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Considerations regarding the distribution of criminal liability between the legal person and the individual at the European level

Author(s): Cristina Stamate (Dobre),Florina-Denisa Puşcău / Language(s): English Issue: VII/2019

At the legislative level, an essential question seeks the answer regarding the allocation of liability between the individual and the legal person and the structuring of the relationship between their liabilities. At the level of implementation in the case of an offense committed as a result of a defective organizational policy, the question is who should be held responsible: the individual whose actions directly caused the violation of the law, the employer or the legal person who issued the policies or indications on the basis of which the individual and the legal person acted, or none.

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The New Requirements of The EU General Data Protection Regulation 2016/679 GDPR

Author(s): Ana-Elena Iunker / Language(s): English Issue: VII/2019

After 2 years since The General Data Protection Regulation entered in force, we finally face the day when it starts to apply. May 25, 2018 is the "Z" day regarding Data Protection Laws and Practices. The necessity of this regulation is obvious and addresses both the data processed within European Union and the data transfers outside the European Economic Area. GDPR extends the scope of EU data protection law to all foreign companies processing data of EU residents. The regulations highlight the following key requirements: scope, single set of rules, responsibility and accountability, lawful basis for processing, consent, data protection officer, pseudonymization and anonymization, data breaches and sanctions. The primary objective of the GDPR is to give citizens back control of their personal data. Since the GDPR started to apply it was necessary to harmonize previous and other data protection regulations throughout the EU. This EU compliance regulation will have a far reaching impact for organizations throughout the world.

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The CJEU Fastweb PFE line of jurisprudence on the review procedures to the award of public procurement contracts

Author(s): Tudor-Alexandru Chiuariu / Language(s): English Issue: VII/2019

The creation of a single EU procurement market is a major achievement of the Union. Therefore, the correct implementation and application of the EU law in this field bears a heavy importance The study analyses three legal issues from the field of review proceedings related to the award public procurement contracts: the devolution powers of the review body when it hears an action regarding the award of a contract, the condition regarding the interest in exercising review proceedings and the so called "paralysing" actions. All these issues have been clarified and developed in the recent case law of the Court of Justice of the European Union and it is referred therein as "Fastweb PFE line of jurisprudence". It constitutes a suggestive example on how national acts can hinder the correct implementation of EU law. The cases mentioned above originated in a contrary regulation enacted in a member state. The study aims to ease the process of application of this jurisprudential line, framing in universal legal concepts the specialized, complicated, compact EU doctrine.

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ESTABLISHING A MINIMUM SALARY IN THE EU MEMBER STATES

Author(s): Dan Ţop / Language(s): English Issue: 2 (47)/2020

The European Commission has initiated the first steps towards a common framework for setting minimum wages in EU Member States, but will not determine the levelof wages, but nevertheless wants to impose an agreement on a set of criteria that must bemet when governments set minimum wages. Any legislative proposal will take into accountthat the minimum wages must be established according to the national specifications, bycollective labour contracts or legal provisions.

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Review of the Volume “Contractul de Concesiune” [The Concession Contract] 2nd Edition, Author: Cătălina Georgeta Dinu, c. H. Beck Publishing House, Bucharest, 2016

Author(s): Mihaela Aghenitei / Language(s): English Issue: 3-4/2019

The book written in the second edition of its publication defines the exceptional activity of the author in his field, a field chosen from the doctoral theme, whose research is still ongoing today, in a permanent concern of reporting the public contracts analyze to the European and international space regarding the public contracts and especially, the concession. Moreover, the work underlines a comparison approach between the concession contract on national and international level and the other types of contracts that try to eclipse it, reporting it to both the private and the public domain.

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Evropské a české atomové právo v kontextu práva energetického a práva životního prostředí (renesance, nebo úpadek?)

