The Impact of CJEU Case Law on the National Rules of Alternative Tourism

Author(s): Carmen Tamara Ungureanu / Language(s): English Issue: 3/2024

The alternative tourism has a disturbing effect, mainly, on commercial competition between traditional tourism service providers and those from alternative tourism, on the taxation of income from alternative tourism, on the protection of service users. Many tourist cities are experiencing a housing crisis because of the homeowners opting for short-term rentals rather than long-term ones. Legislative responses do not usually go beyond the adoption of local rules requiring authorizations before providing such services. In the connected cases C724/18 and C727/18 (Cali Apartments, HX v. Procureur général près la cour d'appel de Paris, Ville de Paris), the CJEU had the opportunity to rule on whether the authorization of the alternative tourism services provision is compatible with EU legislation. It was determined that a national law establishing a regime that requires prior authorization for short-term rental activities, provided that the rules are justified by an imperative public interest, is not incompatible with the EU Services Directive (2006/123). By passing the Order of the Minister of Entrepreneurship and Tourism no. 510 of February 22, 2022, our national legislator took one step farther, adopting a national authorization system. According to this order, all persons offering short term rental services (including natural persons) are economic operators/professionals, who are required to get a classification certificate from the central public authority responsible in the field of tourism. The inclusion of the service provider in the category of professionals represents an approach that protects the general interest, respects the principles of fairness and nondiscrimination, and gives back to the consumer of such services the guarantee of his/her protection.

Impactul cauzei Elite Taxi c Uber Spain (C434/15) asupra reglementării serviciilor de ridesharing în Uniunea Europeană: Studiu de caz Uber în România, Finlanda şi Cehia

Author(s): Sebastian Antoce / Language(s): Romanian Issue: 3/2024

The study presents a comparative analysis of regulatory responses to Uber's ridesharing services in Romania, Finland, and the Czech Republic, following the ECJ decision C434/15. It explores the nuanced approaches undertaken by each country, from Romania's strict regulations to Finland's more liberalized stance, and the Czech Republic's intermediary model. Throughout the analysis, the study discusses the concept of influence, particularly the ECJ's role in shaping these national regulatory frameworks. Despite differences, all responses aim to strike a balance between fostering innovation and addressing concerns related to fair competition and consumer rights. This study offers insights into the diverse regulatory landscapes within the EU and their implications for the future of ridesharing platforms like Uber.

Influenţa jurisprudenţei Curţii de Justiţie a Uniunii Europene asupra impozitării veniturilor obţinute din exploatarea unor drepturi de proprietate intelectuală

Author(s): Andreea Iuliana Prisacariu / Language(s): Romanian Issue: 3/2024

The case law of the CJEU impacts and influences national law through the mandatory nature of the judgments pronounced by the Union court. In the field of taxing income derived from the exploitation of creative activities, questions concerning the incidence of valueadded tax (VAT) have generated an extensive case law of the Union court. The questions addressed to the Court have focused on: analyzing hypotheses in terms of the cumulative fulfillment of conditions determining the incidence of VAT, the continuous and independent conduct of an economic activity, the qualification of specific situations as the provision of services within the meaning of the VAT Directive, the taxable status of collective management organizations, and individual cases where the special regime applicable to secondhand goods, artworks, antiques, and collectibles may or may not be applicable. In the current research endeavor, we aim to map out the aspects where the case law of the Court of Justice of the European Union has impacted national law regarding valueadded tax, specifically the special regime applicable to secondhand goods, artworks, antiques, and collectibles

Influenţa jurisprudenţei CtEDO asupra legislaţiilor naţionale privind protecţia penală a autorităţii

Author(s): Andrei Năstase / Language(s): Romanian Issue: 3/2024

Civil servants represent the key element of public administration, having specific duties and responsibilities. They must have the necessary skills and the appropriate legal and material support to properly perform their duties. In order to fulfil the duties conferred by law, in certain circumstances, criminal protection of public authority and exponents thereof may be involved. The article mainly focuses on the analysis of the caselaw of the European Court of Human Rights and other international judicial organisations regarding acts of violence against authorities and the way they were treated. Through a perspective focused on the respect of human rights, public office and the phenomenon of assault of a public official are explored by highlighting the importance of respecting those rights in relation with the exponents of public authorities. The impact of these judgments on national legislation, the protection of individual rights and the balance between the criminal protection of the authority and freedom of expression have been also assessed.

