European Legislation Journal Archive


European Legislation Vol. 18 No. 64/2018

Content

Preface
Redakcija časopisa
European Legislation, 2018 18(64):7-8

Institutional issues

NEW FOUNDATION OF THE EUROPEAN UNION
Slobodan Zečević
European Legislation, 2018 18(64):9-18
Abstract ▼
Successive crises that hit the European Union in the 21st century, leading to the strengthening of nationalist and Eurosceptic parties and movements, have forced Emanuel Macron, the French president elected in May 2017, to return to the European political scene. The essence of the French proposal on new foundations of the European Union is in the vision of a sovereign, united and democratic Europe. European sovereignty would be gradually built on the basis of strengthening unity in the euro zone by introducing the European federal budget, European taxes and the function of the Minister of Finance, as well as the harmonization of national norms in the tax and social sphere. The process in question would be accompanied by the strengthening of the democratic legitimacy of the European Parliament and its competencies. The European Union would build its military autonomy and protect the security of its borders by establishing the European Border Police and the Office of Asylum. It remains to be seen what will be the result of the final agreement between Paris and Berlin on the future of the European Union and whether this will truly represent a new beginning in the European integration process.

Legislation

CONDITION RELEASE IN THE EUROPEAN CRIMINAL LAW
Dragan Jovašević
European Legislation, 2018 18(64):19-40
Abstract ▼
In contemporary criminal law, a prison sentence is the basic and the most important type of criminal sanctions to be imposed on criminal acts perpetrators in order to prevent and combat crime. However, next to an unconditional prison sentence, all criminal legislation also recognize the different modalities of its imposition or execution. These are different forms of substitute or alternative in cases where unconditional detention is unnecessary. Thus, we can distinguish a full or a 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 the sentence partially. For granting the conditional release is also necessary to fulfill cumulatively prescribed conditions through which it assesses whether and to what degree is earned 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 type and prison sentence duration, or material conditions - assessment of the court that the application of penalties in case of concrete is unnecessary because the goals (purpose) of punishment can be achieved without the effective enforcement of prison sentences in the whole or in part. This paper is about the concept, characteristics, conditions and methods of implementation of these forms of prison sentence suspension in the modern European criminal law.
JUVENILE CRIMINAL LEGISLATION IN THE SWISS CONFEDERATION
Vladimir Miletić
European Legislation, 2018 18(64):41-61
Abstract ▼
The Swiss Law on Juvenile Criminal Law of 2003 belongs to a group of modern laws that regulate in a specific way the status of juvenile offenders in substantive, procedural and applicable law. The law refers to juvenile perpetrators of crimes aged 10 to 18 years at the time of the commission of the crime. Persons below this age are treated as children outside the area of criminal law and are subject to social assistance measures. The Law emphasizes the obligation of the court to take into account the protection of their personality, respect for life and family circumstances, and the development and raising of juveniles when complying with the criminal procedure against minors, which is in accordance with international standards. The law distinguishes two types of sanctions that can be imposed on juvenile perpetrators of criminal offenses: protective measures pertaining to perpetrators who need special supervision or therapeutic treatment and penalties related to juvenile perpetrators of serious crimes. In each case, the Court preliminary examines the personality of the minor and his personal relationship and character. In certain cases, the court may pass a decision on outpatient or stationary (institutional) supervision of a minor. As a rule, this is preceded by a medical or psychological examination of the competent institution. It is also possible to use protective precautionary measures even during the examination of personal relationships of juveniles.

