For law students ready to chase their dreams VOL. 4 | ED. 3
October 10, 2016
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LAWYR.IT TEAM Executive Editor Raluca Alexandra Maxim (Babeş-Bolyai University)
Managing Editor
Assistant Managing Editor
Radu Șomlea (Central European University) Alexandra Mureșan (Babeş-Bolyai University)
Junior Editors Adina Ionescu (Babeş-Bolyai University) • Angelika Mavrommati (Aristotle University of Thessaloniki) • Cătălin Sabău (Babeş-Bolyai University) • Diana Lucaciu (Babeş-Bolyai University) • Krisztina Petra (Eotvos Lorand University) • Maria Cojocaru (Babeş-Bolyai University) • Oleksandr Zablotski (University of Vilnius) • Raluca Andreea Trîncă-Găvan (Babeş-Bolyai University) • Răzvan Boștinaru (Alexandru Ioan Cuza University) • Simona Elena Ignat (Babeş-Bolyai University)
PR Managers Andrea Nikolic (University of Belgrade) • Andreea Lucaci (University of Bucharest) • Andreea Neșu (Babeş-Bolyai University) • Dora Maria Demble (University of Vienna - Juridicum) • Marek Tesar (Masaryk University) • Maria Belevoni (Aristotle University of Thessaloniki) • Paula Alexandra Ungureanu (Alexandru Ioan Cuza University)
Legal Researchers Adam Nagy (Central European University) • Ana Maria Paponja (University of Mostar) • Angeliki Tsanta (Aristotle University of Thessaloniki) • Daniela Ghicajanu (Babeş-Bolyai University) • Fotis Kokkinis (Aristotle University of Thessaloniki) • Georgiana Caramihai (University of Bucharest) • Mădălina Enea (Alexandru Ioan Cuza University) • Naida Softic (University of Sarajevo) • Rucsandra Grigoroaia (Alexandru Ioan Cuza University) • Sabina Aionesei (University College London) • Zvijezdana Markovic (University of Banja Luka) • Sarka Silhankova (Masaryk University) Disclaimer: Given that Lawyr.it is a fully student-run magazine, nothing from its pages should be understood as legal advice of any kind. Any questions about legal assertions, conclusions, sources used or representations made in these pages will be re-directed to the person who made them. If you do want to get in touch with one of the authors, please write to us at editors@lawyr.it at any time.
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EDITOR'S NOTE By Alexandra Muresan
While most of us, students, might still be dreaming about summer, there is
very little time to get nostalgic, as a new academic year has just started. Lawyr. it has been part of your academic journey every year since its founding and this time is no different. As usual, we bring out our autumn edition, the 12th issue of Lawyr.it, just on time to make sure that switching from holiday mood to studying is done in a smooth and fun way. Because this season is excellent for making plans for the new academic year, our well known section of Briefing comes packed with opportunities. From conferences and winter schools to internships, there are plenty of choices no matter the area of your interest. Furthermore, if you are passionate about legal writing and you are also interested in the Brexit subject, there is an open call on this matter organised by the Durham European Law Institute and Global Justice Durham. Our Domestic Focus section features an article focused on the Romanian civil procedure, presenting some particularities and interesting facts about the acts of disposition of the parties. The problems outlined in this article are of interest not only to students, but also to practitioners, as the subject is still surrounded by controversy. We have included, in the International Focus section, an article that highlights some issues regarding children asylum seekers in Greece, by making a thorough presentation of the international standards that should be applied in such circumstances. The article focuses, as well, on the situation of unaccompanied migrant children who are living in detention in Greece and offers some possible solutions to it. For the contract law enthusiasts and not only, the other article from our International Focus section deals with the issue of recovering legal costs under the United Nations Convention on Contracts for the International Sale of Goods. You can also read, in our Reflections section, two articles: the first one aims to present the impact of legislation and case law on the process of implementing EU Law, giving some relevant examples for the Romanian system, while the other one concentrates on the compatibility between the values of the EU and the ones promoted by the current leadership of Turkey. In addition, this issue covers in depth probably the most discussed subject of summer – the Brexit, through a report about the possible consequences of Britain’s withdrawal from the EU, as well as through the debate from the Devil’s Advocate section, which explores the pros and cons of considering referenda viable as democratic vehicles in our century. Last but not least, you can find out what students have answered to this edition’s Question of the Issue, namely ‘What is the most stereotypical saying you have heard about studying/practicing law that is completely untrue and how would you address it?’ As we are marching toward the end of the fourth year of Lawyr.it, we would like to kindly thank our readers and supporters for contributing to the growth of our project! Moreover, we are happy to announce that we will expand our team soon, by launching an open call for the positions of editors, legal researchers, and PR managers. Therefore, we invite law students to submit their applications at editors@lawyr.it by October 31. On behalf of the Lawyr.it team, I would like to wish you a great academic year, with lots of daring goals and many accomplishments! Enjoy the read and happy Lawyring! 4
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IN THIS EDITION Briefing The Brexit process, a novelty for the European Union (p.8) Opportunities for law students: what’s next (p.12)
Domestic Focus Acts of disposition of the parties in Romanian civil proceedings (p.16)
Reflections Turkey between Islam and European Union (p.24) Legislative or Jurisprudential Influence of EU Law over National Law when the Courts and the Administration Implement EU Law (p.31)
International Focus Unaccompanied Migrant Children in Greece (p.40) Can legal costs be recovered in subsequent proceedings under the United Nations Convention on Contracts for the International Sale of Goods (CISG)? (p.44)
Question of the Issue What is the most stereotypical saying you have heard about studying/practising law that is completely untrue and how would you address it? (p.52)
Devil's Advocate In light of the Brexit, are Referenda viable as democratic vehicles in the 21st century? (p.56)
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BRIEFING
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BRIEFING The Brexit process, a novelty for the European Union
The European Un-
ion (EU) has been created and evolved as a strong politicoeconomic union, designed to put together the powers of the Member States through a system of supranational and Georgiana Caramihai intergovernmental decision making (CIA - The World Factbook). However, in order to reach those goals, it was necessary for each of the Member States to make some sacrifices as far as national sovereignty is concerned, in favour of common decisions that involved all Member States. In recent years, however, euroscepticism has increased in some areas. In the United Kingdom (UK), the diminishment of national sovereignty, mentioned above, as well as a certain amount of distrust in the EU institutions and the fact that a significant part of the population was unhappy with the way the EU handled the economic issues that have been developing for almost a decade (Mauldin, Forbes 2016) were some of the reasons that led to the political decision to host a referendum in June 2016 at national level, in order to decide whether or not UK would leave the EU. On June 23, 2016, 51,89% of the voters decided to leave.
erendum mentioned above and the way the UK could leave the EU, from a judicial point of view. The process, generally referred to as “Brexit�, will be explained through the lens of Article 50 of the Treaty on European Union, while analysing the processes that could take place, as well as their consequences. A series of consequences unveiled quickly after the referendum, not only at national level, but in international relations as well, as Brexit had significant consequences for the international economy, and will likely impact trade, immigration and, to a certain extent, for the relationship between states. A significant element is, for instance, the fact that Scotland and Northern Ireland decided against leaving the EU (Kirk, Dunford, the Telegraph 2016) through the referendum, which might lead to internal disputes, as it will be explained below. From a judicial perspective, Brexit had two major consequences: the first one concerned whether or not UK should actually leave the EU following the referendum, as many have quickly pointed out that it was not legally binding according to the national law. That point was also made in an open letter signed by more than 1000 lawyers and addressed to the Prime Minister David Cameron (Yeung, the Independent 2016). Since the referendum is not legally binding, the Parliament has to pass the necessary legislation in order to leave the EU (Wheeler, Hunt, BBC 2016).
Based on that, the purpose of the present ar- While both pros and cons of actually acting on ticle is to analyse the consequences of the ref- the referendum have been discussed at length 8
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(see, for instance, Foster, Express 2016, and Siddique, The Guardian 2016), it was decided to respect its result, and consequently, the decision of the majority of the citizens - which leads to the second major consequence, related to the fact that it was the first time when Article 50 of the Treaty on European Union would be used. Article 50 allows a Member State to notify the EU of its decision to leave the Union and obliges the EU to negotiate a ‘withdrawal agreement’ with that state (Ruparel, Open Europe 2015). The steps described in the article can be summarised as follows: firstly, any Member State that wishes to leave the EU must notify the European Council. As a consequence, the European Council will negotiate an agreement with the State, which should comprise the framework of its future relationship, in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. The agreement must be negotiated on behalf of the EU by the Council, which votes on a qualified majority, after obtaining the consent of the European Parliament. When the agreement enters into force, or two years after the official notification was made, the EU Treaties will stop being applicable to the withdrawn State – unless the European Council and the Member State unanimously decided to extend that period. Another important point to remember is that the member of the European Council and of the Council representing the withdrawing Member State will not be allowed to participate in the EU discussions concerning it, as well as its withdrawal. Moreover, if the state later wants to re-join the EU, the request will be subject to the general procedure of admis-
sion, referred to in Article 49 of the Treaty. Thus, based on process explained above, there are a few conclusions that can be reached: firstly, even after the Member State decides to leave the EU, it is still obliged to respect the EU laws during the negotiation period – the only difference being that it would not participate in internal EU discussions and decisions regarding its own withdrawal. Consequently, there will be no rapid changes as far as the UK’s legislative situation is concerned, which, while it might seem counterintuitive taking into account the reasons for which UK decided to leave the EU, might actually be beneficial to the state. That is because, if there is no transition period, the UK would need to quickly legislate on all the issues that are now governed by EU provisions. Taking into account the importance of this change, it would be wiser to take enough time to create an action plan – which can be also done during the two years of negotiations, based on the content of the agreement with the EU. As far as the negotiation is concerned, the need to have the agreement of the European Parliament, as well as of the European Commission, who takes part in the discussions, means that reaching a compromise might be more time-consuming than anticipated – but it is, nonetheless, in the best interest of both parties, as it will be explained below. It is also important to note that, if the final agreement refers to policy areas within the powers of the Member States, such as elements referring to services, transport and investment protection, the document shall become a ‘mixed agreement’ and require ratification by every national parliament of the Member States (Ruparel, Open Europe 2015). On the
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BRIEFING other hand, as far as the treaties are concerned, they might also have to be modified in order to reflect the UK departure, which will lead to the need to involve all Member States in the process. (Ruparel, Open Europe 2015).
above can be considered counter-intuitive and unlikely, unless it is proven to be absolutely necessary. Regarding the possible difficulties in reaching an agreement between the UK and the EU, while the number of parties involved might lead to difficult negotiations, taking into account the interest in reaching an agreement which avoids the imposition of tariffs on the export of goods to the UK, which is one of the greatest export markets, it is unlikely that there will be difficulties in reaching acceptable terms for both parties (Lawyers for Britain, 2016). As far as the UK is concerned, while there were reasons that urged it to leave the EU, it is unlikely that its interest is to stop any kind of relationship with it – the agreement will likely try to keep a certain type of cooperation which will be advantageous to both parties. It is believed that UK will be allowed to remain part of the European Single Market if it continues to allow EU nationals the right to live and work in the UK. Despite the fact that continuing trade is something that both parties desire, immigration might be a difficult point to negotiate (Wheeler, Hunt, BBC 2016).
An interesting approach that can be discussed is that there is no obligation for the UK to take part in the negotiations – as Article 50 obliges only the EU to propose a negotiation, not the withdrawing Member State (Ruparel, Open Europe 2015). Consequently, in theory, it is also possible that the UK leave the EU without taking part in the negotiation period, but it is unlikely for this to happen –as it will lead to a lack of the two year transition period, which will mean, as explained above, that the UK will need to legislate immediately on a lot of issues that apply to it. Moreover, that would also mean that it would be unlikely for the UK to sign a preferential trade agreement with the EU (Ruparel, Open Europe 2015), which would profoundly damage its economy. However, this will not be the chosen method by the UK, as the prime minister already declared that article 50 will be the way to leave. The UK is also the party can control when the two year period starts, by choosing the date when it The last essential element that is going to be gives notice under Article 50(2). discussed in the present article is related to the As far as the possibility to extend the two- possibility of the withdrawn state to re-join year period is concerned, while it is theoreti- the EU. Even though this is unlikely to happen cally possible, if the negotiations do not end in in the case of the UK as a whole, taking into the originally set timeframe, doing so would account that Scotland and Northern Ireland mean that the UK will have to continue paying voted against leaving the EU, it is possible that taxes to the EU budget. As well, the UK will they might want to re-join it at a certain point. have to respect the restrictions on its freedom Many theories on this issue have appeared of action imposed by the European legislation since the referendum – regarding the pos– which were reasons that it left the EU in the sibility that Scotland remain in the EU, even first place, so extending the period mentioned after Brexit (see Douglas-Scott, the Guardian 16 10
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2016), or the possibility to leave the UK (see Ramaswamy, The Guardian, 2016), but this debate exceeds the purpose of the present article. However, it is important to know that, if any withdrawing state would like to re-join the EU, the procedure is as complex as for any state that would like to join it for the first time, as described in article 49. Thus, the decision to leave the EU is permanent, and being a former member of the Union is not taken into account.
