Worried about plagiarism? Read this. Help Login Sign Up. Lucrarea lui Emil Durkheim 'Diviziunea muncii sociale' debuteaza prin incercarea de a defini acest concept.
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Daniel-Mihail Sandru. Irina Alexe. Petronel Dobrica. He can be contacted by using the following details mihai. She worked for 20 years within the Ministry of Internal Affairs and she is now a reserve officer. Her areas of interest are administrative law, constitutional law and European law. His field of specialization is the sociology of deviance, sociology of total institutions and sociology of punishment.
He is the coordinator of the Master degree in Social Deviance and Crime. He led national research programmes in the areas of inter-ethnic relations, probation and prisons. He can be contacted by using the following details petroneldobrica yahoo. Alexe, Irina II. Judicial practice in the matter in the European Union. Sociology of law: outlooks, methods, research instruments Contemporaneous societies: legal regulations and various social groups.
The Guide refers to the laws and case law available by the 8th of May , date when the websites mentioned were last accessed. What is it and how is it defined? For the purpose of our discussion, the answers lie in the text of Article itself, whereby the area of freedom, security and justice is constituted with respect for fundamental rights and the different legal systems and traditions of the Member States, such as to ensure a high level of security in the Member States, as well as the free movement of persons.
This objective that may be achieved not only through measures for coordination and cooperation between police and judicial authorities and other competent authorities, but also through the mutual recognition of judgments in criminal matters or by facilitating access to justice, in particular through the principle of mutual recognition of judicial and extrajudicial decisions in civil matters.
This description of the European area of freedom, security and justice is reveals a strong cross-border nature, hence the need for effective cooperation. In order to create the mechanisms required in the European Union EU for consolidating the free movement and facilitating the access of persons to justice, 1 The Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union and of the Treaty on the Functioning of the European Union, Protocols, Annexes, Declarations annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon, signed on 13 December and the Tables of equivalences are published in OJ C of The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States.
It shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third-country nationals.
For the purpose of this Title, stateless persons shall be treated as third-country nationals 3. The Union shall endeavour to ensure a high level of security through measures to prevent and combat crime, racism and xenophobia, and through measures for coordination and cooperation between police and judicial authorities and other competent authorities, as well as through the mutual recognition of judgements in criminal matters and, if necessary, through the approximation of criminal laws.
The Union shall facilitate access to justice, in particular through the principle of mutual recognition of judicial and extrajudicial decisions in civil matters. It is a known that, before the amendments brought to the EU Treaties by the Lisbon Treaty, the two latter policy fields were part of the former Pillar III of the EU7, and the EU institutions had no jurisdiction to regulate these areas, nor could they adopt regulations or directives, these policy areas being regulated by intergovernmental cooperation8.
With regard to the two former policy fields, the Treaty assigns new responsibilities to the EU institutions, of which the ones of specific interest for our study are the principle of mutual recognition of judicial and extrajudicial decisions in civil matters with cross-border implications and effective access to justice.
After the elimination of the Pillars, EU may intervene in the regulation of all the four policy fields mentioned above, according to the scope of jurisdiction defined by the Treaty, including by the adoption of regulations and directives.
Based on the provisions of the TFEU, in order to achieve the goals and ensure compliance with the above-mentioned principles, but even more so in order to maintain and continue in any of the Member States9 the effective protection of natural persons travelling or settling in another Member State than that which granted them a protection measure, the competent EU institutions have proposed, debated and adopted legal acts regulating these areas. The strengthened role of a European defence policy induced the Western European Union to dissolve.
Its decision- making processes as well as the normative quality of its law lacked a supranational character. Thus, as shown in the documents published by the House of Commons13, the Project was postponed on its first reading in the Council, given that Article 81 1 d cannot constitute grounds for protection order in civil matters.
The necessity, appropriateness and role of the Regulation result from its preamble. Macovei, Dreptul European al contractelor - Modernizarea normelor de drept conflictual European Contract Law — Modernisation of rules in conflict of law , second, appended edition, Publisher: Ed. The Regulation is binging and directly applicable in the Member States, except Denmark Why was there a need for three distinct binding instruments?
