"Perspectives of business law" Journal

This volume contains scientific papers presented at the 3rd International Conference "Perspectives of Business Law in the Third Millennium", November 15-16, 2013, Bucharest University of Economic Studies

Table of Contents

  • Roxana Anca ADAM

    Abstract:
    Unsecured creditors in the insolvency of the debtor's creditors are those who do not have collateral security against the debtor's assets and who are not accompanied by liens privileges whose claims are current at the opening proceedings and claims us for current activities during observation. In the matter of the bankruptcy secured creditors set for secured debts are claims receiving collateral on the debtor's property, whether it is the primary obligor or third party guarantee to persons benefiting from collateral. The secured creditor's secured claim in the insolvency procedure is given by the value of collateral assessment arising after the opening of insolvency proceedings the debtor. These special legal provisions contained in the bankruptcy, derogating from the common law, they often generate different practical situations and have created jurisprudence. In judicial practice of insolvency have encountered situations where the creditor security budget, which requires to be entered in the final table of the debtor in the category of secured creditors, the debt claim, warranty claims for his claim is the universality of the debtor's assets. The study on which we focused includes analysis of these categories of claims in insolvency proceedings and the solutions adopted in judicial practice.
    Key words: insolvency, procedure, debtor, unsecured creditors
    JEL Classification: K22, K23

    GUARANTEE ON ALL THE ASSETS OF THE DEBTOR IN INSOLVENCY PROCEEDINGS
        Page 1

  • Valentin – Stelian BĂDESCU
    Abstract:
    Electronic commerce is experiencing a great extent, and about the same extent fraud seeks - and sometimes is the place to impressive levels. Moreover, computer fraud and, the actors' they do not seem to suffer from the global economic recession and get as sophisticated as a legitimate business model and one of the most important dimensions of the work of modern organizations is the manipulation of information (collection, processing, storage, distribution, etc.). This component informational increasingly involves broader and more complex, with the technological advancement of computer science and globalization of human society, special measures to ensure the security of information. Cyber-crime is an illegal act committed by using a computer network (especially Internet). Cyber-crime is a subset of cybercrime.
    Key words: e-commerce, cybercrime, system vulnerability, criminal business law
    JEL Classification: K14
    FRAUD IN ELECTRONIC COMMERCE
        Page 8
  • Iulia BĂDOI
    Abstract:
    Managers wish for harmony within their organizations, that the satisfied employees to work in well balanced teams in order to achieve the institutional goals without taking into account the individual and cultural differences, personal or group interests. Conflicts can be classified according to several criteria. This study aims to present the particularities of conflict resolution within labor relations. Starting from the analysis of the conflict concept viewed from several perspectives, including legal term, this paper aims to reveal the sources of labor disputes through statistical tools, to explain the development of the conflict and to propose solutions to reduce / solve conflicts. From the traditionalist perspective all conflicts are bad, being subsumed to terms of violence, anarchy, destruction, chaos, requiring major reality changes. Conflicts are seen as natural, normal, and cyclical from the human relations point of view. Moreover, inter-actionist perspective suggests encouraging for triggering conflicts because a group that is too long peaceful may become inert, listless and noncreative. This theory proposes to the leaders to maintain a level of conflict within institutions so that to be in the presence of a dynamic group, the manifestation of critical thinking, innovation and improvement of the human relationships’ quality.
    Key words: conflict management, conflict’s functions, sources of conflicts, conflict’s escalation, conflict’s reduction/resolution
    JEL Classification: K31
    CONFLICT MANAGEMENT.
    SOME PROSPECTS ON THE LABOR CONFLICTS

        Page 21
  • Adriana Elena BELU
    Abstract:
    The paper aims to conduct a comparative analysis and tries to offer an objective point of view regarding a number of questions arisen in practice, related to the applicability of the 1978 Hamburg Rules and keeping public order of Romanian private international law, such as those that aim at: agreeing upon the applicability of the foreign law by the Romanian parties; applicability of the Hamburg Rules; public nuisance of the Romanian private international law; character of public policy rule of the Hamburg Rules. In the application process of the Hamburg Rules, given the context of the emergence and entry into force of the New Civil Code, obviously, the provisions of the Romanian Civil Code shall apply in addition, where the international convention lacks. Therefore, in order to apply the logic of the provisions of the Civil Code in full compliance with the international standards, though giving priority to the latter rules, a rigorous analysis is required, analysis which becomes more complex given the fact that, in accordance with Art. 230 of Law no. 71/2011 to implement Law no. 287/2009 on the Civil Code, Book II "About Maritime Trade and Sailing" of the Commercial Code, will be abolished upon the entry into force of the Maritime Code, as those provisions remain in force, being applied with priority to the rules of the Civil Code.
