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CHALLENGES OF THE EU ADMINISTRATIVE SPACE: CONVERGENCE OF NATIONAL ADMINISTRATIONS TO THE EUROPEAN ADMINISTRATIVE LAW

Author(s): Cristina Pătrașcu,George Cristian Schin / Language(s): English Issue: 02/2017

Since their creation, back in the 1950s, the three European Communities (later known as the European Union) have constantly evolved towards a stronger union and towards the establishment of various common or shared ‘spaces’. Frequent references to the European space or the use of concepts like ‘space of security and freedom’ stand as a proof of the will of the member states and the European institutions to strengthen their cooperation. Along the same lines, the reference to the European administrative space has become an integrant part of the European political discourse and agenda. The progressive enlargement of the European Union has brought about the necessity to ensure the harmonization of the national administrative law and procedure with the European administrative law, within a common, administrative space. The existence and characteristic features of a European administrative space form the subject of intense debate and of a rich scientific literature. The present article intends to make its contribution to this debate, analyzing and presenting some of the most relevant theoretical findings concerning this topic and highlighting the challenges that both the national administrations and the European institutions has to face in their effort at finding the right ways towards a European model of administration.

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CONSIDERATIONS ON THE EFFECT OF THE PILOT DECISION OF THE EUROPEAN COURT OF HUMAN RIGHTS CONCERNING THE DETENTION CONDITIONS IN ROMANIA

Author(s): Nicoleta-Gabriela Chihaia / Language(s): English Issue: 02/2017

Romania had been struggling for many years with the issue of overcrowding of places of detention, which has attracted numerous convictions in front of the European Court of Human Rights since 2007 (Case of Bragadireanu v. Romania), reaching a semi-pilot decision in 2012 (the Case of Iacov Stanciu v. Romania). Although the Court has recently acknowledged some progress made by the Romanian authorities to improve the conditions of detention, it found that the measures were ineffective, the factual situation was not changed, the resulting aspect and the large number of repetitive complaints in court, in which the plaintiffs invoke the precariousness of the detention conditions in our country, which leads to violation of art. 3 of the European Convention of Human Rights, on “the right not to be subjected to torture and other inhuman or degrading treatment or punishment” Thus, the Court has reached a pilot decision in the Case of Rezmiveş and Others v. Romania, the Romanian authorities adopted the Law no. 169/2017. The present study aims to present the issue with which Romania has been confronted in the matter of conditions of detention in the last 10 years, as they result from the convictions passed by the European Court of Human Rights. Also, as a pilot decision on this matter has been issued against our country, the study also highlights the conditions, procedure and effects that such a decision produced for the state in which it is ordered. In the last part, the study presents the measures taken by the Romanian authorities as a result of the pilot decision making an analysis of the legal provision adopted by the Law no. 169/2017, as regards the reduction of the period of detention, the depopulation as well as the granting of compensation to the persons detained in violation of art. 3 of the European Convention on Human Rights.

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EU ACTIONS ON CHILDREN IN MIGRATION

Author(s): Ana-Maria Bolborici / Language(s): English Issue: 02/2017

The subject of this paper is centered on the migrant children rights in the context of huge waves of migrants to the European Union. The principles outlined in the international human rights framework apply both to children and adults. Children are mentioned explicitly in many of the human rights instruments; standards are specifically modified or adapted where the needs and concerns surrounding a right are distinct for children. All children have the same rights; all rights are interconnected and of equal importance. Having this regard, there are 50 million children in migration worldwide - 28 million of them fled violence and insecurity; one in 200 children is a refugee; one in three children living outside country of birth is a refugee; children constitute half the refugee population; one in eight migrants is a child. There are approximative 5.4 million children migrants in Europe (about 7% of region's migrants) and is fundamental to ensure that any child needing protection receives it and that, regardless of their immigration status, all children are treated as children first and foremost.

