laws. In modern law, marriage, as a civil law institution, is a voluntary agreement between a man and a woman to establish a family relationship (Article 3.7 the Civil Code of the Republic of Lithuania), which gives rise to certain legal relations. Thus, when the parties conclude a marriage, a legal fact is created that produces certain legal effects for the spouses. Under this

legal relationship, the parties undertake to each other to fulfil the obligations assumed and the legal consequences arising.

Article 3.26(1) of the Civil Code stipulates that person who conclude marriage acquire the rights and obligations set out in the Civil Code. The obligations of a spouse are set out in Civil Code, Articles 3.26, 3.27, 3.28, 3.29, 3.30; 3.35, 3.36, 3.85, 3.92, 3.10. Such duties include loyalty, mutual assistance, moral and material support, full care of the children and the family, and the other obligations of spouses under the law. The legal framework defines the rights and obligations between spouses, as well as some of their personal non-property rights and obligations. Article 3.26(2) of the Civil Code stipulates that spouse have equal rights and equal civil responsibility towards each other and towards their children in matters relating to the celebration, duration and dissolution of marriage. Equality enshrines the prohibition of discrimination, so one spouse has no more rights or obligations than the other spouse. Both spouses are responsible for the family home, living conditions, the upbringing of the children, their maintenance and everything else that concerns the family’s interests and well-being. Equal treatment requires both spouses to contribute to the fulfilment of family obligations to the best of their abilities and obliges the spouses to settle all common property and non-property matters by mutual consent. In order to ensure that family relations are based on mutual trust, love, respect and care between family members, the legal framework establishes the spouses’ duties towards each other. In accordance with Article 3.27 (1), the spouses must be loyal to each other and respect each other, as well as support each other morally and materially and, taking into account the possibilities of each of them, contribute to the satisfaction of the general needs of the family or the other spouse (Article 3.27). The obligations of spouses are not only moral but also legal. All the obligations laid down in the law are interrelated, therefore, a breach of one obligation also results in a breach of another obligation. Failure to fulfil or violation of the obligations laid down in the Civil Code may, in principle, constitutes the grounds for dissolution of the marriage through the fault of the spouse, and may be a circumstance which may confirm the fault of the spouse for the dissolution of the marriage by proving that it was caused by the fault.

Institute of marriage dissolution through the fault of the spouse

Since marriage is a form of contract, the legal liability of the person at fault for non-performance or improper performance of this contract can be enforced through the institution of marriage dissolution through the fault of the spouse. The behaviour of the spouses is of legal significance for the court when deciding on the legal consequences of marriage dissolution. Differences in the treatment of spousal fault lead to different legal regimes in different countries. Not every country allows no-fault marriage dissolution, but most of them open such marriage dissolutions to the public. Although marriage dissolution laws vary from jurisdiction to jurisdiction, there are two main types of marriage dissolution: based on fault, and without fault. Under the no-fault marriage dissolution system, marriage dissolution does not require any suspicion or proof of fault on the part of either party. Enough statements. For example, in countries where only “irretrievable breakdown” is required, the mere assertion that a marriage has broken down will satisfy a court. However, fault-based marriage dissolution systems require one party to prove that the other party committed an act incompatible with the marriage. These are called “grounds” for marriage dissolution (popularly known as “fault”) and are the only or one of the ways to marriage dissolution under the fault-based system (Divorce Boundless Sociology..., 2021). The most common reasons for marriage dissolution through the fault of the spouse are infidelity, cruelty, negligence, mental illness and a criminal conviction. However, in some countries, additional reasons have been identified, e.g. drug or alcohol abuse, impotence, religious motives or communicable diseases etc. The application of the principle of fault in family law has a strong preventive and educational role.

The provisions of Section 4 of Book III of the Civil Code of the Republic of Lithuania lay down the conditions and procedure for marriage dissolution through the fault of the spouse. Article 3.60(1) of the CC provides that a spouse may request the dissolution of a marriage on the grounds set out in Article 3.60(1) of the CC only if the marriage was dissolved through the fault of the other spouse. The second paragraph of this Article provides that a spouse is guilty of the dissolution of the marriage if he or she has seriously breached his or her obligations as a spouse and, as a result, cohabitation is impossible (Article 3.60 of the Civil Code of the Republic of Lithuania). As mentioned earlier, the essential obligations between spouses are enshrined

in the norms of the Civil Code. Article 3.27 of the CC provides that the spouses must be loyal to each other and respect each other, as well as support each other morally and materially and, taking into account the possibilities of each of them, contribute to the satisfaction of the general needs of the family or the other spouse, and Article 3.30 of the CC lays down the spouses’ duties to support and bring up their minor children (Case of Supreme Court of Lithuania of 10 April 2015 in civil case No 3K-3-225-686/2015). According to established case law, a fundamental breach of spousal obligations is defined as conduct by a spouse that is unacceptable from the point of view of law and morality. It is not considered to be the fault of the spouse if the spouse is prevented from fulfilling his marital duties for objective reasons (illness or other circumstances beyond his control). Article 3.60(3) of the CC lists the legal presumptions when it is recognised that the marriage broke down through the fault of the spouse. A marriage shall be presumed to have broken down through the fault of the other spouse where he or she has been convicted of a pre-meditated crime or has committed adultery or is violent toward the other spouse or the other members of the family or has deserted the family and has not been caring for it for over a year (Article 3.60 of the Civil Code of the Republic of Lithuania). The established cases of presumption are intended to alleviate the burden of proof of the party through the fault of the other spouse. Although Article 3.60(3) of the Civil Code presumes that a spouse is at fault for the dissolution of the marriage, the burden of proving the fact related to the presumption of the fault of the other spouse has been placed on the claimant (civil case No 3K-3-2/2011). The legislator has thus distinguished between two types of fault: presumption of fault of the spouse, where the spouse is found guilty of the marriage dissolution merely on the basis of circumstances defined by law, and no presumption of fault of the spouse, where the proceedings before the court must establish a fundamental breach of conjugal obligations which has rendered cohabitation impossible. Article 3.61 of the Civil Code of the Republic of Lithuania provides that the respondent in a divorce suit may argue against his or her fault and adduce facts to prove that the other spouse is at fault for the breakdown of the marriage. Depending on the circumstances of the case, the court may find that the marriage was dissolved through the fault of one spouse or even through the fault of both spouses.

The Supreme Court of Lithuania has clarified that the dissolution of a marriage may also be caused by the improper performance of duties by

both spouses, such as irresponsible attitude towards the family, disrespect for each other or unwillingness to try to preserve the family, negative attitude towards each other, lack of common interest in the family’s well-being, and persistent conflicts between them. If the court finds such circumstances, it may be justified in finding that both spouses are to blame for the breakdown of the marriage (Civil case No 3K-3-398/2013). Once it has been established that the marriage was dissolved through the fault of both spouses, the fact that one of the spouses may have been more to blame for the dissolution of the marriage than the other does not affect the conclusion as to the existence of the fault of both spouses (Civil case No 3K-399-969/2016). In such cases, the court simply finds that the marriage was dissolved through the fault of both spouses.

The Supreme Court of Lithuania has repeatedly noted that, although Article 3.60(3) of the CC does presume that a spouse is at fault for the dissolution of the marriage, in such cases one spouse has the burden of proving the fact to which the presumption of the other spouse’s fault is related. In the event that the spouse, through whose fault the other spouse proves the factual circumstances to which the law relates the presumption of guilt, provides evidence and indicates the factual circumstances that the marriage did not actually break down for these reasons (with which the law relates the presumption of guilt of the dissolution of the marriage), then the first spouse shall also bear the burden of proving that the marriage broke down precisely for these reasons. In determining the causes which led to the dissolution of the marriage, the court must take into account the relationship between the spouses prior to the actual dissolution of the marriage and the conduct of each spouse in preserving the marriage after the deterioration of the relationship, as well as any other relevant objective and subjective circumstances (Civil case No 3K-3-2/2011). According to case-law, the moment of the actual dissolution of the marriage is relevant to the issue of fault for the dissolution of the marriage, (Civil case No 2A2121-467/2015) since only those circumstances which existed before the actual dissolution of the marriage are legally relevant, and those circumstances which arose after the actual dissolution are of no legal relevance (Civil case E2-1154-930/2018)..

The Supreme Court of Lithuania has formulated the case law that a marriage on the grounds of fault of one of the spouses may be dissolved only if

one of the acts of the spouse presumed by law to be at fault is proved, or if a fundamental failure to perform one’s duties is established. For example, when one spouse abuses alcohol, does not contribute to the maintenance of the family, does not work without justifiable reasons (civil case No e3K-3191-378/2020) or when one spouse focuses on entertainment and gambling, does not contribute to the maintenance of the family, and is absent from work without justifiable reasons (Civil Case No e3K-3-480-378/2017) this may be a ground for finding that the spouse in question is not fulfilling his spousal obligations in a proper manner and is in material breach of them. However, the relationship between spouses is based primarily on personal relationships: loyalty and respect, warm feelings for each other (Article 3.27 CC), therefore, in cases where no presumed guilty conduct of the spouse has been established, the case must be assessed what was the mutual relationship of the spouses during their marital life, what was their agreement on mutual duties and rights, whether this agreement was not completely contrary to good morals and law, for what reasons one of the spouses began to abuse his position and not to perform his duties as a spouse or to perform them improperly, what actions were taken by the other spouse, whether the spouses or one of them made efforts to preserve the marriage and how the final decision to terminate it was taken. Marriage dissolution on grounds of fault of one of the spouses is a sufficiently severe form of liability, which is therefore only applicable if the conditions for its application have been properly established: the fault of the spouse for the acts or omissions and their causal link to the harmful consequences of the marriage dissolution. However, it is inherent in interpersonal relationships that the behaviour of one person tends to lead to the behaviour of another. Therefore, when one spouse behaves inappropriately, the timely identification and resolution of problems in the marriage depends to a large extent on the other spouse, in particular on his or her intolerance of such behaviour and the reasons for it. However, if the spouses do not notice and resolve the problems arising in the marriage in a timely manner, the relationship between them may be broken, but not through the fault of one of the spouses, but through the inability of both of them to find a solution, even in amicable marriage dissolution. Thus, the circumstances established in a case of this nature may give rise to a finding that both spouses were at fault for the breakdown of the marriage.

Evidence for marriage dissolution

Marriage dissolution through the fault of the spouse is often very difficult for spouses to endure, as proving the fault of the other spouse instigates their conflicts for the duration of the proceedings, and sometimes longer. In many cases, it is not enough to bring an action against the other spouse to prove that the spouse is at fault, as the latter usually disputes the facts on which the action is based. It is therefore very important to provide the court with evidence to support the claim. The outcome of the proceedings in most cases depends on the party’s ability to prove the existence or absence of the fact.

In order to better ensure the protection of the rights of persons derived from the material legal relations of the family, Chapter XIX of the Code of Civil Procedure establishes the peculiarities of family proceedings. Article 376 (1) of the Code of Civil Procedure contains a provision that in family cases the court hearing the case is entitled on its own initiative to collect evidence, which the parties have not used if it thinks that this is essential in order to fairly decide the case. This provision allows the court to act on its own initiative and can be applied in exceptional cases. In this way, the court protects the interests of minor children, protects the interests of the most socially vulnerable members of the family and protects the public interest. The Supreme Court has held that where both spouses participate equally in the marriage dissolution proceedings and the consequences of the marriage dissolution, the principles of adversarial procedure and dispositive procedure apply, and no circumstances justifying an exception to these principles are found in the case which would justify the court acting in the interests of one of the spouses, the court has no legal basis in the proceedings to invoke the rights granted by Article 376 of the Code of Civil Procedure (Civil case No 3K-P-186/2010).

According to the provisions of Article 176 of the CPC of the Republic of Lithuania and the case law, the purpose of evidence is the court’s conviction, based on the examination and assessment of the evidence in the case, that certain circumstances related to the subject-matter of the dispute exist or do not exist. Pursuant to Articles 12 and 178 of the CPC of the Republic of Lithuania, the parties must prove the circumstances forming the basis of their claims and objections, unless they are based on the circumstances (facts) which require no proof (Article 182 of the CPC of the Republic of

Lithuania). Article 185 of the CPC of the Republic of Lithuania stipulates that the court must assess the evidence in a case according to their inner conviction, based on a comprehensive and objective analysis of circumstances which were argued during the process, and in accordance with the law. In the case law of the Supreme Court of Lithuania, the assessment of evidence is based on the so-called rule of probability, which is based on the principle of free assessment of evidence: the court confers more probative value on the evidence which presupposes the existence or absence of one or other fact and is capable of inferring the existence of certain circumstances where the totality of the evidence in the case suggests that the fact in question was more likely to have been present than to have been absent (Civil case No. 3K-3-257/2010; Civil case No 3K-3-13/2010; Civil case No 3K-3-464/2009). The regulation stipulates that in the event of marriage dissolution through the fault of the spouse (s), the means of proof of the parties must comply with the common evidentiary requirements. There are no rules in the CPC which allow the conclusion that illegally obtained information cannot be admitted as evidence. Article 177(1) of the CC provides that evidence in civil proceedings means any actual data serving as a basis for a court to state in the statutory procedure existence or non-existence of circumstances substantiating claims and replications of parties as well as other circumstances important for fair deciding on the case (Article 177 Civil Procedure Code of the Republic of Lithuania). This provision does not define, as in the concept of evidence, that the information must be lawfully obtained. It says more about the court’s treatment of evidence in proceedings, but not about the conditions for collecting and receiving evidence. Paragraph 2 of this Article lists the means of establishing the facts, i.e., explanations by the parties and third parties (directly or through representatives), witness statements, written evidence, material evidence, inspection reports, expert opinions, photographs, video and audio recordings taken without violating the law, and other means of proof. (Article 177 Civil Procedure Code of the Republic of Lithuania). This rule states that evidence may be adduced in accordance with the law. When proving the fault of a spouse, the breakdown of the marriage often confronts the constitutional right of a person to privacy. The Constitutional Court has made it clear in its doctrine that the protection of a person’s constitutional right to privacy is essential. The human right to privacy includes the inviolability of personal, family and home life, honour and

reputation, physical and mental integrity of the person, confidentiality of personal facts, the prohibition to publish confidential information received or collected, etc (Decisions of the Constitutional Court of 21 October 1999, 8 May 2000, 19 September 2002). It should be noted that this is a family case in which the fault of the spouses in the dissolution of the marriage is at issue, and the facts (evidence) in this case relate to the facts and data relating to the family life of the parties, to their conduct in the family (marriage) and to the breach of the obligations of a spouse, which are covered by the human right to privacy. In such cases, in order to protect the right to privacy, the law establishes an exception to the principle of publicity of court hearings as provided for in Article 9(1) and Article 379 of the CPC, thus in effect declaring that the right to privacy is not absolute and that in such cases, parties to the proceedings may rely on relevant data relating to the private life of a person in order to prove their claims and counterclaims. The Constitutional Court of the Republic of Lithuania, in its resolution of 8 May 2000, stated that the legal concept of private life is linked to the state of a person’s expectation of privacy, to the person’s legitimate expectation of private life. The boundaries of protection of a person’s private life end when his actions violate the interests protected by the law or otherwise illegally cause harm to individuals, society, and the state. The Supreme Court of Lithuania has clarified that the provision of Article 22 of the Constitution of the Republic of Lithuania that no one shall be subjected to unlawful and arbitrary interference in the personal life of a person, should not be understood as an absolute prohibition in some cases to limit the inviolability of a person’s private life; Whether the inviolability of private life will be infringed in a given case is determined by the nature of this personal non-pecuniary value and its compatibility with the rights and legitimate interests of other persons (Ruling of the Supreme Court of 20 November 2002 No 3K-3-1406/2002.). In practice, spouses often provide the court with data from private conversations on various communication portals – accounts, call records, phone and bank statements, screenshots of mobile phones or smart devices – to prove the other spouse’s guilt, which are often illegally obtained and intrude on the other person’s privacy. Article 1.5(1) of the Civil Code provides that in exercising their rights and performing their duties, the subjects of civil legal relations must act in accordance with the requirements of justice, reasonableness and fairness. Article 176(1) of the CPC provides that a fact may

be proved if the evidence adduced in the case establishes the court’s belief in the existence of that fact. The assessment of evidence under Article 185 of the CPC means that the probative value of any information relevant to the outcome of a dispute is to be determined by the court in the exercise of its own independent judgment. The Court of Cassation has repeatedly held that courts, when assessing the evidence presented by the parties, are guided by the rule of sufficiency of evidence, and that the conclusion as to the existence of a particular fact is based on the court’s own internal conviction, on a full and objective examination of all the relevant circumstances of the case (Case No. 3K-3-155/2010; Ruling of 10 May 2010, No 3K-3-206/2010). The court must assess not only the probative value of each piece of evidence, but also the totality of the evidence, and only from the totality of the evidence must it draw conclusions about the existence or non-existence of certain facts that are the subject of proof in a particular case (Case No 3K-3500/2010). The assessment of the probative value of each piece of evidence must determine its relevance to the subject-matter of the evidence, whether it is admissible and reliable, whether there are any indications of falsification, whether the burden of proof has been properly allocated, whether the presumptions laid down by law have been rebutted, and whether there are any presumptive facts (Case No 3K-3-177/2011). In a number of cases, the courts have pointed out that the court must assess the evidence in the light of its own judgment so as to achieve justice in the case. It follows that, in order to establish the truth in a case, the court must take into account that the right to privacy is not absolute and that the parties to the proceedings may rely on the relevant evidence of a person’s private life in order to prove their claims and defences, taking into account the admissibility and reliability of the evidence, as well as the absence of any evidence of fabrication. Therefore, the fact that evidence was obtained in violation of a person’s right to privacy is not a ground for the court to exclude the evidence as inadmissible.

Conclusions

1. As marriage is a peculiar form of contract, so legal liability of the guilty person for its non-performance or improper performance may be implemented through the institute of marriage dissolution through the fault of the spouse.

2. A fundamental breach of spousal duties is defined as conduct by a spouse that is unacceptable in terms of law and morality. 3. It is not considered to be the fault of the spouse if, for objective reasons, the spouse is unable to fulfil his marital obligations. 4. According to case-law, the moment of the actual dissolution of the marriage is relevant to the issue of fault for the dissolution of the marriage, since only those circumstances which existed before the actual dissolution of the marriage are legally relevant, and those circumstances which arose after the actual dissolution are of no legal relevance. 5. The breakdown of a marriage can be caused by the misbehaviour of both spouses, and who is more at fault is of no legal significance. The court simply finds both spouses at fault. 6. Both spouses can be found to be at fault if it is established that the conduct of one person causes the conduct of the other 7. Marriage dissolution on the grounds of fault of one of the spouses can only be granted if one of the statutory presumed acts of fault of the spouse is proved or if a fundamental breach of duty is established. 8. The parties to the proceedings may rely on relevant data concerning a person’s private life in support of their claims and counterclaims. 9. In family cases, the law introduces an exception to the principle of publicity in court hearings to protect the right to privacy 10. The fact that evidence was obtained in violation of a person’s right to privacy shall not be grounds for the court not to accept such evidence as inadmissible.

Bibliography

1. Divorce Boundless Sociology (lumenlearning.com), retrieved 2021-02-05. 2. GIRARD, P.F. Roman Law. Vol.1. Translated by A. Tamošaitis. Publication of the Faculty of Law of Vytautas Magnus University. 3. https://it.qaz.wiki/wiki/Grounds_for_divorce_(United_States) see 2021-02-01. 4. Ruling of the Supreme Court of 20 November 2002 No 3K-3-1406/2002. 5. Civil Code of the Republic of Lithuania. Official Gazette. 2000, No. VIII-1864. New version, TAR, 31-12-2021, No. 82-0. 6. Code of Civil Procedure of the Republic of Lithuania. Official Gazette. 2002, No. IX-743.

New version, TAR, 31-12-2021, No.42-0. 7. Ruling of the Supreme Court of Lithuania of 10 April 2015 in civil case No 3K-3-225686/2015. 8. Ruling of the Panel of Judges of the Civil Cases Division of the Supreme Court of Lithuania of 25 January 2011 in civil case No 3K-3-2/2011.

9. Ruling of the Supreme Court of Lithuania of 16 July 2013 in civil case No 3K-3-398/2013. 10. Ruling of the Supreme Court of Lithuania of 19 February 2016 in civil case No 3K-3-99969/2016. 11. Ruling of the Supreme Court of Lithuania of 25 January 2011 in civil case No 3K-32/2011; Order of 19 February 2016 in civil case No 3K-3-99-969/2016. 12. Ruling of the Supreme Court of Lithuania of 12 June 2020 in civil case No e3K-3-191378/2020. 13. Ruling of the Supreme Court of Lithuania of 28 December 2017 in civil case No e3K-3480-378/2017. 14. Ruling of the Supreme Court of Lithuania of 10 December 2014 in civil case No 3K-3505/2014. 15. Resolution of the Plenary Session of the Civil Cases Division of the Supreme Court of

Lithuania of 20 May 2010 in civil case No 3K-P-186/2010. 16. Ruling of the Supreme Court of Lithuania of 7 June 2010 in civil case No 3K-3-257/2010,

Ruling of 22 January 2010 in civil case No 3K-3-13/2010, Ruling of 2 November 2009 in civil case No 3K-3-464/2009. 17. Decisions of the Constitutional Court of 21 October 1999, 8 May 2000, 19 September 2002, 23 October 2002. 18. Vilnius Regional Court, Civil Cases Division, ruling of 5 June 2015 in civil case No 2A2121-467/2015. 19. Vilnius City District Court Decision No BYLA E2-1154-930/2018.

THE PENSION FOR IMBALANCE BETWEEN THE SPOUSES DERIVED FROM THE MARITAL CRISIS IN THE SPANISH LEGAL SYSTEM OF SEPARATION AND DIVORCE

Ángel Acedo Penco

Extremadura University, Spain

Annotation

The so-called compensatory pension or imbalance pension, which is set, when appropriate, in the separation or divorce sentence, is intended to “not provide for the needs of the spouse, but to reasonably compensate the imbalance that the separation or divorce produces in one of the spouses”. and thus, it has been said that the essential presupposition for the right to obtain the pension to be born lies in “the inequality that results from the confrontation between the economic conditions that each one enjoyed before and after the break”.

Keywords: Marriage, divorce, pension.

Introduction

The compensatory pension, or due to imbalance of one of the spouses, is a definitive measure, which cannot be adopted neither with the most provisional measures, nor among the provisional measures, but can only be decreed in the separation and divorce sentence (never of nullity) when appropriate, either in the contentious judicial process or by mutual agreement, either before the lawyer of the Administration of Justice or in the notarial deed (Penco, 2021).

Although it is cited in art. 90.1.f) CC, which includes it among the possible agreements (Código civil español, 1889) of the regulatory agreement by the spouses, due to its importance, articles 97 to 101 CC develop their own legal regime (Domingo, et. al, 2005).

Legislative antecedents of comparative law have been pointed out on the Spanish regulation of the compensatory pension in France, in articles 270 to 281 of its Civil Code where it contains an extensive and very detailed regulation of the compensatory benefit and in the assegno per divorcio of Italy contained in article 5 of its Law of December 1st, 1970, no. 898, of Dis-

ciplina del casi di sciogliamento del matrimonio (Code civil francés, 2005).

The art. 97 CC, in its current wording, establishes a legal concept of compensatory pension: “the spouse whose separation or divorce produces an economic imbalance in relation to the position of the other, which implies a worsening of their previous situation in the marriage, will be entitled to compensation that may consist of a temporary or indefinite pension, or a one-time benefit, as determined in the regulatory agreement or in the sentence” (Legge 1, 1970).

This figure has an eminently restorative purpose and nature as a consequence of the new socio-economic situation of imbalance that can occur between the spouses after the marriage breakdown, leaving one of them in a significantly more precarious and fragile position, economically, than the one who enjoyed constant marriage, before the crisis (Lasarte, 2018).

The recognition of the compensatory pension must be recorded in 1) the judge’s sentence; or 2) the regulatory agreement formalized before: a) the attorney of the Administration of Justice - decree -; b) the notary-deed.

Research object. The legal regulation of pension for imbalance.

The aim of the article is to analyze the legal regulation of pension for imbalance between the spouses derived from the marital crisis in the Spanish legal system of separation and divorce.

Results

Factors for the fixation and structure of compensatory pension.

The determination of the amount of the compensatory pension, that is, of its economic amount, must be contained and specified in the judgment or in the duly formalized regulatory agreement, it can be done in three different ways:

A. A periodic indefinite or life pension, which is usually fixed for months and that one spouse of the other will receive if there are no certain circumstances provided for its extinction in the law or, in its declaration.

B. A temporary periodic pension, also generally monthly, for a predetermined number of years.

C. A single benefit or payment, at one time, at a lump sum, such as a global amount of money, securities on the stock market, company shares, movable or immovable property, all specified with precision.

The Civil Code does not detail the first two modalities, citing only the

last one, referring to: «the constitution of a life annuity, the usufruct of certain assets or the delivery of capital in assets or in money” (Ley, 1/2000).

Judicial practice and its ratification by the minor jurisprudence of the Provincial Courts, as well as the most recent one of the Supreme Court, have enshrined those systems for fixing the compensatory pension (Sentencia de la Sala Primera, de lo Civil, 2005).

Also, the doctrine reminds us, its determination can be reached, in addition to the aforementioned lump sum, through a percentage.

For the specific setting of the compensatory pension, article 97 CC states that, «in the absence of an agreement by the spouses, the judge, in a ruling, will determine its amount taking into account the following circumstances»: 1º. The agreements freely reached by the spouses. 2º. The age and health status of the spouse who is to receive it. 3º. The professional qualification and the probability of access to a job. 4º. Past and future dedication to the family of the receiving spouse. 5º. Collaboration with their work in the commercial, industrial, or professional activities of the spouse who has the duty to satisfy it. 6º. The duration of the marriage and the conjugal coexistence. 7º. The eventual loss of a pension right due to another circumstance. 8º. The wealth and financial means and the needs of each husband. 9º. Any other relevant circumstance along the lines of the above.

For some doctrinal sector, circumstance 8, on the wealth and economic means of the spouses, «is one of those that should have the greatest influence in setting the amount of the pension, and even, the existence or not of the right to the same, to be based on the economic imbalance between the spouses verified by the observance of the goods of one and the other».

But this is not usually the criterion of the Supreme Court since it affirms that the origin or not of the compensatory pension has nothing to do with the assets at the time of liquidation of the community property.

Although the Supreme Court frequently decides on this issue, due to the logical conflict that the application of the figure generates, the minor jurisprudence has elaborated a rich casuistry on the part of the Provincial Courts very useful to guide the interpreter when determining compensatory pension, agree or deny it, given the very wide margin that the Civil Code grants the judge in this matter.

As the doctrine highlights the regime contained in art. 97 CC is structured in three distinct parts: 1º) The basic requirement of the right to compensatory pension is the economic imbalance that, in relation to the position of the other, can cause a spouse to separate or divorce, implying in turn a worsening of the situation they previously enjoyed. 2º) It will be the lack of agreement between the spouses that allows the judge to apply the detailed criteria in a series of foreseen legal circumstances, although not closed, to determine the amount of the pension. 3º) The bases for updating the pension and the guarantees must be specified to make it effective in each case according to the concurrent circumstances.

All this without prejudice to the possible temporary nature, and not for life, of the compensatory pension, or once, that although it has been legally established, the Courts have already been making use of that possibility.

Action aspects: materials and procedures.

Despite the important burden of family public order that presides over the regulation of matrimonial law and its crises, the judge is not allowed to declare ex officio, however evident it may seem, the need for one of the spouses to receive the compensatory pension if previously, it has not been requested by the affected spouse.

It is not a simple formality, but it is very important in its procedural aspect, since due to the general principle of requested justice that prevails in the civil process, the neglect or abandonment by the spouse’s lawyer at the appropriate time can cause it to decline Your right.

In the processes of mutual agreement, the regulatory agreement that must include in its text, when appropriate, the agreement reached by the spouses on the compensatory pension, as provided for in article 90.1 f) CC, must be established with clarify its amount.

In litigation terms, processed according to article 770 LEC, where there is no prior agreement between the parties, and therefore, no regulatory agreement is attached by the plaintiff, he must include his request for recognition of the right to compensatory pension in the proposal of definitive measures of the affected party to be attached to the claim.

The defendant spouse, in these processes without an agreement, may request the recognition of the compensatory pension only if he formulates a counterclaim, which “will be proposed with the answer to the claim” since “the counterclaim will only be admitted when the defendant spouse intends to adopt measures definitive, which had not been requested in the claim, and on which the court should not rule ex officio” (Ley 8/2021).

Outside of these moments, after the processing of the initial guiding documents of the marriage process of the parties, the compensatory pension may no longer be requested, completely declining the possibility of requesting it (SSTS 377/2016; 2008; 2005).

However, if previously there was a judicial separation process with a final judgment where there was no ruling on the matter because this pension had not been requested, nothing prevents you from requesting, at the opportune moment mentioned above, in the divorce judicial process.

And the same could be said of the legal separation by mutual agreement before the lawyer of the Administration of Justice or the notary, so that, if the decree or deed of separation is not included, it could be requested in a subsequent divorce decree.

Contrary to what is commonly thought, as has been seen in the previous sections, to decree the origin or not of the compensatory pension, as well as to fix its amount, the legislator has chosen not to consider guilt (if is that one could speak in such terms) of the spouse who causes the crisis.

The complete abandonment of the culpability system was already introduced, as is known, with the great reform of matrimonial law carried out in Spain through Law 30/1981, of July 7th , which reworded the articles of the Civil Code on the matter, after the Constitution of 1978.

Conclusions

In addition, the complete disappearance of the causes in which a spouse had to be involved so that the other could request divorce or separation, by Law 15/2005, of July 8th, reinforces, even more, if possible, the irrelevance of fault in relation to the compensatory pension and any other patrimonial aspects of the marital breakdown.

Now the legislator is completely objective in setting the «economic imbalance in relation to the position of the other» as a basic requirement to agree to the compensatory pension and the circumstances that must be

taken into account to fix its amount, among which it does not fit, in a way some, the fault of the crisis, or the breach of conjugal duties by one.