    Key words: applicability of the 1978 Hamburg Rules, keeping public order, Romanian private international law
    JEL Classification: K33, K40,
    THE APPLICATION PROCESS OF HAMBURG RULES, GIVEN THE CONTEXT OF THE EMERGENCE AND ENTRY INTO FORCE OF THE NEW ROMANIAN CIVIL CODE
        Page 34
  • Alina BILAN
    Abstract:
    This study analyzes the teething troubles met by local public authorities when organizing and applying tender proceedings for the award of delegation contracts for the management of the administration services of public and private domain of the territorial administrative units in view of the Law no. 51/2006 regarding the public community utility services and aims to provide practical solutions for interpreting and applying conflicting provisions of the regulations in force. In order to support the local public authorities in their activity this study offers solutions for some legal issues as establishing the applicable law and the hierarchy of the regulations in force for organizing the tenders, determining the legal form of the delegation contract, identification of the applicable rules for selection criteria and for evaluation of the bidders` offers as well as identifying the review procedures available for bidders. The research methodology is based on both the deductive method comprising theoretical documentation, analysis and synthesis of the concerned legal issues and on the comparative method as this study provides practical answers consistent with the national legal system based on the European Commission`s Recommendations on the services of general interest.
    Key words: territorial administrative units, public utility services, public domain, private domain
    JEL Classification: K23
    CONTROVERSIES AND PRACTICAL SOLUTIONS REGARDING THE AWARD OF CONTRACTS FOR THE DELEGATION OF THE MANAGEMENT OF ADMINISTRATION SERVICES OF THE PUBLIC AND PRIVATE DOMAIN OF THE TERRITORIAL ADMINISTRATIVE UNITS
        Page 38
  • Alexandru BULEARCĂ

    Abstract:
    In terms of terminology, both the doctrine and national regulation or community law are making confusion between the terms „payment instruments” and „means of payment” when they need to designate the document through which is made the payment to a pecuniary obligation by the debtor. In order to highlight the legal status of warant as payment tool of international trade law has been used both the method of comparative law and rules of interpretation specific to the international trade law science, and rules of interpretation common to all branches of law, including commercial and banking law. Thus, in a first perspective was considered the concept of “instrumentum” according to which as long as the document by which is made the payment of a pecuniary obligation relating to a legal relationship with a foreign element is a document, either on a material support or dematerialized, we hold that the appropriate term to describe this is payment instrument and not means of payment, because the latter means, on the one hand, how the payment is made, and on the other hand, international liquidity - in currency - used in economic exchanges. From another perspective, have been considered the proposals to update national legislation both in terms of financial and banking practice set globally and the progress made in information technology, widely used to achieve cross-border payments.
    Key words: payment instruments; payment services; deposit contract; the warrant.
    JEL Classification: K22
    BRIEF CONSIDERATIONS ON THE WARANT, AS REPRESENTATIVE TITLE OF GOODS IN WAREHOUSES, ANALYZED FROM THE PERSPECTIVE OF ITS FUNCTION OF PAYMENT INSTRUMENT, IN THE LIGHT OF SPECIAL REGULATIONS AND PROVISIONS OF THE NEW CIVIL CODE
        Page 46
  • George CHIOCARU
    Abstract:
    The purpose of this study is to analyse the main elements of novelty brought by the transposition of the Directive 2011/7/EU of the European Parliament and of the Council on combating late payment in commercial transactions in the Romanian national legislation by Law no. 72/2013 on the measures for combating late payment of a certain amounts of money resulting from the agreements concluded between the professionals and between professionals and contracting authorities. The current analysis is based on the interpretation of the legal previsions of the above mentioned acts as well as on the related secondary legislation. It is important to underline that at the moment of this study there is few court practice on this subject matter at the national level as well as of the European community level. Further more, considering the relatively new presence of the Law no. 72/2013 in the national legislation, albeit this law is adopting certain elements from the existent legislation, there is a lack of substantial doctrine in this respect. Starting form the considerations expressed above, we intend by this article to underline the main measures to be take into consideration by the professionals in the commercial relations established between them as well as in the commercial relations established with contracting authorities.
    Key words: professionals, unfair terms, contractual relations, contracting authority.
    JEL Classification: K12, K22, K33
    UNFAIR CONTRACTUAL TERMS AND PRACTICES IN RELATION BETWEEN PROFESSIONALS
        Page 53
  • Alina Mioara COBUZ BAGNARU
    Abstract:
    Arbitration is an alternative jurisdiction to state justice, characterized by privacy. As part of managing this type of jurisdiction, the parties to the dispute and the competent Arbitral Tribunal may establish other rules of procedure which may depart from common law; such rules shall not be contrary to public order or to the binding provisions of the law.
