Romanian Legal Week: June 20-26, 2016

Anda-Laura Tanase

New measures on the enforcement of posted workers providing services in EU Member States
The Government approved in its meeting on June 16, 2016 the draft law on the posting of workers in the framework of services that includes measures to ensure that the rights of posted workers are respected in other EU member states, a strict control of their application, and mechanisms of cooperation between national institutions and their counterparts in European countries that control the application of these measures, according to a press release issued Thursday, June 16, 2016.
The draft law transposes into national law the EU Directive 2014/67.

Cosmina Sima

ECHR. Hungary, sentenced by the Supreme Court for president’s impeachment
European Court of Human Rights decided, today, Thursday, June 23, 2016, Hungary’s conviction based on the Baka cause. It concerns the dismissal of the Supreme Court of Hungary president, through early retirement of Judge Andras Baka.

::  The decision

HCCJ. Simulation in the form of partial disguise of the price in a contract of sale
High Court of Cassation and Justice decided that the legal operation consisting of the simultaneous conclusion of two contracts, one of sale, in which has been noted a lower price than the a real one and one of loan, in which the amount borrowed (which should have been remitted by the buyer to the seller in the form of a loan refund) is, in reality, the difference between the real price greed by the parties and the apparent one stated in the contract of sale, meets all the characteristics of a simulation in the form of a partial disguise of the price in a contract of sale.

The High Court stated that although the entire legal arrangement is based on defrauding the Tax Law, by evading payment of tax on transfer of ownership, this illicit nature is not reflected on the purpose intended by the parties to the conclusion of the contract, as only the payment method has an unlawful component and not the entire operation of sale.  Thus, the civil sanction that must be applied is the contract not being opposable against third parties in matters of the situation created by the contract containing the secret element and not absolute nullity, as in the case of illicit cause.

Romanian Constitutional Court. Representation of legal persons in the appeal
In the Official Gazette of Romania no. 407 dated 30 May 2016 was published the Constitutional Court Decision no.192 of April 7, 2016 regarding the exception of unconstitutionality of art. 84 para. (2) of the Civil Procedure Code.

The subject of the exception of unconstitutionality is art. 84 para. (2) of the Civil Procedure Code, which has the following drafting: “In drawing up the application, the grounds of appeal and in the pursuit and claim of the appeal legal persons will be assisted, and where appropriate, represented, only by a lawyer or legal adviser in the conditions of law, under the sanction of nullity.

Although the author of the exception invoked the breaching of constitutional provisions on free access to justice and the right to defense, the court found that the limitation imposed for a legal person in terms of representation is not excessive, unreasonable. The Court noted, firstly, that the requirements and guarantees resulting from fundamental rights and freedoms regulated by the Constitution are also applicable to legal persons, insofar as their normative content is compatible with the nature, characteristics and particularities that characterize the legal status of the legal persons. In this context, the Court held that in the present case, the requirements deriving from art. 21 on access to justice and of art. 24 on the right to defense, as a guarantee of fair trial, are also applicable to legal persons.

The Court denied the objection as becoming inadmissible.

Ombudsman proposes switching the preventive arrest centers under the control of Ministry of Justice
Victor Ciorbea, the Ombudsman, proposed Tuesday, June 21, 2016, at the “Conditions of detention in prisons, centers for detention and arrest” debate, organized by the Human Rights Commission of the Senate, that detention and preventive arrest centers to pass from the control of Ministry of Interior to the Ministry of Justice, according to Agerpres.

The overall balance of the Treasury | Draft
Ministry of Finance released for public debate Wednesday, June 22, 2016, the Draft Decision on approving the general balance of the Treasury and budget execution account of the Treasury for 2015.

:: Draft Decision
:: Annex 1
:: Annex 2
:: Substantiation note

The amending of NBR Regulation on NFIs | Draft
National Bank of Romania launched for public consultation Thursday, June 23, 2016, the draft Regulation for amending the Regulation of National Bank of Romania no. 20/2009 regarding non-banking financial institutions.

:: Draft Regulation

Romanian police investigating the breaking of FRF site
Directorate for Combating Organized Crime of the Romanian Police will conduct a series of researches on breaking the site of Romanian Football Federation (FRF), on which Tuesday, June 21, 2016, appeared the emblem of Albania, according to Agerpres.

Anda-Laura Tănase
Cosmina Sima

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