Administrative Law and Public Administration in the Global Social System

Author(s): Oleg Zaichuk,Yuri Zaichuck,Harsh Pathak,Iulian Nedelcu,Nicolae-Horia Ţiţ,Dumitru Ştefan Coman,Raluca Laura Dornean Păunescu,George-Bogdan Ionita,Dan Constantin Mâță,Alin Trailescu,Angelica Roşu,Kole Krasniqi,Olga Sovová,Zdeněk Fiala,Ioana Cristina Neagoe-Diniță,Raluca Anderco,Elvira Titko,Ilona Kurovska,Maria Violeta Duca,Sandra Gradinaru,Cristina Elena Popa Tache,Raluca ONUFREICIUC,Valentina Cornea,Mihaela-Emilia Marica,Cristina Gavriloiu,Ioana Nely Militaru / Language(s): English / Publication Year: 2021

This volume contains the scientific papers presented at the 3rd International Conference “Contemporary Challenges in Administrative Law from an Interdisciplinary Perspective” that was held on 9 October 2020 online on Zoom. The conference is organized every year by the Society of Juridical and Administrative Sciences together with the Faculty of Law of the Bucharest University of Economic Studies. More information about the conference can be found on the official website: www.alpaconference.ro. The scientific studies included in this volume are grouped into two chapters: Administrative Law in the Global Social System and Public Administration in the Global Social System. This volume is aimed at practitioners, researchers, students and PhD candidates in juridical and administrative sciences, who are interested in recent developments and prospects for development in the field of administrative law and public administration at international and national level.

ADVISORY OPINION AND PRELIMINARY RULING PROCEDURE – A COMPARATIVE AND CONTEXTUAL NOTE

Author(s): Marija Daka / Language(s): English / Issue: 3-4/2020

The apropos of this article is Additional Protocol No. 16 complementing to the European Convention on Protection of Human Rights and Fundamental Freedoms that recently came into force. This paper presents the main common and differing elements of two non-contentious procedures before supranational courts. The advisory opinion procedure of European Court of Human Rights (ECtHR) and the preliminary ruling procedure marked by unprecedented success before the Court of Justice of the European Union, -as at least prima facie- similar types of proceedings. The paper also analyses cross-cutting issues arising from the application of both procedures in the same case arising before designated national court or tribunal. Although the purpose of the advisory opinion is to achieve and maintain efficiency bearing in mind that the ECtHR is victim of its own success the paper outlines some of serious doubts and assumptions whether in current format and in foreseeable future this purpose will be achieved. Furthermore, the paper also takes a closer look at the procedural aspects of the first advisory opinion delivered by ECtHR given its importance as we can draw at least some conclusions on the functioning of this type of procedure. Lastly, the paper -in comparative spirit- also refers to the relationship of the ECHR and the European Union Law as the two main trustees within the European multilevel system of rights protection.

Amendments to transfer pricing regulations since 2019 – selected issues

Author(s): Miłosz Kłosowiak / Language(s): English / Issue: 28 (4)/2019

The aim of this paper is to describe the changes in the law that have taken place in the area of transfer pricing regulations starting 1 January 2019. First, the essence of the legal structure of transfer prices is presented. Then, the changes in the reclassification and omission of transactions for the purpose of transfer pricing, the catalogue of transfer price estimation and verification methods, and simplified settlement rules and changes in transfer pricing documentation are specified. The research method used in this research consists in analysis of legal acts using the literature on the subject. Based on the analysis, it may be concluded that, on the one hand, changes in the law were aimed at removing administrative burdens from taxpayers which the legislature considered unnecessary and, on the other hand, the scope of powers of tax authorities was extended and the potential severity of tax sanctions was increased.

An Outline on the Right to Water in the EU System

Author(s): Francesco Anastasi / Language(s): English / Issue: 1/2020

Water is a fundamental resource for the birth, development of human civilization. The right to water is one of those rights that transcends and embraces the whole history of man and society. However, in our contemporary society the right to water seems something new, almost a post-modern innovation. Research at European level has taken up the challenge and the scientific water community is committed to rapidly developing and transferring management solutions that make our cities more liveable and the negative pressures on the availability of good quality water for uses increasingly irrelevant potable and civil. In this context it is important to develop a regulatory and legislative approach that does not settle for damage-repair dynamics but an approach aimed at prevention and planning directed towards two contexts: procurement and recycling-reuse.

