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As a result of the particular regulation of a long-standing principle of European Union law, as of 25 May 2018, data controllers have an express obligation to process personal data „lawfully, fairly and in a transparent manner in relation to the data subject («lawfulness, fairness and transparency»)”. In the light of the arguments which will be presented in this article, it will follow that the principle of transparency gives data subjects the possibility to hold controllers and processors accountable and, in particular, to exercise concrete and effective control over their personal data, e.g. by giving or withdrawing informed consent, and by exercising regulated rights in favour of data subjects. In other words, by virtue of the principle of transparency, data controllers are obliged to take any measure necessary to ensure that data subjects – customers or other users – whose data are processed are fully and accurately informed. As regards the concrete way in which compliance with this fundamental principle can be ensured, the General Data Protection Regulation provides some guidance, stating in Article 12 (1) that the controller is obliged to take appropriate measures to provide the data subject with any information referred to in Articles 13 and 14 and any communications pursuant to Articles 15–22 and 34 relating to processing in a concise, transparent, intelligible and easily accessible form, using clear and plain language, in particular for any information addressed specifically to a child. Therefore, the information shall be provided in writing, or by other means, including, where appropriate, by electronic means. When requested by the data subject, the information may be provided orally, provided that the identity of the data subject is proven by other means. Last but not least, information or communication should, as a rule, be provided free of charge. Throughout the article, on the basis of the doctrine and case law, the meaning of the notions used by the European legislator in Articles 5, 12, 13 and 14 of the General Data Protection Regulation will be explained. -
The present research intends to analyze the issue of certification of the European Enforcement Orders from the perspective of the regulation provided for in Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims, from the perspective of the provisions of the Romanian Civil Procedure Code and also from the perspective of recent European and national case law in the matter. Therefore, the study aims to analyze the object, the scope of application, as well as the certification conditions of the European Enforcement Orders. In order to elaborate the study, there will be analyzed with priority the current European and national legislative provisions, the specialized doctrine, and also the relevant case law in the matter.
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The national legislation on social security provides for different standard retirement ages for women and men, and this aspect does not contravene the principle of non-discrimination on the basis of sex in social security matters, enshrined in Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, nor the principle of equality of citizens, enshrined in Article 16 of the Romanian Constitution. However, failure to apply the more favourable age conditions, laid down for women, to people who have changed their gender identity from woman to man may give rise to discrimination on the grounds of sex. The rationale for maintaining different standard retirement ages is based on the socio-professional disadvantages of women in Romania in relation to men, so that being a woman during their working lives justifies the application of a lower retirement age, regardless of whether at the time of retirement, following the change of gender identity, the beneficiary of the pension is a man, and not a woman. As national law does not regulate this issue, it is for the national courts to interpret social security legislation in accordance with the principle of non-discrimination on grounds of sex. The existence of different standard retirement ages for women and men does not automatically lead to the de jure termination of employment relationships as a result of retirement at different ages, as Article 56 of the Labour Code regulates the possibility of termination of employment relationships, for both sexes, at the same age. Nor does the change in gender identity give rise to different treatment, on the basis of sex, on the date of the termination of employment relationships as a result of the fulfilment of retirement conditions.
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This study aims to promote several solutions to ensure the accurate interpretation and application of certain provisions regulated under Law No 307/2006 on protection against fires, in order to determine whether the work performed by the employed personnel (holder of an employment agreement in private/voluntary emergency services) can be framed (qualified) as performed in special work conditions, under the legislation applicable to military personnel – professional firefighters under the emergency services.
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The active procedural quality in the direct guarantee action is one of the basic elements of the legal mechanism, regardless of whether we are talking about the active or the passive one. At first glance, we would say that the mechanism of direct action in general should not create too much discussion about its protagonists. However, in legal practice there has been a confusion about the subjects of the direct action, which has led to the questioning of the creditor’s active procedural capacity within the legal mechanism. Through this study, we are trying to shed some light on the practical application of direct collateral action, but also on the interest and procedural quality of the creditor and the debtor within the legal mechanism. Also, since the direct action in classic guarantee does not have a legal basis, unlike the direct action in payment, being derived from the notion of group of contracts, we will show why, in order to avoid contesting the procedural quality of the creditor within the legal mechanism of the direct action under warranty, the contracting parties must expressly insert a clause in the contract giving their consent to the transfer of the right of action to the sub-acquirer, in order to strengthen the transfer of the right of action under the guarantee for hidden defects. At the same time, as the direct action is an exception to the principle of relativity of the effects of the contract, the legislator is obliged to intervene, by introducing expressly some texts in the Civil Code, both in terms of the guarantee for eviction and in terms of the guarantee for hidden defects, so that the direct action in the guarantee finds its practical application. Only in this way will creditors be able to be protected from the effects of the exception of the lack of active procedural capacity, in terms of both guarantees provided by law (hidden defects and eviction).
