Competition Law Sanctions: A Limit with respect to Fundamental Human Rights under the ECHR

În A.U.B.D. – Forum Juridic nr. 2/2026 a fost publicat articolul cu titlul „Competition Law Sanctions: A Limit with respect to Fundamental Human Rights under the ECHR”, redactat de asist. univ. dr. Alexandru-Șerban Rățoi, din cadrul Facultății de Drept, Universitatea din București.
Autorul analizează regimul juridic al sancțiunilor din dreptul concurenței prin prisma drepturilor fundamentale garantate de Convenția Europeană a Drepturilor Omului. Amenzile record, programele de clemență, măsurile interimare și acțiunile în despăgubiri produc efecte economice și reputaționale majore asupra întreprinderilor. În acest context, studiul examinează raportul dintre eficiența, proporționalitatea și efectul disuasiv al intervenției autorităților, pe de o parte, și respectarea garanțiilor Convenției, pe de altă parte.
O atenție deosebită este acordată articolelor 6 și 8 CEDO, precum și articolului 1 din Protocolul nr. 1. Jurisprudența Curții Europene a Drepturilor Omului conturează limitele procedurale ale investigațiilor în materie de concurență, îndeosebi în privința perchezițiilor, a colectării probelor și a dreptului la un control jurisdicțional efectiv.
Pornind de la aceste constatări, studiul susține necesitatea unei analize economice a dreptului pentru evaluarea impactului sancțiunilor, al măsurilor interimare și al despăgubirilor. Miza este reprezentată de asigurarea unui echilibru între protecția pieței, respectarea drepturilor fundamentale ale întreprinderilor și repararea integrală a prejudiciilor suferite de persoanele afectate de practicile anticoncurențiale.

Case Selection by Writ of Certiorari in the Supreme Court of the United States (2) Conceptual Divergences and Contemporary Challenges—Where Is the Supreme Court Headed?

The article titled “Case Selection by Writ of Certiorari in the Supreme Court of the United States of America” was published in A.U.B.D. – Legal Forum No. 2/2026 (2) Conceptual Divergences and Contemporary Challenges—Where Is the Supreme Court Headed?”, authored by Associate Professor Gheorghe-Liviu Zidaru, Ph.D., of the Faculty of Law, University of Bucharest.

The author points out that the U.S. Supreme Court has very broad, almost discretionary, authority in selecting the cases it chooses to hear. But what is the philosophy underlying one selection strategy or another?
Those who believe that case law should evolve step by step, incrementally, starting from the specific resolution of concrete cases, tend toward a more generous selection, while those who argue that the Supreme Court should formulate broad, quasi-legislative rules approach petitions for certiorari with reluctance and tend to select fewer cases for review.
The Supreme Court’s tendency to select specific legal issues (rather than necessarily the entire case) raises a number of concerns regarding the compatibility of this procedure with the function of a court, and the steady decline in the number of cases decided on the merits (merits docket) has drawn criticism. At the same time, another docket—sometimes called the “shadow docket” or the “interim docket” (or “emergency docket”)—has taken on a prominent role —while also being heavily criticized—amid the growing polarization of American politics and society, which has led to a tendency to resolve just about everything through the courts—from abortion rights to the constitutionality of the law banning TikTok, to the redrawing of single-member electoral districts, and to the rights of migrants. Against this backdrop, the issuance of unsupported rulings, as well as the Court’s tendency to intervene quite forcefully in the work of lower courts, has sparked significant controversy. In this context, proposals—some more partisan than others—have been put forward to reform the Supreme Court.

The Evolving Role of the Judge in Ultra Vires Proceedings in French Administrative Litigation

The article titled “The Evolving Role of the Judge in Ultra Vires Proceedings in French Administrative Litigation,” written by Jean-Luc Matt, a State Councilor at the Council of State of the French Republic, was published in A.U.B.D. – Legal Forum No. 2/2026.

This article analyzes how the appeal for abuse of power (recours pour excès de pouvoir), a concept developed by the French Council of State, has evolved in recent decades, while remaining the foundational remedy in French administrative litigation. It first examines the expansion of the scope of acts subject to challenge, particularly “soft law” instruments that produce significant effects, as well as the limits of this evolution, illustrated by declarations of political intent. The article then analyzes how the injunctive powers introduced in 1995 led the Council of State to develop a dynamic assessment of legality in cases involving refusals to repeal normative acts or to adopt measures of a general nature. The article shows that this approach should not be extended to individual decisions, as the judge must not substitute for the administration. Finally, the article examines the regularization during proceedings of unlawful acts in the areas of urban planning and the environment and warns that the judge must not become one who never annuls.

