Romanian Law Research Articles

Effective Judicial Protection of EU Law and Romanian Courts: Winding Through Res Judicata and State Liability

Abstract Effective judicial protection of EU law is a tool that has been devised by the case law of the ecj and then codified into EU treaties, but matching judicial remedies are still sought, both at supranational and at national level. While State liability enjoys the favors of the ecj at supranational level, some Member States have conceived special remedies that go as far as to challenge res judicata in order to protect substantive rights conferred to individuals by EU law. This paper presents the special remedy created by Romanian law, which allows re-opening of final court decisions if primacy of EU law has been disregarded, as examined by the ecj. It is our conclusion that, in the absence of legal harmonization in the area of procedural law, res judicata remains a powerful tool in the hands of national courts and the effective protection of EU substantive rights is still in search of a remedy more efficient than the theoretical state liability.

Brief Considerations Regarding the Competence of the Central Authorities in Matters of Filiation, in the Context of the Proposal for a Council Regulation on the Creation of a European Certificate of Parenthood

The study aims to present and analyse the competence of the central authorities in the matter of filiation according to the Proposal for a Council Regulation on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and on the creation of a European Certificate of Parenthood and according to the regulations in Romanian law such as: Civil Code, Law no. 119/1996 regarding civil status documents, Government Ordinance no. 84/2001 regarding the establishment and operation of community public services for the registration of persons. The authors present due clarifications regarding the dichotomy of the provisions of Romanian law (Romanian private international law, civil law and the regulations from the normative acts stipulated in the paragraph above) and the correspondence with the Council's Proposal for a regulation on filiation, noting the competence, the applicable law, respectively the recognition. Next, the paper will present the competent authorities from the perspective of the proposed Regulation and Romanian law. In conclusion, the authors will present de lege ferenda what changes would be made to the provisions of Romanian law by adopting the Proposal for a Regulation of the Council regarding jurisdiction, the applicable law, the recognition of court decisions and the acceptance of authentic documents in matters of filiation and regarding the creation of a European certificate of filiation considering that there will be rules of immediate application. Keywords: Central authorities; Child; Filiation; Parents; Private international law; Romanian law.

Civic Engagement and Cultural Heritage

In the current global context, the cultural sector faces various challenges related to funding, access, and participation. This paper aims to identify potential pathways for civic initiatives. The purpose of this narrative article is to discuss the role of civic engagement in protecting cultural heritage goods when public authorities fail to do so. The Romanian Law of Preserving Cultural Monuments is central to this discussion. It delineates the responsibilities of both governmental and non-governmental entities in safeguarding the nation's cultural heritage. Thus, the Herculane Project- situated in Băile Herculane (Herculane Baths), initiated by a Romanian non-governmental organization (NGO) offers invaluable lessons on the dynamics between civil society, public administration authorities, and the preservation of cultural monuments. The work presents a qualitative analysis of the mechanisms through which civic engagement has influenced the trajectory of the Herculane Project. It explores how local communities, NGOs, and grassroots movements have mobilized to advocate for the preservation of Băile Herculane's cultural heritage. The conclusion of this paper aims to demonstrate the relevance of contemporary civil societies in preserving cultural heritage goods. It underlines how the best practices employed by the NGO in charge of the Herculane Project can be applied to other cases while considering the dynamics of cultural heritage preservation.

EU Minimum Taxation Directive (2022/2523) (Pillar Two) Implemented in Romania

The law implementing the EU Minimum Taxation Directive (2022/2523), which is aimed at ensuring a global minimum level of taxation for multinational enterprise groups and large-scale domestic groups in the European Union, was promulgated in Romania by a Presidential Decree of 29 December 2023, published in the Official Gazette of Romania on 5 January 2024. This article provides an overview of the main features of the Directive as implemented into Romanian law.

LAND-USE AND TRANSPORT INTEGRATED PLANNING AND MODELLING IN CLUJ-NAPOCA, ROMANIA

The paper presents an example of successful reconversion of an industrial site located in the built-in area of Cluj-Napoca, Romania. This case study shows that land-use and transport integrated planning can be effectively implemented when a transport-oriented development (TOD) is designed for the redevelopment of an industrial site. Using TOD principles identified in the Romanian law and the technical criteria identified in the scientific literature, Sanex platform is analyzed to demonstrate it is a TOD. This would be the first documented TOD designed in Romania. A model is developed for TOD Sanex to estimate the impact that the redevelopment of the industrial platform into a multifunctional area will have on the local traffic. In this regard, two scenarios are analyzed – present scenario and future scenario after completion of the redevelopment. Two variants of the future scenario are discussed in connection to the Northern Mobility Corridor (CMN), the main project in implementation in the area, which is designed as a complete street. The results demonstrate that the induced traffic wouldn’t have a considerable impact on the local traffic now or in the perspective of the redevelopment. It can be integrated by the street network, which could operate in appropriate conditions. Considering the need of revitalization of the urban and rural industrial sites at the national scale in Romania and the benefits of TOD, a methodological framework in four steps is proposed. This framework would be a helpful support in the sustainable urban reconversion process, especially to achieve the reduced impact over the built environment and urban mobility.

