European Legislation Journal Archive
European Legislation Vol. 17 No. 59/2017
European Legislation, 2017 17(59):7-8
European Legislation, 2017 17(59):9-22
The crisis of the European Union actually is a crisis of its constitutional order crucified between the application of federal and non-federal mechanisms of government. The process of adoption of legislation in the European Union is close to the one that occurs in the federal states as a kind of European governments (Commission) proposes to the House of Commons (European Parliament) and the House of States (Council) legislative acts. Despite all the progress towards a supranational decision-making European system is not federalized by the end. The Commission does not have the full range of powers that dispose of a government in the Member States. For example, the European Union does not have its own army in charge to defend its territory and therefore has no minister or commissioner of defence. There is no European Ministry of Interior with the authority to prevent and detect federal offenses. In the context of the European legislative procedure, European Parliament appears as a kind of the House of Commons within the imaginary bicameral Congress which is also composed by the House of States. In the federal model, the House of Commons has the power in the last instance to adopt the legislative text regardless of the objections and disagreements of the House of States. However, the European Parliament can only block the adoption of a legislative act whose contents not correspond to him, or about which there is no agreement with the Council..
European Legislation, 2017 17(59):23-40
The Republic of Serbia has prescribed domestic violence as a separate criminal offence according to the adopted international standards, which are a part of numerous documents of universal and regional international organisations (Council of Europe, European Union), by adopting the new criminal regulation in 2005 and it’s updating in 2009 and 2016. This respectively means that the Republic of Serbia by providing criminal responsibility and punishing ability for the most severe forms of violence and a system of prevention measures among relatives, has approached in this way numerous other legal and social systems. The paper analyses the international standards of system prevention measures against domestic violence of the European regional organisations and their implementation in the criminal legislation of Serbia.
POSTUPANjE SA PRITVORENICIMA PREMA ODREDBAMA ZAKONIKA O KRIVIČNOM POSTUPKU, SA OSVRTOM NA EVROPSKA PRAVILA O POSTUPANjU SA LICIMA LIŠENIM SLOBODE
European Legislation, 2017 17(59):41-55
Аccording to its performance detention is the strictest of all the measures envisaged to ensure the presence of the defendant in the proceedings. The Serbian Constitution prescribes the conditions and procedure for detention, while the legal arguments for detention are laid down in the Code of Criminal Procedure. For the interpretation and application of the Code of Criminal Procedure of great importance is the European Convention for the Protection of Human Rights and Fundamental Freedoms, because the provisions of the Convention expressly prescribe conditions relating to the functioning of the criminal justice. After a detailed analysis of specific rules of conduct with detainees, which are prescribed in the Code of Criminal Procedure, the paper reviews the guidelines of the European Prison Rules about the treatment of detainees. The starting point for the adoption of European prison rules represent the human rights standards that are established at the level of the UN and the Council of Europe. Bearing in mind that the institution of detention restricts certain human rights and freedoms, the rule dealing with detainees must be strictly regulated, and complies with the relevant European rules and laws, primarily with the European Prison Rules.
DIREKTIVA 2008/115/EZ O ZAJEDNIČKIM STANDARDIMA I PROCEDURAMA ZA UDALjENjE DRŽAVLjANA TREĆIH DRŽAVA KOJI NELEGALNO BORAVE NA TERITORIJI EU
European Legislation, 2017 17(59):56-82
The aim of this article is to describe the basic characteristics, the legal basis and the practical application of Directive 2008/115 / EC, which lays down common standards and procedures in EU Member States for the returning illegally staying third-country nationals in a Member State of the European Union. The Directive is an essential instrument in the management of the problem of illegal migrants in the EU. This article deals with some of the most important elements of the Directive and with the analysis of the application of Directive provisions the in the Union Member States. The analysis showed that the Directive has greatly contributed to the harmonization of legislation and the harmonization of law application, but also that a number of solutions from the Directive are not implemented in all Member States or are implemented unevenly due to the different possibilities and interests of individual member states. A major contribution to improved implementation of the directive is given by the Court of Justice of the European Union with its interpretations of issues and aspects that arise in a complex, complicated and sensitive real-world of illegal migration. The impact of the Court of Justice decisions on the positive evolution of the Directive can be clearly seen, however, its consistent implementation in accordance with the basic ideas of human rights of migrants remain as a problem.