Are you a law student, looking for new opportunities? It’s time to apply for the role of Junior Editor!
Concerning the steps that have been made so far regarding Brexit, Article 50 has not yet been triggered, which means that the process described above has not started yet. After the Brexit vote, Prime Minister David Cameron resigned – leaving the new Prime Minister, Theresa May, the task to do that. On the EU front, Michel Bernier, former French minister, was selected to lead the negotiations with the UK. Meanwhile, Scotland First Minister declared that it is democratically unacceptable for the country to leave the EU when it voted to remain, which is why it is highly likely that a second independence referendum for the country will take place (Wheeler, Hunt, BBC 2016). To conclude, since it is the first time that a country ever decided to leave the EU, the consequences of such an action are yet unknown – it is clear nonetheless that it will greatly impact not only international relations, but also economy, trade, and many other factors.
By Georgiana Caramihai
Send your application at editors@lawyr.it by October 31! Details on www.lawyr.it
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BRIEFING Opportunities for law students: what's next November November 10: ‘An Administrative Procedure Act for the EU?’ Conference The Faculty of Law and the Centre for European Studies at Lund University in cooperation with the Swedish Network for European Legal Studies are organising a conference addressing the Model Rules on for EU Administrative Procedure put forward by the EU-wide Research Network on European Administrative Law (ReNEUAL), highlighting Nordic constitutional and administrative law values in the EU Law context. To attend, please email doctoral candidate Torvald Larsson, LL.M., torvald.larsson@jur.lu.se and register free of charge. November 26: NILS Winter School on International Dispute Settlement
translating across disciplines; global law as a translation project; court interpreters. Interested parties are invited to submit anonymous manuscripts of no more than 10.000 words, complying with the OSCOLA citation system via http://tilr.edmgr. com/. The issue will primarily focus in law and humanities, but other disciplines are also welcome. December 31, 2020: Islamic Development Bank: Young Professionals Programme The Union Internationale des Avocats organises the 7th International Jacques Leroy Prize – Business and Human Rights, which focuses, this year, on, the impacts of climate change on Human Rights and on the solutions companies offer. Law students under 30 are encouraged to The Young Professionals Programme enables young graduates to help the Islamic Development Bank (IDB) Group to reach its objectives, while receiving essential work experience through the IDB Group’s various activities. In order to do so, participants will be split into three rotations of 9 months each in IDB Group departments. They will be remunerated, as well as transportation, living, housing allowance and medical coverage. The deadline for application is on December 31, 2020. The programme will take place in Jeddah, Saudi Arabia.
The Network for International Law Students (NILS) organises a Winter School for law students, on the topic of International dispute settlement. It will be comprised of nearly 25 hours of lectures on Conflict of Laws, International Commercial Arbitration and International Investment Arbitration, as well as touristic programmes designed to help foreign participants to discover India. Participants might also be provided with prizes or internships On-going opportunities for their work, based on the collaborations between NILS and different law firms or legal organEuromun 2017 izations. The winter school will take place NovemThe Model United Nations conference Euromun ber 26 – December 4, 2016. will take place April 26-30, 2017 in Maastricht and December will host simulations of UN, EU and NATO committees. The committees include the European December 15: Tilburg Law Review Call Parliament, EU council, UN Security Council, UN for Papers: ‘Translating Law’ Economic and Social Committee, General AssemTilburg Law Review (TiLR) invites article submis- bly 2nd Committee, NATO North Atlantic Counsions for its fall 2017 special issue on ‘Translating cil, African Union Assembly, UN EnvironmenLaw’, including topics such as translations between tal Program, UN Global Compact, UN Human legal languages, legal cultures; the right to trans- Rights Council, World Bank and WHO Assembly. lation; translating legal fictions, legal metaphors; Interested applicants have to submit a motivation letter along with their committee and country 16 12
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preferences. Participants can also opt to take part ing for EU Membership, belong to the European in a Brussels city trip, May 1-4, where they will Economic Area or have connections to the Eualso have the possibility to visit EU institutions. ropean Union to sign up for the position of EST Ambassador. The chosen participants will responInternational Tribunal for the Law of sible with promoting the EST in their countries, the Sea Legal Office Internships as well as organising different events and building The International Tribunal for the Law of the Sea a network of contributors among students. Canin Hamburg offers approximately twenty intern- didates should excellent English knowledge, as ships each year for young government officials or well as good written, verbal and social skills and students who have completed at least three years be familiar with the higher education system of of university studies and are able to contribute to the country that they will represent. Ambassadors the work of the Tribunal in fields such as the law of must also currently live in the country they reprethe sea, public international law, international or- sent. ganisations and international relations. Interns of Internship at the United Nations Office the Legal Office are expected to carry out research on Drugs and Crime on a variety of legal issues and prepare memoranda and reports. Interns are not paid, unless The United Nations Office on Drugs and Crime funding is awarded from the Trust Fund. To apply, selects unpaid interns on an ad hoc basis. The goal candidates must submit a completed application of the Programme is to offer students from differform, attaching their résumé, grade transcript or ent academic backgrounds a practical experience list of courses taken and, if available, a brief sam- through work assignments within the internationple of research work in English or French. Intern- al environment of the UN. In order to apply, stuships usually cover a period of three months, from dents must be enrolled in a graduate or postgradJanuary to March, April to June, July to September uate university and be available for a minimum of and October to December. The deadline for ap- two months. Applicants must also be fluent in at plications for the January to March internship pe- least one of the working languages of the United riod is on September 30 of the previous year, while Nations. The internship will take place in Vienna. applications for the April to June period must be Internships at the Organisation for Sesubmitted by December 31. curity and Cooperation in Europe DELI Call for Papers on Brexit The OSCE is offering unpaid internships from one Durham European Law Institute (DELI) and Glob- to six months to young people interested in workal Justice Durham invite academics, practitioners, ing in the organisation’s sphere of interest. Interns researchers and advanced students with an inter- can work in one of their offices in Viena, Warsaw, est in any field of EU law to submit contributions Prague or the Hague, as well as with the OSCE’s of 1500 to 3000 words examining all aspects of the missions in Albania, Armenia, Bosnia & Herzerecent decision by the British people to leave the govina, Croatia, Kosovo, Serbia, Montenegro, European Union. Submissions can be emailed to Ukraine. Candidates must be in their last year of Andreas Georgiou at andreas.georgiou@durham. studies, or fresh graduates, and must speak Engac.uk and Tom Sparks at t.m.s.sparks@durham. lish fluently. The age limit is 30. ac.uk and will be published on the DELI Blog on a rolling basis. More opportunities can be found on www.lawyr.it, Become an EST Ambassador in the Opportunities rubric. The European Student Think Tank Association By Georgiana Caramihai and invites youth from EU Member States, as well as from European countries that are currently applyAngeliki Tsanta 17 15 13
DOMESTIC FOCUS
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DOMESTIC FOCUS Acts of disposition of the parties in Romanian civil proceedings
Overview This article focuses on a comparative analysis, in the light of the principle of availability, of some civil procedural law institutions, particularly important in the economy of a proceeding for Ruxandra Adina Gingărașu the parties involved. It shall consider the acts of disposition of the plaintiff and the defendant presented in an antithesis. The purpose of this paper is to present the advantages and disadvantages of each institution as well as the implications for the parties of a civil proceeding. Introductory Notes
of the paper will present in a subjective note and will emphasize the usefulness of the discussion related to choosing an act of disposition. Main concepts The New Code of Civil Procedure does not provide a definition of acts of disposition of the parties in the civil proceeding. The doctrine first classified the acts of disposition of the parties and subsequently provided a definition. According to an author’s opinion: “the acts of disposition are: the divestment (plaintiff ’s waiver), the acquiescence and the judicial settlement. These are acts of will of the parties on individual rights (claims) deferred to the judge or procedural means by which rights may be recognized or enforced”. (Boroi, Stancu, 2015, p. 534.) According to different legal literature sources, it is generally accepted the idea that the acts of disposition are a set of means which provide both parties legal weapons to start/finish the judgement without any restriction. (Durac, Cărpușor, 2015)
The plaintiff ’s acts of disposition shall be compared: the withdrawal (Art. 406-407 New Romanian Procedural Code), the waiver to claim (Art. 408-410) and the defendant’s acts of disposition, judgements delivered based on acknowledgement of the claim (Art. 436-437). Both parties The legislature has not opted incidentally for have also the option known as the acquiescence this arrangement since the doctrine prior to the to the judgment (Art. 463-464). new code admitted that the initiator of the civil proceeding may end the civil proceeding under First of all, the definition existing in legal legcertain conditions. This capacity is a purely poislation of each institution shall be considered. testative right, assimilated to a procedural inciSubsequently, the main similarities of acts of dent that makes the judgment nugatory. In other disposition of the parties shall be outlined. The words, it speaks of a waiver of the claim deferred third section will be devoted to the differences before the court. between the plaintiff ’s and the defendant’s possibilities to end the civil proceeding. The last part In contrast, in light of the principle of equality 16
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of parties in the civil procedure, the defendant is conferred this right as well. The possibility of acquiescing to the plaintiff ’s claims is a mechanism by which the person sued can stop a civil proceeding it no longer wants. In other words, unlike the procedural incidents based either on the plaintiff ’s will or on the passivity or negligence of the parties (suspension and superannuation), the acts of disposition of the defendant are rather an explicit or implicit acknowledgement of the plaintiff ’s claim.
If the client is present to the scene and has no reaction, the judge can assume that this a legal statement that should be taken into account? Some authors believe that it may be possible. (Tăbârcă, 2013, p.431) One argument provided is that, the presence of the client covers any additional formal defect. However, others believe exactly the opposite. (Chis, Zidaru, 2015, p.186). They assume that it is mandatory an authentic paper from the client in order to invoke any act of disposition. Moreover, they explained that even the legal agreement/ contract closed between the The withdrawal has been defined by the doctrine client and the attorney it is not enough for the as: “a unilateral act of disposition by which the judge to accept the verbal statement and as a conplaintiff expresses its willingness to withdraw sequence, to end the judgement. (Chis, Zidaru, such proceedings” (Leș, 2005, p. 825). 2015, p. 186). The waiver of the right is a prerogative of the plaintiff, “an act of disposition with adverse effects for the plaintiff, as it waives the subjective right deferred before the court.” (Leș, 2011, p. 518) During years of research, scholars have classified the acquiescence as a “procedural act of disposition which can take place under two forms: the acquiescence to the plaintiff ’s claims or the acquiescence to the judgment.” (Baias et all, 2013, p. 1049)
The Main Similarities and Differences Similarities
First of all, as noted above, the four categories are subsumed to the acts of disposition. Second of all, in principle they are procedural, unilateral, unconditional acts, genuine potestative rights. As acts of disposition, the fulfilment of substantive and procedural conditions is required. For instance, in the context of representation, where the plaintiff wishes to terminate the case, in acControversial facts cordance with Art. 406 para. (2), the request is made in person or by representative with special Lately, in the legal literature there have arisen power of attorney. some discussions on the following topic. Scholars have imagined the next hypothesis which links It is clear that in the case of waiver of the right, two different problems: the waiver of the right things are likewise as though the text of Art. 408 and the limit of representation when it comes to does not expressly provide it, paragraph 3 is conan attorney. clusive in this regard. It requires the plaintiff to submit the waiver before the court verbally or by So what happens if the attorney makes a verbal authentic instrument. In our opinion, in case of statement during judgement without having an the procedural representation, a special power of authentic paper from the client in which he de- attorney is required either for attorney or anothclares that he understands to finish the judge- er representative. Submitting the contract of legal ment by using the plaintiff ’s waiver of the right? assistance in original is not enough.
