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ENSURING THE CORRECT IMPLEMENTATION OF THE STABILISATION AND ASSOCIATION AGREEMENT IN SERBIA: A CASE STUDY ON THE IMPORTS OF SECOND-HAND VEHICLES

Author(s): Steven Blockmans,Mirjana Mihajlović / Language(s): English Issue: 1/2011

The purpose of this article is not to analyze the state of trade liberalization between the EU and Serbia. Rather, this paper offers a practical insight in the functioning of the SAA's chapter on the free movement of goods. It examines the limits imposed by the S AA on Serbia with regard to the taxation regimes applicable to the importation of second-hand cars from EU Member States, a practice with potentially big economic consequences considering the volume of used vehicles imported into Serbia from the European Union. Potential breaches of the Stabilisation and Association Agreement could materialise in the unjustified distinction posed by the tax regimes applicable to the importation of second-hand cars from the EU into the Republic of Serbia, on the one hand, and the domestic sale of (such) cars, on the other. In order to determine whether an infringement of SAA provisions really exists, this paper will first determine whether the Serbian tax provisions make a distinction between the import and sale of used vehicles as applied to secondhand cars originating in Serbia and in the EU (section 2). Before coming to a conclusion whether the perceived distinction does in fact breach the SAA (section 4), the paper will offset the analysis in section 2 with an examination of the relevant jurisprudence of the European Court of Justice on the taxation of second-hand vehicles imported from an(other) EU Member State (section 3). Arguably, the Court's case-law offers clear guidance for the Serbian authorities in their future Grafting and enactment of legal measures and administrative practices in the area of free movement of goods, as indeed more generally. As such, the case study on the taxation over used cars imported from the EU into Serbia offers an illustration of the need for the proper approximation of Serbia's and other (potential) candidate countries' existing legislation to that of the European Union and for the effective implementation of the former in one of the key operative areas of the SAA. By the same token, this article offers guidelines for members of the Serbian judiciary how to interpret and apply provisions of the Stabilisation and Association Agreement in contentious cases

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FREEDOM TO PROVIDE SERVICES IN THE INTERNAL MARKET AND CONSUMER PROTECTION

Author(s): Rajko Knez / Language(s): English Issue: 2-3/2010

In DSIM, which is another big step toward ensuring freedom to provide services in the internal market, consumer protection is regulated the other way than we could have expected if DSIM had taken into account the complete case law of the ECJ. In some DSIM chapters, consumer protection is not mentioned and DSIM does not interfere with it either (e.g., regarding the contractual provisions in the consumer relationship between consumers and retailers). The Directive does not change the legislator's views on the protection of the consumer as a person who alone is responsible for the decision on conclusion of a long-term legal transaction based on sufficient information the consumer gets from the retailer. It can also be ascertained that the case law regarding the exceptions justified by overriding reasons relating to the public interest, such as consumer protection in view of exceptions to freedom of establishment, is not changed. DSIM follows the rules drawn up by the case law of the EG. In the area of all the four types of freedom to provide services (i.e., when it is not about the freedom of establishment for service providers), DSIM has enacted the country of origin principle that is restricted and weakened where it is possible to invoke consumer protection merely on the grounds set out in Article 18 of DSIM. That is to say, the overriding reason is safety of services. In addition to this reason, if it exists, it is necessary to carry out the procedure laid down in Article 35 of DSIM, and to call on the Member State of establishment to take appropriate measures that will assure adequate safety of services. This is possible only in those cases where no harmonisation rules have been adopted at the Community level regarding the safety of an individual service, and only in the case if the measure, required by the state where the service is provided, would contribute to greater safety of services. At the same time, the Member State of establishment has not taken such a measure or does not require it, and in any case, greater safety requirements, imposed by the Member State where a service is provided, must be proportionate. Thus, the supervision duty (along with the rules on cooperation between the competent bodies of the Member States) is delegated to the country of establishment or origin even when it comes to providing services in the host Member States. But on the other hand, this means weakened supervision efficiency offered by the Member States where the service is provided. In this case, the rules on the mandatory professional liability insurance and on the information, which the provider must give to the service recipient irrespective of whether or not the recipient requests it (and other rules listed above, and which are in favorem consumatoris), partially mitigate and compensate for the country of origin principle that is weakened, and for the supervision efficiency weakened by the Member States where the service is provided. From an overall point of view, all Member States are thus gaining and losing because they will find themselves in the role of the Member State of establishment or origin as well as in the role of the country where a service is provided. Hence, the countries which have stricter consumer protection standards will be losing more in comparison with those having less strict standards. That is to say, in order to assure safety of a certain service, the countries in the first group will have to carry out the cooperation procedure laid down in Article 35 of DSIM, and they will have to warn the country of establishment with less restrictive consumer protection provisions to take (in the event of a specific provider) stricter measures to assure safety of the service in another Member State. One can easily imagine that this will not be easy. It may occur that the country of establishment will not have a legal basis in its legislation to be able to ask such a service provider to take a certain measure requested by the competent body in the host Member State. Only in this case, i.e., with a certain delay time, the country will be able to introduce this measure for the specific service provider.

