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„Mecanismul de cooperare și verificare” (MCV): cadru juridic, abuzuri și remedii

Author(s): Adrian Severin / Language(s): English Issue: IV/2016

The Cooperation and Verification Mechanism (CVM) represents a legal instrument by which a process of regular monitoring takes place in what concerns progress made by Romania (and Bulgaria) in the fields of the judicial system reform, eradicating corruption and fighting organized crime. According to the “principle of conferral”, the competence of the European Commission (EC) to create and use such an instrument has to be conferred by treaties. In the context of the treaties’ silence, the EC can establish CVM only using its implicit competences recognized in order to allow the monitoring of the fulfillment of the new member states’ commitments (in this case, Romania) made through the EU Accession Treaties. When fulfillment of these commitments is explicitly warranted by safeguard clauses, it follows that CVM is their main accessory. As a consequence, according to the accesorium sequitur principalem principle, CVM loses its validity at the moment when the period of validity of the safeguard clause expires; which, in Romania’s case already happened on the 1st of January 2010. As the EC control competences are exercised under censorship of the Court of Justice of the European Union (CJUE), Romania can demand to the latter, if necessary, to ascertain CVM caducity and obligation of EU and Member States to respect its consequences.

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Problematica determinării centrului intereselor principale ale debitorului şi noul Regulament European nr. 848/2015 privind procedurile de insolvenţă

Author(s): Luminiţa Tuleaşcă / Language(s): Romanian Issue: IV/2016

The issue of determining the governing jurisdiction is essential in the cross-border insolvency proceedings, since in relation to the internationally governing court, when a main insolvency proceeding is opened, there are established the solutions applicable to other issues such as: the law applicable to the proceeding, the merits and proceeding requirements for the opening of the proceeding, the effects of the proceeding’s opening.On this basis, among the considerations that have led to the enactment of the new (EU) Regulation 2015/848 on insolvency proceedings were the deficiencies noticed in the practical application of the concept of "debtor's center of main interests" enshrined in the European law as criterion for determining the international court competent to open a cross-border insolvency proceeding.In this context, we will analyze and highlight the key issues and criteria used in determining the debtor's center of main interests in the light of the new (EU) Regulation 2015/848 on insolvency proceedings and the relevant case law related to the cross-border insolvency at European level where the determination of COMI has generated the intervention of the Court of Justice of the European Union and the amendment of the European legislation on insolvency.All these for the cases where the debtor's center of main interests is located in the European Union.

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Evoluţia dreptului român în domeniul jocurilor de noroc şi standardele europene în acest domeniu

Author(s): Cristina-Maria Badea / Language(s): Romanian Issue: IV/2016

This study aims at presenting the development of the Romanian legislation in the field of gambling, particularly related to the manner in which the applicable legislation cross-references the European Standards elaborated over time. We will start by examining the aspect of the multidisciplinary approach of both the general domain and of the criminality related to gambling, by exposing briefly, and only regarding the essential aspects, the development of the Romanian legislation in this field and its compatibility with the principles of the European Union. Within this analysis, the main regulatory directions at the European Union level will also be laid down, (as currently there are no specific regulations in this domain, but only recommending acts and the principles elaborated by the case law). The gambling institution is a rather delicate subject in the context of the internal market of the European Union, also known as the Single Market (governed by the two fundamental principles, the freedom of establishment and the freedom to provide services), as this is a domain in which it is difficult to intervene by means of European mechanisms, under certain restrictions related to the legislative policies chosen by various member states, essentially regarding a vice, policies intended to fight against addiction and squandering.

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Personalitatea juridică a ONU şi NATO

Author(s): MIHAIL NIEMESCH / Language(s): Romanian Issue: IV/2016

The evolution of international relations between the states of the world from the political and socio-economic point of view has led to the formation and establishment of international organizations among the topics of international law. Generally, until the Second World War only states were considered subjects of international law. The historical reality shows that since the nineteenth century in Europe and America new sovereign states were formed, a situation that "forced" and determined the emergence of new mechanisms of interstate cooperation.