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DOMESTIC FOCUS Furthermore, according to Art. 436 once the defendant acknowledges the plaintiff ’s claims, the court delivers a partial judgment. Again, the legislature does not clearly show the rules affecting the representation but it is necessary to refer to the general rules of representation. As such, according to Art. 81, all acts of disposition of the parties cannot be made by the representative but under a special mandate or with the prior approval of the court or the competent administrative authority. Another similarity arises from the exercise of these procedural documents: either verbally at the hearing or in writing in the form of a request. It is obvious that regardless of the method chosen, the parties’ statement will undergo a procedural act in written form. First, if the plaintif takes into account the possibility to withdraw the right during judgement, the clerk will automatically incorporate his verbal statement in the preparatory court decision. Therefore, the preparatory court decision is a genuine authentic document. As for the effects of the court order, Art. 435 requiring the compulsoriness and enforceability of a court order is applicable. In short, a court order, either not final or unenforceable, shall take effect between the parties and their successors. However, the judgment shall remain enforceable against any third party, non-participating in the proceeding.
with the review and appeal for annulment. However, the legislature chose to keep the remedy of the second appeal when it covered all the procedural incidents. The defendant’s acquiescence and the parties’ transaction have the same legal status in the matter of remedies. Moreover, according to Art. 406 para. (5), Art. 409 para. (2), in the case of withdrawal or waiver of the right claimed, if the withdrawal takes place at the appeal or in an extraordinary remedy, the court rules the annulment of the judgment or judgments delivered in the matter. Regarding the acquiescence, in principle there is no special treatment. Thus, according to Art. 437 para. (2) if the acquiescence was made before the court of appeal then the first-instance judgment will be cancelled accordingly. One may note that the acquiescence cannot intervene in the extraordinary legal remedies as provided expressly for the discontinuance. Major differences In this part of the paper I will analyse the main differences existing within each institution. As for the form of the acts of disposition, it is necessary to make the following clarifications. The withdrawal can be made either verbally or in written form. The legislature has not felt the need to make further clarification on the written request. Consequently, the provisions of Art. 148152 of the general part apply.
Another similarity is the remedy which may be exercised in the event of a judgment given by the The waiver to the right claimed has a special stacourt. The parties have the second appeal, both tus in this matter. Art. 408 establishes the requifor discontinuance and acquiescence. site of the authentic form. It is necessary for the plaintiff to appear before a notary public or beInterestingly enough, the ordinary way of second fore the court and be informed about the derivaappeal is not present under the new code, being tive effects of this act. replaced by the appeal. Thus, the second appeal has become an extraordinary means of remedy In summary, the establishment of the authentic 18
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form is sensible when wanting to waive the right as upon exercising this right, the plaintiff will be unable to introduce a new proceed for summons on the same subject against the same parties. Also, if we are to analyse the provisions of Art. 436-437 on the defendant’s acquiescence to the plaintiff ’s claims, one shall notice the following: the defendant may recognize the claims brought before the court through interrogation and voluntary confession. Apparently, this is exclusively before the court.
the summons, the proceeding ends without serious implications. Conversely, if the withdrawal occurs after the notification, the plaintiff may be required to pay trial expenses incurred by the defendant. Moreover, after the first hearing, the withdrawal takes effect only if accompanied by the defendant’s express or tacit consent. The waiving of the right claimed may occur at any time during the trial, including appeals.
However, part of the doctrine revealed that “as for the acquiescence form, the law does not contain explicit provisions so that it can be made verbally before the court and in writing by private deed.” (Boroi, Stancu, 2015, p. 541).
The utility of the discussion resides in the fact that the plaintiff must consider well what it will choose to do. Although the waiving of the right seems more advantageous as it is not conditional on the defendant’s consent, however, once the request accepted, the question of another trial is impossible.
Unlike the above, the acquiescence to the judgment is itself a judgment which the defendant chooses to comply either expressly or tacitly. When choosing to abide by it expressly, the methods are: authentic document or verbal statement before the court. In conclusion, we note that the documents annulling a right are those providing for additional conditions in terms of form.
Alternatively, the withdrawal may sometimes be inappropriate, especially in terms of bearing the costs. Moreover, the defendant must be summoned for the first trial date so that the waiver can operate thereafter. Moreover, the form required by the legislature informs the plaintiff that if it chooses to submit a document, it must be authentic.
The waiver of the right claimed and acquiescence to the judgment are two examples that have important implications in conducting the civil proceedings. On the contrary, the withdrawal and acquiescence to the plaintiff ’s claims does not seem to be so demanding on the form. One thing is certain, if the plaintiff is still in the statute of limitation, it may reintroduce a new application for summons. As for the limit procedural time when such powers may be exercised: the withdrawal at a different time from other acts of disposition.
From the perspective of the plaintiff, the acts of disposition cannot be exercised on a discretionary basis, therefore in order to avoid any abusing requests, the legislature chose to provide expressly the conditions whereby the withdrawal becomes effective. When reviewing the defendant’s acts of disposition, one may ascertain: under Art. 436-437, the defendant may acquiesce to the plaintiff ’s claims at any time during the trial, including during the appeal.
First of all, if the plaintiff withdrawals within the Acquiescence to the judgment may intervene regularization stage but before the notification of only once the court has ruled the judgment. As 19
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DOMESTIC FOCUS a rule, it is not conditional. By exception, when conditional, it only produces effects if accepted expressly by the opposing party. The procedural time is another key element in the economy of articles 462-463. Either the party has exercised a remedy, or it waives in advance to a remedy it could have used.
defendant admitted at the first hearing, by summoning the parties, the plaintiff ’s claims, it shall not be required to pay the trial expenses. If the defendant was in default, then this benefit becomes inapplicable.
Ending the proceeding in an incipient form is an incentive for the defendant when it is not in The utility of the discussion resides in establish- default. The institution proves to be beneficial in ing whether a certain remedy was waived subse- the context of trial expenses. quently the court decision or the proceeding was withdrawn. It is also beneficial in terms of trial We note once again the scope of Art. 8, namely expenses. the equality of the parties in the civil proceedIn the case of waiving the right claimed, the bur- ing. There is an antithesis between the plaintiff ’s den of costs lies with the plaintiff. In the case of withdrawal and the defendant’s acquiescence to acquiescence to the plaintiff ’s claims, things are the plaintiff ’s claims in terms of trial expenses. entirely different. According to Art. 454, if the
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However, there is a slight disparity between the two parties. If the plaintiff waives the first hearing, then its act is not unilateral. It is dependent on the defendant’s consent, and the trial expenses shall be borne by it or by both parties. If acquiescence occurs at the first hearing, the defendant is exempt from any trial expenses. Behold, the norms on the trial expenses are more favourable to the defendant. Personal opinion
not agree with the plaintiff ’s request to be paid damages as it can prove the refusal of the creditor to receive the payment at the maturity date, then the defendant may request the partial acquiescence. The advantage would be to further continue the proceeding on other claims disputed. In my opinion, the option of acquiescence to the judgment is a hazardous one. If the defendant acquiesces expressly, then the problem is solved. But if the acquiescence is tacit, a series of controversies may arise. Firstly, because the legislature did not expressly provide which are the documents for tacit enforcement. Secondly, because other evidence may appear that could change the fate of the dispute.
The choice of any act of disposition should not be random. The party’s advisor should provide the necessary advice depending on the procedural context. Thus, from the perspective of the plaintiff ’s counsel, I would lean towards the withdrawal when the plaintiff realises the facts are not In this way, the text of Art. 464 para. (2) shows favourable. For instance, its right is not present that acquiescence may be deducted only from acor it has insufficient proofs. curate and consistent acts or facts, however, it is difficult to assess in concreto whether the act is Waiver of the right claimed is a risky choice. First- equivocal or unequivocal. ly, because the decision could not be discussed again under any circumstances. For example, in Conclusions matters of succession if the deceased makes a bequest affected by a particular burden. It transmits A genuine reflection of the principle of availthe property of real estate X, the legatee (the lega- ability, the acts of disposition give the parties the tee is usually a beneficiary who inherits under a power to end the civil proceedings. The definiwill one particular good or a specific part of the tion of each of act of disposition allowed us to inheritance) has the duty of caring for the son of trace the main similarities and differences. We the deceased aged 30 years old suffering from a demonstrated that some are more favourable in locomotor disorder. If the burden accompanying terms of a possible retrial, or that others produce the right is too onerous, then it is better to waive significant effects on the parties’ assets. the right. In this case, the legacy is very random. If the legatee accepts, the payment of all medical Therefore, in this context, the course of private care might be much higher than the value of the justice may be determined by the will of the parproperty, the subject matter of the bequest. ties, and the advisability of such an approach is not the prerogative of the judge. On the other hand, a partial acquiescence to the By Ruxandra Adina Gingărașu plaintiff ’s claim is an optimal solution in some Babeș-Bolyai University, Cluj-Napoca situations. If, for example, several heads of claim have been made and the defendant agrees to repay money arising from a loan contract but does
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Turkey between Islam and European Union
Introduction The matter that I am going to analyse is not only interesting, captivating and omnipresent; it is also delicate and full of controversy. The aim of this article is to establish and clear a bit some asRăzvan-Alexandru Mărginean pects of the foggy situation regarding the following question: does the Islamic religion represent a drawback for Turkey’s accession to the EU, or not?
and followed by citizens, subject to sanctions or legal consequences”. European Union law is a body of treaties, laws and court judgments which operates alongside the legal systems of the European Union’s member states. Whenever there is a conflict between EU law and national law, EU law takes precedence over national law and is binding on all national authorities. 1.2.Religion Regarding the term religion, its meaning, as illustrated by Longman Exams Dictionary (2006), is “a particular system of belief in one or more gods, and all the ceremonies and duties that are related to it”. As the main focus of this article is on the Islamic religion, I will continue by analysing it from an etymological perspective. The word Islam derives from the fourth verbal form of the root slm; aslama – which means obedience, representing obedience to God. Therefore, Muslim is the active participle, “the one that obeys to God” (Eliade M., Culianu I.P., 1993, p. 274).
Religion and law are the two big pillars that guide humanity. In some states, law has the upper hand, but in others, religion is seen as the way life should be lived (e.g. Iran). Either way, it is obvious that the two of them are influencing one another. In the following paragraphs, I will try to explain from my personal view, if, how, where and why Turkey’s religion tends to accelerate the accession to the EU, or to make Tur- 2.Religion in European Union key’s dream fade away by promoting undemoWhen we refer to religion within Europe, we cratic values. ought to say that Europe is a continent which 1.Terminology has been fully Christianised. The end of this process took place in the 10th century A.C. The 1.1.Law and European law Christianisation has fulfilled its aim by relying Before I continue, it is necessary to clarify a few on the principle Cuius regio e ius religio (meanthings. According to Black’s Law Dictionary ing that the ruler’s religion is the religion of the (1968), Law means “That which is laid down, or- entire land). However, this unity had not been a dained, or established; a rule or method accord- peaceful one, nor a long one as it is known. ing to which a phenomena or actions co-exist Christians from Europe are nowadays repreor follow each other; that which must be obeyed sented by the Orthodox-Church (especially 30 24
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Greece, Romania, Cyprus and Bulgaria), the Catholic-Church (for instance, in Spain, France, Portugal) and numerous protestant orientations (mainly in the north). People of other religions, like Judaism and Islam, also represent an important part of the EU’s population. In 2009, approximately 13 million Muslims were living inside the EU I think that it goes without saying that Europe can “foster” different religious orientations even if they tend to have different views. 3.Laws of EU regarding religion It is essential to note that the European Union is a secular organism with no formal connection to any religion. In this regard, the Treaty of the Functioning of the European Union (here and after, T.F.E.U.), at Article 17, indicates that: “1. The Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States. 2. The Union equally respects the status under national law of philosophical and non-confessional organizations. 3. Recognising their identity and their specific contribution, the Union shall maintain an open, transparent and regular dialogue with these churches and organizations.” The European Union considers that the admission of new members is an opportunity to promote stability and prosperity in Europe. As Article 49 of the Treaty regarding the European Union states: “Any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union”. The values that are mentioned in Article 2 are: (1) the respect for human dignity and human rights, (2) freedom, (3) democracy, (4) equality, (5) the rule of law, and (6) the protection of minorities. Also, the treaty emphasises that the Member States share a “society in which pluralism, non-dis-
crimination, tolerance, justice, solidarity, and equality between women and men prevails”. The problem is that even if, in theory, the candidate state proves that its legislation contains such high values, is the reality that needs to speak for itself. For instance, the Socialist Republic of Romania’s 1965 Constitution seemed, in theory, a democratic one, but in reality Romania was a dictatorship. Regarding this issue, there are two more, important articles that we ought to mention. Firstly, article 21 (1) of the Charter of Fundamental Rights of the European Union (hereinafter C.F.E.U.R.) forbids “any discrimination based on any ground such as sex, race, color, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation”. And secondly, Article 23 of C.F.E.U.R. highlights that “equality between men and women must be ensured in all areas, including employment, work and pay”. The same article also mentions that “the principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favor of the under-represented sex”. Unquestionably, the EU pays much attention to gender equality, even going beyond the term equality (in my opinion) when it comes to the “under-represented sex”. This means that it is mandatory for any candidate state to have the same approach when it comes to this matter. 4.Law and religion in Turkey When we talk about Turkey, one of the first things that cross our minds is its religion. Islam represents the main religion in Turkey, dating back to the beginnings of the Ottoman Empire. Freedom of religion is constitutionally proclaimed. However, a University from Istanbul, 25
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REFLECTIONS the Sabancı University, according to the essay Introduction To The Ecological Environmental Sciences Essay (November 2013), conducted a poll which stated that 98.3% of Turks revealed they were Muslim. Of that, 16% said they were “extremely religious”, 39% said they were “somewhat religious”, and 32% said they were “not religious”, 3% of Turks declare themselves with no religious beliefs. However, judging by the Eurobarometer, Muslims represent 94% of Turkey’s population. What about other religions? Turkish Government officially recognises only three non-Islamic religious institutions: the GreekOrthodox Church, the Armenian Church and the Jewish Community. The rest of the population is considered to be Muslim, even though some are non-Muslims. The big majority of Turks are Sunnis, a branch of Islam. This might seem a bit in contrast with what we have seen that the EU promotes.
