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Nešto novo, nešto staro, nešto posuđen - pregled novog hrvatskog Zakona o javnoj nabavi

Author(s): Ivan Šprajc / Language(s): Croatian

Pregled i uvodna analiza novog hrvatskog ZOJN-a ukazuju na sljedeće: ZOJN je propis koji predstavlja mješavinu normi i instituta. Neke norme i instituti dio su ZOJN-a zbog obveze hrvatskog zakonodavca da u svoj pravni sustav prenese nove EU-propise, druge predstavljaju izvoran doprinos hrvatskog zakonodavca pravu javne nabave, a posljednju grupu čine norme i instituti koji su preuzeti iz prethodnog zakona. U dijelu u kojem je ZOJN svojevrsni normativni transponder EU-prava, hrvatski je zakonodavac slijedio europskog praktički doslovce, uz manje nepreciznosti i nejasnoće . Kako novo pravo EU u području javne nabave želi pojednostaviti javnu nabavu i učiniti je lakše dostupnom malim i srednjim poduzećima, te istodobno spriječiti i sankcionirati koruptivne radnje, odgovarajuće norme i instituti s takvim ciljevima sada su ušli u ZOJN. Međutim, izbori koje je u tom smislu europski zakonodavac ostavio državama-članicama nisu uvijek učinjeni na nedvosmislen način (kako to pokazuje primjer opsega primjene ESPD-a), što u budućoj primjeni može uzrokovati nepotrebne probleme. Ipak, u cjelini ZOJN je relevantno europsko zakonodavstvo prihvatljivo transponirao u hrvatski pravni sustav. Međutim, najsporniji sloj ZOJN-a čine norme koje predstavljaju istinski normativni novum. To su norme koje svoju egzistenciju ne duguju potrebi implementacije stečevine EU, već su izraz volje isključivo našeg zakonodavca. Nažalost, riječ je o normama i institutima koji najčešće pate od podnormiranosti i/ili nepotrebne složenosti i/ili su takvog sadržaja koji je dvojbeno – po mom mišljenju negdje i nedvojbeno – (ne)suglasan sa višim pravnim izvorima. Primjer u tom smislu pruža analizirana odredba o odbacivanju žalbe zbog neplaćanja ili nedokazivanja plaćanja žalbene naknade. Suspektnom se pokazuje i norma koja ograničava upravnosudsku zaštitu isključivo na jedan stupanj. Oba primjera predstavljaju, po mom mišljenju, neprihvatljiva sužavanja opsega i sadržaja pravne zaštite u postupcima javne nabave i u upravnom sporu, što je od iznimne važnosti za osiguranje zakonitosti u ovim postupcima ali i za realizaciju protukoruptivnih učinaka ZOJN-a. Uvjeren sam da će ustavnosudska kontrola neke od ovih odredbi eliminirati iz ZOJN-a i na taj način osloboditi ovaj zakonski akt nepotrebnog normativnog balasta. ZOJN čine i norme i instituti koji su preuzeti iz prethodnog teksta ovog zakona uz manje, a ponekad i bez ikakve izmjene. Norme i instituti u pitanju su simbol zakonodavnog kontinuiteta koji osigurava lakšu primjenu i omogućava jednostavniju i efikasniju javnu nabavu. Naposlijetku, valja upozoriti i na okolnost da ZOJN prilikom stupanja na snagu nije pratio niti jedan novodoneseni podzakonski akt. Doduše, korištenje podzakonskih akata donesenih uz prethodni zakon nije neuobičajena pojava, no lako je zaključiti da bi zakon, uključivao sve novitete koje sadrži, bilo lakše primjenjivati uz na vrijeme pripremljene i donesene podzakonske akte. Institut prethodnog savjetovanja sa zainteresiranim gospodarskim subjektima to zorno pokazuje. Stoga ne čudi zamjetna suzdržanost naručitelja u objavi novih nadmetanja u prvim mjesecima važenja ZOJN-a. Zbog svih primjedbi kao i njihova značenja, ne možemo ne zaključiti da su u novi ZOJN, uz nešto više truda i barem još jednu redakciju zakonskog teksta, lagano moglo izbjeći postojeće prigovore i konstataciju prema kojoj, baš kao po tradiciji, sadrži i nešto plavo (engl. „blue“) .

