Perspectives of Law and Public Administration

Table of Contents

  • Contents


  • Teaching assistant Adelina RAKAJ

    Abstract:
    The aim of this case study is to analyze the protection of the rights of the defendant in criminal proceedings and the implementation of international standards on the rights of the defendant in criminal proceedings in the domestic law of the Republic of Kosovo. This paper will focus on the role of the Constitutional Court of Kosovo in protecting the rights of the defendant during a criminal process, based on specific cases decided by the Constitutional Court of the Republic of Kosovo. For more than ten years since the Declaration of its Independence, Kosovo has established a legal system, which provides effective protection for the rights of a defendant. A significant role in this regard was played by the fact that Kosovo directly applies the jurisprudence of the International Court on Human Rights (ECtHR), as a constitutional obligation. Out of all institutions of the legal system in Kosovo, which are obliged to protect the rights of defendants, a determinant role was played by the Constitutional Court in such regards, therefore, this paper presents arguments how the Constitutional Court of Kosovo has become a guardian for protection of the rights of defendants, in compliance with the Jurisprudence of the ECtHR.
    Keywords: criminal proceedings, the rights of the defendant, Constitution of the Republic of Kosovo, ECHR, ECtHR.
    JEL Classification:K14, K33, K40
    1. THE PROTECTION OF THE RIGHTS OF THE DEFENDANT BY THE CONSTITUTIONAL COURT-THE KOSOVO CASE
        Page 5

  • Lecturer Radu Ștefan PĂTRU
    Abstract:
    In the present study, the author, starting from the regulation of the disciplinary - administrative liability of civil servants in the Administrative Code2, analyzes the legal regime of the functioning of this fundamental legal institution, with real implications in the career of civil servants. The author analyzes the legal aspects regarding the disciplinary violations, about the legal regime and the functioning of the disciplinary commissions, the sanctions applicable to the civil servants, the cancellation of the sanctions applied to the civil servants and about the administrative record of the public servants in the field of the disciplinary - administrative liability. The analysis is also doubled by comparative references regarding the situation of employees as provided by the Labor Code. The conclusions of the study, which are based on the analysis of the relevant doctrine and legislation, will also lead to the formulation of de lege ferenda proposals in the field of labor legislation.
    Keywords:liability, public servants, administrative – disciplinary, Administrative Code.
    JEL Classification:K23, K31
    2. ADMINISTRATIVE-DISCIPLINARY LIABILITY OF CIVIL SERVANTS FROM THE PERSPECTIVE OF THE ADMINISTRATIVE CODE
        Page 15

  • Lecturer Avni H. ALIDEMAJ
    Abstract:
    Public administration is the basic mechanism that ensures the good functioning of the state by providing services to citizens and exercising state power as well. Moreover, the administrative apparatus, according to the standards of the European Administrative Space, should be granted a certain level of independence from political institutions while conducting its administrative activity. For this reason, public administration reforms have always started with the professionalization of the civil service as the main pillar of the administrative apparatus. Initial measures to ensure the professionalism of the administration have been always undertaken in the field of meritocratic recruitment of civil servants as well as increase of their skills. States in transition and those emerging from the conflict continue to face the challenge of professionalizing the civil service as a consequence of the legacy of past systems. This paper explains the efforts undertaken in Kosovo for the professionalization of the civil service using: normative legal method, comparative and qualitative method, by focusing on the specific analysis of the legal framework for the recruitment of civil servants in Kosovo by comparing it with established practices which are often in conflict with the legal basis as a result of interference by political institutions.
    Keywords: public administration, civil service, meritocratic recruitment, political interference, civil service law, administrative review.
    JEL Classification:K23
    3. LEGAL FRAMEWORK FOR THE RECRUITMENT OF CIVIL SERVANTS IN THE CONTEXT OF KOSOVO
        Page 22