Finances

STATUS OF THE DISTRIBUTOR OF INSURANCE IN EU LAW
Vladimir Čolović
European Legislation, 2018 18(64):62-76
Abstract ▼
Directive (EU) No. 2016/97 of the European Parliament and of the Council of 20 January 2016 on insurance distribution (recast) lays down rules concerning the taking-up and pursuit of the activities of insurance and reinsurance distribution in the Union. This Directive applies to any natural or legal person who is established in a Member State or who wishes to be established there in order to take up and pursue the distribution of insurance and reinsurance products. The form of Directive No. 2016/97 is appropriate in order to enable the implementing provisions in the areas covered by this Directive and when necessary to be adjusted to any existing specificities of the particular market and legal system in each Member State. Also, this act should aim at coordinating national rules concerning access to the activities of insurance and reinsurance distribution. This Directive is aimed at minimum harmonisation and should therefore not preclude the Member States from maintaining or introducing more stringent provisions in order to protect customers, provided that such provisions are consistent with Union law, including this Directive. Also, this Directive specifies that the Member States should also provide access to registries of intermediaries. Various types of persons or institutions can distribute insurance products. The article presents the provisions on the status of the insurance distributors, which relates to the obligation of the registration in the register, the carrying out of mediation activities in another country, the organizational conditions for the provision of insurance distribution, liability insurance and the protection of the consumers in insurance, the conditions of information and the rules of business conduct of the insurance distributor, etc. Directive No. 2016/97 also defines the minimum professional knowledge and conditions of expertise for performing insurance distribution activities related to non-life and life insurance, as well as investment insurance products. The paper also presents the provisions of the Act on Insurance of the Republic of Serbia on insurance intermediaries. According to the provisions of this Act, these activities, as the sole activity, can be performed by an insurance intermediation company licensed by the National Bank of Serbia. An insurance intermediation company is established as a joint-stock company or a limited-liability company..
FINANCIAL RESTRUCTURING OR REHABILITATION OF COMPANIES
Slavko Vukša, Bruno Đuran, Srećko Bačevac
European Legislation, 2018 18(64):77-94
Abstract ▼
A company is established to perform economic activities with the intent to generate revenue after the execution of transactions. However, in a situation where a company does not operate effectively and if it incurs losses or costs that exceed the income, this situation indicates the company has entered into financial and business difficulties. In addition to restructuring in the process of privatization and reorganization in bankruptcy proceedings, the agreement on financial restructuring is the third way in which the recovery or rehabilitation of a company can be carried out. This remediation method was introduced into our legal system in 2011, by adopting the Law on Contractual Financial Restructuring of Companies. The agreed financial restructuring includes the legal rules on the regulation of unsolved debttrust relationships. Some of these rules belong to a group of classic rules on company restructuring. In addition to these rules, some completely new rules prescribe the possibility of establishing a rehabilitation authority, the responsibilities of institutional mediators and the status of creditors to accept a restructuring agreement. The subject of this paper is concentrated precisely on the analysis of the stated rules in order to provide a clearer picture of the adopted legal solutions.

Ecology

INTERNATIONAL TRADE, ENVIRONMENT AND EUROPEAN INTEGRATION OF THE REPUBLIC OF SERBIA
Dragoljub Todić, Jelena Todić
European Legislation, 2018 18(64):95-110
Abstract ▼
The paper aims to examine the existence of overlapping conditions for the membership of the Republic of Serbia (RS) in the World Trade Organization (WTO) and the European Union (EU) regarding trade and environment. In its first part, the paper points to key issues of the importance for understanding the relationship between trade and environment, i.e. trade measures and environmental protection measures. Several elements of interweaving are noted. Particular emphasis is placed on the overlapping elements of the normative character, whose basis can be found in the documents of the WTO and can be derived from the relevant international environmental agreements. The paper provides an overview of the most important provisions of the relevant WTO documents of importance for the environment. Additionally, the relevance of certain international agreements in the field of environment is assessed from the standpoint of their relation to the issues of international trade. Separate part of the paper examines the position of the RS in the context of acquiring membership in the WTO and the EU. The paper also points to the European Commission’s annual progress report for Serbia. In this respect, in addition to the assessments related to the Chapter “Environment and Climate Change”, evaluation related to the Chapter “Foreign Relations” relevant for the WTO membership is also made. Harmonizing legislation related to the management of genetically modified organisms takes a special place, although these issues fall within the competence of other bodies and are only partly related to the field of the environment. In this respect, the overlapping conditions for the membership in these two organizations regarding trade and environment is emphasized (membership in international agreements in the field of environment, harmonization of the part of national legislation in the field of environment and other fields).

Traffic

MARITIME SAFETY AND SECURITY IN EUROPE
Iris Bjelica Vlajić
European Legislation, 2018 18(64):111-123
Abstract ▼
Waterborne transport, other than the importance for the economic development of a particular country or region, has a major impact on the pollution and destruction of the environment, damage to property and the loss of human lives. The great disasters that occurred near the European coast at the end of XX and the early XXI century prompted the EU to start paying more attention to the issue of waterborne transport safety. This paper reviews the most important EU legislation regulating the issue of maritime and inland waterway safety and obligations regarding the education and training of crew members of EU members as well as the third countries whose ships sail into European ports or whose citizens sail on these ships. The need to protect human lives and the environment has led the most important organizations at the global and regional level to cooperate and prevent marine casualties and accidents. The regulations of navigation safety and the conditions for the conduct of navigation have been harmonized by these organizations. Also, the degree of harmonization of domestic law with international standards has been presented.

