European Legislation Journal Archive


European Legislation Vol. 14 No. 47-48/2014

Content

PREFACE
Redakcija časopisa
European Legislation, 2014 14(47-48):7-10

Institutions

PROBLEMATIKA ODREĐIVANjA NADLEŽNOSTI EVROPSKE UNIJE
Slobodan Zečević
European Legislation, 2014 14(47-48):11-29
Abstract ▼
Division of powers between the European Union and its member states is a politically delicate matter. Actually, transfer of powers to the Union implies the reduction of powers of its member states. This calls into question the sovereignty of the latter ones. Historically, the expansion of powers of the European Community and later of the European Union was based on two foundations. It has its legal form in amendments to the agreement, on one part, but apart from this, powers expanded tacitly on the basis of the interpretation of the Treaty Establishing the European Community and through the legal practice of the Court of Justice, on the other. The 2009 Lisbon Treaty has codified division of the powers which exclusively belong the European Union, the powers which are shared by the Union and the member states and the powers in the field where the European Union could only support the arranging activities of the states. Moreover, it has defined the mechanism for limiting the spillover of powers for the benefit of the European Union, this even providing regression or actually retrieval of fields which were regulated by the Union to the sphere of competences of the member states. This has called into question the principle of irretrievable transfer of powers from the member states to the European Union institutions.

Legislation

EU I SRBIJA: OD OBAVEZE USAGLAŠAVANjA NACIONALNIH PROPISA SA PROPISIMA EU I NjIHOVE PRIMENE DO PRELAZNIH ROKOVA
Dragoljub Todić, Nikola Dragišić
European Legislation, 2014 14(47-48):30-39
Abstract ▼
The authors discuss certain elements in the three linked processes of importance for the negotiations of the Republic of Serbia (RS) with the European Union (EU): the process of harmonization of national legislation with EU legislation, the process of implementation of the legislation and practice of contracting transitional periods. In the first part of the paper there have been highlighted the weaknesses of the existing procedures for the preparation and adoption of regulations and harmonization of national legislation with the EU’s. This, above all, from the standpoint of the need to identify the real capacity of the economy and society to accept the standards of a new legal system such as the EU system. The second part of the paper points to certain assessments of the situation and problems in the implementation of legislation in the RS. The third part of the paper examines the practice of other countries that agreed transitional periods for the implementation of EU secondary legislation in their EU accession treaties. The author points to the need for the negotiation process to address adequately the possibility of contracting appropriate transitional periods, taking into account the fact that there are weaknesseses in the system of harmonization of national regulations and their implementation. The main thesis discussed in this paper is that due to weaknesses in the harmonization of national legislation with that of the organization, as well as the weaknesses in the implementation of the regulations, there is a need to make appropriate changes in the process of harmonization of national legislation with the EU’s and to carefully study all elements relevant for negotiation’s position of the RS, as well as possibilities and needs of contracting transitional periods for the implementation of certain EU legislation.
RAČUNARSKI KRIMINALITET U SRBIJI I EVROPSKI STANDARDI
Dragan Jovašević
European Legislation, 2014 14(47-48):40-56
Abstract ▼
The new criminal law of the Republic of Serbia, which was adopted in 2005, prescribes criminal liability and punishability for a number of criminal acts against the security of computer data. The perpetrator performs these computer criminal acts by the abuse of computers, this causing property or non-property damage to other natural or legal persons. These incriminations basically include European standards defined by the Convention on Cybercrime and the Additional Protocol to the Convention on Cybercrime as well as a number of other European documents. The paper analyses the basic characteristics of cyber crimes in Serbia and to what extent they are harmonised with the European standards.
ULOGA EVROPSKE UNIJE U SPREČAVANjU I SUZBIJANjU KORUPCIJE
Jelena Matijašević-Obradović, Joko Dragojlović
European Legislation, 2014 14(47-48):57-66
Abstract ▼
Recognizing corruption as a major threat to the rule of law, democracy and to global security, the European Union as a regional, economic and security organizations has taken a series of measures in its prevention and suppression. The fight against corruption is one of the priorities of the internal and external policies of the European Union, with establishment of mechanisms for effective implementation of anti-corruption policy. Consequently the paper analyzes the role of the European Union in preventing and combating corruption, along with a brief overview of the problem of conceptual definitions of corruption and the causes of its occurrence. Also, given that Serbia is on the process of European integration, and corruption is one of the main obstacles on this way and objections of the European Commission, it is necessary constant actualization of this topic and permanent work on the harmonization of legislation of the Republic of Serbia with the European Union.
SLOBODA KRETANjA RADNIKA U PRAVU EVROPSKE UNIJE
Aleksandra Popović
European Legislation, 2014 14(47-48):67-91
Abstract ▼
Free movement of workers as a fundamental principle enshrined in Article 45 of the Treaty on the Functioning of the European Union developed by secondary legislation and the case law of the Court of Justice is analysed in this paper. The European Union citizens are entitled to look for a job in another EU country, reside there, enjoy mutual recognition of professional qualifications, equal treatment with nationals in access to employment, working conditions, social and tax advantages, and stay there after employment has finished. This paper also points out the importance of free movement of workers in the process of harmonization of the law of the Republic of Serbia with European Union law.