preceded the actual European Union). On the other side, in May 1976, Turkey becomes a member with full powers of the Organization of Islamic Cooperation (O.I.C.) by approving the Charter of the Islamic Conference. The president of the Minister’s Council, at that time Süleyman Demirel, used the opportunity to make a controversial declaration: “Only the state is laic, not the nation, and Islam is the common ground of the Turkish and Arabian external policy.” (Karl Binswanger, Die Stellung des Islams und des islamischen Rechts in ausgewählten Staaten). Regarding its relation with the E.E.C., Turkey applied for the full membership of the European Economic Community in 1987.
Because of all this, the foreign policy of Turkey must not mislead us into believing that this country has had a linear trajectory following the path of the Western world, but neither the one of 4.1.Historical background Islamisation. It was a hybrid method, a la turca, in which both elements are strong and present In order to make a coherent analyse, a quick reeven now. view of Turkey’s recent history is required. 4.2.Turkey today The Great War (World War I) ended with the destruction of the four big empires: Russian, Returning to the political situation within TurAustro-Hungarian, Ottoman and German. key, starting with the 1960s, a growingly dispute Therefore, under the guidance of Mustafa Ke- between the kemalians (adepts of modernism mal „Ataturk”, the Republic of Turkey emerged. and the followers of Ataturk’s ideology), and the The new country decided to cooperate and to islamics (the ones of the Islamic fundamentalcreate bonds with Europe. Starting with 1926, ists) has started to draw attention. The tendencies the whole legislation has been modified and towards re-Islamisation have become stronger adapted to the European model. Islam has lost and stronger. Threatening events for the laicism its status as the state religion and the Islamic law, of the state took place in the last decade of the Sharia, has only been applied within the cult. 20th century. For example, in 1994, the Welfare Since 1937, the laicism of Turkey has been con- Party (known as Refah Party), a promoter of stitutionally proclaimed. Turkey is a founding the Islam, obtained its first major victory, Recep member of the Europe’s Council, and from 1963 Tayyp Erdogan became the first Islam-oriented it has been an associated state of the European politician who won the mayor seat of Istanbul Economic Community (the organization that after the republic instauration by Ataturk. In 30 26
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REFLECTIONS the next general election (parliamentary), Refah Party was the big winner and its president, Nekmettin Erbakan, became Prime Minister according to a biographical article of the abovementioned politic figure, published by the editors of the Encyclopædia Britannica in 2015. The very quick ascension of this new party was beyond what Turkish secularism could take. The National Security Council recommended the Government to take important measures against the Refah Party. This led to the forced resignation of the Government as concluded in the above mentioned article. After some time, the Refah Party faded due to its orientation, but its rebirth took place soon after, under the name of Virtue Party (known as Fazilet Party). Yet again it was considered to be against the law by the Constitutional Court and banned in June 2001.
tional Court in order to declare AK unconstitutional, asking at the same time that no less than seventy-one people, including the Prime Minister Recep Tayyip Erdoğan and the President Abdullah Gül, to be banned from joining another party for at least five years. These demands were based on the fact that AK had been taking anti secularism measures. The Constitutional Court however, by a small majority, rejected the demands (6 out of 11 ruled in favor, while 7 votes were required), but 10 out of 11 voted that AK Party has become a center for anti-secular activities (see the entire article Ruling party to face closure trial ANKARA, Turkish Daily News).
In 2015, after the new general election, in summer, AK did not manage to win the majority in Parliament, but this was just temporary thanks to the President Erdogan who called a new election after the June election resulted in a hung parliament where coalition negotiations broke Even after this, the Islam promoters did not give down. A new election took place and, eventuup and they formed a new party, the AK Party – ally, AK won the election. Adalet ve Kalkinma, which can be translated as All in all, the AK Party started as a moderate Justice and Development (The editors of Encypromoter of Islam, having learned from its preclopædia Britannica, 2015). The new leader was decessors (Refah Party and Fazilet Party) not to the same Recep Tayyp Erdogan, but this party be a radical one, but instead trying to achieve was different. Their orientation changed to a the power and then slowly implement its own strategy based on economic liberalization and policy. approach towards the EU, stating acceptance towards the secularism of the country and being But what do the citizens say about this? In 2013, much more moderate when it comes to Islam. lasting from May until late September, governAK Party won the parliamentary elections in ment sources estimated that about 3.500.000 2002 and in 2007. people have actively participated in the so-called Gezi Park Protests. Their reasons? Quite many It seemed that they finally found the winning I would say: authoritarianism of Recep Tayyip solution, succeeding in obtaining the power Erdoğan, lack of public consultation, violation and starting to control piece by piece, the entire of democratic rights, media censorship and country. disinformation, use of excessive force by police In March 2008, the Chief - Prosecutor of the Re- Government, policies connected to the Syrian public of Turkey made a request to the Constitu- Civil War, alcohol restrictions, center-periphery 30 28
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dissonance and many more. Twenty two people died, over 8.000 people were injured and more than 4.900 people were arrested according to a report from Amnesty International published on October 2, 2013. However, in this summer, Erdogan was saved from the attempt to overthrow him, by the citizens who forced the army to withdraw. What is more, according to an article published by the Times of Israel, on August 7, more than 1 million Turks, supporters of the AK Party, participated in the pro-unity rally organised by Erdogan.
Commission pursuant to Rule 123(2) of the Rules of Procedure on the 2015 report on Turkey (2015/2898(RSP)) report from 2015, the European Parliament concluded the following: “Is deeply concerned, in the light of the backsliding on respect for democracy and rule of law inside Turkey, that the overall pace of reforms in Turkey has slowed down considerably in recent years, and that in certain key areas, such as the independence of the judiciary, freedom of assembly, freedom of expression, and respect for human rights and the rule of law, there has been a regression moving increasingly away from meeting the Copenhagen criteria to which candidate countries must adhere;”
In the light of recent events, there is no doubt that President Recep Tayyp Erdogan, who is against laicism of the country and is pushing it towards re-Islamisation, has more power than ever and How did the EU reach these conclusions? Ache will try to secure his position. It might ap- cording to a press release from the European pear that Turkey is already a dictatorship. Parliament, from February 13, 2007, each year 600.000-800.000 girls were prevented from go5.Turkey as envisioned by the EU ing to school by their families, or because of loI have talked about the values that EU cares so gistic and bureaucracy issues. This could be remuch about, but how is Turkey meeting these garded as a cause of discrimination of women in Turkey. The European MPs are constantly demands? monitoring the situation regarding the inequalPresident Erdogan stated in a press conference ity between women and men through an annual from November 2014, that men and women report which is created by the European Comwere not equal and referred to the equality be- mission. tween men and women as being “against nature”, according to Agence France-Presse in Is- A few years back, in an International Religious tanbul (2014). This declaration came after EU, a Freedom Report 2007 Bureau of Democracy few years back, had said that the judicial frame made by the U.S. Department of State, Human from Turkey towards women’s rights had been Rights, and Labor, was presented a case where generally satisfying, even though there had been In October 2006, a prosecutor pressed criminal some gaps in this concern, compared to other charges against Hakan Taştan and Turan Topal, countries. The EU had underlined that assuring two (Muslim) who converted to Christianity, for human rights, women’s included, is an indispen- violating Article 301 (“insulting Turkishness”), sable condition for Turkey’s accession to the Eu- inciting hatred against Islam, and secretly compiling data on private citizens for a Bible correropean Union. spondence course. If convicted, the men could In a Motion for a resolution, to wind up the de- have been sentenced to six months to three years bate on the statements by the Council and the in prison. 29
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REFLECTIONS It is obvious that, judging by its actions, Turkey violates article 9 (1) of the E.C.H.R. which states that: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance”.
the chances of Turkey’s accession to the EU? The answer is not that simple. On one hand, Turkey’s religion is not a drawback for the accession to the European Union, simply because the EU promotes freedom of religion, but until Turkey manages to break the Islamic mentality, with all its influence and habits (some of them incompatible with the values promoted by the EU), its accession will be forever just a faraway goal.
Some of the major problems Turkey was facing where also revealed by a National Research on Violence against Women in Turkey published in February 2009 by the Directorate General for the Status of Women regarding violence against women, especially the crimes in the name of honor, domestic violence, forced and arranged marriages and polygamy. The EU claimed that new alliances between the social, civil and religious organizations and the public institutions from Turkey need to be formed in order to sensibilise the population when it comes to violence against women and children.
On the other hand, law and religion are not the only motives of skepticism shown by the EU The refuse to acknowledge the Armenian genocide or the existence of Cyprus and, of course, the security issues (clashes with PKK - The Kurdistan Workers’ Party - and the continuous rising of terrorist attacks) must not be forgotten. In the light of recent events, the politic instability, proven by the latest coup attempt by some members of the military force, is another piece of the jigsaw puzzle that completes the reluctance of the EU towards Turkey along with the appearing radicalisation and the so-called self-suspension of the European Convention of Human Rights. However, Turkey is becoming more and more impatient and EUs’ reluctance appears to annoy Erdogan and make him change the strategy as we have recently seen (e.g. the sudden attempt to reconcile with Russia).
Concerning this aspect, the European Parliament, in a report from 2015 calls on Turkey to eliminate all forms of discrimination or barriers based on religion and concludes that Turkey still has some major problems in keeping a balanced relationship with the non-Muslim Churches. What European Union is trying to say is that Turkey, after making some significant changes and starting to get a sense of what EU wants from it, is in danger of destroying all the progress by being more and more undemocratic and by maintaining the gender discrimination as a natural state, position which derives from some religious beliefs. Conclusion Putting all this together, does really Islam affect 30 30
All in all, I believe that Turkey has a lot to do before it can hope to join the European Union. The stricto senso interpretation of Sharia is only the tip of the iceberg of the change that needs to happen in order to make the EU to seriously take into consideration the possibility of Turkey becoming a state member.
