Perspectives of Law and Public Administration
Volume 12, Issue 2, June 2023
Table of Contents
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Professor Cristina ARAGÃO SEIA
Abstract:The great challenge of this century is to figure out how we can achieve development, combat climate change, conserve wildlife, and protect our common resources, in global terms, while maintaining a balance between the environment and social and economic considerations. Environmental liability, conceived by the European Union and the Member States as an instrument of administrative law in substantial and sanctioning terms, is one of the preferred for protecting the environment and ensuring sustainable development. It is a new approach to the environment as an injured party, allowing the repair of pure ecological damage, and ensuring its prevention. Given the particular characteristics of environmental damage, namely the fact that the environment is a collective good and has no geographical limits, environmental liability must focus on a cross-cutting and transnational approach. A European environmental liability regime was adopted and entered into force about 15 years ago. This work aims to assess the current usefulness of that regime and the need for its possible modification, through a comparative and critical analysis of the options took by some of the Member States, particularly Portugal, and the data available in this matter, and suggest aspects in which the regime can be improved.
Keywords: European Union, environment, environmental liability, polluter pays principle, energy, health, safety law.
JEL Classification: K32Environmental Liability. Study for a Future Amendment of European Legislation
Page 150 - LLM. Bore M. KALEMBO; Professor Kola O. ODEKU
An Analysis of the Roles of the Practitioners in the Implementation of the Environmental Impact Assessment in South AfricaAbstract:Various national, domestic, and international legal instruments provide for the significance of ensuring that, prior, during, and after any proposed or completed project, a thorough EIA must be carried out, to establish the extent of the impact and the effect of such a developmental project would have on the environment. To accomplish this, the role of Environmental Assessment Practitioners (EAP) became more imperative. This paper looks at the various roles of these practitioners, their professional advice based on their assessments, whether a project should get the go-ahead to continue or not, stating and indicating the imminent risks to the environment, how to mitigate them, and if need be how to abate the project.
Keywords: developmental projects, impact and effect assessments, environmental impact practitioners, South Africa.
JEL Classification: K30, K33, K38
Page 163 - Associate professor Zdenek FIALA; PhD. student Kristyna MLEZIVOVA; Associate professor Olga SOVOVA
Current Issues of the Service Relationship of Security Forces Members in the Court of Justice Case Law and the Impact on Public Service PracticeAbstract:The paper examines selected decisions of the European Court of Justice concerning the dismissal from service of members of the security forces. The article focuses on members' health capacity loss. The paper also highlights related issues such as ordering and reimbursing overtime work and duty readiness. The paper points out how the European Court of Justice case law influences the decision-making activity of service officials in general. The Czech armed corps practice and case law exemplify research issues. The authors place the solution to individual questions in the broader context of legal regulation to enable a more comprehensive understanding. The authors underline the critical attributes on which the service relationship of members of the security forces is conceptually built and controlled. Considering the most significant judgments of the European Court of Justice, the authors pond over the implementation of service relationship principles into European member states' legal and managerial practice. The authors examine the mentioned challenges through desk research and analyses of European and national legal legislation and case law. In conclusion, the authors evaluate the practical service needs of the security forces concerning the medical fitness of their members. Future legislation should consider the demands for physical fitness and psychological resilience, as well as the need for digital literacy of a public servant.
Keywords: public service relationship, security forces, security force member, dismissal, health capacity, overtime work, duty readiness.
JEL Classification: K23, K31, K41
Page 176 - Lecturer Mihaela Emilia MARICA
Considerations on Disciplinary Sanctions Applicable to Employees. Elements of Comparative LawAbstract:The present article discusses the problematic aspects pertaining to the disciplinary sanctions applicable to employees who commit breaches of the rules defining work discipline. It contains an analysis of the categories of disciplinary sanctions provided for by the Labour Code: written warning; demotion, with the salary corresponding to the position to which the demotion was ordered, for a period not exceeding 60 days; reduction of the basic salary for a period of 1-3 months by 5-10%; reduction of the basic salary and, where applicable, of the management allowance for a period of 1-3 months by 5-10%; disciplinary termination of the individual employment contract. The article highlights, on the one hand, the specifics of domestic regulations with consideration of the most important aspects of case law, and on the other hand, it offers elements of comparative law with reference to countries such as Belgium, Dominican Republic, France, Cyprus in order to provide the legislative optics of other countries as well as reveal the problems in this field of labour law.
