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Particularities on Child-Friendly Justice Concerning Inoperability of Judicial Procedures

Author(s): Alina Zaharia / Language(s): English Publication Year: 0

If the purpose of applying a punishment to a felon is firstly retributive, then restorative, when it comes to a child perpetrator, the primary concern to specialists in the legal, psychological and social assistance field must be the effective protection and social reintegration of the minor. The courts for minors are meant to be able to determine the needs of every child who falls under the law, regardless of its quality (perpetrator, victim, witness, collateral victim). Creating a child-friendly justice system gives the child a safe and ideal space where all his rights are respected and his voice is heard, regardless of age, maturity or social status, benefiting from social and legal assistance for the entire duration, prior, incipient and subsequent to a judicial procedure in which the child takes part. In general, court proceedings may be delayed due to certain intervening factors that may have a negative impact on the parties, which is in contradiction with the act of justice. In this context, we point out that the delays in the court proceedings involving children brings with them the victimization and traumatization of the child. Finally, institutional actors have a duty to keep away a child from the rigid and traumatic side of applying justice and transforming it into child-friendly justice.

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RGPD/GDPR: prelucrarea datelor cu caracter personal la încheierea/executarea unui contract. Unele particularități privind prelucrarea datelor cu caracter personal în condițiile crizei Covid-19

Author(s): Mirela-Carmen Dobrilă / Language(s): Romanian Publication Year: 0

The processing of personal data is legal if the conditions of Regulation (EU) 2016/679 - GDPR are met. Regarding the legality of the processing, the article focuses on the processing of personal data under the conditions of art. 6 GDPR: processing is necessary for the performance of a contract to which the data subject is party or in order to enter into a contract. The article draws boundaries between this legal basis for processing and consent-based processing. The crisis caused by the Covid-19 pandemic brought many challenges, the article analyzing some aspects related to the processing of personal details in the context of the Covid-19 crisis.

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Principiul liberei circulaţii şi restricţii bazate pe motive de ordine publică, securitate publică şi sănătate

Author(s): Cornelia Beatrice Gabriela Ene-Dinu / Language(s): Romanian Publication Year: 0

Freedom of movement is one of the fundamental rights within the European Union, an essential and absolutely necessary element for the existence of the common market. This field’s acquis gives the European citizens the right to move freely within the EU in their personal and professional interests. In this dynamic field, which is evolving at the pace of the European integration process, free movement has an important social dimension. Free movement is not absolute but may be subject to certain limitations dictated by overriding interests and may therefore be restricted for reasons of public policy, public safety and health. The importance of the analyzed theme arises primarily from the fact that it is a topical issue related on the one hand to the purpose that formed the basis of the formation of the European Union, to give equal and mutual rights and benefits to the citizens of the Member States, and the main advantage was the right to free movement and, on the other hand, the current reality facing humanity in the context of the current crisis generated by the COVID-19 pandemic. The principle of non-discrimination regarding the right of residence and work within the European Union has been and will be at the heart of the free movement idea. An important aspect that makes the issue of free movement to be and to always remain relevant is the changes of political, economic, social and legislative nature at national level within the Member States of the European Union, changes that implicitly also influence the relations with the other Member State of the European Union.

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Limitation of Fundamental Rights and Freedoms in a Pandemic through Administrative Acts Issued by Public Authorities

Author(s): Adina Georgeta Ponea / Language(s): English Publication Year: 0

In Romania, the legislator considered to regulate, on a temporary basis, some necessary measures in the field of public health in situations of epidemiological and biological risk, to prevent the introduction and limit the spread of infectious diseases. Measures such as the quarantine or isolation of persons shall be ordered and applied exclusively for the protection of public health, respecting the fundamental rights and freedoms of citizens, meaning that they must be in proportion with the situation which determined them, limited in time to this and applied in a non-discriminatory manner. Public authorities such as the Public Healthcare Direction - for individual cases or the National Committee for Situations of Emergency - for populational groups, have the legal competence to assess and order either the quarantine of persons or the zonal quarantine by reasoned decision which will contain endorsments on the date and the issuer of the act, the name and identification data of the quarantined person, but also the duration of the measure and the remedy provided by the law.

