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The institution of administrative disputes in the matter of the ordinances or of the provisions of ordinances established as unconstitutional, as well as of the constitutional and legal regime thereof is less analyzed in the specialized literature and debated in the judicial practice from Romania. In this context, this study intends to make an analysis of the most controversial aspects related to the applicability of the institution of administrative disputes in this matter, as well as of some aspects referring to the particularities of exercising the action for administrative disputes against the ordinances or against the provisions of ordinances established as unconstitutional by the Ombudsman. -
In the Romanian judicial practice more numerous cases arise with regard to the annulment of the acts of finding the irregularities committed in the field of obtaining/using the European funds and of establishing the budgetary claims or of applying the financial corrections. This casuistry raises a series of questions relating to the hypotheses in which, in this matter, the European legislation is directly applied and, respectively, when the Romanian legislation is applied and which one specifically (as the case may be, the Government Ordinance No 79/2003 or the Government Emergency Ordinance No 66/2011). In this study the author answers the above-mentioned questions. -
The proposed study aims, in particular, at questionable normative aspects concerning „the action for nullity of the registration of the trademark” in the regulation of the Law No 84/1998 on trademarks and geographical indications. In fact, contrary to the reference that some texts of this law make to „the nullity of the registration of the trademark” or to „the cancellation of the trademark”, the nullity has as object the „administrative legal act of the State Office for Inventions and Trademarks of registration of the trademark”. Likewise, it argues on the uselessness of some rules devoted to this action at law.
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O autoritate publică cu atribuții de supraveghere, prevenire și control într-o anumită arie de activitate, având în vedere poziția dominantă pe care o ocupă în virtutea prerogativelor de putere publică pe care legea i le pune la dispoziție pentru realizarea interesului public în slujba căruia se află, are obligația, rezultată din exigențele bunei administrări, să emită, pentru organizarea activității sale, norme administrative clare, care să nu genereze riscul distorsionării liberei concurențe și apariției conflictelor de interese.
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Instanța Curții de Apel Oradea a dispus condamnarea inculpatului pentru săvârșirea infracțiunii de uciderea animalelor, cu intenție, fără drept, prevăzută în art. 25 alin. (1) lit. a) din Legea nr. 205/2004, republicată1, dispunând, totodată, înlăturarea condamnării inculpatului pentru săvârșirea infracțiunii prevăzute în art. 217 alin. 1 din Codul penal anterior (cu notă aprobativă).
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Unlike the previous Criminal Procedure Code (1968), which briefly provided that the prosecutor must prepare a reasoned proposal of taking the measure of preventive detention of the defendant, the new Criminal Procedure Code regulates in a more detailed manner the proposal for preventive detention of the defendant in the course of criminal prosecution, by introducing the obligation of the prosecutor to indicate the legal grounds. In exchange, the new criminal processual law does no longer provide the prosecutor’s obligation to hear the defendant in the presence of the lawyer of his choice or appointed ex officio, before drawing up the proposal for preventive detention, as provided in the previous Criminal Procedure Code. Under such circumstances, the authors analyze the institution of proposal of preventive detention, by presenting some critical aspects and by proposing some improvements to the new regulation. Key
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This study undertakes the analysis both of the amendments brought to the offences provided in Article 140 of the Law No 8/1996 by the Law No 187/2012 and of the common and specific aspects which characterize, in the author’s opinion, these offences. The author examines the amendments to the offences evoked by their connection to the legal provisions in this matter, contained in the general part of the Criminal Code. At the same time, the paper emphasizes the common aspects regarding the scope, the subjects and the constitutive content of the offences presented, as well as the specific aspects relative to the special legal object and to the material element of these offences. The study presents the doctrinal points of view, as well as the author’s remarks and de lege ferenda proposals in the analyzed area.
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The succession of the criminal codes has created numerous transitory situations requiring a functional system of principles to be solved. In this context, the courts have provided different solutions to some aspects related to the application of the criminal law in time, thus generating a non-unitary practice. The main cause of these contradictions was represented by the modality of determination of the most favourable criminal law. Just when it seemed that the High Court of Cassation and Justice had clarified the misunderstandings, the Constitutional Court has pronounced the Decision No 265/2014 which completely changes the situation, offering an interpretation that does not find many followers among jurists.
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The author, after making a brief history on the taxation of the registration of motor vehicles in Romania, after our country joined the European Union (1 January 2007), expresses her opinion that even the last regulation in this matter (the Government Emergency Ordinance No 9/2013 on the environmental stamp for motor vehicles), being contrary to the provisions of Article 110 of the Treaty on the Functioning of the European Union, can not be legally applied in Romania, thus violating the principle of supremacy of the European law over the national law (in this case, the Romanian law).
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Within this study the authors intended to analyze the situations in which it can be promoted the action for damages by separate means under Article 19 (1) of the Law No 554/2004 on the administrative disputes and the moment of running of the one-year time limit within which this action can be promoted, having in view that the law does not establish precisely this moment, and the case-law offers various solutions adjusted to each case solved. Starting from these premises, the authors have proceeded, on the basis of the legal provisions in the matter and of the apparently non-unitary case-law solutions, to the systematization of the working hypotheses and to the elaboration of some objective criteria, legally substantiated, in order to determine the moment of running of this procedural time limit.
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The author, having in view a recent controversy in the Romanian doctrine of labour law, resumes the analysis and reaches the following conclusion: • According to the Romanian Labour Code, the legal institution (of labour law) of the temporary labour contract (Article 88 of the Labour Code) is separate from the legal institution of posting (Article 45 et seq. of the same Code); • Conversely, the employee who, according to Article 88 of the Labour Code, has concluded with his employer a temporary labour contract, in order to be hired out to a user undertaking from another Member State of the European Union, has the status of posted employee, within the meaning of Directive 96/71.
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In this study, the authors present a commentary of Article 145 of the Constitution, referring to the independence and the irremovability of the judges of the Constitutional Court. It is presented, in detail, the normative will of the Constituent Assembly on the status of the constitutional judges, the content of their independence and the irremovability which was conferred to them by the constitutional text. The judges of the Constitutional Court have at their disposal a legal framework, of constitutional rank, which guarantees their independence and irremovability and which, at the same time, imposes restrictions of professional nature. Within the same study, the authors also present the problems of the disciplinary and criminal liability of the constitutional judges, as well as the legal regime of immunity which they enjoy, according to the Law No 47/1992 on the organization and functioning of the Constitutional Court.
