Revue éditée par:
Editura ASE
Département de Droit de l'Académie d'Etudes Economiques de Bucarest

Et


Société des Sciences Juridiques et Administratives



ISSN: 2247-7195
e-ISSN 2248 – 0382
ISSN-L 2247 – 7195


Fréquence:
3 numéros / an

Contact:
office@TribunaJuridica.eu

PARTENAIRES:

CONFÉRENCE INTERNATIONALE
PERSPECTIVES DU DROIT DES AFFAIRES DANS LE TROISIEME MILLENAIRE
www.businesslawconference.ro

INTERNATIONAL CONFERENCE
GLOBAL ECONOMICS AND GOVERNANCE
www.gegresearch.org

ÉDITION ASE
www.editura.ase.ro

JURIDICE.ro
www.juridice.ro

abonamente
 

Volume 8, Issue 3, December 2018

Contents



Article 1 - The private international law communitarization

Abstract

The Community impact on private international law (PIL) began to be felt in the late 1990s. A phenomenon that would become a visible reality through an exponential increase in legal texts of community origin on issues related to PIL. Such was anchored in the concern to ensure the proper functioning of the internal market and the need to regulate private relationships that went beyond the limits of each state, enhanced by the freedom of movement (people, goods, services and capital), one of the cornerstones of European Union. This study aims to reflect on the creation of the International Law European Private and its impact on state PIL. A literature review will be conducted in order to understand the evolution of this reality after the Treaties of Amsterdam and Lisbon. We will use a deductive and speculative reasoning anchored the views expressed by the doctrine, law and jurisprudence. We will try to demonstrate the disuse of the classic PIL (of state origin) in relation to the community PIL.
Key-words: Private International Law; Treaties; Amsterdam; Lisbon.
JEL Classification: K33



Article 2 - Director's duty not to consciously determine the company to break the law – reality or controversy?

Abstract

The paper at hand will analyze directors’ duty not to make decisions which determine corporate violations of positive legal norms and it will provide an interpretation of corporate governance practices that underpin this duty in pre-existing institutions. In the first part, we will pursue the doctrinal attempts of integrating the duty of compliance within the contents of the duty of care or duty of loyalty. We will follow the evolution of this duty, from a simple effect of the ultra vires doctrine, to an obstacle of the contractual underlying of companies, to an element of the duty of loyalty. The paper will review effects that corporate legal violations have on agents’ liability, such as tax law, competition law, labor law, human rights and environmental law breaches, and will illustrate other essential features of this duty, such as compliance with corporate governance codes, ethics and corporate social responsibility. Finally, we will demonstrate that regardless of the approach of good faith in corporate governance, as a distinct fiduciary duty or as element of the duty of loyalty, the duty of compliance is a prerequisite of good faith and can be accomplished simultaneously with the duty to maximize corporate profit and shareholders' wealth.
Key-words: duty of compliance, duty of care, duty of loyalty, good faith, directors' liability, transnational justice

JEL Classification: K22



Article 3 - The relationship between legislation and the collective agreement in labour law. Some European options

Abstract

Is the intervention of the state in regulating collective labour relations a useful and beneficial tool, or rather a discouraging one? This is a long time concern of the doctrine, of the law-makers and of the practice of European industrial relations. And, on the background of different traditions and goals, the options are most diverse. Almost everywhere, the economic crisis and the digitalisation have altered the ratio of what the legislator has assumed and what is left to the social partners to regulate. Sometimes, the state has withdrawn to a certain extent from the process. Freed from constraints, the social partners have become more responsible than in the previous decade for the concrete way of negotiating and regulating collective relations. In other cases, the legislator felt the need to intervene more forcefully to offset the fragility of social dialogue. The paper aims to present some of the European options in the field and to place the experience of the Romanian law in context.
Key-words: labour law, collective agreement, legislation, industrial relations.
JEL Classification: K31, K33



Article 4 - Delimiting working time from rest time in the case of workers residing at the workplace

Abstract

The article presents the particular problems encountered in the process of delimiting working time from rest time in the case of workers who, due to the specific nature of their work and its organization, imposed by the employer, reside at the workplace, in which casethe question arises whether and under what conditions, the inactive periods spent by workers in their own residence may be included in working time. In order to identify these issues and possible solutions, the jurisprudence of the Court of Justice of the European Union is analyzed in order to establish principles applicable in this situation, as well as the national jurisprudence of Romania and that of other EU Member States, which is relevant in view of the common regulation of working time for all those States by Directive 2003/88.The practical implications of these issues are important from the perspective of the employer's obligation to respect the maximum weekly working time. In the presented conclusions, some criteria for the delimitation of working time from the rest time in this case are proposed, namely certain conditions, the fulfillment of which must be checked on a case-by-case basis.
Key-words: working time, rest time, workplace, residence
JEL Classification: K31



