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În cele ce urmează, vom comenta două hotărâri ale Curții de Justiție a Uniunii Europene, ambele pronunțate în materia dreptului la liberă circulație și, respectiv, a securității sociale, în cadrul procedurii chestiunii preliminare. -
In the present study we will make some critical comments on two judicial decisions – a decision of the Romanian Constitutional Court and a decision of the Court of Justice of the European Union – with impact on a problem of high importance for Romania: the nature, the character and the legal force of the Decision 928/2006 of the European Commission (which institutes the Cooperation and Verification Mechanism) and of the recommendations of the Commission included in the reports issued within the above-mentioned mechanism, the compatibility with the Union law of the legal provisions concerning the Section for the investigation of the offences committed within the judicial system. The decision of the Court of Justice was given prior to that of the Constitutional Court, within the procedure of the preliminary ruling unleashed before more Romanian administrative jurisdictions, and the control of the Constitutional Court was unleashed with the aim at establishing the unconstitutionality of the legal provision concerning the above-mentioned section. Although the Constitutional Court knew about the decision of the Court of Justice, which ruled that, if the law is found by the national jurisdictions to be incompatible with the Union law, it must be set aside in the respective litigations, by virtue of the (total) supremacy of the Union law, the constitutional jurisdiction declared the constitutionality of the law and, more than that, stated that the ordinary jurisdictions are not permitted to set aside the law, because the supremacy of the Constitution is not questioned by the adherence to the Union and by the Union law, the latter being superior only to the infraconstitutional laws. So, the point is: of the two decisions, which one must the jurisdictions apply? Which one is superior to another? -
Prezentul comentariu este generat de o notă critică la Decizia nr. 3915/2013 a Înaltei Curți de Casație și Justiție, Secția a II-a civilă, pronunțată în Dosarul nr. 2342/111/20071, notă critică publicată pe site-ul Juridice.ro, în „Revista de note și studii juridice”, la data de 15 august 20142. -
This study proposes a thorough and precise examination of the provisions of the present Civil Code regarding the institution of the contract, especially, its drafting mechanism. The objective of our research concerns the reference made to the innovative items, but also a critical view regarding the possible discrepancies existing between the legal text and the judicial practice, respectively the concepts developed by the specialty literature under the pressure of the Civil Code of the year 1864. The approach is based upon a permanent tendency to refer to the comparative law, especially the European law and the great projects of unifying the regulation of the international commercial contracts, UNIDROIT Principles and the Principles of European Contract Law. We notice that one of the basic ideas taken into account by the editors of the Civil Code is that of „unifying” the civil law and the commercial law, by adopting the solutions proposed by other Codes, such as the Swiss or the Italian code. The assembly of the regulations applicable to the mechanism of the contract drafting has to be construed from this perspective. The usefulness is undisputable considering that the distinction cannot be justified at this level in a modern society. Likewise, it is required to specify that in the matter of drafting the contract, the good faith principle was raised to the rank of an „axiological summum”, being present both in the negotiations-related regulations and in the rigorous and detailed provisions of the offer and of its acceptance. -
10 December 2016 marks 60 years from the date when the General Assembly of the United Nations Organisation opened for signature (and 50 years from the date when they entered into force) the two international covenants on human rights: International Covenant on civil and political rights and International Covenant on economic, social and cultural rights. These, along with the Universal Declaration of Human Rights and the United Nations Organisation Charter, make up the hard core of the protection of human rights, within the United Nations Organisation (UNO). The 50th anniversary of their entry into force is equally a reason for balance, namely reflection and projection into the future. Thus, in 1966, the design of the two different conventional instruments, corresponding to the two traditional categories of human rights (civil and political rights, on the one hand, and economic, social and cultural rights, on the other hand), was based on their different legal nature, on the East-West ideological divisions, or on the necessity to treat them differently in the process of implementation at state level: the immediate implementation (civil and political rights) v. progressive realization (economic, social and cultural rights). However, the initial situation did not stay within the same parameters, but it gradually evolved. Although initially conceived as „political obligations” in the economic, social and cultural fields and rather left at the discretion of StatesParties, the economic, social and cultural rights have acquired, in time, through the work carried on by the Committee on Economic, Social and Cultural Rights (CESCR), a position that allows them to claim, in the next 15 years, a significant role in the process of implementation of the 2030 Sustainable Development Agenda. In such conditions, in this paper, the author initiates an evaluation of the doctrine of economic, social and cultural rights in the past two and a half decades, as well as of the way in which CESCR has built the „profile” of these rights, in this regard being evaluated two of the work methods used by CESCR, namely: General comments and the new LOIPR procedure – List of Issues Prior to Reporting. -
The author, after explaining the „valorism” and „value debt” concepts, enters into details on the issue of aggregation of default interests (art. 1088 of the Romanian Civil Code – 1865 –, still into force), reaching a conclusion, which agrees to a minority juridical doctrine, that the interest may be aggregated to a value debt.
