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Reflecții asupra legalității unor acte administrative cu caracter normativ emise de ministrul sănătății în perioada stării de alertă determinată de pandemia COVID-19

Author(s): Silviu Dorin Şchiopu / Language(s): Romanian Publication Year: 0

Reflections on the Legality of Some Normative Administrative Acts Issued by the Minister of Health During the State of Alert Determined by the COVID-19 Pandemic in the Execution of Law No. 136/2020 on the Establishment of Measures in the Field of Public Health in Situations of Epidemiological and Biological Risk. In the situations of epidemiological and biological risk provided in Law no. 136/2020, if there is an imminent risk, the Minister of Health establishes by order - administrative act of a normative nature - the manner of application of the measures provided in the mentioned law. Thus, the measure of isolation in a health unit established by decision of the public health directorate will be based on the order of the Minister of Health issued for the concrete execution of the law. However, the judicial control of the normative administrative acts is exercised by the administrative contentious court only within the action for annulment, under the conditions provided by Law no. 554/2004, so that ministerial orders cannot be the subject of the objection of illegality. Therefore, persons in respect of whom the measure of isolation in a health facility has been instituted, although they can ask the court to annul the decision issued by the public health directorate, they will not be able to invoke a possible illegality of the order issued by the minister of health, the latter not being able to be the object of the exception of illegality. This is why it is essential that ministerial orders be issued in the letter and spirit of the laws adopted by Parliament. In order to illustrate the (un)lawfulness of normative administrative acts issued by the Minister of Health during the alert period, in this short study we will analyse the orders that imposed the social medical detention of persons infected with the SARS-CoV-2 virus after the entry into force of the Law on the establishment of measures in the field of public health in situations of epidemiological and biological risk.

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Harmonisation of higher education system for the purposes of public administration efficiency improvement – some of the propositions for successful reform implementation

Author(s): Jelena Dujmović Bocka / Language(s): English Publication Year: 0

In this paper the author addresses the issue of recognition of the harmonization process as a significant part of higher education system reform in the Republic of Croatia. The first part of the paper emphasizes neo(institutionalism) as a theoretical approach, which has once been used in conducting empirical research, while at the same time confirming both the hypothesis that the national systems are more frequently being harmonized, as well as its sub-hypothesis, that the harmonization of national systems of higher education is mostly the result of Europeanisation process (along with its corresponding indicators – the Bologna process implementation, international collaboration – inter-institutional cooperation between institutions of higher education, project activities, European higher education politics, teaching and non-teaching staff mobilities). The basis for the paper refers to the Bologna process, that has been recognised as the key contributor for harmonization with the European system of higher education and has, as such, been implemented into the Croatian system of higher education. The necessity for applying the same and/or similar institutional propositions, that is, the necessity for approaching the common model is considered to be the centre of reform goals. The final part of the paper presents the results of a part of the mentioned research, which verify the aforementioned hypothesis and its sub-hypothesis and refer to specific propositions which should be taken into consideration for more successful reform implementation in one of the most significant public administration areas, public service, or better said, higher education system as part of public service.

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The impact of the Government's restrictive measures on the transparency of the administrative proceeding in the context of the COVID-19 Pandemic

Author(s): Balázs Hohmann / Language(s): English Publication Year: 0

Social distancing has become a distinctive feature of the recent global outbreak of the COVID-19 coronavirus and the government's response to it. This is also reflected in the way public administration systems perform their tasks and is a comprehensive feature of the way in which national and European public administrations are performing their tasks at the time of the lecture. In this context, the handling of cases in person has been suspended in several countries, and some public administration staff have switched to working from home. This situation has perhaps highlighted even more sharply the phenomenon that had already emerged in national regulations in the context of the electronisation and digitalisation of processes and electronic communication. And in this context, the question rightly arises, which has become even more striking in the current period: will the transparency of public administration, and within it the transparency of the process of public administration in individual cases, towards the client, remain sustainable in the long term if the client and society do not meet the public administration in person, but only through electronic platforms? The study will seek answers to these questions that can be scientifically substantiated.

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Public procurement in times of pandemic Covid 19: the exception regime in Portuguese law and times of change in E.U.

