THE PUBLIC SECTOR PURCHASE PROGRAMME RULING OF THE GERMAN FEDERAL CONSTITUTIONAL COURT AND THE EUROPEAN UNION LEGAL ORDER
The ruling of the Federal Constitutional Court (FCC) of Germany regarding the EU’s Public Sector Purchase Programme represents a striking new element in the judicial dialogue between the FCC and the Court of Justice of the European Union (CJEU) which not only has consequences for the aforementioned EU programme, but may have serious repercussions in a broader sense as regards the relationship between EU law and national constitutional law – as well as national constitutional courts and the CJEU. This paper looks at the central arguments of the GFCC ruling in this context and attempts to draw some conclusions regarding the future of the aforesaid relationship.
Keywords: Public Sector Purchase Programme, Bundesverfassungsgericht, constitutional identity, ultra vires acts.
THE DOCTRINE OF SUPREMACY OF EUROPEAN UNION LAW: FOUNDATIONS, SCOPE AND FUTURE PERSPECTIVES
The doctrine of supremacy is essential to the uniformity of the EU legal edifice. It had no formal basis in the Treaty Law but was developed by the Court of Justice of the EU by means of its conception of the “new legal order” (Costa v ENEL). Therefore, the corollary of sovereignty of the EU legal order is the supremacy of EU law: any norm of EU law takes precedence over any provision of national law. From the CJEU’s perspective, supremacy entails duty for the national courts to ‘set aside’ any conflicting national norm when an EU rule applies in a given case. Ultimately, the acceptance and application of the supremacy of EU law are dependent on the Member States. Despite its invention, acceptance of the doctrine of supremacy has been the main challenge within the overall integration process. Recent ruling from the German Constitutional Court (the Bundesverfassungsgericht) on the legality of the European Central Bank’s Programme marked that the supremacy issue cannot be put ‘ad acta’ and still continues to be surrounded with ambiguity and controversy against its unconditional acceptance as the CJEU requires. This paper summarizes the most remarkable aspects of the foundations of the supremacy doctrine and the conceptual basis on which the Member States accord supremacy to EU law, as well as its scope and limits. All this is necessary in order to be able to determine the perspectives for ensuring the supremacy of EU law, while highlighting its importance for the future of the European integration.
Keywords: EU legal order, doctrine of supremacy, sovereignty, CJEU, national courts.
THE BALKAN POLITICAL AREA: PROSPECTS FOR A RENEWED INTEGRATION OF THE EUROPEAN UNION
The contribution briefly analyses the methods and criteria for accession of a state to the European Union and investigates the accession process of the Western Balkans states. The contribution intends to underline the strategic importance of the states of the Balkan Region for the purpose of relaunching the process of European integration.
Keywords: Balkan Region, accession to the EU, European integration, democracy.
The article examines the EU Commission’s Communication of 5 February 2020 introducing a revised enlargement methodology for the purpose of reinvigorating the accession process of the Western Balkans candidate countries and make it more effective. Reasons put forward by some EU Member States at the end of 2019 for vetoing the opening of accession negotiations with Albania and North Macedonia are also discussed. The article suggests that the strategy outlined by the Council Conclusions of 5 June 2020 of enhancing cooperation with Western Balkans partners in the field of justice and home affairs (in particular, by strengthening cooperation with relevant EU Agencies) might be the key driving force for a more credible and dynamic EU perspective for the Western Balkans.
Keywords: Western Balkans; EU Accession process; enlargement methodology; migration and security; EU agencies.
