VOL. 2 | ED. 2APRIL 30, 2014

INTRODUCING A WORLD OF OPPORTUNITIESA STEPPING STONE TO A SUCCESSFUL

LEGAL CAREER

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LAWYR.IT TEAMSenior EditorsCălin Mureşanu - 4th year, Babeş-Bolyai University

Ioana Stupariu - 4th year, Babeş-Bolyai University

Andrada Rusan - 4th year, Babeş-Bolyai University

Andrada Florea - 4th year, Babeş-Bolyai University

Oana-Cristina Gligan - 4th year, Babeş-Bolyai University

Junior EditorsAlexandru Coraş - 3rd year, Babeş-Bolyai University

Andreia-Gemma Moraru - 3rd year, Babeş-Bolyai University

Dan Moroşan - 4th year, Babeş-Bolyai University

Irina Negruţiu - 4th year, Babeş-Bolyai University

Ioana Bărăian - 4th year, Babeş-Bolyai University

Mădălina Perţe - 3rd year, Babeş-Bolyai University

Neada Mullalli - 2nd year PhD, Central European University

Oana Iulia Irimia - 2nd year, Nicolae Titulescu University, Bucharest

Raluca Alexandra Maxim - 2nd year, Babeş-Bolyai University

PR CoordinatorsAdrian Condraşov - 3rd year, Nicolae Titulescu University, Bucharest

Anny Stoikova - S.J.D. candidate, Central European University

Delia Cristiana Stamate - 3rd year. Ovidius University, Constanţa

Dora Maria Demble - 2nd year, University of Vienna - Juridicum

Ioana Atomulese - MA, Alexandru Ioan Cuza University, Iasi

Stella Turnsek - 4th year, University of Zagreb

Want to join the team? Write to us at editors@lawyr.it

Seven months have passed since December 20, 2013, when we re-leased our fourth issue. As time has its way of changing things, Lawyr.it could not be an exception, and many changes have happened to the way our project looks like. New senior editors are now a part of our team, while,

regrettably, old ones have had to leave us – we thank them through this note again for their invaluable contribution to our magazine. We have also added new content to our magazine and to our website, different sections, and, soon enough, we will an-nounce a new project that will expand our efforts into achieving our initial aim: to provide a bridge between Law students in Central and Eastern Eu-rope and the legal job market in these countries. Stay tuned to learn more! Moreover, we are proud to announce that the Lawyr.it Dictionary, a project which we have been working on since October last year, now comprises 31 terms defined and well refer-enced by our editors and keeps growing every week.

However, we believe that change is good. Change is what keeps us dynamic, what makes sure that we do not get out-dated and it is only through change that we can keep up with the demands of a constantly developing market like the legal market is. We have faith in our young, dynamic team that the changes that they choose to implement will bring us closer to truly becoming a bridge between students and law-yers, a stepping stone to professional greatness. We hope that you will enjoy this fifth issue and that with-in its pages you will find the energy and the enthusi-asm which characterises our team. Keep Lawyr-ing!

In this issue, The Devil’s Advocate rubric will bring you an interesting debate about where the responsi-bility for crimes committed by autonomous drones should be placed. Two students try to explore the

insights of this topic and analyse whether it should lie with the programmers or with the engineers that built the drones. On the other hand, our Profession-al Spotlight rubric will bring you not one, not two, but three interviews with different professionals!

Also, as a consequence of our constant efforts to grow, there are a few new sections. You can find a report about studying law in the Netherlands, writ-ten by our own Andreia Moraru, who is currently undergoing an exchange at Utrecht University. Dif-ferent lawyers answer our question of the issue, what’s the most valuable skill that a lawyer must have in order to be successful? Within our pages you can also find a section about various opportuni-ties that law students can access and, lastly, Ioana Stupariu writes about the internships that some of the students whose articles we have published have received through our internship programme.

Last but not least, this issue brings ten brand new ar-ticles, from various fields of law. You can read about the liability for lack of conformity with the con-tract in consumer law or find out what the effects of company law harmonization were in the UK. An article in the field of commercial law discusses the issue of non-financial reporting of companies in the EU. Furthermore, if you are more interested in civil law, you can read about a new trend in the matter of divorce: divorce by notary procedure.

Moving into the field of European Union law, you can read a history of the multiple Treaties that the European Union is based upon and how these in-fluenced the way in which the EU developed.

In terms of Public Law, you can read about referen-dums and what their advantages and disadvantages are, or you can read about the rapid decline of the capital punishment. Lastly, you can explore an article on a hot topic in international law: the applicability of the doctrine of the responsibility to protect in Syria.

We hope you will enjoy the read!

EDITOR’S NOTEBy Calin Muresanu

VOL. 2 | ED. 2

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The liability for lack of conformity with the contract - a promising achievement of Consumer Law (p. 8)

Company Law Harmonization in the UK (p. 10)

The new trend in the matter of divorce: the divorce by notary procedure (p. 12)

IN THIS EDITION

VOL. 2 | ED. 2

5

Domestic Focus

Professional Spotlight

International FocusApplicability of the ‘Responsibility to protect’ doctrine in Syria (p. 48)

Non-financial reporting of companies in the EU: a ‘voluntary obligation’? (p. 50)

Does European Union citizenship impact upon national sovereignity? (p. 52)

The complicated road between failure and success: the EU version (p. 54)

Should EU legislation regarding the ‘made in Germany’ trademark for the automotive industry be re-vised? (p. 56)

ReflectionsReferendum - the good, the bad and the very ugly (p. 22)

Capital Punishment - A Rapid Decline (p. 24)

Interview: Daniel Nitu - Assistant Professor - Babes-Bolyai University (p. 28)

Interview: Eugen Iordachescu - Senior Managing Partner - LLP Iordachescu & Associates (p. 32)

Interview: Leonie van Leont - Assistant Professor - Utrecht University (p. 36)

Question of the issue (p. 40)

Special: Lawyr.it – a bridge between students and law firms (p. 44)

Devil's AdvocateShould engineers be held responsible instead of programmers in the case of autonomous drones? (p. 60)

BriefingStudying Law in the Netherlands (p. 16)

Opportunities for students (p. 18)

DOMESTICFOCUS

DOMESTICFOCUS

The legislator built Consumer Law to be the safety net of the everyday consumer in response to the booming trade and mar-keting industry. As President Kennedy observed in his Special Message to the Congress on Pro-tecting the Consumer Interest in 1962, the consumer mass repre-sents the most important eco-nomic group, but also the one

whose needs are the least taken into account.

Even though this branch of law has experienced a very dynamic evolution, it never seems to complete its mission, as commercial law innovates. It must constantly improve and withstand the challenges in order to rebalance the contract field in favour of the ‘weaker party’. This was also the purpose of the European Parliament and the Council on May 25, 1999 when they adopted the Directive 1999/44/EC regarding certain aspects of the sale of consumer goods and associated guarantees. The Directive was enacted by all member states. Without any amend-ments, Romania acted accordingly adopting Law 449/2003.

But what exactly is this guarantee?

The guarantee for conformity with the contract rep-resents the legal means by which a seller or a pro-ducer is liable to the consumer for any lack of corre-spondence between what the consumer legitimately expected from the product bought and what was actually received.

The premise of its merits is that this guarantee was invented to fill a legislative gap. The main difficulties encountered by consumers and the main source of disputes with sellers concern the non-conformity of goods with the contract. It might look like the buyer can invoke a large range of legal remedies alterna-

tively or separately, if his expectations are not ful-filled. That is why we might find it surprising that there still are some situations when the guarantee for conformity with the contract is the only answer.

Why do we need it?

In order to reveal its genuine feature, a comparative perspective is required. The obligation of conform-ity with the contract becomes more determinant as the lack of conformity is smaller.

Some simple hypotheses can answer the question better than any doctrinal presentation. Therefore, if you buy a wooden table and you are delivered a couch, there should not be any problems when you ask the seller to change the product or you ask for a refund. It is certain that your contract was not executed. But what if you buy a wooden table and instead you are delivered a metal one? Again, if you specified that your table should be made out of wood and the seller understood or at least should have anticipated this option based on reasonable criteria, you can use the same remedies. You can in-voke the non-compliance with the obligation, you can ask for a full price refund or, eventually, ask for the contract to end. Things seem to get a bit more complicated in the next situation. The consumer buys a wooden table, he/she is delivered a wooden table, but the product has a latent defect. For exam-ple there is a small termitarium (termite nest) inside the structure of the piece of furniture. It is a defect that could have remained unknown even for the seller himself, and could not have been spotted by a medium diligent consumer. This goes beyond the guarantee, it is a latent defect and the remedies in this case are regulated separately.

It is important to observe that whereas in the first two hypotheses the consumer did not receive the product he had bought, in the last situation, the product apparently is the same with the one the consumer had asked for, but the latent defect makes

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it unusable, and, therefore, different from the product that the consumer wanted to buy.

The fourth example presents the situation where the guarantee for conformity becomes useful. The table that the consumer buys is perfectly functional but he/she is delivered a wooden table of a different colour than the sample the buyer and the seller had agreed upon. Should the consumer be held to accept this mi-nor non-conformity? What if the colour of the wood is fine but the expensive table he/she has bought for his/her living room has notable scratches on the surface? An aesthetic defect is as important as any other one in the Directive’s view. Since the discussion is about products that are new, it is absolutely reasonable that the consumer’s expectance is to receive flawless prod-ucts, even if the lack of conformity was minor (Goi-covici, 2006). The same analysis applies when the con-sumer revealed the particular usage he/she wanted to assign to the product and the seller guaranteed for it.

The magnitude of the non-conformity is relevant for justifying the remedy that a consumer can use.

What can the consumer do?

According to Article 3 of the Directive, in the case of a lack of conformity at the moment of the delivery, the consumer is entitled to have the goods brought into conformity free of charge by repair or replacement, or to get an appropriate discount or ask for the contract to be rescinded. These four remedies are not listed in a random order but according to the gravity of their effects on the seller’s patrimony. This criterion is to be applied along with the principle of the most effective remedy from the consumer’s point of view. First, the consumer should agree to have the product repaired or replaced, unless this is impossible or dispropor-tionate, as compared to another remedy. The solution must be applied within a reasonable time and without any significant inconvenience for the consumer. The nature of the goods and the purpose for which the consumer required the goods have to be taken into consideration. If any one of these conditions is not respected, the consumer may require an appropriate reduction in the price or have the contract rescinded. However, the latter remedy does not apply if the lack of conformity is minor. Regarding damages, the Di-rective remains silent.

A very important aspect regards the time limits in which the consumer must take action. The seller is to be held liable within two years from the delivery date for new products. For second-hand goods, the time limit is one year. Also, the consumer must inform the seller about the lack of conformity within a period of two months from the date on which he detected such a lack of conformity.

In order to favour the consumer, the Directive uses the presumption that the lack of conformity that re-veals itself within the first 6 months must have existed at the time of delivery. It is up to the seller to prove that the products delivered are in conformity with the order, or that they are fit for the normal purpose of the product. (Rondey, 2005)

To sum up:

1. The product delivered must be identical in terms of quality and quantity with the product bought.

2. A notable difference from the other guarantees is that the seller is held liable for any lack of conformity.

3. We can distinguish between two types of conform-ity (I.F. Popa, 2006). The material conformity refers to the identity of the product bought which must re-veal the same quality, quantity and content as stated in the contract, the law, the commercial customs, or corresponding to a sample. The functional conform-ity refers to the use that the consumer wants to give to the product, usage that the seller guaranteed for or the product’s labels certified for.

In conclusion, this regulation is more than welcome and definitely provides an extra layer of protection for consumers against abusive sellers/producers who take advantage of any law breach. Besides the fact that its practical input is undoubted, the guarantee’s fairness is sustained by an objective criterion: the consumer’s reasonable expectations legitimated by the law.

By Diana Buzilă

VOL. 2 | ED. 2

UK institutions responsible for the reform of corporate law can very well make their own great plans, but in reality the focus and initiative has to be shifted towards Brussels. This essay will discuss the effects of this shift on English company law. For a bet-ter understanding, one must first look at the evolution of UK Com-pany Law, then at the European

Union’s reforms, the interconnection between the two, and finally at the current and future possible impact of the shift on British company law.

UK Reform. Since the foundations of company law were set in UK through the first Companies Act, passing in 1844, there has been a 20-year cycle of re-view resulting in Acts adopted in 1862, 1883, 1908, 1929, 1948, 1980, 1985, with the new Act entering in force in 2006. This indicates that there is a con-scious effort to keep company law relevant to cur-rent needs (Omer, 2009).

The Joint Stock Companies Act 1856 established the framework for the modern-style company, in-corporated by registration and enjoying limited li-ability. From 1856 to the present day, the institution of the ‘company’ and the legislation dealing with it has not suffered any paradigm shifts. However, the Parliament has been busy in company affairs from time to time, passing, amending, and consolidating the Acts. The prevailing sentiment at the start of the general review of company law in 1998 was criti-cal towards the ‘numerous additions, amendments and consolidations that have ‘created a patchwork of regulation that is immensely complex and seriously out of date ’ (Company Law Review Act 1998). The Company Law Review was created to overhaul this untidy, complex, and difficult to understand legisla-tion. The declared aims of the project were to em-

bark on a fundamental review of the framework of core company law, in order to achieve a company law that was competitive, and to provide a frame-work in which British businesses could grow and compete effectively in an economic sense.

The result of this long process led to what was the longest Act in the history of the Parliament: the Companies Act 2006 (CA 2006). Although this represents a major reform, it is not a revolution, as Dignam acknowledges (2011). It is a consolidat-ing statute which reflects the incremental growth of company law with few fundamental changes. Its four key objectives as noted in the Regulatory Im-pact Assessment are: (1) to make it easier to set up and run a company; (2) to ensure better a regulation and a ‘Think Small First’ approach; (3) to enhance shareholder engagement and a long-term invest-ment culture; and (4) to provide flexibility for the future.

EU Reform. Since UK’s accession to the European Union in 1972, its options regarding law reform were bounded by its obligations to implement Com-munity rules (Ferran, 2001). The objectives of the Treaty on the Functioning of the European Union (TFEU) include the facilitating of trade and the re-moval of barriers to people’s freedom to establish their businesses and invest their capital on a basis of equality throughout the EU. In order to achieve this integrated financial market, a plan for the ‘har-monisation’ of domestic company law was instituted (See TFEU, art. 44 (2) (g)). The legislative procedure dictates that the European Commission in Brussels makes proposals for Directives (or less often, Regu-lations) which are then adopted by the Council of the EU and the European Parliament. The flexible method of the Directive was chosen because the Directives are only binding on the member state, which must implement in their own law by its own legislation (Pettet, Lowry, and Reisberg, 2012).

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The thirteen Company Law Directives (out of which the fifth and tenth have not yet been adopted, and the ninth has been redrawn) have led to a number of important changes in technical company law. Such changes are the abolition of the external effect of the ultra vires rule (First Company Law Directive 68/151/EEC), reforming the accounting and audit require-ments (Fourth Company Law Directive 78/660/EEC, Seventh Company Law Directive 83/349/EEC and Eighth Company Law Directive 84/253/EEC), the area of mergers and acquisitions (Third Company Law Directive 78/855/EEC, Sixth Company Law Directive 82/891/EEC, Tenth Company Law Directive 2005/56/EC and Thirteenth Company Law Directive 2004/25/EC) and many others.

