Union of Jurist of Romania Law Review
- Union of Jurist of Romania
- Publication date:
- Nbr. X Special Issue II, December 2019
- Nbr. X Special Issue I, December 2019
- Nbr. X-2, July 2019
- Nbr. IX-1, July 2019
- Nbr. VIII-2, July 2018
- Nbr. VIII-1, January 2018
- Nbr. VII-Special-1, December 2017
- Nbr. VII-2, July 2017
- Nbr. VII-Special-2, March 2017
- Nbr. VII-1, January 2017
- Nbr. VI-Special, December 2016
- Nbr. VI-2, July 2016
- Nbr. VI-1, January 2016
- Nbr. V-2, July 2015
- Nbr. V-1, January 2015
- Nbr. 2-2014, December 2014
- Nbr. 1-2014, January 2014
- Nbr. 2-2013, December 2013
- Nbr. 1-2013, January 2013
- Nbr. 4-2012, October 2012
- The Lisbon treaty and the risks of noncoordination of economic policies in the E.U.
Article 5 of the Treaty on the Functioning of the European Union (T.F.E.U.) states: "1. Member States coordinate their economic policies within the Union. To this end, the Council adopts the measures, including the broad guidelines of these policies. Special provisions apply to Member States whose currency is the Euro. 2. The Union shall take measures to coordinate the employment policies of the Member States, in particular by defining the guidelines for those policies. 3. The Union may take initiatives to coordinate the social policies of the Member States.
- European citizens' initiative: new rules, new trend?
This article will focus on the European citizens' Initiatives (ECIs) reform which will enter into force on 1 January 2019. Starting with an analysis of EU legal sources, this article will first highlight the rising interest in the most prominent participatory democratic instrument at the EU level; in a second step, it will present the actual outcomes of ECIs launched so far, highlighting some criticisms regarding the functioning of the process. In the conclusion, it will illustrate the recent reform introduced by Regulation 2019/788, questioning whether the new changes will enhance the participation of Civil Society and citizens in the EU integration process as a possible remedy to bridge the gap between supranational governance and citizens.
- The dispute over invoking abusive clauses inserated in banking contracts in the trial of a contestation of the execution - alignment to european trends in the matter
The number of cases concerning the abusive clauses inserted in banking contracts, trialed in front of the national courts, is a considerable one. It seems like the compliance of the national regulations with the provisions of Directive 93/13 / EEC on 5 April 1993 on unfair terms in consumer contracts, is a difficult process. The purpose of the present study is to observe the current state of the alignment of the national legislation and jurisprudence to the European tendencies in the matter. In particular, we are interested in the admissibility of invoking abusive clauses in the process of a contestation of an execution, since the national case law is not unitary in this regard. Even in theory, opinions are divided. On June 26, 2019, the European Court of Justice expressed its opinion on this matter, in the cause C-407/18, the case of Ales Kuhar, Jožef Kuhar v Addiko Bank d.d. At the end of the study, we aim to point out the main directions set at European level that must be followed by the national legislation and case law of a Member State.
- Dynamics and tools of ?upward convergence' in the eu social policy: assessing the european states' performance under the european pillar of social rights
The present article proposes an analysis of the various ‘facets’ of convergence with a special focus on the concept of ‘upward convergence’ which was set in place to ensure a better coordination of the EU and its members in the field of social policy. Ensuring a stronger socioeconomic convergence to achieve better living standards for the European citizens and reduce inequalities, particularly after the economic crisis that has shaken Europe, has become a top priority for the EU. In order to realize this objective, the EU uses a variety of tools and mechanisms, both legal and financial. One of the newest and highly debated legal instruments created by the EU is the European Pillar of Social Rights. The article offers a comparative analysis of the levels of performance as well as of the concrete results obtained by various governments in their efforts to implement the objectives of EU social policy. The analysis starts from the assumption that the European states have different levels of economic development and resilience, a fact that makes even more difficult a strong convergence and synchronicity in the implementation of these measures. Our research intends to call attention to the fact that EU’s legislation and policies have a positive impact on the performance of the governments in the socioeconomic field. The methods used are both qualitative and quantitative, consisting of an evaluation and a brief comparative study based on the scientific literature in the field, but also of the presentation of data and indicators that clearly show the levels of performance and the achievements of different governments. The main general conclusion that may be formulated is that on the one hand, the EU is making efforts at establishing all the necessary instruments to enhance convergence. On the other hand, between countries there are both convergent and divergent evolutions and countries may be grouped according to the level(s) of their accomplishments (which differ from case to case) which makes it obvious that some of them do need more time and (harder) work to reach the established targets.
