Revue Européenne Du Droit Social

European Journal of Social Law

REVUE EUROPÉENNE

DROIT SOCIAL

Revue europénnee du droit social

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European Journal of Social Law

REVUE EUROPÉENNE

DROIT SOCIAL

Volume XXXV • ISSUE 2 • Year 2017

Édition Bibliotheca Târgovi şte, 2017

Revue europénnee du droit social

La Revue est reconnuée par le Conseil National de la Recherche Scientifique (CNCS) categorie B+ avec avis no. 828/2007 en évidence BDI Copernicus, CEEOL, EBSCO Publishing, DESY Publication Database et Open Academic Journals Index (OAJI)

Comite scientifique/ Scientific Board:

Mohamed-Larbi ARIBOU, Professeur, Université Abdelmalek Essaâdi de Tanger, Maroc; Raffaele AVETA , Seconda Università degli Studi di Napoli, Italie; Antonio BAYLOS, Professeur, Université de Castilla La Mancha, Espagne; Gabriela Mendizábal BERMÚDEZ , Professeure, l’Université Autonome d’État Morelos au Mexique; Alberto Chartzman BIRENBAUM , Universidad Nacional Tres de Febrero, Buenos Aires, Argentina; Sophie BOUTILLIER, Maître des conférences, Université du Littoral-Côte d'Opale, France; Martha Elisa Monsalve CUÉLLAR , Professeure, l’Université La Gran Columbia, Columbia; Carmen DI CARLUCCIO, Charge de cours, Universita Seconda di Napoli, Italia; Luis Serrano DIAZ , Professeur, Université du San Marcos (UNMSM-FCC, Ceups) Lima-Perú; Rafael Junquera de ESTÉFANI, Professeur, UNED Madrid, Espagne; Guillermo FERRIOL , Professeur, Université de Havana, Cuba; Leslie Templeman HOLMES , University of Melbourne, Australie Cristina MANGARELLI , Professeure, l’Université de la Repúbliaue, Montevideo, Uruguay; Silvia Fernández MARTÍNEZ , Université de Bergamo, Italia; Lourdes Mella MĖNDEZ , Professeur, Université de Santiago de Compostela, Espagne; Ana R. Martín MINGUIJÓN, Professeure, UNED Madrid, Espagne; Raul Vergara MIRELES , Professeur, Université Autonome d’État Morelos, Mexic; Ángel Guillermo Ruiz MORENO , Professeur, Universidad de Guadalajara, México; René David NAVARRO ALBINA , Professeur, Unviversité de Atacama, Chile; Maria ORLOV , Maitre de conférences: Université d’Etat „Alecu Russo” Balti, République de Moldova; Juan Carlos PAULUCCI , Professeur, Centre interaméricain d'études de sécurité sociale, Argentina; José Alvarez PESTANA, Professeur, UNED Madrid, Espagne; Hans-Joachim REINHARD , Professeur, Institut Max Planck, Allemagne; Ana Teresa RIBEIRO , Professeur a l’Université Catholique du Porto, Portugal; Marcelo RICHTER , Professeur, Université de San Carlos de Guatemala, Guatemala; Rodrigo Garcia SCHWARZ , Professeur, Université del Oeste de Santa Catarina, Brésil; Ahmed SMAHI, Maître des conférences, Université de Tlemcen, Algérie; Krassimira SREDKOVA , Professeur, Université de Sofia, Bulgarie; Carlos Luiz STRAPAZZON , Professeur, Université del Oeste de Santa Catarina, Brésil; Ana ŞTEF ĂNESCU , Maître des conférences, Université „Dun ărea de Jos” Gala ţi, Roumanie; Edvana TIRI , Charge de cours, Professional Business Academy, Tirana, Albania; Kamil TUGEN, Professeur, Université du „Dokuz Eylul” Izmir, Turquie; Alexandru ŢICLEA, Professeur, Université Ecologique Bucarest Roumanie; Marioara ŢICHINDELEAN , Maître des conférences, Université „Lucian Blaga”, Sibiu, Roumanie; Dimitri UZUNIDIS, Professeur, Université du Littoral-Côte d'Opale, France; Vlad BARBU, Professeur, Académie de Police „Alexandru Ioan Cuza” Bucarest, Roumanie.

European Journal of Social Law

Comite de rédaction/Editorial Board:

Rédacteur en chef / Editor responsible: Dan Ţop, PhD Executive Editor: Marc S. Richeveaux, PhD Rédacteur en chef adjoint / Editor assistant: Radu Răzvan Popescu, PhD Secrétaire de rédaction / Editorial Secretary: Pedro Fernandez Santiago, PhD

Reviewers Board / Conseil d'évaluateurs :

Antonio BAYLOS , Professeur, Université de Castilla La Mancha, Espagne; Alberto Chartzman BIRENBAUM , Professeur, Université Nacionalr ,,Tres de Febrero”, Buenos Aires, Argentina; Gabriela Mendizábal BERMÚDEZ , Professeure, Université Autonome d’État Morelos au Mexique; Martha Elisa Monsalve CUÉLLAR , Professeure, Université La Gran Columbia, Columbia; Luis Serrano DIAZ , Professeur, Université de San Marcos (UNMSM- FCC, Ceups) Lima, Perú; Leslie Templeman HOLMES, Professeur, Université de Melbourne, Australie; Lourdes Mella M ĖNDEZ , Professeur, Université de Santiago de Compostela, Espagne; Ángel Guillermo Ruiz MORENO , Professeur, Universidad de Guadalajara, México; Hans-Joachim REINHARD , Professeur, Institut Max Planck, Allemagne; Ana Teresa RIBEIRO , Professeure, Université Catholique du Porto, Portugal; Rodrigo Garcia SCHWARZ , Professeur, Université del Oeste de Santa Catarina, Brésil; Sophie BOUTILLIER , Professeure, Université du Littoral Côte d’Opale, France; Ana ŞTEF ĂNESCU , Maître des conférences, Université,,Dun ărea de Jos” Gala ţi, Roumanie; Edvana TIRI , Charge de cours, Professional Business Academy, Tirana, Albania; Kamil TUGEN , Professeur, Université du „Dokuz Eylul” Izmir, Turquie; Alexandru ŢICLEA , Professeur, Université Ecologique Bucarest Roumanie;

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ISSN 2393 – 073X • ISSN–L 1843 – 679X Copyright@2017

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SOMMAIRE

REFLECTIONS ON THE RULE OF LAW – SELECTIVE ASPECTS (Nicolae Pavel) / 7

ERROR IN THE NEW CIVIL CODE (Adrian Ţuţuianu) / 25

SPECIALIZATION AND PORT EFFICIENCY: THE CASE OF TUNISIAN PORTS (Nahed Zghidi) / 33

PROPERTY RIGHTS AND ECONOMICS (Loredana Adelina P ădure) / 51

IMPACT OF PRIVATIZATION ON ECONOMIC GROWTH (Haida Maria Dumitrescu) / 59

LA PROBLÉMATIQUE DES COMPÉTENCES EN ALGÉRIE (Amine. Meksem) / 68

VICES OF CONSENT IN NEW CIVIL CODE (Cristian Dumitrescu) / 81

HOW O.U.G. NO. 1/2016 EXCHANGED THE CIVIL PROCEDURE CODE (Cosmina Moise) / 88

REAL ESTATE PROPERTIES SHORT HISTORY OF THE REAL ESTATE PROPERTY REGIME IN ROMANIA (Dana Adriana Ţop, Ionu ţ Niculescu) / 97

PROPERTY RESTITUTION IN CENTRL AND EASTERN EUROPE (Daniela Ţă ranu) / 104

European Journal of Social Law

REFLECTIONS ON THE RULE OF LAW – SELECTIVE ASPECTS

Nicolae PAVEL *

Abstract: By this approach, the proposed study opens a complex and complete vision, but not limited to: Reflections on The Rule of Law – selective aspects. In the analysis of comparative law will preserve the symmetry of the approach to identifying regulations on the rule of law in the constitutions of other states. The topic of the scientific endeavor will be circumscribed to the scientific analysis of its parts, as follows: 1) Introduction. 2) Identifying the constitutional principles on the rule of law in the Romanian Constitution of 1991 and in the Romanian Constitution of 2003 as well as in the Constitutions of other States. 3. Identifying the principles on the rule of law in the consolidated version of the Treaty on European Union and in the Charter of fundamental rights of the European Union. 4. Highlights about the doctrine concerning the rule of law. 5. Highlights about the jurisprudential on the rule of law. 6) Conclusions. Keywords: rule of law, constitutional principles, constitutions, Treaty on European Union, Charter of fundamental rights, highlights about doctrine, highlights about the jurisprudential.

1. Introduction

1.1. In the onset of this study, we intend to analyze the first documents of constitutional nature of the United Kingdom of Great Britain and Northern Ireland and the first Constitution under written form in the world, the Constitution of the United States of America which, in our opinion, set the first principles referring to the rule of law . 1.2. In our opinion, referring to the history and origins of the rule of law, the symbolic documents in the history of human rights should be investigated, i.e. Magna Carta 1215 1 şi Habeas Corpus Act 1679 An act for the better securing the liberty of the subject, and for prevention of imprisonment beyond the seas 2 which set the defining and original feature of „ the rule of law ”.

* Associate professor, Ph. D, Spiru Haret University, Bucharest, Romania, Faculty of Sciences Juridical, Political and Administrative and Research Associate at the Institute of Legal Research "Acad. Andrei Rădulescu" of the Romanian Academy, E-mail: [email protected]. 1 Simina Elena T ănăsescu and Nicolae Pavel, The Constitutional documents of the United Kingdom of Great Britain and Northern Ireland , Publishing House C H Beck, Bucharest, 2003, p. 46. „Paragraph 39, No free men shall be seized or imprisoned, or imprisoned, or stripped of his rights possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send other to do so, except by the lawful judgment of his equals or by the law of the land”. 2 Ibidem, p. 63, „Habeas Corpus Act, An act for the better securing the liberty of the subject, and for prevention of imprisonment beyond the seas, Paragraph I, „Whereas great delays have been used by sheriffs, jailers and other officers, to whose custody any of the King's subjects have been committed for criminal or supposed criminal matters, in making returns of writs of habeas corpus to them directed, by standing out an alias and pluries habeas corpus, and sometimes more, and by other shifts to avoid their yielding obedience’s to such writs, contrary to their duty and the known of the land, whereby of the King's subjects have been and here-after may be long detained in prison, in such cases where by law they are billable, to their great charges and vexation”.

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Magna Carta of 1215 is the first document in the world with symbolic value in the history of human rights and the first written document in the world which sets the first principle of the rule of law refering to the rule of law. Without going into details, the historic event occurred at 15 June 2012 on Runnymede plain, when King John received the wishes of the barons supported by the population, and he affixed the royal seal on the Magna Carta, also confirmed by future monarchies. We think that affixing the seal on the Magna Carta meant the first limitation of the despotic monarhical state, acknowledging a few privileges to the gentility and the church, and paragraph 39 set the rule stating that „No free men shall be seized or imprisoned, except by the lawful judgment of his equals or by the law of the land” This foreshadowed the adoption of the Habeas Corpus Act of 1679 , establishing the guarantee on subject’s freedom, by forbidding arrest or abusive imprisonment, including also the issue of law enforcement in such cases, which much later would become the principle of the state subject to the rule of law referring to the rule of law. Moreover, we should point out with reference to the rule of law that even nowadays in the United Kingdom of Great Britain and Northern Ireland, these two principles continue to apply , i.e.: 3 1. due process of law – The regular and orderly course of the law through the courts . 2 . Rule of law – 2.1. Government based on the general acceptance of the law . Governing based on the general acceptance of the law . 2.2. A legal law . We should also mention here that in 2009 the Supreme Court of the United Kingdom was also established. 1.3. The first written Constitution in the world was the Constitution of the United States of America of 1787 4 which, referring to the rule of law consecrated the famous clause due process of law, included in the 14th amendment, entitled Protection of Citizenship Rights, Ratified 1868, and under which „ nor shall any state deprive any person of life, liberty, or property, without due process of law ”. Also referring to the interpretation of the federal Constitution, we think that: „Verifying the existence of this procedure and appreciating its legality, the Supreme Court may control the whole legislation on freedoms. More recently, the Supreme Court preferred to rely on another clause of the same amendment, forbidding the states to „deny anyone in their jurisdiction an equal protection of the laws”, its freedom of expression is also considerable”. Moreover, it is worth mentioning that even nowadays in the United States of America the Supreme Court of the United States of America still applies two principles related to the rule of law , i.e. 5: 1. Due process of law – A right

3 L B Curzon, Dictionary of law , Third Edition, Pitman Publishing, London, 1988, pp. 131 and 253. 4 Simina Elena T ănăsescu and Nicolae Pavel, The Constitution of the United States of America , C H Beck Publishing House, Bucharest, 2002, pp. 29-30. 5 Jay M. Shafritz, Dictionary of American Government and Politics, The Dorssey Press, Chicago, Illinois, 1988, pp. 178 and 485.

European Journal of Social Law guaranteed by the Fifth, Sixth and Fourteenth amendments and generally understood to mean that legal proceedings will follow rules and forms established for the protection of private rights. 2. Rule of law – A governing system in which the highest authority is a body of law that applies equally to all (as opposed to the rule of men, in which the personal whim of those in powers can decide any issue. 1.4. The object of study of the scientific approach will be subject to scientific analysis a celor patru mari p ărţi ale acestuia respectiv: a) Identifying the constitutional principles on the rule of law in the Romanian Constitution of 1991 and in the Romanian Constitution of 2003 as well as in the Constitutions of other States. b) Identifying the principles on the rule of law in the consolidated version of the Treaty on European Union and in the Charter of fundamental rights of the European Union. c) Highlights about the doctrine concerning the rule of law. d) Highlights about the jurisprudential on the rule of law. 1.5. In our opinion, the studied field is important for the constitutional doctrine in the matter, for the doctrine of the general theory of law, for the doctrine of criminal law, as well as for the other branches of law which use this concept of the rule of law, as well as for practitioners in the line of law, because by this scientific approach we aim at establishing, in a diachronic and selective approach a complex and completge reflection, but not exhaustive, of the entire current sphere regarding the rule of law . 1.6. For full but not exhaustive coverage of the sphere regarding the rule of law , the Romanian and foreign doctrine in the matter was used. 1.7. Even if the theorization of the rule of raw goes back in time to the Magna Carta of 1215, the theoretical interest for resuming it is determined by the fact that the existing specialized literature has not always paid due attention to some theoretical aspects of rule of law.

2. Identifying the constitutional principles on the rule of law in the Romanian Constitution of 1991 and in the Romanian Constitution of 2003 as well as in the Constitutions of other States.

2.1. Identifying the constitutional principles on the rule of law in the Romanian Constitution of 1991 and in the Constitution of Romania of 2003 2.1.1. Identifying the constitutional principles on the rule of law in the Romanian Constitution of 1991 . 6 The theorization of the Rule of law has a long history, even in the history of Romanian society evolution over time, until the date of adoption of the Constitution in1991, when it was explicitly consecrated in the normative content of art. 1 par. (3) of this Constitution.

6 The Romanian Constitution of 1991 was published in the Official Gazette of Romania , Part I, no. 233 of 21 November 1991.

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Referring to art. 1, we make the following clarifications: a). art. 1 is part of Title I entitled General Principles . b) art. 1 is entitled the Romanian State. The analysis of the two clarifications shows that art. 1 sets the general principles of constitutional level underlying the constitutional evolution of the Romanian state, called Romania in 1991. From the very beginning of this paragraph we should specify that the fundamental law, i.e. the Constitution of Romania of 1991, is the first Romanian Constitution which sets the Rule of law principle among the general principles of the Romanian State, in the normative content of art. 1 par. (3) thesis I with the following content: „Romania is a democratic and social State governed by the rule of law , in which human dignity, the citizens' rights and freedoms, the free development of human personality, justice and political pluralism represent supreme values and shall be guaranteed”. 7 2.1.2. Identifying the constitutional principles on the rule of law in the Romanian Constitution of 2003 8 The Constitution of Romania of 1991 was revised in 2003. For this paragraph, we will analyze art. 1 of the Constitution of Romania of 2003, entitled the Romanian State. This belongs to Title I, General Principles. After correlating the two formulations, the result is that the entire content of art.1 includes the general principles underlying the constitutional foundation of the Romanian state, called Romania, in 2003. Starting from this idea, we will highlight in this paper only the constitutional principles, included in art. 1 par. (3) referring also to the Rule of law with the following content: „Romania is a democratic and social state, governed by the rule of law, in which human dignity, the citizens' rights and freedoms, the free development of human personality, justice and political pluralism represent supreme values, in the spirit of the democratic traditions of the Romanian people and the ideals of the Revolution of December 1989, and shall be guaranteed”. To conclude, it should be remembered that art. 1 par. (3) of the Constitution of 2003, includes a complement to the general principles of the same article of the Constitution of Romania of 1991. 2.2. Identifying the constitutional principles on the rule of law in the Constitutions of other States. 2.2.1. Identifying the constitutional principles on the rule of law in the Spanish Constitution of December, 27, 1978 9 In this paragraph we will analyze the Preamble Constitution and art. 1 par. (1) of the Preliminary Title of the Constitution , wherefrom we will mention only the constitutional principles and regulations referring also to the rule of law.

7 Romania towards the State Governed by The Rule of Law, The Parliament of Romania, “Official Gazette” Publishing House Autonomous Administration, 1991, p.497. 8 Constitution of Romania – 2003 , www.cdep.ro/pls/dic/site.page?id=371 9 Spanish Constitution of December, 27, 1978 – http://www.congreso.es/portal/page/portal/Congreso/ Congreso/Hist_Normas/Norm/const_espa_texto_ingles_0.pdf

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The analysis of the normative content of the Spanish Constitution Preliminary Part , we note the following regulations which also contain the rule of law principle : „The Spanish Nation, desiring to establish justice, liberty, and security, and to promote the wellbeing of all its members, in the exercise of its sovereignty, proclaims its will to: Consolidate a State governed by the Rule of Law which ensures the rule of law as the expression of the popular will”. The content of the mentioned text shows the will of the Spanish Nation to consolidate the State governed by the rule of law. Similarly, the analysis of the normative content of art. 1 par. (1) of the Spanish Constitution Preliminary part , shows that the constitutional foundations of the Spanish State called Spain, are set, among which the State of law principle , with the following content: „Spain is hereby established as a social and democratic State, subject to the rule of law , which advocates freedom, justice, equality and political pluralism as highest values of its legal system”. On the other hand, the marginal synthesizing of the normative content of art. 1 par. (1) of the Spanish Constitution Preliminary Part , shows that the Spanish State is : „A social and democratic State under the rule of law”. 2.2.2. Identifying the constitutional principles on the rule of law in The Constitution of the Republic of Poland 2nd April, 1997 10 In this paragraph we will analyze Chapter I of the Constitution of the Republic of Poland entitled the Republic wherefrom we will mention only the constitutional principles and regulations referring also to the Rule of Law . The analysis of the normative content of Chapter I of the Constitution of the Republic of Poland entitled the Republic , we note the following regulations which also contain the rule of law principle : „The Republic of Poland shall be a democratic state ruled by law and implementing the principles of social justice”. Moreover, in our opinion, the entire content of Chapter I contains the general which are the constitutional foundation of the evolution of the Polish state, called the Republic of Poland in 1997. 2.2.3. Identifying the constitutional principles on the rule of law in The Constitution of the Republic of Bulgaria on 2nd April, 1997 11 The systematic analysis of the content of the Constitution shows that it starts with Chapter I entitled Fundamental Principles , which in our opinion sets the fundamental principles governing the Bulgarian State called the Republic of Bulgaria. In this paragraph we will analyze Chapter I entitled Fundamental Principles , wherefrom we will mention o nly theconstitutional principles and regulations referring also to the rule of law .

10 The Constitution of the Republic of Poland 2nd April 1997, The Constitution of the Republic of Poland, www.sejm.gov.pl/prawo/konst/.../kon1.htm 11 Constitution of the Republic of Bulgaria, www.parliament.bg/en/const

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Moreover, par. 1 of art. 4 in Chapter I entitled Fundamental Principles , contains the following regulations which refer also to the rule of law: „The Republic of Bulgaria shall be a State governed by the rule of law . It shall be governed by the Constitution and the laws of the country”. In addition, in our opinion the entire content of Chapter I includes the general regulations underlying the constitutional foundation of the evolution of the Bulgarian State, called the Republic of Bulgaria at the level of 1991.

3. Identifying the principles on the rule of law in the consolidated version of the Treaty on European Union and in the Charter of fundamental rights of the European Union

On the onset of this section, it is imperative to highlight the constitutional regulations included in par. (2) of art. 148 of the Constitution of Romania of 2003, entitled Integration into the European Union , having the following content: „As a result of the accession, the provisions of the constituent treaties of the European Union, as well as the other mandatory community regulations shall take precedence over the opposite provisions of the national laws, in compliance with the provisions of the accession act”. In our opinion, this regulation points out that the consolidated version of the Treaty on European Union and the Charter of fundamental rights of the European Union prevail over the adverse dispositions of internal laws. This provisions also applies to the Charter of fundamental rights of the European Union , because according to the provisions of art. 6 of Title I entitled Common Dispositions of the consolidated Version of the Treaty on European Union, the Charter has equal juridical power with the treaties’ . Moreover, we should also present in the introductory part of this section the content of par. (2) and of art. 11 of the Constitution of Romania of 2003, which regulates the relations between international law and internal law , under the following wording: „Treaties ratified by Parliament, according to the law, are part of national law”. In our opinion, according to this regulation the Treaties ratified by the Parliament have direct application in internal law. 3.1. Identifying the principles on the rule of law in the consolidated version of the Treaty on European Union 12 For the purposes of this paper, we will do the identification of the principles referring also to the rule of law , in the following structural parts of the consolidated Version of the Treaty on European Union:

12 Official Journal of the European Union, 2010/C 083/01 Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union

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1. the Preamble contains the following principles also referring to the rule of law: 1.1. The drawing inspiration from the cultural, religious and humanist inheritance of Europe, from which have developed the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law. 1.2. „Confirming their attachment to the principles of liberty, democracy and respect for human rights and fundamental freedoms and of the rule of law ”. 2. Art. 2 of the Title I, entitled Common dispositions , contains the following regulation also referring to the rule of law: „The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail”. 3. Chapter I of Title V, intitulat The general provisions on the union’s external action and specific provisions on the common foreign and security policy , contains the following regulations also referring to the rule of law , in the normative content of art. 21, as follows: 3.1. par. (1) item 1 „The Union’s action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity and respect for the principles of the United Nations Charter and international law”. 3.2. par. (2) „The Union shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations, in order to: lit. b. consolidate and support democracy, the rule of law , human rights and the principles of international law.” Finally, we should specify the following: the consolidated Version of the Treaty on the functioning of the European Union contains no regulation on the rule of law . 3.2. Identifying the principles on the rule of law in the Charter of fundamental rights of the European Union 13 For the purposes of this paper, we would proceed to the identification of the principles which refer also to the rule of law , in the Preamble of the Chater of fundamental rights of the European Union having the following content: „Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law . It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice.

13 Official Journal of the European Union, 2010/C 083/02 Charter of Fundamental Rights of the European Union

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On the other hand, it is imperative to mention in this paragraph the prrovisions of par. (1) of art. 6 of Title I entitled Common dispositions of the consolidated Version of the Treaty on European Union, which sets the legal status of the Charter of fundamental right of the European Union, in the European Union under the following wording: „The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adopted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties ”.

4. Highlights about the doctrine concerning the rule of law

We will identify selectively for this study the theorization of the rule of law, in two branches of law, respectively Constitutional Law and General theory of law and Decisions of the Constitutional Court of Romania. 4.1. Theorization of the Rule of law in the doctrine of Constitutional law 4.1.1. Constitutional law and political institutions – I14 With reference to the rule of law , we will mention for this paragraph the following opinions expressed by the authors: 1. The rule of law, in theory and reality imposed much later in the history of society, in principle when it was deemed that public authorities, the governors should be subject to some legal rules. It is obvious that the rule of law emerged as a raction to the despotic state. 2. Just like any other legal concept, the concept of law experienced amplifications and improvements. 3. Hence, the rule of law has a complex content and in this respect, it is deemed that we find ourselves in the presence of the rule of law, where: 3.1. the rule of law is obvious. 3.2. the content of this law enhances to their real dimensions citizen rights and freedoms. 3.3. it is thus achieved the balance, collaboration and mutual control of public powers (public authorities). 4. The free access to justice is achieved. 4.1.2. Political institutions – II 15 Regarding the notion of the rule of law , we mention for this paragraphthe following opinion expressed by the author: „The notion of rule of law implies an interdisciplinary approach, because the rule of law means not only the limitation of the state by the legal norm, but much more. The rule of law implies a guarantee of individual freedoms by legal rules, but also a rationalization of the exercise of power by the state authorities by developing a hierarchical institutional system based on legal norms.”

14 Ioan Muraru and Elena Simona T ănăsescu ,, Constitutional Law and Political Institutions , Edition 12, Volume II, Publishing House C H Beck, Bucharest, 2006, pp. 73- 74. 15 Ştefan Deaconu, The Political Institutions , Publishing House C H Beck, Bucharest, 2012, pp. 73 – 74.

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4.1.3. Institutions and constitutional procedures – in Romanian law and in comparative law – III 16 With reference to the rule of law , we mention for this paragraph the following opinions expressed by the author related to: 1. The notion and requirements of the rule of law : The author specifies from the very beginning: Art. 1 par. (3) of the Constitution proclaims Romania is the rule of law . With reference to this specification, the author makes the following statement: The rule of law phenomenon may be approached from various perspectives. As for us, we proceed to the tracking of the phenomenon from two angles: public power – coercive force and the relationshop between power and normativity. 2. Freedom and power seem impossible to reconcile: how can one be free and constrained at the same time? The relationship between freedom and coercion must be rational. This relationshiop emphasizes the true symbol of a civilization which bears the name of rule of law. Any exacerbation of one of the terms of the equation is equally damaging. Freedom without authority alterates, authority without freedom degenerates. Moreover, exclusive postulation of freedom is equivalent to voluntarism and exclusive postulation of coercion means human’s denial, his transformation in a mere object of power. Measure in all things should be set, balance should be found. 3. Power and normativity are in a mutual conditioning relation. Power creates norms, norms legiktimize and limit power. From such a point of view, the rule of law is that state subordinated to law. Nobody – a natural, legal person or public authority – can be above the law [art. 16 par. 2 of the Constitution of Romania]. 4. Guarantees for satisfying the requirements of the rule of law. Of course the competent public authorities may modify or to repeal the effective legal norms, including those included in the Constitution. By exercising this prerogative the sine qua non conditions of the rulw of law should not be endangered, the regulatory activity must be and is circumscribed to some rules among which: 4.1. The Constitution can be but the work of expressly authorized gatherings, made on genuine democratic bases, with the observance of the specific procedure of revision of the Constitution. 4.2. The very revision must be limited, so that it might not injur the essential values of constitutional democracy. 4.3. The laws and the other regulatory acts with the value of law must be subject to a constitutional revision. 4.4. All the other regulatory acts must observe the rule of their conformity with the acts having with a greater legal force. 4.5. Exercising the fundamental rights and freedoms should only temporarily be restricted, only in expressly determined situations, in proportion to the circumstances which justify the restriction and, anhyway, without suppressing the very substance of the right or freedom. 4.6. No law should restrict the free access to justice of any person, in defense of the

16 Ion Deleanu, The Institutions and Constitutional procedures – in Roman law and comparative law, C H Beck Publishing House, Bucharest, 2006, pp. 390 – 393.

Revue europénnee du droit social legitimate rights, freedoms and interests, and justice should be achieved under the laws and a real independence and impartiality. Such rules – by themselves guarantees for satisfying the requirements of the rule of law – are consecrated in our fundamental legal seat. 4.2. Theorization of the Rule of law in the doctrine of the General Theory of Law 4.2.1. General theory of law – I17 Referring to the rule of law , we mention for this paragraph the following opinions of the author: 1. One of the conditions of the rule of law is considered the autonomy of law, the observance of the contemporary status of law and, in general, of what, how and to what extent law could be. From this perspective the primacy of law is revealed, its empowerment and relative independence in relation with the state, the individualization of law a distinct social being. In the context of this interpretation, law is no longer a mere instrument subject to political interests which defines the legality space, but a rather autonomous phenomenon based on legitimacy, interdependent with the moral world, dealing with the issue of its purposes and targeted values. 2 On such coordinates, law, in the context of the rule of law , must provide for predictability and security, as a trustworthy right, optimizer for social relations, with clear, stable, durable legal norms, known to the public, general and non- retroactive, coherent and susceptible of obedience to them, elaborated by those authorized by law to invest them with construction force, obligatory for all the citizens or civil servants. Thus, law means not only the formal validation, but also a content which might favour the human being. 3 The corrolary of the rule of law must be the consecration, guarantee and promotion of human rights at the level of international standards, the development of a favourable climate for the manifestation and valorization of the human being, as a fundamental criterion of morality which might reveal to what extent the state and law are actually for the human being. 4 We think we may conclude that the rule of law – as a historic reality and a concept, has undeniable requirements and advantages, and is at the în acela şi timp perfectible in relation with the historic experience and the trends of social progress, therefore, the Constitution of our country, in art. 1 par. (3), states that „Romania is a democratic and social state , governed by the rule of law , in which human dignity, the citizens' rights and freedoms, the free development of human personality, justice and political pluralism represent supreme values, in the spirit of the democratic traditions of the Romanian people and the ideals of the Revolution of December 1989, and shall be guaranteed”.

17 Ion Craiovan, The General Theory of Law , Universul Juridic Publishing House, Bucharest, 2007, pp. 210-215.

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4.2.2. Rule of law in contemporary debates – II 18 With reference to the rule of law , we mention for this paragraph the following opinions of the author on the, „ The concept of the rule of law and the concept of the Defining traits of the rule of law” . a) The concept of the rule of law 1. Any theoretical or practical approach related to the rule of law cannot be, in our opinion, successful unless it starts from the correct understanding of this concept, from the original nucleus, from its perennial traits. 2. Failure to know the correct meaning of the concept, the exclusive retention of some of its traits and neglecting others, ignoring the conclusions deriving from the experience so far of humankind in the field of research may lead to failure not only at the cognitive level but also of social relations. 3. The concept of the rule of law cannot be placed only in a certain national context, but it must be situated in the international context, considering its universality, that cluster of principles recognized worldwide which constitutes the main coordinates of the rule of law, as a concept used not only by the national legislator, but also by international documents. 4. The very use of the concept of rule of law involves the recognition of a minimum of essential traits, without which this concept would become a nonsense. 5. Following the traits of the rule of law in accordance with its evolution, we can never forget that it meant ever since the beginning that law ceases to be a mere instrument of the legitimation of power, that it becomes an authority to which powe has to obey, a weapon that individual proceed in front of the power. Born as the result of the evolution of individualism, the whole concept of the rule of law remians centered on the individual, even when the stage of the classic liberal state is overcome. The classic concept of rule of law means providing individual’s autonomy, his freedom of action and self-limitation of the state’s scope in favour of the individual. b) Defining traits of the rule of law 1. Autonomy of law – is considered one of the prerequisites of the existence of the rule of law, both in the priginal liberal doctrine, and according to more recent opinions. 2. Predictability – is retained by most of the specialists as an essential element of the rule of law. 3. Separation of powers – has two meanings: 1. The meaning of political organization where all the powers are not assigned to only one person or to one and the same peer body, but are distributed to several authorities. 2. The meaning of organization where the legal functions of the state are assigned to some specialized and independent authorities, for the purpose of providing the balance between them, of the preservation of freedom and impossibility of a despotic governing. 4. Constitutional regime – is a defining trait of the rule of law.