Moreover, the European Union enacted the European Company Statute (the Societas Europaea or SE) by EC Regulation in 2001 which is intended to be available to companies above and beyond the legal forms available at a national level. According to Johnson, this could be compared to a ‘European citizenship’ in the sense that it does not impinge upon the nationality of the legal person, which has to be granted by the member state where the company is registered (2005). However, it gives rise to an extra bundle of rights and advantages not available to the national corporate form, among them, the right to corporate mobility within the EU subject to a specific set of processes which must be followed.

Impact of the reform shift to EU. The desired ef-fect of the Company Law harmonisation programme is to bring national laws closer together in order to help achieve a common European market. However, a direct consequence of this is that UK (and of course other Member States) will not have the unhindered freedom to regulate (or deregulate) as they wish. As a result, Ferran opined that ‘[t]he UK is unable to up-date its company laws in ways that have commended themselves to other common law states that, histori-cally, had company law systems derived from the Brit-ish model ’ (2001).

Another possible outcome is that this will cause fur-ther market integration in Europe by lowering obsta-cles for cross-border offering and trading, while also making it easier and more attractive to transfer the real seat of a company or reincorporate (Luca, 2005).

For instance, it is not possible for a Public Limited Company (PLC) in the United Kingdom to transfer the registered office to another Member State without winding up the UK operations and reregistering in another Member State, whereas the SE rules provide this opportunity. However, the UK has shown little interest in this, as a government consultation on the issue of interest in SE and Societas Privata Europeae (SPE) in 2008 attracted only 14 responses. Therefore, it is unlikely that it will become a more attractive form than the UK private companies form.

At first glance, the UK Government has been sympa-thetic towards the liberalising approach of the Euro-pean Union, due to the impact it will have on other Member States. However, as noticed by Cremers and Wolters, the debate on company law reform in the United Kingdom has not been greatly influenced by the European developments, although a number of directives were implemented during and after the last reform process (2011). The main reason for this is that the UK corporate law system has always been at the forefront of innovation, and, as a result, some EU re-forms were either modelled after the English model (e.g. The Market Abuse Directive), or they already ex-isted, but not in a codified form (e.g. the abolition of the ultra vires rule).

In conclusion, the shift of Company Law reform fo-cus from the UK to the European institutions has not had a great impact so far on domestic law, but the har-monisation process is far from being over. The conse-quence of levelling the playing field and harmonising the set of rules that govern Company Law can have the effect of being able to satisfy people’s preferences more than a decentralised system. This can also lead to excessive regulation and an increasing legal uncer-tainty in an already complex Company Law. There-fore, the drawbacks in how the harmonisation pro-gram affects UK Company Law seem to outweigh the advantages. In order for this to change in the future, the European Commission needs to propose more freedom-enhancing measures. As Gérard Hertig said in a conference in Brussels in 2004, the European Un-ion, through the Commission should ‘have the cour-age of doing [almost] nothing’.

By Radu Şomlea

VOL. 2 | ED. 2

This article aims to present the particularities of the divorce procedure before a notary as it is regulated by the Romanian Civil Code. In these more than three years since this procedure has been introduced in our leg-islation, more and more people have chosen this procedure in order to put an end to their mar-riage. The reasons why couples

turn to a notary in order to divorce are the swiftness and the less formal character of the procedure com-pared to the judicial one.

Firstly, I will present the current regulations as well as the previous ones, in order to highlight the rea-sons that led to the legislative update. Secondly, I will point out the main characteristics of the notary procedure for divorce and its specificities compared to the other two procedures. I will conclude by put-ting forward my own opinion on the matter.

The notary procedure regarding the divorce was first introduced in our legislation through the Law 202/2010, and it is now part of our Civil Code as well. It is defined as an extrajudicial procedure by which a married couple can divorce in front of a notary public, as long as their request reflects their mutual consent. In my opinion, the two new extra-judicial procedures of divorce (the procedure before a notary and the one before a registrar) are a good alternative for the judicial process, given the large number of cases that are brought before the courts and the lengthy procedures.

I believe that these modern and updated provisions were mandatory for our country. Romania needed to replace the old regulations, enacted by the com-munist legislation, with new ones, in accordance with the evolution of our society and the new con-cepts regarding family life. During the communist

age, the divorce had an exceptional character (Flo-rian, 2011) and it was allowed only in few restrictive situations. The divorce was seen as a threat for the social order, as an attack to the principles and the morals. Understandably, a consensual divorce as it is stated today by our Civil Code, was inconceivable.

Law 59/1993 eliminated some of the old restrictions concerning the divorce and made the consensual divorce possible. However, this type of divorce had some admissibility conditions: the marriage must have lasted more than a year and the couple must not have had underage children. The consensual divorce is possible, according to the current Civil Code, even if the couple has underage children and regardless of the length of the marriage. Both of the new extrajudicial procedures have the main ad-vantage of celerity. The most important aspect that distinguishes one from the other is that, while the notary procedure is allowed for couples with under-age children, the administrative procedure does not allow it (divorce by a registrar).

One of the requirements of the divorce by public notary is the mutual consent of the couple regard-ing the name that each of them will have after their separation. There are two possibilities: (1) they can keep the same name they used to have during the marriage or (2) they can choose the name they had before getting married. If they do not agree on the matter of their future last name, the public notary will dismiss their divorce request.

In the case of couples with underage children, ac-cording to our Civil Code, their agreement on sev-eral issues is mandatory. These issues are: the exer-cise of the parental authority by both of them, the children’s home after the divorce, the ways used for keeping the personal connections between the separated parent and his/her child, as well as the contribution of the parents at the costs of growth, education and professional training of the children.

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The absence of this agreement will also lead to the dis-missal of the divorce request.

Regarding the territorial competence of the notary, the consorts can choose between the notary from the place where they married, or from the place of their last common home. In my opinion, this is another ad-vantage of the notary procedure compared to the judi-cial one, as, in that case, the couple is bound to select a court in a certain order, as settled by the Civil Pro-cedure Code (Florian, 2011). After a period of thirty days since the couple expressed their will to divorce in front of a notary public, they have to come person-ally and reaffirm that they maintain their choice. This thirty days term is both mandatory and prohibitive (Gavrilescu, 2011), as, during this period, the mar-riage cannot end. The purpose of this period, in the law-makers’ view, is to allow the couple to reconsider their choice. This term is the best proof that the law-makers did not mean to minimise the importance of the family through these updates. Their only purpose was to adapt the laws to the mentality of the society and its new needs.

In my opinion, the law-makers have taken an inspired decision by introducing two new procedures of di-vorce, proven by the fact that more and more Roma-nians are choosing one of them when they decide to separate. The divorce before a notary is the best op-tion for two consorts who agree to end their marriage. The Romanian society needed an assembly of rules capable of responding to the current views on mar-riage and family matters in general. Therefore, I be-lieve that these new legal provisions on family matters are a step forward for the legislative process. I cannot agree with the opinion voiced in the doctrine which claims that overly permissive provisions could lead to the decline of the importance of the family. The ex-istence of multiple ways to end a marriage does not increase the number of divorces and, conversely, re-strictive divorce procedures will not determine people to be aware of the true value of family. For too many years the Romanian people have been the slaves of limited and obsolete laws. It is time to open our minds to the changes that have come to pass around us, and let them be reflected in our legal system.

By Trinca-Gavan Raluca Andreea

This article is powered by ELSA Cluj-Napoca.

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BRIEFING

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BRIEFING

VOL. 2 | ED. 2

Andreia is a third year stu-dent at Babes-Bolyai Univer-sity Law School, currently pur-suing a one-year ERASMUS exchange at University of Utre-cht. After being involved in sev-eral national and internation-al organisations and working as a paralegal in a Law Firm, she decided to join the Lawyr.it team because she believes that continuous self-improvement

is brought by new challenges. She believes that Lawyr.it will help Law students to find their next challenge and will help them expand their horizons.

Interested in International Law? Go study in the Netherlands!

The Netherlands is known to be the home of the In-ternational Law as it hosts the International Court of Justice, the International Criminal Court or the International Criminal Tribunal for former Yugo-slavia. Therefore, studying Law in the Netherlands represents a very appealing option for everybody who wishes to pursue a career in this field. All the academic dreams can come true in the Law School of one of their top Universities: UV Amsterdam Uni-versity, University of Amsterdam, University of Gro-ningen, Leiden University, Maastricht University, Radboud University Nijmegen, Erasmus University Rotterdam, Tilburg University, or Utrecht Universi-ty. All these Universities offer prestigious programs in International Law which are chosen every year by thousands of students from all over the world. So if you are interested in this field and you are wishing to study in an international environment, the Neth-erlands might be the perfect place.

Division of the academic year

One of the distinctive characteristics of the Dutch

educational system is the division of the academic year in quadmesters. Although universities are free to choose how they organise the academic term, most of them choose this option. The study pro-grams that are divided into four terms require the student to choose a minimum of two subjects per block. The advantage of this system is that it al-lows the student to focus on two subjects at once and to truly dive into their depths. Since the exams are scheduled at the end of the block, which lasts approximately two months, the student has to start studying and preparing for it from the first weeks. If the division into semesters offers the student more flexibility in terms of studying schedule, the quadmester system compels the student to work on a weekly basis from the beginning and continue in the same pace throughout the whole academic term.

Lectures and Seminars

Almost all the courses organise both lectures and seminars, only a few of them just lectures. Both are interactive and the professors and lecturers are al-ways trying to involve the students by asking them questions and encouraging them to form their own opinion starting from the views of well known acad-emicians in the field. During seminars, students are often required to prepare presentations and weekly assignments, to work in groups or in pairs to defend different points of view on various challenging top-ics. Very often, the course coordinators invite guest professors from other universities to hold the lec-tures for the particular subjects they are specialised in. All the content presented during a lecture is pro-vided in a digital format, therefore students are able to focus their whole attention on what is being pre-sented, making it easier for students to get actively involved by asking questions and making observa-tions during the lectures. At the end of each block, the course coordinators encourage the students to provide feedback on the content of the course, form of examination, and their performance.

Studying Law in the Netherlands

Assignments and Evaluation

The evaluation is different from subject to subject. The most popular option is the one involving one or more group or individual papers on subjects chosen by the students and a final exam, each weighting 50% of the final grade. There are course coordinators that organise moot courts instead of the written papers, but there are also professors who opt only for writ-ten exam. The written papers and the moot courts help the law student to develop more skills than the classic written exam, such as research, public speak-ing, legal writing and cooperation skills, which are all vital in any type of legal career. They are also much more interactive and dynamic than the classic written exam and encourage the students to discover more than what is taught during the lecture and go further than the compulsory literature. In addition, students are acquainted before graduation with writing, struc-turing and formatting academic papers, which will be essential for the ones who will want to pursue a career in the academia, not to mention that it is also a good exercise for their final thesis.

Grading system

The grading system is from 1 to 10. However, the standards are very high: if a student is very well pre-

pared for an assignment and fulfils all the require-ments, they will only score an 8. The 9 is reserved for the students who have done an outstanding job and exceeded the expectations and the requirements of the lecturer. The 10 is reserved only for the truly bril-liant students who show a high interest and true pas-sion for that particular subject and who possess more knowledge than the best students.

Student life

If you choose to study in the Netherlands you will find that it is impossible not to find an extra-curricular ac-tivity or hobby that suits your taste. From sororities and fraternities, to student associations with different profiles; from great libraries, museums and parks, to cosy coffee or tea houses and entertaining clubs, the Netherlands has something to offer to everybody. The Dutch people have a very rich culture which is very exciting to explore. Moreover, the Dutch are known for their openness and impeccable English and they will make you feel like home from the first day, wher-ever you are from.

By Andreia Moraru

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June

June, 9-20: Summer School: Women, Peace and Security. University of Leiden.

The courses will focus on the relevant international law in the matter, as well as workshops and field-trips to the International Criminal Court. Those who wish to participate are required to apply until May 1, 2014. The cost of the summer school is EUR 1050, and there is a limited number of scholarships available.

June 23 – July 4: Summer School on Interna-tional Criminal Law. University of Leiden.

The main topics will be core crimes, gender crimes, modes of liability, victims participation, and rights of the accused. There will be excursions to the Inter-national Criminal Court, as well a summer school moot court. The tuition fee for students is EUR 1250. The application deadline is May 1, 2014.

June, 29: A.U.K. Peace Building Post-Conflict Transformation and Development Program.

This program is a summer program concerned with conflict resolution and post-conflict reconstruction in the diplomatic, military and civilianfields, focus-ing on the Balkans’ extended region.

June, 30: Salzburg Summer School.

The programme’s aim to improve the students’ basic knowledge of European private law systems through intensive training (lectures, special cours-es, workshops) provided by renowned scholars and practitioners. The programme will focus on a general introduction to legal systems and the law of property, as well as the rules which govern the breach of contract in countries such as: Germany, France, Great Britain, The Netherlands, Romania, Russia, Spain, Turkey and many more. The applica-tion deadline is April 30, 2014.

June 30 – July 25: Columbia Summer Program.

Leiden University in collaboration with Amsterdam University and Columbia University, New York. The main courses will be corporate law, constitutional law, tax law, torts, deals, etc. The EUR 2950 partici-pation fee covers tuition, accommodation, study materials for the courses and all administrative ex-penses, including those of the extracurricular activ-ities. The application deadline is May 1, 2014.

July

July 7-11: Summer School on International Children’s Rights. University of Leiden.

The courses will focus on children’s rights from dif-ferent perspectives: international criminal law, juve-nile justice, protection, and participation in armed conflicts. There will be a seminar held by UNICEF & Defence for Children International. The tuition fee is EUR 875. The application deadline is May 1, 2014.

July, 07 - 25: Paris Summer University on Con-tinental Law.

The Summer University of Continental law is a unique opportunity to deepen the core subjects of civil law in a prestigious environment alongside leading international teachers, specialists in their field. The school provides a 60 hour course in Eng-

Summer Opportunities for Law Students

BRIEFING

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lish or French. Registration is open until April 30, 2014.

July, 12-20: Budapest Global Minority Rights Summer School.

The Tom Lantos Institute (TLI) and the National University of Public Service (NUPS), and the Mid-dlesex University (MU), London, with the support of the Ministry of Foreign Affairs of Hungary, are organising their second international Summer School on Minority Rights. Their focus is on civil society, political participation, and minority rights. Application deadline: May 1, 2014.

July 14-18: Summer School on Human Rights and Transnational Justice. University of Leiden.

The main topics will be related to the complementa-rity, legacy, outreach between the transnational jus-tice, and the international courts and tribunals. The tuition fee for students is EUR 875. The application deadline is May 1, 2014.

August

August, 03 – 10: ELSA Summer Law School on WTO.