- About the res judicata authority of the reorganization plan and/or of the measures taken by the judiciary administrator or liquidator within the frame of the insolvency procedure
This paper examines the legal force of various procedural acts delivered within the frame of the insolvency procedure as regulated by Law 85/2014. The study aims to assert the res judicata effects of the syndic judge judgments and to find out if the related procedural acts approved or scrutinized by the syndic judge or issued by the insolvency administrator or liquidator during the insolvency procedure enjoy such effects, concluding that, while not all these acts enjoy res judicata, all of them have binding legal force upon all participants to the procedure and even upon third parties.
- International protection in the european union
This paper concentrates on a few aspects regarding the issues that arose after the massive waves of immigrants' who are in Europe. In this context, the purpose of the paper is to offer a perspective about what is international protection and asks the question: what rights do persons who may be in need of international protection have? It is obvious that the people in need of international protection do not have basic human rights and physical security guaranteed in their home countries and they have been forced to escape from the risk of persecution, inhuman or degrading treatment or other serious human rights violations. In this regard, we will analyze the acquis communautaire that the EU asylum organizations provide for forms of international protection and the corresponding procedure of international protection. We will conclude, stressing that even though the right to asylum is recognized and convergent at the European level and the roots are in the Geneva Convention, the Charter of Fundamental Rights of the EU, and other international and European legal instruments, in reality nowadays proves that there is a divergent tendency in applying the legal aspects to the persons who need international protection.
- The right to good administration - is the constitutional regulation necessary?
The constitutional revision from 2003 enriched the patrimony of the fundamental rights and freedoms of Romanian citizens with three such rights and freedoms: the right to a healthy environment, economic freedom and access to culture. More than 16 years after this revision, but also as a member state of the European Union, we consider as an opportunity and necessity, at the same time, a new revision of our fundamental law, a consistent one at this moment, which should take into consideration the consecration of other rights, even by designing the necessary constitutional framework for ensuring and respecting a good administration. Analysing the constitutional provisions of other states, as well as those of the European level, the relevant doctrine and jurisprudence, using research methods such as multidisciplinary, comparative, sociological, empirical or systemic, it will be possible for us to conclude that good administration is one of those indefinite or determinable legal concepts. Being such a concept it is necessary to identify elements that allow us to configure it, elements that we should find in a unitary text in an article of our fundamental law, and through which the right to good administration would be enshrined. Therefore, we appreciate that in a state where the public administration, exercising of its functions and attributions, also had delicate moments in ensuring a good and efficient administration, the consecration of the right to good administration, by exhaustively capturing, as far as possible, the elements the definers of the concept of good administration, is a natural consequence of the constitutional recognition of the rule of law.
- Oscillating between different types of public contracts regarding the construction of a highway
The article underlines the difficulties that the public authorities have in choosing the most suitable public contract for the construction of a highway, starting from the identification of the applicable legislation in this matter, both at European and national level. The analysis of examples of good practice in such constructions is also necessary, by evaluating some public contracts already executed at the level of some foreign states. The impasse in which Romania has been for many years for the construction of a highway can be overcome by elaborating an appropriate legislation and applying it correctly. Therefore, the understanding of the specificity of the various contractual categories to which the Romanian state can appeal in order to materialize this old desire to build a highway is essential. The representatives of the central authorities often oscillated between public-private partnership, concession of works and public procurement, although the legislation has changed several times during this time. And the transposition of the European directives in the field seems not to have led to a clear conclusion on the long-term benefits and efficiency of these contracts. The article intends to respond to these concerns that currently grind the aspirations of materialization and completion of the construction of the Brasov-Comarnic highway from Romania.