18 Sofia Popescu, The Rule of Law in The contemporary debates , Publishing House of Romanian Academy, Bucharest, 1998, pp. 36-107

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This is approached from two directions: 1. Constitutionalism – lato sensu is a widespread idea, starting with the 18th c., according to which a constitution is needed in any state in order to prevent despotism. 2. Constitutionalism – stricto sensu, is the idea according to which a constitution is not only necessary, but it should be based on a few principles that might produce certain effects, such as the impossibility of despotism or political freedom. 5. Promoting human rights – a priority defining feature of the rule of law. 4.2.3. Theory of the rule of law – III 19 Referring to the rule of law , we mention for this paragraph the following opinions of the author: 1.The concern to constitute a state governed by the rule of law and to assure its normal operation is historically related to the promotion of democracy and building state structures able to defend and guarantee human fundamental rights and freedoms, to guarantee the conduct of social relations in a climate of lawfulness. 2. The concept of rule of law represents the interelation between State and Law, that intimate, natural and necessary relation between the legal norm and state political reality. 3. The shift from state law to rule of law was and still is a long and arduous process, placed between the poles of surprising and contradictory evaluations. 4.3. Theorization of the rule of law in the Decisions of the Constitutional Court of Romania At first sight, it seems surprising to present in this subparagraph the Theorization of the rule of law in the Decisions of the Constitutional Court. But, in settling the exceptions of unconstitutionality claimed in front of the Court, having as object the violation of the principle of rule of law , consecrated by art. 1 par. (3) of the Constitution, the Court was bound to theorize this notion because this was not theorized in jurisprudence of the Court. 4.3.1. Decision no. 70/2000 20 referring to the exception of unconstitutionality of the provisions of art. IV item. 7 of the Government Ordinance no. 18/1994 on the measures strengthening financial discipline of businesses, approved and as amended by Law no. 12/1995 In motivation of the exception of unconstitutionality it is alleged that the provisions of art. IV item. 7 of the Government Ordinance no. 18/1994 are in contradiction with the provisions of art. 1 par. (3) and of art. 134 par. (1) and (2) letter a) and b) of the Constitution. Referring to the violation of the provisions of art.1 par. (3) of the Constitution on the rule of law, the Court makes the following clarifications: „Concerning the relation between the criticized text and the provisions of art. 1 par. (3), thesis one of the Constitution , which enshrines the principle of rule of law , the Court notes

19 Claudia Gilia, The theory of the Rule of Law , C H Beck Publishing House, Bucharest, 2007, p. 20. 20 Decision no. 70/2000 was published in the Official Gazette of Romania, Part I, no 334 from July 19, 2000.

European Journal of Social Law that the requirements of this principle concern the major purposes of state activity, previewed in what is usually called the rule of law , the syntagm which implies the subordination of the state to law , providing those means which might allow law to censor the political options and, in this framework, to mitigate tbhe potential abusive, discretionary tendencies of the state structures. The rule of law provides for the supremacy of the Constitution, the correlation of the laws and all the normative acts with it, the existence of the system of separation of public powers, which should act within the limits of the law, i.e. within the limits of a law expressing general will”. 4.3.2. Decision no. 234/1999 21 on the exception of unconstitutionality of the provisions of the Emergency Government Ordinance no. 13/1998 regarding the restitution of some real estate goods which belonged to the communities of citizens belonging to the national minorities of Romania In motivation of the exception of unconstitutionality it is alleged that all the regulations in the Emergency Government Ordinance no. 13/1998 are contrary both to the constitutional norms, and to the fundamental principles of the rule of law, because the provisions of art. 114 par. (4), of art. 41 par. (1) si (2) and of art. 135 par. (6) of the Constitution are violated, as well as those regulating „Judicial Authority” included in Title III chapter VI Section 1 of the Constitution. Referring to the motivation of the exception of unconstitutionality, the Court notes that: „In a state governed by the rule of law , according to art. 1 par. (3) of the Constitution, reparation for injustice can be made only by resorting to legal procedures, which should not conflict with the constitutional provisions and liabilities deriving from the international treaties and documents that the Romanian state assumed and whose observance is obligatory, according to the provisions of art. 11 and 20 of the Constitution”.

5. Highlights the jurisprudential on the rule of law

For the purposes of this study we selected a few decisions made by the Constitutional Court of Romania, whereby the Court exercised the following constitutional powers as per art. 146 par. (1) lit. d) of the Constitution of Romania of 2003: 22 „To decide on objections as to the unconstitutionality of laws and ordinances, brought up before courts of law or commercial arbitration; the objection as to the unconstitutionality may also be brought up directly by the Advocate of the People”. Considering the object of study of the paragraph, the referral object of the Constitutional Court is bound to refer to one of the general principles of art. 1 entitled the Romanian State and, in this case, to the provisions of par. 3 with the

21 Decision no. 234/1999 was published in the Official Gazette of Romania, Part I, no 149 of April 11, 2000. 22 Constitution of Romania – 2003 , www.cdep.ro/pls/dic/site.page?id=371

Revue europénnee du droit social following content: „Romania is a democratic and social state, governed by the rule of law , in which human dignity, the citizens' rights and freedoms, the free development of human personality, justice and political pluralism represent supreme values, in the spirit of the democratic traditions of the Romanian people and the ideals of the Revolution of December 1989, and shall be guaranteed”. Considering the above-mentioned, we will present selectively the following Decisions of the Constitutional Court in the area of the object of study of the paragraph. 5.1. Decision no. 344/2013 23 on the exception of unconstitutionality of the provisions of the Law on the amendment and supplement to Law no. 3/2000 on the organization and holding of the referendum . In motivation of the objection of unconstitutionality the authors allege that the provisions of the Law for the amendment and supplement of Law no. 3/2000 on the organization and holding of the referendum are contrary to the Constitution, because this causes the modification of the minimum quorum of participation of the citizens in the referendum. The constitutional provisions allegedly violated are those of art. 1 par. (3) and (5) referring to the rule of law and to the obligation of observing the Constitution, of its supremacy and of the laws, of art. 2 par. (1) and (2) regarding national sovereignty and of art. 147 par. (4) which enshrines the obligatory general character of the decisions of the Constitutional Court. Examining the objection of unconstitutionality, the Court considers the following aspects: 1. The referendum is, par excellence, an instrument of direct democracy, whereby the citizens express their opinion and adopt a decision directly. 2. The validation of the result of the referendum depends, according to the provisions of the effective laws, on the cumulative fulfillment of two conditions: – the first, referring to the minimum number of citizens who must participate in the referendum tobe deemed as valid – the second, referring to the number of votes validly cast, which determines the result of the referendum. 3. A quorum of participation of most voters is necessary in other states too. 4. The Court notes that, according to art.2 par. (1) of Law no. 3/2000, the national referendum is the "form and means of direct consultation and expression of the sovereign will of the Romanian people", but the law fails to provide the obligation of the citizens to participate in the referendum, only their right. 5. The Court finds that the modification of the quorum of participation in the referendum is accomplished the same year of the initiation of the procedure of revision of the Constitution of Romania. For the above reasons, the Court rejects the objection of unconstitutionality of the provisions of the Law for the amendment and supplement of Law no. 3/2000 on the organization and holding of the referendum and found that the provisions of the Law for the amendment and supplement of Law no. 3/2000 on the organization and

23 Decision no. 344/2013 was published in the Official Gazette of Romania, Part I, no 407 from July 5, 2013.

European Journal of Social Law holding of the referendum are constitutional unless it applies to the referendums within one year since the date of entry into force of the law. 5.2. Decision no. 70/2000 24 on the exception of unconstitutionality of the provisions of art. IV item 7 of the Government Ordinance no. 18/1994 regarding the measures for strengthening financial discipline of economic agents, as approved and amended by Law no. 12/1995 In motivation of the exception of unconstitutionality it is alleged that the provisions of art. IV item 7 of the Government Ordinance no. 18/1994 are in contradiction to the provisions of art. 1 par. (3) and of art. 134 par. (1) and (2) letter a) and b) of the Constitution. Considering the exception of unconstitutionality, the Court finds that it has not decreed previously on the constitutionality of this legal text, in relation with the provisions included in art. 134 of the Constitution, and concluded that the text of art. IV item 7 of the Government Ordinance no. 18/1994, as approved and amended by Law no. 12/1995 is under this constitutional aspect. Concerning the relationship between the criticized text and the provisions of art. 1 par. (3), thesis one of the Constitution, which consecrates the principle of the rule of law , the Court notes that its requirements regard the major purposes of state activity, previewed in what is usually called the rule of law, a syntagm which implies the subordination of the state to the rule of law, providing those means which might enable law to censor political options and to mitigate within this framework those abusive, discretionary tendencies of state structures. The Court finds that, in reality, the author of the exception of unconstitutionality is considering an aspect of lawfulness, consisting in the way law is enforced, and not one of constitutionality. For the above reasons, the Court rejects the exception of unconstitutionality of the provisions of art. IV item 7 of the Government Ordinance no. 18/1994 regarding the strengthening financial discipline of businesses, approved and as amended by Law no. 12/1995, an exception raised by Societatea Comerciala "RO- STAR" – S.A., Bragadiru in the Case no. 1150/1999 of Bucharest Court of Law – Section III Civil Matters. 5.3. Decision no. 122/2015 25 on the exception of unconstitutionality of the provisions of the Emergency Government Ordinance no. 74/2013 regarding some measures for the imporvement and reorganization of the activity of the National Fiscal Administration Agency, and for the amendment and supplement of some normative acts In motivation of the exeption of unconstitutionality, its author essentially claims that the provisions of the Emergency Government Ordinance no. 74/2013 affects the status of some fundamental state institutions, and the right to work and social protection, which is contrary to art. 115 par. (6) of the Constitution.

24 Decision no. 70/2000 was published in the Official Gazette of Romania, Part I, no 334 from July 19, 2000. 25 Decision no. 122 /2015 was published in the Official Gazette of Romania, Part I, no 324 from May 13, 2015.

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Moreover, the author of the exception of unconstitutionality claims that the provisions of the criticized law are contrary to the provisions of the Constitution set forth by art. 1 par. (3) and (5) on the rule of law, and the obligation to observe the Constitution and the laws , art. 11 par. (1) and (2) on international law, art. 16 on the equality of rights of the citizens, art. 41 par. (1) şi (2) on work and social protection of work, art. 73 par. (3) letter j) on the regulation by organic law of the status of civil servants and art. 115 par. (4) and (6) on the terms and limits of adopting the Emergency Government Ordinances. Considering the arguments above, the Court retained no complaints regarding the violation of the provisions of art. 1 par. (3) and (5) and of art. 11 of the Constitution. For the reasons above, the Court rejects as ungrounded the exception of uncosntitutionality raised by Carmen Silvana Pop in the Case no. 77/84/2014 of Salaj Court of Law – Civil Section and finds that the provisions of the Emergency Government Ordinance no. 74/2013 on some measure for the improvement and reorganization of the activity of the National Fiscal Administration Agency, and for the amendment and supplement of some normative acts in relation with the filed complaints.

6. Conclusions

6.1. In the introductory part of the study, the first documents with a constitutional nature of the United Kingdom of Great Britain and Northern Ireland and the first written constitution in the world, the Constitution of the United States of America were analyzed which, in our opinion, set the first principles referring to the rule of law . 6.2. Moreover, it is worth pointing out that even today in the United Kingdom of Great Britain and Northern Ireland and in the United States of America the Supreme Courts are still enforcing two principles referring to the rule of law , i.e.: Due process of law şi Rule of law , with the explanations mentioned in the introductory part hereabove. 6.3. In paragraph 2 we proceeded to the identification of the principles referring to the rule of law in the Constitution of Romania of 1991 and in the Constitution of Romania of 2003 as well as in the Constitutions of other states. 6.4. We selected from among the Constitutions of Romania and of other states only those which contain constitutional principles which refer also to the rule of law . 6.5. In the content of paragraph 3 we proceeded to the identification of the principles referring to the rule of law in the consolidated Version of the Treaty of European Union and the Charter of fundamental rights of European Union. 6.6. The selection of the consolidated Version of the Treaty of European Union and the Charter of fundamental rights of European Union had as a landmark the constitutional provisions of art. 148 par. (2) which sets the priority of these treaties over the contrary provisions of internal laws and of art. 11 par. (2) which sets the

European Journal of Social Law principle according to which the Treaties ratified by the Parliament under the law are part of internal law. 6.7. In the content of paragraph 4 we proceeded to the selective identification of the theorization of the rule of law , into two great branches of law, i.e. Constitutional Law and General Theory of Law as well as the Decisions of the Constitutional Court of Romania. 6.8. A special aspect we would like to point out would be theorization of the rule of law in the Decisions of the Constitutional Court of Romania. In our opinion, this theorization set by the Constitutional Court becomes obligatory for justice when it analyzes an exception of unconstitutionality and included for the Court. 6.9. In the content of paragraph 5 we proceeded to the selection of Decisions of the Constitutional Court in the line of the studied object of the rule of law, whereby we conclude that the object of referral of the Constitutional Court must necessarily refer to the Constitutional Court to the provisions of art. 1 par. 3 of the Constitution, the only one which also includes the principles of the rule of law . 6.10. The study of this concept of the rule of law was suggested to us by the current trend of consolidation of the rule of law in Romania and in the member states of the European Union. 6.11. In addition, it is worth highlighting that the above study opens a complex and complete, but not exhaustive view in the analyzed field. 6.12. The key scheme proposed, considering the selective approach of the rule of law may be multiplied and extended for other future studies in the matter, considering the vastness of the analyzed field.

References: • Simina Elena T ănăsescu, Nicolae Pavel, Actele constitu ţionale ale Regatului Unit al Marii Britanii şi Irlandei de Nord, Editura ALL Beck, Bucure şti, 2003. • L B Curzon, Dictionary of law , Third Edition, Pitman Publishing, London, 1988, pp. 131 and 253 • Elena Simina T ănăsescu, Nicolae Pavel, Constitu ţia Statelor Unite ale Americii, Editura ALL Beck, Bucure şti, 2003. • Jay M. Shafritz, Dictionary of American Government and Politics, The Dorssey Press, Chicago, Illinois, pp. 178 and 485. • Constitu ţia Românie din anul 1991 1a fost publicat ă în Monitorul Oficial al României, Partea I, nr. 233 din 21 noiembrie 1991. • Constitu ţia Românie din anul 2003 1a fost publicat ă în Monitorul Oficial al României, Partea I, nr. 767 din 31 octombrie 2003. • Romania towards the State Governed by The Rule of Law, The Parliament of Romania, Publishing House Autonomous Regie “Official Gazette”, 1991, p.497. • Constitu ţia Spaniei, Editura ALL EDUCA ŢIONA, Bucure şti, 1998, pp. 13-14. • Constitu ţia Republicii Polone, https://constitutii.wordpress.com/2013/01/18/constitutia- republicii-polone/ • Constitu ţia Republicii Bulgaria din 12 iulie 1991, constitutii.wordpress.com/ 2013/02/08/constitutia-republicii-bulgaria/.

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• Jurnalul Oficial al Uniunii Europene, 2010/ C 83/01 Versiune consolidat ă a Tratatului privind Uniunea European ă şi a Tratatului privind func ţionarea Uniunii Europene. • Jurnalul Oficial al Uniunii Europene, 2010/ C 83/02 Carta drepturilor fundamentale a Uniunii Europene. • Ioan Muraru, Elena Simona T ănăsescu , Drept constitu ţional şi institu ţii politice , Edi ţia 12, Volumul II, Editura C. H. Beck, Bucure şti, 2006, pp. 73-74.. • Ştefan Deaconu, Institu ţii politice , Editura C. H. Beck, Bucure şti, 2012, pp. 103-104. • Ion Deleanu , Institu ţii şi proceduri constitu ţionale – în dreptul român şi în dreptul comparat , Editura C. H. Beck, Bucure şti, 2006, pp. 390-393. • Ion Craiovan , Tratat de teoria general ă a dreptului , Editura Universul Juridic, Bucure şti, 2007, pp. 210-215. • Sofia Popescu, Statul de drept în dezbateri contemporane , Editura Academiei Române, Bucure şti, 1998, pp. 36-107. • Claudia Gilia, Teoria statului de drept, Editura C. H. Beck, Bucure şti, 2007, p. 20. • Decizia nr. 234 /1999 a fost publicat ă în Monitorul Oficial al României, Partea I, nr. 149 din 11 aprilie 2000. • Decizia nr. 344/2013 a fost publicat ă în Monitorul Oficial al României, Partea I, nr. 407 din 5 iulie 2013. • Decizia nr.70 /2000 a fost publicat ă în Monitorul Oficial al României, Partea I, nr. 324 din 19 iulie 2000. • Decizia nr. 122 /2015 a fost publicat ă în Monitorul Oficial al României, Partea I, nr. 324 din 13 mai 2015.

European Journal of Social Law

ERROR IN THE NEW CIVIL CODE

Adrian ŢUŢUIANU *

Abstract: Error, the Civil Code is found in several articles (Art. 1207 to 1213), covering different types of errors that can occur at the time the act (inexcusable error, assumed error, calculation error, the error of communication or transmission) with appropriate sanctions that may arise. Depending on the type of error, the act has been concluded may be canceled in whole or in part, as a result of these sanctions intervening party application that was found in error. According to art. 1207 of the Civil Code, the contract may be canceled at the request of the party when the contract was in error essential if the other party knew or, where appropriate, should have known that fact upon which bore the error was essential for concluding the contract. Keywords: error, the Civil Code, contracts

The error is essential (a) they bear on the nature or object of the contract (for example, if one of the counterparties believed that enter into a maintenance contract and not a contract of sale), (b) when wearing the identity object benefit (eg. if one of the co-borrowers to buy a particular good, but actually purchase another) or in an amount thereof without which the contract would not be completed, or (c) they bear the person's identity or on a quality thereof without which the contract would not be completed (for example, when he signed a mandate agreement or mediation consideration of personal qualities representative or agent). The error that the mere grounds of the contract is not essential, unless such reasons that the intention of the parties were considered decisive. 1 In order to be invoked in accordance with art. 1208 of the Civil Code, the error should be excusable in the sense that the contract can not be canceled if carried out on which the error may according to circumstances known by reasonable diligence. Also, you can not rely on assumed error or error on an element bearing on the risk of error was assumed at that invokes or after circumstances had to be incurred by it. The victim of an error is not entitled to it contrary to the requirements of good faith. Good faith is presumed co-contractor must provide evidence to the effect that the party invoking an error made in bad faith. A new regulation is that the provisions regarding the error properly apply when there is an error of communication or transmission of information or documents. Specifically, these provisions are applicable to situations in which the error will bear on the declaration of the times in which the statement was

* Assoc. Prof. PhD. Valahia Univesity, Târgovi şte 1 F.A. Baias, E. Chelaru, R. Constantinovici, I. Macovei (eds.), The New Civil Code. Comment on articles, Publisher C.H. Beck, Bucharest 2012, p. 1266

Revue europénnee du droit social inaccurately transmitted through another person or by means of distance communication. Simple miscalculation does not void the contract, but only rectification, unless that materialized in an error on the quantity, was essential for concluding the contract. Calculation error should be corrected at the request of either party. By way of novelty, Civil Code admits the possibility of invoking the error of law or error on the existence or contents of a legal rule. Error of law is considered essential when determining the legal norm, according to the will of the parties to conclude the contract. However, the error of law can not be invoked if the laws affordable and predictable. The part that was in error at the conclusion of a civil legal act has two choices: to request the cancellation of the legal document or to require its adaptation. Adapt the contract in case of error is a new mechanism regulated by art. 1213 of the Civil Code, which requires that the party was in error to demand performance of the contract by notice in the manner that party understood its terms. Adapting contract may be made only with the consent of the other. So after being informed of the manner in which the party entitled to anulability understood the contract and before it has obtained the annulment of the other Party shall, within 3 months from the date it was notified or the date when he was served with the summons application to declare that he agrees with execution or to execute the contract without delay, as was understood that part of the error. It has also been introduced Calculation- error, an error that the mere grounds of the contract is not essential, unless such reasons that the intention of the parties were considered decisive. The contract may be canceled if carried out on which the error may according to circumstances known by reasonable diligence. On the other hand, the mere miscalculation does not void the contract, but only its rectification, except where, materialized in an error on the quantity, was essential for concluding the contract. Calculation error should be corrected at the request of either party. The novelty of the Civil Code is that even the error key may be covered, meaning that the legislature leaves to the parties that invoke or not the grounds for invalidity and text of the law covered by the old Civil Code wrote that "the error does not produce nullity only when object falls on the substance of the Convention", which means that in these conditions the effect was nullity, without the parties can overcome this. In light of the Civil Code we can say that the parties will prevails. Undue influence is that vice of consent which consists of misleading a person using cunning or deceptive means or by omission, fraudulently informing the contracting party on circumstances that ought to be disclosed (art. 1214 NCC). Regarded as intentional tort committed by its author, the fraud involves a material element and one intentional or subjective. In terms of material element of the new regulation pays attention not only to the commissive fact (action, consisting in the use of fraudulent schemes, likely to cause the error), but that omission (negative

European Journal of Social Law attitude of not notify the other Party circumstances that had to be disclosed). Unlike the previous regulation, which stated expressly provided that the fraud was due to the conclusion of the contract (as "without those machinations, it is obvious that the other party would not have contracted") so that the error caused to be regarded elements critical to the contract, the new regulation is not imposed this condition, it is sufficient that the attitude of the party have been disjointed error, even if it was not essential (art. 1214 par. 2). An important difference from the old Civil Code is that the fraud can void the contract regardless of the element on which bears the item was determining whether or not to conclude the contract. Under the old regulations, the fraud does not invalidate the contract only if the contract was decisive conclusion. Thus, if employed fraudulent representation determined the acceptance by other parties of less favorable terms, could not invoke the nullity of the legal act ended, but could only ask for damages. This possibility of a claim for damages is kept as an option for one whose consent was vitiated, which has two choices: to demand cancellation of the contract, with damages or require its maintenance and reducing his service with value damages which would be entitled. Undue influence can also come from a third party where the other party knew or, where appropriate, should have known of the fraud at the conclusion of the contract. Undue influence is, therefore, a lie told by someone at some point to determine conclusion of the contract and undue influence can be a positive and a negative in that part fails to disclose his other certain circumstances. To be in the presence of the error vitiated consent must meet the following conditions, among which only a few are mentioned in art. 1207: a) the error must be essential; b) knowledge of the contractor essential character of the element on which gate error; c) the error to be excusable; d) the error must be unresolved. Only the first two conditions are covered in art. 1207 headquarters of the error, the latter being provided in Art. NCC 1208 (excusable error) and art. NCC 1209 (error not assumed). Error of law (error iuris) is essential when determining regards a legal norm, according to the will of the parties to conclude the contract, but an error of law can not be invoked in case of legal provisions available and predictable. 2 The main reasons the contract should cover the recitals, the purposes of the contracting parties by concluding a particular contract. In other words, the reasons for the contract, the theory erorrs- vice of consent, should be mediated cases, indirect led to the decision to sign a specific contract. If such cases were decisive and they were erroneously established and understood, such a situation may be invoked as a critical error and will attract anulability of the contract. 3

2 E. Lupan, Sztranyiczki S., E. Veress, R.A. Pantilimon, Civil Law. The general part under the new Civil Code, Publisher C.H. Beck, Bucharest 2012, p. 234-235 3 T. Prescure, R. Matefi, Civil Law. General Part. Persons, Hamangiu Publishing House, Bucharest, 2012, p. 153

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To retain error on the substance (error in substantia) 4 object of the contract requires that the party invoking this vice of consent have been misled about the qualities substantial object of the contract, and the contractual partner to be known error status of the other parties with respect to an essential element in concluding the contract. Thus, if the action for annulment of a contract of sale shall be claimed by the seller applicant error buyer the essential nature of the obligation provided the buyer to build on the land sold to a museum, it is not covered hypothesis legal in art. 954 par. (1) Civil Code. [Art. 1207 NCC] because contracting parties may rely only own errors as a vice of consent, and no error contractual partner. 5 Art. 1208 NCC. Inexcusable error – (1) The contract can not be canceled if the fact on which wore error may by circumstances known with reasonable diligence. (2) error of law can not be invoked in case of legal provisions available and predictable. Error of law, according to an opinion can not be invoked as a vice of consent, given the compulsory knowledge of the law.6 We are in the presence of the error on the substance when it falls on the Convention. The person who buys a jewel that believes gold, which is bronze. In the second sentence of paragraph. (1) is provided a criterion mixed subjective-objective in determining the inexcusable error of fact: that could be known "by circumstances" (involve subjective assessment in concreto, and depending on the person's status) "with reasonable care" (involving objective assessment taking into account the normal diligence which may be filed by the average person). In connection with this latter clause "reasonable diligence" requires the implementation of common stock, under the contract envisaged by the interested party to verify all aspects relevant to formation of a valid consent, which excludes error rough the field of coverage of vice error. On the other hand, the obligation to inform can not be transformed into a burden too onerous – meaning that his side need to perform exorbitant costs to get the information needed or to overcome difficulties very large, any nature for this purpose. These considerations may apply in the case of professionals, but only if the necessary information is hardly accessible or very expensive (condition harder, but not impossible professionals gathered in the situation). According to paragraph (2), it is considered inexcusable error of law when legal provisions concerning "affordable and predictable". By regulating the express error of law 7 and its requirement to be excused was achieved a balance between sentence and sentence admissibility error of law presumption of knowledge of the law. So are presumed known, being excluded from the error of law, legal provisions "affordable and predictable" without preset rules but certain categories (eg imperative or public order). It is not specified any criteria for determining

4 L.A. P ădure, Course of civil law. General Part. Persons, Bibliotheca Publishing House, Targoviste, 2015, pag. 85 5 ICCJ, Section II of the Civil Decision no. 3631 of 19 November 2014, www.scj.ro 6 L.A. P ădure, Considerations on amendments to the Civil Code, Zven Publishing House, Targoviste, 2016, pag. 7 Par. (3) art. 1207 NCC

European Journal of Social Law affordable and predictable nature of the legal provisions excluded by error of law. By analogy with how the assessment of the inexcusable error of fact in par. (1), we could also apply to the inexcusable error of law all subjective-objective mixed criterion, meaning to take account of preparation, age etc. errans's, but also frequent use of legal norm in a particular field, by publicizing them in different ways. Obviously, the discussion is unrelated to the issue of enforcement of legal norms by publishing in the Official Gazette and the obligation to observe them. Assumed error – No error voids the contract 8that carries an element of risk of error which was assumed at that invokes or after circumstances, it had to be assumed. Art. 1210 NCC. Calculation error – mere miscalculation not void the contract, but only rectification, unless that materializing into an error on the quantity, was essential to conclude the contract. Calculation error must be corrected at the request of either party. Only the quantity error vitiates the consent and is punishable by cancellation of contract, false representation of reality as it involves math or other data based on which the calculation is made, excluding the calculation itself. If there miscalculation (operation result miscalculated) and error over the amount (misrepresentation of facts on which sat at the base of operation mathematical calculation) will prevail action for annulment, compared to rectifying action. The party invoking error on the amount must demonstrate the critical error when concluding the contract, while the calculation error can be corrected by amendment at the request of either party. This last statement is removed from the lead hypothesis that simple miscalculation would oppose that bad faith troubleshoot stripping. Both simple calculation error, and the error over the amount can be raised depending on the nature of the contract, namely by way of clarifying the scope of material contract or the contractual price, excluding the hypothesis wrong to evaluate its own interests by one parties Finally, the scope of art. NCC 1210 only include aspects of training contract and not excluding it. Art. 1211 NCC. Poor communication or transmission – provisions regarding the error is applied properly and when the error gate on the declaration of will, or when the statement was inaccurate passed through another person or by means of distance communication. The error can occur and, therefore, of interest or when triggering internal will (because if the psychological process that preceded the expression of consent, we started from false premises consent either missing or is altered, since this error consent form) or declaration, transmission or interpretation will. Assumptions governed by art. 1211 are: - A) the error gate on the way to externalize their own volition legal declaration by assigning a different meaning than contemplated in particular for this occasion will of internal training. To avoid possible abuses of the declarant, it is necessary to resort prior interpretation of the declaration of will, to verify several

8 Art. 1209 NCC.

Revue europénnee du droit social aspects: if the significance attributed part coincides with the rules (social, linguistic, topical etc) on the expression used (expressions, words used, etc) and if, in relation to traits and qualities declarant (training level, age etc), but also the circumstances of place and time, anyone would have been in a position to assign statement a different meaning; - B) the error gate on the transmission of inaccurate declaration of will by another person (representative, trustee, etc.); - C) communication error on inaccurate gate of the declaration of will by means of distance communication (telephone, fax, e-mail etc). Art. 1212 NCC. Invoking the error in good faith – Part who is the victim of an error it can not rely contrary to the requirements of good faith. Art. 1213 NCC. Adaptation of the contract – (1) If a party is entitled to invoke anulability of the contract for mistake but the other party declares itself willing to perform or performs the contract as it was understood by the party entitled to anulability, the contract is deemed to have been concluded as to understand the latter part. (2) In this case, after being informed of how the party entitled to anulability understood the contract and before it has been obtained annulment, the other party shall, within 3 months from the date it was notified or the date when the application was served summons to declare that he agrees with execution or to execute the contract without delay, as understood by the parties in error. (3) If the statement was made and the party in error within the period stipulated under par. (2) or the contract has been executed, the right to obtain the cancellation is extinguished and the notification referred to in para. (2) is considered ineffective. Applying art. 1213 involves checking the following items: a) fulfillment of the conditions of consent vice error for either party. Not required to be common error; b) the contract has not been executed yet. This requirement implies the absence of any injury caused by spontaneous errans's error; c) compliance with the protocol information, notification – statement executing, implementing proper contract between the parties prior to obtaining cancellation of the contract. In this respect, para. (2) art. 1213 provides that the contracting partner by informing errans about how it understood the contract; information can be achieved in two ways: through a notification (prior to the application of summons) or through or at the request of summons judecta. The object is to present to inform how errans understood the contractual relationship and, consequently, its execution as a result of an error essential excusable spontaneous and not assumed. Also, the provisions of art. 1212 should be considered in this process. Since informing that the supplier has available a term of three months to exercise the right or potestativ adaptation of the contract, within which flows differently, depending on the way it has been informed either of the notification date or the time the application for summons (but only if meanwhile

European Journal of Social Law did not rule cancellation of the contract). During this period, the contracting partner will reflect about the opportunity of representation contract execution version of errans's, judging by his own interests. That contractor has two possibilities for exercising the right to adapt the contract: by declaration of execution or performance of the contract in the manner understood by errans. Text legally exclude a third variant, adjusting the contract by negotiating execution for the event that the contractual partner should not agree with the manner in which he is shown execution by errans and would propose another way of executing according to its own his vision. After examining the content of ideas Article 1213, one can conclude that the error vice of consent, even if it is an essential one, is not invariably an impediment unavoidable to execute a legal document about that, at least part, is in error about a decisive factor in making the decision concluding that act. 9 It is true that art. 1213 NCC provides negotiate how should execute the contract, but art. 1213 NCC, in our view, contains an implicit obligation to negotiate in any situation where it would be required. This obligation of negotiation is deducted from reading and art. 1213 Art. 1212 NCC, which regulates the invocation error in good faith. Therefore whenever there error is found, the victim will notify the other party of the error, the manner in which it understood the contract. If the contractual partner agrees, as a result of its good faith, the fact that the other side has been found in error but disagrees with the method that interprets the other side how should executed contract, general obligation of good faith requires right and obligation of the parties to cooperate in order to extinguish this litigious situations. And if the way in which he acted the other hand, the victim of the error, in the event that the contractual partner had a different opinion on how that would have to be executed contract and tried to negotiate in good faith this with other hand, we believe that the court, saying the entire existing evidence material to the case, although there anulability premises contract for mistake under certain circumstances and possibly violating art. 1212 NCC will be able to reach the dismissal action on grounds of abuse of rights. 10

9 T. Prescure, R. Matefi, Civil Law. General Part. Persons, Hamangiu Publishing House, Bucharest, 2012, p. 155 10 B. Oglinda, Business Law. General theory. The contract, Juridical Universe Publishing House, Bucharest 2012, p. 225

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F.A. Baias, E. Chelaru, R. Constantinovici, I. Macovei (eds.), The New Civil Code. Comment on articles, Publisher C.H. Beck, Bucharest 2012 ICCJ, Section II of the Civil Decision no. 3631 of 19 November 2014, www.scj.ro I. Genoiu, Civil Law. General Part. Persons. Seminar notebook, Ed C. H. Beck, 2015 L.A. P ădure, Course of civil law. General Part. Persons, Bibliotheca Publishing House, Targoviste, 2015 L.A. P ădure, Considerations on amendments to the Civil Code, Zven Publishing House, Targoviste, 2016 O. Ungureanu, C. Munteanu, Civil Law. General Part in the regulating of the new Civil Code, universul Juridic, Bucharest, 2013 T. Prescure, R. Matefi, Civil Law. General Part. Persons, Hamangiu Publishing House, Bucharest, 2012

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SPECIALIZATION AND PORT EFFICIENCY: THE CASE OF TUNISIAN PORTS

Nahed ZGHIDI *

Abstract: The article aims to measure the efficiency of the Tunisian seaports using the DEA method and establish a relationship between the efficiency scores and some structural variables. The DEA has provided us with the means to determine the degree of the port efficiency and see how it has changed over a period of 6 years. The econometric exercise revealed the inefficiency of almost all the ports. We will show that this result testifies the state of the country's infrastructure (for instance weak draft, low-linear board). We can assert the critical role of infrastructure in improving efficiency. Moreover, Tunisia is has to diversify these ports in order to avoid any kind of wasted capital. Keywords: Tunisian Seaports, port efficiency, specialization index.

