The lawful State in the context of the normative and institutional requirements of European Union

Author(s): Marius Andreescu / Language(s): English Publication Year: 0

The doctrine of the lawful state comes from the German theory and jurisprudence, but is now a requirement and a reality of the constitutional democracy in contemporary society. Presently, the lawful state is no longer merely a doctrine but a fundamental principle of democracy consecrated in the Constitution and international political and legal documents. In essence, the concept of the lawful state is based on the supremacy of law in general and of Constitution in particular. Essential for the contemporary realities of the lawful state are the following fundamental elements: the moderation of the exercise of state power in relation to the law, the consecration, guaranteeing and observance of the constitutional rights of man especially by the state powers and, last but not least, the independence and impartiality of justice. In this study we analyze the most important elements and features of the lawful state with reference to the contemporary realities in Romania in the context of the requirements expressed in the political and legal instruments of European Union. An important aspect of the analysisis the separation, balance and cooperation of the state powers, in relation to the constitutional provisions. The excess of power of the public authorities, the excessive politicking and failure to respect the independence of justice are aspects of contemporary social and state reality that contravene to the requirements of the lawful state. Are analyzed the most significant aspects of the Constitutional Court jurisprudence and the jurisprudence of administrative courts in regard to the guaranteeing of the lawful state attribute in Romania, as well as, regarding the power excess.

Trans-institutional teams - a possible solution for effective use of human resources in public administration in accessing European funds

Author(s): Daniela Paraschiva Pavel / Language(s): English Publication Year: 0

The objective of the article is to investigate the following hypothesis: changing the legislation on the mobility of civil servants (posting, delegation, temporary relocation) in order to create an attractive legislative framework for setting up trans-institutional project teams can become an efficient way of managing the human resource for effectively increase the institutional capacity to absorb European funds. The research methods used: empirical research based on the data and professional experience of the author and the institutions where he worked. The author documents the process of accessing European funds starting with 2007 by consistently collecting data for public institution and local authority contractors from the territory of Sibiu County and has participated in activities of accessing European funds within the institution in which he is currently active institution of reference and in other institutions. The expected results ofthe author are: providing legal and managerial arguments to raise awareness of the need to update legislation on mobility of civil servants in accessing European funds with the following implications: Law no. 188/1999 on the status of civil servants, Chapter IX -Modification, suspension and termination of service report, art. 87-89 requires update; mobility in the public position must be approached interdisciplinary in terms of the principles of modern public management; increasing the absorption capacity of Europeanfunds can be effective.

Particularities of the Forensic Investigation of Software Piracy and Online Piracy

Author(s): Adrian Cristian Moise / Language(s): English Publication Year: 0

Particularities of the Forensic Investigation of Software Piracy and Online Piracy Starting from the analysis of the Law no 8/1996 on copyright and related rights in Romania, and continuing with the analysis of the main provisions of the European Union Directive 2001/29/EC on copyright and related rights in the information society and the European Union Directive 2009/24 / EC on the legal protection of computer programs, the article presents and analyzes aspects of the criminal investigation of software piracy and online piracy. The article analyzes both some of the criminal investigation acts commonly used in software piracy such as technical-scientific findings and forensic expertise of copyrighted software or related rights, and some methodological issues related to forensic investigation of software piracy and online piracy.

ПРАВНА РАМКА НА ПЕНСИОННИТЕ СИСТЕМИ В ЕС

Author(s): Daniela Petrova / Language(s): Bulgarian Publication Year: 0

The future of harmonization of social security systems is directly linked to the deepening of European integration and the convergence of social security models, with the realization of the concept that a functioning market economy and sustainable growth are only possible with a well-structured and structured social security system across the EU. flexible labor markets and mobile employment.

