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Refusal to implement European social partners’ agreements: recent practice of the Commission

Author(s): Dagmara Skupień / Language(s): English Issue: 32 (4)/2020

European social partner agreements negotiated on the basis of Article 155 TFEU may be implemented at the level of the European Union at the joint request of the parties via a Council decision. Unlike the autonomous implementation, this ‘institutional’ method transforms the agreement into an EU legal act. This text analyses the refusal of the European Commission to submit to the Council, an Agreement that establishes a general framework for informing and consulting civil servants and employees of central government administrations and which was concluded within the EU Social Dialogue Committee for the Central Government Administration. It discusses the scope of the Commission’s competence to refuse to submit the agreement to the Council for implementation. Moreover, it presents a polemic on the judgment of the EU General Court that confirmed the European Commission’s broad scope of competence in refusing to submit to the Council a proposal for a decision to implement the agreement. The author argues that giving the Commission such a large margin of appreciation could undermine the European social dialogue. Moreover, the author explains why the above-mentioned Agreement should be implemented via a Council decision.

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Illusory or effective? The protection provided by the Romanian authorities to stray dogs

Author(s): Tatiana-Lăcrămioara Șoldănescu / Language(s): English Issue: 1/2021

The problem that Romania has with stray dogs’ management is well known at national level, but also intensely debated internationally. The main accusation brought against Romania is the authorities’ noncompliance with the principle of minimum suffering. With the sole purpose of eliminating dogs from the streets, these authorities ignore any principles and recommendations that focus on animal protection. The legislative framework adopted without prior documentation seeks to propose superficial “solutions” with short-term effect, which divert attention and prevent awareness of the serious problem Romania and Romanians face. Romania is already harshly condemned for its national legislation and its unfortunate consequences, so we intend to understand the justification for this conviction based on the analysis of animal protection and management of stray dogs concepts.

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Spór o właściwość a spór kompetencyjny w postępowaniu administracyjnym

Author(s): Mateusz Kowalewski / Language(s): Polish Issue: 14/2021

A dispute over competence or a dispute over jurisdiction should be understood as a situation in which at least two public administration bodies simultaneously consider themselves competent to conduct the proceedings and resolve a specific case (positive dispute) or each of them is considered inappropriate to settle it (negative dispute). In the administrative proceedings, the legislator made a distinction between those into disputes over jurisdiction and disputes over competences. Article 2 § 1 of the Code of Administrative Procedure creates a catalog for disputes over jurisdiction, distinguishing only in § 2 that disputes over the competences between the authorities of local government units and government administration bodies are settled by the administrative court, there is no more mention of the disputes in the Code of Administrative Procedure. Art. 4 of the Act on Proceedings Before Administrative Courts serves as a provision. The laconic regulation of disputes in administrative proceedings causes disputes in the doctrine and misunderstandings on the line of public administration bodies. The purpose of this article is to try to answer questions such as: what is jurisdiction in administrative proceedings? What is the difference between a dispute over jurisdiction and a dispute over competences? Are these significant differences? Is the not very extensive regulation of disputes troublesome for both public administration bodies and administrative courts? The research method is based on the analysis of the normative material of Polish law and the position of the representatives of the doctrine. The subject of the analysis is also the jurisprudence of administrative courts, mainly concerning the interpretation of the issue relating to disputes in administrative proceedings. When reviewing the literature on the subject of the dispute in administrative proceedings, the term “jurisdiction” is usually used interchangeably with the term “competence”. The above position is supported by the fact that the legislator, while distinguishing the disputes in question, does not introduce separate procedures for recognizing them under the Act Law on Proceedings before Administrative Courts. Both are associated with a situation of divergent views of public administration bodies as to which of them is empowered under the provisions of law to act in the case, in the form of action specified by these provisions. The only criterion that distinguishes these disputes is the type of entities involved in them, and the essence of these disputes is the same. The cause of disputes is the situation of non-compliance with the norms of substantive and procedural law with the norms of the political system. These phenomena occur especially in the period of systemic transformations of the state, when new organizational units perform the tasks and competences of transformed or abolished units, and when too often the statutory transfer of powers to exercise administrative judgments is carried out, which causes the so-called local property of the administrative authority concerned.

