![International Law Compared with the Constitutions of Central and Eastern European Countries (Outline of the Problem)](/api/image/getissuecoverimage?id=picture_2002_2718.jpg)
Keywords: principles of EU law; principle of subsidiarity; principle of loyal cooperation; principle of proportionality
The principles specific to the implementation of EU law have as characteristic that they mark the specificity of EU law in relation to other legal orders, from national or international point of view. These principles include the principle of conferral, with multiple consequences on the entire EU system, but also the principle of subsidiarity, proportionality or of sincere cooperation.
More...Keywords: contract; European law; Romanian law; consumer behaviour;
The European Union's internal market has the potential to become the largest retail market in the world, but at the moment it is fragmented into 27 markets, hence the market is created within national borders. Technical progress and open e-commerce opportunities are way ahead of consumer behaviour and even the dealer’s. There are still major retainers in purchasing products from another country, not knowing the way your interests as a consumer are protected by the laws of that State. The current market conditions are fundamentally different from those existing at the time of adoption and subsequent transposition of Directive 93/13/EEC. The minimum harmonization proposed by that State has been effective up to a point, but it is obviously not enough. The national regulations raise barriers to the internal market, affecting traders and consumers. The full harmonization of some key regulatory aspects will considerably increase the legal security for both consumers and traders. Both consumers and traders will be able to rely on a single regulatory framework based on clearly defined legal concepts that govern certain aspects of the contracts concluded between traders and consumers in the EU. The effect of such harmonization will eliminate the barriers stemming from the fragmentation of the rules and will create the internal market in this field. These barriers can only be eliminated by establishing uniform rules at the Union level. In addition, consumers will enjoy a high common level of protection across the Union37, and the harmonization will be full, the Member States being able to maintain or introduce in their national law, also provisions diverging from those laid down in this Directive, including more or less stringent provisions, to ensure a different level of consumer protection. Unfair terms in consumer contracts represent only a segment in consumer protection field and it is a topic that has recently come to the attention of the public opinion in Romania, together with the consumption credit problem. The media insisted especially on this issue, given a certain degree of novelty, and due to the large number of people affected. The purpose of this approach is not to analyse this problematic sector of credit agreements, but to define some terms used by the Romanian legislation and analyse a relevant case law of the Court of Justice of the European Union, on the interpretation of the rules of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts and how relationships between consumers and traders will be affected that as an effect of the adoption this year of the new Directive on consumer’s protection.
More...Keywords: principles of EU law; principle of subsidiarity; principle of loyal cooperation; principle of proportionality.
The principles specific to the implementation of EU law have as characteristic that they mark the specificity of EU law in relation to other legal orders, from national or international point of view. These principles include the principle of conferral, with multiple consequences on the entire EU system, but also the principle of subsidiarity, proportionality or of sincere cooperation.
More...Keywords: labour law; approximation; association agreement; European integration
In 2014, Georgia signed the Association Agreement with the EU. The Agreement obliges Georgia to fulfil specified obligations in labour law field. Despite the fact that labour relations in Georgia have been for many years the subject of theoretical and practical research, European standards are still hot and permanent topics of social and economic life. Now, there is in particular a lack of understanding of the sense of the AA provisions. It should be stressed that the topic of labour law is not only on current agenda through the course of European integration. The necessity for gradual integration and implementation of European labour standards has been permanently discussed since the Partnership and Cooperation Agreement (PCA) between the EU and Georgia, which entered into force in 1999. The paper reviews the following issues: Obligations Defined by the Association Agreement: theoretical approach of explanation and interpretation of AA provisions on labour aspects in the light of the DCFTA and the Social Policy. Attitudes on the Association Agenda and Annual Action Plans are discussed as well. Dynamics of approximation of Labour Law on the Background of Normative Environment Supporting Euro-Integration Processes attempt to summarize and systematize all stages of legal approximation process in the labour field in the light of European integration, covering the early periods of PCA implementation, the National Harmonization Strategy and the Action Plan for 2004-2006, the ENP AP, and the annual progress reports of the European Commission.