- Aspects of personal data processing by romanian civil courts acting in their judicial capacity
Although the data protection supervisory authorities are not competent to supervise processing operations of courts when acting in their judicial capacity, the General Data Protection Regulation also applies to the activities of courts and other judicial authorities which must ensure compliance with the rules of this regulation. Therefore this paper aims to explore the processing performed by civil courts in their judicial capacity, without overlooking the impact of the internet age on the publication of personal data from pending cases and judgments. To this end we’ll analyse the provisions of Regulation (EU) 2016/679 and the national legal framework regarding the processing of data by the courts, without overlooking a recent trend in dealing with processing operations performed by the Court of Justice of the European Union (CJEU). At first glance it seems that our civil courts were left to their own devices as to data protection since the Romanian national supervisory authority is not competent to supervise processing operations of courts acting in their judicial capacity and the Romanian legislator did not entrust this mission to specific bodies within our judicial system. However despite the absence of a right to lodge a complaint with a supervisory authority or to an effective judicial remedy against a supervisory authority, the data subjects - plaintiffs and defendants - may resort to the right to an effective judicial remedy against the controller for the protection of their personal data processed by a civil court. Since the right to the protection of personal data is not an absolute right and it must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality, not always will prevail the rights of the data subject, or, better said, they will not be able to prevail before the balance tilts - sooner or later - in favour of the data subject.
- General aspects on academic ethics
The academic field is one that raises many ethical challenges and needs a different approach in this regard. Being an activity field with many particularities, with diversified human relations, with the involvement of a large number of people and with often divergent interests between them, the academic field needs an ethical approach. To better understand the concept of ethics, one should start from the etymology of this word. The definitions of ethics are much more numerous and each one emphasizes one or more aspects considered as defining for it. As a common element of these definitions, one can remember first of all that ethics is about human behaviour. The law and the regulations cannot cover the vastness of these inter-human relations and they manage to solve the multitude of problems that may arise in the relations between teachers, in the relations between students or in the relations between teachers and students. No matter how well the codes of ethics are developed, they will not be able to regulate all of the issues raised by the academic life. That is why greater emphasis should be placed on making each person aware of the importance of acquiring an ethical way of being and behaving in society. The human factor is the one that can ensure the smooth running of the activity in the academic environment.
- Trends and patterns in preliminary references in courts of Romania. Issues related to the charter of fundamental rights of the European Union and the European convention on human rights
The case-law of the courts of Romania reveals significant disparities concerning interpretation and application of the two main European sources in the field of human rights - the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights. That is the reason...
- Free access to non-litigations procedures for asylum seekers
To streamline the asylum system are the main existing instruments at international, European and national level which guarantees access to the asylum procedure. At European level reform legislation regarding common procedures for granting and withdrawing international protection and establishing...
- Is the plea agreement practice of the International Criminal tribunals a pathway to negotiated justice within national jurisdictions?
Having already a long career in the Anglo-American judicial systems, the Plea Agreement is a pioneering procedure in the civil law countries. In the latest decades it became more and more attractive to the European continental countries due to the fact it makes possible a significant workload’s...
- The Romanian criminal law from the great union to the present day
In the present study, we have investigated the provisions of the first three Romanian Criminal Codes that were released in the modern Romanian era. At the onset of this scientific approach, we have made an overview of the Criminal Code of 1864, with direct reference to the doctrine and...
- Right to a proper climate in the system of the right to an environment and the equation of fundamental human rights
The affirmation of the process of climate change and their irreversible consequences generates dangers and major negative outcomes to the exercise of the fundamental human rights. Human civilization is tightly linked to climate stability, conclusion confirmed by the reality that the last 10.000-12.0...
- The crime of genocide
This paper is a comparative analysis of the crime of genocide in relation with other similar crimes, for example, some crimes against the person (homicide, bodily harm, illegal deprivation of liberty), the so-called “terrorist attacks” or crimes against humanity. Such an analysis underlines several ...
- General overview on material-functional conception of the state administration
The science of administrative law has accepted the view that the expression "administration" has two basic meanings: firstly, according to one of them, the term administration implies a certain circle of entities/executors (bodies or organisations), as a rule, within the state apparatus,...
- The civil service at Romania's centennial
In any modern state, an essential role in its functioning is played by the public servants, both in defining, but especially in applying public policies, as well as in exercising the public authority. In this study, the author will analyze the distinction between the notions of civil service,...
- Constitutional review or judicial activism?
Constitutional courts have come to play an important role in the transformative processes of their respective states and societies. While legal scholarship is divided on the issue of the beneficial impact that judicial activism of constitutional judges may have on a democratic transition, there is...
- Environmental crime in the EU: Is there a need for further harmonisation or for new enforcement tools?
Criminal approach of the environmental issues is both an innovative and a necessary evolution of a much wider field of regulation, at an international, European, and national level; hence, it is but part of the legal action taken by societies, in order to assess and partly solve the environmental...