Technical Surveillance in the European Union Judicial System. Aspects of Comparative Law

Author(s): Andrei Bacauanu / Language(s): English Issue: 1/2018

The use of technical supervision as a probation process in the criminal trial is a topical issue, given that in recent years information and communication technologies have considerably increased the ability to collect, process and disseminate information. Technological progress results in the secrecy of correspondence being increasingly difficult to keep, and the technical means of supervision will always be one step ahead of legislation. Given the evolution of investigative methods in the criminal process, privacy protection has become a natural concern of the EU member states legislative authorities. Interference with private life is a controversial subject questioning the renunciation at privacy, as the general interest of the society, represented by the repression of crimes with a high degree of social danger, prevails over the private one.

LE NOUVEL ARRÊT DE LA CEDH (AFFAIRE LIBERT VERSUS FRANCE) SUR LE CONTRÔLE DE L’EMPLOYEUR ET LA VIE PRIVÉE DU SALARIE: APPROCHE CRITIQUE

Author(s): Méndez Lourdes / Language(s): French Issue: 2 (43)/2019

This article analyses the recent ECHR doctrine (2018) concerning the employer control of computer files created by the employee on the company's computer and its limitations in relation to the employee's fundamental right to privacy. From a critical point of view, two things stand out: on the one hand, that after the Barbulescu II case (2017), there is no clear impact on the obligation of companies to inform employees about this control and, on the other hand, the grammatical argument used by the European Court to validate the employer control. At this stage, it is rejected that the designation of "personal" data is enough to indicate the private nature of the computer file created by the employee, since he should have used the term "private".

EMPLOYEE VOICE AND RETALIATION AT THE WORKPLACE: THE PERSPECTIVE OF THE EUROPEAN COURT OF HUMAN RIGHTS

Author(s): Maria Corso Stefano / Language(s): English Issue: 2 (43)/2019

In spite of the importance recognized to Article 10 ECHR, workers’ freedom ofspeech and its protection from potential retaliation at the workplaces have been only recentlydiscussed by the European Court of Human Rights. With a particular attention to theconsequences suffered by employees, the essay reviews the steps that led the Court ofStrasbourg to recognize worker’s voice and whistleblowing as a social right and it highlights therole played by the 2008 Guja ruling where the Court drafted a sort of a manual providing thecriteria to be used to verify the legitimacy of the restrictions imposed by governments on thematter. Such ruling is particularly relevant for a number of reasons: it may be considered a keyto the interpretation of national regulations; it provides valid orientation to public and privateentities and facilitates the judge’s task in interpreting whistleblowing cases according to a legalframework that is still in a stage of evolution in many countries, but has instead already beenconsolidated through the implementation of specific regulations in others. In conclusion, thesurvey looks at future prospects, supporting the idea that in a balance between individual rightsand public interest, particular attention should be paid to the legal definition of a whistleblower,as it emerges from the typical proceeding on a case-by-case basis.

IMPLEMENTATION OF THE MERITOCRATIC PRINCIPLE IN EUROPEAN PUBLIC ADMINISTRATION SYSTEMS

Author(s): Olha Volodymyrivna Ohotnykova / Language(s): English Issue: 2/2018

The article analyzed the experience of forming the personnel of the public administration system in France, Germany, Great Britain, Poland, Latvia. The author defined the procedures for selection and formation of a management elite in these countries. The article noted that the main stages of selection and formation of managerial personnel is the passage of the system of examinations on language proficiency and knowledge of legislation. The author stated that in France, Germany, Great Britain, Poland, Latvia there is no legislative regulation of the merito-cratic principle as a principle of selection of talented specialists. In addition, the personal qualities of the managerial elite remain to be neglected. Separately, the question of creating a reserve of talented youth is needed, which will allow permanent rotation of staff in the system of public administration, and also create conditions for the development of personnel, depend-ing on their talents and abilities. The author proposes ways to improve the system of examina-tions and procedures for recruiting.