BETWEEN JUDICIAL REVIEW AND THE EXECUTIVE - THE PROBLEM OF THE SEPARATION OF POWERS IN COMPARATIVE PERSPECTIVE

Author(s): Robert Siuciński / Language(s): English / Issue: 2/2020

Judicial review of the executive is an essential element of democracy. It ensures the legality of administration. It is obvious that for adequate protection of rights of individuals, judicial review should be effective. There are two models of judicial review: the cassation and the merit one. The first of them is based on assumptions derived from the Austro-Hungarian regulations dating back to the nineteenth century. It assumes that the competence of the administrative court is only to issue two types of rulings. Some European countries uses the merit review elements were introducted into the proceeding before the administrative court. This model of judicial review, which is characteristic for French solutions, gives to administrative courts the possibility to ingeration in administrative action. It seems interesting to consider which of these models of judicial review is more effective when it comes to protecting the rights ensured by the proper fulfilment of judgements and what are the advantages and disadvantages of both systems in the light of separation of powers.

Born to Polish same-sex parents – a case study. A human rights perspective on birth certificate transcriptions

Author(s): Karolina Mendecka / Language(s): English / Issue: 32 (4)/2020

This article is a case study regarding a recent resolution of the Supreme Administrative Court in Poland (the SAC). The Court found that a transcription of a foreign birth certificate, in which two people of the same sex are registered as parents, is not allowed under the Polish law and is contrary to ordre public. This paper focuses primarily on two aspects regarding the resolution. First, it addresses whether the best interest of the child principle was given due consideration. Second, it analyses whether the possible discriminatory treatment on the grounds of sexual orientation of the parents was adequately examined, with particular reference to the jurisprudence of the European Court of Human Rights (the ECtHR). This paper is divided into four parts. The background information pertaining to the issues at stake as well as the case itself are addressed in Part 1. Part 2 briefly summarises the SAC resolution and the judgement. Part 3 concentrates on deconstructing the best interest principle as an international and national standard. In Part 4 the ECtHR case-law is examined in order to provide a human rights perspective on the matter. This article concentrates on providing the perspective of a child and on the jurisprudence of the European Court of Human Rights, as it is a well-recognised international law-applying body that raises the threshold and quality of respecting human rights in the European continent. The final part summarises the paper and presents the conclusions. It is going to be demonstrated that in light of the ECtHR jurisprudence, the SAC failed to adequately analyse that a difference in treatment of same-sex parents in comparison to other unmarried couples is reasonable, pursues a legitimate aim and that the treatment is proportional. Moreover, it will be argued that the SAC unsuccessfully demonstrated why primacy had been granted to the interest of the state and public order, instead of that of a child. The main goal of this paper is to highlight the importance of endorsing the child’s perspective and the compelling need to carefully consider the child’s best interest – in each and every case that involves their fate. In order to achieve the purpose of this study, the research is based on the evaluation of the universal human rights documents relevant to the topic, as well as the analysis of the ECtHR jurisprudence related to the subject.

Breastfeeding as a (Non)Exclusive Right of Women in Labor Relations – the European Approach

Author(s): Juraj Hamuľák,Denisa Nevická / Language(s): English / Issue: 1/2020

The authors of presented article deal with the issue of breastfeeding in labor relations. The current Slovak legislation allows only women to take a breastfeeding break. The authors wonder whether the regulation in question is still efficient in the 21st century and does not cause problems rather than benefits in practice. In foreign legislation, it is standard that a man, the child’s father, can under certain conditions take a breastfeeding break. The article analyzes Slovak legal norms and compares them with Spanish, Italian and Portuguese legal regulations as well as the chosen decision of the Court of Justice of the European Union regarding breastfeeding break. Methods of analysis, comparison and synthesis were used, which enabled the authors to form comprehensive conclusions as well as suggestions de lege ferenda. The authors’ opinion is, that the legal regulation of breastfeeding break in Slovakia needs to be amended in order to provide a father with the breastfeeding break under certain circumstances.

Captatoria conditio: meaning and admissibility in the light of freedom of testation. Analysis of selected legislations of Western European countries.

