European Legislation Journal Archive
European Legislation Vol. 18 No. 63/2018
European Legislation, 2018 18(63):7-8
European Legislation, 2018 18(63):9-21
The Serbian state within the SFR Yugoslavia and its intelligence unwillingly welcomed the disappearance of the bipolar division in Europe in the late 1980s, which was followed by the collapse of the Soviet Union and the Warsaw Pact. After the fall of the Berlin Wall in 1989, there was a decline in the reputation of the Serbian people acquired during its glorious past. In the subject study, the author starts from the view that in the past decades the European determinant of Serbian foreign policy had negative effects on territorial integrity, economic and social development and modernization of the country. With the signing of the Stabilization and Association Agreement in 2008, relations between Serbia and the European Union grew from the interstate into the relations of an integrative nature. The process of joining the European Union requires a comprehensive social transformation and the transfer of state sovereignty from national to European institutions, which means that certain laws or decisions will no longer be made in Belgrade, but in Brussels. Relations with Russia and China that are of great importance for Serbia are bilateral, interstate, and therefore they have a lower intensity compared to the European integration process. Therefore, for the foreign policy of Serbia, the accession to the European Union is of primary, and the interstate cooperation with Russia and China is of secondary importance. The development of cooperation with these two countries can take place within frameworks that do not jeopardize the primary goal of Serbian foreign policy.
European Legislation, 2018 18(63):22-31
In January 2014, the Republic of Serbia as a candidate member opened the negotiating chapters of accession to the European Union. There are certain conditions that each country as a future member must meet and the same is prescribed for the Republic of Serbia. The European Union has adopted a set of legal rules which each candidate has to enforce in order to harmonize national legislation and institutions which are called acquis communautaire. The number of the negotiating chapters has been changing. From 31 as it was necessary for Bulgaria or Romania, the number of chapters increased to 35 in the case of Montenegro, Croatia and Serbia. In the paper, the authors are specifically interested in two chapters: Chapter 23 - Judiciary and fundamental human rights and Chapter 24 Justice, security and safety. The authors’ attention is focused primarily on Chapter 24 and the fact that the EU insists that the judiciary of new accession candidates should be transparent and independent of the influence of other branches of the government. Hence, it is to be expected that the Republic of Serbia will adopt the European standards and harmonize its domestic legislation and provide the conditions for an independent and efficient judiciary exempt from any external influence and corruption. In this work, the authors analyze the contents of the chapters and the situation in the judiciary of the Republic of Serbia, as well as the possibilities for their closure in the context of the full implementation of the directives contained therein.
European Legislation, 2018 18(63):32-53
In Contemporary Criminal Law, a prison sentence is the basic and the most important type of criminal sanctions to be imposed on criminal act perpetrators in order to prevent and combat crime. But, next to an unconditional prison sentence, all criminal legislation also recognise different modalities of its imposition or execution. These are different forms of substitute or alternative in cases where an unconditional detention is unnecessary. Thus, we can distinguish a full or partial suspension of the prison sentence or some other kind of punishment. In the first case, it is about the suspended sentence. The second partial suspension form is called a conditional release. The conditional release is a partial suspension of prison sentence under certain conditions and for a defined period, but only after the convicted person has already served a sentence partially. For granting a conditional release it is also necessary to fulfill cumulatively prescribed conditions through which it assesses whether and to what degree is earned the special prevention of the convicted person in the sense of re-education and re-socialization. A prerequisite for the implementation of these measures is the fulfillment of the formal requirements - in terms of the type and prison sentence duration or material conditions assessment of the court that the application of penalties in case of concrete is not necessary because the goals (purpose) of punishment can be achieved without effective enforcement of prison sentences in whole or part. This paper is about the concept, characteristics, conditions and methods of the implementation of these forms of prison sentence suspension in the modern European criminal law.
European Legislation, 2018 18(63):54-69
The current times when we incline towards the European integration and when we know it is imperative to ‘clean’ the society from corruption, encouraged the author of this paper to make an overview of the notions and characteristics of one of the most common criminal offences related to corruption nowadays, i.e. the criminal offences of accepting and giving a bribe and accepting and giving a bribe in performing economic activities. By suppressing these criminal offences we help the state law enforcement organs that exert public powers to function correctly, to perform economic activities properly and to keep a necessary level of citizens’ trust into the legal system and legal state. The contemporary political theory emphasizes that political power and influence cannot be sold or bought. It also points out that the official or other position must not be the object of trade. However, we witness that there is a significant gap between these principles and practice, therefore the abuse of political, official or other position is sanctioned by the law. The practice showed that criminal offenders, i.e. especially those who accept and give a bribe skilfully avoid criminal procedure most often because of the “political immunity“ that provides them with a status they have. Accepting and giving a bribe is the most hidden type of criminal activity, so “the dark numbers “of those criminal offences are high. The high level of the hiding is determined by the fact that the one who gives and the one that accepts a bribe are both equally interested in keeping their activities anonymous.