    Key words: arbitration, the arbitral tribunal, commercial law, justice
    JEL Classification: K41
    ROLE OF ARBITRATION AS AN ALTERNATIVE TO STATE JUSTICE
        Page 57
  • Cristina COJOCARU
    Abstract:
    In principle, in Romania, according to current regulations, the director of a company can not address the court against the decision of the general meeting of shareholders through which he/she was revoked from his/her position, regardless of the reasons for the revocation. However, if the director is also the shareholder of that company, he/she may appeal the decision of the general meeting of shareholders, for other reasons than the revocation itself. This is the case even if, by that decision of the general meeting of shareholders it has been decided, inter alia, the revocation of the director. Also, the laws of Romania stipulate that the revoked director has the possibility to claim in court damages if he/she fulfilled correctly the duties as director of the company. At the same time, the article looks at the concept of director, his/her relations with the company and the revocation of the director as general concept.
    Key words: company, revocation, director, general meeting of shareholders
    JEL Classification: K22
    SOME CONSIDERATIONS REGARDING THE REVOCATION OF THE COMPANY DIRECTOR
        Page 66
  • Silvia CRISTEA
    Abstract:
    Our goal is to differentiate between the legal regime of the limited partnership and that of the unlimited company, by drawing a comparison between civil and special settlement in terms of the following criteria: definition, contributions, capital divisions, the Articles of Association, registration, management control, withdrawal/exclusion of a partner, dissolution/ liquidation. The opinions expressed in the chapter devoted to conclusions are relevant to Romanian and French Law as well.
    Key words: limited partnership, unlimited company, Romanian Civil Code, the Law no.31/1990 concerning commercial comopanies
    JEL Classification: K22
    COMPARATIVE STUDY: LIMITED LIABILITY COMPANY VERSUS UNLIMITED LIABILITY COMPANY
        Page 70
  • Raluca DIMITRIU
    Abstract:
    Labour Law is dealing with a period of tremendous changes, which may jeopardise its legitimacy. It may be even true that labour law is living now its last days, and only a possible ‘reinvention’ may lead to its survival. One of the reasons for this crisis is found in the evolution of the relation of the labour law with the “mother” branch, civil law. The paper is proposing an exam of the flexible relation between labour law and civil law and to react to the tendency of the reincorporation of labour law in civil law and of the dangers of such development. It is also presented the impact upon labour law of the recent paradigmatic change of the civil law, and some criteria for identifying the applicable civil law norms to employment relations. There are laid down a couple of conclusions regarding the changing of labour law, as well as the uncertain future of this branch of law.
    Key words: Bogus self-emplyment, labour law, workers, labour relation.
    JEL Classification: K31
    THE IDENTITY CRISIS OF THE LABOUR LAW
        Page 79
  • Cătălina Georgeta DINU
    Abstract:
    The importance of invoking national interest and dispute over natural resources has increased in direct proportion to the growing importance of these resources and decrease inversely with quantity. A dull but intense battle at this point characterizes natural resource, especially of oil and mining of precious metals. Therefore, we can say that the power exerted on natural resources establishes a hierarchy of states of the world economic power and living standards of the population. Use of natural resources as an effective weapon in the economic consolidation became state policy and the expansion of exploration and exploitation in foreign lands development of complex regulations imposed internationally. Therefore, a thorough study of this field involves an analytical perspective of all dimensions outlined in legislative terms, starting from the history and evolution of the Romanian legislation observation of foreign law - specific states with relevant impact on the exploitation of natural resources - and presenting characteristic of European law and international law. We analyze if both oil and mining concession concession covered by Directive 2004/17/EC and if we can identify a subset of works concession. We detail our study if this concession is a public works concession, according to the recognition of the public interest as the determining criterion administrative and membership contracts.
    Key words: oil concession, mining concession, public-private partnership
    JEL Classification: K23
    THE OIL AND MINING CONCESSION IN EUROPEAN PERSPECTIVE
        Page 87
  • Raul Sorin FÂNTÂNĂ
    Abstract:
    Currently, according to the law, the expert is treated as a witness, and the expertise - presented as a report - is treated as a work implemented in support of justice only. Referring to the intellectual property, an expert report is often a research work with pronounced character of investigation. According to the copyright law, such a unique work should be cited even in the court device resolution, scientifically commented, as bibliographical source. The immediate consequence in support of the act of justice is that, unlike the jurisprudence - which in many countries is not a source of law, having an informative character only, a written report - especially the technical work – cannot be commented by any court. Evaluated as technical work, an expert report on the one hand should be treated as such - cited - by the courts of law and on the other hand implemented according to the rules imposed in the scientific works: documented, with a minimum number of references to and quotations from serious sources, including previous expert reports from completed files. We think that such an approach of the expert report would lead to a significant improvement of the justice act at least in Business Law.