European Legislation, 2017 17(59):83-90
Dynamic technological development and innovations in telecommunications represent the universal achievement of the today\'s civilization, which benefits and risks are ubiquitous in all the countries. New ways of communicating, work execution, particularly, the use of social networks are amazing on their own, regardless of territories and borders, for which general tendency on the European level and comparative laws is towards their uniform regulation. The author analyzes the Proposal for a Regulation concerning the respect of private life and protection of personal data in electronic communications of the European Commission that should bring improvement of the legal framework in that field. Different rules, documents and other sources of the EU bodies containing information essential for the study of the paper topic were used. The author outlines that the improvement of the EU legal framework, through amendments of the existing or adoption of the new ones, should bring the evolution of the Member States’ rules, including states striving to the EU membership.
Economy, competition, entrepreneurship
European Legislation, 2017 17(59):91-102
Buying and selling goods and services online, enables participants to achieve their needs in a more efficient and cost-effective manner, but at the same time exposes them to the risks for which they can find themselves at a disadvantage. That is why legal rules are established, in order to provide necessary safety and protection for the participants of the electronic commerce. These rules are the subject of the legal analysis in this paper, and they refer to: form of a contract, the obligation to inform, confirmation of the receipt of electronic messages, correction of the incorrect data entry, protection from unwanted commercial messages, legal scope and the jurisdiction of the court in resolving cross-border disputes.
European Legislation, 2017 17(59):103-111
The citizen Code of the Republic of Serbia is incorporated Institute of concluding the insurance of things (assets), responsibilities and persons, and thus opens up specific rules that are established in the EU directives. These rules have impacted the national, or the mandatory regulations of the Member States on the essential ingredients of an insurance contract, or the content of this agreement. EU directives, i.e. their rules relating to the area of insurance contracts, did not directly intervened in the domain of the contents of the insurance contract by stipulating the essential elements of the contract of insurance. The Directive stipulating the obligation of the insurer to provide information to the policyholder/customer of the insurance contract to be concluded and the requirement that the insurer takes over the insurance contract, as well as stipulating the right of the policyholder of the individual life insurance that can decide within a given period, are only an indirect impact on the national regulations of the Member States on the content of the insurance contract. In this way the Member States have adopted the directives to lay down the required information and that they have to be the mandatory content of the insurance contract.
European Legislation, 2017 17(59):112-122
Financial market development largely depends on the efficient functioning of investment funds. Developed and well-organized investment funds in the world (in the USA, Great Britain and elsewhere) have set up rather high standards of organization and infrastructure of the securities market. The enactment of the relevant Serbian Law means that the conditions in the domestic market have also been advanced and particularly regarding the business operation of recently founded investment funds and other forms of funds functioning in our investment system. The topic elaborated by the author is divided into the following themes: development of investment funds in Serbia (until now four have been established) and neighbouring countries; possibilities of establishing and business operation of domestic investment funds, where the Law on Privatization is the principal legislative instrument; financial reporting as an important element for proper functioning of investment funds, which activity is carried out under international accounting standards; fund management company and its fiscal aspect – which makes the central part of the present report; application of the Law on Taxing Citizens Income; limited liability company as a relevant element in the investment fund operation; supervision over the work of investment funds – where the National Bank of Serbia is an important factor. In conclusion, the author emphasizes the need for promoting and advancing the relevant environment and space by establishing and implementing the regulation of the financial system through adequate legislation as well practice.
