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Notion of Anticompetitive Agreement Challenged in Digital Environment

Author(s): Mária Terézia Patakyová / Language(s): English Issue: 1/2020

Prohibition of anti-competitive agreements pursuant to Article 101 TFEU and its counterparties in competition law of the EU member states is divided into three forms: agreements, concerted practices, decisions of association of undertakings. Each of them covers a different type of colluding and as such should cover a wide range, ideally all anticompetitive colluding. However, it has been recognised that certain potentially anti-competitive dealings are not covered by any of these forms. The very much discussed example is tacit collusion. This article explores these issues and it sets them into the digital environment. The question to be discussed here is whether the issues are deteriorating in digital environment. A supposed scenario is used to present problems of determination whether a dealing is an anticompetitive agreement.

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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.

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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.

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Реформування кримінальної відповідальності за незаконний обіг анатомічних матеріалів людини в умовах євроінтеграції України

Author(s): Serhii V. Grynchak,Alla A. Grynchak / Language(s): Ukrainian Issue: 159/2022

Transplant tourism is a negative consequence of the globalization of society. Trafficking in human organs has reached all countries and threatens their security. This international problem requires a response from states, their legislative institutions and international organizations. The purpose of this article is a comprehensive study and systematization of the norms of international law and national legislation, which determine the legal regime of the circulation of human anatomical materials, as well as the identification of shortcomings in the criminal-legal protection of the field of transplantology in Ukraine and the search for ways to improve domestic criminal legislation in the context of the European integration of our country. Various research methods were used to achieve this goal. In particular, the elements and features of the composition of criminal offenses of the current legislation and the relevant novels were analysed using the dialectical method of cognition. Thanks to the use of the historical method, a number of international legal acts have been established that prohibit the trade in human organs. The dogmatic method made it possible to reveal the actual content of legal norms that regulate the circulation of human anatomical materials. The system-structural method was used during the study of normative legal acts of a universal, regional and national nature. Using the comparative legal method, norms of international law and national legislation of Ukraine in the field of transplantology were compared. The paper proves that the most important international legal standard dedicated to the fight against the illegal circulation of human anatomical materials is the Council of Europe Convention against Trafficking in Organs, which provides for criminal law prohibitions that must be implemented by the participating states in their national legislation. All conventional prohibitions are combined into four related groups and compared with criminal offenses provided for by the Criminal Code of Ukraine. Novels of the draft criminal law, which provide for responsibility for illegal transplantation, trafficking in human organs and other illegal circulation of human anatomical materials, were also studied. A comprehensive analysis of the legal regime in the field of transplantology gave grounds for the conclusion of the need to ratify the Council of Europe Convention against trafficking in human organs on the way to the European integration of Ukraine. The research also established that some conventional prohibitions in the field of transplantology are at the same time types of corruption offenses, which are provided for in the current Criminal Code. This indicates the further need for a detailed analysis of such norms, establishing their features, interrelationship and correlation with the relevant provisions of the legislation of Ukraine.

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GARANCIJE I POVREDE PRAVA NA SUĐENJE U RAZUMNOM ROKU U SPOROVIMA ZA ZAŠTITU PRAVA IZ RADNOG ODNOSA

Author(s): Ivana Grubešić,Denis Martini / Language(s): Bosnian Issue: 29/2021

The paper begins by articulating the significance of the right to a trial within reasonable time which constitutes a fundamental right guaranteed by international conventions, constitutions and the laws. The protection of this right is among the core values of Bosnia and Herzegovina's constitutional order and it is therefore of critical importance to the citizens of Bosnia and Herzegovina and the state itself. The main part of the paper comprises the analysis of the right to trial within reasonable time in labor disputes, which includes an overview of the safeguards and infringements of this right. Special attention is given to the case law established by the Constitutional court of Bosnia and Herzegovina and the European Court of Human Rights. The aim of the paper is to clearly define this right within the framework of national and international law, which is a prerequisite to efficient protection thereof.

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ZAŠTITA POTROŠAČA KAO KORISNIKA FINANCIJSKIH USLUGA KROZ PRAVO NA ODUSTANAK OD UGOVORA O POTROŠAČKOM KREDITU U EUROPSKOJ UNIJI I BOSNI I HERCEGOVINI

Author(s): Irfan Osmanović / Language(s): Bosnian,Croatian,Serbian Issue: 8/2022

Financial, information and legal inferiority of consumers is the most evident in the contracting and repayment of consumer loans which are existential basis of many consumers in Bosnia and Herzegovina and the rest of the world. Consumer, in the state of financial difficulties caused by the sudden unemployment or similar event, finds himself in a financially difficult position which ''forces'' him to borrow, producing additional costs such as bank fees and interests. With this in mind, it is clear that the protection of consumers is necessary when consumers appear as users of financial services, through the special consumer rights regarding the consumer loans: the right to terminate the contract concluded for indefinite period, the right of withdrawal from the contract and the right to early repayment. The establishment and utilization of the right of withdrawal from the consumer credit will be the focus of this paper.

