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Tribuna Juridica

Publisher:: Juridical Tribune Journal
Publication date:: 2012-01-12

ISBN:: 2247-7195

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Latest documents

Brief analysis of the international legal framework of corporate social responsibility
This paper focuses on the main international legal documents providing guidance recommendations and principles on corporate social responsibility (CSR), considered it as a sustainability tool. A special attention is paid to the provisions of European Union regarding corporate disclosure of non-financial information and transparency. The nonfinancial information report has to include consultation rights, health and safety environment, social dialogue, fulfilment of the obligation of non-discrimination etc. Despite the fact that it is not necessary a comprehensive report on CSR matters, the outcome would consist in demonstration that the disclosure of information on policies, outcomes and risks will enable companies and their stakeholders to develop a very good strategy of corporate governance policy. Keywords: international law, corporate social responsibility (CSR), transparency, nonfinancial disclosures, sustainability.
Competition versus cooperation - new approaches on the energy market considering aspects of competition law
The common energy policy of the European Union is a current topic on the agenda of European institutions, reflected in package “Clean Energy for All Europeans”, proposed by the European Commission. Despite several harmonization attempts, the consensus needed for a common policy and for an Energy Union has not been reached yet. One possible element why we still do not have a common energy market is the lack of competition in the energy sector. In this context, the present research paper analyzes to what extent competition can be a key-factor in ensuring the modernization of the energy sector. Aspects of competition law which are relevant for building a common energy market are highlighted in the present research paper. Furthermore, the present article raises the question how important cooperation is, searching the proper balance between competition and cooperation. The present article uses an interdisciplinary research method, combining the analysis of primary and secondary European law, of legal instruments and provisions, considering the teleological method, with the assessment from a business and economics point of view. Case law and case studies from Member States of the European Union provide best practice models for the energy sector and present an international comparative perspective. Keywords: competition, cooperation, energy market, competition law, clean energy, Energy Union.
Observations relating to compensations in the case of admission to the complaint against of the dismissal decision
The study aims to analyze a consequence of the annulment of the dismissal decision by the court, for reasons of lackluster or unlawfulness. According to art. 80 of the Labor Code, in the event of the finding of illegality and/or inadequacy of the dismissal decision, the court orders the cancellation of the unilateral act of dismissal. An effect of the annulment of the dismissal decision is the employer's obligation - in all cases - to compensate the employee equal to the indexed, increased and updated salaries and the other rights that the employee would have been entitled to if he had not been dismissed. In relation to the imperative wording of the legal text, atypical assumptions are considered in which the award of damages should be nuanced in relation to the factual situation that led to the termination of employment relations. There are also issues related to the content of the claims and their amount. Keywords: employee, employer, dismissal, compensation.
On the dissolution of the limited liability company. Disagreement of the shareholders
The limited liability company, similar to the general partnership is set up and functions on the grounds of the trust between shareholders. Therefore, this type of company has an intuitu personae character, just like any company of persons. The limited liability company operates as long as the conditions laid down by law are met, and if any or more causes leading to the improper operation of the company, it shall dissolve. One of the dissolution cases is that stipulated by articles 227 paragraph (1) letter e) of Law no. 31/1990 – the dissolution by court decision respectively – when the dissolution cannot be decided following a decision of the general meeting – on solid grounds, which can be misunderstandings between the shareholders. Such misunderstandings are not by themselves enough to lead to dissolution, but it is necessary for them to determine the improper operation or lack of any company’s operation. Keywords: limited liability company, the Romanian Law, dissolution, affectio societatis.
The revision of the Posting of Workers Directive and the freedom to provide services in EU: towards a dead end?
The development of the internal market, based on the principle of freedom to provide services, as stated in article 56 TFEU, rendered common the posting of workers to another EU Member State. The risk of leading to social dumping in the host Member State, resulting from the less favourable working conditions of the sending Member State, justified Directive 96/71/EC. Collective bargaining, which has always taken on a prominent place in the posting of workers framework provided for in Directive 96/71/EC, is clearly reinforced by Directive (EU) 2018/957 that amended Directive 96/71/EC. The caselaw of the CJEU, however, has revealed that in some cases the enforcement of the host Member State working conditions, in view of the lack of harmonization of labour law in the Member States in relation to minimum protection mandatory rules, can paradoxically constitute a restriction on the freedom to provide services. The analysis of the amendments introduced by the Directive (EU) 2018/957 will demonstrate that, despite creating a favourable legislative framework for fair competitive conditions between national undertakings and the undertakings that post workers, may compromise the delicate balance between the protection of workers and the freedom to provide services. Keywords: Directive (EU) 2018/957, posting of workers, freedom to provide services, European Union.