EUROPEAN PATH OF THE WESTERN BALKANS REGION – NORMATIVE ASPECTS AND GEOPOLITICAL FACTORS
The purpose of the study is to analyze the general and regional context of the process of accession of the Western Balkans region to the European Union (EU). The Union (EU) is in a negative stage of its development, especially following Brexit, and even more since the pandemic has seriously shaken complete global economy and the economy of the EU as well. Those unfavourable factors added a bad momentum to the on-going monetary crisis that started in 2008. Therefore, the general context of the EU enlargement process is to be taken into consideration when analyzing the accession of each candidate country from the Western Balkans region. The next relevant context is the regional one. The dynamics of the accession process of these countries to the Union remains open. The EU is at the turning point in its evolution in contemporary conditions. Consequently, many authors are posing the question of the future of the EU. The enlargement process is not a priority for the Union, bearing in mind its internal problems, institutional, and even more, economic problems, especially after the outbreak of the pandemic. After The EU – Western Balkans Zagreb Summit of May 2020, this became evident.
It remains to be seen in the upcoming period whether “Europe-Fortress” is on the scene, with semi-open doors to candidate countries from the Western Balkans region, or is it Europe without borders. Membership in the EU can be one, but not the only alternative to those countries that are committed to improving their relations with the Union.
Keywords: EU, enlargement, Western Balkans, crisis.
HOW COVID-19 PANDEMIC INFLUENCES RULE OF LAW BACKSLIDING IN EUROPE
The phenomenon of rule of law backsliding raised attention over the last decade after judicial reforms in Hungary and Poland where Governments have sought to reduce judicial independence and jeopardize checks and balances by limiting the power of their respective constitutional courts. The EU has activated political and legal mechanism to address challenges with rule of law in member states, while negotiation processes with accession countries provide more options for influence on judicial reforms.
However, new challenges for rule of law are raised. For the past few months, Europe and the world have been facing with COVID-19 pandemic that put at risk the lives of the people and capability of healthcare systems to provide their services. To prevent the spread of the COVID-19, governments have imposed restrictive measures, while some of them declared state of emergency. The greatest threat for rule of law in Europe is posed by the recent events in Hungary, where unrestricted powers of ruling by decree were given to the government, without any deadline, without any further parliamentary control. Some countries introduced new crimes that could violate human rights. COVID-19 pandemic has posed unprecedented challenges to the functioning of judiciaries. Courts and prosecution services are working with limited capacities to ensure social distancing. Some countries, like Serbia, introduced ICT tools to organize hearings, which raised the question of protecting the rights of defendants. Despite the obvious need for introducing extraordinary measures during pandemic, these measures should be proportionate and time limited.
The paper offers an assessment of the recently introduced changes, restrictions and fast-track procedures that jeopardize separation of powers and rule of law in EU member states and candidate countries. Authors emphasized the need to protect rule of law and independence and impartiality of the judiciary in order to prevent further erosion of the rule of law, separation of powers and position of the judiciary in the member states. The role of independent courts is even more essential during the emergency period to protect citizens’ fundamental rights and freedoms against any kind of violation or abuse.
Keywords: rule of law backsliding, separation of powers, independence of judiciary, emergency measures.
RETHINKING THE THEORY OF STATE OF EXCEPTION AFTER THE CORONAVIRUS PANDEMIC? – THE CASE OF HUNGARY
This article focuses on today’s most important debate on emergency theory in the context of coronavirus pandemic. The theory of the state of exception in constitutional law is a matured one in a global point of view. Nevertheless, after the measures taken by the Hungarian Government, there are real concerns on the applicability of the classical theories. The paper reflects on the mentioned issue by presenting the so-called classic theories of this phenomenon and also the most relevant measures taken by the Hungarian government in 2020. The question remains: is it possible to preserve constitutionalism in an age of state of emergencies?
Keywords: state of exception, emergency models, the rule of law, Hungary, coronavirus.
NEW CHALLENGES FOR SOCIAL POLICIES IN HEALTH CARE IN CROATIA IN LIGHT OF COVID-19 PANDEMIC
Social policies in the area of access to health care have been high on the agenda of the European Union which continuously monitors the state of healthcare in its Member States, particularly following the introduction of European Pillar of Social Rights with healthcare being one of the key areas of its Social Protection and Inclusion. Social policies in the area of access to healthcare have to deal not only with direct access to health care providers, but also with gender, age and education related disparities in access to healthcare, indirect and sometimes invisible causes of health disparities and social disparities leading to lower life expectancy.