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The persons without discernment, being incapable of understanding at all the gravity of their own deeds, are protected by the legislator by the establishment of a cause exonerating civil liability. However, for reasons of fairness, it was opted to introduce the subsidiary mechanism of the obligation of compensation, an innovation of the Civil Code that entered into force in 2011. Thus, even unaware of their own acts, a person may still be obliged to pay a certain amount of money which may, but not necessarily, be equivalent to the damage suffered by the injured party. The mechanism thus created tends to mitigate an inequity, but it is confused with a type of actual civil liability, be it objective. The present study aimed to analyze this mechanism, taking into account its jurisprudential applications, not numerous, but sufficient to draw some useful conclusions.
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Comentariu la Sentința penală nr. 1564 din 9 mai 2019 a Judecătoriei Timișoara și la Decizia penală nr. 903/A din 24 septembrie 2019 a Curții de Apel Timișoara
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The provisions of Article 320 of the Law No 95/2006 on health reform have raised serious problems of interpretation in judicial practice. The question has therefore been raised as to whether persons who have suffered physical injury may be required to pay their hospital costs of hospitalization and medical treatment in the healthcare facilities concerned, where the author of the injury has not been identified or the injured party does not disclose his identity, or where he is simply not liable for criminal action. The question was also raised as to whether the injured party had failed to make or withdraw his plea or had the parties reconciled or not committed the offense claimed.
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Parole was defined in Romanian doctrine as a way to individualize the execution of the custodial sentences, without deprivation of liberty, granted by the final decision of the court which are the conviction that the convicted person has been rehabilitated, as a result of meeting the required conditions during the execution of minimum statutory sentence, there is the semi-open or open regime of enforcement, the person has fulfilled his/her civil obligations, as well as subject to full fulfillment, under probation services, within supervision, of the measures and obligations. As a legal nature, the parole represents a post iudicium individualization of the execution of the custodial sentences and involves the release of the convict before the full execution of the sentence because the convict has proved that he has made obvious progress towards social reintegration. However, the parole is not a right of the convict not to serve the entire sentence, but a legal instrument by which the court finds that it is no longer necessary to continue the execution of the sentence in detention until the full period established by the final conviction has been fulfilled and the early release poses no danger to the community.
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It is necessary in the Romanian criminal procedural law to differentiate the conditions for the exclusion of derivative evidence from the conditions for the irradiation of nullity in continental law and to move them closer to the criteria of the fruit of the poisonous tree originating from the United States of America. We adapt these criteria and other criteria from foreign law systems to the context of Romanian law through the standards of the European Court of Human Rights. One of the conditions for excluding the derivative evidence is that the infringement from which it derives requires the exclusion of the resulting evidence to ensure the fairness of the proceedings. The derivative evidence has the capacity to convey the effect of the violation of the rights of the defence, the right to privacy or domestic law on the fairness of the proceedings, but in such situations the unfairness of the proceedings must be established on a case-by-case basis. The unfairness can be automatic if the infringement concerns Article 3 of the European Convention on Human Rights or consists in entrapment by law enforcement officers. The consequence is the automatic, absolute or relative exclusion of derivative evidence, depending on the nature of the infringement. The derivative nature of the evidence is determined quasi-automatically in the case of entrapment. In other cases, it must be concretely established, on the basis of the conditions of the causal link between the infringement and the evidence: the effect of the primary evidence and the effect of the unlawfulness on obtaining the derived evidence. The conditions for the exclusion of derivative evidence have consequences for its applicability. The sanction is not applicable when the primary evidence is not obtained illegally, but is inadmissible by its nature, because in this case the unlawfulness is missing. This condition is met in the case of acts such as arrest, therefore the exclusion of derivative evidence is applicable. The effect of the infringement is transmitted by means of the stress test in the case of early exclusion, occurs directly in the case of a continuing infringement and must be analyzed, mutatis mutandis, in the case of alternative means of proof concerning the same evidence. Since in the case of the irradiation of nullity according to the continental model the effect of the primary evidence is irrelevant and the effect of the unlawfulness is established in the abstract by law, the sanction is distinct from the exclusion of derivative evidence.