From the procedural point of view, the eradication of the causes of divorce and separation supposes, de facto, that these possible marital breaches cannot be submitted to evidence, for patrimonial purposes, and the judge must reject outright any attempt in this regard in the process, as such Circumstance must not influence the object of the same.

Bibliography

1. Penco, A., Ángel, Derecho de familia, 4ª edición, editorial Dykinson, Madrid, 2021. 2. Domingo, R., Nunes, I., (2005). Código civil francés, Code civil, edición bilingüe, editorial Marcial Pons, Madrid, 2005. 3. Lasarte, C., (2018). Derecho de familia, 17ª edición, Madrid, 2018. 4. Código civil español (CC), aprobado por Real Decreto de 24 de julio de 1889. 5. Ley, 1/2000, de 7 de enero, de Enjuiciamiento Civil (LEC). 6. Code civil francés, en su redacción por la Ley nº 2004-439 de 26 de mayo de 2004 (Diario Oficial de 27 de mayo de 2004) con entrada en vigor el 1 de enero de 2005). 7. Legge 1 dicembre 1970, número 898, Disciplina dei casi di sciogliamento del matrimonio (publicada en la Gazzetta Ufficiale de Italia número 306 del 3 de diciembre de 1970). 8. Ley 8/2021, de 2 de junio, por la que se reforma la legislación civil y procesal para el apoyo a las personas con discapacidad en el ejercicio de su capacidad jurídica. 9. Jurisprudence. 10. Sentencia de la Sala Primera, de lo Civil (STS), número 307/2005, de 28 de abril. 11. SSTS 377/2016, de 3 junio; 345/2016 de 24 mayo; 323/2016 de 18 mayo; 304/2016 de 11 mayo. 12. STS de 10 de febrero de 2005. 13. STS de 5 de noviembre de 2008, FJ 2º.

PARENTAL AUTHORITY: DISTINCTION BETWEEN DEPRIVATION AND EXCLUSIVE EXERCISE BY ONE OF THE PARENTS

Cristina Cintora Egea

University of Extremadura (Spain)

Annotation

The present work deals with the distinction between parental authority and the exclusive exercise of it in favor of one of the parents. Both parents are figures that directly affect the institution of the homeland, but they are not identical and are not used in the same cases and circumstances.

Keywords: Parental authority, deprivation, exclusive exercise.

Introduction

The breakdown of family coexistence, whether married or not, is a problem of great social significance that has an enormous impact on the world of law. It is in these circumstances when the judge is required to adopt a series of measures that affect the more personal environment of parent-child relationships. It is a difficult task that judges and courts have entrusted in this regard, a task that they will carry out with the interest of the minor as the last motive and foundation.

It deals with the application of these measures to avoid that the different conflicts that may arise around the parents affect the daily life of the minors, preventing the decisions that must be taken regarding their personal, educational, emotional, economic, etc., are delayed thus causing damage of a different entity and that in many cases can become irreparable.

I consider that the welfare of the children is the greatest concern that one assumes from the moment we become parents and that the obligations that arise with filiation do not end after the failure of family coexistence, although it is in this scenario where Greater respect, sensitivity and harmony between parents is required, allowing them to reach the best possible understanding in order to continue jointly adopting the decisions that govern the lives of their children. For this reason, going to court, on many occasions, is nothing more than evidence of their failure, not having been able to put aside their differences, putting them before the interest of their children.

Results

There is no definition of the concept of parental authority in our legal system, and for this reason, the numerous doctrine that deals with the subject in question must be consulted. In this way, a correct definition of parental authority would be “the set of powers and rights granted to parents to be able to fulfill the duties and obligations that are incumbent upon them in relation to their minor or disabled children (Serrano Fernández, 2015).

The essential principles of parental authority are these that are mentioned: - The ownership and its exercise correspond a priori to the two parents, speaking in this case of a dual function. - It is subject to the benefit of the children, it must always seek the interest of the children, who may even be heard in those decisions that affect them directly. - It is subject to judicial control; the judicial bodies being obliged to pronounce themselves to respond to the right to request effective judicial protection of minors.

Parental authority is automatically determined in favor of the parents once the parentage is legally established. In this way, filiation being its foundation, it is indifferent if it is of a matrimonial nature or not or if it is by adoption, the ultimate purpose of which is to provide protection, care, education, assistance to the children, watching over them, showing their representation and managing their assets, as established in art. 3.1 of the Convention on the Rights of the Child adopted by the United Nations General Assembly on November 20, 1989, being incorporated into our Spanish Law after its ratification by Spain.

The protection of minors and the disabled constitutes a general principle in our Legal System. Thus, our Constitution proclaims in its article 39 “The public powers (…) will ensure the comprehensive protection of children; in addition, parents must provide assistance of all kinds to their children (…) during their minority and in other cases that legally proceed”. In this sense, the jurisprudence of the Supreme Court considers that the best interest of the minor must act as an inspiring principle of all decisions related to him in a way that binds the judges, the public powers, parents and citizens, with full recognition of the ownership of rights in minors and of a

progressive capacity to execute them, so that those measures that are more appropriate to the age of the person have to be adopted, to progressively build control over their personal situation and projection of future, always avoiding that the minor can be manipulated, seeking, on the contrary, their comprehensive training and their family and social integration so that the measures that the judges can adopt (art. 158 of the CC) are extended to all kinds of situations, even if they exceed the merely parental-affiliates, with the possibility that circumstances change and hearing the minor, as follows from Organic Law 1/1996 of January 15th, about Legal Protection of Minors. (Supreme Court Judgment September 17th, 1996 RJ1996 \ 6722).

With the underlying constitutional framework, Title VII of the Spanish Civil Code, entitled Parent-child relations, includes in its article 154: Nonemancipated children are under the parental authority of the parents. Parental authority, as parental responsibility, will always be exercised in the interests of the children, in accordance with their personality, and with respect for their rights, their physical and mental integrity. This function includes the following duties and powers: 1. Watch over them, have them in your company, feed them, educate them and provide them with comprehensive training. 2. Represent them and manage their assets. If the children are mature enough, they should always be heard before making decisions that affect them. The parents may, in the exercise of their function, seek the assistance of the authority.

Based on the legal text, ownership and joint exercise of parental authority is the general rule, thus parental authority is carried out jointly (Lacruz Berdejo, 2010), although there are cases in which a unilateral exercise will take place, included in the different sections of article 156 C, when: we are before the performance of one of them with the express or tacit consent of the other, understanding in the latter case, when there is no opposition from the other parent; Acts carried out by one of the parents according to social use and circumstances or in situations of urgent need are also valid (article 156.1 of the CC). When there is a conviction against a parent for attempting against the children, only the consent of the other parent will be required for them to receive the necessary psychological care and assistance (article 156.2 CC). When there are disagreements between the parents, the power to decide is judicially attributed to one of them (art. 156.3 CC) also by a temporary judicial decision “when the disagreements are repeated or for causes

that seriously interfere with the exercise of parental authority” (Pérez Álvarez, 2016). In the absence, disability or impossibility of one of the parents (art. 156.4 CC). In the cases in which the parents live separately where parental authority will be exercised by the one with whom the children live (paragraph 5). However, the fact of not exercising parental authority does not imply the loss of the right of minor children to interact with their parents (Pérez Álvarez, 2016), and this is not an absolute right either, since it is also possible to exclude them by court decision (art. 160.1 CC).

It is in the field of marital or couple crises where we find the most judicial decisions regarding the exercise of parental authority since it is very common within that environment to find parents who do not agree when adopting decisions that they concern their children, such as whether or not they receive the sacrament of communion. Article 159 of the CC establishes that it will be the judge who decides, for the benefit of the child, in the care of which parent the minor children will remain when the parents live apart and do not decide by mutual agreement. For the adoption of this decision, the judge must first hear the children who are sufficiently mature and, in any case, those who are older than twelve years (Lledó Yagüe, 2017).

On other occasions, it is the breach of the duties and obligations that the exercise of parental authority entails that may lead to the attribution of its exercise to only one of the parents or the deprivation of parental authority.

In this regard, article 170 of the Civil Code refers, which establishes that “The father or the mother may be totally or partially deprived of their power by judgment based on the breach of the duties inherent therein, issued in a criminal or matrimonial case. The Courts may, for the benefit and interest of the child, agree to recover parental authority when the cause that motivated the deprivation has ceased”.

It will therefore be necessary to attend to the type of non-compliance and its severity to agree on one or the other.

Thus, the jurisprudence of the Supreme Court has interpreted that, regarding deprivation, it must be subject to a restrictive interpretation, requiring that for its application in the specific case, it appears fully proven that the parent who is intended to be deprived of the power has breached the duties inherent to it. The Supreme Court ruling dated October 18th, 1996 says that the institution of parental authority is legally granted in compliance with the duties provided for in art. 154 of the Civil Code, but in view of

its meaning and significance, its deprivation, be it temporary or partial or total, inevitably requires the non-observance of those duties in a constant, serious and dangerous way for the beneficiary and recipient of the parental authority, this is the minor. (sentence of the Provincial Court of Álava No. 344/17 of July 17th issued in appeal No. 288/2017).

The deprivation of parental authority is thus a measure that judges and courts will have to assess with caution in each specific case. It is therefore a measure of an extraordinary nature that must have a place in one of the cases included in art. 170 of the Civil Code, so they should only be applied in exceptional circumstances and can only be justified if they are motivated by an imperative requirement related to the best interests of the child (Moreno Navarrete, 2016).

From this literal transcription of the precept we extract the requirements on which the deprivation of parental authority must be based, which are: the existence of a judicial resolution; its temporary nature and the possibility of partial (Zurita Martín 1997) and not total deprivation of parental authority.

For its part, there is no doubt that this serious, constant and dangerous breach of which the high court speaks may not only be about omissions or neglect in the exercise of its duties but also acts that violate the physical and moral integrity of minors, being in any case necessary that said acts be duly accredited for the applicability of art. 170 CC. Such behavior attributable to the parent carries the highest possible penalty, which is the deprivation of parental authority, which not only has personal effects, since the private parent will no longer be able, for example, to make decisions about the education of their children, but furthermore, said deprivation will entail economic effects such as, for example, the deprivation of inheritance rights.

But leaving aside the most serious cases that, as I say, lead to the deprivation of parental authority, other situations may arise that require the exclusive exercise of parental authority to be attributed to one of the parents, either temporarily, or until the circumstances that motivated said attribution to change.

In this sense, the exclusive attribution of the exercise of parental authority is a less invasive or drastic measure and perfectly applicable to cases in which the parent contemplates a disinterested attitude, neglecting their duties and obligations towards the children, or those in which the parents

are unable to reach an agreement. Cases in which this passive or neglectful behavior of one of the parents, can and in fact does, hinder the normal and daily development of the minor’s life, since the other parent cannot by itself make certain decisions that are framed within the sphere of parental authority such as the change of a school center, a trip abroad, the need for medical treatment, etc.

Thus, the parent whose ability to decide is limited may file the corresponding claim in a civil process for the modification of measures before the court that adopted the measure to be modified. It is significant that in most cases, in the same claim where the exclusive exercise of parental authority is requested, the suspension of the visitation regime is jointly requested. However, we must not forget that in any case the request that is made must always be in the interest of the minor and that without prejudice to the Court agreeing to what is requested, it is a measure that can be raised in a new process at the request of the interested parent, provided there is evidence of a significant change in their attitude and interest towards their child.

Finally, it should be noted that the fact that the deprivation or exclusive exercise of parental authority in favor of one of the parents, including the suspension of the visitation regime, is agreed, does not entail the suspension or extinction of the obligation to continue watching for the child and the obligation to pay the alimony that was agreed at the time.

Conclusions

1. Marital or relationship crisis situations do not exempt parents from their obligations to their children, which remain in force. 2. Parental authority and its exercise are generally attributed jointly to both parents, not assuming the marriage or couple crisis an event that alone can alter this circumstance. 3. Failure to comply with the duties and obligations of parents with respect to their children may lead to the deprivation of parental authority or the exclusive exercise of it to one of the parents by means of a judicial resolution. 4. The deprivation of parental authority and the attribution of exclusive exercise to one of the parents are two different figures, each distinguishing not only in the causes that motivate them but also in the consequences that they entail.

5. On numerous occasions, the deprivation of parental authority or the attribution of the exclusive exercise of it entails the suspension of the visitation regime of the children. 6. The deprivation of parental authority or the attribution of the exclusive exercise of it does not extinguish the obligation to watch over the children and to pay alimony, which remain intact.

Bibliography

1. Spanish Constitution, Official State Gazette, December 29, 1978, no. 311. 2. Convention on the Rights of the Child adopted by the United Nations General Assembly on November 20, 1989. 3. Lacruz Berdejo, JL, (et.al), Elements of Civil Law IV Family, Fourth edition, Dykson, Madrid, 2010, p 390-391. 4. Lledó Yagüe, F., (et.al), Family law: Notebook III: parental-child relationships, adoption and parental authority, 2nd edition, Dykinson, 2017, pp 99. 5. Moreno Navarrete, MA, The deprivation of parental authority or the disqualification for its exercise as a reductionist measure of the prison sentence in the framework of mediation. Anales de Derecho, Vol. 34, Nº34, Murcia, 2016, p. 8. 6. Pérez Álvarez, MA, «The protection of minors and the disabled in general. Parental authority », Civil Law Course, Martínez de Aguirre Aldaz (coord.), Volume IV, 5th edition,

Edisofer, Madrid, 2016, p 389. 7. Royal Decree of July 24, 1889, publishing the Civil Code, BOE, no. 206 of 07/25/1889. 8. Judgment of the Provincial Court of Álava no. 344/17 of July 17, appeal no. 288/2017. 9. Supreme Court Sentence September 17, 1996. RJ1996 \ 6722. 10. Serrano Fernández, M., «Parental authority and guardianship institutions», Family

Law, Pizarro Moreno et al, (coord.), Tirant lo Blanch, Valencia, 2015, p 190. 11. Zurita Martín, I., The deprivation of parental authority by sentence handed down in a criminal case, volume 3, THE LAW, Actualidad Civil, Nº 32, p 1.

REFLECTIONS ON THE RIGHT TO BE TAKEN CARE OF FROM THE FAMILY AND SUCCESSION PERSPECTIVE

Leonardo B. Pérez Gallardo, Anabel Puentes Gómez

Havana University (Cuba)

Annotation

The conception of the right to be taken care of as a vital right, seen from its two-fold dimension: the right to be taken cared for and the right to care for others, must have an effective acknowledgment from Private Law. Caregivers, as vulnerable people, need protection through the recognition of personal and property rights in the family and inheritance environment, without ignoring testamentary freedom in balance with the legitimacy-protecting systems. Inheritance-oriented incentives play a very important role in supporting this activity. Several studies show that family caregivers are those who assume a significant economic and psychological cost in the activity they perform, hence in Cuba, legislative reforms aim to develop the rights of caregivers and dependent people in a holistic manner taking into account the quality of life, well being, dignity and autonomy.

Key words: Care, inheritance, autonomy, free Will, inheritance-oriented incentives.

Introduction

Although dependency is not a new phenomenon as dependent people have always existed, the convergence of different factors, such as, among others, demographic aging, the increase of life expectancy and changes in the family structure, have brought about a phenomenon that requires urgent and adequate responses to be dealt with it from the political, technological, social, health, psychological, family and economic and of course also legal spheres.

Family care is nowadays a challenge for Civil Law, from its rights approach, which is associated with those care and aids providing activities and to third parties related to the family.

Article 3 of the Inter-American Convention on the Human Rights for the Elderly acknowledges “welfare and care” as a general principle linked to dignity and autonomy. Thus, considering the right to being taken care of

should be considered a principle and a universal right for every human being, for both: people who need to be taken care of care and those who care for others, that is, from the right to give and receive care. The task of caring constitutes a set of complex activities, paid or unpaid, that involve the wellbeing and rights of the caregiver. L. Pautassi defines it as a human right that states that everyone has the right to “care, to be cared for and to care for oneself (self-care)”, which not only situates and empowers each of its holders differently, but also dissociates the exercise of the right from the condition or position held. (Pautassi 2018).

This can be seen in activities that involve multidimensional support (patrimonial and emotional) to people with some situation of dependency, but also to every person, as a mortal in need of assistance. Thus, we are all subject to be taken care of at various times in our lives, but we can also be subject of self caring. It is, therefore, a polysemic concept that transposes the whole life of the person and covers the public and private sphere, hence the importance of being approached not only from the field of social assistance but also from the family and inheritance-related laws.

The protective analysis is placed with respect to family caregivers, who are also called informal caregivers, because unlike professional caregivers, who have majored in caregiving as their own profession, the former are engaged in caregiving for a circumstantial reason, without specialized knowledge of the subject and without any compensation whatsoever.

Proposals for the protection of family caregivers

It is pretty much debated that informal care accounts for about 75% of all assistance received by dependent elderly people in developed countries, the rest corresponding to long-term care formally provided by public and private agencies. (Carretero Gómez, S. et. al 2006) Research conducted in other fields outside the law shows that people prefer informal caregivers and only as a last resort do they turn to professional caregivers. It is the family caregivers - mostly women - who assume large economic as well as emotional and psychological costs for the activity they perform.

The opportunity costs of caregiving are often very high. According to Sloan, caregivers in the United Kingdom lose £11,000 per year, due to their family caregiving responsibilities, in addition to the health problems derived from it (Sloan, 2012). To this it must be added that caregiving practices

are also devalued and invisible at a social level, because they are supported in a private sphere, it is within the family framework where this work is mostly performed, and therefore assuming the status of informal caregiver implies the fact of not being paid, of not being economically remunerated, which makes their practices invisible as they are not considered as a job in the strict sense of the word. (L. Hidalgo Martinola et. al., 2016).

It is necessary to generate incentives that, in the patrimonial order, help achieve the necessary balance against the resulting imbalance against the person who has performed informal care of another, affectively linked in orders and degrees of parental propinquity, including of course the spouse or affective partner. Daughters, wives and sisters compete for the place of honor that, as it has been shown, because of their gender, are the “suitable” persons for the work of care and dedication for years to the attention of a very close relative who suffers from a chronic illness or who is in a situation of disability that prevents him/her from going on their own. This extreme has its counterpart in the case of those relatives or close relatives who have denied attention and care to the deceased of the succession and that nowadays implies the need to temper also the inheritance rules with new causes of inheritance exclusion.

These are people who suffer first-hand not only an economic or financial deficit, but also who are left in a situation of real emotional or psychic crisis, in addition to the organic imbalances, after a long period of social isolation, in which they have resigned, either in whole or in part, their productive capacities and their professional and even family life project. It also implies isolation with respect to loved ones such as one’s own children, or the rest of the children, because of their dedication in favor of the relative receiving such care.

In addition to the alternatives that may occur at other levels within the Law, such as the recourse to the exercise of an action of repetition or reimbursement, or the exercise of an action by reason of the unjust enrichment, even against the person being taken care of, during his or her lifetime, on this occasion we will focus our attention on the incentives that can be given from the inheritance law after the passing of the person receiving such services, because as the master Ciuro Caldani warns us, perhaps in the current inheritance there is a crisis of the valuation and even of the value of justice and love for the advancement of utility. (Ciuro Caldani, 2007)

As Gallanis and Gittler express, inheritance laws should encourage family members to provide care for the elderly and bring parents and relatives to a closer relationship. Some scholars, most recently Frances Foster - as referenced by the quoted authors - have adopted a behavioral approach to probate, inheritance linking rights to the beneficiary’s conduct toward the decedent during the decedent’s lifetime. Professor Foster criticizes U.S. succession laws, which also focus on classical models of families, without taking into account the complexity of today’s family relationships. (Gallanis and Gittler, 2012)

Some authors such as Oldham propose giving what she has called a “successor priority” to caregivers as a way to encourage family caregiving. She suggests that such a “priority” concept could be combined with equity release and a system of state-sponsored loans to provide a more instant incentive for an informal caregiver. Such measures - in her view - would encourage and support caregiving. However, she does not deny that her thesis could be objected to on the grounds of extreme pragmatism, on the grounds that care should be underpinned by affection rather than mercenary considerations.

Sloan truely expresses that while Oldham does not develop the details of his ‘successor priority’ proposal [...] the important point is that sometimes a private law solution to the problem of caregiver support may be necessary, even if state support is considered normatively desirable. Moreover, in some circumstances, an expectation of remuneration is reasonable, and the idea that a care recipient should meet that expectation might also be reasonable depending on available resources. (Sloan, 2012)

The first of the alternatives is the simplest, whereby the dependent could benefit his or her caregiver through the attribution of a bequest or an inherited share. It should be taken into account that by testamentary means the testator is free to dispose of what the law allows, that is, within the quota of free disposition, to benefit any person, including his or her caregivers. Of course, in this order it must be foreseen to save the legitimate or unavailable quotas, with respect to which the testator, by legal disposition, has to attribute them to the so-called forced heirs and that in Cuban Law has the condition of assistance legitimates, because the legitimate have their own responsibilities.

The greater the freedom to testate, the greater the possibility for the testators to dispose freely; however, nowadays there are not few legal systems

that impose measurements of containment to avoid undue influences of the caregivers on vulnerable testators, measurements that in most of the opportunities foresee to avoid such influences on the part of formal or professional caregivers.

According to Professor Tate, econometric studies, which have not yet been taken into account in legal research, suggest a tendency among older Americans to dispose of their property at death to the children who cared for them. A competent testator, rather than a court or the magistrate, is in the best position to decide how much care each person has provided and reward caregivers accordingly. Legal reform in this order in the United States - the professor continues - should therefore focus on strengthening testamentary freedom while ensuring that caregivers are adequately compensated in the event of intestate succession. (Tate, 2008).

Referring to informal, unpaid care based on family solidarity, Arroyo Amayuelas explains the German alternative which, starting with Section 2057 of the German Code (BGB), allowed descendants who had cared for the deceased for a long period of time to demand the collation of expenses from the other legal heirs. However, the demand for collation is exempted “...if adequate remuneration was granted or agreed upon for these benefits and also if for another legal cause the descendant has a claim by reason of his benefits” (Arroyo Amayuelas, 2017) Although it does not include those who base the assistance on a contract, it is an interesting alternative for legal succession in the protection of caregivers.

In the Latin American sphere, Cuba, in 2021, comes up with a Preliminary Draft of the Family Code that acknowledges, in the family and inheritance sphere, the rights of people who may be in a situation of dependency such as older adults and people with disabilities. In the first place, it states the rights of these people to be cared for, but at the same time the right to an autonomous and independent life, to choose the place of their residence, as well as the duties of the elderly towards their family (articles 417-446). It also points at the rights of family caregivers, indicating the scope of content of this type of care, which includes assuming personal care, assisting in education and social life, taking care of administrative procedures, mobility, permanent surveillance, psychological aid, communication, domestic activities or others of a similar nature that cannot be entrusted to one or more relatives.

The inclusion in a family regulation of the personal rights of family caregivers, such as autonomy, dignity, prohibition of violence, the need to receive training and information, knowledge of the medical diagnosis of the person being cared for, the right to take care of oneself, among other aspects related to well-being and quality of life, are very novel. Without forgetting patrimonial rights such as receiving reimbursement or restoration, in accordance with civil norms, for the expenses or expenditures that they assume with their own patrimony in the care of the family member. Likewise, the recognition of the alimony contract, as a welfare business that balances the rights of caregivers and cared-for persons based on autonomy, constitutes an alternative that enhances the rights of these vulnerable groups (Articles 371 and following).

Inheritance incentives are also included in the new draft bill in such a way that the Civil Code is modified in relation to intestate succession. So that if any of the heirs has served as family caregiver of the deceased and has participated in the economic order as all the necessary expenses for it, his quota in the inheritance is double that of the rest of the concurrent heirs. In the same way if the caregiver belongs to a later call she has the right to attend with the closest heirs and to receive also double the quota than the rest of the concurrent heirs. (eighteenth final provision)

Conclusions

All these alternatives from the family and inheritance law are a result of the treatment of the care-giving activity and the protection of people in situations of dependency from a perspective of human and fundamental rights. The manifold perspective of which it must reach all branches of the legal system, including those more reluctant to changing, such as inheritance law. For this reason, the following elements, among many others, must be taken into account: a) Encourage family care through higher inheritance awards in favor of the heir who cared for or supported the deceased of the succession. b) Penalize the posture of the heir who, in a position to take care of the deceased, did not do so, depriving him/her of his/her hereditary attribution or reducing its amount. c) To recognize the personal and patrimonial rights of the caregivers in relation to their activity.

d) Expanding the group of mechanisms that enable self-regulation and the possibility of forward planning for dependency situations

Any regulation that intends to protect this figure must not only be able to regulate how we want the protection of caregivers to be from now on, but must also be able to protect a group that has not had the opportunity to protect themselves and that has not even been made visible. Civil and Family Law has these challenges lying ahead

Bibliography

1. Carretero Gómez, S., et. al., (2006). La sobrecarga de las cuidadoras de personas dependientes: análisis y propuestas de intervención psicosocial: Madrid: Colección Políticas de Bienestar Social. 2. Borghi, C., et al. (2013).“Sobrecarga de familiares cuidadores de ancianos con la enfermedad de Alzheimer”. Revista Latinoamericana Enfermagem. no. 21. Internet access www.eerp.usp.br/rlae.. 3. Ciuro Caldani, M.A. (2007) “Aportes integrativistas al Derecho de sucesiones (La sucesión como hora de la verdad de la persona física)”. Investigación y docencia, No. 40, pp. 9-42, disponible en centrodefilosofia.org.ar. University of Cambridge: internet access, https:// ssrn.com/abstract=2192014, pp. 1-29. 4. De los Reyes, M.C. (2001). “Construyendo el concepto cuidador de ancianos”. IV Reunión de antropología do Mercosul, Foro de Investigación: envejecimiento de la población en el Mercosur., Curitiba. 5. Gallanis, T.P, J. Gittler. (2012) “Family Caregiving and the Law of Succession: A Proposal”, University of Michigan Journal of Law Reform. volume 45. internet access: repository.law.umich.edu/mjlr/vol45/iss4/2, pp. 761-786. 6. Hildago Martinola, D. R., et. al., (2016). “Relaciones interpersonales entre cuidadores informales y adultos mayores”. Novedades en población: La Habana: CEDEM, Universidad de La Habana, No. 24, pp. 77-83. 7. Alfonso León, A. (2015) “Un estudio piloto sobre los cuidadores de ancianos”,

Novedades de población, año XI. 8. Sloan, B. (2012). “Informal Carers and Private Law Introduction”, Paper, No. 20/12. 9. Pérez Gallardo, L. B., (2021), “Cuidadores familiares en la encrucijada de su posible protección sucesoria”, Diritto delle successione e della famiglia. Edizioni Scientifiche italiane. pp.311-337. VI, N.1. 10. tate, J.C., (2008). Caregiving and the Case for Testamentary Freedom. California: University of California: Davis. V. 42.

PART II: SUSTAINABLE DEVELOPMENT OF MANAGEMENT

1. LOGISTICS AND TRANSPORTATION

THE IMPORTANCE OF IMPROVING STORAGE PROCESSES AND PROBLEMATIC SITUATIONS

Kristina Ratautaitė, Dalia Perkumienė

Vytautas Magnus University (Lithuania)

Annotation

The topic analyzed in this paper is relevant because the warehouse is an important element of the company that affects the operation of the entire supply chain. The correct logistical organization of the warehouse processes ensures a competitive advantage for the entire company, as the warehouse is an important element and an integral part of the company. The warehouse logistics system is an integral part of any manufacturing facility. The storage of all types of goods is a part of the overall trade process. The storage subsystem is involved in the distribution of all material resources, transporting goods from producer to consumer, thus playing an important role in the national economy. The paper aims to reveal the importance of improving storage processes and to identify problematic situations.

Keywords: warehouse, storage, storage processes, logistical organization, transporting goods.

Introduction

Warehouse logistics is described as techniques, methods, and principles that involve managing flows in a warehouse network. An important task for warehouse logistics is to meet demand needs to the maximum, considering the resources available to the company (Gimelshtein, Godvan & Ikonnikof, 2021). On warehouse processes, researchers Kłodawski et al. (2017) say it is a set of actions involving the receipt, storage, collection, and shipment of goods. The implementation of warehouse processes depends on the main tasks of the warehouse, the structure and size of customer orders, storage location. The authors Negreeva & Skobeleva (2017) describe warehousing processes as a complex of interconnected sequential operations. The scientific literature highlights the importance of efficient warehouse process management, which is much talked about by Dede & Çengel (2020), Aleksandrova & Munshi (2020), Skuzovatova (2017), one of the most important logistics goals in warehousing processes is to ensure that the right product

is found. in the quantity required at the desired time and intact; effective management of warehousing processes is essential to ensure that all listed criteria are met, as transportation (Kim, 2021) and distribution processes are a continuation of warehousing processes, a small problem with warehousing processes affects the entire logistics service (Borca, B., Putz, L. M., and Hofbauer, F., 2021; Dede & Çengel, 2020); the use of the company’s warehouse warehouse management tools helps to achieve high profitability of the warehouse operations, as well as long-term competitive advantages of sales and development (Aleksandrova & Munshi, 2020); joint and coordinated work at all levels of management is needed to solve logistics problems and develop its capabilities (Skuzovatova, 2017).

Various researchers also highlight the essence of innovation, the implementation of technology in warehousing processes and its importance: the fact that scientific and technical progress in warehouse logistics and innovation achievements are very important in increasing the productivity of warehouse operations (Nekrasov, 2019); the fact that in the modern world, the trend of warehouse automation is an important and inevitable part of a company’s development (Gimelshtein, et al., 2021); the use of innovative solutions by companies significantly increases the level of development in both warehousing and other logistics solutions of the company (Skuzovatova, 2017); technology implementation is required for companies with intensive turnover processes (Zinchenko & Krasnoplachtova, 2017); technologies need to be introduced to increase the efficiency of the warehouse (Aleksandrova & Munshi, 2020).

Research object. Problematic situations related with the improving storage processes.