KOORDINACIJA U STEČAJNIM POSTUPCIMA PROTIV ČLANOVA GRUPE TRGOVAČKIH DRUŠTAVA PREMA UREDBI 848/2015 EVROPSKE UNIJE
European Legislation, 2017 17(59):123-135
Regulation (EU) No. 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings is the first international documents regulating the insolvency of members of a group of companies. The members of a group of companies are independent commercial companies, which are interconnected by the capital or by the contract. One of the important issues in regulating bankruptcy against the members of the group of companies concerns the independence of the members of the group as legal entities, bearing in mind that there is a mutual dependence between these companies. Regulation (EU) No. 2015/848 regulates the cooperation of the bankruptcy trustees and courts, if the bankruptcy proceeding pending against two or more members of a group of companies. Also, this act regulates the procedure of coordination between the members of a group, anticipating submission of a plan of coordination, as well as the appointment and powers of coordinator. The coordinator shall be a person eligible under the law of a Member State to act as bankruptcy trustee. Coordination procedure is initiated and conducted in accordance with applicable law for the bankruptcy proceeding in which was appointed bankruptcy trustee who filed the request for the initiation of the bankruptcy proceeding, i.e. by the rule of lex fori concursus. Previously, the court must determine that coordination is necessary at all, i.e. that the initiation of the coordination proceeding will facilitate the conduct of proceedings against members of the group of companies. Otherwise, Regulation 848/2015 emphasizes the need for cooperation and communication between members of the group companies, in the event of their problems with insolvency. This highlights the interdependence of these companies, no matter that they are independent legal entities. The author pays attention to the Legislative Guide on Insolvency Law adopted in the framework of UNCITRAL (United Nations Commission on International Trade Law), which contains recommendations for regulation in this area. Also, the author pays attention to the Act on Bankruptcy of the Republic of Serbia, which does not regulate bankruptcy of the members of the group of companies, but only the coordination between the main and secondary insolvency proceedings.
Foreign and Security policy
UREDBA EVROPSKOG PARLAMENTA I SAVETA 514/2014 O FONDU ZA AZIL, MIGRACIJE I INTEGRACIJU I O INSTRUMENTU PRUŽANjA FINANSIJSKE POMOĆI POLICIJSKOJ SARADNjI
European Legislation, 2017 17(59):136-149
Internal Affairs Policies of the European Union have been steadily growing in importance in recent years. Their goal is to create a more open and secure Europe. These policies, in fact, want to achieve this goal through the effective management of migration flows and preventing crimes, while enabling legitimate travel and ensuring the management of the EU’s external borders. Therefore, at the end of 2013, the competent authorities of the EU agreed on the multiannual financial framework (the EU’s long-term budget). Parallel to this, the EU has made the system of instruments and rationalization of consumption, which led to the formation of two home affairs funding instruments, namely: the Asylum, Migration and Integration Fund and the Internal Security Fund (which consists of two instruments - ISF Borders and ISF-Police).With the adoption of Regulation (EU) No 514/2014 on the Asylum, Migration and Integration Fund and on the instrument for financial support for police cooperation, preventing and combating crime, and crisis management by the European Parliament and the Council establishes the general rules for the implementation of three \"special\" Regulation of the European Union relating to such Funds in the period 2014 to 2020.
European Legislation, 2017 17(59):150-169
The paper discusses the political, legal and economic aspects of regional policy and regionalization in the context of the European Union and the regional reorganization of regionalism in modern states, which in the conditions of globalization processes redefine sovereignty of States Contemporary. The regionalization as the process of establishing the administrative, legal and political unit includes decentralization and the implementation of the principle of subsidiarity, and encourages balanced socio-economic development. The breakdown mentioned aspects aims at understanding the meaning, knowledge of the characteristics and the political, cultural, historical and socio-economic context of regionalism as a prerequisite for a rational understanding of the problems of regional development. Regional Policy of the European Union, although one of the oldest common policies, is the policy that the Western Balkan countries slowly followed, and in this area have done the least. The aim of the regionalization process which has spread over Europe to harmonize legal standards that would turn helped the integration processes in transitional Europe. To this end, there are legal, institutional and financial instruments of support. Throughout Europe, there are regional units of different sizes and varying in legal status and unambiguously regulated by the processes of deconcentration and decentralization of power. While the European Union has established a legal framework, however, the general formula for the European regional policy and standard form, European traditions and European legal practice does not recognize.
