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Anulare act administrativ. Certificat de neîncadrare în grad de handicap. Obligativitatea aplicării normelor privind criteriile medico-psiho-sociale. Lipsa discriminării. Inaplicabilitatea dreptului Uniunii Europene

Author(s): Author Not Specified / Language(s): Romanian Issue: 4/2024

Norma este clară și neechivocă în sensul condiționării încadrării în grad de handicap a persoanei care suferă de patologia respiratorie de debutul precoce al acesteia, respectiv până la 26 de ani. Rolul instanței de judecată este acela de a interpreta și aplica norma de drept în vigoare, nu acela de a ignora sau crea o normă juridică nouă prin înlăturarea celei existente sau interpretarea în sensul inaplicabilității. În măsura în care reclamantul recurent apreciază o normă legală inclusă într-o lege sau ordonanță de Guvern ca fiind neconstituțională, calea procedurală ce poate fi urmată este cea a excepției de neconstituționalitate. Similar, în cazul în care nelegalitatea derivată dintr-un pretins caracter discriminatoriu privește un act administrativ normativ, respectiv a Ordinul nr.762/31.08.2007 al MMFES și Ordinul nr. 1992/19.11.2007 al MSP, această critică trebuie să ia forma unei acțiuni în anularea acestora. Normele de drept comunitar invocate de către reclamantul recurent garantează principiul nediscriminării prin raportare însă la dreptul comunitar în vigoare și nu pot fi aplicate generic, ci doar cu privire la relațiile sociale în care există un drept material al UE. Or, materia în discuție în cauză, respectiv încadrarea sau nu a unei anumite afecțiuni în grad de handicap nu este reglementată la nivel comunitar.

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THE JUDICIAL SYSTEM IN ROMANIA: STRUCTURE AND FUNCTION

Author(s): Oana Andra Niță / Language(s): English Issue: 19/2023

The modern organization of the courts is the result of an interesting historical development. Judicial power has gained an independent organization only in the modern age, respectively with the stronger assertion of the principle of the separation of powers in the state, in England, France, and then in other Western states. Previously, justice coincided with executive practice and was often carried out by the same organs. The current organization of the courts is governed by Law No. 304/2004. Currently, according to Article 2, paragraph 2 of Law 304/2004, justice is done through different level of courts.

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Obowiązki (powinności) prewencyjne w świetle prawa prywatnego i publicznego scilicet spei permultum sed rei paulum

Author(s): Dariusz Fuchs / Language(s): Polish Issue: 103/2020

The article aims at discussing preventive obligations incumbent on the insurer and other entities of the insurance relationship, in particular on the policyholder. The analysis takes into account comparative legal aspects, and therefore refers to the Principles of European Insurance Contract Law (PEICL). The author emphasizes the evolution of the provision of Article 826 of the Civil Code, which has changed his views on the scope of the preventive obligation under insurance contract. He points out the possible differences of interpretation as to the scope of the prevention as well as the issue of the insurer's reimbursement of costs due to its implementation by the policyholder. What is more, the relationship between public and private law standards has been presented, with a particular focus on Article 826 of the Civil Code. Finally, de lege ferenda conclusions have been presented.

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Douška ke slučitelnosti „lex voucher“ s právem EU

Author(s): Richard Král / Language(s): Czech Issue: 1/2025

The article reviews the compatibility of Czech “Lex Voucher” with EU Directive on package travel. The review is done on the backdrop of two recent cases of the EU Court of Justice (C-407/21 UFC – Que choisir and C-540/21 Commission v. Slovakia) where the Court ruled that both the French and Slovak analogues of Czech “Lex Voucher” are incompatible with the EU Directive on package travel. Notwithstanding these two cases it is argued that the question of the compatibility of Czech “Lex Voucher” with the Directive can be definitively answered only if the Court explicitly considers the argument of teleological reduction of the Directive in the situation of the corona virus pandemic. The article also critically comments on the recent proposal of the European Commission for the revision of the Directive.

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Jurisprudență Fiscală Istorică A CurțIi de JustițIe a Uniunii Europene Cauza C-311/97, Royal Bank of Scotland

Author(s): Laura Lazăr / Language(s): Romanian Issue: 3/2024

The Royal Bank of Scotland case is one of the landmark decision of the Court of Justice of the European Union, addressing the compatibility of discriminatory tax regimes with EU law. The Court ruled that Member States’ tax laws, which impose higher tax rates on branches of foreign companies compared to domestic companies, violate the principles of freedom of establishment and non-discrimination enshrined in Articles 52 and 58 of the EC Treaty (now Articles 59 and 65 TFEU). The case highlighted the need for objective justifications for differential tax treatment and reinforced the requirement for tax measures to align with EU law, regardless of bilateral tax agreements. The judgment significantly influenced the harmonization of direct taxation in the EU by ensuring equal treatment for companies operating across Member States.