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Debt moratorium during the state of emergency and the state of alert

Author(s): Ciprian Chiorean / Language(s): English Publication Year: 0

The regulation of the application of the debt moratorium was rolled out by adaptation and implementation at the level of the internal law, so that its effect is the one expected by the union of the European legislative framework with the internal legislative framework. Although there is a common goal, despite the guidelines set out by the E.B.A., there is no unitary vision at the level of European states regarding the moratoriums im- plemented, the solutions adopted by each EU Member State being diverse. Since the be- ginning of the SARS-CoV-2 coronavirus pandemic, credit institutions have come to the aid of customers who were financially vulnerable, by implementing appropriate, concrete and effective measures to enable them to continue to meet their payment obligations. For the elaboration of this study was used the comparative analysis of the whole regulatory framework and the exposition of the way in which it was implemented at the level of each state affected by the pandemic.

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Protection of the right to redemption of shares of banking company reorganized by merger – internal rules and European case law

Author(s): Andreea Corina Tarsia / Language(s): English Publication Year: 0

The exercise of the right protected by art. 1 of Protocol no. 1 of the European Convention on Human Rights does not only depend on the obligation of the State not to interfere, but may require positive protective measures, especially when there is a direct link between the measures that the complainant can legitimately expect from authorities and the right to an effective observance of its "assets". Although art. 1 of Protocol no. 1 does not contain explicit procedural requirements, the Strasbourg Court has ruled that states have an obligation to provide judicial proceedings that can offer the necessary procedural guarantees and therefore allow local courts to rule effectively and equitably on any litigation between persons, both in cases involving state authorities and in cases involving only private parties. On the other hand, the European Court of justice has ruled that, in other circumstances, the right of withdrawal of shareholders in the event of a merger of the banking company may be limited on grounds of public interest, invoked in the context in which, banks or small groups of banks are not able to cope with, without excessive difficulties, for example in the case of financial deposits imposed by the newly established system of the European Banking Union. These situations highlight the serious shortcomings in resolving reimbursement of shares disputes, as they may raise the issue of reconciliation between shareholders' rights, based on Article 1 of the Protocol, and the general interest in consolidating the capital of the banking system and the need to maintain bank’s stability.

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Recent developments of the European Union institutions: the role of the consumer policy advisory group

Author(s): Juanita Goicovici / Language(s): English Publication Year: 0

The study addresses the problematics of the recent foundation of the Advisory Group on Consumer Protection Policy on 22 December 2020, the first meeting of which took place on 21 February 2021. Pursuant to the launching by the European Commission of the New Consumer Protection Agenda, the Commission’s Directorate-General for Justice and Consumers (DG JUST) intended to set up an expert group, namely the „Consumer Policy Advisory Group”, whose structure will bring together representatives of consumer organizations, civil society and industry, with the main mission of assisting the European Commission in a future implementation of the Consumer Protection Agenda from 2021-2022 on. It will provide expert advice on the implementation of the consumer protection agenda, both in terms of public policy, as well as on the 22 types of concrete actions in key areas of consumer policy. The paper underlines the main competences of the newly-established group of experts, which will suggest operational actions to the European Commission in terms of the implementing the high-level priorities set out in the New Consumer Agenda as input into the yearly priorities which were discussed at the annual Consumer Summit. Consequently, the CPA Group will contribute to the monitoring by the European Commission of the implementation of annual operational actions posterior to the conclusion of the annual Consumer Summit and will assertively assist European Commission services in the preparation and the implementation of legislative and non-legislative actions delivering on the priorities of the New Consumer Agenda. Nonetheless, the CPA Group is determined to foster exchange of experiences and good practices on the areas of the New Consumer Agenda, thus contributing to the fortifying of the actioning capacity of consumer organisations and to the intensifying of the latter’s progress.