European Legislation, 2017 17(59):170-190
Blood transfusion in the EU is of a general national interest. The continuous, efficient and timely supply of the safe blood and the blood products to medical institutions and patients is an important prerequisite for the successful functioning of any health system. The European Blood Safety Directives pose a challenge to all blood establishments and hospital blood banks and the main objective of these Blood Safety Directives is to provide the same high standards of blood quality and safety for all patients throughout the EC and the candidate countries like the Republic Serbia. The 2002/98/EC and its subsequent Directives for the first time managed to create an overarching legal framework for transfusion procedures. These directives consist of a number of standard definitions as well as detailed standard operating procedures, and yet leave room for interpretation and different practices between the EU member states. Transposing the Directive (2002/98/CE) into the national legislation of the EU Member States represents the basis for an equal minimal safe blood transfusion and a demanding job for each of the EU countries. Moreover, member states are to be monitored regarding their progress on their compliance with the directives, including the inspection and control measures by the national authorities. In order to do this, the candidate country, the Republic Serbia will need to change and supplement the legislation adopted in 2009. Published report on the progress of transposition of the Blood Safety Directives into national legislation reveals different standards, suggesting a lack of uniformity of safety and quality requirements. Furthermore, due to the technological progress since the adoption of directives, some of them (e.g. definitions, provisions on the safety of blood donors and patients, the inspection framework) became outdated. It is currently creating practical medical problems. This might undermine public confidence in the quality of blood products and the health protection of donors. The proposal for revising the Blood transfusion law in Serbia would help in optimising patient safety, donor healthcare and the efficiency of the healthcare systems dedicated to transfusion medicine. The Republic Serbia is actively preparing the conditions for the transposition of blood directive that will be achieved up to 2019, aiming high standards for national blood establishments and identifying a quality system for blood establishments to ensure comparable management of blood safety throughout Europe
REZOLUCIJA SAVETA EVROPE O MALOLETNIČKOJ DELINKVENCIJI I SOCIJALNIM PROMENAMA – KORAK KA BEZBEDNIJEM DRUŠTVU
European Legislation, 2017 17(59):191-197
The paper Provisions of the Council of Europe resolution on juvenile delinquency and social change No. 62 from 1978 will be presented. Although it is a somewhat older document, this Resolution is important because it represents a basic document which sets out the basis for the creation of a unified policy of European countries for combating juvenile delinquency in order to create a safer society. These provisions will be analyzed in the context of creating a common European policy to combat juvenile delinquency. This is an important prerequisite for the creation of a truly secure society in which all members can fully achieve their potential. This is particularly important bearing in mind the nature of the Council of Europe, as a regional organization and its role in international relations.
