European Legislation Journal Archive

European Legislation Vol. 16 No. 55/2016


Redakcija časopisa
European Legislation, 2016 16(55):7-8


Slobodan Zečević
European Legislation, 2016 16(55):9-20
Abstract ▼
European integration launched in the economic sphere had an overt political message and the desired outcome. Namely, the creation common that grew into internal market of the European Union was aimed to enable the construction of political and defense federalism. However, although the creators of the Maastricht Treaty expected a further development of the European integration built on economic foundations, in the meantime the federalization of the EU was stopped. For example, the single market and European currency were not complemented by a federal tax system that filled the budget of the Union. This prevented structural transfers, otherwise common in federal states from rich to the poor, especially in crisis situations. Without the federal government, the European Union was deprived of the ministry of defense and the embryo of federal military forces to protect its territory, but also gave credibility to its foreign policy in the world.


Žarko Radić
European Legislation, 2016 16(55):21-50
Abstract ▼
The exercise of the rights to freedom of movement and residence in the European Union has led to an increase in the number of people becoming involved in criminal proceedings in a Member State other than that of their residence. In those situations, the procedural rights of suspected and accused persons become particularly important in order to safeguard the right to a fair trial. In the article, the author applies the dogmatic and the normative method to analyze the measures of the European Union for strengthening procedural rights of suspected or accused persons in criminal proceedings, i.e. provisions of three directives of the European Parliament and the Council of European Union (2010/64/EU; 2012/13/EU; 2013/48/EU), as well as two recommendations of the European Commission (2013/C 378/02; 2013/C 378/03). These directives and recommendations are derived from the „Roadmap for Strengthening Procedural Rights of Suspected or Accused Persons in Criminal Proceedings”, which is an integral part of the Council Resolution of November 30, 2009 (2009/C 295/01), but their scope of application explicitly expands to the procedure provided by the Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures between Member States (2002/584/JHA, 2009/299/JHA). At the end of the article, the author discusses the importance of the studied measures for the Republic of Serbia and its road to membership in the European Union. He concludes that incorporation of the procedural rights, which are subject to these measures, in the legislation of the Republic of Serbia would imply that these rights are guaranteed not only by the provisions of the Special Law on Judicial Cooperation in Criminal Matters with the Member States of the European Union, but also by the provisions of the Criminal Procedure Code, as well as by the provisions of the Misdemeanour Law.
Željko Bjelajac, Nenad Bingulac
European Legislation, 2016 16(55):51-71
Abstract ▼
The modern development of criminal sanctions in recent decades more and more emphasizes the establishment of new alternative penalties with which it will be able to achieve all the elements of the purpose of punishment and in addition will significantly reduce or completely remove all the possible negative effects of the existing criminal sanctions, primarily imprisonment. This study will give a review of contemporary trends in the application of criminal sanctions and the system of their enforcement, starting with the consideration of the basic characteristics of the European criminal law, and special attention will be attended to the historical development of the system of criminal sanctions and their enforcement. All questions previously stated will be further discussed in a concise comparative presentation of alternative sanctions in some of the Member States of the European Union.
Dragan Jovašević
European Legislation, 2016 16(55):72-94
Abstract ▼
The new legislation of the Republic of Serbia (after novellas from 2009), prescribed the criminal responsibility and punishment for crimes against sexual freedom of juveniles. The legislation provides different forms of abuse of children and sexual freedom of minors, in particular by taking advantage of their lack of physical and mental maturity. In this way, individuals - as the perpetrators of these crimes do or cause or inflame their sexual instincts to the detriment of the interests of children and minors, but also are hurting sexual morality of society. European standards established by the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse were adopted on 25 October 2007 in Lanzarote, as well as a number of other European documents sanctioning such crimes. In the paper, the author analyzes the core characteristics of crimes against sexual freedom of minors in Serbian law, as well as the system of special criminal measures against the perpetrators of these acts and the degree of compliance with European standards.
Sanja Maksimović
European Legislation, 2016 16(55):95-115
Abstract ▼
In contemporary conditions of business, international freight forwarding represents significant economic activity, in other words, it is a set of complex relations of great number of participants. Therefore, its juridical regulation is of great importance and presents an important role because its aim is to balance the interests of all participants. In order to adequately present the complexity of international freight forwarding activities, this paper will briefly present its development, which follows the progress of trade since the ages when rich Venetian merchants authorized the delivery of goods to agents, who were paid for the service. During the 19th century, international freight forwarding became an independent activity and still continues with significant contribution to the development of international trade. The purpose of this paper is to show the progress of juridical regulation which follows the dynamics of freight forwarding development, and particular emphasis will be on expressions like “freight forwarder“ and „freight forwarding contract“. Regarding the facts that the Republic of Serbia tends to become the member of the European Union and that it is currently focused on harmonization of documents in order to reach the above-mentioned aims, it will therefore effect the purpose of this paper as an analysis of the efforts Republic of Serbia is making in order to reconcile the documents concerning the field of international freight forwarding as well. This paper will pay attention to the international freight forwarding association (FIATA) too, and its most important documents because of the fact that they are relevant when the matter of international freight forwarding is analyzed.
Slobodan Jovanović
European Legislation, 2016 16(55):116-123
Abstract ▼
Risk aggravation after insurance policy conclusion represents special circumstances that may be essential for a risk assessment and insurer obligation. Therefore, insurers are recognized the right to propose a change of the policy terms or terminate in case the insured non-acceptance. In this paper, the author analyses special cases where aggravation of the risk being object of insurance does not serve as the ground which the insurer could use for termination, nor they release him from the duty to pay the claim. For the purpose of this aim, the author decided to compare the solutions of some EU Member States and the Serbian law. The outcome of this comparative study should show the desirable direction for the evolution of the Serbian insurance law de lege ferenda. To this end, the author examines situations where risk aggravation does not create the insured a duty to inform the insurer, does not release insurers from obligation towards the insured and where risk aggravation non-disclosure does not release the insurer to pay the claim
Milena Trgovčević Prokić
European Legislation, 2016 16(55):124-142
Abstract ▼
The notary public performs an independent and autonomous public service, he is an independent trustee of the parties and his contribution in the preparation of documents confirms their authenticity and content. The executive notary public document is equated with the court decision and here is where the functions of court and notary public are combined. The best evidence that the notary performs indeed a public service is the implementation of the public notary records and issuing of the title by a notary. The domestic law accepted the concept of the Latin organizational type of the notary and predicted that under certain conditions notary public documents have executive force. In the Latin notary system, legal transactions that have a basis for security contracts may be concluded in the form of notary documents. These are contracts for the pledge of security claims on the immovable and movable assets. With these contracts, customers can have the power of execution. In this case, the notary documents shall have the status of an executive document, and in the case of failure to fulfill contractual obligations within the time allocated by the contract, then the feature of execution shall be reached, so forced execution for settling secured claims can be demanded. It is characteristic of the newly created states of former Yugoslavia that the form of the executive notary public document replaces the court agreement and facilitates the realization of creditor\'s rights.