    Key words: technical expert report, res interpreted, intellectual-industrial property, technical work, technical jurisprudence, standardization
    JEL Classification: K20
    THE COPYRIGHT ON THE INTELLECTUAL PROPERTY EXPERT REPORT. CONSEQUENCES
        Page 96
  • Michał GORNOWICZ
    Abstract:
    The interestingness of marine piracy issue in Somalia is caused by the fact that firstly, piracy problem is often shown and discussed in mass media and secondly because it is still an unsolved trouble. Finally pirates attacks in Somalia have a great influence on late delivery of cargo ships’ goods. Somalia is said to be the easiest and the most attractive region for pirates attacks. In fact, it is the truth because Somalia is an example of state with inner destabilization and without legal authority which would be able to face the problem. In this paper following topics will be touched: analysis of Convention on the High Seas from Geneva adopted on the 29th April 1958 (definition of piracy); genesis and history of piracy in Somalia; scale of danger from pirates side in Somalia; postulates of changes in article 100 of United Nation Convention of the Law of the Sea adopted on the 10th of December 1982; attitude of international community towards piracy in Somalia; International missions in Somalia; Somalia nowadays (statistics); prospects for the future....
    Key words: international maritime transport, Convention on the High Seas from Geneva, United Nation Convention of the Law of the Sea, international law, marine piracy
    JEL Classification: K33
    MARINE PIRACY IN SOMALIA – PAST, PRESENT AND FUTURE
        Page 101
  • George GRUIA, George Cristian GRUIA
    Abstract:
    The purpose of this paper is to provide a thorough analysis of state powers in the context of today's business environment both nationally and internationally. The authors use the SWOT management method using structured interviews, in certain key areas, of a group of 30 experts from both legal and academic and that of the SMEs, in order to analyze and to form a guide of best practices for workers in local government in Bucharest, which directly influences the foreign investments in the Romanian economy and local development of national administrative territorial units. This article is part of a more complex work of the authors on improving social relations that occur in the work of state administration in relation to the Romanian business environment and represents the partial results of this ongoing study. Partial results of the study are presented and analyzed for future studies and represents a platform for academic discussions open to the public in order to improve relations with local administrative authority relating to facilitating and supporting investments that bring added value to the consumer.
    Key words: business environment, development, powers, state, SWOT
    JEL Classification: K23
    THE ROLE OF STATE POWERS IN THE DEVELOPMENT OF BUSINESS ENVIRONMENT
        Page 105
  • Claudiu Florinel Augustin IGNAT
    Abstract:
    It often happens that the end of the contracts to be existing commercial relationships and a new contract has already intuitu personae character. But not always the case, that those who enter into legal commercial forcing consideration to the benefits and under commercial contracts, know the dealer or individual that established commercial relations. These traders resort to contractual conditions which states precisely the extent of the obligations assumed by each party, setting rules, deadlines, penalties and even ways of interpretation of contracts. Contracting Parties, namely traders aware that the law is the contract parties by special caluze invest ( to settle disputes concerning the interpretation or punishment for failure and even termination obligations) tribunalule arbitration courts or the territorial and material.
    Key words: contract, clause contract, clause mediation, commercial contracts, legal commercial
    JEL Classification: K12, K22
    MEDIATION CLAUSE IN COMMERCIAL CONTRACTS
    (THE ADVANTAGES OF MEDIATION CLAUSE IN COMMERCIAL CONTRACTS)
        Page 113
  • Cătălina-Adriana IVĂNUŞ
    Abstract:
    The european law prohibit direct and indirect discrimination and harrasment on grounds of sex, racial or ethnic, religion or belief, disability, age or sexual orientation. The question is what is the situation when someone is discriminated on can claim to be the victim of unlawful discrimination because he or she is associated with another person who has the protected characteristic. The the Court of Justice of the European Union’s judgment in Coleman v Attridge Law and Steve Law confirms, for the first time in European law, the existence of the concept of discrimination by association. In this article I examine the implications of this case on all conceps of discrimination concepts of discrimination in European law (direct discrimination, indirect discrimination and harassment). I also examine the application of discrimination by association to grounds other than disability.
    Key words: Discrimination, discrimination by association, disability, European law, labour law
    JEL Classification: K33, K31
    DISCRIMINATION BY ASSOCIATION IN EUROPEAN LAW
        Page 116
  • Alina LEŢIA
    Abstract:
    Throughout realizing the study we analyzed the validity of the European law norm resulting from the derived sources of law with obligatory force (regulations, decisions and directives) in connection with the European law norm, the national law norm and the general principles of law considering the jurisprudence of the European Court of Justice and the supremacy of the European Union law also over national constitutions. Thus the European Union represents a new law order, having as subjects not only states member, but also the nationals of these states, who benefit of rights that can be appealed before national courts against public organisms or other private persons and obligations. Therefore, the European Court of Justice has successively imposed the direct applicability of community norms, continuing with the priority of these norms so that in the end the principle of the supremacy of the European law has been adopted. The European norm has to be respected and interpreted in a uniform manner in all states member, considering the fact that the supremacy of the European law over the national law is seen as a sine qua non of the integration, but also a fundamental principle of the Union. National courts guarantee the supremacy of the European norm and its unitary application – aspects analyzed in this study- through the procedure of preliminary decisions.