By Răzvan-Alexandru Mărginean Babeș-Bolyai University, Cluj-Napoca
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Legislative or Jurisprudential Influence of EU Law over National Law when the Courts and the Administration Implement EU Law
Introduction A drop in the ocean is believed not to make a difference, but what is an ocean but a multitude of drops? This generic idea can be seen as the base and also the ideal of the European legislative construction Maria Cojocaru which is regarded as an amalgam of regulations and decisions which provide a common base for the states to function properly and to create therefore an environment with a beneficial effect on the evolution of the states and its citizens. European law is much more than a conglomerate of dispositions which provides states with concrete rules. These dispositions should be regarded as guidelines which shape the modern society in order to provide balance. This organism functions extremely complexly because these different types of documents which establish provisions have a various nature which permits them to have a rather unique effect on national legislative order. As it is known, besides the primary sources of European law, secondary sources, which include Regulations, Directives and Decisions, have a mandatory effect on the national legislation, but are still different when it comes to the way they are applied in national order. Those documents provide with dispositions on certain domains which are considered important to be applied homogeneously throughout the states in order
to guarantee leveling in legislation. The principle which underlays this mechanism is called “The principle of Priority of the European Law Over the National law of the Member States” and serves the role of homogenising law of different states which are members of the European Union in order for this structure to function properly (Fabian, 2012) If this was all, the mechanism would look rather utopian and the much wanted homogenisation would not be practically possible. This is why the application of law is considered one of the crucial passes which are extremely important to take, in order for the law to produce the demanded effects. In this complex construction, one of the decisive roles is played by the local administration, which subjected to law, fulfills its content with life. However, as it was explained above, because of the numerous European legislative documents present in the European space order, a correct interpretation is occasionally extremely difficult to provide. In this case, the defining connecting link between law and its appliance is represented by the jurisprudence provided by Court of Justice of European Union (hereinafter “CJEU”), which by its decisions solves the preliminary rulings of national courts, that face the incoherencies between national and European legislation. Its decisions are compulsory for all the Member States and they indicate the right way in which several dispositions have to be interpreted in order to not permit a severe difference in the appliance of European law throughout the states.
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CJEU’s jurisprudence is extremely various and besides stating the fact that European law has priority among national dispositions (Case C-6/64 Costa/E.N.E.L), it has underlined also the fact that in collision with administrative acts European law still maintains its priority (for example, in Ciola C-224/1997). Therefore CJEU stated the obligation of administrative authorities to apply European law with priority even if a definitive decision exists on the disputed matter, such as in the CaseC-453/00, Kuhne & Heitz (Claudiu, 2012). Every decision plays an immensely important role in the correction of the inconsistencies which stop European law from producing effects properly. Therefore its jurisprudence gives to these provisions power to function correctly. As it was explained above, administration is the one which is extremely important in this process. Administration is both close to law, by being the force that applies it, and also close to people by organising them according to the law. I.Relevant Case-Law
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In order to create a legislation which improves the functioning of the society, it is necessary for several values to be identified and protected. Taking into consideration that the consignees of European dispositions are primarily the European citizens, we realise that three defining qualities which have to be respected in the European modern society, are believed to be: (1) confidentiality, (2) freedom, and (3) security. 1.Confidentiality In the modern society, due to a pronounced evolution of the means of communication, an important issue is the one concerning confidentiality, represented by data protection. Recent statistics show that European society is concerned about the protection of their private
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data. According to the Special Eurobarometer 431, published in June 2015, even though over seven out of ten respondents agree that providing personal information is part of modern life, Europeans overwhelmingly believe they should always have the same rights and protections over their personal information regardless of the state in which public authority that is providing the service is established.
by another public administrative body. The subject of this litigation represents the fact that the NAFA transferred data relating to their declared income to the NHI. On the basis of that data, the NHI required the payment of arrears of contributions to the health insurance regime. Therefore, the applicant challenged the lawfulness of the transfer of tax data relating to their income in the light of Directive 95/46. They submitted that the personal data were, on the basis of a single internal protocol, transferred and used for purposes other than those for which they had initially been communicated to the NAFA, without their prior explicit consent and without being previously informed. According to the order for reference, public bodies are empowered, under Law 95/2006, to transfer personal data to the health insurance funds so that the latter may determine whether an individual qualifies as an insured person. The data concern the identification of persons: surname, first name, personal identity card number, address, but does not include data relating to income received.
Also, regarding the question “Should your explicit approval be required before any personal information is collected and processed?” 69% of people answered “yes” in all of the cases, which shows an important demand from people to control their data. One more interesting question concerned the extent to which people trust different authorities and private companies to protect their personal information. According to people’s answers, 24% completely trust medical authorities, while 50% only tend to trust them. Second most trusted institutions were national public authorities (tax authorities, social security authorities) 18% of people totally trust them, while 48% tend to trust and finally the “hall of fame” is concluded by banks and fiThe answer of the Court was of a big interest nancial institutions. and it clearly stated the obligation of public auIn this context, the following decision of CJEU thorities to inform the person whose private against Romanian National Health Insurance information is being transferred. Although the (hereinafter “NHI”) and National Antifraud Law had provisions that permitted the transfer, Agency (hereinafter “NAFA”) is clearly of a cru- it did not include data regarding the income, cial and historical importance in terms of pro- therefore Court stated that “Under those cirtecting this aim. cumstances, Article 315 of Law 95/2006 cannot constitute, within the meaning of Article 10 of In the Case C-201/14 of Smaranda Bara and Directive 95/46, prior information enabling the Others, a reference was addressed for prelimidata controller to dispense with his obligation nary ruling regarding Directive 95/46/EC “Proto inform the person from whom data relating cessing of personal data” in order to underline to their income are collected as to the recipients exceptions and limitations when it comes to the of those data. Therefore, it cannot be held that transfer of personal tax data by a public adminthe transfer at issue was carried out in compliistrative body of a Member State for processing ance with Article 10 of Directive 95/46.” 33
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REFLECTIONS The abovementioned decision is extremely beneficial in order to fight intrusive policies of national administration, which regardless of the fact that such a transfer of information is illegal, has still done it in order to satisfy its interests.
air in Romania, but its application caused numerous disputes whether or not it contradicts European Law on the matter.
More precisely, the citizen who bought the vehicle from a state member had to fulfill a request 2.Freedom to the local administration of finance in order to receive from them a Decision which would state The four fundamental parts of freedom which the concrete value which has to be paid. are inherent for the European space are Freedom of movement for workers, right of estab- Formally, the system of taxation introduced by lishment and freedom to provide services, free OUG 50/2008 did not distinguish between momovement of capital and of course, free move- tor vehicles according to their origin or between ment of goods. Restricting one of those free- the owners of those vehicles according to their doms would equate to reconsidering the idea of nationality therefore this national provision was united Europe itself which could have a massive theoretically in accordance to European law. impact on the people of the state member who CJEU stated that the first paragraph of Article would try to establish such discriminations. 110 TFEU prohibits all Member States from imAll of those freedoms form the European in- posing on products of the other Member States ternal market, a concept which rises mixed internal taxation in excess of that imposed on opinions throughout the citizens of the states. similar domestic products. Therefore, this proHowever, overall, according to the polls of Eu- vision of the Treaty seeks to guarantee the comrobarometer 363 about the internal market it- plete neutrality of internal taxation as regards self, the people who are more thoroughly aware to competition between products already on of the Internal Market are more likely to have the domestic market and imported products, in positive perceptions and acknowledge the ben- order for the internal market to be filled with efits. goods of different states and ensure their free movement regardless of their provenience. Consequently, when answering the question “What comes to your mind when you hear “In- However, it is clear from the documents preternal market of EU?” more than a quarter of sented before the Court that the legislation has the people answered “Trade”, a fact that clearly the effect that imported second-hand vehicles of shows that Europeans are extremely bound and considerable age and wear are, despite the apused to this type of unified commerce. plication of a large reduction in tax to take account of the depreciation, subject to a tax which This is the reason why the following litigation may approach 30% of their market value, while which appeared in Romania was extremely imsimilar vehicles offered for sale on the domestic portant to be solved by CJEU in order to mainsecond-hand vehicle market are not burdened tain this type of unity. by such a tax charge. It is undisputable that, in In this case Government Emergency Order those circumstances, OUG 50/2008 has the ef50/2008 introduced a pollution tax which was fect of discouraging the import and placing in created in order to improve the quality of the circulation in Romania of second-hand vehicles 30 34
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Lawyr.it Legal Dictionary
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SPECIAL GUEST purchased in other Member States.
seems important for the Romanian state because of the fact that people are mostly aware Therefore, it was considered that Order 50/2008 of the effects that VAT has on the purchasing of had an indirect discrimination effect on the the goods. goods which were imported from other Member States and its effects could severely dam- Several problems which regarded VAT from a age the unity and scope of internal market. In rather interesting aspect were brought before the this case the Central administration’s order was Court. Parties signed an agreement where they considered incompatible with the Union’s prin- did not indicate how VAT will be calculated and ciples and once again CJEU underlined the im- after an audit, Ms Tulicǎ and Mr Plavoşin were portance of maintaining the Internal Market found to be taxable people subject to the VAT by free and untouched by national provisions, even the tax authorities, who issued tax assessment though formally the provisions serve a different notices to them, by which they ordered the declared role. payment of the VAT, calculated by adding that amount to the price agreed by the contracting 3.Security parties, plus overdue interest. Security from a legal perspective is regarded as In the course of the proceedings giving rise to one of the most important issues in the EU and Case C 249/12, Ms Tulicǎ argued that the tax this concept includes, in a broad sense, imporauthorities’ practice of calculating the VAT by tant principles which guide European legislator adding that amount to the price agreed by the when creating new provisions. Some of those contracting parties infringed a number of legal important principles are the Principle of protecprinciples, including the principle of contraction of legitimate expectations and Principle of tual freedom. The VAT is a component of the legal certainty. price, not an addition to it. As it is known, in order to guarantee a proper Contractual freedom is vitally important in orevolution of the country, its citizens have to under for the business matters to evolve properly derstand the way it functions and also contribbecause authorities could adopt a rather intruute to its welfare. From this point of view one sive and abusive behavior regarding it which of the most important sources of income for a could influence extremely harmfully the evolustate represents Value-Added Tax (hereinafter tion of local business. “VAT”). Therefore, to the preliminary ruling CJEU anOver eight in ten Europeans consider VAT an swered that the Council Directive 2006/112/EC extremely important source of national revenue of 28 November 2006 on the common system according to the Eurobarometer 424. In Romaof value added tax, in particular Articles 73 and nia, 25% of citizens considered it very impor78, must be interpreted as meaning that, when tant, while 47% fairly important, and approxithe price of a good has been established by the mately the same number of people were aware parties without any reference to value added tax of the low VAT rates in their country. and the supplier of that good is the taxable perIn the light of this information following case son for the value added tax owing on the taxed 36
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transaction, in a case where the supplier is not able to recover from the purchaser the value added tax claimed by the tax authorities, the price agreed must be regarded as already including the value added tax. II.Conclusion The ideas which represent the base of European Union are preserved, at first hand by people from this area because they represent mainly their idea of life and also, culture, but on the other hand, those ideas were slightly adapted by the government in order to create a better collision between states.
Writing has never been easier!
In this way, freedom became the base of the modern democracy which helped people feel citizens of Europe and not just of a particular country by moving or buying any product or service they need regardless of its origin. Security and confidentiality became principles in European legislation which helped people to feel safe against the abuse which could interfere in their everyday life from government or another person. It is easy to observe from the explained cases that CJEU’s interpretation of the national dispositions in the light of European law helps in a decisive manner fight the abusive practices of administration. Therefore, its jurisprudential influence is extremely important in order for the Member States to create a better legislative environment for all of their citizens and each little drop in the ocean must be examined and understood in this context, as every case which is solved by CJEU, helps on a high level to create a unified space for Europeans. By Maria Cojocaru Babeș-Bolyai University, Cluj-Napoca
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INTERNATIONAL FOCUS
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INTERNATIONAL FOCUS Unaccompanied Migrant Children in Greece
Children
migration has become an important phenomenon in recent years. In the European Union, 110,000 children have sought asylum between January and July 2015, among which 12,000 were unaccompanied (UNICEF, 2015, p.1). Salomé Guibreteau While there is a lack of exact data about migrant children in detention, the Global Detention Project reported in 2015 that “child migrants are routinely detained in many countries” (2015, p.18). The practice of detaining migrant children, in addition to having negative consequences on children’s health and development, also violates several children’s rights and state obligations under the Convention on the Rights of the Child (CRC). Greece has ratified the Convention, and has committed itself to give protection to children, with respect for the principle of the best interest of the child. However, Greece does not comply with the standards on the protection of migrant children. This article will focus on the situation of unaccompanied migrant children in Greece, and in particular on the issues of detention and guardianship. Migrant Children Detention: Effects and International Standards
a person below the age of 18 who arrives in a member state without a responsible adult, or who is left without a responsible adult after arrival. These children are often detained in administrative detention, used as a means to regulate immigration, which results in their placement “in closed institutions or settings from which they are not free to leave at will” (The Children’s Legal Centre & UNICEF, 2011, p.59). This deprivation of liberty can induce restrictions on, or violations of, children’s rights, including being held with adults, a lack of access to medical services, to the asylum application procedure, to education, and creates risks of abuse and maltreatment. Moreover, detention can have “devastating effects [] on the mental and physical health of children” (JRS, 2012). In fact, the European Court of Human Rights (ECtHR) has recently found in the case Rahimi v. Greece (2011, para.95) that the detention of migrant children and the failure of Greece to take care of unaccompanied migrant children may amount to degrading treatment in violation of article 3 of the European Convention on Human Rights (ECHR). Concerning international standards, the United Nations Committee on the Rights of the Child and the UNHCR agree that children “should in principle not be detained at all” (UNHCR, 2012, p.34). The best interest of the child
should always prevail over a child’s migration status (Ibid.), and detention should According to the EU Qualification Direc- only be “a measure of last resort and for the tive 2011/95/EU, an unaccompanied minor shortest appropriate period of time” (CRC, 1989, art 37(b)). Article 20 of the CRC also is defined as 40
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stipulates that states have an obligation to provide “special protection and assistance” to children separated from their family, under the form of alternative care.
insisted that detention was an exceptional measure for children and that unaccompanied children should not be detained (AI, 2010, p. 29; Global Detention Project, 2014).