Tele-Working in European Legislation and the Romanian Law System

Author(s): Agata Mihaela Popescu / Language(s): English Publication Year: 0

At the present, labor legislation is at a crossroads, the changes at both national and European level have shown that a radical change of vision on working relations is necessary. One of the most recent legislative changes is the regulation of a new type of special contract – tele-working. In support of the flexibility of the labor relations and their modernization. Romanian legislation has adapted to these requirements, by adopting the Law no. 81/2018 on regulation of teleworking activity, in force since April 5, 2018. The scope of the Law is undefined, while the text of Art. 1 par. (2) regulates that “This law shall apply in the fields of activity where it is possible to carry out tele-work activity”. In other words, without specifying who is the addressees of the law, it concerns a category of employees who are connected to the realities of communication technology in a broad sense, to the latest news of the field in which they work and, in general, to the daily universe through the Internet, social networking and mobile applications. In other words, the recipients are the workers involved in the information society through its use and development, and not every worker holding a terminal that can connect to information and communication technology, since it is a “tele-employee” only the one who is willing to use the equipment needed to deliver the result of his work in an employment relationship, of course in agreement with the employer.

Some Aspects of the Right to a Fair Trial from the Perspective of the European Convention on Human Rights

Author(s): Silviu-Ștefan Petriman / Language(s): English Publication Year: 0

The European Convention through Article 6 establishes a fundamental principle for a democratic society and a rule of law. The right to a fair trial is applicable both in civil matters and in criminal matters, where the rights, freedoms and legitimate interests of the justiciable must be guaranteed. This right must be respected by all the judicial bodies, because by violating it or ignoring it, serious damages can be brought about the person's freedom, access to justice, equality of arms, the right not to incriminate s.a.m.d. Precisely for its importance, the right to a fair trial is considered as a pillar of support for the democratic state. In Romanian domestic law the right to a fair trial can be found in the Romanian Constitution art. 21 paragraph (3), the Code of civil procedure in art. 6, the Criminal Procedure Code art. 8, as well as in art. 6 of Law no 304/2004 on judicial organization. The right to a fair trial should not and cannot remain only at the theoretical level, but it must receive effective applicability in practice, otherwise it will remain an illusory right. But in order to be used in practice he must be well known and promoted at the same time, in order not to allow his violation.

Firearms – A Double-Edged Sword

Author(s): Robert Şerbănescu / Language(s): English Publication Year: 0

The dual nature of the human race has been the major cause for both positive and negative actions throughout history. Socrates insisted that a man must have a clear representation of both good and bad, so he may choose the proper approach. Therefore, any direction followed by an individual can lead to either desirable consequences or the opposite. Firearms were created as a means of protection and prevention from invaders. However, even if during periods of conflict they have proven their usefulness by defending homelands and other key locations, in the hands of an ordinary person they provided the possibilities to take the criminal activity to another level. In this manner, crimes could be committed at a faster rate, with more accuracy from a safe distance, lowering the chances of the victim to be able to defend themselves. In order for one to understand the concept of the firearms being a “double-edged sword”, he requires to have a clear representation of the complexity shown by a weapon structure, the key components, the power which can pe generated by using a firearm and the damage done. Also, the representation, besides the mechanical and structural part, must include the criteria based on which an individual can have, keep and use a firearm, with the general differences from one legal system to another.

Rozszerzenie ochrony przed dyskryminacją na dziedzinę ochrony socjalnej – dyrektywa horyzontalna. Wybrane problemy

Author(s): Łucja Kobroń-Gąsiorowska / Language(s): Polish Publication Year: 0

With the implementation of Directives 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, 2000/43/EC of 29 June 2000 concerning equal treatment of persons irrespective of racial origin or ethnic, and Directive 2004/113/EC of 13 December 2004 on equal treatment of men and women in the access to and supply of goods and services in the European Union, a new stage in the redefinition of two concepts began in EU legislation: equality and non-discrimination. The current draft “horizontal” directive aims to broaden the principle of non-discrimination and the principle of equality, which, according to the concept adopted in this article, are identical concepts. In the article, the author answers an important question, why EU legislation, constantly extends the principle of non-discrimination and the principle of equality, while there are no grounds for it.