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Necesitatea reformării sistemului sanitar românesc în spiritul aplicării standardelor de protecţie europene referitoare la mobilitatea pacienţilor. Cauza Petru

Author(s): Cristina-Luiza Erimia / Language(s): Romanian Issue: IV/2016

Due to the rich jurisprudence of the Court of Justice of the European Union, citizens' right to use, increasingly free of constraints, cross-border health services, generally known as the concept of patient mobility, could be clearly outlined. In this context, this article examines the need to reform national legislation in order to eliminate any restrictions to the fundamental freedoms of European citizens. This article aims to analyse, on the one hand, how the standard of protection created at the level of the European Union by means of the Directive on cross-border healthcare is implemented and complied with in national legislation. On the other hand, by presenting the Petru case, the article examines the degree of harmonization of national policies in view of reforming the Romanian health system, in order to create a modern health system, which is a central component of social protection, contributing to social cohesion and social justice, as well as to the sustainable development of the European Union. Therefore, in order for a modern health system to be created, it needs to be centred on patient needs, to have dynamic and integrated structures, adaptable to the various and changing healthcare needs of society in general and of individuals in particular and which, not least, must recognize the active role of the patient as partner in healthcare policies.

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Ocrotirea libertăţii sexuale şi de orientare sexuală a persoanei la nivel european şi internaţional

Author(s): Andrada Nour / Language(s): Romanian Issue: IV/2016

In this scientific approach, we plan to speak about the way protection of sexual liberty of person is seen, analyzed and incriminated in terms of the provisions of the European and international documents, the liberty of sexual life of the person being an essential component of the right of people to the private life, without losing sight of the issues that have given rise to controversy regarding the repercussions caused by the criminalization formula. We also treated and the issue of sexual orientation, sexual freedom's essential component both in European and international vision. In preparing the paper we use established research methods, such as documentation method, logical method, comparative method, the method applied and jurisprudence examination. There were considered legal doctrine in the country, published and unpublished judicial practice solutions, opinions expressed by foreign authors and comparative presentation of certain provisions of the law of other states, seeking to capture their criminalization developments and prospects, implications and difficulties arising in practice courts.

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Modificarea teritoriului de stat în dreptul internaţional – interzicerea şi prevenirea modificărilor teritoriale ilicite

Author(s): Corina Florența Popescu,Maria-Irina Grigore-Radulescu / Language(s): Romanian Issue: IV/2016

The study aims to highlight the doctrinal developments and the evolution of the international law in the context of the modifications from the international society within the complex process of the new states’ formation, being analysed the main doctrines and directions from the researched domain within the context of the fundamental modifications caused by the revolutions from the period 1989- 1991, followed by modifications of the state territory and the reconfiguration of the international relationships.

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Informaţie, entropie şi comunicare

Author(s): Ruxandra-Victoria Paraschiv / Language(s): Romanian Issue: IV/2016

This article considers the link between law and psychology through the raw material used by both sciences, that is information. Few important changes are prognosed in the matter of law due to the progress of information technology and appearance of integrated biological and non-biological systems. Law as a science of regulation of society behavior is close to psychology that studies the behavior of individuals and therefore they can use common concepts and principles.

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The European Union’s Twilight?

Author(s): Adrian Năstase / Language(s): English Issue: V/2017

The European Union is in a state of recovery from recently emerging crises such as Brexit, the waves of refugees and the Greek crisis. Many illusions have already vanished. In order to achieve global power status, expansion and reunification, Europe needs, primarily, to mend its wounds. The proposed solutions – various speeds, different rhythms – highlight the West’s intention to disengage itself from the European perighery. For Romania, the European project remains of tantamount importance, as long as it will not enhance its discriminatory practices (MCV, the Schengen zone are already examples). Perhaps it is also time to discuss complementary projects, including those that concern strengthenining ties with our neighbours.