ELSA Cluj-Napoca is organizing a summer school focused on the World Trade Organization (WTO). Participants will have the chance to improve their knowledge in international trade law and an oppor-tunity to enlarge their professional network. Appli-cation deadline: April 28, 2014.

August 3 – 15: Salzburg Summer Law School on International Criminal Law, Humanitar-ian Law, and Human Rights Law.

The school will focus on the overview of the First World War centenary and its legacy. The participa-tion fee is EUR 750. In order to apply, students are required to fill in an online form, and to submit a CV and a letter of intent until May 9.

August, 07 – 14: ELSA Sarajevo Summer Law School – Media Law.

There are no eligibility conditions, but costs differ based on membership in ELSA, the country of ori-gin as well as whether the participant is a student or not. Favoured Countries: Albania, Azerbaijan, Bos-nia & Herzegovina, Bulgaria, Georgia, Kazakhstan, Latvia, Montenegro, Rep. of Macedonia, Romania, Serbia, Turkey, Ukraine

August 25 – September 13: Summer School on German Law and German Legal Language.

The summer school is open to those who want to study at a German University, as either an ERAMUS or an L.L.M. student. The main courses are: German Legal Language, German Private Law, and German Constitutional Law.

By Raluca Maxim and Dan Morosan

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REFLECTIONS

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REFLECTIONS

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Referendum is a way of di-rect decision-making through which citizens express their opinion by voting, usually on the matter of accepting or re-jecting a proposal of a legal act (e.g. Constitution or an or-dinary law) or a political deci-sion. As one of the most demo-cratic tools, it provides citizens the opportunity to express their opinion directly. Usually, the electorate can choose between

two options: either accept the proposal or reject it. In some countries, there might also be referen-dums which provide multiple choices. Through this instrument, people participate in decision-making and, this way, are kept engaged in democracy mat-ters. It is also a way of giving them a voice on topics of their interest.

Considered to be in general an important tool in ex-ercising the democratic rights, there are also some who criticise it, claiming it is a way of undermining the role of elected representatives. Moreover, using the referendum, citizen’s representatives can avoid tackling sensitive issues and place decision-making on unpopular topics in the hands of the people. Some of them often are misinformed or not at all informed and can make ill decisions on serious and complex matters.

Referendum is a simple and direct way of decision-making, since there are usually two potential an-swers given to the asked question. Even though sim-ple alternative answers may be suitable for simple questions, very often more complex topics cannot be satisfactorily addressed by this method. Depending on how the question is formulated and on the con-text of the referendum, it can be used to manipulate the electorate. Another downside is the high cost,

as referendums are generally a significant financial expense. This, together with a low voter turnout, might question their relevance and impact.

A recently held referendum on the status of Crimea raised many tensions in already heated situation in Ukraine. The Venice Commission did not recognise it as lawful and the European Union and USA are claiming it to be illegal. Another referendum that caused criticism was Switzerland’s 2009 referendum on banning the construction of new minarets, initi-ated by a group of people mainly from right-orient-ed Swiss People’s Party and the Federal Democratic Union of Switzerland, that questioned human rights and religious freedom.

In light of those events – could the referendum be considered a rather negative instrument? Has the people’s direct decision-making power become just a marionette for expressing the interests of smaller, but influential groups?

To analyse these questions, the Croatian situation could be highly relevant. One of the most important and positive events in modern day Croatia was the independence referendum held on May 19, 1991, where 93,94% of the Croatians decided in favour of Croatia’s independence from former Yugoslavia. On a second referendum, Croatians decided over the membership in the European Union, with 66,27% of people voting in favour of joining the European Union. More recently, a lot of sparks flew from a controversial referendum where citizens had to de-cide whether the Constitution should include the definition of ‘marriage’ as a union between a man and a woman. At first glance, it may not seem con-troversial, but with 65,87% of votes in favour of that definition, it prevented same-sex marriages. The petition that led to referendum was initiated by the organisation ‘In the Name of the Family’. While the opponents of the referendum said that the referen-dum was a way of repressing the rights of homo-

Referendum - the good, the bad and the very ugly

sexual minorities, the other side claimed they were protecting traditional values of marriage. Irrespective of their arguments, it cannot be denied that this ref-erendum, costing approximately 6 million Euros, was a big financial outlay for Croatia, raising legitimate questions about its necessity, while other priorities were still unresolved.

People’s decision-making took a swing over the last months with petitioners demanding yet another ref-erendum in Croatia. This time it was regarding offi-cial usage of languages of minorities besides Croatian in the local government, civil service and judiciary, if the percentage of minorities was at least 50%. The de-mand for this referendum had a larger and more seri-ous background: (1) the Serbo-Croatian war that took place during the ‘90s, which was still causing tension between the two nations, especially in Vukovar, a city in Croatia severely damaged during the war and (2) people not wanting Serbian Cyrillic script as another official language. Again, people were divided in two sides discussing the legitimacy of such proposal. Even though minority rights were protected within the Constitution (their freedom to express their national affiliation and to preserve their cultural autonomy - Article 15, Constitution of Republic of Croatia), op-ponents of the referendum were still fearing a poten-tial repression of the rights of minorities.

The same argument was invoked by some politi-cians, who aggressively opposed the idea of referen-dum, sustaining that it must be stopped and that they would not let it happen. All this happened in spite of the 650.000 votes in petition for referendum. How-ever, this was not a question whether these minorities should be taken away their rights, but rather a proce-dural proposal, concerning the raise of the minimum number of people needed to accept another language as official. Under these circumstances, by opposing the referendum, don’t these politicians actually deny the rights of people to express their opinions in a law-ful way through direct democracy, rather than fight for minorities’ rights as they claim?

One thing is clear: with simple ‘yes or no’ answers, ref-erendums can tear people in two directions, causing

many tensions that reflect on a society in a negative way. Quite often, poorly informed people, led by pres-sure groups and potentially influenced by strong me-dia, make decisions that change some people’s lives.

However, there is no doubt that referendums are need-ed and have positive impact on people’s participation in politics, especially when their interests are at stake. It changes people’s positions from passive citizens to participants willing to conduct public affairs, gives them a chance to voice their opinion regarding ma-jor political issues, and helps them keep in touch with the government, despite the risk of politicians using this instrument as a direction for their own politics to improve their relations with the electorate. But for a true participation it is not enough to circle ‘yes’ or ‘no’ a couple of times in a lifetime. People should inform and educate themselves to form an opinion that truly reflects who they are and what they think about so-ciety as a whole and its best interest before voting on policies that will have strong effect not just on other individuals, but on society as a whole.

The upcoming Scottish referendum on independence, taking place this year, might just prove to be another relevant example to evidentiate all these aspects. How-ever, one thing is clear: through referendums, public opinion changes history.

By Stella Turnsek

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REFLECTIONS

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Defined as the lawful inflic-tion of death by the state as punishment for committing crimes, the death penalty, also known as capital punishment, may seem like an outdated, bar-baric practice, especially in the context of the prevalence of hu-man rights protection. In this article, I present various views on the use of capital punish-ment throughout history, as

well as an analysis of its efficiency.

Legal origins

Originally, capital punishment represented the ap-plication of the law of retaliation, or what the An-cient Romans called lex talionis. As an example, in the Code of Hammurabi, adopted by the sixth Baby-lonian king about 1780 BC, it was primarily used to punish crimes such as false testimony, disrup-tion of justice, and false accusation, with the pur-pose of ensuring the sound application of the law and the good functioning of the early Babylonian legal system. Utilising the principle of ‘an eye for an eye‘, capital punishment was also given for any kind of action that resulted in a person’s death or caused a life threatening situation. In addition, it was also used against thieves, fraudulent sale, disorderly con-duct, adultery, and seduction (Johns, 1903).

In 621 BC, Draco, replacing the previous tradition of oral law of Ancient Greece, laid down the first written constitution of Athens, most of which is now lost. Later to be repealed by Solon, the Draco-nian laws were known for their excessive harshness. Draco considered that even lesser crimes warrant-ed the death punishment, and that there was none greater for the more serious offences (Stewart and Long, 1894).

Humane executions?

Ranging from stoning to scaphism, Ancient and Medieval execution methods could be unbeliev-ably cruel. Hanging was most used, and, even then, certain steps had to be taken in order to ensure the quickest, most painless death possible for the of-fender. As attitudes towards the death penalty sof-tened in the late 19th century, most Western states started to orient towards more humane methods of execution.

In 1889, in the state of New York, USA, the first elec-tric chair was built, and first used a year later, in or-der to execute axe murderer William Kemler. It soon became the primary method of execution in the US, being adopted by half of the federate states in the beginning of the 20th century. Today, because of the high risk of botching and because it was deemed too painful and, thus, too cruel to be considered legal in accordance with the US Constitution, it is only used as a secondary method, after the lethal injection.

Originally a compound of three different chemi-cals, an anesthetic and two different paralysers, the lethal injection was first introduced in the United States through Oklahoma Statute Title 22, Section 1014(A) in 1977, and was subsequently adopted by all but one of the states. It is still in use in the USA, China, Saudi Arabia, and an array of other states. However, the humanity of this method of execution has been contested. Some executions have lasted more than 20 minutes, and later autopsies revealed chemical burns on the bodies of the executed. In 2006, in USA Supreme Court case Hill v. McDon-ough, Clarence Hill claimed that the use of lethal injection violated the Eighth Amendment, which bans cruel and unusual punishments. The Supreme Court judges unanimously decided in favour of Hill, but did not overturn his death sentence.

Today, it is harder and harder to obtain lethal injec-tion drugs, as numerous European companies re-

Capital Punishment - A Rapid Decline

fuse to sell them (Business Week, 2011).

Capital punishment today

Nowadays, most nations, along with several inter-national organisations, have adopted a strong stance against death penalty. Adopted on April 28, 1983 in Strasbourg, France, the Sixth Protocol to the Euro-pean Convention of Human Rights has been signed and ratified by all Council of Europe members, ex-cept Russia. As a result, the signatory states have to remove the death sentence from their internal legisla-tion, without reserves or derogations, except for a set of criminal acts committed during wartime (Chiriță, 2008).

In 2007, the United Nations General Assembly adopt-ed Resolution 62/149, calling for a worldwide morato-rium on executions, by a majority of 104 UN member states in favour, 54 countries against and 29 absten-tions. Resolution 62/149, considered ground break-ing at the time, is not legally binding, but it indicates a significant worldwide souring of attitudes towards capital punishment. This stance was reaffirmed in 2008 and, for a second time, in 2010, the number of countries in favour rising each time.

In 2013, 140 countries have abolished executions in law or in practice. Only 58 worldwide retain the death penalty as a means of punishing criminals, including China, the United States of America (the only country in the American continents to still have capital pun-ishment), Iran, Iraq, Saudi Arabia, Sudan, and Yemen. All countries but one applied at least one death sen-tence, totalising a number of almost 2000. However, only twenty-two have actually carried out executions, to a sum of over 770 people, not counting those that have happened in China, as those numbers are being kept secret (Amnesty International, 2013).

An inefficient way of preventing criminality

The death penalty, like most legal punishments, oper-ates as both a deterrent to future crimes and an actual retributive measure. The latter function’s purpose is obvious, along with its efficiency. There are no other punishments as harsh as death, no matter the way it is employed.

Conversely, its use as a deterrent was much discussed among law scholars, criminologists, behaviour spe-cialists, and politicians. An early study claimed that for every execution, at least eight lives were saved (Ehrlich, 1975, cited in Fagan, 2006). Newer ones, such as the one done in 2002 by economist Paul H. Rubin, assert the fact that for each death sentence that was carried out, an approximate number of 18 homi-cides were averted (Rubin, 2002, cited in Radelet and Lacock, 2009). However, these studies were heavily criticised by peers, as they failed to acknowledge non-capital punishments as a homicide deterrent.

But how much does the threat of execution actually influence people from choosing between criminal and non-criminal behaviour? A percentage of 88.2 of criminologists believe that capital punishment does not discourage the murder rate in states whose legis-lations contain such provisions (Radelet and Lacock, 2009). In addition, statistics have shown that there is little difference in the US between the homicide rate of the states that use capital punishment and those that do not. In some cases, the homicide rate is even lower in abolitionist states (FBI, 2013).

Moreover, the management of the death penalty (liti-gation, incarceration, and execution itself) leads to costs that can be even five times higher than the entire cost of incarceration for a criminal sentenced to life without chance of parole (Fagan, 2006). Death sen-tence trials take longer hours, cost much more money, and use more manpower than any life-without-parole trial, and all of these costs have to be endured by the budgets of local governments.

Conclusion

Once a staple of most penal systems, the use of capital punishment has faced a steady decline in recent his-tory. Most democratic states have abolished it, at least in practice if not through legislative actions. Taking all these things into consideration, especially the fact that legal mistakes are easy to make and almost impossible to amend, the diminishing of death penalties can only be seen as being positive.

By Ana Pintea

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PROFESSIONALSPOTLIGHT

Lect. univ. dr. Daniel Niţu is in the Criminal Sci-ences teaching staff of Babeș-Bolyai University, be-ing a teaching assistant for both second year and masters degree law students. He has a Ph.D. in Criminal Law since 2012 and was a member on sev-eral committees for the Ministry of Justice and the Superior Council of Magistracy (CSM). He is also a member of Cluj Bar.

Lawyr.it: Why did you choose a legal career? Was there a deciding moment for your decision, or was it based on circumstance?

D.N.: Honestly, my father finished law school, an year earlier than professor Chirica, and also my sis-ter finished law school, so I have family in the legal field. During high school, I could not see myself do-ing anything else. I graduated a profile of mathemat-ics, having eleven hours of mathematics every week. Most of my class mates oriented towards math, physics and so on. I was the only one who knew that I was not going to pursue a career in this field. I thought that law school is promising, especially after some of my teachers noticed my good memory and suggested to follow this path. So I said: ‘Let’s give it a try!’. I can’t say that there was a deciding moment for my decision.

Lawyr.it: How would you describe the current situ-ation of Romanian Criminal Law, from both a teacher’s and practitioner’s perspective?

D.N.: As a teacher, I notice that many students act childish. A reason for this observation might be the growing age gap between me and my students, keep-ing in mind that I get older every year and gather experience, while the generations change. Moreo-ver, many of them have deficiencies that clearly have their origins in school. Education is poorly fund-ed. Teachers, up to high school, are not motivated enough, so obviously the only valuable teachers that remain in the system are the ones that do it with passion. My mother was a high school teacher and

she just retired. I had a class mate in high school that was constantly participating at the mathemat-ics national contests and she now is a high school teacher, but these examples are very rare. As a re-sult, the general level of preparation is low among students. Adding to this problem, I notice a lack of effort and labor consciousness. Plus, students have exaggerated expectations. During college, grades are pumped for the statistics. Unfortunately, it is an application of the principle ‘everybody is doing it, so why can’t we?’, just like the Cranberries album.

After graduation, no one else cares, and the student is no longer ‘covered in fluff ’. Students have to see that in order to succeed, you need to invest a lot of effort, especially in the first years of practice when the workload is high and the pay is low. These false expectations are a problem.