Author(s): Anna Paluch / Language(s): English / Issue: 32 (4)/2020

The purpose of this paper is the presentation and analysis of the testamentary disposition, present in some foreign legal orders, known by the Latin name captatoria conditio, being a particular type of conditional appointment to inheritance. The analysis includes functions of captatoria conditio and axiological doubts related to it. In the research, the examination of applicable laws and the comparative methods were used, which allowed the analysis of the form and functions of captatoria conditio and its prohibition in foreign legal orders. Conducted in such a way, the research led to the conclusion that particular systems of the law of succession include different regulations regarding the validity and effectiveness of captatoria conditio. On the basis of the analysis of the functions of captatoria conditio, this paper presents the thesis that in the case of such a disposition mortis causa there is not any excessive interference with the autonomy of the beneficiary mortis causa because he or she is always entitled to reject the inheritance. This conclusion speaks for the admissibility of captatoria conditio if the conditional appointment to inheritance is possible in a given legal system. Axiological doubts do not give arguments for the prohibition of captatoria conditio.

Child Marriage and the Failure of International Law: a Comparison of American, Indian, and Canadian Domestic Policies

Author(s): Marcy J. Robles / Language(s): English / Issue: 1/2018

What is child marriage? The recognized definition does not adequately encompass the experience of child marriage. Child marriage stems from many elements, including coercion, force, and economic deprivation. Furthermore, child marriages have a long-term effect on child spouses, ranging from psychological damage, to health complications, to education and personal limitations. This paper argues that current international treaties and agreements do not specifically or directly address the issue of child marriage. Of those that make an attempt to, fail as a result of lack of enforcement or too much deference to religion as an exception of child marriage prohibition. In comparing three countries – The United States, India, and Canada, it is clear that Canadian policies work best and should be implemented on a larger scale. Current U.S. policies do not fully combat the child marriage phenomena, and although it is ahead of India in this area, it still has a long way to go in terms of development.

Collective Actions for Infringement of Competition Law

Author(s): Ondrej Dostál / Language(s): English / Issue: 1/2020

This article deals with the legal instrument of collective actions for competition law infringements. The text touches upon the pros but also cons of this concept interpreted usually as the boost needed for private enforcement of competition law, yet bringing also risks of selective protection of competition and even bullying competitors. The article provides illustration of the struggle between the effort to make collective actions and thus the private enforcement of competition law in general more attractive in the light of the blooming U.S. model and the concurrent legislators´ will to refrain from the most negative features of the model mentioned. An insight into the hitherto soft and hard law initiatives in the area of collective actions in the EU and the Czech Republic and their interplay with competition law is offered.

COMPETITION LAW IN REPUBLIC OF NORTH MACEDONIA - 20 YEARS OF COMPETITION LAW IN REPUBLIC OF NORTH MACEDONIA

Author(s): Borka Tushevska / Language(s): English / Issue: 3-4/2020

This article examines the laws in the Republic of North Macedonia (hereinafter RNM), that prohibit agreements among competitors to fix prices, divide markets or in other ways avoid or undermine market competition, otherwise known as competition laws. It explores the conditions and challenges in implementing Macedonian competition laws, as well as the role of the state (regulatory) authorities, the degree to which the competition laws comply with the European Union’s competition laws, and finally, the degree to which competition laws are effective and beneficial for the Macedonian economy. Properly implemented competition laws hold much promise. The enactment of competition laws is fundamental for the benefits of a market economy to be achieved. This encompasses economic growth, innovation, lower prices and higher quality of goods and services. The enactment of competition laws since the independence of the Republic of Macedonia is furthermore important. This is due to Macedonian obligations to meet the requirements for EU accession. Additionally, adoption of competition law and competition by-laws in RNM, positively affects on the work of authorities for the protection of competition. What is most important, this competition legal regime represents a base for reducing the abuse of the state authorities and theirs incompetent behaviors. At the end, the article contains conclusions, opinions and suggestions from the conducted research, which hopefully will be beneficial for the relevant auditorium. The analytical-descriptive method, the comparative method, the method of analysis and synthesis, and the method of induction and deduction were used to analyze the subject matter for this article.

Considerații de drept comparat privind regimul juridic al mărcilor – S.U.A. versus România

Author(s): Ruxandra Vișoiu / Language(s): Romanian / Issue: 02/2021

Although in our daily activity we work mainly in the Romanian law (or, at most, the European law), we are firm supporters of the need to broaden our horizons and to understand the foreign legal systems in order to enrich our knowledge, but also to grow as professionals of law; in particular, when we refer to countries such as the United States, an important economic power, with a solid system of law, from which we can draw the inspiration ourselves. This type of „legal inspiration” helps us a lot to understand other systems of law and to collaborate in cases such as the enforcement of foreign legal decisions, the application of foreign law in local files, helping companies to develop their businesses also in other parts than the country of origin – including Romania. In addition, the Romanian law has been substantially improved over time, having as source of inspiration the legal provisions from other countries. The trademark law – the need to explore and compare the systems of Romanian and American law – resulted, first of all, from the practical need, but also from the desire for knowledge. Although at first glance it looks very different, the U.S. trademark system is very similar to the Romanian one. There are the aspects that could be improved if we found a way to include them in our own legal system. There are some similarities, but also differences, between the regulation of trademarks in the Romanian and American legal systems, and we have tried to highlight some of them. Primo Angeli, an expert in brands, mentioned: „A great trademark is appropriate, dynamic, distinctive, memorable and unique.” Thus, whether we call it brand or trademark, we are not as different as we might think.

