Pravni vjesnik

APPARENT CONTRACTS BETWEEN NULLITY AND INEXISTENCE

Armando Demark — 2023-12-28

In this paper, the authors discuss apparent contracts as regulated by Article 285 paragraph 1 of the Croatian Civil Obligations Act as a cause of either the nullity or the inexistence of the contract. In several recent decisions of the Supreme Court of the Republic of Croatia, one can notice the standpoint that apparent contracts are not null contracts, but inexistent contracts. The aforementioned standpoint resulted in the rejection of many claims for the determination of nullity of apparent contracts. Therefore, in the first part of the paper, the authors analyze the subject case-law, as well as apparent contracts in Croatian and comparative law. At the same time, inexistent contracts have been the subject of discussion exclusively from the point of view of legal theory. The second part of the paper is consequently focused on the analysis of inexistent contracts, their practical value and their comparison to null contracts. The authors also give specific attention to the difference between the moment of entering into a contract and the creation of the contract’s legal effects, as well as the need for the differentiation between legal consequences of contracts that are not formed, contracts that are not entered into, contracts that do not produce legal effects and contracts that are explicitly null. In the conclusion, the authors discuss the practical necessity of distinguishing null and inexistent contracts and propose de lege ferenda suggestions for normative improvement of the Civil Obligations Act in the part that pertains to contracts with no legal effect.

ARBITRABILITY OF THE EXCLUSION OF AN LLC MEMBER

Jelena Arambašić — 2023-12-28

The core of the work is a positive-legal analysis of the arbitrability of the exclusion of an LLC member. To justify the positive attitude towards the arbitrability of these proceedings, German jurisprudence and court practice were analysed, since they have been proven to be the most fruitful creators and shapers of the subject of arbitrability in company law and, as the most significant authority on this issue, have created over the years, a series of relevant works and decisions, primarily the trilogy (or tetralogy) of Schiedsfähigkeit/Arbitrability decisions. It has been argued that the possibility of excluding the jurisdiction of courts in proceedings for the exclusion of an LLC member and, instead, of forming an arbitration court is the result of private autonomy in limited liability companies, whose limitations are determined in advance. The paper holds an affirmative position regarding the arbitrability of the exclusion of an LLC member based on the LLC’s articles of organization and the exclusion due to an important reason, because of the objective and subjective arbitrability of the exclusion procedures.

GDPR COMPLIANCE CHALLENGES IN CROATIAN MICRO, SMALL AND MEDIUM SIZED ENTERPRISES

Anamarija Mladinić — 2023-12-28

The General Data Protection Regulation (EU) 2016/679 which applies uniformly since 25th May 2018 in the European Economic Area (EEA) requires small and medium enterprises (SMEs) to respect the right to personal data protection of their clients, customers, and employees. The GDPR is designed to strengthen the data protection rights of all individuals within the EEA ensuring more effective protection for consumers and increased privacy considerations for businesses. However, even after more than four years of its entry into full application, the implementation of the GDPR is still an issue for Croatian SMEs, who, unlike the larger companies, very often lack the human and financial resources to comply with the data protection legal framework. This paper covers theoretical considerations and results of an online survey conducted with 345 SMEs in the Republic of Croatia with the aim to gain insights into their GDPR compliance hurdles. The results of the study have shown that the level of understanding of obligations arising from the GDPR among Croatian SMEs is rather low and that compliance with the data protection legal framework is not at a satisfactory level.

CONVERGENCE OF THE MEMBER STATES WITH COUNCIL REGULATION 2022/1854

Ivo Mijoč — 2023-12-28

The paper uses a modern research approach to clarify the implications of current tax policy in the context of additional taxation of surplus profits. Although numerous exceptional circumstances can affect an apparent jump in profits, the law provided for only a few deductions to reduce the tax base, which places the Croatian legal framework in a limited and rigid circle of EU countries. The objective of this paper is to establish a theoretical framework for the analysis of the impact of additional taxation on surplus profits. The review and analysis of secondary data describe the national regulatory frameworks of publicly available reports for the EU27. Therefore, the paper attempts to provide answers to the research questions and determine the degree of compliance of the national frameworks within the past 48 days. Partial harmonisation effects have been identified and the possible use of proposals and solutions implies further qualitative and quantitative analysis of the potential and limitations of additional taxation and the possible impact on the overall economy, taking into account the fact that public empirical research on the perception of additional taxation is not available or does not exist in the Croatian framework. The discussion section provides an assessment of all exemptions and deductions for determining the tax base on windfall profits and the resulting impact on direct taxpayers with proposed solutions.