UPOREDNI PRAVNI PREGLED KRIVIČNOG DELA – NESAVESNO PRUŽANjE LEKARSKE POMOĆI U ZAKONODAVSTVIMA DRŽAVA BIVŠE JUGOSLAVIJE
European Legislation, 2018 18(63):70-87
In the area of protection and improvement of human health, it is of particular importance to provide legal, effective, correct, professional and timely medical assistance, performing other healthcare activities or providing medical assistance or care. In this way, a significant social function is achieved, as well as the protection of the protected Constitutional right on the inviolability of the physical and psychological integrity of a man. However, due to the medical activity undertaken by a doctor, i.e. by a physician or due to the medical activity undertaken by other relevant persons, for example, a nurse, etc., it is possible that the health of a person according to which the corresponding medical activity is undertaken is deteriorating. In the case of serious injuries of the duties of the physicians or other persons who practice other medical professions, e.g. the nurses or a gross violation of the rules of the profession resulting in more serious consequences for the health of another, then all modern criminal law legislations foresee criminal responsibility and punishability for a particular criminal offense – unacceptable medical assistance, i.e. medical malpractice. That is the case too, in the criminal law legislation of the states established on the territory of the former Socialists Federative Republic of Yugoslavia. In this paper, this criminal offence is analysed from the aspect of its general concept, motion, main characteristics, relevant features and forms of expression in the criminal law legislation of the states of the former Socialists Federative Republic Yugoslavia.
Economy, competition, entrepreneurship
European Legislation, 2018 18(63):88-99
This paper analyses some of the most important points of harmonization of Serbian company law with the European Union law. Legal theory should be critical and suspicious, and in accordance with its potentials, the EU designs the short, medium and long-term growth periods. This work will pay particular attention to the matters of company law in the strict sense. Considering the process of globalization and international integrations, there is a requirement of harmonization of national legislation with the EU Law. The solutions already modified or kept abreacted according to the latest developments at the EU level are also considered. According to some opinions, the integration of solutions which is established by the EU in the national laws leads to a single, i.e. universal or worldwide law. The question is to what extent and in which solutions to implement the EU dimension into the national law. Speaking about the change or the field of company law, as well as considering our Company Law Act, there is a dilemma in which extent and to which dimension we should implement the solutions which exist in the EU, especially in the Anglo-American law. Moreover, despite all benefits, there is a suspicion about some solutions, for instance, holding a meeting of shareholders without their physical presence of electronic transactions, particularly as viewed from the point of legal certainty. On the one hand, there is an obvious necessity of harmonization of the company law, the securities law, the stock law, the competition law, as well as the bankruptcy law, in order to establish and be present at the common and functional market. On the other hand, contrary to different levels of development of some states, as well as their potentials, the EU designs the short, medium and long-term growth periods. Chapter 6 (in the membership process), which relates to the company law, is coordinated by Serbia in order to improve its own business environment, which will also affect investments in Serbia. Certainly, the roles of human resources and their capability are in the foreground.
SLOBODNE ZONE KAO INSTRUMENT PRIVLAČENjA STRANOG KAPITALA ZEMALjA U TRANZICIJI – PRIMER BOSNE I HERCEGOVINE
European Legislation, 2018 18(63):100-116
Free zones should be the basis for the faster economic development of BiH and its connection with the world, as well as to be a link to the development and improvement of foreign trade. As free customs zones have long experienced a boom in the world, they also got a form of mutual association, so this paper aims to highlight the advantages and benefits that developing countries can have from the integration and operation of free zones. The last few years were characterised by major changes in international political relations, but many of them are economical in its basis. The laws on free zones in BiH and countries in the region, as well as the Laws on Customs Policy, and the data of the methodology of attracting foreign capital through the formation of free zones and their sustainability are discussed. The development of the Free Zone Institute results in the reorganization of institutional relations in a legal, economic and political sense. A large number of countries that have long been trying to become a part of the centres of the power of the world economy started implementing the Free Zone Institute. Free zones have emerged as part of an industrial policy in a large number of developing countries, as well as in the countries that carry out major economic reforms. Dealing with the topic of free zones, we come to the conclusion that the economic growth and development depend on the level of its involvement in the world market.Yet, there is also the reverse influence since the level of inclusion of some countries in international exchange depends on the level of their economic development.