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HARMONIZACIJA PROPISA O PRODAJI NEPOKRETNOSTI U EVROPSKOJ UNIJI

Author(s): Duško Dimitrijević / Language(s): Serbian Issue: 1/2010

The Treaty establishing the European Community enshrines the free movement of capital as a fundamental freedom. It is intended to remove all restrictions on the movement of capital so that European citizens may take full advantage of the single market. The free movement of capital in EU covers much more than payments and transfers of money over the borders. It covers transfers of ownership of assets and liabilities and also the investments in companies and real estate. With the successive accession of new Member States to the EU, transitional periods and some exception were negotiated for the free movement of capital. These concern to a limited extant, the purchase of property in the new Member States that has joined the Union until 2004 (Cyprus, Estonia, Hungary, Latvia, Lithuania, Poland, the Czech Republic, Slovakia, Slovenia, Malta Bulgaria and Romania), but is also true of Denmark and Finland.

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UN APERÇU DES DÉFIS DE LA TRADUCTION JURIDIQUE : À LA RECHERCHE DES SOLUTIONS

Author(s): Olivera Vušović / Language(s): French Issue: 26/2022

The aim of this article is to establish an overview of the main particularities and difficulties found in the field of legal translation, as well as to examine possible solutions. The introductory considerations relate to the issue of translation and equivalence in general, as well as to the double dimension of the equivalence of a legal text and the notion of functional equivalent. The challenges of legal translation are examined through the combination of six elements: the question of the legal norm and its consequences on translation, the non-concordance of legal concepts between different languages, the specificity and diversity of languages and cultures within which the law is elaborated, the question of equivalence of legal effects, the possibility of translating the law and the variety of fields, a new aspect specific in particular to EU law. Finally, the question of the education of legal translators is considered in the context of the choice between translation and legal skills, or preferably, the fusion of the two.

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Правни режим верских прелаза у Југословенским пројектима Закона о верама и међуверским односима 1919-1941

Author(s): Dalibor Đukić / Language(s): Serbian Issue: 2/2022

During the period of the common state of Serbs, Croats and Slovenes, several draft laws on religions and interreligious relations were drafted. One of the controversial issues that needed to be resolved was the regulation of religious conversions, i.e. procedures that members of one recognized religion had to follow when switching to another recognized religion. The paper analyzes all draft laws on interreligious relations with a special focus on the provisions governing the official conversion from one religion to another. The main hypothesis presented in the paper is that the interwar projects of the law on interreligious relations allow changing religious affiliation, but at the same time set a series of administrative obstacles that must be overcome by a person who wants to change the religious organization to which he belongs. Another hypothesis is that these administrative obstacles are a consequence of the specific regime of relations between the state and religious organizations, in which religious affiliation is not only a private matter for the individual, but also produces certain legal consequences in the form of specific obligations that members of a certain religion have towards their religious organizations. Keywords: religious conversions, Kingdom of SCS, interreligious relations, draft laws on interreligious relations.