REGULATION OF CITIZENS’ RIGHTS IN THE REPUBLIC OF CROATIA FROM 1990 TO 1992

Ivan Kosnica — 2023-12-28

The paper analyses the new regulation of citizens’ rights in the Republic of Croatia established in the early 1990s. As part of the paper, a brief overview of the regulation of citizens’ rights in Croatia on the eve of democratic changes has been given. The author elaborates on the arrangement of citizens’ rights according to the Constitution of the Republic of Croatia of 1990 and the regulation of citizens’ rights in the period from the adoption of the Constitution until the declaration of independence on 8 October 1991. In addition, the author analyses the regulations on citizens’ rights since 8 October 1991 and the rules on citizens’ rights enacted after the declaration of independence. The main conclusion of the paper is that in the early 1990s, there was a significant break with the tradition in the direction of stronger emphasis on the individual position of a citizen and the protection of their rights. Similarly, the author points out that the transition to a new model of regulation of citizens’ rights was hindered by wartime circumstances and the restrictions on citizens’ rights that were introduced as a result of those circumstances.

FIDUCIARY OWNERSHIP IN THE ACT OF OWNERSHIP AND OTHER REAL RIGHTS AND THE ENFORCEMENT ACT – THE FUNDAMENTAL DIFFERENCES AND SOME COMPARATIVE SOLUTIONS

Maja Proso — 2023-12-28

Fiducia and, in relation with it, fiduciary ownership, was introduced into the Croatian legal system with the adoption of the Act on Ownership and Other Real Rights in 1996. Soon after, the institute was also introduced in the Enforcement Act., which regulates the institute as lex specialis. What is particularly interesting about fiducia and fiduciary ownership in Croatian legislation, and what is at the center of the author’s scientific interest in this paper, are the irreconcilable conceptual differences in the regulation of the institute between the Act on Ownership and Other Real Rights and the Enforcement Act. After presenting the fundamental differences between regulations in the Act on Ownership and Other Real Rights and Enforcement Act, some comparative solutions shall be presented – those in the former SFRJ states and in the Federal Republic of Germany. Based on the research carried out in this way, the authors ask the question whether legal solutions in the Enforcement Act should be modeled on those in the Act on Ownership and Other Real Rights, which arrangement should be given priority, and whether this would contribute to the equality of parties in the fiduciary insurance relationship, i.e. the realization of the principle of fairness.

NFTs AND COPYRIGHT – A SPECIAL REFERENCE TO SO-CALLED “ART NFTs”

Iza Razija Mešević — 2023-12-28

The paper deals with the phenomenon of non-fungible tokens (NFT), and its particular focus is on the so-called “Art NFTs”, and on the legal demystification of the superior attributes assigned to these tokens. The paper addresses a number of issues. Firstly, it examines the legal and technical possibility to actually create a “digitally unique” piece of author’s work. Secondly, it explores the acquisition of ownership and copyright in the work of art, to which the NFT referres to, during the process of creation and transfer of that NFT. Finally, the paper scrutinizes the topics of copyright violations, which may occur while minting the tokens and of the destruction of the physical original of the tokenized work. The paper also deals with two relevant cases from practice (Miramax, LLC v. Tarantino and Free Comb With Pagoda, J.M. Basquiat), which illustrate how the so-called “Art NFTs” collide with copyright principles.