Article 5 - The determination of reasons of environmental pollution that require the impose of administrative sanctions in light of the Turkish Council of State decisions

Abstract

Environmental administrative sanctions are a means of precautions aiming for the protection of the environment, reduction of environmental damages, nonrepeation of acts causing the damage of the environment. The mentioned actions of the administration shall be concluded in accordance with principles of rule of law, legality, legal certainty. It is important to a great extent to demonstrate the legality of the sanctions and measures when applied subsequently for judicial remedy, during which in the process of application of such sanctions, documentation of the contaminative activities and reveal of activities transparently with its justification had been realized. In the Environment Law numbered 2872, the procedures and principles are determined, which must be obeyed by the officer in charge assigned by the central or provincial organization of the Ministry or by the competent authority of state institutions and organizations authorized by the Ministry for the environmental supervision for detection of violations, which require the impose of administrative sanctions. It is important to consider some factors for the establishment of the process to be applied against any environmental violation by the administrative institutions that have duties and powers in the field of protection of the environment, such as the investigations to be carried out in order to clearly reveal the source of the polluting activity, the means that can be used in determining the violation, the conditions to regard real or legal persons to be responsible for polluting activity, which abolishes the hesitations relevant to the source of pollution. When the decisions of the Council of State are examined, in some of the decisions it is noteworthy that the problems related to the determination of the violation are mentioned and some of the sanctions established by the administration according to the procedure stated in the legislation are cancelled. In this study, a discussion will be made on the decisions of the Council of State and the reasons of the administration and an emphasis will be given to the problems in implementation and legislation. Recommendations will be put forward for the procedures and principles to be more specific in accordance with the principle of legality and to strengthen the lawfulness of the sanctions, which are followed in the areas where inspection may be carried out by the environmental inspection teams and where sea, land, air and other environmental damages may arise.
Key-words: administrative sanctions, Turkish Council of State, environmental pollution, legality.
JEL Classification: K23, K32, K42



Article 6 - Considerations regarding Directive 2011/24/EU on the application of patients’ rights in cross-border healthcare in EU member states

Abstract

The free movement of persons is one of the four fundamental freedoms recognized and regulated at the European Union level. The definition and implementation of all existing policies and actions at European level, regardless of the scope, have as their focal point a high level of health protection. Under the conditions of the extension of the right to healthcare of the persons, at the level of the European Union, it is intended to ensure the access of every person to healthcare based on the latest scientific discoveries. The adoption in 2011 of Directive No. 24 is an important step in respecting patients' rights in cross-border healthcare, with important consequences both for the health of patients and for the health systems in the Member States.
Key-words: healthcare, cross-border, rights, patients.
JEL Classification:
K32



Article 7 - Brief analysis of the international legal framework of corporate social responsibility.

Abstract

This paper focuses on the main international legal documents providing guidance recommendations and principles on corporate social responsibility (CSR), considered it as a sustainability tool. A special attention is paid to the provisions of European Union regarding corporate disclosure of non-financial information and transparency. The nonfinancial information report has to include consultation rights, health and safety environment, social dialogue, fulfilment of the obligation of non-discrimination etc. Despite the fact that it is not necessary a comprehensive report on CSR matters, the outcome would consist in demonstration that the disclosure of information on policies, outcomes and risks will enable companies and their stakeholders to develop a very good strategy of corporate governance policy.
Key-words: international law, corporate social responsibility (CSR), transparency, nonfinancial disclosures, sustainability.
JEL Classification: K13, K23



Article 8 - Competition versus cooperation – new approaches on the energy market considering aspects of competition law

Abstract

The common energy policy of the European Union is a current topic on the agenda of European institutions, reflected in package “Clean Energy for All Europeans”, proposed by the European Commission. Despite several harmonization attempts, the consensus needed for a common policy and for an Energy Union has not been reached yet. One possible element why we still do not have a common energy market is the lack of competition in the energy sector. In this context, the present research paper analyzes to what extent competition can be a key-factor in ensuring the modernization of the energy sector. Aspects of competition law which are relevant for building a common energy market are highlighted in the present research paper. Furthermore, the present article raises the question how important cooperation is, searching the proper balance between competition and cooperation. The present article uses an interdisciplinary research method, combining the analysis of primary and secondary European law, of legal instruments and provisions, considering the teleological method, with the assessment from a business and economics point of view. Case law and case studies from Member States of the European Union provide best practice models for the energy sector and present an international comparative perspective..
Key-words: competition, cooperation, energy market, competition law, clean energy, Energy Union..
JEL Classification: K21, K22, K32, K33