Economy

KRIZA U EVROZONI I EVROPSKA INTEGRACIJA
Miroslav Antevski, Stevan Rapaić
European Legislation, 2014 14(47-48):92-121
Abstract ▼
The authors analyse the mechanisms and consequences of the Eurozone crisis. The financial crisis has spilled over from the U.S.A. to Europe. In addition, the Eurozone had their own generators of crisis and they are as follows: huge indebtedness of some member states, intra-European trade imbalances, inconsistency of the central monetary policy and decentralized fiscal policies, deregulated financial markets and poor risk management of the banking sector. The anti-crisis mechanism is based on strict savings, which adversely affects the launch of a new investment cycle and sustainable economic growth. The Eurozone crisis has led to a decline in the degree of political unity in the European Union and the division between the creditor and debtor countries.
EKONOMSKE TENDENCIJE EVROZONE: EFEKTI NA SRBIJU
Goran Nikolić
European Legislation, 2014 14(47-48):122-138
Abstract ▼
It is expected that in 2014 the global GDP growth will be the fastest in the last four years. In the Eurozone, indicators for the second half of 2013 and early 2014 generally support the view that the recession is over and that mild recovery is broadening. Many measures of business performance continue to improve, while labour markets remain weak especially in the Eurozone\'s periphery. Although mild, economic growth will have a positive effect on household and business confidence, boosting consumer spending and investment. Real GDP growth in the Eurozone will be 1%-1.1% in 2014 picking up to an average of 1.4% in the period from 2015-2018.The expected increase in import demand in the Eurozone will affect the exports of Serbia, which will, in spite of that, certainly slowdown in 2014, after strong growth that was achieved last year. Another channel of influence on Serbia, which includes foreign direct investments and cross-border transactions, is uncertain, especially after the loan was partially repaid in 2013. Remittances and pensions from the Eurozone is a stable and slightly growing source of foreign exchange for the Serbian economy.
KRIZA EVROZONE I DOSADAŠNjI ODGOVORI EVROPSKE UNIJE
Dragana Dabić
European Legislation, 2014 14(47-48):139-160
Abstract ▼
The Current European Union (EU) crisis came from multiple causes, of which some had been present before global financial crisis (2007/2008). Nevertheless, the economic aspect of the crisis is dominant; hence, it is often referred to as the crisis of economies of the Eurozone or the crisis of the single European currency. This article explores the most significant measures taken by the EU (and its member states) as a response to different manifestations of the economic crisis that still has its enduring effects. Furthermore, the analysis relates to the problems of functioning of the Economic and Monetary Union (EMU). It argues that the EMU’s current institutional architecture that combines a centralized monetary policy and insufficient integration in the fields of economic, budgetary and financial policy coordination is hardly sustainable. Even though, scholars are led by the ideas of facilitating integration going towards a fiscal union. At the EU level, there has not yet been formulated such far-reaching reform programme which would be acceptable to all parties involved. For the time being, the Member States are committed to increasing overseeing of their national fiscal policies. In light of this, the article concludes that while the crisis progressed, the measures of EU became more decisive and farreaching and that there is an undisputable commitment of the parties involved sustaining the common European currency. Nevertheless, it threatens to jeopardise democracy. Alongside with its implications for economic governance, the anti-crisis arrangements of the Union have made raise questions about how united the EU really is. The crisis emphasized the obvious distinction between the Eurozone members and non-members and opened other divisions between the EU member states.