The aim of this paper is to analyze the importance of the improving storage processes and to identify problematic situations.

Results

The rise in prices was caused by the shortage of raw materials in the market, as the stocks of raw materials in the world in 2021 decreased. European, US big bag manufacturers associations have declared an emergency in the entire packaging sector. As such a huge increase in raw material prices and their shortage could not have been foreseen, it had a significant impact on the packaging industry. The company makes every effort to ensure that cus-

tomers do not experience supply disruptions, so it has changed its strategy: it has found suppliers in Ukraine and Turkey that produce similar products at an affordable price. The Company has calculated and estimated that in the current situation, resale is more financially beneficial.

Finished goods companies buy in large quantities to get a better price from their suppliers. Uninterrupted production is also purchased - raw materials are purchased. Full containers and tractors with raw materials and finished products arrive every week. The warehouse is large - 1500 m2, but there is a lack of storage space. Out of stock. Warehouse workers cannot find the required products in the warehouse at the right time. Employees are dissatisfied due to high workload; customers are dissatisfied due to late orders. Finished products stand outdoors because there is no free space in the warehouse to store them. There are cases when due to unfavorable weather conditions, the products get wet and wet enters the customer, claims are received.

It should be noted that warehousing activities in Lithuania are regulated by the Law on Licensed Warehouses and Warehousing Documents of the Republic of Lithuania (date of adoption 2002, consolidated ed. 2010). This law regulates the conditions of operation of warehouses, the rules of storage of goods, the acceptance of goods into the warehouse, issuance, issuance of storage documents, other rights, and obligations of holders of storage documents. To reveal the situation in the market, the number of companies providing warehousing services in 2011–2018 is analyzed (see Figure 1). Data for 2019 - 2021 are not provided by the Statistical Office of the European Union due to delayed data from EU countries.

It was found (see Figure 1) that the number of operating companies in the warehousing sector is constantly increasing: from 2011 to 2012. (3.4 percent), 2013 - 2014 (1.8 percent), 2014 - 2015 (3.1%), 2015 - 2016 (6.4%), but in 2016 - 2018. the rate of decline of this indicator was observed (3.4%). The largest increase in the number of companies operating in the warehousing sector is recorded in the middle of the analyzed period from 2014 to 2016, ie 11.3%. 1707 pcs. In summary, warehousing activities are relevant, in demand and, most importantly, relatively stable in the market. The number of companies providing warehousing services is growing every year, except for the year when the waves of the global crisis are also affecting the warehousing sector.

Figure 1. Number of warehousing companies in the European Union in 2012 – 2018 (Compiled using Eurostat data, 2021). * Eurostat does not provide data for 2019-2021.

Kłodawski et al. (2017) describe the warehousing process as a set of actions that involves receiving, storing, assembling, and shipping goods.

Figure 2. Warehousing process (compiled by the author using the internal documents of the analyzed company).

As the data in Figure 2 show, the storage process consists of eight stages. The first is storage planning. At this stage, the warehouse keeper plans storage locations. The second is the storage of products, considering the characteristics of the product, technical storage conditions and safety requirements. The third is the transfer of finished products to storage, filling in certain documents and integrating the information into the business management information system. Fourth - storage of finished products according to customer orders. Fifth - preparation of orders for unloading of products, where the warehouse keeper, in accordance with the order for production, assembles products for unloading according to quantities and types. Sixth - organization of delivery of finished products to the customer. At this stage, the logistics manager, after evaluating customer orders, organizes the delivery of products. In the seventh stage, the warehouse keeper organizes and controls the loading of products. And in the last eighth stage, the accounting of raw materials, materials and products is performed.

The analysis of the role of warehousing in the economy and markets, the analysis of the company’s warehousing processes, the analysis of documents related to the company’s revenue and other statistical indicators, the analysis of external world situations that affected the company’s operations revealed the following problems: 1. As the manufacturing sector grows, so does competition in the market. All this highlights the role of warehousing in the company’s operations, as the warehouse is an important element of the company that affects the operation of the entire supply chain (Bratt, et. al. 2021). 2. The COVID-19 pandemic and the resulting restrictions affect both production and logistics activities. Human illnesses lead to disruptions: a lack of timely and proper work, leading to gaps in the entire logistics chain, as well as warehousing processes. The company felt an obstacle to international trade: rising freight rates and lack of transport, delays in removing products from the company’s warehouse on time and delivering products to customers in accordance with the terms stipulated in the contracts. 3. Considering that the “Maintenance Program for Raw Materials, Materials and Finished Products” and “Identification and Traceability. Withholding and withdrawal from the market “are filled in manually in Microsoft Excel, with increased workload and staff shortages, and problems have arisen as a result of a lack of efficiency in performing work on time and quickly. The likelihood of human error has also increased. 4. Over the six-year period,

commercial sales rose by 84.6% and production fell by only -12.1%. Global increases in polypropylene (PP) and polyethylene (PE) raw material prices also had a significant impact in recent years. as a result, problems in warehousing processes began, as the number of products stored and the load on the warehouse work increased many times over. In summary, it can be stated that the warehouse programs and warehouse operation strategy of analyzed company are already inappropriate. Warehouse operations require new innovative solutions to ensure that warehousing processes run smoothly in the manufacturing plant, that the warehouse, as an element of the company and part of the supply chain, functions and performs its work with quality.

Conclusions

1. Warehousing plays an important role in the modern supply chain and in the company’s operations, as most authors of scientific articles confirm. The role of warehouses in modern logistics is becoming increasingly important due to the growing number of manufacturing companies, high customer needs and growing competition in Lithuanian and foreign markets. 2. It has been analyzed that the problems of warehousing logistics processes are related to the time of collection of warehouse orders, utilization of inefficient warehouse space, improper planning and utilization of warehouse capacity, use of inappropriate equipment. 3. The scientific literature presents various solutions to the problems of warehousing logistics processes, but the main ones are related to modern technologies and methods. 4. It has been established that the most suitable methods for warehousing logistics process improvement solutions in a manufacturing company are the ABC method, the Just-in-Time method, and the Lean method. As for the systems to solve complex company problems, these would be WMS warehouse management system, Pick by Voice system, MRP and ERP systems. RFID and Barcode technologies selected. And tools without which storage assistance is not possible: racks, rack loaders and other equipment.

Bibliography

1. Aleksandrova, L. Ju & Munshi, A. Ju., (2020). Actual problems of warehouse logistics and their solutions. Journal of the Russian University of Cooperation, 1(39). Access through internet: <https://cyberleninka.ru/article/n/aktualnye-problemy-logistiki-nasklade-i-ih-resheniya>; last visited 2021 05 25. 2. Borca, B., Putz, L. M., and Hofbauer, F. (2021). Crises and their effects on freight transport modes: A literature review and research framework. Sustainability, 13, (5740). https://doi.org/10.3390/ su13105740. 3. Bratt, C., Sroufe, R., Broman, G. (2021). Implementing Strategic sustainable supply chain management. Sustainability, 13, 8132. https://doi.org/10.3390/su13158132. 4. Dede, B. & Çengel, O., (2020). Efficient warehouse management analysis in logistics services. İstanbul Ticaret Üniversitesi Sosyal Bilimler Dergisi Yıl:19 Sayı:37 Bahar 2020/1 s.341-352. Access through internet:< https://dergipark.org.tr/en/download/articlefile/1123558>; last visited 2021 04 18. 5. Gimelshtein, E., Godvan, D. & Ikonnikof, N. (2021). Warehouse logistics: processes of integration of automation in modern warehouses. Journal of Business education in the knowledge economy, 1, UDK 658.78. Access through internet: <https://cyberleninka. ru/article/n/logistika-sklada-protsessy-vnedreniya-avtomatizatsii-v-sovremennyesklady>, last visited 2021 03 25. 6. Kim, K. (2021). Impacts of COVID-19 on transportation: Summary and synthesis of interdisciplinary research. Transportation research interdisciplinary perspectives, 9, 100305. https://doi.org/10.1016/j.trip.2021.100305. 7. Kłodawski, M., Jacyna,M., Lewczuk, K. & Wasiak, M., (2017). The Issues of Selection Warehouse Process Strategies. Proceedings of the International Scientific Conference, 187, 451457. 7p. Access through internet:< https://scholar.google.com/citations?view_op=view_ citation&hl=en&user=GE0vlY4AAAAJ&citation_for_view=GE0vlY4AAAAJ:isC4tDSrTZIC >; last visited 2021 05 25. 8. Negreeva, V. V., & Skobeleva, T. V. (2017). Research on improvement of warehouse activity of pharmaceutical firm. Scientific journal ITMO. Series Economics and Environmental Management, 3, UDK 658.786. Access through internet:< https://cyberleninka. ru/article/n/issledovanie-po-sovershenstvovaniyu-skladskoy-deyatelnosti-farmatsevticheskoy-firmy>, last visited 2021 09 15. 9. Nekrasov, K.V. (2019). Innovative methods of warehouse logistics at the enterprises of agro-industrial complex. Journal of Agricultural education and science, UDK 65.011.56.

Access through internet: https://cyberleninka.ru/article/n/innovatsionnye-metodyskladskoy-logistiki-na-predpriyatiyah-apk; last visited 2021 05 25. 10. Skuzovatova, N. V. (2017). Logistic aspects in the activities of trade enterprises. Journal of Intelligence Innovation Investments, 3, UDK 330.3. Access through internet: < https:// cyberleninka.ru/article/n/logisticheskie-aspekty-v-deyatelnosti-predpriyatiy-torgovli-orenburgskoy-oblasti>; last visited 2021 09 15. 11. Zinchenko, A. V., & Krasnoplachtova, L. I. (2017). Research of automation means of warehouse accounting for trading companies. International Journal of Natural and Humanitarian Research, 17 (3), Access through internet: https://cyberleninka.ru/article/n/ issledovanie-sredstv-avtomatizatsii-skladskogo-ucheta-dlya-torgovyh-kompaniy, last visited 2021 09 15.

POSSIBLE SOLUTIONS FOR THE IMPROVEMENT OF THE STORAGE PROCESSES

Vaiva Žimontienė, Dalia Perkumienė

Vytautas Magnus University (Lithuania)

Annotation

The realization (sales) function is a product movement system that ensures a consistent path of the product from the manufacturer to the consumer. The novelty of the work is determined by the fact that the company’s warehouse area usually remains the same, regardless of the constantly growing volume of cargo. This causes a variety of problems, such as long loading / unloading times for machines, downtime and order unloading delays, and disrupted work planning and the efficiency of the entire warehouse. The aim of the article is to analyze solutions for the improvement of storage processes.

Keywords: Transportation, movement of goods, warehousing operations, storage processes.

Introduction

Transportation, forwarding, loading, warehousing operations are the essence of the physical movement of goods. Mourtzis D., Samothrakis V., Zogopoulos V., Vlachou E. (2018) argue that warehouses are one of the most important components of an enterprise, playing a significant role in the entire system chain. The level of customer service, the timely entry of raw materials into production workshops, the level of warehouse costs, customer satisfaction with the execution of orders and the speed of the orders themselves depend on them. However, errors in the warehouse are unavoidable. One of the biggest problems is inaccurate stock information. Malinowka M., Rzeczycki A., Sowa M. (2018) points out that warehouse management and operational efficiency depend on a rapid search for goods, which sometimes becomes impossible - the search depends on the ability of warehouse employees to remember the locations of goods. Undefined responsibilities of warehouse employees, warehouses not properly prepared for operation, unused possibilities of IT tools have a negative impact on the efficiency of warehouse processes.

The ever-accelerating flow of information, the continuous process of globalization, and scientific progress determine the ever-changing conditions of the business environment and at the same time increase the risk of business enterprises and investment projects. In the 21st century, the service business is becoming one of the most important driving forces of the economy, and its influence in solving social and economic challenges determines the special attention to the search for opportunities to increase the efficiency of this business.

Research object. Warehousing processes in manufacturing companies.

The aim of the article is to analyze solutions for the improvement of storage processes.

Results

The service sector is more attractive to business than manufacturing because it requires less start-up capital, and many new service companies are now being set up in the world, not only in developed but also in developing countries. Companies that need to develop their services and implement new services efficiently need methods and models to justify their actions and decisions. N. Dujmešic, I. Bajor, T. Rožic (2018) point out that warehouse management and operational efficiency depend on a quick search for goods, which sometimes becomes impossible - the search depends on the ability of warehouse workers to remember the storage locations of goods in the warehouse. According to Ganesh K., Lenny Koh S.C., Saxena A., Rajesh R. (2011), unspecified warehousing staff responsibilities, unprepared warehouses, untapped opportunities for IT tools and innovation have a negative impact on the speed and quality of warehouse processes. New innovations and investments can be used to manage loading, unloading and warehousing processes.

Waters D., Rinsler S. (2014) points out that logistics is understood as the management of the three main flows involved in all links of the logistics process - material, financial flows and information. Properly managed flows ensure efficient stockpiling and timely unloading of cargo. Improving one of the three main flows can significantly improve the warehousing process.

Tamas P., Illes B. (2017) points out that the analysis of the warehousing process is one of the main steps to identify the problem areas of the warehousing process, the elimination of which can ensure continuous operation of the warehouse, constant circulation of stored goods, maximizing

warehouse space. The scheme of the warehousing process of manufacturing plants is presented in Figure 1. The problem is a question that cannot be answered at the moment. Finding solutions to problems is one of the most important steps in generating ideas. It is useful not only to see the current problems and solutions, but also to anticipate possible future problems. Integrating innovative solutions in the warehouse eliminates human error and reduces transaction time.

Ordering raw materials

Supply control

Acceptance of raw materials

Transportation of raw materials

Storage of raw materials

Transportation of raw materials

Production process

Transportation of finished product

Storage of finished product

Collection of orders

Order control

Delivery of orders to customers

Figure 1. Schematic of the warehousing process of manufacturing companies.

Numerous consistent activities that simultaneously create an efficient logistics system. Therefore, these activities need to be planned properly and in a timely manner. Therefore, it is important to pay attention to the factors that may affect the storage process and its operation of the manufacturing plant. The main factors that affect the storage systems of manufacturing companies are shown in Figure 2.

Shorter product renewal terms

Globalization of markets

MANUFACTURING COMPANY LOGISTICS SYSTEM Increasing competition

Adherence to the delivery schedule

Decrease in the share of the company

Recessionary trends in traditional markets

Constantly growing customer requirements

Rising costs

Figure 2. Factors influencing the storage processes of a manufacturing company.

Summarizing Figure 1. and Figure 2. the storage process consists of separate operations. The warehousing process consists of 13 main operations. Because they are interconnected and complementary, the improvement of one or more operations will affect the efficiency of the entire warehousing process. The Indian Institute of Materials Management (2020) points out that one of the most important and influential actions in storage processes is globalization. More and more companies are emerging that provide their services in international markets. This requires higher standards of quality and efficiency. The supply of goods on global markets requires a global structure and operating policies - global brands, centralization of stocks and information, globalization of production and outsourcing. This structure requires additional costs, the warehousing process becomes more complex, so process improvement becomes necessary to maintain the competitiveness of the company.

R. B. M. De Koster, A. L. Johnson, D. Roy (2017) state that warehouses are not only a storage place but also a center of added value. Identifying the problems of warehousing processes is important for the profitability of the company. Therefore, an understanding of their design and management principles plays a key role in improving operational efficiency, reducing staff turnover, and improving customer service levels.

Popovas V. (2013) emphasizes that the main problem areas of warehousing processes are lack of space, insufficient productivity, staff shortages, traceability problems and service level problems. Lack of space is caused by poor inventory and procurement management, insufficient integration between financial and warehouse management systems, no specific storage locations specified, too high inventory levels, revenue problems, unused ABC classification, inefficient warehouse layout, lack of physical space. Addressing the shortage of space in the warehouse requires reviewing and improving procurement procedures, integrating the warehouse into procurement planning, implementing innovative IT solutions, acquiring a new warehouse, optimizing balances and goods and order flows. The problem of insufficient warehouse speed can be caused by the human factor and the storage factor. Human factor errors include employee turnover, unskilled employees, lack of motivation, sub-optimal use of resources. Warehouse factor errors can be caused by overcrowded warehouses, inadequate equipment, inefficient use of resources, and unreasonable requirements. As the solutions to these problems Waters D., Rinsler S. (2014) point out, process automation, well-defined processes and optimal work organization in solving human factor problems and process optimization, selection and automation of appropriate storage equipment in solving storage factor problems. Another problem highlighted is the shortage of people due to the real market situation, lack of motivation, inefficient management of resources and mis delegated functions. Retaining existing staff through a variety of measures, importing staff, improving warehouse processes, and automating can help address the shortage of people. Traceability problems arise under strict requirements and inaccurate residues. Service level problems are due to the high level of service, the diversity of customers and their requirements, and special exceptions for customers. By applying a warehouse management system and optimal equipment in the warehouse, reviewing warehousing processes and reducing human error, these problems can be solved.

The Indian Institute of Materials Management (2020) states that there are four types of solutions that can be used to improve warehousing processes: organizational, technological, innovative, and complex basic. Complex basic solutions are usually focused on the improvement of the entire company‘s business processes. These include increasing and adapting the

warehouse‘s operational capacity, improving information and technical areas, reducing logistics costs, adapting the warehouse to changed products and markets, changing business strategy, ensuring the reliability of the logistics chain and optimizing processes. Organizational warehousing process improvement solutions can be applied JIT (Just in time) concept, MRP (Material Requirement Planning) methodology, LEAN concept, QR (quick response) method. As a technological solution for the improvement of storage processes, three groups of solutions can be mentioned, which do not require large investments and allow to achieve good results by increasing the efficiency of storage processes. Multi-storey shelving allows efficient use of warehouse space and grouping of stored raw materials and products. Metal demountable racks are particularly effective and have high lifting capacity and mobility. They can be adjusted as needed and the height of the shelves can be changed. Another group of technological solutions is sorting equipment. This group includes hoists and other equipment for fast and high-quality unloading and loading of goods, organization of transportation and storage of raw materials and delivery to the production department. Another group of technological solutions is bar code implementation systems (RFID). These systems allow you to keep track of the raw materials and goods in stock. The RFID system integrates the core components, and the host integrates the entire computer system and software. RFID supports the mutual exchange of information between scanners and the information system. Innovative warehousing process improvement solutions include warehouse automation, which enables the implementation of complex warehousing efficiency solutions.

Rodriguez V. G., Pabon M., (2020) indicate that inventory management and maintenance costs have a direct impact on the warehousing processes of manufacturing companies and the overall logistics policy of the company. Inventory maintenance costs are variable and can be divided into cash, inventory maintenance, inventory risk and inventory risk costs. These costs can be controlled by relying on analytical methods. In order to ensure low inventory maintenance costs, it is necessary to forecast sales volumes. It is necessary to ensure a high level of customer service with the least investment. An efficient warehousing process allows you to reduce order fulfillment time.

The fast-growing industry has encouraged companies to constantly look for solutions that increase the efficiency and productivity of day-today warehouse operations. Dujmešic N., Bajor I., Rožic T. (2018) argue that in many production and logistics systems, including warehouses, manual work still prevails, so organizational warehousing solutions must be focused on maximizing the warehousing process. Waters D., Rinsler S. (2014) notes that improving warehousing processes through organizational solutions is an activity based on planning and information flows.

JIT (Just in Time) is an stocks management system. According to Sapronienė D., Paškel S. (2014), the goal of this system is to reduce inventories. Under the JIT method, stock is acquired only upon receipt of the order and the product is delivered to the customer immediately. Quantities of raw materials and goods are supplied in small quantities, which are determined by ongoing production orders. Dodrajka S. (2021) argues that the correct organization of the JIT system can ensure the supply of raw materials directly to the production workshop and avoid additional storage. The advantages of the JIT approach are the reduction of inventories, the targeted promotion of staff, the reduction of material flow problems, the focus on the quality of goods and the increased confidence of suppliers and customers. However, the JIT approach also has its drawbacks, requiring close links with suppliers who may not meet their obligations, long-term planning and insufficient contingency planning. Although the JIT method provides easier control and increases productivity, the widespread use of this method makes companies more dependent on suppliers because the JIT method is not very productive as demand changes. Zinkevičiūtė V. and Vasiliausakas A.V. (2013) isolate JIT system components such as single unit supply, Kaban signals, and clock time. Kaban signals are a traction strategy type system that depends on demand at the lowest point in the chain. The operating principle is based on the supply of raw materials and goods to the right place from the next step in the supply chain. The Kaban methodology continuously reduces the number of raw materials in the process stages, thus highlighting the problem areas of the stage. The supply of one unit aims to reduce the batch size to the optimum, which is ideally the flow of one unit. This method more accurately meets customer needs and reduces costs. Tact time shows the speed of the customer‘s purchase, thus

ensuring delivery on time. Tact time affects process speed, staffing, and capacity. It is one of the main tools for reducing inventory, inventory and time for non-value-added work.

QR (Quick Response) logistics has become a goal for many companies, enabling them to achieve two strategic goals: reducing costs and improving services. Waters D., Rinsler S. (2014) argue that the idea of the QR method is based on an additional demand management model. When a consumer buys a product, the information is passed on to the supplier, so the goods are delivered faster because smaller quantities of goods are sent. However, the application of this method leads to an increase in transportation costs. Richnak P. (2020) points out that using the QR method, results and performance indicators must be measured using demand and supply indicators. Demand-side actions are grouped into sales variables and customer satisfaction. Supply-related indicators can be broken down into logistics costs, logistics reliability and administrative accuracy.

According to Hendra F., Ambarita R., Putranto E. K., Supriyono (2020), the amount of demand for raw materials and the delivery date of the finished product need to be determined. To meet this need, it is necessary to automate inventory planning and continuous monitoring of the warehousing process. MRP methodology can be used for this. MRP (Material Requirement Planning) is a methodology that is based on the planning of the demand for raw materials according to a production plan for a specific period. This links storage and production processes and ensures that production needs are met. Zinkevičiūtė V. and Vasiliausakas A.V. (2013) state that independent primary demand is determined by demand forecasts, and dependent demand is determined by direct calculations (supply planning system MRP). The number of parts in the product‘s production plan and the norms of the materials allow us to assess their need. However, the components that make up a single product cannot be planned and ordered separately. Hendra F., Ambarita R., Putranto EK, Supriyono (2020) indicate MRP parameters that affect inventory value are production type, storage level determination, consumption, batch sizing, procedures for safety inventory, forecasting strategies, and product and product analysis. MRP is an accurate demand identification procedure that is performed according to a demand program when projected market demand is in the form of warehouse in-

quiries. MRP works according to a logical scheme that allows you to standardize the warehousing process and eliminate order errors.

ABC or Pareto analysis is applied to group material resources according to importance: A - very important, B - moderately important, C - very insignificant. Zinkevičiūtė V. and Vasiliausakas A.V. (2013) indicate that the ABC analysis is based on the Pareto rule, where 20 per cent. about 80 percent of critical stocks. the value of all stocks held. These are Group A stocks, they are the most expensive and used in the largest quantities, so a lot of attention needs to be paid to their management. Group A inventory management needs to be particularly well planned as they deplete 80 percent of revenue. This is a small and specific group of raw materials, so the supply of these stocks can be organized using the „just in time“ principle. Group B materials are less tightly controlled and Group C supplies are cheap and underused.

Conclusions

1. The storage processes of manufacturing companies have an impact on the financial stability and efficiency of the company as a whole. For this reason, storage processes must be organized properly, and operations must be carried out accurately and quickly. Proper storage of raw materials and products must be ensured. The warehousing process of manufacturing companies consists of 13 main operations. All these operations are interrelated and complementary, the improvement of one or more operations will affect the efficiency of the entire warehousing process. Analyzing the most common errors in warehousing processes, it can be stated that the acceptance of raw materials, warehousing and order collection have the greatest negative impact on the operation of the process. 2. After the analysis of the scientific literature, four storage process improvement solutions were identified: organizational (JIT, QR, MRP, ABC and LEAN), technological (multi-storey racks, sorting equipment, bar code implementation systems), innovative (warehouse automation) and complex basic ( increasing and adapting the warehouse’s operational capacity, improving the information and technical areas, reducing logistics costs, adapting the warehouse to changed products and markets, changing business strategy, ensuring the reliability of the logistics chain and optimizing processes).

Bibliography

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ANALYSIS OF THE MARKET AND TRENDS OF THE AIR PASSENGER TRANSPORT

Monika Razutytė, Dalia Perkumienė, Regina Andriukaitienė

Vytautas Magnus University (Lithuania), Vytautas Magnus University (Lithuania), Marijampolė University of Applied Science

Annotation

The rapidly changing world is causing changes in business processes. Logistics and transport are areas of constant change. Therefore, an important moment is to analyze the current problems of air logistics for passenger transport in the context of a changing environment. Effective customer logistics is critical to the success of any business. There are many reasons for this, but the fundamental change is due to the growing awareness among companies that meeting customer needs is a prerequisite for success in the competitive struggle. Without a positive relationship with its customers, no business will be able to survive in today’s competitive market. Customer logistics standards help maintain the customer base, and a well-designed logistics service policy allows you to attract potential customers. The aim of the article is to analyze the market and trends of the air passenger transport.

Keywords: Customer logistics, logistics and transport, passengers, transportation services.

Introduction

As competitiveness increases, the role of logistics becomes increasingly important, with the result that key aspects of service delivery, such as quality and speed of performance, become a competitive advantage for the company’s customers. “The goal of logistics is to create long-term and close relationships with customers based on mutual benefits and mutual understanding” (Christopher, 2005). Changes in air transport networks over time may be driven by competition between carriers, changes in regulations in the air transport industry and socio-economic developments such as terrorist attacks and epidemic outbreaks. Of all the industries, the aviation sector is probably one of the hardest hits by the Covid-19 pandemic. Due to the unprecedented decline in passenger demand (along with nationwide flight bans), most airlines have come to a standstill, many airlines have had to

close almost all their fleets, and many airports have closed their runways to free up parking spaces. or simply closed indefinitely (Suau-Sanchez, 2020; 2016; Adrienne, 2020; Sun, et al., 2020).

Research object. The market and trends of the air passenger transport.

The aim of the article is to analyze the market and trends of the air passenger transport.

Results

For almost the second year in a row, the world is suffering from the COVID-19 pandemic, which is endangering our health and the world economy. Of all the industries, the aviation sector is probably one of the hardest hits (Suau-Sanchez et al., 2020). The decline in passenger demand (along with flight bans in all countries) has led to a halt in most airlines; many companies had to shut down almost all their operations and ground entire fleets (Sun, et al., 2020), many airports closed their runways to free up parking spaces (Adrienne, et al., 2020) or simply close indefinitely for time. Most companies in the aviation sector have worked with minimal staff in strict rotation (Iacus, et al., 2020), and aircraft manufacturers and the consumer industry have largely closed their production lines (Truxal, 2020).

The air transport market accounted for 98% of global passenger revenues. March 24 many airlines have been completely suspended, with severe restrictions (i.e., quarantine on arriving passengers, partial travel bans and eventually border closures). Preliminary monitoring of the COVID-19 recovery model, which showed a slower than in 2003, Outbreak of SARS, as shown by the short and sharp V-shaped model (Fig. 1).

The International Civil Aviation Organization (ICAO) estimates that the number of seats offered by airlines fell by 47-58% in the first half of 2020, and the number of passengers fell by 5¬03-607 million. the loss of the airline’s total operating revenue from 112 to 135 billion. USD (ICAO, 2020). The International Air Transport Association (IATA) has predicted that by 2020. growth will be very slow in the second half of the year and revenue per passenger-kilometer will fall by 48% and passenger revenue by 55%. although the forecasts for the aviation industry have been viewed with some skepticism under normal circumstances (Neufville and Odoni, 2003), the speed and breadth of exposure to Covid-19 has created a new level of uncertainty about the future.

10

8 Global GDP growth

% change year-on-year 6

4

2

0

-2

-4 Global Financial Crisis COVID-19 March Forecast

COVID-19 April Forecast

-6

2008 2010 2012 2014 2016 2018 2020 2022

Source: IATA Economics using data and forecasts from Oxford Economics

Figure 1. Preliminary recovery plan for airlines (source: www.IATA.org)

The analysis of European airlines covers the number of flights operated by leading European airlines from February to June. The results are quite interesting. The results of the Ryanair Group are undoubtedly the first thing you notice when you look at the chart (Figure 2). The Irish low-cost airline struggled with the covid-19 difficulties until April and operated fewer flights than most of its competitors. However, after a significant outbreak in May, the number of Ryanair Group flights increased in June.

As a result, the Ryanair Group has taken over the title of „Europe‘s largest airline“ from Turkish Airlines. According to the chart (Figure 2), Turkish Airlines held the title of the largest European airline in terms of number of flights from February to June. Nevertheless, the Turkish flag carrier had to come to terms with the decline in flights in May, trying to keep pace with Ryanair‘s high pace in June.

Lufthansa, KLM, Iberia and British Airways look very similar on the chart. Although they started at different levels in February, the growth path is almost identical.

Thus, despite the difficult years of 2020, the Ryanair Group was still the airline with the highest number of passengers in Europe (Figure 3). The lowcost airline even surpassed the German giant Lufthansa Group by more than 15 million. passengers. In second place was EasyJet with 50.8 million. passengers (Information Design).

There are many well-known airlines in Europe that are constantly expanding their destinations and are the most popular with European and

40,000

Ryanair

30,000

20,000

10,000

Turkish Airlines

Air France

Lufthansa

KLM

Iberia

British Airways

0

February March April May June

Figure 2. Analysis of European airlines in February-June 2021. Source: www.informationdesign.com

Ryanair Group

EasyJet

Lufthansa Group

Air France-KLM

IAG

Aeroflot

Turkish Airlines 36.4

34

31.3

30.2

27.9 51.7

50.8

Wizz Air 16.7

Pegasus Airlines

S7 Airlines 14.7

12.3

SAS Group 8.8

Norvegian 6.9

0 5 10 15 20 25 30 35 40 45 50 55 60 Numbers of passangers in millions

Figure 3. Leading airlines in Europe in terms of passenger numbers in 2020m (million). Source: Statista.com

international passengers, especially those promoting short-term city visits and leisure trips. This low-cost airline has also launched most new routes, overtaking other low-cost airlines such as EasyJet and Wizz Air.