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Preventive action on pollution of watercourses with waste – a comparative perspective of the main international, European and national regulations

Author(s): Cristiana Mic-Soare,Stelian-Mihai Mic / Language(s): English Publication Year: 0

The impact of pollution of watercourses with various types of waste – such as municipal, industrial or construction waste is often irreversible, the full restauration to the initial state of affected watercourses not being always possible. Thus, prevention manifested in relation to the pollution of watercourses with waste becomes essential, being fundamental for ensuring the protection of this natural resource. In this context, this study undertakes to identify the most relevant international, European and national regulations applicable to watercourses located on the Romanian territory, the purpose of which is to prevent pollution of watercourses with waste. The main conclusions reached by the authors are in the sense that, while the international regulations offer a framework in which general obligations for states materialising the prevention principle are affirmed, the European regulations set specific directions within this framework. Further, the Romanian national legislation includes numerous obligations that can be considered as representing components of the prevention principle; however, in the authors’ view, due to their fragmented character and lack of unity, they are not designed to offer a real protection against pollution of watercourses with waste.

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Compliance with the legal treatment standards of international investments during the global economic crises. Between yes and no

Author(s): Cristina Elena Popa Tache / Language(s): English Publication Year: 0

International investment are under the protection of international law by setting standards of legal treatment which the governments of the host states have undertaken to comply with in their investment treaties. Therefore, these standards of protection must be respected even in times of crisis, regardless of the reason that generated it, the policy of attracting and maintaining an investment climate favorable to international investment being an attribute of each state. Nothing can stop an investor from changing the geography of his business, in order to protect the investment made. The issue of violation of one or more standards by states is one of the most debated at the moment, because the international arbitration practice has decisions to oblige states to significant compensation. In my study I used as a research method interdependent analysis and synthesis through analogies developed in a comparative method. At EU2 level, following the entry into force of the Treaty of Lisbon, FDI3 is now within the exclusive competence of the EU, which continues to fight to define a European investment policy that meets the expectations of investors and beneficiary states, as well as the objectives foreign policy and the EU's broader economic interests.

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The impact of the recognition and enforcement of the European confiscation order on the third parties of good faith

Author(s): Elise Nicoleta Valcu / Language(s): English Publication Year: 0

This study aims to bring to the attention of specialists the laudable approach of the Union co-legislator on the adoption of Regulation (EU) 2018/1805 on orders of unavailability and confiscation, a legal step taken to harmonize the legislation on the subject of analysis. The research methods used in our study are: a) the logical-concretized method by using the union and national framework norms in the matter of confiscation; b) the comparative method - in order to perform a comparative analysis of the main institutions of material and procedural law. We note, however, that the provisions of this Regulation are in accordance with the obligation to respect fundamental rights and legal principles enshrined in Article 6 of the Treaty on European Union (TEU2 in the sense that fundamental rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms constitute general rules of Union law. The Union norm that represents the theme of this study aims at ensuring the effectiveness of the recovery process of the assets derived from the commission of crimes, respecting the fundamental rights, especially of the third parties in good faith. Specifically, we refer to those exceptional situations, when there are good reasons to believe that, based on specific and objective evidence, the recognition and enforcement of a confiscation order would lead to a manifest violation of a relevant fundamental right of a third party of good faith. For such a situation, the judicial authority of the executing State must reconsider the automatic recognition of the confiscation order, relevant being the fundamental rights, in particular, the right to an effective remedy, the right to a fair trial and the right to defence and not least the right to the guarantee of private property.

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European cooperation rather than EU integration. Iceland and the European Union

Author(s): M. Elvira Mendez-Pinedo / Language(s): English Publication Year: 0

Why some European countries prefer cooperation than integration? In 2019 Iceland celebrated twenty-five years of cooperation with the European Union (EU) under the European Economic Agreement (EEA). Since 1992-1994, this country has preferred international/ regional cooperation rather than full supranational integration. This study summarizes some important dates and facts which explain some of the most important reasons why integration in the EU does not seduce Icelanders. Methodology is both descriptive (informative) and analytical (critical comment). All legal issues are approached from a wider economic, political and sociological context (law in context approach). A provisional finding is that the European legal integration project (and general pooling of sovereignty) will probably never fully convince Iceland for historic, geographic, legal, political and economic reasons. Lacking a history of nation-wars and situated geographically as the ultraperiphery of Europe, for this small nation rich in natural resources and scarce in population; supranational integration is neither a political imperative nor an economic necessity in ordinary circumstances. With the exception of the years 2009-2013, after a major financial crisis when Iceland was a candidate country to the EU....the EEA Agreement and European cooperation are preferable to full EU legal integration unless a situation of national emergency happens again....

