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SINTEZE DIN JURISPRUDENŢA CJUE - AJUTOR DE STAT
The text present some Court of Justice of European Union decision on preliminary ruling requests related to state aid.
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The text present some Court of Justice of European Union decision on preliminary ruling requests related to state aid.
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Referral to the CJEU for the pronouncement of preliminary rulings regarding the interpretation of European Union law cannot have a purely theoretical purpose (e.g. the Court Ordinance of October 7, 2013in case C-82/13) but a necessarily practical one, such as to allow the national court to resolve the specific dispute with which it is vested. Therefore, knowledge of the judicial decisions pronounced by the national courts after receiving the answer to the preliminary question from the CJEU is very important to evaluate the implications of the CJEU jurisprudence in the law of the member states and the effectiveness of the dialogue between it and the national courts. Next, the decisions of the courts in Romania are presented in some cases in which the CJEU was referred with preliminary questions, respectively those that were resolved in the cases registered on its roll with no. C-133/17 ?i C-134/17, C-12/17 and C-614/15.
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The applicant was employed by company [...], which entered the bankruptcy proceedings. The defendant was ordered by the first instance court to pay the applicant the sum of RON 4500, representing salary entitlements relating to the months of January to March 2013. The applicant did not appear with salary claims in the preliminary table of claims entered by the liquidator’s own motion, so that she filed a claim against the debtor's estate and lodged an objection. The employee requested payment of salary rights not paid by the insolvent employer under Law No 200/2006 and Directive 2002/74/EC. The claimant's claim was dealt with by the Bucharest Municipal Employment Agency – A.M.O.F.M București, by issuing Provision No [...] concerning the rejection of the application. This provision issued by the territorial agency in accordance with Article 21(1) and (3) of the Law was challenged by the applicant in the present case. The court of first instance upheld the appeal and ordered the defendant to pay the claimant to the applicant the sum of RON 4500. Limitation period applies only to the exercise of the substantive right to legal action. It does not appear from the normative act that it is stipulated in how long/within which the applicant can submit the request provided for in Article 19(2) of Law. The time limit for initiating proceedings is a special one, shorter than three years. Law does not distinguish between stages of insolvency and does not impose a time limit by which the respective salary claims must be reported. The mechanism involving the payment of salary claims, including those payable from the Guarantee Fund, involves both the insolvenhip administrator and the liquidator, which means that the period of bankruptcy is also envisaged. Court finds that the defendant rightly points out that the applicant does not fall within the provisions of Article 15(2) and (3) of Law No 200/2006. Claims that “succeed” the date of opening of the proceedings are the claims of the employees of the employer in a state of insolvency after the month in which the proceedings were opened. Claims arising from activities relating to the closure of Claims that “succeed” the date of opening of the proceedings are the claims of the employees of the employer in a state of insolvency after the month in which the proceedings were opened. Claims arising from activities relating to the closure of business and the preservation of assets during the bankruptcy period are paid from the debtor’s assets.
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If a patient insured under the Romanian sickness insurance system is in possession of a second medical opinion, by which he is prescribed treatment which could be applied under that system, if a doctor affiliated to that system were to prescribe it, the actual impossibility of the patient to undergo the second medical opinion to an effective examination by such a doctor constitutes a restriction on the freedom to provide services provided for in Article 56 TFEU. In the present case, the patient went to a Member State other than that of his residence, not so much because the treatment in question would have been better applied there, but only because he was prescribed there, i.e. because he did not have access to him in the Member State of residence, even if that State provided for it by its legislation, within the meaning of the first sentence of the second sentence of Article 20(2) of Regulation (EC) No 883/2004. The applicant’s author was unable to obtain authorisation under Article 20(2) of Regulation No 883/2004 because of the absence of a procedure whereby he could have submitted the second medical opinion, by which he was prescribed treatment which did not give rise to a disability, to an actual examination of a doctor of the Romanian social health insurance system, when his attending physician, affiliated to that system, prescribed him another treatment, which gave him a disability. The absence of such a procedure to ensure that a second medical opinion issued in another Member State is effectively taken into account, which recommends alternative treatment equally suited to that person’s state of health, but without the disadvantages of the first treatment, constitutes an exceptional circumstance which, in the light of the specific dates of the case, falls within the case referred to in the second sentence of Article 20(2) of Regulation No 883/2004.
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A certificate issued by the Spanish employer, accompanied by the annex regarding the "contribution base", not being accompanied by their legalized translation, carried out by an authorized translator and not accompanied by the forms required by law, do not have the vocation to prove the insurance periods that are the subject of the legislation Spanish in the respective interval, because that document does not come from the competent institution in the country where the applicant claims to have carried out activity and which must be found in form E 207. With the submission of this latter certificate, the insured has the right to capitalize on the internship carried out in another EU state under EC Regulation 883/2004.