The interplay between the second payment services directive, the national Romanian law on the payment services and GDPR

The second Payment Services Directive [Payment Services Directive (Directive 2015/2366/EU of the European Parliament and of the Council of the 23rd of December 2015, hereinafter ‘PSD2’] provided new rules for the market for payment services, including rules that allow new payment service providers to obtain access to payment accounts of data subjects for the purposes of providing the said services. The PSD2 rules regarding the payment services providers were transposed in the Romanian national law in 2019 by means of Law no. 209/2019 on the payment services (hereinafter ‘Law no. 209/2019’), and National Bank of Romania Regulation no. 4/2019 regarding payment institutions and specialized suppliers in account information services (hereinafter ‘Regulation no. 4/2019’). Regarding data protection, in accordance with Article 94 para. (1) of the PSD2 and art. 217 of Law no. 209/2019, any processing of personal data, including the provision of information about the processing shall be carried out in accordance with the GDPR and with Regulation (EU) No. 2018/1725. However, in addition to that, both PSD2 and Law no. 209/2019 provide for certain specific rules regarding consent, security, sensitive payment data, and silent party data, among others. Therefore, the paper will analyse the interplay and overlap in the regulatory regimes regarding the legal basis for processing data, the conditions for explicit consent, the processing of silent party data, the processing of special categories of data and sensitive payment data, and the way the payment service providers shall ensure data minimization, security, and transparency.

Order of Performance of Obligations

Abstract The proposed article examines the treatment of the order of enforcement of obligations by parties in Romanian law. The order of performance is a key issue in contracts and can influence the rights and responsibilities of the parties involved. According to the Romanian Civil Code, the order of performance of obligations can be determined by agreement of the parties or by applicable legal provisions. Thus, the parties may expressly stipulate in the contract the order in which they are to perform their obligations. If the contract does not provide for such an order, the Civil Code provides general principles and rules for determining the priority of performance of obligations. In practice, compliance with the order of performance of obligations may be essential if one of the parties does not fulfil its contractual responsibilities. If one party fails to perform its obligation in accordance with the established order, the other party may claim non-performance of the contract and seek termination, damages or other remedies available under the law. It is therefore crucial that parties pay particular attention to establishing and respecting the order of performance of obligations in contracts. This will help to avoid disputes and provide a clear and predictable framework for contractual relations. In conclusion, the order of performance of obligations in Romanian law is an important issue in contracts. Both by agreement of the parties and by application of the general rules, the aim is to establish a clear hierarchy of contractual obligations. Compliance with this order can protect the interests of the parties and facilitate the efficient resolution of disputes in the event of non-compliance with the contract.

Intestinal endoparasitism in wild cat (Felis silvestris) from Banat area (Romania).

The wild cat (Felis silvestris), spread in Romania from the Danube Delta to the mountain range is present in the Banat area, on the hunting ground that can be contaminated with different stage developmental forms of parasites, some of them having real zoonotic potential. The wild cat is an animal protected by the Romanian law of protection animals. Coprological samples from 88 wild cats from 16 hunting grounds, as well as the gastrointestinal tract collected from six wild cats cadavers and the molecular characterization of the cestodes identified in their intestines, allowed us to establish intestinal parasitic fauna. During coprological examination Isospora oocysts, tapeworm eggs, eggs of Toxocara cati, Ancylostoma spp. and Capillaria spp were found. At the same time, the form of genera Mesocestoides, Taenia, Toxocara/Toxascaris and Ancylostoma were identified at necropsy. Further polymerase chain reaction (PCR) identification revealed the species of Taenia taenieformis, and Mesocestoides litteratus, the latter providing a zoonotic potential. This study, the first in the western part of the country (Banat area, Timis County), provides information about the parasitic fauna of wild cats and underlines the importance of the human contamination risk.

Some Comments on the Criminalization and the Investigation of the Crime of Harassment in the Romanian Law

Starting from the provisions of Article 208 of the Romanian Criminal Code, which refers to the crime of harassment, the article proposed to analyze the crime of harassment both at the national and international level by means of Directive 2011/92/EU on combating sexual abuse on children, sexual exploitation of children and child pornography and the Council of Europe Convention on the protection of children against sexual exploitation and sexual abuse. The article also presents and analyzes issues related to criminalization and the investigation of the new forms of harassment carried out through information and communications technology.