In the times of the pandemic, it becomes clear that countries cannot successfully tackle the fight against communicable diseases without having sound social policies dealing with access to healthcare. During the corona virus public health crisis, new challenges to access to healthcare emerged, such as rapid digitalization of health care and introduction of telemedicine and obstacles in access to reproductive healthcare and immunization for children.
The paper provides an analysis of the main obstacles to effective access to health care in Croatia during the Covid-19 crisis, including access to reproductive health care, immunization for children and prevention of mortality, since Croatia is among the five EU Member States with the lowest cancer survival rate and has a shorter life expectancy by 2,9 years than the rest of the EU. We looked into the comparative health care policies of Sweden and the UK and analysed the most recent case law of the European Court of Human Rights in the area of access to reproductive health care that will shape all future discussions on social policies in health care. The purpose of this paper is to contribute to possible and much needed development of social policy in health care in Croatia.
Keywords: social policies, reproductive health, Covid-19.
The article analyses different forms of telework, which often present forms of work with radically different characteristics. Firstly, the paper examine the contents of the telework framework agreement concluded by ETUC, UNICE/UEAPME,and CEEP on July 16 2002 provide guidelines for telework; which contains provisions for the special characteristics of this form of work. Showing the growing needs of employment practice in Hungary the main question is the differentiation between an employment relationship created for telework and the so-called “home office” employment. The increase of persons employed in the framework of telework it seems unavoidable to review and reconsider the regulation, the paper review directions where it is worth considering the (re)regulation of telework in Hungary.
Keywords: Telework, Home office, European telework framework agreement, Hungarian telework regulations.
The paper introduces two concepts in data protection: privacy by design and privacy by default. Those concepts are closely connected. They already existed in data protection, although the data protection reform made them a legally binding concept. The article outlines the new ePrivacy Directive and its specification of the discussed concepts.
Keywords: Data protection, European Union, ePrivacy Directive, Digital Single Market, GDPR, Privacy by Design, Privacy by Default.
The European human rights architecture is considered one of the most relevant regional human rights systems. In this context, the Council of Europe and the European Union play crucial roles. All the EU member states happen to be members of the Council and Europe as well as Contracting Parties to its most remarkable treaty, the European Convention on Human Rights (hereinafter: ECHR). This paper attempts to examine an issue arising from the two most significant tools of the two regimes, on the EU side that would be the preliminary ruling procedure and on the ECHR side, the right to a fair trial. The analyzed issue is whether the refusal by the national court to submit a preliminary ruling request as initiated by the party in national proceedings can lead to violation of Article 6 of the ECHR. As concluded in the paper and supported by the relevant case law, a party’s submission before a domestic court that is a member of the EU and a Contracting Party to ECHR, might embody the violation of Article 6 if the court of last instance rejects the reference of parties to initiate a preliminary ruling procedure without giving reasons for it. However, similarly to the relationship between the EU legal order and ECHR, the analysed issue also has many open concerns.
Keywords: preliminary ruling, fair trial, Article 6, case law, European human rights architecture.
THE ROLE OF THE EUROPEAN BORDER AND COAST GUARD AGENCY (FRONTEX) IN THE MANAGEMENT OF THE EXTERNAL BORDERS OF THE EUROPEAN UNION: THE COOPERATION AGREEMENTS WITH THE WESTERN BALKANS COUNTRIES
The paper, entitled “The role of the European Border and Coast Guard Agency (FRONTEX) in the management of the external borders of the European Union:the cooperation agreements with the Western Balkans Countries”, deals with the analysis of the agreements that the EU has recently signed with Albania in October 2018, Montenegro in October 2019 and Serbia in November 2019. Similar agreements have also been initialled with North Macedonia in July 2018 and Bosnia and Herzegovina in January 2019, and are pending finalisation. The objective of these “status agreements” is to allow the European Border and Coast Guard Agency to coordinate operational cooperation between EU Member States and the Western Balkans States on the management of the borders that the latter have in common with the European Union. In particular, FRONTEX is allowed, within the framework of the agreements, to assist Balkan States concerned in border management, carry out joint operations and deploy teams in the regions that border the EU. The activities aim at tackling irregular migration, in particular sudden changes in migratory flows, and cross-border crime, and can involve the provision of increased technical and operational assistance at the border. Starting from the examination of these new agreements, to be placed in the more general framework of the relations between the European Union and the Countries – candidates and potential candidates for accession – of the Western Balkans, the paper is aimed at assessing the effectiveness of the means put in place by the EU to ensure the cross-border security of the South-East European border, with particular regard to the effective role played by the European Border and Coast Guard Agency.