Regional policy

CROSS-BORDER COOPERATION AS PART OF THE EUROPEAN UNION’S DEVELOPMENT POLICY
Dijana Savić Božić
European Legislation, 2018 18(64):124-136
Abstract ▼
Cross-border cooperation is strongly supported by the European Parliament and the Committee of the Regions. These two institutions have specifically pointed out that it is necessary to better understand the institutions of the central governments of the countries of the Western Balkans, as well as other European circles, with the significance of cross-border cooperation. In the future, the transfer of responsibilities from central government institutions to local authorities will be a particular challenge in the planning and implementation of cross-border cooperation programs. In the process of selection of projects, the role of joint supervisory boards must be strengthened, and a greater number of representatives of local authorities should be included in their work. Cross-border cooperation, by definition, requires the harmonization of financial rules (between countries and programs) and a greater degree of coordination between national authorities and the Directorate and Commission departments, and this must be one of the key issues of the future development of cross-border cooperation. It can also be expected that it will continue to simplify programming and implementation regulations. This will be achieved through greater harmonization with the rules of the Structural Funds. With all this in mind, we can conclude that the use of these funds can bring numerous benefits to the country. First, it refers to significant means for maintaining infrastructure, protecting and preserving cultural monuments, as well as the environment, and encouraging sustainable economic development. Intensive development of cross-border cooperation is essential in order to most effectively use a wide range of development opportunities on both sides of borders in Europe, as well as the potential for solving the common problems. In this way, regions would be mutually better connected and could take over the function of drivers of further European integration and sustainable neighbouring areas on the outer borders of the European Union. Cross-border cooperation, therefore, is the first and most important task and a political objective of the European Union, which needs to be implemented at the regional and local level and in partnership with national authorities. Integration effects of Serbia\'s accession to the European Union in terms of regional development are multiple, significant and confirmed, direct and indirect, and regionally uneven. They have economic, demographic, social, infrastructural and human dimension. This is confirmed not only by the experience of all transition economies that are now EU members, but also by our regional experience with the projects over the past transition period.
CROSS-BORDER COOPERATION OF DECENTRALIZED UNITS – EUROPEAN STANDARDS AND EXPERIENCES
Darko Golić, Joko Dragojlović
European Legislation, 2018 18(64):137-155
Abstract ▼
Cross-border cooperation of decentralized units can represent a tool for improving their functioning, especially in the border area. It appears as a certain supplement to the decentralized management system, primarily in the function of balanced development. The right to cross-border cooperation presents a standard in the institutionalization of local authorities, and therefore of higher territorial communities too. However, its framework is relatively narrow, subjected to national constraints. The process of European integration represents the most important driving force for its establishment. Sometimes the sole motive and goal of crossborder cooperation is the use of EU funds earmarked for these purposes.

Foreign and Security policy

EUROPEAN LEGAL FRAMEWORK FOR THE PROTECTION FROM INTERNATIONAL TERRORISM
Duško Dimitrijević
European Legislation, 2018 18(64):156-174
Abstract ▼
The subject study provides an overview and analysis of the most important legal instruments adopted under the auspices of European regional organizations the Council of Europe and the European Union. These instruments essentially complement the international legal instruments adopted under the auspices of the United Nations, aimed at contributing to the universal fight against terrorism as an international crime posing a threat to international peace and security. In this sense, European countries are obliged to cooperate in taking preventive and prohibitive measures against terrorism. Given that there are general standards in assisting in the detection, extradition, prosecution and punishment of perpetrators of terrorist acts, Serbia, as a candidate country for the EU membership, is obliged to harmonize its internal legislation with the European legal frameworks for suppressing international terrorism. Serbia through this process shows its ability to engage in a dialogue with all member states of the European Union on the implementation of the objectives of the Common Foreign and Security Policy.

Security and Defense policy

FOREIGN INVESTMENTS IN THE DEFENSE INDUSTRY OF SERBIA – POLITICAL AND SAFETY IMPLICATIONS IN THE CONTEXT OF EUROPEAN INTEGRATION
Vlado Radić, Nikola Radić
European Legislation, 2018 18(64):175-188
Abstract ▼
The defense industry of Serbia is a respectable national capacity whose development role consists in the permanent increase in exports and ensuring of the national self-sufficiency necessary for the defense system. Although in the last two or three decades the defense industry has gone through great temptations, it has shown exceptional vitality in the international market. This industry possesses the potential to develop a high growth rate. In the conditions of Serbia\'s accession to the European Union market, which is indicated by certain economic parameters, it also has the potential to develop high product quality, price competitiveness, specific technological know-how and rich production experience and the considerable interest of foreign customers. With the new Law on the Production and Trade of Weapons and Military Equipment, Serbia has made a step forward by which its companies from the defense industry can enter the European Union and other world markets. The authors of this paper paid attention to the political and security implications of foreign investments in the Serbian defense industry, focusing on the context these investments can have on the European integration process.