Economy, competition, entrepreneurship

Dragoljub Todić, Vladimir Grbić
European Legislation, 2016 16(55):143-157
Abstract ▼
The paper points to the importance of energy efficiency in the policy of the European Union (EU) and the Republic of Serbia (RS). It emphasizes the links between energy policy and environmental policy and climate change. The first part of the paper explores some of the key issues defined in the Directive 2012/27/EU of the European Parliament and of the Council of 25 October 2012 on energy efficiency, amending Directives 2009/125/EC and 2010/30/EU and repealing Directives 2004/8/EC and 2006/32/EC (goals, measures, basic obligations and rights, etc.). The Directive establishes a common framework of action for the Member States with the aim to undertake improvement measures in the field of energy efficiency within the Union, in order to ensure the achievement of the main objective of the Union in terms of energy efficiency - its increase by 20% by 2020. It underlines the importance of measures in the field of the efficient use of energy and efficient energy supply, and a group of measures of the horizontal character. A separate part of the study overlooks the importance of energy efficiency issues for the RS. Strategic and regulatory framework in the RS is placed in the context of the harmonization of national legislation with EU regulations. In that regard, there have been emphasized the basic elements defined by the Law on the efficient use of energy, the Energy Law, the relevant by-laws, and relevant strategic documents. There have been given indications of the direction of the further development of legislation in this area and the need to adopt appropriate sub legal regulations
Ana Jović-Lazić, Sanja Jelisavac Trošić
European Legislation, 2016 16(55):158-170
Abstract ▼
The European Union can no longer meet its need for energy using only internal sources. That is why external energy policy is gaining increasing importance for the energy security of the European Union. Since the EU depends on energy imports, primarily oil and gas, it seeks to protect its energy security by developing appropriate mechanisms through cooperation with international partners. Diversification of supply sources and routes of delivery is essential for the European Union, as well as the stable development of the EU internal energy market and the markets of the EU’s wider region. Thereby, free and transparent markets are the base of energy supply security.
Marijana Dukić Mijatović
European Legislation, 2016 16(55):171-182
Abstract ▼
A limited liability company, as a capital company, is known in all member states of the European Union, as well as on the global level. In this manuscript, the author presents a comparative overview of the legal regulation of limited liability companies in Germany, the UK and in domestic legislation. The tendency of various legislators was to provide limited liability companies better market conditions for business. The aim is to analyze the current legislation to the appropriate legal framework at different levels of the national limited liability companies that can contribute to economic development.
Jelena Jovanović
European Legislation, 2016 16(55):183-191
Abstract ▼
The reason for writing this paper was the First Extraordinary Session of the National Assembly of the Republic of Serbia in 2016 at which the Draft Law on Advertising was adopted. The subjects of this paper are Directives of the European Union and the legislation of the Republic of Serbia, which is partly based on them. The aim of this paper is to provide information that would help readers to be more familiar with the term misleading advertising and what it entails. Companies who offer products or services in that manner that their advertising messages provide accurate and timely information enable themselves to enhance their good reputation, gain customers and have prospects for a successful business. On the other hand, customers who are well informed about their rights and about products or services for which they are interested in purchasing, are less likely to be intentionally or unintentionally mislead. Also, consumers who are well aware of their rights rarely find themselves in a situation to be somehow deceived when advertised products or services are in some way different in reality than they are in ads.


