Romanian Legal Week: August 15-21, 2016

Cosmina Sima

HCCJ. What must be proved in case of a penalties clause that is part of a share sale and purchase agreement
The High Court of Cassation and Justice has ruled that the court of appeal correctly stated that the penalties that were requested according to the penalties clause that is part of the share sale and purchase agreement from 2003 (summing 100.700,70 RON) are due when there are filled all the conditions for the claim for compensation: existence of tort, existence of damage, causation link between tort and damage, guilt of the debtor and that, in this particular case, the plaintiff did not plead which is the suffered damage and did not prove its existence. The claimant’s assertion that it is not necessary that the party that stands on the penalties clause to prove the existence and the extent of the damage cannot be embraced, considering the fact that this contradicts the nature of the penalties clause itself (a way of anticipatory evaluation of the damage). Therefore, the creditor of the unexecuted obligation may claim payment of the compensation as long as he proves the existence of a damage, the penalties clause inserted in the contract dispensing the creditor only from proving the quantum of prejudice, and not from the proof of its existence.

Constitutional Law. The disciplinary responsibility of the lawyers
In Romanian Official Monitor, no. 558 from 25th July 2016 was published the Decision of the Constitutional Court no. 394 from 14th June 2016 referring to the constitutional challenge of the Article 86 Paragraph 1 of the Law no. 51/1995 referring to the organization and exercise of the lawyer profession.
The object of the constitutional challenge is represented by the provisions of Article 86 Paragraph 1 of the Law no. 51/1995 referring to the organization and exercise of the lawyer profession. According to this article “The lawyer is disciplinary responsible for disrespecting the provisions of the present law or of the statute, for the inobservance of the compulsory decisions that are adopted by the leaders of the Bar or of the Union and also for any acts that are committed relating to the profession or beside of it, that are able to damage the honor and prestige of the profession or of the institution.”

The Court states that these provisions govern the institution of the lawyers’ disciplinary responsibility, therefore for the whole professional class, without inserting distinctions or exemptions from this type of responsibility.

Consequently, the disposals are to be applied equally, without privileges and without discriminations to all the members of the profession, including the discipline committee. For the last ones it makes no difference the activity that was conducted in these committees, but their activity/merit as a lawyer that attracts, according to the law, the disciplinary responsibility in case of a disciplinary offence. The matter of the activity that is conducted in the disciplinary committees, and also the solutions that were pronounced following the disciplinary research, the members of these committees act according to the law and to the statute, after their own beliefs and personal opinions, and if it is discovered that they have done a disciplinary offence, they are responsible for their act.

Therefore, the Court has dismissed as ill-founded the constitutional challenge and stated that the provisions that were the object of the challenge are constitutional.

Meeting between the director of the community of information from USA and the director of RIS
Eduard Hellvig, the director of RIS, had Friday, 12th August 2016, an official meeting with James R. Clapper, the director of the community of information (Director of National Intelligence) from United States of America, according to a handout of Romanian Intelligence Service.
At this meeting were discussed subject of partnership interest referring to the international security environment, the evolution of the terrorism phenomenon in the world and also the new challenges in cybernetic security.
The institutional visions regarding the evolution of the intelligence paradigm at the level of NATO, medium and long term, have also represented an important matter in the agenda of this meeting.

France. The swimsuit of the Islamic women is forbidden on the beaches in Cannes
The mayor of Cannes, David Lisnard, has forbidden the burkini type swimsuits on the beaches of the French riviere in order to not disturb the public order, considering that France and the worship places are also targets for the terrorist attacks, according to independent.co.uk.
Hereby, the decision rules that the access to the beach and swimming is forbidden to anyone who does not own a swimsuit that respects the good habits and secular conceptions. The interdiction is not directed against the swimsuits that wear religious signs, but against the ostensive clothes that refer to the loyalty to a terrorist movement.

The Pentagon forbids their employees to install Pokemon Go on their government-issued phones
On Friday, 12th August 2016, the representatives of the Pentagon asked their employees not to install the game Pokemon Go on their government-issued smartphones. The employees are allowed to use the application in the building of the institution if they use their personal cellphones, according to Japan Times.
Gordon Trowbridge, press secretary: “You can imagine a number of reasons why installing Pokemon Go would not necessarily be a prudent thing to do. Aside from any security concerns, I think taxpayers would appreciate government phones being used for government business.”

Anda-Laura Tănase
Cosmina Sima

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