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Some specific aspects concerning the company by shares

Author(s): Ana-Maria Lupulescu / Language(s): English Issue: 18/2019

The company by shares is the prototype of company of capitals, since this legal form of company is set up and functions only based on the contributions made by the associates, who are liable for the social obligations within the limits of these contributions, so that the person of the associates or the trust between them is irrelevant. In exchange for the contributions they make within the company, the shareholders receive negotiable instruments, which can be transmitted freely. From this perspective, the company by shares was conceived as a form of organizing large-scale activities that require and concentrate important funds, made available to the company by a large number of shareholders. These significant aspects, which have influenced the legal regulation applicable to it, characterized by excessive formalism, complicated and strict rules, with countless conditions imposed by the law in order to protect both third parties and minority shareholders, lead to the conclusion that this legal form of company is not appropriate for small activities with a reduced number of associates, because the advantages of choosing this form of company are not justified, as compared to the disadvantages it implies. Within this context, we consider that an analysis of this form of company, even though is not intended as exhaustive, but highlights particular significant aspects that underline its juridical specificity, may appear important and particularly useful, both for analysts in law and practitioners.

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Enterprises (companies) and their associations – subjects of anticompetitive practices

Author(s): Ovidiu Horia Maican / Language(s): English Issue: 18/2019

The competition rules applicable to enterprises (companies) are the most important rules of European Union competition law. They have a direct effect and are primarily applicable to companies. Prohibition of agreements restricting competition, abusive exploitation of dominant positions, control of concentrations and state aid are the pillars of European Union competition law.

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The delay of paying the leasing rates in the current Romanian regulation. Project adopted in 2018. Analysis of comparative law

Author(s): Silvia Cristea / Language(s): English Issue: 18/2019

This paper aims to demonstrate why the solution voted by the Romanian Senate regarding the limitation of the users responsibility in the leasing contract, by modifying the Government Ordinance no. 51/1997 concerning the leasing operations and the leasing societies, in March 2018, is not grounded enough legally, and why we do not recommended to be adopted, even if, de plano, we agree with the increased protection of the user. In this argumentation we use comparative law.

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Probing into Copyright Infringement by Sampling: from USA to EU

Author(s): Kamrul Faisal / Language(s): English Issue: 1/2019

Sampling has become a part and parcel of the musical industry in the postmodern culture. With the booming of the hip-hop and electronic genre of music, sampling revolution has been brought to the industry which is responsible for the emergence of copyright infringement issues in both alleged and substantiated forms. Sampling founded its origin in the United States, where the legal system seemed to be efficient in dealing with the balancing of competing rights between the intellectual property right holders and the users of those respective properties. It took almost three decades to the US legal system to develop a cross and check mechanism or licensing model which checks the permissibility of sampling through its own established rules comprised of law, doctrines and case laws. Now, similar issues have been referred to the European Court of Justice by the German Federal Supreme Court to determine the probability of EU copyright law’s allowing sampling. The question urges the enthusiasm of investigating the existing legal framework of the EU, prima facie, sought strong protection against the right holders to leave any room for permitting sampling. This paper particularly focused to show how the US Fair Use and de minimis fits to the EU legal frame to answer the derived questions asked by the German court to the ECJ which will pave the way of licensing mechanism for sampling in the EU.

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Cerințe specifice contractelor bancare încheiate cu consumatorii

Author(s): Cristina-Luiza Gavrilescu / Language(s): Romanian Issue: 2/2018

Due to the specific nature of the transactions forming their object, banking contracts impose complying with certain special conditions of validity, and their forming mechanism implies fulfillment of certain particular requirements. The reason of establishing specific validity requirements is the need to protect consumers from any possible abuse they could face as a result of signing adherence contracts with the bank. The specific conditions aim at ensuring a fair legal treatment for the parties, based on a balanced architecture of the contract. In the process of forming the contract, the bank has a significant role to play in informing and counseling customers, in order to enable them to give an informed consent. For this purpose, a certain informal formalism of the contract is required. At the same time, upon the conclusion of the contract, the bank must act with diligence and vigilance, ensuring the confidentiality of the information provided by the client.

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Armonizarea legislaţiei naţionale la directiva 2000/31/CE. Aspecte teoretice şi practice

Author(s): Iulian Muntean / Language(s): Romanian Issue: 2/2018

In the early of 90’s the Government of the Republic of Moldova has started the process of harmonization of its national legislation with acquis communautaire. In accordance with EU Directive 2000/31/CE on e-commerce it has been developed national legal framework, i.e., the Law on e-commerce nr. 284 dated 22 July 2004. The author perform a research on legal regulation of e-commerce, its compliance with EU framework, european trends, practical aspects, and factors that can boost e-commerce in Moldova. The aim of the study is to familiarize academia, business, and key stakeholders concerning opportunities for sustainable development of e-commerce in Moldova. In conclusion, it has been found that integrating consumers into decision making process is a key factor to foster e-commerce.