More...Keywords: European Court of Human Rights; burqa and niqab; living together; Muslim veil; religious freedom; proportionality
This article analyses the three cases where the argument of “living together” was engaged by the ECtHR and accepted as a legal justification for the prohibition of the full-face veils (burqa and niqab): SAS v. France (2014), Belcacemi and Oussar v. Belgium (2017), and Dakir v. Belgium (2017). It analyses the proposed concept of “living together” itself, explaining its content and its development in the French and Belgian contexts. The paper argues that there is a lack of a robust legal analysis sufficient to legitimize this new argument. Finally, it makes the case for more fact-oriented decisions and the need for the Court to engage in evaluating all the knowledge it obtains, including empirical material brought by the third parties’ interventions. This could be beneficial for two reasons: facilitating the application of the proportionality test and protecting the Court itself from dangerous challenges to its authority.
More...Keywords: wine; Court of Justice of European Union; intellectual property; international agreement; taxation;
It must be observed that a quality wine is a very specific product. Its particular qualities and characteristics, which result from a combination of natural and human factors, are linked to its geographical area of origin and vigilance must be exercised and efforts made in order for them to be maintained. (Court of Justice of European Union, Rioja Wine Judgement)1 The present paper will consider some of the most relevant judgements of the Court of Justice of European Union regarding wine. Coincidentally or not many of these cases are also landmark decisions of the European Union law. The purpose of this paper is to present the variety of European Union law areas enriched through the Court wine judgments: intellectual property, free movement of goods, fiscal barrier to trade, EU legal order, fundamental rights, public health and external relations. Surveying the wine jurisprudence of the Court of Justice of European Union resembles a wine testing. One can sense the savours rich bouquet that the case law expresses, on strong cultural choices, policies, lifestyle or identity at national and European level.
More...Keywords: termination of right; fiscal law; relevant jurisprudence; recent CJEU approach;
The paper analyses the changes that have lately appeared in the legal regime of the termination of right, in the field of public law, in general, and for the tax law, in particular. We have found major mutation in this legal institution, in the sense of modifying the effects of prescription of this legal concept as a whole. It is not the first time when, solving cases that are subject to trial or answering questions raised in the preliminary procedure, the CJEU creates new legal rules, affecting principles of fundamental value that until recently have seemed untouchable. Thus, in the very recent opinion of this court, expressed in VAT matters, the right to reimbursement of the tax may also be invoked after the period of prescription has been fulfilled. The paper analyzes this jurisprudence by anticipating how it will modify the internal legal framework for institution of prescription in taxation. The prescription of material right to action is one of the institutions with a long influence in the history of legal sciences, equally marking all branches of law. The concept of prescription is analyzed in the doctrine of tax law, especially due to the particular nuances conferred by the legal nature of the tax law cases. The effects of the prescription have always been the same: the paralysis of the possibility to obtain the execution of a violated right uses the state's coercive force. Traditionally, the prescription of right was considered an absolute impediment, blocking not only court action to recover prejudice, but any other mean to obtain the enforcement of the law, except for the situation when the execution intervenes voluntarily. This regime has changed mainly on the impulse of the jurisprudence and the regulation in force is still adapting to the new status of the concept. Presently, new perspectives for research and development of tax law theory are opened at EU level and, consequently, in Member States' legislation.
More...Keywords: labour law; collective agreement; legislation; industrial relations;
Is the intervention of the state in regulating collective labour relations a useful and beneficial tool, or rather a discouraging one? This is a long time concern of the doctrine, of the law-makers and of the practice of European industrial relations. And, on the background of different traditions and goals, the options are most diverse. Almost everywhere, the economic crisis and the digitalisation have altered the ratio of what the legislator has assumed and what is left to the social partners to regulate. Sometimes, the state has withdrawn to a certain extent from the process. Freed from constraints, the social partners have become more responsible than in the previous decade for the concrete way of negotiating and regulating collective relations. In other cases, the legislator felt the need to intervene more forcefully to offset the fragility of social dialogue. The paper aims to present some of the European options in the field and to place the experience of the Romanian law in context.
More...Keywords: labour law regulation; flexicurity; social and labour market program; European Pillar of Social Rights; social dimension of the EU;
Over the past decades, the world of work has been changed. The concept of flexicurity was to provide answers to the challenges that arised. What has happened with security in the European Labour Law, what can be discerned as the European Pillar of Social Rights has been adopted? How has the social dimension of the EU been altered? The article attempts to give an overview of the Pillar from a point of view, according to which the Pillar is an employment model and a social and labour market program in itself.