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REFLECTIONS ON THE OFFENCE OF CHILD PORNOGRAPHY THROUGH COMPUTER SYSTEMS OR OTHER ELECTRONIC MEANS OF COMMUNICATIONS

Author(s): Adrian Cristian Moise / Language(s): English Issue: 02/2017

Starting from the provisions of the Article 9 of the European Council on Cybercrime and the provisions of the Article 5 of the Directive 2011/92/EU on combating the sexual abuse and sexual exploitation of children and child pornography and the provisions of the Article 20 of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, all referring to offences related to child pornography, this article analyzes the offence of child pornography provided by the Article 374 of the Romanian Criminal Code, focusing on the crime of child pornography committed through computer systems or other electronic means of communications, in order to ensure that the Romanian legislator transposed the provisions of the three legal instruments at international and European level.

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THE CONSTITUTIONAL PROTECTION OF THE RIGHTS OF NATURE – A GOAL OF THE 3RD MILLENNIUM

Author(s): Nasty Marian Vlădoiu / Language(s): English Issue: 02/2017

The first country that adopted the constitutional rights of nature was the Republic of Ecuador in 2008. This Constitution contains in Title II, Chapter VII, named Rights of nature, 4 (four) articles (71-74), which contain all the hope and obvious progress achieved in this respect. The constitution of this country states, inter alia, that "nature has the right to exist, to persist, to maintain and to renew its life cycles, structures, functions, and evolutionary processes". At the same time, it mentions that the right to restoration is independent of the “obligation of the State and natural persons or legal entities to compensate individuals and communities that depend on affected natural systems.” The paper addresses the issue of the rights of nature and expresses the view that more and more countries should adopt internal legislation to protect them through the National Criminal Codes, and criminalize offenses like ecocide. Once the criminal protection of the rights of nature is assured, we can assume that the premises of the constitutional enshrinement of the rights of nature are met. Only upon criminal protection and/or legislation subsequent to the fundamental law we can talk about having a protectionist framework to a certain extent, but for a very effective protection it is a must for the rights of nature to be enshrined at constitutional level.

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THE ERADICATIONS OF SOCIETY IN FRONT OF THE TERRORIST GROUPS

Author(s): Maria-Magdalena Bârsan,Carmen Enache / Language(s): English Issue: Supliment1/2017

The paradox of the terrorism: it comes from within us and it is us who need to suffer in the end. Why? Because terrorism is not only the evil that threatens the society, but also the evil that comes from within us, from the obssesive fanaticism of the human being, from the obsession of power, of punishment, of revenge, these visions which darken even the brightest minds. Terrorism is regulated in the national legislation mainly by the Law 535/2004, regarding the prevention and the combat of the terrorism, in addition to which there are the international regulations, firstly stated by the Convention from 1937, regarding the prevention and the repression of the terrorism, adopted by the Nations League. These international regulations have developped through a multitude of conventions, resolutions and statements of the United Nations Organization. The vulnerability of the society facing this phenomenon is beyond question, but do we currently really know the level of this vulnerability, its risks or the climax? Are we really capable of finding viable remedies and an efficient treatment? Trying to fiind potential answers to these questions, I fiind of paramount importance to draw the attention, besides the national and international regulations, on the historical aspects of this phenomenon and on the psichology behind the concept of terrorism. I have used the historical-teleological method in order to highlight the evolution of terrorism, the transformations that have occured and the extension of this phenomenon. In order to determine the psychological causes and to establish a connection between the theoretical and the practical aspects, I will be using the logical method. I addition to that, I will be presenting the reaction of the society by adressing two open questions to some people of different ages and with different professions: ”What do you think are the causes of terrorism? What do you consider to be the cure for this phenomenon?” I firmly believe that the answers to these questions will be extremely useful because the fact that society has not enough knowledge about this topic will negatively influence the possibility of finding a real cure and the result will be that we will become more and more vulnerable. In the bottom lines of my essay I will be presenting the world of terrorism through the eyes of the ones that are considered the main suspects and the ones who cause this phenomenon, the islamic people. It is time we found aut how they see us. By comparing the two outlooks we can identify the main vulnerabilities of the society and we could fiind the most efficient cure for terrorism.