In response to the sharp decline in passenger demand that accompanied the rapid spread of the coronavirus pandemic across Europe, LOT Polish Airlines immediately suspended its scheduled international and domestic passenger flight program. The next day, CSA Czech Airlines and Montenegro Airlines similarly shut down. By the end of the month, 18 airlines registered in Europe had suspended all passenger services. No airline across the continent has been protected from the effects of a pandemic. Of the carriers that continued to operate, capacity decreased by 99% compared to the corresponding weeks in 2019 and the mass cessation of aircraft (Eurocontrol, 2020).

It takes a long time to park an aircraft and then return it to flight condition, so mobility and flexibility have become important attributes in aviation (Adrienne et al., 2020). Airlines British Airways and the Ryanair Group have kept about a third of their fleet fully operational so that flights can be resumed quickly if conditions allow. Other carriers, unaware of whether and when consumer confidence will recover, have announced a gradual return to service, starting with local and high-demand routes, albeit at much lower-than-normal capacity and frequencies. For example, Norwegian reported that in the summer of 2020, it planned to use only 3% of its preCOVID-19 capacity, with EasyJet planning to use 40% and IAG 45% by 2020. in the third quarter (Eurocontrol, 2020).

No airline could have foreseen how the coronavirus situation would change or how it would affect national requirements for border renewal and mandatory quarantine requirements for travelers, and changes to national rules have affected the planned timetables following the renewal of services. For example, by 2020. September. EasyJet and Ryanair have announced reductions in their flight schedules, and EasyJet reports that it has done so in response to ever-changing quarantine requirements that have eroded consumer confidence and led to lower-than-expected demand (Balcombe, K. et. al., 2009).

In summary, declining demand for air travel has forced many airlines to significantly reduce the number of flights and give up most of their fleet. In less than three weeks, airlines have flown an all-time high to a sudden (and

almost complete) stop, causing them severe financial hardship and likely to launch reforms that could fundamentally change the sector. Although the aviation industry has recovered from previous shocks like SARS, terrorist attacks and other events, the impact of the current pandemic on the level of global air traffic is much greater than during any previous crisis.

Conclusions

1. The second year of the COVID-19 pandemic poses a threat to human health and is seriously damaging to the world economy. Of all the industries, the aviation sector is probably one of the hardest hits. The analysis of European airlines covers the number of flights operated by leading European airlines from February to June. 2. The Irish low-cost airline struggled with covid-19’s difficulties until April and operated fewer flights than most of its competitors. However, after a significant outbreak in May (2021), the number of Ryanair Group flights increased in June. As a result, the Ryanair Group has become “Europe’s largest airline”. 3. Analyzing the problems, Ryanair Group is a low-cost airline (LCC) that offers lower fares than the average full-service carrier (FSC) and only includes the price of the main seat (not selected). So, if passengers want to enjoy the extra services, they have to pay for the services. Therefore, most sources of LCC revenue are ancillary services. Additional services that passengers must pay for under the LCC model include items such as pre-selected seats, meals, checked baggage allowance, entertainment facilities and in-flight wireless internet. Therefore, according to the analysis, most passengers tend to pay more for a ticket to get a full level of service.

Bibliography

1. Adrienne, N., Budd, L., & Ison, S. (2020). Grounded aircraft: An airfield operations perspective of the challenges of resuming flights post COVID. Journal of Air Transport Management, 89, 101921. 2. Balcombe, K., Fraser, I., & Harris, L. (2009). Consumer willingness to pay for in-flight service and comfort levels: A choice experiment. Journal of Air Transport Management, 15(5), 221-226. 3. Christopher, M. (2005). Logistics and Supply Chain Management–Creating Value-Adding Networks, 3. Auflage, Harlow. 4. Neufville, R. D., Odoni, A. R., Belobaba, P. P., & Reynolds, T. G. (2013). Airport systems:

Planning, design, and management. McGraw-Hill Education.

5. Eurokontrolė. (2020). Eurocontrol ANS Performance dashboard. 2020. Internet access: www.ansperformance.eu; last visited 2021 11 12. 6. Iacus, S. M., Natale, F., Santamaria, C., Spyratos, S., & Vespe, M. (2020). Estimating and projecting air passenger traffic during the COVID-19 coronavirus outbreak and its socio-economic impact. Safety Science, 129, 104791. 7. ICAO naujojo koronaviruso (Covid-19) poveikis civilinei aviacijai: ekonominio poveikio analizė. Internet access: https://www.icao.int/sustainability/Documents/COVID-19/

ICAO_Coronavirus_Econ_Impact.pdf; last visited 2021 11 12. 8. Suau-Sanchez, P., Voltes-Dorta, A., & Cugueró-Escofet, N. (2020). An early assessment of the impact of COVID-19 on air transport: Just another crisis or the end of aviation as we know it?. Journal of Transport Geography, 86, 102749. 9. Suau-Sanchez, P., Burghouwt, G., & Fageda, X. (2016). Reinterpreting EU Air Transport

Deregulation: A Disaggregated Analysis of the Spatial Distribution of Traffic in E urope, 1990–2009. Tijdschrift voor economische en sociale geografie, 107(1), 48-65. 10. Suau-Sanchez, P., Voltes-Dorta, A., & Rodríguez-Déniz, H. (2016). The role of London airports in providing connectivity for the UK: regional dependence on foreign hubs.

Journal of Transport Geography, 50, 94-104. 11. Sun, X., Wandelt, S., & Zhang, A. (2020). How did COVID-19 impact air transportation? A first peek through the lens of complex networks. Journal of Air Transport Management, 89, 101928. 12. Truxal, S. (2020). State aid and air transport in the shadow of COVID-19. Air and Space

Law, 45(Special issue), 61-82.

2. TOURİSM MANAGEMENT CHALLENGES

CHALLENGES OF SUSTAINABLE TOURISM IN PANDEMIC TIMES: THE CASE OF ZYPLIAI MANOR, LITHUANIA

Nijole Petkeviciutė, Daiva Buksnienė, Rasa Pranskunienė

Vytautas Magnus University, Lithuania

Annotation

The paper seeks to understand sustainable tourism challenges and possible solutions led by the outbreak of COVID-19. Thus, this research conducts an empirical study in order to analyse visitors’ demands and needs for field activities in the case the Zypliai Manor, located in Luksiai, Lithuania. As the paper aims to discuss visitors’ needs about outdoor activities and challenges, for this reason, it is highly important that workers of cultural objects concentrate on how to develop their creativity for better service in uncertainty conditions. Thus, cultural tourism and local entrepreneurship issues in the context of the pandemic times will be discussed in the paper.

Research problem of this paper is defined as fallows - organisers of cultural tourism routes and objects lacking relevant information, knowledge and skills about needs of visitors. Research methods, used for the analysis are: scientific literature analysis, quantitative (questionnaire) study, and descriptive analysis. The cultural tourism requires to create the environment suitable for consumers’ needs in the case of critical situation (for example Covid-19 pandemics). It motivates local entrepreneurs and employees of cultural tourism to change their attitude and organize and combine different actions based on their creativity and consumers’ needs. It is significant to analyse the needs of consumers’ during the pandemic times in cultural places such as Zypliai Manor. The findings of the study demonstrate that customers’ needs could be satisfied during the pandemic situation in Lithuania. Thus, after presenting theoretical insights and empirical analysis results and suggestions of future cultural tourism educational program development depending on sustainability and on local entrepreneurship and cultural tourism issues in the context of the pandemics are interconnected.

Keywords: cultural tourism, sustainability, pandemic times, locality, outdoor activities.

Introduction

Cultural tourism and local entrepreneurship and are strongly interconnected, as well as cultural tourism is recognised as one of the broader sectors of the tourism industry, embracing an extensive range of tourist interests (Rech and Migliorati, 2021). According to Stipanović et al. (2020) entre-

preneurial initiatives transform knowledge into new values for achieving excellence and entrepreneurship is the most important factor in the value chain of cultural tourism destinations. Recent research, as Luu et al. (2019) notice, suggests that entrepreneurial orientation has a more complex effect on performance than previously considered. Thus, Magnani and Zucchella (2018) debate the importance of uncertainty in entrepreneurship. Pato and Teixeira (2016) notice, that entrepreneurship has become a dynamic field of research in the last two decades. Thus, after decades of research and debate in the field that today is known as heritage studies, it has become clear that cultural heritage is best understood as a set of social practices and processes, valued in specific circumstances for their implications and outcomes (Holtorf, 2020). According to Krawiec (2021, p. 148), “cultural managers are expected to have creative ideas (creative solutions), the ability to see opportunities and threats in the future, and to flexibly adapt to changes in the environment”. The authors (Rech and Migliorati, 2021) notice, that cultural tourism has been recognised as one of the largest and fastest-growing tourism sectors, at least until early 2020 when the pandemic was declared. It is important to point out, as Bargeman and Richards (2020) argue, the context of tourism participation also indicates why people value certain forms of participation or activity above others – this lies not just in individual choice, but also in the choices of others in a rapidly changing network of relationships and a community of practitioners. As well, prior to COVID-19, Richards (2018), Perkumienė and Pranskūnienė (2019), Pranskūnienė and Perkumienė (2020), noted that overtourism in some parts of the world – particularly World Heritage Sites – was becoming more and more problematic. Tourism as an open system was characterized by its high degree of networking with the environment, as Uğur and Akbıyık (2020) notice, the tourism industry was one of the world’s greatest markets; until the world met a pandemic in the 21st century, COVID-19. An open system always demonstrate movement, some exchange matter or energy with its surroundings. Tourism is responsive to changes in the environment and enable a faster rate of overall innovation. Tourism as healthy open system continuously exchange feedback with the environment and organize some analysis of that feedback for reaching the goals. It is highly important to understand the needs of external environment and identify main challenges for the development of the activities in the organization.

According to Rech and Migliorati (2021), the coronavirus pandemic has completely overturned all the terms of tourism space interrelations planning and objectives; actors and governance; stakes, motivations and behaviour, and the tourist consumption of individuals and groups. International, regional and local travel restrictions immediately affected national economies, including tourism systems, i.e. international travel, domestic tourism, day visits and segments as Gössling et al. (2021) notice, as diverse as air transport, cruises, public transport, accommodation, cafés and restaurants, conventions, festivals, meetings, or sports events. Now, as populations and policy-makers attempt to simultaneously prop up public health and the economy, the challenge for cultural tourism operators will be remaining solvent during a crisis that restricts the movement of people (Flew and Kirkwood, 2021). The importance of ecosystem connections, discuss Marcinkeviciute et. al. (2021), arguing that the ability of ecosystems to adapt to the changing climate conditions may reduce potential damage. Thus, Pranskuniene and Perkumiene (2021) notice, the outbreak of COVID-19 in most countries has led to increasing efforts to restrict the free movement of individuals. History shows, as Vrdoljak and Bauer (2020) point out, that across millennia, pandemics throw a harsh light on existing cleavages in societies and shortcomings in their organization. According to Flew and Kirkwood (2021) the arts, cultural and creative industries are among the most adversely affected sectors of the economy in the wake of COVID-19 social distancing measures, travel restrictions and prohibition of large gatherings of people. Even in 2010, Verhees et al. (2011) noticed, that proactiveness is very important and the most influential element of entrepreneurial proclivity. As well, Pindado and Sánchez (2017) argue, that established agri-entrepreneurs are less proactive than other sectors. Thus, Muñoz-Bullón et al. (2015) argue, that some dimensions reflecting entrepreneurial orientation, such as proactiveness, risk taking and innovativeness are important determinants. As well, as entrepreneurial networking has an insignificant impact (Abu-Rumman et al., 2021), as well as, the importance of transformational leadership (Sari et al., 2019). As Martínez-Pérez and Beauchesne (2018) argue, tourism clusters should not exclusively focus on typical closed networks but also should create connections with diverse agents to maximize their potential for innovation. When speaking about local heritage, there is the need

to look to the locals as well as agricultural entrepreneurs. Dias et al. (2019) notice, that agricultural entrepreneurs are facing important challenges because agriculture is changing rapidly. And heritage, as Mitchell et al. (2018) point out, is the foundation of both branching innovating trajectories and tourism. Amongst the burgeoning discussions and research related to tourism and COVID-19, as Sigala (2020) and Strielkowski (2020) noted, the public is calling for the pandemic to be universally seen and used as a transformative opportunity.

The article seeks to identify and understand local entrepreneurship and cultural tourism as an open system challenges and possible solutions led by the outbreak of COVID-19. Thus, this research conducts an empirical pilot study in order to analyse visitors’ demands and needs for field activities in the case the Zypliai Manor, located in Luksiai, Lithuania.

Study Setting

From ancient times, Western culture in Lithuania was spread through Manors. This brought to our lands the currents of art that prevailed in Europe through art, music, architecture, theater and other branches of art. Zypliai Manor is no exception, which also followed the latest fashions of the time, the norms of Western life in the upper classes, concerts, art exhibitions, celebrations, hospitality, traditional hunting took place. After adapting the ensemble of Zypliai Manor for cultural tourism, a tourist attraction center has been created, offering various services and tourism products: accommodation, meals, entertainment and cultural events. Renovated buildings of the Manor ensemble and tidy environment adorn the landscape, created jobs directly related to tourism activities in Zypliai Manor and jobs in private entities. Arrangement of Zypliai Manor homestead contributes to the improvement of tourism development in Lithuania: seasonality is reduced; adaptation of cultural heritage and natural areas, including protected areas, for visits. The presentation of Zypliai Manor as a tourist attraction by information means improves the image of Lithuania as a tourist country. Inbound tourists create added value in the areas, encourage public-private partnerships.

Figure 1. Zypliai Manor (photo from the archive of cultural centre of Zypliai)

Main activities of Zypliai Manor are: a) The restaurant “Kuchmistrai” in the surroundings of the Zypliai Manor Ensemble is an authentic restaurant that cherishes the heritage of Lithuanian noble cuisine and is distinguished by its refined interior, décor and menu range. In order to preserve both the culinary and cultural image of the country, special tastings are held, allowing tourists to touch the history; b) Employees of the Lukšiai Culture Center, located in the central palace of the Zypliai Manor and in the Horse Gallery, offer various excursions to visitors, conduct educational activities. When visiting the central palace of the Zypliai Manor, you can see the numerous and rich working art exhibition halls. There is also a room for archeological finds - history. The Manor hosts various cultural events: concerts, festivals, seminars that attract people from all over the world to participate; c) Zanavykai Museum is located in Zypliai Manor. The exhibits collected in the museum’s collections reflect the cultural heritage and history of the 18th century Zanavykai region. The most valuable part of the collections consists of an ethnographic collection depicting ancient Zanavykai businesses, crafts and everyday life: household items, means of transport, furniture, work tools, clothing, home-made fabrics.

The museum houses more than 50,000 different exhibits, which are presented both in the usual way and interactively or during educations; d) The

park of Zypliai Manor is taken care of by Lukšiai eldership. The pride of the park is an alley of 200 m long balsamic poplars. There is a vineyard in the park garden. After the grape harvest, the Ramaškevičiai family farm “Wine charms” produces wine, which can be tasted by visitors of Zypliai Manor.

Methodology

In order to analyse visitors’ demands and needs for field activities, pilot quantitative study (questionnaire) was designed by the authors. 48 respondents took part in the pilot research and answered the questionnaire expressing their opinions about demands of cultural tourism activities during pandemic in Zypliai Manor.

The results were amended by using MS Excel and the descriptive analysis. Quantitative research method enables to collect information about respondents’ demands for cultural field activities during pandemics and helps to discover some facts which are useful for discussion. In scientific field (DeFranzo, 2011; McLeod, 2017 and others) there are mentioned some methods about quantitative information gathering: various forms of survey. The questionnaire of the study was applied to find out about respondents’ demands for field activities during pandemic situation. The questionnaire was designed of twelve questions with the aim to investigate respondents’ needs and demands in the context of pandemics. The respondents were asked questions about their needs for field activities and education during the first pandemic situation in Lithuania. There were closed and open questions and some statements. Questionnaires were anonymous. The questions in the questionnaire were constructed to collect the information about respondents’ needs for field activities and education during the pandemic situation.

Respondents. Quantitative pilot research was performed in March-April 2021. There were 48 respondents from different cities and villages of Lithuania. Majority of respondents visited the Zypliai Manor before. The study revealed that 97,9 % of respondents visited Zypliai Manor before pandemics and took part in some activities. The majority of respondents were women - 85,4%, according age there were: 31,3% age 19-36 years, 39,6% age 37-54 years, 29,2% more than 55 years old. Respondents were mostly from Marijampole district, but there were some respondents from Vilnius, Kaunas and Klaipeda.

Results and discussion

The complex development of the ensemble of Zypliai Manor allows to develop cultural tourism in a smart way. This ensemble operates throughout the year and has a common strategic vision, provides a variety of cultural tourism services, develops unified communication both locally and at the municipal level. Currently, the complex development of the Zypliai Manor ensemble with various Lithuanian tourist routes is being developed (Nemunas road) and a more active development of the merger and increasing access to national and international networks is needed for future development. In 2021 “Zypliai Manor officina” hotel with smart solutions, very actual in pandemic times, was opened. There the concept of a smart hotel was created, where after registering to the hotel reservation system and arriving the smart hotel management system would take care of check-in, reception and check-out. Once a guest has registered with the system, they will be given a digital key that will allow them to access the hotel’s premises and apartments at any time of the day.

Did you participate in different educational activities during visit the Zypliai Manor?

Yes

No

I don’t remember

No answer to the question

18,8 %

72,9 %

Figure 2. The distribution of respondents’ opinion.

The pilot study results showed that respondents were very active and mostly of them 72,9% took part in different education activities during visit the Zypliai Manor (Figure 2).

The question was about the needs for field activities in the Zypliai Manor during pandemics. The results of the study showed that 72,9% of the respondents pointed that they would like participate in different field activities and education programs (Figure 3). Only 16,7% of the respondents didn’t want field activities (Figure 3).

Yes

No

I don’t know

Other

8,3 %

16,7 %

72,9 %

Figure 3. The distribution of respondents’ opinion to the question: “Would you like participate in different field activities in the Manor during pandemics?“

The respondents were asked about more interesting field activities and field activities education programs would be more interesting in Zypliai Manor. There were suggested six expected activities and the respondents were asked evaluate each according personal interest. The study revealed that least popular were education programs about national shindig and smithery (Figure 4). The respondents would like to take part in education programs in grapery and to make around Zypliai Manor with guide and listening interesting stories (Figure 4). Respondents were presented with 6 possible activities and asked to rate whether they would be interested. The respondents were the least interested in folk dance and blacksmithing education, and the most positive support was in the vineyards and walks around the Zypliai

Manor park when telling a story (Figure 4).

Maybe could be interested in

Sounds very interesting

could be interested in

It is not interesting at all

0 10 20 30 40 50 60 70 80 90 Walking in the park ant storytelling Outdoor painting education Outdoor ceramics education

Vineyard education, getting deeper knowledge in grape growing and varieties Outdoor folk dance education

Outdoor SMITHERY education

Figure 4. Possible activities and the rate of visitorsʹ interest.

The pilot study revealed that people are interested in new outdoor cultural activities and education programs during their free and leisure time. The study aim was to analyse the opinion of visitors about outdoor cultural and educational activities. The results of the pilot study showed that visitors would like participate in new activities such as educational programs in grapery and to know more about grapes sort.

The analysis has shown, that a quality value chain can be created only through innovative action, as Stipanović et al. (2020) notice, of the local population as entrepreneurs, as well as cultural organizations whose programs/projects must be involved in entrepreneurial initiatives.

Conclusions

Local entrepreneurship and cultural tourism issues in the context of the pandemics and sustainability experience various challenges. Tourism as an open system always is in the movement and some exchanges with external environment. It is highly important to identify and analyse the needs of users of the various activities in this sector. The cultural tourism as an open system requires to create the environment suitable for consumers’ needs in the case of critical situation (Covid -19 pandemics).

The aim of the pilot empirical research (questionnaire survey) was to reveal the needs of the visitors and identify which educations would be

the most acceptable for potential users and what needs level for activities would be in the field.

The pilot study revealed that people are interested in new outdoor cultural activities and education programs during their free and leisure time. The pilot study identifies the most potential activities for the visitors to the Manor. The visitors would be interested in a tour of the Manor park and education in the vineyard.

The empirical analysis led to the following project suggestions, which are presented with a stronger focus on outdoor space and tourism, as well as the integration of local community and entrepreneurs: • Educational program “Get to know the wine culture of our country’s national heritage”; • Excursion program in the Manor park “Old Park Alley ...”. • Installation of signs in the park so that the visitor does not get lost and visit everything in the Manor park; • Installation of outdoor stands at least minimally acquainting the visitors of the Manor with the history of Zypliai Manor. • In order to feel less seasonal and a strong increase in workload during the tourism period, it is suggested to use young volunteers or, if possible, to set up a guide post at least during the season.

Thus, after presenting empirical analysis results and suggestions of future cultural tourism educational program development depending on local entrepreneurship and cultural tourism issues in the context of the pandemics are interconnected.

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EVALUATION OF THE BURNING OF THE MUSEUM’S LEISURE ORGANIZERS

Biruta Švagždienė, Monika Česaitė

Lithuanian Sports University, Lithuania

Annotation

People who work these days often experience stress, fatigue and exhaustion. All this is due to changing working conditions, growing competence requirements, intolerant colleagues or managers, high workloads. Also, as the socio-economic situation in the world changes, the number of years of employment increases, and tensions increase, people’s well-being is affected (Šostakienė, Baranauskienė, 2017). It affects everyone differently, it depends on our own thinking, our ability to accept innovations, to adapt to new situations, and it also depends on the nature of the work we do. It can be argued that one way or another, it is a process that is found in the lives of most specialty workers. According to Bamber (2006), a person spends about 100,000 hours on average at work, so it is important to find a job that is rewarding. Burnout syndrome occurs when an employee fails to ensure well-being at work due to excessive workload, emotional exhaustion, or other excessive responsibilities.

Aim - To determine the burnout of the museum’s leisure organizer in organizing leisure time.

Research methods qualitative research - semi-structured interview; analysis of scientific literature.

Results: The activities of leisure organizers are wide-ranging and cover many areas. In this position, it is important to be able to orientate quickly, adapt to the situation and be able to work in a team. High workload is another factor faced by leisure organizers. Due to the heavy workload, people in this specialty often suffer from psychological and physical health problems. The reasons that cause stress, tension, and malaise for leisure organizers are unpleasant clients, management, and unconventional work schedules. In order to avoid all the problems caused by work, the subjects try to take breaks while working and to distance themselves after work, that is, to try not to forget about work and not to bring negative emotions home. However, one of the main ways that leisure organizers choose to avoid negative emotions and fatigue is to pursue a favorite activity, and their own ways of spending their free time are determined by the specifics of their work.

Keywords: leisure, leisure organizer, burnout.

Introduction

With the pace of life accelerating and workloads increasing, more and more attention is being paid to leisure and leisure organizers. Both leisure and the person who organizes it play a very important role in today’s world. Quality leisure time can help to effectively improve a person’s quality of life, help to relax and unwind. However, in order to ensure the benefits of leisure, it is important to pay attention to the psychological state of the leisure organizer, which affects both the service itself and the activities of the organization. The work of a leisure organizer is characterized by constant communication with clients. According to Bražėnaitė (2016) in the United States, Freudenberg (1974) was the first to investigate that constant contact with people causes occupational burnout and indicated that nurses, doctors, teachers, service staff and social workers are at risk of burnout at work. However, we can say that leisure organizers, depending on the nature of their specialty, can also be included in this category. Occupational burnout syndrome according to Vimantaite (2006), Pacevičius (2006), Babakus (2012) most commonly described as long-term emotional and psychological exhaustion, which occurs with decreased ability to work and depersonalization. Leisure organizer, experienced burnout syndrome, unable to properly perform its work functions: pleasant communication with client, it is difficult for him to concentrate in the workplace, his work is unproductive, he is constant irritated by physical and internal stimuli. Burnout is a topical issue not only because it can lead to a person’s personal life and quality of life, but it is also directly related to what is provided service and the success of the organization. A leisure organizer experiencing burnout syndrome is not able to provide a quality leisure service, there is no productive employee of the organization who could ensure the best work results.

The aim is to determine the burnout of the museum’s leisure organizer when organizing leisure time.

Tasks: 1. To reveal the theoretical interpretation of the organization of leisure time and the organizer of leisure time; 2. To define the contact of leisure organization with burnout; 3. To investigate the burnout of the museum’s leisure organizer in organizing leisure time.

Theoretical interpretation of leisure organization and leisure organizer

It is believed that leisure and its concept originated from the time people began to live sedentary. This concept and its understanding have been modified many times, along with historical one’s periods. According to Kublickienė (2001), the now used concept of leisure appeared on the rise industrialization and urbanization. With the growth of technology and science, labor productivity has increased and people have risen living standards, making it possible to reduce working hours and increase leisure time. For time over time, as well as other ways of spending free time, survey data these days people for the most part spends part of their free time using the Internet, decreases communication and reading time, however the time spent on outdoor physical activity, entertainment, culture and volunteering seems unchanged (Vilhelmson et al., 2017). So, nowadays, leisure is becoming more and more important for a person there is more discussion about leisure, the essence and characteristics of its organization. According to Offer (2016), leisure is considered to be the most important aspect of daily life, which determines the well-being of our lives. It is important for a person to be able to relax, rest, allow time for your own pleasure, but according to Kublickienė (2001) there are two different types of leisure treatment paradigms. The first is traditional socio-economic, and the second is leisure treatment the paradigm is socio-psychological. The author distinguishes between these two aspects of leisure perception significant differences. The former defines leisure time as time off from paid work, household and physiological needs. This time covers both the amount of time devoted to leisure activities as well as time spent in the personal interests of their choice. However, according to the author, it is here that a significant part of leisure content is lost: what at that moment or in a certain activity a person experiences, experiences whether he becomes happy or improves his life quality. Data from a study by Chen and Fu (2008) showed that, for example, people watching TVs, spend a lot of time, however, it does not give them happiness. In this case, it would be it is more expedient to use the concept of free time than leisure, but in Lithuanian such possibilities there is no. The second paradigm defines leisure as a certain spiritual state of man, defined by freedom, inner satisfaction, and the experience of positive feelings. This paradigm is directed at the man, his the meaning and experience of leisure time, the quality of leisure time

is assessed (Kublickienė, 2001). Therefore, with the formation of the second paradigm, leisure begins to be viewed differently. It is believed to be leisure the point is to give a person positive emotions, to ensure that his free time is meaningful. Šinkūnienės (2005), Eigelienė (2008) also support this idea and state that leisure is when when a person spends time meaningfully and chooses an independent activity that is independent from work activities. These authors also emphasize the fact that leisure is a choice to spend ways are the personal choice of each person by which the individual expresses his will, shows their approach to values and reveals their common inner culture. This leisure time is related not to time but to state, as self-realization is achieved by forgetting oneself in one’s free time and that can give a person the meaning of life (Šidiškienė, 2014). A similar view was expressed by Markevičius (2013), according to Leonavičius (1993), defined leisure in the “Dictionary of Sociology” as a person or group of people, a portion of society’s time that is devoted to a person’s free choice activities that usually help them rebuild and develop their strength.

Thus, when considering the essence of leisure, it is very important to understand that leisure is not intended for domestic work and not for other compulsory activities, but it must be free choosing a time that provides a person with positive emotions, relaxation, makes sense human activity and reveals his attitude to values. Leisure is like creativity and freedom measure (Smith, Rayman, 2016). That is why it is very important that we have our free time organized correctly. According to Charenkova (2017) organized rest, leisure time man can satisfy their needs, relax and rest not only in body but also in spirit. Savicka (2006) states that recreation and leisure activities can also contribute to a person ‘s higher needs satisfaction: self-expression, personality formation, the pursuit of personal success, freedom, and adventure fulfillment of desire. So, in order to get benefits for our body and soul in our free time, we have to understand what leisure time is and how to plan it correctly.

According to Revaitė et al (2017), everyone has the right to choose different leisure activities ways of skipping, during which he forgets the routine, relaxes, draws energy. Leisure time We can choose two forms of passing: passive leisure or active leisure. Help leisure forms can give a person many benefits, but everyone can choose for themselves more acceptable way. The concept of active leisure is defined by Horka, Hromadka (2010) and Tekin (2004) as a physical activity, a sport that allows a person to release

the accumulated energy helps feel better and experience pleasure. Many factors related to physical activity or sports activities lead to positive personality development (Laskienė et al., 2009).

In summary, leisure can be important and inseparable for everyone part of life. The essence of free time is to ensure well-being for oneself, to relax, to rest, to experience pleasant emotions. However, it should not be forgotten that leisure time is considered meaningful only when a person he is engaged in an independent activity which is independent of his work. Also is it is important to pay attention to leisure choices. To ensure productive leisure, which to benefit us, we need to keep in mind that when planning leisure, we need to choose activities that contributes to the satisfaction of our higher needs: self-expression, personality formation, the pursuit of personal success, freedom and the desire for adventure.

As for the leisure organizer, it is also important to find out and need it internal qualities, competencies. In the scientific literature, this is an unexplored topic, however, in terms of about teachers as leisure organizers, certain competencies they have are singled out to have. Sadovaya, Khakhlova et al. (2015) identified teachers as professional requirements for the preparation of children’s leisure time. According to them, the teacher, organizing children must have not only a teacher education but also a high level of motivation to work, be creative, have a positive attitude towards your profession and its development, a positive attitude towards leisure and knowledge of recreational activities. The data of this study can be applied not only from the aspect of teachers’ leisure organizers, but also in terms of leisure organizers in general. Motivation, creativity, a positive attitude towards human leisure, it is doing well on their own job leisure organizer features.