POVERTY AND SOCIAL EXCLUSION OF UNEMPLOYED PERSONS

Katarina Marošević — 2023-12-28

There are numerous challenges that economies face today. Unemployment has many negative outcomes, with poverty and social exclusion being among the most severe. Due to the pronounced instability of economies in the world, generally as a consequence of the pandemic, the consequences of the war in Ukraine, currency changes, and other social issues, the question is raised as to how many employees are under the potential threat of some type of poverty or unemployment. People who do not have enough resources to meet their material needs can be considered to be living in poverty. Therefore, unemployment is not only a cause but also a consequence of poverty and social exclusion. Social exclusion implies the inability to participate in social, economic, cultural, and political life and can be considered a multifaceted process in which a person’s opportunities for employment, access to health care, inclusion in social networks, and other social processes are reduced. This paper aims to analyse the share of people living in poverty and social exclusion in the Republic of Croatia for the period from 2015 to 2021. It also aims to analyse the most frequently used topics discussed in the fields of unemployment as a macroeconomic field and social work as a social field. In that manner, an interdisciplinary approach has been taken. The paper will analyse the trends of the unemployed as a part of the population that, due to non-participation in the labour market, is in potential danger of poverty and social exclusion. Therefore, the tools used in the Republic of Croatia in order to influence the reduction of poverty and social exclusion of unemployed persons are analysed as well as the disproportion expressed at the county level in the Republic of Croatia. Special emphasis is placed on the role of the social work profession in advocating for and representing vulnerable groups and on the measures by which the social welfare system responds to the problems of poverty, social exclusion and, indirectly, unemployment. The paper presents comments and recommendations for potential successful tools for reducing the problem of poverty and social exclusion.

INTERPRETATION OF THE SUBJECT CHANGE OF PUBLIC PROCUREMENT CONTRACTS BASED ON SUCCESSION THROUGH JUDGMENT NO C-461/20 OF THE COURT OF JUSTICE OF THE EUROPEAN UNION

Zsolt Pfeffer — 2023-12-28

During the performance of public procurement contracts such circumstances may arise that require modification of the original conditions. The freedom of classical public law contracts may not predominate as a result of the European Union directive regulations, since it is a basic requirement that the contract be fulfilled within the conditions of the original tender announcer and the offer, however the possibility of amending the contract must be ensured in cases where it is necessary. The question of the change of subject may be mentioned as a particular case. The Court of Justice of the European Union in its decision, case no C-461/20 examined the question of the change of subject arising from legal succession and examined the framework for the interpretation of the directive conditions, with regards of the context and without questioning other non-codified conditions. Based on the judgment, further issues such as the general theoretical foundations of the contract amendment, the relations between the change of subject and the contract amendment, the deviations from other directive cases due to the change of subject, the necessity of a new public procurement procedure and the unlawful omission of the public procurement procedure, may be investigated. Contract amendment options regulated in European Union directives like the above-mentioned C-461/20 of the Court of Justice of the European Union raise many questions of legal interpretation. The study analyses the legal basis that provides the possibility of subject change based on legal succession, going beyond the framework of traditional legal case analysis, comparing it with other legal bases for amending contracts, contrasting the arguments in the judgment, and relying on other relevant court decisions.

THIRD PARTY CO-OWNERSHIP OF THE OBJECT OF ENFORCEMENT AS A RIGHT THAT (DOES NOT) PREVENT ENFORCEMENT

Stojana Petrović — 2023-12-28

When enforcement is determined on an object that is co-owned by the executor and a third party who is not the executor, domestic and comparative procedural theories identify (only) the concept according to which the co-ownership of the third party represents their exclusive right, starting from the fact that it is natural for a forced settlement enforcement requester to be carried out based on the value of the executor’s property. In addition to the above, two other models are identified in the paper using the normative- dogmatic and comparative law method – the right of co-ownership of the third party on the object of execution, which represents a conditional exclusive right, and their right which is not an exclusive right. The legal-value reach of the identified legal models is examined by analyzing the current domestic and foreign procedural theories, as well as the current domestic judicial practice, and by examining their compatibility with the convention standard of protection of the third party’s right to peaceful enjoyment of property. Since the laws of the entities of Bosnia and Herzegovina accept opposite models regarding this issue, the research aims to point out to the legislators in the entities of Bosnia and Herzegovina the importance of conceptual harmonization as soon as possible. It is concluded that from the identified legal models, the protection of the right to peaceful enjoyment of the property of a third party is provided (only) by the one that envisages the co-ownership of this person as his exclusive right, either on the movable or immovable thing on which enforcement is determined.