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The evolution of technology has facilitated the development of the so-called collaborative economy. Through collaborative online platforms, which „remove” the borders between states, various services such as short-term housing rental (Airbnb type), urban transport (Uber type), pet-sitting (PetBacker type), and others are provided. In Romania, the activities specific to the collaborative economy are in full development, in the context of the absence of some regulations specific in the matter. The purpose of the paper is to determine the role of the service provider in electronic contracts concluded through collaborative platforms and to which rules they must be subjected, taking as reference system the service provider with the habitual residence in Romania. It is analysed only the situation of service providers – natural persons, which can be grouped into two categories: a category of persons providing various services on an occasional basis, in leisure time, in order to obtain additional incomes (the so-called prosumers), category which is the basis of the collaborative economy, and the second category, which includes the persons who provide services on a regular basis, on a continuous basis, on their own and aiming at obtaining profit. The distinction between non-professional and professional service providers is difficult to achieve; there are no criteria in the legislation in the field of services for this purpose. The quality of professional or non-professional must therefore be analysed on a case-by-case basis, using the rules of the common law. The legal regime depends on the classification of the service provider into one category or another. The contracts in the collaborative economy are concluded by means of online collaborative platforms. Those operating in Romania mostly have their headquarters abroad, which awards international character to the contracts concluded. Using the regulations in force, there are analyzed the modalities to determine the law applicable to contracts and the authority competent to solve the disputes, which may arise between the service provider and the platform or between the service provider and their user. The study captures only a small part of the collaborative economy phenomenon and seeks to clarify some day-to-day situations, which can give rise to some complex legal problems. -
On 24 May 2018, the Parliament of the Republic of Moldova adopted the Law of RM No 85/2018 „For amending and supplementing the Labour Code of the Republic of Moldova No 154/2003”, aimed at adjusting the national legislation to Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies. Thanks to these additions, operated in the Labour Code of the Republic of Moldova (hereinafter – the CM of RM), the Moldavian legislator has expressly enshrined the institution of collective redundancy. The present study aims at the multi-faceted elucidation of the legal regime of collective redundancy in the light of national legislation, of the European standards, as well as of doctrinal opinions. The identification and configuration of the circumstances and of the data underlying this research helped the authors of the study to scientifically elucidate the concept of collective redundancy and to determine the general procedure for its accomplishment. -
This second part of the study addressing the legal regime of the exception of unconstitutionality and the impact of such legal instrument on ensuring the constitutional order focuses on the admissibility conditions of requests to refer an exception of unconstitutionality to the Constitutional Court of Romania as well as the grounds for finding an exception of unconstitutionality inadmissible. In this context, there is strong emphasis placed on divergent case law approaches, which seems symptomatic for a certain „eccentric” tendency of construing the long-standing type of constitutional review enshrined in the Romanian Constitution. The conclusions of the study suggest the need for giving careful consideration to the manner of tackling such referrals to the Constitutional Court so as to remain in line with the structural requirements relating to the constitutional review as enshrined in our fundamental law.
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This article investigates how the postcommunist Romanian political regime was defined, with particular emphasis on the settlement of legal conflicts of a constitutional nature through the decisions of the Constitutional Court. Through this research we aim to identify the successive incarnations of the political regime, having as a reference the dynamics of the postcommunist Romanian political regime in relation to the continuous and varied relationship of the forces of political actors, as well as to the way in which they interpret and apply the constitutional norms. The originality of this research lies in the fact that in the analysis of the Romanian political regime we will combine the normative-institutional perspective with the perspective of the political and institutional practice, in order to obtain a complex picture, overall, on the way of formation and articulation of the Romanian political regime. The article highlights a permanent evolution of the political regime in relation to the continuous and varied relations determined by the forces relations of the political actors, as well as by the way in which the constitutional rules are interpreted and applied by them. The intrusion into the Constitutional Court’s jurisprudence in settling legal conflicts of a constitutional nature confirms the analysis of the political scientist Giovanni Sartori, according to which the alternation of the nature of the post-communist Romanian political regime is determined by the political and institutional practice built in relation to the political relationship between the president and the parliamentary majority. Defining the nature of the Romanian political regime helps us to understand the dynamics and frequency of constitutional crises
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The solution given by the Constitutional Court of Romania through its Decision No 358/2018 on the legal conflict of a constitutional nature between the Minister of Justice and the President of Romania, regarding the possibility of revoking the Chief Prosecutor of the National Anticorruption Directorate, as a result of which it acknowledged a „power of decision” on the part of the Minister of Justice on prosecutors’ activity, is based on the interpretation of the constitutional text provided by Article 132 (1), according to which public prosecutors shall carry out their activity under the authority of the Minister of Justice. This particular legal provision was interpreted by the Constitutional Court by applying the historical interpretation method, by expressly referring to the will of the original constituent, from which it could not digress without exceeding the limits of its interpretation operation and thus interfering with the law making process, in the Court’s opinion. But what are the limits of legal interpretation? How did the Constitutional Court justify its option for the historical interpretation approach? Is this historical interpretation static or dynamic, evolutive kind? Could the constitutional text have been interpreted from an evolutive perspective? But even so, did the Court make a just historical interpretation of the constitutional text? What are the solutions envisaged and how can the Constitutional Court fulfil its rightful role in a rule of law state?