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T.V.A. și operațiunile financiar-bancare

Author(s): Cristina Văscu / Language(s): Romanian Issue: 2/2018

Our article analyzes the normative provisions and the jurisprudential specifications regarding the hypotheses establishing exemptions from the VAT regime for financial-banking services. The analysis reveals different normative formulas that refer either to the qualities of the operators or to the specific elements of the exempted operations. We emphasize that, in the light of the jurisprudential accents of the Court of Justice of the European Union, there are also relatively universal and transversal criteria, such as the aim pursued by the operation.

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Libera prestare a serviciilor de asigurare – între operaționalizare și impozitare corectă

Author(s): Catalina Mihai,Marius Eugen Rogoz,Ioana Simona Dulgheru / Language(s): Romanian Issue: 3/2019

Risk has always been a real, but, also, hypothetical matter in the course of an activity – be it the economic, social, cultural or religious environment, any action meant to develop these areas was followed by the question: how do we manage the risk that could occur? The insurance industry has provided answers to this question through various insurance solutions that it has designed to support the business environment (and beyond). National legislation was, also, an important pillar in developing the business of insurers, whilst international law – through the freedom to provide services – opened new doors for players in the sector. But this freedom has led to the development of new structures that have led to the appearance of a representative question for our times: what is the limit between business optimization and correct taxation of earnings within the insurance sector?

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STUDY ON THE LEGAL NATURE OF THE APPROVAL DOCUMENTS REQUESTED FOR COMPANIES

Author(s): Aida Diana Dumitrescu / Language(s): English Issue: 1/2019

This epistemological approach was generated by the theoretical and practical necessity of analyzing the legal nature of the approval documents required for the registration and/or operation of commercial companies. The evolution of companies is symbiotic to that of the society and has a major economic, legal and social impact. According to its object of activity (environmental statement, banking company) or operations carried out in the process of operation (merger, sale of agricultural land, etc.) the entity must obtain approval documents with complex legal effects. The material is part of the multidisciplinarity criterion and uses several methods of scientific research, of which predominantly logical and comparative methods. The outcome of the research is presented in a gradual and exemplary approach, its conclusions being substantiated by reference to normative provisions, doctrine opinions and legal practice.

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CONSIDERATIONS REGARDING THE RIGHT TO WITHDRAW OF THE STAKEHOLDERS IN THE CASE OF FUSION OF SOCIETIES. COMPARATIVE PRESENTATION

Author(s): Silvia Cristea,Viorel Bănulescu / Language(s): English Issue: 1/2019

The right to withdraw is a measure of protecting the associate/shareholder of the societies, regulated by Lawno. 31/1990, which ceases to exist as a result of the fusion. The present article analyses the exertion of the right towithdraw from the Romanian Law, but also in comparative law. Regarding the Romanian regulation of the matter, itpresents in parallel the case of capital societies and those of persons, emphasizing the differences between them, fromthe point of view of the effects of the right to withdraw.

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GENERAL DETAILS ABOUT EXTRASTATUTORY CONVENTIONS

Author(s): Andreea Purcea – Rezeanu / Language(s): English Issue: 1/2019

Statutory and extra-statutory conventions are contracts, plurilateral (thus, typically, voting unions), or corresponding services (typically blockades): a common feature is that they remain foreign both to society and to associations and third parties who are not part of it. The rules laid down in the Italian Civil Code to Articles 2341-bis and 2341-ter only deal with conventions aimed at stabilizing the joint stock company which is the subject of such agreements: these provisions provide for lasting limits (when stipulated for a specified period, can not exceed three years, whereas for an indefinite period, each party may give up an ad with a notice of one hundred and eighty days) and, by limiting ourselves to the so-called open societies, advertising obligations (communication to the company and declaration at the opening of the assembly). There is no restriction, however, on the form that the parties may adopt for the purpose of that stipulation.

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THE LEGAL REGIME OF COMPETITION IN NETHERLANDS

Author(s): Ovidiu Horia Maican / Language(s): English Issue: 1/2019

The present-day competition regime in the Netherlands begins with the enactment of the Competition Act on 1 January 1998. The substantive provisions of the Competition Act are a copy of the Treaty on the Functioning of the European Union (TFEU). The Competition Act prohibits anticompetitive agreements and the abuse of a dominant position. The Competition Act established the Netherlands Competition Authority (NMa) as the domestic body responsible for the enforcement of competition law. On 1 April 2013, the NMa unified with the independent Post and Telecommunication Authority and the Consumer Authority into a single regulator, the Consumer and Market Authority (ACM).

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Make Povolenky Great Again

Author(s): Zuzana Vrbová / Language(s): Czech Issue: 3/2019

It is often being promised nowadays that many things will be great again. Unfortunately, politicians’ pledges are almost never turned into reality. Is it the same case with European climate policies? Or will, thanks to the reform, emissions allowances be great again? In May 2019, the Government of the Czech Republic approved the new amendment to the Act No. 383/2012 Coll., on emissions trading which implements the revised European directive 2003/87/EC. The revision was adopted in early 2018 and sets the rules for the next decade. The main purpose of these changes in climate change law is to make the European Emissions Trading System more flexible, increase the pace of emissions cuts and prevent the emissions allowances price drops so that they could finally fulfill their purpose – substantial reduction of emissions in a cost-effective way. This paper aims to present the main premises of emissions trading systems and examine the current and future design of the EU ETS.