Author(s): Eduard Klobouček / Language(s): Czech Issue: 1/2020

This article deals with recent developments in atomic law in the Czech Republic, the European Union and in international field. In the Czech Republic, the new Act No. 263/2016 Coll., The Atomic Act, which became a public codex of atomic law, is a piece of legislation that encompasses nuclear safety, radiation protection, radioactive waste management, shipments of nuclear materials and other radioactive sources, security of nuclear materials and nuclear facilities, radiation emergency management, radiation monitoring and nonproliferation of nuclear weapons. Atomic Act replaced the old Act No. 18/1997 Coll. in which only civil liability for nuclear damage remained in force. At European Union level, a serious development can be observed lately, when new directives have been adopted to regulate radioactive waste management, nuclear safety and radiation protection. Recently, the Convention on Supplementary Compensation for Nuclear Damage and the Annex to the Convention on the Physical Protection of Nuclear Material has entered into force internationally. The new Atomic Act attempted to respond to these European and international documents and to implement and transpose their demands into our national law. In atomic law, legislative waves have been historically observed, and they have always responded to the nuclear accidents that took place in particular in the Three Mile Island, Chernobyl, and lastly in Fukushima, Japan. The last post-Fukushima period is characterized by the strengthening of security requirements at both international and national levels. It also raised question of further utilization of nuclear energy. The biggest challenges that the atomic law faces nowadays are the safe disposal of radioactive waste and spent nuclear fuel, the decommissioning of nuclear facilities, the prolongation of the operation of existing nuclear facilities and the construction of new facilities, while ensuring even more demanding safety requirements and consideration of environmental impacts and population. The recent development is also characterised by growing emphasis on public representation and transparency in processes that are connected to atomic law. Atomic law has a lot of interconnections with other branches of law. In particular, it may be classified as a special administrative law or falls under one of the sub-areas of environmental law. It has its interfaces with construction law and energy law. In particular, recently trends in enhancing environmental legislation can be observed in atomic law. Wide range of institutions, including the State Office for Nuclear Safety, is involved in the regulation of the peaceful use of nuclear energy and ionizing radiation, which have the task of reflecting these diverse interests.

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THE LEGISLATIVE ACTS OF THE EUROPEAN UNION

Author(s): Adriana Deac / Language(s): English Issue: 2/2019

Whether we are specialist in law, economics, art or a simple individual, all the citizens of the European Union meet in daily life, with legal terms such as regulation, directive, decision. We also get in touch, directly or indirectly with the institutions of the European Union, The Parliament, the Council, the Commission etc. For the states of western Europe, members of the European Communities for decades, these institutions and legal notions are absolutely normal, common place. For the citizens of the states from central and eastern Europe, relatively new members of the European Union, after 2000, these legal terms are still novelty. This is the reason why, the scientific paper aims to analyze the provisions of the Lisbon Treaty, Section 1, Chapter 2, art. 288 and the following regarding the legislative acts of the European Union. According to art. 288 of the Treaty on the Functioning of the European Union, „to exercise the Union’s competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions”. The paper aims to presents their legal character, the competent institutions to adopt these legislatives acts, the procedure for adopting and entering into force of these acts. In achieving this scientific objective, we shall present these acts comparatively, emphasizing the similarities and the differences between them, considering both the provisions of the Lisbon Treaty, as well as the scientific works in the field of the European Union Law.

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Considerații în legătură cu concediul de odihnă în lumina jurisprudenței Curții de Justiție a Uniunii Europene

Author(s): Elena Crizantema Panainte / Language(s): Romanian Issue: 03/2020

The herein study strives to concentrate the main theses developed by the Court of Justice of the European Union regarding the right to paid annual leave. Starting from these premises, it aims to detect the interferences and the effects of European jurisprudence on Romanian national law, with a special view on the practical protection of the right to paid annual leave, in both of its components, the entitlement to annual leave and to a payment on that account. The underlying of the carry-over period’s function represents the basis of the conclusions regarding the necessity for a rigorous distinction between the causes of non-exercise of the right to annual leave by the employee, consequently, reflecting in the different judicial solutions. From the point of view of the Romanian procedural law, the study underlines the need to amend the law regarding the limitation period of the right to action in court for the protection of the non-material component of the right analysed, in order to meet the imperative of full harmonization with the European law.

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Principiul interesului superior al copilului. Abordare europeană