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By the Decision No 369 of 30 May 2017, the Constitutional Court has declared as unconstitutional the phrase „as well as in other cash assessable claims worth up to ROL 1 000 000 inclusive”, included in Article XVIII (2) of the Law No 2/2013 on some measures to relieve the courts, as well as for preparing the implementation of the Law No 134/2010 on the Civil Procedure Code and has stated that „all judgments pronounced after the publication of this Decision in the Official Gazette of Romania, in the applications that are assessable in cash, less those exempted according to the criterion of matter, shall be subject to review”. Subsequently, the High Court of Cassation and Justice, by the Decision No 52/2018, has established that „the effects of the Decision of the Constitutional Court No 369 of 30 May 2017 are produced in respect of the judgments pronounced after its publication in the Official Gazette of Romania, in the litigations assessable in cash up to ROL 1 000 000 inclusive, initiated after the publication of the decision (20 July 2017)”.
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Înalta Curte reține că aprecierea asupra incidenței în cauză a Deciziei nr. 369 din 30 mai 2017 a Curții Constituționale nu încalcă principiul egalității în fața legii ori pe acela al nediscriminării cetățenilor aflați în situații juridice similare și nu reprezintă o denegare de dreptate, ci este consecința principiului aplicării în timp a efectelor juridice pe care o astfel de decizie le dobândește de la momentul publicării ei în Monitorul Oficial al României, fără încălcarea neretroactivității, un alt principiu constituțional. Atunci când hotărârea judecătorească nu se circumscrie sferei de aplicare a unei asemenea decizii nu înseamnă că prin aceasta se încalcă drepturi procesuale fundamentale, ci se procedează la respectarea unor principii și norme imperative, general obligatorii, menite tocmai să asigure garanții procesuale la care recurenta-pârâtă face referire. -
Analiza problematicii invocate în titlu vizează atât considerentele, cât, mai ales, dispozitivul Deciziei Înaltei Curți de Casație și Justiție nr. 52/20181, pronunțată de instanța supremă în complet constituit pentru dezlegarea unor chestiuni de drept și care vizează interpretarea și aplicarea dispozițiilor art. 27 din Codul de procedură civilă. În concret, Înalta Curte a statuat următoarele: „În interpretarea și aplicarea dispozițiilor art. 27 C.pr.civ., cu referire la articolul 147 alin. (4) din Constituția României, efectele Deciziei Curții Constituționale nr. 369 din 30 mai 2017 se produc cu privire la hotărârile judecătorești pronunțate după publicarea acesteia în Monitorul Oficial al României, în litigiile evaluabile în bani de până la 1.000.000 lei inclusiv, pornite ulterior publicării Deciziei (20 iulie 2017)”.
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PPPs, structured under Project Finance Standards, form a system determined by a normative complex organized by subsystems and interacting and interdependent elements conditioned by a process of control and communication. This systematic nature has an effect on the legal configuration of the content of the PPP contract. It was shown that financing depends, on the one hand, on budgets that condition it and, on the other, it acts as a determinant of other elements of the system, so that there is a close relationship between the financing of the project and the challenge of contractual management. The correspondence between the components of the project finance system is of reciprocal conditioning and is determined by the communication between its parts.
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The study has as subject olfactory pollution and it aims to outline first that this type of pollution is far from being a mere discomfort that most sensitive people feel acutely, because unpleasant odours, miasmas, are proof of some chemical substances with harmful effects on the human body. Then, the article shows that while the number of public complaints is steadily increasing, the regulations – national, foreign, European – still have a timid and anaemic nature. From the results of the researches it follows, first, that the olfactory pollution is related to the wider theme of air pollution, which as an essential element of life (and therefore to us people!) must meet a number of conditions expressed by: temperature, humidity, purity, chemical composition. These conditions must lie within the limits of tolerance of the human body and of existence of the fauna and flora; due to natural phenomena, as well as to human activities, in the modern society, air has undergone major changes materialized either in the change of concentration of some natural compounds or in the penetration of some elements unknown to this environment, radioactive substances, chemical substances resulting from human activities, the air thus becoming the „garbage dump” for all gas or gaseous wastes produced by the living. Therefore, we are talking about a polluted air, not just when it is manifested by the presence of substances other than the natural composition of the air, but also when their quantity makes it unsuitable for the fulfilment of its roles. Starting from here, for the specialists in different fields, the notion of „polluted air” will have different meanings; thus, for the physician, the air is polluted when the concentration of unknown substances reaches harmful levels for the human body, while for industrial technologist, concerned with corrosion, when the pollutants reach concentrations that alter the structure and operation of plants.
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The present study addresses a topic surrounded by increasing heated debate in the Romanian legal jurisprudence, namely the legal regime of the exception of unconstitutionality and the impact of such legal instrument on ensuring the constitutional order. The first part of the study explores the citizens’ access to constitutional justice, as designed both in the American model and in the European model. Further, the solution adopted in the Romanian constitutional system, as part of the European model of constitutional justice, is outlined. The analysis subsequently deepens the configuration of the a posteriori constitutional review in terms of setting forth the distribution of attributions with respect to this type of review as well as the nature, content, effects, and legal regime of referrals to the Constitutional Court of Romania dealing with exceptions of unconstitutionality.
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The paper aims to bring some clarifications regarding the typicality as an essential feature of the offence, as it is reflected in Article 15 of the Criminal Code. In fact, the paper begins by noticing that the typicality or providing the deed in the criminal law was the first of the essential features of the offence identified by the representatives of the Classical School. At the same time, it notes that, if initially typicality included only the objective requirements of the offence, now it is admitted to have a wider content, including both objective and subjective elements, as well as anti-judiciality elements. Through his study, the author brings some doctrinal explanations about the notion of typicality.