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Uporedna analiza pravne zaštite u javnim nabavkama

Author(s): Rifat Zlomužica / Language(s): Bosnian

The B&H Law on Public Procurement (PPL), based on EU directives, mostly complies with the requirements of the Directives. Decentralized operating system of procurement, provided by the said Law, is implemented by contracting authorities within the institutional polity. During preparation of the B&H PPL, EU Directive 2004/17 and 2004/18 were not effective, so some of the solutions of this Law based on the old EU Directives, which are revoked. Stipulating that any interested supplier may submit objections to the decision of the contracting authority, the legislature has fulfilled obligations under Directive 89/665/EEC in respect of capacity to institute legal protection. However, with such a regulation, the valid B&H PPL does not protect the public interest in public procurement procedures, as is the case in neighboring countries. Regular legal remedies in public procurement system in B&H and neighboring countries are differently regulated. While in Croatia, the only regular legal remedy against decisions of first instance authority is The Appeal, the Montenegro and B&H provides two possible types of complaint, and these are: The Objection as an complying submit to first instance authority and The Appeal to authority of second instance. Regular legal remedies in Serbia are not defined, but the PPL provides that against the actions and decisions of contracting authorities can be submited the request for protection of rights. All laws, discussed in this paper, the legal nature of public procurement classified as administrative law, and The Law on Administrative procedure has a subsidiary application in public procurement.

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Primjena kriterija ekonomski najpovoljnije ponude u postupcima javne nabave u Republici Hrvatskoj

Author(s): Dušanka Marinković Drača / Language(s): Croatian

In this article the author gives insight of legislative regulation and analysis of “most economically advantageous tender” application in public procurement procedures in the Republic of Croatia. The article points out on main obstacles for application of this practice, considering that “most economically advantageous tender” is almost negligible criterion in public procurement procedures. Frequent changes of public procurement legislation did not affect increasing number of procedures in which, along lowest price, other criterion were represented, which could achieve “value for money” objective. Restrictive approach of the State Commission for Supervision of Public Procurement Procedure in application of this criterion, which demands from contracting authority that literally every criterion value, even the evaluation for qualitative criterions, could be recalculated in monetary amount, additionally discourages contracting authorities to conduct procedures applying “most economically advantageous tender” criterion. New Public Procurement Act, which will be applied from 1st January 2012, author sees as a chance for change in approach, for which additional special education is necessary for all participants in that procedure.

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Contractual approaches to environmental liability in asset deals

Author(s): Vít Švestka,Lukáš Srbecký / Language(s): English Publication Year: 0

The Czech legislation recognises certain types of “environmental liability”, including the obligations from various fields of law – a special obligation to prevent and remedy environmental damage, and administrative, criminal, and civil law liabilities. Unlike in case of share deals, where the liability remains with the acquired company, in case of asset deals the transfer of environmental liability depends on more factors, such as the type of liability and specific circumstances under which the liability originated. Both the seller and the purchaser may aim to minimize the impacts of threatening environmental liability by various contractual instruments. The paper deals with the contractual risk allocation for both parties of an asset deal, including the analysis of the environmental liability under the Czech law, and specific legal instruments of risk allocation, such as indemnifications, representations and warranties, or deferred payment of purchase price.

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Регламентирането на изкуствения интелект в аграрното законодателство на Република България – назряла необходимост

Author(s): Valeri Velkovski / Language(s): English,Bulgarian Publication Year: 0

Artificial intelligence with its many possibilities is relevant to the needs of the agrarian economy, insofar as it is a basic branch in the structure of the national economy. Ensuring sustainability in the development of the agrarian economy is closely related to one of the manifestations of artificial intelligence – digitization. As stated in the Strategy for Digitization of Agriculture and Rural Areas of the Republic of Bulgaria [5], „digitalization allows the agrarian economy to realize its high potential and reap the same successes as the high-tech spheres of the economy: increasing productivity, adding value, improving quality and safety, and thus income and quality of life, drastically reducing pollution to sustainable levels, flexible and quick response to market trends“. The application of artificial intelligence in this regard needs to bring the Bulgarian agricultural legislation in line with the specifics of artificial intelligence, respectively the creation of new up-to-date legal norms in this area.