După Brexil

Author(s): Valentin Constantin / Language(s): Romanian Issue: 02/2019

RENEWABLE ENERGY SOURCES. SOME CONSIDERATIONS ON THE APPROACH OF ENERGY CROPS AT NATIONAL LEVEL TO THE EUROPEAN CONTEXT

Author(s): Cosmin Soare / Language(s): English Issue: 2/2018

The new climatic, industrial, economic and social realities, as well as their evolving perspectives, have led inthe last decades to a particularly careful approach to renewable energy sources. Thus, clear objectives for ensuring public regulations and policies favoring the development and use of energy from renewable sources have been set out. Romania has rallied to the European model that aims to ensure energy security with competitive and clean energy. The statistical data show that the progress is considerable and that Romania has mastered the objectives and targets thus assumed. One of the current challenges is to ensure a unitary development of all renewable energy sources that have potential at national level for sustainable development. Among these, special attention is paid to biomass, especially to energy crops. The justification consists, on the one hand, of the very low level of development compared to the actual capacities, and, on the other hand, the intervention of some legislative changes that seem to continue to hinder this development.

REGULATION (EU) 2016/679 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL ON THE PROTECTION OF INDIVIDUALS WITH REGARD TO THE PROCESSING OF PERSONAL DATA AND THE FREE MOVEMENT OF THESE DATA

Author(s): Adriana Deac / Language(s): English Issue: 2/2018

The entry into force on 25 May 2018 of Regulation (EU) 2016/679 of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data, the so-called RGPD Regulation, is an important moment in protecting the citizens of the European Union from the point of view of the use of personal data. The present paper aims at presenting the fundamental principles underpinning the European Parliament's and Council's re-regulation, the persons to whom these regulations apply, the obligations that public authorities or bodies have to fulfill, as well as the rights of the citizens of the European Union in this context.

LIMITS OF THE DISCRETIONARY POWER ESTABLISHED THROUGH ENFORCING THE EUROPEAN PRINCIPLE OF PROPORTIONALITY

Author(s): Oana Şaramet,Georgeta-Bianca Spîrchez / Language(s): English Issue: 2/2018

In the contemporary society, the constitutional and/or legal enshrinement of the discretionary power of the public authorities, including those from the public administration, is understandable, it is a true "given" that must have a legal recognition for them. This margin of appreciation, which gives these authorities the possibility to carry out, generically speaking, their activity in order to satisfy the public interest, must have some barriers imposed to limit their action solely to the boundaries imposed by the legislator. Always, as a true axiom, governors holding power will, at least, want to keepit within the limits held, if not even beyond the required legal "boundaries" imposed, in order to assign more prerogatives for themselves. However, in order to overcome this trend, it is also necessary to build a legal system of control, including judiciary, following which the actions of the authorities mentioned should be reframed into the legality matrix imposed by the legislator. The modalities, levers, limits set by the legislator in this respect consider various aspects, including principles, such as the principle of proportionality. This paper aims, by using the specific methods such as the comparative, grammatical, logical, systemic and teleological one, to capture not only the theoretical aspects regarding the discretionary power, the principle of proportionality, respectively the interconnections between them, but also the jurisprudential aspects regarding the limits set to the discretionary power by means of this principle, limits deriving from the judgments of the Court of Justice of the European Union.

Fashion law. Concept and beginnings in European Union and Romania

Author(s): Diana Flavia Barbur / Language(s): English Issue: Special/2018

The present study aims to present the right of fashion as a distinct branch of law. The idea I started from was that law of fashion is a complex branch of law that brings together issues related to intellectual property, commerce, advertising, competition, labour relations, customs, advertising and modelling. I appreciate that this new branch of law will become more and more visible and will include those legal rules that, although belonging to other branches of law, distinct and self-governing, have come to be closely linked to the field of fashion, and fashion-inspired legal norms devoted exclusively to this field in order to help develop this industry, protect those who play the role of market players in the fashion market, or regulate certain new situations arising from the natural evolution of a such domain.

Considerations regarding consumer protection in Romanian and European law. The notion of consumer

Author(s): Viorel Bănulescu / Language(s): English Issue: Special/2018

Ensuring a high level of protection of consumer rights represents a concern of the European Union. The consumer is, in the broadest sense, the person who purchases goods and services. The policy of consumer protection is based on the presumption of vulnerability of the individual in relation to the professionals.