Author(s): Anca-Monica Ardeleanu / Language(s): Romanian Issue: 03/2020

The promotion and protection of the rights of the child has always been one of the main objectives of the European Union, but it is also a result of international commitments. All Member States of the European Union have ratified the UN Convention on the Rights of the Child, and the rules and principles of this Convention guide the policies and the actions of the Union that impact on the rights of the child. The Lisbon Treaty has conferred greater importance to the objectives of the European Union, and by Article 3 (3) of the UN Convention on the Rights of the Child it was explicitly established the imperative obligation to promote the protection of the rights of the child. In addition, the rights of the children are enshrined in the Charter of Fundamental Rights of the European Union, which by Article 24 recognizes children as independent and autonomous holders of rights, also considering the best interest of the child as paramount in relations with the public authorities and the private institutions. The transposition of the European and international objectives, as well as of the fundamental principles referring to the protection of the rights of the child took place naturally through the adoption of new national regulations reflecting the acquiescence of Romania to the European objectives and its constant concern for the protection of the rights of the child. However, in many cases there are encountered in practice situations where, although there are both the legal basis and the mechanisms necessary for its implementation, the rights of the children are not respected and/or are not given due importance. This paper aims to draw attention once again to the essential rights of children and to emphasize the fundamental principles referring to the promotion and protection of rights of the children, with particular regard to the principle of the best interest of the child, as regulated at European level. The full understanding of this fundamental principle and its correct application have major implications in making any decisions and taking any measures regarding minors. The results of the analysis carried out can subsequently be used to thoroughly analyse this topic so vast and important, as well as to conduct comparative studies or researches on how the principle of the best interest of the child finds its effective application in concrete situations.

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REMARCI PRIVIND ELEMENTE CVASI-STATALE ALE UNIUNII EUROPENE, DIN PERSPECTIVA DREPTULUI CONSTITUȚIONAL

Author(s): Mădălina Virginia Antonescu / Language(s): Romanian Issue: 41/2020

Our paper is based on a study the author realized between 2001-2002, regarding EU nature, as a topic showing even today its importance from the perspective of comparing EU with traditional concepts of state, state sovereignty, state legitimacy, state association. Original nature of EU cannot exclude, in our view, quasi-state or even state elements, that appeared and progressively consolidated themselves, by implementing functionalist method, as in the EU case. Briefly analysing the definitions proposed by authors from the perspective of constitutional law, international law, corporative law, political studies, it means to reveal exactly this type of process of building a state dimension by EU “step-by step” method. This process wasn’t stopped by the rejection, in 2005, of the European Constitution, but it was massively taken over within the Lisbon treaty content, state elements being preserved in our opinion, until today, directly by effect of that treaty.

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CONSIDERAȚII PRIVIND ELEMENTE CONFEDERALE ȘI FEDERALE ALE UNIUNII EUROPENE

Author(s): Mădălina Virginia Antonescu / Language(s): Romanian Issue: 41/2020

Our paper is proposing a brief exploration regarding EU nature, starting from the premise of the unique, original juridical-political nature of this entity based on three economic communities. Far from identifying EU with such three communities at its origin, it is better to note the progressive consolidation of some confederal and federal features within such entity created under the Maastricht treaty aegis. From that moment, EU started to expand continuously, by progressive cessions of competences, that others are calling parts of sovereignties, while other part of the doctrine are pledging rather for the preeminent role of member states, whose importance for deciding EU future and EU nature remain a decisive one. As French and Romanian doctrine are revealing in their works, EU can be identified equally as a confederation, under specific features, either as a federation, by taking into account other types of features and the progressive integration (neo-functionalism) within EU. But none of such features can limit the originality of EU as unique entity, as surpassing any known pattern of political organization. So, the thesis of our approach is destined to reveal rather the hybrid, postmodern, multi-faced profile of EU, than shaping it according to some determined pattern.

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The natural environment. The development of an institutional protection framework - a permanent concern of the European Union

Author(s): Andreea Stoican / Language(s): English Issue: 21/2020

The environmental policy is a relatively new field in the European Union, even at the level of the current year, 2019. Although initially it was based on the creation of general measures programs, within which certain specific measures were adopted, currently, the permanent existing global climate changes can no longer be ignored by national, European or global organizations and institutions. As such, in time, especially in the last decade, the European Union has been forced, by virtue of the principles governing the relationship between the EU law and that of the Member States, to find solutions to the serious problems caused especially by pollution, but also by a series of other climatic causes. Thus, the environmental policy of the European Union is based on a number of principles, including that of precaution, prevention, diminish of pollution from its source, as well as that of the polluter's liability. In this regard, the present paper aims to summarize the measures taken so far at the level of the European Union, as well as to identify additional protective measures that will also lead to the fulfillment of the European Union Sustainable Development Strategy.

