Search

Copyright of Jurnalul Baroului Cluj is the property of Cluj Bar Association and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

This document provides a summary of several recent decisions by the European courts in environmental matters. The first case discussed concerns the European Investment Bank (EIB) and its refusal to provide an internal review of its decision to grant a loan for the construction of a biomass power plant in Spain. The Court of Justice (CJEU) ruled that the EIB must provide for an internal review of its decision. The second case involves the diesel scandal, specifically the imposition of double sanctions on Volkswagen in Italy and Germany. The CJEU found that the Italian sanction constituted a criminal sanction and applied the principle of "ne bis in idem," which prohibits double jeopardy. The third case focuses on the enforcement of the Habitats Directive and the failure of Member States to designate special areas of conservation and implement appropriate conservation measures. The CJEU ruled that the European Commission must prove that conservation measures are incomplete, insufficient, or inappropriate for each Natura 2000 site. The final case addresses the quality of drinking water in Italy and the failure of certain municipalities to comply with EU requirements. The CJEU found that Italy had not complied with its obligations under Directive 98/83 and had not improved the situation as quickly as possible. Overall, these cases highlight the complexities and challenges in enforcing environmental laws and protecting the environment. [Extracted from the article]

The article explores the acknowledgment of the Major Questions doctrine in the 2022 U.S. Supreme Court case West Virginia v. U.S. Environmental Protection Agency (EPA). Topics discussed include the implications of the doctrine for federal courts and agencies, the development of the said doctrine as part of the landmark decision on the case Chevron U.S.A., Inc. v. Natural. Resources Defense Council, Inc., and the ability of the lower courts to interpret the doctrine in the West Virginia case.

This article delves into the crucial aspects of the Constitutional Court of the Republic of Indonesia's decision, focusing on the emergency state of administrative law concerning open legal policy decisions referred back to legislators, particularly regarding the tenure of village heads. The study employs a conceptual and legal approach, centering on the Constitutional Court Decision No.15/PUU-XI/2023 concerning the village head's position. This represents an open legal policy for law framers, paving the way for the political prevention of Pilkades (village head elections) money politics. Law No. 6 of 2014, which is under consideration for revision, lacks explicit measures against money politics. The methodology adopted is normative legal research that integrates legal theory with legislation. The findings indicate that open legal policy rulings necessitate immediate action by law framers, signaling administrative law urgency. The rationale is that law framers must react to that decision, and revising the law does not necessarily require inclusion in the National Legislation Program (Prolegnas). Decision on open legal policies must be administratively executed by law framers, including the issuance of Government Regulation in Lieu of Law (Perpu), which subsequently require legislative approval to become law. In essence, the decision of the Constitutional Court carries a moral and ethical coercive force, achieved by transforming ius constitutum into ius constituendum. [ABSTRACT FROM AUTHOR]

As stated in the Venice Commission Report, the rule of law embraces several aspects, such as legality, legal certainty, prevention of abuse (misuse of powers), equality before the law and non-discrimination, and access to justice. Stability and consistency of law and legitimate expectations as a part of legal certainty are key factors in every democratic country. However, even for countries where democratic standards are highly developed, achievement of all aspects of the rule of law can be a challenge. Areas such as spatial planning and building are very dynamic in their core. However, this should not be an obstacle for stable and long-term regulation. Western democracies are characterized by the long-lasting acts and other regulation in building and spatial planning. Croatia, however, has constant changes in the basic regulation covering mentioned areas. For example, in issuing a building permit, the procedure can be so long lasting that all the relevant regulation may change in the meantime. This affects the investor, the owner of the property and possibly infringes their constitutional rights. Since the issuing of a building permit is in the area of administrative law, the aim of this paper is to analyse which constitutional rights may be affected during frequent changes of basic regulation. The other aim is to research and analyse whether national bodies and courts protect constitutional guarantees in administrative proceedings, and if not, what are the reasons for such practice. This paper is divided into five sections: background and regulatory framework, the rule of law in spatial planning and building, right to a fair trial, protection of property in administrative matters, and conclusion. Methodology used in this paper is normative, comparative, teleological and deductive. The research includes relevant regulation and available domestic and case law of the European Court on Human Rights. Paper is based on domestic and international documentation issued by relevant bodies, such as European Commission Reports, Venice Commission Report, etc. Teleological method is used for interpretation of the regulation and deductive method for the conclusion. Teleological method is used also for recommendations regarding a better application of the principle of the rule of law. [ABSTRACT FROM AUTHOR]