Improving Efficiency to Combat VAT Frauds at the European Union Level

Author(s): Nelu Dorinel Popa,Cezara Popa / Language(s): English Publication Year: 0

The value-added tax is an indirect tax that represents both an inherent resource of the European Union budget and a resource of EU Member States budgets. Consequently, frauds against national VAT affect both the national budget and the Member States’ budget, which entail the activities for combating this type of fraud to be correlated both at national and at the Community level. Therefore, the Romanian jurisprudence provides examples in which the national judicial authorities have identified a continuous circulation, a "carousel" type, of VAT fraud, between several Member States of the European Union, which has harmed each of the budgets of the states on whose territory it has "transited" and implicitly, the Community budget. The investigation of these frauds and the criminal prosecution of the perpetrators was carried out only at the national level, in a fragmented way, but it also required the judicial cooperation of the Member States in order to support the requesting states in carrying out the investigations. However, the national authorities are missing the cross-border dimension, which requires a European Union authority to investigate such frauds, to correct the deficiencies of the current regime regarding compliance with law, based exclusively on national efforts and to increase their consistency and coordination.

Precarious Work – Challenges of Labour Law in Europe. Case Law: Uber

Author(s): Raluca Anderco / Language(s): English Publication Year: 0

The main purpose of this article is to analyse the issue of precarious work in Europe, where the proliferation of the new types of employment without the whole spectrum of rights associated with the standard employment relationship has engendered considerable labour market fragmentation and social polarization. Precarious work poses unique challenges to the European social model of secure employment and decent social protection. To address these challenges, we seek to analyse the reasons for the spread of precarious work in various countries in Europe to explain the different types of precarious work and to make proposals to address the phenomenon though improved labour regulation and practice.

Reforma Uredbe Bruxelles IIa

Author(s): Anita Duraković / Language(s): Serbian Publication Year: 0

The Brussels IIa Regulation, which came into force on 1 March 2005, established uniform rules on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and cases related to parental responsibility in international situations. In accordance with Art. 65. of the Regulation on 15 April 2014 the European Commission submitted a Report stating that the Brussels IIa Regulation is a well-functioning instrument, which implementation has shown certain shortcomings that needed to be eliminated. Therefore, on 30 June 2016, the European Commission presented the Proposal for the Reform of the Brussels II Regulation, which stated that cases related to parental responsibility caused certain problems and needed to be addressed urgently, whereas cases related to matrimonial matters show only a small number of problems and pledges to maintain the status quo situation. The paper will discuss the proposed new regulation – six major shortcomings in cases related to parental responsibility have been pointed out. Besides that, the need for certain changes in matrimonial matters as well as in relation to the scope of application of the Brussels IIa Regulation will be point out. We intend to inform the public with the legislative activities of the European Union, both already adopted and proposed legal instruments, considering the obligation of Bosnia and Herzegovina to harmonize existing legislation with those in the European Union under the Stabilization and Association Agreement.

Кажњавање само на основу закона (из члана 7 Европске конвенције за заштиту људских права и основних слобода) у пракси Европског суда за људска права и Уставног суда Босне и Херцеговине

Author(s): Miodrag N. Simović,Marina M. Simović / Language(s): Serbian Publication Year: 0

Guarantees set out in Article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which is an essential element of the rule of law, has a prominent place in the system of protection under this Convention, as emphasized by the fact that it cannot be derogated under Article 15, not even in war times or other public extraordinary situations endangering the life of the nation. It should be interpreted and applied, as follows from its aim and purpose, in a way to provide efficient protection mechanisms against arbitrary prosecution, convictions and punishment.Article 7 of the Convention is not limited to prohibition of retroactive application of criminal law to the detriment of the accused. Generally ob- served, it also includes the principle that only the law may define a criminal offense and prescribe a punishment (nullum crimen, nulla poena sine lege). Even though it prohibits widening of the scope of existing criminal offenses to behaviors that have not been criminal offences before, it also prescribes a principle that criminal law should not be interpreted in a wide sense to the detriment of the accused, for example by analogy. It follows that criminal offenses and relevant punishments have to be defined clearly in the law. This requirement is fulfilled when an individual, from the formulation of relevant provision, and if necessary with interpretation of the court and after obtaining an appropriate legal advice, may know which actions or non-actions shall make him criminally liable and which punishment may be imposed on him for that. Therefore, the court has to confirm that, at a time the accused person had committed the actions that led to his prosecution and conviction – legal provisions declaring that action punishable and that the punishment imposed did not exceed the boundary determined under that provision, were in force.