Author(s): Maria do Rosario Anjos / Language(s): English Publication Year: 0

This work focuses on the importance of public procurement in the context of the recent COVID 19 pandemic and the impact it has had on the legal rules for these con- tracts. The analysis refers to the context of the Portuguese legal order and its connection to the European Union law. Objectives: examine the effects of the pandemic on the legal regime of public procurement in Portugal and its compliance with EU law. Analysis of legislative measures adopted by the prevention, containment, mitigation and treatment of epidemiological infection by COVID-19. Methodology: study of new legal measures introduced in pandemic time and study of the solutions adopted by Portuguese law. Results: we present the results of analysis of changes to the rules applicable to the formation of public works contracts, contracts for the leasing or acquisition of movable property and the acquisition of services, provided by the administrative public sector or similar, as result of the pandemic crisis.

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The effects of judgments on the suspension of normative administrative acts and their concrete consequences

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

The judgments ordering the suspension of administrative acts, whether individual or normative, have effect only between the parties to the dispute in which they were given. If in the case of individual administrative acts, this effect is fully justified, in the case of normative administrative acts, the situation becomes problematic. The study aims to analyze the legal basis of the two proposed solutions regarding the effects of judgments ordering the suspension of normative administrative acts: inter partes effects vs. erga omnes effects. The research conducted is descriptive and explanatory, supported by relevant case law and doctrine. If a normative administrative act has been suspended by the court (all the more so when the judgment has become final), that act might be suspected of illegality. In this case, one of the three presumptions on which its enforceability is based, the presumption of legality respectively, has been temporarily removed. The principle of the legality of administrative acts justifies the removal of the enforcement of this act also in relation to the persons who did not have the quality of party, but who can bear the consequences of a seemingly illegal act. At the same time, the specifics of the normative administrative act, as well as the principles of the predictability of the law and legal certainty, argue in favour of this solution.

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Election and dismissal of the deputy mayor according to the Administrative Code

Author(s): Mihai Cristian Apostolache / Language(s): English Publication Year: 0

The position of deputy mayor has been under regulation since the beginning of the post-December legislation, the deputy mayor being qualified as an assistant of the mayor. Depending on the rank of the locality, there may be one or two deputy mayors. As an important feature, the deputy mayor enters both the executive and the deliberative power, acting as a link between the two authorities at local level, the mayor and the local council. The paper deals with the procedure of appointing the deputy mayor, as well as the loss of this quality, by dismissal, as they are regulated in the Administrative Code.

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Moral damages in comparative administrative law

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

At present, the national legislation does not provide criteria for assessing the moral damages for prejudice suffered by the victim of an activity of the administration. In this sense, the judge will be the one who will analyze on a case-by-case basis whether he will grant moral damages and in what amount. We are currently witnessing an interference of civil law with administrative law regarding the forms of administrative-patrimonial liability. From this perspective, the present paper aims to analyze the case-law of French law in order to outline such a tendency of the judge, whether from the Administrative Court or the Council of State, on whether or not to grant moral damages arising from the idea of risk in the activity of public administration. Through law-specific research methods, we will investigate two current cases that can provide an insight into the contribution of case-law to shaping the legal regime of administrative liability. This highlights the way in which the administrative judge grants moral damages if the state is held liable sans faute. From this point of view, the topic is interesting for legal specialists who will find in this paper information about the practical applicability of the concept of administrative liability.

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Suspension of public servants - constitutionality issues of article 513 paragraph (1) letter l) of the Romanian Administrative Code

Author(s): Marta-Claudia Cliza,Bogdan-Florin Micu,Laura-Cristiana Spătaru-Negură / Language(s): English Publication Year: 0

The entry into force of the Romanian Administrative Code has maintained, unfortunately, a controversial legal provision, regarding the suspension of the public servant's employment relationship, in case legal proceedings are taken against the public servant, if commited certain acts. From our perspective, article 513 paragraph (1) letter l) of the Romanian Administrative Code raises serious concerns regarding the presumption of innocence and the right to work of the public servants found in such situation. The present study tries to bring a multidisciplinary legal interpretation of the authors regarding the analysed legal provision and certain arguments for considering this provision able to be declared, soon, unconstitutional.

