Protecţia datelor cu caracter personal în relaţionarea dintre colectivităţile locale

Author(s): Radu Stoian,Camelia Daciana Stoian / Language(s): Romanian Issue: 03-04/2020

Time constantly shows us that the problems of local communities are more and more complex and the capacity of the Local Public Administration Authority on the side of handling and solving public affairs always needs to be reshaped. Regulation (EU) 2016/679, referring to the protection of individual concerning handling of personal data and the free movement of this kind of data’s, applied within the context of the concept of local autonomy, has direct implications referring to the way of organizing the attributions and exerting the competences in direct relationship with the citizens of the Local Administrative Authority, petitioners or any other categories of individuals including employees or representatives of legal entities governed by public or private law. The purpose of this study represents an analysis of the practical reality, in fact, of the way that legal representatives of the Local Administrative Authority, those named responsible of personal data handling inside these authorities or any other public officer or employee, are aware of the importance of the judgments pronounced by The European Court of Justice from Luxembourg, or are aware of the necessity of following up so that the jurisprudence of this court is applied and enforced.

Limitele constituționale ale autonomiei universitare

Author(s): Andrei-Nicolae Popa / Language(s): Romanian Issue: 1-2/2021

In this paper, we aim to identify the limits set by the constituent legislator on university autonomy, by referring to the jurisprudence of the Constitutional Court, the international standards imposed in the field of university education, and the existing regulations in primary law. The reason for such an approach stems from the public need to know the framework in which higher education institutions are authorized to take administrative, organizational and financial decisions autonomously, as well as the legal relationships that are established between these higher education institutions and the central public authorities. Therefore, in this article, we offer a discussion of some of the problems that create divergent positions in higher education: the increase in university fees and the legal regime of the Study Contract, relating to the legislative framework and the jurisprudence of the Constitutional Court that establish the limits of university autonomy.

Raportul dintre dreptul comun și regulile procedurale specifice în materia contenciosului administrativ: privire specială asupra recursului

Author(s): Verginia Vedinas,Gina-Livioara Goga / Language(s): Romanian Issue: 01/2022

This study aims at examining the relationship between the Code of Civil Procedure and the relevant regulatory framework, from the perspective of procedural rules, which govern the disputes settlement of administrative contentious. The rules of procedure that apply to disputes of administrative contentious are governed, on the one hand, by the Law on Administrative Contentious, and on the other hand, by the Code of Civil Procedure, which represent common law in the matter and for administrative contentious, according to the rule of law, reference from art. 28 of Law no. 554/2004 of the Administrative Contentious. This study aims at clarifying the relationship between common law and the procedural rules specific to administrative contentious or, in other words, the limits of the intervention of the Code of Civil Procedure in matters of administrative contentious.

Consiliul Legislativ – organ consultativ al Parlamentului în asigurarea calității Legii, condiție primordială a statului de drept

Author(s): Anca-Jeanina Niță / Language(s): Romanian Issue: 01/2022

The goal of a quality legislation can be achieved only through the conjugated effort of all parties involved in the legislative procedure. And one of these actors is the Legislative Council – a consultative specialized organ of Parliament, which has the constitutional mission of giving opinions on bills with the aim to systematize, unify and coordinate the entire legislation, as well as keeping track of Romanian laws. Beginning with some brief historical accounts concerning the Legislative Council, the present study approaches the activity of giving opinions on legislative bills, shows the legal regime of this activity as seen from the standpoint of the case law of the Constitutional Court of Romania and invites reflection on the necessity to consolidate the role of the Legislative Council within the complex arrangement of legislative mechanism.

Particularități manifestate în procesul de restituire a terenurilor forestiere

Author(s): Cristina Florentina Stanca / Language(s): Romanian Issue: 01/2022

This study aims to highlight the main aspects that characterize the specifics of the legislative framework of the Romanian state, regarding the restitution of nationalised forest lands during the socialist regime. In order to understand the purpose of restitution laws on forest land, it is important to understand how this process has unfolded in the 31 years since the first law in this area was adopted.

Examen selectiv din practica judiciară a Secției de contencios administrativ și fiscal a Înaltei Curți de Casație și Justiție

Author(s): Eugenia Marin / Language(s): Romanian Issue: 01/2022

Decizia nr. 7 din 15 ianuarie 2018 – Înalta Curte de Casație și Justiție, Secția de contencios administrativ și fiscal Decizia nr. 2 din 15 ianuarie 2018 – Înalta Curte de Casație și Justiție, Secția de contencios administrativ și fiscal Decizia nr. 6 din 15 ianuarie 2018 – Înalta Curte de Casație și Justiție, Secția de contencios administrativ și fiscal Decizia nr. 4 din 15 ianuarie 2018 – Înalta Curte de Casație și Justiție, Secția de contencios administrativ și fiscal

Правната сигурност като Conditio sine qua non

Author(s): Mladen Mladenov / Language(s): Bulgarian Issue: 1/2022

The legal certainty is a condition without any modern states and modern societies cannot exist. The legal certainty is an inherent property of the legal system, which is part of the national security system. The dynamism of the national security system finds its footing in the slower changing legal system. The professionalism, responsibility and dedication of lawyers, sociologists, political scientists and security experts are of particular importance here.

