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Central Europe as a Legal Phenomenon

Author(s): Matej Avbelj / Language(s): English Issue: 2 (13)/2015

This article argues that Central Europe is not just a cultural but also a legal phenomenon. This is made explicit if law is approached through the integral conception of law, defended here. Pursuant to this conception: law is an institutional normative order that is both highly dependent on the (legal) culture, which it simultaneously frames. It is argued that history has inflicted many pathologies on the Central European culture and consequently on the law too. These pathologies, briefly illustrated on the Slovenian example, form part of the broader Central European legal malaise. This can be addressed successfully only through the veritable regional cooperation of Central European countries that partake of these legal challenges. To do so, an appropriate forum is needed. The Visegrad Group comes across as a natural and best suited candidate. However, due to its self-conceived political exclusivity this option appears to be foreclosed. Paradoxically, in so doing, the Visegrad Group is defeating the very objectives for which it has been created. The article thus concludes that the Visegrad Group has to enlarge to stay faithful to its own values, which also, and in the first place, mandate the eradication of the Central European legal malaise.

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Institutional Reimagination of the South East Europe

Author(s): Matjaž Nahtigal / Language(s): English Issue: 1 (1)/2009

The aim of this text is to offer a critical assessment and analysis of the period of transition and integration of the countries in Central and Eastern Europe in light of the future accession of the South East European countries. The text is not meant to be a list of tasks and steps to be pursued by the countries in South East Europe, but it is rather a reflection of the long and demanding process, trying to highlight the external constraints and also the missed opportunities at home in an effort to become fully integrated part of the EU. As such it should serve as a starting point toward a more open, more innovative and more development oriented future for the countries throughout the region. At the same time the text tries to question certain overly dogmatic and orthodox approaches toward the reforms in the past. Sometimes the latecomers enjoy a unique opportunity to learn and study the costly mistakes of others in their effort to use the transition and integration as a vehicle for the genuine transformative capabilities of their societies and their peoples.

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MEĐUNARODNA NADLEŽNOSTI U BRAČNIM PREDMETIMA U PRAVU EVROPSKE UNIJE I BOSNE I HERCEGOVINE

Author(s): Asmira Bećiraj / Language(s): Bosnian Issue: 33/2023

The growing number of family relationships with an international character, either because their participants are citizens of different countries or have residence in different countries, or because these relationships arise, their effects are realized or they end in the territory of different countries, has led to the need to determine rules that determine the competence of authorities of a particular jurisdiction.Using the Council Regulation (EC) No 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast) with the obligatory application in all of the EU Member States, unified the rules determining jurisdiction in matrimonial cases. After showing the fields of application of the Brussels II ratione materiae, ratione temporis and ratione loci, this paper analyzes the provisions governing issues of international jurisdiction in matrimonial matters, both in the European Union and in Bosnia and Herzegovina.

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The Personal Identity of the Human Being and the Right to Privacy from the Perspective of Standards of the European Court of Human Rights: Theoretical Legal Reflections

Author(s): Bartosz Liżewski / Language(s): English Issue: 3/2024

This article seeks to present the problem of the personal identity of the human being as an important element of the right to one’s private life being respected. The presentation is from the point of view of the guarantees related to the establishment of standards for the protection of human rights by the European Court of Human Rights in Strasbourg. Relevant for this reflection is the theoretical legal approach to this matter, with particular reference to the methods of interpretation of the European Convention on Human Rights. The article discusses the problem of understanding personal and social identity in a cultural context related to group and individual axiology. It presents historical determinants of the ideology of approaching the status of the individual within the state and the general standards of the right to have one’s private life respected. Two key methods of interpretation for devising standards of protection, i.e. the evolutionary interpretation and the method of the cultural margin of assessment, are also analysed. Not only do these methods allow for taking changes in European social axiology into account, but they also allow for the distinctiveness of social axiology at the local level. From this perspective, an answer is given to the question, do the ECHR’s standards for the protection of the right to respect for private life serve to reinforce the personal identity of a human being?

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The Evolution of Same-Sex Marriage Case Law in Europe

Author(s): Elżbieta Kużelewska,Marta Michalczuk-Wlizło,Bruna Žuber,Matevž Bedič,Mariana Mesquita Vilas Boas,Luísa Ramos Naia / Language(s): English Issue: 3/2024

The number of countries allowing same-sex marriage is gradually increasing. Currently, 37 countries have laws regulating same-sex marriages, specifying their status and/or the possibility of adopting children. These solutions counter discrimination against same-sex couples and are part of the protection of human rights. Against the background of other countries, the pan-European tendency to accept the institution of same-sex marriage is garnering positive attention, although it is still controversial in some countries. Regulations of European law and the case law of the Court of Justice of the European Union, the European Court of Human Rights and the constitutional courts, which play an essential role in anti-discrimination measures and are in favour of respecting human rights, provide crucial support. This article discusses the evolution of the jurisprudence of the ECtHR, the CJEU and the national courts of selected countries (Slovenia, Spain, Portugal, Germany and Austria) concerning same-sex marriage. It highlights how recognising the right to same-sex marriage does not come at the expense of the rights of others or the public interest.

