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This study examines the issue of dialogue between the Court of Justice of the European Union and the constitutional courts of the Member States of the European Union, with special reference to the Constitutional Court of Romania, and from this perspective, the effects of integration into the European Union and the transnational judicial dialogue they produce within the national legal systems. -
Departing from the constitutional basis underlying the relations between the Constitutional Court of Romania and the European Court of Human Rights, this study examines the judicial dialogue between the two courts and the effects thereof. The conclusion of this study, based on numerous examples from case-law, is that the dialogue between the constitutional judge and the European Judge serves to develop common standards for the protection of fundamental rights, as well as to enriching those existing at national level, with effects in terms of law-making and law-enforcement. -
Taking into consideration the fact that the coverage of the World Trade Organization has been expanded to the field of services as well, in this study, the author examines litigations in the matter of services, which can be resolved by the mentioned Organization, with the observation that only countries or, as the case may be, the European Union, can be “parties” in such litigations. The implementation of the General Agreement on Trade in Services (GATS) between the countries is conditioned by the “influence” on the international trade in services by various actions taken by the Member States; in this respect, in the practice of GATS implementation, the notion of “influence” is understood extensively. -
The violation of the rules of criminal law by a natural or legal person produces numerous consequences, both on the environment in which the offender lives and on his personality. Thus, criminal sanctions are applied to him with the purpose of preventing the commission of other deeds prohibited by the criminal law, but also of his re-education. However, the legislator, for reasons of criminal policy, has decided to regulate some situations that lead to saving the offender from the punishment provided by law. Among these situations are also the causes of impunity. The article aims to analyze the terminology used by the legislator in drafting cases of impunity and the repercussions that a misunderstanding thereof can have on the addressee of the criminal norm. For the elaboration of this article, doctrinal sources were used in which there have been defined causes of impunity and the moment in which they intervene, but also solutions found in the mandatory case law. -
Law no. 202/2010 on certain measures to accelerate lawsuits’ settlement introduces into the Criminal Code, by art. 741 of the Criminal Code, a series of provisions in favor of the charged person or of the defendant who has committed certain economic offences and covered the damage in full, until the settlement of the cause of action in the court of the first instance. The author considers that these provisions could be construed as certain legal and real attenuating circumstances, however having a special regime, which often generates difficulties related to the interpretation and enforcement in the courts’ practice. However deemed as unconstitutional in May 2011, the provisions of the above-mentioned article are being enforced regarding the offences committed until its expiry date, pursuant to mitior lex principle. -
The process of fighting against tax evasion has been and continues to be of particular importance for the Romanian legislator, due to the negative effects which this widespread phenomenon generates on the economic and social life, affecting the long-term development of a country faced with a fragile economy, still in transition. Despite the legislative developments of the last years, the normative framework in force continues to generate certain controversies, due to the different application and interpretation of the law, one of them being the modality to settle the civil action in the criminal trial, in case of tax evasion offences. Starting from the mentioned premise situation, the author of this study tries to provide an answer to one of the problems noticed in the process of interpretation and application of the law, related to the possibility of granting ancillary tax claims in the criminal trial. In this context, having regard to the legal framework in force, the author expresses his opinion on the impossibility to provide this kind of claims in the criminal trial, however expressing the opinion that the contrary solution, beneficial for the purpose pursued by the legislator, could form the object of legislative intervention, thereby providing a solid foundation for the solutions binding the author of the offence to pay the ancillary tax claims, even in a modality atypical to the tort civil liability, which serves as a model in the criminal trial. -
The study addresses a field of great practical interest, that of traffic contraventions. The perspective is one that combines in a balanced manner the doctrinal elements with the jurisprudential ones, the author proving a very good knowledge of the points of debate and of divergence in this matter. In the study there are included also elements that serve to differentiate the contravention from the offence, with references to the doctrine that has addressed this issue, but also the analysis of the most common differences of opinion, of interpretation and of application of the law. Among these there are: the forced intervention in the matter of the settlement of contraventional complaints, the balance between the presumption of innocence of the petitioner and the presumption of legality of the official report of the contravention, as well as the difficulties in establishing the judicial truth in the matter of contraventional complaints. -
The article reviews the main features of digitization and its implications in the economic and social field. The technological perturbations on the economy, people’s conduct, medicine, law, psychology and education are significant. The author proposes the establishment of a National technical-legal laboratory, besides a faculty of law, and of a scientific event, entitled „Law and Digitization – Improving Legal Services”, to help improve access to justice in a digitized world. -
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In this article we shall present the jurisprudence of the Court of Justice of the European Union concerning the right to entry and to stay of the third-countries nationals members of the family of the Union citizens, as it evolved from the beginning to the present day, with its incoherences and inconsistencies, but also with its advances. The Court of Justice has contributed to the European integration, through the freedom of movement, more than the political institutions of the Union (the Council, the Parliament and the Commission) , so that the new legislation adopted in this area has incorporated the jurisprudential acquis. The institution of the European citizenship, which transforms the Community and the Union into a more political organization, has also contributed to open the freedom of movement to the third-countries nationals in cases in which they couldn’t benefit of it and to transform the national legislation on immigration under the influence of the Union law as interpreted by the Court of Justice. Of course, the jurisprudence of the Court of Justice is often criticizable and, indeed, has encountered much criticism both from the part of the States and of the scholar literature for its openness to the third-countries nationals, which puts in danger the national legislations on immigration. We also gave our own opinion on the solutions of the Court, not only when we didn’t agree with them, but also when they has been criticised, in order to defend them because we considered that they are correct. As Romania is a member of the European Union, the implications of the jurisprudence in the area of the freedom of movement are of a great importance, so our study may contribute to inform the national jurisdictions in this respect.
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The study reiterates, in other aspects, the previously conducted analysis of the autonomy of the labour law, having in view the preamble of a civil decision of the 7th Division for cases concerning labour and social insurance disputes, within the Court of Appeal of Bucharest. This preamble also states: „The provisions of the Civil Code have nature of general law, representing the common law in the matter of civil legal relations in a broader sense, a matter where the labour relations are also included.” This study shows that, if such a statement would be retained, this would mean to accept implicitly the inexistence of autonomy of the labour law. As a result, it briefly analyzes the main specific features of the labour relations compared to the civil ones, reiterating that the labour law is a mixed branch of law, autonomous, but not independent from the civil law, a component of the private law. The rules of the civil law apply, as rules of common law, only subsidiarily, in the absence of some specific regulations of labour law and unless this is contrary to the particularities of the legal labour relations. -
Pursuant to Article 65 of the (Romanian) Labour Code, the dismissal of the employee due to the dissolution of his workplace, for one or more reasons not related to this employee, involves, according to paragraph (2) of this text, that such a dissolution „be effective and have a real and serious cause”. Having a view that in the case law there is a difference of opinions on the above-mentioned phrase, the author makes an exhaustive analysis of the text of Article 65 and comes to the firm conclusion that, in case of dispute, the court must determine whether, in this case: – the dissolution of the workplace has occurred due to a real cause, therefore the cause was objective, of an undeniable nature; – the cause is serious, so it has a certain degree of gravity, with harmful consequences for the employer, thus requiring the dismissal of the employee; – if, following the principle of good faith, the employer has used, prior to dismissal, all the other possible legal remedies, so that the dismissal had only been a last resort.