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Innovation in the Financial Sector (FinTech): Paradigms, Causes, Effects and Perspectives

Author(s): Ruxandra RÎMNICEANU / Language(s): English Publication Year: 0

The changes and evolution of the international and domestic financial-banking system, in the context of globalization, after the financial crisis of 2008, determined the emergence of global, virtual banks, megabanks, financial groups that use disruptive technologies and technological innovations. The first FinTech Action Plan (technology-based innovation in the field of financial services or financial technological innovations) of the European Union mark, as well, the first step circumscribed to the EU Digital Finance Strategy, in order to allow the expansion of innovative business models, but without forgetting to strengthen cyber security and to increase the degree of integrity of the financial system. In this context, however, it is important to take into account the variety of the institutions and the technologies in the countries participating in the Single Supervisory Mechanism (SSM), because the FinTech banks capture the different activities of the credit institutions in different jurisdictions to be closer to the customers and the investors and, in the same time, to expand the area of supervision of the problems related to the emergence of FinTech, because they exceed a sector of the economy or a geographical area and involves multiple financial-banking supervisory and regulatory institutions, belonging to various sectors.

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АВТОРСКО ПРАВО И ДИГИТАЛНА ТРАНСФОРМАЦИЯ В МЕДИИТЕ И УНИВЕРСИТЕТСКОТО ОБРАЗОВАНИЕ

Author(s): Evelina Zdravkova / Language(s): Bulgarian Publication Year: 0

The expansion of the Internet technologies in the 21st century brings intellectual property, and in particular copyright, as a key element in the digital age. The modern media is no longer just a means of mass communication, it is something much more comprehensive that merges media, computers, telecommunications, and dominates in social and cultural life. Information is just one of the many types of cultural media content. This paper presents a ULSIT’ project to raise awareness of copyright and related rights in the university environment and the opportunities that the protection and use of intellectual property rights in the media provides for the economic development.

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Przyczyny i skutki zatorów płatniczych w przedsiębiorstwach w sektorze B2B w Polsce i krajach europejskich

Author(s): Agata Sierpińska-Sawicz / Language(s): Polish Publication Year: 0

The aim of the article was to analyse overdue invoice payments that generate payment backlogs and their economic consequences. Based on the data taken from the European Payment Index Reports, the analysed period was divided into two sub-periods: 2016–2019 and 2020–May 2023. The level of payment backlogs in the first period was mainly affected by internal factors—instruments of the trade credit policy, such as dates and forms of invoice payment and precautions undertaken against the risk of loss of receivables. From 2020, the increase in payment backlogs was caused by macro factors such as the economic situation, the level of inflation and interest rates or exchange rate policy. The negative effects of payment backlogs, such as additional costs of penalty interest, debt collection costs, deterioration of financial liquidity, loss of income, problems with staying on the market, limited implementation of innovations and development, redundancies and the lack of new hires after 2020 have clearly intensified. On a macro scale, they will be one of the causes of the economic slowdown.

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Czego nauki prawne mogą się nauczyć od ekonomii? Sprawa pomocy publicznej po pandemii COVID-19

Author(s): Jakub Kociubiński / Language(s): Polish Publication Year: 0

This chapter provides an overview of the newest European Union’s State aid acquis regarding interpretative trends revealed during the wave of COVID-19 relief measures and on this basis seeks to identify areas where law can learn from economics, in-line with the so-called More Economic Approach which is often proclaimed but rarely attained in state aid evaluations. The paper begins with a brief outline of the EU State aid instruments used to remedy economic disturbances. Then the analysis moves to the examination of identified problem areas – a risk of moral hazard resulting from extending subsidies beyond the absolute necessity and an issue of imposing conditions on the aid beneficiaries to ensure their adaptation to new, post-crisis market conditions. At the conclusion, the challenges associated with integrating economics into legal texts are analysed and recommendations are formulated.

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Законодателни възможности за заетост на ромското население в агробизнеса на Република България (на примера на анкетно проучване)

Author(s): Valeri Velkovski / Language(s): English,Bulgarian Publication Year: 0

In a number of regions of the Republic of Bulgaria, especially in rural areas, agribusiness is the main area of employment for the local population. All ethnic groups, without exception, have free, constitutional access to the labor market in this industry. The qualification of the Roma ethnic group to the vulnerable groups also puts on the agenda the issue of use, application and broad awareness of the legislative opportunities that are provided to all ethnic groups for employment in agribusiness, in various forms, which is also a right of choice. At this stage, the legal toolkit enabling the persons from the Roma ethnic group to participate in active employment in agribusiness, which would also increase their quality of life, has not been sufficiently evaluated.