The Greek Situation
The practice of detaining migrant children is all the more harmful when Greece is regarded as having some of the worst conditions of detention for migrants in Europe (Global Detention Project, 2014). In Rahimi v. Greece (2011, para. 86), the ECHR found that the conditions in the detention center in question in this case were so dire that they amounted in themselves to degrading treatment under article 3 of the ECHR, despite the fact that the applicant (an unaccompanied child) had only be detained for two days. Children face bad detention conditions: they are placed in unsanitary and overcrowded detention centers, which lack food and with limited access to medical services (AI, 2016). As noted by the U.N. Special Rapporteur on the Human Rights of Migrants (2016), migrant children are also subject to prolonged detention while they wait to be placed in centers adequate for children. There are limited places available in the few reception centers adapted to minors in Greece; Save the Children reported in 2016 that around 2,000 unaccompanied minors are present in Greece for only 477 shelter spaces available (Tagaris, 2016).
Greek law has developed in recent years to provide more protection for unaccompanied migrant children, including provisions for the examination of their asylum requests by the Greek Asylum Service (Presidential Decree no. 141/2013), and a procedure for determining the age of minors in order to recognise their specific needs, as well as the provision of medical services and psychological support (Ministerial Decision no. 92490/2013). These developments are positive, yet, despite such improvements, Greece still fails to comply with international standards concerning migrant children detention. Article 46 of the Law 4375/2016 provides that unaccompanied children can be detained for up to 25 days, which can be prolonged by 20 days in case of large numbers of arrivals, while they await transfer to children centres. Since the EU - Turkey Refugee deal agreed on in March 2016, Greece started automatically detaining all migrants arriving on its territory, including children (AI, 2016). This does not comply with the requirement that detention should be a measure of last resort. The U.N. Special Rapporteur on the Human Rights of Migrants, Francois Crepeau, reported in May 2016 that some unaccompanied migrant children were “locked in police station cells 24/7 without access to the outdoors for over two weeks and [] some may stay for a month”, and called for alternatives to detention for unaccompanied minors (OHCHR, 2016). Others, such as Amnesty International and the Council of Europe’s Parliamentary Assembly, have also
In addition, the CRC provides that in case a child is separated from his or her family, the state should provide “special protection and assistance” under the form of alternative care (CRC, Art. 20). This means the existence of a system of guardianship that takes responsibility for children and help them access their rights and protection, and go through the asylum application procedures. However, due to the high numbers of arrivals of unaccompanied children, “the guardi41
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INTERNATIONAL FOCUS anship system in Greece is at breaking point” competence, and the availability of re(Beirens & Clewett, 2016). sources, for guardians who are responsible to safeguard the best interests of the child What can Greece do? (OHCHR, 2016). Recent developments in Greek law regardFurthermore, enacting legislation must be ing unaccompanied migrant children are followed by enforcement. Greece suffers encouraging, enormous but Greece needs to do more to be in line migration pressure and lacks resources to with international standards on children’s address the situation. Thus, support from rights and unaccompanied migrant children the European Union can help greatly to endetention. Numerous reports by civil society sure the rights of the CRC for unaccompaand international organizations denounce nied migrant children. Besides developing a lack of ‘ethic of care’ that would consider EU standards on unaccompanied migrant the special vulnerability of migrant children children as part of its asylum policy, the EU over the fact that they are illegal migrants, could provide targeted technical and finanand act in consequence (UNHCR, 2012, cial support to enable Greece to address the para. 52). Greece creates serious risks of viochallenge of child migration. lations of children’s rights by automatically detaining children, sometimes with adults, Conclusion in unsanitary and unsafe detention centAs this article has shown, the migration of ers, for prolonged periods of time, which unaccompanied minors raises issues of child also threatens the right to education. There rights needs to be further amendments to Greek law in order to establish provisions that bet- protection in Greece. Despite international ter protect migrant minors, and specifically, standards and developments in Greek and unaccompanied children. Alternatives to EU law covering unaccompanied migrant detention can be developed, and the capaci- children, in practice, Greece has been vioty of adequate centers for children should be lating children’s rights with the automatic increased. The most basic recommendation detention of migrant children, especially is that Greece should stop arbitrarily and those unaccompanied, and detention has automatically detaining children because of also affected children’s access to their other their migrant status, as this is contrary to ar- rights. Greece needs to urgently correct its ticle 37(b) of the CRC. approach and provide protection to unaccompanied migrant children, but it will need An appropriate system of guardianship is the EU’s support to be able to do so. also key for unaccompanied migrant children. Greece is currently developing proposals for “a more structured system of guardiBy Salomé Guibreteau anship”, and the UN Master in Human Rights, Central European Special Rapporteur on the Human Rights University, Budapest of Migrants emphasised the importance of training and 42
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INTERNATIONAL FOCUS Can legal costs be recovered in subsequent proceedings under the United Nations Convention on Contracts for the International Sale of Goods (CISG)? incurred as a result of a contractual breach. We have chosen the United Nations Convention on Contracts for the International Sale of Goods (hereinafter the CISG) as the substantive framework for this issue, bearing in mind that the findings of this article can potentially be applied within other set of rules on the recovery of damages. 2. Anastasiia Filipiuk
1. INTRODUCTION
Olga Hrynkiv
REGULATORY FRAMEWORK
The world of legal systems imposes different standards for the recovery of judicial-related and extrajudicial costs (Schlechtriem, 2002 and Gotanda, 1999). Extrajudicial costs usually refer to the legal costs incurred before litigation/arbitration, such as attorneys’ fees for issuing debt collection letters or fees for telephone consultations (e.g. Garments case, 2002; Fabrics case, 1997; Memory module case, 2001; Lawn mower engines case, 1996; Flagstone tiles case, 1995). These costs are unrelated to pending proceedings and the general practice is to recover them as damages for a breach of contract under domestic substantive law (DiMatteo, 2014).
Imagine a situation where a seller failed to supply goods under a contract. The buyer applies for interim injunction on goods to prevent their further resale. The buyer wins, but fails to recover judicial-related costs, since according to the applicable national law, each party shall bear its own costs. The buyer wants to recover these costs and later files a claim for damages which resulted from the breach of the contract by the seller - a failure to supply the goods. Would the buyer be able to recover its legal costs incurred in the Judicial-related costs, on the other hand, injunction proceedings as damages in subse- typically include filing fees, witness fees, quent proceedings? transportation expenses, and attorneys’ This is precisely the question this article aims fees incurred during client representation to explore, i.e. whether judicial-related costs, (Gotanda, 1999), and are ‘accessory’ to evewhich were not imposed on a party in breach ry proceeding from which they stem (Jäger, by a court, can be further claimed as damages 2010). Since these costs are closely linked to legal proceedings, their allocation by a court 44
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is usually regulated by domestic procedural or institutional rules, with the exception of Germany and Switzerland, the only two jurisdictions that allow allocation of judicialrelated costs under the substantive law (Jäger, 2010; Zapata case, 2002). The worldwide practice in relation to allocation of judicial-related costs is anything but uniform. The majority of countries apply the ‘English rule’ which requires a losing party to pay for the winner’s reasonable expenditures (Gotanda, 1999). At the same time, the USA, Taiwan, and Japan are in the minority that applies the ‘American rule’, requiring each party to bear their own expenses, no matter who prevails in the dispute (Lovells, 2010). Furthermore, the practice in some countries is to award all recoverable costs to a prevailing party, while other countries allocate them in proportion to a party’s success (Gotanda, 1999). The matter at hand has not been researched much in theory or encountered upon in practice. The key to enabling the recovery of legal costs in subsequent proceedings is viewing such costs through a different lens: as damages caused by the breach rather than as litigation/arbitration expenses subject to cost allocation. In this case, the expenditures that were judicial-related for the purpose of initial proceedings (e.g. injunction proceedings in our hypothetical), are extrajudicial for the purpose of subsequent proceedings (contractual breach proceedings, respectively). This, in our opinion, brings them within the purview of substantive laws and enables their recovery under the provisions on damages, including Article 74 of the CISG. 3.
RECOVERY OF DAMAGES UNDER
THE CISG Article 74, CISG establishes the rules on calculating damages available to an aggrieved seller/buyer. It states that ‘[d]amages for breach of contract by one party consist of a sum equal to the loss, including loss of profit, suffered by the other party as a consequence of the breach. Such damages may not exceed the loss which the party in breach foresaw or ought to have foreseen at the time of the conclusion of the contract, in the light of the facts and matters of which it then knew or ought to have known, as a possible consequence of the breach of contract.’ Therefore, if the buyer wants to recover legal costs from the previous proceedings under the CISG, he needs to establish the following: (1) that there was a contractual breach, (2) that the legal costs at issue represent the loss suffered by the buyer, (3) that this loss was a consequence of the breach, and (4) that the loss was foreseeable for the seller at the time of the conclusion of the contract. Finally, any costs of mitigating the damages (Art.77, CISG) are to be deducted from the resulting sum. 3.1
LEGAL COSTS AS LOSSES
Let us assume that the buyer was able to prove the breach of the contract. One of the crucial issues that arises in this regard is whether judicial-related costs incurred in initial proceedings may be considered as losses within the meaning of Article 74 of the CISG for the purpose of subsequent proceedings. Article 74 does not specify what types of losses are recoverable as damages. This is in line with the drafting techniques of similar instruments in most jurisdictions (Đorđević, 2010). Indeed, 45
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INTERNATIONAL FOCUS as the same author notices, it would be unreasonable and hardly possible to make an exhaustive list of all types of losses that can be recovered. One may thus conclude that, logically, an aggrieved party is entitled to the recovery of any types of losses that they suffered as a consequence of a breach, if the remaining prerequisites for their recovery are met. This conclusion is supported by the prevailing principle of full compensation underlying the CISG, under which a court should aim to put a wronged party in the position it would have been in, had a breach not occurred (Schlechtriem, 2008). This necessarily translates to recouping any reductions in the asset base of an aggrieved party caused by a breach (Zeller, 2005). Thereby, it can be argued that once the court ruled on costs, the ones that the buyer incurred in the injunction proceedings which were not shifted to the breaching seller will have become the buyer’s losses. The buyer may claim them as damages caused by the breach in order to be put into the position of a successful performance of the contract by the seller.
substantive rules on damages, including the CISG. Such an approach would not lead to re-adjudication of the same claim either. The decision of allocating costs does not preclude an aggrieved party from claiming those costs as damages, given that a claim for cost allocation and a claim for damages rely on different causes of action. The former results from the proceedings from which they stem, while the latter results from the breach of contract. This is confirmed by the awards granting judicial-related costs as damages for the breach of arbitration agreement (Union Discount v. Zoller, 2001; CMA CGM SA v. Hyundai, 2008). For example, in Swiss case 4A_232/2013, the tribunal explained that it was not encroaching on the previous court’s decision on cost allocation, but was merely ruling on damages claimed as a result of the initiation of the court proceedings in breach of an arbitration agreement (in the amount of legal costs incurred in the court proceedings). At the same time, it should be acknowledged that res judicata requirements vary across jurisdictions, and there are no internationally unified binding requirements for the res judicata effect of court/arbitral decisions (ILA Interim Report: “Res Judicata” and Arbitration, 2009). It means that whereas a previous decision would most probably not be res judicata in civil law countries, one cannot be as sure of the same with regard to common law countries that operate a wider definition of res judicata (ILA Interim Report: “Res Judicata” and Arbitration, 2009).