Ana Divac-Šarić
European Legislation, 2016 16(55):192-213
Abstract ▼
All programmes of the European Union consist of various activities with the main goal to stimulate cooperation both within the EU, and between the member states and candidate countries, by serving as a political tool aimed at resolving issues of common interest within a certain period of time. There are three types of those programmes: structure funds and Cohesion fund, direct programmes of the EU, as well as external assistance programmes. The most important of all external assistance programmes are the Instruments for Pre-accession Assistance offered by the EU to candidates and potential candidates for EU membership. For the countries of the Western Balkans and, therefore, for the Republic of Serbia as well, these instruments were made available during the Thessaloniki Summit in 2003. Their undeniable importance is specifically evident in the process of harmonization with the EU laws and standards, as well as in comprehensive development of the Republic of Serbia, both before and during the opening of chapters in accession negotiations.
Sandra Stojadinović-Jovanović
European Legislation, 2016 16(55):214-222
Abstract ▼
The Instrument for Pre-accession Assistance (IPA II) in the EU has been established through the Regulation (EU) of the European Parliament and the Council of the European Union No 231/2014 of 11 March 2014. The objective of the Regulation is to establish the Instrument for Pre-accession Assistance that shall support the beneficiaries in adopting and implementing the political, institutional, legal, administrative, social and economic reforms in order to comply with the Union’s values and Union’s rules, standards, policies and practices, with a view to Union membership. As one of the beneficiaries is Serbia, the Regulation and such support for Serbia is very significant.
Duško Dimitrijević
European Legislation, 2016 16(55):223-231
Abstract ▼
A market operation in the European Union assumes smooth cross-border business of all business entities. In this regard, the European single market regulates the conditions relating to the regulation of the legal consequences of termination of business entities in the financial situations that hinder their business. In order to harmonize bankruptcy law and achieving cooperation and unification of bankruptcy proceedings against legal entities whose business is related to foreign countries, the European Union first had adopted the Council Regulation 1346/2000 of 29 May 2000 on insolvency proceedings, and then after fourteen years of its implementation has brought the Commission Recommendation 2014/135/EU of 12 March 2014 on a new approach to business failure and insolvency. This Recommendation contains a series of principles of bankruptcy proceedings for the operations of business entities in financial difficulties. The Commission suggests to states to promote sustainable measures for restructuring companies at an early stage in order to prevent bankruptcy. The Commission believes that harmonization of insolvency law can contribute to the sustainability of companies and also the protection of creditors\' claims.
Jasmina Vukotić
European Legislation, 2016 16(55):232-245
Abstract ▼
The paper presents the provisions of the Directive (EU) 2016/97 on insurance distribution and first it processed the scope, as well as significant definitions, followed by registration requirements in the home Member State and carry out activities of the insurance distribution in another EU State, based on the freedom to provide services and the freedom of establishment. It is also stated the organizational requirements about appropriate knowledge and ability, in order to complete their tasks and perform their duties adequately, which shall possess insurance and reinsurance distributors and employees of insurance and reinsurance undertakings carrying out insurance or reinsurance distribution activities. Further, the paper presents the information requirements to consumers, as well as conduct of business rules, which must adhere to the distributors of insurance and reinsurance, and administrative sanctions and other measures applicable to all infringements of the national provisions implementing this Directive.
Pero Petrović
European Legislation, 2016 16(55):246-257
Abstract ▼