Finances

DIREKTIVA 2013/36/EU O KAPITALNIM ZAHTEVIMA
Sandra Stojadinović-Jovanović, Violeta Todorović, Milena Jakšić
European Legislation, 2014 14(47-48):161-186
Abstract ▼
The European Parliament and the Council of the European Union adopted Directive 2013/36/EU of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investments firms. The objective of the Directive is to coordinate national provisions concerning access to the activity of credit institutions and investment firms, the modalities for their governance and their supervisory framework. The provisions of the Directive concerns the following: access to the activity of credit institutions and investment firms, supervisory powers and tools for the prudential supervision of these institutions by competent authorities, the prudential supervision of these institutions by competent authorities and publication requirements for competent authorities in the field of prudential regulation and supervision of these institutions. Given the commitment of Serbia to harmonize its legal framework with the EU legislation, to preserve financial stability and the stability of the banking sector of the country, including striving to continuously improve the legal framework for banking operations in accordance with international standards and EU regulations, the importance of this Directive for Serbia is highlighted.
HARMONIZACIJA NACIONALNOG ZAKONODAVSTVA REPUBLIKE SRBIJE SA KONVENCIJOM O ZAŠTITI FINANSIJSKIH INTERESA EVROPSKE UNIJE
Jelena Šuput
European Legislation, 2014 14(47-48):187-202
Abstract ▼
The paper analyses the harmonization of the Criminal Code of the Republic of Serbia with the Convention on the protection of the European Communities\' financial interests. The mentioned Convention entered into force on 17 October 2002, along with its First Protocol and the Protocol on its Interpretation by the Court of Justice. The Second Protocol entered into force on 19 May 2009. The Convention and its Protocols are open for signing by any country that joins the EU. According to the Convention, the member countries should prescribe in their national legislations offences against finance interests of the European Union. Prevention and combating of fraud affecting the European Communities\' financial interests is a matter of common interests of all its member states. Offences against financial interests of the European Union must be punishable by effective and proportionate criminal penalties in every member country. Each of those counties should take necessary measures to allow heads of businesses or any persons having power to take decisions or exercise control with a business to be declared criminally liable in cases of fraud affecting the European Communities´ financial interests and take the measures to establish its jurisdiction over the offences it has established in accordance with its obligations under the Convention. In the future period, the Republic of Serbia should become a member state of the European Union and harmonize its national legislation with that of the European Union. This should be done in the area of protection of the European Communities’ financial interests.
RETROSPEKTIVA USKLAĐIVANjA REGIONALNE LEGISLATIVE U KONTEKSTU REORGANIZACIJE STEČAJNOG DUŽNIKA SA PROPISIMA EU
Mirela Čokić
European Legislation, 2014 14(47-48):203-225
Abstract ▼
Primarily, in order to become members of the EU some countries in the region should harmonise their legislations with those which are currently in force in the EU member states. Actually, we can by no means neglect the fact and the relevant impact which have been exerted on our regional legislations so far by the sources in the field of bankruptcy and reorganisation of companies. They have mostly caused reform changes in the laws which previously regulated bankruptcy and the issues related to it. This has priority significance because the Europeanization brought the introduction of a totally new system which up to that moment – had not existed terminologically. True, reorganisation was partly regulated within somewhat different frameworks being based on forced settlement – according to the regulations that were previously implemented (The Law on Forced Settlement, Bankruptcy and Liquidation). As since 