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Registration of personal data in the record system of the Credit Bureau - an analysis of non-unitary case law

Author(s): Loredana Costina / Language(s): English Publication Year: 0

The paper analyzes the legal regime of registration of personal data of individuals, debtors of banking companies and NFIs within the Credit Bureau (Biroul de Credit) S.A. The paper analyzes the provisions of Decision no. 105/2007 on the processing of personal data in record-keeping systems such as credit bureaus and Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to data processing of personal character and regarding the free movement of these data and the conflict in time between the two normative acts, as it has been interpreted in the non-unitary jurisprudence of the courts. The results of the study show that, in the majority jurisprudence at the level of the Bucharest Tribunal, Decision no. 105/2007 continues to apply for the registration of late payments from credit agreements signed before May 25, 2018, although this decision is no longer in force. The implications of this conclusion are major for the activity of banking and non-banking financial institutions, the present paper arguing that for these credit agreements the records made in the database of Credit Bureau S.A. under Regulation (EU) 2016/679, the majority practice in these institutions, are illegal.

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New tendencies of liability in administrative law

Author(s): Elena Emilia Ştefan / Language(s): English Publication Year: 0

In the recent years, we are witnessing a formidable evolution of the legal concepts. Regardless of the legislative system we are in, one of the very current subjects is legal liability in the citizen’s relationship with the state. The tendency we are currently identifying is that liability has an increasingly interdisciplinary character. It is important for law practitioners to know that in comparative law an interference of liability is seen between several branches of law, for example, administrative law and environmental law, due to the recent contribution of jurisprudence. Thus, in France, in a recent matter, very broadly presented in the media, the Paris Administrative Tribunal established the state’s liability for ecological damage caused to private persons. The direct impact of this favorable court decision was immediate, leading to legislative changes. The object of this study is to analyze the interdisciplinary character of legal liability, with a focus on liability in administrative law. By means of the research methods employed in this article, we shall analyze the relevant legislation, doctrine and jurisprudence, in order to capture the tendencies of liability in administrative law, from the national perspective, as well as from the viewpoint of comparative law.

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The opportunity control in administrative litigation – from theory to practice

Author(s): Anamaria Groza / Language(s): English Publication Year: 0

Subject to debates from the point of view of its performance and intensity, the judicial control over the opportunity of administrative acts is, in our opinion, necessary in a state governed by the rule of law. Law 554/2004 contains legal institutions that impliedly enshrine this control. Its implementation raises the problem of the criteria to which courts can refer. The criteria, although different from one case to another, can be systematized. Thus, the evaluation of the consequences of complying with the legal norms with a judicial force superior to the administrative act offers a clear parameter within which public authorities can assess the adopted acts. Secondly, the action of the admin- istration generally takes place in a Member State of the European Union, within a set of principles, such as non-discrimination, transparency of the decision-making process, lack of arbitrariness, impartiality of the administration, respect for legitimate expectations, predictability, consistency, proportionality of the measure with the objective, etc. Thirdly, administrative acts and operations must respect a fair balance between public interest and private rights/ interests affected by them. The performance of this control in the context of two cases we selected led us to some conclusions which have, we believe, a high degree of applicability: the opportunity character of an administrative act must result from the content of the act itself or from acts preceding its adoption and the limits of the appreciation power of public institutions may result from judgments (too). Our research is descriptive and explanatory, including a case study. The use of case law data (somehow abandoned in the doctrinal dispute) brings new perspectives on the approach to the opportunity control.

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Autonomy of administrative law in French and Romanian systems

Author(s): Nicolae Alexandru Ceslea / Language(s): English Publication Year: 0

The paper starts with the identification of unitary and dualistic systems of administrative regulation. The analysis stops to the French and Romanian systems and overlaps them, applying the comparative method. This allows us to observe not only what the current regulations of French and Romanian law looks like, but also opens the perspective of an evolved solution that would meet the needs of a modern administrative law.