  • Lecturer Ovidiu Ioan DUMITRU
    Abstract:
    From our beginning the fight for resources and the human wish of growth and wealth leaded to a competitive behaviour of individuals and, by extension, that of their economic undertakings. While some developed an economic outlook on competition, there were some authors furt her adding the legal component as a governing principle of competition. In the spirit of a form based approach, early EU competition law aimed to insure the economic freedom, missing openness towards certain practices. The founding Treaties, the modifying ones and the European acts in the field outlined the safeguarding of the internal market as a goal of competition law. Still, an important source of European competition law was offered to us by the case law. The shift towards the effects based approach en sued the regulation as ex post assessments of the merger impact on competition were undertaken. Different implications of Merger Control in EU competition law will be discussed in this paper, one which follows the spectacular evolution of the impact of dif ferent European Decisions on the change of competition law. The paper is a study on evolution of the Merger control and the analysis how much impacted two European Commission decisions prohibiting mergers the Single Market the reforms of each regulation de velopment before each one of them.
    Keywords: merger control, competition, horizontal merger, dominant position, dominance test
    JEL Classification:K21, K22
    4. THE IMPACT OF AEROSPATIALE ALENIA/DE HAVILLAND AND RYANAIR/AER LINGUS CASES ON THE REFORM OF EUROPEAN MERGER CONTROL
        Page 33

  • Teaching assistant Luz BALAJ
    Abstract:
    This paper reviews the debate over the power of the constitutional amendment in Kosovo, by primarily dealing with two forms via which it is manifested:.namely, norms that explicitly define their unamendability and norms that the court of constitutional jurisdiction has identified as unamendable in their implicit nature. To reach that objective, the paper proceeds as following: it first reviews the jurisdiction of the Constitutional Court to review draft-constitutional amendments, and the criteria on which it may rule. Thereafter, the paper explains how certain amendments conform to the explicit prohibitions on amendability present in the constitution. The paper than continues further by deconstructing the constitutional court's contribution in identifying the unamendability of the constitutional norm with an implicit nature. This is primarily considered from the perspective of landmark judgments of the Constitutional Court, which, as will be seen, have contributed to the expansion of the Court’s review power as well as the material criteria governing the limitations on the power of constitutional amendment.
    Keywords: unconstitutional amendments, explicit-implicit unamendability, constitutional court, constitutional jurisdiction, human rights.
    JEL Classification:K30, K38
    5. EXPLICIT AND IMPLICIT UNAMENDABLE CONSTITUTIONAL PROVISIONS FROM THE PERSPECTIVE OF THE KOSOVO CONSTITUTION
        Page 44

  • Associate professor Charlotte ENE

    Abstract:
    For decades, the institutions of European Union have strived a varied range of efforts to bring the treaty provisions regarding the freedom of establishment of the companies within the single market into operation. In the view of the Court of Justice of the European Union, developed in several decisions issued from the Centros until the Polbud case, the freedom of establishment for companies includes, inter alia, the right to cross-border conversions, consisting in the possibility of a company having the nationality of a Member State to convert itself into a company governed by the legislation of the other Member State without losing its legal personality. Recently, a very welcomed piece of legislation, the Directive 2019/2121 on cross-border conversions, mergers and divisions - as part of the EU company law package, was adopted in order to stimulate cross-border mobility of the companies, and, in the same time, to provide a coherent framework for the complex cross-border operations (meaning the cross-border conversions, mergers and divisions). The question is if this directive will provide sufficient protection for the multiple stakeholder of the companies.
    Keywords: EU Company Law, cross-border conversion; freedom of establishment; cross-border mobility of companies; the case C-106/16 Polbud; the Directive (EU) 2019/2121.
    JEL Classification:K22, K33
    6. THE CROSS-BORDER CONVERSION – A POSSIBLE SOLUTION FOR THE MOBILITY OF COMPANIES IN EUROPEAN UNION
        Page 54

  • Associate professor Monica GHEORGHE
    Abstract:
    In a series of decisions ruled for preliminary questions, the Court of Justice of the European Union interpreted the notion of “working time”, as well as that of “resting time”, defined by Directive 2003/88/EC of the European Parliament and Council of 4th of November 2003 on certain matters of organizing working time. The objective of the Directive is to guarantee superior protection of workers’ security and health, providing in this respect a series of minimum rules. In terms of these European rules, CJEU had to rule again on certain submitted preliminary questions. This study aims to highlight a part of these decisions and their incidence in the employment relations practice. The national court, in settling a conflict concerning the calculation of the working time of an employee, shall be bound to verify the incidence of absolutions made by the European court in the matter and, subsequently, to apply them for the factual case it settles. Indirectly, the employers are bound to take into account the solutions of the European court.
    Keywords: working time, resting time, employee, employer, European jurisprudence.
    JEL Classification:K31
    7. CONSIDERATIONS ON THE MEANING OF THE NOTION OF “WORKING TIME” IN THE LIGHT OF RECENT C.J.E.U. JURISPRUDENCE
        Page 58