As a practitioner, I can say that there is a concern-ing level of disrespect between professions (judges-prosecutors-lawyers), and this is contrary to a legal system that should function normally. On the other hand, I cannot say that the general preparation level is low. Both magistrates who are instructed at the National Institute and lawyers who have to prepare for a harder exam every year, tend to be better pre-pared. Another problem that can be easily noticed is the great workload that magistrates have to deal with, and this makes it harder for them to focus on the human component in each case.

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Interview: Asist. univ. dr. Daniel Nitu Assistant Professor - Babes-Bolyai University

28

“As a practitioner, I can say that there is a concerning level

of disrespect between profes-sions (judges-prosecutors-law-yers), and this is contrary to a legal system that should func-

tion normally.”

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Lawyr.it: How do you think that Romanian legal ed-ucation can be improved?

D.N. This is a difficult question. We suffer from graphomania, we write and we do not read. We should make time each day to retreat and read. I went to the li-brary today and read for two hours, it was quiet. ‘Feels like heaven’. College is a time when all students should read like it is their full-time job, eight hours a day, each one in their own way. Teachers should also empower and encourage students somehow to read. The teach-ing staff should realise that the main character in the

university is the student. Without him, all this rook-ery would be only an administrative construction. There are voices that say that legal education should focus more on the practical component, but this does not mean that we should teach students how to draft different procedural documents. We should be more involved in the life of the institution of Law School and be faithful to it. Again, talking about the fact that the student needs to read more, he or she should also receive useful and valuable information sources. In the Romanian legal education, there is a book infla-tion, and this can easily be seen with the new Civil and Criminal Codes that entered into force.

Lawyr.it: We found out that, at this moment, you are working with professor Florin Streteanu on a new study of Criminal Law concerning The New Criminal Code. When should we expect it to come out?

D.N.: At best, the publisher will receive our work at the beginning of June, that if we manage to mobilise. We do not want to sign something done superficially. Anyway, if the student was used to professor Strete-anu’s old treaty, the new study will not be the same. It

will have around four hundred pages that will cover the whole general regulations from The New Crimi-nal Code. The new study will comment the articles, with a special focus on the new provisions, so that the institutions and the possible problematic issues to be covered.

Lawyr.it: What can you tell us about the Law School Hexagon competition involving the major Law Schools in Romania and the results Cluj has at crimi-nal Law?

D.N.: Regarding criminal Law, we won six times in the past eight years. But the students deserve all the credit. Every participant was very well prepared and all of them now are well accomplished career-wise. They were also ambitious and, what I consider of es-sential importance, modest. They did not consider themselves champions before actually winning. The fact that they won cannot be considered luck, on the other hand, you cannot expect to always win. There is an important difference between an exam and a com-petition. When taking an exam, if the student is well prepared, he usually gets a high grade. On the con-trary, when taking part into a competition, no matter how well prepared the student is, his competitors can be even better prepared, so ending up last is always a possibility.

Lawyr.it: Bearing in mind that you took the respon-sibility of preparing the Cluj students, do you believe that there is a secret to success?

D.N.: There is no such thing, and the fact that I am responsible for their preparation does not take away their credit. My only job is to organise them and tell them how to prepare, and my experience here comes at handy. As a student, I took part in the competition for three years, and as a teacher since 2006, therefore I know what this competition implies. I tell my students not to write more than it is required at each task and try not to write less. As I said before, the students de-serve all the credit.

Lawyr.it: You inspire appreciation among students, but there are also some voices that claim that you sometimes have a critical tone. Did you know this as-pect and do you have a message for them?

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“The teaching staff should re-alise that the main character

in the university is the student. Without him, all this rookery would be only an administra-

tive construction.”

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D.N.: I admit it. I have high expectations from eve-ryone, but especially from myself. I am not pleased that there are some aspects and goals that I am behind with, and I try to implement this mentality among students. I give my students at the end of each semes-ter an anonymous test in which I ask them to give me feedback regarding my job as a teacher, and they did not fail to remind me that I sometimes act like a high school class master. This is why I asked them to stop me when I have these kind of outbursts. At the end of the day, if they do not read, it is their problem, and the exam will show the results. I use sarcasm as a method of encouragement, this is something I learned from my parents. When I notice spelling errors, I always suggest to invest in spelling books, and some people get offended. Therefore, my message for them is to ask me to stop when they feel I cross the line.

Lawyr.it: Can you share with us a funny experience that you encountered in practice?

D.N.: Criminal Law usually deals with man’s freedom, therefore funny is not a word that could be often used to describe situations in practice. But I do remember one event that I think could fit the requirement. I re-member I was once in court and the judge was an ex colleague of mine. It was a simple case with three or four people that were already convicted of other seven thousand crimes and they were admitting everything, so no one in the court was paying attention, everyone was reading their own files. So, the judge, after asking

the defendants if they admit everything, asked them to describe what happened ‘that night’. One of them started describing the events until the judge stopped

him and said: ’rewind please, I can’t believe this!’. From that point on, everyone started paying attention. Ba-sically, what this guy did was that he climbed on the exterior of this block of flats up to the third floor be-cause he saw the window half-open. Once he entered, he noticed that the apartment was in construction so

there was nothing to steal. Except the central heating system. So he tied everything to his back with ropes and went back down the window and using the exte-rior of the building again to get out. Needless to say that the building had stairs.

Lawyr.it: And our last question: what advice would you give to law students?

D.N.: I would advise them to follow their dream. If they chose Law School, it means they wanted some-thing. Some want to become magistrates, some law-yers and so on. It is not easy at all, but if they get or-ganised and put their mind to it, nothing can stop them. Despite what media sometimes claims, these exams are correct. It is true, they are complicated and scary and failures might occur. I remember one talk with a student after a Hexagon that took place in Iasi and how he worried about the following exam in Au-gust, he wanted to become a magistrate. He failed in August, but he took it again and now he is a prosecu-tor in Cluj. I see him all the time, he is very well pre-pared and friends of mine tell me he is always doing his job extremely well. It is always a pride to see such examples of students that worked hard and managed to follow their dreams.

By Alexandru Coras

“I have high expectations from everyone, but especially from myself. I am not pleased that

there are some aspects and goals that I am behind with,

and I try to implement this mentality among students.”

“It is always a pride to see such examples of students that worked hard and managed to

follow their dreams.”

Eugen Constantin Iordăchescu is Senior Manag-ing Partner at LLP Iordăchescu & Associates. After completing his Bachelor’s Degree at the Faculty of Law, Babeș – Bolyai University, Mr. Iordăchescu later became a prosecutor at the Prosecutor’s Of-fice at the Court of Appeal Cluj, as well as a co-ordinating financial prosecutor at the Chamber of Accounts Cluj. In addition, he has experience in banking and financial law acquired while be-ing manager of the Legal Affairs Directorate of the Ministry of Public Finances. In recent years, he has become a lawyer specialised in criminal and criminal procedure law, banking and finan-cial law, fields in which he is widely reputed to be highly skilled. He is also Chairman of the Insur-ance Directorate of Lawyers - Cluj Branch.

Lawyr.it: Firstly, we would like to know a bit more about you. What determined you to choose a legal career?

E. C. I.: It is a long story; I made this choice con-sidering the fact that, at the moment of my gradu-ation from high school, my generation had an in-clination towards other careers, mainly in medical, mathematical and physical sciences. Law school was a potential target provided you had a certain incli-

nation towards social sciences, particularly towards history and philosophy. The‘70s represented a pe-riod of opening to the West. There was also a strong influence coming from youth movements, such as

the formidable movement of the hippies, the rock-ers. This paradigm shift brought along my choice for a legal career.

Lawyr.it: What was the admission process like when you were a student?

E. C. I.: At that time, getting admitted to law school was difficult as there were numerous filters. There was a file-based selection: it had to be impeccable in order for you to hope that there was the possibility to get to the next step, the admission exam. There were very few law schools, with a limited number of students. Cluj Napoca and Iași had, if I am not mis-taken, 70 places, which were supplemented for for-eign exchange students. There were approximately 100 students per year, 30 of them being from Middle Eastern or African countries. Bucharest had about 120 places, while Sibiu had 30.

Even after the initial selection, there were approxi-mately 3000 candidates on 70 available spots. Be-tween 1975 and 1977, there were 30 candidates per spot. I was unsuccessful in 1975 and opted for the mandatory military service, but, having the strong will to enter law school, I sat the admission exam once again in 1977 and I was the 20th admitted out of 3000 candidates, which was not bad at all.

Lawyr.it: Your specialty is Criminal Law. Why did you choose this direction?

E. C. I.: The temptation in trying to change some aspects in our society was very strong, and I thought that a legal career in magistracy was the most ap-propriate choice for that. Things could not change in a system built in a certain manner, but the need to counteract the criminal phenomenon has and will always exist. As a prosecutor at that time, I was deal-ing with the same age-old issues faced by the soci-ety: criminal acts which needed to be sanctioned, which were dangerous for the members of the so-ciety. I opted for forensics and then I came across my first professional satisfactions. I was confronted

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Interview: Eugen Constantin IordachescuSenior Managing Partner at LLP Iordachescu & Associates

32

“The temptation in trying to change some aspects in our

society was very strong, and I thought that a legal career in

magistracy was the most appro-priate choice for that.”

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with the most serious criminal acts, offences against life, which, eventually, came to reflect one’s value as a professional, considering the fact that, most of the time, one had to uncover the criminal starting with nothing. We were trying to identify his/her persona and the legal measures against him/her, we were try-ing to rebuild that state of imperative balance. From my point of view, the work of a prosecutor is full of personal satisfactions.

Lawyr.it: Who or what shaped you most as a profes-sional?

E. C. I.: My formation is humanistic par excellence. Few things had an impact on my formation as a pro-fessional and as a man. The contact with the Age of Enlightenment was especially significant. The French Revolution - both its good and bad aspects - marked my whole life.

Lawyr.it: Concerning your choice of career, do you see a link between the ideas promoted by the Enlight-enment – for instance, freedom of thought – and the situation you were in before the 1989 Revolution?

E. C. I.: This aspect was fundamental, because the con-cept of ‘Liberté, Egalité, Fraternité’ has guided me a lot so far and still is. The human being is the supreme value. This is how the idea of freedom, of life being of utmost importance is born. There is a link between the significant historical period I have lived through my teenage years to youth and my professional choice. As a result, I relate my career to the idea of freedom, of respect for values.

Lawyr.it: What defines you as a lawyer?

E. C. I.: Being a lawyer is not my vocation. If you mean talent or vocation, clearly, my vocation lies in a dif-ferent domain. But if I chose to become a lawyer, it means that I have to do it as good as I can – me, my colleagues – respecting the same values, which I con-sider to be eternal.

Lawyr.it: Which are the main challenges that arise from being a Managing Partner?

E. C. I.: Our law firm is built around the need to respect the principles mentioned before. All our collaborators and associates have agreed to comply with these prin-

ciples, so there is no strife regarding the functioning and organisation of the firm. There is always room for improvement, things which need to be rethought, re-evaluated, improved, but, as long as all of this is based on principles, there are enough solutions.

This is a very difficult job, as most jobs are, provided you want to do them well. It requires sacrifices and additional efforts, based on your ultimate goal. The problems do not lie inside our firm, they appear in our relationship with third parties – clients, the magistra-cy, the system that we are a part of. Our biggest regret is that our job is, unfortunately, not where it should be. Many people, law scholars, have noticed that. There is a groundless negative perception induced towards the lawyer’s profession. Seemingly, there are strong voices which criticise the decision-makers of our profession for having failed to protect it against unjust percep-tions.

Lawyr.it: In that sense, do you believe that the law-yer’s profession is slightly disadvantaged compared to other legal professions?

E. C. I.: Not necessarily disadvantaged. An unjustified anathema has been cast over this profession. That at-titude is reflected by the inappropriate way in which many of our colleagues, mostly the very young ones, are being treated by the magistrates. Unfortunately, the treatment applied to lawyers by the magistrates is

being induced including by leaders at the highest level in our justice system.

Lawyr.it: What would be the stake in inducing such a perspective?

E. C. I.: Stakes are hard to define, but they are visible for the public opinion, through the results brought by the acts of justice. Unfortunately, ‘televised jus-tice’ and the constant political use of the magistracy’s

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“We are not in a transition, we are in the process of building

a better society, we wish to be treated as equals by other socie-

ties.”

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power have harmed the act of justice, as well as the legal profession we represent. It is, nonetheless, true

that many lawyers, out of their desire to win money and trials, have strayed from fundamental principles. The issue is spread throughout the system, which is why we criticise the governing body of our profes-sion. The Bar Union has failed to find the best way to protect our profession from the turmoil present in the Romanian society. There is, however, the hope that, in years, things will improve. Regrettably, we will not live enough to see it.

Lawyr.it: Where does the hope stem from?

E. C. I.: It stems from my everyday life and from the people I work with. We know exactly what we have built, that is, a firm based on solid principles. I believe there is hope.

Lawyr.it: Would you say that our society is in transi-tion and, at some point, the values brought by our recent opening to the West will become inherent to it?

E. C. I.: We are not in a transition, we are in the pro-cess of building a better society, we wish to be treat-ed as equals by other societies. We are aware that we need to solve economic and social problems and that, throughout this construction, permanently, day by day, hour by hour, many things have to be achieved. I would not call it a transition, because a transition implies that we are done with something, we are on a deadline and we begin something else, whereas, this is a permanent construction, which will evolve accord-ing to the ever-changing aspirations and requirements of the Romanian people. People evolve, their require-ments multiply and, while the foundation remains stable, the collateral aspects are always modifying. We know what we want to build: a better society, in which the individual becomes more significant. I believe that the Romanian society is built just as other societies are. At the moment, there are lapses, indeed, but at

least we are building something. If it is a lot and badly, little and well, chaotically or organized, that is another question to address.

Lawyr.it: Would you say the educational system in law schools is missing something highly important?

E. C. I.: Nothing is perfect and that includes law schools and no one knows that better than those belonging to the system. However, no matter how the system func-tions, real value always finds a way to flourish. Obvi-ously, some values may have to work harder than the others. I believe that, at faculty level, there is definitely room for improvement. The firm supports the BBU Law School as much as it can. To us, the BBU is a sym-bol and all its achievements rejoice us. The amount of support we offer to the faculty is probably best reflect-ed by the results achieved by the students. We care for them and we are proud of them. Most of the lawyers at our firm have graduated from this faculty. Moreover, we have a strong academic component in the firm. As a consequence, it is vital to us that the faculty func-tions at the highest standards.

Lawyr.it: If you were to give advice to law students, which personal qualities should they focus on im-proving?

E. C. I.: Their options should be based on principles, they should be stubborn, perseverant, they should uphold and never abandon values, they should never forget that they are human beings and fight for what they think freedom is. An actress whom I appreciate greatly, Olga Tudorache, was asked during an inter-view, somewhere in the ‘70s: ‘What do you like about the world of today?’ and she answered ‘I like people’. The journalist asked why and she said ‘Because they are good and beautiful’; then, he asked what was it that she did not like about the world of today and she said ‘Well, people’. Puzzled, the journalist asked how come she liked and disliked people at the same time. She said ‘It is easy, people can be better and more beauti-ful’. Students need to realise that they are not only bio-logical beings, because firstly they are human beings. If they are aware of that, if they know exactly what they want to achieve, if they have a system of values, then they have the premise of a successful evolution.