When discussing the activities of a leisure organizer and the competencies he needs, it is important to discuss the official functions of leisure organizers. The activities of the leisure organizer are quite broad, therefore I will single out and discuss the official functions of a leisure organizer in Lithuania in museums. The main job requirements for a museum employee who is responsible for organization of clients’ leisure time, ie organization of events, organization of excursions, etc. It is important for a leisure organizer to know about his / her field of work, to know its specifics, to be able to communicate not only with team, but also with customers, to speak at least one foreign language, as it may be necessary to contact and with foreign customers.

Computer literacy and of course leisure are also important the organizer, like representatives of other specialties, must know the rules of his work.

Summary. The activities of a leisure organizer require a lot of effort as well competencies. The leisure organizer must not only meet the job requirements, but must to give a person the opportunity to acquire certain new skills, to strengthen a person’s weaknesses, to raiseself-confidence, etc. It is also very important for him to have a good knowledge of theoretical, methodological knowledge, be able to see the client’s needs and involve him in certain activities. And one of the most important things in the activities of a leisure organizer - these are personal qualities and competencies. It is very important that the leisure organizer should be motivated to work, be creative and have a positive attitude towards their work and their free time.

Exposure of leisure organization to burnout

Vimantaitė (2006) describes the burnout syndrome as a complex phenomenon. The author states that it is a process that develops over a long period of time, manifests itself individually, is of varying intensity and is characterized by both mental and physical symptoms, but according to Bražėnaitė (2016) In the United States, the scientist Freudenberg (1974) defined it very simply as exhaustion, which occurs when a situation requires more resources and energy than a person has. According to Babakus (2012), these are valuable physical, emotional, and cognitive individuals reasons for energy / resource depletion. Scientists have long been studying burnout syndrome and presents different concepts, but the definitions are quite similar. Examining the professional burnout is most often referred to as medical professionals, nurses, social workers employees, officials, but it is rarely examined whether members of other professions also have professional experience burnout. Pacevičius (2006) states that burnout syndrome is not characteristic of a turner, accountant, programmer, although they also experience stress at work. This explains the professional burnout is caused by the stress that results from long and stressful communication work on the spot. These employees experience stress as they try to reconcile external clients with their own organizations needs and seek to ensure mutual benefits. Some of the employees from whom direct work depends on the success of the company, that is, the organizers of leisure. Representatives of this specialty have more than just good knowledge of one’s professional matters, but also constant communication with clients, resolving conflicts,

to meet customer expectations, taking into account the capabilities of the organization, and to remain helpful at all times; andnice. It is for this reason that it can be said that the employees of a leisure organization canface occupational burnout syndrome because their work has high demands. Golub et al. (2018), we can only secure a beautiful future by creating ‘healthy workplaces’, such as places free from undesirable rules for workers who do not benefit from work; and each person’s workload should be reasonable. Conversely, if leisure workers “healthy jobs” will not be created and they will suffer the burnout syndrome, the company will suffer losses.

Summary. Occupational burnout is the mental and physical exhaustion that occurs without ensuring well-being at work, overwork, emotional exhaustion, or others excessive requirements that the employee cannot meet. Occupational burnout is also common is caused by the stress that results from long-term communication at work. Employees faces stress in trying to match the needs of customers and the organization and experiences this in a fairy tale burnout.

Causes and symptoms of burnout of the leisure organizer

Occupational burnout syndrome occurs not only depending on the nature of the profession, however, it also depends on human characteristics. If the work of the leisure organizer is not important, the results achieved are not important - he is unlikely to experience burnout. Akroyd (2002) are not all equally sensitive to burnout syndrome because each person is different an individual with qualities unique to him, he has a peculiar reaction to the work environment, a relationship with him attitudes towards work, so this syndrome is most common in people who has high ambitions, great enthusiasm and high demands on himself. According to Baldelli (2002) and Penson (2000) play a very important role in burnout syndrome the work environment because of the difference between what the employment agency offers and what is expected of the employee between allocating resources and requirements, between expectations and realistic chances of achieving a goal burnout syndrome. All this shows the most common occupational burnout the reason becomes requirements that the leisure organizer cannot implement. Organizations they want the best result from the leisure organizers, but they do not provide the necessary resources, adequate rest and all other necessary facilities for that purpose. However, professional burnout can cause many other reasons, which were singled out by Pacevičius (2006):

Table 1. Reasons that may affect the process of occupational burnout syndrome (Pacevičius, 2006)

Individual

Age Sex Level of education Marital status Work experience Personal characteristics Endurance

The locus of control (responsibility for its performance) Resistance style Self-esteem Neuroticism (anxiety) Extraversion

Organizational

Working conditions Overload Lack of time Duration of working day Content of work Number of customers The complexity and importance of customer problems The proximity of contacts with customers Participation in decision making Feedback

In Table 1, we can see that the individual reasons that can affect a leisure organizer’s burnout are related to his status, his personal qualities, his character, and the organizational reasons are completely independent of the employee, which are factors determined by the company and its environment. According to Lepeškienė (2004), burnout syndrome does not occur immediately, it develops over a long period of time, occurs gradually and has three stages: the first The stage of burnout is the “honeymoon”. Man has a lot of work, but internal and the lack of external resources makes the requirements often unworkable. Big workload, excessive demands separate a person from the immediate environment: family, friends. His leisure activities do not make him happy either. The second stage of burnout syndrome is increasing anxiety and tension. Fatigue, insomnia, physical exhaustion occur, work loses its attractiveness and begins to fall short of it. There is distrust of your job and depression. The third stage of burnout is complete apathy and withdrawal. At this stage, the employee does not want to communicate with customers and the people around them at all, the employee tries to distance themselves from them both physically and emotionally.

Research methodology and organization

The aim. Investigate the burnout of the leisure organizer in organizing leisure.

Research questions: 1. How do leisure organizers describe their profession? 2. Does the work of the leisure organizer affect his condition? 3. What difficulties do leisure organizers face at work? 4. How does the work of a leisure organizer determine their own choice of leisure time? 5. How leisure organizers deal with problems caused by work (emotional difficulties, health problems, unproductive leisure problems)?

A semi-structured interview method was chosen for the research, the course of which may vary depending on the situation, depending on the interviewee and his / her answers. In this case, preconceived notions and opinions are avoided.

Characteristics of the subjects. 4 research experts participated in the study. The target sample of the study was formed in a convenient way, this is an organization that has been easily accessible because of the manager ‘s approach to the study conducted was benevolent. According to Bitinas, Rupšienė, Žydžiūnaitė (2008) is economically beneficial: it saves effort, time and money. Research the sample size was not predicted, but the study was stopped due to repeated responses.

Research results

In summary, it can be stated that after analyzing the subtopics and research interviews revealed that the profession of leisure organizers is broad, encompassing many areas. In this profession, it is important to be able to orientate quickly, adapt to the situation and be able to work in the team. High workload is another factor faced by leisure organizers. Excessive workload has an impact on health, it affects one way or another mental and physical health of workers. Due to the high workload, representatives of this specialty often experiencing psychological disorders: workers feel exhausted, experience nervous tension and physical health problems: headache, physical exhaustion, insomnia, weakness and even depletion. The investigation also revealed other reasons for leisure organizers causes stress, tension, and malaise at work. One reason is customers. Unpleasant customers who make excessive demands and customers who blame employees for certain things that cause leisure organizers to have bad emotions. When dealing with such customers, leisure organizers experience a variety of emotions, including an-

ger, reluctance to communicate, emotional difficulty, fatigue. Another reason that causes burnout for leisure organizers at work - management. Leisure organizers at work feel underestimated, do not motivations work also after the event or other work, they do not get any feedback connection or encouragement, praise, and sometimes they feel simply ignored. The last reason that causes burnout to workers - an unconventional work schedule. Leisure organizers work an unusual work schedule and this causes them inconvenience as they do not have enough time for rest and time with family. To avoid all the problems caused by the work, the subjects trying to take breaks while working, and to distance oneself after work, that is, trying to forget about work and it not to take home. But one of the main ways leisure organizers choose to avoid negative emotions, fatigue is a favorite activity, but their own leisure activities the nature of their work is determined by the specifics of their work. Leisure organizers choose both passive and active leisure and thus relax.

Conclusions

1. Leisure is an important and integral part of life for everyone is to ensure well-being for oneself, to relax, to rest, to experience pleasant emotions, but leisure competent staff - leisure organizers - are needed for the organization. Leisure time The activities of organizers cover many different areas, requiring quick orientation, teamwork work and ability to take on challenges. One of the most important things for a leisure organizer activities are personal qualities and competencies. 2. Leisure organizers in their activities must constantly communicate with customers, deal conflicts, meet customer expectations, taking into account the capabilities of the organization. Heavy workload, emotional exhaustion that results from constant communication, or other excessive demands in the organization of leisure causes contact with burnout. 3. Leisure organizers experience burnout syndrome when organizing leisure. The most common causes of burnout in the activities of a leisure organizer are organizational: congestion, lack of time, importance of complexity of customer problems, feedback. Burnout not only negatively affects the condition of the leisure organizer, but also negatively affects work results.

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3. CHALLENGES OF MANAGEMENT

THEORETICAL ASPECTS OF SOCIAL MEDIA AND RURAL BUSINESS

Bidemi Yemi Bakare, Rasa Pranskuniene

Vytautas Magnus University, Lithuania

Annotation

The paper seeks to discuss theoretical aspects of social media and rural business. Thus, this theoretical discussion explores the theoretical insights on: the meaning of rural, the meaning of business, the meaning of rural business, the meaning of social media, social media marketing as the tool for promotion. The analysis of social media as the tool to promote rural business raised the following questions: do rural businesses require social media to promote their businesses? Do rural business owners have the knowledge know-how to utilize social media as a marketing tool to an optimal result achievement for their business? Are social media platform i.e. YouTube, Facebook, Instagram, Twitter, Snapchat fit-to use for rural inhabitants based on information technology (IT) as a result of the high level of illiteracy? Are rural inhabitants ready to follow the modern-day era trend of using social media as a form of advertisement for their rural business? (Behavioral vs Psychological factors)? Can rural business owner bear the cost of running a social media ad or challenge their rival in urban areas that has huge financial resources to sponsor their business page clicks and profile visit via social advertisement daily? Is it cost-effective in the long run? All mentioned questions above are the main objectives that arose when considering how effective social media advertisement are for the promotion and awareness of rural business. Another argument arises again, is it sustainable? Since sustainability talks about not only now but past and future, which brings the concern about the rural business owner not finding social media advertisement efficient from an expenditure point of view for small scale rural business owners.

Key words: rural, business, rural business, social media, social media marketing, social media tool for promotion.

Introduction

Social media as a tool plays a significant role in rural business, often it is said that marketing in rural society is quite challenging and neither is marketing in an urban society easy. The difference between an expert marketer is the technique of how to market and sale a product or service to strangers (buyers). Although, it’s arguable that, rural marketing can be quite challeng-

ing and tough to handle when compared to an urban marketing, reason is that target audience (population of buyers) are quite low in a rural environment. It’s of no doubt that social media is often a misconception as a platform meant for the millennial generation, reason of such generalization is because the younger generations can adapt to the use of technology without facing huge difficulties compared to the seniors. In an era of modernday television (Smart Tv, Smart Phones). The new generation spends more times on their smartphones or the use of smart tv to surf the internet or connect to their video gamers online friends to socialize is now in trend with the millennial generation. Pressly (2021) notices, that generation Z, referred to as Gen-Z or Gen-Zers, has a unique relationship with social media and the internet. The same author arques that the Pew Research Center defines Generation Z as anyone born in 1997 onward (Dimock, 2021), though there is disagreement as to what ages technically constitute the title “Gen-Z.” Even the oldest members of this generation would have been around seven years old when MySpace and Facebook were created in 2004 and about ten years old when the first iPhone was launched in 2007 (McFadden, 2020, Pressly, 2021). For this logic reason, is the main reason behind such generalization that that younger generations are likely to spend most of their daily free time surfing the social media landmark with the use of their phones and when at work or at school with the use of their computer as compared to the older generation spending most of their free time on magazines or newspaper. Yet, social media is used and can be of use by people of different generations, even though it’s more common among the younger generation, it is also common in older generations mostly from first world country, due to the ease of accessibility to rural infrastructure in their environment and due to the differences in prioritizing problems faced by seniors in a first world or developed nations to that of a developing or under-developing nation.

Seeking to discuss theoretical aspects of social media and rural business, the theoretical discussion explores the theoretical insights on: the meaning of rural, the meaning of business, the meaning of rural business, the meaning of social media, social media marketing as the tool for promotion. The analysis of social media as the tool to promote rural business raised the following questions: do rural businesses require social media to promote their businesses? do rural business owners have the knowledge know-how to utilize social media as a marketing tool to an optimal result achievement

for their business? are social media platform i.e. YouTube, Facebook, Instagram, Twitter, Snapchat fit-to use for rural inhabitants based on information technology (IT) as a result of the high level of illiteracy? are rural inhabitants ready to follow the modern-day era trend of using social media as a form of advertisement for their rural business? (Behavioral vs Psychological factors)? can rural business owner bear the cost of running a social media ad or challenge their rival in urban areas that has huge financial resources to sponsor their business page clicks and profile visit via social advertisement daily? Is it cost-effective in the long run? All mentioned questions above are the main objectives that arose when considering how effective social media advertisement are for the promotion and awareness of rural business. Thus, theoretically discussing the meaning of rural, the meaning of business, the meaning of rural business, the meaning of social media, we could discuss the social media marketing as the tool for promotion.

The meaning of Rural

The direct opposite of ‘rural’ is ‘urban’, both have something in common towards the Geographical territory of a nation. They both possess the ideology of identifying which part of a Geographical territory an inhabitant is a residence of, ‘rural’ and ‘urban’ are particles that build up a nation. A look back at history, Rural has been related to a different definition: Either as a provider of food and energy to a community or a nation when related to Agricultural activities; or as a retirement environment for the elders to escape the busy lifestyle at the urban territory or a place to enjoy abundant spacious land surrounded by nature for tourism purpose, to enjoy cultural landmark with a purify air to breathe for the visitors. Atkinson (2017) defined Rural as a place that is not urban, the outskirt of a city, and can be identified as country or countryside endowed with different value, mainly associated with agricultural activities. From a sociological perspective, as Beckmann et al. (2021) notice, life in rural areas – or rurality as it is sometimes referred to – is often quite different from that of urban areas. As well, it is important to mention that spatial context influences the entrepreneurial or management context (Korsgaard, Ferguson, et al., 2015; Muñoz and Kimmitt, 2019; Trettin and Welter, 2011; Beckmann et al. (2021). Although understanding a clear meaningful definition of Rural can be quite confusing, according to United States Department of Agriculture Economic Research Service (2019),

vast definitions from researchers and policy officials have implemented different contexts from classifying a rural and urban territory, for this reasons it has led to confusion and unwanted mismatches in program eligibility, but due to different definitions of ‘Rural’, it has led to the reality that rural and urban are multidimensional concepts based on the following criteria; population density, geographic isolation. The question arises, if small population size is being used to identify a rural territory, then how small is rural? Often, it’s said that from 2500 up to 50,000 is the population thresholds numbers used to identify rural communities. Which leaves the argument of such claim to be biased, in the case of using such data to classify a rural area for a country less than hundreds of thousands in population i.e. Saint Kitts & Nevis with a population of 53,199 in thousands or Gibraltar with a population of 33,691 in thousands, or Liechtenstein a nation part of European Economic Area (EEA) with a population of 38,128 in thousands, all population data are recent until 2020 according to (Worldometers.infor, 2020), although such data can be quite useful for a country with a large number of population i.e. Nigeria with a population of 206,139,589 in millions of United States of America with a population of 331,002,651 in millions or China with a population of 1,439,323,776 in billions, all population data are recent until 2020 according to (Worldometers.infor, 2020).

In some countries like the United States of America as a good case study, it’s complex to identify inhabitants residing in rural or urban areas because many inhabitants are mostly living in areas that are not predefined as rural nor urban. Therefore, if qualitative and quantitative research isn’t conducted by expertise, the context of rural areas can be wrongful defined and the consequence of such a defined context would have a significant consequence on WHO and WHAT is considered ‘RURAL’, (United States Department of Agriculture Economic Research Service, 2019).

Arguably, the problems in Rural areas from an underdeveloped or developing nations or third world countries shouldn’t be compared to a developed or first world countries, the wants and needs from rural communities by its inhabitants is quite demanding, challenging and complicated to that of a rural communities in a first world countries that have a working system, but it’s undeniable they often have common problems and challenges, because rural areas and their inhabitants are often abandoned or neglected.

The meaning of Business

Globalization has helped enhance the effectiveness of the business in the 21st century. Thanks to Globalization which has made limitation, trade barrier, the embargo has seen a drastic change in a positive outlook in the business world with the help of World Trade Organization (WTO) as a global trade institution for nations. For instance, countries being a member of the Free Trade Association benefit more from a home base point of view to supply their Free Trade Association members products and services without barrier. A good example is the European Union members, wherein each member state can trade freely without custom barriers with other member states, it’s a good example of the effectiveness of Globalization towards business in our modern-day.

According to European Centre for International Political Economy (2018), from 1980 to 2010, global trade had rapid growth during this period of globalization. The increase in business expansion via Foreign Direct Investments (FDI) was huge as it multiplied, all these remarks have a positive impact on small-scale and large-scale business. Although critics have questions about different government’s economic policy, therefore causing negative remarks on Globalization. For instance, critics believe globalization is the main cause of the 2010 global financial crisis, whereby it started from the United States and widespread around the world, caused by the fact that many nations are interdependence on each other for survival and international liberalization on a wide range of markets. ‘Globalization is a reality of the contemporary world, having interconnected repercussions at all levels of human activity – economic, pollical, social, cultural, scientific, technological, and ecological (Tuca, 2014).

Furthermore, a definition of a business in this modern era wouldn’t be precise without the inclusion of globalization. Well, it’s arguable that no business in the 21st century can survive without globalization because all nation’s economic policy is tied to globalization. Therefore, Business can be defined as economic engagement, wherein supply and demand create their presence in the market for goods and services to meet inhabitant’s needs and wants, whereby suppliers and customers have been able to cross-border with the effect of globalization, to create more profit and wealth opportunity. Business has created more opportunities for rural inhabitants by providing them with a sustainable household income, although the ques-

tion lies in rural inhabitants not being able to achieve optimal success or unable to compete at global stage. For this reason, down the line in my thesis I shall expatiate more in challenges faced by rural inhabitants in their rural business.

The meaning of Rural Business

‘Rural’ and ‘Business’ definition and explanatory note have been segmented into two-part above, this gives easier direction, better knowledge and broad knowledge to understand or have an idea of what rural business stands for when combined ‘Rural’ and ‘Business’ together. A look back at the old paradigm of rural development, it highlights that one of the main or common activities of the rural business is mainly agriculture activities. To counterattack this view with the new paradigm of rural development which is based on ‘Multifunctionality’, it highlights that rural development shouldn’t be based on just agricultural activities for rural business but should be based on other broad rural business activities, i.e. rural tourism, creating area based profile of rural communities to observe the potential each rural communities possess and should entail added value through sustainability. In other explanation, the old paradigm of rural development is a good reference to the agrarian society because agriculture activities were the main source of rural inhabitants livelihood for their household then, while new paradigm of rural development is a good reference of Industrialism whereas technology has evolved around the development of other business activities in rural communities, i.e. Social media as a marketing platform to showcase rural tourism to the outside world. Therefore, the rural business can be defined as business enterprises of a rural locality, that is not close to urban or metropolitan areas, which activities consist of agricultural and non-agricultural business activities which contributes to the local economy revenue and also a form of employment creation in its locality and often enhancing the social life of inhabitants in that locality as well as creating popularity for that locality products and services to the outside world, herein brings attention and awareness to that rural locality when they have strong potential rural tourism activities going on for them.

Features of Rural business are: 1) Size: Often rural businesses are small scale business when compared to urban businesses.

2) Competitive Environment: Often most rural business can’t compete with urban business because they don’t have the competitive advantage capability to do so. 3) Inadequate resources: Rural business owners often don’t have enough resources to make their business flourish, i.e. Financial resources, Human resources etc. 4) Restraint to information: Rural communities in Nigeria as a case example doesn’t have an enabling environment for accessibility to important information that can benefit their rural business, often no access to internet limiting their chance to create social media marketing to elevate the betterment of their business activities by targeting a wider audience or even accessibility to an electrical power supply to power their TV for news, and in most cases, the TV signal in Nigeria rural communities are very weak. 5) High operation cost: Rural communities in Nigeria as a case example often rely on family members living in an urban area, to generate funds to set up their rural business, i.e. the roads in rural communities aren’t motorable, rural business owner have to create electricity themselves by purchasing electricity generator to power their business activities, in most cases, they have to create a ‘Borehole’ for the creation of water supply to their business activities since they can’t have accessibility to water from the Nigeria government. 6) Rural business is attributed to loyal customers always returning to buy from their seller. Even though their loyal customer can outsource goods and services at a cheaper rate somewhere else.

The meaning of Social Media

Today’s generation is not shocked by the term ‘Social Media’, however, in some part of a segregated or not inclusive society from the outside world might be flabbergasted by the term ‘Social Media’. The definition of social media has been defined as a millennial era form of new media for interaction, engagement and participation of people and business entities. According to Manning (2014), media, in general, has been developed and so far, can be broken down into old and new paradigm based on different ages. The Broadcasting age and Interacting age. He said, during broadcasting age known to be the old paradigm of media, media was centralized based on

one entity, i.e. radio or television station, magazine or newspaper company, or a movie production studio can and has the resources to use their media channel to share messages to the masses. A characteristic of this type of media is that feedback to media outlets are not direct, often slow and impersonal. However, the meditated communication that occurs with individuals and the media owners happens on a very low level, through the communication channel of letter posting, land-line calls.

According to Manning (2014), due to innovative technologies, interacting on a large level was quick, more effective, and easier for individuals when compared to the broadcasting age, which explains the reason why the new paradigm of media is known to be more interactive. The new media age core value was based on interaction as its functionality, for instance, a person could speak to many new media interactive outlets and receive quick feedback, also people and customers often have their voice blocked through broadcasting media, in fact broadcasting media outlets have created an online streaming platform on interactive media platforms for their audience and that sum it all up. However, with the interactive media age, consumers opinions matter a lot to business through reviews, comments and rating at a very low cost. Technology has eliminated the huge cost that comes with media outlet ownership and maintenance for establishment when compared to the broadcasting media age. New interactive media outlets have opened the opportunity for those in an urban and rural area of a nation to have the chance of obtaining information from several sources and to involve in the process of conversation with the respective stakeholders without location or time or cost factors barriers through the social media platform the information was uploaded on.

According to Pew Research Center (2019), using the United State of America as an example, seven out of ten Americans connect with one another, interact with the news feeds that pop up on their social media page, and use social media as a form of entertainment. However, the main reason of referring to the research carried out by (Pew Research Center, 2019), is to observe the rates the American seniors adaptation to the use of social media from 2005 till present has grown rapidly, in fact at 2011, the use of social media by American adult has risen to half of the country’s population, and in present date, 72% of its public is known to use a form or a type of social media (See chart 1 below).

% of U. S. Adults using social media

100%

80%

60%

40%

20%

0%

2005-03-21 U. S. Adults social media usage age group

2006-03-21 2007-03-21 2008-03-21 2009-03-21 2010-03-21 2011-03-21 2012-03-21 2013-03-21 2014-03-21 2015-03-21 2016-03-21

U. S. adult age group

18–29 30–49 50–64 65+

2017-03-21 2018-03-21

Figure 1. U.S. Adults social media usage in % from 2005 – 2018. Source: (Pew Research Center, 2019. Social media Use overtime).

Although it’s of no doubt that, there is still a huge gap between the use of social media in different adult age group in America, for instance from the start of the research year in 2005, those in the adult age group from 18-29 were able to adapt social media early which has skyrocketed until the end of the research period in 2018 when compared to those in the late adult age group 50-64 and 65+ but still there is a huge gap between those in the second phase of early adult age 30-49, and those in the beginning stage of late adult age 50-64 and those in the later stage of adult age 65+, this differences in the facts provided by Pew Research Center, (2019) is important to the conception why it’s arguable said that social media is meant for the millennials than the seniors, although this conception can change in the later future because the younger generation now are the future of tomorrow.

However, the trend in the usage of social media by the seniors in the near generation in future shall see a big increase, because the young generation of these millennial are the future of the tomorrow, which sees the likes of the young generation now, finding it adaptable for the use of social media when they get older due to the availability and accessibility to social media platforms from their younger ages compared the older generation of

now who had no access to social media during their younger age, the Era of Agrarian to Industrialization has evolved information technology to a different level, through innovation technology.

Notwithstanding, since it’s often said that social media is mainly for the young generations from the millennial era, does that means the seniors should be abandoned? According to a marketing associate (Yeung, 2019) at Synthesio, an Independent Research Firm for social listening tools and audience insights, said that even though it’s logical that people think social media is at every each corner of the globe but in reality that might not be the case. We should question the impact of social media in the lives of the seniors, if it varies from nation to nation if seniors are easily targeted and reach on the social media landmark today by businesses or government? Another Statistics by World Health Organization (2018), based on ageing and health, by 2020 the seniors from 60+ years will outnumber children below the age of 5 years and when compared to before, people are expected to live above their 60s and above. Which means the future for the older generation is bright, this could be the fact that technology, in general, will be a driving force for the increase in life expectancy for the future seniors when they get older, being that they could be self-independent with the use of social media technology to entertain themselves, access good health assistance, run and manage their business activities better than the seniors of now with the use of social media technology etc. through SMART Technology.

The core characteristics of social media. Social media evolves around digitalization, which could be stationed or mobile. Although not all digital is restricted to be social media. The following attributes to social media are: It gives room for the participation channel and due to its participatory advancement, there is an involvement of interaction in social media. For example, such interactive method can be created among friends and family, or strangers with who have similar interests and views about a certain topic or friends of friend’s circle.

Lastly, in an overview of social media characteristics, it can be based on primary entertainment for socializing or match-making connections, and for other reasons, it could be based on career or professionalism businesswise purpose.

Social media as a new trend of a marketing tool for businesses

The analysis of social media as the tool to promote rural business raised the following question to ask oneself:

A) Do rural businesses require social media to promote their businesses?

B) Do rural business owners have the knowledge know-how to utilize social media as a marketing tool to an optimal result achievement for their business?

C) Are social media platform i.e. YouTube, Facebook, Instagram, Twitter, Snapchat fit-to use for rural inhabitants based on information technology (IT) as a result of the high level of illiteracy?

D) Are rural inhabitants ready to follow the modern-day era trend of using social media as a form of advertisement for their rural business? (Behavioral vs Psychological factors).

E) Can rural business owner bear the cost of running a social media ad or challenge their rival in urban areas that has huge financial resources to sponsor their business page clicks and profile visit via social advertisement daily? Is it cost-effective in the long run?

All five questions above are the main objectives that arose when considering how effective social media advertisement are for the promotion and awareness of rural business. Another argument arises again, is it sustainable? Since sustainability talks about not only now but past and future, which brings the concern about the rural business owner not finding social media advertisement efficient from an expenditure point of view for small scale rural business owners.

Social Media can be defined as a technology innovation-based driven platform that connects people irrespective of the distance for a different purpose, i.e. social friendship, information outlet, business platform, and among the rest social marketing.

According to Dahnil et al. (2014), small-medium enterprises (SMEs) is known to be an important element in boosting the economic, development and employment growth of a nation, while this can be agreed to some certain extent, it’s arguable it’s not the scenario in third world countries. Dahnil et al. (2014) notice, that further stressed that SMEs, often come across the challenges of embracing new technology to their business value chain. It’s no doubt that small scale rural business owner isn’t left behind in such a scenario, due

to the high level of illiteracy in rural areas. Moreover, the writers emphasized the fact that nowadays conduction of businesses and communication channel has been revolutionized due to internet presence by the people (Young Generation). Also, the vast amount of businesses are leveraging the use of social media and other electronic media in reaching their marketing niche goals, although this doesn’t change the fact that rural inhabitants are used to the traditional way of running their rural business, i.e. relying on local market open day or word of mouth or going travelling around with a motorable van to sell their product and services. Another question for thoughts? If rural population is a big challenge in most rural communities around the globe since it is often common that most rural youths relocate to urban areas as soon as they finish secondary or high school education so they can seek the opportunity to attain entrance to university education since university education are often outside rural regions, it then proves that majority of the inhabitants are the senior citizens, whom barely have enough education to fit-use social media as a marketing tool to enhance their rural business, it’s of no doubt that in rural areas the senior or elder citizens often reject the offer of internet banking, as they prefer the traditional way of withdrawing or making deposit of cash into their bank account at the bank office since most of them don’t use or know how to use a smartphone, nor do they have internet connectivity within their household because they can’t afford it, this argument leaves us with loopholes questions, how do we make internet accessible for rural inhabitants? How do we train or enlighten rural inhabitants to see the value of social media marketing to support their small-scale businesses and target the outside world rather than relying on local-based target customers?

Conclusions

To conclude the theoretical analysis, the following objects: rural, business, rural business, Social media, Social media marketing as the tool for Promotion, literature analysis has enlightened and deepen the knowledge about the thesis topic. Exploration of each object has proven the following: • Rural still faces the stigma to be known for the high level of illiteracy inhabitants. • The business has evolved due to globalization. • The rural business still faces the stigma to be known for just agricultural activities.

• Social media is a landscape of its own. • Social media marketing as the tool for Promotion is a strategic digital marketing activity on social media platforms that can promote any type of business activities.

Since sustainability talks about not only now but past and future, which brings the concern about the rural business owner not finding social media advertisement efficient from an expenditure point of view for small scale rural business owners.

Bibliography

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BUSINESSES WITHIN GLOBAL PANDEMIC AND LOCKDOWN: LITHUANIAN COMPANIES’ PERSPECTIVE

Airida Gotovtė, Tomas Butvilas, Deimantė Žilinskienė

Vilnius Business College (Lithuania), Kazimieras Simonavičius University (Lithuania), Kazimieras Simonavičius University (Lithuania)

Annotation

This publication analyses the situation of businesses in the context of global pandemics. The aim is to discuss the potential impact, the readiness of companies and solutions. Business is an integral part of everyday human life, facing risks and challenges daily, and in rare cases, such as pandemics and quarantine. Therefore, it is necessary for companies to have a contingency plan in place to deal with unexpected or expected challenges, i.e., what activities it would be possible to reorient to, how to perform activities by working remotely, etc.