    Key words: direct applicability, priority, suveranity, supremacy, Constitution, European juridical order, preliminary decisions.
    JEL Classification: K33
    VALIDATION OF THE DERIVED LAW NORM IN THE EUROPEAN AND INTERNATIONAL LAW
        Page 122
  • Ana-Maria LUPULESCU
    Abstract:
    The New Civil Code makes the transition, for the first time in the Romanian legal system, from the duality to the unity of private law. Consequently, the Civil Code contains a legal regulation more structured and comprehensive, although not entirely safe from any criticism, in relation to the company, with particular reference to the simple company, regulation that expressly characterizes itself as the common law in this field. Within these general provisions, the legislator has considered the joint venture, to which, however, as in the previous regulation contained in the old Commercial Code – now repealed –, it does not devote too many legal provisions, in order to maintain the flexibility of this form of company. Therefore, this approach appears particularly useful for analysts in law and, especially, for practitioners, since it aims to achieve a comprehensive analysis of the joint venture, form of company with practical incidence..
    Key words: companies, joint venture, company contract, juridical nature and juridical characters
    JEL Classification: K12
    ASPECTS CONCERNING THE JOINT VENTURE1 UNDER THE REGULATION OF THE NEW CIVIL CODE
        Page 127
  • Ovidiu – Horia MAICAN
    Abstract:
    Concentrations of companies have developed in the last 40 years, as an effect of open borders within the European Union. The question from the point of view of competition is if setting up a new group or entity may have the same restrictive effects of an agreement. In addition, that may lead to monopoly or oligopoly, which prevents effective competition. Concentrations are situations when one or more companies acquire control of other companies, changing the structure of the companies involved and of the market. The most important forms of concentrations of undertakings are the holding by a company of the capital of another company or of other companies, the total or partial acquisitions by a company of the assets of other companies and the merger of two or more companies which are legally independent into a new company. Sometimes, where the concentration in an industry exceeds certain limits it can lead to monopoly or oligopoly structures, which restrict competition and jeopardise consumers' interests. The legal basis for EU merger control is Council Regulation (EC) No 139/2004. The regulation prohibits mergers and acquisitions which would significantly reduce competition in the Single Market, if they would create dominant companies and are likely to raise prices for consumers.
    Key words:economic concentrations, competition, fair competition, Comission
    JEL Classification: K21
    THE CONTROL OF CONCENTRATIONS
        Page 133
  • Konstantinos MARGARITIS
    Abstract:
    Much have been written, critically evaluating the sanction mechanism included in article 7 TEU regarding the sanctions to member states for serious and persistent breach of the values of the Union. Although the institutional framework is adequate and its use necessary, the lack of political will has led to inactivity of the provision. On the other hand, the fundamental rights agency was established for monitoring human rights throughout the Union, in order to ensure full respect for fundamental rights across the EU. The aim of this paper is to present an interrelation between the sanction mechanism of article 7 TEU with the monitoring mechanism of the agency, which will enhance the quality of fundamental rights protection in EU and the member states. The paper is based on interim conclusions from the PhD thesis at the National and Kapodistrian University of Athens, entitled “the Treaty of Lisbon and the fundamental rights protection in EU”.
    Key words: article 7 TEU, sanction mechanism, fundamental rights agency
    JEL Classification: K33
    SOME THOUGHTS ON THE INTERRELATION OF ARTICLE 7 TEU WITH THE EU FUNDAMENTAL RIGHTS AGENCY
        Page 143
  • Olimpia-Monica MATIAŞ
    Abstract:
    On the historical and legal side, the physical and/or psychic inability of the employee to provide the corresponding post in which he was employed as a basis for the contract of employment that equated professional discordance (article 130 paragraph 1 letter e of the Labor Code of 1973, adopted by law No. 10 of 25 November 1972).
    Dismissal for medical reasons is one of the cases of termination of the individual contract of work from the employer, which excludes the employee's contributory negligence. The employee is unable to fulfill his/her service obligations due to the reduction of some of his/her biological, intellectual capacity. The physical condition and/or mental inability of an employee in the performance of the duties corresponding to a post service is not general, but specific workplace at the time. Owing to the nature of the objective medical lies, we appreciate the useful proposal de lege ferenda, that where the employer opts for the dismissal of the employee pursuant to art. 61(c) the Labor Code, due to the fact that at the same time there is no vacancy in the unit, to opt for the cessation of the individual employment contract.