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The Brexit consequences on the European single market

Author(s): Gabriel-Liviu Ispas / Language(s): English Issue: 21/2020

Brexit represents one of the biggest challenges for the European Union since its establishment. The recent political and institutional developments, the decision of the British Parliament not to accept the exit of the United Kingdom from the European Union without a signed agreement, the decision to negotiate a new deal that must be ratified by both the Member States of the EU and the British Parliament, points towards the fact that neither the Union nor the United Kingdom are effectively prepared for such a decision. The paper presents the recent evolution of Brexit, as well as its possible consequences regarding the internal market. We will present, above all, how the free movement of goods will be affected and how the free movement of persons will be realized, for lucrative purposes. A political analysis of the events will be conducted, as well as an analysis of the applicable normative acts in question. The implications of Brexit on the economy of the Member States and on trade within and outside the European Union will be evaluated, both quantitatively and qualitatively.

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NORMATYWNY I INSTYTUCJONALNE UJĘCIE PRZECIWDZIAŁANIA ZAGROŻENIOM MIGRACYJNYM W UE

Author(s): Joanna Lubimow / Language(s): English,Polish Issue: 2/2019

The result of integration processes implying the establishment of the EU was the creation of an area of free movement. Population flows "to" and "within" the European Union, which is a set of interests of the Member States and the entire integration group, create a challenge for the entire system. By creating a "system without borders", the European Union has impaired the territorial sovereignty of the member states. Safe external and internal borders, and thus a secure Europe are possible thanks to the cooperation of the Community and the individual Member States, whose normative and institutional foundations guarantee the effectiveness of the system. Cooperation must be deepened and intensified application to the needs arising from the challenges arising from migration processes.

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The European Union’s instruments on fighting illegal logging – selected legal issues

Author(s): Adriana Kalicka-Mikołajczyk / Language(s): English Issue: 4/2019

Illegal logging is a significant problem of major international community concern because it has a devastating impact on some of the world’s most valuable remaining forests and contributes to tropical deforestation and forest degradation. Furthermore, it threatens biodiversity and undermines sustainable forest management, having a negative impact on poverty reduction, sustainable and inclusive economic growth and development. The article presents instruments adopted by the EU in order to combat illegal timber logging. The author describes their material scope and legal character, dividing them into two groups: internal and international legally binding instruments and soft law instruments, in order to answer the question about their legal character and position in the EU legal order and in national orders of the Member States. Streszczenie: Nielegalne pozyskiwanie drewna oznacza, iż jego pozyskanie nastąpiło z naruszeniem przepisów kraju pozyskania. Jest to problem o charakterze globalnym, wywołujący poważne i negatywne skutki nie tylko o charakterze środowiskowym, ale również gospodarczym i społecznym. Niniejszy artykuł prezentuje instrumenty Unii Europejskiej mające na celu przeciwdziałanie handlowi nielegalnie pozyskanym drewnem na rynku Unii Europejskiej. Instrumenty te podzielone zostały na dwie grupy: wewnętrze i międzynarodowe. Następnie została dokonana analiza ich zakresu materialnego, ale również podjęto próbę odpowiedzi na pytanie, jaki jest ich charakter prawny, zarówno w prawie Unii Europejskiej, jak i w systemach krajowych państw członkowskich. Innymi słowy, czy mogą one efektywnie przyczynić się do przeciwdziałania handlowi nielegalnie pozyskanym drewnem na unijnym rynku wewnętrznym.

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The EU citizenship and the Member States’ own competence regulating the conditions of obtaining and forfeiting national citizenship

Author(s): Marcin Pączek / Language(s): English Issue: 4/2019

The ability of a state to decide freely on the conditions of obtaining or forfeiting its national citizenship has always been perceived as a core element of sovereignty. Within the legal framework of the EU, the member states have remained competent to regulate the question of who qualifies as a national. However, taking into account that EU citizenship is founded on citizenships of the member states, it is incumbent on them to determine who is to be classified as an EU citizen and consequently, who can enjoy the accompanying rights. The purpose of this paper is to investigate the degree to which the member states’ competence to regulate nationality matters has been affected by the introduction of EU citizenship. Streszczenie: Zdolność państw do podejmowania samodzielnych decyzji w przedmiocie nabycia i utraty obywatelstwa krajowego zawsze była uważana za nieodzowny element suwerenności państwowej. Na gruncie prawa UE, państwa członkowskie zachowują te uprawnienia. Biorąc natomiast pod uwagę, że obywatelstwo UE zostało oparte na obywatelstwie krajowym, to państwa członkowskie są w istocie władne określać, jakie osoby uzyskają status obywatela UE i związane z tym statusem uprawnienia. Celem niniejszego opracowania jest próba ustalenia, w jakim stopniu ustanowienie obywatelstwa UE wpłynęło na kompetencję państw członkowskich do decydowania o sprawach związanych z obywatelstwem krajowym.