Business is important not only for the business units themselves or for the residents of the country, but it is also the foundation of the entire state economy. Both the public sector and the private sector are closely interlinked. And every new environmental factor, be it state regulation, technological development, or the changing needs of humanity, and in this case, pandemic, and quarantine, affects business in one way or another and leads to the success of some, the failure of others. At present, the coronavirus Covid-19, which is spreading all over the world, and the quarantine introduced in many countries are of great importance to business. This pandemic is considered one of the strongest in the last century, but, as well, the SARS outbreak was considered a major and unexpected blow. Today’s situation allows us to look back and look at previous global pandemics, to analyze what developments in business have taken place in previous years. This paper also presents a small-scale qualitative research data showing the impact to different types of businesses in Lithuania.

Key words: business, pandemic, quarantine, the lockdown, and the level of impact.

Introduction

Both the public sector and the private sector are closely interlinked. Often, private business also supports the public sector: “<...> In Lithuania, over 90 percent. state and municipal budget revenues consist of tax revenues. The largest part of the national budget revenue consists of value added tax, personal income tax, excise duties” (State Tax Inspectorate under

the Ministry of Finance of the Republic of Lithuania, 2020). Every new environmental factor affects business in one way or another. State regulation, technological development, the changing needs of humanity and many other factors contribute to this. The data show that business plays a particularly important role in the face of pandemics and it is only a matter of time before and what kind of virus can turn into a pandemic (Best Practices, 2020). The current situation allows us to consider and learn how to manage and prepare for a pandemic.

Also, it is possible to mention not only the pandemic and quarantine, but also the economic crisis, the manifestation of which today is influenced by the recent phenomena. And if the whole business environment is influenced by various external environmental factors, then internal factors also contribute to all this, i. y. the extent to which the business itself is flexible to change and able to adapt to a changing environment. Perhaps it is easier for businesses with more experience or experience in dealing with the effects of previous pandemics, economic crises, to overcome emerging challenges, to transform their business in a different direction than usual, and so on. For new businesses, small businesses with less experience, coming today with such threats can be quite a severe blow. However, there will certainly be those who will develop their business, undertake similar but new activities, possibly reshape departments, divisions, undertake additional activities, and so on.

Thus, in order to find out how the business handles the pandemic and quarantine introduced this year, in order to understand the impact of the pandemic and quarantine on small and medium-sized businesses, it was decided to first analyze the scientific literature on this phenomenon and conduct a small scale qualitative research while interviewing the representators of different types of businesses in Lithuania.

The focus of this paper – the level of impact of the pandemic COVID-19 for business sector in Lithuania.

Therefore, the aim of this article is to investigate the impact of pandemic and quarantine on small and medium-sized businesses.

The following theoretical methods were used, such as a) analysis, comparison and interpretation of scientific literature and documents; b) qualitative approach applying structured interview with selected leaders/managers of the companies in Lithuania.

The impact of pandemics for businesses

The current COVID-19 pandemic has led to severe global socioeconomic disruption, the postponement or cancellation of sporting, religious, political and cultural events, and widespread shortages of supplies exacerbated by panic buying (Turner & Akinremi, 2020). In China, a fall in consumption combined with interruptions to production has disrupted global supply chains affecting firms across the world (Fernandes, 2020, cited in: Turner & Akinremi, 2020). Obviously, the spread of COVID-19 has seen economies struck by a simultaneous demand and supply shock, with there being no correlation between economic impact and mortality rates (Fernandes, 2020, cited in: Turner & Akinremi, 2020). The effects of COVID-19 will be felt disproportionately across an economy. Some sectors may benefit financially, while others will suffer huge losses. Those countries with more service-oriented economies will be more negatively affected and suffer larger negative employment effects. The world stock market has also suffered since the outbreak of COVID-19. The oil gas and coal businesses have seen huge losses (50 per cent below the startof-year prices, on average), driven by a fall in the price of oil and a reduction in consumption (Fernandes, 2020, cited in: Turner & Akinremi, 2020).

Armstrong et al. (2003) argue that it is not only necessary but simply vital for a firm to be able to work successfully to monitor and adapt to a changing environment. Due to the inability to adapt to changes in the environment, crises have been experienced by such powerful corporations as IBM and General Motors. Both entrepreneurs and consumers are constantly thinking about what the rapidly changing, evolving environment, consisting of demographic, political and cultural, technological and natural factors, will provide in the future. These are certain macro-environmental forces that also have a direct impact on the micro-environment, which is made up of factors related to a company’s ability to serve consumers (Armstrong, 2003; Gordon, 2020). It is the company itself, suppliers, competitors, and consumers. The collapse of a company can be caused by a crisis related to various environments, notably natural and economic. The latter consists of purchasing power and cost structure. It is important to determine how changes in household income affect purchasing power and how this can become a threat. When there is a decline in purchasing power, say during an economic downturn or a total economic collapse, consumers are more cautious about spending their money while seeking good quality goods and services.

Thus, during the economic downturn, it is most difficult for companies serving low-income consumers, as it is noteworthy that consumers belonging to higher socio-economic groups retain similar purchasing power both during the crisis and during the boom. Their income and spending habits are less dependent on economic fluctuations compared to lower-income consumers (Gordon, 2020).

According to Gordon (2020), the success of any organization can be determined by strategic environmental analysis. It can stop a company from going towards failure, showing those problems for which, the company lacks time and resources. The main areas analyzed are customers, competitors and the company / organization itself. In analyzing these areas, wages in a country and in specific different industries are very important. State policy can contribute to threats to a company. These can be certain limits, orders or laws.

Agha et al. (2020) argue that the current situation of Covid-19 is comparable to the economic situation of World War II. This situation has affected both the healthcare system and all walks of life, affecting businesses and organizations around the world. This pandemic has sparked fears of an impending economic crisis. Affected the financial market and the global economy. Social and travel restrictions have forced a reduction in the workforce in all sectors of the economy. Demand for most goods, excluding medical and food products, declined. There is a demand for food due to human panic that food may be lost, and stocks need to be built up. The agricultural sector has proved sufficiently resilient to the effects of this pandemic, but still, agricultural commodity prices have fallen by 20%. due to global demand for hotels and restaurants. Russia’s refusal to cut oil production has led to Saudi Arabia making extraordinary concessions, and therefore the threat of consuming more raw materials (Agha et al., 2020).

All of this predicts an oil price war over an outbreak of a virus that is dampening demand for oil, which will have serious consequences for the world economy. While cheap oil could be an advantage, the fuel cost savings are unlikely to be channeled into higher costs due to social exclusion. In the face of this pandemic, problems in business due to supply chain disruption (Agha et al., 2020; Gordon, 2020; Turner & Akinremi, 2020). From a socio-economic point of view, the pandemic has had an impact on the education system, from several factors to school closures. Consequences

include a lack of free meals for children from low-income families, as well as a lack of technology, computers that cannot ensure a smooth digital education, and a shortage of school leavers. This has affected not only students but also those pursuing undergraduate or postgraduate studies. Study institutions have been closed, various researches have been suspended or terminated, research laboratories have been closed, scientific conferences have been canceled or postponed.

As a direct consequence of Covid-19 and perhaps the most affected are the tourism industry, aviation, travel, hotels (Turner & Akinremi, 2020). The World Travel and Tourism Council has announced that there are 50 million people at high risk. jobs in the global travel and tourism sector.

According to Chung (2015), pandemics have a very significant economic impact on airports. 2003 the airport business was directly affected by SARS. It was a devastating effect when flights were canceled, and passenger traffic fell. Although conventional economic data was not used to measure airport business performance, it was passenger traffic that was a good indicator as it is proportionate to the financial performance of airports. The WHO indicated that air travel is the main reason why local outbreaks have escalated into pandemics. In 2003, the coronavirus SARS particularly affected airports and flights, in contrast to 2006 avian influenza or 2009 swine flu pandemic, as the WHO has not issued travel recommendations for these. During virus outbreaks, airports adopted some control measures after analyzing their effectiveness in controlling diseases, but at that time the economic impact on airports had not yet been quantified (WHO, 2020; Shah & Shah, 2020).

Gossling, Hall & Scott (2020) agree with the authors that Covid-19 caused the greatest global economic disruption since WW the 2nd. These include global travel restrictions, international travel friendships that affect more than 90% of the world’s population, and other factors. This crisis later took hold on an international scale, with the closure of national borders and the introduction of quarantine (Shah & Shah, 2020). This virus has disrupted the tourism chain around the world. There is already a false global belief that tourism will recover as it has in previous events affecting tourism, but there are several indications that the consequences of Covid-19 will be more severe and transformative. Unlike some other sectors, tourism will not be able to recover lost income. Earlier trips cannot be completed later. The current year will be lost. For the period 2000-2015, the tourism sector has been affected

by factors such as terrorist attacks (2001), SARS (2003), the global economic crisis (2008-2009), MERS (2015). However, the authors say, “there is ample evidence that the effects and recovery of Covid-19 will be unprecedented” (Turner & Akinremi, 2020, pp. 49). Rapidly growing world population, urbanization trends, other global changes may lead to a growing number of pandemics. 20th century known pandemics, such as - „Spanish“ flu (1918-1919), „Asian flu“ (1957), „Hong Kong“ flu (1968). XXI a. known pandemics – SARS (2003), Avian Influenza (2009), MERS (2012), Ebola (2013-2014).

The meaning of pandemics for businesses in Lithuania

Organizing the research and application of the methods

A qualitative study was used to conduct the study. In order to reveal the impact of the pandemic Covid-19 and quarantine on small and mediumsized businesses in Lithuania, a written interview survey was conducted in 2020 through 7 to 21 of May. The founders and managers of business in Lithuania were chosen as participants of the empirical research. In order to diversify businesses, informants have been selected who carry out both individual activities and acting as a company. In order to reveal the topic of this work, the widest possible range of business activities was chosen: beauty salons, private kindergartens and other educational centers, sound recording and music publishing services, electronics engineering and programming, emarketing and social networks, communications, interior design services, the film and film industry.

In total 10 informants were interviewed. None of the informants interviewed declined to participate in the interview. The rules of the interviews were discussed with the informants participating in the study, who were asked to allocate about 50 to 75 minutes.

The limitation of the research. The possibility of communicating by phone call was considered, but an interview without eye contact has become rather closed interview when we do not feel the relation and try to judge the answers on a mood that is decided only by the tone of voice.

Data analysis

The aim of this following research was to find out the informants‘ views on how pandemics and quarantine affected the financial situation or, conversely, the company‘s prosperity.

A. The impact on the finances

Most of the study participants have noticed that the impact of pandemics and quarantine on business in Lithuania has a more negative connotation. According to them, these phenomena have a particularly negative impact on those companies that are not flexible and unable to respond quickly to changes in the market. Pandemics and quarantine “destroy rigid companies that are unable to respond quickly” (informant D1). Also, companies that may be stuck or shut down due to a pandemic and quarantine may be adversely affected, e.g. supply of goods between countries, lack of workers in the construction sector, if it employed workers who came to Lithuania to work from other countries. Pandemic and the lockdown can be a disaster for young companies that are not yet established and for those whose business is business, because “when one business stops, another business stops as well…” (informant D3). They cannot get the products they need to survive and for further development. Research participants argue that business and the consumer are closely related and directly influence each other. “People cannot or cannot buy goods and services, which means that businesses lose a lot of income, which leads to lower wages and redundancies” (informant D8). One of the participants in the study (informant D6) emphasized that “the situation caused by the Covid-19 pandemic directly and very strongly affected our business – we’ve lost the basic income”. One participant in the study also shared his negative experience that the company’s sales had dropped as much as threefold. However, there are also observations that in some cases, more than a pandemic and quarantine, people are more frightened. They panic, stop buying, but when the first wave of panic subsides, everything usually goes back to the beginning and people start buying again.

B. Influence on company prosperity

The success of a company in the face of pandemics and quarantine is influenced by the company’s creativity and flexibility, quick thinking, ability to notice what is happening around as early as possible. The company’s areas of activity can contribute to the company’s success if it is directly related to services and products that meet the needs of consumers during a pandemic and quarantine. All participants in the study noted that not only do they survive, but also thrive on those businesses that are vital to people at

any stage of their lives, e.g. grocery stores, pharmacies, courier services, etc. “However, I believe that the weight of these businesses is not sufficient to significantly outweigh the totality of those who will lose income” (informant D5).

Two of the study participants note that their job profile is digital communication, marketing and working with soc. networks gained even more momentum than before today’s pandemic and quarantine. However, it is also noticeable that “advertising orders of Lithuanian companies stopped, but this area of business with foreign countries flourished” (informant D10).

C. Manifestations of the financial crisis for personal business and measures to stop it

Most of the participants in the study lost their finances and faced the first manifestations of the crisis precisely this year when the world was hit by the coronavirus pandemic Covid-19. One of the businesses has experienced financial difficulties in the past, when the company bought new premises and had to make very strong savings, which affected the company’s internal microclimate, i. e. had to give up company events as well as gifts to customers. One of the participants in the study had a crisis in 2008-2009, when all his business activities stopped, and today, in the face of pandemics and quarantine, only those activities that cannot be carried out remotely have stopped, so everything else has moved to virtual space, so it’s not so scary, as in previous years. This could mean that the further away, the more crises related to pandemics and quarantine could become weaker, as things are constantly moving forward, moving to the online space.

Many businesses can transform their physical activities into virtual ones. One of the financial crises that has moved to the online space in the future could be related to the online space, illegal intrusions into it. Also, companies can defer part of the company’s revenue in preparation for similar situations. Some businesspeople believe that they have not experienced financial difficulties or crises precisely because they take the view that part of a company’s income needs to be set aside in preparation for a difficult time that may strike at any time. Such businesses could be called far-sighted, able to look a little further into the future than the present, which can lead to a company’s success or essential stability, protection from a financial crisis in the face of disasters such as pandemics and quarantine.

D. Measures taken to protect business during the pandemics and quarantine

Not all business leaders have taken steps to protect their business during pandemics and quarantine. Some businesses continued to operate on an ongoing basis. However, it was thought that it was during this year’s coronavirus pandemic Covid-19 and quarantine that additional business advertising opportunities began to be thought of as a protection and a decisive step in remaining competitive in this difficult time. At the same time, it could be one of the measures that could help protect businesses during other pandemics and quarantine. “So far, I have not taken any unusual actions to protect the business, because there are unfinished works, but after they are finished, all that remains is to wait for a difficult time or to advertise more” (informant D2).

Looking to the future, without denying the possibility of finding other pandemics, as well as being constrained by quarantine, it is vital to look directly at the ever-evolving world of information technology and move forward with it. With the rapid transition of everything to the virtual environment, some informants shared their current experience of undertaking absolute innovation – working remotely, and at the same time with the same aspiration and even the need to improve in the rapidly evolving 21st century. “We apply cyberspace tools and improve our skills to use them” (informant D1). “We offered our services to our customers remotely” (informant D8).

Some businesses tried to transform the business in order to protect themselves, while not moving away from their core business. Beauty service providers have taken the opportunity to sell the beauty products they use to provide their services. “We carry out minimal online sales for beauty needs” (informant D4). Some business owners have taken the opportunity to protect their businesses with government support. “The most important thing is to keep customers and employees with the support of the state. All agreements are made on a collaborative basis with both employees and customers” (informant D6). Companies that are unable to benefit from state support have opted for a reduction in employee compensation and a focus on online sales as a safeguard. “We used several opportunities to protect our business - a temporary reduction in salaries and a focus on our e-commerce” (informant D7).

Therefore, summarizing this research data, it can be stated that the impact of the Covid-19 pandemic and quarantine on small and medium-sized

businesses in Lithuania is rather diverse: relatively new businesses were involved in the study, Covid-19 was the first case of pandemic and quarantine for them, but allowed for a broader look at the study, i.e. to see the potential impact of other pandemics and quarantine on business when assessing today’s experience. Pandemic and quarantine give a negative connotation to most businesses, but certainly not to everyone. If we talk about those businesses that are not or less affected by the pandemic and quarantine, it would be businesses that typically work remotely. Also, these would be those businesses that, in the face of success today, are thinking about the future.

On one hand, it is easier for a business that is established not only in Lithuania, because the activity can be carried out if not in the homeland, but abroad. On the other hand, if the business is conducted in Lithuania and suppliers in another country and borders are closed, as in the case of pandemic Covid-19, then the business stops in Lithuania as well. In this case, it is easier for those who have enough domestic production for both production and sale of goods or services. Noting all the services are thriving these days. It is in the services sector that the most difficult and biggest challenge lies in the one that provides non-essential services. However, if it is a business that provides a service without which society would have a hard time doing so, it can lead to success. There may be an increased workload for a business area, and with it an increase in revenue.

The review of the experiences of the participants in this empirical study, in the face of Covid-19 and quarantine, shows that the most difficult for the beauty services sector, which has no opportunity to work – to provide services and the only possible way - is to reorient to beauty sales, which is not easy. It is difficult for the education sector, but it has also opened new perspectives: the possibility of completing education remotely, not only during the current pandemic and quarantine, but also in the future, possibly in a recurring situation. however, seeks the educational process remotely. It is noteworthy that it is easier for those businesses that can adapt quickly to a rapidly changing environment and more difficult for those that are unable to adapt at all.

Conclusions

The pandemics of the previous year and this year‘s pandemic Covid-19 are closely interlinked. Pandemics are necessary to control pandemics, but it has a strong impact on business, disrupts different business chains, and Covid-19 is seen as an unprecedented event whose economic situation is comparable to that of the WW the 2nd. The biggest negative significance for Covid-19 and quarantine was in the tourism sector.

Pandemic and the lockdown have had little or no impact on businesses operating remotely. There is an increased demand for essential goods, the need to accumulate food, medicines and other stocks, therefore the flourishing of grocery stores, pharmacies and courier services is visible. The biggest negative impact was observed in the supermarkets, the beauty services sector, for which it is not possible to provide services remotely.

On the other hand, the lockdown has opened new opportunities for the education sector. The possibility of transferring education to a virtual space has been discovered, which saves not only during quarantine, but will also rescue the student in case of illness, when there is no need to interrupt education and it can be continued remotely.

Businesses, in order to protect themselves from current and future pandemics, should monitor events, plan and budget, have a plan of what activities they can reorient in individual cases, and improve the flexibility of their technological and teleworking.

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SIGNIFICANCE OF AIRPORT BRANDING ELEMENTS: A PASSENGER’S PERSPECTIVE

Konstantinos Kalligiannis, Deimantė Žilinskienė

Kazimieras Simonavičius University (Lithuania), Kazimieras Simonavičius University (Lithuania)

Annotation

The purpose of this research is to identify the significance that passengers place for different airport brand elements and identify the airports with the most powerful brands. This will be achieved by both a literature review that will set the academic background of this research as well as using industry best practices. An online survey will also be employed in order to reach an international air passengers’ audience and identify whether any continent effects result in similar geographical perceptions in the respondents’ answers in terms of airport branding choices ranking.

The research findings are also expected to suggest airports the relative importance that they should place in their airports’ respective brands and guide any potential rebranding strategies that may be needed according to the each airport’s passengers- source markets as well as any branding elements’ adaptations that may be required at the post-Covid19 aviation market.

Although much research has been carried out for airlines’ brands, not much research has been carried out for airports’ brands. Taking also into consideration the airport privatization trend that took place over the last decade and the structural aviation industry changes that are currently taking place because of Covid-19, the findings from this research are expected to provide a contemporary view on the significance that passengers place in airports’ brand elements.

Key words: Airport Branding, Airport Marketing, Airport Strategy

Introduction

In previous research, Kefalonitis and Kalligiannis (2018) have identified an airport’s brand role and characteristics. However, these characteristics were neither investigated into depth neither their respective significance were identified. Holmes (2018) has argued that creating the right brand for an airport, it can help to better meet the needs of its: 1) Customers; 2) Passengers; 3) Stakeholders and 4) Local community. Moreover, he continued by arguing that “a brand that aligns an airport’s commercial future with pas-

senger needs becomes far more important than simply designing a new logo for the terminal fascia. It becomes a strategic business decision, an opportunity to refocus the customer experience in light of commercial and cultural change” (Holmes, 2018). For the purposes of this research, the will only aim to identify what brand elements are valued by air passengers in order to provide guidance to airports of how to align better their airport brands to their respective passengers. The importance of the other 3 identified groups (customers, stakeholders and local communities) is not ignored but for reasons of simplicity will be investigated into separate future studies.

Masjutina (2016) has argued that “modern airports have become destinations in their own right recognizing that the new reality is determined by social changes and technological evolution” reinforcing the magnitude of: 1) Technological airport innovation and airport digitalization solutions; and 2) Post-Covid19 social changes effects.

This argument is supporting the view that airport brands need to be investigated with a contemporary view taking into consideration technological innovation at airports as well as the new industry landscape and passengers’ mind sets for airports as evolved after the Covid19 crisis. It could be expected that the same study may have resulted into different findings if carried out before this major crisis that have led into structural changes in the aviation industry. The same factors would also need to be taken into consideration if the other 3 major identified groups (customers, stakeholders and local communities) are to be investigated in relation to airport brands in the future.

Methods: Literature analysis, Survey, Statistical Data Analysis.

Literature Review

In this section, the main branding and marketing theories that would be employed for this research will be presented. The first branding concept that will be introduced is brand image, defined as: “the way in which certain groups perceive a brand – the way in which they decode all the signals emanating from the products, services and communication of the brand” (Kapferer, 1997), which is created by the values associated with each brand. The application of this definition in the airport sector could denote that it is the airport’s infrastructure (products), the airport’s services (level of quality of

service and efficiency) as well as the corporate communications of the airport operator that result in its brand image. For the purposes of this study the focus will only be on the infrastructure and services elements for reasons of simplicity, and the airport communications will be analyzed in a dedicated and in- depth future study. The decision of concentrating in only the airport infrastructure and service elements is also supported by Marcellin (2018) who argued that: “An airport that concentrates on the physical environment and services within the airport will enjoy greater levels of positive brand recognition and in any rebranding project, the passenger journey and experience is just as important as the brand”.

Knemeyer (2004) has defined brand values (or brand associations) as “the desired set of experiences or associations a brand wants customers to make with its products, services or identity” (p. 1). Therefore, the selection of the most appropriate brand values (brand associations) is the first and most curial step that airports need to take in order to establish a strong brand. Keller (2012) has argued that it is the unique associations that help consumers choose a brand and choose favorable and unique associations to strongly link to the brand, by analyzing consumers and competition in order to determine the best brand positioning. Therefore, according to this view it is important to analyze an airport’s brand values in relation to consumers’ perceptions of their relative importance as well as what the brand values of other competing airports. Therefore, generic airport products and services categories can be employed in order to measure the respective evaluation scores that passengers attribute to competing airports. It is also important to select a sample of similar type and category of airports that would enable sample respondents to compare airports in the same categories since it would be of little academic or industry value to compare airports with different business models (e.g. large hub and low-cost secondary airports).

Keller (2012) has also argued that Brand positioning requires the establishment of points-of-parity and points-of-difference to establish the right brand identity and brand image. He explained that unique, meaningful points-of-difference (PODs) result in a competitive advantage and the “reason why” consumers should select the respective brand. In other words, they are the unique associations (brand values) that are not shared with competing airports and which make the specific airport brand unique. On the other hand, brand associations also shared by competing brands, form

the points-of-parity (POPs) in consumers’ minds and are aimed of negating potential points-of-difference for competitors. For the purposes of this research, the brand associations analysis will be focused on the points-ofparity and measure their relative strength for each airport under investigation. As the initial research on this subject, it has been decided that it would make more sense to analyze the relative strength of the airport brands’ points-of-parity, which will include the elements of the airports’ infrastructure and services that are more or less expected from the passengers. At future research, it would also be very valuable to identify each airport’s points of difference that could result in their unique selling proposition and an airport brand with a competitive advantage.

Kefalonitis and Kalligiannis (2018) have argued that airport brand loyalty differs based on: 1) type of passenger traffic (Originating & Terminating and Transfer); as well as 2) Availability of airport alternatives for the same catchment area. They have justified their argument according to the differential factors presented below:: 1. Point-to-point airports: (Destination City): No brand loyalty, since passengers to not have any other airport alternative; 2. Transfer (hub) airports: Strong brand loyalty, since passengers have a large number of options and they will exercise a level of route preference via their preferred airport hub brands.

For the purpose of this research, only Transfer (Hub) Airports will be analyzed, since it could be argued that strong brand equities are more significant for this type of airports. This does not mean that for point-to-point airports successful branding is not important, but rather than their relative importance in being powerful is not as critical as it is for Transfer (hub) airports, since in most case they benefit from a monopolistic competitive environment and in cases that a city or region is served by a multiple airport system, in many cases these airports operate different airport business models and cater for a different airline and passenger market. Moreover, Transfer (hub) airports are largely dependent from their home based large airline. This is also demonstrated by the fact that airports that have been designed in terms of original master plan (Athens International Airport as an example) and developed as hub airports with a large home based airline in mind (Olympic Airways), had to alter and update their original Master Plan expan-

sion according to the new market reality that did not had an airline with a large international hub and spoke network.

After having introduced the key branding concepts and theories that form the foundation of this research, the next section is dedicated in presenting from a branding industry perspective how the brand equities (financial values of brands) are evaluated.

Brand Evaluation Models

Interbrand is producing on an annual basis a report with the 100 most powerful brands in terms of brand financial valuation across all industry sectors. So far, none of these annual reports has ever included an airport’s brand. This however does not necessarily mean that airports cannot generate very powerful brands in terms of their financial strength, although it is generally accepted that different industries can generate different levels of brand loyalty, which is a key component of different brand financial evaluation models (Mason and Kalligiannis, 2009).

Brand Finance is also producing on an annual basis a report with the most powerful airport brands in terms of their brand equities. This methodology involves estimating potential future revenues that are attributed to a specific airport brand by calculating a royalty rate that could be charged for its use, in order to estimate a ‘brand value’ in terms of a net economic benefit that an airport licensor would achieve by licensing the airport brand in the market. Although this element is not entirely applicable as the brand expandability of other product or service brands in the form of licensing, it should be understood that strong airport brands can be used for also acquiring new airports in their global airport portfolio when governments decided to privatize their publicly owned airports (Flouris and Kalligiannis, 2012 & Willis and Kalligiannis 2008). Moreover, strong airport brands can also be used for the promotion of consulting and training services by the respective airport.

Savio D’Souza (2019), Director of Aviation Brand Finance, has claimed that: “A world class airport hub is one that can operate seamlessly with heavy volumes of passengers transiting, departing and arriving while also maintaining high service standards across its terminals, a superior customer service offering and a pleasant travel experience for customers. The most valuable airport brands are those that manage to meet the demands of discerning business travelers and frequent fliers, as well as providing a comfortable and

well-equipped environment to accommodate for a family embarking on their annual summer holidays”. This view identifies the airport service elements that airport operators of large international hub airports should prioritize in order to success in establishing strong airport brands. According to Brand Finance 2019 report, the 10 most valuable airport brands with their respective brand financial values (equities) are:

Table 1. The 10 most valuable airport brands with their respective brand financial values

Airport Brands 1. London Heathrow Airport: 2. Singapore Changi Airport: 3. Seoul Incheon Airport: 4. Frankfurt Airport: 5. Paris Charles-de-Gaule Airprt: 6. Tokyo Haneda Airport: 7. Shanghai Airport: 8. Tokyo Narita Airport: 9. Hong Kong Airport: 10. Amsterdam Schiphol Airport: Source: XXBrand Finance (2019) Financial Values $919m $754m $737m $547m $544m $461m $385m $354m $330m $314m

It should be noted that in addition to a Brand’s (financial) value, Brand Finance also employs 2 other key brand metrics, which are brand strength and brand rating. Brand Strength is defined as: “the efficacy of a brand’s performance on intangible measures, relative to its competitors” (Brand Finance, 2019), which seems closed to the methodology employed in this study. Although, they form different brand metrics that measure different performance aspects of each brand, they are closely related.

Analysis of Results

The first question is identifying the most preferred airports of the respondents among the top-10 airports in the world according to their respective brand equities as measured by Brand Finance (2019). According to the results of the survey, the most preferred airports ranking is presented in the figure below:

Airport preferences

30%

25%

20%

15%

10%

5%

0%

1. Singapore Changi 2. Frankfurt 3. Paris Charles-De-Gaulle 4. London Heathrow 5. Amsterdam Schiphol 6. Doha Hamad 7. Dubai 8. Abu Dhabi 9. Hong-Kong 10. Istambul

Figure 1. The most preferred airports ranking

Preferences

In addition to the airports presented in the figure above, Tokyo Narita and other 14 airports not included in the initial options were selected by one respondent each (15% all of them combined), whereas Seoul Incheon, Tokyo Haneda and Shanghai Pudong that appeared in the initial selection option were not selected at all.

From the first question it can be observed that Singapore Changi is the most preferred airport choice. It should also be noted that it is the only non-European and non Gulf- region airport selected by a high number of respondents (Hong-Kong was selected by only 2 respondents whereas no other airport outside these regions were selected more than once). A potential explanation could be that since the great majority of the respondents are coming from Europe then it makes sense to have their preferred airports within the continent or on its proximity (for geographical proximity and logistical reasons). Therefore, the selection of Singapore Changi airport as the most preferred airport has an even greater significance in terms of brand strength. The selection of the 3 Big Gulf airports is also an important finding considering that none of them (as also Istanbul airport) was in the provided initial airports option list and respondents had to select other and then provide their most preferred airport choice.