Keywords: Frontex, EU Borders, Western Balkans, Status Agreements, Security.
Debate whether legal persons can be criminally liable has been subject of academic interest and discussions for a long time. Led by Latin phrase “societas delinquere non potest”, the vast majority of legal systems did not accept criminal liability of legal persons for a long time. The key argument for this viewpoint was the lack of „mens rea” element (the “guilty mind” or intention of an individual). Yet, it would be unfair to say that legal persons were not responsible for breach of law in any other way. Legislation of the Former Republic of Yugoslavia recognized economic transgressions as a separate category of criminal offence. After the dissolution of the Former Republic of Yugoslavia, all member states showed commitment to European integration. In order to join the European Union, candidates for future membership had to harmonize national law with “acquis communautaire” and consequently introduced criminal liability of legal persons in criminal and criminal procedure codes. In the paper, besides the historical background, the author analyzes differences and similarities between criminal liability of legal persons in Bosnia and Herzegovina and Croatia, focusing on specific features of criminal proceedings against legal persons. Both countries adopted a model of derived, subjective and cumulative liability. Author compares differences between specific matters of criminal procedure against legal persons. The issue that deserves special attention in the context of derived liability of legal persons is whether a natural person and a legal person can have joint defense. Besides specific features of a criminal procedure against legal persons, the paper also elaborates different regulation of sanctions, security measures and consequences of conviction for against a legal person. Finally, in the conclusion, the author advocates intervention in B&H legislation, following the solutions prescribed by the Law on the Liability of Legal Persons for Criminal Offenses regarding joint and mandatory defense, and, especially, for establishing of a public criminal register of convictions against legal persons. Public criminal register of convictions against legal persons has a vital role in national economy, having in mind that legal persons are most common users of financial services.
Keywords: criminal liability of legal person, model of derived liability, joint defense of legal person, mandatory defense of legal person, public criminal register of convictions against legal persons .
A mistake of law in present day criminal law in the world is one of the most interesting legal institutes. Its significance comes from the fact that as a wide-spread institute of criminal law it is in the process of comprehensive transformation equally in both, continental and common law system. Some of the most prominent continental law system institutes proceeded from the traditional mistake of law meaning ignorantia iuris nocet or ignorantia iuris neminem excusat to the excusable mistake of law. In these systems the mistake of law presents an excuse from the convict’s responsibility if the mistake of law is non-excusable. In opposite cases, it may present a reason for a lower sentence from its regular value. On the other hand, mainly common law system countries kept firmly to the traditional meaning of the mistake of law institute. In most of these systems, the mistake of law is attached to its traditional phrase: ignorantia iuris nocet or ingnorantia iuris neminem excusat. It means that mistake of law has no effect to a convict’s responsibility if he/she objects to the mistake of law. However, even though both systems choose their approaches to the mistake of law problem in the world, it is quite obvious that both systems are not so convinced in decisions they adopted in their systems. Many prominent criminal law theorists in the world try to find out in which way this institute will go in future. This paper is a part of that complex debate.
Keywords: mistake of law, continental, common law, criminal law, system.