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Analyzing the jurisprudence of the European Court of Human Rights on freedom of expression (Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms), the author reveals the close connection between the concept of States’ margin of appreciation (paragraph 2 of Art. 10 of the Convention) and the quality of the Convention as “a living instrument”. Therefore, the purpose of the study is precisely the dialecticism of the relationship between the “freedom of expression” (proclaimed by the Convention) and the exercise of that freedom “that carries with it duties and responsibilities” and which, under national law, may be subject to “such formalities, conditions, restrictions or penalties” (granted under Art. 10 of the Convention, as well). In light of this line of thinking, the author carries forth an extensive case law of the European Court of Human Rights, expression of a broad relevant casuistry. -
The repeated conviction by the European Court of Human Rights (hereinafter ECHR) of the Republic of Moldova for violating Article 1 of Protocol No 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter ECHR) was a mandatory invitation for national actors to harmonize their own legal system with the European case law, both by legislative, administrative way and by judicial way. Although there have been reported cases in which the European Court of Human Rights has pointed out some shortcomings with regard to harmonizing the Moldovan law with the European exigencies, however most judgments are based on jurisprudential shortcomings. Thus, in order to avoid new convictions by the Strasbourg Court in the sphere of Article 1 of Protocol No 1, in this study the techniques of compatibilization of the national case law with the European ones are researched. Starting from the stated purpose, in the present study it is realized a jurisprudential exercise of the notion of „good” from the perspective of the conventional judge and of the way in which the national courts received it in their own judgments. At the same time, this scientific approach identifies the positive and negative obligations of states and their margin of appreciation left by the ECHR in case of some issues concerning the right to respect for property, as well as the consequences for the state in case of a judgment of conviction.
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This article underpins the normative framework given to judicial bodies competent to make investigations into marine navigation in Romania, according to the provisions of the Romanian criminal law, followed by a brief history of the establishing and dissolving of the courts in Romania regarding maritime and river matters, and examination of the normative framework given to the competencies of the Court of justice on investigations into marine navigation, and finally this article is drawing some conclusions and implications related to lex ferenda.
