Walking a Tightrope – Looking Back on Risky Position of German Federal Constitutional Court in OMT Preliminary Question

Author(s): Ondrej Hamuľák,David Kopal,Tanel Kerikmäe / Language(s): English Issue: 1/2016

The paper analyzes the relevant parts of the OMT ruling 2014 of the German Federal Constitutional Court (FCC) with regard to the question whether FCC acted in conflict with its prior case law, respectively with its powers. Emphasis is placed first on issues relating to the concept of a constitutional complaint, which was accepted in the decision. The paper also analyzes the extent to which the previously defined criteria for ultra vires review were met in the decision. This is related to the issue of a preliminary reference and to the question of manifest exceeding of the competences by the EU. The article also deals with the issue of possible ordering of the constitutional organs by the Constitutional Court and with the concept of constitutional identity from the perspective of FCC.

Freedom to Choose One’s Own Health Care

Author(s): Ivo Telec / Language(s): English Issue: 2/2017

Taking care of one’s own health belongs to the diversity of the culture and religion. This concerns not only the conventional medical services on the market but also the traditional medicine. When selecting one‘s own health care, a significant role is played not only by one‘s personal experience but also by one‘s worldview or religious beliefs. The methods of health care differ in the degree of reliability of evidence. Various forms of evidence are established by the law of medicinal drugs. Certain restrictions on health care concern livestock in organic farming. In these cases, the law system favors the homeopathic products before the allopathic ones. Freedom to choose one‘s own health care also concerns natural healing. The Czech law recognizes its practitioners as experts in the private law sense being obliged to act with due care of experts. Natural healing is sometimes associated with religious beliefs. In the Czech Republic there is a constitutional ban on being bound by an exclusive ideology or religion. From the perspective of human rights and biomedicine there is preference of the interests and welfare of human beings to the interests of society or science.

Constitutions and Citizenship: Lessons for African Countries

Author(s): John Mukum Mbaku / Language(s): English Issue: 1/2017

Since the colonial period in Africa, ruling elites have manipulated laws regulating citizenship to advance their political and economic interests. The European colonialists used citizenship laws to enhance their ability to maintain control over the colonies and minimize the ability of Africans to fight for independence. Many Africans believed that independence and the establishment of new institutional arrangements would allow them to develop a common national citizenship, one in which all the citizens of each country would have equality before the law and be granted equal opportunity for self-actualization within all parts of the country, regardless of their racial or ethnic affiliation. However, in the post-independence period, incumbent political elites have been acting like their colonial counterparts and have used citizenship laws to get rid of critical and opposing voices by depriving these people of their nationality. In 1996, for example, Zambia’s ruling political party, the Movement for Multi-Party Democracy (MMD), adopted a new constitution, which effectively stripped the country’s independence president, Kenneth Kaunda, of his Zambian citizenship and prevented him from challenging the MMD for leadership of the country. Similarly, in 2000, then president of Côte d’Ivoire, Henri Konan Bédié, changed the constitution and introduced a citizenship clause that effectively disqualified the candidacy of his main opposition, Alassane Ouattara. South Africa’s apartheid regime, on the other hand, introduced a raciallybased multilayered citizenship system in which individuals of European origin were placed at the top, enjoying full citizenship rights, and Africans were relegated to the bottom with extremely attenuated citizenship rights. Some African groups were actually forced to lose their South African citizenship. Citizenship is a complex issue and one that citizens of a country must deal with. The paper suggests that in doing so, African countries must not allow citizenship to be defined by race, ethnicity, religion, or other ascriptive traits, but by allegiance or fidelity to a set of values or ideals (e.g., democracy, rule of law, equality before the law) that define the nation.

Responsibility of Local Self-Government for Infringement of the European Union Competition and Public Procurement Rules and Its Enforcement in Slovakia

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

The paper will analyse the position of local self-government (i.e. municipalities and self-governing regions) in the framework of enforcement of internal market, its impact and effectiveness. The analysis of the legal framework of Slovakia has shown, that there are three ways in which the central government can compel local self-governmental authorities to follow rules of internal marker, including competition rules: (1) state aid rules, (2) public procurement rules and (3) “other” rules of competition. Legal analysis is complemented by the analysis of quantitative data regarding sanction policies in respective areas.