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Preeminența dreptului – perspectiva common law

Author(s): Ionuț-Dragoș Crînguș / Language(s): Romanian Issue: 02/2022

The present study intends to analyze the principle of preeminence of law and a few perspectives over this principle, especially the common law perspective. The author starts from the premise that the principle of preeminence of law is a common European value on which any democratic state must be founded, being the essence of the state of law and also an element of the common heritage of the Member States of the Council of Europe. The author has, as a research hypothesis, the fact that the history of Romania and its political course in the last century raises problems of understanding a philosophy based on the concept of preeminence of law. Coming after a period of communism, in many respects our country has passed from one extreme to the other, from many restrictions to too much freedom and legislative or power void, from a typology of totalitarian regulation to a form sometimes too liberal, which causes a functional instability of the state as a whole. One can notice that the elaborated study has as objectives the analysis of the general concepts recognized in common law regarding the preeminence of the law for the development of the Romanian legal doctrine in order to deeply understand and fully implement this principle in our legal system, and – more broadly – in our society. Regarding the research methods, the comparative and the quantitative method have been predominantly used, with elements that refer to the sociological and historical method. Notions and concepts specific to common law-type systems have been presented in order to identify possible solutions for taking over and integrating these concepts in our legal system. From the point of view of the results of the research, it has been concluded that the preeminence of law is aspirational and, therefore, it is a matter of degree. From the perspective of our country, we have shown that we have not yet succeeded in overcoming the horrors of the past, with reference here to the ideologies, philosophies and mentalities that have become part of us in the last century. Things are constantly evolving, but we have failed to achieve the level of civilization and understanding that exists in true democracies, one of the causes being the inconsistency of the choices we have made in the last 32 years. Regarding the theoretical and practical implications of the study, they consist in understanding some specific concepts developed in the common law-type systems, the need to implement and fully assume, at society level, the principle of the preeminence of law, with all its components and mechanisms, as well as of the awareness of the current historical moment, in which we must progress at the level of society towards the ideal of a developed and happy society.

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ESTABLISHING A FAMILY BY THE NEW TECHNOLOGIES FOR ARTIFICIAL REPRODUCTION ACCORDING TO THE POSITIVE LEGISLATION OF NORTH MACEDONIA IN THE LIGHT OF COMPARATIVE FAMILY LAW

Author(s): Arta Selmani-Bakiu,Adnan Jashari / Language(s): English Issue: Special/2021

The time in which humanity lives today, it has changed the conventional paradigms of the natural and biological parameters. As such, this time has given mankind today the courage to challenge, as well as change, some of the natural consequences of man's well-being as a social being - first and foremost as a biological being. Therefore, through theoretical dilemmas and scientific successes elsewhere, man well-builds his own future, which on one hand gives him knowledge of the power of rational knowledge, and on the other hand adds great responsibilities, perhaps even enigmatic and unseen before. It is about the consequences that man can have from inconsistent interventions in nature, and the alternation of social structure in this context. When it is known that for each intervention man pays the price, changing the same conventional cohesive structure within the family will give its own price in the near future. In this paper the authors present the facts based on the development and application of artificial reproduction technology (artificial insemination, in vitro fertilization, surrogate motherhood, post-mortem reproduction) are evidence for redefining the concept of family which in this respect undermines the principle of conceiving a child naturally. In this paper the authors emphasize that the plurality of forms for establishing parenthood, which became possible with the rapid development of medicine and biotechnology, allows the application of new reproductive technologies, expands the possibility of family planning on one hand, but on the other hand questions the genetic status of the child born through these methods. The authors have considered it reasonable that through this paper to give their recommendations for filling the legal gaps that exist in the family and biomedical legislation of the RNM. The authors place special emphasis on the urgent need to overcome legal contradictions which currently affect the best interest of the child born with any of the methods of artificial reproduction. In addition to the analysis of domestic legislation, the text also provides a comparative framework on the legal regulation of the status of members of family (children and parents) established by the methods of artificial reproduction.

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Non-Pecuniary Compensatory Damages. Comparative Law Aspects – Specific References to France and Italy

Author(s): Laura Tuduruţ / Language(s): English Issue: Suppl/2021

The article briefly outlines the evolution of the nonmaterial damage concept in Romanian civil law as well as the conversion hereof in other states’ legislation, especially of France and Italy. This legislation adjunction is not at all random considering the fact that these are EU member states and share a common juridical patrimony inherited from Roman law. The article also presents the analyses of the European Guidelines drafted by the European Group on Tort Law, principles aiming for the harmonization of European legislation in matters relating to tort. The article concludes with an assessment of national current regulation on compensation of nonmaterial damage.