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The author analyzes the territorial jurisdiction of the court to settle the actions for annulment of the decisions of invalidation or for amendment of the settlement decisions issued by the National Commission for Real Estate Settlement pursuant to the Law No 165/2013, appreciating that it lies with the civil section of the Bucharest Tribunal, as the court in whose district it is located the headquarters of the entity issuing the contested act. The term „entity” within Article 35 (1) must be understood in relation to the provisions of Article 3 points 4 and 5 of the Law No 165/2013, which enumerates the entities involved in the restitution procedure in various stages thereof, as well as the document issued by these entities. -
The article analyzes the material jurisdiction to settle the action for liability of the mayor for the prejudice caused to the state budget in the exercise of his mandate by the deficient fulfilment of the duties devolving on him, a prejudice established by the Court of Auditors by its act of control. In the absence of a derogatory regulation concerning jurisdiction, such an action, being governed by the rules and principles of the tort civil liability regulated by Article 1349 of the Civil Code, falls under the material jurisdiction of the court or of the tribunal, depending on the value of the object of the dispute (of the quantum of the damage requested to be repaired), according to Article 95 point 1 in relation to Article 94 point 1 k) of the Civil Procedure Code. -
Law no. 119/2010 settled that all service pensions (except those of magistrates and judges of the Constitutional Court) become common pensions (therefore established under the common law of pensions, i.e. Law no. 19/2000). In order to enforce Law no. 119/2010, Government Decision no. 735/2010 was issued. Among service pensions (now common pensions) are also the pensions awarded to retired persons coming from the system of defense, public order and national security. From July 2010 to January 2011, these service pensions were recalculated as common pensions under Law no. 119/2010 and Government Decision no. 735/ 2010. Subsequently, under Government Emergency Ordinance no. 1 / 2011, from February to December 2011, based on other criteria, said pensions were recalculated again (under Government Emergency Ordinance no. 1 / 2011). Being that, by law, each of these recalculations can be challenged in court, the author of this study examines the jurisdiction to settle the appeal of the decisions to recalculate the pensions in question, both those set initially according to Law no. 119/2010 and Government Decision no. 735/2010, and those recalculated again subsequently according to Government Emergency Ordinance no. 1 / 2011. -
Cererea formulată în temeiul art. 595 alin. (1) C.pr.pen., respectiv în caz de intervenire a unei legi penale noi după rămânerea definitivă a hotărârii de condamnare sau a hotărârii prin care s-a aplicat o măsură educativă, se adresează fie instanței de executare, fie instanței corespunzătoare în grad acesteia în a cărei circumscripție se află locul de deținere sau, după caz, centrul educativ ori centrul de detenție. Din perspectiva formelor competenței, cea reglementată potrivit art. 595 alin. (2) raportat la art. 553 alin. (1) C.pr.pen. este o competență funcțională (ratione officii) întrucât vizează o activitate ce se poate realiza strict de către instanța de executare ori de către instanța corespunzătoare în grad acesteia în circumscripția căreia se află locul de executare a pedepsei ori măsurii privative de libertate.
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The faulty interpretations of the normative system as a hierarchical system are due to analysing the matters of validity and of withdrawal of legality on the basis of the same methods of interpretation as when the matter of conformity is examined. If we clearly operate this distinction, using the pre-war case law, then the ordinary courts have competences in the matter of contentious of validity of rules and even some competences in the matter of contentious of conformity, despite the Constitutional Court’s claim to monopolize the constitutional contentious of rules. Likewise, they have competences in the matter of contentious of conformity of the infraconstitutional rules with the Constitution, which is questioned only due to the understanding of the normative hierarchy according to the French model, which is not applicable pursuant to the Constitution of Romania. Finally, I will prove that the ordinary courts have the competence to verify the agreement of the rules declared unconstitutional with the C.C.R decision. -
The ordinary courts have the general competence to protect the rights and freedoms of individuals, whether provided or not in the international treaties or in the Constitution of Romania. The Constitutional Court’s claim to be the only one to exercise constitutional justice powers is based on a faulty interpretation of its own competence, which is constitutionally determined as being to ensure the supremacy of the Constitution, and on reducing the constitutional contentious to the contentious of rules. A correct interpretation of the constitutional provisions and the fructification of the Romanian tradition in the matter of constitutional justice demonstrate that the ordinary courts are competent to apply the Constitution in order to protect the rights and freedoms of individuals, therefore to exercise constitutional justice powers, because this is not reduced to the control of the constitutionality of the laws. -