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THE TRIUMPH OF MAGISTRATES’ LIABILITY. A HOLISTIC APPROACH

Author(s): Oana Andra Niță / Language(s): English Issue: 22/2024

In the context of Romania's integration into the European Union, the implementation of an independent material liability law of magistrates proves to be necessary for a state that is constantly undertaking steps to reach the standards imposed by the Union. Abusive judgments based on legal grounds that violate the European Convention of Human Rights classify Romania among the most complained states in ECHR. The present paper was realized by quantitative methods, as well as demonstrative methods. Consequently, the streamlining of the Romanian legal system requires the promulgation of a law on the liability of magistrates regarding ways of control and sanctioning, without interfering with the independence of justice in the state of law.

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Mare liberum vs. mare clausum: freedom of navigation in the context of the European Union restrictive measures

Author(s): Ivan Dihanov / Language(s): English Issue: 2/2024

This article examines the concept of freedom of navigation and its role in contemporary maritime relations. The period from 2020 to 2025 has been marked by many challenges associated with the necessity to restrict communication between states for several reasons, from epidemiological to humanitarian. The ongoing tension in international relations implies that the increase in the number of armed conflicts may threaten the further implementation of freedom of navigation. At the same time, it may already be stated with confidence that the existing measures taken in connection with the invasion of Ukraine, as well as other conflicts, call into question the real implementation of freedom of navigation.

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Czy dyrektywa w sprawie ochrony osób zgłaszających naruszenia prawa Unii może być stosowana w Rzeczypospolitej Polskiej bezpośrednio? Przyczynek do dyskusji

Author(s): Artur Biłgorajski,Ewa Drzewiecka / Language(s): Polish Issue: 4/2024

The article aims to attempt to answer the question of whether – in the face of the inaction of the national legislator – Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law (hereinafter: the Directive) can be applied in the Republic of Poland directly to potential whistleblowers concerning situations occurring in the period from the expiry of the deadlines provided for the implementation of the Directive to the date of entry into force of individual provisions of the Act of 14 June 2024, and if so, to what extent? In making this attempt, the authors of the study rely on the criteria developed in the case law of the Court of Justice of the European Union (hereinafter: CJEU) determining the possibility of direct application of directives and the modest practice of Polish courts in this area to date (three judgments). In the study, the authors present practical problems for potential whistleblowers resulting from the lack of transposition of the Directive; ratio legis and the essence of the institution of whistleblowing; its subjective scope, i.e. the circle of entities interested in the direct effectiveness of the Directive and its objective scope; the procedure for reporting infringements of the law and – against the background outlined above – the issue of the direct effectiveness of the Directive in the Republic of Poland. Within the framework of the latter issue, the authors not only present the main conclusions resulting from the case law of the CJEU and national courts but also interpret the most important provisions of the Directive from the point of view of a potential whistleblower in terms of the possibility of assigning their direct effect. The analysis conducted unequivocally leads to the conclusion that the Directive can be applied directly in the Republic of Poland, certainly in the period from the expiry of the deadlines for its implementation to the date of entry into force of the Act of 14 June 2024 on the protection of whistleblowers. This conclusion refers in particular to the most important articles from the point of view of potential whistleblowers: 15, 19, 21, 23 and 24 of this act. The study uses the dogmatic method and the method of case law analysis. Due to the submission of the article for publication before the date of filing the draft bill on the protection of whistleblowers, the analysis of the provisions of the Act of 14 June 2024 on the protection of whistleblowers (Journal of Laws 2024, item 928) is beyond the scope of this work.

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HOTĂRÂREA C.J.U.E. C-548/21 DIN 4 OCTOMBRIE 2024

Author(s): Răzvan-Gabriel Dalu / Language(s): Romanian Issue: 01/2025

An austrian court has decided to refer three preliminary questions to the Court of Justice of the European Union regarding the interpretation of European legal provisions on the protection of personal data contained in a mobile phone and processed in criminal proceedings. On this occasion, the Court of Justice of the European Union clarified a multitude of aspects regarding the interpretation and application of the relevant legal provisions.