Keywords: disciplinary sanctions, written warning, employment contract, misconduct.
JEL Classification: K31
Page 185 - Full professor Boris BAKOTA
Public Administration and the Law of Animal Protection in CroatiaAbstract:Humans and animals have co-existed throughout history. Animals were used for food, clothing, work, but Tobit’s dog in Bible is probably one of first pets ever mentioned. Not just Bible, but other written documents show those relations, mainly concerning either selling animals or resolving damages incurred by animals or by human to someone’s animal. Public administration played its role in trials towards animals and in conducting imposed sentences. Veterinarians have been providing inspections concerning animal health, food safety, etc. Lately, as our behaviour towards animals changed, public administration started providing protection for pets and later for abandoned and lost animals. The objective of this study is to show how relations drastically changed in less than 200 years. Previous legal documents concerning animal status and protection were analysed. The empirical research was conducted among 555 Croatian local self-government units. The results will show current situation vis-à-vis protection of abandoned and lost animals, and financial implications for local self-government units. Concluding remarks are based on survey results suggesting need for certain legal changes.
Keywords: public administration, animal protection, local self-government, animal shelter.
JEL Classification: K38
Page 194 - Professor Howard CHITIMIRA; Candidate attorney Tumelo SETHUNYANE; Lecturer Phemelo MAGAU
The Rationale for Piercing the Corporate Veil to Enhance the Accountability of the Municipal Manager in Mahikeng Local MunicipalityAbstract:This article analyses the possible application of the principle of piercing the corporate veil in a local municipality as a measure of fostering and enforcing accountability of the municipal manager and the municipal council in Mahikeng local municipality. The principle of piercing the corporate veil is provided under section 20(9) of the Companies Act 71 of 2008. The piercing of the corporate veil occurs when the courts disregard the division between a company and the person who controls it and then attribute liability to the person who misused the principle of a separate legal personality in that company. The article identifies, inter alia, maladministration, fraud and corruption as the basis on which the courts would pierce the corporate veil in Mahikeng local municipality to ensure accountability in the municipal manager. It is submitted that the principle of piercing the corporate veil should be carefully applied in Mahikeng local municipality to promote accountability and better service delivery to the community. The principle of piercing the corporate veil could help to ensure accountability of municipal funds and resources in Mahikeng local municipality by curbing the improper use of municipal funds and resources by the municipal council and the municipal manager. Lastly, the possible advantages of piercing the corporate in Mahikeng local municipality are discussed.
Keywords: accountability, transparency, piercing the corporate veil, municipal manager, legal personality.
JEL Classification: K22, K23
Page 202 - PhD. student Andrada-Laura TARMIGAN
Data Privacy Concerns in Virtual ADR SessionsAbstract:The aim of this article is to analyze the data privacy issues related to the technology used in hybrid and virtual alternative dispute resolution (“ADR”) procedures, in accordance with the General Data Protection Regulation (“GDPR”) and generally imposed standard at an international level. The results are obtained through the comparative method and are relevant in identifying the rights and obligations of all stakeholders: the supervising institutions, decision makers, the parties and all other entities. We will analyze how leading ADR institutions position themselves in relation with data privacy issues, which is the key language involved and how are new platforms going to be prepared for the increasing volume of these speedier procedures. Lastly, we will identify potential differences between on-chain and off-chain disputes. The results are of practical importance, helping all participants in ADR procedure to understand and comply with data privacy and cybersecurity concerns.
Keywords: data privacy, cybersecurity, alternative dispute resolution, arbitration.