This study is an analysis of the conditions of admissibility by the procedure covered by Article 56 of the Law No 254/2013 of complaints made by the convicted persons in connection with the awarding of compensation days for inadequate conditions of accommodation and the cancellation of the wage garnishment, measure set up by the tax enforcement bodies in order to recover judicial expenses due to the state by those persons. I have chosen to analyse these two situations in the context in which the judge of surveillance of deprivation of liberty is increasingly faced with such complaints from private persons deprived of liberty claiming violation of rights as a result of the application of these two measures. For the presentation of legal problems and the situation I used national case law of judges of surveillance of deprivation of liberty, but also the national case law of the courts. -
Dispozițiile art. 44 alin. (3) C.pr.pen. reglementează un caz de prorogare legală a competenței, în sensul că infracțiunea de favorizare a făptuitorului este de competența instanței care judecă infracțiunea la care aceasta se referă, competența materială a infracțiunii corelative fiind câștigată mai înainte și independent de reunirea cauzelor. În acest context, dacă judecătorul de cameră preliminară care funcționează la judecătorie, fiind sesizat prin rechizitoriu cu judecarea unei infracțiuni de favorizare a făptuitorului – făptuitorul favorizat fiind judecat de către tribunal – verifică și menține măsura preventivă luată în faza urmăririi penale, violează dispozițiile relative la competența materială a instanțelor de judecată prevăzute sub sancțiunea nulității absolute, potrivit art. 281 alin. (1) lit. b) C.pr.pen. (cu notă critică). -
This article discusses the material and territorial jurisdiction for the settlement in the matter of land fund disputes. The material jurisdiction is examined in terms of art. 94 item 1. letter j), art. 94 items 3 and 4, Art. 95 item 1 of the Code of Civil Procedure and the special regulations contained in Law no. 18/1991, as republished, and the territorial jurisdiction of the perspective of art. 107 para. (1), art. 117 of the Code of Civil Procedure and the special law. The jurisdiction issue concerns the various actions on the land fund, arising from the enforcement of the Law no. 18/1991, as republished. The regulation of the jurisdiction of the actions settlement in the matter of the land fund, in favor of the same court, is proposed de lege ferenda. -
The article analyzes the jurisdiction of the Romanian court to settle the divorce application in case of spouses, Romanian citizens, who do no longer reside on the Romanian territory. The problems are analyzed in relation to the Community regulations directly applicable in the Member States of the European Union, as well as to the provisions of the Civil Procedure Code in this matter. -
According to the Labor Code (Law no. 53/2003, republished on the 18 of May 2011), the employer, under the pain of absolute nullity, cannot inflict any disciplinary sanction (except the written warning), without beforehand and compulsorily, performing a disciplinary investigation as well, by an individual authorized by the employer to this end. The minimum rules regarding the disciplinary procedure (namely, also those regarding the prior disciplinary investigation) are set forth in the Labor Code and are developed by the Internal Regulations of the unit. Such being the case, this kind of rules cannot be legally established in the collective employment agreement, no matter its level of negotiation (at the level of the unit, of the group of units or of the fields of activity), even if during the period 2007–2010 the national unique Collective Employment Agreement (terminated at present) regulated, against the law, a procedure regarding the (prior and compulsory) disciplinary investigation which included also provisions obviously contrary to the Labor Code. -
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International agreements constitute a category of legal acts within the European Union (EU). They are concluded by the EU acting alone or jointly with Member States depending on the provisions of the founding Treaties. With the entry into force of the Treaty of Lisbon, the European Union (EU) acquired legal personality. It is therefore a subject of international law which is capable of negotiating and concluding international agreements on its own behalf. The external competences of the EU are defined in Article 216 of the Treaty on the Functioning of the EU. The division of competences between the EU and Member States is also expressed at international level. The current division of competences between the EU and Member States is not set in stone. However, the reduction or extension of EU competences is a delicate matter which requires the consent of all Member States and necessitates a revision of the Treaties.
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Potrivit art. 48 alin. (1) C.pen., complice este persoana care, cu intenție, înlesnește sau ajută în orice mod la săvârșirea unei fapte prevăzute de legea penală. Conform art. 174 C.pen., prin săvârșirea unei infracțiuni sau comiterea unei infracțiuni se înțelege săvârșirea oricăreia dintre faptele pe care legea le pedepsește ca infracțiune consumată sau ca tentativă, precum și participarea la comiterea acestora în calitate de coautor, instigator sau complice.