Influenţa jurisprudenţei europene asupra cadrului autohton al măsurilor preventive

Author(s): Bogdan Trofin,Alexandru-Cristian Adochiței / Language(s): Romanian Issue: 3/2024

In judicial practice, criminal preventive measures attract attention that could be used for better purposes, moving away from their complementary role in per se criminal proceedings and deepening the sensitive border crack between private and societal interests. The current Code of Criminal Proceedure establish a series of criteria that must be observed by the judge, criteria developed over a decade of national jurisprudence and augmented by the supervision of the Council of Europe and European Union judicial institutions. The study hereby analyzes these criteria and follows up with a few reasonable conclusions, observing the balance between the fracture of contemporary jus puniendi: individual freedom and public security. The risk of automatic judicial sentencing regarding preventive measures is a concrete and current phenomenon exposing Romania to breaches of conventional rights. Obviously, these conclusions can be challenged using the same reasoning applied to judicial rulings: subjectivity, discretionary power and unpredictibility.

Principiul protecţiei încrederii legitime. Proiecţii în jurisprudenţa fiscală naţională

Author(s): Irina Galan / Language(s): Romanian Issue: 3/2024

This research aims to analyze the correlation between the EU principle of the protection of legitimate expectations and the national tax law. The purpose of this study is to identify the manner in which the principle of the protection of legitimate expectations is perceived in national law and its field of application. Starting from the EU origin of this principle of law, our purpose is to outline its incidence in national law, considering the case law of the courts in fiscal matters.

Mitior lex şi iluzia justei interpretări a atingerilor aduse intereselor financiare ale Uniunii Europene

Author(s): Laura Elena Ionașcu (căs. Postolache),Bianca-Maria Rusu (căs. Despa) / Language(s): Romanian Issue: 3/2024

This study aims to present an analysis over the effects of the prescription of criminal liability in cases concerning the offenses against the financial interests of the European Union, in light of the divergent interpretations outlined in national and European case law. In his quality as a protector of domestic law, as well as first magistrate in community law, the national judge is called upon to identify, through means of interpretation, a fair balance between the supremacy principle within European law and the internal standard of protection of fundamental rights. In order to prevent the establishment, through jurisprudential means and under the pretext of a legislative void, of a general standard of impunity, the latter risks decisively contributing to the erosion of the mitior lex principle. Within these limits, we inquire whether prescription further represents a real guarantee of the right to a fair trial.

Pomiędzy ustnością a pisemnością rozprawy – charakterystyka, istota i cele załącznika do protokołu w sprawach pracowniczych

Author(s): Michał Matuszak / Language(s): Polish Issue: 22/2024

In recent years, more and more employee cases have been brought to court. The proceedings are becoming more formalized and complicated. Legal dispute parties have numerous tools at their disposal that can be used to obtain a result, including the institution of an appendix to the minutes. This issue has not been analyzed very often by the doctrine in the past, so there is room for consideration. The article presents the appendix to the minutes from a practical perspective, and indicates the opportunities and difficulties that are directly and indirectly related to it.

СТАНДАРТИ НА ДОКАЗВАНЕ В БЪЛГАРСКИЯ НАКАЗАТЕЛЕН ПРОЦЕС

Author(s): Gergana Marinova / Language(s): Bulgarian Issue: XXIII/2024

The study examines the notion ‘standards of proof’ and the content of the different standards, established in the Bulgarian Criminal Procedure Code.

ПРОЦЕСУАЛНИТЕ РЕШЕНИЯ ПРИ УРЕДБАТА НА ДЕЙСТВАЩИЯ ГПК

Author(s): Petar Georgiev Bonchovski / Language(s): Bulgarian Issue: XXIII/2024

The problems of the non bis in idem /res iudicata rule are central for the theory and practice of civil procedure. Bearing this in mind, it is to be concluded that issues concerning the finality of the decisions/orders of the court aimed to decide upon the admissibility of the lawsuits are regulated fragmentarily and incoherently. This is due to the fact that in the national doctrine and practice is applied the view that res iudicata relates solely to judgments on the subject-matter.

СЪЩНОСТ НА ДИФЕРЕНЦИАЦИЯТА НА НАКАЗАТЕЛНИЯ ПРОЦЕС

Author(s): Yanko Roychev / Language(s): Bulgarian Issue: XXIII/2024

The relation of differentiation to the concepts of “criminal process”, “criminal procedure” and “criminal procedural form” has been examined. A significant number of theoretical definitions of differentiation of criminal procedure have been systematised, summarised and studied. Emphasis has been placed on issues related to the normative technique and the establishment of particular sets of norms providing for differentiated criminal procedural forms as distinct structural units of the Criminal Procedure Code. Based on the conducted analysis, a scientific definition of differentiation of criminal procedure has been proposed.

