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Société des Sciences Juridiques et Administratives



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ISSN-L 2247 – 7195


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Volume 11, Issue 1, March 2021

Contents



Article 1 - The principle of effectiveness of EU law: a difficult concept in legal scholarship

Abstract

Effectiveness is a principle frequently used by the Court of Justice of the European Union to secure the authority of EU law over national law. This study analysis the scholarly treatment of the concept in most relevant selected academic literature and draws some conclusions, mostly that difficulties remain surrounding the conceptualization of the principle. The Court uses it in a variety of ways and judicial outcomes are linked to the context of every case at hand. On one hand, we find effectiveness as a stand-alone principle or expression of general “effet utile”; but, on the other hand, we see the use of the term strongly connected to the effective judicial protection of individual rights and/ or as limit to national procedural autonomy. The concept is furthermore embedded in a complex matrix of various other principles of EU law, namely primacy, direct effect, indirect effect or the obligation of consistent interpretation, and Member State liability for breaches of EU law. The results of the study lead to question whether there is really one single concept of effectiveness in EU law and lead to further research in order to explore whether a comprehensive and coherent theory is necessary, feasible and/or desirable.
Key-words: effectiveness; EU law; principle; academic literature; meanings and conceptualization.
JEL Classification: K10, K33



Article 2 - Impact of the COVID-19 on the migration in the European Union

Abstract

Migration within the European Union is one of the main mechanisms for promoting and supporting the citizens of the Member States, being a component of the European internal market. For the last 6 years, amid illegal migration from outside Europe, the Union has been under strong pressure of solidarity, with border states, especially Greece and Italy, being severely affected. The emergence and development of COVID-19 has affected both the countries of the Union, the economies and the citizens, but also the migrants in the camps organized on the territory of the Union. The scientific paper addresses the legal aspects of the situation, the legal ways to ensure solidarity, but also respect for human rights for those in the camps. By using the logical method, the comparative method, but also the historical one, the presentation of the legislative norms, of the judicial practice for a good knowledge and understanding of the phenomenon is considered. Through this study we contribute to the standardization of scientific approaches to migration and to the determination of the obligations of the Member States of the European Union.
Key-words: migration, European Union, union policies, solidarity clause, human rights, sovereignty, medical crisis.

JEL Classification: K32, K33



Article 3 - International procedures to resolve dispute in tax law

Abstract

This study is about dispute resolution procedures in international tax relations. It is an issue of international tax law with enormous relevance at a time of globalization. Objectives: analyse the cooperative relationship programmes and mechanisms to guarantee the correct interpretation of tax legislation between administrations, in the field of international commercial transactions and investments. Methodology: study of APA programmes; comparative study of solutions adopted by some administrations in EU; some internal mechanisms to resolve dispute in tax law. Some case studies will be analysed. Results: we concluded that when a company initiates a new investment, it should consider the possibility that controversy could arise down the line about the consequences of the investment on tax to pay. So, the APA programmes are very important and if they can’t be applicable there are other mechanisms to assure the equity in e tax law interpretation and application. The administrative collaboration, the modernisation of methods and change of information’s are definitely important to the international commerce in a globalization era.
Key-words:international tax; administrative cooperation; dispute resolution procedures; tax law.
JEL Classification: K33, K34



Article 4 - The politicization of human rights in the universal pandemic 2020: the relationship between the Charter of Fundamental Rights of the European Union and the international tax law

Abstract

The Pandemic 2020, unexpected, affected the Human Rights politicization in Europe within different dimensions. The undoubtable relevance to the minimum existential, more than the discourse, the main legal instruments, avoiding the negative politicization disruption. This research was based on the Education and the Protection of Property. So, the main question supported this study was in the global pandemic moment, considering its broad implications in the social, economic and political domain, came to call into question the right to universal education, and tend to be free, due to the lack of financial resources from the Social State? We propose to debate connects with the need for tax collection to meet the expenses of the Social State, namely for the Education expenses and whether the economic limitation caused by the current pandemic in the face of the GDP sharp decline, has been associated with a large decrease in the collection of tax revenues. In order to achieve the conclusions proposed, in addition to evidently study the various generations of Human Rights, the politicization, we have to study the different instruments of international tax law and the action of the European Court of Human Rights for its effectiveness.
Key-words: human rights; social state; taxes; property protection; education; politicization.
JEL Classification: K34, K38



Article 5 - Types of individual criminal responsibility according to article 25 (3) of Rome Statute