More...Keywords: European Union; legislative procedures; national law; institutional clauses; legislative act;
There is a specific social normativity attributed to each human collectivity in kind (be it of habit, moral, religious, or legal).Legal normativity – a species of social normativity – manifests in the territory of all and any nation, of any state, including in the European Union – a modern, contemporary, atypical association of states.The lawmaking procedure and the adoption procedure of legislative acts at the level of the EU. Although inspired by the classic models of national states, it has its own particularities, starting from the institutional structures/entities with a competence in initiating drafts for legislative projects, up until the distinct procedural rules, and some of them different from those in the law of the member states of the EU.The present study focuses on the concrete manner of elaboration of legislative acts at the level of the EU, bringing into the analysis, as a comparison to the specific regulations in the Romanian law, the main aspects that concern the legislative initiative, the institutional clauses – seen at the level of the EU, after the coming into power of the Treaty of Lisbon, as a compromise between procedural rigidity and the need for flexibility and celerity of the European construction – the ordinary legislative procedure and the special legislative procedure.
More...Keywords: Sovereignty; Public law; administration; Legal order of the European Union; Development paradigm;
The aim of this study is to arouse a debate involving specialists in the field of public law - theorists, practitioners, researchers - and is intended to be a forum for analysis of new research directions on the transformations of public law in the national and European space after the year 1989 and their influences on state sovereignty, as well as the administrative codification in our homeland, where this need for proceduralisation from several directions is felt: public administration, administrative litigation judges and administrative law practitioners. Especially now when we are offered, perhaps not by chance, the opportunity to discuss some conceptual and legal issues of social expression, at least for the last two decades in the attention of those interested in the administrative phenomenon. My daughter wants to have the opportunity to build a secure future in Romania; to study, to get involved in his country and to establish a family. And I think that we citizens, we have to take control of what is happening in our Romania. I want a safe Romania where the administrative law - material and procedural - is part of everyday life. The protection of citizens must be the first priority. The administration must be strengthened and the judicial system improved. We are one of the last states of the European Union that does not have a code of administrative procedure under the conditions of an accentuated Europeanization of administrative law. And regarding the Administrative Code, at the date of the appearance of this study, the Constitutional Court of Romania has already ruled, but it is still to decide, once again, on the unconstitutionality of our administrative Code, adopted by emergency ordinance!
More...The system of consumer protection may be classified from several points of view. The most elementary classification distinguishes between private law protection and public law protection. While private law protection is provided for mainly in the Civil Code No. 40/1964 Sb., as subsequently amended, and in other legal regulations containing norms governing private law relations – such as the Act No. 99/1963 Sb., the Rules of Civil Procedure, and the Act No. 59/1998 Sb. on Liability for Damage Caused by Faulty Products, the public law protection of consumers is to be found mainly in the following legal regulations.
More...Keywords: monetary law; EU;monetary jurisdiction;International Monetary Fund; lex monetae
The subject of analysis in the paper is the examination of the application and derogation of the contemporary international and European monetary law principles. In this context, the first part of the paper points to the specificity of the subject of legal regulation of international monetary relations and examines the normative features of the international monetary system. The second part of the paper points to the basic postulates of international monetary law, embodied in the principles of traditional lex monetae and lex contractus, with particular emphasis on the application of these principles in globalized financial flows. The subject of the analysis is to identify the new wave in development of the legal regulation of monetary relations, as well as the role of International Monetary Fund in the process of money regulation, which, according to the author, has significant implications not only for preserving the acquis and values of the international monetary order, but also for the maintenance of internal monetary stability.
More...Keywords: Consumer Protection; New Contract Law; Information Duties; Right of Withdrawal; Codice del Consumo
This paper deals with the recent normative modifications introduced in the European Union by the Directive 2011/83/EU (aimed to realise a full harmonisation of member states’ rules in some aspects of consumer and contractual law), and consequently in Italy, through the Legislative Decree No. 21/2014 (which transposed the supranational source). As it is known, the principal legal instruments used in the last years by the EU to protect the weak parties are the ‘information duties’ and the ‘right of withdrawal’. The new rules try to strengthen them, but the implementation of the European Directive in Italy gives rise to many arguable points and perplexities.