European Legislation, 2018 18(63):117-127
The main goal of this paper is an analysis of the meaning and the functions of the trademark in the global business environment. In today’s global economic societies and open market systems, knowing the meaning and the functions of the trademark can help a company in optimising its management actions, create a useful marketing strategy and gain further financial benefits. In this regard, the subject of study is the theoretical and practical aspects of the importance of trademarks and their function (it identifies the product and its origin, it proposes to guarantee its quality, it advertises the product, it creates an image of the product in the minds of the consumers) in companies’ every day work. Particular attention is paid to the influence of the trademark functions on the consumers. In order to provide greater comprehensiveness of the issues that are the subject of elaboration in this paper, in addition to numerous theoretical considerations and the views of several authors, practical examples from the case law have been enclosed.
European Legislation, 2018 18(63):128-137
The paper analyses the European Free Trade Association (EFTA), one of the European economic associations with the legal personality and international legal personality, its origin, its goals, ways and instruments for achieving these goals, as well as the organs of the Association. The rapid and successful economic development of EFTA member states is just a significant motive for this association to be trained in all its segments. The relationship of the Republic of Serbia with the EFTA in the field of economic cooperation, with a special view of the area of free trade and the contracts concluded between the individual EFTA countries and our state, is also presented. Finally, an appropriate conclusion is given indicating, among other things, the relevance and economic benefits of such association and, for example, the Member States of the EFTA which are small, both spatially and in terms of population, indicate how they can successfully and independently develop domestic economy, increase the standard of citizens and build a safe and stable future.
REFORMA POŠTANSKOG TRŽIŠTA U EVROPSKOJ UNIJI I UTICAJ NA REGULACIJU TRŽIŠTA POŠTANSKIH USLUGA U REPUBLICI SRBIJI
European Legislation, 2018 18(63):138-152
The postal market reform in the European Union began in the 1990s, as part of the process of creating a single European market, with the aim of finding an appropriate response to the decline in the volume of physical items and increasing the volume of substitution by electronic means of communication. The process of the transformation of the postal market, from a monopolistic to that in which the postal services are performed exclusively by the national postal operator, through a partially open market where the public postal operator reserves the right to perform the reserved service, implies complete liberalization characterized by the abolition of the reserved service and the possibility that other postal operators perform services from the universal service. In order to successfully implement these processes, it is necessary to gradually restructure the Public Enterprise Post of Serbia and to enable the independent work of the Regulatory Agency for Electronic Communications and Postal Services (RATEL), in accordance with the European Union Directives (97/67/EC, 2002/39/EC, 2008/6/EC). Also, in order to fully establish the free market of postal services in the Republic of Serbia, it is necessary to define: access to the postal network; the base for determining the price of universal service; possible means of financing the universal service, as well as ways of encouraging the development of new services.
European Legislation, 2018 18(63):153-165
The subject of this paper is the analysis of the European Fund for Strategic Investments (EFSI), which is a separate legal entity that has an open account with the European Investment Bank (EIB). The EFSI was established on the basis of EU Regulation 2015/1017 of the European Parliament and of the Council of 25 June 2015 on the European Strategic Investment Fund, the European Investment Advisory Centre and the European Investment Project Portal and amending Regulations (EU) No 1291/2013 and (EU) No 1316/2013 – the European Fund for Strategic Investments. The EFSI is one of the three pillars of the European Investment Plan. It has the purpose to encourage long-term economic growth and competitiveness in the European Union. The objective of this Fund of EUR 315 million is to contribute to the use of public funds, inter alia, of funds from the EU budget, in order to encourage private investment in a wide range of projects in the EU. Projects include areas such as infrastructure, research and innovation, education, health, information and communication technologies.