JEL Classification:K33
Page 216 - Professor PhD. Habil. Diana DĂNIȘOR
The Explosion of Network Techniques and the Myth of the Network between Science and Democracy. Legal ImplicationsAbstract:The network has become a dominant form of contemporary thought, its constitutive metaphor reinvented during the explosion of networked techniques - the Internet and planetary telecommunications networks. It seems to draw the invisible infrastructure of contemporary society. The figure of the network tends to define the ways in which thought works, being ubiquitous in all disciplines, from biology to sociology, from law to computer science, etc., for the hidden structure of the complexity of today's society is the network that dominates and shapes it. The network itself produces social change, being conceived as a technique that provides connection and as a political-moral operator that provides meaning and is identified with a social and democratic revolution. In contemporary society everything is networked, from transport to energy, from telecommunications to information technology, even human relations have become 'networks'. The network, as the explanatory structure of the contemporary capitalist system, constitutes the 'new morphology of our societies', converging towards a 'meta-network of capitals', as the new figure of power, with the whole planet caught in its net, leading to the suppression of state control over society and the economy and the destruction of the sovereign nation state through the destruction of hierarchies.
Keywords:network metaphor, networking techniques, democracy, logos, moral responsibility.
JEL Classification: K10, K19
Pages 222 - Lecturer Linert LIRËZA; Lecturer Gentian KOÇI
Child Cyberpornography in EU Countries: The Ways of Protecting Children’s IntegrityAbstract:European countries have made significant progress in strengthening their legal frameworks and policies to prevent and combat child cyberpornography. However, effective prevention and combat efforts require a comprehensive and coordinated approach that involves sharing information and intelligence across borders, cooperating in investigations and prosecutions, and providing support to victims and their families. The research will be conducted using a mixed-methods approach, including both quantitative and qualitative data collection and analysis. The paper, examines the legal measures taken by European countries to prevent and combat child cyberpornography. It analyzes the legal frameworks and policies in different European countries, the challenges faced in implementing and enforcing these legal measures, and the effectiveness of these measures in combatting child cyberpornography. The effectiveness of measures such as age verification, content moderation, and reporting mechanisms will be analyzed to determine their impact on preventing child cyberpornography. Artificial intelligence (AI) technology is also becoming increasingly important in preventing and combatting cyberpornography involving children. From the other side, interstate cooperation can also play a critical role in promoting international education and awareness-raising efforts to prevent child cyberpornography.
Keywords: child, protect, cyber pornography, sexual abuse, artificial intelligence
JEL Classification: K14, K33
Page 230 - Professor Vasilica NEGRUȚ; PhD. student Ionela Alina ZORZOANĂ
Inadmissibility of the Referral Request for Preliminary Questions to the Court of Justice of the European Union. National Case-Law vs. CJEU Case-LawAbstract:The purpose of this study is to highlight the importance of the CJEU's referral with preliminary questions, but also to sound an alarm about the laxity with which some national courts allow such requests. We also wish to point out that more and more national courts tend to send requests for preliminary questions to the CJEU which actually appear to be asking for guidance from the Court on the national dispute and not for clarification or interpretation of the Treaties or European law. In order to achieve the objectives of this approach, using the comparative and logical method, we shall analyse the specific legislation, the relevant case law of the Court of Justice of the European Union as well as the practice of national courts. The starting point for the analysis shall be the provisions of Article 267 of the Treaty on the Functioning of the European Union, through which we shall analyse the conditions for the admissibility of a reference for a preliminary ruling. We shall also highlight the importance of the role of the national court in analysing the usefulness of the referral to the CJEU, in relation to the subject matter of the dispute, as there is no obligation per se to refer. We have proposed this scientific approach as an observation of the superficiality with which national courts are increasingly granting requests for referral to the CJEU, without a rigorous analysis of both the express conditions of Article 267 TFEU and the usefulness of a possible response from the Court in the specific case.
Keywords: Treaty on the Functioning of the European Union, preliminary question, admissibility, Court of Justice of the European Union, case law, national court.