Salarizarea personalului plătit din fonduri publice. Privire specială asupra salarizării din administrația publică locală

Author(s): Adrian Sorin Budescu / Language(s): Romanian Issue: 02/2022

The remuneration of staff paid from public funds has been and is a major topic of interest for both public opinion and public policy promoters. What characterizes the post-December period is the permanent desire for reform in the field of public administration in general, but especially in the field of pay, being claimed, at least at the declarative level, the desire to achieve a normative framework with a unitary salary. The main objective that of having an organic law as a statute and a special law for civil servants could not be achieved. The categories of staff (dignitaries, civil servants, and contract staff) that have benefited over time from separate pay systems whose integration into a unitary system have proved difficult for the legislator. The local public administration has always been in the basement of payroll systems. In the face of these legislative optimism, even through the liberalization of salaries in the local public administration, the Government came up with the idea of outsourcing public policies in the field by putting up for auction the unitary salary project. Currently, the most affected sector of the budget salary is that of the local public administration. There are differences generated by the liberalization of the salary system at this level of public administration, through the possibility for local authorities to establish salaries at the level of administrative units by decisions of local councils. The annual capping of salaries by government decisions has led to the non-unitary application of salaries, some local councils considering that it is the entire staff of the Administration family, others not. The understanding of the legislative context, of the mechanisms and principles of remuneration is made starting from the intention of the legislator to implement a modern remuneration system through the Framework Law no. 153/2017, which, in compliance with the principle of local autonomy, tried to implement for the first time the principle of wage liberalization on meritocratic criteria in the local public administration. This follows from the systemic and teleological interpretation of the normative acts invoked above. We appreciate that both the mayor's and the deputy mayor's allowance, as well as the salaries of civil servants and contract staff in the „Administration” occupational family, are established by multiplying the corresponding coefficients with the last value of the minimum gross salary, as established by regulations in force. The lack of unitary points of view, the lack of a coherent judicial practice, the systematic cutting (over 135 changes in 5 years!) Of a newly created normative framework, all these, potentiated by economic restrictions or public policies without continuity, led to the total failure of the unitary system of remuneration of the personnel paid from public funds, with the demotivation, indignation and artificial antagonism of the personnel categories.

Odiseea funcției publice de prefect. Între imperativul profesionalizării și ingerința politicului

Author(s): Tudor-Nicolae Bonifate / Language(s): Romanian Issue: 02/2022

In the wake of the decentralisation process which began after December 1989, the prefect was entrusted with a fundamental constitutional role, in that it is the representative of the Government in the territory and, consequently, the guardian of the legality of the power transfer from the central to the local level. However, as important as the mission of the prefect is, there have been frequent legislative changes to its legal status. Without the risk of exaggeration, we can say that the prefect embodies, perhaps more than any other Romanian administrative institution, the effects of the constant interference of political power in the proper functioning of the public authorities, as well as those of the periodic oscillations that occur in the executive power. +The present study aims to analyse the legislative developments concerning the legal status of the prefect, between its inclusion in the category of senior civil servants and its qualification as a public dignitary. Aware that both solutions imply advantages and disadvantages that are difficult to ignore, we will conclude with our vision on the future of the prefect in the Romanian legal and administrative landscape.

Răspunderea autorităților în Noua Filozofie a Codului Administrativ. Cod civil versus Cod administrativ. Puncte de „intersecție”

Author(s): Liliana Cătălina Alexe / Language(s): Romanian Issue: 03/2022

Society has always been concerned with the issue of liability. "Responding" was and still is an imperative of society. In our law there was no express regulation of the administration's liability for its illegal acts. However, there are a series of decisions of the High Court of Cassation and Justice that decided to engage the state's liability even in the conditions where it could not be imputed to it, the damage being caused in the exercise of a normal and legal activity. For the first time this type of liability – administrative – is dealt with in the provisions of the Administrative Code. The present article will ask the question whether this intervention was (imperially) necessary or the existing legal instruments (Law no 554/2004 on administrative litigation, the Civil Code and judicial practice) were sufficient in determining the scope of the subjects and the particular conditions in which they respond or this legislative activity, as the main way of implementing public policies, should have provided necessary, precise, concrete tools for the solutions pronounced in the matter of liability.