1. Introduction

Maritime commerce and international trade go hand in hand. The development of the first has contributed, to a large extent, to the economic success of the past fifty years. However, two major features characterize this type of trade: a relatively rapid growth and a changing geography. Between 1970 and 2010, maritime trade increased from 2.556 billion tons to 8.408 billion tons making shipping one of the most dynamic sectors of the economy after the war (UNCTAD, 2011). From this point of view, maritime transport plays a crucial role in the economic development of nations. It is an important part of international trade as about 90% of the world trade volume was made by sea. Following the enactment of free trade agreements, this role has increased in the recent decades and resulted in the intensification of trade between countries. Free trade can be a driving force for economic growth, create wealth, improve the working conditions and provide a better division of labor between countries on the basis of comparative advantages. Consequently, everyone agrees that the port is a key link in the international supply chain and a key strength of the economy (Suykens and Van de Voorde, 1998). From this point of view, the port efficiency becomes a major factor for an economy to develop a competitive advantage internationally (Tongzon 1989; Tongzon and Chin, 1998). Cheon et al. (2009) define the ports as the backbone of international trade since they provide direct links coming from the international

* Commercial High School of Sfax, University of Sfax, Tunisia E-mail: [email protected].

Revue europénnee du droit social transport systems towards a regional and local destination and commercial channels. These authors have attempted to show the interaction between the economic, the port and the transport activities. In an economic and industrial outlook, the concept of a port generally refers to a range of facilities designed and used to ensure the transfer of cargo between the ship and the sea and the various means of land transport. The port is an interface, a contact area between the two areas of land and maritime traffic (Vigarié, 1979). Nevertheless, the improvement of services affects the port efficiency and maritime transport costs (freight rates). Since efficiency and competitiveness seem to be related, the port authorities should boost the first through improving the quality of the services provided. The studies of Tongzon (1998) and Clark et al. (2004) show that the most efficient ports, such as those of Singapore, Hong Kong, Belgium and the Netherlands, have the lowest costs of port services (e.g. cost of cargo handling). By contrast, the most inefficient ports of Africa and Latin America, in particular, have the highest costs of port services. However, these authors argue that the determinants of the port efficiency depend not only on the variables related to the port infrastructure but also on other variables related to the management and the policies adopted within the seaports. Being aware of the major role of the seaports in the economy, most countries outline development strategies of the port, e.g. investment programs, refocusing of each actor, connections of pre and post shipment services, etc… Tunisia does not seem to escape the phenomenon. Shipping in Tunisia has a crucial role in the consolidation of the country's economic activity as more than 95% of foreign trade is carried by sea. Efficiency and, particularly that of the Tunisian seaports, is the culmination of our research work Our work plan is divided into five parts. The first one prepares the ground through a theoretical scanning. We will focus on the work methodology in the second part. The Tunisian port system, i.e. the infrastructure and traffic, will be the subject of the third part. The fourth part is devoted to the empirical analysis in its strict meaning, namely the estimation results of the efficiency (inefficiency) of the port industry in Tunisia. The final part tries to establish a relationship between the efficiency scores and some structural variables. Our analysis helped us find that the variables affecting efficiency are the specialization index, the draft, the total tonnage, the number of specialized quays, the number of ordinary banks and the number of terminals. In the recent years, we have witnessed successful application of the DEA in the analysis of container terminals in the seaports. Hayuth Roll (1993), in particular, while testing all the 20 ports, recommend using cross-sectional data which provide a better assessment of the relative effectiveness of the various organizational methods of the port services. For inputs, the authors use the number of employees, the annual investment per port, the uniformity of the port facilities

European Journal of Social Law and the cargo traffic, and for outputs, they use the number of containers, the service level, the customer’s satisfaction and the number of ships calls.

Using data of 1996 about four Australian ports and twelve international ports, Tongzon (2001) concludes that the most pronounced inefficiency is arising from the under-utilization of inputs in certain ports, e.g. the number of cranes, the number of container terminals, and the number of tugboats, the land area and the full delay time. In terms of methodology, Valentine and Gray (2001) argue that the DEA technique proves to be a useful tool in measuring the efficiency of the container terminals. Their study was specifically concerned with the efficiency of the container traffic in the North American ports and 31 European ones. Using cross-sectional data from (1999-2000), Barros (2003) assessed the technical and allocative efficiency five Portuguese ports through an analysis of the potential impact that the port regulation could have on the port productivity. The author argues that incentive regulation which is expected to boost efficiency and improve productive efficiency has not given the desired results and therefore he recommends revising the policy of the port management to enhance efficiency. Barros and Athanassiou (2004) refined the analysis by examining the relative efficiency of the Portuguese and Greek ports using the DEA method. The authors conclude that nothing but privatization could lead to an economically efficient allocation. Using two cross-sectional and panel- databases and the Window DEA model, Cullinane et al. (2004) measured the efficiency score of the major world container ports. It is clear from their work that the diagnosis using cross-sectional data does not give an accurate measurement of the port efficiency. However, the Window DEA technique applied to the panel data could help identify the time variation efficiency in each port and compare it with the one observed in other ports. Similarly, Min and Park (2005) used the Window DEA technique to see the efficiency evolution of 11 container terminals over a 4 year period. Cullinane and Wang (2006) studied the efficiency of 69 container terminals in Europe having an annual capacity of more than 10,000 TEUs. The cross-section DEA technique allowed them to certify the inefficiency of most of the terminals. In particular, the average efficiency of the container terminals varies from one region to another to a lesser or greater extent. Kaiser et al. (2006) studied the port productivity using the DEA model. These authors defined an efficiency frontier as the best port practices that inefficient ports must follow. Based on the assumption that the efficiency of the container ports depends on equipment, communication techniques and port competition, the purpose of the study is primarily to reduce the use of inputs (overall platform length and gantry crane) and increase the outputs (container traffic).

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2. Port efficiency: DEA model

The literature on port efficiency is scarce. However, recent studies have been conducted with respect to the port efficiency and productivity. These studies refer, more or less, to two approaches. The first is about the nonparametric approach. Being often equated with the DEA model (Data Envelopment Analysis), it helps construct empirical production frontiers based on optimization mathematical models and linear programming techniques. The second deals with the parametric approach and uses the econometric models of production stochastic frontiers. The chosen approach is called nonparametric because it does not request any limitations about the form of the function connecting the inputs and outputs (cost or production function). It is based on a method called the DEA (Data Envelopment Analysis) developed by Charnes, Cooper and Rhodes (1978) from the pioneering work of Farrell (1957). The "DEA" method is going to help us statistically analyze, without a preliminary specification, the functional form of the frontier. It should be noted that this technique is an estimate mathematical programming method of the firms’ efficient frontier (in our case the port is seen a firm). The program intends to maximize the ratio of the outputs / inputs vectors and therefore recognizes the firms which have the highest productive efficiency. With the simultaneous solution of N linear programs (if N ports), the method estimates the ports for which this combination is considered optimal. The most powerful ports of our sample will form the efficiency frontier, benchmark against which the effectiveness of the other ports will be calculated. Inefficiency is measured as the distance from the efficient frontier. Since the efficient frontier is formed by the most efficient ports, its score will be equal to 1. The others will have a measure of efficiency between 0 and 1. Hence, the technical efficiency scores estimated using the "DEA" method are measures of a relative efficiency. We should remember that the "DEA" method can be used in two slightly different approaches (input-oriented approach and output-oriented approach). The input-oriented approach minimizes the use of inputs for a given level of outputs, while the output-oriented approach maximizes the outputs for a given level of inputs. Both approaches give very close scores and an identical ranking of firms. The study of the Tunisian ports is designed according to both models of the DEA namely the model with the assumption of constant returns to scale (CRS) and the model with the assumption of variable returns to scale (VRS) with input orientation. The choice of these two types of models is based on the fact that the first kind of return helps view the overall efficiency of the sample while the second type can allocate the overall efficiency into pure technical efficiency and scale efficiency. The input orientation is the ability of a firm to use the minimum inputs to increase efficiency because the latter are the most controllable variables by the decision makers. Therefore, by choosing this model, we can wrap the data year by year or analyze the evolution of a given port over time.

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3.1. Models year per year

The year by year analysis to identify the efficiency relative to each port entity compared with others during the year of study. This can be achieved by solving the following two linear programs: CCR dual input oriented model Min Z = θ − ε (s 1'OS + m 1' IM )  θ ,λ,ON ,IM ,IL 0 1 1  6 −Yr0 + ∑λ jYrj − OS r = 0   j=1  6 θ X i0 − ∑λ j X ij − IM i = 0  j=1 λ ≥ ,0 OS ≥ ,0 IM ≥ ,0 ε ≥ 0 BCC dual input oriented model Min Z = θ − ε (s 1'OS + m 1' IM )  θ ,λ,ON ,IM ,IL 0 1 1  6 −Yr0 + ∑λ jYrj − OS r = 0  j=1  6 θ X i0 − ∑λ j X ij − IM i = 0  j=1  ' N 1λ = 1 λ ≥ ,0 OS ≥ ,0 IM ≥ ,0 ε ≥ 0   with, Q : Efficiency score;

Yr0 : Output observed quantities the efficiency of which is measured with r = 1;

X i0 : Input observed quantities the efficiency of which is measured with i = 1,2 ;

Yrj : Output observed quantities r of DMU j , with j = 1,2,...,6 ;

X ij : Input i observed quantities of DMU j ;

l j : Weighting coefficients;

OS r : Output deviation variables r;

IS i : Input deviation variables i.

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3.2. Changes over time

When looking at the evolution of a single port over time, year by year analysis is no longer valid since, from one year to another, efficiency of a port cannot be considered due to the efficiency variation of the other ports. In this case, each port must be considered as a DMU that differs from one year to another, that is to say, for example, Bizerte 2005 and Bizerte 2006 are considered as two separate DMUs. Therefore we will have 36 different DMUs in a single period indexed from 1 to 36. As a result, if we retain the assumption of the constant returns to scale, the model becomes: CCR dual input oriented model Min Z = θ − ε (s 1'OS + m 1' IM )  θ ,λ,ON ,IM ,IL 0 1 1  36 −Yr0 + ∑λ jYrj − OS r = 0   j=1  36 θ X i0 − ∑λ j X ij − IM i = 0  j=1 λ ≥ ,0 OS ≥ ,0 IM ≥ ,0 ε ≥ 0 BCC dual input oriented model Min Z = θ − ε (s 1'OS + m 1' IM )  θ ,λ,ON ,IM ,IL 0 1 1  6 −Yr0 + ∑λ jYrj − OS r = 0  j=1  6 θ X i0 − ∑λ j X ij − IM i = 0  j=1  ' N 1λ = 1 λ ≥ ,0 OS ≥ ,0 IM ≥ ,0 ε ≥ 0  

4. Tunisian port system

4.1. Infrastructure

The Tunisian port chain consists of seven Tunisian ports open to international trade: the Bizerte port – Menzel Bourguiba, the port complex of Tunis (La Goulette, Tunis, Rades), the Sousse port, Sidi Yousef Sfax Port, Skhira port, Gabes port and Zarzis port. With the exception of Skhira port, which is managed by a

European Journal of Social Law national oil company, all the other ports are managed by the Office of Merchant Navy and Ports "OMMP" (M'rad, 2001). Its strategic position on the axis of Gibraltar-Suez shipping services and its proximity to the Southern Europe gives the Bizerte-Menzel Bourguiba port a major role in the socio-economic and cultural development of the region and makes of it the fire launch to conquer Europe and the Mediterranean market. Thanks to its strategic geographic location, the port complex of Tunis would be a mandatory step since it is the focal point of the major road and rail networks in the country. This port, and mainly that of Rades which is characterized by a geographical extension of the La Goulette port (passenger on cruise traffic), would be one of the strongest links in the chain of the national maritime transport. The geographical position and the various goods transport from Sousse port have made of it the most dynamic commercial ports. Founded in 1905, Sfax port, which is the oldest trading ports of the country, is very versatile (general cargo, grain, minerals, etc) As a result it ranks first in terms of traffic and second in terms of value. Not far from the industrial Gabès port (chemicals and bulk solids) is that of Skhira which is distinguished by its traffic of chemical and oil products. Zarzis port is dominated by oil traffic, particularly because of its proximity to the oil fields of the extreme southern Tunisia. The activity in this port is linked to the creation and development of a free zone in the region.

4.2. Traffic structure and specialization indices

4.2.1. Traffic structure

Maritime traffic consists of four broad categories such as liquid bulk, dry bulk, break bulk and conventional varieties. Graphic 1 shows the evolution of the maritime traffic at the national level over the period 1999-2010. The Tunisian seaport traffic between 1999 and 2010 is characterized by a slight superiority of imports over exports. Indeed, imports accounted for 53% against 47% for exports of domestic traffic in 1999 and 56% against 44% in 2010. Liquid bulk represented 52% of the traffic volume in 1999 and 34% in 2010. The part of the dry bulk in 1999 rose to 32% of the total traffic to reach 39% in 2010. The conventional activities accounted for 10% of the traffic during the same period. The part of the various unitized goods rose again from 8% in 1999 to 17% in 2010. The improvement of the various unitized items is explained by the phenomenon of containerization which reached considerable dimensions nowadays.

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Graph 1: Evolution of the Tunisian ports’ total traffic (1999-2010)

Source: the authors

Table 1 summarizes the information related to the structure of the national traffic i.e. the proportion of imports (noted imp), exports (noted exp), of the liquid bulk (LB), dry bulk (DB), the conventional activities (CONV) as well as the various unitized items (noted UI):

Table 1: Structure of the national maritime traffic (1999-2010) Imp Exp LB DB CONV UI Year proportion proportion proportion proportion proportion proportion 1999 0.53 0.47 0.52 0.32 0.09 0.08 2000 0.57 0.43 0.47 0.34 0.10 0.09 2001 0.58 0.42 0.44 0.36 0.09 0.10 2002 0.58 0.42 0.44 0.38 0.09 0.10 2003 0.54 0.46 0.48 0.33 0.09 0.10 2004 0.52 0.48 0.49 0.31 0.09 0.11 2005 0.56 0.44 0.44 0.35 0.09 0.12 2006 0.57 0.43 0.43 0.35 0.10 0.13 2007 0.58 0.42 0.40 0.35 0.10 0.14 2008 0.56 0.44 0.42 0.34 0.10 0.14 2009 0.55 0.45 0.43 0.32 0.09 0.16 2010 0.58 0.42 0.34 0.39 0.10 0.17 Source: the authors

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4.2.2. Specialization index

The specialization index reliably reflects the degree of the terminal diversification. It is considered as a determinant of efficiency and hence we have to logically calculate it. In transportation, to see whether a terminal is specialized in handling a given type of goods or it transships diversified goods, we have to calculate the specialization index (Comtois et al., 1993). This index is used to identify the degree of diversification of a port, an airport, a railway station, etc. The specialization index is developed in two stages. In the first we calculate the sum of the tonnage squares of each class of goods handled by the port divided by the square of the overall tonnage of cargo handled by the port: 2 ∑ti i SI = 2 ( ∑ti ) i with - SI: Specialization index - t i: Tonnage Expressed as decimal, this result is then subtracted from number 1. The index ranges from 0 to 1. An index equal to the unity means that the port handles a much diversified traffic, while an index equal to 0 reflects the absolute specialization of the port in the traffic of a single type of goods. This is where the originality of our work lies in the way that such a measure, as far as we know, has not been carried out for the Tunisian case.

Table 2: Evolution of the specification index of the Tunisian maritime ports (1999-2010) Year National Bizerte Tunis Sousse Sfax Skhira Gabès Zarzis 1999 0.62 0.46 0.71 0.60 0.48 0.00 0.52 0.40 2000 0.64 0.52 0.70 0.59 0.45 0.00 0.51 0.37 2001 0.65 0.52 0.69 0.59 0.30 0.00 0.52 0.47 2002 0.65 0.51 0.67 0.58 0.28 0.00 0.46 0.58 2003 0.64 0.44 0.66 0.56 0.30 0.00 0.46 0.55 2004 0.64 0.43 0.66 0.57 0.36 0.00 0.49 0.54 2005 0.66 0.42 0.63 0.55 0.32 0.00 0.47 0.49 2006 0.67 0.50 0.64 0.55 0.33 0.00 0.47 0.51 2007 0.68 0.48 0.61 0.53 0.31 0.00 0.50 0.54 2008 0.68 0.49 0.57 0.49 0.35 0.00 0.48 0.55 2009 0.68 0.47 0.51 0.51 0.39 0.00 0.51 0.42 2010 0.69 0.64 0.52 0.49 0.37 0.00 0.46 0.24 Average 0.66 0.49 0.63 0.55 0.35 0.00 0.49 0.47 Source: the authors

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As it is shown in table 2, the specialization index of the Tunisian maritime ports ranges from 0.62 to 0.69 with an average of 0.66 between 1999 and 2010. By examining this index, we can conclude that there is a trend towards the diversification of the national traffic.

5. Measuring the technical efficiency of the Tunisian ports

5.1 Data and variables

The available Data belong to 6 ports and cover the period 2005-2010. The ports used are those of Bizerte, Tunis complex, Sousse, Sfax, Gabes and Zarzis. Nevertheless, the DEA technique helps us, first, to assess the technical efficiency of the entire port sector in Tunisia and, second, compare each port with the other ports. Moreover, does this technique identify the changes in the port efficiency over time if we take it as separate entity in each time period? Technical efficiency scores for the various ports are estimated using a computer program developed by DEA, Coelli (1996), ie DEAP version 2.1. We should remember that the study of the port efficiency refers to two types of DEA models: the model with the assumption of constant returns to scale (CRS) and the one with the assumption of variable returns to scale (VRS). In our case, we used the DEA model of the variable returns to scale and output orientation (BCC). We imagine that this is the most appropriate choice for the current context of the port sector in Tunisia. Moreover, we assume that the production technology of the port is reduced to two inputs: capital'' K'' (number of gears available for stevedoring at each port), the number of workers '' L'' and a single output (the tonnage corresponding to the processed goods).

5.2. Result of the estimation of technical efficiency and Interpretation

The efficiency score of an entity port of our study sample is presented by the objective function of the studied "DEA" model. The results shown in Table 3 identify the relatively efficient ports (score = 1) and the relatively inefficient ones (score <1) during the years 2005-2010 under the regimes CRS and VRS.

Table 3: CRS and VRS efficiency and TT scale scores during the years 2005-2010 Ports CRS VRS Scale efficiency Type of output CRS reference Year 2005 1 Bizerte 0.743 0.743 1.000 - 35-36 2 Tunis 0.296 0.451 0.656 drs 32-29 3 Sousse 0.210 0.354 0.592 irs 11-18 4 Sfax 0.503 0.539 0.932 irs 29-11-18 5 Gabès 0.888 0.982 0.904 irs 11-18-29 6 Zarzis 0.901 1.000 0.901 irs 6 Average 0.59 0.678 0.830

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Year 2006 7 Bizerte 0.907 0.914 0.993 drs 29-35 8 Tunis 0.281 0.807 0.348 drs 32-29 9 Sousse 0.188 0.314 0.597 irs 18-35-11 10 Sfax 0.439 0.446 0.985 irs 29-11 11 Gabès 0.983 1.000 0.983 irs 11 12 Zarzis 0.694 1.000 0.694 irs 6 Average 0.582 0.747 0.767 Year 2007 13 Bizerte 0.939 0.946 0.993 irs 29-35-6 14 Tunis 0.279 0.999 0.280 drs 29-32 15 Sousse 0.229 0.340 0.672 irs 11-35-18 16 Sfax 0.508 0.512 0.992 irs 29-11 17 Gabès 0.891 0.983 0.906 irs 11-18-29 18 Zarzis 0.508 1.000 0.508 irs 18 Average 0.559 0.797 0.725 Year 2008 19 Bizerte 0.924 0.968 0.954 drs 29-35 20 Tunis 0.270 0.913 0.296 drs 29-32 21 Sousse 0.239 0.337 0.709 irs 35-18-11 22 Sfax 0.431 0.434 0.992 irs 29-11 23 Gabès 0.820 0.977 0.840 irs 6-29-36 24 Zarzis 0.488 1.000 0.488 irs 18-6 Average 0.529 0.771 0.713 Year 2009 25 Bizerte 0.723 0.727 0.994 irs 29-35-6 26 Tunis 0.213 0.382 0.557 drs 32-29 27 Sousse 0.175 0.285 0.616 irs 35-18-11 28 Sfax 0.312 0.332 0.939 irs 35-11-18 29 Gabès 1.000 1.000 1.000 - 29 30 Zarzis 0.656 1.000 0.656 irs 30 Average 0.513 0.621 0.794 Year 2010 31 Bizerte 0.625 0.633 0.986 irs 29-6-35 32 Tunis 0.240 1.000 0.240 drs 32 33 Sousse 0.216 0.310 0.697 irs 35-11-18 34 Sfax 0.363 0.376 0.964 irs 35-29-11 35 Gabès 1.000 1.000 1.000 - 35 36 Zarzis 1.000 1.000 1.000 - 36 Average 0.574 0.719 0.815 Total average 0.574 0.719 0.774

By focusing on the constant returns to scale in Table 3 (CRS), we can come up with the following interpretations: In 2005, no port was efficient. They had efficiency scores ranging from 0210 (Sousse) to 0.901 (Zarzis). Sousse port was the most inefficient. Its score makes us

Revue europénnee du droit social conclude that it can produce the same level of output with only 21% of the averages (or it has to decrease its resources by 79%). In 2006, all the port units were inefficient. Compared to 2005, the efficiency score of Sousse port declined from 0.210 to 0.188. It remains the most inefficient port among the sample studied in 2005 and 2006. In 2007 and 2008, the number of inefficient DMU remained unchanged compared to 2006 and 2005. In 2009, Gabes port became efficient with a score equal to 1. In 2010, Zarzis port was added to the Gabes one so that both of them would become efficient. In short, during the study period (2005 – 2010), the three most inefficient ports were; Tunis, Sousse and Sfax. Their efficiency scores varied between 0.175 and 0.508 in the best case. Fewer were the ports that reached a score of technical efficiency between 90% and 100%. Only the ports of Zarzis (2005), Bizerte (2006 and 2008) and Gabes (in 2006, 2009 and 2010) could achieve this performance. On the other hand, the ports of Tunis, Sousse and Sfax had the worst performance that can be explained by the under-utilization of the capital employed in these ports. Restructuring the port system has failed to improve efficiency. In fact, since 2005, the average inefficiency in the CRS regime has continued to increase. This can be explained, partly by the oversupply of labor involved in each port, and secondly by the under-utilization of the capital employed in the port entities. These results give an almost constant inclination of technical efficiency during the years of study and this is due to the homogeneity of the ports. Moreover, the assumption of the constant returns to scale makes us neglect the decomposition efficiency into pure technical efficiency and scale efficiency. The evolution of the average technical efficiency used in Graphic 2 confirms our interpretation.

Graph 2: Evolution of the average efficiency under the CRS regime calculated from Table 3

Source: the authors

Efficiency under VRS identifies pure technical efficiency by eliminating the effect of economies of scale. The efficiency measure under the VRS scheme is superior to the measurement of the technical efficiency under the CRS system. If we compare the efficiency score of Zarzis port in 2005 obtained under the assumption of the variable returns to scale (VRS) and the one obtained under the

European Journal of Social Law regime of the constant returns to scale (CRS), we can see that technical efficiency under the CRS regime of Zarzis port in 2005 was of 0.901 whereas the regime of the variable returns to scale was equal to 1. By comparing the scores of pure technical efficiencies obtained under the assumption of constant returns to scale with the scores under the VRS scheme, we will have the scale efficiency scores for each port (the third column of Table 3 shows the detail of scale efficiency). If we take the example of Sousse port, we find that the scale efficiency score in 2008 was 0.239 (<1), this implies that its efficiency cannot be calculated under the assumption of the constant returns to scale because it does not work at an optimal scale. The type of returns to scale of the ports is shown in the fifth column of Table 3. The inefficiency of a port may increase due to the use of rising (IRS) or falling (DRS) returns to scale Tunis port, which is inefficient, uses decreasing returns to scale. Hence, we can say that the inefficiency of the port depends on the type of the returns to scale used. The use of decreasing returns to scale proves that a rise in the inputs of this port leads to a less proportional increase of the outputs. According to this decomposition, scale inefficiency is the main source of technical inefficiency of Zarzis port for the years 2008 and 2009. Nevertheless, the inefficiency of Bizerte port in 2005 was explained by pure technical inefficiencies. The analysis of the annual trends of these results shows that the average technical inefficiencies observed in the years 2005, 2006, 2007, 2008.2009 and 2010 are explained by inefficiencies of scale.

Graph 3: Evolution of average efficiency under the VRS regime calculated from Table 3

Source: the authors

6. Relationship between specialization, freight flow and efficiency at the national level through the use of the Tobit model

It is essential to signal that using one model or another depends on the endogenous variables. In our case, since our endogenous variable, namely the efficiency score, is between 0 and 1, the classical estimation technique gives us biased results and estimators paradoxical to the economic theory. Therefore, we will consider using a Tobit regression model on panel data random effects where the endogenous variable is the efficiency score obtained from an input-oriented model.

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In what follows, we will establish a relationship between the level of efficiency using the DEA and a set of structural variables. The two-step method is to regress the endogenous variable as a function of structural variables which, in our case, are the technical efficiency estimated, first, by the DEA. However, the two-step method has been very criticized in literature insofar as it is likely to give biased estimates, particularly in the context of small samples. There are two important limitations. On the one hand, the efficiency scores generated by the DEA are statistically and highly dependent on each other which implies a serial correlation of the error term i. On the other hand, the explanatory variables of efficiency tend to be correlated with the error term, the thing which invalidates the standard approaches of the inferential statistics, especially in small samples.

6.1 Methodology

After defining the efficiency scores, it would be interesting to establish a relationship between the efficiency scores and some structural variables. In our analysis, we assume that the variables affecting efficiency are the specialization index, the draft, the total tonnage, the number of specialized quays, the number of ordinary banks and the number of terminals. Dependent variable models derive from models with qualitative variables that we use when we want to assess the likelihood that the dependent variable belongs to the interval for which it is observable. In the Tobit regression model, a variable called eff* is presumed to depend on a number of independent variables gathered in vector X and of which the effects are in vector β. We assume that variable eff* is not directly observable, but we rather observe variable eff . Formally, the Tobit model can be presented as follows: * eff = α + β X i + εi (1) with, eff * : Latent variable scores of efficiency;

X i : The vector of the explanatory variables; ε : Error term. eff = 0 if eff * ≤ 0 eff = eff * if 0 ≤ eff * ≤ 1 eff =1 if eff * ≥ 1 The Tobit random effect model contains firstly an equation that connects the dependent variable of the model, eff* , with the independent variables to which a random effect and a residual are added at the same time: * eff it = α + β X it + vi + εit (2)

i = 1,..., N and t = 1,..., ni

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In equation (2), eff* represents the value that can be taken by the latent variable for the observation of port i at time t, α is the original intercept value, Xit means all the independent variables as measured at time t for individual i, β is the vector of coefficients affecting the variables to be estimated, vi represents the value of the random effect associated with individual i (this varies from one individual to other, but takes only one value for all the observations about the same person) and εi is the model error which differs for each observation. vi is distributed according to rule and εi also follows rule. Our model can be presented as follow: eff = _cons + β special + β tt + β inf + β inq + β inqs + 1 it 2 it 3 it 4 it 5 it (3) + β6 inqb it + β7itlq it + β8ite it + β9istp it + vi + εit with, eff : Efficiency, _cons : Constant, special : specialization index, tt : overall traffic, inf : Number of terminals, inq : Total number of quays, inqs : Number of specialized quays, inqb : Number of banal docks, itlq : overall quay length in meters, ite : Water draft in meters, istp : amount of open land in hectares, v : Random variable, ε : Random variable. Our sample consists of 6 ports. The study period runs from 2005 to 2010. We have selected a Tobit panel model with random effects. The STATA 10 software was used to generate the results.

6.2. Results and interpretations

Statistics for this regression indicate that the estimation with Tobit panel method is appropriate, since both σv and σε statistics are significant. The explanatory variables bearing a significant positive parameter have a positive impact on the level of the port efficiency. Consequently, if all the things in the model are equal, the special variables, tt, inf, ite, inqs significantly affect efficiency.