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The article describes the common law system in terms of sources of law, in the British system, the term legislation being used to describe the statutes of Parliament and delegated legislation, and the formula case law to designate both common law and equity. Statute law or Acts of Parliament represents in the law system of Great Britain the equivalent of the laws adopted in the Romanian law by the Romanian Parliament, and the term delegated legislation describes all those rules adopted by authorities other than the Parliament of the United Kingdom, but under its authority. At the same time, it is characteristic of the British jurisprudential system to publish cases settled by the courts of law or to report them, this activity being carried out by lawyers, by a barrister or by a solicitor.
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How firm the authority of the state should be and how wide the margin of freedom of the citizens of a state should be are questions without a convenient answer for either the state, or for the citizen. This is a truth that can be insisted upon for a long time, but without satisfactory results. The citizen has always demanded from the public power a sphere of his freedom as wide as possible and the public power has been and is, in principle, ready to retain an extra authority over the citizen. The author aims in this study to show that both the authority of the state and the vocation of freedom of the citizen must slide between reasonable and legitimate limits, so that the state can exercise its role and social functions established through constitutional norm and put in the service of the common good of the society and that the citizen can enjoy, without any illegitimate restraints or restrictions, a freedom (recognized and guaranteed by the state), which allows him to develop his personality and dignity as a human being, in the general interpersonal relations and in its relations with the state, in a determined social-historical, economic, political, cultural, religious context, etc. The author also shows that the relationship between authority and freedom is in its essence a fragile one, in which the state may have, in certain political circumstances or of other nature, leviathan temptations, with oppressive effects on the constitutional freedoms, a position from which it reproduces tools of force in ever new forms and it restricts the exercise of the citizens’ rights. The author draws attention to a serious social danger that threatens the foundations of a democratic government: the excess of authority and its repeated, illegitimate and unjustified use can be premises of the establishment of an authoritarian regime, in front of which the citizen is powerless. The excess of authority and the unlawful violation of public liberties call into question the democratic character of the state. In its turn and also in certain given political or social circumstances, the associated citizen or citizens may be tempted to resort to extreme forms of manifestation, claiming a higher degree of individual or collective freedom, to the detriment of the original authority of public power.
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The review is the only legal remedy that can be declared against the judgments of first instance pronounced by the administrative contentious sections. The former regulation of the Civil Procedure Code established that the review is devolutive, only inso far as the reviewed judgment cannot be contested by appeal. At present, being an extraordinary legal remedy, the review can only concern grounds of illegality of the judgment pronounced by the court of first instance. The present study has as object the analysis of the grounds for cassation listed by the Romanian legislator in Article 488 of the Civil Procedure Code from the perspective of the matter of administrative contentious. Thus, each ground for cassation will be briefly analyzed separately, from the perspective of applicability in the processual stage of review carried on before the administrative contentious courts. The analysis contains explanations of the normative texts, as well as examples from the national judicial practice, in which the R omanian courts have applied the grounds for cassation corresponding to the cases brought before the court. The aim of the research is to identify in the national practice the applicability of the grounds for cassation listed by the legislator and to present their effectiveness, following that, in the concluding part of the study, possible remedies regarding the currently existing grounds for cassation be proposed.
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The premise of this study is that the current legislation uses two legal notions with relatively different names, that is the „legitimate interest” in the administrative contentious procedure, regulated by the Law No 554/2004, and the „interest to act”, used in the Civil Procedure Code, both representing conditions of admissibility of the judicial action (in administrative contentious and, respectively, civil action). The aim pursued by the author was to observe whether these legal notions are synonyms or they differ, in terms of their processual connotation, depending on the nature of the legal action promoted. In this regard, the author has compared the two legal notions, revealing the similarities and differences between them, and, at the end of the study, he has set out the theoretical and practical arguments for the purpose of recognizing their processual autonomy.