Reintegration Post-Brexit (2020–2022): European Union Reorganization – Securing The Public Square of Democracy; Creating a New Global Compact

Author(s): K.A.C. O’Rourke / Language(s): English Issue: 1/2019

In January 2020, the UK Parliament completed the long-awaited ratification process for the 2018 negotiated EU-BREXIT divorce agreement. After four tumultuous years of UK public contestations, including three general elections in less than five years, the forced resignation of two Prime Ministers after multiple internal Parliamentary votes of ‘no confidence’, the scheduling of an illegal closure of Parliament by the Prime Minister to block BREXIT debates, and the public and divisive ‘Get BREXIT done’ campaign in the December 2019 general election, the UK Conservative Party finally succeeded in securing a majority in Parliament and in moving the agenda. The UK begins a 2020 transition period for its permanent departure from the European Union. Even though the long list of unresolved demands outlined by UK citizens in the original 2016 BREXIT vote focused on “the politics of resentment” and a perceived breach of the social contract inherent in democracy, it is not clear that those domestic BREXIT concerns about social investments in housing, health care services, jobs, and education will even be addressed as part of the UK-EU scheduled negotiations in the transition period. The transition period and its negotiated agreements will be governed by the parameters of The Political Declaration ratified in January 2020. While not legally binding, The Declaration publishes extensive guidelines to govern negotiation processes and outcomes between the parties for regional economic capital and international finance settlements as well as parameters for thirteen sectors for global competition / cooperation including mandatory accession by the UK to certain WTO treaties. Large economic sectors for regional transactions including all transportation /energy sectors, public procurement, intellectual property, financial services and economic capital movement will still be governed by “good faith” requirements embedded in TEU Article 50 moving forward. The domestic BREXIT “politics of resentment” is not unique to the UK as national elections 2016–2018 across the Continent also routinely evidenced this citizen resentment as a widespread phenomenon. Even the EU Parliament elections of May 2019 which had one of the highest voter turnouts across the Continent shifted the internal operation of the EUP for the first time in forty-five years. The European Union as a regional entity is once again faced with issues of differentiated integration as it steps forward to not only reshape economic relations for the Common Market but also to ensure support by its State members for values of participatory democracy and the protection of individual liberty across a range of borders and changing international and regional circumstances. The door is wide open now for EU institutional re-evaluation and re-ordering in this transition period as the UK makes is permanent departure. Former Eastern Bloc States along with Greece and Italy want a more empowered infrastructure for the EU moving forward and putting an end to long standing austerity EU programs imposed by the neoliberal paradigm [c.1980–2010] for capitalist globalization, an ideology that has diminished State sovereignty and eroded democratic societies. These countries are also positioned within the EU to appoint Commissioners and use their influence in new more productive ways that may not always support the EU bureaucracy in Brussels. In December 2019, the Council on the European Union set up a 2020–2024 targeted review process called a Conference on the Future of the EU following extensive 2018 EUP resolutions and citizen reviews demanding more transparency and accountability of EU institutions. The goal is to have needed TEU procedural and treaty changes in place by the 2024 EUP elections. Legitimate expressions of sovereignty and a new paradigm for capitalist globalization for this century are simultaneously in the forefront for the EU even as BREXIT transition negotiations continue. The GeoNOMOS introduced here is a strategic and structural answer for a new EU infrastructure that empowers and supports the 27EU State members and at the same time designs a more balanced compact for capitalist globalization. The EU was created over 45 years ago as a result of a regional treaty agreement and a geographic legal configuration that collaboratively functioned through a scaffolding of “shared sovereignty.” State members as sovereign entities voluntarily granted a certain level of ongoing legal competence to the operation of EU structures and its bureaucracy through national level Constitutional ratification. The range of that “competence” can be amended under the TEU and that process is seriously being evaluated in 2020 by many EU member States. The ripple effect of these institutional challenges to definitions of sovereignty and values of democracy are not confined to the UK alone but rather, suggests that a new definition of the nation State will be required for this century if the State is to remain the sole architect of world order. The GeoNOMOS offers a set of definitions and a strategy for implementation in the post-BREXIT era. It depicts a model of sovereignty for the 21st century based on a framework of liberty and its enterprise of law so that the State at its core can strategically support these two primary functions: [1]secure participatory democracy and individual liberty as it continuously balance all of its essential capital resources [economic, human and social], and [2] participate in the design of a new sustainable global marketplace as a member of the international community of States.