By Raluca Alexandra Maxim

“Students need to realise that they are not only biological be-ings, because firstly they are human beings.”

Mrs Leonie van Lent is an assistant professor at the Willem Pompe Institute for Criminal Law of the Faculty of Law, Utrecht University. Her PhD-thesis covered the topic of the principle of public-ity in Dutch criminal procedure. Her field of re-search and lectures is Dutch criminal procedure and comparative criminal procedure.

Lawyr.it: What made you choose a legal career?

L.L.: Law is everywhere; law is very much connected to societal problems and interests. Law in the end re-fers to justice – an intriguing concept which can be studied, discussed and practiced in many ways. Law is therefore one of the most encompassing fields of study – of course you need to know about the law itself, but you can and in fact must study also a bit of philosophy, sociology, political sciences.

Lawyr.it: When did you become interested in crim-inal law and why did you choose an academic ca-reer in this field?

L.L.: I became interested in criminal law when stud-ying law. The aspects that I mentioned before, about the law being closely linked to societal interests and the idea of justice are most prominent in the field of criminal law.

At the end of my studies, I came to the conclusion that I enjoyed doing legal research very much. That is why I agreed to take on a position as PhD, and subsequently as lecturer/researcher.

Lawyr.it: What are the positive and negative as-pects of working with young students?

L.L.: Positive aspects: it is great to see that students develop further understanding, gain more insight during the course and their studies. It is also partic-ularly nice to support students writing their master thesis, because then you are really in a position to help students to perform to the best of their abili-ties. There are hardly any negative aspects, though it is not very inspiring to encounter students during the lectures who are not interested in studying, or in law.

Lawyr.it: What do you think about women’s posi-tion in criminal law? Have you ever felt that it was harder for you because you are a woman?

L.L.: Oh yes. I cannot speak for myself when judg-ing women’s position in the practice of criminal law, but I do hear the complaints of friends. As to the university, I personally have experienced the limita-tions in career opportunities and research possibili-ties because of not being able to be available around the clock because of having a family life with small children.

Lawyr.it: Why do you think projects of Compara-tive legal research are important? Would you en-courage students to get involved in them?

L.L.: They are important for broadening your per-spective as to what law is and how it works, thereby also providing a better understanding of your own legal system. It makes you more attentive and sensi-tive towards other perspectives and cultures. They are also practically very relevant in our times, when legal issues are very rarely national legal issues only. Without comparative research no real harmoniza-

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Interview: Leonie van Lent Assistant Professor - Utrecht University

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“I personally have experienced the limitations in career oppor-tunities and research possibili-

ties because of not being able to be available around the clock

because of having a family life with small children.”

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tion on e.g. the EU level and implementation of su-pranational directions can be achieved.

Lawyr.it: If you would have to choose to practice law in an inquisitorial or an adversarial system, which one would you choose and why?

L.L.: That is a difficult question… That depends on the position. Being a defence counsel, an adversarial system gives you more opportunities and probably more interesting work. Being a public prosecutor seems much more interesting in an inquisitorial system; the position of a judge is interesting in both systems.

Lawyr.it: Had you not have chosen an academic career in criminal law, what else you would have done?

L.L.: It would either have been an academic career

in another discipline or a career in criminal legisla-tion and policy, or maybe practice law as a judge.

Lawyr.it: What advice would you give to law stu-dents?

L.L.: To take your studies seriously, but to also take yourself seriously and to take the path (study, field, job) that interests you most.

By Andreia-Gemma Moraru

“Without comparative research no real harmonization on e.g. the EU level and implementa-

tion of supranational directions can be achieved.”

QUESTION OF THE ISSUE

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Question of the Issue

“These are clearly challenging times for lawyers, particularly busi-ness lawyers. The environment is competitive and the require-ment for overall excellence has never been greater. I think the most valuable lawyering skill, though, is probably one of the most traditional: the ability to effectively communicate in writing. I would put a special emphasis on the word “effectively”. Like it or not, a good part of our work product is now viewed on mobile de-vices and incorporated into the business decision making process at a very rapid pace. Practical recommendations must be stated early in the text, reasoning must be short and to the point, and everything must be tuned to the intended audience. These days if you try to hide behind your prose you will likely just be ignored.”

Ronald B. Given - Managing Partner - Zagreb Branch Wolf Theiss

“I believe a lawyer’s success is conditioned by a set of five essential qualities: perseverance, intelligence, ambition, spontaneity and honesty. I consider all of them equally important: lacking one of them considerably diminishes the value of the others. Also, these qualities are essential to comply with the high standards of the legal market. Moreover, expectations from fresh graduates and youngest lawyers are even tougher at the moment, given the highly competitive and rapidly evolving market, as well as the recent changes regarding the Bar admission exams. Without any of these qualities, being successful becomes a more than difficult goal to attain.”

Cristian Băcanu - Off Counsel MDM Legal – Bucharest

What do you consider to be the most valuable quality or skill a lawyer should have to acquire success?

Lawyr.it is presenting a new section in the magazine: Question of the Issue.

For this edition, we tried to find out from lawyers all over CEE what they consider to be the most valu-able quality or skill a lawyer should have in order to become successful in doing his job, and why.

We invite you to read our guests’ perspective on the matter, to whom we are truly thankful for their contributions.

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“At DLA Piper we are first and foremost committed to growing our firm organically, by developing the skills and potential of young talents we invite to cooperate with us at university level and ena-bling them to continue their career path within the firm.

As such, we are constantly on the lookout for engaged, solution oriented candidates, whom - besides a strong command of Eng-lish - are also open to challenging experiences, constructive rela-tionships and excel in logical thinking. Besides a strong academic background and desirable skill set we also seek individuals with a passion for non-legal activities, as we feel driven people are most ambitious and dedicated. This approach is to ensure that we are bringing the most talented people into our firm - individuals, yet with an openness for teamwork and strong social skills. From our side we offer the opportunity to work in a supportive, international environment and exposure to practical experience of practicing law, irrespective of seniority level within the firm.“

Krzysztof Wiater - CEE Regional Managing Partner - DLA Piper

“Clients want to be heard. Their case/project is the most important. Therefore, the lawyer must allocate to each of its clients the necessary time resources, it must be updated with the facts of the case/project and it must offer the best solutions with the sole purpose of obtaining the success of each project/case. Moreover, besides the thorough knowledge of the law, the lawyer must be very flexible in order to keep up with all aspects which could spontaneously arise in relation to its legal activity: short deadlines, deadlines which appear from a day to another, etc. In such situa-tions, the lawyer must be completely focused and involved in the respective matter.

Equally important, or maybe more important than any other quali-ties or competences, are the will and the capacity to be trustworthy to the clients, as a person, as well as a professional.

It is also a matter of charisma, negotiation skills, persuasion, logi-cal thinking and good communication skills, but also adaptability/flexibility, a capacity of permanent learning, tenacity and optimism. But in order to be successful as a lawyer (and not only as a lawyer), I believe the most important part is that of being an ambitious person who cannot be easily discouraged by any obstacles which may appear on its path.

An advice for the young lawyers: You must motivate yourselves and have trust in you, you must fight to be the best and you must keep your faith that you shall win, or at least that you did your best for your client.”

Iulia Ciobotaru - Partner, CSMG – Ciobotaru, Schelean, Maier, Gavrila SCA, Bucharest

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“The most important quality of a successful lawyers is to have multiple qualities.

On top of them all, I would place rigour.”

Florentin Ţuca, Managing Partner – Ţuca Zbârcea and Associ-ates - Bucharest

“In my view, there is not a single magic skill which would make the lawyer a genius. The world of legal counselling is – for good or bad – much more complex than that. Clearly, a good lawyer needs a set of diverse skills to succeed. I also think that the skill’s preference may vary from country to country and from time to time. Obviously, any lawyer needs to be smart, intelligent and knowledgeable.

She or he needs also to have a focus and concentration on the substance – without it, she or he may get lost easily in this society which is clearly overwhelmed by the information and the infor-mation rubbish. The lawyer would also need to have an under-standing (and ideally also an education) about the business and the industry sector, which she or he prefers.

As an example, I have found very useful to orient myself on the energy sector and the clients seem to appreciate a counsel who has a good knowledge of the market, applicable regulation and up-to-date information about the current trends, ongoing projects and plans of the key players. Last but not the least, she or he needs to have a common sense and critical mind. “

Tomáš Rychlý – Partner Wolf Theiss - Prague

What do you consider to be the most valuable quality or skill a lawyer should have to acquire success?

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Question of the Issue

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“I believe that this noble profession, through which the lawyer, as a ‘representative of the community’, fulfills his professional and social mission, can only reach the maximal level of recognition if he or she generates trust. From this perspective, the ability to generate trust is an essential characteristic that a lawyer must have and make use of.

Professionalism, credibility, ethics, efficiency and many other such professional qualities have this common root of trust. This happens because, in the end, being a lawyer involves continuous human in-teraction, irrespective of whether we are referring to the lawyer-client interaction or the lawyer-third parties relationship (be it in-dividuals, institutions or courts).

To conclude, the ability to generate trust, used continuously, is the key to success as a lawyer.”

Mihai Bejenaru-Dragos – Senior Managing Partner Bejenaru & Partners - Cluj-Napoca

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As part of our mission, we tried to offer law students a platform to develop their skills and put their legal knowledge into practice in order to become better prepared to fulfill the le-gal market’s requirements.

First and foremost, we tried to ease the access of law students to internships in order to offer them a platform to experience

lawyers’ daily professional lives and put what they have learnt in law school into practice.

Following the launch of our third issue, in September 2013, our partners from Cărăbaș Lungu have offered internships to two Babes-Bolyai University students who published an article in the third, respectively fourth issue. Mihai Cărăbaș, Partner, has offered a few insights from their collaborations with the select-ed students:

“Gaining some professional experience during uni-versity studies represents a positive step towards a successful career in the legal field, irrespective of the chosen profession. Cărăbaș, Lungu Law Firm’s law-yers are happy to have been able to offer such an op-portunity to two students, Oana Cotoară and Diana Gal. As a continuation of a tradition started when our law firm was created, we have managed to offer new internships to law school students, now under Lawyr.it’s umbrella.

Our collaboration with the two students met the highest standards that we have been used to coming from Babes-Bolyai University’s law students. They

both proved to be highly receptive and prompt in ac-complishing the tasks they were given. During their internships, we noticed the high level of theoretical knowledge, thus managing easily to put the knowl-edge they have gained so far into practice. From our perspective, other important aspects of our collabo-ration were their dedication, as well as their interest shown for the activities they have been involved in. We consider all these qualities as premises for a future successful career.

We also want to show our gratitude and send our con-gratulations to the two students, as well as to the Law-yr.it team. Thanks to our continuous collaborations with law school students, we manage to be actively in-volved in their professional path by offering them the possibility to experience some of the activities which are specific for lawyers, thus fulfilling our promise we made towards law students a few years ago. “

Diana Gal, author of the article The Common Euro-pean Sales Law: A necessary tool?, who was at the time pursuing a masters’ degree, speaks about her experi-ence at Cărăbaș Lungu: “I was offered a two weeks internship at Cărăbaș Lungu, during which I have learned a lot about what truly happens in practice. I really enjoyed the group and I have been well treated. What I liked the most were the people I have worked with, who proved to be very sociable, wise and hard-working people. I had a lot to learn from their work ethics and speaking abilities. I hope to keep in touch with them, as for now, I am very grateful I had the op-portunity to benefit from this experience.”

Our partners from the Bucharest based MDM Legal have also offered an internship to Raluca Elena Cir-jan, a fourth year law students at University of Bucha-rest, following her article about Surveillance of Inter-

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Lawyr.it – a bridge between students and law firms

Special

net communications, published in the fourth issue.

More recently, Lawyr.it has partnered up with local law firm Iordăchescu & Associates in a new internship project. Students will be able to ap-ply for internships in two different fields, civil or criminal law, by May 15, by sending a letter of intent and their contact details to editors@lawyr.it. Selected students will then have to contribute to a new section, powered by Iordăchescu & Associates, which will comprise case stud-ies and commented jurisprudence.

Starting this month, Lawyr.it is launching a new project meant to fulfill Lawyr.it’s aim, which is to address stu-dents’ professional needs. More details on this will follow soon.

This fifth issue will also bring new internships offered to students who published in the law review. We can only hope that the number and quality of internships will increase in the future, as new law firms will join our project as supporters, and more students will get published in our issues.

By Ioana Stupariu

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INTERNATIONALFOCUS

INTERNATIONAL FOCUS

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This article aims to analyse the thesis of the ‘responsibility to protect’ doctrine and its ap-plication to the situation in Syr-ia. I will debate the reasons for and against an approval from the UN (United Nations) for a military intervention from the perspective of the ‘responsibili-ty to protect’ guiding principles, along with a brief overview on

the doctrine and the Syrian war.

What is the Responsibility to Protect? The doctrine of ‘the responsibility to protect’, known as R2P, is a concept that stipulates an obligation of means for the international community and for the states to-wards the citizens of the world, adopted at the 60th UN Summit, in 2005. The obligation is stipulated in a document which was unanimously ratified by all member states, although it is not legally binding.

The thesis is based on three pillars, namely: (1) a state has the responsibility to protect its own citi-zens from genocide, war crimes, crimes against hu-manity and ethnic cleansing; (2) the International community is obliged to assist the states in accom-plishing their obligation of protecting the citizens; (3) if states fail to prevent the four crimes earlier mentioned, the international community shall in-tervene, using military intervention as a last resort.

The concept of R2P implies the task of prevention, the international community being encouraged to use economic penalties, mediation and good offices before passing to the measures of Chapter VII of the UN Charter, whose nature is military. R2P admits that in some situations the military intervention is necessary, but holds that it shall be used only for a just cause and if all the other means have failed.

The situation in Syria. The Syrian Civil War is an ongoing-armed conflict on the territory of Syria,

between the Ba’ath Government forces and the re-bels who request a change of regime, as part of the movement known as the Arab Spring. What began as a peaceful demonstration degenerated into a full-fledged civil war. At the order of President Bashar al-Assad, the Syrian Army and the Shabiha militia started to use violence against the population.

A special UN report from 2012 claimed that, once the rebels were armed, the conflict began to develop a pregnant sectarian nature. On one side, there was the Shia group of government and Shabiha forces, and on the other side were the Sunni rebel groups. Both sides have denied that the conflict had such a nature.

Another report established that Syria’s Govern-ment, through the means of the Syrian Army and Shabiha militia, but also the rebels, have committed crimes against humanity and war crimes. Among the crimes committed by the government’s repre-sentatives were: use of weapons against unarmed civilians, campaigns of ‘door to door arrests’, killing of medical staff, and deliberate destruction of drugs. The government’s actions started to evolve from sporadic murders to targeted attacks and mass kill-ings. Moreover, there were aerial bomb attacks and use of chemical agents by the Syrian Army.