Admission of Guilt and Its Consequences in Romanian Criminal Law and Criminal Procedure Law. The Admission of Guilt Agreement and the Abbreviated Research on the Procedure of Admission of Guilt

This study brings forth certain issues pertaining to the concept of negotiated justice, the influence of adversarial law on the Romanian law system, but also the most significant means by which these two institutions are implemented in national law, by also considering the situation of the Romanian justice system at the time these institutions were regulated. On the other hand, we will point out the most important aspects regarding the institution of the admission of guilt agreement in our system of law. We will also attempt to analyze the main aspects which allowed for different interpretations in judicial practice.

Geographic and Specialty-Specific Disparities in Physicians' Legal Compliance: A National-Scale Assessment of Romanian Medical Practice.

Physicians must respect their patients' rights to informed consent, privacy, access to medical records, non-discrimination, treatment by a qualified doctor, and a second medical opinion. Compliance with patients' rights is mandatory, and legal breaches are considered medical malpractice under Romanian law. This is the first study to assess physicians' practices nationally and create a geographical map of legal compliance. We examined survey responses of 2978 physicians, including 1587 general practitioners and 1391 attending physicians from high-risk specialties. According to the findings, 46.67% of physicians' practices adhered to the law. Physicians' practices were homogenous across the country's regions. General practitioners were significantly more legally compliant than attending physicians were. Additionally, 94.02% of the physicians acknowledged malpractice anxiety, whereas only 17.67% had been accused of malpractice. Our findings emphasize the need for further research and to voice issues about Romanian physicians' low level of legal compliance. This study provides a starting point for future studies to evaluate the benefits of interventional strategies in this field. Healthcare facilities should provide physicians with easily available resources when they are unsure about their legal obligations, and establish an observer organization that can detect unlawful conduct. Interventions should concentrate on education programs and expert guidance.

The New Juridical Institutes for the Protection of Persons with Psychosocial Disabilities Introduced by the Romanian Law No. 140/2022

The institute of placing under the ban was a protection measure applicable in Romania for a very long time, so that it remained ingrained in public perception as the only institute that could be applied to people with mental disabilities likely to affect their discernment. The consequence of the application of this institute emerges from its very name, namely the fact that the person targeted by the “protection” promised by the establishment of the prohibition, in fact acquired the stigma of being “forbidden” in the life of the civil circuit, more precisely, the guardian of the court-ordered banned person was in charge of absolutely all his/her fundamental rights and freedoms, excluding him/her completely from participation in social-economic and legal life.

Romania’s Implementation of International and European Cyber Law to Strengthen National Cybersecurity

Since the establishment of the Council of Europe Convention on Cybercrime in 2001, Romania has been at the forefront of ratifying and implementing the provisions and various directives and cooperating with international partners. In 2021, Romania became the headquarters of the European Center of Industrial, Technological and Research Competence (ECCC) in the field of cybersecurity. Its mission is securing digital infrastructures, conducting research in the field of cybersecurity and making technological developments. Because Romania is such an influential leader in European cybercrime, the purpose of this investigation report is to explore the level of implementation of international law into Romanian law, as well as to discover possible shortcomings. The report will specifically explore the implementation of the Convention on Cybercrime and related European directives into the national framework.

THE NECESSITY OF A HIERARCHY OF THE SYSTEM OF NORMATIVE ACTS AND PRINCIPLE OF THE SUPREMACY OF THE CONSTITUTION

In the approach and substantiating the hierarchy of the system of normative acts and the principle of the supremacy of the Constitution, we started from the idea that the relationship of legal norms, which gives substance to any system of law, must be characterized by unity, functionality and, last but not least, by hierarchy.
 My study is mainly about the Romanian law system, but it also includes some generality observations, applicable to all national law systems.

O publicație în inima actualității: Revista de Dreptul Familiei

: The Journal of Family Law is a publication with a legal profile, dedicated to family relations. The specialized topic concerns the institutions of family law, in their dynamics and in connection with the law of persons, the law of contracts, real rights, as well as with other fields of private and public law. The structure of the magazine resonates with the imperatives of judicial practice and with the requirements of interpreting the law in the literature. The practical and theoretical approaches have as obligatory landmarks the legislative and doctrinal novelties, in the Romanian law and in the comparative law. The analysis of the institutions is based on the practice of national courts and the binding case law of the European Court of Human Rights and the Court of Justice of the European Union. Addressed to legal specialists, but also to all those interested in the evolution and interpretation of institutions, the Family Law Review is a useful tool for identifying viable solutions for the rigorous application of legal norms.