Codificarea urbanismului în România. Contextul european. Reflecţii privind necesitatea unor abordări interdisciplinare

Author(s): Cosmin Soare / Language(s): Romanian Issue: 01/2018

The essential connection between people and their living environment creates a common identity and a level of quality of life based on the shared cultural heritage, built or natural. As an interdisciplinary field, urban planning requires the concerted action of a variety of professionals and stakeholders involved in complex procedures and should be distinguished by its core purpose, to serve and protect the general interests of socIIIiety, through a long-term vision. The field of urban planning and its manner of expression are essentially coordinated through the activity of the public administration. In this context, the latter has the task of ensuring the necessary means for urban planning to achieve its purpose and to contribute to a healthy relationship between people and their living environment.

Principii fundamentale ale constituţionalismului în activitatea Sfatului Ţării (1917-1918)

Author(s): Ion Guceac / Language(s): Romanian Issue: 02/2018

The present scientific approach is an attempt to demonstrate the cohesion between the theory of constitutional law and the socio-political realities of Bessarabia, later called the Moldavian Democratic Republic, in the period 1917-1918. For this purpose, the concept of constitutionalism is considered as the right dimension for generalizations and conclusions on this aspect, especially considering its complexity and its comprehensive character, for the whole range of fundamental social relations. Finally, here are mentioned the intellectual efforts of that time, oriented towards the constitutional foundation of the state organization on the territory of Bessarabia, without any external interference, as well as the value of constitutional law sources from the invoked period, the constituent and indisputable part of national constitutionalism.

Противоконституционни ли са разпоредбите от Изборния кодекс, предвиждащи отчитане на бюлетините без посочена преференция в тях „по право“ за водачите на листите от съответната формация

Author(s): Peter Slavov / Language(s): Bulgarian Issue: 2/2022

This article provides an analysis of the possible contradiction with the Constitution of the regulations in the Bulgarian Election Code creating a “privilege” for the list leaders in municipal elections as well as for MPs, who are entitled to, according to art. 278 (5) and art. 437 (5), along with their own preferential vote, also to receive the party ballots without any preference in them. Thus, it is obvious that there is a privileged position of these list leaders (while the other candidates are being discriminated against), which puts the aforementioned regulations of the Election Code in contradiction with art. 6 (2) of the Bulgarian Constitution – prohibition of privileges or discrimination, art. 10 – common, equal, direct voting right and art. 4 (1) – rule of law.

Ion I.C. Brătianu şi constituţionalismul Marii Uniri

Author(s): Marius Andreescu / Language(s): Romanian Issue: 02/2018

Of particular importance for the achievement of the historical act of the Great Union in 1918 was the activity of some great political and statement of the time. A remarkable personality of the Romanian state in this period is Ion I.C. Brătianu. In this study we evoke the personality of the great politician and state and insist on his major contribution to the adoption of the Constitution of 1923 through which the political act of the Great Union received also constitutional significance as well as the legislation adopted on the basis of the Fundamental Law from 1923 through which the Romanian state aligned from the legislative and political point of view to the European states.

Ергенският данък в исторически план и възможности за въвеждането му в съвремието

Author(s): Marina Tsvetanova / Language(s): Bulgarian Issue: 2/2022

The article examines the establishment of the tax for unmarried and childless persons (bachelor tax) and its historical development during the four Bulgarian constitutions. The problems of the legislative process are being explored, as well as those of the compliance of the bachelor tax with the constitutional and tax provisions, with the principles and objectives of taxation, the fundamental rights and constitutional principles. The article discusses the possibility for the establishment of this tax in modern times.

Suveranitatea fiscală a României în contextul armonizării politicilor economice unionale. Analiza instrumentelor juridice utilizate

Author(s): Marilena Ene / Language(s): Romanian Issue: 02/2018

Fiscal sovereignty of the Member States is considered to be as one of the fundamental EU principles, as it is unanimously accepted by the doctrine that the states did not transfer the fiscal competency to the European Union. This principle is not explicitly mentioned in the fundamental treaties of the European Union, but it is the result of the interpretation of the provisions from the fundamental treaties. At first, in the article it is analysed the concept of sovereignty in Romania in order to explain the principle of fiscal sovereignty and its limitations adopted at the union level. Fiscal sovereignty is defined, in this article, as the right of a state to determine the content of taxation and fiscal policies independently, without the need for any approval or intervention by another state or external powers. Subsequently, it is included a short review of the fiscal sovereignty as resulted from the interpretation of the fundamental treaties of the European Union and the potential impact on the legislation of the member states. As it is mentioned in the doctrine, the Member States gradually waived their fiscal sovereignty, which was affected by the duties transferred to the European Union in the fiscal area, through various regulations, but especially through the ones establishing the budgetary policy. An important conclusion of this analysis is that the fiscal sovereignty of the Member States is significantly limited by the EU provisions which are not directly regulating taxation principle or taxes.