The second question is identifying the significance that the respondents place to hub airports for their selection of transfer flights and the results are presented in the figure below:

Significance for the customers place to hub airports for their selection of transfer flights

Not answeredd to question:

Very Unimportant:

Unimportant:

Neither Important nor

Important :

Very Important

0% 10% 20% 30% 40% 50% 60% Numbers of significance

Figure 2. The significance that the respondents place to hub airports for their selection of transfer flights

From the second question it is obvious that the respective Hub Airport place an important role when passengers are selecting their indirect flights (together with the respective airlines). It would be valuable to identify the respective significance of the Hub Airport, Airline, Air Fare and Available Schedules when passengers are selecting an indirect flight among a number of alternative options.

The great majority of the respondents consider the importance of the transfer airport when selecting an indirect flight as Very Important (52%) and Important (24%). A small percentage of the respondents considered is Neither Important nor Unimportant (15%), whereas only a negligible proportion of the respondents consider it as Unimportant (4%) and Very unimportant (4%).

The findings from this question not only reinforce the need for hub airports in establishing strong brands but also that their potential success or failure will have a strong effect in the success or failure of their home airlines that operate hub and spoke networks. Therefore the relationship between a hub airport and its home based hub and spoke airline can be described as symbiotic, which is defined as: “involving people or organizations that depend

on each other equally” (Cambridge Online Dictionary). Off course, this type of relationship does not exist (or at least not at the same extent) between an airport and all airlines operating at this airport since it can be argued that airlines with limited traffic share consist more the primary customers of the airport rather than its air service partner. It could be useful to investigate whether an airlines’ traffic share at an airport result in different levels of airlines’ brand influence over the specific airport’s brand. Moreover, the brand relationships between the airport brands and their major home based airlines brands should also be investigated for potential brand conflicts (Kalligiannis and Mason, 2010) and brand inconsistencies (Kalligiannis, 2009).

The third question is the only demographic characteristic included in the survey aimed to identify the continents that the respondents come from. The purpose of including this demographic characteristic is twofold: • Identify any potential country of origin effects in the respondents’ provided answers (as per favorite airlines and airports); • Identify any geographical proximity effect on the provided answers.

According to the third question’s results, the survey’ passengers were coming from:

Regions and Distribution

Europe: 85% Asia: 11% North America: 2% South America: 1% Africa: 1% Oceania: 0%

Figure 3. The survey’ passengers were coming from

As it can be easily observed from the figure above, the great majority of the respondents are coming from Europe (85%) and therefore a strong biased is expected in the survey’s findings. This does not necessarily mean

that the findings are not valid but rather it emphasizes the need to analyze them under the correct perspective and avoid any global generalizations. For example, it makes sense that the majority of the favorite airlines and airports responses to be for European entities. In order to be able to make conclusions that are valid on a global scale then this study needs to be repeated with similar representations from the other continents as well.

Moreover, the valuation scores that the respondents have placed into the different airport infrastructure and service elements under investigation may have also been heavily influenced by the European attitude towards air travel in general. For example, it may be argued that US air passengers are less demanding in terms of the quality of service expected when travelling domestically in compared with European air passengers, since the USA domestic air travel market is considered to be the most mature air travel market and its passengers are much more price sensitive rather than quality of service focused. If this statement is validated, then it makes sense that to investigate potential air travel expectations differences between different markets.

The fourth question is aiming to identify the favorite airlines of the respondents. This question is intended to signal any potential correlation between favorite airlines and favorite airports. According to the survey’s results, the (Question 7) respondents’ favorite airlines were:

Table 2. Respondents’ favorite airlines

1. Emirates: 2. Qatar Airways: 3. Lufthansa: 4. Singapore Airlines: 5. Aegean Airlines: 6. Turkish Airlines: 7. Etihad: 8. British Airways: 9. Air France: 10. KLM: 11. Austrian: 12. Air Baltic: 13. Ryanair: 18 (18%) 14 (14%) 12 (12%) 7 (7%) 7 (7%) 7 (7%) 4 (4%) 4 (4%) 3 (3%) 3 (3%) 2 (2%) 2 (2%) 2 (2%)

Moreover 10 airlines (Aer Lingus; Air India; Cathay Pacific, Delta, El Al; Eurowings; Finnair; LOT; Qatas; SAS; Swiss) were indicated as favorite airline for only one respondent each, whereas 5 respondents did not indicate any favorite airline. Furthermore, it should be noted that although the survey was aiming at airlines that operate hub and spoke networks, few respondents have provided point-to-point low- cost airlines (Air Baltic and Ryanair) as their favorite airlines.

The question was not aimed to identify the percentage of passengers that do actually have a favorite airline and for that reason was phrased in a way that respondents will be asked to provide a favorite airline, whether they do or not have. In the subsequent studies it would be more academically sound to include a question aimed to identify whether the respondents have or have not a favorite airline and for those of them that have to provide the name. It would be of great academic and industry significance to also investigate the extent that each airline brand is linked and associated with the respective home based airport brand.

The fifth question is aimed to identify what makes passengers’ connection with an airport strong. This is the only open-ended qualitative question in order to provide respondents with the opportunity to indicate on a very personal level and according to their own perspective without having a list of predefined options that restrict the answers that they can provide what elements they truly consider important in forming a strong connection with an airport.

The objectives from this question’s provided answers are twofold and include: 1. To provide evidence that the airport element categories included in the following question (7th) are applicable; and 2. To indicate any other important airport elements that could result in airports forming a strong connection with its passengers and was not included in the categories employed.

The analysis of this question’s qualitative responses provide evidence that the 10 airport elements categories employed in our survey include (on a wider perspective) most of the qualitative answers provided. Therefore, the first objective for including this question was fully met and resulted in the airport categories justification.

In addition, to justifying the airport categories used in this pilot survey, it also resulted in more detailed information about what aspects of each category employed and what other elements not directly included in these categories passengers consider as important for forming a connection with an airport’s brand. The results from this analysis will be employed in a subsequent study.

The sixth question is aiming to identify the relative importance that passengers place in the airport elements included in our survey. According to the survey’s results the order of importance together with each element’s respective average score is it presented below:

10. Sport Facilities

9. Milestone Features (Statues)

8. Cultural Experiences (Museums)

7. Strong National/City Association

6. Terminal Design (Architecture)

5. Infastructural Elements

4. Food and Beverages (F&Bs)

3. Customer Experience

2. Qualitu of Service

1. Technological Solutions

Importance of airport elements 31%

49%

51%

61%

80%

84%

86%

87%

89%

90%

0 0.1 0.2 0.3 0.4 0.5 0.6 0.7 0.8 0.9 1

Figure 4. The relative importance that passengers place in the airport elements

According to the results from this question it can be observed that passengers are placing the highest importance in the technological solutions (90%) and the quality of service (89%) provided at an airport, overall customer experience (87%), availability of F&B shops (86%), as well as the infrastructural elements (84%) and Terminal design (80%). More than half of the evaluation points are attributed to a strong national/city association (61%) for the airport, whereas around half of the allocated points available are attributed to Cultural Experiences (51%) and Milestone Features (49%). The only airport element category which is evaluated below the average percentage score is Sport Facilities (31%), which could also be explained that

since it is not a common facility provided at most airports then it makes sense that passengers do not have such an expectation and therefore do not place a high significance as an airport element.

The seventh question is aiming to identify passengers’ favorite airports. This will reinforce the results from the first question and would also identify any potential correlation between favorite airports and favorite airlines (Question 4). According to this question’s results, the highest ranked favorite airports are:

Table 3. The highest ranked favorite airports

Singapore Changi: Doha Hamad:

Dubai:

Frankfurt: 18 (18%) Singapore Airlines: 4/7 10 (10%) Qatar Airways: 8/14 10 (10%) Emirates: 7/18

8 (8%) Lufthansa:

7/12 Paris Charles-De-Gaulle: 6 (6%) Air France: 1/3 Athens International Airport: 5 (4%) Aegean Airlines: 3/7 London Heathrow: 4 (4%) British Airways: 3/4 Abu Dhabi: 3 (3%) Etihad: 3/4

As also in the first question, in the seventh question Singapore Changi International Airport has been ranked as the favorite airport among the respondents. This reinforces the finding from the first question that the airport management is very successful in establishing and maintaining a strong brand. As it has been expected a large part of the respondents have indicated their favorite airport as the home hub airport of their favorite airline. The second column in the table above indicates the number of respondents that have indicated their favorite airline’s home based airport as their favorite airport as a fraction of total respondents that have indicate the respective favorite airline. This provides evidence that there is a correlation between the two symbiotic brands that should be investigated in further studies.

The eighth question’s results have also provided justification as per the airport element categories employed. The results from this question will be analyzed into more detail (along with the results from the fifth question) in a subsequent study.

Limitations and Further Research

This paper has investigated the strength of selected airport brands from passengers’ perspective. This has been the initial academic step in applying the Diamond KK Airport Brand Methodology (adopted from the KK Aviation Airport Branding Methodology). As an initial research, there have been several limitations that are identified and that could be tackled in subsequent related studies.

There research deficiencies include: • Include demographic data in order to identify any correlations such as country of origin effects, purpose of travel and significance of airport facilities, etc.; • Investigate airport brands in relation to Customers; Stakeholders and Local communities’ perceptions; • Investigate the different airport communications strategies and what is their effect in the respective airport brands’ strength;

Conclusions

According to this study it can be concluded that certain airport elements are of prime significance in order for the airports to success in establishing powerful airport brands. Moreover, the interdependence between a powerful airport hub brand and its home transfer airline brand has also been established.

Another important finding from this research is that the airport brand equities ranking used by practitioners does not necessarily coincide with the airport brand strength ranking produced by the academic methodology employed for this study.

Branding Recommendations to Airports

This pilot study has resulted in the following high level branding recommendations for airports: 1. Select the appropriate brand values/associations that support your intended brand image; 2. Invest in the airport elements most valued by your respective passengers; 3. Coordinate and link your brand image with your home airline’s brand image.

Bibliography

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Klaipėda: Klaipėdos universiteto leidykla. 16. Willis, P., Kalligiannis, K. (2008). Identification of the Potential Benefits that may arise from the Potential Privatisation of the Greek Airports. ATRS Conference, Hellenic Aviation Society, Athens, Greece.

APPLICATION OF NEW LEARNING POLICY STRATEGIES WITHIN VIRTUAL ENVIRONMENT

Sergejus Neifachas, Tomas Butvilas, Aidas Vasilis Vasiliauskas, Deimantė Žilinskienė, Olga Navickienė

Mykolas Romeris University, General Jonas Žemaitis Military Academy of Lithuania, General Jonas Žemaitis Military Academy of Lithuania, Kazimieras Simonavičius University, General Jonas Žemaitis Military Academy of Lithuania

Annotation

The following research examines the modelling dimension of the virtual teaching/learning environment and its implementation practice. School communities working in a rapidly changing world undoubtedly face learning-related challenges. As the tendencies of the teaching/learning change process become more evident, it is necessary to reflect on and substantiate the contours of modelling the virtual teaching/learning environment. When looking for new ways of conceptualising teaching/learning strategies, it is especially important to have a good understanding of the inclusive, operationalising context of the open learning space, adequately assess the elements of the content and anticipate the possible characteristics (features) of their expression. In the following article, the virtual teaching/learning environment modelling process is analysed by employing reflexive approaches. The modern school is moving towards the logic of organising teaching/learning services and revealing new directions of expression: skills, information, knowledge, learners’ networking and creation of learning values. The virtual teaching/learning environment is positioned as an inevitable vision that aims to put the learner at the centre of the learning process and for learning itself to be understood as a social process in which learners develop a trust-based learning culture and a personalised learning process, as well as apply different learning styles, methods, and techniques according to the purpose of the learning object. The aim of the new teaching/learning policy strategy is to create learning environments that enable people of different talents and interests to receive appropriate learning, adapt to different life situations and goals, and reconcile, say, formal learning and self-education.

Key words: virtual learning environment, learning policy, curriculum contexts, educational policy priorities.

Introduction

Narratives (discursive narratives) of teaching/learning environment change are created and presented by politicians and education specialists who seek to identify the identity of teaching/learning environment change, define it, give it a descriptive form, and communicate it in the perspective of education reform (Affouneh, S. et al., 2020; Dhawan, 2020). Therefore, education policymakers try to see a vision of the teaching/learning environment change. The political narratives of teaching/learning environment change represent the stories of professionals and experts in a certain field, and their main function is to promote a specific vision and the ideology of teaching/learning change. When trying to identify the origins of the representations of the teaching/learning environment change in education policy, a constant transformation is observed, which offers contours of modality. These contours of modality are metatheoretical elements designed to describe the teaching/learning environment and construct the typology. In this way, clear contextual dimensions are established.

Representations of teaching/learning environment change are always associated with the transformation of dominant educational paradigms. According to Dhawan (2020), Brianna et al. (2019) it is a conceptualised space of social phenomenology that seeks to name a study of subjective meanings and their constructs. It can be argued that this scientific article belongs to the field of social phenomenology, and thus seeks to explain how the change of teaching/learning environment is made meaningful in the discourse of education policy-makers and in the consciousness of various social groups. The approach to social phenomenology proposed by Bourdieu is an appropriate tool because it recognises the role of everyday cognition and practical knowledge in the continuous development of a knowledge-based society (Martin, 2020; Affouneh et al., 2020). Our first attempts to look at people’s perceptions of the teaching/learning environment and its change have shown that there are representative perspectives that form the general understanding of the teaching/learning environment and the culture of its change. According to Scott (2020), the state of change in the teaching/learning environment is legitimised by the definition and semantics of space. The existing logic of space always subordinates the identity of the group. By attaching to its space, a social group transforms (dynamics) and adapts (statics). Memory, that draws the boundaries of the

semantics of space, also plays an important role in such a complex relationship. Semantics offers a comprehensive ideological picture of the learning environment.

Europe’s Strategy for 2030 (EC, 2010) recognises that in order to remain competitive, overcome the current crisis and seize new opportunities, Europe needs to focus on smart, sustainable and inclusive growth. These common goals can be achieved by developing and investing in citizens’ skills and competences. Thus, to measure the success of Europe’s Strategy for 2030 (EC, 2010), one of the five objectives is to modernise Europe’s education and training systems and institutions.

However, as technology and the socio-economic situation change rapidly, so do learning strategies and trajectories. Considering that during the last 10–20 years the generation and order of knowledge has changed substantially (Affouneh, S. et al., 2020; Scott, 2020), leading not only to new models of communication and work, but also to a new approach to learning, teaching/learning environment and competence needs (Scott, 2020), it is important to have a clearer understanding of how teaching/learning environment opportunities may change over the period of the strategic guidelines for reform (2013–2022) in order to better advise education policy-makers. Thus, to determine how education and training policies can adequately prepare students for life in the society of the future, it is necessary to anticipate what competences will be important and how they will be acquired in a studentcentred virtual teaching/learning environment (Huang, et. al., 2020). From that comes the definition of a scientific problem analysed in this research that is related to how the virtual teaching/learning environment modelling dimension is contextualised in the processes of change of Lithuanian education policy. The following problem-related research questions are raised: i) how the discourse of learning environment changes is perceived? ii) what are the key trends in virtual learning environment while applying new learning policy and how do they manifest in education sector?

The object of the research is the virtual learning environment as a priority for the new learning strategies’ policy application.

The aim of the research is to reveal the process of modelling the virtual learning environment in the education sector by analysing the policy of the learning environment changes.

Research objectives:

1. To reveal theoretical approaches to modelling a virtual learning environment. 2. To highlight the signs of the virtual teaching/learning environment change from the point of view of general education school teachers, education experts (school heads), education policy-makers (education department specialists).

For data collection, the scientific literature analysis method (employed to reveal theoretical aspects of virtual teaching/learning environment modelling) and group interview method (adopted to reveal practical aspects of teaching/learning environment change and their expression features in the general education school sector) were used. This article draws on research in a general education school to gain a deeper insight into the information provided by research participants.

Praxeology of teaching/learning environment change: new virtual environment modelling approaches

There is a growing perception in Europe that learning in a fully digitalised (networked) knowledge society will be fundamentally different from today’s learning. The development of information and communications technologies (ICTs), together with other socio-economic and demographic changes, not only opens up new learning opportunities, but also leads to the need for new skills and knowledge for work, education, training, self-development, and participation in society (Affouneh et al., 2020; Scott, 2020; Dhawan, 2020; Brianna et al., 2019).

The process of modelling a virtual teaching/learning environment is based on a vision in which digital literacy is defined as the acquisition of the skills necessary to participate in these virtual learning environments. Learning to use ICT tools is certainly part of that, but other higher cognitive skills are also needed to facilitate participation in virtual learning environments in all respects. Skills to search, evaluate, manage, and use information and digital resources are essential for working and learning in a digital environment. This includes the ability to systematise knowledge according to personal choice and to use tools to form systems that track and update relevant information. However, in the network knowledge society, communication with other people is also considered a value, and the skills gained

from such communication are becoming increasingly important. In fact, all these skills are becoming an essential part of the digital literacy that must be acquired. Thus, by constantly gaining experience through participating in ICT-based virtual teaching/learning environments with other learners and mentors, these skills are developed and become part of the lifelong learning process (Huang, et. al., 2020). Virtual teaching/learning environments enable the learning of both aspects of digital literacy.

Policy guidelines for virtual teaching/learning environment modelling

Policy-makers and other stakeholders generally agree that Europe needs to make fundamental changes in education and training to implement such important policy goals as, for example, the goals of competitiveness, growth, employment and more sustainable social cohesion set out in the Lisbon Strategy (ES 2000; E&T 2010). Education, together with research and innovation - the so-called “knowledge triangle” - is seen as a key factor in building a competitive and inclusive knowledge society. Technologies, especially ICTs, have a unique role to play in bringing about these changes. It is almost impossible to imagine a virtual learning environment without some kind of ICT being used as a primary or complementary learning tool. While it is clear that technology alone, no matter how powerful, cannot in itself bring about the necessary changes, the potential of ICT is important when ICT is used in a social, economic and organisational context that is open to innovation and supported by a favourable political environment (Punie & Cabrera, 2006; Brianna et al., 2019).

The main discussion is how to adapt these new requirements to formal education and training in Europe. It is recognised that significant progress remains to be made in implementing important changes in education and training to accelerate the development of the knowledge society (Brianna et al., 2019; Scott, 2020). The contribution of learning to people’s liberation, social advancement and self-expression is also significant. Achieving learning goals, such as developing social skills and critical thinking, learning to share and collaborate is becoming increasingly important. As the role and meaning of information and knowledge in the knowledge society are different, the vision of what knowledge and skills people must have and how they must acquire them must also change. Knowing where to find certain

information, who can access different sources and why is becoming increasingly important in a network society. Social skills and “relationship capital” are part of digital literacy required to live and work in a knowledge economy that is becoming increasingly evident due to the rapid development of “web 2.0” or social computer applications (Dhawan, 2020; Scott, 2020; Huang, et. al., 2020). Various European stakeholders are working hard to identify what digital literacy and skills are needed today and in the near future for people to be full members of the digital society and for educational organisations to remain competitive. Therefore, three types of electronic skills are distinguished: ability to perform ICT-related works, ICT user skills and e-business skills (COM, 2007).

Today, ICT user skills are clearly important to all members of society as our society is becoming increasingly digital. As the younger generation is better acquainted with ICT, it is important to note that it is not enough to just learn about the “use of ICT”, i.e., learn to use technology. In the digital knowledge society, it is important to learn to use ICT as a tool for new ways of working and communicating and to understand the importance of using ICT. This can be understood as a group of new skills needed in the knowledge society. The European Commission has integrated digital literacy into the “key competences” for lifelong learning, i.e., the list of skills that encourage personal development, active citizenship, social inclusion, and employment (Scott, 2020; Brianna et al., 2019): Digital literacy is associated with the reliable and critical use of Information Society Technologies (ISTs) at work, during one’s free time and when communication with other individual. It is based on basic ICT skills: the use of computers for finding, evaluating, storing, compiling, presenting, and exchanging information and for communicating and participating in collaboration networks on the Internet (COM, 2007). The following article examines the different competences that form the basis of digital literacy necessary for learning in the knowledge society.

Modelling a virtual learning environment: vision for learning in a knowledge society

Based on the needs of current learning institutions and changing learning models, ICT offers a wide range of opportunities to shape a new picture of what learning will look like in a knowledge society. Virtual learning environments are an attractive and inevitable vision of learning. The article

describes the main features of said vision, which, in addition to the basics of using ICT, will also require new skills. According to the vision, ICT is the main (though not the only) driving force behind the creation of virtual learning environments. However, these environments are not unattended, computer-generated spaces. Leadership and communication remain crucial, but the roles of teachers and educators are changing (Scott, 2020; Huang, et. al., 2020). This vision aims to put the learner at the centre of learning, and to make learning understood as a social process in which learners themselves shape the learning process. Virtual learning environments can take many forms, but they all have the following features in common:

Virtual learning environments are personal digital environments. Every learner (and every teacher, educator, tutor) has a personal digital virtual learning environment where all the learning resources particular learner needs are available at any time and on a variety of devices and media. A personal virtual learning environment is a virtual desk where everything is personalised and easily accessible. This personal virtual learning environment is suitable for lifelong learning, without linking resources and experience gained to specific institutions or learning programmes. Such personalisation of learning resources, processes and outcomes using one’s own virtual environment promotes personal growth based on the experience already gained. In addition, it provides self-confidence and personal resources facilitate the public presentation of knowledge and learning outcomes. The personal environment allows different abilities and “partial identities” to be shown to different groups of people, while at the same time maintaining a safe and personal environment in the digital world (Martin, 2020; Dascala & Maghiros, 2007).

Virtual learning environments are connecting and social virtual environments. In order for learning to become a social phenomenon, virtual learning environments bring together community, interrelationships, and communication. In these environments, a variety of actors - teachers, students, learning institutions and developers of learning programmes, as well as family members, friends, colleagues, and other peers – meet and interact in order to teach/learn or share experiences. Virtual learning environments are supported by a variety of synchronous and asynchronous communication channels, but learners, members of the same group, and teachers

can also meet in the physical world (Martin, 2020; Scott, 2020; Huang, et. al., 2020). Personal digital virtual environments enable the individual formation of knowledge and the provision of advice and assistance to other learners and experts through communication technologies. Virtual learning environments are suitable for organised learning and communication both within a learning group and between different learning groups, involving even groups from around the world. They bring together people with an interest in the same issues, even if they are not involved in organised learning activities. Such communication and knowledge sharing, where students are enabled to interact with professionals and the learning process is complemented by in-depth knowledge and practical examples, encourages selfeducation .

Virtual learning environments are trust-based virtual environments. The key thing that connects learners and teachers is trust. The accuracy and reliability of the knowledge conveyed is important, as is the openness of personal expression and thinking. Learning communities connect the knowledge and experience of many people. Validation and accumulation of knowledge in alternative social trust-based environments complements and compensates for the diminished importance of authority, proximity, and face-to-face meetings. Private personal virtual environments allow the protection of sensitive information, while public personal virtual environments, together with the certification system, demonstrate the competence of individuals offering tutoring (Brianna et al., 2019; Scott, 2020).

Virtual learning environments are personal digital environments. Virtual learning environments prioritise not the knowledge accumulation but individuality, personal creativity and innovation in the learning process. Different learning methods are often associated with different learning environments, but as the boundaries between work, private and public life and learning become less clear, virtual learning environments need to be flexible and adapt to such changes. It is not unusual to use and apply different learning styles, methods and techniques, depending on the purpose of the learning object, the learner, the teacher, the environment, and so on. Learning activities are formed, say, from the usual elements, such as communicating with teachers directly or through video, individualised communication using a computer, asynchronous or synchronous teamwork, mutual communication, and so

on. Depending on the learning objectives, the learning process can be focused on problem solving, task execution, or shaped by a more traditional topic-based programme. The flexibility provided by the virtual learning environment bridges the gap and creates links between formal, non-formal and self-learning, and individual and community learning.

Virtual learning environments are certificate-issuing environments. Digital environments, connectivity and trust in online communities also lay the foundations for new certification systems that allow social networks, members of the same group, informal tutors, or other participants to issue certificates. These new certification methods complement the traditional formal certification methods and thus allow not only the development and lifelong learning in a variety of ways, but also the formal recognition of that learning (Assessment of Non-formally Acquired Competences and Their Recognition Methodology, 2013). As the need for knowledge and skills changes, assessment systems will not be based on individual work only, but will consider connections with other learners, learning resources and communities. Learners can use part of their personal virtual learning environment as a portfolio of learning and skills to achieve other goals.

Virtual learning environments are stimulating and engaging environments. A personalised personal digital environment and flexible learning methods provide valuable opportunities to develop appropriate and stimulating learning plans best suitable for a specific individual. Learning is related to objectives and goals that demonstrate and validate the learner’s level of knowledge and skills (Martin, 2020). Through multimedia, learning resources become enjoyable, and the connection facilitates social and nonformal learning approaches that are engaging and link learning to positive emotional aspects.

Virtual learning environments are controlled virtual environments. Virtual learning environments control both access to them and the end of learning. Open (modular) learning systems allow students to connect whenever they can or want to. Future learning also facilitates reflexivity, allowing students to stop and reflect on their work, learning and life, and to learn from their own experience and personal circumstances. Learners can connect to a personal digital environment and revise or read through taskrelated instructions again if needed. It is also possible to create a certain

artificial learning environment for a specific task, if it is not possible to create such an environment in reality (e.g., if there is no way to create a safe environment for learning to work with ICT and using the Internet).

Virtual learning environments are knowledge management systems. Nowadays, when it is easier than ever to keep in touch with someone through various means of communication, learning does not necessarily mean acquiring knowledge. Instead, it often means finding and managing the knowledge or aids needed to perform tasks. Linking personal virtual learning environments allows for the formation and management of interpersonal and inter-institutional knowledge. Thus, virtual learning environments enhance personal knowledge and work by offering and providing easy access to other relevant individuals and their public virtual learning environments.

Virtual learning environments are inclusive environments. The last and most important feature of modelling a virtual learning environment is the ability to engage. Virtual learning environments do not single out any individual. They are open to people of all ages, with different backgrounds, from different cultures, speaking different languages, regardless of disability or other complications. The social communication aspect, trust-based systems, and the ability to create a certain learning environment for people with less learning and ICT experience allow for individuals to easily join such virtual environments.

Virtual learning environment strategy modelling process

Virtual learning environments are an interesting vision of personal learning plans with a greater impact on social connections. The realisation of the vision requires the necessary fundamental changes in the work of students, teachers, accreditation systems and organisations that support and implement learning. To discuss in more detail the tasks related to new skills and digital literacy, we will group the learning dimensions of said vision as follows: 1) personal and social skills, 2) learning design, and 3) learning structure. These task-related groups are closely interlinked because, on the one hand, the learning structure is important for the acquisition and use of personal skills, but on the other hand, an active and gifted learner can in turn update and improve the learning environment. Inclusion is a general task that needs to be understood more broadly.

It is important to keep in mind that the vision assumes that appropriate and user-friendly technologies can support all dimensions of learning. Therefore, ensuring access to such technologies is particularly important in implementing the vision. In this section of the article, we will briefly review the conditions necessary for personal involvement in learning environments, i.e., inclusion, learning structure and learning design.

Learning design. The main task is to create learning opportunities that enable people of different talents and interests to receive appropriate learning, adapt to different personal situations and goals, and reconcile, say, formal learning and self-education. Flexible ICT-based learning environments facilitate situational learning (Scott, 2020; Mertin, 2020; Dhawan, 2020), which links learning to context. However, this is only possible if the learning content, processes and support systems are designed to ensure such openness and freedom. It is particularly important to train teachers, tutors and/or educators since their role in the learning process is changing. On the one hand, school principals need not only to support such an approach, but also to create the necessary atmosphere and shape an approach to an innovative and open to learning environment. On the other hand, changing learning opportunities alone cannot be expected to change learning for all. There are people whose self-control skills are not strong enough to take advantage of learning flexibility. And while flexible and personalised learning is accessible to those who can take advantage of it, learning design must provide the necessary help and support to those who need it.

The structure of the teaching/learning environment. Making learning resources and processes more open is a daunting task for education systems and institutions. By applying state-of-the-art open learning methods, it is very important to enable educational organisations to collaborate and be open (e.g., to make educational resources available), both within organisations and when collaborating with other organisations. It is extremely difficult to change education systems. In principle, change is not foreign to people and institutions, but change and innovative learning often run counter to prevailing interests and established institutional arrangements. The whole learning system and all relevant actors (representatives of the education system, educators, teachers and their institutions; students and their families; organisations, employees and employers, technology and

content providers; policy-makers and government institutions) must be involved in the implementation of change at all stages. With the introduction of ICT-based virtual learning environments, each of these groups needs to be encouraged and given sufficient time, space, energy and resources. As educational institutions need to meet the needs of the knowledge society, it is important to understand exactly where the source of inertia in the education system is. In order to create better education systems, it is important to understand how educational institutions learn and why such learning is difficult (Punie & Cabrera, 2006; Martin, 2020; Brianna et al., 2019).

Inclusion. The main task of the vision is to make learning environments accessible to all. Basic access to and use of computers and communication tools is a prerequisite for more advanced users. The so-called innovation dilemma (Brianna et al., 2019) argues that only privileged and well-informed individuals reap the fruits of technological innovation, and those who do not have such conditions lag even further behind. In Europe, older and less educated people report poorer computer and Internet skills and less participation in lifelong learning. This is a major shortcoming of the vision of an inclusive learning environment, but it is also a huge opportunity for ICTbased learning to be highly inclusive, including disadvantaged people, their families, and groups. The vision can offer new opportunities for those who want to learn again and who have not benefited from traditional compulsory education and training or who have not succeeded in school. However, people will only want to learn again if ICT becomes part of their daily lives, social context and social network. Lack of motivation and social support is the main reason for failing to start learning anew, whether ICTs are used or not. Therefore, ICT-based lifelong learning initiatives need to be linked to other forms of social inclusion (Punie & Cabrera, 2006; Martin, 2020).