Table 4: Explanation of inefficiency sources: Tobit model Standard Variables Coefficient z Statistic P-Values Deviation special 0.537 0.298 1.800 0.072 tt 0.000 0.000 5.400 0.000 inf 0.961 0.133 7.220 0.000 inq -0.444 0.026 -17.270 0.000 inqs 0.638 0.076 8.410 0.000 itlq -0.002 0.000 -6.090 0.000 ite 1.108 0.087 12.690 0.000 cons -5.954 0.514 -11.590 0.000 sigma_u 0.005 0.085 0.060 0.953 sigma_e 0.085 0.011 7.620 0.000 rho 0.003 0.117 1.2e-137 1.000

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In fact, in terms of specialization index, we notice that the faster the specialization index increases, the more efficient the port will be. In other words, to have better efficiency, we should have diversified and non-specialized ports. This is true for Tunisia as the capital deployed in the seaports after the reform is supposed to handle all types of cargo. If the port is specialized, it would have an under-utilization of the used equipment. As far as the overall tonnage, we notice that the more significant the tonnage is, the better efficiency is. This is true because, with the same input, we can produce a larger amount of output. Regarding the number of terminals, we see that the number of terminals is an important factor in improving efficiency insofar as we avoid congestion and delays in handling the vessels. In Tunisia, the ports of Bizerte and Tunis have better efficiency scores than those of Sfax and Sousse. The number of specialized quays has a positive effect on efficiency due to the speed of handling the vessels. Specialized docks are considered to be a crucial factor in attracting the vessels, the thing which leads to a traffic growth. Finally, by examining the draft variable, we notice that the draft is considered to be the most significant factor of identifying the port efficiency. In fact, the more significant the draft is, the more likely to have large vessels, the thing which leads to an increase in the traffic and thereby the improvement of efficiency. For Tunisia, the draft can help accommodate ships of 40,000 tons only. In the European ports, the draft can help accommodate ships of 500,000 tons. Nonetheless, concerning the number of common docks and quay lengths, it is clear that common docks (without equipment) have negative effects on the efficiency score. This is true because some types of goods need special equipment to be handled. Their unavailability makes cargo handling very slow and expensive, the thing which forces the owners to equip their vessels with handling equipment and pushes the local stevedores not to intervene in the vessel handling. In Tunisia, all the ports unfortunately have common docks. This reduces the number of the vessels handled by local stevedores (under-utilization of inputs deployed in each port).

7. Conclusion

This study comes to sort out the problem connected with the method of efficiency estimation. The use of the method of the data envelopment analysis "DEA" is based on several assumptions. In fact, this non-parametric method does not specify any functional form for the frontier and allows simultaneous consideration of multiple inputs and output manifold. The basic "DEA" models are: CCR, BCC, the additive and multiplicative models. The dissimilarity between these models is the shape of the border and the type of the estimated returns to scale used. The CCR is a surface – linear envelope model with constant returns to

European Journal of Social Law scale in portions, while the surface of the BCC model is piecewise linear but with variable returns to scale. There is no typical methodology to predict or verify all the factors in a study of efficiency. Model "DEA" may indicate, from a given set of factors, how a specific DMU is efficient or not, and what its efficiency score is, but does not show if the predestined factors are the proper ones to use. After the estimation of efficiency and the application of Tobit model to test the relationship between efficiency and some structural variables, we can affirm the critical role played by infrastructure in improving efficiency. Thus, efforts must be made to improve the port infrastructure and thereby increase the volume of traffic. Moreover, Tunisia is requested to diversify these ports to avoid any kind of wasted capital. The contribution of this research lies in the calculation of the index of specialization and the efficiency measures of the seaports in Tunisia. Moreover, this research contributes to the understanding of an involved and growing industry. The relationship between efficiency and specialization serves as a tool for the economic decision makers who affect the future of the sector and its impact on economic growth.

References: Barros C. (2003), “Incentive Regulation and Efficiency of Portuguese Port Authorities”, Maritime Economics & Logistics, pp. 55–69. Barros C. and Athanassiou, M. (2004), “Efficiency in European Sea Ports with DEA: Evidence from Greece and Portugal”, Maritime Economics & Logistics , Vol. 6, No. 2, pp. 122–140. Charnes A., Cooper W.W., Rhodes E. (1978), “Measuring the Efficiency on Decision Making Units”, European Journal of Operational Research , Vol. 2, pp. 429-444. Cheon S., Dowall, D.E., Song D. (2009), “Typology of Long-Term Port Efficiency Improvement Paths: Malmquist Total Factor Productivity for World Container Ports”, Journal of infrastructure systems , Vol. 15, n°4, pp. 340-350. Chin A., Tongzon J. (1998), “Maintaining Singapore as a Major Shipping and Air Transport Hub”, in T. Toh (eds), Competitiveness of the Singapore Economy , Singapore University Press, Singapore, pp. 83-114. Clark X., Dollar D., Micco A. (2004), “Port efficiency, Maritime Transport Costs and Bilateral Trade”, Journal of Development Economics , Vol. 75, n°2, pp. 417-450. CNUCED (2011), « Étude sur les transports maritimes ». Rapport du secrétariat de la CNUCED. Coelli T. (1996), “A guide to DEAP version 2.1: A Data Envelopment”. Comtois C., Slack B., Lagimonière L., Vallée D. (1993), “Le rôle et la fonction des ports de petite et moyenne taille dans le système Saint-Laurent”, Les Cahiers de géographie du Québec, Vol. 37, n°100, pp. 17-33. Comtois C., Slack B., Lagimonière L., Vallée D. (1993), “Le rôle et la fonction des ports de petite et moyenne taille dans le système Saint-Laurent”, Les Cahiers de géographie du Québec, Vol. 37, n°100, pp. 17-33. Comtois C., Slack B., Lagimonière L., Vallée D. (1993), “Les considérations portuaires dans le développement régional du Québec”, Les Cahiers de géographie du Québec, Vol. 37, n°102, pp. 451-475.

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Cullinane K., Song D-W., Ji P., Wang T-F (2004), “An Application of DEA Windows Analysis to Container Port Production Efficiency”, Review of Network Economics , Vol.3, No.2, pp. 184-206. Cullinane K., Wang T-F (2006), “The Efficiency of European container ports: across- sectional Data envelopment analysis”, International Journal of Logistics: Research and Applications, Vol.9, No.1, pp 19-31. Estache A., Tovar de la Fé B., Trujillo L. (2004), “Sources of Efficiency Gains in Port Reform: A DEA Decomposition of a Malmquist TFP Index for Mexico”, Utility Policy , Vol. 12, n°4, pp. 221-230. Farell M.J. (1957), “The Measurement of Prductive Efficiency”, Journal of Royal Statistical Society , Vol. 120, n°3, pp. 253-281. Kaisar, I.E., Pathomsiri, S., Haghani, A.: Efficiency Measurement of US Ports Using Data Envelopment Analysis, National Urban Freight Conference, Long Beach California, February 2006. M’RAD Z. (2001), “Rapport de la délégation tunisienne”, Communication présentée au séminaire « La facilitation du transport international de marchandises entre les deux rives de la Méditerranée occidentale », CETMO, Barcelone, p. 43-48. Min H., Park B.I. (2005), “Evaluating the inter-temporal efficiency trends of international container terminals using data envelopment analysis”, Int. J. Integrated Supply Management , Vol. 1, No. 3, 2005, pp 258-277 Pean Journal of Operational Research 80, p 474 – 499. Roll Y., Hayuth Y. (1993), “Port performance comparison Applying Data envelopment Analysis DEA”, Maritime Policy and Management , Vol. 20, n°2, pp. 153-161. Suykens F., Van de Voorde E. (1998),”A Quarter of a Century of Port Management in Europe: Objectives and Tools”, Maritime Policy and Management , Vol. 25, n°3, pp. 251- 261. Tongzon J.L. (1989), “The Impact of Wharf age costs on Victoria's Export-oriented Industries”, Economic Papers, Vol. 8, n°4, pp. 58-64 Tongzon J.L. (2001), “Efficiency Measurement of selected Australian and other international ports using Data Envelopment Analysis”, Transportation Research, Part A , Vol. 35, n°2, pp. 113-128. Valentine V.F., Gray R. (2001), “The measurement of port efficiency using data envelopment analysis”, in Proceedings of the 9th World Conference on Transport Research . Vigarié A. (1979), “Les pays en développement et la mer”, Cahiers de sociologie économique n°1 , pp. 19-86.

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PROPERTY RIGHTS AND ECONOMICS

Loredana Adelina PĂDURE *

Abstract: You may wonder what property rights have to do with economics. Your property--your house, your car, your pets--are items you buy and own. There are also intellectual property rights such as copyright, patents, etc. Many of these rights are laid out in the U.S. Constitution and have been confirmed, extended, or limited by the courts. American people take for granted that they can do what they want with that property, at least up to a point. You can paint the walls inside a house you own any color you like, including hot pink or all black. However, there may be rules set out by a community about paint colors for the exterior of your home, which can offend or lower house values for other homes nearby. These by-stander effects from what you do with your property are called externalities. Keywords: property rights, economic growth, externalities

Other examples of how property rights intersect with economics are: If you have a patent, can someone elsewhere in the country or even elsewhere in the world copy and benefit from your idea without compensating you? Can a town take over your house and land and use it to build a mall even if you don't want to sell out (called eminent domain)? Do you own your kidneys and can you buy or sell one? Do you own your children until they reach a legally-defined age? To economists, property rights are an example of an underlying economic institution. The behind-the-scenes laws and customs turn out to matter a great deal in the economic health, growth, and wellbeing of an economy and its citizens. Different sets of rules and laws about how a person may acquire, change, benefit or profit from, and dispose of various kinds of property affect everything from the daily lives of citizens to the growth and prosperity of a country to international relations. Economic systems such as communism have drastically different concepts of individual rights to property. The consequences on incentives may be more obvious when comparing two very different economic views of property rights, but small differences also turn out to matter. Property Right is the exclusive authority to determine how a resource is used, whether that resource is owned by government or by individuals. Society approves the uses selected by the holder of the property right with governmental administered force and with social ostracism. If the resource is owned by the government, the agent who determines its use has to operate under a set of rules

* Lecturer PhD. Hyperion University, Bucharest.

Revue europénnee du droit social determined, in the United States, by Congress or by executive agencies it has charged with that role.... What happens when property rights don't exist? The Tragedy of the Commons , by Garret Hardin 1. In 1974 the general public got a graphic illustration of the "tragedy of the commons" in satellite photos of the earth. Pictures of northern Africa showed an irregular dark patch, 390 square miles in area. Ground- level investigation revealed a fenced area inside of which there was plenty of grass. Outside, the ground cover had been devastated.... The explanation was simple. The fenced area was private property, subdivided into five portions. Each year the owners moved their animals to a new section. Fallow periods of four years gave the pastures time to recover from the grazing. The owners did this because they had an incentive to take care of their land. But no one owned the land outside the ranch. It was open to nomads and their herds.... Private Property and Opportunity Costs , by Dwight Lee 2 Too Costly to Drive: Assume you win a Rolls Royce Silver Shadow, with insurance, maintenance, gas, and taxes paid. While this isn't quite as nice as winning the state lottery, the going price for a Silver Shadow is around $250,000. That's the good news. The bad news is that you're probably not wealthy enough to drive this car. Your first reaction is likely: What do you mean I can't afford to drive it? Everything is paid for by someone else. True, but I still predict that you will find the car too costly to drive. Regardless of how you got the Rolls Royce, the cost of driving it is the price someone else is willing to pay for it. And because the car is your private property, you can't ignore that cost.... Justice and Private Property Philosophy professor Chris Freiman discusses the concept of private property, addressing both its critics and its advocates, and how it relates to justice. Karol Boudreaux on Wildlife, Property, and Poverty in Africa Karol Boudreaux, Senior Research Fellow at the Mercatus Center at George Mason University, talks with EconTalk host Russ Roberts about wildlife management in Africa. Their conversation focuses on community-based wildlife management in Namibia, a policy to give communities the incentives to protect wildlife and avoid the tragedy of the commons.... The most important concept in all of economics is property rights. Most of what people do can be explained in terms of establishing, protecting and maximizing the value of personal property. The property may be real estate, or it may be intellectual property like a copyright or trademark (or, these days, even a patentable "business process."). Or it might be a parking space. Observing how parking spaces are allocated in Chicago provides a fundamental lesson in property rights economics.... The Tragedy of the Commons

1 The Concise Encyclopedia of Economics 2 At CommonSenseEconomics.com. From The Freeman .

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Sean Mullholland explains the tragedy of the commons and two potential solutions to problem: public ownership by government or private ownership. Satire illustrating a common logical pitfall about property rights and voluntary exchange: Your Dog Owns Your House 3 Did you know that your dog owns your house, or rather some portion of it? If this is not immediately obvious to you, you will find it helpful to consider some aspects of the ethics and economics of redistribution. Your dog is alert, plucky and a fearsome guardian of your property. For all we know, without his services, you would have been burgled over and over again. Your belongings would be depleted and the utility you derived from your home would be much reduced. The difference between the actual value of your home and its unguarded value is the contribution of your dog, and so is the difference between the respective utilities or satisfactions you derive from it.... Richard Epstein on Property Rights and Drug Patents4 Richard Epstein of the University of Chicago and Stanford University's Hoover Institution talks about property rights, drug patents, the FDA, and the ideas in his latest book, Overdose: How Excessive Government Regulation Stifles Pharmaceutical Innovation from Yale University Press.... The Economics of Organ Donations . Russ Roberts and Richard Epstein, law professor at the University of Chicago, discuss the market for kidneys. Should people be allowed to buy and sell kidneys? How might a market for kidneys actually work in practice? Should mercenary motives be allowed to trump altruism? Epstein deals with these questions and more. How Free-Market Kidney Sales Can Save Lives-And Lower the Total Cost of Kidney Transplants 5 The recent conviction of a New York man for brokering the sale of black- market kidneys has economists and the general public alike rethinking the 1984 National Organ Transplant Act. This law prohibits the free trade of human organs, including, according to President Obama's Department of Justice (DOJ), bone marrow. However, a three-judge panel of the Ninth Circuit Court of Appeals ruled unanimously in Doreen Flynn at al. v. Holder that bone marrow donors could be compensated. Part of their reasoning involved the idea that if the government's argument (against compensation) were upheld, then the 1984 law "would prohibit compensating blood donors." The Obama Justice Department is now seeking a hearing by the full Ninth Circuit. What is the DOJ's argument? That bone marrow should not be subject to "market forces" because the resulting price of bone marrow would undermine voluntary donations and price many prospective recipients in need of transplants out of life-saving operations. Michele Boldrin on Intellectual Property

3 Anthony de Jasay on Econlib. 4 Podcast on EconTalk, February 2007. 5 Kathryn Shelton and Richard B. McKenzie

Revue europénnee du droit social

Michele Boldrin of Washington University in St. Louis talks with EconTalk host Russ Roberts about intellectual property and Boldrin's book, co-written with David Levine, Against Intellectual Property. Boldrin argues that copyright and patent are used by the politically powerful to maintain monopoly profits. He argues that the incentive effects that have been used to justify copyright and patents are exaggerated- -few examples from history suggest that the temporary and not-so-temporary monopoly power from copyright and patents were necessary to induce innovation. Boldrin reviews some of that evidence and talks about the nature of competition. The Struggle Over Intellectual Property It's a high-stakes tussle between technology and the law, highlighted by tens of millions of file traders thumbing their noses at legal restrictions. True, Napster's court imbroglio may have cost it a third of its users.... Is it legal for Google to scan millions of copyrighted books without asking permission? Is it economically efficient? Is Google Book Search "Fair Use"? , 6 So, everyone knows about this company, Google. Some of you might have heard about this project, which Google announced last December, 2004, called Google Print, and that they renamed in November, 2005 the Google Book Search project.... They imagine to take books and to make it possible for people to see inside.... 9% of those books are books that are copyrighted and still in print; 16% of those books are books that are in the public domain—meaning books whose copyright has expired. And that means that 75% of the 18 million books that Google originally intended to copy and then index are books that are under copyright in the United States but out of print.... Heller on Gridlock and the Tragedy of the Anticommons . EconTalk podcast. Michael Heller of Columbia Law School and author of The Gridlock Economy talks to EconTalk host Russ Roberts about the book and the idea that fragmented ownership is a barrier to innovation. Heller makes an analogy between the tragedy of the commons and what he calls the tragedy of the anticommons--the problem of bundling together numerous individual claims to a resource. Examples discussed include drug innovation when the innovator wants to use technologies of multiple patent holders, new music or visual media where the creator wants to use multiple copyrighted works, and allocation of spectrum rights and its role in wireless innovation.... Richard Epstein on Property Rights and Drug Patents. EconTalk podcast. Richard Epstein of the University of Chicago and Stanford University's Hoover Institution talks about property rights, drug patents, the FDA, and the ideas in his latest book, Overdose: How Excessive Government Regulation Stifles Pharmaceutical Innovation from Yale University Press. How Property Rights Solve Problems , 7

6 Lawrence Lessig. Video at YouTube (30 min.) 7 David R. Henderson. On Econlib.

European Journal of Social Law

Should restaurants allow smoking or not? Should schools teach evolution or intelligent design or both? Should insurance companies cover contraception? Should I be able to take off my shoes in your living room?... Eminent Domain: Debate Pits Private Property Against Powers of the State , from Econoblog at the Wall Street Journal The closely watched case centers on a New London, Conn., economic development plan. The city wants to use eminent domain to build offices, a hotel, condominiums and parking where houses now stand, arguing that its plan has economic benefits in new jobs and property-tax revenue. But opponents maintain that the project isn't a legitimate public use, saying it unjustly takes private property for a project that will benefit other private interests.... Richard Epstein on Property Rights, Zoning, and Kelo . EconTalk podcast. Richard Epstein, of the University of Chicago and Stanford's Hoover Institution, makes the case that many current zoning restrictions are essentially "takings" and property owners should receive compensation for the lost value of their land. He also discusses the Kelo case and the political economy of the regulation of land. Eminent Domain , from Lalor's Cyclopedia of Political Science EMINENT DOMAIN, an original ownership retained by the sovereign, or remaining in the state, whereby land or other private property can be taken for the public benefit. This is the most definite principle of fundamental power of the government with regard to property, and the most striking example of the sovereignty of the people as a corporate body to resume original possession of the soil, where its use is essential to their mutual advantage and the welfare of society.... The Law , by Frederic Bastiat. 8 I do not use it, as is so often done, in a vague, indeterminate, approximate, or metaphorical sense; I use it in its precise, scientific sense, as expressing the idea opposed to that of property. When property is transferred without the consent of its owner and without compensation, whether by force or by fraud, from the one who possesses it to anyone who has not created it, I say that property rights have been violated, that plunder has been committed. I say that this is precisely what the law is supposed to suppress always and everywhere. If the law itself commits the act that it is supposed to suppress, I say that this is still plunder and, as far as society is concerned, plunder of an even graver kind. In this case, however, it is not the one that profits from the act of plunder who is responsible for it; it is the law, the legislator, society itself, and it is in this that the political danger consists.... Strategies to handle water pollution, historical and modern: Bruce Yandle on the Tragedy of the Commons and the Implications for Environmental Regulation , Bruce Yandle of Clemson University and George Mason University's Mercatus Center looks at the tragedy of the commons and the various ways that people have avoided the overuse of resources that are held in common. Examples

8 Chapter 2 in Selected Essays on Political Economy

Revue europénnee du droit social discussed include fisheries, roads, rivers and the air. Yandle talks with EconTalk host Russ Roberts about the historical use of norms, cooperative ventures such as incorporating a river, the common law, and top-down command-and-control regulation to reduce air and water pollution. Slavery: The American Founding in Practice . History professor Rob McDonald of the U.S. Military Academy at West Point gives a lecture on the conflict between the ideals of the American Revolution, such as individual liberty, and unfortunate realities of the time, such as slavery. Property rights, incentives, and slavery throughout history: Stanley Engerman on Slavery Stanley Engerman of the University of Rochester talks about slavery throughout world history, the role it played (or didn't play) in the Civil War and the incentives facing slaves and slave owners. This is a wide-ranging, fascinating conversation with the co-author of the classic Time on the Cross 9and the forthcoming Slavery, Emancipation, and Freedom (LSU Press, 2007). Engerman knows as much as anyone alive about the despicable human arrangement called slavery and the vastness and precision of his knowledge is on display in this interview. Copyright , in Lalor's Cyclopedia of Political Science COPYRIGHT is the name of a certain species of incorporeal property. It is the exclusive right of receiving the profits from publishing and selling works of literature and art.... Property and the Law , by Frederic Bastiat. Chapter 3 in Selected Essays on Political Economy on Econlib I ask whether the right to property is not one of those rights which, far from springing from positive law, are prior to the law and are the reason for its existence.... Historic Self-Preservation , 10 Government control over private owners' use of their property empowers politicians to advance their own agendas. In particular, it allows politicians to threaten property owners with historic preservation status when the conditions do not justify political intervention.... Information Goods, Intellectual Property Archive . Related articles and links on EconLog. We transact exchanges efficiently because both parties agree on the property rights relevant to them. Both of us acknowledge that the watermelons, stacked neatly by the roadside, are "owned" by the salesman, or by the person or firm for whom he acts as agent. Both of us also acknowledge that I have the rights of disposition over the money in my pockets or in my bank account. Furthermore, both of us recognize that any unilateral attempt to violate these assigned rights of exclusion will be subject to penalty through the arms and agencies of the state. In

9 co-authored with Robert Fogel 10 Fred S. McChesney. Econlib, January 7, 2002.

European Journal of Social Law other words, both of us agree on what "the law" is that is relevant to the exchange in question.... Property and Property Rights , by Anthony de Jasay. On Econlib. Ironically, the author who has done the most to impose the term "property rights" on scholarly usage was Armen Alchian, an economist of irreproachable credentials both as a fine theorist and a defender of the free society. In a seminal essay that has become a foundation stone of "property rights economics", he explained that when you owned, say, a piece of land, what you had was the right to leave it fallow, to plough it, to grow wheat on it for your own use or for sale, to walk across it, to fly over it, to build a house on it, to grant an easement on it, to lease it to another party, to bequeath or to sell it. Property was such a "bundle of rights". It is tempting to hold that if you removed one stick from the bundle, it remained a bundle, if you removed two, it still remained a bundle; How many sticks can one remove without the remainder ceasing to represent property, and are some sticks more essential than others?... Property and its Enemies. Part I. "Design Faults" in Locke's Theory of Property Taint Ownership with Guilt , by Anthony de Jasay. On Econlib. Ownership is a relation between an owner and a scarce resource, such that the owner is at liberty to use and alienate it, exclude all others from access to it except by his consent, and thus also at liberty to grant various kinds of prior claims and use rights in it for those towards whom it assumes contractual obligations. It is doubtful whether ownership, even ownership by a collective entity, has any meaning without some element of exclusion that separates owners from non-owners of the resource in question. When everybody owns a thing, nobody owns it.... Property Rights and Natural Resource Management , by Richard Stroup and John Baden. On Econlib. How much development should be allowed on the Yellowstone River? Is oil being used too quickly? Is the strip mining of coal properly controlled?... In analyzing such natural resource issues, it is critically important for us to consider the form and ownership of property rights in resources. Whether the perspective is historical, predictive, or prescriptive, it is important to recognize who controls these property rights, and under what conditions. Only from this framework of property rights can we understand decision processes. Individuals, not large groups or societies, make the decisions. They do so, however, in an institutional framework. The property rights paradigm provides important analytical leverage in comprehending how individuals interact within institutions. The property rights concept, then, not only helps us understand history; it also helps us predict the consequences of today's institutions or to compare the likely outcomes of alternative arrangements.... Ronald Coase 11 Ronald Coase received the Nobel Prize in 1991 "for his discovery and clarification of the significance of transaction costs and property rights for the

11 A biography from the Concise Encyclopedia of Economics

Revue europénnee du droit social institutional structure and functioning of the economy." Coase is an unusual economist for the twentieth century, and a highly unusual Nobel Prize winner. First, his writings are sparse. In a sixty-year career he wrote only about a dozen significant papers--and very few insignificant ones. Second, he uses little or no mathematics, disdaining what he calls "blackboard economics." Yet his impact on economics has been profound. That impact stems almost entirely from two of his articles, one published when he was twenty-seven and the other published twenty- three years later.

Bibliography: Karol Boudreaux on Property Rights and Incentives in Africa , EconTalk podcast. Dec. 17, 2007. Parking space rights after blizzards: Snow Jobs , by Fred S. McChesney. Econlib, October 15, 2001 The Bases for Freedom in Society , by James M. Buchanan. Chapter 2 in The Limits of Liberty: Between Anarchy and Leviathan . On Econlib.

European Journal of Social Law

IMPACT OF PRIVATIZATION ON ECONOMIC GROWTH

Haida Maria DUMITRESCU *

Abstract: The concept of economic growth is a fundamental part of the field of macroeconomics, which is masterfully captured in William Easterly’s The Elusive Quest for Growth. Easterly powerfully depicts the real, long term economic crisis that many countries are facing around the world and stimulates the reader to take part in the search for economic growth. In the early parts of The Elusive Quest for Growth, one begins to appreciate the meaning behind the book’s title. Keywords: economic growth, privatization, political economy

Individual policies such as aid for investment, population control, and human capital investment have all failed as a solution to the lack of economic growth in underdeveloped countries. In other words, Easterly alludes to an idea that a combination of different factors (investment, education, technological innovation), along with a fundamental structural change might be the path to long term economic growth. One of the underlying themes throughout Easterly’s book is the idea that people respond to incentives. In fact, most of Easterly’s analysis of various economic models throughout the book is an analysis of the incentives created by those models (Easterly, 2001). Privatization, a method of reallocating assets and functions from the public sector to the private sector, appears to be a factor that could play a serious role in the quest for growth. In recent history, privatization has been adopted by many different political systems and has spread to every region of the world. The process of privatization can be an effective way to bring about fundamental structural change by formalizing and establishing property rights, which directly create strong individual incentives. A free market economy largely depends on well- defined property rights in which people make individual decisions in their own interests. The importance of property rights is captured by economist Hernando de Soto as he states, “Modern market economies generate growth because widespread, formal property rights permit massive, low-cost exchange, thus fostering specialization and greater productivity” (1996). Along with creating strong incentives that induce productivity, privatization may improve efficiency, provide fiscal relief, encourage wider ownership, and increase the availability of credit for the private sector. This paper will analyze the effects and the influence of privatization on the rate of economic growth, stimulated by the idea of people

* Assoc. Prof. Phd, Facuty of Law, Bucharest, Romania.

Revue europénnee du droit social responding to incentives. Ultimately, the goal of this paper is to evaluate and analyze the idea of privatization as a possible factor of economic growth. The first section of the paper will begin with a brief historic overview of privatization in the past few decades. The main content of the first section will be an introduction to the Coase Theorem and an analysis of the theoretical framework for privatization. The material in this section will be centered around Robert W. Poole’s “Privatization for Economic Development” and Hernando de Soto’s “The Missing Ingredient.” The second section of the paper will describe different methods of privatization as well as provide examples of privatization taking place around the world (with an emphasis on Eastern Europe). The third section of the paper will present an empirical study done by Paul Cook and Yuichiro Uchida, analyzing the effects of privatization on economic growth in developing countries. The fourth section will introduce and discuss the results of my own empirical study. In the final section of the paper I will attempt to draw useful conclusions regarding privatization as an economic growth policy. 1 A world-wide era of privatization has been picking up momentum in recent decades, making it a fairly new trend in the area of economic policy. The modern idea of privatization as an economic policy was pursued for the first time by the Federal Republic of Germany in 1957, when the government eventually sold majority stake of Volkswagen to private investors. The next big move in privatization came in the 1980s with Margaret Thatcher’s privatization of Britain Telecom and Chirac’s privatization of large banks in France. Privatization spread to other continents as Japan and Mexico privatized government owned communication companies (Megginson, Nash, and Randenborgh, 1996). Another major contribution to the world-wide process of privatization has been the fall of the communist regime in Eastern Europe and the former Soviet Union. In recent times, countries like China and Cuba, as well as many other developing countries have begun to implement privatization in the hope of stimulating economic growth. Over the period of 10 years between 1984 and 1994, there has been a world-wide shift of $468 billion in assets from the public sector to the private sector (Poole, 1996). 2 The theoretical framework behind the idea of privatization is largely dependant on understanding the concept of property rights. In order to develop an expanded, specialized market system, a society must have an efficient way of dealing with numerous transactions that take place in a specialized economy. Specialization and allocation of resources depends on low transactions costs, which are dictated by prices in market economies. Competitive markets, in which transactions are effectively handled by market prices, rely heavily on formal, well- defined property rights (Mankiw, 2001). De Soto explains, “To be exchanged in expanded markets, property rights must be ‘formalized’, in other words, embodied

1 Political Economy, Vol. 14, August 2005 2 L.A. P ădure, Property rights and economic growth theoretical and conseptual, Revue Europeenne du Droit Social, VOL. XXVIII- NR. 3, Bibliotheca Publishing House, Târgovi şte, 2015

European Journal of Social Law in universally obtainable, standardized instruments of exchange that are registered in a central system governed by legal rules” (1996). In fact, de Soto argues that the lack of formal property rights is “the missing ingredient” that is keeping underdeveloped countries from sustaining long-term growth. Furthermore, the lack of property rights limits the amount of goods and services that can be exchanged in the market. An important implication of well-defined property rights is that it creates strong individual incentives, which, according to Easterly, is a significant factor in the quest for long term growth. By creating strong incentives, property rights lead to an increase in investment since people are certain and secure about the ownership of their property. Furthermore, individuals gain an access to credit since they can use their formal titles as a collateral for loans, ultimately leading to an increase in investment. Finally, property rights give people an incentive to pursue long-term rather than short term economic goals. In the case of land ownership, individuals who have secure and well-defined ownership will invest in their land instead of continuously draining new land (Soto, 1996). Another fundamental aspect of privatization, which plays an essential part in the efficiency improvement associated with privatization, is embedded in the Coase Theorem. Ronald Coase proposes that the private sector is effective in solving the problem of externalities, through costless bargaining, driven by individual incentives. According to the Coase Theorem, individual parties will directly or indirectly take part in a cost-benefit analysis, which will eventually result in the most efficient solution (Mankiw, 2001). Thus, Coase argues the role of the legal system is to establish rights that would allow the private sector to solve the problem of externalities with the most effective solution. A major implication of the Coase Theorem is the fact that the initial allocation of rights does not affect the outcome as long as the rights are well-defined. Furthermore, the solution that results from bargaining of private parties will be a Pareto optimal solution. From the perspective of privatization, the Coase implies that by shifting the assets from the state to the private investors, the market will become more effective in dealing with numerous externalities (Medema and Zerbe, 1999). Intedisciplinar Deep Research in the real estate restitution is of a great importance. There are many theoretical economic benefits that are connected to the process of privatization. One of the main reasons why countries pursue privatization is in order to reduce the size of the existing government, based on the idea that many governments have become too large and overextended, consisting of unnecessary layers of bureaucracy. Therefore, many countries require restructuring in order to improve efficiency, which can be achieved through privatization. The private sector responds to incentives in the market, while the public sector often has non- economic goals. In other words, the public sector is not highly motivated to maximize production and allocate resources effectively, causing the government to run high-cost, low-income enterprises. Privatization directly shifts the focus from political goals to economic goals, which leads to development of the market economy (Poole, 1996). The downsizing aspect of privatization is an important one

Revue europénnee du droit social since bad government policies and government corruption can play a large, negative role in economic growth (Easterly, 2001). By privatizing, the role of the government in the economy is reduced, thus there is less chance for the government to negatively impact the economy (Poole, 1996). Privatization can have a positive secondary effect on a country’s fiscal situation. As Easterly discusses, privatization should not be used to finance new government expenditures and pay off future debts. Instead, privatization enables countries to pay a portion of their existing debt, thus reducing interest rates and raising the level of investment. By reducing the size of the public sector, the government reduces total expenditure and begins collecting taxes on all the businesses that are now privatized. This process can help bring an end to a vicious cycle of over-borrowing and continuous increase of the national debt (Poole, 1996). Along with creating incentives, privatization gives ownership to a larger percentage of the population. Given the level of established property rights, individuals become more motivated and driven to work on and invest in their property since they are directly compensated for their efforts. Therefore, privatization will cause an increase in investment for yet another reason (Poole, 1996). Furthermore, state ownership leads to crowding-out of investment from the private sector. In order to retain a monopoly in a particular industry, state enterprises prevent the private sector from getting to credit (Cook and Uchida, 2003). Additionally, privatization leads to an increase in foreign direct investment which can potentially play a significant factor in the quest for growth. Foreign investment has “positive spillovers of improved technology, better management skills, and access to international production networks” (World Bank, 2002). Easterly stresses the importance of the possible benefits from technological improvements as well as the spillover effect created from new innovations. In fact, Easterly presents the theory and examples of how underdeveloped countries might have an advantage over developed countries when it comes to new technology. He points out the possibility that underdeveloped countries have less invested in old technology, and are therefore more willing to invest in new technology. Thus, foreign direct investment could potentially have multiple positive effects on the growth of underdeveloped countries. The unclean situation in the matter determined a delay of the transactions in Romania, compared with the other countries from Central Europe. 3 Countries around the world have pursued different methods of privatizing state assets depending on the initial conditions of the country’s economy and the economic ideologies of the political party in charge. The process of privatization is often easy for small institutions, while the process becomes harder when it comes to finding the appropriate buyers for larger enterprises. One of the main methods of privatization is the sale of state-owned enterprises to private investors. The state