The basic infrastructure of the financial system consists of the payment and clearing system, and since the financial system is the lifeblood, their effective functioning is the basis of successful business of any market economy. Integral components of any effective payment systems are allowed payment instruments, institutional and organizational networks of interbank money transfer systems, the maintenance of technical standards and methods of transferring, clearing agents and the unique operational rules. This article aims to explain only the relations that arise on the transfer of funds, using one of the modalities of calculation and in the interconnected system within the EU. The paper European payments and settlement systems are considered as synonyms, bearing in mind the specific, decentralized structure of pan-European project. The aim is to target trans-European accounting system in real time and on gross basis (the reasons for the introduction, technical infrastructure and accounting process, the participants and the calculation of transactions, management of the system) and the further development of the TARGET system TARGET two. Clearing accounting system in real time gross settlement implies that the payment to the recipient\'s account (credit) cannot be performed before the payment order is implemented by payment from the account of the sender (debit). In accordance with the principles established by the central bank, the payment system can be used by other financial institutions.
Dobrica Vesić
European Legislation, 2016 16(55):258-268
Abstract ▼
In Serbia, the development of the securities market over the last century and a half (with a half a century standstill during the social ownership) has gained in intensity at the end of the eighties. This has led to the institutional shaping of this important sphere of the market economy. This applies to the securities market with its participants, issuers, investors, professional intermediaries. Good corporate governance is an essential prerequisite for attracting and retaining the funds necessary for restructuring, privatization, long-term investments and creates the necessary conditions for the development of business environment. Efficient and consistent regulation of financial markets should ensure the achievement of three main objectives for the successful functioning of the financial markets: the protection of investors, ensuring fair, efficient and transparent markets and reduce systemic risk. The new Law on Securities Market should point the way division of competence between the institutions - the avoidance of conflicts of jurisdiction. Additionally included in the following chapters: Proxy Statement, abuse of privileged information, offers presentation of joint stock companies, affiliated entities, new entrants in the financial market, capital adequacy and calculating capital adequacy, financial statements and audit reports, authorized banks, custody bank, Central securities depository, investment advisers and portfolio managers, the status of the Securities Commission - legal guarantees of autonomy and independence, composition and working principle of the Securities Commission, the procedure to protect the interests of investors, establishing criteria for imposing fines and their amount. A section refers to the role of commercial banks in the securities market. Commercial banks may, as well as other economic entities, to invest funds in securities and other financial instruments.
Goran Nikolić
European Legislation, 2016 16(55):269-283
Abstract ▼
The general government deficit in 2015 was around 4% of GDP, which is considerably less than the planned 5.9% of GDP. Sustainable part of the deficit reduction is mainly a consequence of the improved tax collection and the introduction of excise duty on electricity, while one-third reduction - of temporary and due to unexpectedly large payments of state enterprises and agencies in the budget, and low capital investment. Total revenues of the general government in 2015 will exceed the planned budget amount to 60-65 billion dinars, largely due to the growth of revenues from excise taxes, VAT and wage contributions (as consequence of gray economy reduction).The problem is that at the end of 2015, the effect of most of the urgent measures to stabilize public finances will be exhausted. Therefore, in the coming years, the deficit will have to be reduced primarily through the implementation of systemic reforms, which, for now, do not run according to the plan. So, the key to continued fiscal consolidation in 2016 and 2017 is to achieve improvement of the fiscal balance that will result from the successful reform of public enterprises, resolving the fate of the companies in privatization, partial rationalization of the number of employees in the public sector, and reform of the Tax Administration. Although the improved state of public finances, Serbia is, with an estimated deficit of 4% of GDP in 2016 and public debt of close to 80% of GDP, still far from meeting the requirements of the Fiscal Compact. The Fiscal Compact is a new, stricter version of the Stability and Growth Pact, which defines a balanced budget as a general budget deficit not exceeding 3% GDP, and a debt to GDP ratio which does not exceed 60% of GDP. The fact is that a good part of the EU countries do not meet these strict requirements.

