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Societatea de Științe Juridice și Administrative

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Volumul 14, Numarul 2, Iunie 2024


Articol 1 - The Impact of the Constitutional Court Ruling of 15 November 2023 on the Federal Government's Budget Planning and the Potential Increase in Insolvency Cases in Germany


This study investigates the implications of the German Federal Constitutional Court’s ruling on November 15, 2023, declaring the second supplementary budget of 2021 unconstitutional, specifically the reallocation of unused COVID-19 debt authorisations for green initiatives. This landmark decision clarifies the exceptions to the debt brake and the handling of special funds, significantly affecting the climate and transformation fund, indirectly influencing other special funds aimed at stabilising the energy sector and rebuilding from the 2021 flood disaster. The research method involves a comprehensive review of legal documents, government reports, and financial data to assess the impact on Germany’s ability to fund its climate and energy transition policies, particularly through the climate and transformation fund and the broader implications for economic policy and insolvency rates. The main findings highlight the conflict between fiscal discipline, as mandated by the debt brake, and the government’s intention to finance environmental initiatives with unutilised COVID-19 debts. The ruling underscores the challenges of balancing fiscal restrictions with urgent environmental goals, questioning the flexibility of budgetary and tax policies to support significant investments in sustainability and climate protection. The conclusion calls for reevaluating how green agendas can be funded within stringent fiscal rules, emphasising the need for innovative financing solutions and a commitment to reconciling economic stability with ecological sustainability. This case study presents a critical analysis of the delicate balance between fiscal responsibility and achieving vital environmental objectives, urging rethink on financing green initiatives within the confines of fiscal and constitutional boundaries.
Key-words: budget planning, Climate and Transformation Fund, COVID-19 pandemic, debt brake, economic impact, fiscal policy, German Federal Constitutional Court, green initiatives, insolvency.
JEL Classification: K22, K34

Articol 2 - Assessing the Need for Enhanced Criminal Law Protection against Child Sexual Exploitation in Travel and Tourism


The subject of analysis in the current theoretical and practical research is an act with a high degree of social danger that exists in objective reality and manifests within the tourism sector – sexual exploitation in the field of travel and tourism. This exploitation is characterised by prerequisites for being carried out in a hidden and unnoticed manner. It is a multidimensional activity with objective and subjective features that affect the diverse rights of victims, primarily children. The primary goal of this study is to illustrate the necessity for adequate criminal law protection for every child worldwide from this form of abuse and to present several specific proposals. This article applies comparative legal research and socio-legal research of legal provisions of different legislation regulating sexual exploitation in travel and tourism. MAXQDA software was used for data analysis.
Key-words: criminal law protection, children, sexual exploitation, travel, tourism.

JEL Classification: K14, K33

Articol 3 - Whistleblowing as a Form of Expression: Comprehensive Overview of the Concept of Whistleblowing and Its Freedom of Expression Aspects, with Particular Reference to the Case Law of the European Court of Human Rights


This study endeavors to examine the phenomenon of whistleblowing within the context of freedom of expression. The paper is organized into three key segments, each addressing distinct aspects. Initially, it delves into the challenges and complexities inherent in conceptualizing whistleblowing. Subsequently, the paper establishes a theoretical foundation for the fundamental rights approach to whistleblowing, laying the groundwork for the final section: an analysis of whistleblowing cases through the lens of the European Court of Human Rights’ case law. The research methodology employed comprises secondary analysis (desk research) and legal case studies. The study aims to achieve a dual purpose: firstly, to offer a comprehensive understanding of the legal analysis and interpretation of whistleblowing; and secondly, to elucidate the evolving legal standards and criteria governing whistleblowing in the context of freedom of expression over recent years.
Key-words: whistleblowing, ECtHR, ECHR, freedom of expression, case law.
JEL Classification: K10, K33, K38

Articol 4 - Can the Platform Operator, Who Acts as a Provider on His Own Platform, Favor Himself over Third-Party Providers?


Certain platform operators serve as both suppliers of goods on the platform and sources of business opportunities. Platforms on which the operator himself is a provider, i.e. his own user, is referred to as hybrid or dual-role platforms. The platform operator can set and enforce the platform rules itself. Unfair treatment can take many forms, from a modification of the product ranking to the removal of products or the supplier from the platform. The ranking of products on the platform must necessarily put one provider’s product ahead of another’s and the platform operator must regulate in some way which providers are allowed on the platform and which are excluded from the platform. Thus, the question is whether these rules and their enforcement must be objectively justified or whether the platform operator can act on its own. This article discusses the concept of ‘self-favoring.’ Whether private law places restrictions on this kind of action or if the platform operator has the right to handle independently will be analyzed below. The analysis aims to furnish details regarding the operator’s essential powers on his platform, which are a manifestation of the notably partial exercise of regulatory power.
Key-words: EU law, private law, platform operators, self-favoring.
JEL Classification: K12, K20