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Considerations regarding the legality of the administrative act issued by the court in order to manage the judicial activity

Author(s): Sandra Grădinaru / Language(s): English Publication Year: 0

The principle of random assignment of cases is closely related to the right to afair trial guaranteed by art. 6 of the European Convention on Human Rights. The main purpose pursued through the random assignment of cases is to provide a guarantee to the litigant that he will benefit in the resolution of his own case, from the designation and trial of an impartial court. An example of violation of this principle involves the settlement of a given case by a court that has not been established by law (condition expressly required by art. 6 ECHR), but by judges who have been appointed by the leading Board of the Court. On the one hand, the present paper aims to analyze how the principle of random assignment of cases can be circumvented by replacing during the trial one or many of the members of a judicial panel with other judges, and on the other hand to provide legal proposals. At the same time, throughout this paperwork, we will expose which are the means that any litigant can use to signal the irregularities regarding the abusive substitution of one or many of the members of a judicial panel. Last but not least, we intend to address a topical issue for doctrinaires, professionals, but also for litigants, given the complexity and "sensitivity" of invoking irregularities regarding the members of a bench of the Court, who would be called to rule in a complaint regarding the way in which they were invested to judge a case that was not randomly assigned to them.

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Jurisdiction of the courts to settle disputes concerning former dignitaries or civil servants

Author(s): Adriana Deac / Language(s): English Publication Year: 0

Recently, in the practice of the courts, we have noticed a different approach regarding the settlement of some litigations having as object the employment of the patrimonial responsibility of some persons who, at a certain moment, had either the quality of dignitary or the quality of civil servant. It is not an isolated case, it is about a significant number of lawsuits, about 20. Surprisingly, although in all these cases, the quality of plaintiff had the same national authority and the quality of defendants had, relatively, the same persons, the solutions of the courts were different, even contradictory, in terms of material, functional and territorial competence to resolve these disputes. The present paper aims to analyze the relevant court decisions in terms of legal issues, without discussing the merits of the cases, but only the procedural exceptions, inadmissibility and material and functional incompetence of the courts notified in resolving those disputes. In conducting the study, I will consider the methods of interpreting legal rules, respectively grammatical, logical and systematic, the purpose being to clarify this legal issue and to provide help, support to those who, perhaps, at some point, may face this situation.

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Application of exceptional measures, imposed by the state of emergency, in Romania

Author(s): Raluca Antoanetta Tomescu / Language(s): English Publication Year: 0

Recently, the society faced a series of special events, due to the risk situation caused by the spread of the SARS-CoV-2 virus at the international level, which forced the countries of the world to take special measures. At national level, this context was reflected in some exceptional measures in the institutions, namely the decree of the state of emergency, on the entire territory of the country and the restriction of some fundamental rights, for the first time in post-December Romania. Beyond the impact of the moral, economic or legal consequences, which it had on the community of institutions of these extremely drastic measures, the society had to face, not only with new social orders, but also some unclear situations, which aroused countless controversies over the meaning and application of legal rules, the interpretation of which raises even more questions and endless controversy. Therefore, we considered that a retrospective look at the basis of the measures implemented and the practical way in which they are applied is self-imposed.

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Proceedings on claims brought by state bodies as a special type of administrative procedure

Author(s): Volodymyr Kabanov / Language(s): English Publication Year: 0

The article describes proceedings brought by state bodies as a special form of administrative procedure. There are special requirements for the category of public law disputes, state bodies as plaintiffs in a case, and elements of proceedings in cases brought by state bodies. To a certain extent, the details of individual cases in public law disputes involving state bodies are being developed. Administrative procedure is one of the elements of the mechanism for the protection of citizens' rights, freedoms and interests against unlawful activities by State bodies. State bodies play an important role in this process, as the exercise of their right of action forms a separate category of cases dealt with in the context of administrative justice. State and local government bodies and their officials, other entities in the exercise of administrative authority under the direct provisions of the legislation in force or delegated powers constitute a wide range of subjects of administrative and legal relations. The dispersion in national legislation of the legal basis for their participation in the judicial process adds to the complexity of the legal settlement of the relevant conflict situations.

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Търговска сделка VS Административен договор - инструменти за имуществено разместване на блага

Author(s): Zhana Koleva / Language(s): Bulgarian Publication Year: 0

The subject matter of the present study is the commercial transaction, on one hand, and the administrative contract, on the other hand. They are both considered the fundamental instruments for the property transfer of goods. In both cases, the contracting parties are a trader and an administrative body, which gives rise to a dispute. Because in these cases the doctrine debates contract types and applicable law, some contradictory statements are discussed. Based on the philosophy behind the current regulation, the author presents his own vision of the difference between contracts under discussion.