Such an approach would not conflict with the domain of domestic or institutional rules on cost allocation. The court allocates the costs incurred as a result of pending proceedings themselves. That is the point at which domestic (mostly procedural) or institutional rules on cost allocation should be considered. The costs of the proceedings which have not been shifted by a court under such rules to a party in breach are extrajudicial for the purpose of subsequent proceedings. In this case, their One more concern raised by such lawsuits is further recovery can be made on the basis of whether or not they violate public policy, as 46
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one may view them as an abusive attempt to evade unfavourable national rules on cost allocation. This view is not ungrounded, given that, if successful, an aggrieved party will be able to recover its legal costs under the CISG, despite not being able to do that under national procedural rules. Allowing such lawsuits may also be viewed as giving an unfair advantage to one party over the other (since only the party that has proven a breach under the CISG would be able to recover these costs), and thus creating anomalies in legal systems (CISG-AC Opinion No.6, 2006). The response to that would be again that a claim for damages to recover legal costs in subsequent proceedings and a claim for cost allocation are substantially different (Schlechtriem, 2008), making it possible for one and the same set of legal costs to be the subject of both. The CISG framework would itself serve as a tool for prevention of any of such abuses, since damages are awarded only if all the elements set forth in Article 74 of the CISG are proven to the satisfaction of a court.
causation considerations. In order to recover any losses, an aggrieved party has to demonstrate that a specific behaviour of the party in breach caused the damages sought after. Different treatment of judicial-related and extrajudicial costs results from the nature of the proceedings themselves: judicial-related costs can exist independently from a breach and their amount will hinge not only on the behaviour of a breaching party but also on the extent of the court’s orders and instructions (Đorđević, 2010). Therefore, according to Professor Jäger (2010), judicial-related costs are not caused by damaging behaviour, but rather by the need to pursue the other damages claimed. While acknowledging that in an ordinary lawsuit, legal costs are not caused by a wrongdoing of a party in breach per se, the link between these costs and a breach may be established firstly, if the proceedings themselves resulted from such breach, and secondly, if the proceedings were necessary for the pursuit of one’s rights violated as a result of a breach. The former includes a breach of specific provisions connected with abuse of process, bad faith and public policy (Jäger, 2010). The latter refers to the cases where an aggrieved party incurred legal costs designed to mitigate its damages (e.g. by safeguarding the performance of contractual obligations) or where the claim was brought by a party in breach.
If there is no uniformity in the area of recovering judicial-related costs in different countries, then it is important to consider the underlying reason for such a difference. The possibility to recover only part of legal costs may be designed to prevent a claimant from pursuing a groundless claim. This goal, however, is not hindered if the judicial-related costs which resulted from a breach will be compensated in order to put an aggrieved For example, in our hypothetical scenario, party in the same position it would have been the buyer has incurred legal costs while apin had a breach not occurred. plying for the interim injunction in order to 3.2 CAUSATION CONSIDERATIONS mitigate its losses from the seller’s breach. If such costs were incurred in fulfilling the Keeping that in mind, we will proceed with 47
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DOMESTIC FOCUS
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party’s duty to mitigate (Article 77, CISG), they may be categorised as incidental losses, recoverability of which is generally ‘beyond debate’ due to the principle of full compensation (Schlechtriem & Schwenzer, 2010).
example, the legal costs which stemmed from the injunction proceedings may be recovered as damages under Article 74, CISG if a court finds that they were incurred in mitigating the damage caused by the breach, and thus have the requisite connection to it, and that 3.3 OTHER REQUIREMENTS they were foreseeable for the seller and reaThat brings us to the issue of whether such sonable under the circumstances. legal costs can be foreseen at the finalisation 4. CONCLUSION of the contract. A breaching party should generally expect that in case of a breach, an In light of the above, we maintain that legal aggrieved party would incur costs in trying costs that are not shifted in previous proceedto re-create the situation of non-occurrence ings, despite originating as judicial-related of the breach (Saidov, 2008). Incurring judi- costs, lose their status as such for the purpose cial-related costs in pursuit of one’s rights is of subsequent proceedings, and thus, do not foreseeable at the time of conclusion of the fall within the scope of rules on cost allocacontract and consequently a part of the un- tion in the subsequent proceedings. These dertaken risk (Schlechtriem, 2008). At the costs may constitute the losses suffered by a same time, certain costs may be considered party as a result of a breach, which enables to be well outside of the foreseeability re- their recovery as damages under the substanquirement, e.g. contingency fees (if they are tive laws, including the CISG. We realise that unknown to the countries of the parties’ ori- this conclusion invites several policy congin, as well as to the country of the seat of cerns, e.g. whether a second claim constitutes arbitration) (Schlechtriem, 2008). re-adjudication of the first one. At the same time, we are convinced that the multiple reArticle 77 of the CISG also requires an agquirements the CISG prescribe for a successgrieved party to take reasonable measures to ful damage claim make the threshold for their mitigate its losses, which directly raises the recovery sufficiently high to ward off abusive issue of reasonableness of the incurred leclaims and award only meritorious ones. gal costs. Reasonableness of judicial-related costs is determined by a court based on all All in all, to answer this question in a negathe facts and circumstances of the case, in- tive fashion may run afoul of the principle of cluding, but not limited, to the need for legal full compensation and the uniform interprework, an average cost of legal services, the tation of the CISG. time spent, and the prospects of success of the case (Corrs Chambers Westgarth, 2014). By Anastasiia Filipiuk and Olga Hrynkiv Therefore, the recovery of judicial-related LL.M. Central European University, costs in subsequent proceedings is within Budapest the realm of possibility, if all requirements of Article 74, CISG are met. In our hypothetical 49
QUESTION OF THE ISSUE
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QUESTION OF THE ISSUE What is the most stereotypical saying you have heard about studying/practising law that is completely untrue and how would you address it?
Since its launch, Lawyr.it has been encouraging our readers and supporters to express themselves, not
only by submitting articles, but also by answering different questions concerning their preferences, challenges, or achievements. This Question of the Issue section dives into some of the most common stereotypes about lawyers. We kindly thank them for their responses and we invite you to find out more in the following!
“I want to become a lawyer so the most stereotypical saying I have heard was ‘It is simple to become a lawyer. The only thing you have to know is how to make a long speech, but also the rules’. But this is so untrue in my opinion. What matters is not how long the speech will be but how good and logical are your arguments, but even then, you may as well know all the rules if you do not have any idea how to apply them.” Delia Ciolea 3rd year, Faculty of Law, Babeș-Bolyai University
“[The most stereotypical thing I heard...] would be that in order to succeed in practising Law your moral principles must be set in stone. And for me, it is the exact opposite. You work with many people who have the most different of backgrounds and problems and having a fixed morality gives you a very narrow perspective on how you should solve them. We are given the chance to be less ignorant every day, and I think that being open and willing to bend your personal beliefs sets you to achieve success and equity.” Georgiana Sas 2nd year, Faculty of Law, Babeș-Bolyai University 52
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“I believe that the most stereotypical saying that I have heard about practising Law is that you should know every single law there is in order to be a good jurist. That is completely untrue in my opinion, but there was a time, before I started law school when I was thinking the same way. People should know that Law school teach us to think, to be humans, to work with humans, not to know the Law word by word.” Ariana Ciociu 3rd year, Faculty of Law, Babeș-Bolyai UniversityCluj-Napoca,
“In my opinion, the most common stereotype I have encountered is that if you are studying Law, you certainly must want to become a lawyer. I think this perception could be easily disrupted if more people would be taught about certain judicial careers or about the judicial system in general. A first step we could take in this direction would be introducing a ‘Judicial Education’ course into our school programme.“ Șerban Hălmăgean ELSA Cluj-Napoca, 2015-2016 President
“I think the biggest untruth is that those studying Law should be confined to the letter of the Law. That would mean the destruction of the link between state, citizens and the Law, because this link is what we call the ‘spirit of the Law’. Most choose their professional path ever since the beginning of their educational road and I think this choice becomes a burden for their practice, because they do not have an open mind to the other options offered by this beautiful and vast field. So no limits, the sky is the limit!” Mădălina Alecsa LL.M., Shanghai University of Finance and Economics
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DEVIL'S ADVOCATE
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DEVIL'S ADVOCATE In light of the Brexit, are Referenda viable as democratic vehicles in the 21st century? This issue's advocates: PROs: Abiola Azeez
Abiola is a final year law student at the University of Surrey. She is currently a legal assistant at Orban-Perlaki Attorneys at Law (OPL) and Explico, a regional tech consultancy boutique, in Budapest, Hungary. In the past, Abiola has gained experience across London, including a magic circle law firm where she sat with one of the leading partners in corporate law.
CONs: Adam Burt Adam is a third year law student at the University of Surrey. He is currently a legal and regulatory assistant during a professional placement year (thick-sandwich) in Budapest, Hungary, at Orban-Perlaki Attorneys at Law (OPL) and Explico, a regional tech consultancy boutique. Adam has experience in a top 20 London law firm, in addition to a financial referrals boutique, from which he was headhunted to a leading St James’ Place partner practice. He also has some experience in litigation, recently being engaged in advocacy at small claims level in the UK, a case which he closed and won on cross-examination.
Debate Foreword. Moderator's note The recent events from Great Britain have made everyone question the fundaments of democracy and, even more, the utility of the instruments serving direct democracy. Whether the vote for Brexit represents a failure of democracy and referenda or, on the contrary, a strong proof that the will of the people must always exceed other interests, is still unclear for a vast majority of people across the Globe. We invite you to read the following debate and decide for yourselves which side is the most persuasive and convincing. We hope that you will find it just as interesting as we did! By Adina Ionescu 56
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Opening Remarks Abiola Azeez: It is not the tool, it is how you use it. One can only judge the usefulness of a tool by how well it fulfils its purpose and for this reason, referenda are viable as democratic vehicles in the 21st century. They do exactly what they are designed to do; offer a direct democratic way to make fundamental policy decisions. Despite this, referenda have a bad name within political and constitutional theory. They are widely considered to be easily manipulated by political elites and incapable of fostering the meaningful deliberation of citizens. Rather than an asset to democratic decision-making, referenda are often perceived as a threat to a healthy constitutional system. The concept of a referendum was developed in Switzerland in the mid-nineteenth century to provide a replacement for the traditional assembly of all voters to make fundamental policy decisions. It was introduced as a tool to assist representative government. This was a standard constitutional device initiated by the voters or their representatives under specific conditions, in certain set ways and conducted in accordance with specific ground rules. To this day, Switzerland remains the major example of regular use of the referendum, where voting occurs least four times per annum. Its political system is well known for being the most open in the world to the celebration of referendums and public consultations. Assessing the viability of referendums from this perspective would only birth positive results, however after the Brexit, referenda came under increased scrutiny.
Adam Burt: Referenda are the sole vehicle in democratic decision making that can override the will of the executive, legislature, judiciary, and simultaneously disregard national interest; they are as dangerous as they are enticing. The Brexit referendum has epitomised not only the perils of such a device, but how it can offer false comfort to a head of state and the public in tough situations. In the Union alone, there are now (on average) eight referenda a year, a fourfold increase from the late 70’s. In a world were such devices are becoming commonplace, the question of their viability must be asked, and indeed, the answer is not so comforting. Let’s take the Brexit as an example. This is a debate so multifaceted that no individual can hope to know and understand all the constituting factors, making a guarantee of the best outcome impossible. One could not expect David Cameron to perform open heart surgery, or Angela Merkel to fix a boiler, so neither should doctors and plumbers be asked to give an informed opinion on the European Union and its benefit (or lack thereof) to Britain. The great British public elects such representatives to make these decisions because they do not, regardless of intelligence or ability, have the requisite expertise. Representative democracy is, by its very nature, a tertiary industry. Which brings us to the next big question, why have a referendum at all? After all, the idea of Apple or Samsung using shareholders to design mobile phones is somewhat farcical. In the case of Brexit, we have to recall the 2015 general elections. David Cameron needed to appease the growing Euroscepticism within the Conservative party (due in large part to the rise of UKIP). He needed votes. And so he made the biggest gamble of his career; the promise of an EU exit referendum. This does not sound like the symbol of democracy referenda are so often portrayed as, this sounds like a means to an end.