Articol 5 - Online Dispute Resolution – From Origins to the Present


This article explores the historical evolution of Online Dispute Resolution (ODR) against the backdrop of the internet’s inception and development. In the early years, the internet was largely restricted to government organizations, the military, and scientific institutions. Censorship was prevalent, limiting the emergence of disputes within this limited virtual environment. To overcome these constraints, private commercial online services like CompuServe and AOL emerged, offering content-rich platforms but with limited connectivity. This limitation inadvertently reduced the incidence of disputes. However, unrestricted access to online services led to cases of identity deception and abuse, exemplified by the infamous case of a virtual persona, ‘Joan’. The ‘Joan’ incident underscored the challenges of managing online interactions in the absence of regulatory mechanisms. It prompted the emergence of system administrators responsible for balancing content policies and First Amendment rights. The article also delves into the early legal landscape concerning online communication and the challenges of regulating content and expression. This historical analysis offers insights into the origins of ODR, highlighting the need for effective dispute resolution mechanisms in the evolving digital landscape. It sheds light on the internet’s journey from a closed network to a global platform, raising critical questions about identity, freedom of expression, and the role of administrators in online governance.
Key-words: Online Dispute Resolution (ODR), Internet history, censorship, virtual environment, digital identities, content moderation, freedom of expression, early internet communication.
JEL Classification:
K15, K22, K41

Articol 6 - Waste in the EU Law


Definition of waste in the EU legal regulations is very vague. Therefore, the Court of Justice of the EU and the European Commission (by its guidance) try to help to the national courts with the interpretation of the concept of waste. There are many judgements that offer examples and circumstances that should be considered when defining a substance as waste. However, the fact that the concept of waste depends on the verb ‘discard’ which should be interpreted according to the relevant circumstances in the particular cases causes that the concept of waste remains still very vague. The situation is also complicated by the fact that the concept of waste does not have the same meaning with other relevant international documents. The aim of the paper is to collect the last development of the concept of waste in the judgements of the Court of Justice of the EU. In the paper, there are pointed out how the relevant circumstances of the word ‘discard’ should be considered in the present view of the Court of Justice of the EU. In conclusions, we try to summary the main categories of waste regarding the interpretation of the verb ‘discard’.
Key-words: waste, discard, by-products, circumstances, environment protection, Waste Framework Directive (WFD).
JEL Classification:
K33, K42

Articol 7 - Legality and Equity in Judicial Activity


The article tries to answer a very important problem faced by legal practitioners of all times, namely the problem of the relationship between equity and law. The perspective of a judge on this aspect is complemented by that of prestigious authors who have reflected on the most appropriate way of applying the law. In the article they are analyzed two major currents of interpretation of legal norms, which are still facing each other in the theory of law, namely textualism and purposivism, the first current claiming that the interpretation of the legal norms must be done exclusively on the basis of the text of the law, and the second that the legislator’s intention or purpose must also be taken into account. It is also emphasized the risk that, through the interpretation of the law, judges will impose their views on state policy. Only equity can protect us from this risk, because it prevents arbitrariness.
Key-words: judge; law; equity; interpretation; textualism; purposivism.
JEL Classification:
K10, K41

Articol 8 - About an Oil and Natural Gas Mining Treaty in the High Seas of the North Natuna Region with Economic, Legal and Environmental Aspects


This study thoroughly investigates the development of an oil and natural gas mining treaty in the high seas of the North Natuna region, focusing on overlapping Exclusive Economic Zone (EEZ) claims involving Indonesia, Vietnam, and China. Analyzing the geopolitical and economic implications, the research utilizes a comprehensive methodology, including policy document scrutiny and an extensive literature review. The findings underscore the significant potential of North Natuna’s natural resources, accentuating the determination of the three nations to assert their territorial claims. Notably, tension arises from China’s Nine Dash Line claim, challenging the UNCLOS 1982 arbitral tribunal decision. The study recommends a tripartite resolution, emphasizing a robust Code of Conduct agreement. Despite diplomatic efforts, this research stresses the need for strengthening the Code of Conduct and adopting a tripartite reconciliation approach to ensure the security and sovereignty of the North Natuna region. Enforcing rights through the International Arbitration Tribunal is crucial for lasting peace, stability, and the sustainable management of oil and natural gas activities.
Key-words: high-sea mining, maritime dispute, oil and natural gas mining treaty, territorial claims.
JEL Classification: K33


Articol 9 - Cyber Challenges amid the Digital Revolution in Maritime Transport


The smart shipping and maritime technology encompass blockchain and smart contracts technology, information perception technology, intelligent decision-making technology, intelligent routing technology, marine communication network security technology, route planning technology, autonomous navigation technology, state monitoring and fault diagnosis technology and so on. Nevertheless, these advancements bring practical and legal challenges, as well as a new threat in the digital age: cybercrime. This paper deals with the key challenges and opportunities associated with the integration of digital technologies in shipping and transport such as smart contracts and unmanned ships, and how do cyber issues impact the safety, security, and efficiency of maritime operations. The first part examines the technological background into which smart contracts are integrated and operate, i.e. the terms blockchain and technology distributed ledger technology. The concept, the mechanism and the types of smart contracts in the maritime industry are further analysed. Also, the aspects of new technologies such as Autonomous Vessels and the challenges they raise are examined. The second part focuses on the legal potential of smart contracts examining their issues and the cyber challenges in the maritime industry. The critical remarks and conclusions drawn are listed at the end of the paper.
Key-words: digitalisation, cyber security, smart contracts, autonomous ships.
JEL Classification:
K12, K20, K22, K24


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