3 L.A. P ădure, Socio-economically effects of the restitution in Romania, Romanian Academy Bucharest, 2015, pag. 7

European Journal of Social Law would simply decide which institutions should be privatized and through the use of market mechanism, private investors are able to buy shares of each firm. The benefits from this method of privatization are that it creates badly needed revenues for the state while putting privatized firms in the hands of investors who have the incentives and the means of investing and restructuring. On the other hand, finding domestic investors in underdeveloped countries is often a difficult task (Stirbock, 2001). Amongst many other countries that have used this method, Jamaica has been successful in privatizing its National Commercial Bank through the sale of shares to domestic investors. Despite its underdeveloped financial market, symbolized by an almost non-existent stock market, Jamaica’s government was still able to successfully privatize the bank in less than three months. Not only did the number of shareholders in Jamaica go up five times, but the nation’s largest bank was in the hands of the private sector, which responds to market conditions (Poole, 1996). Another widely used method of privatization has been known as voucher privatization. The government universally distributes vouchers to its eligible citizens, which can be sold to other investors or exchanged for shares in other institutions being privatized. Although this method does not create revenues for the state, it does privatize state-owned firms in a short period of time (Stirbock, 2001). Many countries such as Canada and Russia have employed this method, but the most notable voucher privatization program was the one designed by the Czech Republic. Due to the fear of the return of the communist party, the government felt that it was necessary to pursue a rapid privatization process. For a nominal price, vouchers booklets were sold to the citizens who had the option of claiming a share in a particular firm or investing in the newly created investment funds. The purpose of the investment funds was to consolidate vouchers and diversify risk for the citizens. Furthermore, the investment funds were expected to motivate enterprise restructuring as the investment funds use the invested vouchers to obtain shares in particular firms. Mass voucher privatization was conducted in two waves; one under the rule of Czechoslovak Federation and the second after the break up. Although a large percentage of state-owned enterprises was privatized in short period of time, the overall process was not considered very successful due to “the lack of appropriate accompanying institutional policies and lagging banking sector reform” (World Bank, 2002). It becomes evident once again that a potentially successful economic policy fails due to the lack of institutional changes and other appropriate economic policies (World Bank, 2002). Internal privatization, also know as “employee or management buy out,” is another method of privatization. State-owned enterprises are sold to managers (for an extremely low price) who are already familiar with the particular firm and its structure, but there are minimal revenues created for the state. This method creates some incentives but the incentives are much stronger when firms are sold to strategic investors. Additionally, new owners often do not have the resources to invest and restructure, which is badly needed in a large percentage of state-owned

Revue europénnee du droit social firms in underdeveloped countries (Stirbock, 2001). Slovenia has been known for their internal privatization process in which majority of the state assets were distributed to state-owned institutional investors (such as pension funds) while the rest were sold to employees many subsidies). This process led to a lack of strategic investors, which may have played a role in the limited success of Slovenia’s privatization (World Bank, 2002). There is another type of privatization method that has been employed in some circumstances, but is not used nearly as often as the three methods discussed earlier. Restitution is the process of giving the property rights of a company back to the original owner. Along with the difficulty of finding the original owner, there are many drawbacks to this method of privatization since the value of the company changes over time (Stirbock, 2001). 4 Examples of privatization in Hungary as well as the privatization in a group of Latin American countries are worth being mentioned. Hungary was the most indebted country in the region, in per capita terms, and therefore wanted to implement a speedy privatization process that would create revenues. The government opened up the sale of state-owned firms to strategic investors, including foreign ones. The result was an inflow of foreign capital, which led to much needed technological improvement and an increase in competition. The bank sector was a major target of foreign investors, resulting in the restructuring of the banking laws and regulations. The World Bank attributes Hungary’s good growth in the second part of the last decade to their method of privatization (World Bank, 2002). Once again the importance of technological improvements and the benefits of advanced foreign technology become evident. In the case of the privatization process in the countries of Argentina, Mexico, and Peru, it is worth mentioning that each of those countries was able to create major revenues from privatization process. Instead of using the revenues to balance the current operating budget, the countries used it to pay off the outstanding debt (Poole, 1996). Romania was one of the few former communist countries that have postponed a decision on restitution. 5 Although a number of empirical studies have been conducted in order to measure the financial effects of privatization on the newly privatized firms throughout the world, only a limited number of empirical studies have attempted to measure the effect of privatization on the economic growth in the developing countries. Perhaps the main reason for the lack of such studies arises out of the fact that privatization has been a fairly new phenomenon, particularly in developing countries. A recently published study (August 2003), conducted by Paul Cook and Yuichiro Uchida, provides an empirical analysis of the effects of privatization on economic growth in developing countries. Furthermore, Cook and Uchida’s study

4 L.A. P ădure, A. Ţuţuianu Effects of regultions regarding redemtion estate, 36-42 Revue Europeenne du Droit Social, Volume XXXII, ISSUE 3, Year 2016, Editura Bibliotheca Târgovi şte 5 L.A. P ădure SWOT analysis of the real estate restitution in Romania, Revue Europeenne du Droit Social, Supplement, year 2016, Annual session of scientific communications with international participation, Law between tradition and reform, Hyperion University, Bucharest, 2016, pag.84

European Journal of Social Law gives valuable insights into the possible methodological and ideological changes that should be considered when conducting a future study in this particular field. The main difficulty with constructing an empirical study that measures the impact of privatization on economic growth is due to the fact that many factors and policies have influential roles in the rate of economic growth. In his book, Easterly identifies numerous factors that can potentially influence growth and describes their interdependence on each other. Furthermore, data from each country is only available for a limited number of years. Cook and Uchida’s study is based on the extreme-bounds analysis (EBA) framework, which is a form of cross-country growth regression analysis. In order to obtain a coefficient of privatization, it is necessary to run the regression using every possible combination of Z variables. Once the process is complete, all the statistically significant coefficients of privatization are used to estimate the base coefficient of privatization as well as the maximum extreme coefficient and minimum extreme coefficient. In the EBA framework, if the sign of the maximum extreme coefficient and the sign of the minimum extreme coefficient is the same, then the result is considered robust (Cook and Uchida, 2003). A privatization variable in a study should reflect the magnitude of privatization in a given country, thus making the magnitude of privatization an important measurement. Cook and Uchida decided that computing the cumulative proceeds from the privatization during the period from 1988-1997 as a percentage of the average GDP during that same period would be a good way to measure the magnitude of privatization. Therefore, their study is based on developing countries that have the data required to compute the magnitude of privatization. Aware of the fact that privatization variable could possibly pick up the effects of other economic reforms, Cook and Uchida test and conclude that there is no correlation between privatization and government budget deficit nor is there a correlation between privatization and World Bank adjustment loans. As Cook and Uchida begin to specify the control variable used in their study, an obvious connection becomes apparent between Easterly’s work and theirs. The task of selecting the right control variables is of the utmost importance since the study should control for the initial economic, political, and social conditions in each country. Such variables are the typical factors that affect economic growth, many of which are discussed in great detail by Easterly. The empirical results depend heavily on the control variables used in the regression analysis, thus specifying them correctly is essential. Using the investment variable as an example, it is possible that investment does not necessarily affect growth, as Easterly and others have suggested. Instead, it is very possible that the causality is reversed so that economic growth affects the amount of investment in a particular economy (Cook and Uchida, 2003). Contrary to theory and previous studies, Cook and Uchida’s empirical analysis suggests that there is a robust negative correlation between privatization and economic growth in developing countries. Since the theory predicts a positive correlation between privatization and economic growth, something is possibly

Revue europénnee du droit social lacking from the model specifications. This can provide powerful insights in the methodology of future studies. Cook and Uchida’s study largely eliminates the possibility that the privatization variable captures other economical changes. Perhaps, as theory implies, it is possible that some of the success of privatization as a policy that promotes economic growth lies in the fact that privatization leads to other structural changes in the economy. Furthermore, as Easterly points out, any policy over the past 50 years that isolates a single macroeconomic ideology has been a failure as a source of economic growth. Therefore, Cook and Uchida’s empirical results reaffirm the idea that privatization as a policy of economic growth should be analyzed in context with other economic policies. They suggest that a possible reason for a negative correlation between privatization and economic growth is due to the lack of competition in the private sector in the developing countries. Thus, more research should be done in the area of privatization and competition in order to make any kind of conclusive ideas. Return of confiscated goods by totalitarian regimes was accomplished in many of those countries whose political and legal situations were different in various ways both in terms of starting this process and legislative solutions adopted. 6 The fact that proceeds from privatization are used as a way to measure the levels of privatization in each country might negatively impact the credibility of the empirical results. It is possible that developing countries with underdeveloped regulatory systems may have enhanced proceeds from privatization. Furthermore, proceeds from privatization could possibly be a completely inaccurate measure of the magnitude of privatization, since different methods (discussed in the previous section) of privatization result in different levels of proceeds. Additionally, Cook and Uchida’s study does not control for the method of privatization that was used in each country, which could potentially play a large role on the empirical results. In fact, a World Bank analysis of the privatization in Eastern Europe suggests that the means through which privatization is implemented has played a significant part in the potential success of privatization in Eastern Europe (World Bank, 2002). Finally, Cook and Uchida’s empirical analysis supports Easterly’s idea that no individual economic policy will be the solution to the quest for economic growth. Instead, more research should be done in order to analyze the effects of privatization, accompanied by other economic reforms, on the rate of economic growth. The purpose of the study is to examine the effectiveness of privatization as a policy to promote growth in developing countries. Thus, this study uses a cross- country regression analysis to estimate the effects of privatization on economic growth. After analyzing previous theoretical and empirical studies on privatization, I took into consideration the suggestions and shortcomings of those studies. In particular, I wanted to examine the effects of competition, foreign direct investment, national debt, and property rights in regards to their interaction with

6 L.A. P ădure, Analysis of international experiences in the claiming estate. Case study, Loredana Adelina P ădure, Supliment Valahia University Law Study 2016, pag. 249

European Journal of Social Law privatization. Theory suggests that each of these factors could play a role in determining the type of impact that privatization has on economic growth. Thus, this study estimates the following basic model using ordinary least squares regression: where Y is the GDP per capita growth rate; B is a set of variables known as Barro-regressors, that are commonly included in cross-country regressions; Z is a set of additional macroeconomic indicators; PRIV is the privatization variable; I is a set of zero, one, or two interaction terms; and u is the error term. Detailed explanations of the variables appear below along with the table of variable definitions.

Bibliography: S. Barro. “Economic Growth in a Cross-Section of Countries.” The Quarterly Journal of Economics , Vol. 106, No.2, 1991: 407-443. J. Bennett. “Privatization Methods and Economic Growth in Transition Economies.” Centre for Economic Policy Research Discussion Paper , No. 4291, March 2004. B. Maxim, A. Shleifer, and R. W. Vishny. “A Theory of Privatisation.” The Economic Journal , Vol.106, No.435, March 1996: 309-319. P. Cook, and U. Yuichiro. “Privatization and Economic Growth in Developing Countries.” The Journal of Development Studies , Vol.39, No.6, August 2003: 121-154. Easterly, William. The Elusive Quest for Growth . Cambridge, Massachusetts: The MIT Press, 2001. M. N. Gregory. The Essentials of Economics . 2 nd edition. United States: 2001. Medema, Steven G. and Richard O. Zerbe. “The Coase Theorem.” Encyclopedia of Law and Economics . 1999. 839-892. W. Megginson, L., R. C. Nash, and Matthias van Randenborgh. “The Financial and Operating Performance of Newly Privatized Firms: An International Empirical Analysis.” The Privatization Process . Ed. Terry L. Anderson and Peter J. Hill. United States of America: Rowman & Littlefield Publishers, Inc., 1996. 115-153.

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LA PROBLÉMATIQUE DES COMPÉTENCES EN ALGÉRIE

Amine. MEKSEM *

Abstract: Human resources of quality constitute the skeleton of any economic system. Knowing the interest of this patrimony, governments and companies invest in the mobilization and the development of the skills of their workforce. In Algeria, we note that in spite of the availability of wealth, in particular hydrocarbons and financial means, inadequacies regarding skills (competencies) exist. This lack of skills is understandable by diverse reasons, among which: The retirement of the holders of knowledge and acquaintance, the sub-use of the skills in internal level, the exodus of the skills towards other horizons, the passive role of the Algerian companies, especially the private ones which have very little deployed their training's systems to develop the skills they need, and finally the quality of the Algerian education/training system. The lack of skills is at the origin of a number of limits which make that Algeria has not yet manager to become a country with high technological potential. Algeria has a considerable trump in this case; a young and perfectible workforce that the state and the companies have to consider (value, train "form", and motivate) to avoid the loss of skills. Keywords: Human resources, Algeria, Algerian company, lack of skills, Algerian education/training system.

Introduction

De par les changements imposés par les fluctuations de l’environnement interne et externe, et par soucis de continuité et de la durabilité, les entreprises ne peuvent concevoir des actions sans prendre en considération les ressources humaines. La gestion des ressources humaines est l’une des clés, sinon la voie privilégiée pour moderniser l’entreprise. Ceci demeure un point qui fait l’unanimité de tous les courants récents qui œuvrent à mettre en avant les actifs immatériels. La notion de compétence est quasiment présente dans le discours quotidien des managers, des dirigeants et des professionnels du monde entier. Ces derniers sont convaincus que l’un des enjeux majeur de la fonction ressource humaine consistent à mettre à la disposition des entreprises les compétences nécessaires pour leur permettre de faire face à la concurrence, ainsi assurer leurs pérennités. Pour ce qui est de l’Algérie, les préoccupations des compétences de la main d’œuvre locale, étaient vraiment nouvelles, mais l’intérêt actuel qu’éprouvent les pouvoirs publics, les entreprises et les salariés concernant les compétences est d’autant plus grand. Le système d’éducation / formation algérien se trouve alors interpellé car c’est à lui que revient la charge d’assurer la préparation des compétences. L’Algérie a beaucoup dépensé dans le système éducation / formation, depuis l’indépendance jusqu’à ce jour. Cependant, elle n’arrive toujours pas à atteindre les

* Doctorant, Sciences de gestion, Université de Tizi Ouzou- Algérie, e-mail: [email protected].

European Journal of Social Law standards internationaux en termes de compétences, et de qualité des ressources humaines. Les compétences et les qualifications professionnelles locales permettant de répondre aux besoins des postes demandés se font de plus en plus rares. Notre recherche consiste à analyser et de comprendre les raisons d’insuffisance des compétences en Algérie. Nous allons essayer dès lors de répondre aux questions suivante: Pourquoi l’Algérie souffre t’elle d’un déficit de compétences? Quelles sont les conséquences et les répercutions de ce dit phénomène sur les salaries, les entreprises, et l’économie algérienne? Quelles sont alors les solutions à entreprendre pour pallier à cette crise de compétences?

1. Etat des lieux de la formation en Algérie

L’Algérie consacre 26% de son budget à son système de formation (système éducatif), soit 13,8% à l’éducation nationale, 6,4% à l’enseignement supérieur, 5,8% à la formation et à l’enseignement professionnel.

1.1. L’éducation nationale

Les principes régissant le système éducatif algérien sont définis par la constitution algérienne comme suit (voir ministère de l’éducation national: www. Education.gov.dz): – Le droit d’enseignement est garanti pour tous. – L’enseignement est obligatoire pour une durée de 9 ans. L’état algérien organise son système d’éducation national en deux types d’enseignement à savoir: Un enseignement fondamental d’une durée de 9 ans, qui dispense une éducation de base commune à tous les élèves (primaire et moyen). Un enseignement post fondamental d’une durée de 3 ans, sanctionné par l’examen du baccalauréat permettant l’accès à un cycle d’enseignement supérieur ou à la vie active

1.2. L’enseignement supérieur

Pour ce qui est de l’enseignement supérieur, le réseau universitaire algérien (voir ministère de l’enseignement supérieur et de la recherche scientifique. www.mesrs.dz) compte 97 établissements repartis sur les 48 willayas couvrant tout le territoire national; il est constitué de 48 universités, 10 centres universitaires, 20 écoles nationales supérieures, 07 écoles normales supérieures, 12 écoles préparatoires et 4 écoles préparatoires intégrées, et 4 annexes.

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En ce qui concerne le système universitaire, le système LMD commençait progressivement à se substituer au système classique et ceci depuis la rentrée 2004/2005. Cette réforme de l’enseignement supérieur mise en place en Algérie a pour objectif l’instauration progressive du système LMD dans toutes les universités algériennes, avec une nouvelle architecture et réorganisation des enseignements et des diplômes. Cette démarche a été menée afin d’améliorer la formation et en faire une formation d’élite capable de répondre d’une manière efficace et satisfaisante aux besoins réels du monde socio-économique et accompagner ainsi l’effort de modernisation du pays. Jugé plus pertinent et plus adéquat à la demande du marché de travail, le système LMD est très loin d’avoir réalisé ses objectifs après 10 ans d’implication.

1.3. La formation et l’enseignement professionnel

Le secteur de la formation et de l’enseignement professionnels constitue un secteur stratégique dans le développement économique et social du pays, il se fixe les objectifs suivants: • Assurer la formation d’une main d’œuvre qualifiée, répondant aux exigences et aux besoins du marché du travail, à travers notamment la formation résidentielle et la formation par apprentissage; • Assurer la formation, le perfectionnement et le recyclage des travailleurs en poste par le biais de la formation continue; • Valoriser les ressources humaines, pour répondre aux besoins de l’économie en main d’œuvre qualifiée; • Améliorer les performances de l’entreprise, ceci par l’adaptation permanente des travailleurs à l’évolution des métiers; • Assurer l’égal accès aux qualifications professionnelles; • Promouvoir les catégories particulières de la population, en vue de leur insertion dans la vie active.

1.3.1. Le secteur public

Le secteur de la formation et de l’enseignement professionnel en Algérie reste conditionné par l’offre de formation pour absorber les jeunes exclus du système éducatif, que par la demande des entreprises en raison de faiblesse des mécanismes. La formation professionnelle, en Algérie, est structurée en cinq niveaux de qualification, et cela comme suit: Niveau1: ouvrier spécialisé, la formation est sanctionnée par le certificat de formation professionnelle spécialisé (CFPS). Niveau2: ouvrier et agent qualifié, la formation est sanctionnée par le certificat d’aptitude professionnelle (CAP). Niveau3: ouvrier et agent hautement qualifiés, la formation est sanctionnée par un certificat de maîtrise professionnelle (CMP).

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Niveau4: agent de maîtrise, la formation est sanctionnée par un brevet de technicien (BT). Niveau5: technicien supérieur, la formation est sanctionnée par un diplôme de technicien supérieur (TS).

1.3.2. Le secteur privé

En Algérie, les conditions de création, d’ouverture et de contrôle des établissements privés de formation professionnelle sont fixées par le décret exécutif n°2001-419 du 20 Décembre 2001. Cette décision traduit le souci des pouvoirs publics de poursuivre l’augmentation de l’offre de formation, sans pour autant recourir systématiquement aux moyens financiers de l'état. Elle s’inscrit également dans le cadre de l’ouverture économique aux promoteurs privés. Le secteur privé a connu une croissance fulgurante durant ces dernières années. Il assure essentiellement des formations en gestion, secrétariat, informatique et hôtellerie, ciblées sur des emplois dans le secteur structuré et les zones urbaines. Le nombre d’établissements privés s’élève à 700, souvent de petite taille. Ils accueillent un effectif estimé près de 50000 stagiaires. Certains de ces établissements travaillent en partenariat avec des organismes de formation étrangers; européens et américains telles les universités et les écoles. Dans la situation actuelle d’inefficacité des formations du secteur public, la demande en formation initiale ou diplômante qui s’adresse aux privés a augmenté. Un certain nombre de formateurs privés se sont même portés sur la formation continue (perfectionnement, recyclage, mise à niveau) dans des spécialités parfois très pointues et de courte durée, réalisées en partenariat avec les entreprises.

2. La formation continue mise en œuvre par les entreprises

La formation réalisée dans le cadre des activités des entreprises n’est pas connue et ne fait pas l’objet d’un système d’information disponible. Il n’existe que peu de données permettant d’estimer les efforts de formation consentis de la part des entreprises algériennes. Il est donc impossible, de fournir un état de la situation de la formation des salariés algériens en activité. Cependant, dans leur travail sur la formation en Algérie, Clement, Bougault et Filipiak (2005), donnent quelques indications sur cette formation: Le premier indice concerne l’existence d’entreprises résolument formatrices. En effet, plus d’une dizaine de très grandes entreprises continuent à mener une politique active en faveur de leurs salariés, à l’instar de Sonelgaz et Sonatrach, les entreprises de la grande distribution telles que Blanqui et Cevital, les entreprises de service telles que Djezzy, Algérie Telecom, le secteur pharmaceutique (Aldaph) et les banques telle que la CNEPED.

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Le deuxième indice concerne PME/PMI; leur absence dans le champ de la formation a incité le MEDA à prévoir une intervention tout à fait significative vis- à-vis de ce secteur. A cet effet, 800 000 euros de dégagés afin de les aider à développer une approche de la formation basée sur la demande économique. Le troisième indice concerne la mise en place de pratiques innovantes en termes d’investissement et de partenariat. L’exemple d’Aldaph est à cet égard significatif de la pratique de la formation comme investissement. Cette entreprise est une SPA algérienne à capitaux et actionnaires étrangers; elle a menée une politique de formation représentant jusqu’à 40 % de sa masse salariale. Le principe de base de cette politique réside dans le constat que le niveau de qualification et de compétence des ressources humaines était son meilleur avantage concurrentiel, et que la formation, lui permet le développement de ces qualifications et compétences Le groupe COSIDER est, quant à lui, est significatif du partenariat et relations possibles avec le dispositif public de formation. Afin d’améliorer les performances de ses neuf filiales, le groupe s’est engagé, récemment, dans le cadre d’une démarche qualité, dans un important processus de remise à niveau et de développement des compétences de ses ressources humaines (environ 14 000 salariés). Pour ce faire, le groupe a sollicité en 2004 l’appui du ministère de la Formation et de l’Enseignement professionnel et signé cinq conventions de partenariat avec des instituts du secteur (INFP, INSFP de Kouba, DFPIE d’Alger, CNEPD et ITEEM), pour lui assurer des formation dans différents domaines.

3. Les compétences en Algérie, entre manque et déperdition

Actuellement, nous assistons à un déficit important des compétences, en Algérie, et ceci à tous les niveaux. En effet, les pouvoirs publics reconnaissent ces besoins en compétences et affirment que l’économie algérienne connaît des difficultés en la matière. Cet avis est partagé par les bureaux chasseurs de talents et les entreprises étrangères installées dans le pays, qui sont très exigeants dans la recherche des compétences. Pour Joelle Morana, Fouzia Brahimi, Dominique Bonet Fernandez, Frederic Teulon (2014), l’insuffisance en matière de compétences, en Algérie, peut s’apprécier en trois points.

3.1. L’inadéquation du système éducatif

Il existe un écart assez considérable entre l’offre et la demande de formation. Les cursus offerts par l’éducation nationale, l’enseignement supérieur, et l’enseignement professionnel ne correspondent pas à la demande des entreprises. Ajoutant à cela des jeunes étudiants (des universités ou des écoles de formation), qui n’arrivent pas à cibler au préalable leurs domaines de formation en fonction de

European Journal of Social Law leurs prédispositions naturelles et de leurs intérêts professionnels. En effet, l’étudiant sera peu productif lorsqu’il opte pour un choix qui ne répond pas au mieux à ses aspirations personnelles. Les compétences se font donc de plus en plus rares, ce qui fait que, les entreprises et les jeunes diplômés sont les premiers à être pénalisés (difficulté pour les entreprises de recruter des jeunes peu compétents).

3.2. L’entreprise algérienne en état de défaillance

La structure spécifique des entreprises algériennes peut être considérée comme un élément crucial de la marginalisation des compétences. En effet, le recrutement des cadres – compétents incitera leurs dirigeants- propriétaires, à déléguer leur pouvoir et à faire participer ces cadres au processus décisionnel. Ce qui n’est pas facile à admettre pour un dirigeant, propriétaire qui a investi son capital, son savoir faire et ses compétences pour bâtir son entreprise. Cette relation d’encadrement entre le cadre diplômé (compétant) et le dirigeant -non ou moins diplômé- risque d’entraver l’efficacité organisationnelle. Ces types de dirigeants ont recours au recrutement des cadres moins compétents pour sauvegarder leurs marges de manœuvre et leurs espaces d’interventions dans leurs entreprises. Dans de telles circonstances, les cadres compétents sont pénalisés. Nous pouvons ajouter à ce point le rôle passif des entreprises algériennes, surtout les entreprises privées qui ont peu déployé les dispositifs de formation continue, en ne se souciant pas des changements et perturbations de l’environnement et du contexte actuel d’internationalisation. En effet, dans la période récente, elles étaient trop préoccupées par le processus de privatisation, de réhabilitation financière et de mise à niveau, la formation continue considérée comme l’outil indispensable au management des ressources humaines est peu présente et peu utilisé. Les entreprises algériennes se contentent de chercher des profils presque inexistants, au lieu de former leurs cadres: – Maîtrise de la langue anglaise. – Expérience professionnelle dans une multinationale. – Expérience managériale dans multinationale. – Candidat âgé de 24 à 35 ans. – Maîtrise des outils informatiques. – Une expérience antérieure ou des études à l’étranger sont un atout majeur.

3.3. Migration des compétences

Depuis longtemps, le monde a connu un important mouvement de migration des compétences, qui se fait généralement dans un sens unique, en direction des pays riches et développés. Cette migration s’explique par la recherche d’un

Revue europénnee du droit social meilleur environnement par des cadres et des chercheurs, car leurs pays d’origine, qui a pourtant contribué à leur formation initiale, ne leur offrent pas les conditions nécessaires à leurs épanouissements scientifique et technologique. C’est ainsi que les pays assistent, impuissants, à la fuite des cerveaux qu’ils ont formés, mais pour lesquels ils n’offrent que peu de conditions favorables pour leur retour. Pour HAYAT KENDEL (2005), le phénomène de la migration des compétences depuis l’Algérie ne date pas d’aujourd’hui. Les cadres et les chercheurs algériens ont commencé à quitter le pays depuis les années 80. Ce mouvement alors a connu son apogée entre les années 1992 et 1996 où énormément de cadres de divers secteurs de la vie économique, sociale et culturelle ont quitté le territoire national. Les secteurs les plus touchés sont la recherche, la médecine et les nouvelles technologies. En fait, ces chercheurs et experts algériens qui sont installés à l’étranger au cours des dernières années, ont fais perdre à l’Algérie des milliards notamment en matière de coût de formation et coût d’opportunités. Reste que certains d’entre eux collaborent avec l’Algérie dans différents domaines. Les principales destinations de ces cadres sont la France, l’Allemagne, la Belgique, la Suisse, La grande Bretagne, les pays scandinaves, Le Canada, Les Etats unis d’Amérique, et quelques pays du golf. Pour ce qui est des statistiques, Il n’y a pas de précision sur l’exode des compétences algériennes, mais les chiffres souvent cités par la presse situent à 500 000 (parfois 1 000 000) le nombre d’algériens ayant un niveau universitaire et qui ont quitté le pays durant les dix dernières années. L’Etat algérien conscient de ces pertes, dont il est le seul perdant a entrepris des efforts en matière d’amélioration des conditions socioprofessionnelles du travail et en matière de valorisation des compétences Nous pouvons ajouter à ces trois points cités celui de:

3.4. Déperdition des compétences au niveau interne

Il existe une autre forme de fuite de compétences en interne; elle se traduit par un des départs massifs en retraite de cadres qui disposent de connaissances et savoirs sans pour autant les léguer à leurs remplaçants respectifs. Ajoutant à cela une sous utilisation et une mauvaise prise en charge des cadres présents sur le territoire national. Ces phénomènes de perte subite d’une grande partie du savoir et savoir-faire sont autant des facteurs de réduction du potentiel de connaissance et de compétence pour l’économie et qui est soustrait à son usage.

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4. Les conséquences des insuffisances de compétence en Algérie

Les insuffisances en matière de compétences ont une répercussion sur le pays, les individus et les entreprises. Parmi les conséquences les plus pertinentes, on peut citer:

4.1. Un taux de chômage élevé

Le chômage est une conséquence, un résultat tant redouté par les économies du monde entier, qui ne cessent de prendre les mesures qu’il faut pour le maintenir à des niveaux relativement bas. En Algérie, la première conséquence du manque de mobilité des compétences est l’existence d’un chômage qui est qualifié de mismatch où d’inadéquation entre offre et demande de travail. Le chômage est d’autant plus élevé quand le mismatch est élevé. Le problème d’insertion professionnelle se pose annuellement et concerne plus les jeunes diplômés. En effet, ce problème d’insertion est dû aux différents organismes publics ou privés qui, en constatant un manque de qualification et de compétences, s’abstiennent de recruter. Ainsi, le constat montre qu’une grande proportion de jeunes diplômés de l’université se trouvent, après leur cycle de formation, au chômage. Leur situation est préoccupante au regard des difficultés d’insertion dans le monde du travail. Bien que les pouvoirs ne cessent de mettre en place des mécanismes d’insertion des jeunes universitaires, ces diplômés sont sérieusement pénalisés; en moyenne le taux d’insertion dans le marché du travail, au titre d’un emploi permanent demeure faible.

4.2. Les difficultés à attirer les investissements étrangers hors hydrocarbure

Ces quarante dernières années ont vu nombreux pays changer leur attitude et comportement vis a vis de l'IDE; en effet après avoir évité cet investissement, surtout pendant les années 1970 en raison de convictions idéologiques protectionnistes, les pays en voie de développement commencent à partir des années 1990 à multiplier les efforts pour attirer l'IDE en proposant un climat d'affaires de plus en plus attractif. Pour Guerid Omar (2008), les pays ont intérêt à recevoir les IDE, car ils leurs procurent les avantages suivants: – L’IDE est devenu une source importante de financement extérieur privé pour les pays d’accueil (entré de capitaux); – Les IDE ont un effet global positif sur la croissance des pays d’accueil;

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– Le transfert de savoir-faire technique et des techniques de management est utilisé pour améliorer la qualité du travail local, la gestion et les systèmes d'éducation et de formation; – En matière des importations, Les multinationales peuvent également contribuer à l'amélioration de la balance des paiements du pays d'accueil, en produisant des biens importés auparavant (substitution de l'importation), et qui peuvent dès lors être exportés (retournement de la direction des échanges); – Assurer un transfert de technologie vers les pays d’accueil; – Réduire la puissance monopolistique des entreprises locales, et de stimuler la concurrence nationale tout en encourageant l'entreprenariat – Ajoutant à cela l’absorption du chômage dans les pays d’accueil. Concernant l’Algérie, les IDE ont connu une forte croissance depuis 1994, mais ces IDE concernent plus le secteur des hydrocarbures, les autres secteurs, quant à eux, restent moins attractifs. Ces IDE placent l’Algérie à la quatrième position de la région MENA (moyen orient et Afrique du nord), mais seulement à 50 % derrière les performances de l’Egypte et très loin derrière la Malaisie. Les causes sont attribuées aux institutions et au climat inadéquat surtout en matière de qualifications et de compétences.