Application of R2P in Syria. UN Secretary-General Ban-Ki Moon has underlined the urgent necessity of a solution to end the crisis in Syria, which, in the last years, led to the death of over 130.000 civilians and to serious humanitarian crises. He asked the inter-national community, especially the Security Coun-cil, to unite and to offer their full support to find a political solution to the Syrian conflict. The debates of the Security Council regarding the intervention in Syria have revealed a series of difficulties concerning the application of R2P. Essentially, the problem was establishing the criteria used to approve military in-tervention. On one hand, some claimed that the in-ternational community had to respect the principle

Applicability of the Responsibility to protect doctrine in Syria

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of state sovereignty. On the other hand, it was stated that there is an urgent need to protect Syrian civilians. The creators of R2P let to international community’s judgment the moment when they should intervene, this moment depending from case to case.

But first and foremost, the primary question stands as to whether the requirements for a military interven-tion based on R2P are fulfilled. The first requirement is the just cause. Even though the doctrinarian views are divergent, theorists and the ICISS (International Commission on Intervention and State Sovereignty) report on R2P agree that large-scale loss of human lives and ethnic cleansing met the condition, as the number of civilian deaths topped 130.000, while both rebels and government are accused of crimes against humanity and war crimes. The second one is right in-tention, as the purpose of an intervention would be to put an end to the killings against civilians. States could meet this requirement, as they did in Libya or Kosovo, but they should restrain from other actions. The third condition is of last resort, because a military interven-tion could be justified only if the other non-military options of prevention and peaceful settlement have been exhausted. In Syria’s case, this condition is met as the conflict enters its third year of conflict and failed efforts of mediation, sanctions and peace talks. The fourth requirement is that of proportionality and of reasonable perspective, as the duration, scope and in-tensity of the military intervention should be at mini-mum and there should be a chance of avoiding any more life loses by this intervention. The assessment of this criteria is made on prospective judgments, which are, inevitably, debatable and uncertain. Thus, an as-sessment over the accomplishment of the criteria is possible only after an intervention. The fifth condition is proper authority and that can only be the Security Council. Before any intervention, states should seek the approval of the Security Council and its five per-manent members should restrain from using the veto if their interests are not involved, so that the interven-tion can be legal and in time for saving lives of Syrian citizens and ending the war.

Thus, at first sight, one can say that all conditions for an intervention are met, but in reality, some problems arose, and the intervention was delayed.

One of the first issues was that states have different

reactions to different norm violations. The possibility of a prompt reaction, with a potential military nature, is more likely in the case of security norms than in the case of human rights violations. In Syria, this aspect is obvious, because until the `Report on the Alleged Use of Chemical Weapons in the Ghouta Area of Damas-cus on 21 August 2013` confirmed the use of chemical weapons, no one wanted to intervene at all.

Although one can claim that military intervention in case of using of weapons of mass destruction has a humanitarian side, the security threat it poses is the main reason of such use of force. Eventually, this is no more an intervention based on R2P.

A second problem that occurs is the violation of the territorial sovereignty based only on a moral obliga-tion because R2P is not a legal obligation. This is-sue was raised by two member states of the Security Council, Russia and China. They claimed that the sit-uation would resemble the ‘Military and Paramilitary activities of the US in Nicaragua’ case, where the In-ternational Court of Justice stated that the sending of armed troops on other state’s territory is a violation of territorial sovereignty and political independence and this measure is not an intervention for the protection of civilians. Also, states have become reserved to R2P after seeing what happened in Libya, when the scope of R2P changed from protecting civilians to establishing a new regime. As a following to this situation a ques-tion arises: if the UN member states will send armed forces sent in Syria, will they protect the civilians from the atrocities, or will they attempt overthrowing the Bashar al-Assad regime, which would surpass the lim-its of R2P? According to R2P, they should intervene as neutral troops, but the Libyan precedent does not support this theory. This is one more reason for the Security Council to hesitate in issuing a resolution for military intervention in Syria.

In conclusion, a military intervention in Syria accord-ing to R2P doctrine is hard to accomplish, because there is a strong feeling within the international com-munity regarding the difficulty to apply the theory to the current situation in Syria.

By Radu Suicescu

INTERNATIONAL FOCUS

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This paper tries to point out the indispensable need of an enhanced business transparen-cy on social and environmental matters, whilst it reviews the current and future frameworks regarding the non-financial in-formation disclosure, which can be found within the Euro-pean Union.

Given the fact that non-finan-cial reporting is not a new concept in the corporate world, the European Commission adopted a pro-posal for a Directive, to amend the current legisla-tive framework on non-financial information dis-closure within the European Union. Regarding this matter at the European Union level, The European Commission defines corporate social responsibility, in the Renewed EU Strategy 2011-2014 for Corpo-rate Social Responsibility, as ‘the responsibility of enterprises for their impacts on society’. Responsi-bility or not, it is a sure thing to say that only a few large companies, adopted the procedure of volun-tary submitting such non-financial reports in the past. Moreover, only a few included relevant infor-mation.

Therefore, the European Commission initiated this motion, with a goal in mind: for this reporting to significantly contribute to the European Union’s treaty objectives of sustainable development, and for a competitive social market economy at the same time. Although progress has been made in the past years, when talking about corporate transparency, the legislative framework is still uncertain and full of shortcomings and gaps, waiting to be filled.

This being said, the proposal launched by the Eu-ropean Commission on non-financial information disclosure is a significant and effective step to ad-dress this issue.

The issue of social and environmental disclosure is no foreign matter for the European Union, since it has been on its agenda for at least a decade. More specifically, the disclosure of non-financial informa-tion is currently addressed in the European Union legislation via the Accounting Directives.

These require companies to include into their an-nual reports, environmental and employee-related information, but only when it is considered appro-priate and to the extent to which it is supposed to be necessary for an understanding of the company’s development, performance or position. Therefore, the uncertainty of this legislation could be easily used to benefit the opposing party. Although other European Union frameworks that address this spe-cific issue, such us the Accounting Directives, could be identified, the concept of transparency is still uncertain and not yet fully understood. The issue of non-inadequate transparency, when it comes to non-financial information, has been the subject of public debates for a while, since non-financial per-formance appears to be considered increasingly im-portant for investment strategies, particularly with a long-term perspective. But what is the cause for this lack of transparency?

According to the European Commission’s impact assessment, the drivers of this inadequate level of transparency appear to be caused by both market and regulatory failure. Although some steps have been made forward, some enterprises still do not have enough incentives to disclose non-financial in-formation. For example, the obligation introduced by current Directives could be considered to be in-effective, mainly due to its ambiguity and openness to interpretation. Enterprises can easily enact the current reporting system as purely voluntary since the present wording ‘where appropriate’ and ‘to the extent for an understanding of ’ clearly fails to pro-vide a straight obligation for the enterprises.

The instability of the current legislation, which can

Non-financial reporting of companies in the EU: a ‘voluntary obligation’?

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be found both at European Union’s and at the Member States’ level, will not provide in the future, a clear per-spective on what disclosure should look like and on what obligations a company has, regarding the issue of social and environmental disclosure.

Therefore, we cannot expect for significant improve-ment to be made in the absence of a stable and clear legislative framework. The EU’s initiation of such a proposal, was a long overdue act, since more trans-parency for both internal and external stakeholders is considered to be an important asset for companies, in order to improve management of risks and to deliver better results.

The proposal itself provides that large companies should disclose non-financial information supported by a set of requirements, shaped so that it can increase transparency but noting that it will not put any undue administrative burden on companies. Although sev-eral Member States recently adopted legislation that requires additional disclosure in the field, this pro-posal respects the principle of subsidiary. Since these initiatives proved ineffective because of diversity and fragmentation of the legal environment that can easily lead to difficulties in implementing the concept itself.

As far as the recipients of this proposal are concerned, the disclosure requirements under this Directive will only apply to companies whose average number of employees, during the financial year, exceeds 500. Comparing the threshold found in the current Ac-counting Directives (250 employees), it can be eas-ily observed that changes were made. These concern the audience to whom it is addressed, this being a consequence of the Directive’s authors try to avoid administrative burden on smaller companies, hence the difficulty they face in collecting and analysing in-formation. The European Commission’s proposal, as a novelty, also requires large companies to provide in-formation regarding their diversity policy, including aspects in the matter of age, gender, geographical di-versity, and educational and professional background.

Although it could be admitted that this new proposal for a directive adopted by the European Commission brings a new perspective on the non-financial report-ing and also on its currently uncertain obligations, it is safe to say that even though it was recently adopted

by the European Parliament, on April 15, 2014, there is a long way ahead since it first needs to be adopted by the Council and published in the EU Official Jour-nal, in order to become mandatory and to produce full effects. As the implementation of this Directive, the Commission will have to develop a series of guide-lines in order to forward the disclosure of non-finan-cial information by companies.

Nevertheless, this type of action found at the Euro-pean Union’s level was much needed in order to fur-ther coordinate the non-financial reporting field and to ensure a proper functioning internal market. Better and more transparent disclosure of non-financial in-formation could be a valuable tool to further increase the number of European Union enterprises that are successfully integrating and reflecting sustainability and environmental responsibility into their organiza-tional culture.

By Ruxandra Popescu

Check out our Legal DictionaryVisit www.Lawyr.it

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Citizenship was introduced by the European Union Treaty (Consolidated Version of the Treaty on Functioning of the European Union [2012] OJ C326/47). Article 20(1) intends to give the ordinary citizen a deeper and more tangible sense of belonging, in compliance with the fundamental aim of integration at the heart of the

European Union (EU). Citizenship encompasses the notion of uniting people by going beyond na-tionality in order to achieve peace, prosperity and solidarity (Schuman Declaration, 1950). However, there is an assertion in literature that citizenship is part of the emergence of a supranational state, thereby encroaching upon national sovereignty (Shaw 1997, p.4). Conversely, intergovernmental-ists view Member States as playing a more promi-nent role within the Union, viewing them as the gatekeepers who ultimately possess power (Ko-stakopoulou 2007, p.626). Before examining these two conflicting views, this essay must first establish what the concept includes, and then examine its relationship with the Member States as exhibited in case law and portrayed throughout literature.

Historically, the market citizenship approach has prevailed. Consequently, Article 45 was interpret-ed narrowly, yet this reductionist view regarded individuals as merely economic actors, which ef-fectively stripped them of identity and personality. Therefore, a rights-based approach has emerged as a critique - ‘the Migrant Worker is not to be viewed as a mere source of labour, but as a human being’ (Case 7/75 F v Belgian State [1975] ECR 679). How-ever, free movement is in clear conflict with the in-terests of Member States, which are keen to assert that the entry of individuals into their Community falls within their sovereign prerogative and often

enact regulations to control levels of migration.

The introduction of citizenship was a significant step towards creating transnational solidarity by elimi-nating barriers to free movement. The four special rights conferred by the Union citizenship clearly at-tempt to fulfil this aim. However, the rights conferred are rather limited, partially diluting the revolution-ary impact of such an introduction, compounded by the uncontroversial and nebulous nature of the pro-visions. It has been claimed that this is ‘a purely dec-orative and symbolic institution’ (Kostakopoulou 2007, p.623), arguably amounting to a mere codifi-cation of existing rights. Thus surely this empty con-cept poses little threat to national sovereignty as it is seemingly a label devoid of substance. Indeed, an intergovernmentalist perspective may advance the view that citizenship is ‘an example of pure symbol-ic gesture politics which does not actually strike at the heart of national sovereignty’ (Shaw 1997, p.3).

However, an analysis of the case law reveals that it is absurd to suggest that citizenship is merely deco-rative. One cannot escape the fact that ‘citizenship encompasses strengthened rights, with regard to free movement and residence and prohibition on discrimination on grounds of nationality…’ (Craig & De Búrca 2011, p.819). Despite the fact that com-petence as to nationality is ‘jealously guarded by Member States’, (O’Keeffe 1996, p.358) this has not prevented intervention by the ECJ (European Court of Justice). There have certainly been a number of cases in which the ECJ has challenged ‘core aspects of Member States’ migration policies’ (Craig & De Búrca 2011, p.832), as exhibited in Sala (C-85/96 Maria Martínez Sala v Freistaat Bayern [1998] ECR I-2691). In this matter, the ECJ was willing to ‘explode the linkages’ (O’Leary, p.77) which had previously been required to apply the principle of non-discrim-ination Given the fact that they were EU citizens, they were entitled to equal access to social benefits available to nationals solely on basis of nationality (Craig & De Búrca, p.836). The ECJ has displayed a

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willingness to override the views of the Member States - in Grzelcyk (Case C-184/99 Rudy Grzelcykv CPAS [2001] ECR I-6193). The influence of EU citizenship on the outcome of the case was once again crucial (Craig & De Búrca, p.837), and, most fundamentally, legal rights have been expanded even in the face of vocal Member State opposition (Craig & De Búrca, p.837).

Citizenship conveys notions of identity and Com-munity belonging as it exhibits the notion of a po-litical bond based on residence and transcending nationality completely. It is clear that many provi-sions are enacted with the aim to ‘facilitate their mo-bility within the Community’ (Case C-315/94 Peter de Vos v Stadt Bielefeld [1996] ECR I-1417), sub-sequently regarding individuals as fully integrated into the fabric of society. Indeed, they are no longer regarded as aliens or guests, but are entitled to re-ceive full equality of treatment (Case C-321/87 Com-mission v Belgium [1989] ECR 997). Thus, despite the lack of the conferral of duties, EU citizenship still negatively impacts upon national sovereignty.

Nonetheless, there is a danger of overstating the impact that citizenship has had upon national sovereignty. Certainly, joining the EU implied a loss of sovereignty (Kostakopoulou, p.628), perhaps constituting ‘a novel and dangerous invasion by a Community institution of the sovereignty of the UK Parliament’ (Case C-213/89 Factortame I [1990] ECR I-2433). But this was argu-ably ‘based on a misconception’ (Factortame) any lim-itation was ‘entirely voluntary’ (R v Secretary of State for Transport Ex p. Factortame Ltd (No.2) [1991] 1 AC 603) when the UK entered the EU when it passed the European Communities Act 1972. Supremacy ‘should by no means be confused with any kind of all-purpose subordination of member-state-law to Community law’ (MacCormick, p.117). Consequently, the general form of consent granted by the Member States when they joined the EU also entails consent to any provi-sions enacted thereafter, suggesting that the introduc-tion of citizenship does not further impact upon na-tional sovereignty. Perhaps there is even merit in the view that ‘nationality and citizenship complement one another. Without a common national identity, there is nothing to hold citizens together…’ (Miller, p.85). There is no reason why the two of them cannot co-exist, and provide a ‘shared platform’ in which indi-

viduals can assert their parallel identities (O’Keeffe, p.374). Perhaps EU citizenship is over-arching, but not necessarily intrusive upon Member States; it should be regarded as an invitation to join other net-works (Preuss, p.280). This appears to recognise that citizenship should not seek to undermine, or to com-promise attachment to an individual’s national state.