2003/2004 up to the present times this mechanism has not brought some good results in practice in rehabilitation of companies, it is necessary to introduce some mechanisms from European law. They would, first of all, have a positive reflection in the final analysis on some cases in legal practice de lege lata and de lege ferenda. In that sense, some solutions will be proposed to some countries in the region and they could serve as good examples taken from the EU. The paper will provide those additional mechanisms intended for successful application of the mechanism for reorganisation of companies. This especially concerns the region, which going through a transition period and privatisation, is making attempts to maintain the sound bases of business with the application of the mechanism of reorganisation, but unfortunately, with not so much success.
PRAVNE POSLEDICE NEPLAĆANjA PREMIJE NEŽIVOTNOG OSIGURANjA U ODABRANIM PRAVNIM SISTEMIMA EU I SRPSKOM PRAVU
Slobodan Jovanović
European Legislation, 2014 14(47-48):226-242
Abstract ▼
Insurance premium represents one of the key elements of insurance contract, which in all jurisdictions is subject of due attention. Because the price policyholder pays insurer for providing service of insurance coverage, an essential question is to how the legal consequences of non-payment and delay in premium payment affect the policyholder\'s rights, consumer protection as well as rights of the insurer regarding termination of the insurance contract, respecting time limits and advising the policyholder about his rights and legal consequences for delay in premium payment. For such a goal, the author has carried out a study and compared relevant legislations of the given EU Member States and Serbia. The paper provides useful insight into the advantages and drawbacks of the comparative solutions and shows a desirable direction for development of the Serbian insurance law reform in the Draft Civil Code and other pieces of legislation concerning insurance contract.
DIREKTIVA O REOSIGURANjU (2005/68/EC)
Jasmina Vukotić
European Legislation, 2014 14(47-48):243-259
Abstract ▼
The article deals with the Directive on reinsurance and in particular, its provisions on taking-up of the business of reinsurance and the authorisation of the reinsurance undertaking, bearing in mind that the Directive applies to the self-employed activity of reinsurance carried on by reinsurance undertakings which conduct only reinsurance activities. An important novelty of this Directive is that taking up of the business of reinsurance is the subject of prior official authorisation issued by the competent authorities of the home Member State in which the company establishes or shall establish its head office and the authorisation shall be valid for the entire Community. The issued authorisation shall permit a reinsurance undertaking to carry on a business there under ether the right of establishment or the freedom to provide services. Authorisation shall be granted for non-life reinsurance, for life reinsurance or for all kind of reinsurance activities. Every reinsurance undertaking should adopt one of the forms set out in the Annex 1 to this Directive. Head office of a reinsurance undertaking shall be situated in the same Member State as its registered office. Further, the Directive has processed principles and methods of supervision and it is stated that the financial supervision of reinsurance undertaking shall be the sole responsibility of the home Member State. If the competent authorities of the host Member State have a reason to consider that the activities of one reinsurance undertaking might affect its financial soundness they shall inform the competent authorities of its home Member State, which shall determine whether the reinsurance undertaking is complying with the rules laid down in this Directive. Also, there are rules for acquisition of qualifying holdings, of the information to the competent authorities by the reinsurance undertaking, of the professional secrecy and exchanges of information and duties of auditors to report to the competent authorities. Further, there are rules relating to technical provisions, the equalisation reserves and to solvency margins and to the guarantee fund.