Security policy

Hatidža Beriša, Mile Rakić
European Legislation, 2016 16(55):284-298
Abstract ▼
This paper focuses on the importance and influence of the Union on the security of Europe, the current situation of the same and the ratio of its members to the values that the Union proclaims. In this very complex strategic environment, as in the case of the European Union, the participants (countries aspiring to membership) can never be sure of the long-term effect of certain institutional choice \"for\" or \"against\" members. Since its formation, the Union tends to proclaim European integration as a peace project that would include political and economic cooperation, which is more complex within the Common Security and Defense Policy (CSDP) of the European Union. The paper reviews on the hard, soft and normative power of the EU, which makes it respectable factor in relation to other collectivities-alliances. In its internal transformation, the EU intends to use the pragmatic approach comparative advantage in capitalizing soft power in relation to NATO and ultimately achieve the same, exhibiting significant military and civilian potential for preserving peace and security in the region and the world.
Marijana Mladenov, Nenad Avramović
European Legislation, 2016 16(55):299-313
Abstract ▼
One of the most important issues in international humanitarian law is the principle of military necessity. Protection of this principle within the legal system of the European Union represents the subject matter of the paper. First of all, before an analysis of the concept of military necessity in the regulations concerning the rules of war, it is presented in what way these rules are incorporated into the legal system of the European Union. Treaty on European Union, in the part referring to foreign policy, stipulates that the Union shall contribute to peace, security and mutual respect among peoples. Furthermore, the Council of the EU adopted a series of documents that contain instructions on how to ensure the application of the rules of international humanitarian law, among which the Guidelines on promoting compliance with international humanitarian law are especially significant. Analysis of the principle of military necessity is presented through the provisions of the Geneva Conventions of 1949 and their Additional Protocols. Since all European Union Member States have ratified the Geneva Convention and their Additional Protocol, the EU can be viewed as a vehicle through which Member States can collectively make efforts towards fulfilling their duties under the Geneva Conventions. According to the Geneva Conventions, the principle of military necessity represents as an exceptional clause attached to the provisions of international humanitarian law. Therefore, achieving a balance between military necessity and requirements of the principle of humanity is of great importance and it should be viewed as the responsibility of the international community and regional organizations, including the European Union.
Ljubo Pejanović, Mile Rakić
European Legislation, 2016 16(55):314-325
Abstract ▼
Implementation of globalization and the new world order included numerous actors with their specific interests and goals, which is in turn drastically endangering the interest of the Republic of Serbia, its society and its security as a whole – that is, the system of national security. In this specific problem of globalization, the authors pointed out potential threats, risks and consequences, which can jeopardize the security of the Republic of Serbia. The process of market oriented policies alone, directed toward the developing countries, can present a problem in a sense of national security. In that sense, financial debt created by the IMF is the risk to national security. Moreover, there are multiple threats posed to the international community by different actors. We can conclude that, in current circumstances, the intelligence activity must have support from the political decision makers, as well as the other institutions and subjects of the defense system and other subjects involved directly or indirectly in the security sector.