After more than a decade of extensive reform of administrative litigation, which, despite clearly defined goals, did not yield the expected results, and after numerous requests and criticisms from practice and legal theory, a new Law on Administrative Disputes has been prepared. It contains numerous innovations primarily aimed at increasing the efficiency of administrative litigation. The paper presents and analyzes the basic novelties introduced by the new legislation. [ABSTRACT FROM AUTHOR]

Copyright of Revista Foco (Interdisciplinary Studies Journal) is the property of Revista Foco and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Revista de Administración Pública is the property of Centro de Estudios Politicos y Constitucionales and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Revista de Administración Pública is the property of Centro de Estudios Politicos y Constitucionales and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Revista de Administración Pública is the property of Centro de Estudios Politicos y Constitucionales and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Revista de Administración Pública is the property of Centro de Estudios Politicos y Constitucionales and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Revista de Administración Pública is the property of Centro de Estudios Politicos y Constitucionales and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Revista de Administración Pública is the property of Centro de Estudios Politicos y Constitucionales and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The article focuses on the problem of liability for administrative fines, taking into account elements of a subjectivising nature of administrative liability to demonstrate the possibility of subsidiary application of criminal law provisions by public administration bodies. Through the analysis of the case law of the Supreme Administrative Court, selected Regional Administrative Courts, the Constitutional Tribunal, as well as the European Court of Human Rights, it is shown that the problem of measuring and imposing administrative fines on the basis of the provisions of substantive administrative law and Section IVa of the Code of Administrative Procedure requires a much broader analysis than any conducted thus far. Due to the legislator’s failure to guarantee the correct scope of legal protection that would include demonstrating the circumstances that are also of a subjective nature, obliged entities have been deprived of numerous legal guarantees provided not only in Article 42(2) of the Constitution of the Republic of Poland but also in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). The analysis of the nature of administrative fines proves that the current regulations of Section IVa of the Code of Administrative Procedure require significant reform, in particular, to guarantee the absence of arbitrary imposition and execution of administrative sanctions by public administration bodies. Verifying the judgments from the point of view of taking into account the subsidiary application of the provisions of criminal law has made it possible to present a discussion on the nature of administrative liability, which is first and foremost of significance in terms of implementing the obligations of the State Party to the ECHR within the framework of taking into account subjective circumstances, but also in terms of the application of the ne bis in idem principle in the situation of concurrence of criminal and administrative liability. With this in mind, a de lege ferenda postulate is to amend the provisions of Section IVa of the Code of Administrative Procedure by including in its scope additional legal guarantees of obliged entities while taking into account the principle of legalism in its broadest sense.

This article argues that regulatory trust is established and maintained through a relationship between stakeholders and the government, with the former group of organizations and individuals relying on their understanding of this relationship. Federal administrative law in the United States makes the expectations about the regulatory environment on which stakeholders rely more meaningful by granting stakeholders the right to bring actions in court when their expectations are being (or seem likely to be) dashed. To make this argument, I begin with the threshold question of how courts serve as a forum for voicing claims of distrust in regulatory regimes. I then consider the importance of political accountability over regulatory decision making, illustrating the concerns about the structure of agencies that regulate consumer and housing finance. Next, I will discuss a second major challenge to trust that arises from the extent to which the authority of regulatory agencies is circumscribed by legislation. Along the way, I draw on the case law presented to argue that problems of trust in financial regulation center on the reliance interests of stakeholders. Finally, the argument suggests a research agenda into trust as a reliance interest that I sketch in the conclusion.