Article 9 - Observations relating to compensations in the case of admission to the complaint against of the dismissal decision

Abstract

The study aims to analyze a consequence of the annulment of the dismissal decision by the court, for reasons of lackluster or unlawfulness. According to art. 80 of the Labor Code, in the event of the finding of illegality and/or inadequacy of the dismissal decision, the court orders the cancellation of the unilateral act of dismissal. An effect of the annulment of the dismissal decision is the employer's obligation - in all cases - to compensate the employee equal to the indexed, increased and updated salaries and the other rights that the employee would have been entitled to if he had not been dismissed. In relation to the imperative wording of the legal text, atypical assumptions are considered in which the award of damages should be nuanced in relation to the factual situation that led to the termination of employment relations. There are also issues related to the content of the claims and their amount.
Key-words: employee, employer, dismissal, compensation
JEL Classification: K31


 

Article 10 - On the dissolution of the limited liability company. Disagreement of the shareholders

Abstract

The limited liability company, similar to the general partnership is set up and functions on the grounds of the trust between shareholders. Therefore, this type of company has an intuitu personae character, just like any company of persons. The limited liability company operates as long as the conditions laid down by law are met, and if any or more causes leading to the improper operation of the company, it shall dissolve. One of the dissolution cases is that stipulated by articles 227 paragraph (1) letter e) of Law no. 31/1990 – the dissolution by court decision respectively – when the dissolution cannot be decided following a decision of the general meeting – on solid grounds, which can be misunderstandings between the shareholders. Such misunderstandings are not by themselves enough to lead to dissolution, but it is necessary for them to determine the improper operation or lack of any company’s operation.
Key-words: limited liability company, the Romanian Law, dissolution, affectio societatis.
JEL Classification: K22



Article 11 - The revision of the Posting of Workers Directive and the freedom to provide services in EU: towards a dead end?

Abstract

The development of the internal market, based on the principle of freedom to provide services, as stated in article 56 TFEU, rendered common the posting of workers to another EU Member State. The risk of leading to social dumping in the host Member State, resulting from the less favourable working conditions of the sending Member State, justified Directive 96/71/EC. Collective bargaining, which has always taken on a prominent place in the posting of workers framework provided for in Directive 96/71/EC, is clearly reinforced by Directive (EU) 2018/957 that amended Directive 96/71/EC. The caselaw of the CJEU, however, has revealed that in some cases the enforcement of the host Member State working conditions, in view of the lack of harmonization of labour law in the Member States in relation to minimum protection mandatory rules, can paradoxically constitute a restriction on the freedom to provide services. The analysis of the amendments introduced by the Directive (EU) 2018/957 will demonstrate that, despite creating a favourable legislative framework for fair competitive conditions between national undertakings and the undertakings that post workers, may compromise the delicate balance between the protection of workers and the freedom to provide services.
Key-words: Directive (EU) 2018/957, posting of workers, freedom to provide services, European Union.
JEL Classification: K31, K33



Article 12 - Management of railway infrastructure - national and European comparative analysis

Abstract

On November 12, 2016, in Romania the Law no. 202/2016 on the integration of the Romanian railway system into the single European railway area come into force after the 2012/34/EU Directive of the European Parliament and of the Council of 21 November 2012 on the establishment of the single European railway area was adopted in 2012. It is later adopted in Strasbourg on 18 April 2018 and will enter into force on 02.05.2018 The Regulation 643/2018 on rail transport statistics. Statistics on freight and passenger rail transport are needed to enable the Commission to oversee and develop the common transport policy as well as the transport elements of policies on trans-European regions and networks. Under Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004 on safety on the Community's railways, each Member State of the European Union must establish a national safety authority. In Romania, the Romanian Railway Safety Authority - ASFR2, was set up as a national body responsible for the tasks related to railway safety.
Key-words: railway infrastructure, Community's railways, European railway area, trans- European regions and networks, railway safety.
JEL Classification: K23, K33



Article 13 - The role of the Romanian State based on the new amendments to the insolvency law