Graţierea colectivă – măsură de iertare umană a semenilor noştri

Author(s): Gheorghe Iancu / Language(s): Romanian Issue: 03/2018

The Constitutional Court has consistently held in its case law that the situations which certain categories of persons are in, must be essentially different to justify the legal treatment difference, and this difference must be based on an objective and reasonable criterion. This solution is also compliant with the consistent case law of the European Court of Human Rights, according to which any difference of treatment, made by the State between individuals being in similar situations, must find an objective and reasonable substantiation.

Influenţa Marii Uniri asupra evoluţiei constituţionale a României

Author(s): Ioan Vida,Ioana-Cristina Vida / Language(s): Romanian Issue: 04/2018

The influence of the Great Union on the constitutional evolution of Romania aims to highlight the historical episodes that caused the appearance or revision of the Romanian constitutions. The 1859 Unification of the Romanian Principalities and the Great Union of 1918, through territorial and demographic changes, generated the Constitution of 1866 and 1923. The 1938 Constitution and the communist constitutions were the result of ideological impulses, and the 1991 Constitution emerged under the revolutionary impulse triggered by the 1989 Revolution.

Votul la români – o scurtă incursiune în evoluţia sistemelor electorale în România modernă şi contemporană

Author(s): Marian Enache,Ștefan Deaconu / Language(s): Romanian Issue: 04/2018

Beginnings of a modern political organization are related to the Organic Regulations in the Romanian Principalities, which set up the distinction between legislative, executive and judicial powers. The trend of these regulations of restricting the participation in the political life for a limited number of boyars was in contradiction with the development of the society and of the political system of the Principalities. If the Revolution of 1848 did not manage to set up a sustainable change of the electoral system, in exchange, the decision of the Congress of Paris to convene the Ad-hoc Assemblies required the need to establish certain rules for the appointment of the members of these Assemblies. These rules marked the beginning of a long process of transformation and change of the electoral system over time, both during the period of the constitutional monarchy (1866-1947), and during the period of Communist Romania. Beyond all these changes, it is remarkable, during the Communist period, the fact that, despite the full control of the regime over the society and electoral system, the head of state was elected over the entire communist period by the obedient vote of the Great National Assembly, so indirectly.

Consideraţii privind exercitarea tutelei administrative şi politica

Author(s): Alina Livia Nicu / Language(s): Romanian Issue: Supliment/2018

As the subsequent evolution of social relationships has already been demonstrated, the time of 22 December 1989 represented the start point of a rather difficult process and of a long time period during which each of the Romanian social and political systems acquired a new definition. From its very first Article the earliest form of the fundamental law based on which the new architecture of the state was to be built, stated the clarification that: “Romania is a democratic and social rule of law”1. Thus, the law became a means by which the fundamental values of the Romanian people were proclaimed and at the same time guaranteed. Since then, the practical exercise of social life mandatorily required the revision of the Constitution of Romania in 2003. In each of its citizens’ existence, the place and, respectively, the importance acquired by the legal rule were dealt with in detail from the introduction of a fifth paragraph in the text of the first article, where the assertion was stated of the fact that: “the respect for the Constitution, for its supremacy and for laws shall be mandatory”. Since 1991, the constitutional legislature established means by which the respect for the principle of lawfulness should be guaranteed. One from among said means was represented by the institution of the Prefect 2 whose role undertaken was that of “authority ensuring that the activity carried on by the local autonomous bodies should be maintained strictly within the limits of the law, a role which the legal literature describes by making use of the established phrase of administrative control”3. The importance acquired by the institution of the Prefect and by the administrative control, respectively, is also well illustrated by the way in which the letter of the Constitution has evolved: hence, the legislature took into consideration in so far as a necessity, the fact of stating under article 123 the third paragraph, the following rule according to which the law establishing the powers incumbent upon the Prefect must necessarily be privileged by the organicity nature4. As a procedural tool made available to the natural person, as well as to the legal entity for the purpose of re-establishing the lawfulness of some situation in the case where one or more of its rights or legitimate interests were affected by the exercise of any authority, the administrative proceedings would also be ruled according to an organic law. This involves express provisions regarding administrative control: the article setting forth that the Prefect “may challenge” before the administrative courts “the documents delivered by the local public administration authorities in the case it deemed them illegal”. The phrase “may challenge” was already inserted in the fourth paragraph of article 122 of the Constitution of 1991, and it has been maintained so far, as well, in the text of the fifth paragraph of article 123 of the Constitution of Romania. In the context where the civil society has constantly declared the need to depoliticize the administration and the Romanian Parliament has continuously strived in achieving this need by issuing various regulations, among which Law no. 340/2004 on the institution of the Prefect represents an eloquent example in this regard, because due to this law the Prefect would have become a senior public official, the purpose of this study consisting in the examination of the extent to which the framework of lawfulness being currently into force, provides for an actual depoliticization of the institution of the Prefect and even if this was the role which the Prefect had to fulfil and consisted in guaranteeing the compliance with the principle of lawfulness by the local public administration authorities, is it really fulfilled? For the purpose of carrying out this examination, we made use of the following means: the study of the legal literature and of the case law, as well as a thorough documentary research. The conclusions of this paper insist upon the topic related to the improvement of the legal framework in the matter concerned and formulate suggestions de lege ferenda, as well.