The European Union external competencies and maritime industry

Author(s): Hamed Alavi / Language(s): English Issue: Special/2018

Maritime industry has deep roots in Europe. International ports and Inland water ways are in use by European merchants in the course of their trade all along the history. Formation of the European Union and Single European Market has increased the importance of maritime transport even more than before. Currently, industry is regulated at the Union level with body of law which intends to create a safe and predictable business environment for European and foreign enterprises. However, shared nature of the EU withher Member States in regulating Maritime Transport has created a big question mark for many external parties as well as European stack holders of Maritime industry. The question is who can represent EU maritime industry externally and where to draw the limits of Union and Member States Competencies in this industry? At the midst of the second decade of 21th Century, still many international businesses and even foreign governments wonder about limits of external competencies of the EU in maritime industry. Such confusion creates trouble for foreigners and even Europeans in determining where should they referee their matters to the Commission and where should they approach Member States? In this paper, author tries to answer above mentioned question by scrutinizing external and internal challenges facing the EU about its competencies to represent maritime industries outside of her boundaries. Paper is divided into five main sections. After introductory comments, second part will discuss maritime policy and its regulation in the EU. In third part with particular focus on the EU-IMO relations, paper will analyse external challenges facing the Union in representing her maritime industry in international organizations. Forth part will take a look at internal challenges and regulatory limits which affect the extremal representation of maritime industry by the Union. Final part is dedicated to concluding remarks.

Considerations regarding Directive 2011/24/EU on the application of patients’ rights in cross-border healthcare in EU member states

Author(s): Brîndușa Marian / Language(s): English Issue: 17/2018

The free movement of persons is one of the four fundamental freedoms recognized and regulated at the European Union level. The definition and implementation of all existing policies and actions at European level, regardless of the scope, have as their focal point a high level of health protection. Under the conditions of the extension of the right to healthcare of the persons, at the level of the European Union, it is intended to ensure the access of everyperson to healthcare based on the latest scientific discoveries. The adoption in 2011 of Directive No. 24 is an important step in respecting patients' rights in cross-border healthcare, with important consequences both for the health of patients and for the health systems in the Member States.

The revision of the Posting of Workers Directive and the freedom to provide services in EU: towards a dead end?

Author(s): Sónia de Carvalho / Language(s): English Issue: 17/2018

The development of the internal market, based on the principle of freedom to provide services, as stated in article 56 TFEU, rendered common the posting of workers to another EU Member State. The risk of leading to social dumping in the host Member State, resulting from the less favourable working conditions of the sending Member State, justified Directive 96/71/EC. Collective bargaining, which has always taken on a prominent place in the posting of workers framework provided for in Directive 96/71/EC, is clearly reinforced by Directive (EU) 2018/957 that amended Directive 96/71/EC. The caselaw of the CJEU, however, has revealed that in some cases the enforcement of the host Member State working conditions, in view of the lack of harmonization of labour law in the Member States in relation to minimum protection mandatory rules, can paradoxically constitute a restriction on the freedom to provide services. The analysis of the amendments introduced by the Directive (EU) 2018/957 will demonstrate that, despite creating a favourable legislative framework for fair competitive conditions between national undertakings and the undertakings that post workers, may compromise the delicate balance between the protection of workers and the freedom to provide services.

The adoption of the Euro by Romania -theoretical considerations

Author(s): Ioana Nely Militaru / Language(s): English Issue: 17/2018

The paper contains, first of all, aspects of the convergence report drawn up by the European Commission and the European Central Bank on the level of readiness of a Member State to join the euro area when there is an express request for it. The second part refers to several proposals for actions that Romania thinks should follow in order to adopt the euro, starting with the Convergence Report of the European Commission and the European Central Bank of May 2018

European Grouping of Territorial Cooperation – a legal form supporting cross-border cooperation in the European Union

Author(s): Tomáš Malatinec,Jan Kyjovský / Language(s): English Issue: 18/2019

European Grouping of Territorial Cooperation (EGTC) is European legal form that can be established under the Regulation (EC) No. 1082/2006 on a European Grouping of Territorial Cooperation. This measure is a part of the European Union’s Cohesion Policy, which aims to gradually reduce regional disparities and promote economic, social and territorial cohesion. EGTC supports and facilitates the formalized cross-border cooperation between Member States of the European Union, as well as their regional and local public authorities. Cross-border cooperation, which is a part of the Cohesion Policy, focuses mainly on border regions, whose weakness is their periphery location. In connection with the creation of the EGTCs, Member States may adopt measures to support this legal form by their national legislation and practice. The aim of the article is to present EGTC in terms ofthe European material and formal sources of law that have prompted the emergence of this legal form and govern the conditions for its establishment. EGTCs have the predisposition to carry out various activities related to cross-border cooperation. The European legal framework allows the use of EGTCs as entities for implementation of cross-border public procurement.