4.3. Un blocage d’innovation

« Dans la définition usuelle de l’analyse économique, il y a innovation lorsqu’une entreprise introduit sur le marché de nouveaux produits et procédés (biens et services) ou des procédés et produits considérablement améliorés. Il y a aussi innovation lorsque l’entreprise adopte de nouvelles façons pour produire, c’est l’innovation organisationnelle » voir: Bernard Haudeville, Redha Younes Bouacida (2006). L’OCDE définit le processus de l’innovation « comme l'ensemble des démarches scientifiques, technologiques, organisationnelles, financières et commerciales qui aboutissent, ou sont censées aboutir, à la réalisation de produits ou procédés technologiquement nouveaux ou améliorés » (OCDE, 2005). Les compétences, les connaissances, les apprentissages individuels et collectifs mais aussi les ressources financières mobilisées sont nécessaires à l’innovation. L’Algérie est non seulement mal classée en matière de performance sur l’innovation, Mais le pays subit une érosion de sa position. L’organisation mondiale de la propriété intellectuelle (OMPI) pour l’édition 2013 a dressé un nouveau classement des économies mondiales innovantes, un classement dominé par la Suisse. Voici le classement des 10 pays les plus innovants: 1. Suisse (en première position en 2012) 2.Suède (2) 3. Royaume-Uni (5) 4. Pays-Bas (6)

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5. États-Unis d'Amérique (10) 6. Finlande (4) 7. Hong Kong (Chine) (8) 8. Singapour (3) 9. Danemark (7) 10. Irlande (9) Quant à l’Algérie, elle est en bas de liste de ce classement mondial, avec une note de 23,11/100, ce qui lui vaut la place de 138ème sur 143 pays évalués. Bien sûr, il est difficile de comparer un pays émergeant à des pays qui ont atteint leur développement depuis bien longtemps. D’une manière globale en Algérie, il existe un manque significatif de moyens (chercheurs, équipements), et une faible efficacité des systèmes d’innovation due aux manques entre autres des compétences et connaissances.

4.4. La sous utilisation des outils de production

Pour Abdelkader Djeflat(2008); la sous utilisation de l’outil de production en Algérie est évidente. Elle ne dépasse pas selon lui les 41% ces dernières années, à cause des structures productives qui mobilisent très peu leurs potentiels de compétences et de connaissances, mais aussi à cause d’obsolescence des équipements et de connaissances des hommes. Ces dernier peinent à mettre à jour leurs connaissances, non pas du fait de contrainte financière, mais de manques de facteurs incitatifs et motivants. La plupart des secteurs sont assez illustratifs de cette situation. Pour Ouchalal Houria (2014), « L’analyse de la situation qui a prévalu ces dernières années en Algérie met en évidence les dysfonctionnements et les insuffisances de l’appareil de production qui se traduisent, entre autres, par la détérioration de la situation financière des entreprises nationales, la mauvaise gestion, le manque de compétence et de qualification » Pour Saoudi Abdelaziz (2012), La moitié des entreprises publiques industrielles et 40% des entreprises industrielles privées affirment avoir utilisé leurs capacités de production à moins de 75%. Il y a donc dans l’industrie algérienne des capacités de production oisives. Elle ajoute que la main-d’œuvre et l’équipement sont les deux facteurs de production qui posent des problèmes aux entreprises nationales. Près de 10% des chefs d’entreprise du secteur public et près de 20% du secteur privé ont cherché à recruter du personnel d’encadrement et de maîtrise et déclarent avoir trouvé des difficultés pour trouver ce personnel. De plus, 27% des chefs d’entreprises publiques et 30% des chefs d’entreprises privées jugent que le niveau de qualification et de compétence du personnel est insuffisant. Dans le domaine de l’équipement, la situation n’est pas meilleure. Notons que 62% de l’outil de production du secteur public et 35% de celui du secteur privé ont connu des pannes

Revue europénnee du droit social d’équipement à causes de: la vétusté et le manque de maintenance. Ces pannes ont occasionné des arrêts de travail et la production.

4.5. Difficulté de production d’avantage concurrentiel fondé sur les connaissances et compétences

Les avantages concurrentiels traditionnels pour lesquels l’Algérie est relativement positionné (coûts de main d’œuvre, coûts et accès à l’énergie, localisation géographique), présentent des limites et constituent plus les fondements de compétitivités et d’attractivité comme c’était le cas au passé. Il y a donc une nécessité de trouver de nouvelles alternatives, c'est-à-dire de nouveaux avantages concurrentiels fondés sur les connaissances, compétences, savoirs tacites et expérience, accumulations technologiques dans différentes entreprises et dans différents secteurs d’activité. Il est alors primordiale de se poser la question de mobilisation des compétences et de capital intellectuel, tout en sachant que « à l’air de l’économie de savoir, les connaissances, de part leur valeur stratégique ont plus que jamais un impacte très positif sur les performances des organisations » Abdelkader Djeflat (2008). Cependant, et à cause des insuffisances en matière de compétences et de capital intellectuel dont souffrent l’Algérie, la tache de construire des avantages concurrentiels fondés sur les compétences et connaissances, et accumulation technologique paraît dès lors très difficile et très improbable.

5. Les démarches à suivre pour pallier aux insuffisances des compétences en Algérie

Il est clair que l’Algérie dispose d’une main d’œuvre assez jeune et perfectible, qui demande qu’à être bien formée. L’Etat comme les entreprises sont appelés alors à doubler leurs efforts en matière formation (l’éducation nationale, enseignement supérieur et de formation professionnelle et formation continue) afin de développer les compétences de cette main d’œuvre. Ils sont appelés, aussi, à valoriser et à motiver le capital humain en créant les conditions les plus favorables à l’épanouissement socioprofessionnels, Pour éviter les exodes et les déperditions. Pour Hayet Kendel (2005); Et vu du nombre de chercheurs et scientifiques et de cadres algériens à l’étranger, il serait plus approprié que Algérie mette à profit leurs connaissances, savoirs faire, et compétences pour le développement du pays, sans pour autant chercher à les rapatrier physiquement. En effet, devant les difficultés de freiner l’exode des compétences, l’Algérie pourrait utiliser les NTIC qui ont bouleversé la notion d’espace-temps pour renverser la situation. Ainsi elle pourra transformer ce phénomène en gain de compétences, et ceci en encourageant ces dernières à diffuser leurs connaissances et savoirs faire via les moyens

European Journal of Social Law modernes de communication. Il serait même préférable que ces experts algériens poursuivent leurs activités à l’étranger sachant l’écart technologique qui existe entre les entreprises algériennes et celles des pays développés. L’Etat et les entreprises doivent alors trouver les moyens d’acquisition d’au moins une partie de leur connaissance. Il est vraiment possible de coopérer avec les cadres et chercheurs installés à l’étranger, puisque des pays comme l’Inde, la Corée ou la Chine ont pu mobiliser leurs expatriés qui n’ont pas voulu rentrer, en les associant à distance aux projets de développement du pays. Elle ajoute que, les entreprises algériennes peuvent s’approprier le savoir individuel de leurs employés avant que ceux-ci quittent l’entreprise en destination des entreprises étrangères installés dans le pays ou vers d’autres pays, en utilisant les techniques de capitalisation des connaissances, et des mécanismes de transfert interne des savoirs acquis. Ce qui permet de garder une trace réelle de cette masse de connaissance qu’ils détiennent et de transformer ainsi la connaissance tacite en connaissance explicite qui deviendra alors plus facile d’accès. Pour Abdelkader Djeflat (2006), le développement d’une économie fondée sur la connaissance avec ses corollaires en Algérie permettra de pallier aux problèmes des ressources humaines, en termes de savoir, savoir faire, qualification et compétences

Conclusion

La mondialisation et l’installation d’entreprises étrangères sur le sol algérien ont fait naître, depuis quelques années, une forte nécessité des compétences, pour ne pas dire une guerre des talents. L’Algérie a connu ces dernières années un manque de compétences. Cela a pour cause l’exode des cadres et talents algériens vers l’étranger, la déperdition des compétences au niveau interne (départ en retraite, dispersion des compétences), et le système de formation algérien (que sa soit l’éducation national, la formation professionnelle et enseignement supérieur) et la formation continue dans les entreprise qui ont très peu assurés la tache de production de compétences, et ceux malgré les efforts et les budgets consentis par l’Etat à leur égard. Les insuffisances en matière de compétences dont souffre l’Algérie ont des répercussions négatives sur l’employabilité des salariés, et sur la performance et la compétitivité des entreprises algériennes qui ont du mal à faire face aux exigences d’un marché de plus en plus concurrentiel. Ces insuffisances ont aussi des conséquences sur l’économie du pays dans son intégralité, d’où l’intérêt de trouver des solutions dans les très brefs délais. Même si l’Algérie souffre de problèmes de compétences, elle dispose d’une main d’œuvre parmi les plus jeunes au monde. Les pouvoirs publics sont appelés à améliorer le système éducation/ formation, en proposant les formations les plus évidentes et les plus pertinentes. De leur coté, les entreprises algériennes doivent

Revue europénnee du droit social solliciter d’avantage leurs systèmes de formation continue, pour développer les compétences dont elles ont besoin. Toutefois les autorités et les entreprises algériennes peuvent s’orienter vers d’autre solution tel que: la coopération avec les chercheurs et cadres expatriés, la gestion des connaissances, la valorisation des compétences existantes dans le territoire national

Bibliographie: Clement Sylvain, Bougault Herve, Filipiak Ewa: «Les mécanismes de financement de la formation professionnelle: Algérie, Maroc, Sénégal, Tunisie », document nO: 14 de l’agence française du développement, édition Magellan&Cie, paris. 2005. pp. 3-66. Djeflat Abdelkader: « L’économie fondée sur la connaissance; état des lieux et perspectives pour l’Algérie », éditions dar el adib, Oran. 2006. p30. Djeflat Abdelkader: « l’Algérie et les défis de l’économie de la connaissance », in Friedrich- Ebert-Stiftung, Alger. 2008. pp.1-48. Haudeville Bernard, Bouacida Redha Younes: « Les relations entre activités Technologiques, innovation et croissance dans les PME algériennes: une étude empirique basée sur un échantillon d’entreprises » Université Paul Cézanne – Aix Marseille III. 2006. pp. 1-24. Guerid Omar: « L'investissement direct étranger en Algérie: Impacts, opportunités et entraves », in revue recherches économiques et managériales N°3-juin de faculté des sciences économiques et commerciales et des sciences de gestion de l’université de Biskra. 2008. pp. 19-50. Kendel Hayet: « Mobilité des compétences et gestion des connaissances en Algérie » publié in revue ISDM (informations, sciences, savoirs et médiations). 2005. pp. 1-7. Ministère de l’éducation national: www. Education.gov.dz Ministère de l’enseignement supérieur et de la recherche scientifique. www.mesrs.dz. Morana Joelle, Brahimi Fouzia, Fernandez Dominique Bonet, Teulon Frederic: « Compétences de la main-d’œuvre locale en Algérie et management de projets nationaux: Le cas de l’autoroute Est- Ouest », in Working Paper 2014-247, IPAG business school, Paris. 2014. pp 1-19. Organisation mondiale de la propriété intellectuelle, http://www.wipo.int/ipstats/fr/. Ouchalal Houria: «Les conditions d’émergence de la fonction R&D dans les entreprises publiques industrielles algériennes et la nécessité de la mobilisation de l’intelligence créative de la ressource humaine (R.H) aux besoins d’innovation technologique », in Colloque International Management et développement, mai 2014, Casablanca, Maroc. pp. 1-10. Saoudi Abdelaziz: « les entraves dont souffrent les entreprises publiques » publié au soir d’Algérie, 6 Juin 2012. http://www.algerieinfos-saoudi.com/article-les-entraves-dont- souffrent-les-entreprises-publiques-106491143.html. p.16.

European Journal of Social Law

VICES OF CONSENT IN NEW CIVIL CODE

Cristian DUMITRESCU *

Abstract: Vices of consent provided by the old Civil Code, are also included in the new Civil Code, the latter presenting them in a clearer and more comprehensive form. The CC provides new regulqation in the field and we will analyse briefly the main changes brought here by the new regulation, comparing to the old one. The Civil code is dedicated to the principle of good faith that the parties must show the initiation and conduct negotiations for the contract. Keywords: vices of consent, error, the fraud, violence, lesion

Consent. Signing a contract is through negotiation by the parties or by unqualified acceptance of an offer to contract, agreement will be made up of two elements: offer and acceptance. The CC is dedicated to the principle of good faith that the parties must show the initiation and conduct negotiations for the contract. Consent is an essential element for the conclusion of a legal act, must meet four conditions to be true: it must come from a person with discernment, to be externalized, be expressed with the intent to produce legal effects and it must not be vitiated. In this respect, the provisions of art. 1204 CC states, referring to the conditions of consent, it must be serious, expressed freely and knowingly. According to art. 1206 CC consent is vitiated when it is given in error, surprised by fraud or torn by violence, or in case of injury. Vices of consent provided by the old Civil Code, are also included in the Civil Code, the latter presenting them in a clearer and more comprehensive form. Consent is not given the status of legal commitment was expressed when the joke (jocandi causa), of friendship, out of courtesy or convenience. 1 Error , the CC is found in several articles (Art. 1207 to 1213), covering different types of errors that can occur at the time the act (inexcusable error, assumed error, calculation error, the error of communication or transmission) with appropriate sanctions that may arise. Depending on the type of error, the act has been concluded may be canceled in whole or in part, as a result of these sanctions intervening party application that was found in error. According to art. 1207 of the Civil Code, the contract may be canceled at the request of the party when the contract was in error essential if the other party knew or, where appropriate, should have known that fact upon which bore the error was essential for concluding the contract. In all cases the intention must be analyzed in terms of the essential qualities of the object. The error is essential (a) they bear on the nature or object of the contract (for example, if one of the counterparties believed that enter into a maintenance contract and not a contract of sale), (b) when wearing the identity object benefit (eg. if one of

*Assoc. Prf. PhD. Hyperion University, Bucharest 1 L.A. P ădure, Course of civil law. General Part. Persons, Bibliotheca Publishing House, Targoviste, 2015, pag. 84

Revue europénnee du droit social the co-borrowers to buy a particular good, but actually purchase another) or in an amount thereof without which the contract would not be completed, or (c) they bear the person's identity or on a quality thereof without which the contract would not be completed (for example, when he signed a mandate agreement or mediation consideration of personal qualities representative or agent). No one may invoke the defense of ignorance of the existence or contents of a bill (nemo censetur ignorare legem). The error that the mere grounds of the contract is not essential, unless such reasons that the intention of the parties were considered decisive. In order to be invoked in accordance with art. 1208 of the Civil Code, the error should be excusable in the sense that the contract can not be canceled if carried out on which the error may according to circumstances known by reasonable diligence. Also, you can not rely on assumed error or error on an element bearing on the risk of error was assumed at that invokes or after circumstances had to be incurred by it. The victim of an error is not entitled to it contrary to the requirements of good faith. Good faith is presumed co-contractor must provide evidence to the effect that the party invoking an error made in bad faith. A new regulation is that the provisions regarding the error properly apply when there is an error of communication or transmission of information or documents. Specifically, these provisions are applicable to situations in which the error will bear on the declaration of the times in which the statement was inaccurately transmitted through another person or by means of distance communication. Simple miscalculation does not void the contract, but only rectification, unless that materialized in an error on the quantity, was essential for concluding the contract. Calculation error should be corrected at the request of either party. By way of novelty, Civil Code admits the possibility of invoking the error of law or error on the existence or contents of a legal rule. Error of law is considered essential when determining the legal norm, according to the will of the parties to conclude the contract. However, the error of law can not be invoked if the laws affordable and predictable. The part that was in error at the conclusion of a civil legal act has two choices: to request the cancellation of the legal document or to require its adaptation. Adapt the contract in case of error is a new mechanism regulated by art. 1213 of the Civil Code, which requires that the party was in error to demand performance of the contract by notice in the manner that party understood its terms. Adapting contract may be made only with the consent of the other. So after being informed of the manner in which the party entitled to anulability understood the contract and before it has obtained the annulment of the other Party shall, within 3 months from the date it was notified or the date when he was served with the summons application to declare that he agrees with execution or to execute the contract without delay, as was understood that part of the error. It has also been introduced Calculation- error, an error that the mere grounds of the contract is not essential, unless such reasons that the intention of the parties

European Journal of Social Law were considered decisive. The contract may be canceled if carried out on which the error may according to circumstances known by reasonable diligence. On the other hand, the mere miscalculation does not void the contract, but only its rectification, except where, materialized in an error on the quantity, was essential for concluding the contract. Calculation error should be corrected at the request of either party. The novelty of the CC is that even the error key may be covered, meaning that the legislature leaves to the parties that invoke or not the grounds for invalidity and text of the law covered by the old Civil Code wrote that "the error does not produce nullity only when object falls on the substance of the Convention ", which means that in these conditions the effect was nullity, without the parties can overcome this. In light of the Civil Code we can say that the parties will prevails. Undue influence is that vice of consent which consists of misleading a person using cunning or deceptive means or by omission, fraudulently informing the contracting party on circumstances that ought to be disclosed (art. 1214 CC). Regarded as intentional tort committed by its author, the fraud involves a material element and one intentional or subjective. In terms of material element of the new regulation pays attention not only to the commissive fact (action, consisting in the use of fraudulent schemes, likely to cause the error), but that omission (negative attitude of not notify the other Party circumstances that had to be disclosed). Unlike the previous regulation, which stated expressly provided that the fraud was due to the conclusion of the contract (as "without those machinations, it is obvious that the other party would not have contracted") so that the error caused to be regarded elements critical to the contract, the new regulation is not imposed this condition, it is sufficient that the attitude of the party have been disjointed error, even if it was not essential 2 An important difference from the old Civil Code is that the fraud can void the contract regardless of the element on which bears the item was determining whether or not to conclude the contract. Under the old regulations, the fraud does not invalidate the contract only if the contract was decisive conclusion. Thus, if employed fraudulent representation determined the acceptance by other parties of less favorable terms, could not invoke the nullity of the legal act ended, but could only ask for damages. This possibility of a claim for damages is kept as an option for one whose consent was vitiated, which has two choices: to demand cancellation of the contract, with damages or require its maintenance and reducing his service with value damages which would be entitled. Undue influence can also come from a third party where the other party knew or, where appropriate, should have known of the fraud at the conclusion of the contract. Undue influence is, therefore, a lie told by someone at some point to determine conclusion of the contract.

2 Art. 1214 par. 2.

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Undue influence can be a positive and a negative in that part fails to disclose his other certain circumstances. If the fraud is the result of negative actions, we can talk about deceit by reticence. A classic example is the assignment of society who are in financial difficulty and this is not revealed. Another example is the signing of a preliminary contract for sale of real estate is guaranteed that the building in question is not burdened with charges and further proof that the land in question is in dispute. A specific form of deception, which manifests itself in the matter of liberalities (donations, wills) is the dol as suggestion or captation. However, the reluctance dol is not necessarily to arise from the seller. Assuming we have a contract to provide maintenance services network, the vendor provides some reasonable price, without knowing that you have to work harder than necessary to bring the network into a state suitable, it may invoke the fraud against the buyer. A more interesting question may arise if a contract of sale is made on e-bay. Assuming someone sells a ridiculous price for some artwork and a buyer knows their true value but does not inform the seller, we can ask whether the contract can be canceled. A priori hold that the proof is difficult, as there is no reporting obligation to the buyer, but not impossible if we stand on the ground of good faith in concluding contracts. But the prerequisite for us in the situation of deceit by reticence is as bad intent be proven. So if it is not possible to prove intent by the gathering of evidence, chances of success are small. Dol that positive action involves some fraudulent maneuvers practiced by one party so that it is obvious that the other party would not have contracted, art. 1214 (1), Civil Code. In this respect the fraud is also a party sanction fault with the basic principle of good faith undermining of the contract. Since the fraud is not presumed, it must be shown every time, art. 1214 (4), Civil Code Dol is not necessarily have come from one of the Contracting Parties may be invoked in circumstances in which the fraud comes from a third party with knowledge or if that should be known by the other party whose consent is vitiated art. 1215 (1), Civil Code. In addition to canceling the contract, the author of deception can be held accountable in the sense that damages may be required if the fraud is proven art. 1215 (2), New Civil Code The key question is therefore what is deception. Definition not given by law, labour law can be looked fraudulent. Generic it means any planning, fraud, trick or stratagem for a contract to be concluded on the basis of unfair procedures. Undoubtedly the fraud scams involves processes which remain tolerable and as positive law makes a distinction between dolus bonus and malus. Otherwise interpreted, this situation requires that a certain exaggeration is permissible, but the problem is exaggerated in advertising campaigns, which could be a fraud.

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Incidentally, when advertising is misleading, a sanctioned public authorities. Appreciation should be concretely course, depending on circumstances of the case. The idea is partly confirmed and Art. 87 of Law no. 504/2002 which provides audiovisual nullity of contractual clauses that would be contrary to the public right to receive information of public interest and free competition. The consequences of deception. If deceptive maneuvers are proven, then we are in a situation where there is a defect of consent and invalidity of contracts may be requested. Nullity is a relative one, which means that only the victim can request cancellation of labour contract. As established by the Civil Code, art. 1214 (2), assessing undue influence is not required essential error regarding key stipulations of the contract. The question is whether the next it still requires finding an error. The answer is given in Art. 1214 (1) of the Civil Code, which states that the error is the result of deception. This choice of the legislature was not necessarily obvious, as could be the case that even if they were fraudulent schemes, the victim may be conscious and arrived to give simple consent of lethargy. However, the choice being made by the legislature, this means that simply do not behave according to the requirements of good faith contract is not equivalent to willful misconduct. Regarding the fraud lies in the novelty of C.C the fraud committed by a third party unlawfully in the old Civil Code. It also stipulates that "party whose consent was vitiated by fraud may request cancellation of the contract, even if the error that was not was essential", which means according to the legislature even if the fraud falls on one of the essential elements it may be invoked. Another new regulation is to clearly report on fraud: art.1225 paragraph 3 "the contract can be annulled when the fraud emanating from representative, his agent or other party guarantor business." In conclusion, as in the case of undue influence and other addictions, vices of consent theory is not a theory that can penalize all malformations contract. On the other side of the law falls commercial interest, which, together with transaction security by canceling contracts suffer. So there is a balance between determination made difficult cases where the contract should be canceled and where should prevail their stability and therefore confidence of the parties in the contractual mechanism. Violence in conception of the CC, as a vice of consent is understood as "justified fear induced without the right to the other party or a third party, such that the threat might think, according to circumstances, that, without the consent of his life, person, honor or his property would be exposed to a serious and imminent danger "(art. 1216). In determining whether determinant of violence has to be taken into account, as has art. 1216 par. 4 CC, the "age, social status, health and character of the violence which was exercised, and any other circumstance that could influence its condition at the time of conclusion". Given that any threat is not, in itself, violence-fault consent is required as it constitutes a violation of the law (to be unlawful) to attract the invalidity of the act. On the other hand, according to CC represents violence "fear induced by threat of exercise of a right made in order to obtain undue benefits" (art. 1217). That the threat must be decisive, resulting in

Revue europénnee du droit social default and the provisions of art. 1219 CC, which do not recognize the character of vice of consent, mere reverence fears stemming from respect, not as it has been accompanied by violence. Threat of harm is not, according to CC considered constitutive of violence when she emerges from a state of emergency, only if the other party took advantage of this circumstance (art. 1218 CC). Violence can void the contract and when it is directed against a close person as spouse, ascendants or descendants of the party whose consent was vitiated. Civil Code provisions governing the nature and standard setting as violence and vice of consent. Proof of violence can be done with any evidence, requiring both the approval of actual coercion and fear induced was decisive. 3 Injury exists when one party taking advantage of the state of need, inexperience or lack of knowledge of the other party, stipulates in its favor or another person a benefit worth considerably more, at its conclusion, than the value of their benefits. (Art. 1221). The existence of injury must be assessed and depending on the nature and purpose of the contract. The injury may exist where the child assumes an obligation excessive in its heritage status, the benefits that you get from the contract or the circumstances as a whole. Unlike the previous regulation, the CC lesion is recognized in the case of a major, provided that the difference in performance to exceed half the value it had at the time of conclusion, the benefit promised or enforced by the injured party (art. 1222 par. 2). The injury may exist where the child assumes an obligation excessive in its heritage status, the benefits that you get from the contract or the circumstances as a whole. Rescission action will be dismissed as a minor injury arising from a tort and juvenile behavior proves his discretion. One of the most important changes to the legal regime of the Civil Code vices of consent is related to the scope of the lesion. Thus, with the entry into force of the New Code, the lesion became vice of consent is intended to be of general application and is likely to be applied whenever there is disproportion between the parties significant benefits. Unlike the previous regulation, which concerned only minor damage became vice of consent is intended to be of general application and is likely to be applied whenever there is disproportion between the parties significant benefits. The victim lesion has two possibilities. This may, at first, annulment of the contract if damage exceeds half the value it had at the time of conclusion, the benefit promised or executed by the injured party and if the disproportion persists until the application for annulment. Secondly, it may ask its obligations to the amount of damages that would be justified. In all cases, the court may uphold the contract if the other party provides a fair, a reduction of their claims or, where appropriate, an increase of their obligations, the proper implementation of provisions related to adapt the contract in case of error.

3 L.A. P ădure, Considerations on amendments to the Civil Code, Zven Publishing House, Targoviste, 2016 pag. 87

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The limitation period for bringing proceedings for annulment or the reduction of benefits for injury is one year from the date of conclusion. Anulability of the contract can not be opposed as an objection when the remedy is prescribed. They can not be appealed lesion aleatory contracts (defined as contracts which, by its nature or the will of the parties gives at least one party a chance of a win and expose also the risk of loss, which depends on a future, hypothetical event – for example insurance contracts or the hedge), the transaction and other agreements expressly provided by law. Situation- Party which has concluded a contract of bailment realizes that the error was only after the other Contracting Party took over the property and not paid any price. Anulability can invoke the contract under Art. 1207 Civil Code, there is no evidence that that part of the error could with minimal diligent to realize that this is not a lease. However, if the person who took good wishes to keep it, saying he wants to perform or performs the contract as it was understood by the party entitled to anulability, the contract is deemed to have been concluded as to understand the latter part, as shown in art. 1213 Civil Code. In this case, after being informed of the manner in which the party entitled to anulability understood the contract and before it has obtained the annulment of the other Party shall, within 3 months from the date it was notified times the date the application was served summons to declare that he agrees with execution or to execute the contract without delay, as was understood that part of the error. If the statement was made and the party are in error within the period specified in par. (2) or the contract has been executed, the right to obtain the cancellation is extinguished and the notification under paragraph. (2) shall be considered void.