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The study aims to present in a comparative manner the post-calculation clauses and the escalation clauses in international trade contracts, while presenting the main clauses of both categories, including the varieties of the well-known cost+fee clause. At the same time, the study gradually analyzes the structure of each type of clause, highlighting the main advantages and disadvantages that accompany the introduction of these clauses in trade contracts, both from the perspective of the owner and from the perspective of the contractor, who tries to transfer the risks to the owner, which in some situations may, paradoxically, even benefit from such a situation.
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The study aims to analyze the situation in the domestic law of the application of the institution of transfer of undertaking in relation to the exigences of Directive 2001/23/EC as interpreted by the Court of Justice of the European Union. The premise of a correct interpretation and application of this institution is the knowledge of the essential aspects developed in t he case law of the Court of Justice of the European Union that analyzes the scope of application ratione materiae of Directive 2001/23/EC, among which are emphasized the distinction made by the Court between labour force-based companies and companies whose activity necessarily involves the exploitation of goods, as well as the autonomous meaning attributed to the notion of „conventional assignment”. Furthermore, the author shows that the regulation of the notion of transfer of undertaking from the domestic law restricts the scope of application ratione materiae of the Directive 2001/23/EC, non-compliant conditions being imposed, such as the transfer of the property right from the assignor to the assignee and the existence of a contractual link between the assignor and the assignee. The analysis of the judicial practice of the national courts and of the opinions expressed in the doctrine shows that a unitary point of view has not been outlined with regard to the possibility of applying the principle of conforming interpretation of the domestic law in order to ensure the full effect of the provisions of Directive 2001/23/EC. In a first opinion, it is argued that the full effect application of the Directive from the perspective of the scope of application ratione materiae can be achieved through a conforming interpretation of the domestic law which allows to leave the contrary internal legal provisions be disregarded, without thereby reaching to a direct application of Directive 2001/23/EC. According to the second point of view, the extension of the institution of the transfer of undertaking over the express normative content of the internal provisions, in the absence of any legal operation of assignment or merger, without having as object the property right, would be an interpretation contra legem. In compliance with the limits of the principle of conforming interpretation stated in the case law of the Court of Justice of the European Union, the conclusion supported by the author of this study is that the conforming interpretation of the national law is an effective remedy for the full application of the provisions of Directive 2001/23/EC.
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In the context of the requirement to guarantee a higher level of protection of the health and safety of workers, imposed in the field even at European level 1 , the offences against labour protection are one of the ways that give expression internally to the highest legal protection in the field, satisfying both the special prevention in the field by preventing the occurrence of such events, sometimes having the most serious consequences and the need to punish more severely such deeds, when special social danger thereof requires so. The complexity of offences against labour protection lies in the often omissive and culpable conduct of the perpetrator, sometimes related to a particular specificity of the causality link between this and the state of concrete danger thus created, with special implications on the imputability of the deed, in the context of the difficult interpretation of the vast special legislation, which must, therefore, be known and correctly applied. The relevant doctrine was initiated, starting precisely with the comment on the first incrimination of this sort in the Criminal Code of Carol II of 1936, and relevant case law was found, including from the constitutional contentious court, with regard to the compliance with the principle of legality of the incrimination in terms of predictability of the rule of incrimination, short references being formulated to the European law in the matter of safety and health at work and of comparative law. Our analysis will cover the entire content of the specific offences, with reference to both the objective and the subjective typicalness of the offences against labour protection, including their pre-existing conditions, with the declared aim of supporting the practitioners in the field.
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The financial law relations are relevant in the extended dynamics of the public law, as a reflection of the importance of public financial resources and of the technicality of the legal elements in the budgetary procedures. This study positions, in this context, a traditional institution, namely the preliminary procedure, as a space for the manifestation of the dynamics and points of tension deriving from legal conflict relations revealed as a result of the audit missions of the Court of Accounts. The analytical approach organized in a spectrum from general to special highlights the working hypotheses, the functions, the object and the finalities of the preliminary procedure in the matter of budgetary law relations.