However, much of the threat to national sovereignty arguably lies not in what citizenship confers at the pre-sent moment, but in what it has the potential to. Per-haps the importance of citizenship lies in the fact that the first step has been taken (O’Keeffe, p.374). There are certainly two opposing paths that could be ven-tured – citizenship may either ‘remain what it actu-ally appears to be, namely a terminological pooling of the few rights which the individual enjoys…’ (Preuss, p.268) or it ‘could ultimately even pave the way for the transition to a European Federal State’ (Preuss, p.268). While it may currently be difficult to discern which path will be taken, there is no doubt that citizenship has matured as an institution (Kostakopoulou, p.624), and is certainly ‘dynamic’ in nature (O’Keeffe, p.350).

To conclude, upon its introduction, many feared that citizenship would lead to a dilution of national sov-ereignty. Yet upon further examination, many have argued that the introduction of citizenship was purely symbolic, due to the absence of duties and the limited conferral of rights, therefore having very little impact on national sovereignty. However, the abundance of case law illustrates the importance of citizenship in its strengthening of rights, particularly with regards to free movement. It truly demonstrates a shift from citi-zens being regarded as economic actors to individuals with rights, ambitions and aspirations. In conferring such rights, the courts have often overridden the inter-ests of Member States even in the face of strong vocal opposition (Craig & De Búrca, p.837). While ‘Europe-an citizenship was nothing more than a pale shadow’ (Kostakopoulou, p.625), arguably it is now emerging from the shadows, and posing a threat to national sov-ereignty. Moreover, its future may be uncertain, but it is clear that the evolution of citizenship, and thus the impact on the sovereignty of Member States can-not be underestimated. Many have confidently as-serted the view that there is no doubt that this ‘em-bryonic concept’ (Lodge, p.380) will continue to grow.

By Francesca Esposito

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In the early 2000’s, due to the enlargement of the European Union (EU) with a significant number of new members, an institutional reform was neces-sary in order to avoid a para-lysed decision-making system. The system set up in 1950 for a Community which comprised six Member States was no long-er operating efficiently within a Union of 15 and, subsequently,

25 Member States. The process of adoption of three important tools - The Nice Treaty, the Treaty estab-lishing a Constitution for Europe and the Lisbon Treaty - lead to numerous fundamental and institu-tional problems that had to be dealt with.

The Nice Treaty was concluded on December 11, 2000 and signed on February 26, 2001, presented not only as a treaty of institutional reform, but also as a step towards the constitutionalisation of the European Union. An argument for this is the proc-lamation of the Charter of Fundamental Rights. The Reform Treaty, also named the Lisbon Treaty, entered into force on December 1, 2009, and was meant to be a more successful version of the Treaty establishing a Constitution for Europe.

A substantial difference between the Nice Treaty, the Lisbon Treaty and the Constitutional Treaty rep-resents the objective sought by each of them. The Treaty of Nice was aimed to ensure an institutional system for a Union consisting of nearly 30 Mem-ber States. In contrast, the Constitutional Treaty was setting up a new legal instrument containing rules easily understandable by the Member States’ nationals, which also emphasised the symbolic idea of ‘Constitution”’ This Treaty was output as a conse-quence of the existing treaties, which did not hap-pen in the case of the Nice Treaty and the Lisbon Treaty, as they were maintaining an effective legis-

lative framework. The simplification of the treaties was an objective to be attained post-Nice; however, unsuccessfully, taking out of force the existing trea-ties and the entry into force of the Constitutional Treaty did not take place.

From an evolutionary point of view, if up to the Treaty of Nice, the competences of the European Union were not specifically mentioned, beginning with the Constitutional Treaty, a classification has been carried out, which, at present, is to be found in the Treaty of Lisbon. It cannot be denied that this is an ‘element of substantial progress made in the European construction’, whereas such an approach simplifies and clarifies the Union’s actions and shall give them an increase of democracy, with regard to the benefits of transparency for nationals of Mem-ber States.

After the Nice Treaty, the role of national Parlia-ments has been brought into discussion, the pro-visions of the Constitutional Treaty being further accepted in the framework of the Treaty of Lisbon. In order to ensure a higher degree of transparency, certain obligations had to be introduced for Euro-pean institutions: to cooperate and collaborate with national Parliaments, to respect certain basic prin-ciples of the European Union’s law, namely those of subsidiarity and proportionality. In addition to the obligations imposed upon European institutions, the competence of national Parliaments was regulat-ed, primarily in what concerns their power to influence decision-making at Union level by means of different procedures.

Among the objectives to be attained which were questioned at the time the Nice Treaty was prepared, we can

The complicated road between failure and success: the EU version

also find issues introduced by the Constitutional Treaty, in turn taken over or not by the Treaty of Lis-bon. Among them, we can mention the principles of subsidiarity and proportionality, which found a new justification in the light of the provisions regarding the allocation of competences, newly introduced by the Constitutional Treaty. The same principles can now all be found within Protocol no. 2 annexed to the Lisbon Treaty. The principle of supremacy of EU law was not specifically mentioned by the Treaty of Nice, being later developed by the European Union’s Court of Justice. The Constitutional Treaty included it in its text, but, upon entry into force of the Treaty of Lisbon, it remained at the level of unwritten principle of the EU, being referred to only in a Declaration annexed to the Treaty.

The Constitutional Treaty has a characteristic sym-bolic and legal load that also comes from the ‘consti-tution element’ found in its title. It even regulates the symbols of the European Union, such as the flag, the anthem, the currency, the day of Europe, for an even greater emotional significance, a highlighted Europe-an identity. In addition, it contained specific names: ‘European laws’ for regulations, and ‘European frame-work laws’ for directives. Because of this deep symbol-ic load which it had for nationals of Member States, the Treaty of Lisbon did not choose to use them. The citizens were not prepared for such an involvement and dedication to the idea of a European identity.

Among the common elements of the Treaty establish-ing a Constitution for Europe and the Treaty of Lis-bon, we can also find the ‘citizen initiative’. The citi-zens can directly ask the Commission to propose an initiative that is of interest to them and which is re-lated to the EU competence, by adding together one million signatures from various Member States. Both devote strengthened protection for citizens through the provisions relating to the space of freedom, securi-ty and justice laid down by the Constitutional Treaty, and mention the formation of a European Prosecu-tor’s Office.

An element embraced by the three treaties which are the subject of our study is represented by the Charter of Fundamental Rights of the European Union. In the summit of the European Council in Nice in December 2000, it was solemnly proclaimed by the Commission,

Parliament and Council of the European Union and approved by the Member States, but its legal status has been put on the list of objectives post-Nice. In 2004, the Constitutional Treaty incorporated in its second part the Charter provisions, giving it legal compulso-ry value, also regulating the European citizenship, an idea taken over by the Treaty of Lisbon as well. Subse-quently, the Lisbon Treaty has provided the legal value of the Charter as being equal to that of the treaties, but, unlike the Constitutional Treaty, it was not built in, but annexed to the Treaty. The adoption of a cata-logue of human rights brought about a change on the initial economic objectives of the EU.

One of the fundamental news brought after the Nice Treaty is the opportunity of a Member State to be able to withdraw from the European Union, established by the Constitutional Treaty, and maintained by the Lis-bon Treaty, as a guarantee of their sovereignty.

With regard to the relationship between the EU and the Member States, we must mention the first express regulation of the legal personality of the Union by the Constitutional Treaty and then the Lisbon Treaty.

To conclude, the three treaties derive from one an-other, as a result of an evolutionary process of the enlarged European Union. The Constitutional Treaty might be considered an evolved form of the Treaty of Nice, whereas the Lisbon Treaty is a ‘mild’ form of the ’Constitution’. Even if the bond between Nice and Lisbon was less successful, it was not a less important Constitutional attempt, which made the transition easy.

By Ingrid Amelia Apetrei and

Andreea Nicoleta Ştefan

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In the current increasingly competitive automotive indus-try and in an insecure economic climate in Europe, the case of Germany stands as an example for growth in a country’s export activities. German reputation for well-made automotive com-ponent parts and the attention paid to details persisted in the last decades. However, policy

makers in Brussels, especially Italy and France, aim at building a new legal framework regarding the ‘made in Germany’ trademark. These new regula-tions envisage the conditions that must be accom-plished by German car manufacturing companies, in order to be able to associate the ‘made in Germa-ny’ trademark with their products. My paper analy-ses this current debate, presenting and developing the arguments on both sides, and their correspond-ing implications.

According to the estimates made by the Chambers of Commerce and Industry in Germany, the ‘made in Germany’ trademark is worth more than a billion Euros on world markets. However, 127 years ago, this trademark represented a stigma. As the eco-nomic and political rivalry between Germany and Britain was rising in 1887, German products were sold under the ‘made in Britain’ label to increase their access to world markets. In order to protect the economy and identify foreign imports, the Brit-ish Parliament passed the Merchandise Marks Act, which required Germany to clearly distinguish its products. However, instead of alerting consum-ers regarding its inferiority, the ‘made in Germany’ trademark became a guarantee for reliability and durability.

According to the European Union’s current legisla-tion, a product’s country of origin is considered to be the country in which the last stage of the assem-bling process takes place. Therefore, big German car manufacturing companies outsourced a part of their automotive component parts industry to develop-ing countries, where they found cheap labour force. Hence, many cars manufactured with component parts produced on the Asian markets are traded as German cars, just because they are assembled in Germany. In response, the European Union is now considering modifying the legislation and adopting stricter regulations, by imposing producers to use the ‘made in Germany’ trademark only if at least 45 % of the automotive manufacturing process takes place in Germany.

The new legal framework would provide clarifica-tion regarding each stage of the automotive manu-facturing process. That is because at the moment the Germans take full responsibility for the product’s quality, whereas the suppliers are unknown entities. Therefore, the automotive parts’ lack of resistance matches their mediocrity. In this context, the Eu-ropean Union’s position could be a welcome initia-tive. The ‘made in Germany’ trademark would not appear on automotive component parts which are only assembled in Germany and not actually pro-duced there. At the same time, the investors’ depar-ture towards other countries would stop. Romania, for example, represents an oasis for the German automotive parts manufacturers. Bosch, the com-ponent parts leader in Europe, has more than 2,000 employees in Romania, and Continental, around 12,000 employees. With the foreseeable changing legislation regarding the usage of the ‘made in Ger-many’ trademark for the automotive component parts industry, one might be legitimate to wonder whether you are not actually producing a Romanian

Should EU legislation regarding the ‘made in Germany’ trademark for the automotive industry be revised?

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car instead of a German one if most of the manufac-turing process takes place in Romania. Let us take the example of Bosch, which produces car component parts in Romania.

These are ultimately assembled in Germany on a Mer-cedes that bears the ‘made in Germany’ trademark. Thus, if the European legislation changes, in this case, Mercedes will no longer be able to use the ‘made in Germany’ trademark, because most of its compo-nent parts are manufactured in Romania, including the component parts made by Bosch for the engine, and the component parts for the gear box made by Daimler at their factory in Sebeş. If a new legislation is adopted, German manufacturing companies could also consider reducing their manufacturing activities, which will ultimately generate unemployment for many people working in developing countries.

The ‘made in Germany’ origin labeling proposal is still in discussion. The EU states that German companies would only benefit from this labeling if the automo-tive component parts were truly manufactured in Germany. This regulation would ease cars recall and would increase customer’s reliability in the durability, performance, and quality of German cars. This new legal framework would also prevent unfair businesses which use fake labels or no labels at all. At the same time it would provide protection for consumers, be-cause they will be informed regarding the production process and the automotive component parts’ origin. Small and medium-sized German automotive compa-nies are in favour of the proposal, given the fact that their car manufacturing process occurs within the country, without appealing to external suppliers.

On the other hand, a unitary resolution within the EU regarding the ‘made in Germany’ trademark would risk creating further confusion. There are 28 member states in the European Union and it could be difficult to reach a consensus among them and thus harmonise legislation regarding origin labeling. Moreover, big German car manufacturers like Mercedes Benz, Audi, BMW and Volkswagen consider the EU proposal un-popular. The EU proposal scraps the law in force now, which defines the country of origin as the country in which the last economically justified and substantial

manufacturing act took place.

These big German car manufacturers also object to the fact that bureaucracy will be increased, because they will have to keep records for each production stage in order to establish where most of the value of the component parts was added. This legal prevision that the members of the European Commission want to enforce will ultimately generate an increase in the manufacturing costs, as well. That is why German car manufacturers suspect European companies hope for a competitive edge, considering that Germany’s trade balance of automotive component parts with the non-euro-zone countries created this disagreement with the European Union.

One thing is certain: regular consumers, as well as companies, prefer purchasing German products, renowned for their quality, even if their price is sig-nificant higher than that of similar products. Despite all the current debate and arguments over adopting a new legislation regarding the ‘made in Germany’ trademark for the automotive component parts indus-try, the European institutions still have to approve the new provisions. However, the law is unlikely to come into force before the European elections in May 2014. For now, we just have to wait and see whether the Ger-man car manufacturers and implicitly Germany will abide by this regulation, and whether they will be able to maintain the production costs under control and ultimately trade their cars at competitive prices.

By Oana Gligan

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Should engineers be held responsible instead of programmers in the case of autonomous drones?

Andrei is a future gradu-ate of law studies at Nico-lae Titulescu University, in Bucharest. He enjoys studying technology, old and new, law, foreign his-tory and culture. What he is hoping to achieve is working and studying in a more globalised world that has new ways of doing legal work and to be part

in helping technology integrate in every-one’s day to day life, as the future unfolds.

Oana is presently studying European and Internation-al Law at Nicolae Titulescu University from Bucha-rest. Passionate about eth-ics and philosophy of law, she believes it is essential to combine theoretical as-pects with applied law and to encourage new direc-tions of research. She con-siders that a new perspec-tive needs to use an interdisciplinary approach and to position law students and practitioners in key roles.

This issue's advocates PROS: Andrei Stoica CONS: Oana Iulia Irimia

Debate ForewordDear readers,

You are about to read a very interesting debate, with implications in humanitarian, crimi-nal and military law. Much like in the case of self-driving cars, the liability for autonomous drones is a hot debate, especially due to their advantages and well spread usage.

Autonomous drones are aircrafts without a human pilot aboard. They are also known as unmanned aerial vehicle (UAV). There are various actors that could be held accountable in case something goes wrong. In our debate, we narrowed it down to the most interesting two: the programmer, who decides what the drone does once put into use, or the engineer, who decides what the drone can do in any circumstance.

Stay tuned to see who wins!

By Bianca Alexandra Prunea

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Andrei Stoica: New weapons and new technologies revolutionised warfare. The shifts brought by the XXth century technology were accompanied by the change of the nature of war and the way it is seen at national and international level. Drones are no exception, and after an analysis on their spread and the clear strate-gic possibilities they offer, one could certainly say that their use must be strictly assessed by specialists in in-ternational humanitarian law and human rights. For example, in 2004, only 41 states had this technology and the first prototypes, but by 2011 their number al-most doubled, drones being used in 76 states today. Until now, only the USA, the United Kingdom and Is-rael are believed to have used armed drones, while the Republic of China and Iran are the only other coun-tries with operationally deployed armed drones.