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Методика за анализ на нематериалните активи – проблеми и решения

Author(s): Petko Ganchev / Language(s): Bulgarian Publication Year: 0

In the scientific report examines the problems facing the methodology, touching on the various aspects in the author's methodology for the analysis of intangible assets. They are: to develop an analysis of intangible assets, to analysis the profit and sales revenue and the results of the research. Intangible assets occupy a key place in the accounting balance of the enterprise, through the system of indicators it is possible to detail and feel the factor influence of each factor in the analysis. Changes in profit or costs affect the profitability of the company's indicators. Through the application of the author's methodology, we arrive at the disclosure and solution of the methodological problems of the analysis. The methodological examples for the analysis of intangible assets are in the following groups: copyrights, patent rights, television and film rights, license and franchise agreements. The summary of intangible assets, according to the financial statement of the company, is considered in the presentation.

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Tax Evasion - Between Legality and Crime

Author(s): Oana Elena Bran / Language(s): English Publication Year: 0

Tax evasion is an economic-social phenomenon of great scope and interest, located at the crossroads between the economic and legal fields, which many states face and which has become a topic debated more and more often in practice, considering the extension of this phenomenon to all types of companies. Historically, tax evasion has existed since the first tax regulations. To understand this phenomenon, it is necessary to know its causes. Thus, among the most controversial causes of tax evasion are: the way tax legislation is designed and applied, the low level of tax education, the lack of effective controls, the lack of staff training, etc.

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Perspectives Regarding the Reconfiguration of Rest Time in Current Romanian Law. The Right to Disconnect

Author(s): Andrei-Radu Dincă / Language(s): English Publication Year: 0

The digitization of activities became a constant sign of social evolution in recent decades. More and more professions allow the option to work remotely through information technology, resulting in exceptional flexibility in the way work is carried out for professionals in multiple fields. What seems like a flexible work schedule can turn into a permanent work schedule, and the assessment of its impact on employees can be determined by quantifying the high number of people who have complained of professional burnout in the last period. The purpose of this paper is to identify a viable legal mechanism for protecting workers against the possibility of carrying out a long activity, exceeding the maximum working time regulated by law. Finally, the author formulates a de lege ferenda proposal regarding the need to regulate the right to disconnect in Romanian legislation.

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Debt discharge for insolvent Czech entrepreneurs under the EU Directive 2019/1023

Author(s): David Machač / Language(s): English Publication Year: 0

The Directive (EU) 2019/1023 requires Member States to ensure that insolvent entrepreneurs have access to at least one procedure that can lead to a full discharge of debts in a period no longer than three years. The deadline for transposition of the Directive 2019/1023 expired on 17 July 2021. The payment schedule according to the Czech Insolvency Act generally lasts five years. It is shortened to three years for some vulnerable groups of debtors, such as disabled or elderly people, and also for those who repaid 60% of debts within the first three years. This paper shall examine the consequences of not meeting the deadline for transposition, and whether Directive 2019/1023 could have a direct effect, based on the judgments of the Court of Justice of the EU (CJEU). The approach taken by the government’s proposal for an amendment to the Insolvency Act which is currently pending in the legislative process shall also be addressed in this paper.

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The legal issues of influencer marketing

Author(s): Jana Strémy / Language(s): English Publication Year: 0

The proliferation of social networks brings entrepreneurs (competitors) more ways of interaction with consumers. Marketing strategies of social networks are coming to the fore, developing new methods of influence(r) marketing. In the article, we deal with the issue of regulation of this phenomenon, questions of competition law and (non)transparent marketing practices of influencers, potentially harmful to consumers. The aim of this article is to demonstrate correlation between influencer’s practices and unfair competition in the legislation of Slovak Republic by using common scientific methods - analysis and synthesis.