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The Law on metropolitan areas. The intention of the legislator to regulate one of the forms of association of local communities

Author(s): Gabriel Marin / Language(s): English Publication Year: 0

The forms of association of local communities are the intercommunity development association and the metropolitan area. These two forms of association of local communities can be formed into private entities of public interest. In contrast to inter-community development associations, metropolitan areas may have a limited territorial jurisdiction of up to 30 km compared to the county municipality where they can be established. In addition, according to the normative acts in force, metropolitan areas can only be established around municipalities of county or municipalities declared. Although the legislator wished for a difference between intercommunity development associations and metropolitan areas, even though there was no express text of the law that could be applied for differentiation, local public authorities understood to establish metropolitan areas in the same way as intercommunity development associations. Realizing that the metropolitan area can be used to determine financial and social growth within the communities that compose it, the legislator, through the relevant ministry, published on its virtual page, on March 8, for public consultation, on the Metropolitan areas Law, wishing to know the position of the citizens in relation to the changes they wish to make in relation to this form of association of local communities. In the present study, we analyze the provisions of the draft normative act on metropolitan areas quantitatively, showing what essential changes shall be made within this form of association of local communities if the law shall be promulgated, what are the financial and social benefits for the local communities that make up a metropolitan area and what changes could be made to the draft normative act. For the administrative territorial organization of the Romanian state, the legislation on metropolitan areas represented a step toward a modern administrative territorial organization of European type, respecting the principle of subsidiarity more than it is currently respected.

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Tools for Official Relations in Public Activity - Disparities in Good Administrative Behaviour

Author(s): Camelia Daciana Stoian,Cristian Măduța / Language(s): English Publication Year: 0

The present research aims at the need to take up the example of the provisions of the European Code of Good Administrative Behaviour at the level of public administration of the member countries. In fact, the activities performed by civil servants or contractual staff in the public power regime, more precisely in the segment of law enforcement, in the segment of public service provision, have the same legal regime seen through the angle of interest of the citizen of the same member state as the citizen of the Union, or of any legal person. Any communication at official level has as its central point certain principles and limits imposed for reasons of private interest and categorical public interest. However, employees of the national public administration, viewed individually in conjunction with their own duties, have not implemented the procedural principles set out in the practice of the Court of Justice of the European Union with regard to 'limits' and do not have a methodology to follow in identifying a balance between the permitted degree of transparency of their work in relation to citizens' requests. At the same time, the way of decent expression of the justified impartial attitude in the legal and efficient solution of requests in the daily work with the public, has not implemented the standards of good administrative conduct aimed at guaranteeing the efficiency of the work and the quality of public service at the same time. The implications of this study aim to outline the essence of the obligation to adopt a Code of Good Administrative Behaviour at the level of each Member State, based on the citizen's right to good administration, on the case law of national and European courts and on the practical explanation of convergent coordinating lines such as, for example: legality and proportionality or the clear absence of abuse of power and honesty.

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Interferences of State Administration with Local Self-Government in the Promotion of Local Affairs in the Light of the Administrative Code

Author(s): Verginia Vedinas,Ioan Laurenţiu Vedinaş / Language(s): English Publication Year: 0

The study is based on the premise that the activity of promoting local affairs and their effective implementation requires and presupposes collaboration and even cohabitation between the actions of the state administration and those carried out by the local public administration with autonomous character. From this perspective, the study aims to identify the principles governing relations between the two levels of administration, that of the central system and that of the territorial level, the principles governing these relations, and the institutional framework through which they take place. The approach is based on the constitutional provisions and those of the Administrative Code, and the conclusion is that it is necessary to understand the reality that the development of each administrative-territorial unit and area of the country, whether smaller or larger, is inextricably linked to the proper functioning of cooperation between the central and local/county levels.

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Practical Issues Regarding Compliance with Decision-Making Transparency by Local Public Authorities

Author(s): Mădălina-Elena Mihăilescu / Language(s): English Publication Year: 0

The transparency of the activity in the public administration is a sine qua non condition for the observance of fundamental citizen rights, ensuring, at the same time, the involvement of the ordinary citizen in the decision-making process. This article will try to analyze some of the situations in which local administration authorities have clearly violated the provisions of Law no. 52/2003 or Law no. 544/2001, restricting the right of citizens to take cognizance of certain draft normative acts regarding important issues related to the good running of the community, free access to various public information or aspects related to training, administration, and the use of local public funds. At the same time, we will highlight the availability of local authorities from Galați, Buzău or Brăila to ensure through their websites access to the annual activity and the involvement of these authorities in economic, social or cultural activities.