    Key words: dismissal, physical inability, psychic inability, employee
    JEL Classification: K31
    THE PHYSICAL AND/OR PSYCHIC INABILITY DISMISALL
    OF THE EMPLOYEE IN ROMANIAN LABOUR LAW

        Page 148
  • Ioana Nely MILITARU - Adriana MOŢATU
    Abstract:
    Treaty of Lisbon entered into force on 1 December 2009, improved functioning judicial system European Union ( EU). Court of Justice of the EU has been reformed, said Treaty changing the EU courts so very name : Court of Justice of the EU, the Court referred to above, the Court of First Instance, and specialized courts, known previously, judicial panels. The paper shows the first part of his creation, composition and competence of the specialized courts, and as a manifestation of them in the second part examines the Civil Service Tribunal, the same point of view. EU specialized courts may be set up in specific areas, specializing in some technical disputes. These specialized courts have jurisdiction to hear and decide the cases in the first instance with the possibility that their decision subject to appeal to the General Court . In this context, to resolve disputes between the Union and its officials was established Tribunal.
    Key words: specialized courts, the European Union, Lisbon Treaty, the Civil Service Tribunal
    JEL Classification: K33, K40
    SPECIALIZED COURTS OF THE EUROPEAN UNION
        Page 161
  • Octavian PASAT
    Abstract:
    Romania Import Tariff is from 1 January 2007, the Common Customs Tariff of the European Union. Applicable in all EU Member States, it ensures the smtooh functioning of the European internal market. From 1 January 2007, as a member state of the European Union, Romania applies the EU Common Customs Tariff. Common Customs Tariff duties lists applied to each tariff line imports from third countries, by all EU Member States, the regime most favored nation clause. Customs duties included in the Common Customs Tariff commitments made by the EU in the WTO for the tariff, on behalf of all Member States. The vast majority of the Common Customs Tariff duties are consolidated in the WTO 1.5.1. The legal basis of the common customs tariff is the Council Regulation no. 2658/87/23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff. Like other financial instruments is one of the duties that any investor – Romanian or foreign – must know the long term. Stability and predictability constitutes an element that directly or indirectly affect what is called country risk country’s attractiveness for investors and investment process.
    Key words: customs duties, common customs tariff, European Union, financial instruments.
    JEL Classification: K34
    CUSTOMS DUTIES. CUSTOMS TARIFF
        Page 165
  • Alexandra-Gabriela ROLEA
    Abstract:
    Notwithstanding the optimistic forecasts issued by experts a couple of years ago, the economic predicaments of the European Union’s member states, including Romania, are far from being settled. The extension of the economic and financial dowturn, the continuing process of globalization and the financial markets’ volatility have imposed an unparalleled flexibility upon the economic agents, in that the amount of mergers and acquisitions has risen at a both national and international level. This background calls for a detailed but nonetheless approachable study of the reorganization of the trading companies though mergers, aimed mainly at the business environment. In order to reach the aforementioned objectives, the theoretical endeavor seeks to explore the relevant legal provisions, including the European Directives. The juridical and accounting operations of mergers, their legal consequences and concrete implications on the activity of the trading companies will also be analysed. Some particular approaches embraced by the legal practice are to be presented, as in Romania mergers are submitted to the control of the court. The study will have a positive impact on the economic agents, who are fostered to conclude this type of restructuring, by altering the line of thought shaped a few years ago, according to which mergers are difficult, isolated and sometimes even unacceptable operations.
    Key words: Trading companies, mergers, stages, national legislation, European Directives
    JEL Classification: K22, K33
    THE MAIN OPERATIONS OF REORGANIZATION THROUGH MERGERS OF TRADING COMPANIES
        Page 175
  • Andreea SEUCAN
    Abstract:
    This study aims at presenting the new legal provisions at EU level regarding orphan works (Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works) and their transposition into national law. The study explains the content of the Directive and raises some issues regarding the transposition into national law. It also highlights several problems which can occur in this process because of errors in translation.
    Key words: transposition, errors in translation, efficiency, orphan works
    JEL Classification: K33, K39
    SEVERAL ASPECTS REGARDING ORPHAN WORKS AFTER THE ADOPTION OF EU DIRECTIVE 2012/28/EU OF THE EUROPEAN PARLIAMENT AND THE COUNCIL OF 25 OCTOBER 2012
        Page 186
  • Camelia Florentina STOICA - Marieta SAFTA
    Abstract:
    The University autonomy and academic freedom are principles that govern higher education in Romania, and also lifelong learning. The importance of these principles for the proper functioning and development of higher education is highlighted in the national and international reference documents. Consequently, a correct definition and circumstantiation of them are essential to give support and substance to this development. Considering the importance and necessity revealed, this study aims to identify the meanings of mentioned principles by reference to the national legislation and the international developments.