Правни и управленски аспекти при предотвратяване на масови безредици

Author(s): Kamen Penkov / Language(s): Bulgarian Issue: 1/2011

Unele consideraţii privind starea de urgenţă şi ordonanţele militare

Author(s): Petru Ţăgorean / Language(s): Romanian Issue: 01-02/2020

In an exceptional crisis situation, the state and the authorities must act to overcome the threats so that things will return to normal. The actions of the institutions must be based on a coherent normative framework and must fall within the limits of their legal competences. The documents issued by the authorities must respect the legal principles and norms stipulated by the constitution and laws. Once the crisis situation has been overcomed, it is necessary to analyze how things were managed, and the conclusions drawn from this must provide the basis for revising of the normative framework in order to make it more efficient.

Particularităţi ale actelor administrative emise de autorităţile publice pe perioada stării de urgenţă

Author(s): Nicolae Alexandru Ceslea / Language(s): Romanian Issue: 01-02/2020

The paper examines the prerogatives of the authorities during the state of emergency, the place occupied by the administrative acts issued or adopted during this period in the Romanian law system and the legal nature of these acts. Also, a number of related issues are addressed, such as legislative delegation, the legal nature of the Parliament’s approval of the state of emergency and the constitutional legal conflict between the President and the Parliament. On the administrative litigation side, the question arises whether the pre-trial administrative procedure was designed to challenge the normative administrative acts whose effects are conditioned by a certain term.

Regimul de putere publică – regim juridic inegalitar. Sursa Inegalităţii, raţiunea şi necesitatea

Author(s): Mădălina Voican / Language(s): Romanian Issue: 01-02/2020

The study aims to analyze the public power regime as a legal regime whose main feature is the unequal treatment of the parties as opposed to civil law where the parties are on an equal footing. The study examines the source of inequality, the rationale and necessity of imposing this type of inequality regime, as well as its characteristics.

Efectele stării de urgenţă asupra exerciţiului drepturilor şi libertăţilor fundamentale, cu privire specială asupra libertăţii conştiinţei

Author(s): Mihail Stănescu-Sas / Language(s): Romanian Issue: 01-02/2020

This article explores the relations between the state of emergency, the restraint of the exercise of certain fundamental rights and freedoms and the derogation form certain international obligations undertook by the State in the field of human rights, paying a special attention to freedom of conscience. Freedom of conscience is a non-derogable right, partially absolute and whose exercise may be, for the rest, both the object of restraint in the exceptional circumstances envisaged by Article 53 of the Constitution, including during the state of emergency, and that of limitation in usual conditions, according to Article 57 read in conjunction with Article 53 of the Constitution. We shall notice how the complex configuration of this fundamental right accompanies us towards a clearer understanding of the relation between the declaration of the state of emergency and the restraint of the exercise of certain fundamental rights, as well as between these and the derogation from certain international obligations in the field of human rights, approach which is also meant to concur to revealing what the state of emergency actually is.