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This study appeared as a result of a case solved in practice and identifies legal issues also common to many other cases, which, as always, is subject to the analysis and to the specialised criticism, the latter being accompanied by any other possible points of view. -
After the entry into force of Article 1541 of the Civil Procedure Code, the judgments will have a different communication regime as compared to the other procedural documents. More precisely, if the party indicates the appropriate data in order to communicate the procedural documents by e-mail, the court will have the obligation to communicate the judgment to the party by e-mail, in accordance with the provisions of Article 1541 (1) of the Civil Procedure Code, however, it will not be obliged to communicate the summons or the other procedural documents to the respective party by e-mail, since with regard to these procedural documents remain applicable the provisions of Article 154 (6) of the Civil Procedure Code, which regulates only the possibility of the court to communicate these procedural documents by e-mail, and not the obligation of the court to proceed in this way. Therefore, we note the existence of an asymmetry, with regard to the communication regime, between the judgment and the other procedural documents, which is why we believe that the legislator should intervene in order to standardize the communication regime of all procedural documents, there being no reason why the respective communication of procedural documents should be carried out differently. -
In this study, after a presentation regarding the establishment of the Commonwealth of Independent States (C.I.S.), in December 1991, the author examines: the legal personality of this international organization; its constituent bodies; the member states of the organization; CIS – present and prospects. -
Potrivit prevederilor art. 60 alin. (1) lit. c) din Codul muncii și art. 21 alin. (1) lit. a) din Ordonanța de urgență a Guvernului nr. 96/2003, interdicția temporară de concediere a salariatei gravide se aplică numai în situația în care angajatorul avea cunoștință la data emiterii deciziei de concediere despre starea de graviditate a salariatei concediate. Deși art. 272 din Codul muncii prevede că sarcina probei în litigiile de muncă revine angajatorului, dovada faptului pozitiv al informării prealabile cade în sarcina salariatei gravide care contestă faptul negativ invocat de angajator că nu a luat cunoștință de starea de graviditate anterior concedierii.
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In order to highlight the civil liability structure, as ensuing from the wordings of the new Civil Code, enacted on October 1st, 2011, the author makes the synthesis of the theories of French doctrine developed in this issue: the theory of civil liability unity, the theory of civil liability duality and the intermediate or eclectic theory. Likewise, there are paraphrased discussions taking place at present, in the French doctrine as well, on the existence and relevance of contractual liability. The author presents thereafter echoes that these theories and discussions had within the framework of Romanian doctrine and jurisprudence during the last century. Acting towards the analysis of the wordings under the new Civil Code regulating civil liability, it is concluded that their editors have adopted our contemporary doctrine theory, under which civil liability is unique in its essence, and dual under the legal regime applicable to it. Therefore, following the criterion of the legal system, the well-known dichotomy is preserved: tort liability and contractual liability. -
Domestic violence is a social problem of contemporary communities, including the Republic of Moldova, because it has not yet found effective preventive solutions and there is no consensus on the coherent definition of domestic violence, especially when it comes to the criminological side of this phenomenon. Therefore, following the research of the specialized literature and various normative acts, we can define the crime of domestic violence as a negative social-legal phenomenon, with mass character, variable from a historical point of view, which consists of all illegal acts (crimes and misdemeanors) committed intentionally against family members, as a rule, for the purpose of controlling and dominating them, which causes physical, psychological or material damage, committed in a certain territory, in a certain period of time characterized by quantitative indices (level and dynamics) and qualitative (structure and character). -
The author explains in detail the concept of “civil servant”, according to the interpretation of the provisions of art. 175 of the new Criminal Code adopted by Law no. 286/2009, attempting to reveal both the merits and the limitations of the interpretative rule examined contextually. The author examines each of the categories of persons falling, according to the lawmaker’s wish, under the notion of “civil servant”, which he accompanies with examples, at the same time mentioning numerous decisions of the courts of law keeping their validity in relation to the provisions of the new Criminal Code as well. In the end, following the analysis made, the author reaches certain conclusions and formulates some de lege ferenda proposals aimed at improving the text examined. -