Bibliography: B. Oglinda, Business Law. General theory. The contract, Juridical Universe Publishing House, Bucharest 2012 C. T. Ungureanu, Civil Law. General Part. Persons in the regulation of the new Civil Code Hamangiu Publishing House, Bucharest, 2013 E. Lupan, S. Sztranyiczki, E. Veress, R.A. Pantilimon, Civil Law. The general under the new Civil Code, Publisher C.H. Beck, Bucharest 2012 F.A. Baias, E. Chelaru, R. Constantinovici, I. Macovei (eds.), The New Civil Code. Comment on articles, Publisher C.H. Beck, Bucharest 2012 G. Boroi C.A. Anghelescu, Civil Law course. General Part under the new Civil Code, Second Edition, Hamangiu Publishing House, Bucharest, 2012 ICCJ, Section II of the Civil Decision no. 3631 of 19 November 2014, www.scj.ro I. Genoiu, Civil Law. General Part. Persons. Seminar notebook, Ed C. H. Beck, 2015 L.A. P ădure, Course of civil law. General Part. Persons, Bibliotheca Publishing House, Targoviste, 2015 L.A. P ădure, Considerations on amendments to the Civil Code, Zven Publishing House, Targoviste, 2016 O. Ungureanu, C. Munteanu, Civil Law. General Part in the regulating of the new Civil Code, universul Juridic, Bucharest, 2013 T. Prescure, R. Matefi, Civil Law. General Part. Persons, Hamangiu Publishing House, Bucharest, 2012

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HOW O.U.G. NO. 1/2016 EXCHANGED THE CIVIL PROCEDURE CODE

Cosmina MOISE *

Abstract: New Code of Civil Procedure entried into force on 15 february 2013. On February 20, 2014, Bill 28, An Act to establish the Code of Civil Procedure, was passed by the National Assembly. All the provisions of the Code are scheduled to come into force january, 2016. The Code of Civil Procedure is intended to make the civil justice system more accessible, while protecting the rights of all parties to state their claims before a court. To reduce delays in the justice system, the Code gives priority to amicable dispute resolution processes such as mediation, arbitration and conciliation, which are less confrontational, more accessible and more likely to ensure a quick outcome. Parties that opt for a traditional trial in court must ensure that all their applications, pleadings and evidence are proportionate to the nature and complexity of the case, in order to prevent abuses of procedure. Judges will have greater powers to manage cases, in particular to ensure compliance with the principles of proportionality and cooperation at the heart of the Code of Civil Procedure. By Decision no. 895/2015, the Constitutional Court it was declared unconstitutional the provisions of art. 666 of the new Code of Civil Procedure, and it appeared O.U.G. No.1 / 2016. Keywords: O.U.G. no. 1/2016, Civil Procedure Code, arbitral award, enforcement, enforceable obligations

Given that, by Decision no. 895/2015 1, the Constitutional Court declared unconstitutional the provisions of art. 666 of the Code of Civil Procedure, which relate essentially a declaration of enforcement by the bailiff, given that, according to art. 147 par. (1) of the Romanian Constitution, the publication of the decision of the Constitutional Court in the Official Gazette, the provisions declared unconstitutional shall be suspended as following to cease their legal effects within 45 days from publication if, meantime, the Parliament or the Government, if appropriate, bring into line the unconstitutional provisions of the Constitution, given that, according to the finding of the Constitutional Court, with the publication of the decision, the legislature, under art. 147 par. (1) of the Constitution, is required to agree the whole procedure of declaration of enforcement with the Constitution found to be violated and therefore the Constitutional Court, 2 whose considerations the device are generally binding, taking into consideration that it must, of necessity, promote urgently the legislative solutions on competence and procedure of declaration of enforcement, in order to establish to judicial remand on initiation of enforcement itself, thus ensuring

*Student, Faculty of Law, Bucharest 1 Monitorul Oficial nr.84 din 04.02.2016 2 L.A. P ădure, Course of Civil Procedure, Zven Publishing House,Târgovi şte, 2016, pag.5

European Journal of Social Law guarantees of impartiality and independence only specific courts, since that decision include, in the recitals, the effects it will produce from its publication in the Official Gazette, in that: - The decision will not apply in respect of enforcement procedures assented to its publication; - The decision will apply in respect of appeals from enforcement proceedings brought against concluding declaration of enforcement data bailiff pending before the courts after its publication, as well as those in which it was alleged unconstitutionality exception to the above date; - The day of publication of the decision, bailiffs the power to approve enforcement ceases, We will present further amendments to the Civil Procedure Code by O.U.G. no. 1/2016 3: Art.603 (arbitral award) para. (3) of the Civil Code (as amended by O.U.G. no. 1/2016) NCPC introduces for the first time and new provisions on application priority of international treaties on human rights and European Union law. Normele obligatorii ale drepului Uniunii Europene se aplică în mod prioritar indiferent de calitatea sau de statutul p ărţilor. 4 In the old regulation, art. 603 par. (3) provide that where the arbitration award concerns a dispute relating to the transfer of ownership and or the establishment of another real right on immovable property, the arbitration award will be presented the court or notary public to get a judgment or, where appropriate, an authentic notary. After verification by the court or by the notary public of conditions and after completion of the procedures required by law and paid by the parties of the tax on transfer of ownership, it will proceed to registration in the land register and to complete the transfer of ownership and or the establishment of another real right over immovable property in question. If the arbitration award is forecloses, the checks referred to in this paragraph shall be made by the court in proceedings rendered enforceable. Under the new regulations, art. 603 par. (3) provides: "If the arbitration award concerns a dispute relating to the transfer of ownership and or the establishment of another real right on immovable property, the arbitration award will be presented the court or notary public to get a judgment or, where appropriate, an authentic notary. After verification by the court or by the notary public of conditions and after completion of the procedures required by law and paid by the parties of the tax on transfer of ownership, it will proceed to registration in the land register and to complete the transfer of ownership and or the establishment of another real right over immovable property in question. If the arbitration award is forecloses, the

3 Monitorul Oficial, Partea I nr. 85 din 4 februarie 2016 4 A Tabacu., Civil Procedural Law – Under the new Code of Civil Procedure, Universul Juridic Publishing House, Bucharest, 2013,pag.20

Revue europénnee du droit social checks referred to in this paragraph shall be made by the court in the proceedings for a declaration of enforcement ". In CCP terminology concept aims of incompatibility cases, while the recusal and abstention are procedural means to invoke the cases of incompatibility. 5In the old code there were also causes of recusal and abstention distinct from the incompatibility. Art.615 (Enforcement) of the Civil Code (as amended by O.U.G. No.1 / 2016) In the old regulation, art. It had 615 in the first paragraph that the arbitration award be enforceable and, after declaration of enforceability, just as it forecloses on a judgment. According to the following paragraph, rendered enforceable demand is settled by the district court in which the arbitration took place. The provisions of art. 641 par. (3) – (6) are applicable. Under the new regulations, art. 615 provides: "The arbitral award is enforceable and forcefully executed a judgment". Art.628 (enforceable obligations) para. (5) Code of Civil Procedure (as amended by O.UG. no. 1/2016) In the old regulation, art. 628 par. (5) established that the amounts set according to the article, the conclusion of the enforcement court or bailiff shall be enforceable without having to be made enforceable. The new regulation Under the new regulations, art. 628 par. (5) establishes: "For the amounts determined by applying paragraph. (1) – (4) completion of executing court or bailiff shall be enforceable ". Art.635 (arbitral decisions and other decisions of the jurisdictional organs) of the Civil Code (as amended by O.U.G. no. 1/2016) In the old regulation, art. 635 disposal that can be enforced arbitral awards rendered enforceable even if they are attacked by an action for annulment, and other decisions of the organs jurisdictional become final as a result of neatac ării them before the competent court, if declared enforceable. Cases of incompatibility applied mainly judges but cnform new provisions they apply to other participants. Under the new regulations, art. 635 "can be enforced in arbitration awards, even when challenged by an action for annulment, and other organs jurisdictional rulings become final as a result of their neatac ării before the competent court." Art. 641 (private documents) Civil Procedure Code (as amended by O.U.G. no. 1/2016) In the old regulation, art. 641, which was marginal following name: "declaration of enforceability" in the first paragraph provided that the execution titles other than judgments can be enforced only if they are declared enforceable. According to the following paragraph, rendered enforceable demand is settled by the court in whose area of residence or place of business of the debtor or, where appropriate, in chambers, without summoning the parties. If the domicile or, where

5 T. Briciu., New Code of Civil Procedure. Commented and adnotated. First Volume, Universul Juridic Publishing House, Bucharest, 2013, pag.54

European Journal of Social Law appropriate, place of business is abroad, the creditor may apply for swearing at the court in whose jurisdiction his residence of choice. In the next paragraph, the court established that will check if the document meets all the formalities required by law to be enforceable, and other requirements in cases specifically provided by law. Still had that conclusion rejecting the application declared enforceable may be challenged only by appeal to the creditor, within 5 days of notification. At the end of the penultimate paragraph had that by upholding the application of declared enforceable is not subject to appeal, but its legality may be subject to execution appeal. In the last paragraph, regulate content enforceable formula: "We Romanian President Give power of attorney and order the bailiffs to enforce the title (Here are the means by which the writ of execution.) Which ruled this concluding declared enforceable. Order the agents of the public force to support the prompt and effective enforcement of all acts and prosecutors to continue for carrying out the enforcement order under the law. (Follow signature of the presiding judge and court clerk.) ". Under the new regulations, art. 641, which has the following name marginal "private documents" states: "Enforceable private documents only in specific cases and conditions provided by law. Any clause or agreement to the contrary shall be null and considered such unwritten. The provisions of art. 664 and following are applicable ". Art. 651 (court enforcement) para. (3) the Civil Procedure Code (as amended by O.U.G. No.1 / 2016) In the old regulation, art. 651 par. (3) established that the enforcement court to rule on complaints to enforcement and any other incidents arising in the course of enforcement, except those given by law to other courts or organs. Under the new regulations, art. 651 par. (3) provides that "the court execution process applications for a declaration of enforcement, enforcement appeals and any other incidents arising in the course of enforcement, except those given by law to other courts or organs". Art.665 (Registration request for enforcement) Civil Procedure Code (as amended by O.U.G. No.1 / 2016) In the old regulation, art. 665 in the first paragraph had that receipt of the request for enforcement, the bailiff, by the end, will have its registration and opening the execution file or, where applicable, will deny motivated the opening of enforcement proceedings. The following paragraph stipulated that the conclusion set out above shall be immediately communicated to the creditor. If the bailiff refuses to commence enforcement proceedings, the creditor may file a complaint within 15 days from the date the conclusion in para. (1), the court of enforcement.

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Under the new regulations, art. 665 provides: "(1) On receipt of the request for enforcement, the bailiff, by the end, will have its registration and opening the execution file or, where applicable, will deny motivated the opening of enforcement proceedings. (2) The conclusion in para. (1) shall be immediately communicated to the creditor. If the bailiff refuses to commence enforcement proceedings, the creditor may file a complaint within 15 days from the date the conclusion in para. (1), the court of enforcement ". Art. 666 (Permission enforcement) Civil Procedure Code (as amended by O.U.G. No.1 / 2016) In the old regulation, art. 666 in the first paragraph provided that the request for enforcement shall be settled within 3 business days of its filing. Further established that the bailiff shall decide on the declaration of enforcement by concluding, without summoning the parties. Motivation conclusion is made within 7 days of delivery. According to the following paragraph, the conclusion will include, besides the particulars provided in art. 657 par. (1), appearing writ of execution on which will be the execution amount when it is fixed or determinable, with all the accessories that has been declared pursuit when he nodded prosecution forced the debtor's assets, and the actual method of enforcement, when it expressly requested it. The following paragraph established that declaration allows the creditor to demand enforcement bailiff competent to use, simultaneously or successively to all enforcement procedures provided by law in order to achieve its rights, including the costs of enforcement. Permission effective enforcement throughout the country. Also, enforceability forced extends to the writs of execution to be issued by the bailiff in enforcement proceedings assented. In the penultimate paragraph stipulated that the bailiff will reject the application for declaration of enforcement in the following cases: 1. request for enforcement is the responsibility of another organ of execution than before; 2. judgment or, where applicable, the document does not constitute, by law, enforceable; 3. A document other than a judgment is rendered enforceable; 4. The amount is not certain, liquid and due; 5. debtor enjoys immunity from enforcement; 6. Title contains provisions that can not carry out by enforcement; 7. There are other impediments provided by law. According to the last paragraph, the conclusion that was willing consent of enforcement may be subject to judicial review of enforcement by execution appeal under the law. Conclusion rejecting a declaration of enforcement may be contested by the creditor within 15 days from notification to the court for enforcement. Under the new regulations, art. 666 provides: "(1) within 3 days after filing the application, the bailiff will require a declaration of enforceability by the court of

European Journal of Social Law enforcement, which it will submit the certified copy of it according to the original request of the creditor, the enforcement conclusion provided for in art. 665 par. (1) and proof of payment of court fees. (2) The application for a declaration of foreclosure shall be settled later than 7 days after registration with the court, the conclusion given in closed session without summoning the parties. The pronouncement may be postponed by 48 hours and motivating conclusion is made within 7 days of delivery. (3) The will include, besides the particulars provided in art. 233 par. (1), appearing writ of execution on which will be the execution amount when it is fixed or determinable, with all the accessories that has been declared pursuit when he nodded prosecution forced the debtor's assets and the actual method of enforcement, then when he expressly requested it. (4) Permission allows a creditor to request enforcement bailiff who requested permission to use, simultaneously or successively to all enforcement procedures provided by law in order to achieve its rights, including the costs of enforcement. Permission effective enforcement throughout the country. Also, enforceability forced extends to the writs of execution to be issued by the bailiff in enforcement proceedings assented. (5) The court may reject the application for declaration of enforcement only if: (6) The ruling by the court accepts the application for a declaration of enforcement is not subject to appeal, but can be censored in the appeal against foreclosure, introduced under the conditions provided by law. The provisions of art. 712 par. (3) remain applicable. (7) The ruling rejecting the request for a declaration of enforcement may be challenged only by appeal exclusively creditor, within 15 days from notice. (8) In the final declaration of the conclusion of the enforcement will be added writ of execution, as follows: Art. 670 (execution expenses) paragraph (6) of the Civil Code (as amended by O.U.G. No.1 / 2016) In the old regulation, art. 670 par. (6) provides that the amounts specified under this article, the conclusion is enforceable against the creditor and the bailiff, without having to be made enforceable. Under the new regulations, art. 670 par. (6) provides: "For the amounts determined by applying paragraph (1) – (5), the conclusion is enforceable against the creditor and the bailiff. " Art. 680 (Access to the debtor's assets) paragraph (2) of the Civil Code (as amended by O.U.G. No.1 / 2016) In the old regulation, art. 680 par. (2) established that if only other Enforceable judgments at the request of the creditor or the bailiff's court shall authorize entry to places specified in par. (1). The court shall urgently in the council chamber, summoning third party who owns the property through enforceable end which is not subject to appeal.

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Under the new regulations, art. 680 par. (2) establishes: "If only other Enforceable judgments at the request of the creditor or the bailiff submitted with the application for a declaration of foreclosure or in a separate court shall authorize entry to places specified in par. (1). The court shall urgently in the council chamber, summoning third party who owns the property through enforceable end which is not subject to appeal " Art. 699 (renewal request for enforcement) paragraph (2) of the Civil Code (as amended by O.U.G. No.1 / 2016) In the old regulation, art. 699 par. (2) established that the executor will communicate debtor after consent enforcement, concluding declaration of enforcement, and a new summons, which will not join the title is running. Under the new regulations, art. 699 par. (2) establishes: "After approval of enforcement, the bailiff shall communicate to the debtor the court decision, and a new summons, which will not join the title is running." Art. 720 (Effect of settlement of the opposition) paragraph (8) of the Civil Code (as amended by O.U.G. No.1 / 2016) In the old regulation, art. 720 par. (8) established that in the case under par. (7) the court finds the act will require the bailiff's refusal to receive or record request for enforcement, to perform an act of enforcement or to take other measures provided by law. Under the new regulations, art. 720 par. (8) stipulates: "In the situation provided in par. (7) the court will request the conclusion provided for in art. 665 par. (1) or, where appropriate, act bailiff finds refusal to receive or record request for enforcement, to perform an act of enforcement or to take other measures provided by law. " Art. 732 (the seizure of the debtor's assets) paragraph (2) of the Civil Code (as amended by O.U.G. No.1 / 2016) In the old regulation, art. 732 par. (2) provides that where there is obvious danger of theft of goods from prosecution at the request of the creditor or bailiff executing court will order the seizure of goods traceable communication with the debtor summons. The court examines the application of emergency, in camera, without summoning the parties. The conclusion is not subject to appeal. Under the new regulations, art. 732 par. (2) states: "Where there is obvious danger of theft of goods from tracking the creditor requests made in the application execution, the court, by signing a declaration of enforceability, will order the seizure of goods traceable with notification of summons to debtor. In this case, it will make the corresponding entry in the very end of enforceability ". Art. 783 (the withholding) of paragraph (1) of the Civil Code (as amended by O.U.G. No.1 / 2016) In the old regulation, art. 783 par. (1) provided that the attachment be set up without notice, based on the conclusion of enforceability, the address that will be specified and enforceable title under which to set up the attachment, which will be communicated to the third person shown in art. 781 par. (1), together with the

European Journal of Social Law completion of a declaration of enforceability. About action taken will be notified and the debtor, which will be served with a copy to the address set up garnishment, which will attach a certified copy, concluding declaration of enforceability and enforcement order if the latter they have not been previously disclosed. Under the new regulations, art. 783 par. (1) states: "The seizure is set up without notice, based on the conclusion of enforceability, the address that will be specified and enforceable title under which to set up the attachment, which will be communicated to the third person shown in art. 781 par. (1) with the conclusion enforceability or a certificate on the outcome of the case. About action taken will be notified and the debtor, which will be served with a copy to the address set up garnishment, which will attach certified copies of the concluding declaration of enforceability or the certificate on the outcome of the case, and Enforcement Order if the latter have not been previously disclosed. " Art. 820 (Notification debtor and third parties acquirer) Civil Procedure Code (as amended by O.U.G. No.1 / 2016) In the old regulation, art. 820, item which had the name marginal "Notification of the debtor and the third party acquirer" had the bailiff will communicate the conclusion that a declaration of enforcement provided for by art. 666 both the debtor and the third party acquirer, together, in both cases, the enforcement order in certified copies of summons, putting them into account as within 15 days of its receipt to pay the entire debt, including interest and enforcement costs. Under the new regulations, art. 820, item which had the name marginal "and the third party acquirer debtor Notification" provides: "The bailiff shall transmit a copy of the declaration concluding the enforcement provisions of art. 666 both the debtor and the third party acquirer, together, in both cases, the Enforcement Order copy certified by the executor of the original and injunction, putting them into account as within 15 days of its receipt to pay the entire debt, including interest and costs of enforcement " Art. 856 (tabulation of ownership and the issuance of the successful tenderer) paragraph (2) of the Civil Code (as amended by O.U.G. No.1 / 2016) In the old regulation, art. 856 par. (2) established that the request of the contractor, it will be put into possession of the property awarded by the bailiff act award being enforceable against all persons shown in art. 854 lit. i). The provisions of art. 664 and following are applicable without being necessary and made enforceable act award. Under the new regulations, art. 856 par. (2) establishes: "On request of the contractor, it will be put into possession of the property awarded by the bailiff act award being enforceable against all persons shown in art. 854 lit. i). The provisions of art. 664 and following are applicable ". Art. 889 (Execution without notice Code of Civil Procedure) (as amended by O.U.G. No.1 / 2016) In the old regulation, art. 889 had that at the request of the creditor, if justified an urgent need or there is a danger that the debtor to evade prosecution, hide, destroy or damage property that must be taught, executing court may order the

Revue europénnee du droit social enforcement to be made immediately and without notice. Court review request emergency, in camera, without summoning the parties. The conclusion is not subject to appeal. Under the new regulations, art. 889 provides: "At the creditor's request, where warranted an urgent need or there is a danger that the debtor to evade prosecution, hide, destroy or damage property that must be taught, the court may order by signing a declaration of enforcement, the enforcement to be made immediately and without warning " Art. 955 (Performance Measure) paragraph (1) of the Civil Code (as amended by O.U.G. No.1 / 2016) In the old regulation, art. 955 par. (1) provided that the measure seizure goes out by the bailiff, according to the rules of this code relating to enforcement, which is applied properly, without requiring any permit or other formality, in addition to its registration. Under the new regulations, art. 955 par. (1) states: "The measure seizure goes out by the bailiff, according to the rules of this code relating to enforcement, which is applied properly, without requiring any authorization or declaration in this regard. The provisions of art. 665 remain applicable."

Bibliography:

A Tabacu., Civil Procedural Law – Under the new Code of Civil Procedure, Universul Juridic Publishing House, Bucharest, 2013 T. Briciu., New Code of Civil Procedure. Commented and adnotated. First Volume, Universul Juridic Publishing House, Bucharest, 2013 L.A. P ădure, Course of Civil Procedural Law, according to the New Code of Civil Procedure, Zven Publishing House, Târgovi şte, 2016

European Journal of Social Law

REAL ESTATE PROPERTIES SHORT HISTORY OF THE REAL ESTATE PROPERTY REGIME IN ROMANIA

Dana Adriana ŢOP * Ionu ţ NICULESCU **

Abstract: The new Constitution adopted in 1991 (art. 44) sets out a number of guarantees with respect to the private ownership right, so that the content and limits of this right are set out under special laws. The Constitution expressly provides that the private ownership right is equally guaranteed and protected by the law, regardless of the holder of such right. Keywords: real estate properties, restitution, confiscated properties

According to the activity report of A.N.R.P. for January 2015, the activity of the National Commission for Compensation buildings counted in the analysis of 414 cases analyzed, seven fund obligations in the amount of 3,562,366 lei in compensation issuing 153 decisions issued, amounting to 54,505,305 points and 190 of invalidation decision. 1 Under Law no. 18/1991 regarding the land fund, approximately 90% of Romania`s arable land, previously held by agricultural cooperatives, was transferred into the private ownership of individuals. With respect to the constructions` sector, the buildings erected with state funds (generally after 1950) could be occupied by their holders pursuant to the payment of rent to the state. The sale prices for such buildings, scheduled for payment over long periods (usually 25 years) reflects, in fact, the rent already paid by the lessees, as well as the physical condition of the respective buildings. Law no. 10/2001 regulated the legal status of the right of ownership over real estate properties (lands and buildings) abusively taken over by the state during the period from 1945 – 1989, as well as the method of re-acquisition of such right by the persons who had lost it. The rule imposed by said normative act is the in-kind retrocession of such real estate properties to the persons producing evidence of the right of ownership over said real estate and, as an auxiliary matter, should such return no longer be possible, compensation may be granted. Nationalization, as a method of acquiring an ownership right, as well as "any other methods of coercive transfer of certain goods into public property", on the basis of discriminating criteria, are prohibited by the new Constitution. Law no. 247/2005 regarding reform in the fields of

* Master student, Faculty of Law, Hyperion University Bucharest ** Master student, National Academy of Intelligence,,Mihai Viteazu " Bucharest 1 L.A. P ădure, The analysis of the estate restitution process, Supplement of „Valahia” University Law Study 2015, pag.391

Revue europénnee du droit social ownership and justice, as well as certain adjacent measures ("Law 247/2005") amended and supplemented the laws regarding ownership 2.

Public property and private property

The Constitution adopted in 1991 regulates the basic legal regime applicable to property, as it provided that the state protects the property in general, may it be public or private (article 136). According to the aforementioned normative act, public property is belongs to the state and to the administrative-territorial units. The assets representing the object of the right of public ownership are: inalienable (they may not be alienated), imprescriptible (they are not subject to any prescription) and non-enforceable (they may not be enforced). Said legal regime of public property is mainly regulated by Law no. 213/1998 regarding the public ownership right and Law no. 219/1998 regarding the concessions` regime. As a principle, article 136, paragraph (4) of the Constitution provides that the assets included in the state public ownership may offered for administration, concession or lease to the regies autonomes and/or to the public institutions, as well as offered, free of charge, to the institutions of public utility for use purposes. The private ownership right is not limited, therefore it may be exercised over any good, except for such goods that are withdrawn from the civil circuit or which represent a part of the public domain. The Romanian Constitution provides that "private property is inviolable under organic law" (article 136 paragraph 5) and that "no one may be expropriated unless it is due to a case of public need, set out under the law and accompanied by a rightful and prior compensation" (article 44 paragraph 3). The main normative acts that regulate the regime of the private ownership are as follows: Land Fund Law no. 18/1991, as subsequently amended and supplemented and Law no. 1/2000 regarding the reestablishment of the ownership right over the agricultural lands and forests obtained pursuant to the Land Fund Law, as well as Law no. 215/2001 of the local public administration, with its subsequent amendments. According to the new constitutional provisions, "public property is guaranteed and protected under the law and it belongs to the state or the administrative-territorial units" (art. 136, paragraph 2). With respect to the object of public property, the following specifications may be submitted: • The goods that represent the exclusive object of public property are listed under art. 136 paragraph 3; other goods may also be added to the above, under organic law; • An exclusive object of public property is represented by the "underground resources presenting a public interest", and not by the "underground resources of any nature", as initially stipulated;

2 Namely Law no. 10/2001, Law no. 18/1991, Law no. 1/2000 for the reestablishment of the right of ownership over agricultural and forest lands, Law no. 7/1996 regarding land survey and real estate publicity

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• "Only waters with a power potential that can be capitalized upon, presenting a national interest" may represent an exclusive object of public property, but "the waters with a power potential that may be capitalized upon and the waters that may be used for the public interest" may not; • The goods that represent the exclusive object of public property no longer include thoroughfare; • In conclusion, the object of private property may include any underground resources which do not present a public interest; waters with a power potential that may be capitalized upon, presenting a local interest; waters that do not have such a potential; thoroughfare, unless organic law provides otherwise • In accordance with title VII of Law no. 247/2005, the collective placement body S.C. Fondul Proprietatea S.A. was established in the form of a closed investment company intended to provide the financial resources necessary for granting compensation related to the real estate properties taken by the State during the communist era, that cannot be returned in kind, resulting from the implementing of Laws no. 10/2001, 18/1991, 1/2000 and Government Emergency Ordinances no. 94/2000 regarding the retrocession of certain real estate properties that had belonged to religious groups in Romania and 83/1999 regarding the returning of certain real estate properties that had belonged to the communities of citizens pertaining to national minorities in Romania, with all of the subsequent amendments thereof. • The Statutes of Propriety Fund was adopted by Government Resolution no. 1481/2005. • Until the designation of a management company, Propriety Fund shall be managed by the Ministry of Public Finances. The main object of activity of the Fund consists in the management and administration of the portfolio in view of the granting of compensation related to the real estate properties that cannot be returned in kind, by means of the transfer, free of charge, of the shares from the property of the state into the property of the persons entitled. Propriety Fund shall initially have the Romanian State as its sole shareholder, which shall transfer the shares to the holders of the compensation titles or to the subsequent acquirers thereof, as the case may be. Therefore, subsequently, individuals who are holders of compensation titles issued by the Central Committee for the Establishment of Compensation shall become shareholders of the fund, according to Law no. 247/2005. The trading of the Fund`s shares shall be performed on regulated markets. Propriety Fund portfolio includes shares in 119 Romanian companies (in which the Romanian state has participations) and it shall be listed with the Bucharest Stock Exchange and an international stock exchange. Difficulties raised by petitions to the Ombudsman on complaints related to the regulation of the restitution of property under Law no. 112/1995 3

3 L.A. P ădure, Limitation on sale of right claimed under the restitution laws, Valahia University Law Study volume xxv issue issue 1 year 2015, pag. 34

Revue europénnee du droit social

Foreign citizens` right of ownership

Before the revision of the Constitution in October 2003, foreigners (individuals or legal entities) were not allowed to obtain the right of ownership over lands in Romania, said prohibition being provided for under both the Constitution and the Land Fund Law. According to the same, solely individuals having Romanian citizenship, as well as legal entities of Romanian nationality could obtain a right of ownership over lands. Said prohibition is stipulated in no normative acts regarding buildings, therefore foreigners may validly obtain a right of ownership over the same. In the event that a foreign citizen should obtain a right of ownership over a building, such foreign citizen shall implicitly obtain a real superficies (use) right over the land on which the construction is located. However, in order to be able to own lands, foreigners must establish a company with its headquarters located in Romania, which company they must control in full. However, the new, revised Constitution allows foreign and stateless citizens to obtain the right of private ownership over lands solely in the conditions resulting pursuant to Romania`s accession to the European Union and to other international treaties to which Romania is a party, based on reciprocity, in the conditions provided for under organic law, as well as through legal inheritance. In this respect, the accession of Romania to the European Union (January 1, 2007) triggered the entering into force of Law no. 312/2005, regarding acquisition of property over land by foreign citizens and stateless persons, as well as foreign legal persons. Provisions of Law 312/2005 represent measurements of alignment with the EU provisions. Basically, by Law 312/2005 Romania commits itself to grant the EU citizens a treatment not less favorable than that granted to its own citizens, on a reciprocity basis. We should avoid future implications of that will translate into the loss of significant amounts of time and money, as well as major social tensions. 4 The attainment of the right of ownership over lands by the citizens of the states that are members of the European Union and the legal entities having the nationality of said states, as well as by the stateless citizens domiciled in a member state or in Romania. The citizen of a member state, the stateless person having his/her domicile in a member state or in Romania, the legal entity established in accordance with the legislation of a member state, may attain a right of ownership over lands in the same conditions as those provided for under the law for Romanian citizens/legal entities; The citizen of a member state, non-resident in Romania, the stateless person, non- resident in Romania, having his/her domicile in a member state, the non-resident legal entity, established in accordance with the legislation of a member state, may attain a right of ownership over lands for secondary residences (secondary

4 L.A. P ădure, Suggestions on perfectioning the laws that relate to restitution of the properties abusively confiscated by the communist regime, Internatinal Conference, Society based on knowledge Norms, values and contemporary landmarks, Valahia University Law Study-Supplement, 2014, p.87

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European Journal of Social Law headquarters, respectively) upon the expiry of 5 years following the date of Romania`s accession to the European Union; The citizen of a member state, the stateless person having his/her domicile in a member state or in Romania, the legal entity, established in accordance with the legislation of a member state, may attain a right of ownership over agricultural lands, forests and forest lands upon the expiry of 7 years following the date of Romania`s accession to the European Union. However, said provisions do not apply to the farmers who carry out independent activities (i.e. any individual who carries out an agricultural or forest-related activity, in view of obtaining vegetal or animal agricultural products, as well as storing activities, activities of processing of the products obtained from their own activity, or who carry out an activity in view of obtaining wooden or non-wooden products of the forest resources) and who are either (i) citizens of the member states or stateless persons having their domicile in a member state, who set up their residence in Romania, or (ii) stateless persons having their domicile in Romania. Said persons shall attain the right of ownership over the agricultural lands, forests and forest lands in the conditions applicable to Romanian citizens, as of the date of Romania`s accession to the European Union. Nationalization, as a method of acquiring an ownership right, as well as "any other methods of coercive transfer of certain goods into public property", on the basis of discriminating criteria, are prohibited by the Constitution. 5 Attainment of the right of ownership over lands by foreign citizens, stateless persons and legal entities belonging to the third party states / states that are not members of the European Union The foreign citizen, the stateless person and the legal entity belonging to the third party states may acquire a right of ownership over lands, in the conditions regulated under international treaties, on a mutual basis, but not in conditions more favorable than those applicable to the citizen of a member state and to the legal entity established in accordance with the legislation of a member state. Lands representing private property, regardless of their purpose and owner, are and shall be preserved in the civil circuit. They may be freely assigned and attained by any of the methods provided for under the law, in compliance with the provisions of Title X of Law no. 247/2005, which abrogates Law no. 54/1998 regarding judicial circulation of lands. The lands with or without constructions, located either inside or outside the built-up area, regardless of their purpose or length, may be assigned and attained by legal deeds concluded between living persons, in authentic form, subject to absolute nullity. The authentic form is also necessary in the event that, under legal deeds concluded between living persons, one establishes a real right over a land with or without a construction, regardless of the purpose or length of the same. The existence of litigation with respect to a land with or without constructions does not prevent the assignment or the attainment of real or claim rights over the respective land, save for the litigation regarding the reestablishment

5 Idem

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Revue europénnee du droit social of the right of private ownership and the legality of the ownership title. In Romania, the legislative process on the legal framework to allow the restitution of different categories of goods that have been confiscated from the former owners was adopted in a very long time. 6 According to Governmental Emergency Ordinance no. 110/2006, regarding the amendment of the Fiscal Code, starting January 1 2007 the tax payers shall pay a tax on the ownership right (and dismemberments) transfer, by inter vivos agreements/acts in respect of any kind of buildings and related lands, as well as any kind pf land devoid of buildings, as follows: The tax shall not be due in case: (i) the ownership right over buildings and lands is obtained by reconstruction of property right pursuant provisions of special laws; (ii). the ownership right over buildings and lands is obtained by donation between relatives and in-laws up to 3rd degree, as well as between married persons. In case the property (or dismemberments) is obtained by inheritance, no tax is due, provided the inheritance procedure is finalized within maximum 2 years from the date of the decease of the individual. In case the inheritance procedures are not finalized within the 2-year term, the successors shall pay 1% tax on the value of the inheritance

Concession of the real estate ownership right

Law no. 219/1998 regulates the regime of the concession of goods that are public or private property of the state, county, city or commune on the basis of a contract the duration of which may not be longer than 49 years, under which contract the grantor transfers to the grantee the right and obligation to exploit certain goods, in exchange for a royalty. The principles representing the basis for selecting the offerors and concluding the concession contracts are: transparency providing all interested parties with the information regarding the implementing of the procedure for the assignment of the concession contract), equal treatment for all offerors (all criteria for the selection and the assignment of the concession contract shall apply in an unbiased manner), proportionality (any measure requested by the public authority should be necessary and should correspond to the nature of the contract), non-discrimination (the public authority`s acceptance of services offered by the candidates of a different nationality, in the conditions provided for under the agreements and conventions to which Romania is a party) and free competition (securing conditions for any candidate, regardless of his/her nationality, to have the right to become a grantee under the law, the international conventions and agreements to which Romania is a party). The capacity of grantor is held by the holder of the right of ownership over goods of public interest and the capacity of grantee is held by any individual or legal entity of private

6 L.A. P ădure and A. Ţuţuianu The main conclusions drawn from the application of the Romanian lefislation on the restitution of the confiscated assets, developed after 1989,, Valahia University Law Study nr.1/2014 , pag.69

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European Journal of Social Law law, either Romanian or foreign. The duration of the concession contract is set depending upon the period of repayment of the investment that is to be made by the grantee. The Romanian law stipulates a term of 49 years and also provides for the possibility of extension of the same pursuant to the mere agreement of the parties, for a further period equal to half of the initial contract period. Upon the expiration of the concession term, the grantee is obligated to return the good that represented the object of the contract free of any encumbrances, including the investments made.

Real-estate publicity

In order for the rights attained with respect to real estate properties to be opposable to third parties, said rights must be registered with the land registry (the register of real estate recording and publicity). The legal regime of registration in the land register is defined under the Law on the real estate publicity no. 7/1996, as amended and republished in accordance with Law 247/2005. Since 2004, the organization and supervision of the activity regarding real estate publicity were withdrawn from the guardianship of the court authority and entrusted to the administration, thus unifying the service with the real estate publicity service and empowering, as a joint public authority, The National Agency for the Real Estate Publicity, in order to implement the reorganization of cadastral and real estate publicity records. As a general real estate recording register, the land register includes both information regarding the holder of the right of ownership over the real estate property and information on the potential charges (mortgages or easements) or other rights (i.e. the right granted to a third party to use the real estate property) that encumber the real estate property. The object of recording in the land register also includes any judicial relationships, incapacities, provisional rights to be subsequently justified, personal rights, actions and challenges in court, as well as restraining measures regarding the real estate properties in the land register.