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The Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union – legal and procedural considerations

Author(s): Gabriel-Liviu Ispas,Daniela Panc (Dancă) / Language(s): English Issue: V/2017

The date of March 29, 2017 marks the beginning of the countdown for the exit of the United Kingdom of Great Britain and Northern Ireland (United Kingdom) from the European Union. The new situation created for the Union is a political, legal and economic challenge, with unpredictable and irreversible consequences, but it also represents an impetus to relaunch the European project. This paper proposes an examination of the main events related to the withdrawal decision from the European Union (EU), highlighting the UK perspective outlined in the Letter of Notification of Withdrawal under Art. 50 of the Treaty on European Union (TEU), addressed to the European Council. Moreover, this approach includes an analysis of the withdrawal procedure in accordance with Art. 50 TEU, as well as a critical presentation of the perspectives of European leaders on the future of the Union in 27 Member States, with emphasis on the implications for education in Romania.

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The European Economic Constitution in the Context of Europeanization

Author(s): Andrei Tinu,Luiza-Florentina Cureluşă / Language(s): English Issue: V/2017

At the beginning of 2017, we celebrated 10 years since Romania’s accession to the European Union, a European decade marked by continuous developments. Romania’s comeback among the European democratic family led to a visible improvement of the Romanians’ living standard quality, reflected in each level of the community: both economically, as the Romania’s GDP is 13% higher after ten years, and juridically, as the accession implied assuming the honouring of a rights and liberties set, among which we are mentioning the most visible one, the freedom of movement on the territory of the European Union.But what is the price to be paid by us and other partner countries? Under the mask of attuning the national legislation with the European one, is there a hidden loss in the sovereignty of the member states? In the search for these answers, the present study aims to analyze the model of a European economic Constitution, as well as the concept of Europeanization.

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Is there an European Union Normative System? Three Theories on Normative Systems

Author(s): Andrei-Răzvan Lupu / Language(s): English Issue: V/2017

This paper aims to analyse the possibility of rules enacted by the European Union’s institutions to form a normative system independent of those of the member states. Towards this purpose, three potential models of systemic structuring of rules enacted by the European Union are identified in the first part. Subsequently, the theories of normative systems advanced by J. Austin, H. Kelsen and H.L.A. Hart are analysed so that, in the end, the choice of one model of systemic structuring and the normative systems theory that could best explain the European Union’s legal status to be expressed, expounding at the same time on the opportunities offered by their use.

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The Lawmaking Procedure At The Level Of The European Union vs. The Lawmaking Procedure In Romanian Law

Author(s): Mihai Bădescu / Language(s): English Issue: V/2017

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.

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BREXIT and the European legal framework of data protection: implications on security cooperation and information sharing

Author(s): Daniela Baches / Language(s): English Issue: V/2017

The article presents the current and future European legal framework of personal data protection in the context of BREXIT, and the legal implications of the leaving vote on the security cooperation and information sharing within the EU. By aiming at introducing a discussion about the legal options for both the UK and the EU with regards to the security policies and information sharing, the instrument of soft law harmonisation will be addressed as a possible option of the British Government and a reflection of a continuation choice. In the final section, political alternatives backing a position of legal difference post-BREXIT will be presented.

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Consecration, at an european level, of the information principle and public participation in environmental decision making and access to justice in environmental matters

Author(s): Lidia-Lenuța Bălan,Silviu-Gabriel Barbu,Adelina-Maria Ciobanu / Language(s): English Issue: V/2017

This article is a foray into the field of international and European regulations of the main instruments that reflect the principles of information and public participation in environmental decision making and access to justice in environmental matters.

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The Exercise of the Presidency of the Council of the European Union by Romania

Author(s): Gabriel-Liviu Ispas / Language(s): English Issue: VI/2018

The rotating presidency of the European Union is part of the democratic mechanism in which the states decisively participate in the adoption of the legislative agenda in the Union. The presentation of the organizational aspects, the attributions and the decision-making methods, and of the internal organization shall be complemented by aspects regarding the political and institutional context in which Romania will, for the first time, take over the European mandate, but also by the priorities and fields of action already announced. In the end, the vulnerabilities and the possible means of action will be presented.