Načelo ne bis idem u praksi Evropskog suda za ljudska prava sa osvrtom na Bosnu i Hercegovinu

Author(s): Sunčica Hajdarović / Language(s): Serbian Publication Year: 0

The ne bis in idem principle is enshrined in Article 4 of Protocol No. 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, and falls within the principles with conventional and constitutional importance. It is a principle which at the national level prohibits the duplicity of trial or punishment in criminal proceedings for an offense for which the accused has already been convicted or released before a national court in another procedure (misdemeanor, administrative or disciplinary). The European Court of Human Rights has discussed in numerous judgments about the violation of this principle. Significant position of this court regarding Bosnia and Herzegovina has been formulated in the Muslija v. Bosnia and Herzegovina case, which concerns the prohibition of double trial in misdemeanor and criminal proceedings. Following this judgment, the ECtHR found that the jurisprudence of the courts of BiH was not in line with the standards required by the Convention on the Prohibition of Double Trial and Punishment, and on this basis, the Court called on BiH to bring its practice into line with those standards. Since BiH is obliged to follow the instructions given to it by the Court regarding compliance with the standards prescribed by the Convention, BiH has drawn up an Action Plan for the implementation of general measures in the judgment of Muslija v. BiH.Also, when presenting the protection of legal values proclaimed by Article 4 of Protocol No. 7, it is important to emphasize the importance of the decisions of the European Court of Human Rights in the cases of Zolotukhin v. Russia and A. and B. v. Norway, which represent two major milestones in the development of the judicial practices related to the ne bis in idem principle.

Правна држава - услов укључивања у европске интеграције

Author(s): Dragan Bataveljić,Srđan Nikezić / Language(s): Serbian Publication Year: 0

The authors in the paper indicate that modern society increasingly experiences politicization of the wholeness of the political being, so that the political system increasingly goes beyond the social system considering that the modern politics appears in each pore of the society. How-ever, the essence of the paper is the fact that joining the European integrations and entering the European Union for the candidate countries can be provided only by the political system of the state of law. For providing such a system it is necessary to establish and obey certain principles and the institution of the state of rule of law. Also, in this modest paper the authors wanted to give appropriate answers in the shortest possible way, considering that the constitutionality, legality and especially the state of law are nowadays very often mentioned in public conversation and that there are numerous obscurities and doubts related to those categories.

Uticaj EU integracija na samostalnost-zavisnost domaće legislative (poseban osvrt na upravno pravo)

Author(s): Borče Davitkovski,Dragan Gocevski,Elena Davitkovska / Language(s): Serbian Publication Year: 0

When we speak of the “degree of dependence” or level of influence EU acts and agreements extend over national legislature, one must emphasize that this conditionality is above all voluntary. Member states and countries aspiring to EU membership strive to harmonize their laws and bylaws at a national level, in accordance to (mutually) determined directives, standards and recommendations adopted by the European Parliament and issued by the European Commission in the form of progress re-ports. In order to fully adapt to the founding values of the EU, all countries are driven to respect the common market and therefore follow the regulation adopted at supranational level by the legitimate EU institutions. Administrative law is no exception to this process of harmonization. Attempts to harmonize administrative legislature can be found in concepts such as European Administrative Space, Recommendations of the Council of Europe, partly in Agreements for Stabilization and Association (to the EU) and for the Western Balkans through Sigma. However, specifics of the national administrative systems were built and designed to serve the countries’ economic and political needs. Therefore, substantive legislative governing structure and institutions cannot be uniformed, and the Union indeed does not condition member states to adopt a uniformed administrative structure. Administrative procedural legislation, on the other hand is more convenient to such harmonizations and standardizing. Administrative procedure aims to protect the public (and EU) interest, as well as to protect the rights of parties in the procedure. In recent years there have been multiple attempts to adopt certain directions, recommendations and minimum of standards for administrative procedures at EU level as well as by the Council of Europe.Under the coordination and support from Sigma, states from the Western Balkan region, among which the Republic of Macedonia, have committed to reforming their administrative procedural laws. As a direct result, at the end of 2013 Macedonia adopted a Strategy for Reform of Law on General Administrative Procedure which aims to harmonize Macedonia’s administrative procedure with modern standards found in the EU.