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Information on Gender Identity as Personal Data under EU and US Data Protection Models

Author(s): Dominika Kuźnicka-Błaszkowska,Mariusz Jabłoński / Language(s): English Issue: 3/2024

One of the most important legal issues concerning gender identity is ensuring that no one is discriminated against in any type of environment and that individuals’ needs are considered seriously during the legislation process. Even though this can be questioned, if one needs to process information on gender to achieve an inclusive and diverse society and law, it seems that at this point in the history of society, there are no better measures to ensure a non-discriminatory environment than processing information on gender identity. Under the current personal data protection landscape, both in the European Union and the United States, it is not clear what the conditions are for processing information on the gender of individuals. Therefore, the authors of this article analyse legal requirements from both jurisdictions, also in the light of the question of the adequacy of personal data protection in the US under article 45 of the General Data Protection Regulation.

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Procedura de restituire a TVA cumpărătorilor, persoane fizice, care nu sunt stabiliți în Uniunea Europeană

Author(s): Valentin Alangiu / Language(s): Romanian Issue: 4/2024

Individual buyers who do not have a permanent residence in the European Union can benefit from VAT reimbursement for goods purchased in Romania, according to Order 101/2016. This facility is available for purchases made in the network of stores authorized to carry out sales of goods that give the right to request a VAT refund. Supporting documents, such as the invoice and refund document endorsed by the customs office of exit, are very important to be able to get the refund. Tax Free authorization can be a competitive advantage for shops, especially those located in tourist areas.

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Venituri obținute din România de către persoane juridice nerezidente și accesorii aferente. Principiul ne bis in idem reglementat de art. 4 din Protocolul nr. 7 la Convenția Europeană a Drepturilor Omului în materie fiscală.

Author(s): Daniela-Ioana Stăncioi / Language(s): Romanian Issue: 4/2024

"Summary: „It is essential in resolving the issue raised by the applicant that the tax measure subject to judicial review does not impose a penalty different from that imposed by the decision given to the civil side in the criminal case. Thus, on the one hand, the assessment of the additional taxes owed does not constitute a penalty, since only the additional charges levied by way of penalties can have the character of criminal penalties, in the light of their material severity, and, on the other hand, the additional charges which can be regarded as penalties were applied by the criminal decision itself, together with the criminal fine, a point also found by the lower court. In the case-law of the EDO Court (Ruotsalainen v. Finland, Johannesson and others v. Iceland, A and B v. Norway) it has been held, with reference to the bis element, that tax and criminal proceedings can coexist if they are connected, combined in an integrated manner so as to form a coherent whole. In the light of that case-law, the Court of First Instance correctly found that, in accordance with national law, an integrated mechanism of investigation and sanctioning of the facts, comprising an administrative and a criminal aspect, was applied in the case in question, and the judgment under appeal upheld the res judicata nature of the criminal judgment, which confirms that there was no repetition of the criminal proceedings.

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ARTIFICIAL INTELLIGENCE IN EUROPEAN LAW

Author(s): Dan-Alexandru Sitaru / Language(s): English Issue: 2/2023

The emergence of Artificial Intelligence is a topic still fresh and new to law scholars. The aim of the Regulation regarding artificial intelligence (A.I.) is to present a unified and harmonised core legislation, from which the EU Commission and member states to tackle the growing aspects concerning this new sector of economic market, social and administration. As it will be seen in the present article, the EU legislator is still fixed on the existing A.I., known to us until now, governing strict rules as response to some countries in Asia having made use of facial, biometric and location recognition A.I. to control their people and also to award behavioural points and keep score of the ”perfect citizen”. The draft Regulation is followed by an EU Commissions Directive regarding the liability of all aspects regarding A.I. development, usage and participants. But the core principles, neccesary for such a new matter are laid down in the present Regulation. The document is divided into chapters, addressing mainly the definitions of the main notions used, including one for artificial intelligence system, the types of A.I. that are considered inacceptable and major-risk in respect to fundamental rights and values of the EU, special regulations regarding transparency, registration of A.I. systems and the necessity to have a special European authority, baked by national authorities, in charge of validating the usage of A.I. systems.