Abstract

In this Article, we outline the concepts of international law that relate to cases of individual liability as well as to contradictions in the international legal system and provide the possibility to understand the legal aspects that emerge from certain conditions. Present international law is primarily based on the notion of independent international duty (majorly of governments and international organisations). This definition often does not provide a substantive or institutional tool for the distribution of responsibilities between a majority of participants in circumstances where contributions to negative results can not be applied on the basis of the particular cause of each person. The main tasks of the article is firstly to identify and define the main historical background and concepts that allow us to assess the law pertaining to individual responsibility and to conceptualize the relevant practice of the International Criminal court as well as to discuss the potentials and limits of the current framework of international responsibility in dealing with situations of both collective and individual responsibility.
Key-words: individual responsibility, international crimes, Rome Statute, collective liability.
JEL Classification:
K14, K33



Article 6 - What the economic analysis of law can't do - pitfalls and practical implications

Abstract

In the last decades, the influence of the economic approach to law has expanded constantly, sometimes alarmingly so, efficiency and utility considerations steeping deep into the fabric of all aspects pertaining to the creation and application of law. Following a brief overview of the economic analysis of law, with references to utilitarianism, the Chicago School and their modern spin-offs, this article will attempt to convey the limitations that such an approach inevitably presents and some of its the practical consequences in the legal field. The main tenant is that the economic analysis of law is neither applicable to all subject matters, nor is it ideologically-neutral. The methodological instruments used for this research include, inter alia, the comparative method and case studies of both legislation and jurisprudence. The Covid-19 crisis of 2020 will inevitably augment the importance of the economic factors in shaping future public policies and legislation. The tendency to prioritise the economic considerations will prove difficult to resist for governments confronted with receding economies, rising public debt and social pressures of various origins. Therefore, we consider that a realistic debate on the pitfalls of the economic approach to law is necessary and serves not merely theoretical purposes, but practical ones as well.
Key-words:the economic analysis of law, legal system, Chicago School, utilitarianism, public policies, value system, covid crisis.
JEL Classification: K10, K22



Article 7 - The communication of administrative decisions and the course of the time limits for challenging them. Comparative law solutions and perspectives of evolution in Romanian law

Abstract

The paper considers the mechanism of communicating administrative decisions in relation with the consequence over the course of the time limits for contesting them. The study begins with an analysis of the solutions found in comparative law and continues with the national perspective that includes a vertical approach, analyzing the normative versions of the last 30 years and those of today, as well as a horizontal approach, within the existing system in the current regulation. In the latter case, we target the provisions on the communication of administrative decisions to the beneficiary in relation to those on the communication to the third party, the regulation on the establishment of minimum and maximum time limits and the form that the communication must take to trigger the contestation time limits.
Key-words: administrative act, administrative decision, beneficiary, communication, legislative evolution, notification, time limit, third party.
JEL Classification: K23



Article 8 - Legal and organizational problems on identification of persons in activities of the State Border Guard Service of Ukraine

Abstract

The article deals with the identification of foreigners and stateless persons, problems of legal regulation of relations of the State Border Guard Service of Ukraine on collecting biometric data of persons, types of data subject to collection, processing, storage and administration. The problems existing in the mechanisms of collecting biometric data of foreigners and stateless persons, as well as issues of personal data protection are considered. An attempt was made to suggest changes to laws and regulations in the field of migration and border protection on the basis of empirical data. The goal is to investigate the mechanism of identification of foreigners and stateless persons during border control procedures at border crossing points (checkpoints) and at entry-exit checkpoints, as well as during administrative proceedings and to identify ways to improve the legal regulation of these procedures in the activities of the State Border Guard Service of Ukraine. The methods used in the research were the analysis and comparison of national legislation with the legislation of the European Union Member States and the Council of Europe (including the case law of the European Court of Human Rights) on biometric data. The questionnaire survey method enabled to obtain objective information about the border guards' awareness of personal data. The forecasting method was used to formulate proposals for amendments to the legislation to improve the organization of work processes in the activities of the State Border Guard Service of Ukraine when using IT systems. The research will enable to improve the procedure for collecting biometric data of foreigners and stateless persons by border guards, strengthen the capacity of the State Border Guard Service of Ukraine to combat illegal migration.
Key-words: State Border Guard Service of Ukraine, foreigners, stateless persons, data bases, fingerprinting, biometric systems, identification.
JEL Classification: K23, K37

 

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