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LIBERTATEA DE GÂNDIRE ÎN SISTEMUL CONVENŢIEI (EUROPENE) PENTRU APĂRAREA DREPTURILOR OMULUI ŞI A LIBERTĂŢILOR FUNDAMENTALE. EVOLUŢII JURISPRUDENŢIALE

Author(s): Mihail Poalelungi,Sergiu Suvac / Language(s): Romanian Issue: 12/2022

Despite the fact that today universal and regional treaties expressly regulate freedom of thought, the process of realizing it in practice reveals multiple difficulties of a not necessarily legal nature. A considerable contribution to the consecration and development of freedom of thought is brought by the jurisprudential activity of the European Court of Human Rights. As a living, dynamic instrument, the European Convention on Human Rights easily adapts to new challenges. The jurisprudence of the European Court of Human Rights presents itself as a valuable source in order to understand the nature and content of the freedom intended to protect the forum internum. In this sense, we can affirm that the jurisprudential creation in this regard anticipates doctrinal works, essentially constituting a source of inspiration for doctrinaires in order to write scientific works, among which the present scientific approach is included.

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Constitutional Reasoning and Constitutional Interpretation. Analysis of Certain Central European Countries

Author(s): Alexandru Bajdechi / Language(s): English Issue: 02/2022

Review of: Zoltán J. Tóth (ed.). 2021. Constitutional Reasoning and Constitutional Interpretation. Analysis of Certain Central European Countries. Budapest: Ferenc Mádl Institute of Comparative Law and Central European Academic Publishing.

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Discursul juridic relativ la statul de drept

Author(s): Diana Dănişor / Language(s): Romanian Issue: 03/2018

The analysis of the concept of state law from a cognitive point of view presupposes, on the one hand, a definition (which determines the common character of certain objects) and, on the other hand, an extension (the class of objects regrouped because they possess the same characters). From a normative point of view, the analysis can be translated into a series of interrogations (what changes must the system of a particular state suffer in order for it to be fully considered a rule of law or democracy?) that allow it to prescribe certain changes in the positive right. The rule of law has the force and limits of a myth, being a concept in permanent doctrinal and political debate. Supported by people, governments, and organizations all around the world, ideal and global aspirations, the foundation of national political and legal systems, become and recognized as a fundamental component of international relations, it is a highly ambiguous concept, and nevertheless be considered a postulate, an axiom whose validity does not require any demonstration.

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Semnificaţii juridice şi implicaţii ale principiilor care stau la baza atribuirii contractului de achiziţie publică în dreptul intern şi dreptul comparat

Author(s): Emilia Lucia Cătană / Language(s): Romanian Issue: Supliment/2018

In this study we propose to analyze some of the meanings and the implications of the principles underlying the award of the public procurement contract in national law and compared law, in the particular case of France. The study presents the context of European regulations on the matter, represented mainly by the Treaty of the European Union respectively of Directive 2014/24/EU, highlighting the case-law of the Court of Justice of the European Union. The second part of the study analyzes the meanings and legal implications of public procurement contract in national law – Law no. 98/2016 – but also in the case law of national courts and reflected by the doctrine. Part 3 of the study analyses the topics in compared law – the particular case of France, which is distinguished by Ordinance no. 2015-899 of 23 July 2015 relating to public procurement, ratifed by Law no. 2016-1691 of December 2016. In the end, the study highlights the results and conclusions of the author reported to the analysis of the problems dealt with.

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Aspecte de drept comparat privind jurământul şefului de stat

Author(s): Elena Emilia Ştefan / Language(s): Romanian Issue: 03-04/2020

The oath, as the last solemn formality in order to exercise a public office or dignity, is always taken by the person who, previously, went through a certain specific procedure, in order to fulfil that position. Therefore, the oath shall be taken in person, in an official setting, in public and only by a natural person, before the exercise of the function or mandate begins. The present study proposes a comparative legal analysis of this subject in order to capture the way in which the oath is reflected in the Constitutions of several states within the executive power, regardless of the form of government. Thus, regardless of the title under which the head of state, President or Monarch is mentioned in the Constitution, the analysis will capture the perspective of the legislator from different geographical areas, with different values and traditions, on the oath of the person holding the most important public dignity in the state. The conclusions we reached as a result of studying the proposed bibliography are at the end of the study.