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VOICE OF THE CHILD IN 1980 HAGUE RETURN CASES

Author(s): Anca-Magda Voiculescu / Language(s): English Issue: 2/2023

The voice of the child is a broad and largely discussed concept relevant for family life, and referred to both in different juridical instruments belonging to national and international areas, and also doctrinal opinions. The purpose of the article is to analyse the voice of the child in the particular situation of international child abduction, in the framework of the ever-increasing number of transnational families on the move, within and outside the European Union. As the general principle stipulates that an abducted child shall promptly be returned to the state of habitual residence, children’s welfare is to be considered only within the exceptions to the return mechanism. One of these exceptions is represented by the child's objection to being returned, which nevertheless remains highly controversial: if we accept it is generally in children’s best interests to be returned, then how can children’s rights to express their views be accommodated? Hence, the objectives of the present study are to identify the legal context in which the child's opinion can be expressed and valued in the context of different juridical instruments, with a subsequent focus on the situation of international child abduction (procedural and substantial). Furthermore, the paper will examine the extent to which judicial assessments of child's views in child abduction procedures are conducted in a way that corresponds with a children’s rights-based approach, acknowledging their autonomy and right to be heard.

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THE ROLE OF THE NICE TREATY IN THE EVOLUTION OF THE EUROPEAN UNION – ANALYSED 20 YEARS AFTER ITS ENTRY INTO FORCE

Author(s): Augustin Fuerea / Language(s): English Issue: 2/2023

If we analyse the period between the adoption, signing and entry into force of the main amending treaties (the Single European Act, the Treaty of Maastricht, the Treaty of Amsterdam, the Treaty of Nice and the Treaty of Lisbon), we find that the shortest period was between the Treaty of Amsterdam and the Treaty of Nice. Almost seven years had passed between the Treaty of Nice and the Treaty of Lisbon, if we consider the date of entry into force, and the Treaty of Lisbon has turned out as one of the longest-lasting treaties (over 13 years), until at present. Referring to the dynamics of the domestic, European and international society, in the context of the acceleration generated by digitization (the access to information from the last decade1 ), with the consideration of previous periods, we can appreciate, without worrying of making a mistake, that the merits of the Treaty of Lisbon can be considerably enhanced. For Romania, the Treaty of Nice is particularly important, as it also is for the other 11 states in Central and Eastern Europe, because, with this treaty, for the first time, seats in the European Parliament were allocated to all those states, and also the votes within the Council of the European Union, and not only (if we consider the representation of all these states in all the institutions, bodies, offices and agencies of the European Union).

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DOMESTIC VIOLENCE AND FAMILY RELATIONSHIPS. A FEW LEGAL, SOCIAL AND PSYCHOLOGICAL CONSIDERATIONS

Author(s): Ioana Pădurariu,Vasile Coman / Language(s): English Issue: 2/2023

Domestic violence is a serious problem (even a criminal offense under Romanian law) that affects a lot of people around the world, has implications in criminal matters, but also in the field of family law, and transcends national law, with implications at the European level as well. We recall here the convictions for the payment of moral damages before ECtHR. In Romania, domestic violence is regulated primarily by Law no. 217/2003 on preventing and combating domestic violence, but there are also some other provisions related to domestic violence in the Civil Code (Law no. 287/2009) and in the Criminal Code (Law no. 286/2009), as well as in other special laws, such as Law no. 272/2004 on protection and promotion of the rights of the child and Law no. 273/2004 regarding the procedure of adoption. At the European level, we can mention Directive 2011/99/EU on the European Protection Order (EPO), a mechanism for the mutual recognition of protection measures of victims of crime, and we will note that, despite the laudable intentions of the EPO Directive, the aim of which is to provide continuous and similar protection of victims when they are moving across Member States, there are many reasons why the EPO remains under-used in practice. Therefore, the chosen topic aims to find an answer to the question of whether the measures to combat domestic violence are sufficient and effective, both those regulated by national legislation and those provided for in international treaties.

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THE INFLUENCE OF ECTHR AND CJEU JURISPRUDENCE AS A DERIVATIVE SOURCE OF EU LAW ON ENVIRONMENTAL LAW

Author(s): Ştefan-Ciprian Raicea / Language(s): Romanian Issue: 38/2024

The jurisprudence of the European Court of Human Rights makes a notable contribution to the promotion of the importance of the environment in the member states of the Council of Europe. This is remarkable, insofar as the text of the European Convention on Human Rights does not guarantee an individual right to the environment, and environmental protection associations, like all non-governmental organizations, cannot themselves be petitioners to denounce attacks on protected rights and liberties, if there are victims among individuals, in general, or among their members, in particular, even if their statutory purpose includes the defense of their interests. In a difficult context, marked by a profound and unprecedented economic and migration crisis, environmental protection issues are often neglected. For example, during 2017, the total number of cases resolved by the Court of Justice of the European Union was 1,592 cases. Among them, there are only two cases related to environmental liability. However, an increase in the number of decisions of the Court in the field of environment can be observed, considering that, in 2023, 57 such cases were resolved.