  • Assistant professor Andreea STOICAN
    Abstract:
    Law 31/1990 on companies provides a series of cases that lead to the dissolution of a company either by the will of the associates, either by the decision of the court of law, either by law. As such, even though the cases in which the dissolution can operate by law - therefore imposed by the legal provisions - or through the decision of the court are clearly stated, not the same can be said for the dissolution of a company intervened by the decision of the partners. Due to a more general definition that the legislator gave to this legal means, it created, without anticipating at the moment of the drafting of the legal text, a method for the associates to breach certain legal provisions regarding the rights of their creditors. Therefore, the current study aims to draw the attention on a frequent practice operated by more and more merchants in their trade activity which leads to an impossibility for their creditors to have their debts recovered.
    Keywords: voluntary dissolution, breach of law, law enforcement, liquidation.
    JEL Classification:K22
    8. THE VOLUNTARY DISSOLUTION OF A LIMITED LIABILITY COMPANY - A WAY OF ABUSING THE LAW?
        Page 65

  • PhD. student Fitim GASHI; Professor Bedri PECI
    Abstract:
    Following the national and EU legal framework, protection of personal data and privacy includes almost all type of business including the banking sector. Kosovo as a new state is trying to build a legal system which aims to be in compliance with the EU legal framework also in area of personal data and privacy and in the meantime in compliance with consumer protection rules. Taking into consideration that Kosovo recently established the National Agency for Protection of Personal Data while banks are dealing with big data, customers are faced with the situation where their data can be not treated as law requires. The protection of personal data is a fundamental right and banks deal with personal data in daily basis. We also may know that banks are obliged to receive personal data but the main challenge remains the protection of customer data and privacy. The aim of this paper is to raise the issue of protection of personal data and privacy in banking sector as the banks receive and handle personal data in a daily basis. On this paper we will see how the protection of personal data is regulated and how banks are obliged to protect personal data and customer privacy in Kosovo and how it has impact in the consumer protection in banking sector.
    Keywords: privacy, personal data, consumer protection, bank.
    JEL Classification:K23, K36, K38
    9. PROTECTION OF PERSONAL DATA AND PRIVACY IN BANKING SECTOR IN KOSOVO AND ITS IMPACT IN CONSUMER PROTECTION
        Page 70

  • Assistant professor Diana Geanina IONAȘ
    Abstract:
    The most important legal limitation of exercising the private property right in case of the neighborly relations is that of the right of passage. This right balances two contradictory interests: on one hand, there is the interest of the owner who has no access to the public pathway but must benefit from a normal exercise of his property right and, on the other hand, there is the interest of the neighboring owner who must not be prevented from exercising his property right. Although it is an old institution, with deep roots in Roman law, the right of passage is still actual by the simple existence of the neighboring relations. In order to understand how it works, the current paper aims to present theoretical and practical issues regarding the creation, extent and exercise of the property right within in national and international context, in relation to the closest institution, the conventional passing encumbrance.
    Keywords: right of passage, legal nature, encumbrance, conditions, exercise.
    JEL Classification:K11, K15
    10. THE RIGHT OF PASSAGE - LEGAL LIMIT OF EXERCISING THE PROPERTY RIGHT
        Page 79

  • Ph.D. student Costin MOLDOVEANU
    Abstract:
    This study is focused on the divergences of jurisprudence that appeared following the amendment, as at mid-2018, of the rules of territorial jurisdiction inserted in the content of the Law on Administrative Contentious. The new provisions establish the exclusive territorial jurisdiction of the administrative contentious court of the place of domicile of the natural person or of the place of registered office of the legal person of private law, part of the judicial conflict of administrative law, facilitating the access to justice of the individual by the proximity of the seat of the court, the reduction of paid court charges etc. However, the desiderata taken into account by the initiators of the legislative amendment were not achieved in the case of disputes brought by trade unions having as scope of works the employment relationships of civil servants, trade union members. The different appreciation of the capacity in which the trade union can participate in the lawsuit (plaintiff or simple representative of the civil servant) determines jurisprudential divergences in establishing the competent court from a territorial point of view, successive dismissals and numerous negative conflicts of jurisdiction. Analysing the legislative framework and the relevant jurisprudence, including from the point of view of their evolution, at the end of the study concrete proposals are made to underlie the unification of jurisprudence and even the regulation of special rules of territorial jurisdiction in disputes that call into question the employment relationship of the civil servant.
    Keywords: civil servants, trade unions, administrative contentious court, territorial jurisdiction.
    JEL Classification:K23, K40, K41
    11. CIVIL SERVANTS. LAWSUITS BROUGHT BY TRADE UNIONS. CONTROVERSIES OVER TERRITORIAL JURISDICTION
        Page 88