JEL Classification: K23
Page 238 - Assistant professor Mejd Aures BENLALA
Exploring Risks and Issues Related to Policy Making and Regulation in FinTechAbstract:This paper aims to highlight the role of FinTech in today's modern financial industry. FinTechs are often concentrated in specific activities for which they try to offer a comparative (and competitive) advantage in terms of quality or price, which is achieved through two main ways: (a) by improving the efficiency of companies through cost reduction and productivity enhancement and thus increasing profitability; and (b) by improving the quality of financial services and products offered to consumers. Then, the paper attempts to lay out and address potential risks related to: the financial institutions, consumers or customers and investors, and the pro-cyclicality and systemic risk in the markets. This requires the interaction and intervention of policy makers and regulators. Therefore, the assessment of FinTech's benefits and risks ended up with recommendations for policy makers and regulators aimed at supporting innovation in the field of finance, while ensuring that the use of FinTechs is consistent with promoting financial stability, competition and market integrity, and guaranteeing the protection of consumers and financial investors. The paper concludes that in order to keep up on these changes while upholding high standards for security, stability and consumer protection, more agile and proportional forms of regulation must be established through closer cooperation among public authorities. Given the changing financial sector, the new technology will be a lever of innovation for regulatory authorities, too.
Keywords: finance; FinTech; policies; regulations.
JEL Classification: G23, G28, K22, K33, O31
Page 249 - Lecturer Nqobizwe Mvelo NGEMA
Regulation of Adultery (Zina) in the Context of Egyptian Human Rights ObligationsAbstract:According to the Egyptian legal framework, a man is considered to have committed infidelity if he had sexual intercourse with another woman other than his wedded wife and such intercourse must take place within the marital home that he shares with his wife. If a man has sexual intercourse with an unmarried maiden in a hotel, that would not be regarded as an act of adultery. On the contrary, a woman does not enjoy the same privilege as her male counterparts. If a married woman sleeps with another man other than her wedded husband, she will be regarded as the one who committed adultery whether she did it in her marital home or outside it. What is good for the goose must also be good for the gander. An egalitarian society for all is not only a fundamental human right but an essential foundation for a prosperous, peaceful, and sustainable society. This paper intends to contribute to mounting pressure on the Egyptian government to revisit its discriminatory laws and to comply with its international human rights obligations.
Keywords: adultery, gender discrimination, Zina, family law.
JEL Classification: K33, K38
Page 256 - PhD. candidate Rina ZEJNELI
Legal Treatment of the Issue of Migration ProcessesAbstract:Migration, as a sociological phenomenon, also requires legal regulation, both national and international, and today, for this reason, there are a number of international conventions that regulate migration issues. During socio-economic formations, migratory movements have never been spontaneous processes, but they have been prompted by a series of factors, such as: economic security, high unemployment, poverty, violation of human rights, persecution due to political beliefs, discrimination, totalitarian government, armed conflicts, religious conflicts, etc. Migration can be internal and international; the same are distinguished among themselves according to the criteria of territory and state borders. The state territory and the borders of a state that is different from other states, is regulated by international legislation and international law. Regardless of whether we are talking about countries of origin or countries of transit, today all countries face the challenges of migration. Even the Republic of North Macedonia as a transit country has been affected by this global phenomenon, also because of its geographical position which is located on the Balkan-Western route, which is a transit route for entering European countries. Migrants who use this route mainly flee from the wars taking place in the Middle East, who first stop in Turkey or Greece, and then in various ways use the territory of the Republic of North Macedonia as a transit to Serbia or even Albania to passed in the countries of the European Union.
Keywords: migration, economic, social, political factors, poverty.