Personal Status and Conflicts of Laws

The legal status of the foreigner has always been of particular interest, as it has been found over time that the rights that a natural or legal person may have in a foreign country have particular consequences. Part of the population of a country other than the one in which he is located or lives, the foreigner who does not have Romanian citizenship, but who is found on the territory of a state, may have the status of stateless, refugee or displaced person. The foreigner's legal condition contains all the legal norms that regulate the legal acts and deeds of foreigners, natural or legal persons. The legal norms that regulate this matter are material norms that belong to Romanian law and, as such, the legal condition of the foreigner is subject to Romanian law, as the law of the forum, respectively as the law of the place where the foreigner is found. The sufficiently rich Romanian legislation that regulates the field took into account the particular nature of social relations, aiming to be as close as possible to concrete situations. The current trend, contained mainly in the provisions of the Civil Code that "liberalizes" the possibility of applying a different rule of law than the classical one, we consider to be a step forward and is in line with the obvious progress of the science of conflict law, also resulting from its historical evolution. The foreigner's legal status is made up of the set of rights and obligations they enjoy based on state legislation and according to international conventions. This means, concretely, the set of legal rules that regulate the foreigner's ability to use, i.e. the rights and obligations he has in a state as a foreigner. We emphasize that, also in the case of the legal person, the legal condition of the foreigner can be used, this being "that collective subject of law, holder of rights and obligations, whose personal status is governed by its national law".

The Incapacity of the Married Woman in Interwar Romania: from the Issue of Legislative Unification to the Possibility of Practising Advocacy

"The incapacity of the married woman in interwar Romanian law is analyzed in the general context of the legal system of that period, which raises the question of legislative unification. From the perspective of the Romanian legal tradition in this field, but also of positive law, the doctrine and case law have clarified several relevant aspects. An interesting 1920 debate concerned the possibility for women to practice the profession of lawyer. The arguments brought by one side or the other reconstruct, to a great extent, the general attitudes regarding the incapacity of women in private law. In the field of equal political rights, the Constitution of 1923 stipulated the need for special rules “voted by a two–thirds majority” to establish “the conditions under which women can exercise political rights”. The ordinary legislature was to decide, sometime in the future, whether, at this level, it would establish a full equality of women and men, or whether it would grant women only in part a number of political rights which men had."

THE ETHICS AND LEGISLATION OF COMMUNICATION IN THE ROMANIAN PUBLIC ADMINISTRATION

The public administration communication is a type of mass communication which involves the dissemination of public information to citizens and the receiving of an efficient feedback in the form of an active participation in decision-making processes that concerns that community. Citizens not only have access to information concerning drafted legislation to be debated by central and local public administrative bodies, but they are also invited to participate to the administrative decisions, getting actively involved in the process. Our paper aims to analyze how the communication of public administration is regulated by Romanian law and which difficulties occur on putting into practice legal provisions. We argue that the distance between the letter of the law and its spirit must be covered by the ethic liability of participants in the communication between public servants and citizens.

Whistleblower’s Regulation – Legal and Ethical Perspectives on EU Directive Transposition Into National Law

"This article is analysing the legal perspective on whistleblowing, at European and national level, focusing on the scientific studies’ results and theories, emphasizing nuances which worth discussing in order to a better understanding of the social phenomenon and of individual psychological decision process for reporting a wrongdoing or the suspicion of a possible breach. We are also arguing that current whistleblower regulations must take into account both the European directive and recent research in this field, pointing out some question which are raising from the lack of the ethical and cultural focused research of Romanian society perspective on whistleblowing, considering also the recent past experiences of Romanians with ‘political police’ actions in years of communism. We are establishing a few research direction which we conclude that could bring the knowledge to drawing a more relevant and applicable whistleblowing law. Keywords: whistleblower, EU directive, Romanian law, whistleblower protection, normative conduct theories. "

Issues of Special Education in Romanian Schools

Abstract School managers, teachers, students, as well as their parents are faced with increasingly frequent attempts to integrate the diversity of pupils as a result of integration policies at national and European level. Educational needs of impaired persons require special attention. Is necessary to make steps should be taken to ensure access to education for each category of disabled person as part of the education system. Legislative framework in the field of special education Romania takes into account the legislation created by the international bodies on the education of persons with special educational needs, to which Romania has adhered. This paper presents aspects regarding the organization of educational support services dedicated to children, students and young people with special educational needs in mainstream schools in accordance with Romanian law; it also underlines the international legal framework of reference. This paper is part of a wider project that focuses on teacher training to optimize the integration of SEN pupils into the mainstream school; we used data collection methods, such as social document study and focus-group. An integrated and tailored approach is needed for children with SEN (special educational needs); focus-groups organized with primary school and gymnasium children, as well as with support teachers, revealed a number of adaptation issues from both sides (pupils with SEN and students with no problems). On the other hand, the itinerant teachers are assaulted by a series organization problems and it becomes impossible to provide support and assistance to children with special needs who are growing in numbers.Training of teachers is one of the most important pillars in the integration of all those involved in education, it is the way to optimize service organizations. Teacher training must respond to the real and complex needs of the beneficiaries, based on exploratory learning.In the final, will be presented and analyzed the main important problems faced by both teachers and pupils in the current educational context.