Consistency of the European project PEICL with the Polish Civil Code in view of art. 807

Author(s): Dariusz Fuchs / Language(s): English / Issue: 28 (4)/2019

This paper contains an analysis of the meaning of art. 807 of the Polish Civil Code in the context of the possibility of applying uniform international law to an insurance contract. The essence of the Project on Insurance Contract Law (PEICL) is presented in the text and a discussion about international reinsurance contract law (PRICL) is included. Attention is drawn to the current shortcomings of the content of art. 807 of the Civil Code, which is why the author also formulates a de lege ferenda conclusion regarding the content of art. 807 of the Civil Code to the concept of allowing an indication of substantive law prior to its latest amendment, with appropriate clarification. The paper also presents the possibilities of a codex interpretation of the current regulation of an insurance contract.

CONSTITUTIONAL COURT OF ROMANIA AND OF THE REPUBLIC OF MOLDOVA CASE LAW ABOUT THE RIGHT OF A PERSON AGGRIEVED BY A PUBLIC AUTHORITY

Author(s): Cătălin-Radu Pavel / Language(s): English / Issue: 1/2021

The present article aims to present selective aspects regarding the Constitutional Court of Romania and of the Republic of Moldova case law about the right of a person aggrieved by a public authority. The right of a person aggrieved by a public authority is constitutionally guaranteed in Romania and in the Republic of Moldova. The constitutional guarantee of the right of a person aggrieved by a public authority represents the constitutional legal basis of assuming the responsibility of the public authorities before the citizen, respectively before the injured person in a right or in a legitimate interest, having as consequence his legal protection, the latter, by cancelling the disposition and repairing the damages. The methods used in drawing up this study are: the comparative method, the historical method, the logical method, the sociological method and the quantitative method. The results of this research have highlighted selective aspects regarding the Constitutional Court of Romania and of the Republic of Moldova case law about the right of a person aggrieved by a public authority.

Constructivism as a chance to break deadlock in interdisciplinary research combining international law and international relations

Author(s): Tadeusz Kolodziej / Language(s): English / Issue: 29 (1)/2020

The purpose of this work is to prove that the theory of constructivism can be an escape from the trap of the constant struggle for influence, which now includes interdisciplinary research combining international law and international relations. For this purpose, the work is divided into three sections. In the first one, the author briefly presents the genesis of interdisciplinary research on international law and international relations. In the second part, the sceptical approach of international law researchers towards combined interdisciplinary research is presented. Also in this section, the theory of constructivism is characterised as a potential area for mutual cooperation between international law and international relations. In the final part, based on the relationship between international humanitarian law and the features of modern weapons, the author tries to prove that the theory of constructivism is perfectly suited to the analysis of contemporary relations between international law and the policies of nations on the international stage.

Correlation of the International and National Institutional and Legal Regulations of Applying Some Aspects of Technical Barriers in Practices of Ukraine and the European Union

Author(s): Viktoriia О. Holubieva,Viktor Akulenko / Language(s): English / Issue: 1/2020

This study contains the attempt of the comprehensive approach to issues of the correlation of concepts, provisions and obligations of States and their associations with respect to technical barriers to trade (in particular, technical regulations, standardization, certification, and accreditation, conformity assessment procedures and market surveillance systems) enshrined in international world treaties (in particular, the Agreement on Technical Barriers to Trade (TBT), which is binding for Member-States in the system of the WTO treaties) and regional multilateral and bilateral treaties (for example, the Association Agreement between Ukraine, from one part, and the European Union, European Atomic Energy Community, and their Member-States, from the other part, dd. June 27, 2014). The particular attention is paid to the national, including unified (or that being in the process of unification/adaptation), institutional and legal provision in this area, most notably in Ukraine and the European Union (first of all, the Regulation of the European Parliament and of the Council No. 765/2008/ EC and Decision of the European Parliament and of the Council No. 768/2008/EC of 9 July 2008). The performance by Ukraine at the domestic/ national level of its international obligations in accordance with the Association Agreement 2014 has been separately considered in terms of technical regulations and standardization, accreditation, conformity assessment procedures and market surveillance systems and their implementation (adaptation, entrenchment) in relevant regulatory legal, and organizational and institutional forms.

