REASONS FOR THE APPEAL FOR ANNULMENT ACCORDING TO THE NEW ROMANIAN CODE OF CIVIL PROCEDURE

With regards to the appeal for annulment, the New Romanian Code of Civil Proceduremaintains the possibilities of exercising this extraordinary measure of contest, as regulated inthe previous code. It adds, however, the reason for such a measure which is determined bynot respecting the rules in assembling the judicial panel. These are essential rules of judicialactivity and could have permanently affected the decisions of the appeal courts which couldnot be contested in any other way

THE HARMONISATION OF LEGISLATION ON COMBATTING TAX EVASION IN THE EUROPEAN UNION

Combating tax evasion is part of the Lisbon Strategy. Tax fraud created a significant distortion in the functioning of the internal market and prevented fair competition.In its resolution of 2th of September 2008 on a coordinated strategy to improve the fight against fiscal fraud (2008/2033 (INI)) the European Parliament stressed that the Member States cannot combat cross-border fraud in isolation and called on the Commission to propose mechanisms to promote cooperation between Member States.This paper aims to analyse the main mechanisms to combat the tax evasion at the European level and, also, the changes that our country had to make in the field of legislation in order to achieve the EU standard on the fight against tax evasion

Executarea hotărârilor în materia contenciosului administrativ, de lege lata şi după intrarea în vigoare a Noului Cod de Procedură Civilă

The enforcement of the judicial decisions is based on the legality principle, all the proceedings, the authorities entitled to perform in this field, the rights of the participants being provided by the law. The judicial decisions delivered by the administrative courts are enforced by specific regulations, due to the activity of the administrative authorities. The Law no. 554 from 2004 provides a few rules regarding the enforcement of the courts’ decisions and for the rest sends to the Civil procedure code. There are provisions of the New civil procedure code that must be analyzed, because they will apply if they are compatible with the specific administrative relationships.</p

Despre posibilitatea instanțelor judecătorești de a acorda drepturi bănești funcționarilor publici, constatând o situație de discriminare

In the field of pecuniary benefits and salaries for the public clerks the Romanian legislator has adopted a solution which is not entirely valid. The text of the Law no. 188/1999 is not clear, sending for the solution offered by a future regulation, which is still under debate. The amount of benefits for the public worker is not determined by the Law – lato sensu, so the clerks drew applications before the domestic courts, in order to determine the amount of their rights or to ask protection because they had suffered discrimination in breach of art. 14 read in conjunction with art. 6 of the Convention, or art. 1 from the First Protocol. The Romanian Constitutional Court delivered four decisions in 2008, in which it ruled that domestic courts are not allowed to determine and to conclude discrimination situations, mostly in the matter of public clerks’ benefits and pecuniary rights. The court’s assessments held that the fundamental principle of separation of powers is breached by the court’s decisions, so they have to conclude only on the norms and not on the differences in treatment for similar situations. This attitude might determine another breach of fundamental principles, stated in art. 6 of the Convention, by the Community law, or even the Romanian Constitution, so domestic courts may use the principle of precedence of the Convention as international law and also the precedence of Community law. Those principles reveal that the relationship between the provisions of the Convention or of the Treaty and the national law of the Member States is such that by the entry into force they render automatically inapplicable any conflicting provision of the national law.</p

Excepția de nelegalitate în faţa instanţelor de drept comun

The legislative evolution of the exception of illegality determined a change in its structure, which went from an institution of procedural administrative law, to a true procedural exception, which is currently solved by the court before it arises. Such a situation attracted different solutions in jurisprudence, the courts of common law, civil or criminal, finding themselves in front of a special procedural incident, which would require a specific analysis of the administrative litigation court, competent to analyze the legality of an administrative act through direct action. Especially in the case of fiscal administrative acts, the exception of illegality may attract the disregard of special rules, so it is necessary to reveal the legal solutions in the different hypotheses that may arise, for a correct application of the incident rules.</p

Despre revocabilitatea actului administrativ cu caracter normativ

The possibility of the administrative authority to repeal the administrative act is provided by the Romanian legislator in Law no. 554/2004 (art. 2, para. 1, let. j). For the normative act, considering its specific, regarding the conditions which must be accomplished to this end (to enter in the civil circuit and to generate effects) an analysis is necessary.The study aims to determine if the administrative normative act is able to enter into the civil circuit in the terms of the law, also considering the exception from the preliminary procedure provided by art. 7, para. 5 of the same law.</p

Reguli de procedură aplicabile în litigii privind funcționarii publici

Litigations regarding the civil service report are given by law in the competence of the conten­tious administrative courts, in the mandatory juris­prudence of the Supreme Court being retained in specific hypotheses, respectively, in the situation of requesting some monetary rights not established by an administrative act, that they have labor disputes. It follows that, although the administrative court set­tles them, the rules applicable in the proceedings are those specific to labor disputes.The study aims to reveal the nature of the civil service relationship and related disputes, justifying the jurisdiction of the administrative court and de­termining the rules of procedure applicable to civil service disputes, depending on the distinctions resulting from the mandatory jurisprudence of the High Court of Cassation and Justice.</p

Limitele controlului exercitat de instanța de contencios administrativ asupra ordonanței de Guvern, ca act administrativ

The Government Ordinance, as a normative administrative act, is similar with the law – lato sensu – meaning that it has the same value and effects. The control that other authorities exert over the Government Ordinance reveals the role of the Parliament and of the Constitutional Court, in the proceedings a priori and the constitutional control, based on article 146 d) from the fundamental law. Even if the Government Ordinance is an administrative act it can not be brought before the administrative court, together with other administrative normative and individual acts, because the Constitution and Law no. 554 from 2004 do not allow such control. The courts are confronted with the claims for annulling some texts of Government Ordinances or the entire normative act, but, first, they must try an admissibility control in order to avoid the breach of the old principle of separation and equilibrium of powers in the democratic state, provided by the Constitution.</p

Principiul dreptului la un proces echitabil, în termen optim şi previzibil, potrivit Noului Cod de Procedură Civilă şi contenciosului administrativ

The New Civil Procedure Code, inspired from article 6 of the European Convention on Human Rights, provides that everyone is entitled to a fair hearing within a reasonable time by an independent and impartial tribunal established by law and the court should provide against the breach of this principle by taking all legal actions. In case of legal proceeding, a part of the administrative relations between the authority and the legal or natural persons are also under the force of this principle. The European Court’s jurisprudence determines the field of this principle by the definition of the notion ‘civil’. In order to ensure the celerity of the administrative proceedings the New Civil Procedure Code provides the possibility of the parties to stand before the court requiring the protraction of the trial.</p