Archive

 

Number 2

Year 2023

The right to collective bargaining in the military, police, and public sector. A comparative law perspective

Author: Proffessor PhD Raluca DIMITRIU

Faculty of Law, Bucharest University of Economic Studies

DOI: 10.24818/EBLJ/2023/2/1.01

Abstract: The right to collective bargaining is regulated differently depending on the legal system. A common basis does exist, however: this is the International Labour Organisation Convention no. 154 (1981), ratified by 50 states, including most of the member states of the European Union.
However, with regard to police and military personnel, ILO Convention 154 leaves it to the discretion of the national law-makerto determine the extent to which the guarantees provided for in the Convention apply. Indeed, according to Articles 1 (2) and (3) of Convention 154, the extent to which the guarantees provided for in this Convention apply to the armed forces
and the police may be determined by national laws or regulations or national practice. As regards the public service, special modalities of application of this Convention may be fixed by national laws or regulations or national practice.

The paper will include a comparative analysis of the application of these provisions in 12 Member States of the European Union. Finally, we will try to draw up a relevant table as to how each national legislator understood to regulate this sensitive subject.

 

Keywords: labour law, collective bargaining, comparative law, International Labour Organisation, military, police, public sector

Covering the financial risks of companies in the HoReCa field through insurance contracts and methods of alternative dispute resolution (ADR) for these contracts

Author: Professor PhD Crenguța LEAUA

PhD Laura Ramona NAE

Bucharest Academy of Economic Studies

Faculty of Law

DOI: 10.24818/EBLJ/2023/2/1.02

Abstract: The issue of financial risks of companies in the HoReCa field has acquired a new dimension with the situation of the COVID-19 pandemic, as they are forced to reevaluate their contractual risk allocation and financial loss coverage mechanisms.

This situation generated a reassessment of the importance of insurance contracts, especially business interruption insurance. The interpretation of clauses in existing contracts that did not expressly refer to the pandemic situation increased the number of disputes generated by this lack of clarity.

The present article represents a general presentation of the risks of the activity in the HoReCa field, of the insurance contracts specific to this field, as a way of addressing these risks.

The article also refers to the methods of out-of-court settlement of disputes in the field of HoReCa insurance, respectively to the arbitration organised in this field, as well as to the alternative dispute resolution methods (ADR) used in Romania and at the level of the European Union.

Keywords: HoReCa, hotel services, European tourist-consumer, insurance, disputes, litigation, arbitration, mediation, conciliation, ADR methods.

On the legality of the director’s mandate 
in a Romanian Joint Stock Company

Author: Lecturer PhD. Cristina COJOCARU

Faculty of Law, Bucharest University of Economic Studies

DOI: 10.24818/EBLJ/2023/2/1.03

Abstract: A recent decision of the Romanian High Court of Cassation and Justice (IInd Section, Decision no. 153 of 28 January 2021) draws attention to the attributions of the director in a legal entity. More specifically, how the powers and liabilities of the director should be handled if they have not been attributed according to the legal provisions or according to the internal statutes of the legal entity. Although the applicable law, i.e., the Company Law, has not been amended in this area following the economic crisis due to the pandemic situation generated by COVID-19, the legal provisions should still be observed so that the economic decision becomes effective in accordance with the law. Without being exhaustive, the article aims to underline the applicable legal provisions to the decisions of a company on the mandate of the director and the practical consequences if not observed.

Keywords: Romanian company law, mandate contract, director

The global financial crisis and the Constitution

Author: PhD Christos KAZANTZIS

Sofia University and University of Athens

DOI: 10.24818/EBLJ/2022/1/1.04

Abstract: The study of constitutions in the context of the global financial crisis can be structured through two distinct questions: how can constitutions help in the crisis and what happens to constitutions during such a crisis? Beyond its economic impact, the 2008 financial crisis has produced new constitutional stories. One of the most important issues that we should discover is “How does the global financial crisis affect constitutions and their enforcement?” Nonetheless, one could begin by asking the exact opposite that is “Can constitutions affect the course and the consequences of the financial crisis?” The interaction between the financial crisis and constitutions differs in each legal order as it is correlated to the exact form the crisis took in each country, varying in terms of intensity and symptoms, and also because constitutions and political systems have their own safety valves in response to such challenges.  

Looking back to the 1930s, the New Deal constitutional moment and the collapse of the Weimar Constitution are suggestive of the interaction between major financial crises and constitutions, indicating that completely adverse reactions may occur. What happens depends on a combination of constitutional design and multiple external factors.

This attempt to document how constitutions responded to the 2008 global financial crisis is structured by addressing a series of questions that aim to reveal what dominated the country-specific dialogues. 

Keywords: financial crisis, constitutional narratives, crisis, state power, political system, constitutional reactions

Presentation of the SSM guide to the method of setting administrative pecuniary penalties

Author: PhD Ecaterina LABI 

Banque Centrale du Luxembourg

DOI: 10.24818/EBLJ/2023/2/1.05

Abstract: Article 18 of the SSM Regulation and Article 132 of the SSM Framework Regulation set out the basis for the ECB’s administrative pecuniary penalties’ regime. Under Article 18(1) and (7) of SSM Regulation, the ECB (via its decision making body, Governing Council) may, impose administrative pecuniary penalties on supervised entities, in case of an intentional or negligent breach of (i) a requirement established by directly-applicable acts of Union law where administrative pecuniary penalties are available to competent authorities or (ii) a requirement provided for in ECB regulations and decisions. Within the exercise of its power to impose such penalties, the ECB enjoys a wide margin of discretion within the limits set by SSM Regulation and Regulation (EC) No. 2532/98. In this respect, the penalties applied must meet the criteria set out in Article 18(3) of SSM Regulation: they must be therefore “effective, proportionate and dissuasive”. Furthermore, the ECB may not exceed the limits specified in Article 18(1) of SSM Regulation and Article 4a (1) (a) of Regulation (EC) No 2532/98. The ECB may impose penalties of up to 10% of a bank’s total annual turnover in the preceding business year, or twice the amount of profits gained or losses avoided as a result of the breach, where those can be determined, as set in Article 18 of the SSM Regulation.

Keywords: pecuniary penalties, profit, SSM Regulation, EBC Regulations

Brief considerations about the perspectives of the Romanian legal and judicial space

Author: PhD Valentin-Stelian BĂDESCU

Associate scientific researcher 

Institute of Legal Research of the Romanian Academy

 

DOI: 10.24818/EBLJ/2023/2/1.06

Abstract: To prevent misunderstandings, I confess that I felt it a civic duty to call things by their names. I always will. If we are still given to live, at least let us do it with dignity and cleanliness. In this capacity, I testify that many of the current problems of the Romanian judicial and legal space, basically of our justice system, can be solved through a pragmatic approach to a segment of our justice system, that of social justice, since the traumas and abuses committed by the state authorities, with attributions in the field, have affected the human security of citizens, with the immediate consequence of affecting/altering the rule of law. The rule of law is that which is based, in essence, on the supremacy of the law, and not on the discretionary power of some leaders, regardless of the name they bear – presidents, heads of state, kings, princes, etc. -, and within which the recognition of democratic values and the promotion and defence of citizens’ rights constitute a major objective.

 

Keywords: rule of law, Romanian legal and judicial space, social justice, truth, crisis situations

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