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Current Trends in the Slovak Legal System in the Area of Waste Management

Author(s): Lucia Čerňanová,Martin Dufala,Matúš Michalovič / Language(s): English Issue: 3/2019

Authors discuss actual state in the area of waste management in the Slovak Republic in the light of achieving recycling targets and obligations arising from the legislation of the European Union. The article presents and explains current trends, policies and legislation in this area in the Slovak Republic with emphasis on introducing the new piece of legislation – Act No. 329/2018 Coll. on fees for the waste landfilling.

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EXCEPȚIA DE NECONSTITUȚIONALITATE INVOCATĂ ÎN CALE DE ATAC, SOLICITAREA PETENTULUI CĂTRE INSTANȚA DE JUDECATĂ DE A SESIZA CURTEA CONSTITUȚIONALĂ

Author(s): Raluca Iulia Neagu,Florin Neagu / Language(s): Romanian Issue: 39/2019

The exception of unconstitutionalitymay be raisedat any stageprocedural, substantive orappeal.It was consideredby the appellantthat thetext of the lawis unconstitutionalitputin a position tolosea goodwhich was acquiredlegally, so thatheritagewouldbeaffecteddownwardsin favorof the Romanian state, claiming that the latteris enrichedunjustlyandappellantthemis reducedassetsinunconstitutional.Even if the interpretation given by state representatives, text art. 112 paragraph 1 letter f Penal Code and Art. 107 code would be applicable to the panal special confiscation.

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Autostrada procedurilor fiscale – o construcție juridică imposibilă?

Author(s): Septimiu Ioan Puţ / Language(s): Romanian Issue: 2/2019

Through a new judicial solution, the Cluj Court of Appeal decided to return the administrative file from a judicial procedure în the appeal stage directly to an administrative procedure, fixing the tax obligation for the tax body to re-establish tax compliance with respect the law and the guarantees that the VAT Directive offers to the individual. Only în such a mechanism, given that the last transaction targeted by the initial fiscal inspection ended în 2010, the right of the fiscal body to establish tax receivables appears to be prescribed, which constitutes a moral and legal remedy for the making of an illegal tax inspection.

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Prejudiciul sau eterna necunoscută a galaxiilor fiscale, penale și de insolvență

Author(s): Cosmin Flavius Costaş / Language(s): Romanian Issue: 2/2019

The recent developments in the case-law of the European courts regarding the ne bis in idem principle has been at least as interesting as a new season in the “Game of Thrones”. In this respect, the author focuses on the national issue of parallel and contradictory tax, criminal and insolvency procedures, with a view of the key element: the damage. Following a thourough analysis of the case-law at hand, the author summarises a few adequate national approaches on this matter.

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Reflecții cu privire la taxele vamale aplicate de către UE în baza acordurilor de asociere

Author(s): Tudor Vidrean‑Căpuşan / Language(s): Romanian Issue: 5/2019

The economic development of the EU is guaranteed by a full customs union between the Member States and a common customs legislation. In relation to the states of Europe that are currently in the process of accession, the idea is to extend these benefits to the respective states in order to facilitate their accession. The purpose of this article is to analyze a situation that may affect the accession process, namely the analysis of how customs goods originating in the EU are processed, when they are exported to a third state in the process of accession and are subsequently imported into EU customs territory

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Impactul valorii în vamă în baza de impozitare a TVA în cazul importului de bunuri

Author(s): Ramona Jurubiță,Raluca‑Loredana Udroiu / Language(s): Romanian Issue: 5/2019

Considering that the customs value is the first basic element in establishing the VAT taxable base for importing goods, its correct determination is a very important aspect to be considered by economic operators, any modification, reflecting directly not only on the value of the customs duties, but also on the VAT paid at the moment of import. In addition, depending on the inclusion in the taxable base for import of certain services performed in connection with the imported goods, VAT exemptions with credit for these services can be applied – nevertheless, in such cases, it is of relevance whether these services were included in the taxable base.

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Saga transparentizării continuă. Noi raportări pentru tranzacțiile transfrontaliere

Author(s): Mihaela Mitroi / Language(s): Romanian Issue: 5/2019

The European Union is taking quick steps in implementing a range of Directives transposing the BEPS ideas. 31 December 2019 is the deadline set by EU for transposing the Directive on the intermediaries’ reporting obligations (DAC 6). Although this Directive should be transposed into the national law in less than 3 months, we still do not have any legal texts, which increases uncertainty over its application. The companies should prepare ahead (by reviewing their transactions, by defining monitoring procedures and mainly by thoroughly understanding the reporting criteria) in order to identify the reportable arrangements with companies both within and outside the European Union. This is the more important as the reporting obligation shall apply retroactively, targeting the transactions starting on 25 June 2018 – i.e. almost one and a half years behind – until 31 August 2020.

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