European Legislation, 2017 17(59):198-217
The subject of this paper is the current and warning trends of juvenile crime in the Republic of Serbia in the period 2002–2015, observed in the context of etiological, phenomenological and victimological aspects. The goal of the paper is to describe and explain the correlation between etiological, phenomenological and victimological aspects and the trends of juvenile crime, and also on the basis of this research to predict the further flow of juvenile crime in the near future in the Republic of Serbia. For this research it has been used statistical data of the Republic Institution for Statistic, Ministry of Interior and Internet, and also other data from available sources. The main hypothesis of the paper is: the actual and warning trends of juvenile crime in the Republic of Serbia are the consequence of the deep social destruction of Serbian society in different areas, particularly in the economical area, as well disrupted family integrity and harmony, associated with exactly insufficient social care for youth. The basic methods of the research are the statistical method (descriptive), cause-effect analysis and content analysis. So, the authors of this paper establish their attitude that children and youth are multiply victimized by adults, their negligence and bad upbringing, as well the bad state in society as a whole. It refers to different situations, such as: a situation when minors emerge in the roles of delinquent, not only as victims of physical, psychical or sexual violence of adults, also when they make decision refers to suicide or when they are victims in any accident. Key results of the research refer to the identification of the causes of youth crime, key among which are: economical factor and process of disintegration of a Serbian family, as well to warning trends of drug and violence youth crime. The conclusion of this paper is that society in the Republic of Serbia has to be warned about youth crime due to its actual and warning trends. If society seriously has undertaken nothing in a preventive sense regarding youth crime, especially for the stability of the Serbian family, youth crime would develop much more, in statistic as well in dark numbers.
European Legislation, 2017 17(59):218-231
The legal status of minors in comparative law in recent decades had undergone profound changes. This is especially the case with the criminal legislation which has been updated and revised new system of criminal measures against juveniles. These diversion measures require compliance with the relevant provisions of substantive and procedural criminal law, but in certain segments with the family law. The application of different legal rules assumed formal legal conditions necessary for the implementation of diverse measures which further demonstrates their importance for minors. At first glance is evident the intention of the legislators to the application of diversion measures to protect primary juvenile delinquents of all the consequences that entail the conduct of criminal proceedings and the application of criminal sanctions. Thus stated ratio legis of diversion measures has enabled the various modalities in their application in comparative law. Accordingly, we will consider more states in which the law is the application of diversion measures envisaged as an alternative to criminal procedure and criminal sanctions. These are primarily: the USA, the UK, Germany and France. What makes this state representative is their territorial distance and belonging to different legal systems.
European Legislation, 2017 17(59):232-246
The European human rights system has much wider achievements in relation to the national legal systems of European countries. The system must be considered in a given time and the spatial context. In the first case it should be considered under the framework of the European Convention, while in the second case, it ought to ensure applicability in all European countries. Since it was made back in 1950, the European Convention is a comprehensive legal instrument and reliable framework for the development of national legal systems in the field of human rights. The European Convention is a starting point in the analysis of progress in the field of standardization, promotion and protection of human rights. Taking into account the common geographical area and historical circumstances of the relations between the successor states of the former Yugoslavia, the authors will focus on the legal analyses of the incorporated system of human rights in the Republic of Serbia and the Republic of Srpska, with special emphasis on the constitutional and legal provisions.
European Legislation, 2017 17(59):247-264
The introduction of the Ombudsman institution proceeded gradually in a number of the world’s countries, and the process had its expansion at the end of the 20th century, alongside with the collapse of social constitutionalism. Serbia is one of the few countries which established ombudsman institution under the name of “protector of citizens” at all three levels of government: national, provincial and local. By comparison, similar models are mainly adopted by countries with a federal structure. Protector of citizens is provided as a facultative institution on local selfgovernment level, and for the reasons of financial and personnel nature, institutions are relatively poorly distributed. On the territory of the Republic of Serbia, there are currently 19 local protectors of citizens, mainly in the more urban and major city self-governments. The research is based on positive regulations and existing studies on this subject, while the additional information was obtained directly from the offices of citizens’ protectors. The local regulation comparison reveals a significant divergence from the constitutional and legal framework, as well as from the nature of the institution itself. Already weak normative guarantees of an independent position of citizens’ protector have been additionally endangered by local authorities, unwilling to submit their work to an extra form of control. Local communities are only just getting acquainted with all the benefits which may be brought by this young institution, thus requires an extra support by the public and media. The absence of institutional linkages between different ombudsman services is resolved to the point of their mutual cooperation. In order to further strengthen the position and function of citizens’ protector at all government levels, it is quite necessary to conduct proper modification to the existing legal framework.