    Key words: university autonomy, academic freedom, higher education
    JEL Classification: K23
    UNIVERSITY AUTONOMY AND ACADEMIC FREEDOM - MEANING AND LEGAL BASIS
        Page 192
  • Andreea STOICAN
    Abstract:
    The actual Civil code regulates for the first time in the Romanian legislation the intermediation contract, until its entering into force existing multiple situations that lent themselves to this legal operation, but did not benefit of such particular legal rules. Yet, the case law has shown that the situations that arise in the activity of the legal or natural persons are much more complex, this leading, in time, to the reglementation of such particular rules. Such a case is that found in the matter of insurance contracts, the position of the insurance intermediaries being regulated especially by Law no. 32/2000, according to which they represent the natural or legal persons authorized in the conditions of the above mentioned legal document, that perform intermediation activities in the insurance field, in exchange of a remuneration, as well as the intermediaries from the EU member states that perform such an activity on the Romanian territory, in accordance with the freedom in performing services. Therefore, the present paper aims to analyze the conclusion of such insurance contracts and to underline the particular position of the insurance brokers, having the following structure: 1) Introduction; 2) The reglementation of the intermediation contract/brokerage agreement in the Romanian Law; 3) The importance of the intermediaries in the insurance contracts; 4) The conclusion of the insurance contracts; 5) Conclusions.
    Key words: intermediation, insurance agreement, remuneration, insurer, insurance broker.
    JEL Classification: K39
    INSURANCE INTERMEDIARIES
        Page 200
  • Mihaela TOFAN
    Abstract:
    The paperwork aims at analyzing the domestic legal frame work and the implication of the Public Private Partnerships EU rules at national level, especialy the Romanian case. Among the multiple positive goals of the Public Private Partnerships, the paper takes into consideration the fact that the PPPs are one of the the solutions to overcome the generalized sub financing situation of the public spending and investments. To value this particular quality of the the PPPs, they should be ruled in a unique manner at European level, in order to insure the proper results for the practice in the field. The influence of the legal frame work on the performance of the PPPs is pointed out and some legal improvements should be the main objectives of the research.
    Key words: public-private partnership, public investment, the European Union, administrative law
    JEL Classification: K23
    DOMESTIC LEGAL FRAMEWORK FOR PPPS AND IMPLICATION OF THE EU RULES
        Page 206
  • Bogdan Cristian TRANDAFIRESCU
    Abstract:
    The EU ideals and objectives are constant throughout the history of this international organization: the creation of a single internal market and a complete integration. The EU law provides for both rules of substantive law and rules of conflict regarding international trade activities. It can be easily seen, however, that there is no text (Regulation or Directive) on the common law of contracts. The lack of a text on the common law of contracts, containing general rules, makes the European private law to look like an incomplete puzzle. The need for a common law of contracts in the EU triggered concerns at both the academic and institutional level. The implications of this process of creating a uniform framework for these kinds of contracts are clear; in our opinion, such a uniform framework would finalize the European integration economically and would definitively mark the maturation of the single market. In this paper we will analyze the process for the construction of a uniform framework of contracts in the European Union, starting from the origins of the doctrine to the latest contemporary developments, and, finally, we will try to visualize future developments.
    Key words: private law, contracts, uniform legal framework, the European Union.
    JEL Classification: K12, K33
    PERSPECTIVES A UNIFORM LEGAL FRAMEWORK OF CONTRACTS IN THE EUROPEAN UNION
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  • Brîndușa Oana VARTOLOMEI
    Abstract:
    Changes and additions made to the Law on apprenticeship contract and call into question the manner in which the Romanian legislator understands that give efficiency to this legal institutions. The scientific research aims to identify substantive changes made to the legal text by Law no. 179/2013 and to explore opportunities in the current context of national and European legislation.
    Key words: apprenticeship, apprenticeship contract, employment contract.
    JEL Classification: K31
    CONSIDERATIONS ON AMENDING AND SUPPLEMENTING LAW NO. 279/2005 ON APPRENTICESHIP AT WORK BY LAW NO. 179/2013
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  • Verginia VEDINAȘ
    Abstract:
    The study aims to examine the role that local government plays in ensuring the economic freedom. It briefly examines the status of local authorities, deliberative and executive, and also the powers that they have to create the conditions for the exercise of economic freedom. The study also examines the constitutional regime of this fundamental freedom which is part of the rights and freedoms of the first generation. The purpose of the research aimed both identifying the role of local government in ensuring this basic freedom but also to determine possible means of action to be considered by the government within the territory.