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§1. Noţiunea autonomă de concediere din cuprinsul Directive 98/59. Inaplicabilitatea acesteia în aczul unei concedieri individuale reglementate de dreptul national. (The autonomous notion of dismissal contained in Directive 98/59. Its inapplicability in the case of an individual dismissal regulated by national law. ) §2. Conţinutul obligației de consultare prevăzute de articolul 2 din Directiva 98/59. Consecinţele nerespectării acesteia. Despăgubiri pentru prejudicial moral produs salariatului: necesitatea caracterului disuasiv şi prejumarea prejudiciului. (The content of the consultation obligation provided for in Article 2 of Directive 98/59. The consequences of its non-compliance. Compensation for moral damage caused to the employee: the need for dissuasiveness and presumption of the damage. ) §3. Noţiunea autonomă de concediere din cuprinsul Directive 98/59. Condiţiile în care încetarea raporturilor de muncă prin acordul părţilor poate fi considerate concediere în acest sens. (The autonomous notion of dismissal contained in Directive 98/59. The conditions in which termination of employment relations by the agreement of the parties can be considered dismissal in this sense.)
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The dissolution of a public enterprise, charged with the provision of a public service, followed by the taking over and continuation of its activity by the town hall, constitutes a transfers of undertakings within the meaning of Directive 2001/23/EC. In this case, the abolition of some jobs of the former public service and the dismissal of the employees who occupied them is illegal.
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Prin rechizitoriul nr. ####/P/2013 din data de 10.03.2021 al Parchetului de pe lângă Tribunalul București, înregistrat pe rolul Tribunalului București la data de 11.03.2021 sub nr. Dosar ####/3/2021â s-a dispus trimiterea în judecată în stare de libertare a inculpaților […] sub aspectul săvârşirii infracţiunii de evaziune fiscală în formă continuată, faptă prev. de art. 9 alin. 1 lit. c și alin. 2 din Legea ######## cu aplic. art. 41 alin. 2 C.pen. din 1968 și art. 5 C.pen. (6 acte materiale) și […] sub aspectul săvârșirii infracțiunii de complicitate la evaziune fiscală în formă continuată, faptă prev. de art. 26 C.pen. din 1968 rap. la art. 9 alin. 1 lit. c și alin. 2 din Legea ######## cu aplic. art. 41 alin. 2 C.pen. din 1968 și art. 5 C.pen. (6 acte materiale).
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The relatively recent period can be characterized by a lack of involvement of the national legislator towards the system of protection of crime victims. This aspect is proven both by the lack of reaction of the legislator, who failed to correct some provisions with an impact on the prescription of criminal liability, as well as by some uninspired interventions made on several general provisions of the Criminal Code, which established the non-prescriptive character of crimes of trafficking and exploitation of vulnerable people. As a result of the Decisions of the Constitutional Court of Romania no. 297/2018 and no. 358/2022, by which it was found that the legislative solution, which provided that the interruption of the period of limitation of criminal liability is achieved by fulfilling any act of criminal procedure, is unconstitutional, the effects of the special prescription were removed retroactively. These effects were consolidated in the national jurisprudence and as a result of the direct incidence of the principle of applying the more favorable criminal law, provided for by art. 5 of the Criminal Code, which the High Court of Cassation and Justice, through a decision pronounced in the resolution of some legal issues, considered it applicable in the matter of the rules regarding the interruption of the prescription course. In turn, some of the legislative interventions that appeared in 2020 also concerned, in a critical manner, the institution of the prescription of criminal liability, since the legislator, out of the desire to increase the protection granted to minor victims, omitted to recompose the legal norm of art. 154 para. 4 Criminal Code, on the occasion of the amendments introduced by Law no. 217/2020. This fact had the consequence of returning for a short period to the way of calculating the limitation period in the case of crimes of trafficking and exploitation of vulnerable persons and child pornography committed against a minor, in a way specific to the more favorable criminal law. In this context, the legislator's intervention on the punishment limits and the declaration of the non-prescription nature of some crimes of trafficking and exploitation of vulnerable people seems to be a rather late reaction, which cannot cancel the harmful consequences of the inactivity of the actors with a decision-making role in correcting the criminal legislation. In the pages of this study, we will analyze the negative aspects generated by these legislative events, which determined a much lower standard of protection for victims of human trafficking and which are likely to violate the positive obligation of the Romanian state to investigate and sanction a series of serious acts repressed by international conventions ratified by Romania. Failure to fulfill this positive obligation on the part of the state and the implications of a defective legislative policy marked the way the rights and freedoms guaranteed to victims are protected in our country, because the criminal justice system must ensure a real and effective protection of the values protected by law, so that the objectives pursued by the various international legal instruments do not become mere intentions.