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In this study the author analyzes, from a double theoretical perspective – legal and politological –, the option of the constituent legislators from 1990–1991 for the semi-presidential republic, as a form of separation and balancing of the three powers in the state. Based on a relevant bibliography and on the parliamentary debates within the Constitutional Commission for the drafting of the Constitution and of the Constituent Assembly, the author submits to scientific reflection not only the points of view and arguments raised for discussion in the Constituent Assembly, but also the spirit of the constituent legislator referring to the type of political regime to be enshrined and defended by constitutional norm. There are presented, from the perspective of the constituent legislators, the positive and negative valences of the semi-presidential political regime. After many debates, the Constituent Assembly opted for the semi-presidential republic as a form of government after the overthrow of the old regime in December 1989. The author states that the legislators opted for a semi-presidential model of functioning and balancing powers which should preserve the role and the equal weight of the governing public authorities and which was, in its distinctive features, „very close to the classical parliamentary regime”. What the fathers of the 1991 Constitution wished to avoid – and this is clear from the parliamentary debates in the Constituent Assembly – was the institutionalization of some mechanisms and tools for exercising and balancing powers, which would allow in the future the President of the Republic to prevail in the actual political game, by subjecting the other public authorities. Therefore, the Constituent Assembly of 1990–1991 enshrined the institution of the President of Romania as a mediating factor in the governing mechanism, as well as in the conflicts existing in society, and not as a decision-making authority for governing the country. The author points out that, in the three decades of semi-presidentialism, the powers assumed in the governing process by the President of the Republic have exceeded sometimes the constitutional framework prescribed by the Basic Law, which has fuelled and is still fuelling various proposals to correct the current constitutional framework.
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The most striking word that illustrates the relationship between Romanian law and European law seems to be the word „marking”. Among the various nuances that can be assigned to the meaning of this word, three meanings are relevant from the perspective of the topic addressed by this paper. Thus, among others, to mark means (i) to influence in a significant way, or (ii) to bear a mark that illustrates a membership, or more precisely (iii) to change a destiny. All of these nuances are defining in order to describe the decisive and irreversible „imprint” that European law has made, is making and will make on our domestic law. Through this scientific approach we have set out to address the implications of this complex structure which involves a multidimensional union that includes elements of supranational law, following the paradigm of the interference. The example that we will focus on is the area of consumer protection, where we will also address issues regarding constitutionality in relation to domestic law, but especially in relation to European law. We will consider both the past and the future, but, naturally, we will focus our attention on the present. In the context of the current COVID-19 pandemic, while not focusing on any medical or health matters related to the pandemic, but rather on its ties with the emergence of a new global economic, financial and banking crisis, we will address the link between European Union law and domestic law.
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Recently, Brașov Court of Appeal ruled that that the legislator listed in Article 5 (3) of the Law No 55/2020 the measures to reduce the impact of the type of risk and that the Government decisions issued in execution of the law impose certain limitations on the activit y of economic operators, the observance of which requires the presentation by individuals of a certificate proving vaccination, infection with the SARS-CoV-2 virus or a negative test. Also, the Court considered that the provisions contained in the Government decisions do not add additional conditions and do not contain additional restrictions or limitations of fundamental rights, these restrictions being regulated in the Law No 55/2020 as a formal act of the Parliament. However, as we will show in our analysis, the provisions of the Law on some measures to prevent and combat the effects of the COVID-19 pandemic are unconstitutional insofar as they are interpreted as allowing the restriction of the right to privacy by the processing of personal health data by economic operators, data contained in the EU Digital COVID Certificate. The unconstitutionality of the law derives from the violation of the provisions of Article 1 (5) of the Romanian Constitution in its aspect regarding the quality of the law, from the violation of the provisions of Article 53 (1) in its aspect regarding the restriction only by law of the exercise of some fundamental rights and freedoms and from the violation of the provisions of Article 26 on its side regarding the guarantees associated with the right to intimate, family and private life. The domestic use of the EU Digital COVID Certificate is also unconstitutional in relation to the provisions of Article 115 (6) of the Romanian Constitution on its side regarding the field of regulation of emergency ordinances. Thus, the main conclusion is that the judgment of Brașov Court of Appeal was given with the incorrect application of the rules of substantive law, so that a constitutional control is required in order to ensure for the recipients of the Law No 55/2020 the reasonable possibility to be able to predict the scope and effects of this normative act.