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ADMINISTRATIVE COOPERATION IN THE FIELD OF TAXATION

Author(s): Ramona Ciobanu / Language(s): English Issue: Supliment1/2017

The steady mobility of tax payers makes the correct imposing of taxes and revenues difficult, creating the possibility of double imposing of taxes on revenues and indirectly leads to an increase of tax evasion, because of these, in the European Union and all member states adopted a series of measures which can assure the stability of internal markets. In accordance with the european legislation, the Tax Procedure Code is the one which regulates the administrative cooperation of Romania and European Union in order the assure a steady flow and exchange of information concerning taxes and laws aplying in each member states, all these information is concerned with the taxes at the source.

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THE INSERTION OF THE PRECAUTIONAY PRINCIPLE IN THE ENVIRONMENT PRETECTION AS A LEGAL NORM IN THE EUROPEAN COUNTRIES

Author(s): Amelia Diaconescu / Language(s): English Issue: Supliment1/2017

The article examines the nature of the precautionary principle ,with reference to the international legal debates and to the European national legislation, as well as the precaution in the international law in connection with the Europe. Tacit approval of the administrative procedure was introduced in the Romanian law and practice by Emergency Ordinance no. 27/2003, as an instrument of administrative efficiency in meeting citizens fundamental rights and interests.

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CURRENT ISSUES WITHIN EU AND EU MEMBER STATES LEGAL FRAMEWORK

Author(s): Cristina Mihaela Salcă Rotaru / Language(s): English Issue: Supliment1/2017

One of the major environmental problems is pollution. General regulations and approaches concern the control of pollution of environmental factors (air, water, soil) or areas of major interest such as sustainable development, waste, green energy, e.g., which have the secondary effect of preventing and / or reducing environmental pollution. The current legislative framework on environmental protection takes into account, in addition to protecting the environment, as a general interest of national, European and international level, and the protection of human health. Studies from human health specialists show that one of the current challenges for human health protection is indoor air pollution. This type of air pollution exceeds both the occupational safety and health regulations and the specific air protection regulations. This study takes into account European - level legislation on environmental and air protection in particular and highlights the need for a coordinated approach and the establishment of a minimum legal framework on indoor air pollution.

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THE PRINCIPLE OF GOOD ADMINISTRATION IN THE CASE LAW OF THE ROMANIAN CONSTITUTIONAL COURT

Author(s): Elisabeta Slabu / Language(s): English Issue: Supliment1/2017

The Constitutional Court of Romania stood for the constitutionality of the various legal provisions over the course of the years, contributing through its decisions to the rule of law consolidation by ensuring the respect of the Constitutional principle of supremacy in the Romanian legal system. Through the decisions made in each case, referring to the constitutional principles and values, the constitutional case law has created a set of generally valid rules too, which later became legal principles. By this mean, the case law of the Constitutional Court has contributed over the years to the consolidation of the principle of good administration by strengthening the other successive principles: legality, equality, proportionality, legal certainty etc. All these fundamental principles define the progress of a legal, efficient and transparent activity of the public administration authorities.

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ISSUES REGARDING THE OFFENCE STIPULATED BY ARTICLE 12 LETTER A FROM LAW NO 78/2000. JURISPRUDENCE

Author(s): Adrian Aldea / Language(s): English Issue: Supliment1/2017

Interpretation and implementation of the provision of the article 12 letter a from Law no 78/2000, republished (offences assimilated to corruption offences), respectively whether the stipulation of "use of information obtained by virtue of position, competence or assignment" represents an inherent condition for the first version of the above-quoted offence (carrying out commercial activities which are conflicting an individual's position, competence or assignment), is important for shaping a coherent and predictable judiciary practice, as also requested by article 6 from European Convention of Human Rights (ECHR). This paper intends to analyse the national jurisprudence of the above interpretation and to elucidate the issue from an academic perspective.