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HISTORICAL REFERENCES AND DOCTRINE PRECEDENTS OF CRIMINOLOGY ON A WORLDWIDE LEVEL

Author(s): Nelu Dorinel Popa,Cezara Popa / Language(s): English Issue: 3/2021

It is a known fact that the object of study of criminology is the "criminal phenomenon", which is considered both from an individual point of view, in relation to the concepts of "crime" and "criminal", and from a collective point of view, for which the concept of "criminality" is observed. A study of the origin and worldwide development of criminology has thus been carried out in relation to these basic concepts. Although a truly scientific approach to criminology has only been developed since the 18th century, there have previously been numerous historical sources and references throughout the entire temporal arc of human evolution that have highlighted the manifest interest in the discipline and the concepts mentioned. Three main schools of thought in modern criminological theory have later been establisheed, covering the period from the mid-eighteenth century to the mid-twentieth century: the classical, the positivist and the Chicago School. The international bodies responsible for criminology have also played a major role, without which this science would not have evolved to the stage it is at today.

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RIGHT TO ADEQUATE STANDARD OF LIVING: A COMPARATIVE STUDY IN INDIA

Author(s): Prabhpreet Singh / Language(s): English Issue: 3/2021

Adequate standard of living promises the meaningful existence to human life. The life has essence when there is adequate clothing, food and nutrition, housing and the necessary conditions of care when required. Right to live the life with dignity includes in its ambit right to adequate standard of living. People should have access to basic needs for their living. World bank defines adequate standard of living inclusive of two elements: ‘The cost required to buy a minimum standard of nutrition and other basic necessities and a further amount that varies from country to country, reflecting the cost of participating in the everyday life of society.’ During last decade various international instruments have been pressing hard to right to adequate standard of living (Article 25, UDHR and SDG 11). It becomes noteworthy to see the manner in which these rights are provided in constitutions of different countries. Even when these rights find the place in the constitution it is not mandatory on the states to provide them in their respective jurisdiction. This is one such case which can be seen reflected in the constitution of India. Article 43 imposes a duty on the state to provide adequate standard of living but such a duty is not enforceable in court of law. Such rights find place only in directive principle of state policy which are not enforceable in court of law. Hence the right depends on the wishes and economic capacities of the state. Also it becomes relevant to address the manner in which judiciary protects such constitutional guarantees. As, we can see that many of these rights become a far-fetched dream for the citizens, the author strongly believe that understanding such issues from the comparative perspective would provide several benefits, including sensitising the stakeholders. Therefore, the authors would elaborate a comparative study with the perspective of India.

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THE CRIME OF DOMESTIC VIOLENCE. ASPECTS OF COMPARATIVE LAW

Author(s): Aurel Octavian Pasat / Language(s): English Issue: 3/2021

Domestic violence is a set of actions that raise several questions about their legal nature, giving rise to theoretical disputes that have been quite insistent. Domestic violence being one of the most widespread crimes, imposes a certain degree of tolerance towards this anomaly, indicating it as a normal fact that throughout history has always been with cultural development. This crime is based on traditions, customs and mentalities where the superiority of the man over the woman is accentuated. It is any harmful, emotional, physical act that takes place between family members. It is an abusive behavior, intentionally determined to demonstrate power and supremacy, but also to affect the emotional, physical state of the victim through humiliation, total control or damage to integrity. The topic brought to attention proposes the analysis of domestic violence from the point of view of the criminal side, as an anomaly, a crime that tends to achieve perhaps the most important social value, the family, as a social cell, but also from a historical perspective in terms of historical culture and trends, human beings that have had a wide evolution during different historical periods, but also in general aspect as an element that is transmitted from generation to generation.

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Study on the European Regulatory Framework in the Field of Electricity

Author(s): Aida-Diana Dumitrescu / Language(s): English Issue: 1/2022

Legal studies on the energy crise have to be considered more than a necessity even an emergency and, in order to be valuable, these studies have to offers clear solutions not only for the authorities but for all the actors that are playing on the energy field. Into this one I analyze some of these solutions on a swat perspective, I point the actors that have to behave responsible in this field and I focus my epistemological approach on the analysis of European regulations (2019), how to implement their regulations and the consequences of implementation at European and national level.