DIJALOZI IZMEĐU USTAVNIH SUDOVA DRŽAVA ČLANICA EUROPSKE UNIJE I SUDA EUROPSKE UNIJE

Author(s): Stjepan Novak / Language(s): Croatian / Issue: 3-4/2020

In the context of the discourse on constitutional identities, national constitutional courts enter into various forms of dialogue with the Court of Justice of the EU. After having engaged for an extended period of time in exclusively indirect dialogues that were more or less successful and were realised through their own practices, national constitutional courts started making use of the possibility offered to them pursuant to Article 267 of the Treaty on the Functioning of the European Union, i.e., the preliminary ruling procedure. The paper aims to prove that the dialogues which constitutional courts engage in with the Court of Justice of the EU are the most successful forms of their communication. For that purpose the paper compares these dialogues with indirect forms of communication between constitutional courts and the Court of Justice of the EU. It is in this context that the paper, following introductory considerations in the second part, considers the concept of constitutional identity from the viewpoint of the Court of Justice of the EU and the viewpoint of national constitutional courts. The third part of the paper analyses different forms of indirect dialogue between constitutional courts and the Court of Justice of the EU and draws conclusions about their effectiveness. The fourth part analyses particular procedures instituted before the Court of Justice of the EU by constitutional courts and points out the pros and cons of these procedures. Finally, the paper concludes that the procedures instituted by national constitutional courts pursuant to Article 267 of the Treaty on the Functioning of the European Union are the most direct and the most efficient forms of their communication with this Court.

Forest Concession in Romania and Brazil

Author(s): Cătălina Georgeta Dinu / Language(s): English / Issue: 1/2021

The Romanian Forestry Code regulates the principle of conserving the biodiversity of forest ecosystems, by inserting sustainable management measures: the establishment of protected natural areas, ecological reconstruction, regeneration and forest care. The concession contract is not, in itself, a way of sustainable forest management, as is the case in other countries. Thus, the objective of this study is to analyze the legislation specific to the forestry field from the perspective of the concession contract, by identifying regulations that would be an example of good practice. In this sense, we have identified the regulations in Brazil, given the measures that this country has partially managed to implement for the protection of forest lands, as a model that will be followed in the near future, by the Romanian legislator. The comparative method of the legislation of the two countries aims to determine the deficiencies of this law from the perspective of the impact that the conclusion of a forest concession contract may have on the concessioned property itself, as well as the way in which the public interest is respected. The identification of sustainable management criteria, according to which the exploitation of public or private forest land is assigned, is an essential element to be taken into account in the case of a concession, in order to develop legislative proposals to improve the legal framework by which the principle of conserving the biodiversity of forest ecosystems should be applied. A particularly useful aspect for further research would be to address the issue in terms of international investment law.

Gard and Evans

A Reflection on What Might Happen in India

Author(s): Abhay Vaidya,Sourabhi Sahakari / Language(s): English / Publication Year: 0

Although Charlie Gard and Alfie Evans were treated in public hospitals where the costs of treatment were borne by the UK’s National Health Service (NHS), the management decisions were not influenced by cost implications, and health professionals acted in their patients’ best interests. By contrast, in a developing country such as India, very few government-funded hospitals match the resources of the NHS. Private healthcare is expensive, and socio-economic, cultural, religious, political and legal issues influence the treatment decisions. In this chapter, the authors analyse why the NHS is unique compared to developing countries such as India.

GPS Investigations under Constitution of Japan – Comparison with the U.S Cases.

Author(s): Yuichiro Tsuji / Language(s): English / Issue: 1/2018

This paper reviews GPS investigations in Japan and the United States. In 2017, the Japanese Supreme Court held that warrantless GPS search was illegal. The case reviewed in this article illustrates the boundary of permissible investigation using advanced technology and highlights the fact that rapidly developing technology challenges legal research. In the 2017 decision discussed in this paper, law enforcement challenged the permissible scope of investigating warrantless GPS searches; a challenge common in other countries, like the U.S. The U.S. Supreme Court has already decided this case in United States v. Jones decision in 2012. Both of Japanese and American decision takes similar reasoning for their decisions.