Domestic violence has had a long tradition, both in Serbia and countries of the region. Owing to deep rooted patriarchal traditions, for centuries this socially pathological phenomenon has had many supporters and for a long time it was considered socially acceptable. Laws and bylaws adopted in the past decade have significantly improved the legal framework in protection of domestic violence victims. However, inefficiency of their application in practice, caused by slow and long resolution processes, and the issues of the very acts of domestic violence and custody, have led to an escalation in domestic violence. This is greatly enabled by the fact that false reports while the acts occur go unpunished, which makes it possible for real abusers to use this tactic and prolong the stress situation for the real victim, in some cases, for years.
The aim of the authors is to do a comparative analysis of laws in the region and consequences of their application, therefore defining problems that present obstacles for adopted laws and suggest new solutions.
Keywords: domestic violence, false reports, custody, court proceedings.
The objective of the paper is to analyse the legal framework and key challenges in the recruitment and selection process in the civil service of Moldova. The effectiveness of the recruitment and selection is assessed against the standards laid out in the SIGMA Principles of Public Administration for European Neighbourhood Policy Countries and supporting Methodological Framework. The key finding of the paper is that the legal framework governing recruitment and selection is generally in line with the SIGMA standards. In spite of this, the attraction capacity of the Moldovan civil service is highly limited, as the number of candidates per vacancy is very low. The key reasons for this should, in the author’s view, be sought for in the low salary levels, especially at the entry civil service positions. The author concludes that Moldovan example clearly shows that legal regulation of different HRM functions cannot be analysed in isolation, as the effectiveness of the recruitment process is closely linked with the remuneration policies. In addition, existing budget constrains and limited general labour market capacities, caused by difficult economic conditions and large waves of immigration of Moldovan population, pose additional challenges for the Moldovan civil service to be able to compete for the best and the brightest.
Keywords: recruitment and selection, civil service, Moldova.
ADMINISTRATIVE POWERS IN TERMINATING ADMINISTRATIVE SINGLE-CASE DECISIONS IN ROMANIA
The whole activity of the public administrative bodies is governed by the principle of legality. Single-case decisions are an important part of this activity. The procedure for issuing administrative decisions has to be precise and ensure the predictability of law. Nevertheless, errors may occur and situations related to an already issued administrative single-case decisions may change. The administrative bodies have to be able to straighten things by ending the effects of illegal single-case decisions or of decisions that are no longer in accordance with the law or endanger the public interest. This power must not be used in a way that violates human rights. The paper analyses the rules regarding the power of administration to terminate the effects of single-case decisions in the Romanian legal system, respectively the rules for annulment and withdrawal of such decisions. Both annulment and withdrawal of single-case decision making have different effects in accordance with the reasons for their application. As Romania has recently adopted the Administrative Code, but does not yet have yet an administrative procedure law, the analysis aims to determine how the traditional rules cope with the protection of human rights. A comparison with the legal rules provided by the administrative procedure laws in Balkan countries is presented.
Keywords: administrative decisions, nullity, withdrawal, human rights.
The paper wishes to analyse the similarities and the differences in judgment enforcement practices existing in the Western Balkans region (Albania, Bosnia and Herzegovina, Northern Macedonia, Montenegro, Serbia). In its first section, the paper presents alternatives in the enforcement formation stage, listing varieties in national enforcement title catalogues, as well as scrutinizing the legal nature and legal effects embodied by a writ of enforcement, or its absence. The second section deals with the enforcement implementation stage, presenting applicable enforcement assets (personal, real, or intellectual property, receivables, negotiable instruments, various ownership interests, freezing order). In addition, the paper analyses the statutory absence of the gradus executionis principle, though its reflections can still be traced in manners enforcement is implemented in the region. In its last section, the paper deals with different national enforcement agent structures. Having in mind that almost all Western Balkans jurisdictions (except Bosnia and Herzegovina) have recently introduced the French (even Napoleonic) concept of a self-employed judicial officer (huissier de justice), the paper also presents their prerogatives and connections with state administration.
Keywords: judgment enforcement, Western Balkans, writ of enforcement, means of enforcement, enforcement agent.