The answer seems to lie in their specific — direct and indirect — effects in the national legal orders recital xxx in the preamble. While regulations and decisions were considered Union acts that directly established legal norms Section 2 , directives appeared to be designed as indirect forms of legislation Section 3.
Recent examples from the Romanian law and compared aspects , pp. Thus, we appreciate that the role of the Regulation is to ensure based on the mutual recognition principle a consistent, binding and directly applicable legal framework, whereby a protection measure in civil matters ordered by a competent authority from a Member State is recognised and enforced in any of the other Member States, except Denmark, without any special procedures being necessary, even where EU citizens exercise their rights to move and reside freely in EU Member States, without the exercise of such rights resulting in the loss of the protection afforded in the Member State of origin.
It is a known fact that a significant number of EU citizens exercise their right to move and reside freely, travel or settle in another Member State than their Member State of origin. Therefore, it is essential that a protection measure issued in the Member State of origin is recognised by the Member State addressed as if it had been ordered by itself.
Moreover, it is essential for the beneficiary of a protection measure who travels to or settles in another Member State than the one that granted the protection to continue to be protected. These goals can only be achieved through the Regulation we analyse herein.
Objectives of the Regulation Analyising the preamble, we identify the specific objectives envisaged by the adoption of the Regulation. Hereinafter, in the following paragraphs, we will detail all these objectives, yet for the time being our analysis will be limited to the preamble, and not include the text of the Regulation.
The contents of the Regulation will be analysed in the next Topic. About directives as legal acts of EU and their transposition into national law by the Member States, see in the same volume, Constantin Mihai Banu, Introducere. Directiva — act de dreptul Uniunii Europene Introduction. The Directive — legal act of the European Union , pp. The civil, administrative or criminal nature of the authority ordering a protection measure should not be determinative for the purpose of assessing the civil character of a protection measure.
The law — das Recht — le droit — this formula was to be found already in then original EEC Treaty, and was taken by what later became the EC Treaty after Amsterdam Article EC and has not changed its wording in the latest Lisbon version.
It does not however mean that there are no general characteristics which could not be used to interpret these provisions and to fill gaps in the sense mentioned above. This of course does not exempt both EU and implementing Member States law from conforming to these principles and being subject to judicial control, as mentioned above. It is important to underline that this Regulation applies to all victims, regardless of whether they are victims of gender-based violence. Moreover, we note that the protection measures are to be taken in order to prevent any form of violence gender based or in close relationships or various forms of indirect coercion, and the Regulation applies to all victims, be them victims of gender-based violence or not.
Further on, highlighting the same equality and non- discrimination objective in context, we will note the information and support granted to victims. Thus, as we will detail in the following paragraph, a person who is granted protection on the grounds of the Regulation may be also defined as a victim of criminality.
The rights set out in this Directive shall apply to victims in a non-discriminatory manner, including with respect to their residence status. Form the start of our discussion we pointed out that the European area of freedom, security and justice is based and constituted including with respect for fundamental rights and the different legal systems and traditions of the Member States.
This Regulation does not oblige the Member States to modify their national systems so as to enable protection measures to be ordered in civil matters, or to introduce protection measures in civil matters for the application of this Regulation.
We observe that the Member States are under no requirement to amend their national systems for issuing protection measures in civil matters or for applying the Regulation, but it is sufficient to comply with the Regulation in terms of recognising protection measures in civil matters issued by the authorities of other EU Member States.
In our opinion, the most important statement is that police authorities cannot be considered issuing authorities that may order protection measures in civil matters in the Member States. Another clarification concerns the types of authorities that order protection measures in civil matters. Unlike in other areas of judicial cooperation, in the matter of mutual recognition of protection measures, the authorities may be both judicial and administrative.
Whilst in the case of the judicial authorities no further determination is necessary as to the guarantees they should provide since the guarantees are presumed to derive precisely form the judicial character of the authority , in the case of administrative authorities, the text sets the requirement of them providing guarantees, in particular in terms of their impartiality and the right of the parties to judicial review.
In a subsequent section, we shall review in detail the principle of effectiveness, including the applicability of the Regulation in relation with the Charter of Fundamental Rights of the European Union. The legal basis for this Directive is Article 82 2 TFEU, which provides that, to the extent necessary to facilitate the mutual recognition of judgements and judicial decisions, as well as police and judicial cooperation in criminal matters having cross-border dimensions, the European Parliament and the Council, acting by means of directives, in accordance with the ordinary legislative procedure, may lay down minimum rules.