According to art. 20 para. 2 in the Criminal Code, it is called tentative also in the case where „due to the fact that when the acts of execution have been committed, the object was missing from the place the offender believed it were”. This case is defined by the means and the material object, because these two entities are considered the effect’s agents. In the absence of the material object from the place where the offender believed it were, the criminal doctrine concluded two assumptions: first, called the relative impossibility, implies that the material object was absent from the scene while performing acts of execution by the author, while, in case of absolute impossibility, the material object was absent. For a complete image of the role the material object plays within the attempt, the author introduced also some references on the Italian, German and Anglo-American criminal law. -
The study starts from the premise that the research of the classical Romanian legal and administrative doctrine can offer solutions to topical issues of the public administration, such as public service matters. The historical analysis allows to identify the opinions of some authors who are representative for the public law of the interwar period in terms of the concept and of the characteristics of the public service, of the applicable legal regime, of the categories and forms of organization thereof. Thus, the public service appears as an activity carried out or authorized by the public administration in order to satisfy regularly and continuously a general interest of a national or local collectivity, an activity subject to a legal regime of public law.
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In this study the authors examine, rather exhaustively, the problems of regulating the submission of the written notes by the parties, namely: both the „common law” in the matter [Article 244 (2) and Article 394 (2) of the new (Romanian) Civil Procedure Code] and a series of special provisions in the field, included in the same Code [Article 244 (3); Article 244 (4); Article 222 (2); Article 383], and finally, after examining the legal consequences of the non-compliance with the mentioned rules, they formulate a series of interesting conclusions with respect to the topic discussed. -
Commercial competition is „a social patrimonial or non-patrimonial relationship, arising between natural or legal persons engaged in economic activities, based on the property right, equal opportunity for competitors, the freedom of action for enterprises, the freedom of choice for consumers and the obligation of the participants in these relationships to enable the exercise of the mentioned rights, in order to ensure a degree of rivalry between competitors which would bring benefits to the consumers, in terms of price, quality of the marketed goods and services”. Competition can be manifested in various forms, namely: perfect competition, also called pure; real perfect competition; imperfect competition; monopolistic competition. From a different perspective, namely that of the respect for fair customs and of the general principle of good faith, the law distinguishes between fair competition and unfair competition. Fair competition is „the situation of rivalry on the market, in which each enterprise tries to simultaneously obtain sales, profit and/or market share, offering the best practical combination of prices, quality and related services, by respecting the fair customs and the general principle of good faith” [Article 11 a) of the Law No 11/1991 on combating unfair competition]. „Unfair competition is... the commercial practices of the enterprises that contravene to the fair customs and to the general principle of good faith and which cause or may cause damages to any market participants” [Article 2 (1) of the Law No 11/1991]. Price is an essential indicator of the social reality and also a market instrument. In the doctrine the market price is defined as „a quantity of money that the buyer is willing to offer and can offer to the producer in return for the good he can offer”. It may have anti-competitive nature when it is derisory or contrary to fair customs.
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The study1 is structured around case law elements revealed by the European Union Court of Justice in the field of protecting the financial interests, as resulting from the Judgment in Taricco and others Case. The arguments rising from this judgment have effect in two relatively neighboured matters such as fighting European revenues fraud and fighting tax fraud. Solving the case, the Court seems to abolish the borders between the two concepts, generating a series of issues in criminal law. -
The article proposes solutions in the case of concurrence between the reopening of the criminal trial in case of judgment in the absence of convicted person and the resumption of the time limit for appeal, and after an analysis of the two procedures and a comparative analysis of the ordinary and extraordinary means of appeal, it concludes that the reopening of the criminal trial is an extraordinary means of appeal.