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The right to defence in proceedings in the case of a financial penalty being imposed for infringement of banking law by a supervisory authorities in Germany and Poland

Author(s): Weronika Stawińska-Artecka / Language(s): English Issue: 3/2022

The article aims to present the model of proceedings in the case of a financial penalty being imposed for infringement of banking law in Poland and Germany and verify whether the parties' right to defence is ensured. The above issue is extremely topical, especially in light of the number and amount of financial penalties imposed by banking supervisory authorities. The article's thesis assumes that the legal regulations in force in Poland and Germany make the indicated guarantee a reality. The article highlights the role of financial market supervisory authorities, whose activities, including the imposition of financial penalties, translate into the safety of the banking sector. Detecting and then sanctioning banking law violations motivates financial market participants not to commit such violations. First, based on an analysis of judicial decisions and international law norms, the criteria that an exemplary model implementing the principle of the right to defence should meet were established. On the other hand, the following part of the article compares the legal framework in Poland and Germany and verifies whether the legal provisions provide the parties with the guarantees in question when imposing a financial penalty for violations of banking law.

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FinTech and Regulatory Sandbox – new challenges for the financial market. The case of the Slovak Republic

Author(s): Simona Hesekova Bojmirova / Language(s): English Issue: 3/2022

The article deals with the issue of emerging regulatory sandboxes and FinTech in the financial markets. The choice of topic is given by i) the topicality of the selected issues and dynamic changes in the financial markets, ii) the fact that there is no flat-rate framework for operating the regulatory sandbox and innovation hub and the EU's efforts to establish a framework for the operation of the innovation hub and the regulatory sandbox build on a comparative analysis of the steps already taken in Member States' legislation. Based on the analysis of previous scientific studies focused on the issue of regulatory sandboxes, the article identifies summarizing criteria on the basis of which it approaches the analysis of the operating of the regulatory sandbox in the conditions of the Slovak Republic. The article thus reflects on the need for analysis of national approaches to the establishment of the regulatory sandbox and complements the range of scientific studies with the lack of analysis of the regulatory sandbox in the conditions of the Slovak Republic. With this approach, the article supports the possibility of using the method of horizontal comparison of national regulations of individual states in setting a transnational approach to FinTech regulations, as well as contributes to further scientific research at the international level.

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Doctrina „dreptului viu” în ştiinţa dreptului român, în dreptul comparat şi în jurisprudenţă

Author(s): Marin Voicu / Language(s): Romanian Issue: 03/2021

Aristotel a folosit expresia „justiţie vie”, Cicero, în „Despre legi”, spunea că „legea vorbeşte”, iar Eugen Herovanu, marele nostru procedurist, afirma, în prefaţa la „Tratatul teoretic şi practic de procedură civilă” (1926), că „procedura civilă oferă elementele simple al unui «drept viu» legat de sursele lui naturale şi de «mişcarea vieţii»”. Metafora «dreptul viu» a fost însă introdusă în doctrina juridică de austriacul E. Ehrlich, unul dintre fondatorii sociologiei juridice, iar, în a doua jumătate a secolului al XX-lea, o găsim în unele decizii ale Curţilor Constituţionale din Italia şi Franţa, în jurisprudenţa CEDO, prin afirmarea principiului interpretării evolutive şi contemporane a normelor juridice, preluat în ultimii ani, şi în jurisprudenţa CCR”.

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Consideraţii privind introducerea unui salariu minim european adecvat

Author(s): Claudia-Ana Moarcăş,Matei Midan / Language(s): Romanian Issue: 03/2021

This paper aims to present the impact of the minimum wage on adjusting and determining the methods used in remunerating workers, regardless of the adopted mechanism: through normative acts adopted by the competent authorities or through collective bargaining between the social partners. Through a historical, teleological, logical and comparative analysis and the approach of the subject, the thesis aims to highlight: (i) the topicality and importance of the minimum wage, proven by the current debates at the EU level on the establishment of a an adequate minimum wage in the Member States; (ii) the variety of its transparent mechanisms of establishment; (iii) the dynamic evolution of its establishment (from a simple temporary measure of national economy improvement to a fundamental instrument of social protection, necessary to insure a decent standard of living for the active population); (iv) the result of the research, under the form of lege ferenda proposals.

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Dreptul securității sociale. Protecția salariaților în cazul transferului întreprinderii, al unității sau al unor părți ale acestora. Dreptul Uniunii Europene și legislația națională

Author(s): George Doru Lucaciu / Language(s): Romanian Issue: 04/2021

The evolution of modern society, the economic changes, and the acceleration of the formation of new companies have required, among other things, the adoption of rules to protect employees in the event of transfer of companies. In its case-law, the European Court of Justice has clarified the objectives related to whom the Member States must respond in order to give adequate protection to workers’ rights. The transfer may not affect the principle of legal certainty, social employment relations or the workers’ rights provided for in the applicable individual employment contract and collective bargaining agreement. The transfer itself cannot constitute a reason for individual or collective dismissal, as shown in several European and national court rulings.