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Recent Jurisprudence of the CJEU on Abusive Clauses: The Andriciuc Ruling

Author(s): Mihaela Georgiana Iliescu / Language(s): English Issue: VI/2018

The most recent judgment of the Court of Justice of the European Union on abusive clauses, the Andriciuc judgment, once again demonstrates the substantial contribution of the Court to ensuring uniform application and interpretation of legislation across the European Union. The main issues of law to which the Luxembourg Court will give in the Andriciuc case concern: the ratione materiae scope of application of Directive 93/13, namely the exclusion of clauses which reflect 'statutory or mandatory administrative rules' provided for in Article 1 (2) of the Directive; the conditions for applying the exception to the substantive control mechanism of unfair terms, where they fall within the scope of the concept of "the main object of the contract", the exception provided for in Article 4 (2) of Directive 93/13; the meaning of the phrase "clearly expressed and understandable contractual clause"; the time at which the significant imbalance which an abusive clause is causing between the rights and obligations of the parties must be reported.

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The Relations Between the European Union and the Council of Europe in the Field of Human Rights: Analytic Paradigms

Author(s): Maria Beatrice Berna / Language(s): English Issue: VI/2018

The duality of human rights standards circumscribed at the regional-European level imposes the requirement of a rigorous conceptualization. Acknowledging the peculiarities of each of the two European systems of human rights protection, the logical argument advanced in the present paper resides in the demarche of conciliation through compatibility. We placed in homologated relations the two most representatives' juridical instruments for our subject-matter – the European Convention for The Protection of Human Rights and Fundamental Freedoms and the Charter of Fundamental Rights of the European Union. Taking into account the main dispositions of the two juridical instruments and considering the position upheld by the Court of Justice of the European Union by reference to the possibility of the European Union to adhere to the European Convention, we developed two theoretical approaches having explanatory value: (1) the paradigm of interaction by means of highlighting the peculiarities of each juridical system; (2) the paradigm of rendering compatible the two systems in the hypothesis of the European Union’s adhesion to the system of human rights protection created by the Council of Europe.

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The Establishment of the European Prosecutor

Author(s): Andreea-Mihaela Vitan / Language(s): English Issue: VI/2018

The idea of creating a European Prosecutor's Office to protect the financial interests of the European Union has long appeared to be a utopia, which has been presented since 1997 through the Corpus Juris paper and has been reiterated in the European Commission Green Paper in 11 December 2001, which refers to the criminal protection of community financial interests and the creation of the European Prosecutor. The Treaty on a Constitution for Europe also provided for the establishment of the European Prosecutor's Office. The Union has not given up the objective of setting up the European Prosecutor's Office, so that by amending the founding Treaties of the Treaty of Lisbon, at the primary legislation level, the European Prosecutor's Office has found regulation in Article 86 of the Treaty on the Functioning of the European Union. We will look over several issues related to the competence of the European Union to establish the European Prosecutor's Office from its first proposal of establishment by the European Commission in 2013. The proposal has undergone numerous changes over three years of negotiations, as a mean to in 2017, after a number of 17 states, including Romania, have notified the EU institutions about establishing a form of enhanced cooperation, having as a result the granting of the consolidated form on April 3rd, 2017. The regulations established by Regulation (EU) no. 2017/1939 of the Council implementing an enhanced form of cooperation regarding the establishment of the European Public Prosecutor's Office were also examined as well as some issues concerning its implementations by Romania.

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Evropska Nemačka ili nemačka Evropa: rezultati izbora za Evropski parlament u Nemačkoj i izbor predsednika Evropske komisije

Author(s): Ljiljana Glišović / Language(s): Serbian Issue: 6/2019

This paper aims to present the results of European Parliament election in Germany having in mind that the climate crisis had been the major issue in the pre-election campaign. Germany’s two major parties took significant blow in the European elections. The text also deals with the election procedures of the former German defense minister, Ms. von der Leyen, for the President of the European Commission, and the excessive role played in the whole process by leaders of member states who fail to respect the rule of law bypassing “spizencandadats” as well as with its possible implications for the enlargement process of the European Union to the Western Balkans.

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