These minimum rules take into account the differences between the traditions and legal systems of the Member States and relate in particular to the rights of victims of crime. Unlike Article 83 1 and 2 TFEU, which constitute legal grounds for the adoption of Directives laying down minimum rules on the definition of criminal offences and penalties, it is clear that Article 82 2 TFEU does not confer jurisdiction on the European Union law makers either to define elements of criminal offences or to oblige Member States to classify certain acts as 'criminal offences'.
Article 83 TFEU provides, in paragraph 1, that the European Parliament and the Council, acting by means of directives in accordance with the ordinary legislative procedure, may lay down minimum rules on the definition of criminal offences and Sanctions in areas of particularly serious crime with a cross- border dimension resulting from the nature or impact of those offences or from a particular need to combat them on a common basis.
Terrorism, trafficking in 34 Robert Schutze, op. This absolute limitation was challenged by a fourth principle — the liability principle. On the other hand, Article 83 2 TFEU provides that where the approximation of the laws and regulations of the Member States in criminal matters is essential to ensure the effective implementation of a Union policy in a field which has been the subject of harmonization measures, minimum rules on the definition of criminal offences and penalties in the field concerned may be laid down through directives.
Such directives shall be adopted in an ordinary or special law-making procedure identical to that used for the adoption of the harmonization measures in question, without prejudice to Article 76 TFEU. It follows that Article 83 1 and 2 TFEU do not confer on the Union the power to adopt rules on the definition of criminal offences, such as the offence of abuse that is at issue in the main case.
It is obvious that, in order for protection to be granted, such a new request addressed to the national authorities of the State if the risk persists and the protection continues to be necessary must be compliant with the national law of the EU Member State in question. For that matter, paragraph 18 of the preamble states from the very beginning this objective that is further detailed in paragraphs 18 and It should not regulate the procedures for implementation or enforcement of the protection measure, nor should it cover any potential sanctions that might be imposed if the obligation ordered by the protection measure is infringed in the Member State addressed.
Those matters are left to the law of that Member State. However, in accordance with the general principles of Union law and particularly the principle of mutual recognition, Member States are to ensure that protection measures recognised under this Regulation can take effect in the Member State addressed. In the context of instating the obligation for Member States to guarantee that the protection measures recognised on the grounds of the Regulation produce effects on the territory of the State addressed, the general principles of EU law are reasserted, the principle of mutual recognition — that we analysed above — being specifically mentioned.
Irrespective of whether the place in question or the extent of the area covered by the protection measure is described in the protection measure by one or more specific addresses or by reference to a circumscribed area which the person causing the risk may not approach or enter, respectively or a combination of the two , the recognition of the obligation imposed by the protection measure relates to the purpose which the place serves for the protected person rather than to the specific address.
Factual elements include the address, the general location or the minimum distance the person causing the risk must keep from the protected person, the address or the general location. However, the type and the civil nature of the protection measure may not be affected by such adjustment. Furthermore, if relevant, the circumscribed area approximate radius from the specific address to which the obligation imposed by the protection measure on the person causing the risk applies should also be indicated in the certificate.
The first is that it should indicate whether the address specified in the protection measure is the place of residence, place of work or a place that the protected person visits on a regular basis. The second — only mentioned in the certificate if and when necessary — is that the circumscribed area approximate radius from the specific address to which the obligation imposed by the protection measure on the person causing the risk applies should also be indicated in the certificate.
A further justification lays in the urgent need of recognising such a protection measure correlated with the objective of free, faster and less costly circulation of protection measures within the EU, objective that we will review later on. Also, we note that the certificate may be rectified or withdrawn. What happens in case the protection measure is suspended or withdrawn or the certificate is withdrawn in the Member State of origin?
The issuing authority should issue the certificate upon request by the protected person. Any costs for necessary translation that goes beyond the text of the multilingual standard form are to be allocated as provided under the law of the Member State of origin.
This should not preclude the protected person or the issuing authority of the Member State of origin from providing a translation or transliteration on their own initiative.
Durkheim- Diviziunea Muncii Sociale (Cap1-3)