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Crypto-asset services under the draft MiCA Regulation

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

The draft Markets in Crypto-assets Regulation (MiCAR) seeks to regulate crypto-asset services and service providers as an area, which was mainly built on the idea of independence from the current financial system and its regulatory framework. MiCAR, inspired by the Markets in Financial Instruments Directive (MiFID II) as a cornerstone of the EU financial services regulation, now aims to change the paradigm. The paper deploys cross-sectoral approach, focuses on examining the scope and categorising the relevant crypto-asset services compared with the “traditional” investment services catalogue under MiFID II. By analysing the definitions and content of individual services, it seeks to identify possible differences. It also examines the impacts MiCAR might have on how the scope of individual corresponding investment services under MiFID II is in- terpreted, and vice versa. As a result, the paper introduces three categories of crypto- asset services and emphasizes the relevant differences from the MiFID II list.

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Crowdfunding credit services (peer to peer lending) in the light of the Proposal for a Directive of the European Parliament and of the Council on consumer credits

Author(s): Simona Heseková / Language(s): English Publication Year: 0

The paper identifies the most significant problems associated with the absence of regulation of peer to peer lending, where debtors are consumers. The paper evaluates identified problems from the perspective of the Proposal for a Directive of the European Parliament and of the Council on consumer credits released on June 30th, 2021. The paper considers mainly the selected aspects of draft regulation as: definitions, the legal regime of crowdfunding credit service providers, the assessment of consumer creditworthiness, information asymmetry and registration of crowdfunding credit service providers. The paper considers the selected issues from the point of view of European Union law and takes into account the specifics of the Slovak legislation due to the absence of studies focused on peer to peer lending at national levels. Based on this approach, the paper makes de lege ferenda proposals.

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Beneficial ownership regulation: Slovakia and selected countries

Author(s): Daniel Zigo / Language(s): English Publication Year: 0

In recent years, especially within the European Union, Anti-money Laundering (AML) legislation has intervened in business law and introduced significant regulatory obligations in the area of registration of beneficial owners of companies. Although this regulation in the EU member states is based on the EU directives law, there is a relatively wide scope for its implementation and individual member states use different mechanisms of its operation, verification of data or sanctions. Slovakia differs from other countries in that there is a double regulation of beneficial owners for two different purposes. In this paper, we analyse the legislation and practice in the regulation of beneficial ownership in selected countries and describe our findings regarding the similarities and differences of individual models. In our research, we also focus on the possibility of implementing innovative regulation models in the Slovak Republic, where two different legal regulations are not addressed in an effective manner.

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‘Gun Jumping’ in the merger implementation in the EU in light of the Altice Case

Author(s): Barbara Dufková / Language(s): English Publication Year: 0

The paper analyses the scope of the gun jumping prohibition in light of the judgment of the General Court in the Altice case (T-425/18). After introducing the facts of the case, it dives into the legal issues raised. It concentrates on the main areas of concern – the scope of Article 4(1) and 7(1) of the EU Merger Regulation, the pre-closing covenants in the transaction documentation and the exchange of information. The paper identifies four important implications of the Altice case. First, the case confirms that concurrent violation of notification and standstill obligation is possible. Second, it provides clearer guidance as to which pre-closing covenants may be regarded as granting the acquirer a possibility of exercising control over the target. Third, it confirms that a concentration may be implemented by pre-closing covenants regardless of their actual implementation. Finally, it makes clear that excessive information exchange may support the finding of decisive influence.

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The future of net neutrality and zero rating in the EU after recent decisions

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

On 30 April 2016, entered into force Regulation (EU) 2015/2120 (also known as Open Internet Regulation), laying down the foundation for net neutrality rules in the EU and creating an ex-ante regulation for the telecommunication services market, ensuring no discrimination for the users of the internet based upon the type of traffic. The regulation put the weight of the balancing act on NRAs (national regulatory authorities) and subsequently courts. The author aims to comment on the significant rulings since the adoption of the regula- tion, mainly focusing on recent rulings from September 2020 and September 2021 of the CJEU to analyse the development the net neutrality underwent in mere five years since the adoption of Open Internet Regulation and where the regulation might head next after those rulings.