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THE PRELIMINARY DECISIONS ISSUED BY THE COURT OF JUSTICE OF THE EUROPEAN UNION AND THE JUDGMENTS FOR RESOLVING LEGAL ISSUES OF THE HIGH COURT OF CASSATION AND JUSTICE. COMPARATIVE STUDY ON THE ADMISSIBILITY CONDITIONS

Author(s): Anamaria Groza,Vali Ştefania Ileana-Niţă / Language(s): English Issue: 3/2022

The study intends to discover resemblances and differences between the judicial institutions of preliminary decisions in EU law and decisions on unlocking matters of law delivered by the Romanian SCJ, both in civil and criminal fields. Our interest is to clarify the deep significance of these resemblances and differences from the perspective of law systems and the jurisprudence of the ECJ and SCJ. In the third place, we intend to evaluate the utility of these mechanisms of interpreting law and unifying practice from a general perspective, hoping that a system can become a source of inspiration for the other system. The research is descriptive, explanatory and comparative, being accompanied by relevant doctrine and jurisprudence.

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Granica dopuszczalności tworzenia prawa procesowego przez sąd przy wydawaniu postanowienia o odrzuceniu pozwu

Author(s): Ireneusz Wolwiak / Language(s): Polish Issue: 38 (2)/2022

The legal issue addressed in the study is the problem of the court‘s application of legal rules as a basis for the decision rendered in the conducted exploratory proceedings. It arises when a specific provision of the Code of Civil Procedure cannot be identified as the basis for a court decision relating to the course of the trial. Meanwhile, the court‘s pronouncement leads to the designation of an order for the appropriate behavior of the participants in the trial along with the introduction of a mandate for their actions relating to the possibility of reviewing the correctness of the decision made on appeal. The examination of the legal text is then carried out using the rule of inference - analogy legis - for the possibility of issuing a decision by the court on the basis of the provisions regulating a similar procedural situation. But the extent of the similarities can be quite disparate, which in turn leads to the question of the court‘s appropriateness or creation of law. The study is related to the conduct of activities within the formal-dogmatic research method. The subject of the study was the current provisions of public law contained in the Code of Civil Procedure regulating the course of deliberative proceedings in civil cases with the extension of its systemic context. Various elements of this method were included in the course of the research work, ranging from systematic elements with criteria and types of legal interpretation, along with the differentiation of legal principles and rules, through the issue of gaps in the law, to the use of elements of logical reasoning and linguistic analysis of legal texts in order to develop the foundations. for the court to make a decision relating to a pending civil case. The summary of the research work, taking into account the element of criticism, allowed us to conclude that there is no proper regulation that could be the basis for the court‘s decision on the formal termination of civil proceedings. It is impossible to justify the behaviour of the legislator, who in the sphere of application of public law provisions, despite more than a dozen amendments, has not introduced appropriate changes, either by including a vague expression in the area of premises for conducting proceedings, or by updating them on an ongoing basis.

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UNELE REPERE AXIOLOGICE ALE BUNEI-CREDINŢE ŞI GRADUL VALORIFICĂRII EI ÎN DREPTUL POZITIV

Author(s): George Vlăescu / Language(s): Romanian Issue: 02/2023

The good faith, a concept that founded of the humanist thought of antiquity and in whose content the moral and institutional values of historical law merged, is still far from having received the recognition of modern positive law which, as we shall see, has paid far too little attention to the consistency and complexity of its value foundations. Precisely this contrast between its prodigious historical content and what the notion represents in normative law brings with it the problem of the axiological purification of law, asking to what extent the notion serves the legal sciences and above all society. This is why this paper aims to analyse the degree of valorisation of good faith in modern positive law, not before reviewing the overall evolution of the notion in the context of the moral values that have determined its content and purposes.

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Extra-Marital Children (Walad Al Zina) and Their Inheritance Rights under Islamic Law: A Comparison of Islamic Law and South African Common Law

Author(s): Nqobizwe Mvelo Ngema,Desan Iyer / Language(s): English Issue: 1/2023

Islamic law apportions different responsibilities to males and females because Allah created men with greater physical strength if compared to female counterparts. As a result of this men are mandated to be the protectors and financial providers to women and are given more inheritance if compared to women because of such responsibility. This justification of discrimination is likely to be challenged very soon. Any child born from unmarried parents and adultery (zina) is stigmatised as walad al zina (extra-marital child) for his entire life and is forbidden from inheriting an estate of his biological father. This exclusion constitutes an unfair discrimination against extra-marital children and is an affront to their human dignity. A comparison conducted shows that the South African common law does not discriminate between males and females and extra-marital child is not forbidden from inheriting the estate of his deceased biological father.

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