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Binding of Polish Courts by Interpretative Judgments in National and European Context

Author(s): Agnieszka Malarewicz-Jakubów,Anna Doliwa-Klepacka / Language(s): English Issue: 3/2024

The study is of a scientific and research nature, devoted to the most characteristic type of op-erative interpretation related to judicial interpretation. The subject of the research, carried out usingthe method of dogmatic analysis of law, is the verification of two problems: the binding of the courtof first instance to the legal assessments made by the appellate court and the extent to which Polishcourts are bound by the judgments of the Court of Justice of the European Union on the interpreta-tion and application of EU regulations. The authors draw attention to the necessity of analyzing theinterpretation of regulations, made in the justifications of court decisions. This is very interesting inthe context of judicial independence and the great freedom of judges to interpret laws and phenom-ena. However, it also raises a number of doubts about the extent of the relationship with such freelyinterpreted content. The scope of the research and the results obtained are international in nature andcan be of significant cognitive value to the science and practice of law application.

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Facturarea electronică obligatorie. România este autorizată să introducă o măsură specială de derogare de la articolele 218 și 232 din Directiva 2006/112/CE privind sistemul comun al taxei pe valoarea adăugată

Author(s): Cosmin Flavius Costaş / Language(s): Romanian Issue: 4/2023

TAX NEWS

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Insecuritatea juridică perfectă: verificarea documentară

Author(s): Cosmin Flavius Costaş / Language(s): Romanian Issue: 4/2023

In the past two years, Romanian authorities heralded a reform of the tax audit mechanisms and pledged to do so in order to obtain European Union financing for the reform of the national tax administration. The present article looks into the special mechanism of documentary checks that have recently took the place of regular tax audits. As the new documentary check mechanism poses many theoretical and practical challenges, the author studies where the current rules and administrative practices are compatible with the principles of legal certainty and legitimate expectations.

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Considerații privind regimul special de TVA pentru agențiile de turism

Author(s): Natalia Șvidchi / Language(s): Romanian Issue: 4/2023

The attempt of the EU legislator and of the Luxemburg Court to simplify the VAT rules for travel agencies resulted in complex system, applied differently by the Member States. The intention of the author of this paper is to outline the defining elements of this special scheme, as they result from the CJEU case‑law.

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The European Union’s Investment Policy – The Effects of the Achmea Case and the 2020 Termination Agreement of Intra-EU BITs1

Author(s): Erika Bihari,Veronika SZIKORA / Language(s): English Issue: 1/2023

The increasing involvement of the European Union (EU) in the field of investment protection has been a source of several conflicts in the recent years. Also, this phenomenon has led to significant changes in international and EU investment protection regulations and related dispute settlement or even arbitration procedures. In this article, we briefly present what investment protection usually means and how investment protection law has developed. Later on, we cover the investment protection policy of the EU, including its regulations and reform efforts related to investment protection. Last but not least, we highlight the problems of investment protection litigation in the EU, based on a judgment of the CJEU and a multilateral agreement between Member States (Termination Agreement).

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A Sketch of the Anglo-Saxon Roots of Constitutional Identity

Author(s): Luca BOROS / Language(s): English Issue: 1/2023

Constitutional identity has become a focal point of Hungarian political and public discourse in recent years and is increasingly being discussed also in the European dialogue. More and more people are familiar with the meaning and value of the concept in Hungarian public law, but perhaps fewer are aware of the Anglo-Saxon roots of the concept of constitutional identity. My paper aims to summarize the latter (only sketchily, given that the subject matter of the paragraphs of this paper could fill books), providing a starting point for contemporary arguments and reasoning.

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Eastern and Central European Member State Solutions for Transposing Directive 2019/1151 (EU) Part I. The Baltic States

Author(s): Tamás Szendrei / Language(s): English Issue: 1/2023

In a two-part study, the author analyses the transposition of Directive 2019/1151 (EU) by various Member States of the European Union. In this first part of the series, the basis for the analysis and the common criteria for comparison of the various implementations is presented. The author then proceeds to the presentation of the national implementations of the directive in Estonia, Latvia, and Lithuania, all Member States with a strong tendency, and some tradition in the field of digital governance.

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