ПРЕКРАТЯВАНЕ НА ИЗПЪЛНИТЕЛНОТО ПРОИЗВОДСТВО НА ОСНОВАНИЕ ЧЛ. 433, АЛ. 1, Т. 1 ГПК

Author(s): Petar Topurov / Language(s): Bulgarian Issue: XXIII/2024

The publication analyzes the grounds for termination of the enforcement proceedings under Art. 433, para. 1, item 1 of the Civil Procedure Code (CPC). Within the framework of the article, the general prerequisites for the application of Art. 433, para. 1, item 1 CPC and the separate hypotheses set out in the law are analyzed – payment or deposit of the amount due under a writ of execution before the initiation of the enforcement proceedings and submission of any of the documents specified in the law, from which it can be established that the debtor has paid or deposited the amount on the writ of execution – receipt from the creditor, receipt from the post office, letter from the bank. The ground under Art. 433, para. 1, item 1 CPC is defined as a ground that is related to thwarting the creditor‘s ability to obtain forced satisfaction of his right. It was concluded that the hypothesis of the examined legal norm does not overlap in any case with the hypothesis of the creditor‘s delay under the Law on Obligations and Contracts and that the basis under Art. 433, para. 1, item 1 CPC isn‘t always related to repayment of the enforceable right, but to such behavior of the debtor, which creates an objective possibility for the future satisfaction of the creditor. A recommendation was formulated for an explicit settlement of the bailiff‘s obligation to allow the creditor to check whether the document submitted by the debtor corresponds to the actual legal situation.

Religijne wychowanie dziecka jako przedmiot rozstrzyganego sądownie sporu pomiędzy rodzicami

Author(s): Grzegorz Maroń / Language(s): Polish Issue: 27/2024

The article presents a synthesis and review of the criteria indicated in legal literature and used in the case law of various countries for the judicial resolution of parents’ disputes regarding the religious upbringing of their children. The collision of parents’ rights and freedoms (the right to raise a child in accordance with the parents’ own beliefs, the right to privacy and family life, and freedom of conscience and religion), the contentious understanding of the child’s best interests and the court-binding principle of religious impartiality (neutrality) of public authorities make the given category of cases particularly difficult to adjudicate. This complexity means that legal provisions can guide and determine judicial practice to a limited extent without abolishing the need for a contextual approach to a specific case by the court acting within the limits of considerable discretion. When resolving parental disputes, courts should try to limit the mother’s or father’s right to raise the child in accordance with personal beliefs to the smallest possible extent but in a way that is still adequate for the child’s welfare, understood in terms of their protection against physical and psychological harm but fundamentally not in terms of future prosperity.

On the separation of powers and the separation of state and Church: Remarks on the resignation of the Hungarian president

Author(s): Lóránt Csink / Language(s): English Issue: 27/2024

The resignation of the Hungarian president in February 2024 not only proved to be a political issue, but also raised important questions of constitutional law. The event raised fundamental questions about issues such as parliamentarism, the separation of powers, political responsibility, and the separation of church and state. This paper presents a theoretic analysis, examining why reality seems to differ from constitutional law textbooks. Constitutionalists have generally interpreted the separation of church and state in an institutional way, considering the relationship between the various “structures”. In this paper, however, a different aspect of the topic has emerged, namely the intertwining of church and state positions. How should situations be handled when church leaders are involved in politics? This paper concludes that the relationship between the president and the government has changed drastically, even though the text of the constitution remains unaltered. This change has introduced the political responsibility of the president, an aspect that previously seemed unthinkable. Another aspect relates to the separation of church and state. It has become evident that this relationship is not just a structural matter, but one that also involves personal relationships.

Tryb nowelizacji rozporządzenia Ministra Edukacji Narodowej z dnia 14 kwietnia 1992 r. w sprawie warunków i sposobu organizowania nauki religii w publicznych przedszkolach i szkołach

Author(s): Piotr Stanisz,Dariusz Walencik / Language(s): Polish Issue: 27/2024

On 26 July 2024, the Minister of Education amended the regulation on the conditions and manner of organising religious instruction in public kindergartens and schools, thereby modifying, to the detriment of religious organisations, the principles that have governed the organisation of religious instruction within the Polish educational system for over 30 years. This amendment was met with public criticism from the Catholic Church and churches affiliated with the Polish Ecumenical Council. However, their objections concerned not only the content of the regulation but also the procedure adopted for its enactment. In the opinions submitted during the public consultations, it was repeatedly claimed that the procedure failed to meet the requirements outlined in Article 12(2) of the Act of 7 September 1991 on the school education system. This article authorises the minister to issue such regulations but obliges him to act “in agreement with the authorities of the Catholic Church and the Polish Autocephalous Orthodox Church and other churches and religious organizations.” The present paper aims to discuss this allegation and assess its validity by comparing a detailed analysis of the statutory delegation with the actual process of amending the regulation. The analysis concludes that the amendment of 26 July 2024 was adopted in violation of the procedure prescribed by the statutory provision. As it is procedurally defective, it should be removed from the body of universally binding laws in the Republic of Poland.