    Key words: economic freedom, local government, deliberative authorities, executive authorities, local government units, roles, responsibility, role
    JEL Classification: K23
    THE ROLE OF THE LOCAL GOVERNMENT IN ENSURING THE ECONOMIC FREEDOM
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  • Cristina SÂMBOAN
    Abstract:
    Upon its foundation in 1961, the European Committee for Social Rights (ECSR) was meant to be a counterpart of the European Court of Human Rights (ECHR) in the field of economic, social and cultural rights, i.e. an international body of control regarding the manner in which states understand to respect human rights. But, given the fastidious contents of ESCR and for political reasons, ECSR has never enjoyed the same guarantee mechanisms or level of accessibility that have characterized ECHR. The aim of this study is to show that, in spite of such flaws, the ECSR has proven its efficiency in the European system for the protection of human rights. The analysis of its decisions, as well as their interactions with the ECHR jurisprudence proves that the flexible and protectionist decisions of this jurisdictional body command authority and their coercive nature is recognized at national level. Moreover, this body has an important influence on ECHR. The jurisprudential interpretations of ECSR may also serve as reference points for national users (lawyers, magistrates, organizations), which makes it even more necessary to know and understand it at this level.
    Key words: economic, social and cultural rights (ESCR), European Court of Human Rights (ECtHR), European Committee of Social Rights (ECSR), European Social Charter (revised) (ESC (r)), collective claims (CC).
    JEL Classification: K33
    THE ROLE OF THE EUROPEAN COMMITTEE FOR SOCIAL RIGHTS (ECSR) IN THE EUROPEAN SYSTEM FOR THE PROTECTION OF HUMAN RIGHTS. INTERACTIONS WITH ECHR JURISPRUDENCE
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  • Flaminia STÂRC-MECLEJAN
    Abstract:
    It's been a long time since markets transcended national borders, corporate law dealing at the beginning of this century with rather complex corporate structures that gradually replace its ordinary subjects, the companies. At the same time, the bases of civil liability for torts were put in a time when damage was only exceptional and had comprehensible dimensions, circumstances that are no longer valid today when we talk of the environmental damage. The ability of the victims of environmental damage, facing the precarious financial condition of a subsidiary, to sue the parent company is theoretically hindered by the independence of the affiliated companies forming the group, as each company retains its legal personality, as well as by the absence of a group regulation in Romanian law. In this context, the aim of our paper is that of seeking solutions that would allow a piercing of the parent company’s corporate veil to hold it accountable, considering reality.
    Key words: group of companies, liability, damage caused to the environment, piercing of the corporate veil.
    JEL Classification: K22, K32
    GROUPS OF COMPANIES AND ENVIRONMENTAL LIABILITY CONFRONTING
        Page 234
  • Mihaela CATANĂ
    Abstract:
    This study aims to clarify some issues concerning the rules applicable to posted workers within the framework of the transnational provision of services and obligations incumbent upon employers, both of those the post and the provision of services to beneficiaries , issues raises a number of practical problems with regard to the distinction in regulating the notion of posting, relative to the internal regulation of the Labour Code (Act 53/2003 - republished ) on the one hand and the European legislation by the other hand. Thus, the contractual relationships between the employer post their workers to perform work for the benefit of its contractual partner, must be very defined very clearly the relationships between employees and employer posted in Romania and that to which they are posted abroad and the obligations each of them. In preparing this paper were used qualitative and quantitative research methods specific depth research of legal sciences, the sociological method, deductive method on regulations, concepts and theories, comparative method. Expected results of the study consist of a summary of the main regulations, solutions and doctrinal views on the development of an suggestions of law, clarification of the regulations with significance implications for business, citizens in their capacity as workers and also for legal practitioners.
    Key words: Posting, posted workers, employers, Directive, conditions of work and employment.
    JEL Classification: K31
    POSTED WORKERS IN THE TRANSNATIONAL PROVISION OF SERVICES – TREATMENT AND OBLIGATIONS OF EMPLOYERS
        Page 247
  • Ana VIDAT
    Abstract:
    Given the current economic climate, it has become imperative – for social protection of people redundant – to adopt urgent measures to mitigate the social impact of the plans for layoffs. Immediate actions as those above – evident are based on the need to continue the economic recovery in accordance with the strategies in the field, to comply with state aid rules, to achieve the objectives of improving the activity of domestic companies, companies national or companies owned by the state, as well as companies and self subordinate local authorities.
    Key words: the individual employment contract; the collective employment contract; collective dismissal; economic operators; completing monthly income.
    JEL Classification: K31
    THE ENFORCEMENT ISSUES IN THE PERIOD 2013-2018 OF THE SOCIAL PROTECTION MEASURES FOR COLLECTIVE DISMISSAL
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