The majority of the criticisms revolve around the ways in which those in positions of power (such as the ex- UK Prime Minister David Cameron) use, or rather misuse the purpose of a referendum. Often, the advantages of a referendum are buried. Direct democracy is undoubtedly one of the main positive outcomes of a referendum. Voters speak in unity, deciding on an issue for themselves, rather than through the mediation of politicians. What could be more democratic? Political equality is confirmed as We see more forthright examples of voter manipu57
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DEVIL'S ADVOCATE citizens come together in a collective expression of popular sovereignty. Moreover, it represents the acknowledgement by the political establishment that the people of Great Britain have the right to decide how they are to be represented. Many people are disengaged with politics as it is often portrayed as something which is exclusive to the highly educated, with remain campaigners claiming that the Brexit was a concept so intricate that those in favour of Brexit were too ‘stupid’ to understand it. Referenda generate interest and involvement in public policy among the masses; it is debatable whether 30 million people would have been as interested in Brexit had there not been a referendum. Everyone (who is of age) is invited to vote in a referendum regardless of social class, race or any other discriminatory factor – something remain campaigners, particularly the youth, seem to disagree with. Referenda are a good illustration of an impartial strategy to encourage the masses to reengage with politics. Aside from democracy, those within a political party can also benefit from referenda. On many occasions a political party will be split for numerous reasons however, referenda can be used to resolve such political problems. In particular for incumbent governments, holding a referendum can help reach a solution on the issue without splitting the party. Although, in theory this indirectly relates to democracy since the general public have an input in the matter, the necessity of a particular referendum could simply be to reach a concrete decision. The world of politics has changed vastly over time, yet the referenda have survived. It is clear that referenda are viable as democratic vehicles in the 21st century.
lation elsewhere in Europe. Viktor Orban has recently proposed a referendum in Hungary; “Do you want to allow the European Union to mandate the resettlement of non-Hungarian citizens to Hungary without the approval of the National Assembly?” The answer to which will of course be, a resounding no. In one stroke Orban has garnered more public support in an increasingly populist nation for “standing up to the EU”, and acquired a “democratic” trump card to brandish in Brussels. No risk, no democracy involved. And so, that which should be a hallmark of democracy becomes a mechanism which politicians apply to, in a somewhat oxymoronic fashion, subvert democracy. If referenda are to be placed upon the pedestal of “pure democracy”, they should be a beacon of constitutional decorum, a concept all too easily corrupted by politicians. Such manipulation of the plebiscite is common, something that led the late Margaret Thatcher to describe referenda as “a device for dictators and demagogues”. So, if it were not difficult enough for the public to make decisions they are far from qualified to make, they must also navigate a political minefield of manipulation and corruption. The cold hard truth is this; the public as a whole are not qualified to make decisions of such complexity and national importance as referenda require. Using the Brexit referendum as an example, the individual needs a decent knowledge of the economics and sociology of trade and immigration, the impact and politics of centralized regulation and to have a basic historical background in nationalism. That is the very minimum, something that one could contest, fewer than 5% of the voting population had. After all, Google searches of the question “what is the EU” tripled on the day the exit vote was announced, not so comforting indeed.
Moderator’s Note: Abiola argues that as long as referenda are able to fulfil their purpose they are a viable democratic tool, pointing out that this is the most important criteria we should take into consideration when deciding this. Also, as long as we have examples of countries which use them successfully, and referenda tend to increase the public interest regarding important state problems which will affect them, we do not need to doubt their importance and viability. However, Adam argues that politics and important state decisions are not topics everyone has expertise in, this being the main reason why we elect specialised people to represent our interests. Moreover, recent history shows us that referenda are constantly being misused by politicians, with the sole purpose of serving their personal interest. 58
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Rebuttal Abiola Azeez: Analysing the arguments against the viability of referenda as democratic tools in the 21st century has further highlighted the fact that it is not the tool, it is how you use it. The first main argument proposed is that the general public does not possess the requisite expertise to make such a complex decision. Imagine a scale, with 1 being low and 10 being high, the complexity of the Brexit referendum would be somewhere between 7 and 10 – highly complex. In comparison, Switzerland held a referendum in 1993 that proposed an initiative for a free work day which would also be a national holiday. It is clear that on the aforementioned scale, this referendum is unlikely to be rated higher than a 3. These examples are on opposite ends of the scale, neither of which provide an accurate depiction of the viability of referenda as democratic vehicles. A more appropriate measure would be an average of the two; a referendum which is reasonably easy to digest for the general public and one whereby the result does not determine the future of the country in question. It is unconvincing that the Brexit demonstrated much about the referenda because the situation was extreme and not one which occurs regularly.
Adam Burt: The opening two sentences in the opposition statement are particularly striking; being contradictory in nature and in fact illustrative of the ironic failings of referenda. Firstly, if the quality and effectiveness of a tool is irrelevant, as the opening sentence suggests, then one does not need to judge its usefulness. If referenda are indeed still effective in some way, their application grievously harms their reputation, as illustrated by the recent referendums in the UK and Hungary. Moreover, one could argue that the virtuous use of a tool does not hide the fact it is faulty.
The statement that referenda are a “tool to assist representative government” is conceptually oxymoronic. The very purpose of representative government is to represent their constituents, something disregarded in the case of referenda. If a government is poorly representing the public, they are voted out. That is democracy, not some age old device that governments only use for political leverage. On the topic of referenda, former Conservative MP, governor of Hong Kong and now chancellor of The University of Oxford states, “governments only concede them when governments are weak”. Extensive research into historical referenda will not show Similarly to the concept of complexity, the defini- otherwise, democracy is the last thing on the tion of a qualified person is not black and white; mind of those implementing such devices. there are many shades of grey. Besides, what constitutes requisite expertise? A self-taught politics The “advantages of a referendum are buried” by student could be more qualified, on paper, than their misuse, of that, there is no dispute. Howone who holds a degree. Yes, there is a reason ever, referenda are too easy to abuse, making why the public elects representatives to make them flawed from yet another angle. There is such decisions for them; however this does not nothing positive about direct democracy where undermine their right to democracy. Such rep- the question is so complex, manipulated or fragresentatives may appear to be highly qualified in mented, that any virtuous result arises purely by terms of education and experience, nevertheless; luck. Perhaps there is a reason “referenda have the mere existence of the Brexit referendum is a bad name”. enough to argue that those with the ‘right’ exDemocracy is often held synonymous with fairpertise also make mistakes. ness, and using such an appeal to democracy Suppose the outcome of the referendum was for fallacy in order to accredit referenda makes a the UK to remain, would Viviane Reding have mockery of the synonym because referenda are tweeted “Britons are too ignorant to vote on not fair. In fact, they are incredibly unfair, how membership of the EU” or would the referen- does the “losing” 48% of the UK feel in light of 59
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DEVIL'S ADVOCATE dum have been described as a debate too complex to understand? No. This demonstrates that the referenda are, in fact, not the problem, until the outcome is unexpected. Referenda are capable of being useful even during times when they are being misused. In response to the statement that the referenda appeared to be a means to an end for David Cameron, this does not reduce their viability. Regardless of the motive, a referendum still results in direct democracy and this cannot be undermined. In light of the Brexit, it is clear that a referendum is a strong tool which should not be purposely misused as the consequences could be grave. The example of Victor Orban’s use of referenda does indeed illustrate how the referenda can be manipulated. As Martin Kettle expressed in the guardian, ‘if referendums are the answer, maybe we are asking the wrong question’. The basic structure of the referenda provides decision makers with the platform to pose fair, intelligible and appropriate questions. The tool itself is in fact a beacon of constitutional decorum until it is misused. This often gives rise to arguments which condone the use of the referenda. As mentioned in the opening statement, Switzerland have successfully used the referenda for decades, so why can’t everyone else? Perhaps there should be more focus on the people who are placed in positions of power, after all Hitler used the referenda.
the Brexit? How does the Scottish public feel? Like they have been treated unfairly, which is exactly the case. Moreover, the opposition statement goes so far as to say referenda are an acknowledgment that the people have a right to decide how they are represented, which they do, in General Elections. The ideology that politics is exclusive to the highly educated belittles the general public involvement and in turn, democracy. The argument does not imply stupidity or focus on education, but expertise is certainly an issue. A decision so complex and with such vast ramifications requires decades of experience from a group of individuals to make, criteria that referenda can never fulfil. In the case of the UK, the nation certainly engaged with politics and with the referendum (71.8% turnout), but too many democratic sacrifices were made, a high price for public involvement.
The final opposing argument focusses on the benefit referenda can have in unifying a political party. This is a good point, in fact, such a purpose was the very reason David Cameron called for the Brexit Referendum in the first place. However, it only exemplifies one of the key lines of anti-plebiscite debate; referenda are only applied where a party is weak or has some other agenda, democracy being last on the list. There is, after all, a reason why both Hitler and Mussolini’s rise to power were preceded by Switzerland continues to demonstrate that if the plebiscitary “democracy”. tool is fit for purpose so long as it is used appropriately. Referenda should not be used as a scapegoat for poor political decisions or unexpected outcomes. Moderator’s Note: At this point, Abiola points out that extreme example like Brexit, where everyone had a ‘correct’ outcome in mind, are not enough to prove that referenda are not viable tools. Moreover, it is hard to say who has the ‘right’ expertise to be part of such a vote. She eventually consolidates her idea that the tool itself does not have flaws, but how certain individuals use it is the problem. Adam, on the contrary, points out that just because a tool is sometimes used correctly is not enough to prove that the tool itself is not faulty. Democracy is built on the concept of representation, this being the only fair and effective way for it to work properly. Not only referenda are used for serving politicians or their parties, but they can never offer an informed and well-documented response to complicated situations like Brexit. I hoped this debate was a pleasure to read, and the conclusions will help you form your own opinion! 60
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Closing Remarks Abiola Azeez: There are plausible arguments to suggest that referenda are not viable as democratic vehicles in the 21st century but they do not invalidate those in the opening statement. The ideology that the emphasis should not be placed on the tool, but instead how it is used, still stands. As stated earlier, countries such as Switzerland have experienced much success with the referenda, implying that the UK and other countries could also follow suit. Moreover, there are only two options; direct democracy or representative democracy. Under direct democracy, no other model comes close let alone competes with the referenda. It is easy to offer criticism but when there is no alternative, such criticism is almost void. Those in positions of power have the ability to change how referenda are used and this would have a knock on effect on how they are perceived. In summary, the viability of the referenda is highly dependent on how it is used. It is not the tool, it is how you use it.
Adam Burt: Amongst the arguments in favour of referenda, the “pure democracy” stance is perhaps the strongest. On the smallest and most basic scale, a public vote is the most democratic manner in which a decision can be made. Nevertheless, as illustrated in rebuttal, this appeal to “pure democracy” is also the referendum’s downfall; it is now a tool used by politicians to subvert the very principle it stands for. Referenda can certainly create unity within a party, but this is not their purpose, therefore such an example fails to lend verisimilitude to the concept. It has been demonstrated in this debate that, whilst there is much history to referenda, every positive has a twofold negative caveat in the era we now live in. Moreover and most importantly, no matter if referenda are used fairly and effectively in some cases (such as Switzerland), the manner in which they are abused in many renders them non-viable in the 21st century. The sparse redeeming factors of referenda simply do not outweigh the downsides, which are numerous and in many cases, severe.
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3.
CJEU, Salomie and Oltean, C 183/14
4.
CJEU, Costa v. Enel, C-6/64
5.
CJEU, Ciola, C-224/1997
6.
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WE WOULD LIKE TO THANK ALL THOSE WHO CONTRIBUTED TO THIS EDITION: Adina Ionescu Anastasiia Filipiuk Angeliki Tsanta Georgiana Caramihai Maria Cojocaru Olga Hrynkiv
Răzvan-Alexandru Mărginean Ruxandra Adina Gingărasu Salomé Guibreteau
We would like to extend special thanks to Abiola Azeez and Adam Burt, for their contribution to this edition’s debate. Also, a big thank you to all students who answered this issue's question.
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