Ecology

EKOLOŠKI POREZI U EVROPSKOJ UNIJI
Nebojša Jeremić, Mila Georgijevski
European Legislation, 2014 14(47-48):260-279
Abstract ▼
Environmental tax is a form of taxation in which the tax base is expressed in physical units of substances which have proved a negative effect on the life environment. As environmental problems transcend state borders (problems related to pollution of rivers, the atmosphere, the sea, ozone layer, climate changes etc.) there is a clear preference for solving the problem and finding a solution. However, the problem is how to choose instruments. One way is the use of Environmental taxes, which brought to the European Union over the 302.7 billion Euros in 2011 (equivalent to 2.4% of the gross domestic product of the EU). These taxes are paid on energy, transport, pollution and resource. Taxes on energy bring a dominant amount of tax revenue from environmental taxes. Ecological public revenues (taxes, fees, excise on products, penalties, etc.) can lead to a “double dividend”: 1. to improve the quality of the environment and, 2. to reduce the tax burden of other taxes. An ecological tax reform can be carried out in the Republic of Serbia with positive results in protecting the environment and boosting the competitiveness of the Serbian economy through lower taxing of work.

Agriculture

PROPISI EVROPSKE UNIJE O GENETSKI MODIFIKOVANIM ORGANIZMIMA
Dušan Dabović
European Legislation, 2014 14(47-48):280-296
Abstract ▼
To ensure that the development of modern biotechnology, particularly of technology of genetically modified organisms (GMOs), takes place in complete safety for all citizens of the Member States of the Community, the European Union has established a detailed legal framework which is mainly composed of regulations. Thus, the entire territory has been covered by the identical legislation in this area. The main act is the Regulation (EC) 1829/2003 on genetically modified food and feed, which provides a general legal framework of genetically modified food and feed. The Regulation aims to ensure a high level of protection of life and environment, while ensuring that the internal market functions efficiently. The Regulation was adopted together with the Regulation (EC) 1830/2003 which provides traceability and labelling of GMO products on the market. In addition, there was adopted Directive 2001/18/EC on the deliberate release of GMOs into the environment, which provides principles and detailed procedures for the experimental introduction into the environment and placing on the market of GMOs. Also, in this are the Regulation was adopted, which defines the universal code for labelling GMOs, the Regulation on the transboundary movement of GMOs, the Directive on the contained use of genetically modified micro-organisms as well as a guidance on the application of the legislation and guidelines for users in order to ensure the coexistence of genetically modified, conventional and organic crops. In addition, a number of legal acts were adopted which amended the legislations.

Science and technology

SLUČAJ BRISTL (BRÜSTLE) PROTIV GRINPISA–PRAVNA ZAŠTITA BIOTEHNOLOŠKIH IZUMA U EVROPSKOJ UNIJI
Anđela Đukanović
European Legislation, 2014 14(47-48):297-309
Abstract ▼
It is well known that the EU is primarily market-oriented; however, some EU regulations indirectly deal with ethical issues. Usually, ethical issues are left outside of EU law, but if not, they are included in a very general and vague manner, leaving freedom for detailed regulation within national laws. In the case of Brüstle against Greenpeace, the Court made an exception to this approach, in a manner which disregarded the aforementioned tradition of respecting differences among the Member States. The main subject in the case of Brüstle against Greenpeace was the interpretation of the Parliament and the Council’s Directive 98/44/CE on the legal protection of biotechnological inventions in the light of embryonic stem cells based inventions. Despite the lack of consensus concerning legal status of an embryo and definitions of the embryo which are accepted among the Member States, the Court was of the opinion that it was its role to decide on which embryo definition was acceptable in the EU in the context of the biotechnological inventions patentability. This article examines the Council’s Directive 98/44/CE primarily in the context of stem cell patenting, the Brüstle decision, the criticism of this decision, and in brief, relevant laws in Serbia.