One particular issue derived from the specific nature of this kind of weapon is the responsibility for the actions and consequences of the use of autonomous armed drones during armed conflicts. Given the fact that autonomous drones are not controlled by any hu-man being, responsibility is distributed between the engineer and the programmer, but the most significant part is given to the first party. In order to demonstrate my position, I will invoke several arguments.

Firstly, in warfare, a truly autonomous system capable to adapt to changing circumstances, thus with artificial intelligence, can be programmed to behave more ethi-cally and cautiously on the battlefield than a human soldier. However, it has not been proven if it is techni-cally possible to respect the principles of distinction and proportionality at all times. Given these particular aspects, it is safe to assume that the most significant impact on the conduct of a drone is not the software, because it rapidly changes due to the circumstances and to the need to take rapid decisions, while the orig-

Oana Iulia Irimia: TDrone technology brings forth a series of questions that appear as fast as the technology evolves. Most of them can be answered, such as drone specifications, or how much can a drone do in contrast to its equipment.

A real question that cannot be answered at this time is who is responsible for the drone’s actions? In the military, commanders must respect the Yamashita standard, a standard that dictates accountability for war crimes, both for those done on the ground and for those committed from hundreds of kilometres away. Since military drones are flown by a pilot in the army, the accountability is applicable to them as well, be-cause such drone pilots have the same legal treatment, even if they just fly a drone. But what about civilians who fly and build drones? How are they accountable for their creations?

Since by today’s standards we cannot hold artificial in-telligence accountable, we only have the human factor as a liable party.

My first argument for the liability of the programmers is the fact that he designed the drone and the program behind it to prevent civilian damage and most of all to prevent innocent victims in armed conflict. This falls under the criminal negligence or product liability provisions that most law systems include. While the latter might feel more in place, a drone forcedly used by a third party would prove almost impossible for a programmer to be tried for damages since he took all the necessary steps, yet somebody else executed the unlawful action.

Retribution would most likely fall under the criminal negligence. This way if the programmer would not carry out all the necessary research in the system, he will be prosecuted for negligence. This is also applica-

Opening Remarks

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inal technical structure is due to remain identical.

Secondly, I would like to emphasize the essential role of the engineer during the use of the particular drone. The engineers are the only ones competent to give a verdict when their product does not seem to work as expected and when it could make the wrong decisions. This is because they designed the structure of the drone and made all the necessary simulations before implementing certain software, so they are the only ones who know which are the possible flaws or errors that could appear.

Thirdly, given that automated weapon systems func-tion in a self-contained and independent manner once deployed, the only cause of any error of a system that is in a continuous progress is technical. Examples of such systems include automated sentry guns, sensor-fused munitions and certain anti-vehicle landmines. Although deployed by humans, such systems inde-pendently verify or detect a particular type of target and then attack. An automated sentry gun, for in-stance, may fire or not, following voice verification of a potential intruder based on a password. Their degree of precision is very high. However some cases of auto-matic attacks on civilian targets have been signalled. A possible explanation to this is the lack of control or the low quality of sensors used to discriminate between combatants and civilian population.

To sum up, it is important to remember that the tehni-cal structure is the only constant for a drone system in a permanent change. It is of equal importance that the manufacturer is the only one who knows the pos-sible shortcomings of a drone and has the possibility to replace a certain weapon with another one in case of uncertainty regarding the targets or the environ-ment. Consequently, one must conclude that the role of the engineer is far more decisive than the role of a programmer in terms of responsability for the errors committed by a drone.

ble to the legal person as well, since corporations will handle programming projects and as such the legal person will be the one held accountable.

My second argument is that current technology is under the banner of being open sourced technology, meaning anybody can develop applications, mobile and desktop devices and operating systems. If for ex-ample, a person would develop an application that transforms a civilian drone that was designed for hob-by photography into a dive-bomb or a spy camera, that would mean that the developer alongside the user and platform designer would all be held responsible, since all of them allowed such reckless technology to exist. While current legislation does not fully protect manu-factures, they can still protect themselves from these unlawful designers by imposing product censorship. If a person developed a dive-bomber application on iOS and published on the application store, for free, but under a different name and description, then Ap-ple could protect itself, but if the application was de-veloped and marketed in the exact way the developer expressed it, then they are part of the problem. This brings further the need for distinct programmer and manufacturer legislations.

To sum up, as it currently stands, programmers are prone to be prosecuted for criminal negligence or product liability since they have the legal, if not moral obligation to ensure that their product meets the re-quested market criteria and do not blatantly violate basic human rights. To further conclude the idea be-hind having the need of a stronger legal framework, what the future legal provisions must ensure is a dis-tinction behind who can become a software developer for drones and who a manufacturer is of said gadgets, since in the current economy, drone manufacturers are not the same as software developers. Even though they tend to work side by side, there will always exist freelancing software developers that create other types of applications, either harmful or beneficial.

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Andrei Stoica: Even though autonomous drones are currently used in several purposes like domestic po-licing, commercial aerial surveillance and motion pic-ture filmmaking, sports or for disaster relief, their use in combat was not made official by any state. Armed unmanned aerial vehicles were developed especially as a response to the vulnerability of remote controlled drones to cyber-attacks.

Despite considering drones safer because they would reduce collateral damage, many incidents in Pakistan, Afghanistan or Yemen demonstrated their incapabil-ity to distinguish between combatants and non-com-batants. They killed children and the participants to a wedding and several other dozens of civilians in Paki-stan (BBC NEWS, 2013). In the case of autonomous and armed drones, things could get much more com-plicated.

In response to the opponent’s first argument, I would like to add that the programmer is not the first to be held responsible in case the drone takes an unfortu-nate decision by not distinguishing between com-batants and non-combatants. This is because such a mechanism has artificial intelligence, so it was created to modify its patterns depending on the circumstances on the field. The only unchanging feature will remain the structure and the capacity of the weapons. More than that, when designing the drone, engineers should also have in mind the characteristics of the area in or-der to calculate the risk of collateral damage and, in consequence, offer both lethal and non-lethal weap-ons in order to use them depending on the specific tar-gets and minimise the risk of collateral damage.

Next, I am going to demonstrate that allowing drones

Oana Iulia Irimia: Autonomous drones do exist and have been in tests for quite a while. For example, the United States of America uses the new X-47B drone that is capable of autonomous surveillance missions and could be modified to hold weapons in the future, according to mass-media (Huffington Post, 2013; Pop-sci, 2011), since this new drone is still considered a work-in-progress.

As a response to the idea behind drone killings in flash-points, such as Pakistan or Afghanistan, recall that those drones were not autonomous, they had a human pilot taking decisions, and they had a hierarchy that gives the order, even though the current drone pro-gram of the United States is under the Central Intel-ligence Agency. This means that the drones used there were simple tools and not higher forms of intelligence that take these kinds of decisions by themselves.

As a reply to the idea that a drone should have different types of arsenal, the current legal framework in most states provides a clear manifest that civilian drones be armed as little as possible and that the armament should only be non-lethal. This is the case of Canada, which uses ‘persuasive’ shock or gas technology in law enforcement. As such, current human operated drones have the option to use non-lethal weapons. Also, cur-rent civilian usage prohibits lethally armed drones, even for self-defence.

The idea behind it is that there are low resolution and quality cameras in the current generation of drones (Predator MQ-1). They are almost a decade old tech-nology and as such mistakes will be made. This, cou-pled with the gun phobia and the preemptive strategy that the United States of America developed over the

RebuttalModerator’s Note: By now you have learned from our debate how autonomous drones work, how they are used and what can possibly go wrong. Most importantly, both sides showed you who should be liable in case some-thing goes wrong. Their arguments go far beyond the mere mechanism of classic responsibility. This is because, as stated above, the use of drones has various implications. Holding a person accountable for the use of such a device does not fit in the mould of responsibility for products, as Andrei has shown. On the other hand, due to the very widespread implications and the changing circumstances in which a drone must function, Oana believes that it is the engineer that can prevent damage, and not doing so can be a basis for liability. In order to see how they respond to these issues, keep reading!

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to use both lethal and non-lethal weapons depending on the specific conditions is more useful. One can see this is true, by looking at several examples from the most famous fields where these autonomous drones were used .In many cases, drone pilots invoked the low quality of images in order to justify their incapacity to discriminate between a man with a gun or with a shovel in his hands. In the case of autonomous drones with sophisticated mechanism, but without subjectiv-ity or doubt, they could target more innocent civilians, or sick or wounded combatants. In these cases where the degree of probability for collateral victims is very high, a special programme should be used to calculate this report and decide to use non-lethal weapons in order to make a balance between utility and safety.

In response to the opponent’s second argument, I must stress upon the fact that the product censorship will not solve the problems caused by the independ-ent programme designers because, as we can observe, more and more technicians or programmers give out relevant data intentionally or non-intentionally that is further hunted by terrorists or other groups. However, in these cases, both technicians and programmers are held guilty for negligence, but especially technicians, since they offered the technical possibility of re-using the same mechanism for two different missions. In other words, the complexity of an autonomous drone mechanism is very hard to reproduce and in order to make sure it is not used by a third party, a self-destruc-tion mechanism could be integrated in it. This would be the job of the manufacturer. The application could be theoretically bought from the internet, but given the fact that it should be compatible with an intelligent computer, it is easily deductible that anyone could buy such a programme, but not anyone could build such a mechanism.

In conclusion, the use of autonomous drones by un-authorised persons is most likely the result of the neg-ligence of the engineers rather than programmers. They, as I already said, are the only ones capable of taking the decision to authorise the use of a drone, be-cause they have most of the information needed. Due to this, they should take all possible measures to adapt their design to the specific circumstances in which the drone will be used.

years, will lead to more mistakes than needed. Auton-omous drones can be used with more efficiency, but having two kinds of armaments will not be feasible as this will cause weight problems for drones. The cur-rent drone programs in any state have a package that implies intelligence, surveillance and reconnaissance. This means that for a drone to fully be autonomous, it must have access to these packages, and decision is based more on a high quality report, rather than a hunch.

Lastly, I would like to respond to the argument of not using product censorship or faulty criminal negligence prosecution. The idea behind giving a drone informa-tion, relevant or not, is part of the intelligence of the human agency or group that is using it. This means that not even the intelligence gathered will always be 100% true, but current drone technology, developed after the 2011 Iranian incident, ensures that when a drone discovers that it has a faulty system, it will go back home on its own or abandon the mission without the human part to instruct it to do so. This is a better mechanism than implementing a self-destruct mecha-nism, as this would be counterproductive to the cost of developing and building such a device. Drone operat-ing programs are software that is developed specifical-ly for a purpose. Military software is only equipped in a military computerised system and it is heavily moni-tored by capable personnel. This ensures criminal law to be applicable as a form of retribution. Civilian soft-ware, however, is very limited in functions, and this is exactly why it is easily accessible. The responsibility for faulty programming is still given to the program-mer or software engineer, while equipping the drone with devices falls under the manufacturer who only provides what the market requests. It is important to understand that military or even terrorist factions buy drones and redesign some aspects to better serve their purposes. This means that if it is substantial, then the manufacturer can no longer be held responsible.

In conclusion, autonomous and semi-autonomous weapon systems are designed to allow commanders and operators to exercise appropriate levels of hu-man judgment over the use of force and therefore they should be held responsible for the consequences that occur.

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Andrei Stoica: It can be clearly seen that the main clash-es in the debate formed around four ideas.

Firstly, even though both the technician and the pro-grammer should be held responsible for the acts of au-tonomous drones, the technician should be held respon-sible for the acts of an artificial intelligence designed by him, while the programmer should be controlled in terms of the results of the software created by him.

Secondly, in the case of terrorist groups that buy these drones, transform them mechanically and use certain software in order to change their initial purpose - maybe only for surveillance -, we cannot hold the engineer li-able for the acts of that particular drone. In this case, the manufacturer should be charged for criminal negligence for selling these products, for lack of surveillance in case they were stolen from the factories, along with the ones who intentionally made the changes.

Thirdly, automated weapon system, created to indepen-dently verify and detect different targets, have various forms of control, such as voice verification. This is why the errors that appeared in several contexts of automated fire over civilians have a unique explanation – the techni-cal errors that must be fully attributed to the engineer.

Lastly, there is the possibility of using two kinds of weap-ons for autonomous drones, depending on the specific circumstances in order to give the system the possibility to immobilise non-combatants or combatants that can be found very close to innocent victims. In this regard, however, the discussion remains open, as up to this mo-ment current civilian usage prohibits the use of lethally armed drones because they present a high degree of risk.

Oana Iulia Irimia: To sum up the ideas behind the necessity of having drone programmers, manufactur-ers and pilots accountable for drone usage, one has to look at the technology that was also considered harm-ful at its conception, but soon proved that it has more strengths than weaknesses. To compare this idea, take the internet. It has evolved since ARPANET first started to develop the framework. Since then, people with the intent of causing damage started to use the internet and as such legal framework has been in effect to stop them, with a high yielding result. In the same way, drone pro-grammers should be dealt with, by existing legislation and future legal provisions, which envision the need of licensing by an aviation administration. For example, the ‘Snoopy’ drone, developed by Glenn Wilkinson, a secu-rity researcher, can fly over hundreds of people in a few minutes and steal data located on their mobile phones without them knowing, by simulating a Wi-Fi connec-tion. This paves the way for the idea that drone operators and drone software developers should be prosecuted for unlawful usage of the gadgets.

While civilians have their share of legal provisions, mili-tary pilots are susceptible of falling under the principle of the chain of command, as Peter Mauer, president of the International Committee of the Red Cross, stated in 2013, and as such they will be treated as combatants even if they are miles away from the battlefield.

Autonomous drones will never be left unchecked by a human overseer and as such the same person will be prosecuted and judged for every action taken up until that point. This is in part of due to the democratic values and principles of humanity that we have since birth, and in part due to the public opinion which will always be against self-aware artificial intelligence.

ConclusionModerator’s Note: This debate took a quite interesting turn. While in the first part the opponents argued on the liability of the programmers or the engineer for their own actions in the use of a drone, in the second part, both opponents took the discussion further and analysed the possibility of liability for the actions of others who use the drone and damage third parties.

I hope you enjoyed it and it provided some food for thought!

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Stay up to date with the latest opportunities

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DeviL’s Advocate

PRO - Rebuttal

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WE WOULD LIKE TO THANK ALL THOSE WHO CONTRIBUTED TO THIS FIFTH EDITION:Alexandru CorasAna PinteaAndreea StefanAndreia-Gemma MoraruBianca Alexandra PruneaDiana BuzilaFrancesca EspositoIngrid ApetreiOana Iulia Irimia

Oana GliganRadu SomleaRadu SuicescuRaluca Alexandra MaximRaluca-Andreea Trinca-GavanRuxandra PopescuStella Turnsek

We would like to extend a special thank you to Mr Daniel Nitu, Mr Eugen Iordachescu, and Ms Leonie van Lent for taking the time to offer us an interview, to Andrei Stoica, for his contribution to this edition's debate and to all lawyers who answered this issue's question.

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