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JUDICIAL INDEPENDENCE AND THE RULE OF LAW

Author(s): Elena Constantin / Language(s): English Issue: Supliment2/2017

„The independence of justice is one of the indissoluble elements of the rule of law. It is important that this independence remains incapable of being placed in a strictly declarative framework, indifferent of daily realities, precisely in order not to divert the rule of law, which guarantees that no one is above the law, whatever the social position of those addressed.”

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THE SCOPE OF APPLICATION OF FUNDAMENTAL RIGHTS GUARANTEED BY EUROPEAN UNION LAW ON MEMBER STATES' ACTION. SOME JURISPRUDENTIAL LANDMARKS

Author(s): Constanta Matusescu / Language(s): English Issue: Supliment2/2017

In the European Union legal order, there exists a long standing problem to define in which circumstances the fundamental rights of the European Union have a binding effect on member states. The Court of Justice of the European Union has through its case-law tried to resolve this issue, establishing that fundamental rights guaranteed by the Union are intended to be applied in all situations governed by Union law. However, it is not always clear when and whether national authorities are acting within the scope of Union law. The jurisprudence, including the most recent case, maintains a number of ambiguities, particularly with regard to the applicability of EU fundamental rights to national measures which target a field also covered by the Union law, even if they do not intend to implement EU law. Making a brief overview of this jurisprudence, the paper focuses on identifying the major line of cases and the conditions under which a national measure is considered to fall within the scope of Union law by attracting the application of the Union’s standards of protection.

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MULTIANNUAL DYNAMIC INDICATORS FOR HUMAN RESOURCES MANAGEMENT PLANNING IN JUDICIAL SYSTEM

Author(s): Teodor Victor Alistar / Language(s): English Issue: Supliment2/2017

Romanian Judicial system is often affected by legislative changes and external factors weighing upon its capacity to deliver justice as a public service. Prognosis is a key factor to determine the mid-term strategy of human resources given the natural internal dynamics and standard external factors. These are comprised in a list of specific influencing factors as well as quantification formulas to assess and use them. Their conjunction is reflected in DPF (Dynamic Ponderation Factor) for planning in judiciary.

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TOWARDS A GLOBAL PACT FOR THE ENVIRONMENT

Author(s): Irina Zlătescu / Language(s): English Issue: Supliment2/2017

On the occasion of the UN General Assembly in New York on September 19th 2017, the French President Emmanuel Macron presented the draft of the Global Pact for Environment in front of Heads of States and Governments, representatives of the civil society and of the private sector, the 193 member states of the organization, in the presence of the UN Secretary General Antonio Gutteres and of the President of the French Constitutional Council, Laurent Fabius. This pact, if adopted, will complement the legal building of the fundamental human rights norms created by Rene Cassin, reinforced by Karel Vasak by creating the three generations of rights. Each of these generations could now have its own Covenant. For the first two generations of rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights were adopted in 1966. For the third generation, this new Global Pact will come to cover the most part of rights. It will be the one that will lead mankind to "act for the planet, to act by law”.

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THE DEVELOPMENT OF THE COMMON EUROPEAN ASYLUM SYSTEM FROM MINIMAL TO COMMON STANDARDS

Author(s): Petru-Emanuel Zlătescu / Language(s): English Issue: Supliment2/2017

As mentioned in the recitals of the different legal acts forming the Common European Asylum System (CEAS), a common policy on asylum, including a Common European Asylum System, is a constituent part of the European Union’s objective of progressively establishing an area of freedom, security and justice open to those who, forced by circumstances, legitimately seek protection in the Union. Such a policy should be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications between the Member States. At its special meeting in Tampere on the 15th and the 16th of October 1999, the European Council agreed to work towards establishing a Common European Asylum System, based on the full and inclusive application of the 1951 Geneva Convention relating to the Status of Refugees.