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Последици, действие и отмяна на съдебното решение по чл. 108 от Закона за собствеността

Author(s): Tsvetanka Ivanova-Stoyanova / Language(s): Bulgarian Publication Year: 0

Although rarely used in practice, the revocation is an extrajudicial review is a legal remedy against enforced vicious judicial acts and is undoubtedly necessary for the effective exercise of the right of ownership over immovable and movable property. It cannot be used to remedy deficiencies when the party in the court proceedings has not exhausted all procedures to protect its rights, but can be used to impose justice in favor of the beneficial owner of the property in cases expressly provided by law.

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Оценка на въздействието върху околната среда в Република България

Author(s): Georgi Penchev / Language(s): Bulgarian Publication Year: 0

This scientific study is dedicated to some current problems of the legal regime of the environmental impact assessment in the Republic of Bulgaria. The attention is paid to the legal essence and stages of development of this administrative procedure under the Environmental Protection Act of 2002. In the conclusion some more general conclusions from the existing legal regulation as well as suggestions for its improvement are made.

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Изисквания за редовност към жалбата и протеста при оспорване на административните актове в първоинстанционните съдебни производства

Author(s): Miglena Kisyova / Language(s): Bulgarian Publication Year: 0

The observance of the requirements for regularity of the complaint and the protest in contesting the administrative acts in the administrative court proceedings are important for the proper referral to the court. The Administrative Procedure Code sets legal requirements for the formulation of the complaint and the protest, the observance of which will make these legal remedies suitable for initiating the administrative court proceedings. In the provision of art. 150 of the APC lists the requisites of the complaint and the protest, and in Art. 151 of the APC, the annexes thereto. Everything in its entirety leads to their regularity. It depends entirely on the disputant / prosecutor how and in what way they will be prepared, and what the consequences will be.

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The Concept of an Individual Right under Union Law

Author(s): Herwig C.H. Hofmann,Catherine Warin / Language(s): English Publication Year: 0

After six decades of development of EU law, individual rights under EU law are subject to divergent conceptual understandings. This is problematic since the notion of an individual right is central to the EU’s legal system and its implementation. Under the principle of ubi ius ibi remedium, the identification of an individual right grants access to judicial protection before national courts and the Court of Justice of the EU (CJEU), including in the context of claims to damages for violations of EU law. The concept of an individual right defines and delimits the scope of the possible direct effect of EU law in its Member States’ legal systems and is the distinctive characteristic distinguishing rights from principles under the EU Charter of Fundamental Rights. The notion is thus a central matter for EU constitutional law as well as EU administrative law. This article discusses various approaches to the concept and reviews how consistent interpretation and application of EU legal acts by Union bodies as well as by Member States legislatures, administrations and courts under a single notion of individual right under EU law could be possible.

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Locus standi in Administrative Procedure

Author(s): Joanna Wegner / Language(s): English Publication Year: 0

The chapter deals with a theme of the evolution of the standing in the administrative procedure of the first generation type. The author explains the roots of the concept of legal interest as the basis of the institution of the party to the administrative procedure. What is also highlighted, is that there is a variety of legal grounds for access to the proceedings, far different from, exclusive for the party, substantive provision of law. Some of them could be seen in the pattern for first codifications, namely the Austrian Act of 1925. What is interesting, is that binding regulation is far more restricting in terms of the participation in administrative proceedings than the pre-war provisions. It does not include nor the regulation about the person concerned or about the participatory-type procedures. Over time, this state of regulation has become difficult to accept, because it has turned out that the substantive legal interest is not always an adequate criterion for the participation of an individual in administrative proceedings. The transformations of the modern world, reflected in the regulations of substantive law, especially EU law, force a constant expansion of the catalogue of participants in administrative proceedings. It can be observed that, in a sense, the legislator returns to the idea that guided the first codifications of the law on administrative proceedings, although it is realised outside the Code. These remarks lead to conclusions about the common origin of the first generation procedure and contemporary participatory-type proceeding

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Собствеността на религиозните институции в САЩ и американският Religious Land Use and Institutionalized Persons Act

Author(s): Emanuil Dimitrov / Language(s): Bulgarian Publication Year: 0

The Religious Land Use and Institutionalized Persons Act (RLUIPA), Pub. L. 106–274, codified as 42 U.S.C. § 2000cc et seq., is a United States federal law that prohibits the imposition of burdens on the ability of prisoners to worship as they please and gives churches and other religious institutions a way to avoid burdensome zoning law restrictions on their property use. It also defines the term “religious exercise” to include” any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” RLUIPA was enacted by the United States Congress in 2000 to correct the problems of the Religious Freedom Restoration Act (RFRA) of 1993. The act was passed in both the House of Representatives and the Senate by unanimous consent in voice votes, meaning that no objection was raised to its passage, so no written vote was taken. The currant article deals with the issues of RLUIPA’s implementations and challenges the problem which local governments face dealing with the different religious groups. It also contains the guide which the Congress issued for better understanding and application of this act.