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Selected aspects of the transposition of the new EU regulatory framework for credit purchasers into the Czech law

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

Following the relatively comprehensive regulatory framework of the prudential regulation after the financial crisis and the banking crisis that hit the European Union in the past, the EU legislation has in recent years become more specific in setting rules in sub-fields such as non-performing loans. In particular, regulatory efforts have been being driven by the aim of developing the secondary market for non-performing loans on the one hand and harmonising the rules for the participants in that market and for trading on it on the other. One of the cornerstones of such regulation is the Directive (EU) 2021/2167 of the European Parliament and of the Council of 24 November 2021 on credit servicers and credit purchasers and amending Directives 2008/48/EC and 2014/17/EU. The article discusses the new EU regulatory framework for credit purchasers as one of the participants in the secondary market for non-performing loans. At first, the new EU regulatory provisions harmonising the rules applicable to credit purchasers are reviewed. Subsequently, the article compares the new EU regulatory scheme with the current Czech regulatory framework regulating the activities of credit purchasers and analyses the intended transposition of the EU provisions harmonising the conduct of business of credit purchasers into the Czech law. Finally, conclusions regarding the possible impact of such transposition are reached.

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Investment Screening Mechanisms in Times of COVID-19: National Approaches

Author(s): Federica Cristani / Language(s): English Publication Year: 0

In the context of the COVID-19 pandemic, national economies around the world faced significant challenges in protecting and stimulating investment in a volatile economic environment. Through comparative research, we assess how countries have developed and implemented specific policies to support vulnerable sectors, strengthen existing investments and attract new sources of capital. To do so, we examine national investment screening strategies, analysing their eligibility criteria, objectives and relevance in the context of the pandemic. It also assesses how countries are responding to economic uncertainty and pandemic constraints, including rapidly adapting existing policies and promoting investment innovation. Finally, this research provides a comprehensive perspective on the various investment selection mechanisms adopted by states during COVID-19, providing valuable insights for policy decision-making and for developing more resilient and effective approaches to future global economic challenges.

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Financial Mechanisms of the European Union to Support of Agri-Food Niche Companies of Fish Farmers and Foresters in Crises Situations

Author(s): Speranța-Liliana Neagu / Language(s): English Publication Year: 0

In a continuous dynamic of climate change affecting farmers and fish farmers and taking into account the current geopolitical context and its negative effects, new European financial solutions should be identified to mitigate or combat them. Research methods used: case study, sociological method and research hypothesis/theory. Ferenda law proposals: 1. amending the Charter of the United Nations (UN)3 ; 2. the creation of an EU financing line for the creation and modernization of niche companies with social and environmental components, with a strong argument for the creation and preservation of public goods; launching proposals for revising the Multiannual Financial Framework, with celerity; 3. New EU support measures through the Social Climate Fund for accidental cases; 4. innovative insurance system.

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Wyższy poziom zarządzania ryzykiem celnym w nowym prawie celnym Unii Europejskiej

Author(s): Dariusz Leśniewski / Language(s): Polish Publication Year: 0

Purpose: The purpose of this study is to demonstrate whether the proposed changes to European Union customs law actually justify the claim that the customs union will be introduced to the next level, based on customs risk management. Design/methodology/approach: The author performs a comparative analysis of the currently functioning customs regulations of the European Union (mainly the EU Customs Code) in the field of customs risk management, the practical approach to risk on the example of the Polish National Tax Administration (KAS) with the change in the European Union customs law regulations planned by the European Commission. The scope of the analysis includes terminology regarding customs risk used in regulations, IT tools, organisational structures of customs administration and the methodology currently used. Further, the study presents the new philosophy of customs risk management, included in the draft of the new Customs Code of the European Union, including the justification for the project. Findings: It is a bit too early to be able to clearly confirm whether the customs union, which is the basis of the European Union, will actually be used and managed at a higher level than now. The reason for this is the lack of all planned regulations, including implementing ones, specifying individual issues of the practical functioning of the new risk-based approach. However, the European Commission’s plans to build a new customs risk management system at the EU level should be assessed positively.

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Promotion of Cross-Border Commercial Mediation

Author(s): Nedyalka Alexandrova / Language(s): English Publication Year: 0

The report argues the benefit of using mediation as an alternative dispute resolution form in international business, but also as an underlying conflict resolution tool. The main international initiatives aiming rising in mediation attractiveness and promoting its application are summarized. As a main obstacle is shown the lack of an effective possibility of enforcement the mediation agreements.

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