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Uporednopravna rješenja referendumske demokratije sa osvrtom na Bosnu i Hercegovinu

Author(s): Mirsad Čizmić,Aida Čizmić / Language(s): Bosnian Issue: 18/2022

The authors consider the referendum as the most pronounced form of direct democracy, which is direct decision-making where citizens express themselves by direct and secret ballot on a particular issue. It is not a substitute for representative democracy, but its corrective factor. In this paper, the authors give a systematic overview of good practice of referendums as an instrument of direct democracy, primarily in Switzerland, Italy, Croatia, Denmark, Serbia, Slovenia, Germany, USA, UK, etc., but also the place of referendum democracy in the legal order of Bosnia and Herzegovina. The authors will try to show that a referendum in some of these countries can be a great democratic step forward, but that it can often be not only an instrument for direct will but a negation of direct democracy in several cases. In support of this claim, the authors will point out the legal and political aspects of conducting the referendum.

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Convenția de la Lanzarote privită prin prisma unor prevederi din partea specială a Codului penal al Republicii Moldova și din cea a Codului penal al României

Author(s): Serghei Brînza,Vitalie Stati / Language(s): Romanian Issue: 1/2021

To ensure a proper prevention and combating of sexual exploitation and sexual abuse against children the provisions of the special parts of Moldovan and Romanian Criminal Codes should be in line with art. 18-23 of Lanzarote Convention. However, Moldovan and Romanian Criminal Codes do not reflect entirely these provisions. Unjustified deflections from the provisions of art. 18-23 of Lanzarote Convention have a negative impact on unifying the international provisions on preventing and combating sexual exploitation and sexual abuse against children. To facilitate the compatibility of the special parts of Moldovan and Romanian Criminal Codes with Lanzarote Convention, the authors of this article highlight solutions to improve legal provisions.

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Examen de drept comparat asupra formării familiei de drept romano-germanice

Author(s): Sonia Drăghici / Language(s): Romanian Issue: 03/2022

The construction of the Romano-Germanic family law system is an interesting phenomena build around Roman law, which became a principle or a norm of thought for the European juridical thinking, and also around the law of Germanic people who colored the juridical European life and determined the process of codification. Thus, the article addresses the interesting issue of the combination process between Roman law with the law of the Germanic people, indispensable for the understanding of the Romano-Germanic family law system and for underlying the differences between this system and the common-law system. This is an important process, considering that a considerable part of the juridical systems of the world are founded around the family law system.

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Confidențialitatea urmăririi penale în Republica Moldova și România ca garanție de protecție a datelor cu caracter personal

Author(s): Daniel Cristea / Language(s): Romanian Issue: 3/2022

GDPR (General Data Protection Regulation-acronym of EU Regulation 2016/679 on protection personal data) is a big step forward in legislation on the protection of personal data. Bring clear benefits by emphasizing the importance maintaining limited access to personal data as well the importance of personal data in maintaining integrity personal rights and fundamental freedoms. It was created that way the possibility on the part of citizens to check how in which personal data are collected and used, and on another part of the authorities to be able to control and prevent their use (as it should be for good functioning within the criminal investigation activities).

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Нерегуларне миграције као облик угрожавања система националне безбедности

Author(s): Predrag Mirković,Jelena Stojšić Dabetić / Language(s): Serbian Issue: 63/2018

Today, modern global migration movements are most often referred to as "crisis" because the dominant form of migration movements is forced and irregular migration in the form of mass migrant flows in short time intervals. The main feature of irregular migration is the gap between a large number of individuals who are trying to emigrate for various reasons and increasingly restrictive migration policies of countries that are designated as desired destinations. This is the point where modern international migration is associated with transnational organized crime and terrorism, which further conditions the existence of various security aspects of migration to the society, the state and the international community. The paper presents an overview of the security risks of irregular migration through the prism of the national security system, identified in the situation in the Republic of Serbia during the current migration crisis, followed by a critical assessment of the national normative response to irregular migration.