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The study analyzes several proposals to ensure the settlement with celerity of the civil trial. The authors consider that these are the following: providing the necessary staff; generalization of the process of digitalization of justice and the transition to the „online civil trial”; transferring the competence to settle non-contentious application for certain areas to other authorities; extension of the special simplified proceedings carried on exclusively in writing or even without summoning the parties; pronouncing the judgments in civil matters only after they are motivated; abandoning the verification of the material competence in the stage of regularization; proposal to repeal the procedure for regularization of the application for summons. A very important proposal is the one that suggests that the pronouncing of judgments in civil matters should be made only after they are motivated. The authors consider that it is necessary for the drawing up to be made prior to the pronouncement of the judgment, because the considerations must be identified and formulated before the pronouncement, because they must necessarily be the basis for transposing the law by the act of justice. Another important aspect proposed by the authors is the complete repeal of the regularization procedure in its current form and the establishment of the first trial term in the urgent cases after a period of two weeks from the registration of the application and 30 days later in the case of the other applications, following that the possible measures of regularization be ordered by the judge at the first trial term with the summoning procedure being legally fulfilled, following that, practically, in a period of maximum two months, it will be possible to proceed to the investigation of the trial.
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At the same time with the entry into force of the Law No 85/2014 on the procedures for preventing insolvency and for insolvency, it has been also regulated indirectly the refund of the judicial stamp duty to the plaintiff who invested a court of law with a litigation against the defendant-debtor against whom a final interlocutory judgment to open the insolvency procedure had not been pronounced until the moment of bringing the action by means of common law. This study analyses the differences of approach between the old insolvency law and the regulation in force since 2014, by pointing out how the legislator decided to solve the issue of lis pendens created by simultaneously analyzing the same application within two separate procedures: the general one, before the common law court, and the special one, before the syndic judge. The study also analyses the implications of good faith, respectively of the guilt of the plaintiff who makes use of this application, with discussions on the moment, the manner of requesting the refund of the stamp duty, respectively of the amount whose refund may be ordered.
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Through this study we have tried to evoke an issue insufficiently addressed in the Romanian law, but which has provoked a series of controversies in the French doctrine and case law. Specifically, we tried to answer the following question: Does dolus require an excusable error? Or if, on the contrary, the (un)excusable nature of the error caused has no relevance for the retention of dolus? Following the presentation of the arguments expressed in the Hexagon, but also by certain Romanian authors, we will present our own point of view on this issue. In our opinion, according to the current Romanian civil regulation, dolus requires the existence of an excusable error, in opposition, for example, with the solution chosen by the French legislator in 2016 or with the vision of the editors of the UNIDROIT Principles. The Romanian judges confirm, in the majority, that it is inconceivable to cancel a contract for dolus, while the alleged victim of the dolus has violated by guilt his obligation of self-information. In other words, the lack of some reasonable diligences in order to know the reality excludes the dolus.
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During the execution of custodial sentences, detainees participate in various activities and educational program, psychological assistance and social assistance that facilitate the adjustment to prison life, support social reintegration and create the framework for learning the rules of social coexistence in the outside society. The central element of this research is the religious freedom of persons deprived of their liberty and the specific way of exercising it in places of detention, considering that a balance must be preserved between the fundamental right to freedom of thought, conscience and religion and interest of penitentiary administrations to maintain security in places of detention, respect for the rights of other detainees. Bearing in mind the content, but also the limits of religious freedom, the exercise of this fundamental right in places of detention has some particular characteristics because it influences the life in prisons, the diet of detainees, but also their other rights, and in this regard the special rules of exercise religious freedom can be determined on the basis of principles deriving from both national and European Court of Human Rights’ case law.
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The construction of the Romano-Germanic family law system is an interesting phenomena build around Roman law, which became a principle or a norm of thought for the European juridical thinking, and also around the law of Germanic people who colored the juridical European life and determined the process of codification. Thus, the article addresses the interesting issue of the combination process between Roman law with the law of the Germanic people, indispensable for the understanding of the Romano- Germanic family law system and for underlying the differences between this system and the common-law system. This is an important process, considering that a considerable part of the juridical systems of the world are founded around the family law system.