Management of railway infrastructure - national and European comparative analysis
On November 12, 2016, in Romania the Law no. 202/2016 on the integration of the Romanian railway system into the single European railway area come into force after the 2012/34/EU Directive of the European Parliament and of the Council of 21 November 2012 on the establishment of the single European railway area was adopted in 2012. It is later adopted in Strasbourg on 18 April 2018 and will enter into force on 02.05.2018 The Regulation 643-2018 on rail transport statistics. Statistics on freight and passenger rail transport are needed to enable the Commission to oversee and develop the common transport policy as well as the transport elements of policies on trans-European regions and networks. Under Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004 on safety on the Community's railways, each Member State of the European Union must establish a national safety authority. In Romania, the Romanian Railway Safety Authority - ASFR2, was set up as a national body responsible for the tasks related to railway safety. Keywords: railway infrastructure, Community's railways, European railway area, trans- European regions and networks, railway safety.
The role of the Romanian State based on the new amendments to the insolvency law
Law no. 85/2014 on the insolvency prevention and insolvency procedures, envisaged as of its entry into force as a true “Insolvency Code”, is the main tool for setting up a collective procedure for covering the debtor’s liability, as well as an opportunity to redress the activity of a company in financial distress. The recent amendments brought by the law-maker through the entry onto force, on October 02, 2018, of the Emergency Ordinance no. 88/2018 for amending and supplementing normative acts in the field of insolvency and other normative acts, although brought with the intention of improving the exiting procedure to date as a result of the practices found during the four years since the Insolvency Law has been implemented, succeeded, although probably unintentionally, to create a potential bias towards one of the main creditors encountered in the procedure, namely, the State. This paper therefore, considering the extremely short timespan since the entry into force of the Emergency Ordinance no. 88/2018, proposes by no manner of means to make no criticism on the new regulation, which might even prove effective on the long run as a result of the observation of the practice and concrete implementation of the provisions therein, but only to raise an alarm on some aspects which, at first sight, seem to create certain differences between the creditors by favouring, at least theoretically, a certain creditor. Keywords: insolvency, creditors, State, valuation of assets, debt recovery.
The legal protection of the interests of persons who have not committed criminal offences in the case of criminal procedural infringements - when and where the State draws the lines
The contemporary criminal proceedings are characterised by the fact that increasingly more often alongside the interests of persons directly linked to a criminal offence also the economic interests of other persons are infringed upon, through the expansion of the institution of the so-called mechanism of confiscation of property not based on sentencing, etc. The article focuses on the legal protection of these persons and the relevant issues of it. The article examines the issues of the circle of persons, who due to the infringement on their economic rights have the rights but have not been granted the rights of an active participant of the criminal proceedings, as well as the scope of rights of these persons as participants of criminal proceedings. In difference to deciding on the issue “guilty or innocent”, which both on the national and the international level has a relatively strictly enshrined model, in deciding on the so-called “secondary” or “consequential” issues, a strict model like this is absent. Hence, the State should decide on the matter of how to ensure full legal protection to persons if their rights have been restricted. Undeniably, also in this case, the requirements regarding a fair procedure should be met. However, the matter, whether and – if – to what extent various rights should be granted in the framework of criminal proceedings, needs to be discussed. The article, based on the analysis of the Latvian experience, outlines some lines of discussion and provides the authors’ assessment of the possible development thereof. The issues that are raised by the Latvian discussion might be useful for creating and developing discussion also in other states. Keywords: criminal procedure, infringement on economic interests, legal protection.
The adoption of the Euro by Romania - theoretical considerations
The paper contains, first of all, aspects of the convergence report drawn up by the European Commission and the European Central Bank on the level of readiness of a Member State to join the euro area when there is an express request for it. The second part refers to several proposals for actions that Romania thinks should follow in order to adopt the euro, starting with the Convergence Report of the European Commission and the European Central Bank of May 2018.
Considerations concerning the prohibition of use of the probation period in the individual labor contract (according to the provisions of article 33 of the Romanian Labor Code)
The probationary period is the most appropriate way of verifying the professional skills - among the possible ones - given that during the performance of the individual labor contract, the skills of the employee can be tested. The objective of this study is to analyze the ban on the use of the probation period in the context of art. 33 of the Labor Code. Thus, we propose to discuss relatively the employer's ability to employ probationers through successive employment in a maximum of 12 months. We appreciate that it is useful to establish the practical implications of the legal provisions outlined above - in the context in which the probationary period is the most useful way of prior checking of the persons applying for employment. Keywords: individual employment contract; probation period; denial clause; verifying professional skills; successive hiring.