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The first reduction of the fine in the decision of the Czech Competition Authority due to the undertaking’s compliance program – a step in the right direction?

Author(s): Martin Boháček / Language(s): English Publication Year: 0

In early September 2022, the Czech Competition Authority (Office for the Protection of Competition) for the first time in its decision-making activity reduced the fine imposed upon a competitor due to its compliance program. This is a fundamental change, as this Office has so far refused to take the compliance program into account when considering the amount of the fine. The objective of this paper is to assess what functions a compliance program can have in competition law. Another aim is to find out what the Z-TRADE's violation of competition law was, how much the fine was reduced and under what circumstances. Related to this is the research question of whether and how the Office has defined the principles for taking this program into account in its future decision-making. In order to clarify the nature of this tool, the author has asked another research question - how the Office argued in its previous decisions for refusing to take the compliance program into account. In the Conclusion, the author assesses whether the consideration of compliance in the practice of the Czech Competition Authority is a step in the right direction. The author will use the method of qualitative analysis of jurisprudence and legal literature. While examining the links between the use of compliance in the administrative penalty for violation of economic competition and in the criminal penalty, he will use the micro-comparison method.

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Правосубектността на физическите лица през погледа на дигиталните технологии

Author(s): Daniel Delchev / Language(s): Bulgarian Publication Year: 0

The legal personality of the individuals is one of the basic legal concepts that provides the basis for each of the branches of law; both in the past and in the present. With the technological rise and both the development of digital technologies and the daily dynamics of legal relations; the concept of „legal personality“ has not only not lost its significance; but on the contrary; gained a meaning in a completely new and expanded context. The legal personality of individuals has managed to enrich its meaning; refracted through the prism of the modern and the new; expanding its interpretation to include the modern definition of „personal data“ as a mean for the legal individualization of the individuals. This publication aims to examine the concept of the legal personality of the individuals and its main characteristics; while presenting the contemporary view on the context of the same; including personal data as a mean of legal individualization; the protection of these data and the role of the digital technologies in all these processes.

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Beyond Reciprocity: Recognition of Ukrainian Administrative Acts in the Times of Emergency

Author(s): Jakub Handrlica / Language(s): English Publication Year: 0

Recognition of foreign administrative acts has triggered a considerable attention of the scholarship of public law in Europe. The fact is, however, that most of the scholarship has paid attention to those models of recognition, which have been established to exist in the period of peace. In this respect, the feature of recognition has been understood as a tool, facilitating circulation of persons, products and capital. Thus, the existing academic debate on recognition has focused on this feature from the perspective of reciprocity (= mutual recognition). The current occurrences, which have arisen in the aftermath of the Russian aggression against Ukraine, represent a salient opportunity to analyse the feature of recognition from a different viewpoint. While the major approach of the EU law to the feature of recognition has been until recently based on reciprocity, the emergency legislation issued after February 2022 is built upon unilaterality. This article will focus different pieces of EU legislation, which have been issued to govern certain issues in recognition, arising with respect to the war in Ukraine.

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Managing Language Barriers by the Means of Administrative Law: Linguistic Dimension of the Ukrainian Crisis in the Czech Republic

Author(s): Kamila Balounová,Vladimír Sharp / Language(s): English Publication Year: 0

Every encounter of two different cultures almost inevitably brings along an issue of translation and interpretation. When it comes to bureaucratic procedures, the Czech law requires that certain inter-linguistic actions be executed with the assistance of socalled court translators and court interpreters, i.e. highly skilled professionals holding a special license issued by the Ministry of Justice. While the regulatory regime of certified translation and interpretation had been designed as to satisfy the ordinary day-to-day needs of the judicial system, an unexpected and acute crisis concerning thousands of foreign nationals having not one, but two or more native languages, seemed to have put the relatively rigid system to the trial. Our presentation will address the problematic regulatory issues arising from this situation and propose both practical and theoretical or conceptual solutions to the existing problems.

