Studia Universitatis Babeș-Bolyai Iurisprudentia

About the excess in the forensic expert report (or „est modus in rebus”)

Claudia-Laura Moșoarcă, Sorin Alămoreanu — Wed, 16 Apr 2025 00:00:00 +0000

A typology of excess in forensic expert reports opens a short theoretical perspective on the need for brevity and balance of their scientific content, as complementary requirements to its rigor and validity.

Unfair terms regarding the variable interest rate in the event of publication of the reference index by an administrative act

Juanita Goicovici — Wed, 16 Apr 2025 00:00:00 +0000

The article addresses the invalidation of the unfair terms regarding the variable interest rates from credit agreements, in the hypotheses of the publication of the reference index by an administrative act, while valorizing the transparency requirements in the pre-contractual relationships that are incumbent on the professional creditor. Emphasizing the arguments contoured in the recitals of the CJEU decision of December 12^th, 2024 in case C-300/23, Kutxabank, we concluded that the failure to communicate to the debtor the information relating to the adjustment of the interest rate by reference to a negative margin opens the door to the elimination of unfair terms, despite the fact that the term at issue refers to an official benchmark, the details of which were published in an administrative act.

Objective justifications in article 102 TFEU cases

Laura Lazăr, Ioan Lazăr — Wed, 16 Apr 2025 00:00:00 +0000

Objective justifications in EU competition law refer to legal defences invoked by undertakings to justify behaviour that would otherwise be considered anticompetitive under EU competition rules. In the context of the provisions of art. 102 TFEU, these justifications provide exceptions to the general prohibition of abuse of dominance, permitting companies to engage in activities deemed necessary to achieve legitimate business objectives or serve the public interest. Objective justifications are pivotal in ensuring fair competition within the European Single Market, particularly under Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU). While Article 101 TFEU contains an exemption clause, the concept of objective justification in the context of Article 102 TFEU has been developed by the Courts.

The entry explores the significance, application, and limitations of objective justifications within the framework of Article 102 TFEU, focusing on key defences, such as: efficiency gains, objective necessity, public interest, legitimate business behaviour.

The assessment of objective justifications involves a case-by-case analysis, considering factors such as the conduct's effects on competition, consumer welfare and the fulfilment of a proportionality test. Objective justifications play a crucial role in balancing the enforcement of Article 102 TFEU with the need to allow dominant firms to engage in legitimate business activities. By providing a framework for defending certain conduct, objective justifications ensure that the application of EU competition law remains fair and focused on protecting competition rather than punishing dominance.

The issue of information asymmetry in the creditors' and debtor’s game in insolvency proceedings – assumptions and perspectives

Ioan Șumandea-Simionescu — Wed, 16 Apr 2025 00:00:00 +0000

At the European and global levels, bankruptcy laws seem to follow a specifically national pattern. However, depending on the level of protection allocated either to the creditor or the debtor, bankruptcy systems can be divided into creditor-oriented or debtor-oriented systems. The ultimate goal of this analysis is to show that, contrary to perception devised at the European and Romanian level, the protection of creditors cannot be achieved by implementing a strict pro-creditor bankruptcy law. This end result can only be reached by implementing a pro-debtor bankruptcy system.

This conclusion, as we will show below, is based on the premise that the interests of creditors and debtors are not on contradictory positions as they have been perceived up to this moment. Rather we have found there seems to be an alignment of the interests of the two. Thus, the efficiency of the Romanian bankruptcy laws cannot be screened and tested in relation the existing creditor protection mechanism. It’s true efficiency can only be shown by considering its debtors recovery rate, thus ensuring an end result where the satisfaction and economic interests of creditors are met.

This analysis is divided into two parts. In the first part we consider the main indicators of a pro-creditor bankruptcy law focusing on the analysis of the Romanian bankruptcy model. We will also consider the efficiency of this typology of law, concluding that it does not achieve the desired result of providing an adequate protection for creditors in bankruptcy proceedings. The second part of our endeavour brings forth a rethinking of the systemic creditor protection during bankruptcy proceedings through the analysis of the concept of informational asymmetry and corporate governance. Finally, we conclude that the only way one can achieve a adequate level of creditor protection in Romanian bankruptcy law is through the implementation of an efficient mixed-incentive bankruptcy legislation.

The legal concept: a linguistic exploration of legal jargon

Paul Vasilescu — Wed, 16 Apr 2025 00:00:00 +0000

The textualist overview of contemporary positive law reveals its unique lexicon and structure. Every legal statement holds value only through its deontic force, which is the ultimate goal of all legal research conceived as a collection of texts with their own morphology and integral parts. A legal concept is not synonymous with a legal notion, as only the former can be defined as an already established legal regime. This is our thesis, which also confirms the difference between legal doctrine and its epistemology. The antitheses will be synthesized to better refine our research, but also to avoid closing it off.