Social policy

PROTECTION OF VULNERABLE SOCIAL GROUPS AND THE STATE OF SOCIAL ENTREPRENEURSHIP IN SERBIA IN RELATION TO THE EUROPEAN UNION
Maja Ćirić, Jelena Matijašević-Obradović
European Legislation, 2018 18(64):189-206
Abstract ▼
The subject of the paper is to determine the way in which citizens of Serbia perceive a legislative framework that protects the rights of vulnerable social groups in Serbia in relation to the European Union. The aim of the paper is to determine the differences in opinion and attitudes of citizens regarding the legislative framework and its application in Serbia in relation to the European Union, which are dependent on the level and type of education. In addition, the aim of the paper is to determine the facts about how citizens are informed about the situation and protection of vulnerable social groups in order to be able to conclude on the causes for presenting concrete opinions and attitudes. Bearing in mind the importance of developing social entrepreneurship to address the problem of vulnerable social groups, the authors analyzed the legislative framework regulating this area. On the basis of the conducted research using the survey on a sample of 150 respondents, as well as through the analysis of the national legislative framework and the Europe 2020 Strategy in the field of social cohesion, the authors came to the knowledge of the current situation in Serbia in relation to the situation existing in the Union. In that sense, the authors also made certain recommendations for the improvement of social entrepreneurship.

Educational policy

EUROPEAN LANGUAGE EDUCATION POLICY AND FOREIGN LANGUAGE TEACHING
Katarina Radojković Ilić
European Legislation, 2018 18(64):207-223
Abstract ▼
This paper presents some of the objectives of European language education policies and their implications for foreign language teaching. A number of recommendations, conclusions, and other acts issued by the Council of Europe and European institutions have been analyzed in order to explain the main objectives and concepts of European language education policies: plurilingualism, linguistic diversity, intercultural dialogue, democratic citizenship and social cohesion and their implications for foreign language teaching. The paper also offers a critical review of European language education policies and the presence of these concepts in formal education in Serbia. The aim of this paper is to increase awareness of the part played by languages in offering equal opportunity for personal development, education, employment, mobility, access to information and cultural enrichment.

Human rights

USE OF GENDER-SENSITIVE LANGUAGE IN INTERNAL LAW AND EUROPEAN STANDARDS
Žarko Radić
European Legislation, 2018 18(64):224-250
Abstract ▼
In the 21st century Europe, the issue of linguistic human rights and gendersensitive language in the official and public use becomes increasingly significant. It has become an increasingly interesting topic for social sciences, public policies and media. The gender-sensitive language is considered the language of gender equality. It is required that the language used in the official document gives women and men and their activities equal value and equal visibility. Acknowledging the European standards and National Strategy for Gender Equality from 2016-2020, in this paper the author analyses the possibility of using the gender-sensitive language in legal texts from the aspect of legislative drafting. He does so by applying dogmatic, normative and comparative law method. At the end of the paper, the author considers the importance of the studied issues for the Republic of Serbia and its road to the membership in the European Union. He concludes that in order to make consistent use of the gender-sensitive language in regulations obligatory, the proper amendments to the Common Methodology of Legislative Drafting should be adopted by the National Assembly of the Republic of Serbia.

Јudicial practice

QUESTION OF THE SURROGATE MOTHERHOOD IN PRACTICE OF THE COURT OF JUSTICE OF THE EUROPEAN UNION
Anđela Đukanović
European Legislation, 2018 18(64):251-264
Abstract ▼
Surrogacy is an issue that has caused a series of ethical dilemmas for quite some time, primarily regarding the possible exploitation of the surrogate mothers in a difficult economic situation. The issue of surrogacy is especially important in light of the progress of reproductive technologies and reproductive tourism. Surrogate motherhood is a sensitive issue, and the EU law does not regulate it. Therefore, particularly interesting were two cases which appeared before the Court of Justice of the EU. They showed how the issue of surrogate motherhood could pose a problem in an indirect way. As for the aforementioned two cases, it may be noted that the Court of Justice of the EU has not exceeded his jurisdiction. However, in the light of surrogacy arrangements, it should be taken into account that the interests and rights of children born through surrogacy can be affected significantly, especially in the context of reproductive tourism. Nevertheless, achieving any consensus in this area is almost impossible.