JEL Classification: K14, K33
Page 262 - PhD. candidate Anis BENABED; PhD. candidate Lucica TUDORAN
Artificial Intelligence Towards International Regulations, Frameworks and Laws in the World of Globalization: Implications and ChallengesAbstract:This paper investigates, describes and presents the way and status artificial intelligence is having in the global society that bases on economy, politics, economy, culture and law, the judicious element that is law, the actors and representatives of justice and advocacy could face a threat with the substitution and incorporation of artificial intelligence that challenge the human being workforce in industry, occupations and services. The Global society has gone through a radical transformation socially, economically and culturally, especially after the fourth industrial revolution and digital revolution, meanwhile, it began to go through a number of ethical and legal challenges and risks. The appearance of internet, digitalization and artificial intelligence have given the world new insights, facilities in economy, communication and various aspects. The research question is “How may law or international law, the actors and representatives of justice and advocacy face the threat of artificial intelligence substitution?” the used methodology was literature review of the existing literature and qualitative descriptive analysis based on facts and some theories of law. The results show that many countries have established or started to implement artificial intelligence laws or regulations and some of them are published, in progress or already in force. In conclusion, as a reflection, lawyers should get trained with theoretical and practical technological knowledge that appropriate the new visions of the world, from a propositional and preventive role, if technology continues, it changes the paradigms of law from the automaton application.
Keywords: globalization, AI, international, law, judge, global society, economy, future.
JEL Classification: K22, K24, K20, J83, O14, F01, F60, D63, N40
Page 268 - Lecturer Edvana TIRI; Lecturer Erjola ALIAJ
Cyber-Security Regulation in AlbaniaAbstract:The increasing access to cyberspace and its resources is having a significant impact on our societies and our daily lives, profoundly transforming the way we live, work and interact. The importance of cyber security converts into the need to keep information, data and devices private and secure. Cyber-security is an essential element for the flat functioning of all critical information infrastructures. In this context, the treatment of cyber-security in this paper is concrete, taking into account the cyberattack that our country went through, which was aimed at destroying critical structures and testing the capacities of Albania. It is worth noting that a secure cyber environment cannot function without giving it the opportunity to have the relevant mechanisms. Specifically, increasing cyber resilience in critical information infrastructures are flexible cyber security measures, which focus on the flat functioning of online public services keeping in focus the real threats and the risk management plan. Furthermore, within the framework of commitments as a candidate country of the European Union, Albania is meticulously implementing all European acts and international standards for the drafting of a consolidated and stable legal framework. In the present paper, through a legal assessment, special attention has been paid to the National Strategy for the period 2021-2023 and legal rules on cyber-security in the Albanian legislation, aiming to analyze the legal provisions, which regulate it in this regard. Also, an important objective of this paper is also the fact that it may serve as an important basis for further studies in this field. The analysis of the cyber-security legal regulation in Albania is based on the qualitative method, which contains also the research, analytical, descriptive, interpretive methods. The results of this paper, which treats an innovative topic, will stimulates debate in the academic level and contribute to the legal doctrine in Albania that lacks such.
Keywords: cyber-security, national strategy, legal regulation, Albania.
JEL Classification: F52, K24
Page 275 - Lecturer Anamaria GROZA
The Amendments Made in Romania by Law No. 102/2023 to Administrative Litigation, Only Apparently MinorAbstract:At first glance, the changes brought by Law no. 102/2023 to administrative litigation concern (only) the time limits: the starting point of the limitation period for bringing an action for annulment of the administrative act for which the prior complaint is no longer mandatory; the time limit within which the suspension of the administrative act that can no longer be revoked prior to the bringing of a substantive action for its annulment may be requested and the time limit within which the action for annulment must be brought if suspension has been requested under art. 14 LCA; the maximum time limit up to which the suspension of the execution of an administrative act for which an action for annulment has already been brought may be requested. On the other hand, some time limits are drastically shortened and other solutions are atypical both from the perspective of civil procedure and traditional rules in administrative litigation. The amendments are also important because they concern administrative acts for which prior complaint is no longer mandatory, and most administrative acts fall into this category (as they immediately produce legal effects). The article is a point-by-point analysis of the most recent amendments to the Administrative Litigation Act, apparently minor but with a potentially significant impact.
Keywords: administrative law, administrative litigation, Romania, administrative act.
JEL Classification: K23, K41
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