The appeals to values and the renaissance of axiological thought in the various legal dogmas naturally prompt a methodological order. The article is a voice in the debate on attempts to systematize values in administrative law. On the grounds of positive law, one usually reaches only to justify the thetic validity of norms. In administrative law, which concerns human beings, it is especially common to reach for the axiological basis of the validity of the law – hence the number of value classifications is considerable. The meanders of axiological reflection in administrative law are entering a higher level of complexity. The axiology of administrative law is very complex due to the great diversity of administrative law, and any typologies are contractual in nature. The doctrine is generating new catalogues of values. Each of them is threatened by a form of relativism. The author undertakes an analysis of the proposed classifications, pointing out the advantages and disadvantages of the various solutions. The purpose of the article is to present justifications for the separation and classification of values in administrative law and to confirm the relevance of axiological reflection within the framework of the legal dogma indicated. The main methods used in the text are formal-dogmatic and comparative.

As the relationship with the persons under private law empowered to manage the execution of the range of noncustodial measures and punishments in this sphere is currently outlined at the legislative level, the nuances that limit access to the profession are identified. This aspect harms in practice both the person responsible for safety measurement and the judge who is delegated with the execution, the probation department and last but not least the professional mandated with the expertise regarding the state of health of the person in question. Since 2014, the Council of Europe's Report "A juvenile criminal justice adapted to children: from rhetoric to reality" has motivated the considerations regarding justice related to children, which mentions the need for minors in conflict with the law to have access above all to treatment and special staff. The proposed law restores the right to the vision required from the level of practitioners with reference to the recontouring of the provisions of article 20 of Law no. 253/2013 regarding the execution of punishments, educational measures and other non-custodial measures ordered by judicial bodies during the criminal process, in accordance with the goal of the regulation, namely to ensure the legal order by guaranteeing the balance that must exist between the protection of society and the reintegration in the community. At the same time, the terminations of the Ferenda law proposal will demonstrate the need for corroboration with normative acts that regulate the way of exercising the various liberal professions through units without legal personality necessary in terms of providing medical assistance at ambulatory level, both in the preventive and in the of recovery.

The paper wishes to analyze the challenges that the interdisciplinary approach on climate change and ancillary obligations will bring in the field of administrative law, by analyzing EU legislation in this respect. Climate change has become a rising global concern, significantly affecting administrative policies, regulations, and administrative processes. Considering these challenges, administrative law legislation and jurisprudence have evolved and adapted to address the new requirements. At the regulatory level, the impact of climate change on issues such as urban planning, protection of natural resources, project permitting, and environmental governance is taken into account. The article paves the way for solutions and suggestions for improving the legal and administrative framework to meet the challenges raised and highlights the importance of legal and administrative collaboration in developing the most appropriate policies and regulations.

In recent years, regulation scholars and policymakers have increasingly turned their attention to the role of inter-governmental organizational design in effective governance. The existing literature on regulatory design has provided important insights into the advantages and disadvantages of alternative structural options. This article synthesizes and builds on that literature by describing a novel framework for characterizing, analyzing, and structuring authority across public institutions. Drawing on examples from a range of jurisdictions, it highlights the value of this framework in identifying the values tradeoffs that should drive policymakers' decisions to choose among competing structural alternatives. The framework is founded on two important points. First, inter-governmental allocations of authority can be structured along three different dimensions. Failing to appreciate the existence of, and differences among, these dimensions can prompt misassessments of the reasons for existing regulatory failures and selection of structural allocations that do not suit the problems intended to be addressed. Second, allocations of authority can, and in many cases should, vary for disparate governmental functions. Differential functional allocations of authority can minimize obstacles to needed structural reforms and tailor inter-governmental relations in ways that best promote chosen regulatory values, such as efficiency, effectiveness, and accountability, as well as how allocational choices may and perhaps should vary depending on the governmental function being performed. Finally, the article suggests how future regulation and governance scholarship can harness this emerging framework to help build a body of empirical evidence upon which policymakers can draw in future regulatory design endeavors.