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Administrative Science or Sciences? Research Must Remain Interdisciplinary

Author(s): Diana Dănișor / Language(s): English Publication Year: 0

If human sciences study behaviours, administrative science mobilizes a number of disciplines, raising administration problems from a double perspective – theoretical and practical. Since the points of view of specialists in these disciplines do not overlap, one speaks of plural administrative sciences rather than of a single, unified administrative science. Administrative science is generally approached within a single discipline, even if it requires a broader approach, with no need to integrate knowledge from different disciplines that have as their object the knowledge of public administration, as it is difficult to reduce the research results from these disciplines to a common denominator. But a theory of public administration common to all administrative sciences can only be achieved through the common approach of research devoted to the current problems of public administration, research undertaken by representatives of administrative law, administrative procedure, administrative policy, sociology, history, political science, legal linguistics, etc. to focus on diverse and selective topics, to approach in a general way, but also in detail.

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Problems of Administration of Disputes Arising in Connection with the Public Service: Jurisdiction and the Possibility of Mediation

Author(s): Mariia Karmalita,Maryna Pyzhova / Language(s): English Publication Year: 0

The purpose of the publication is to clarify the legal grounds for delimiting the jurisdiction over disputes arising in connection with public service and the legal grounds for applying the institution of mediation in the field of labor relations. The article examines the legal basis for determining the jurisdiction of labor disputes in Ukraine based on their subject matter and peculiarities of the subject composition of the dispute, as well as the prospects for using mediation, especially in the context of the challenges posed by COVID-19 and martial law in Ukraine. It is stated that 1) labor disputes arising in connection with public service may be considered within the framework of administrative proceedings; 2) globalization of the economy, in particular, the integration of the Ukrainian economy, requires the introduction of new effective institutions regulating market relations, and thanks to mediation, the institution of labor disputes has been able to develop in a new vector. The author analyzes the correlation between the concepts of "civil service" and "public service" and offers recommendations for their differentiation. The author formulates the concept of "dispute in the field of labor relations and public service". The legal grounds for the use of mediation in the field of labor relations and public service are substantiated. The methodological basis of the research is such methods of scientific knowledge as: dialectical, comparative legal, dogmatic, logical methods of scientific knowledge.

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The New Trends in Administrative Decisions in Portugal - the Simplex Program and the Adequate Pursuit of Public Interest

Author(s): Raquel Carvalho / Language(s): English Publication Year: 0

The trend towards the acceleration and simplification of administrative procedures is not new in the Portuguese legal system. However, the globalization of economies, which need to be reconciled with the protection of multiple public interests, has been pushing the legislator to pursue this path. This paper proposes to analyse DL no. 11/2023, of February 10th, included in the simplex programme, which has introduced several simplification and acceleration changes in many legal systems, especially in the environmental field. This is a particularly complex area, which requires great care when implementing solutions that facilitate decision-making, at the serious risk of not adequately pursuing public interests. The preamble of this law clarifies that it " aims to initiate the simplification reform of existing licencing, through the elimination of licences, authorisations, acts, and dispensable or redundant procedures linked to the protection of environmental resources, simplifying the activities of companies without compromising environmental protection (...), the Public Administration focusing, particularly, on monitoring, co-responsibility, and self-control by economic operators. Is simplification reconcilable with environmental public interests? Will it be sufficient, given the irreversibility of much ecological damage, to rely solely on monitoring and surveillance functions, leaving aside the preventive and precautionary functions?

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Обявлението за доброволна прозрачност и договорът за обществена поръчка

Author(s): Ilonka Goranova / Language(s): Bulgarian Publication Year: 0

The current national legal framework allows contracting authorities and contracting entities to publish a notice for voluntary ex ante transparency in cases following outside the scope of the Public Procurement Act. Thus, they express their intention to conclude a contract, describe its subject and indicate the economic operator they have selected. Under the express will of the Bulgarian legislator, the notice for voluntary ex ante transparency is an individual administrative act, the legality of which can be appealed before the Commission on Protection of Competition. The publication of a notice for voluntary ex ante transparency and its entry into force preclude subsequent requests for destruction of the concluded contract.

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