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The active procedural quality in the direct guarantee action is one of the basic elements of the legal mechanism, regardless of whether we are talking about the active or the passive one. At first glance, we would say that the mechanism of direct action in general should not create too much discussion about its protagonists. However, in legal practice there has been a confusion about the subjects of the direct action, which has led to the questioning of the creditor’s active procedural capacity within the legal mechanism. Through this study, we are trying to shed some light on the practical application of direct collateral action, but also on the interest and procedural quality of the creditor and the debtor within the legal mechanism. Also, since the direct action in classic guarantee does not have a legal basis, unlike the direct action in payment, being derived from the notion of group of contracts, we will show why, in order to avoid contesting the procedural quality of the creditor within the legal mechanism of the direct action under warranty, the contracting parties must expressly insert a clause in the contract giving their consent to the transfer of the right of action to the sub-acquirer, in order to strengthen the transfer of the right of action under the guarantee for hidden defects. At the same time, as the direct action is an exception to the principle of relativity of the effects of the contract, the legislator is obliged to intervene, by introducing expressly some texts in the Civil Code, both in terms of the guarantee for eviction and in terms of the guarantee for hidden defects, so that the direct action in the guarantee finds its practical application. Only in this way will creditors be able to be protected from the effects of the exception of the lack of active procedural capacity, in terms of both guarantees provided by law (hidden defects and eviction). -
As a result of the particular regulation of a long-standing principle of European Union law, as of 25 May 2018, data controllers have an express obligation to process personal data „lawfully, fairly and in a transparent manner in relation to the data subject («lawfulness, fairness and transparency»)”. In the light of the arguments which will be presented in this article, it will follow that the principle of transparency gives data subjects the possibility to hold controllers and processors accountable and, in particular, to exercise concrete and effective control over their personal data, e.g. by giving or withdrawing informed consent, and by exercising regulated rights in favour of data subjects. In other words, by virtue of the principle of transparency, data controllers are obliged to take any measure necessary to ensure that data subjects – customers or other users – whose data are processed are fully and accurately informed. As regards the concrete way in which compliance with this fundamental principle can be ensured, the General Data Protection Regulation provides some guidance, stating in Article 12 (1) that the controller is obliged to take appropriate measures to provide the data subject with any information referred to in Articles 13 and 14 and any communications pursuant to Articles 15–22 and 34 relating to processing in a concise, transparent, intelligible and easily accessible form, using clear and plain language, in particular for any information addressed specifically to a child. Therefore, the information shall be provided in writing, or by other means, including, where appropriate, by electronic means. When requested by the data subject, the information may be provided orally, provided that the identity of the data subject is proven by other means. Last but not least, information or communication should, as a rule, be provided free of charge. Throughout the article, on the basis of the doctrine and case law, the meaning of the notions used by the European legislator in Articles 5, 12, 13 and 14 of the General Data Protection Regulation will be explained.
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The persons without discernment, being incapable of understanding at all the gravity of their own deeds, are protected by the legislator by the establishment of a cause exonerating civil liability. However, for reasons of fairness, it was opted to introduce the subsidiary mechanism of the obligation of compensation, an innovation of the Civil Code that entered into force in 2011. Thus, even unaware of their own acts, a person may still be obliged to pay a certain amount of money which may, but not necessarily, be equivalent to the damage suffered by the injured party. The mechanism thus created tends to mitigate an inequity, but it is confused with a type of actual civil liability, be it objective. The present study aimed to analyze this mechanism, taking into account its jurisprudential applications, not numerous, but sufficient to draw some useful conclusions.
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This study aims to promote several solutions to ensure the accurate interpretation and application of certain provisions regulated under Law No 307/2006 on protection against fires, in order to determine whether the work performed by the employed personnel (holder of an employment agreement in private/voluntary emergency services) can be framed (qualified) as performed in special work conditions, under the legislation applicable to military personnel – professional firefighters under the emergency services.
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The present research intends to analyze the issue of certification of the European Enforcement Orders from the perspective of the regulation provided for in Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims, from the perspective of the provisions of the Romanian Civil Procedure Code and also from the perspective of recent European and national case law in the matter. Therefore, the study aims to analyze the object, the scope of application, as well as the certification conditions of the European Enforcement Orders. In order to elaborate the study, there will be analyzed with priority the current European and national legislative provisions, the specialized doctrine, and also the relevant case law in the matter.
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The national legislation on social security provides for different standard retirement ages for women and men, and this aspect does not contravene the principle of non-discrimination on the basis of sex in social security matters, enshrined in Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, nor the principle of equality of citizens, enshrined in Article 16 of the Romanian Constitution. However, failure to apply the more favourable age conditions, laid down for women, to people who have changed their gender identity from woman to man may give rise to discrimination on the grounds of sex. The rationale for maintaining different standard retirement ages is based on the socio-professional disadvantages of women in Romania in relation to men, so that being a woman during their working lives justifies the application of a lower retirement age, regardless of whether at the time of retirement, following the change of gender identity, the beneficiary of the pension is a man, and not a woman. As national law does not regulate this issue, it is for the national courts to interpret social security legislation in accordance with the principle of non-discrimination on grounds of sex. The existence of different standard retirement ages for women and men does not automatically lead to the de jure termination of employment relationships as a result of retirement at different ages, as Article 56 of the Labour Code regulates the possibility of termination of employment relationships, for both sexes, at the same age. Nor does the change in gender identity give rise to different treatment, on the basis of sex, on the date of the termination of employment relationships as a result of the fulfilment of retirement conditions.
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The preventive measures are institutions of criminal law of a coercive nature, by which the suspect or defendant is prevented from engaging in certain activities that would adversely affect the conduct of the criminal proceedings or the achievement of the purpose of the crimin al proceedings. The preventive measures provided in the Code of Criminal Procedure in our country are: detention, judicial control, judicial control on bail, house arrest and pre-trial detention. Of these, pre-trial detention is the measure that generates the most important problems in judicial practice. In this study, we do not intend to make an exhaustive analysis of this preventive measure or to present in detail the conditions for its disposal.
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The paper intends to emphasize the importance and echo of the motivation of jurisdictional acts given in the operation of individualization of procedural measures, with emphasis on preventive measures in criminal proceedings. The analysis is imposed in the recent social and legal context, in which the individual freedom of the person is subjected to particular trials and must be preserved, an objective finally achievable through the analysis and rigorous argumentation of the acts of disposition elaborated by the judicial bodies.