European Legislation, 2018 18(63):166-176
The global level of a long-term economic and financial crisis continues to be a challenge for the financial and banking system. Banks continued their association and growth across borders, applying one-size-fits-all approach, where this size is always extra-large. In some of the poor communities across the European Union, banking institutions closed to cut costs. However, directors of those banks who had personal relationships with their debtors became attractive, and these communities were increasingly separated from the wider economy as the financing for their needs became the subject of speculation. Such regulations meant reducing the total number of branches of each bank and savings cooperatives to a smaller size than the network of postal branches. All this suggests the global banking system is changing or creating a new banking architecture on a global scale. A major \"contribution\" to this was the general financial and economic crisis. Therefore, banks had to become more flexible in their operations and their adaptability to new business conditions was reflected in the efforts to create an alternative banking system, capable of responding to the challenges of a long-term crisis or shortages of capital on the global financial market. The EU institution adopted new rules of banking supervision which bear the losses and an appropriate part of the cost arising from the failure of the institution and not the taxpayers. Serbia needs to harmonize timely its regulations in the field of banking supervision with EU regulations.
European Legislation, 2018 18(63):177-192
Liquidation is one way of ending the activity of a commercial company, whereby during the procedure, it continues its activities in the same organizational scheme retaining its legal status until the end of the liquidation proceedings, although significantly reduced. Since the liquidation of a company may only be carried over a solvent business organization, it is the basic characteristic by which the liquidation differs from bankruptcy because the bankruptcy proceedings are conducted in respect of an insolvent company. As a rule, liquidation is carried out over a timelimited duration company. The liquidation occurs because of non-financial reasons which distinguish it from bankruptcy that occurs because of the insolvency of the company. The liquidation procedure is carried out in legally determined cases, after concluding the debtor’s obligations could be settled from its assets if a solvent company is in question. From the beginning of this procedure, only the purpose of the company is being changed. From this moment its intention is not to make a profit but to carry out the liquidation of the company assets and their distribution to the authorized persons. All debts are being settled, while the rest of liquidation surplus is distributed among the company’s members.
European Legislation, 2018 18(63):193-208
Information technologies with the expansion of the global computer network (the Internet) have brought new forms of socially unacceptable behaviour, which should be sanctioned accordingly. The emergence of cybercrime has provoked the need for the engagement of specially trained specialists, for the suppression and prevention of such criminal actions. In this paper, we identify the state of cybercrime in the global environment, which is the biggest threat to the stability of business entities. We provide guidelines for future research in order to monitor investments in the security of information systems of businesses, in order to reduce the costs of cybercrime.
Foreign and Security policy
European Legislation, 2018 18(63):209-230
In this paper, the authors deal with the pragmatism of the European Union, as well as redefining relations with NATO as their partner. The analysis makes it easier to understand the current processes that are happening between the two organisations, with the aim of assessing the needs for strengthening the interestinvestment potential of security.
FORMALNI PREDUSLOVI PRAVNE I BEZBEDNOSNE SARADNjE IZMEĐU REPUBLIKE SRBIJE I DRUGIH DRŽAVA ZAPADNOG BALKANA
European Legislation, 2018 18(63):231-249
The inter-state cooperation, whether bilateral or multilateral, is one of the key factors which improves different areas of national states and makes them more efficient. From the standpoint of legal security cooperation and cooperation in the field of criminal and security issues, transnational cooperation contributes to a more efficient fight against crime and efficient resolution of certain issues in the national security of the signatory countries. The significance of the instrument of interstate cooperation in the Western Balkans, among other things, is particularly evident due to border crossing liberalization and the representation of the dual citizenship institute. These are some of the factors that favour the development of various forms of criminal activity, and provide opportunities for perpetrators of criminal offenses to relatively quickly and safely leave the territory of the State where the offense was committed. Hence, the formal legal regulation of interstate cooperation and assistance in criminal and security issues are extremely important. Starting from the main hypothesis that international treaties as formal legal prerequisites are essential for the establishment of inter-state cooperation in various spheres of social life, and directing the focus to the field of criminal justice and security cooperation, this paper presents some international legal standards in this area, along with a descriptive analysis of their most important provisions. From the analysis of certain international legal standards it seems, formally speaking, that they cover a significant part of the legal safety issues and that in the factual sense, the implementation of agreed issues is not too advanced. One of the reasons for this situation is certainly the fact that the countries of the Western Balkans are in transition, they are occupied by the process of integration into the European Union, and compatibility of their legal systems is not yet achieved. Areas covered in this paper are particularly related to: legal assistance in criminal matters (extradition, mutual execution of court decisions); protection of classified information; police cooperation; protection of human rights and fundamental freedoms; security; law enforcement; the Statute of limitations of criminal offenses; assistance in civil and criminal matters; illegal entry and residence; the fight against crime. The work concludes with the research which includes the types and forms of criminal legal aid and police cooperation which were carried out on the basis of signed contracts and agreements, as well as the assessment of their effectiveness.