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Progrese și provocări în procesul de recunoaștere internațională a principiului accesului la patrimoniul cultural. O jurisprudență a Curții Europene a Drepturilor Omului

Author(s): Mircea Duțu-Buzura / Language(s): Romanian Issue: 04/2020

By the Decision on 29th January 2019, in Case No 6080/06 Ahunbay & others v. Turkey (6080/2006), the ECHR has made a great leap forward, by means of the subsequent considerations, in recognizing the general principle of the right of access to common cultural inheritance. The Court has rejected the principal claim as inadmissible (ratione materiae); even though, by finding that the object is related to an evolving field and by considering that given the international instruments and the common ground regarding international legal standards, compulsory or not, it cannot be a priori excluded the existence of a common European and International approach regarding the need to protect the access to cultural inheritance, it has opened significant perspectives for the process of giving this principle a legal shape. Thus, there have been created the premises so that, in the near future, by means of case law, several significant progresses can be made in this field.

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Evoluţii fiscale recente

Author(s): Author Not Specified / Language(s): Romanian Issue: 2/2020

Legislația actuală a UE dispune de instrumente excepționale în sprijinul victimelor catastrofelor, care pot fi utilizate pentru a face față crizei sanitare fără precedent cauzate de coronavirus. Legislația vamală a UE [Regulamentul (CE) nr. 1186/2009 al Consiliului] prevede posibilitatea de a acorda scutiri de taxe „în folosul victimelor catastrofelor”. Aceasta poate fi aplicată în cazul importurilor efectuate de organizații de stat sau de organizații caritabile sau filantropice autorizate. Pentru a acorda scutiri, este necesară o decizie a Comisiei, care acționează la cererea statelor membre în cauză. În mod similar, legislația UE în materie de TVA (Directiva 2009/132/CE a Consiliului) cuprinde dispoziții asemănătoare referitoare la scutirea de la plata TVA a importurilor finale de anumite bunuri.

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Tratamentul fiscal al remunerațiilor acordate de către angajatorii români salariaților delegați să presteze activitate în alte state membre ale uniunii europene

Author(s): Tudor Vidrean-Căpușan / Language(s): Romanian Issue: 6/2019

The objective of the present study is to analyze the way in which Romanian tax audits and Romanian case law have decided in relation to the wages given by the Romanian employers to Romanian employees performing their duties abroad, after the entry into force of Law no. 209/2015. The necessity of the present study resides in the fact that after the entry into force of Law no. 209/2015 this type of situations should have ceased. On the contrary, the practice developed during the years 2018-2019 shows a completely different picture that requires a serious focus and debate.

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Azonos neműek házassága és a szabad mozgás joga az európai bíróság esetjogában

Author(s): Laure Gyeney / Language(s): Hungarian Issue: 3/2019

The enforcement of the supranational rights of the EU citizens – that is the right to free movement and residence – requires, in certain cases, that the EU law be applied in some highly sensitive areas such as the area of family law which are traditionally the regulatory competence of the member states. The Coman case, referred to the ECJ for preliminary ruling also belongs to the above group. In the Coman case the ECJ was asked about what will happen if a same-sex couple that validly got married in one of the members states would like to move or return to the territory of a member state where same-sex marriages are not recognized. In this case, can the couple claim EU-level ‘family reunification rights’? In other words, the question is whether the third country member of the married couple may obtain the ‘family member’ status in accordance with the Free Movement Directive and primarily the residence rights arising from this status. The cross border nature of the case allowed the Court to eliminate the legal uncertainty that has existed in this area and to avoid the duplication of family statuses by extending the concept of a spouse specified in the Free movement directive to same-sex couples. It declared in its judgment that the term ‘spouse’ within the meaning of” the Directive “is gender-neutral and may therefore cover the same-sex spouse of the Union citizen concerned. Notwithstanding the above statement, the judgment cannot be considered as a clear victory for homosexual couples. In its decision, the Court did not fail to emphasize that a person’s status, which is relevant to the rules on marriage, is a matter that falls within the competence of the Member States and EU law does not detract from that competence. Thus, the ruling only applies to free movement issues – and with some further limitations. First, the Court restricted its ruling to marriages concluded within a Member State. Secondly, it stressed that a period of at least three months genuinely residing in another Member State is necessary to trigger the above rules.

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