Intellectual property

UPRAVLjANjE INTELEKTUALNOM SVOJINOM U USLOVIMA FORMIRANjA SISTEMA MENADžMENTA KVALITETOM
Dragan Čović, Ana Čović
European Legislation, 2014 14(47-48):310-329
Abstract ▼
After the registration of the product or process, they receive a certificate of compliance with the requirements and prescribed standards and thus, become subject to certain forms of legal protection of industrial property. The topic of this paper will be challenges in the field of improvement of the existing products and creating new ones, the results of creative research and development, and the economies of high technology. The value of investments in research development and the modern way of development greatly exceeds the current level of investment in production. When we finish evaluating the price of the product, it is expressed in paragraph value of intellectual property becoming part of the intellectual capital, knowledge-capital organizations. In this paper, we try to answer the question what the role of intellectual property is in the contents and function model of TQM (total quality management), which is a significant increase in the protection of industrial property rights at the international level and what reasons are in support of unification and harmonization of the law in this field. This paper will discuss the reasons for the protection of industrial property rights, the authorities responsible for the enforcement of the protection, the mode of transmission of these rights, and there will also be represented statistical data on the trends in this area internationally.
PLAN CARINE EVROPSKE UNIJE ZA BORBU PROTIV KRŠENjA PRAVA INTELEKTUALNE SVOJINE
Sanja Jelisavac Trošić
European Legislation, 2014 14(47-48):330-344
Abstract ▼
With the international trade growth and constant technological advances, infringements of intellectual property rights have become a problem all over the world. The European Union aims to protect these rights and to effectively implement protection at its external borders. The fight against piracy and counterfeiting is an integral part of the work of the customs authorities of the European Union. To implement an effective fight against infringements of intellectual property rights it is necessary to first establish a good and comprehensive legal framework. In addition, an essential component of the EU strategy for the effective enforcement of intellectual property rights is international cooperation. Serbia, as a candidate country for membership in the European Union, has established cooperation with it and has already implemented a number of European Union support programmes in the fight against IPR infringement on the Serbian customs borders.

Foreign policy

ODLUKA MINISTARSKOG SAVETA 2013/366/ZSBP O IZMENI I PRODUŽENjU MANDATA SPECIJALNOG PREDSTAVNIKA EVROPSKE UNIJE NA KOSOVU
Jelica Gordanić
European Legislation, 2014 14(47-48):345-357
Abstract ▼
The mandate of the EU Special Representative in Kosovo is based on the policy objectives of the Union in Kosovo. This include playing a leading role in promoting a stable, viable, peaceful, democratic and multi-ethnic Kosovo, contribution to regional cooperation and good neighbourly relations in the Western Balkans creating a Kosovo that respects the rule of law, protection of minorities, religious and cultural heritage as well as providing support for bringing Kosovo closer to the European Union. On 25 January 2012, the Council adopted Decision 2012/39/CFSP appointing Mr Samuel Žbogar the European Union Special Representative (EUSR) in Kosovo. Council Decision 2013/366/CFSP of 9 July 2013 amends and extends the mandate of the European Union Special Representative in Kosovo up to 30 June of 2014. The mandate of Special Representative in Kosovo may be completed earlier, if the Council decides so, on the recommendation of High Representative of the Union for Foreign Affairs and Security Policy. All the EU efforts which are of mutual interest for Serbia and Kosovo significantly contribute to reduction of tensions in the region and gradual normalization of relations between Belgrade and Pristina. A person who efficiently, responsibly and impartially does the function of Special Representative in Kosovo may only contribute to the achievement of all these objectives. Accordingly, Council Decision 2013/366/CFSP of 9 July 2013 amending and extending the mandate of the European Union Special Representative in Kosovo could be positive for the Republic of Serbia. Belgrade officials should in the best way use the role of Special Representative in Kosovo for resolving the issues which are in the interest of the Serbian community in Kosovo, settlement of the situation in Kosovo and the Brussels Agreement implementation.

Security policy

INSTITUT ZA BEZBEDNOSNE STUDIJE EVROPSKE UNIJE
Duško Dimitrijević
European Legislation, 2014 14(47-48):358-363
Abstract ▼
In this paper, the author analyzes the origin, structure and role of the Institute for Security Studies of the European Union. The author first analyzes legal regulation, i.e. Council Joint Action 2001/554/CFSP of 20 July 2001 on the establishment of a European Union Institute for Security Studies, as amended, and then examines in particular its activities relevant to the implementation of the Common Foreign and Security Policy of the European Union. Finally, the author concludes that the Institute through its research activities gives the contribution in the European decision-making in the field of the Common Foreign and Security Policy (CFSP). Specifically, the Institute performs analysis and provides a forum for debate over the strategy of the European Union in the fields of foreign and defense policy. Since the Institute’s taken over the former logistics of Western European Union (WEU), it is clear that the Institute is somewhat continues its mission.