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Conform articolului 267 din Tratatul de funcționare al Uniunii Europene, instanţa de judecată, din oficiu sau la cerere, poate solicita Curţii de Justiţie a Comunităţilor Europene să se pronunţe cu titlu preliminar asupra unei întrebări ridicate într-o cauză de orice natură şi care se referă la validitatea sau la interpretarea unuia dintre actele prevăzute la art. 35 paragraful (1) din Tratatul privind Uniunea Europeană, în cazul în care apreciază că o decizie în această privinţă este necesară pentru pronunţarea unei hotărâri în cauză.
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These records, sorted by areas of interest and in relation to the applicable EU law, gather in a synthesis format, for ease of use, all the precise 679 references for a preliminary ruling, dealt with by ECJ within the timeframe, published or not in the General Electronic Register of the Court, gathered from the Curia website - "Case Law" link (curia.europa.eu), or from the official website of the European Union (eur-lex.europa.eu)
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The lack of reaction of the legislator, who failed to correct some provisions with a particular impact on the prescription of criminal liability and the less uninspired interventions brought to some general provisions of the Criminal Code, which established the non-prescriptive nature of the crimes of trafficking and exploitation of vulnerable persons, represent legislative events that left their mark on the victim's right to a fair trial. These events, which have contributed to a visible reduction in victim protection standards, are likely to conflict with the provisions of Article 6 of the Convention, as, in many situations, they have compromised the state's positive obligation to investigate and sanction a series of serious acts repressed by the international legal instruments ratified by Romania. This situation manifests itself both criminally, by hindering efforts to apply effective, proportionate and dissuasive sanctions against the perpetrators of serious crimes, and civilly, as a result of probation difficulties generated by the passage of time. Failure to fulfill this positive obligation on the part of the state and the implications of a defective legislative policy leave their mark on the way in which the rights and freedoms guaranteed to the victims are respected in our country, but also on the collective security that the judiciary in Romania is required to protect. This conclusion is strengthened more and more by the fact that the crime is no longer seen as a simple violation of the laws, but as a harm to individuals and the community, so that deviating from the state's obligation to investigate, in the case of serious acts, represents a major failure of the state's criminal policy and an unfair signal for the victim of the crime, whose legitimate hopes depend to the greatest extent on the way criminal justice is carried out.
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Organul fiscal a sesizat organele de cercetare penală competente în data de 04.09.2014 prin sesizarea nr.####/28.07.2014. Potrivit Ordonanţei din data de 05.07.2023 au fost îndeplinite următoarele acte de procedură : Ordonanţa nr. ####/P/2014 din 26.09.2014 prin care s-a dispus începerea urmăririi penale în rem cu privire la infracţiunea de evaziune fiscală prevăzută de art. 9 alin. 1 lit. b din Legea ######## cu aplic.art.35 alin.1 Cod penal.
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The digital transformation of public relations has become possible with the introduction of artificial intelli- gence, the Internet of Things, cloud computing, immersive technologies, and data analytics. These technologies make it possible to create a metaverse where communication, knowledge acquisition, work, business, investment, creativ- ity, and much more are available to everyone. The article offers an in-depth analysis of the institutional legal framework governing the international financial architecture within the realm of digital transformation. It explores regulatory mechanisms and developmental trends within the legal and financial systems of both the European Union and the Republic of Poland. The study delves into instances of commercial fraud involving digital assets, thoroughly examining their implications on the traditional financial system. In the virtual world, the capital market has no borders and jurisdictions. False and unreliable information has become an instrument of manipulation by society and is actively used by market participants. The conventional financial system experiences a loss of control over its functions, particularly in the process of converting fiat funds into digital assets. Decentralized finance regulated by cryptocurrency can replace the Bretton – Woods system. Blockchain is “a technology of utmost honesty” in data transmission. The task of society is to be guided by ethical, social, moral, and environmental aspects in the initial placement of information. The effectiveness of legal regulation of the digital environment is possible only with the adoption of regulations, rules, and recommendations of international organizations in the legislation of each country. A single principle of legal regulation will allow us to build a more just world and its sustainable development.