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Concepts of humanitarian intervention and preventive self-defense in the light of prohibited use of force and threats of force in international law

Author(s): Aleksandra Yovanovich / Language(s): English Issue: 1/2018

Invoking the principles of humanity and the legitimate right of self-defense, humanitarian intervention seeks to obtain agreement for specific undertakings and understanding on the part of the widest possible international community. The new political decisions of some countries want to get out of the framework created in international law to justify their actions. Since the end of the Cold War, when deemed necessary, room for maneuver has been allowed to create new exceptions to the prohibition on the use of force and the threat of force to justify some wrongdoing or to avoid and not to be characterized as aggressors. The unilateral humanitarian intervention and preventive self-defense seem acceptable and appropriate as a reaction in certain situations in the public eye, which is due to the influence of various media and other factors. In order to understand the concept of humanitarian intervention and preventive self-defense in light of the prohibition of the use of force and the threat of force in international law, the report addresses: definition of humanitarian intervention and its elements, legal and other reasons and conditions for admissibility of humanitarian intervention and justification for the use of preemptive self-defense and preemptive use of force.

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Justiţia constituţională ca putere neutră – cazul României

Author(s): Dan Claudiu Dănişor / Language(s): Romanian Issue: 01/2018

The aim of this study is to analyse the way in which constitutional justice has fulfilled functions of neutral power in the constitutional history of Romania and, by revealing the manner in which the Law of 2003 on the revision of the Constitution of Romania gave the Constitutional Court the competence to address “legal constitutional disputes between public authorities” and by researching into the jurisprudence of this court, to draw conclusions regarding the necessity, efficiency and risks of this system.

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Facturarea electronică obligatorie – metodă de prevenire şi combatere a evaziunii fiscale

Author(s): Anca Andreea Manea / Language(s): Romanian Issue: 01/2018

Tax evasion represents a complex phenomenon, which is manifested at international level, with negative economic, financial and social implications. In Romania, there is a constant preoccupation for prevention and combating tax evasion, given the magnitude it has gained. One of its forms is the use of false invoices that we believe can be tackled by introducing mandatory electronic invoicing and the transmission of such data through an integrated system to the tax administration. In this way, the tax authorities will hold information both from the supplier and from the client, which will allow real-time risk analyses to be carried out in conjunction with other data held at the tax administration level.

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Reflecţii privind reglementarea principiilor „egalităţii înaintea legii”, a „egalităţii în faţa legii” şi a „egalităţii în drepturi” în Constituţiile române şi în dreptul comparat – aspecte selective

Author(s): Nicolae Pavel / Language(s): Romanian Issue: 01/2018

At the onset of the study it is necessary to mention that its topic will be circumscribed to regulations of the principles "equality in the eyes of the law", "equality before the law" and "equality in rights", in the Romanian Constitutions and comparative law – selective aspects. By this approach, the proposed study opens a complex and complete vision, but not exhaustive, to regulation of the principles "equality in the eyes of the law", "equality before the law" and "equality in rights", in the Romanian Constitutions and comparative law. In comparative law analysis, we will keep a symmetrical approach to identifying regulations of the principles "equality in the eyes of the law", "equality before the law" and "equality in rights", in the Romanian Constitutions and comparative law. The subject of the scientific endeavor will be circumscribed to the scientific analysis of its parts, as follows: 1. Preliminary considerations. 2. Identification of constitutional rules on the regulations of the principles "equality in the eyes of the law", "equality before the law" and "equality in rights", in the Romanian Constitutions and comparative law. 3. Highlights Romanian doctrine and comparative law on the regulations of the principles "equality in the eyes of the law", "equality before the law" and "equality in rights". 4. Jurisprudence of Constitutional Court of Romania, on the principles: "equality in the eyes of the law", "equality before the law" and equality in rights". 5. Conclusions.