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CAUZA H.W. V. FRANŢA: ARTICOLUL 8 AL CONVENŢIEI EUROPENE A DREPTURILOR OMULUI. OBLIGAŢIA CONJUGALĂ CONTRARĂ LIBERTĂŢII SEXUALE ŞI DREPTULUI DE A DISPUNE DE PROPRIUL CORP

Author(s): Alina Gentimir / Language(s): Romanian Issue: 01/2025

This article outlines new dimensions of the right to private and family life under Article 8 of the European Convention on Human Rights. Fundamental concepts essential to the individual from the perspective of this article - private life, sexuale relations, marriage, family, cohabitation – create a new context on which the judges of the European Court of Human Rights must rule in answering complicated questions. Does a wife have a conjugal obligation to maintain intimate relations with her husband? Does this conjugal obligation emphasize the absence of consent in sexual relations between spouses? Can we speak of the normative character of the rule of law with regard to the spouses in the conduct of their sexual life? Should the discretion of the State in such situations be restricted? Is this matrimonial obligation contrary to sexual freedom and the right to dispose of one's own body and to the positive obligation of prevention incumbent on the Contracting States to combat sexual violence? Does a refusal to comply have legal consequences? Can the national judicial authorities pronounce a divorce on grounds of fault to the sole detriment of the plaintiff on the ground that she has failed to fulfill her obligation to marry by refusing to have intimate relations? Should other possible means of safeguarding the husband's rights be provided for? Can the absence of relevant and sufficient grounds be characterized as a failure to strike a fair balance between the competing interests?

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Competition Damages Actions and Leniency Programmes. Irreconcilable Conflict, or Potential Harmony?

Author(s): Zsolt Daniel Gyebrovszki / Language(s): English Issue: 1/2023

The present study examines the relationship between the private enforcement of competition law and the most important legal instrument in the toolkit of public enforcement of competition law, the leniency policy, through the EU legal environment relevant to this legal instrument and the case law implementing it. The present paper will discuss the impact of Directive 2014/104/EU of the European Parliament and of the Council of the European Union on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (the Directive) on the relationship between private enforcement of competition law and leniency. I will assess the impact of the private enforcement of competition law on the application of leniency policy. The main aim of the study is to present and evaluate the solutions and their results that the Directive has sought to resolve the conflict between the private enforcement of competition law and the application of leniency.

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ANALYZING THE EFFECT OF RULES OF LAW (RL) AND GDP ON INCOME INEQUALITY IN EUROPEAN COUNTRIES

Author(s): Sk Siam Rabby,Shaikh Nazmul Hasan Tapu / Language(s): English Issue: XVI/II/2024

Income inequality is considered as one of the most concerning issues in the contemporary world, while regional disparities, unequal distribution of wealth, and ineffective economic policies lead this income-inequality to be higher on the daily basis. In this paper, the researchers try to find out the joint impact of Rules of Law (RL) and GDP on the level of income inequality (measured by Gini-coefficient value). The authors collected secondary data from the World Bank (WB) database for a period from 1995-2020. The authors use multiple regression model to measure the joint effect of (GDP*RL) on Gini-coefficient value. In this regression results, Life expectancy, GDP, Inflation and RL play negative role on income inequality. Conversely, population and political stability (PS) suggest a positive connection with income inequality. On the other hand, for integrated regression model, it is observed that the joint effect (GDP*RL) puts negative impact to reduce income inequality, with statistically significant value. Some European countries like Spain, Greece, Portugal, Lithuania and Latvia face great challenges on income inequality due to regional-disparities and fragile economic policies. Some countries do not have handy agricultural and industrial policies to reduce regional income-inequality. So, the economic policy makers should launch sustainable income opportunities, and effective agricultural and industrial polices, while welfare labor market could reduce income inequality in a significant behavior.

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CHILD REPRESENTATION IN CASES BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS

Author(s): Anica Čulo Margaletić,Ivan Šimović / Language(s): English Issue: 4/2024

Representation of the child is an integral part of the institution of parental responsibility. Holders of parental responsibility, usually the parents, represent their child equally, jointly and consensually both in everyday life and in administrative and judicial proceedings. However, in certain life situations a conflict between parents may appear (such as separation, divorce, child abduction, partial deprivation of legal capacity etc.), so the question arises as to which one of them should represent the child? Would representation of the child by only one parent disrupt the principle of parental equality as well as the equality of sexes? In certain life situations a conflict of interests between the parents and the child may appear (because criminal, misdemeanour or family law proceedings for the protection of the rights and welfare of the child have been initiated against one or both parents etc.), and the challenge for the legal system is how to ensure objective and impartial representation of the child and his/her best interests? These are both social and legal problems that will be elaborated through relevant academic sources and recent case law of the European Court of Human Rights.

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Why the European Public Prosecutor Office is (Not) Working? And How We Can Fix It

Author(s): Andrei-Răzvan Lupu,Vlad George Zaha / Language(s): English Issue: 01/2024

Beyond an indirect analysis of the European Public Prosecutor Office's (EPPO) activity in its inaugural three years, this paper aims to offer a different perspective regarding the limits of the EPPO functioning. While prevailing literature on the EPPO predominantly focuses on the regulations and the institutional framework at the European level as potential triggers for serious setbacks, our analysis posits an alternative perspective: operationalising the EPPO depends primarily on the Member States. By scrutinising economic and demographic factors, alongside intrinsic elements such as national norms of material and procedural law, institutional frameworks, reporting procedures to the EPPO, and the collaboration history of Member States, we discern their impact upon the efficacy of the new European prosecutorial agency. Ultimately, we aim to offer a series of recommendations that can be imposed at the European level to overcome EPPO's dependence on the varying motivations and agendas of its Member States.