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Under the impulse of the ecoclimatic realities and of the evolutions of the international law, the great majority of the constitutions of the world states have incorporated, starting from 1970, environmental provisions and have recognized the right to the environment as a new fundamental right. The relevant case law and doctrine have contributed to explaining the meanings and dynamization of the progress of the constitutional provisions in the matter, as well as the assertion of the environmental protection as a constitutionally protected value. The constitutionalization of the environmental law in Romania, which began by introducing in the Constitution of 8 December 1991 the first provisions concerning the environment, continued by the revision from 2003 (which established the right of every person to a healthy and ecologically balanced environment) and it was developed by means of a relatively consistent case law which revealed concrete dimensions of the environmental law, its relations with the other funda mental rights and its constitutional-legislative guarantees. At the same time, the legislation has taken over and developed the constitutional provisions, giving them concreteness and practical efficacy. The evolutions of the constitutionalization of the environment in terms of positive law involved a theoretical analysis and superior understanding and thus have led to the formation of a new scientific legal discipline, respectively constitutional law of the environment. After its recognition, first in common law countries (U.S.A., Canada, 2012), then in some continental law countries as well (France, 2021), the new discipline is considered as being about to be born and acquire the academic recognition it deserves also in Romania.
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This study accurately highlights, on the one hand, the regulatory normative framework of the prefect and of the institution of the prefect starting from 1990 and until now and, on the other hand, the political vision on this institution, in the different stages of relationing between Romania and the European Union: pre-accession, accession, integration and present. The study critically analyzes both the ways of professionalization and depoliticization of the prefect function, as well as the actual repoliticization that took place in 2021. The failure to professionalize the function of prefect is presented in the broader context of the failure to professionalize the function and the public administration in general, one of the essential causes that determine the low performances of the Romanian public administration. Likewise there are critically exposed the legislative interventions to dilute the quality of the prefect of Government representative in the territory, in relation to the administrative function of the Government and its corruption into a territorial political agent of the Government, seen as an emulation of the political parties that form it. This political reverie is thus the basis of the legislative amendments that have led to the unconstitutional situation in which the implementation of the government programme in the territory by the prefect, which is in any case impossible to achieve as we will argue below, becomes the main commitment of the prefects, to the detriment of the very constitutional responsibility of the prefect, which determines the precise reason for the existence of the institution of the prefect – the administrative guardianship. All these are primarily the result of an ad-hoc and discretionary style of regulation – which can also be seen in the very large number of amendments brought to the framework law regarding the civil service – the Law No 188/1999, republished, as amended and supplemented: some of them by emergency ordinances subsequently declared unconstitutional, but which produced significant upheavals in the system.
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In the presence of an arbitration agreement, the parties remove the general competence of the common law court for any possible disputes that may arise between them. In this article, the author starts from a case settled in the judicial practice. In the present case, although the arbitration agreement was inserted in the contract of the parties, the applicant nevertheless referred the matter to the court of law. In this situation, before the Cluj-Napoca Court of first instance, the defendant wrongly invoked the plea of territorial lack of competence. The court referred with the matter perpetuated the error and admitted the plea, although it should have qualified it as being the plea of general lack of competence of the court of law. The Cluj-Napoca Court of first instance declined the settlement of the case to Oradea Court of first instance, which took the correct measure and declined the settlement of the case to the Arbitration Court attached to the Timiș Chamber of Commerce, Industry and Agriculture. In our opinion, since the parties have established by their will the competence of the arbitral court for any possible disputes between them, they should respect this aspect and should not refer the matter to the courts of law.
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The aim of this study is to point out the way in which transnational spaces exert their influences on the international legal order and the national legal ones. Theorizing transnational law opens the way of such demarche. Therefore, the overview of some schools of transnational law offers the opportunity for understanding the link between transnational spaces, transnational legal orders and transnational law. The transnational spaces "Mitsubishi" and "FIFA" evolve in transnational legal orders; the latter legal orders inspire the scholars to theorize actively the transnational law itself. Such theorizing may help us to be conceptually equipped in front of future transnational spaces.