Keywords: appeal for abuse of power, French administrative litigation, French Council of State, challengeability of administrative acts, soft law, dynamic assessment of legality, powers to issue injunctions, rectification of unlawful administrative acts.

The ROMATSA Case: A Judge Is Not the Advocate for His or Her Own Ruling

The article titled “The ROMATSA Case: The Judge Is Not the Advocate of His Own Decision,” written by Assistant Professor Cristi Danileț, Ph.D., of “Petre Andrei” University in Iași.
The study examines the relationship a judge maintains with his own decision after it is rendered, using the ROMATSA case as a starting point. The proposed thesis is that procedural disengagement must be accompanied by jurisdictional detachment: the judge may continue to believe in the correctness of the ruling, but must not make upholding it a personal stake. The analysis distinguishes between explaining the judgment, defending judicial independence, and publicly advocating for the legality of one’s own decision, drawing on CCJE Opinion No. 25/2022, the Bangalore Principles, Recommendation CM/Rec(2010)12, and the case law of the Privy Council. On a philosophical level, the study links this requirement to the judge’s third-party status, to Ricœur’s “just distance,” and to Kojève’s concept of the impartial and disinterested third party, proposing the notions of “judicial detachment” and “the virtue of detachment.”

Penalties for Criminal Offenses Committed in Cyberspace as a Restriction on Human Rights

The article titled “Penalties Applicable to Criminal Offenses Committed in Cyberspace as a Limitation on Human Rights,” written by Assistant Professor Dorel Herinean, Ph.D., of the Faculty of Law at the University of Bucharest, was published in A.U.B.D. – Legal Forum No. 2/2026.
Any sanction imposed on a person inherently entails a limitation of that person’s rights and freedoms. The sanctions provided for by law and applied in judicial practice must be tailored both to the offense and to the individual. From this perspective, certain categories of offenses share common elements that influence the sanctions, and this article aims to examine these elements in the context of cybercrimes in the broad sense.
The article analyzes the sanctions provided for under Romanian criminal law and, in particular, the effects these may have in cyberspace, while also examining the limits and examples of best practices analyzed in the case law of the European Court of Human Rights (ECHR) and reviewing several examples from other jurisdictions.
The article also addresses the effectiveness of traditional sanctions in cases of crimes committed exclusively in the digital environment and the need to adapt current legislation so that penalties can truly achieve their preventive purpose.

Official documents sometimes form the basis of rights acquired by parties abroad, which may mean that, in order to enforce those rights in Romania, they must be presented to the Romanian authorities.
Given this reality, this study has two objectives. First, it analyzes the legal mechanisms established at the national and international levels for certifying, in the forum state, the official nature of documents drawn up in another country and, at the same time, for overcoming the obstacle that the principle of national sovereignty might pose to the recognition of the effects arising from such official status. Second, the article examines the scope of the effects that foreign official documents produce in Romania, specifically the probative value they hold with respect to the legal situation they reflect.

The Legal Status of Foreign Official Documents Used as Evidence in Romania

The article titled “The Legal Regime of Foreign Official Documents Used as Evidence in Romania,” written by Associate Professor Șerban-Alexandru Stănescu, Ph.D., of the Faculty of Law at the University of Bucharest, was published in A.U.B.D. – Legal Forum No. 2/2026.
Official documents sometimes form the basis of rights acquired by parties abroad, which may mean that, in order to enforce them in Romania, they must be presented to Romanian authorities.
Based on this reality, this study has two objectives. First, it analyzes the legal mechanisms established at the national and international levels for certifying, in the forum state, the official nature of documents drawn up in another country and, at the same time, for overcoming the obstacle that the principle of national sovereignty might pose to the recognition of the effects arising from such official status. Second, the article examines the scope of the effects that foreign official documents produce in Romania, specifically the probative value they hold with respect to the legal situation they reflect.