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NEW TENDENCIES IN PUBLIC ADMINISTRATION DEVELOPMENT- COMPLEXITY OF PUBLIC ADMINISTRATION IN THE LIABILITY AREA

Author(s): Ioana-Cristina Riedl / Language(s): English Issue: Supliment2/2017

The subject of the complexity of public administration in the liability area is not chosen with the exigency to elucidate all the theoretical and practical problems that it can raise, but in order to draw a clear picture of this institution of administrative law. Nowadays, administration appears as a component of public space, understood as the space of manifestation of general interests and of specific mechanisms of their assurance. Similar to all others, public administration can be wrong as well1. And, again, similar to all others, it can and must be held liable for its mistakes. The authors of administrative law argue that administrative liability is a form of judicial liability that is trained whenever the rules of administrative law are violated, by committing an illicit act, generally called administrative misconduct. Considering the administrative illicit, the doctrine distinguishes three forms of administrative liability, as follows: the administrative illicit itself, contravention illicit and the illicit that causes material and moral damages.2 At the basis of the organization and functioning of the public administration, and therefore at the basis of any fact that may cause damage to individuals, there is a number of administrative acts which gives complexity to the administration, especially through the identification of the person who has to respond for this damages. Therefore, we propose to perform an analysis using qualitative methods in order to discover situations in which the administration is responsible for its illicit acts.

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MANDATORY CLAUSES IN THE PUBLIC PROCUREMENT CONTRACT

Author(s): Mihaela V. Cărăușan / Language(s): English Issue: Supliment2/2017

The article aims to show the crucial role of the European Union public procurement Directives and European Court of Justice case law in all the dimensions of the contract clauses in the field of classic sectors. We have addressed the contract clauses through the lens of European Union and Romanian public procurement law. First, we emphasized that the secondary European Union law emanates from the core regimes of the TFEU and pass by the European institutions in a set of detailed procurement Directives which after all must be transpose by the Member States. Second, we followed the relevant Directive’s provisions which limits or allows the contracting authority to choose different public procurement contract clauses. Third, we discussed the crucial contribution of the case law of the European Court of Justice to European Union public procurement law. Even if, the public procurement Directive for the classic sector, does not provide detailed rules for the contracts, it establishes some limits and obligations. We have highlighted these last elements in the article through the lens of the Romanian new laws.

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ASPECTS REGARDING THE RELATIONSHIP BETWEEN HUMAN RIGHTS AND THE ENVIRONMENT

Author(s): Oana-Maria Hanciu / Language(s): English Issue: Supliment2/2017

The European Court of Human Rights has recognized in its jurisprudence the relationship between human rights and the environment and that, indirectly, environmental degradation affects human rights by altering the values protected by the Convention. Environmental degradation has far outstripped national borders, becoming a cross-border environmental issue with great challenges for the international community. Environmental degradation affects the community as a whole and, consequently, its rights to a clean environment. The ECHR indirectly provides protection for environmental issues by creating real and effective environmental jurisprudence.

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FREE COUNSELING OF INDIVIDUALS IN THE FIELD OF TAXATION

Author(s): Florin-Ionel Truşcă / Language(s): English Issue: Supliment2/2017

The article approaches the possibility of setting up public institutions that protect citizens' rights by providing a public service for counseling individuals in the field of taxation. The article analyzes both the taxpayers' assistance / assistance activity and the fairness of taxation or fiscal equity, principles on which Romanian tax legislation is based. The article argues that taxpayers' guidance / assistance is insufficiently regulated by looking at the possibility of setting up a public counseling service for individuals in the field of taxation. Seen as a service of public interest, free counseling of individuals in the field of taxation help to increase the welfare of taxpayers, on the one hand, and to prevent situations that may generate the triggering of fiscal control or forced execution mechanisms, on the other hand.

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