Abstract

Law no. 85/2014 on the insolvency prevention and insolvency procedures, envisaged as of its entry into force as a true “Insolvency Code”, is the main tool for setting up a collective procedure for covering the debtor’s liability, as well as an opportunity to redress the activity of a company in financial distress. The recent amendments brought by the law-maker through the entry onto force, on October 02, 2018, of the Emergency Ordinance no. 88/2018 for amending and supplementing normative acts in the field of insolvency and other normative acts, although brought with the intention of improving the exiting procedure to date as a result of the practices found during the four years since the Insolvency Law has been implemented, succeeded, although probably unintentionally, to create a potential bias towards one of the main creditors encountered in the procedure, namely, the State. This paper therefore, considering the extremely short timespan since the entry into force of the Emergency Ordinance no. 88/2018, proposes by no manner of means to make no criticism on the new regulation, which might even prove effective on the long run as a result of the observation of the practice and concrete implementation of the provisions therein, but only to raise an alarm on some aspects which, at first sight, seem to create certain differences between the creditors by favouring, at least theoretically, a certain creditor.
Key-words: insolvency, creditors, State, valuation of assets, debt recovery.
JEL Classification: K22, K23



Article 14 - The legal protection of the interests of persons who have not committed criminal offences in the case of criminal procedural infringements – when and where the State draws the lines

Abstract

The contemporary criminal proceedings are characterised by the fact that increasingly more often alongside the interests of persons directly linked to a criminal offence also the economic interests of other persons are infringed upon, through the expansion of the institution of the so-called mechanism of confiscation of property not based on sentencing, etc. The article focuses on the legal protection of these persons and the relevant issues of it. The article examines the issues of the circle of persons, who due to the infringement on their economic rights have the rights but have not been granted the rights of an active participant of the criminal proceedings, as well as the scope of rights of these persons as participants of criminal proceedings. In difference to deciding on the issue “guilty or innocent”, which both on the national and the international level has a relatively strictly enshrined model, in deciding on the so-called “secondary” or “consequential” issues, a strict model like this is absent. Hence, the State should decide on the matter of how to ensure full legal protection to persons if their rights have been restricted. Undeniably, also in this case, the requirements regarding a fair procedure should be met. However, the matter, whether and – if – to what extent various rights should be granted in the framework of criminal proceedings, needs to be discussed. The article, based on the analysis of the Latvian experience, outlines some lines of discussion and provides the authors’ assessment of the possible development thereof. The issues that are raised by the Latvian discussion might be useful for creating and developing discussion also in other states.
Key-words: criminal procedure, infringement on economic interests, legal protection.
JEL Classification: K14, K29, K41, K42



Article 15 - The adoption of the Euro by Romania - theoretical considerations

Abstract

The paper contains, first of all, aspects of the convergence report drawn up by the European Commission and the European Central Bank on the level of readiness of a Member State to join the euro area when there is an express request for it. The second part refers to several proposals for actions that Romania thinks should follow in order to adopt the euro, starting with the Convergence Report of the European Commission and the European Central Bank of May 2018.
Key-words: euro, convergence report, convergence criteria, harmonization
JEL Classification: K23, K33



Article 16 - Considerations concerning the prohibition of use of the probation period in the individual labor contract (according to the provisions of article 33 of the Romanian Labor Code)

Abstract

The probationary period is the most appropriate way of verifying the professional skills - among the possible ones - given that during the performance of the individual labor contract, the skills of the employee can be tested. The objective of this study is to analyze the ban on the use of the probation period in the context of art. 33 of the Labor Code. Thus, we propose to discuss relatively the employer's ability to employ probationers through successive employment in a maximum of 12 months. We appreciate that it is useful to establish the practical implications of the legal provisions outlined above - in the context in which the probationary period is the most useful way of prior checking of the persons applying for employment.
Key-words: individual employment contract; probation period; denial clause; verifying professional skills; successive hiring
JEL Classification: K31



Article 17 - Presidential decrees and the principle of legality under Turkish law

Abstract

As of July 9, 2018, Turkey abandoned the parliamentary system and has adopted a sui generis kind of presidential system of government. The said new governmental system provides the President, the Executive Organ of the Turkish State, with the authority to issue presidential decrees on matters relating to executive function, and such authority that is conferred directly by the Constitution “is neither dependent on a prior parliamentary mandate nor subject to any subsequent approval”2. On the other hand, the principle of legality3, an important constitutional principle relating to “the rule of law” states that the Legislative power is “original/primary”, and that, as a rule, the Executive Organ possesses a secundum legem authority. As such, the prospective effects of the presidential decrees on the constitutional principle of legality will be reviewed in this study based on various discussions made by Turkish public law academics.
Key-words: Presidential decree, principle of legality, secundum legem authority of administration, “original/primary” powers.
JEL Classification: K23



Article 18 - Recovery of claims in the GDPR (General Data Protection Regulation) era