Bibligraphy: *** Romanian Constitution D. Acemoglu, and J. Robinson. 2000.Why Did the West Extend the Franchise? Growth, Inequality and Democracy in Historical Perspective. Quarterly Journal of Economics 115(4). pp. 1167–99. W. Easterly., & R. Levine, 2003. Tropics, germs, and crops: how endowments influence economic development. Journal of Monetary Economics, 50(1), 3-39. M. Everest-Phillips., 2008. The Myth of ‘Secure Property Rights’: Good Economics as Bad History and its Impact on International Development. SPIRU Working Paper 23. London: Overseas Development Institute Working Paper. Revue Europeenne du Droit Social Valahia University Law Study

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PROPERTY RESTITUTION IN CENTRL AND EASTERN EUROPE

Daniela ŢĂ RANU *

Abstract: For years, the Claims Conference has been a constituent member of the World Jewish Restitution Organization (WJRO), which is charged with the recovery of confiscated property from countries in Central and Eastern Europe. Together with local Jewish communities, the WJRO and the Claims Conference continue to press governments to provide for the restitution of, or fair compensation for, property looted by the Nazis and their collaborators during the Holocaust and later nationalized by Communist regimes. Keywords: restitution in Eastern Europe, property, returnable properties

When comparing the judgments rendered by the Court in cases involving each of the countries, some common patterns emerge for all (or only a subgroup), in addition to a relatively less important set of specific features for each country. 1 C.E.D.O., assailed by the huge number of complaints concerning the problem assets confiscated, condemned the Romanian state through thousands of the conviction, which culminated in the adoption of the pilot judgment procedure. 2

Bulgaria Numerous properties have been returned. Important communal properties remain under litigation. Bulgaria was one of the first Eastern European countries to pass property restitution legislation. The current law stipulates that both Bulgarian citizens and non-Bulgarian citizens are eligible to receive property confiscated during the fascist and communist periods. A successful non-citizen of Bulgaria must, however, sell the property. Only Bulgarian citizens can receive restituted forest and farmland. NGO's and certain denominations claimed that a number of properties confiscated under the communist government were not returned. For example, the Muslim community claims prior ownership of at least 17 properties around the country. The Catholic Church claims three monasteries, six buildings in Sofia, three in Plovdiv and several buildings in other towns. In addition, the Government reportedly retains properties of several Protestant groups. Most property that belonged to the Bulgarian Jewish Community has been restituted, although two cases remain unresolved: the Rila Hotel and the property at 9

*Lecturer PhD. Hyperion University, Bucharest 1 L.A. P ădure, Legal issues on restitution of the properties under the Convention, Revue Europeenne du Droit Social, Volum XXVIII nr. 3, 2015, pag.221 2 L.A. P ădure, A. Ţuţuianu, Effects of regulations regarding redemption estate, Revue Europeenne du Droit Social, Volume XXXII • ISSUE 3 • Year 2016, Bibliotheca Publishing House, Târgovi şte, pag.39

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Suborna Street in Sofia. In the pre-war period, the Suborna Street property and approximately half of the land on which the Rila Hotel was later built belonged to the Jewish Consistory. A recent court decision held that the Bulgarian Jewish organization, Shalom is the successor to the Jewish Consistory. An additional complication arose when the Bulgarian government, which owned the other half of the Rila Hotel, privatized its share of the company that operates the hotel. Since the privatization there has been little movement on either property, although government officials and Jewish community leaders have stated that they hope to settle these issues soon. A central problem facing all claimants is the need to demonstrate that the organization seeking restitution is the organization, or legitimate successor, that owned the property prior to September 9, 1944. This is difficult because communist hostility to religion led some groups to hide assets or ownership, and because documents have been destroyed or lost over the years. In the case Gasus Dosier-und Fordertechnik GmbH the Court statuated that the term of goods has an autonomy signification. 3

Croatia Coalition parties agree to eliminate citizenship requirement. Several communal properties remain un-restituted. Due to Croatia’s turbulent past, there is a large amount of disputed property throughout the country. In an attempt to resolve property title disputes and to restitute property seized during the communist period, Croatia passed its first property restitution law in 1990, and subsequently amended the law in 1991 and 1993. Since the passage of the law, the restitution process has proceeded very slowly. 4 Although the Croatian government has insisted that this law covers property restituted after the war but then again seized soon afterward by the communists, other shave agitated for a new law specifically covering the pre- communist years. The 1996 Law on Restitution/Compensation of Property Taken during the Time of the Yugoslav Communist Government prohibited non-Croatian citizens from making claims. But in1999, the Constitutional Court struck down six clauses of the law deemed to be discriminatory against foreigners. After a long delay, on July 5, 2002, the Croatian parliament amended the discriminatory clauses to extend to foreigners the right to claim expropriated property or receive compensation in accordance with existing bilateral agreements. The amended law pertains to the communist era only, and not to the years from 1941 to 1945 or to the civil unrest after the breakup of Yugoslavia. A number of persons of Croatian descent, who were not U.S. citizens when their claims against Croatia arose but have become American citizens, currently have outstanding property claims. United States citizens also have claims arising from the early 1990s war following the break-up of Yugoslavia. There are two

3 L. A. P ădure, ECHR Jurisprudence in the matter of restitution taken abusively, Bibliotheca Publishing House, 2010, pag. 7, 10 4 The early 1990s restitution law and amendments mandated the return of property seized during the communist-era.

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Revue europénnee du droit social complicating factors in Croatia’s current restitution program. The first is the practice of local governments issuing permits for construction on land with disputed titles. This practice was especially prevalent in the years immediately following the collapse of communism. Another factor is heirless property, which under the current law devolves to the state, instead of being transferred to an organization representing the community to which the former owner of the property belonged. In 1998, the Government signed a concordat with the Vatican that provided for the return of all Catholic Church property confiscated by the Communist regime after 1945. This agreement stipulates that the Government would return seized properties or compensate the Church where return is impossible. Some progress has been made with some returnable properties being restituted, but there has been no compensation to date for non-returnable properties. The Orthodox community filed several requests for the return of seized properties, and some cases have been resolved successfully, particularly cases involving buildings in urban centers. However, several buildings in downtown Zagreb have not been returned, nor have properties that belonged to monasteries, such as arable land and forest. Jewish groups in Croatia have received some of their claimed property in Zagreb, but no properties have been returned to the Jewish Community since March 2000. An estimated 20 additional Jewish property claims are still pending throughout the country. The Jewish Community identifies property return as one of its top priorities.

Czech Republic Rychetsky Commission resolved several issues including transfer of some 200 Jewish properties, return of 7,500 art works, and creation of a $7.5 million Holocaust Fund. Catholic property claims remain outstanding. The Czech Republic passed and implemented property restitution laws shortly after the fall of the communist government. The first laws covered confiscations during the period 1948-1989 and were primarily concerned with private property, farmland, artworks and property of religious orders and sports associations. A 1994 amendment provided for the restitution of property taken by the Nazis from Holocaust victims between 1938 and 1945. The amended law still required that private property claimants be Czech citizens. Beginning in November 1998, a national commission headed by Deputy Prime Minister Rychetsky reviewed property restitution claims arising from the Holocaust. Following the commission’s recommendations, in June 2000, parliament enacted legislation that authorized the government to transfer approximately 200 additional properties to the Jewish Community and allowed individual claims for formerly Jewish agricultural property. The law also restituted 70 works of art housed in the National Gallery to the Jewish Community and provided for the return of an estimated 7,500 works of art in Czech government museums and galleries to Holocaust victims and their heirs. Unlike previous Czech restitution laws, the claimants of looted art held by state institutions are not subject to a citizenship requirement. The Czech Government has created an internet site

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European Journal of Social Law with information and photographs of the works. In 2002, Parliament extended the deadline for filing artwork from the end of 2002 to the end of 2006. In 2001, the Rychetsky Commission also helped to establish a Holocaust fund with approximately $7.5 million in state money. A third of the fund will be dedicated to providing compensation to non-citizens and others previously unable to regain real property seized by the Nazis. The rest of the fund will be dedicated to the restoration of Jewish sacred sites and to Jewish Community life in the Czech Republic. Progress in resolving outstanding communal property restitution claims by churches remains slow. In addition, verifying the title of hundreds of claimed properties further complicates the process. Since 1998, the Social Democratic government created two national commissions to address church-state related issues and to develop legislation on the return of income-generating property claimed by the Catholic Church and other property claimed by Protestant churches. The Catholic Church seeks around 700 buildings and 175,000 hectares of land, most of which are held by local authorities. These claims are currently unresolved. The Czech Republic’s decentralized property restitution system does not require municipalities to return communal property in accordance with national policies. Thus the Jewish Community has received most of the communal property once held by the Czech national government and the city of Prague, but properties held by local authorities remain un-restituted.

Estonia Communal property returned. Private property claims resolved. The restitution of property in Estonia has been exemplary and there are no pending property claims or disputes. Estonia has returned communal property to religious communities. Private property owners who filed their claims before the appropriate deadline have also been able to reclaim their property, irrespective of present citizenship. Title to heirless property passes to the local municipal administration of the area in which the property is located. The administration is free to sell the property or retain it for its own use.

Hungary Private and communal property laws being implemented. No law governing heirless property. Hungary was an early leader in private and communal property restitution. The restitution process began in 1991 with the enactment of a law enabling religious organizations to apply for compensation for real estate nationalized after January 1, 1946. Since 1991, twelve major religious groups have submitted 8026 property restitution claims. Out of the total claim submitted: 1383 claims received property, 2670 were denied, 1731 received cash payments 5and 968 cases were settled without government intervention. As of December 31, 2001, there were 1274 claims, valued at $ 187 million (Huf 46.770 billion), awaiting

5 Totaling $ 271.3 million or Huf 67.843 billion

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Revue europénnee du droit social adjudication. The final adjudication deadline is in 2011. The 1991 law also allowed for partial compensation for private property. Successful claimants could receive a voucher for up to $21,000 as compensation for their confiscated property. The vouchers, which were issued in lieu of cash payments, could be used to buy shares in privatized companies or to buy land at state land auctions. In 1997, the Hungarian property restitution law was amended to allow churches to apply for a government-funded annuity as compensation for un-restituted properties. Between 1997 and 1998, the Hungarian government signed compensation agreements with several religious organizations 6in order to fully implement the 1991 law and the 1997 amendment. The compensation agreements determined the monetary amount of un-restituted properties and specified the amount of the government-funded annuity to be given to each organization. A major problem for Hungary’s restitution program is the lack of a law covering the property of Holocaust victims without heirs. Under the current law, heirless properties devolve to the state. Another problem plaguing Hungary’s restitution efforts is the legally mandated strict data protection and limited archival access. These laws effectively block access to Holocaust-related records and documents, making further national and international claims difficult.

Latvia Both private and communal property restitution nearing completion. Restitution of communal property unresolved pending agreement among Jewish representatives. Latvian law provides for the restitution of confiscated property, both private and communal, to former owners or heirs. The law does not discriminate on the basis of citizenship or residency. In most cases, municipal authorities make the final decision on property restitution; if they deem a property non-returnable, they may offer alternative property or compensation in the form of vouchers. Claimants, however, may be reluctant to accept alternative property because of the difficulty in establishing comparative values. Claims for private property occupied by economically productive facilities have been particularly difficult to resolve. A World Bank program is assisting Latvia in the development of a comprehensive land title registration and verification system to support the development of a real estate market based on improved market valuation. The current property restitution arrangement provides for the return of communal religious properties to the observant Jewish community, but does not cover the return of communal property to the significantly larger non-observant community. Thus religious property in Riga, Daugavpils, Liepaja and other cities has been restituted to the observant Jewish community, but approximately 200 communal properties remain to be restituted to the non-observant community. The government of Latvia is prepared to proceed with the remaining restitutions pending an agreement between the Jewish observant and non-observant

6 Catholic, Jewish, Protestant and Orthodox

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European Journal of Social Law communities, which we expect to be concluded soon. With this notable exception, most Jewish and Christian property cases have been resolved and the restitution process is nearing completion. Since the beginning of the restitution process, the Latvian observant Jewish Community has received 16 properties and compensation for two others. The term of good is analysed in the jurisprudence of the ECHR. 7

Lithuania Government developing communal property law. Lack of alternative property delays private property restitution. The government has restituted to private claimants most of the property that can be returned. Resolution of the remaining private property claims will require the identification of alternative property or the payment of compensation, estimated at approximately $500 million. No official timetable for settling private property restitution claims has been established, except for paying out compensation by 2009 for land, forest, and bodies of water, and by 2011 for dwelling houses and flats. Under the current program the Lithuanian Finance Ministry may pay compensation only to Lithuanian citizens, but citizens qualify regardless of their place of domicile. The deadline to submit applications for property restitution passed in December 2001; the deadline to prove kinship to the original owner is December 31, 2002.From 1991 to 1996, the observant and non-observant Jewish communities claimed and received 28 buildings, mostly synagogues. 8A 1995 law permits only the observant part of a religious group (as opposed to the non-observant) to apply for the restitution of communal property. The practical effect of this has been that only the orthodox Jewish community, comprising five percent of Lithuania’s current Jewish population of approximately 4,000, is able to apply for property owned and used by Lithuania’s pre-war Jewish population of over 200,000. The non-observant community has not been able to obtain additional property, whereas the observant community has received a number of properties. In June 2002, a government commission, comprised of cabinet ministers, commenced a review of Jewish communal property issues. The commission is expected to study a list of approximately 1100 un-restituted Jewish communal properties prepared by a committee made up of representatives of the American Jewish Committee, the World Jewish Restitution Organization, and the Lithuanian Jewish Community. These organizations plan to form a foundation to assist in pursuing claims and managing restituted property. The Government has proposed to amend the existing property restitution legislation to open the way for restitution of communal property to the new foundation. The Parliament is expected to vote on the amendment in the autumn.

7 L.A. P ădure, L’action en revendication imobiliere dans la jurisprudence de la Cour Europeenne des Droits des L’Homme, Revue Europeenne du Droit Social, Volume IX, 2010, pag.189 8 Three in Vilnius, five in Kaunas and the balance in small towns.

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Macedonia (FYROM) Almost all property used for religious purposes has been restituted. Communal religious property faces legislative hurdles. The Macedonian government, preoccupied with the Kosovo crisis and the 2001 insurgency, has not had the political will or finances to implement fully its property restitution program. The government passed property restitution legislation in 1998, but implementation of the program has been slow and many property claims by religious communities have yet to be resolved under ongoing negotiations. After the 1998 property denationalization law was passed, the government failed to enact implementation legislation. The law was challenged before the Macedonian Supreme Court in 1999, which ruled that a number of the law's provisions must be altered. The Jewish community has regained some communal and religious property. In late1997, the Jewish community proposed a settlement under which the community would receive facilities in Skopje as compensation for un-restituted communal property. In late 2001, the Macedonian government accepted the proposal in principle but it has not yet been implemented. In May 2000, the Macedonian Parliament passed a law mandating that heirless property of Jewish Holocaust victims be given to a special-purpose fund for the construction of a Holocaust memorial museum. The government established a four-person steering committee, comprised of two government and two Jewish community representatives, for the project. The steering committee recently began its work, identifying some heirless properties eligible for this program. A major success of Macedonia’s restitution program is that virtually all churches and mosques have been returned to the appropriate religious community. Most non-religious properties have yet to be adjudicated. Claims for un-restituted properties are complicated by the fact that the seized properties have changed hands many times and have been developed since the time of their seizure. Due to limited government resources, it is unlikely that the religious communities will regain most of these additional claimed properties.

Poland Communal property restitution well-advanced and religious groups will have new opportunity to file additional claims. Government drafting private property legislation. During the 1990’s, Poland passed legislation to provide for the restitution of property held before the war by Poland’s major religious organizations. The legislation established five separate commissions, comprised of representatives of the government and the affected communities, to process the restitution claims. The Catholic Church acquired approximately2000 properties, the Lutheran Church 210 and the Orthodox Church eight. In some instances, the churches received compensation instead of the actual property. Thousands of Jewish communal properties served Poland’s 3.5 million Jews before the Holocaust. The law governing the restitution of Jewish communal property went into effect in May 1997 and provided a May 2002 deadline for restitution applications. Because of the large number of properties and the small size of the

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European Journal of Social Law current Polish Jewish community, the Community sought the assistance of the World Jewish Restitution Organization (WJRO). A joint foundation between the Polish Jewish Community and the WJRO was established in late 2001. The joint foundation, known as the Foundation for the Preservation of Jewish Heritage in Poland (FPJHP), was registered in early 2002. The founding agreement provided that the Polish Jewish Community would file claims in certain geographic areas, and the FPJHP would do so in areas not reserved for the Polish Community. The Polish Community filed nearly 2000 applications by the deadline, and the FPJHP filed nearly 3,500 claims. The Government of Poland has indicated that it is drafting and will soon introduce legislation to enable all religious communities to file additional applications. This would enable the Polish Jewish Community to claim remaining properties identified as having been held by the Jewish Community before the Nazi invasion not already claimed prior to the May, 2002 deadline. Many of the properties to be restituted are heritage properties, Primarily cemeteries. The maintenance of these properties represents a potential cost of considerable magnitude. The Foundation and the Community may sell properties not needed by the Community in order to meet these expenses. There is no legislation governing the restitution of private property. Parliament has made several attempts to enact such legislation and did pass a law in early 2001, but President Kwasniewski vetoed it because of its budgetary implications. The legislation imposed a citizenship requirement that would have prevented most American citizens from filing a claim. The government has said that it is preparing new draft legislation for submission to the Parliament in 2003, presumably without citizenship restrictions. Some claimants for the restitution of private properties have successfully acquired their property in Polish courts. In June 2002, a federal district court judge ruled that the Government of Poland could not be sued in the U.S. to recover property seized by the communist Polish government following World War II. The suit alleged that the Polish Government had profited by refusing to return property. Plaintiffs are considering an appeal.

Romania Communal property law completed. Implementation of Law 10 continues. Greek Catholic Church claims largely unresolved. Romania was the last of the former communist countries to pass formal property restitution legislation. For the first decade following the fall of the Ceausescu regime, a series of court decisions, laws and decrees governed the return of property seized during the war and under communist rule. These decisions, laws and decrees were frequently contradictory and led to considerable confusion. In February 2001, Romania enacted Law 10 to govern private property restitution. While this law provides a systematic approach to private property restitution, it is complex and places a considerable burden on claimants. Initially, the law provided an application period of just six months. There was no notification program outside of Romania so that potential claimants had no way of learning about the possibility of filing applications. At the

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Revue europénnee du droit social suggestion of the United States, the Romanian Government extended the deadline, first to November 2001 and then to February 2002. But the overseas notification program was not implemented until late 2001, making it difficult for claimants to meet the deadline. 9Law 10 does not cover agricultural or communal property. Law 10 required that applicants submit claims to municipal authorities through a court having jurisdiction over the property in question. This made it difficult for applicants who left Romania at an early age or for heirs to know where to submit applications. Despite these difficulties, several thousand claimants filed applications. How long it will take to adjudicate claims, and how transparent that process will be, is not clear. In late June, Parliament approved legislation governing the restitution of non-religious communal property. The law covers schools and hospitals but not houses of worship. The law will replace the ordinances under which communal property has been returned to religious organizations. A June 1999 ordinance restored 36 buildings to ethnic communities. 10 An earlier ordinance returned six properties to the Jewish community. 11 Romanian officials have also discussed a prospective additional law on ethnic community properties under which not only Hungarian, German and Slovak communities might benefit but also the Jewish community. Jewish property claims include approximately 800 hospitals, schools, retirement homes and other properties confiscated by the communist government. A foundation established by the Federation of Jewish communities in Romania and the World Jewish Restitution Organization has received approximately 40 of these properties. Documenting ownership has been difficult for the foundation because of the lack of access to archives. Finding new premises for current occupants has slowed the restitution of both private and communal property in Romania. In a development that may have far reaching consequences for Romanian property restitution, the European Court of Human Rights ruled in May 2002, on three Romanian property restitution cases 12 . The cases considered the right of the state (under law 92/1950) to confiscate civil servants’ property, the confiscation property and jurisdictional issues. In two of the cases the Court ordered Romania to pay substantial damages to the petitioners unless the property was returned within three months. In the third case, the court also restituted the property, but the monetary award was for a smaller sum. The Court noted that two of the applicants were deprived of their property for 50 years and that, even if the deprivation served a public interest, the balance between community interest and fundamental individual rights had been upset.

9 L.A.P ădure, Effects of the real estate restitution, Bibliotheca Publishing House, Bucharest, 2016, pag.45 10 12 to the Jewish community, 15 to the Hungarian, four to the German, two to the Greek, one to the Slovakand one each to the Ukrainian and Serbian communities. 11 L.A. P ădure, Considerations on the way of achiving the real estate restitution in our country, after 1989, Bibliotheca Publishing House, Târgovi şte, 2016, pag. 168 12 Vasiliu v. Romania; Hodos and others v. Romania; and Surpaceanu v.Romania

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Russia 4000 communal property buildings returned. Despite considerable progress made in this area since 1991, a number of religious communities remain concerned about un-restituted religious property confiscated during the Soviet era. According to the Presidential Administration, the Russian Government’s Restitution Commission returned approximately 4,000 buildings between the time the decree on communal property restitution went into effect in 1993 and March 15, 2001 when Prime Minister Kasyanov ordered the commission to cease its activities. Approximately 3,500 of the restituted buildings were returned to the Russian Orthodox Church. Smaller numbers of buildings and houses of worship were returned to non-Orthodox Christian, Jewish, and Muslim communities. One example of the latter is the synagogue in Omsk, the largest in Siberia, which was rededicated in May 1996. Even with this modest success, the Jewish Community faces the same obstacles as other religious communities in restituting properties seized during the Communist regime. Some Jewish communities assert that they have recovered only a small portion of the total properties confiscated under Soviet rule, and are seeking additional restitution. The Russian Government has returned approximately 15,000 religious articles, including icons, torahs and other items, to religious groups. For example, in May 2000, the government turned over 61 Torah scrolls to the Jewish community. However, many other religious artifacts remain in state museum collections.

Slovakia Majority of religious property returned. High-level Commission making recommendations on heirless and communal Jewish property. Slovakia, as a part of Czechoslovakia, was an early leader in property restitution, passing laws in 1990 and 1991 for the restitution of Jewish and non-Jewish properties confiscated by the communist regime. A 1993 law covered communal religious property, so that both private and communal property became eligible for restitution. The implementation of these laws led to the restitution of a majority of eligible property throughout Slovakia, with a few important exceptions. The Orthodox Church received 6 of its 7 claimed properties. The Catholic Church received about 60% of its claimed properties, the remaining claims were denied since the properties were undeveloped at the time of their confiscation but have since been developed. The major obstacles facing Slovakia’s outstanding restitution claims are the government’s lack of financial resources to pay compensation, current tenants living in restituted property and bureaucratic resistance to specific claims. One unresolved problem in Slovakia’s program is the property of heirless Jewish Holocaust victims. In April 2000, the government and the Slovak Jewish Community established a Joint Commission to discuss heirless property, among other restitution issues. The commission convened in December 2001. It consists of Slovak government representatives and ten Jewish representatives: seven from the Slovak Jewish Community, including the Union of Jewish Religious Communities

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Revue europénnee du droit social in the Slovak Republic (UZZNO), and three representing the American Jewish Committee (AJC), B'nai B'rith International, the World Jewish Congress and the World Jewish Restitution Organization. Following an agreement reached in the December 2001 inaugural meeting, experts reported that heirless Jewish moveable property and real estate, excluding agricultural lands, was valued at approximately 8.5 billion Slovak Crowns ($185 million). The Slovak Jewish Community agreed to accept ten percent of this amount, equal to 850 Slovak crowns ($18.5 million), as payment for the un-restituted property. The representatives of international Jewish groups have not accepted this figure as a fair settlement. Negotiations continue on completion of unacceptable outcome even as Slovakia moves towards parliamentary elections in September 2002.A previously outstanding restitution issue, which has now been resolved, was there imbursement to the Slovak Jewish Community of the Slovak Jewish deposit, the forced deposit of Slovak Jewish money and gold into the national bank in 1940. In 1998, UZZNO won a ruling for the reimbursement of the deposit ($600,000). The money is being used for a retirement home in Bratislava and a day care center in Kosice, both of which serve Holocaust survivors. A remaining matter of concern is the lawsuit filed by the Slovak Jewish Community in Germany in relation to the money paid by the Slovak government for each Slovak Jew deported during the war. During the wartime occupation, the Slovak government was forced to pay 500 Reichsmarks to the Nazis for the deportation of each Jew in 1942. The Slovak government paid this amount through the looted assets of the Jewish Community. The lawsuit calls for a payment to the Slovak Jewish Community of an amount equal to the total money paid for the deportations. The German courts dismissed the case in March 2001, and a ruling on the February 2002 appeal hearing has not yet been released.

Slovenia Bulk of communal property returned. Heirless property remains an issue. Slovenia passed and began implementing a law on the restitution of property (the Denationalization Act) in 1991, soon after independence. As of June 2002, 66 percent of the 35,858 property restitution claims filed had been resolved (approximately one-fourth of the resolutions were for only partial restitution or were completely denied). Unresolved cases include both those in which no final decision has been reached and those in which court decisions are being appealed. Over the past decade, settlement of claims has been slowed by such factors as court backlogs, insufficient numbers of trained judicial and administrative personnel, amendments to the Denationalization Act, and inadequate records of land ownership. There have been complaints from some claimants of a general lack of transparency and administrative compliance with the law. Heirless property currently devolves to the state, although no group has registered any grievance with this law. Almost all Jewish private property claims are resolved and Jewish communal property claims are complete. Other claims which remain to be adjudicated include claims by private Slovene citizens, claims by non-citizens, and

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European Journal of Social Law substantial claims by the Catholic Church. The Government of Slovenia has stated that it is working to accelerate the restitution process. The goal of finalizing restitution cases has been extended from the end of 2002 to the end of 2004.The unresolved communal property claims of the Catholic Church are currently being litigated in the Slovenian courts. Under current regulations, Church claims are treated the same as individual claims, with the same rights to appeal and compensation. In July 2001, the Ministry of Agriculture returned over 8,000 hectares of land in the Triglav forest to the Catholic Church. The Ljubljana Administrative Court annulled this decree in May 2002, ruling that roads built on the land were public goods and therefore cannot be restituted. Following the annulment, the Minister of Agriculture stated that he still expects to return to the Church all but about one percent of the land in question. In addition to the Catholic Church claims, other outstanding claims involve the property of private individuals and property without a clear title sold after the breakup of the former SFR Yugoslavia. Out of the 469 property restitution claims filed by American citizens 13 , around 220 cases remain unresolved. The Jewish community in Slovenia has never been very numerous and remains small today, numbering around 150. The limited population led to only a small number of Jewish private and communal property restitution claims. Restitution of Jewish communal property in Slovenia has been completed. Neither the Slovene government nor the Jewish Community has defined any approach to dealing with heirless property of Holocaust victims, which could provide a source of income for the Jewish Community.

Ukraine The majority of places of worship have been restituted. No legislation governing the restitution of private property. Ukraine has no state religion, although the Ukrainian Orthodox Church and the Ukrainian Greek Catholic Church predominate in the east and the west, respectively. These churches can exert significant political influence at both the local and regional levels and many smaller religious groups allege governmental discrimination in favor of these churches with regard to restitution issues. A 1992 decree commenced Ukraine’s restitution program for religious buildings. Registered religious organizations are the only entities permitted to seek restitution of property confiscated by the Soviet regime, and these organizations are limited to receiving only those buildings and objects necessary for religious worship. The common characteristics of systems in the analyzed countries are- most states have adopted legal regulations repairers in the first years after the fall of communism, speed regulation is prerequisite to success of its application, in almost all cases it has been observed an obvious concern for the protection of third parties who have acquired by good faith whose refund is sought and protection on tenants, some countries have opted for the return

13 All of whom were Yugoslav citizens at the time their property was seized and who naturalized subsequently

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Revue europénnee du droit social of other preferring restitution by equivalent solution. 14 The State Committee for Religious Affairs has stated that the transfer of the majority of places of worship to their original owners is nearing completion. As of July 2002, 8,589 buildings and over 10,000 religious objects have been returned to Ukraine’s religious communities. Although the program has made progress, restitution is not complete, and all of the major religions have outstanding claims. An estimated 268 former houses of worship which are currently being used for non-religious purposes have not been returned; however, 215 of these are not claimed by any religious group. Many other outstanding claims are for properties identified as historical landmarks or for occupied buildings, with the relocation of current residents of claimed property being prohibitively expensive. Ukraine has no laws or decrees governing the restitution of private property, nor has the government made any proposals in this regard. The government has attempted other proposals, for example, in May 2001, three amendments were offered to the current Law of Religion and Freedoms of Conscience but failed to pass the Rada (Parliament). Following the failure, the Cabinet of Ministers revised and resubmitted the amendments, although voting has been delayed due to the March 2002 parliamentary elections. The amendments would change the registration procedures, codify presidential decrees on property restitution and expand the types of religious property eligible for restitution to include religious schools and administrative buildings. On March 21, 2002, Ukrainian President Kuchma signed a decree calling for the creation of an inter- departmental commission, organized by the State Committee for Religious Affairs, to resolve outstanding restitution issues. All the countries must seek good practice. 15 The decree called for the commission’s plan to be in place by September 1, 2002. Although most religious groups support the decree, others warn that there should be measures to guard against corruption and procedures to determine ownership of property claimed by multiple groups. Throughout the country and across religious groups, there have been claims of discrimination and of deliberate delays in the restitution process at the local level. For example, the Kiev Patriarchate of the Orthodox Church and the Greek Catholic Church have complained of harassment by local authorities in the predominantly Russian- speaking eastern region, while the Moscow Patriarchate of the Orthodox Church complained that local governments ignored the appropriation of its churches by Greek Catholics in the western region. In addition to the disagreement among the Orthodox churches, the Roman Catholic Church has unrealized restitution claims in various cities including Kiev and has claimed that local authorities have blocked

14 L.A. P ădure, Elements of compared law about how the states released by totalitarian regimes proceeded to the elaboration and enforcement of restitution, Revue Europeenne du Droit Social, Vol. XXI nr.4/2013, p.211 15 L.A. P ădure and A. Ţuţuianu, International conference, Transdisciplinarity and Communicative Action – Woking Papers, Târgovi şte, România, Ways in which some countries which have totalitarian regimes have solved the issue of restitution of the properties abusively confiscated, BDI Thomson Reuters, pag. 226

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European Journal of Social Law a land claim in Chernihiv. According to Jewish community representatives, some progress has been made, although restitution goes slowly and there are occasionally competing claims by different Jewish groups over who is entitled to receive the property. Faced with the growing complexity of cases, the ECHR tries to find real solutions. 16 The US Embassy in Kiev actively monitors restitution of religious property, and regularly meets with representatives of Ukraine’s religious communities in Kiev. These representatives also frequently visit Washington for discussion.

Bibliography: P. Cook and U. Yuichiro. “Privatization and Economic Growth in Developing Countries.” The Journal of Development Studies , Vol.39, No.6, August 2003: 121-154. W. Easterly. The Elusive Quest for Growth. Cambridge, Massachusetts: The MIT Press, 2001. N. M. Gregory. The Essentials of Economics. 2 nd edition. United States: 2001. Medema, Steven G. and Richard O. Zerbe. “The Coase Theorem.” Encyclopedia of Law and Economics. 1999. 839-892. W. Megginson, L., R. C. Nash, and Matthias van Randenborgh. “The Financial and Operating Performance of Newly Privatized Firms: An International Empirical Analysis.” The Privatization Process. Ed. T. L. Anderson and P. J. Hill. United States of America: Rowman & Littlefield Publishers, Inc., 1996. 115-153.

16 L.A. P ădure, L’action en revendication imobiliere, Revue Europeenne du Droit Social,Volume XI, Nr.2, 2011 pag. 145

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