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Law and security: legal and institutional aspects

Author(s): Felicia Bejan / Language(s): English Publication Year: 0

In the last decades, the concept of security has extended from the state power to ensure the sovereignty to the human dimensions of security. The environment security, health security, food security, personal security, community security, political security, economic security are all areas of security. The issue of security goes into many fields and, from the disciplinary perspective, the law has the role to grant the necessary framework. The article analyses current legal aspects of the health, environment and food security, considering their deep interdependency and their determining role to increasing the quality of life. The European legislative acts and institutions establish certain standards in these domains and they have a strong and growing impact on the normative evolution in our country. The study of European and Romanian law identifies some findings as start points for changing the current level of health, environment and food protection, having the human well being as purpose behind them.

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Data protection in the context of employees’ performance appraisal

Author(s): Ioana Cristina Neagoe-Diniță / Language(s): English Publication Year: 0

By this study we propose to determine what are the conditions and limits of the collection and processing of personal data in the activity of professional evaluation of employees. Personal data are collected and processed in the context of employment relations also for the purpose of the appraisal of employees' professional activity. The monitoring of the employees' activity aims at evaluating the accomplishment of the specific responsibilities of the position, as well as the fulfillment of the individual and/or team goals. A discussion on personal data protection aims at the very analysis of the balance between the legitimate interests of employers in collecting and processing employees’ data and the reasonable expectations of employees when it comes to privacy. Facilities allowing real-time access of the employer to employee's location data via smart devices, that is considered less visible to employees, applications that record the time and pace of work, the facial expressions and gestures of employees provide more than a process diagnosis, but also the diagnosis and prediction of behaviors, automatically generating profiling.

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Book X ("Trusts") of the Draft Common Frame of Reference (DCFR): subject of doctrinal discussions and model of inspiration for the legislator of the Republic of Moldova

Author(s): Irina Digori / Language(s): English Publication Year: 0

The Draft Common Frame of Reference (DCFR) project is a comprehensive work to harmonize the rules of private law in the European area. Although it has not gained legal force at European level, the project has undeniable value for the development of private law and can serve as a model for legislators in different states. This has already happened in the case of modernization of the Civil Code of the Republic of Moldova. For the matter of trusts, in DCFR was allocated a separate book - Book X ("Trusts"), which was the basis for the regulation of the institution "fiducia" in the Civil Code of the Republic of Moldova. The purpose of this article is to analyze the assessments and criticisms that have been brought to Book X of DCFR, but also to assess the extent to which the legislator of the Republic of Moldova has followed the model of these rules. Thus, the discussions in the doctrine regarding the strengths and weaknesses of Book X are revealed, the sources of inspiration of the DCFR authors are analyzed and the way in which the institution of "fiducia" in the Civil Code of the Republic of Moldova follows the DCFR trust model is presented. Some comparative observations are also made with reference to the "fiducia" in the Romanian Civil Code.

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Substantial and procedural rules in the perspective of Directive no. 2019/1023 of the European Parliament and of the Council on preventive restructuring frameworks

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

Since 2011, a series of measures have been adopted by European Union, with the initial purpose to harmonizing of the very specific aspects of substantial law of insolvency, including restructuring, but also regarding the company law. The enforcement of Regulation (EU) 2015/848 on insolvency proceedings aimed solving the conflicts of jurisdiction in cross-border insolvency proceedings and ensuring the recognition of insolvency decisions on the territory of the Union. However, the Regulation did not seek to harmonize the substantial law of insolvency in the Member States. Even though in some Member States, including our country, the Commission's Recommendation was received as a useful proposal to undertake insolvency reforms (adoption of Law 85/2014 regarding the insolvency and insolvency prevention procedures in Romania), it did not succeed in generating uniform changes in all Member States to facilitate the rescue of companies in financial difficulty and to enable entrepreneurs to benefit from a second chance. The Recommendation did not have the expected effects because its partial implementation, even at the level of countries where real reforms have been made regarding the insolvency law. In this context, this study aims at an analysis of insolvency prevention procedures in our country, reported to the Directive of the European Parliament and of the Council, on preventive restructuring frameworks.

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