Abstract

The processing of personal information, including the one relating to financial data, is subject to the legislation on personal data protection, covering both individuals, creditors and credit registrars, as well as European supervisory authorities. This study looks at ways of debt recovery within the limits of the European Personal Data Protection Regulation. The first part of the study presents, ratione materiae, the considerations envisaged for the adoption of the Regulation, but also the way its limitations capture the recovery procedure. The second part of the study takes into account the prerequisites for the adoption of codes of conduct in the field of debt recovery, and in the last part of this study there are presented a number of limitations imposed by the provisions of the Regulation in the debt recovery process.
Key-words: personal information, personal data protection, GDPR, financial data, debt recovery, codes of conduct, European Personal Data Protection Regulation.
JEL Classification: K22, K23


Article 19 - Seeking for solutions to bounced cheque: example of Turkey

Abstract

The cheque, which has been replaced by money order and credit card in many countries, still remains as an important payment instrument in Turkey. Several sanctions are imposed for the use of bounced cheque in all legal systems in order to increase the credibility of cheque. In the early years of the Turkish Republic, there were no special sanctions imposed for the use of bounced cheque. Such lack of legal sanction for drawing bounced cheque led to an increase in the number of bounced cheque. The said abuse gave cause for certain sanctions on drawing bounced cheque. Considering bounced cheque fraud within the framework of Turkish Criminal Code did not however constitute a proper legal solution for post-dated cheque in particular. As such, Turkish lawmaker had the sole opportunity to define a new crime named “drawing bounced cheque” including imprisonment in the relevant code regulating cheque related issues. But the increase in the number of bounced cheque due to the economic crisis in the nineties made it necessary to find out a new solution. Accordingly, the Turkish lawmaker abandoned imprisonment and carried out a new regulation based on the acquis communautaire that led to the employment of the principle stated as “economic punishment for economic crime”. Since 2016, the QR-code cheque is also employed in order to prevent drawing of bounced cheque. This study aims to review the aforementioned measures with regard to bounced cheque and analyze the impacts of the QRcode cheque.
Key-words: Negotiable instrument, bills of exchange, bounced cheque, QR-code cheque, Turkish Commercial Code
JEL Classification: K22


Article 20 - Integrity in the business environment

Abstract

Increasing integrity, reducing vulnerabilities and corruption risks in the business environment is a strategic goal. Its achievement implies specific measures such as the exchange of good practices in the implementation of integrity programs between the private and the public sector, the organization of regular public consultations between representatives of the public sector and the business sector on the national anticorruption agenda and the public policies with impact on the activity economic development of antibribery policies and programs developed at the level of companies, including by bringing them to the attention of potential contractors and suppliers and requiring compliance with equivalent standards, initiating dialogue with regulatory authorities in areas such as energy, mineral resources, to implement legal standards integrity. The present study is dedicated to the analysis of integrity issues in the business environment, to the specific measures adopted by the Romanian state in accordance with and in the application of international reference standards, as well as to the perspectives in this essential area of business law.
Key-words: integrity, business environment, public policies, national anti-corruption agenda
JEL Classification: K22


Article 21 - Sport sponsorship contracts

Abstract

Sports organizations constitute the biggest events of the world and are usually widely followed. The main financial source of many athletes or sports organizations is the sponsorship, which enables the sponsor to reach customers. In this paper, I begin by defining the sponsorship, sponsorship contracts and sport sponsorship contracts. Then, I will discuss the legal nature of them. Secondly, I will analyze the parties of this contract. In addition, I will deal with the objects of sport sponsorship contracts, namely the aims of promotion, image transfer and increase engagement with its target audience and to reach a larger target market for the sponsor; and provide funding and promotion for the sponsored party. Finally, I will discuss the rights and obligations of this contracts and in conclusion I will examine whether it is possible for the parties to claim damages for non-pecuniary loss in the case of a violation of personality rights.
Key-words: sponsorship, sport sponsorship, legal nature of sponsorship, image transfer, sponsor.
JEL Classification: K12, K29


 

Ethics and Malpractice Statement
Open Access Statement

INDEXATION
Bases de données internationales reconnues pour le domaine des sciences juridiques en Roumanie (conformément à l'Annexe 24 de L'Ordre du Ministre de l'Education Nationale et de la Recherche Scientifique n. 6129/2016):







Autres bases de données internationales:





Bases de données nationales

Les bibliotheques et les catalogues internationaux
cliquez ici

Les bibliotheques et les catalogues nationaux
cliquez ici

Les échanges internationaux des revues
cliquez ici