Nulitatea de formă a actelor administrative privind raportul de serviciu al funcționarilor publici în lumina prevederilor Codului administrativ

Author(s): Mirela Monica Perjaru / Language(s): Romanian Issue: 03/2022

The present study represents an analysis of the institution of formal nullity of administrative acts regarding the public servant’s duty relationship, respectively of the provisions of art. 535 of Emergency Government Ordinance (EGO) no. 57/2019 regarding the Administrative Code, by reference both to the special legislation in the matter of administrative litigation and the applicable general legislation, including a theoretical approach as well as a practical one. Repealing the provisions of Law no. 188/1999 regarding the public servant’s duty relationship, the Administrative Code establishes a series of procedural formalities common to several administrative acts regarding the public servant’s duty relationship, regulating the sanction and its mode of operation in the event of non-fulfillment of the formal requirements established by art. 528-533. Although the text of article 535 is concise and easy to read, it was found that in practice its interpretation is not uniform. Thus, despite the fact that the regulation expressly provides for the sanction of legal nullity in the event of non-compliance with certain legal provisions regarding the form of administrative acts regarding the public servant’s duty relationship, nullity to be found by the administrative litigation court, the study proposes to present an interpretation nuanced in the sense that the sanction of nullity: – cannot be ordered for the hypotheses regulated in art. 528 para. 3-8 because the non-communication of administrative acts is, in principle, sanctioned with unenforceability, not with nullity; – cannot be ordered for the omission of any ot the formalities mentioned in art. 529-533, but only for non-compliance with the legal norms that provide for essential provisions, being conditioned by damage that can only be removed by abolishing the act; – is not established, but ordered by the court. The study has theoretical and practical importance, from the perspective of the novelty of the legal issues in the analysis, proposing to determine a debate on some interesting topics, aiming to contribute to the outline of a unified interpretation of the legal provisions, aspect justified by the variety of solutions identified in the specific practice of the administrative litigation courts regarding the cases that have as their object the public servant’s duty relationship.

Considerații asupra materiei funcţionarilor publici – examen legal şi al jurisprudenţei Curţii Constituţionale

Author(s): Marian Enache,Verginia Vedinas / Language(s): Romanian Issue: 03/2022

This study aims to review the jurisprudence of the Constitutional Court regarding the legal status of public servants. This is one of the institutions under debated by administrative law specialists, also claimed by labour law theorists and perhaps this is the reason behind the rich content of the Constitutional Court's jurisprudence on the matter. Many of the Constitutional Court's decisions have been generated precisely by the confrontation between the legal situation of civil servants and that of contractual staff, in matters concerning pension rights, the competence of the courts to adjudicate disputes and other similar matters. The Constitutional Court, through its case law, has settled not only specific issues, but also issues of principle, such as the category of legal act regulating matters like the evaluation or disciplinary liability of civil servants. This has led to the Administrative Code being supplemented with new annexes to regulate these dimensions of the legal status of public servants.

Corelația dintre actele administrative și operațiunile administrative, ca forme de activitate ale autorităților publice

Author(s): Verginia Vedinas / Language(s): Romanian Issue: 03/2022

This study aims to analyse the two main forms of public authority activity, namely administrative acts and administrative operations, with the caveat that these are not the only ways in which the activity of public authorities takes shape. They also issue, adopt or conclude other categories of acts, which are subject to the private law or public law regime, such as unilateral acts under common law, civil contracts, administrative contracts, material acts, provision of public services. Among these, the study focuses on administrative acts and the concern to address this topic arises from the fact that in practice, both administrative and judicial, we have found the perception that, in some situations, administrative acts specific to a public entity are legal acts, and in other situations, they do not have this quality, as they are administrative operations. Such a hypothesis, in our opinion, which we will justify in the present study, is not sustainable, for the reasons we will develop below.

Impactul digitalizării activității administrației publice asupra actului administrativ. Aspecte normative, jurisprudențiale și din perspectiva codificării procedurii administrative

Author(s): Emilia Lucia Cătană / Language(s): Romanian Issue: 03/2022

This study aims to analyze the impact of the digitization of public administration activity on the administrative act, in an interdisciplinary approach: normative, case-law and from the perspective of the codification of the administrative procedure. The discussions are generated by a paradigm shift, from the classical administrative act, exclusively in printed form, to the alternative or even to the rule of its electronic form, with electronic signature and no classic stamp. This paradigm shift is a challenge for doctrine, public administration practitioners, individuals and courts, in particular in the current context of the codification of the legislation governing the public administration activity.