THE BREXIT PROCESS AND ITS CONSEQUENCES

Author(s): Shtupi Indrit,Tiri Edvana,Prifti Arben / Language(s): English Issue: 3 (44)/2019

Great Britain is known as the world's largest economic power. Sucheconomic development has affected the geographic position in the Atlantic Ocean, goodconnectivity with the world, the first emergence of the industrial revolution and the relativelygood basis for underground assets. These advantages have been manifested in thedevelopment of maritime, trade and expansion of its influence in various colonial lands,bringing Great Britain into a highly favorable economic position in 1975, a referendum washeld for the accession of Great Britain to the European Economic Community (EEC), laterknown as the European Union. The voting score was about 67% in favor of the country'smembership of the EEC. Brexit is a referendum held on 23 June 2016 where the UnitedKingdom voted to leave the European Union. Brexit is the nickname for "Britishappearance", from the British word and exit (Br-exit) from the EU. On March 29, 2017, thePrime Minister of the United Kingdom Theresa May filed a notice of withdrawal of Article 50in the EU. The main advantage for the UK is that it could stop the free flow of people fromthe EU again. That was the main reason people voted for Brexit. They were worried aboutan increase in Middle East refugees. Great Britain will be able to tax without following EUguidelines. It will also not have to pay EU membership fees. Among the worst concerns arethe influence of Brexit in future trade, agriculture, fisheries, citizens returning from U.K. andcuts in the EU's Brexit budget. Under Brexit, Great Britain may lose Scotland. First, Scotlandwill try to stop Brexit by voting against it. Nevertheless, Scotland has no authority to do so. Itcan then decide to join the EU separately, as some countries within the Kingdom ofDenmark have. Finally yet importantly, the head of Scotland has also warned that it mayseek another referendum to leave the UK. The Brexit would have detrimental effects oneconomic development across the EU. Apart from the economic disadvantages, Brexitwould cause serious political, social and procudural damage and would weaken Europe inthe geopolitical aspect. The Brexit avoidance, it would be the best solution principally for theUK and secondly for the EU.

Je normotvorba Unie na úseku střelných zbraní vedlejším projevem (státního) protekcionismu?

Author(s): Jiří Novotný / Language(s): Czech Issue: 1/2019

On 17 May 2017, Directive (EU) 2017/853 of the European Parliament and of the Council amending Council Directive 91/477/EEC on control of the acquisition and possession of weapons was adopted. The paper presents the basic legal context of this standard with regard to the principles and objectives for which the European Union was founded.

Porejestracyjne badania bezpieczeństwa produktów leczniczych w systemie "pharmacovigilance"

Author(s): Agnieszka Rabiega-Przyłęcka / Language(s): Polish Issue: 87/2019

The aim of the article is to present the legal conditions of one of the elements of the pharmacovigilance system (pharmacotherapy safety) – post-authorisation safety studies of medicinal products. The analysis embraced requirements and principles of conducting safety tests of medicinal products after the authorisation for admitting them to trading in the light of, in particular, the Pharmaceutical Law of 6 September 2001.

Aplicarea dreptului Uniunii Europene potrivit prevederilor Constituției României și ale altor norme de drept intern

Author(s): Augustin Fuerea / Language(s): Romanian Issue: 06/2019

The features that give a distinct note to European Union law, and even its specificity, in relation to national or international legal orders, whether universal or regional, par excellence lie in the immediate, direct and priority applicability of the rules that make it up. The concept of „priority” EU law in relation to the national law of the Member States is likely to complete the understanding of its specificity in relation to the situation which we encounter with reference to international law. The development and adoption of primary or secondary norms of European Union law represent true, intrinsic consequences of developments or, respectively, expectations recorded at EU level, either qualitatively or quantitatively. From such a perspective the steps we are witnessing, including those of legislative nature, must be known, understood, and accepted. Our approach considers the fundamental legal basis offered by the Romanian Constitution, republished version, but also relevant aspects found in the Civil Code, the Civil Procedure Code, Penal Code, and Criminal Procedure Code, to which we add the Insolvency Law.

Możliwość ustawowego ograniczenia dostępu do pornografii w internecie w świetle przepisów Unii Europejskiej z zakresu swobód przepływu przedsiębiorczości i świadczenia usług (art. 49 i 56 TFUE) oraz odpowiedzialności usługodawców (...)

Author(s): Justyna Łacny / Language(s): Polish Issue: 1/2019

The subject of the opinion is the evaluation of establishing legal restrictions concerning access to pornography, in particular blocking and disabling such contents in 3G and 4G networks, as well as providing, by a provider of Internet services, with tools for carrying out the above activities. The author of the opinion points out that no provisions of the EU law prohibit actions aimed at counteracting and detecting pornography in the Internet.