Social policy

Milan Klisarić, Zdravko Skakavac
European Legislation, 2016 16(55):326-347
Abstract ▼
The subject of this work is the satisfaction of police leaders, as well as internal stakeholders in the process of countering crime, various aspects of the work or the functions they perform. The aim of the paper is to investigate the level of satisfaction of police leaders in the Republic of Serbia, various aspects of the work, to identify the differences in the level of satisfaction at different management levels and different groups in relation to the years of work experience, and that on the basis of statistical data and the results of certain other carry out research relevant conclusions and recommendations. In a sample of 120 respondents was analyzed the level of satisfaction with various aspects of the work, namely: the use of the ability, authority, strategy and practice unit, independence, respect for the personality, confidence in staff and evaluation work. Survey results show that satisfaction generally does not grow linearly from the lower to the higher levels of management and of the younger of working age to older managers. The paper is an attempt to give an explanation for such a deviation, the benefit of the results and other research. The main reason for such differences is the traditional type of police organization of the Republic of Serbia and political determinism. Also, at the end of the paper are recommendations for the improving working environment for police executives and managers that shall be analyzed as particularly important stakeholders in the process of countering crime.

Science, technology, culture

Aleksandra Mirić, Filip Mirić
European Legislation, 2016 16(55):348-355
Abstract ▼
Cultural heritage safeguarding and enhancing has long been recognized as one of the most important tasks of the European Union. This task requires coordinated action of all EU bodies, as well as Member States. In this regard, the Council of the European Union in May 2014 adopted the Conclusions recognizing cultural heritage as a strategic resource for a sustainable Europe. By analyzing the Conclusions, the authors point to the importance of protecting cultural heritage, as one of the most important aspects of national identities and the identity of Europe itself. Although the conclusions and proposals are not binding on the Republic of Serbia, their incorporation into the positive law of Serbia in the field of cultural heritage, would facilitate the process of harmonization of the Republic of Serbia with the European Union, which is specifically pointed in the paper.

Media policy

Maja Zarić
European Legislation, 2016 16(55):356-368
Abstract ▼
Audiovisual Policy of the European Union has significant impact on its economic development, as well as the cultural and social life of the Member States. This paper presents the principles of creating audiovisual policy and gives a brief history of the development of today\'s regulatory framework through short analysis of the Television without Frontiers Directive, with a special focus on the analysis of the main instrument in this field – the Audiovisual Media Services Directive (AVMSD). Within the analysis of AVMSD specific following principles were tackled: principle of jurisdiction, freedom of broadcasting and rebroadcasting, protection from discrimination, access to major events, the European part, self-regulation, the protection of minors, the right of reply in television broadcasting and the Contact Committee.

Јudicial practice

Sandra Ćorac
European Legislation, 2016 16(55):369-387
Abstract ▼
The European Convention on Human Rights (Convention) is the main act in the framework of the Council of Europe, which provides the protection of human rights and fundamental freedoms, which certainly includes the right to respect for family life. Classification of the right to family life in the list of rights protected by the Convention recognized the special value that family life itself has. The right to respect for family life is a human right in the framework of which the protection enjoyed by married and unmarried partners. Thus, the European Court of Human Rights (Court) dealt with the issue of respect for family life of these persons. First of all, the case law of the Court, considered in the paper, dealt with the issue of the rights of married couples to the protection of family life in the context of the lack of spouse community life, divorce or the marriage concluded by religious customs. But besides spouses, protection within the notion of family life also includes other de facto relationships, as the Court confirmed through his rich practice. Unmarried partners who live together the Court considers a family, under condition that quality of relationship is not any different from the relationship that married partners have. Case-law which refers to the protection of the right to family life of married and unmarried partners indicates to the two required steps. The first step refers to determining the existence of family life between married or unmarried partners. Only if the Court estimates that there is a family life between these persons, it determines if there has been an intervention in it. So, we can conclude that the Court adopted the view in practice that the existence or absence of family life is actually a question of facts, depending on the actual practical existence of these relationships. In other words, there are no predetermined and rigid criteria, but the circumstance of each case is what guides the Court in deciding