FOLMAN VE MAHMOUDİAN DAVALARI İLE İRAN BANKALARINA (SİNA, MELLAT, SADERAT) İLİŞKİN GÜVENLİK KONSEYİ KARARLARININ AVRUPA ADALET DİVANI’NDA YARGISAL DENETİMİ

Author(s): Vahid BAGALIZADEH NOSHAHR / Language(s): Turkish Issue: 64/2024

The European Court of Justice (ECJ) entered a new era with its Kadi Decision in 2008. In this case, the ECJ examined the sanction measures taken by the European Union Council for the implementation of Security Council decisions. This examination is an indication that the ECJ has begun to examine the actions of the Security Council, albeit indirectly, judicially. Other international courts have also had the opportunity to express their opinions on the judicial review of Security Council decisions. This study examines the cases filed by Iranian banks (Saderat, Mellat, Sinai) and Folmen and Mahmoudian against European Council decisions within the scope of the implementation of United Nations Security Council sanctions through the ECJ. These cases indicate that a practice is developing in the international arena where Security Council decisions can be reviewed by international courts.

ICC și principiul complementarității. Studiu de Caz: Mali 2012

Author(s): Sebastian BĂLĂNICĂ / Language(s): Romanian Issue: 19/2022

The objective of this article is to present the functionality of the relationship between the International Criminal Court and the Principle of Complementarity, stated in Article 17 of the Rome Statute. The article will begin by providing an introduction, the overview of the topic proposed for analysis. The next section will deal with the issue of the Principle of Complementarity, focusing on the theoretical constituent elements of the principle. The second section of the article will analyze the applicability of the Principle of Complementarity, through the discussion of three relevant cases of the International Criminal Court. The third section will present the case study chosen by the article to demonstrate the functionality of the Principle of Complementarity, namely the investigation and subsequent trials, which the International Criminal Court undertook in Mali in 2012. The penultimate section will analyze the challenges, applied or theoretical, with which the International Criminal Court faces when it comes to the Principle of Complementarity. In the last section, the concluding one, the article will present the relevant points that emerge from this analysis, of the functionality, at the relational level, between the International Criminal Court and the Principle of Complementarity.

GLOSA DO WYROKU SĄDU NAJWYŻSZEGO Z DNIA 20 CZERWCA 2023 R., I KS 15/23

Author(s): Adrianna Wączek / Language(s): Polish Issue: 4/2024

This study focuses on the issue of evidentiary proceedings before the appellate court inthe Polish criminal procedure. As a result of the considerations carried out, the author expressesapproval of the position of the Supreme Court, in the light of which the appellate court, in the event of finding specific content deficiencies in part of personal and non-personal evidence,is not only authorized, but also obliged to conduct evidentiary proceedings autonomously.The provision of Article 452 of the Code of Criminal Procedure is the fundamental criterionfor assessing the validity of the view expressed in this way. The application of the historicalmethod in the process of its interpretation means that the circumstance of repealing thefirst editorial unit of Article 452 of the Code of Criminal Procedure, in the light of which“the appellate court may not conduct evidentiary proceedings as to the substance of the case”,influenced the establishment of the principle of conducting evidence as to the substance of thecase by the appellate court in this way. The argumentation in this respect is enriched by thejoint interpretation of Article 427 § 3 of the Code of Criminal Procedure in connection withArticle 452 § 2 and 3 of the Code of Criminal Procedure.

Digital Transformation of Supreme Audit Institution (SAI)—A Mini-Review on the Case of Romanian Court of Accounts (RCA)

Author(s): Ionel Bostan / Language(s): English Issue: 1/2024

The present endeavor compellingly addresses the issue of the necessity and importance of IT support for the control and audit activities of the Romanian Court of Accounts (RCA), making reference to the institution's operations in the context of the digitization of central public administration and the implications for the conducted control/audit. Subsequently, we highlight the most significant strategic elements recently established regarding the digitization of the RCA' activities, as well as the potential advantages. The final part is dedicated to conclusions, the limitations of our research, and future research directions, focusing on addressing issues that have been inadequately addressed so far. The paper is intended for specialists in the field, audit professionals, the academic community, etc. In addressing the topic, we considered relevant literature, including our previous research, as well as bibliographic material provided by the RCA, indicated in the „References” section.

Affaire Amarandei et Autres c. Roumanie

Author(s): / Language(s): French Issue: 3/2024