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Objective: The main aim of the study was to demonstrate how the lack of appropriate regulations affects the nomenclature used for non-alcoholic equivalents of alcoholic beverages available on the Polish market, and thus highlight the problems that arise from the lack of regulation for consumers and producers.Research Design & Methods: A semantic and comparative analysis of the names appearing on the labels of non-alcoholic equivalents of alcoholic beverages available on the Polish market was conducted. The research methods used include desk research and document research, including legal-dogmatic analysis and observation.Findings: The lack of clear legal requirements for the nomenclature of non-alcoholic equivalents of alcoholic beverages was revealed. It was found that there are discrepancies in the names of products in the product categories studied, and it was established that both products containing up to 0.5% and those with 0.0% alcohol by volume are mostly labelled under the same name (“non-alcoholic”). This can cause a number of doubts not only among consumers, but also among the entities labelling the goods.Implications / Recommendations: Given this state of affairs, it would make sense to introduce regulations to provide guidelines for the nomenclature and labelling of such products in order to ensure food safety and protect consumers.Contribution: Using proper, accurate nomenclature on alcoholic beverage substitutes is crucial for supporting management decision-making and conducting marketing activities that guarantee reliable and lawful information for consumers.
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Since it is a fundamental principle of the common system of VAT established by EU law, the exercise of the right to deduct VAT cannot be denied by introducing additional substantive or formal requirements other than those laid down in EU law. Therefore, in so far as it can be established that the merchandising services offered by the respondent’s contractual partner were supplied for the benefit of its taxable transactions, it is irrelevant whether those services were provided in relation to goods which the respondent had already ordered as an owner and had transferred the ownership of them to a third party, nor the fact that, at the time of the actual supply of the services, the goods were no longer in his detention but were in the commercial premises of the third party for sale by the latter.
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The sole reason that the taxable person had only a proforma bill when he decided to deduct VAT does not preclude the right to deduct the input VAT as long as the taxable person obtains a proper bill afterwards. The national tax authorities can not refuse a taxable person the right to deduct, from the value added tax which he is liable to pay, the amount of the value added tax due or paid in respect of the services supplied to him, on the ground that the issuer of the invoice relating to those services, or one of his suppliers, acted improperly, without that authority establishing, on the basis of objective evidence, that the taxable person concerned knew, or ought to have known, that the transaction relied on as a basis for the right to deduct was connected with fraud committed by the issuer of the invoice or by another trader acting earlier in the chain of supply.
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The study covers a theoretical analysis of the criterion of necessity in democratic society, which appears in several provisions of the European Convention on Human Rights and plays an important role in the assessment by the European Court of Human Rights of the activities of authorities of member states of the Council of Europe involving interference with such important rights as the right to privacy protection or freedom of speech, religion, assembly and association. Apart from the linguistic analysis of the phrase, it was found that this criterion can be considered as a component of the general reference clause in the context of its application and interpretation. Its axiological content associated with the type of references has been placed within the area of classic axiological choices related to the interpretation of phrases expressing extra-legal criteria. The unification of axiology of human rights standards in Europe has been recognized as the main function of this criterion since it is judicially used not only by the European Court of Human Rights, but also by national courts of Council of Europe member states.
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The aim of the article is to demonstrate the evolutionary approach of the Court of Justice to the criteria for review of the concept of a court within the meaning of EU law. It has been shown that there are three basic standards used by the Court in this area. The first one is an examination of the premises developed as part of the procedure of a question referred to for a preliminary ruling, which includes functional and systemic premises. The second one is based on Article 47 of the Charter of Fundamental Rights of the European Union, which specifies three premises: independence, impartiality and establishment of a court by statute. The third standard of control indicated by the Court of Justice in the judgment in case C-64/16 is of a different nature. It has been applied to reforms of the justice system in the Member States and is based on the combined interpretation of three provisions: Article 2, Article 4 (2) and Article 19 (1) of the Treaty on European Union. The indicated standard was the cause of a lively discussion initiated by the constitutional tribunals of the Member States (the case of Poland and Romania). In principle, they do not question the right of the Court of Justice to review the concept of a court under the first and second standard. However, in relation to the reforms of the justice system, they emphasize their own competence, which is granted to them by their national constitutions. It should be noted that the fundamental problem that appears in the jurisprudence of both the Polish Constitutional Tribunal and the Court of Justice is the protection of primacy of the constitution and irrefutability of the judgments of constitutional tribunals by the Court of Justice.
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Freedom of religion and belief is one of the most important fundamental rights rendering possible the pursuit of happiness and contentment of individuals. As, however, throughout history, freedom of religion has often seen itself threatened and attacked, its efficient protection by law is an essential task. The present treatise analyzes to which extent it is currently safeguarded in Europe and in how far this individual protection extends also to religious communities.
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