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Decizia nr. 2345 din 5 iunie 2015 – Înalta Curte de Casaţie şi Justiţie, Secţia de contencios administrativ şi fiscal

Author(s): Eugenia Marin / Language(s): Romanian Issue: 01/2018

Nu sunt întrunite elementele constitutive ale stării de incompatibilitate reglementată de art. 87 alin. (1) lit. f) din Legea nr. 161/2003 în cazul în care intimatul-reclamant, în calitate de primar al Comunei S., reprezentant al unităţii administrativ-teritoriale în Adunarea Generală a Acţionarilor, a acţionat pentru un interes social şi nu pentru unul personal, respectiv în situaţia efectuării de acte în vederea realizării formalităţilor necesare autorizării şi înmatriculării S.C. E. E.E.S. S.R.L. la Oficiul Naţional al Registrului Comerţului.

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Decizia nr. 2341 din 5 iunie 2015 – Înalta Curte de Casaţie şi Justiţie, Secţia de contencios administrativ şi fiscal

Author(s): Eugenia Marin / Language(s): Romanian Issue: 01/2018

Contract de finanţare încheiat prin programele operaţionale în cadrul obiectivului de convergenţă. Proces-verbal de constatare a neregulilor şi de stabilire a creanţelor bugetare. Nelegalitatea şi netemeinicia acestuia

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Codificarea administrativă. Abordări doctrinare şi cerinţe practice

Author(s): Emil Bălan / Language(s): Romanian Issue: 01/2018

Review of: Administrative Codification. Doctrinaire approaches and practical requirements – coordinators: Emil Bălan, Cristi Iftene, Dragoş Troanţă, Marius Văcărelu, Ed. Wolters Kluwer Romania, Bucharest, 2018, 350 p.

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Statul – metaforă şi realitatea juridică

Author(s): Diana Dănişor / Language(s): Romanian Issue: 02/2018

Conceived as a discursive analysis the article points out a series of questions that the concrete study of the state concept can explain. „Doctrine Concept” or „Theoretical Classification”, the state is used by specialists to know and analyze legal phenomena. But because it is both a historical reality and a theoretical construction, its definition proves to be not an easy way. I am witnessing, in this sense, the three theories – of the state-authority, represented by Maurice Hauriou, of the state-service, which has as promoter Léon Duguit, and the rule of law of Hans Kelsen – who were confronted in an attempt to define the state.

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Regimul juridic al validării mandatului consilierilor locali/judeţeni – între stabilitate şi dorinţa de schimbare

Author(s): Mihai Cristian Apostolache / Language(s): Romanian Issue: 02/2018

The mandate validation operation is specific to the functions chosen, intervening between the election and the oath. Depending on the option of the legislator, the validation is done by the deliberative authority, as in the case of the local or county council, or by the court, as in the case of the mayor. The legal institution of mandate validation is extremely important because, in the absence of validation, the local elected person cannot go to the next stage, that of taking the oath, and cannot enter into the exercise of the mandate. Because the administrative practice had difficulty in carrying out the validation of the mandate of a local/county councilor, the legislator considered that certain corrections were necessary, for which they adopted two normative acts that change the legislative solution of the validation of the mandate of the local/county councilor by the local/county council. The article analyzes the current legal status of mandate validation of the local/county councilors, as well as the recent legislative solutions.

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Rolul profesiilor sociale în procesul de dezvoltare durabilă

Author(s): Claudia Boghicevici,Camelia Daciana Stoian / Language(s): Romanian Issue: 02/2018

It is already known and accepted in Romania the reality of the consequences produced by the social or other reforms, the transformations that reach precisely the category of the citizens from the rural area, with socio-economic problems. In 2017, the awareness of the fact that the population in the rural area, mainly consisting of socially, economically or medically vulnerable groups, need this type of services, trying to compensate for the reality of the dismantling of several sanitary units, O.U.G. no. 18 attempts an approach through the corroboration of this state of affairs with the objectives of developing community services. Our conclusions set out in this article are paving the way for a ferenda law proposal to ensure proper regulations from the perspective of providing training for the social professions to be involved in the functioning of integrated centers at the level of rural communities.