Configurations of perception and discourse of the meanings of changes in the teaching/learning environment in general education schools

Research methodology. A qualitative research strategy was chosen for the research. The aim is to make certain insights that are distinguished from the point of view of the people involved in the educational process. A semistructured interview method was chosen for the research (Denzin, Lincoln, 2017). During public consultations and seminars, education experts (N = 10),

teachers (N=100) and education policy-makers (N=10) are interviewed. The purpose of this method is twofold: first, to develop discussion and gather information about ideas generated in practice, and second, to create an educational environment that allows participants to express not only their opinions but also to think about what they can change personally and in what areas more collaboration is needed (Denzin, Lincoln, 2017). When discussing the topic of virtual teaching/learning environment modelling, the use of group interaction effect provided new qualitative features of the interviews. What is more, concept maps were created, reflecting the main changes in learning strategies and the response of learning systems to the challenges. Although each of the jointly developed visions has its own clear accents and scope, together they form a detailed, diverse and changing model of expression, where technological directions and socio-economic dynamics influence teaching/learning strategies and their expression perspectives. As a result, there is a need to reflect on fundamental changes in the teaching/learning environment. The research was conducted in May 2021. The results of the research help to identify certain relevant aspects that are expected to be explored in future work.

Research process and results. The main research questions are planned in advance. During group interviews, all participants are involved as much as possible. After asking the question, the opinion of those who wish to speak is heard, and all individuals involved in the research are encouraged to speak, with appropriate supportive questions, usually focused on the responsibilities and experience of the respondents. Qualitative research of virtual learning environment modelling allowed to reveal the dynamics, expectations and attitudes of educational entities towards the virtual learning environment.

Teachers’ insights into the change of the teaching/learning environment. During the qualitative research, teachers were asked to indicate changes in school education. The collected responses were grouped into categories (clusters), each of which had subcategories (topics).

The main changes are contextualised in the field of learning process optimisation (Table 1).

Table 1. Contexts for changes in the learning process

Category Subcategory Contextual learning

Learning objectives ‘Promoting values, respect, diversity <...>’; ‘Learning “how” instead of “what”’; ‘A new balance between content and competences’ <...>; ‘Learning about one’s own culture and the culture of others <...>’

Changes in the learning process Learning methods

Learning roles

Student-centred learning

Learning spaces

Learning links ‘<...> task-based learning’; ‘<...> learning by doing’; ‘<...> interactive learning’; ‘<...> understanding of a subject matter, not just receiving of information <...>’; ‘<...> practical, not just abstract, learning’ ‘<...> reduced hierarchy’; ‘<...> students develop their knowledge individually, under the guidance of a teacher’; ‘<...> teachers are moderators’; ‘<...> teachers are not the owners of information’ ‘<...> learning is more individual’; ‘<...> greater account is taken of individual progress’; ‘<...> constructive learning’; ‘<...> specially adapted for pupils’ . ‘<...> a high-tech environment’; ‘<...> ICT employed everywhere, not just at school’; ‘<...> mobile technologies’; ‘<...> iPads given for every learner’; ‘<...> learning should be open to the public’ ‘<...> global learning’; ‘<...> involving the local community’

Upon comparing the results of the research with the main goals, it is possible to determine which goal should be the main focus of education policy in order to change the situation by 2022 and achieve the expected result of learning quality. In the Strategic Framework for Education (2014), one of the measures to ensure the efficiency and coherence of the development of the quality of the learning process emphasises that the quality of the learning process is based on a student-centred approach (e.g., ‘<...> learning is more individual’; ‘<...> greater account is taken of individual progress’), a vision of multidimensional social interaction (e.g., ‘<...> global learning’; ‘<...> involving the local community’), and principles of social justice, inclusion and access to education. Therefore, learning becomes the most important and should be at the very centre when thinking about the quality of educa-

tion (Brianna et al., 2019). Inputs, processes, environments and outcomes work together and stimulate learning. Two levels have been distinguished: the internal level of the learner operating in the learning environment (e.g., ‘<...> students develop their knowledge individually, under the guidance of a teacher’) and the external level - the level of the education system that creates and supports the learning experience (e.g., ‘Learning “how” instead of “what”’; ‘A new balance between content and competences’ <...>; ‘Learning about one’s own culture and the culture of others <...>). In this environmental model, elements of training organisation are perceived as student-centred.

At the student level, teaching/learning material and tools should respond to changes in the world, and the learning-related needs of modern society and the individual. Therefore, teachers: 1) integrate the more active learning methods: Learning became more active, the focus was on learning by doing, by experience. At the same time, it became more public-spirited and based more on collaboration and evidence, where each student constructed their knowledge and performed practical and other tasks while communicating with others. A student-centred approach to learning became prevalent, taking into account the individual needs and progress of each student. In support of this change, the traditional roles of teachers and students are changing: teachers have become moderators and tutors (mentors), while students form personalised knowledge and knowledge gained through collaboration; 2) review learning objectives: More active and constructive ways of learning have resulted from a changed balance of knowledge and skills and the emergence of new competences. In a world full of information, knowing ‘how’ has become more important than knowing ‘what’. In addition, values such as respect, tolerance, responsibility, and cultural understanding and diversity have become important learning goals; 3) create new learning environments and contexts: Along with changing learning goals and ways to achieve them, new learning environments and their links with different contexts have emerged. Learning is supported by flexible and dynamic virtual environments and a wide range of tools and applications that facilitate individual and collaboration-based learning within and outside the school, and in links with a variety of contexts. No more physical or virtual barriers. Learning environments are motivating, public-spirited, and connected to the local community and the global society. It is of particular importance that learning has become more holistic and takes place in the context of society and the local community.

In the second phase of the public consultation, teachers were asked to identify what key competences students will need to acquire. It is noteworthy that all the competences currently described as key in Europe have been mentioned as important for the future learning environment, thus confirming their continued importance and relevance. However, in their discussions and suggestions, the participants in the qualitative research analysed and improved the current composition of key competences, pointing out how competences can be changed to better meet the needs of the future. For example, digital literacy competences have been complemented by a proposal to include new communication models such as a permanent online presence and an agreement to use different means of communication in parallel (Web 2.0, digital identity management).

To sum up teachers’ preferences when it comes to the contexts of changes in the learning process, it can be observed that with the rapid increase in the flow of new information and the development of technology, it becomes important to look for new ways of learning based on multifaceted abilities. In the 21st century, when new learning needs are emphasised, a specialist in any field must be able to identify, understand, analyse and solve the most relevant problems, as well as apply the available knowledge in new situations.

Insights of education experts (school heads) (N=10) about changes in the teaching/learning environment. The targeted discussion provided insights about current and future trends and their impact on learning. The main changes are contextualised in the field of the national learning system (Table 2). When comparing the findings of the experts with those of the teachers who were asked to focus on school education rather than on the overall picture of societal change, many general aspects of the analysis can be noticed. Both experts and teachers emphasise that technological change will be one of the most important factors affecting the learning environment change. At the heart of the maps of both concepts, the following have been identified: changes in learning strategies and approaches(new competences, assessment procedures that focus more on skills and attitudes than knowledge; learning strategies, that make the learner central to the learning process; personalised learning approaches, tailored to individual learning needs and goals; dominance of collaboration-based learning processes, that also change student-teacher relationships, and new learning environments integrated into life and work processes).

Table 2. Contexts for changes in the learning system

Category Subcategory Contextual learning

Socio-economic trends (Lifelong learning) ‘<...> Increasing importance of lifelong learning, but also the separation of institutions’; ‘<...> Balance between primary education and training, and lifelong learning’; ‘<...> More reliance on lifelong learning’; ‘<...> Personal lifelong learning becomes an advantage’; ‘<...> New ways of learning will emerge, tailored to future skills-related needs in line with the needs of the labour market;

Changes in the learning system Learning processes and strategies: assessment, personalisation

New skills: collaboration

The science of educating oneself New strategies and technologies

Learning with technology

Content and education programs ‘<...> there will be more research-based learning, the development, testing, and continuous improvement of personal theories’; ‘<...> new models of assessment (especially of formative assessment)’; ‘<...> personalisation of learning strategies’; ‘<...> less unnecessary skills and expertise required from students when learning’; ‘<...> holistic learning management’; ‘<...> learning in project teams’ . ‘<...> Learning from peers will be part of the learning process’; ‘<...> the market will decide what we will need to learn (loss of knowledge about our cultural heritage)’; ‘<...> The need to learn how to educate oneself’; ‘<...> need for multiple skills (multidisciplinarity and “do it yourself” practice)’; ‘<...> problem solving and adaptation skills’; ‘<...> focus on knowledge creation’; ‘<...> skills development takes precedence over knowledge’ ‘<...> To integrate, test and continuously improve’; ‘<...> teachers will be more involved in team training activities’; ‘<...> leadership-based learning’ . ‘<...> strong artificial intelligence’

‘<...> High quality digital learning environments’; ‘<...> Learning without having physical classrooms’; ‘<...> Augmented reality and innovative modelling’; ‘<...> learning motivation will be based on social networks’; ‘<...> mobile tools will be a substitute for learning and memory’; ‘<...> mobile tools support learning’ ‘<...> The content and environment of learning will change’; ‘<...> A proportionately growing knowledge base’ .

Education experts have modelled a picture of a rapidly changing world, where integration, collaboration, coordination and personalisation are key strategies for citizens to acquire the skills and attitudes needed for active participation in society. In addition, experts said that education and training institutions have become learning communities working with employers to identify skills needs and tailor learning information to the individual needs of each student. Thus, the desirable future of the teaching/learning environment, as described by experts, is a learning perspective in which everyone has access to many freely available opportunities that flexibly respond to the learner’s learning needs and preferences.

Insights of education policy-makers (specialists of the municipal education department) about the change of the teaching/learning environment. The main changes are contextualised in the field of systemic educational change (Table 3).

Table 3. Contexts of systemic changes in education

Category Subcategory Contextual learning

Contexts of systemic changes in education Institutions

‘<...> more integrated into the world’; ‘<...> accessible to the needs of pupils and society’; ‘<...> the boundaries of formal and non-formal learning are exceeded’’ New skills ‘<...> technological, digital literacy skills’ Compatibility of education and training with labour market objectives ‘<...> matching programmes to the needs of the labour market’; ‘<...> improving the transition from training to the labour market’; ‘<...> employees are more involved in education and training’ .

Technologies

Challenges ‘<...> ICT will be commonplace and integrated into the education program’ . ‘<...> Implementation gap’; ‘<...> to respond to technological and demographic change’ .

Like teachers and experts, policy-makers have also emphasised that technology is one of the main drivers of change in learning. They also argued that personalisation and collaboration-based learning processes will become prevalent, and that teachers and students will be able to design their learning processes to be better adapted to individual needs on the one hand and

to societal change on the other. Accordingly, it is emphasised that while the current set of key competences will remain important in the future, competences will place more emphasis on skills and attitudes that will be acquired and complemented through lifelong learning, than on knowledge.

According to policy-makers, as a general trend, learning will respond to the needs of the labour market and will be better aligned with curriculum, content and learning objectives. The market should also be more involved in shaping and redesigning the learning programme in order to facilitate the transition from education and training to the labour sector. In general, education and training institutions will need to become more transparent and accountable, open to the public and to the needs of learners. Non-formal learning activities will need to be better recognised. According to policymakers, the key challenge for education and learning in the future will be bridging the current ‘implementation gap’ and putting into practice what has long been recognised as necessary and subject to change (Scott, 2020; Dhawan, 2020). This is thought to be particularly difficult to do in the face of expected or sustained budget cuts and further changes in technology and the demographic situation. Obstacles that prevent taking on promising learning strategies, such as new ethical issues arising from privacy or a lack of adequate and targeted teacher training, also need to be properly addressed for change to take place.

Discussion and conclusions

The accumulated preferences of teachers, experts, and policy-makers were put together and analysed. A multidimensional scale method and hierarchical cluster analysis were used to illustrate the structure of the resulting data. When the experts were sorting the statements, each statement was positioned on a concept map, reflecting its proximity to or distance from other statements. When analysing the content of various groups (clusters), four general directions were identified. The first group of clusters emphasises the changes expected in formal education and learning. Experts stressed that in this sense, institutions will change to become empowering and interconnected in a globalised education market. Informally acquired skills will be better recognised and integrated into qualifications systems. These cluster groups also show that the responsibility for acquiring competences will shift from the institutional level to the individual level.

According to the general trend expressed by the second group of clusters, teachers will work more as mentors seeking learning strategies that focus on individual and professional needs and respond to individual qualities and needs. At the very heart of the concept maps is a lifelong learning cluster. Said concepts show not only that this cluster will play a central role in the future of learning, but also that it brings all other clusters together. According to experts, this means that many of the expected changes in learning strategies and ways are related to the fact that in the future, skills and competences will be acquired through lifelong learning.

ICT plays an important role in the way that learning will take place in the future. While the statements in all groups reflect learning models that are changing due to the opportunities offered by ICT, there are three groups that clearly show how emerging technology will condition the emergence of new learning strategies. Some of the expected changes stand out as particularly important: the nature of learning will become more student-centred, individual and societal; personalised and tailor-made learning opportunities will meet individual needs; innovative pedagogical concepts will be developed and implemented, for example through experiential or inclusive learning and social and cognitive processes; formal education institutions will need to respond flexibly and dynamically to change and offer learning opportunities integrated into everyday life; education and training must be made available and accessible to all citizens.

One of the most striking and important findings of the research is the impact of ICT on future learning strategies and trajectories. It is therefore worth discussing in more depth the role(s) of ICT in future learning. First, as all research participants have pointed out, ICT is one of the drivers of socioeconomic change. In terms of technology, high-quality, converged, mobile and affordable technologies, together with more sophisticated, user-friendly, customisable and secure applications and services, will increasingly integrate technology into everyday life. Finally, more advanced technologies such as inclusive 3D environments and strong artificial intelligence can become a reality. The consequences of this will include the more successful integration of technologies into our daily lives and their becoming a key commodity.

With the emergence of more integrated, adaptable, and adoptable technological solutions, new skills are becoming the most important. The consequence of the changed patterns of communication and interaction

will be that interpersonal skills (communication, collaboration, overcoming difficulties and collaboration skills) will become more important. At the same time, the ubiquity and abundance of information will determine that people will need to improve their metacognitive skills (Martin, 2020; Scott, 2020 et al.), i.e., reflection, critical thinking, problem-solving, management, and organisational skills. Self-determination, resilience, experimentation, risk-taking, creativity and entrepreneurship will become key competences for people to actively manage their personal and professional skills and find their way in an interconnected maze of interactions.

However, ICT affects not only what people need to learn, but also how they will learn those things. The ubiquitous technologies and their power to complement highly dynamic, adaptable and inclusive virtual learning environments will make it possible to take advantage of personalised learning opportunities. According to experts, a very wide range of learning models, courses and packages will be available in the future, offering targeted, tailor-made learning opportunities for all learning and training needs at all stages of life and for all levels of qualifications. A variety of formats and combinations will be available, including programmes that adapt to the pace and progress of individual learning, as well as self-assessment and peer assessment tools, serious games, virtual reality, engagement, and modelling. Thus, learning programmes will respond to individual learning styles, specific learning goals, needs and priorities. Virtual learning networks, communities and groups will offer (peer) support, and collaboration with other people will show individual progress.

In the formal education and training system, i.e., schools, ICT will contribute to the transformation of pedagogical strategies and the reshaping of the education program. Mobile tools and inclusive environments will contribute to the embedding of real-life experiences in formal education and learning and a better match between skills demand and supply. Technology will allow teachers to create personalised sets of learning materials; constantly monitor progress (electronic achievement diaries) without interfering with the learning process; adapt learning objectives and strategies to progress and use engaging and interesting learning materials that facilitate learning more effectively.

Education policy-makers need to ensure that the opportunities offered benefit all citizens and that more vulnerable social groups acquire the necessary skills to participate in increasingly technology-based learning activities.

Bibliography

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Educational Technology Systems, 49(1), 5-22. 6. Huang, R. H., et. al. (2020). Handbook on facilitating flexible learning during educational disruption: The Chinese experience in maintaining undisrupted learning in COVID-19 outbreak. Smart Learning Institute of Beijing Normal University. 7. Martin, A. (2020). How to optimize online learning in the age of coronavirus (COVID-19): A 5-point guide for educators. URL. Internet access: https://www.researchgate.net/publication/339944395_How_to_Optimize_Online_Learning_in_the_Age_of_Coronavirus_COVID-19_A_5-Point_Guide_for_Educators, [last visited 2021-09-25]. 8. Punie, Y., Cabrera, M. (2006). The Future of ICT and Learning in the Knowledge Society. Report on a Joint DG JRC / IPTS-DG EAC. European Communities. Internet access: http://ipts.jrc.ec.europa.eu, [last visited 2021-09-25]. 9. Mehall, S. (2020). Purposeful Interpersonal Interaction in Online Learning: What Is It and How Is It Measured? Online Learning, 24(1), 182-204.

THE MEANING OF AN OPEN ADOPTION SYSTEMS MANAGEMENT: THEORETICAL CONSIDERATIONS

Tomas Butvilas, Deimantė Žilinskienė

Kazimieras Simonavičius University (Lithuania)

Abstract

This paper discusses about possible both positive and negative effects to those who are adopted or taken under the foster care. On the other hand openness within adoption in most cases is presented through positive side, when it is becoming increasingly common, especially due to a growing recognition of the benefits of allowing an adopted child to establish or maintain connections with the birth family. Although many studies have showed a relation between adoption and later difficulties, there is no clear evidence that adoption could cause behavioral problems in child‘s later development periods. However, many authors would argue that this process has much negative influence as well, especially dealing with adoptees‘ self-identity formation, social attachment and communication with others: much of attention is paid to such children abilities to develop their own relations with other friends and mainly with step-parents; especially teenage period is stressed when identification challenges take over other developmental neccessities and social bonds/attachment is developed. Thus the phenomenon of open adoption in the childhood is mainly presented in the context of its influence to a child‘s further psychosocial development and growth.

Therefore the goal of this paper is to analyze theoretically adoptees psychosocial variables that influence their further development in the context of open adoption’s process. Main method of this explorative work is a meta-analysis and more theoretical observation of previous researches in chosen area.

Key words: adoption, open adoption, child, self-identity, psychosocial development difficulties.

Introduction

Open adoption, as it is stated in much of the literature, is a type of adoption in which birth and adoptive families have some form of initial and usually ongoing contact; also the open adoption allows adoptive parents (often the adopted child as well), to interact with the child’s birth parents. Besides, the type and the way of openness can vary from family to family and may change over the time. Open adoption is becoming increasingly common, in part due to a growing recognition of the potential benefits of allowing

an adopted child or youth to establish or maintain connections with his or her birth family (Child Welfare Information Gateway, 2013). Within past few decades a greater sophistication has emerged in the understanding of the concept of openness and the professional practices related to the concept (Jones, Hackett, 2008). Openness no longer refers simply to open communication between adoptive family members but also relates to the degree to which information passes between birth and adoptive families and to the level of contact and ongoing relationship between these enmeshed families (Jones, Hackett, 2008). Yet, on the other hand, the formation of an adoptive identity is one of the more critical and complicated tasks that adoptees would face (Fall et al., 2012).

In Western cultures adopted children‘s behavior and the variety of their experienced emotions are the focuses of many surveys. Besides, much of attention is paid to such children abilities to develop their own relations with other friends and mainly with step-parents. Especially teenage period is stressed when identification challenges take over other developmental neccessities and social bonds/attachment is developed (Goldman, 2000). It is stated that early adoption factor plays much of the role within formation of self-identity, social attachment and child‘s psychosocial characteristics – better results are expected when child was adopted before 6 months of age (Singer, Krebs, 2008). Open adoption, according to Singer and Krebs (2008), is revealed as child‘s and his/her birthparents participation meaning at the adoption process as a progressive tactic (Neil, 2007 et al.). Open adoption is recommended as the best option for the child by Committee on the Rights of the Child– actually it has been stated as the standard in the Quality4Children Standards for Out-of-Home Child Care in Europe. It is almost taken for granted by adoption services and adoption participants in the USA.

Thus the problematic situation in almost all research works is mainly defined with the following questions that are much of interest to many academics and practitioners/educators: i) experiences of adolescents adopted from the care system in relation to the themes of grief and loss status; ii) the reasons behind individual differences-why do some adoptive people feel different to others (cultural differences, dependence of adoption type); iii) birth parents and adoptive parents attitudes and values in relation to adoption and openness in adoption; iv) how do self-esteem, emotional and behavioural development of

adopted adolescents relate to pre-placement risk factors such as length of time in institutions and care system?

The object of this observation is the phenomenon of openness within adoption and its impact to the child’s further psychosocial development, especially having in mind self- identity processes.

The goal of this paper is to analyze theoretically adoptees psychosocial variables that influence their further development in the context of open adoption’s process.

Main method of this analysis is a meta-analysis and theoretical review of previous researches in chosen area.

Approaches to an Open Adoption and its Challenges:

Insights and the Discussion

Neil (2007) in her studies on post-adoption contact and openness reveals that adoptive parents and children themselves mostly reported face-to-face contact to be a positive experience and such contact appeared to have a positive effect on the ability of birth relatives to adjust and accept the fact of the child‘s adoption. For instance, in England and Wales, the 2002 Adoption and Children Act obliges agencies to make post-adoption support plans for every child, and gives adoptive parents, adopted children and birth relatives the right to ask for an assessment of their support needs (see more at Neil, 2007). Neil states that providing support for post-adoption contact is an important opportunity for social workers to facilitate communication between children, adoptive parents and birth relatives, as well as helping all three parties understand and manage their own feelings regarding the adoption.

Although many studies have showed a relationship between adoption and later difficulties, there is no clear evidence that adoption could cause behavior problems in child‘s later development periods (Adopted adolescents: Attachment and behaviour problems, 20093). Indeed, many mechanisms are likely involved in the adoption process, which may interfere with the parent-child relationship and the child’s development and well being. As the matter of fact, fostering and adopting are both means by which children are given new, safe, and supportive homes, because early stress, poor life conditions and separation may constitute potential risk factors regarding the social-emotional development; the period of adolescence, which involves separations and new relationships may be especially sensitive in this

regard (Pierrehumbert, et al., 2009). However, both fostering and adopting are important in order to remove adoptees from usually unhealthy environments and allow them to move towards a brighter future.

On the other hand, along with the positive intentions of adults to foster or adopt a child some psychological negative outcomes of child‘s adoption/foster process may be seen as well, especially having in mind the international adoption, that has some effect on emotional and social development in adolescence, specifically in regard to attachment and separation processes (Harf et al., 2006 cited in Adopted adolescents: Attachment and behaviour problems, 2009). Also having been adopted may then constitute a risk factor regarding psychological development, particularly at adolescence (Pierrehumbert, et al., 2009). A question raised in the literature is whether or not adopted children exhibit more behavior problems than non-adopted peers in later development stages.

As Pierrehumbert et al. (2009) stresses, there are other important issues related to pre and post adoption processes that could be taken in account within proposed research, such as the effect of early deprivation on the adopted child, i.e. a late adoption frequently means a long time spent in institutions in poor living conditions, without any attachment figure. Therefore, these factors increase the risk that the child encounters adverse life events with probabilities of long term consequences on his/her psychosocial development (Groza & Ryan, 2002; Pratti, 2005 cited in Adopted adolescents: Attachment and behaviour problems, 2009). The data suggest that the impact of early deprivation may last long after adoption and that a long stay in institution can hinder the capacities of recovery.

The effect of early deprivation on parent-child attachment. That means that poor relationships at pre-adoption phase may negatively influence the development of emotional regulation and of later social adaptation. Putting in other words, in case of adoption, child– caregivers bonds may have been disrupted or remained unconstructed, increasing psychological vulnerability (Howe, 1997; Cederbald et al., 1999; Verhulst et al., 1992 cited in Adopted adolescents: Attachment and behaviour problems, 2009). Thus a late adoption increases the risks of having been exposed to harmful and disruptive life experiences, and to negative models of relationships.

Finally, the reactive attachment disorder (hereinafter RAD) may be observed when difficulties or impossibilities to create a significant relation-

ship with anyone occur. Among the long-term consequences of RAD are the difficulties to engage emotionally with other people, loneliness, social withdrawal, identity problems, or loss of positive self-esteem. Adopted children with a RAD are then likely to endure difficulties regarding emotion regulation as they cannot trust the attachment figures in stressful situations (Adopted adolescents: Attachment and behaviour problems, 2009).

Adoptive parents and their representations concerning their children is a significant factor that may influence child’s wellbeing while in the new environment. Many authors (Pierrehumbert, et al., 2009; Fonagy et al., 2003) have pointed out that parents’ representations towards their children mainly could be described as a consequence of the capacity to understand their own behaviors and those of their children in terms of mental states, intentions and needs, and to reflect their children’s psychological experiences. Parents of children who had been placed relatively late, experience a greater need for support, and report higher levels of children’s aggression, rejection, control behaviors, and overfriendliness; this contrasts with children placed earlier in infancy, whose adoptive mothers report higher levels of joy, competence, confidence, warmth, happiness, and affection. Lastly, adoptive parents who were themselves insecure or unresolved in relation to attachment seem to be more likely to represent their adoptive children, and the relationship with them, in negative ways (Steele, 2003 cited in Adopted adolescents: Attachment and behaviour problems, 2009).

Thus it is of great importance to understand which–and how–underlying factors may intervene in the pre and post adoption processes, in order to prevent difficulties and vulnerabilities, and to optimize chances for an optimal child‘s psychosocial development (Neil, 2007 et al.). Secure attachment has been pointed out as a protective factor regarding behavior problems in childhood. Attachment is also influenced by several individual and environmental factors such as parental competencies regarding interactions, sensitivity to the child’s demands, and parental representations (mentioned above), as well as characteristics of pre-adoption context (age at adoption, origin, adoption from care, early institutional/ environmental experiences etc.).

To be more specific, the experience of adoption makes the adopted child deal with more rather complex emotional issues, such as rejection and grief at an early age (Journal of Child and Adolescent Psychiatric Nursing, 2002). Even though adopted children can grow up joyfully, as stated above,

but they grow up differently as well, and both internal and external factors could have an impact for adoptees further development (Smit, 2002). Many believe the increased incidence of referral for adjustment problems is the result of the psychological impact of adoption on children (Brodzinsky, 1993; Brodzinsky & Schechter, 1990; Brodzinsky, Schechter, & Henig, 1992; Kaye, 1990; Melina, 1986, 1989; Smit, 1996; Watkins & Fisher, 1993 cited in Journal of Child and Adolescent Psychiatric Nursing, 2002).

Therefore, the psychological impact of adoption means that adopted children and their both biological and adoptive families face unique challenges: loss, grief, rejection with accompanying feelings of guilt/shame, identity, and intimacy/relationships issues etc. (Neil, 2007 et al.): • Loss is the primary adoption-related matter from which the other issues flow. Adoption involves many losses for the child (Journal of Child and Adolescent Psychiatric Nursing, 2002). Adopted children have lost the chance to be “normal” like their friends who are growing up in their biological families. Child also may have lost siblings, birth order, and other connections with the biological family. Another unique feature of adoption is that the adopted child must cope with losses that are less obvious, e.g. in the case of death, society provides the rituals of funerals and the gathering of people to support the person who is mourning (Tunncliffe and Briggs, 1997; Grollman, 1990 et al.). However, losses of adoption frequently are not recognized, nor are there established rituals or ceremonies to mourn such losses. For the adopted person, loss in adoption is not a single event but a series of ongoing losses: birthdays, Father’s Day, and Mother’s Day can be viewed as a reminder of the original loss and the ongoing nature of that loss (Smit, 2002). • Adopted children have experienced significant losses, and grieving these losses is rather important for healthy adaptive development (Journal of Child and Adolescent Psychiatric Nursing, 2002). Grieving is a natural and necessary response to the adoptive experience as well as to the death of a loving one, parents’ divorce, migration etc. (Goldman, 2000). The losses of adoption may be less obvious and less likely to be acknowledged, thus the adopted child and others may deny the grief being experienced. Behavioral changes seen in elementary school-age adoptees that reflect grieving include anger, aggression, oppositional behavior, and uncommunicativeness, depression, and self-

image problems. Feelings of anger, resentment, and sadness may be projected onto the people available to the child, especially the adoptive parents. Besides grief in adolescence may be expressed with anger and defiance. • Child’s feelings of loss are heightened by feelings of rejection (Silverstein and Roszia, 1999 see in Smit, 2002). As the child matures, he/she begins to wonder why his/her birthparents or someone from the extended family did not choose to care for him or her. Adopted children may view themselves as responsible for the birth family decision not to parent them. Because of egocentric thinking, they feel they were bad, defective, unlovable, and unworthy (Journal of Child and Adolescent Psychiatric Nursing, 2002). A sense of deserving the loss and rejection may lead them to feel guilty and ashamed.

Taking into account those challenges and the models of coping with them, the possible consequences in later child’s development stages could become obvious, i.e. at the moment of expanding social network in adolescence, many adoptees, in regard to their specific “internal working model of attachment” may present a difficulty in establishing selective bonds with others, leading to social withdrawal and feelings of helplessness (Pratti, 2005; Sroufe, 2005 cited in Adopted adolescents: Attachment and behaviour problems, 2009).

Conclusions

Open adoption is mainly seen as the phenomenon that allows the adopted child freely to communicate with both birth and adoptive parents and this process leaves no place for any hidden psychological or even identity obstacles within child’s interaction with his/her closest environment. Openness no longer refers simply to open communication between adoptive family members but also relates to the degree to which information passes between birth and adoptive families and to the level of contact and ongoing relationship between these enmeshed families.

Along with the positive intentions of adults to foster or adopt a child some psychological negative outcomes of child‘s adoption/foster process may be seen as well, especially having in mind the international adoption, that has some effect on emotional and social development in adolescence, specifically in regard to attachment and separation processes.

It becomes also much clear that the psychological impact of adoption in many cases means that adopted children and their both biological and adoptive families face unique challenges: loss, grief, and rejection with accompanying feelings of guilt/shame, identity, and intimacy/ relationships issues.

Therefore it is of great importance to understand which and how the underlying factors may intervene in the pre and post adoption processes, in order to prevent difficulties and vulnerabilities, and to optimize chances for an optimal child‘s psychosocial development. Secure attachment could be as a protective factor regarding behavior problems in childhood and social support along with networking may assure this secure attachement to be fulfilled.

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