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Administrative burdens in the process of legal regulation

Author(s): Manol Stanin / Language(s): English Publication Year: 0

The orientation of the mechanism of legal regulation towards the protection and improvement of legally relevant public relations is accompanied by the opposite process. Its numerous manifestations are collectively verbally referred to as administrative bur- dens. They are not unequivocally negative. Achieving and maintaining a reasonable balance in this unity of opposites is a challenge not only for the executive power but also for the legislature and the judiciary. This balance is important because it depends on the state of the right to good governance and good administration, including the confidence of citizens in the normative system of law and the democratic foundations of society. Its refinement is a difficult task, given the potential of administrative burdens to be reproduced, as well as because the concept of good administration lacks in-depth study of the relation between good administration - good citizens. Their systemic conditionality predetermines the application of a systematic method of scientific research to find acceptable and effective solutions for both the legislature and the executive, as well as for citizens. Revealing the importance and role of dialogue in achieving these goals justifies the use of discursive analysis.

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Institutions of administrative law that protect the rights of tourists, consumers of hotel services in Romania/ European Union

Author(s): Ioana Nely Militaru,Laura Ramona Nae / Language(s): English Publication Year: 0

In the field of tourism, especially in the HoReCa sector, the protection of customers-beneficiaries of consumers of hotel services and products is vital, because if these products and services are non-compliant, unsafe, they can affect and cause damage to the health and safety of consumers. In the legislative context, both at EU and domestic level, through a number of legal instruments, a number of measures are being taken to protect consumers' rights, including through alternative dispute resolution methods. The role of whistleblowers is also of particular importance because infringements of legal rules can be affected by: fair competition for all EU professionals, business, contractual relations, consumer rights, the interests of traders and shareholders in business investment. All this can ultimately lead to the destabilization of the internal market and, implicitly, of the international market, of the business environment.

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The dilemmas of the judicial review of economic administration on the example of Polish law

Author(s): Rafał R. Wasilewski / Language(s): English Publication Year: 0

The article deals with the problem of the judicial review of economic authorities in Polish law. The analysis of constitutional provisions warrants the conclusion that such control may be exercised by both common courts and administrative courts, despite the fact that each is governed by different systemic and procedural regulations. In fact, the judicial review of economic administration in Poland has been exercised by both types of courts, although the legitimacy of this dual solution is questioned in the literature.

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The constitutional review of the Standing Orders and Resolutions of the Parliament

Author(s): Marieta Safta / Language(s): English Publication Year: 0

The Constitution of Romania regulates the constitutional review of the Standing Orders of each Chamber of the Parliament, and the Law on the organization and functioning of the Constitutional Court regulates the constitutional review of the Resolutions of the Parliament. Over time, an established case-law of the Constitutional Court of Romania has been straightened out, likely to reveal both the extent of the constitutional powers and the rules to be complied with by the Parliament in adopting the resolutions, as well as the extent of the powers of the Constitutional Court in carrying out the above- mentioned powers. This study is aimed at highlighting the importance of the constitutional review of the Standing Orders and resolutions of the Parliament in order to ensure the rule of law.

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Competition between Criminal and Administrative Responsibility - Questions and Solutions

Author(s): Ralitsa Voynova / Language(s): English Publication Year: 0

This article aims to present the essence of the Ne bis in idem principle from a doctrinal point of view, while at the same time emphasizing the more important practical issues in its application. The study also includes a synthesized comparative analysis of the case law of the Court of Justice of the EU, the ECtHR and some national courts. In the comparative analysis these questions are considered in particular - what are the criteria for assessing whether an administrative proceeding is defined as criminal and what are the most common hypotheses of competition between criminal and administrative penal responsibility against the same person for the same act. As a result of the research, some controversial questions regarding the applicable legal responsibility in cases of concurring facts were answered.

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