The European Order for the Disclosure and Preservation of Electronic Evidence. Regulation (EU) 2023/1543 and the Limits of Equating European Orders with the Evidentiary Procedures Set Forth in the Code of Criminal Procedure. Comments on Draft Law No. L272/2026

The article titled “The European Order for the Disclosure and Preservation of Electronic Evidence. Regulation (EU) 2023/1543 and the Limits of Equating European Orders with the Evidentiary Procedures of the Code of Criminal Procedure. Comments on Draft Law No. L272/2026,” authored by Associate Professor Radu Slăvoiu, Ph.D., of the Faculty of Law, “Nicolae Titulescu” University in Bucharest, and Lecturer George Zlati, Ph.D., from the Faculty of Law and Social Sciences, “1 Decembrie 1918” University of Alba Iulia.
The article analyzes European orders for the disclosure and preservation of electronic evidence, as regulated by Regulation (EU) 2023/1543, effective as of August 18, 2026, and draft law L272/2026 regarding its implementation into domestic law. It examines issues left open by the Regulation, ranging from the foreign element to the regime governing cryptographic keys under the provider’s control. Of greatest practical relevance is the discrepancy between the classification of data under the Regulation and that under domestic law, where data requested solely for the purpose of identifying the user—treated as minimally intrusive—are classified as traffic data. The authors conclude that defining the European order through domestic procedural law imposes the limitations of national evidentiary procedures on an instrument of Union law, which may result in a conflict with similar domestic cases and a risk of illegality that only becomes apparent ex post.

The Government's Assumption of Responsibility—A Shaky Bridge Between the Two Palaces?

The article titled “Government Accountability—The Shaky Bridge Between the Two Palaces?”, written by Victor-Andrei Căzăceanu, a student in the Faculty of Law at the University of Bucharest, was published in A.U.B.D. – Legal Forum No. 2/2026.

Given the upward trend in the use of the Government’s assumption of liability since 2025, the author believes that an analysis of this atypical method of lawmaking is timely. Thus, the article includes an analysis of the relevant legal framework and constitutional case law, statistics on the 38 instances in which the government assumed responsibility for bills, as well as a brief overview of the similar legal frameworks in other legal systems.

The conclusion of the research is that there is a need for a potential revision of Article 114 of the Constitution to establish limits—both regarding the scope of social relations for which the Government’s responsibility may be invoked and the frequency with which the executive branch may resort to this constitutional procedure. In addition to these limits, the author concludes that, alongside the institution’s existing subjects—namely, the program, the general policy statement, and the draft law—the groundwork can be laid for a new subject—the legislative package—so that the mechanism can be refined.

Keywords: legislative-executive relations; parliamentary law; exceptional legislative procedure; comparative law; separation and balance of powers.

Summoning Certain Individuals in Cases Involving Juvenile Offenders: Protection for the Minor or Just Another Formality to Fulfill?

The article titled “Summoning Certain Individuals in Cases Involving Juvenile Offenders: Protection for the Minor or Just Another Formality to Be Fulfilled?”, written by Larisa-Manuela Mihuț, was published in A.U.B.D. – Legal Forum No. 2/2026.

The objective of this study is, on the one hand, to summarize the criticisms that can be leveled against the derogatory provisions of the Code of Criminal Procedure concerning persons summoned to appear in criminal proceedings against a minor suspect or defendant and, on the other hand, to propose solutions for addressing the legislative vulnerabilities identified in this area. The study also refers to case law decisions relevant to the subject at hand.

Procrustes’ Bed in Local Public Administration: If the Central Government Fails, Can the Mayor and the Local Council Curtail Economic Freedom? The Case of Gambling

The article titled “Procrustes’ Bed in Local Public Administration: If the Central Government Fails, Can the Mayor and the Local Council Curtail Economic Freedom? The Case of Gambling,” written by Bogdan Bocăneală, a student at the Faculty of Law of the University of Bucharest.

This article analyzes, from the perspective of public economic law, the constitutional limits on the authority of local public administration bodies to restrict the exercise of an economic activity that is regulated and licensed at the national level, using the phenomenon of gambling as a case study. Building on the amendments introduced by Emergency Ordinance No. 7/2026, the paper examines the relationship between the economic freedom guaranteed by Article 45 of the Constitution and the obligations imposed on the state by Article 135: on the one hand, the obligation not to undermine the market economy and free competition pursuant to paragraph (1), and, on the other hand, the obligation to intervene to protect the public interest pursuant to paragraph (2). The analysis highlights the risks of regulatory delegation that transfers the resolution of a national public policy issue to the local level and assesses the compatibility of prohibitive measures with the constitutional requirements of legality, proportionality, and non-discrimination. It is argued that general and permanent prohibitions may constitute an abuse of power, thereby undermining the very substance of economic freedom. Finally, the applicable mechanisms of judicial review are analyzed, both in administrative litigation and through the exception of unconstitutionality.

Keywords: economic freedom, proportionality test, gambling, local government, regulatory state.