More...Keywords: Emperor Justinian; Christian marriage; Imperial Constitution; Roman marriage law;
A careful examination of the text of the Imperial Constitution promulgated byEmperor Justinian in 530 has given us the possibility of fi nding out that the lastroman Emperor was constantly concerned with protecting the vulnerable interests ofwomen and children, whom he recognized, in fact, as “legitimate” even if they wereborn within a marriage with a “concubine”.Justinian stipulated, in this Imperial Constitution, that a “marriage” (matrimonium)is “iusta” (legal) only if it is concluded in accordance with the constitutionalprovisions of that time, that is, with the consent of “pater familias”, except if hesuffers from “madness”, the consent of the future spouses, the existence of a dowry,the conclusion of a marriage contract, and, fi nally, the performance of the HolySacrament of Marriage. This confi rms to us, in a peremptory way obviously, the factthat, “in illo tempore”, the religious, Christian marriage had already a well-defi nedlegal status.
More...Keywords: European supervision order; supervision measures; adaptation of supervision measures;
The article analyses the conception of the European supervision order (hereinafter – the ESO) as well as some theoretical and practical problems arising in the process of implementation and effectiveness of the ESO. The authors, being guided by the currently existing legal provisions, legislative ideas and jurisprudence of the European Court of Human Rights (hereinafter - the ECHR), formulate the question whether the ESO is an operating mechanism of the international cooperation in criminal proceedings or a nice idea remaining on paper. The attention is hereby drawn to the fact that this segment still remains at the searchdiscovery- search stage. The today's topical issues compel to acknowledge that in the absence of the criteria that are regulated at the level of the European Union, which must be taken into account by the issuing State when considering the person's or his/her defender's application to issue the ESO, the niche is left for Member States to misuse their right and not to issue the ESO even in the justified cases. Finally, it is hereby emphasized that the significant aspects that are related to the realization of the person's right to defence, to the appeal against the decisions, which were made by the issuing and executing States, remain not covered by Council Framework Decision 2009/829/JHA "On the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention" of the 23rd of October, 2009 (hereinafter - Framework Decision). The article calls into question whether it is appropriate to move the issue on the compensation of costs on the issuing State's shoulders. A relatively short time has passed since the implementation of this document in the national law of Member States; therefore, the ESO topic remains relevant and new in the scientific plane; the future prospects of application of this legal mechanism are of interest. The authors are not inclined to submit final answers at this stage of the ESO existence, but they suggest some possible ways for the solution of problematic issues.
More...Keywords: Cultural heritage; European Union; law and policy; anthropology; governance; EU law; right to culture; book review;
The review of: Andrzej Jakubowski, Kristin Hausler, and Francesca Fiorentini (eds.); Cultural Heritage in the European Union. A Critical Inquiry into Law and Policy; Brill / Nijhoff, Leiden 2019, pp. LVI, 472, ISBN 978-90-04-36534-6
More...Keywords: International law; European Union law; human rights; child protection; asylum-seekers; Fundamental Rights Agency;
The present study is based on the implementation of the UN Convention on the Rights of the Child in terms of immigration in recent years in Europe. There are analyzed some aspects of migration regulations and their implementation in cases of underage migrants in the European Union.
More...Keywords: transparency principle; public procurement law; EU law; zasada przejrzystości; prawo zamówień publicznych; prawo UE
The aim of this article is to investigate how the principle of transparency, deriving from the Treaties and the secondary law, is implemented in the course of conditions and rules imposed during the public procurement procedure. Firstly, the principle of transparency in the EU legal system is discussed and explained are its sources, types and aspects, as well as the necessity to adapt it with time. Secondly, the principle of transparency in the EU public procurement law is outlined, with particular emphasis on its sector specific sources and aims it serves. Furthermore, the question is analysed whether the notion of “transparency” is a principle or a legal obligation, used to implement other principles. Thirdly and lastly, the principle of transparency is discussed, as reflected at different stages of public procurement procedure.
More...