Prospects on the European Investigation Order in Relation to Joint Methods Deficiencies

Author(s): Marius-Adrian Arva / Language(s): English Publication Year: 0

We emphasize in the present study that, in the context of cross-border crime evolution, it was developed an instrument based on mutual recognition of judicial decisions by member states authorities from the European Union, entitled the European Investigation Order, which, although was intended as a unitary approach in the procurement of evidence process, compared to the old fragmentary system, this purpose could not be achieved. We also point out the dangers of violating the protective guarantees of the persons rights, for those individuals that are targeted by the investigative measures, in relation to particularities of various national penal systems regarding the procurement by the executing State of evidence to be used in judicial procedures by the issuing State.

Risks, Discrimination and Opportunities for Education during the Times of COVID-19 Pandemic

Author(s): Titus CORLĂȚEAN / Language(s): English Publication Year: 0

The COVID-19 pandemic has been and still is a serious challenge to Mankind, even if it does not constitute an actual threat to the lives of nations. The pandemic has caused a situation of international sanitary crisis, numerous losses of lives, traumas, economic shocks and significant social costs. In short, COVID-19 will entail certain changes which are essential to Mankind in the short and medium term, at least. One of the social areas that faced the strongest challenges, without being really prepared for it, is that of Education. Teachers, pupils and students, parents, schools and local communities and, last but not least, the state were suddenly put in a position to change their rules of operation, teaching techniques or examination methods overnight. New technologies, difficult to assimilate in the short term by all players involved, material financial and educational resources which proved inaccessible to many students, especially in less developed regions or states worldwide, racial, gender, but also regional discrimination, young women and girls exposed to domestic or sexual violence, in short, this constituted a magnifying glass for inequalities. As in any major crisis situation, COVID-19 has generated not only significant risks, discrimination or costs, but also unanticipated opportunities, substantial human and technological progress platforms, including in the field of Education. UNDP recommends “five priority steps to tackle the complexity of the crisis: protecting and developing health systems and services; reinforcing the social protection; protecting jobs, small and medium-sized businesses and informal sector workers; making macroeconomic policies work for everyone; promoting peace, good governance and trust to build social cohesion”. It is very easy to notice the fact that none of these five priorities are possible to be fulfilled without the solid foundation of a good quality education (UN Sustainable Development Goals no 4). International experts raise an important question: will the current pandemic actually be the trigger for transformation? The answer and the appropriate solutions will imply political will and vision, a proper prioritization, budgetary resources, partnerships, good use of the innovative human intelligence, international solidarity and a non-discriminatory approach, ensuring that learning is accessible to all.

Efforts in Harmonizing Contract Law: Some Considerations Regarding European Sale of Goods

Author(s): Bogdan Radu / Language(s): English Publication Year: 0

The European Union has taken great strides in harmonizing the sale of goods contracts, however the Common European Sales Law is yet to be approved. In 2019, the European Parliament and the Council adopted Directive (EU) 2019/771 of 20 May 2019 on certain aspects concerning contracts for the sale of goods. Some of the main benefits of the directive are: a minimum warranty period of two years from the date on which the consumer receives the good in question and a period of one year for the burden of proof reversed in favor of the consumer, and the possibility for the countries to set longer deadlines than these to maintain their current level of consumer protection. This article is set out to present the steps made towards a unified theory of sales law and some issues that can appear when concepts from different legal systems are adopted into one legal framework.

The broadening interpretation of ‘worker’ in the European Union

Author(s): Jaana Paanetoja / Language(s): English Publication Year: 0

Polish labour law 10 years after the accession to the European Union (certain issues linked to the determination of the direction of change)

Author(s): Zbigniew Góral,Ewa Staszewska / Language(s): English Publication Year: 0