  • Associate professor Ana VIDAT
    Abstract:
    Temporary/restrictive measures highlighted by the legislative context – necessary to prevent and eliminate imminent threats to fundamental rights and freedoms – also target the execution of individual employment contracts; the following categories of employers are covered by the present measures: those in the private system, central and local public authorities and institutions, regardless of the method of financing and subordination, as well as autonomous utilities, national companies, national companies and companies in which the share capital is wholly owned or majority state or an administrative-territorial unit.
    Keywords: labor contract; teleworking; home work; economic crisis; alert status; individualized program.
    JEL Classification:K31
    12. BRIEF CONSIDERATIONS REGARDING THE EXECUTION OF THE INDIVIDUAL EMPLOYMENT CONTRACT IN THE CONTEXT OF THE ALERT CAUSED BY THE COVID-19 PANDEMIC
        Page 98

  • Lecturer Andrada NOUR
    Abstract:
    The state or the institutions of the state operate with the participation of public servants, which entails to the latters of a conduct worthy of the position they hold and of the authority enjoyed. In this sense, the criminal law has, on the one hand, the role of ensuring the prestige of public servants, and, on the other hand, to hold criminally liable those who are guilty of acts unworthy related to their activity. In this paper, we intend to identify categories of persons who may be held liable as active subjects of corruption crimes, according to current legislation in force in our country, and certain controversial aspects related to the subjects of these crimes. To better define the notion of public official from criminal law point of view, we have considered including the international and community legal documents of reference.
    Keywords: civil servants, corruption, crime, criminal law, criminal liability.
    JEL Classification:K14, K23
    13. THE PUBLIC SERVANT – ACTIVE SUBJECT OF CORRUPTION CRIMES UNDER CURRENT CRIMINAL LEGISLATION
        Page 104

  • Associate professor Vasile NEMEȘ; Assistant professor Gabriela FIERBINȚEANU
    Abstract:
    By adopting Law no. 71/2019 regarding the mutual insurance companies and for the modification and completion of some normative acts, a new category of legal persons was regulated and, implicitly, as the title of the law suggests, a new category of insurers. Our legislative system thus aligns with the European systems that have long implemented this form of society, even in the organic regulations (France, in the Insurance Code, Italy, in the Civil Code and in the Insurance Code, etc.). As a structure, the mutual society is organized and operates in the legal form of joint stock companies, presenting certain features that configure its autonomy and substantiate its existence. Mutual insurance companies are designed as alternatives to traditional insurance companies whose main purpose is to facilitate access to insurance activities and the involvement of policyholders in the management process of the company. The members acquire a double quality, of associates of the mutual society and of insured persons, consumers of the insurance products that their own society practices. The contributions of the associates, as equivalent to the specific contributions of the companies, contribute to the formation of the mutual society's fund, but also have the legal nature of the insurance premiums, as a price of the insurance products they benefit from. From this perspective, the main advantage of the mutual insurance company is that prudent and fair management (in which the insured are involved, including the double insured), exempts the insured from subsequent contributions (premium payments), especially in those areas where the damage rate is low, such as professional insurance. The mutual insurance company thus presents itself as a true vehicle for capitalizing on the insurance portfolio and a real competitor of the profile companies, ensuring the transparency of insurance operations and the participation of policyholders in the efficient use of the company's resources.
    Keywords: mutual insurance, companies, policyholders, commercial law.
    JEL Classification: K22, K23
    14. MUTUAL INSURANCE COMPANY - A NEW FORM OF COMPANY IN THE LANDSCAPE OF ROMANIAN LEGAL ENTITIES
        Page 118




The Journal


ISSN 2601-7830  
ISSN–L 2601-7830 
ETHICS AND MALPRACTICE STATEMENT
Assumption of Liability Declaration

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