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The present analysis was carried out in order to clarify the situation in which the heads of claim do not have a clear and justified correspondent with the arguments presented in the statement of claim, as well as possible procedural solutions which can resolve such an issue. From the sources analyzed so far, it appears that there is no straight forward solution for this situation neither in the legal provisions, case law or speciality lectures. The premise of our study consists in the situation in which a claimant submits a request containing only one head of claim, although the content of the statement of claim includes also arguments and grounds which are not related to the one and only head of claim which was mentioned in the application, because they refer to different legal topics which are not properly expressed at the beginning of the statement of claim, as head of claim. The present analysis concerns the issues arising from the above mentioned situation both for the claimant and defendant, but also which are the remedies at their hand if such situations will occur. In addition to this, the study presents also the remedies available from the courts’ perspective if such a situation appears in different phases of the trial, but also the consequences of this situation if the issue is not addressed properly by the parties or by the court before the issuance of the court ruling. -
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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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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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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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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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.
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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.
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In this analysis, the author carries out a study of the continued offence regulated by the Criminal Code of Romania, covering both theoretical and practical aspects, proposing different solutions in the determination of legal classifications according to the concrete circumstances of the cases. The analysis proceeds from the regulatory framework of the continued offence, continues with doctrinal references and argues or counter-argues with its own arguments, expressing the author’s own opinion. Particularly, when the conditions of the continued offence are analyzed, the one that regards the factual homogeneity of the material acts that form the legal unity of the offence is emphasized.
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In this article, the author proposes to make some theoretical and practical reflections on the definition of the law. Until now, in no law school and no judicial culture system it was formulated a definition of the law, to be accepted as a universal definition. Latin jurists – to whom the entire European judicial civilization is related – have not even been preoccupied with defining the law, but they have left us as legacy several definitions of the law, that is of positive law. The author points out that the scientific concept of law depends on the particularities of the judicial regulation of the social relations, which are different from country to country and from one national judicial system to another. It would be very difficult to formulate a universal definition of the law, given that each people has its own psycho-social characteristics which can not be accommodated with similar characteristics of other peoples. The author considers that in democratic societies, based on the principles of the state of law and which have at the centre of their public policies the individual, through law it is achieved a balance between the power of the state and the autonomy of the individual will. By law it is ensured the respect for the fundamental values of the nation, a democratic government centred on the sovereign will of the nation, as well as the individual rights and freedoms of citizens. In conclusion, the author points out that the law-making process in any state must be legitimate, namely it must express the will and fundamental demands of the citizens, the most general interests of the population. Finally, the author proposes a set of formal requirements-criteria for assessing the laws passed by the Parliament. -
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.
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Starting with 25.05.2018 the Regulation (EU) No 679/2016, also referred to as Regulation on the protection of individuals with regard to the processing of personal data and on the free movement of such data has entered into force. This regulation, although replacing the previous applicable directive in the matter, respectively Directive 95/46/EC, taking over from its functioning principles, brings significant novelties from the point of view of the general framework in the matter of protection of personal data, circumstantiating and detailing many of the mandatory rules in the matter. By proposing to create a common framework at unional level, the Regulation No 679/2016 provides the necessary clarifications on the background of the galloping technological evolution and the accelerated growth of cross-border personal data flows. To that end, the aim pursued by the mentioned Regulation is to create a coherent and sound framework in the matter of data protection in the Union, in the context of a climate of confidence which will allow digital economy to expand on the internal market. It is, thus, intended to ensure that individuals benefit by a greater control over personal data, as well as to consolidate legal and practical security for the natural persons, the economic operators and the public authorities. Likewise, the Regulation strictly stipulates the premises in which any processing of personal data may be considered as being lawful and, thus, allowed, at the same time with the circumstantiation of the conditions in which the person concerned may be considered to have given his consent to the forecast processing. Also, a central element of the new European legislative initiative is to provide the necessary measures to ensure the transparency of the processing of personal data. In this respect, there are configured the obligations devolving on the operators of such data to inform the persons whose data are processed, as well as the cases and conditions in which the natural persons are entitled to rectify, erase or restrict the use of data concerning them.
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The present study illustrates a sensitive issue of the disciplinary procedure concerning civil servants, insufficiently debated in the speciality literature, namely the possibility of the titular of the disciplinary complaint to resort to the courts in order to refute the report by which the disciplinary investigation is finalized with a proposal to classify the complaint. The research is structured starting from the solution given to this issue by the courts themselves, in the few decisions that deal with the subject, a solution which the author attempts to combat in the light of the current legislation in force, insufficient in its turn, corroborated with the relevant approaches taken from the decisions of the Constitutional Court. Apart from the elements of novelty and originality of the analysis, it is distinguished by its applied character, knowing the ideas conveyed by the author being necessary not only for the civil servants involved in disciplinary conflicts – as defending parties or as members of the disciplinary commissions –, but also for the judges called upon to decide on the legality and grounds of the solutions for dismissal of the disciplinary complaints. The thesis of inadmissibility of the actions seeking the annulment of the dismissal solutions should be reconsidered, the author’s opinion being that the commissions’ reports can be included among the administrative acts (by express or tacit validation by the leader to whom they are presented) or in the refusal to perform an administrative operation, as a challengeable act under Article 8 (1) of the Law on administrative disputes No 554/2004. It is certain that concealing reports from the commission against any form of control is not only harmful (at least at moral level) to the titular of the complaint, but also abnormal, unjust and unlawful.