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Regimul incompatibilităţilor aleşilor locali în jurisprudenţa Înaltei Curţi de Casaţie şi Justiţie

Author(s): Ciprian Ene / Language(s): Romanian Issue: 02/2018

During the negotiations for Romania’s accession to the European Union, it was called into question the need for the implementation of an efficient verification mechanism of the declarations of assets in our country, as the Group of States against Corruption of the Council of Europe (GRECO) made such a recommendation to our country to this end. Therefore, Romania became the first European country which set up an operationally independent institution, which exercises an administrative control, specialized in verifying the assets, the conflicts of interests and the incompatibilities, namely the National Integrity Agency. At the same time with its establishment, the administrative courts faced “a flood” of causes aiming at the appeals against the assessment reports concerning the conflicts of interests and the incompatibilities, lodged by the persons holding titles and public offices.

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Modificări esenţiale ale categoriei înalţilor funcţionari publici, incluse în proiectul Codului administrativ

Author(s): Irina Alexe / Language(s): Romanian Issue: 02/2018

Out of all of the three categories of civil servants provided by Law no. 188/1999, the category of senior civil servants was and still is the most exposed to both political influences and frequent legislative changes that have been addressed, although the purpose of its establishment was to ensure senior management in the central public administration and autonomous administrative authorities, respectively the continuity of operation and the stability of the authorities and institutions at the moment of the change of political power. The most recent of the major legislative amendments that will fundamentally affect the category of high civil servants is proposed to be achieved through the draft of the Administrative law Code, which is in the parliamentary procedure for debate and adoption. We analyze through the law institutions the regulatory solutions for the category of high civil servants and, at the end of the analysis; we include some conclusions through which we propose to design the future of this category of civil servants in Romania.

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Aspecte generate de procesul transpunerii directivelor UE în dreptul român

Author(s): Mihaela-Adina Apostolache / Language(s): Romanian Issue: 02/2018

The article considers certain aspects emerging during the process of transposition of the directives into the national legal order by appropriate legislative means. As part of EU secondary legislation, the directive needs to be implemented in the national law for implementation. The transposition of the directive does not mean taking over it, but a new regulation whereby the national legislature, within the framework of its discretion, can establish clear rules of conduct, in close connection with the transposed rules, and also with the national reference ones, i.e. correlating them with all existing regulations at that time at national level. The content of the directive in the national legislation must be the same as the transposed act, although the national legislator can put its own mark on regulation. In practice, there can be encountered situations in which the lack of clarity and precision were the reasons that led to the finding of unconstitutionality of the laws transposing the directives.

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Reglementarea şi practica jurisprudenţială europeană cu privire la autorizarea punerii pe piaţă a medicamentelor pentru uz uman şi veterinar

Author(s): Teodor Narcis Godeanu / Language(s): Romanian Issue: 02/2018

This study discusses the issue of authorizations for medicines in the European Union and the Member States. The issue regarding the use of generic medicines is topical and interesting in terms of the requirement that human and veterinary medicines meet the requirements of EU legislation in this field. For this purpose, Community legislation (Directive 2001/83/EC) has been developed to address the concern that any regulation on the production and distribution of medicinal products should pursue the safeguarding of public health and the abridged procedure established by this directive ensures the rigor of the safety and efficacy rules of medicines use.

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Decizia nr. 2734 din 20 octombrie 2016 – Înalta Curte de Casaţie şi Justiţie, Secţia de contencios administrativ şi fiscal

Author(s): Eugenia Marin / Language(s): Romanian Issue: 02/2018

În raport cu prevederile art. 22-24 din Legea nr. 176/2010, nu se poate considera că instanţa de contencios administrativ este competentă să soluţioneze litigiile pentru anularea actelor emise, adoptate, încheiate sau întocmite cu încălcarea prevederilor legale privind conflictul de interese, ci competenţa materială se determină în funcţie de natura actului a cărui anulare sau constatare a nulităţii absolute se solicită, instanţa de contencios administrativ fiind competentă să soluţioneze aceste litigii numai în cazul în care aceste acţiuni ar viza acte administrative.

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