JAČANjE ULOGE EVROPSKOG PARLAMENTA U OBLASTI ZAJEDNIČKE SPOLjNE I BEZBEDNOSNE POLITIKE KROZ POSTUPKE PRED SUDOM PRAVDE EU
European Legislation, 2018 18(63):250-268
This paper seeks to contribute to a wider explanation of the deepening of European integration manifested through a gradual strengthening of the supranational European Union (EU) institutions during the periods between the formal treaty revisions. The case study explains the evolution of the European Parliament’s role in the area of Common Foreign and Security Policy (CFSP), which has remained intergovernmental. Rational choice institutionalist presumptions are used as a theoretical basis. In the interinstitutional fight for power, the European Parliament (EP) is seen as a rational actor who uses its locus standi to achieve a favorable and authoritative interpretation of treaty norms from the Court of Justice of the European Union. An analysis of four litigation cases initiated by the EP regarding the CFSP showed that it applied two alternative strategies – first, attacking the choice of the legal basis for individual acts in order to reduce, in the long run, the sphere of application of this policy in favor of community policies where it plays a far greater role; second, insisting on an extensive interpretation of general procedural rules aiming at their broader application, and with a more detailed parliamentary participation. Whilst the first strategy had a very promising start before the Lisbon treaty, afterwards it suffered a complete failure and became even counterproductive. The other strategy, however, brought about an absolute empowerment of the European Parliament in the procedure leading to the conclusion of EU’s international agreements, not only in the CFSP area. The duty to keep the EP immediately and fully informed at all stages of the procedure also applies to the CFSP. Moreover, its content is largely specified in the EP’s favor.
European Legislation, 2018 18(63):269-286
Today, modern global migration movements are most often referred to as \"crisis\" because the dominant form of migration movements is forced and irregular migration in the form of mass migrant flows in short time intervals. The main feature of irregular migration is the gap between a large number of individuals who are trying to emigrate for various reasons and increasingly restrictive migration policies of countries that are designated as desired destinations. This is the point where modern international migration is associated with transnational organized crime and terrorism, which further conditions the existence of various security aspects of migration to the society, the state and the international community. The paper presents an overview of the security risks of irregular migration through the prism of the national security system, identified in the situation in the Republic of Serbia during the current migration crisis, followed by a critical assessment of the national normative response to irregular migration.
European Legislation, 2018 18(63):287-301
The protection of natural persons in relation to the processing of personal data is a fundamental human right, which means that the regulations on the protection of natural persons with regard to the processing of their personal data must respect the fundamental rights and freedoms of such persons, and in particular their right to protection of their personal data. On the other hand, the right to the protection of personal data must be balanced with other fundamental rights and freedoms, which must also be taken into account in the regulations on the protection of personal data. This paper deals with the General Data Protection Regulation EU 2016/679, primarily its parts concerning the basic principles, the rights of the data subject, the obligations of the controller and processor, and the transfers of personal data to the third countries or international organisations. The basic principles are related to the processing of personal data, its lawfulness, fairness and transparency, the purposes of data collecting, accuracy and security of data and the conditions of consent where processing is based on consent. This Regulation also deals with the rights of the data subject, as transparency, information and the right of access to personal data, his rights to rectification, erasure and restriction of professing, its right to data portability and right to object and automated individual decision-making. The rights of the data subject could be restricted in accordance to the conditions provided in the Regulation. The Regulation concerns also the obligations and responsibilities of the controller and the processor in order to protect the rights of the data subject, especially their obligations according to the security of processing and data protection impact assessment and prior consultation. Finally, this paper deals with the transfers of personal data to the third countries or international organizations, which could be done on the basis of an adequate decision or on the basis of providing appropriate safeguards by the controller or processor.
European Legislation, 2018 18(63):302-309
Although human rights are classified in different ways, it is important to note that international human rights law proclaims that all human rights are universal, indivisible and interrelated, and that no right is more important than another. However, these rights are protected as well by laws passed at the regional level or acts of force on the territory of Europe and the European Union. Even though on the international legal level, international law has primacy in comparison with the EU Law based on the UN Charter, which respects and affirms the practice of the Court of Justice, however, the constitutional guarantees of fundamental rights contained in the EU Law as an autonomous legal system should not be brought into question by any international agreement.