Dreptul administrativ român la cumpăna dintre milenii, veacuri și regimuri politice

Author(s): Verginia Vedinas / Language(s): Romanian Issue: 04/2022

Subiectul pe care vi-l propunem „încolțise” de ceva vreme în preocupările noastre. Aștepta doar momentul să fie „însămânțat” și ce moment ar putea fi mai potrivit decât acela când o instituție de învățământ te înnobilează cu un asemenea titlu? Și nu orice instituție, ci o universitate prestigioasă, care poartă numele poetului latin Publius Ovidius Naso, poetul iubirii, al tristeților și al metamorfozelor. Și care are în structura sa o facultate de drept pe care o prețuim cu asupră de măsură și care s-a învrednicit să ne aleagă, să ne prețuiască, să ne onoreze.

Rola wykładni i jej wpływ na orzecznictwo na przykładzie ulgi meldunkowej

Author(s): Wiktor Gnych-Pietrzak / Language(s): Polish Issue: 38 (2)/2022

The main objectives of the conducted research concern the consequences for the taxpayer, which arise from the rulings of the administrative courts adopting different types of interpretation in relation to the exemption from income tax on natural persons called the residence relief. The first research objective is to verify whether, among the prerequisites required to obtain the exemption, the mere fulfilment of the material condition enables to obtain the exemption from this tax. The second research objective concerned the duties of tax authorities, relating to the general principles of tax proceedings and resolving doubts as to the factual and legal status in favour of the taxpayer, as well as control of fulfilment of the material condition of the residency relief by obtaining information from teleinformatic systems. The research objectives defined in this way allowed to put forward the main research thesis, which indicates that the choice of interpretation (from among linguistic, systemic, and functional) by the adjudicating panels in the scope of the residency relief affects the application of law and produces different legal effects for the taxpayer. The conducted research allowed also to identify the second (supplementary) research thesis, according to which the tax authorities should apply the principle in dubio pro tributario in cases concerning the residency relief and additionally use the available information and communication systems in order to correctly establish the facts. A dogmatic-legal, analytical, and empirical method were used to conduct the research. Relevant legal regulations and literature were analysed. Additionally, an empirical analysis of the jurisprudence of administrative courts and the Constitutional Tribunal was used. The study was concluded as follows. The descriptive layer of the legal text requires the fulfilment of a formal condition, however, for the correct decoding and application of a legal norm, also a systemic and functional interpretation should be applied due to the lack of clear rules regarding this condition. Moreover, the tax authorities, during tax proceedings, are obliged to resolve doubts in favour of the taxpayer and should cooperate with the taxpayer in order to clarify the doubts concerning fulfilment of the formal condition for the registration allowance, in particular through the use of teleinformatic systems.

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.

Zestaw z powiększonym VAT-em – glosa do wyroku Naczelnego Sądu Administracyjnego z dnia 30 lipca 2021 r., I FSK 1749/18

Author(s): Michał Kuśmirski / Language(s): Polish Issue: 38 (2)/2022

The subject of the voted judgment was the problem of taxation of performance offered by fast food restaurants for factual situations occurring before the general interpretation of the Minister of Finance was issued in 2016. The position of the Supreme Administrative Court (hereinafter: NSA) has been assessed and verified as the first settlement covering this issue and which may be the beginning of the case law. The problem in the discussed issue was the application of the correct VAT rate and the conduct of tax authorities in this respect resulting in unequal treatment of taxpayers. The analysis of this subject made it possible to verify the position of the NSA expressed in the judgment under review and provided unambiguous arguments that it was fully justified. It states that the classification of a performance as a supply of goods or a supply of services is determined by whether the consumer purchases it as a takeaway or eats it on the premises, making use of the facilities provided. In addition, the competition-distorting behaviour of the tax authorities, which consisted in treating taxpayers unequally by applying different tax rates to the same activities, was contrary to the fundamental principle of the neutrality of VAT. Thus, the sale of takeaway food products in so-called fast food restaurants could be subject to a preferential 5% tax. In this study, the dogmatic-legal method and the historical method were used by examining both the existing and repealed provisions of tax law. Additionally, an analytical method has been used in the course of the analysis of literature and case law on the subject.

Ogólnopolska Konferencja Naukowa „Kryzys autorytetu – o potrzebie autorytetu w prawie i w społeczeństwie”, 20 października 2021 roku (webinarium)

Author(s): Łukasz Bartosik,Jakub Cieśla / Language(s): Polish Issue: 38 (2)/2022

I Konsiliencyjna Konferencja Kosmiczna, Gdańsk, 26–28 listopada 2021 roku

Author(s): Dominika Skoczylas / Language(s): Polish Issue: 38 (2)/2022