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Dubla semnificaţie a zilei de 25 mai pentru protecţia datelor care au caracter personal

Author(s): Augustin Fuerea / Language(s): Romanian Issue: 1-2/2024

May 25 will long remain in the knowledge and consciousness of all Europeans (both in EU member states and beyond) as a day of dual significance. On one hand, it marks the entry into force of Regulation (EU) 2016/679 on data protection, and on the other hand, it symbolizes the date from which this regulation became applicable. What differentiates these two dates? Formally, the only distinction lies in the years in which the two events occurred: May 25, 2016 – the date the regulation entered into force, and May 25, 2018 – the date it became applicable.

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Câteva clarificări jurisprudenţiale privind răspunderea operatorului în cazul nerespectării obligaţiei de a asigura securitatea prelucrărilor*

Author(s): Dana Volosevici / Language(s): Romanian Issue: 1-2/2024

The challenge of implementing technical and organizational measures under the GDPR is multifaceted, requiring a transdisciplinary analysis that encompasses technical, legal, and organizational dimensions. Judicial clarifications from the Court of Justice of the European Union are pivotal in providing a unified and accurate interpretation of GDPR provisions, thereby offering essential guidance to both data controllers and supervisory authorities. This paper examines the scope of the controller's obligation to ensure the security of personal data processing and its liability in the event of breaches of Articles 24 and 32 of the GDPR, with a particular focus on the VB v. Natsionalna agentsia za prihodite case (C 340/21).

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Echilibrul în retenţia datelor personale

Author(s): Elena Grecu,Mihaela Bălău / Language(s): Romanian Issue: 1-2/2024

Balance, which is omnipresent in every branch of law, is the notion that underlies even the field of personal data protection, as is clear from the analysis of the relevant provisions, both European and national. The principles relating to the processing of personal data, in particular the purpose limitation principle and the storage limitation principle, relate to “moderation”, balance and good organization of personal data processing processes.

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AI Act şi profilarea persoanelor vizate prin intermediul sistemelor IA

Author(s): Cătălina Pantilimon / Language(s): Romanian Issue: 1-2/2024

Responsibility for the creation and use of new technologies belongs exclusively to HUMANS. From a legal Point of view, the ability to contract is an extraordinarily powerful tool that the AI Act promotes in a sustained manner in identifying, regulating and effectively managing the risks that AI systems entail. The principle of responsibility – enshrined by the GDPR as the foundation on which all actions of the data controller who processes data of data subjects in the activities carried out to achieve its own purpose or object of activity – offers a complex and efficient mechanism for initiating a diligent and responsible conduct when operating with personal data, an extremely valuable component in the legal ecosystem of legislating new technologies ethically and without suppressing innovation. Given this equation, we can consider the provisions of art. 22 of the GDPR as at least visionary, because the creation of profiles in the interaction of the controller with data subjects is unsurprisingly potentiated in direct proportion to the associated risks, at an individual and social level. The profits of companies are nowadays conditioned by the profiling of subjects who use AI systems in a transformative way for the Internet of Things, which is why the temptation of non-compliant/illegal practices in the development and exploitation of emerging technologies is clearly increased, which requires, once again, a vigilant eye from well-trained specialists in new technology law.

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Avizul EDPB privind modelele IA: principiile GDPR susţin IA responsabilă

Author(s): Not Specified Author / Language(s): Romanian Issue: 1-2/2024

On December 18, the European Data Protection Board (EDPB) adopted an opinion on the use of personal data for the development and implementation of AI models.

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Nyelvi bizonytalanságok hatása a versenyjogi kártérítési perek szabályainak következetes alkalmazására

Author(s): Zsolt Daniel Gyebrovszki / Language(s): Hungarian Issue: 2/2024

Competition law damages actions are civil actions for compensation for damages suffered by competitors because of the conduct of companies that have infringed competition law by, for example, price fixing, market sharing, or predatory pricing. Unlike public law enforcement- conducted by competition authorities - which dominates European Union and national competition law, the nature of the regulatory framework for competition law damages actions is such that it mixes public law (illegality) and private law (liability) rules, which operate based on different legal concepts and have different conceptual sets. The rules of competition law damages actions are laid down in the form of a Directive, which, considering the heterogeneity of private law and language in the European Union and the semantic duality of European Union and national legal terminology, has given rise to legislative and enforcement problems resulting in linguistic inconsistencies.

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