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Effective Communication Within Legal Translation

Author(s): Nicoleta Marcu / Language(s): English Issue: 16/2014

The legal translation generates many difficulties due to the differences between and within legal systems, which are further complicated by their evolution in history and by their cultural specificity. Therefore the legal translator must be versatile not only in the legal terminology, but also in the legal systems and the cultures involved in translation and he has to function as an intercultural expert able to translate the meaning from one culture into another so as to make it comprehensible and functional. This paper makes reference to different legal systems, gives some examples of difficulties that arise in the terminological transfer from one legal system into another and offers some solutions that could be useful to both legal translators and legal professionals.

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THE IMPORTANCE OF INTELLECTUAL PROPERTY IN MODERN SOCIETY

Author(s): Siniša Franjić / Language(s): English Issue: 4/2021

Intellectual property is a collective name for subjective rights in connection with intellectual creations as intangible goods. It includes copyright and related rights, as well as industrial property rights. The protection of intellectual property encourages creativity, but also economic activities. Intellectual property protection is one of the most harmonized areas of law. Intellectual property protection laws in most countries of the world follow the same principles and differ only in nuances. Several international treaties regulate interstate aspects in the protection of intellectual property. The importance of intellectual property in modern society is confirmed by the existence of the World Intellectual Property Organization (WIPO), which acts as a specialized agency of the United Nations. This means that modern society enables the quality implementation of intellectual property on a legal basis into national legislation. The aim of this paper is to raise the level of awareness of the importance of social implementation of intellectual property to a higher level.

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SOME CONSIDERATIONS ON INTERNATIONAL JUDICIAL COOPERATION IN CRIMINAL MATTERS BETWEEN ROMANIA AND THE UNITED KINGDOM OF GREAT BRITAIN AS OF 1 JANUARY2021 WITH REFERENCE TO THE INSTITUTION OF THE EUROPEAN ARREST WARRANT

Author(s): Cezarina Moraru,Marcela Radu / Language(s): English Issue: XV/2021

As some authors have stated[1], international judicial cooperation in criminal matters is, in practice, a real help that states give each other, in accordance with certain principles [2], through various international instruments [3], to prevent and combat international crime. Moreover, as we all know, the concept of 'international cooperation' is not a new, recent development[4], but forms of it have been around since ancient times, even if the purpose of cooperation today differs from that of the past, since society has evolved a great deal by now.

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O potrzebie określenia właściwości rzeczowej sądów administracyjnych przy użyciu klauzuli generalnej

Author(s): Weronika Szafrańska / Language(s): Polish Issue: 98/2022

The aim of the paper is to assess whether the amendment to Art. 3 of the Law on Proceedings Before Administrative Courts proposed in legal community, which consists in determining the material jurisdiction of administrative courts using the general clause method, is a good solution. The considerations were preceded by a short observation on the linguistic inaccuracies occuring in the discussed issues. Then, the historical process of shaping the two main methods of further specifying the material jurisdiction of courts is presented: general clause and enumeration. As the proposed changes to Polish regulations are based on solutions adopted in German administrative court proceedings, the article addresses the problems faced by judges of German administrative courts when applying the general clause. Its interpretation causes many problems and providing an insight into them may be a valuable source of information for the Polish legislator.

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Reformy sądownictwa administracyjnego w państwach młodej demokracji (analiza prawnoporównawcza)

Author(s): Agnieszka Krawczyk / Language(s): Polish Issue: 98/2022

The study is the result of a legal comparative analysis of the directions of reforms in the administrative judiciary in the countries of young democracy: Poland, the Czech Republic, Lithuania, Croatia, Serbia, Hungary, Ukraine, Georgia and Kazakhstan. The analysis was carried out with reference to the patterns developed in old European democracies, mainly in Austria and Germany. Papers on reforms of the administrative judiciary in each of these countries were delivered at the international scientific conference: Reforms of administrative judiciary in the countries of young democracy (10–11.06.2021, Faculty of Law and Administration, University of Lodz). They focused on three issues: 1) contemporary challenges of the rule of law and administrative judiciary, 2) directions of changes in the national systems of administrative judiciary, 3) the future of administrative judiciary. The content of the study refers to this system of issues, which reflects the stages of development of administrative judiciary in the countries of young democracy. The conclusions drawn from the analysis show the results of reforms at each of these stages – from the constitutionalization of the rule of law, through the independence of the court-administrative procedure, to the stage of the present, extremely difficult challenges, not only of a procedural nature.

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