Hungarian Yearbook of International Law and European Law

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Issue 1, 2022 Expand all abstracts

Editorial Comments: Symbol of Symbols. The Significance of the Gabčíkovo-Nagymaros Case from a Personal Perspective

Foreword to Vol. 10 (2022) of the Hungarian Yearbook of International Law and European Law

Authors Péter Kovács
Author's information

Péter Kovács
Péter Kovács: chairman of the Editorial Board, Hungarian Yearbook of International Law and European Law; professor of international law, Pázmány Péter Catholic University, Budapest; judge, International Criminal Court, the Hague (2015-2024).
The Gabčíkovo-Nagymaros Project Case Judgment: 25 Years On

Buds to Blossom Later

The Precautionary Principle, Environmental Impact Assessment and Intergenerational Equity in the Gabčíkovo-Nagymaros Project Case and Thereafter

Keywords ICJ, Gabčíkovo-Nagymaros judgment, intergenerational equity, international environmental law, precautionary principle
Authors Boldizsár Nagy
AbstractAuthor's information

    Why did the ICJ fail to apply the precautionary principle, the duty to conduct environmental impact assessment and the respect for intergenerational equity in the Gabčíkovo-Nagymaros Project Case in 1997? Why and how has it circumvented these concepts/principles then, most of which later emerged in its subsequent jurisprudence – that is the central question of this article. It reviews the international legal status of these concepts before the judgment was adopted in 1997, the arguments of the parties in the written and oral pleadings referring (or not) to these concepts and the “afterlife” of the three concepts/principles, showing that in the 25 years after the judgment environmental impact assessment became a firmly established international legal obligation, the precautionary principle exerts stronger influence but is still somewhat debated as to its precise content, especially outside the EU and intergenerational equity (fairness to future generations) has remained a guiding principle upon which no direct claim may be based, but that may change soon in light of the climate litigation reviewed. The hardly visible undercurrent of the text suggests that had these concepts/principles been adopted by the international community by 1997, the ICJ could have reached a different conclusion. But time was not ripe for that in 1997.

Boldizsár Nagy
Boldizsár Nagy: associate professor of law, Central European University, Vienna; counsel of Hungary at the ICJ during the Gabčíkovo-Nagymaros litigation.
The Gabčíkovo-Nagymaros Project Case Judgment: 25 Years On

The Gabčíkovo-Nagymaros Case and Water Law

Keywords water law, equitable utilization, no-significant harm rule, shared resource, Gabčíkovo-Nagymaros case
Authors Malgosia Fitzmaurice
AbstractAuthor's information

    The Gabčíkovo-Nagymaros case is one of leading cases in international law, which has crystallized and evolved knowledge in many areas of international law. This case is also immensely important and instrumental for the development of water law. The ICJ observed the importance of a common right and cooperation in the shared resource and has laid down the foundation of the further development of modern water law. The ideas, which have originated in this case were later fully developed and unpacked in other cases of the ICJ dealing with water law, such as the Pulp Mills and Costa Rica/Nicaragua cases. The Court has emphasized the importance of the management of shared water resources and linked it to general environmental law. It has also supported and relied on the principle of equitable utilization. The ICJ confirmed the right of Hungary to an equitable and reasonable share of the resources of an international watercourse and supported the concept of common utilization of shared water resources. The ICJ adopted a very forward-looking approach to water law. It has taken into consideration the provisions of the 1997 Convention which was in force at the time, as codifying the principles of water law and shared water resources, such as equitable utilization principle and the no-significant harm rule. It may be said that the Gabčíkovo-Nagymaros case is a direct continuation and development of the River Oder case, which has laid down the foundations of contemporary international water law.

Malgosia Fitzmaurice
Malgosia Fitzmaurice: professor of international law, Queen Mary University of London.
The Gabčíkovo-Nagymaros Project Case Judgment: 25 Years On

The 25th Anniversary of the Gabčíkovo-Nagymaros Case

The Potential and Limits of International Law in Environmental Protection

Keywords international environmental law, necessity defence, state responsibility, treaty termination, Gabčíkovo-Nagymaros judgment
Authors Christina Binder
AbstractAuthor's information

    The article deals with the Gabčíkovo-Nagymaros case as one of the first true ‘environmental cases’ considered by the ICJ. On the basis of the ICJ’s findings in the case, it examines the potential and limits of the traditional ‘tool-box’ of general international law when dealing with environmental concerns. Drawing on the ICJ’s findings in the Gabčíkovo-Nagymaros case, the article more particularly argues that the circumstances precluding wrongfulness in the law of state responsibility (the necessity defence) and termination grounds of the law of treaties (supervening impossibility and fundamental change of circumstances) are most limited instruments to respond to the growing need for environmental protection. At the same time, a dynamic interpretation of treaty obligations offers certain opportunities to incorporate subsequent developments in environmental knowledge and to respond to environmental concerns. Finally, the article contextualizes these findings in a broader mise-en-perspective in light of the last 25 years, from three sides: a case-specific perspective, an institutional/ICJ perspective and through the lens of more recent jurisprudence of the ICJ in environmental matters.

Christina Binder
Christina Binder: professor of international law and international human rights law, Bundeswehr University Munich.
The Gabčíkovo-Nagymaros Project Case Judgment: 25 Years On

The Gabčíkovo-Nagymaros Judgment after a Quarter Century

Transcending Jurisdictions to Advance Environmental Law

Keywords sustainable development, transboundary consultation, environmental impact assessment, climate litigation, Gabčíkovo-Nagymaros judgment
Authors Alexandra R. Harrington
AbstractAuthor's information

    In 1997, the ICJ issued its judgment in the Gabčíkovo-Nagymaros case. Accompanied by the separate opinion issued by Judge Weeramantry, the Gabčíkovo-Nagymaros decision provided clarifications regarding treaty interpretation questions that are foundational to the ways in which international law is applied. Beyond this, however, the Gabčíkovo-Nagymaros decision has assumed a significant place in the development of environmental law at the international, regional and national levels. This article examines the Gabčíkovo-Nagymaros decision in light of the recent line of environmental rights cases, including those based in the emerging field of climate justice, in order to trace the ways in which the decision has transcended the limitations of time and geography to become a bedrock of environmental law. The article addresses the ways in which the Gabčíkovo-Nagymaros decision has transcended the context of a transboundary water rights claim between Hungary and Slovakia to become an element of emerging cases across the world. To this end, the article chronicles the ways in which the essential elements of the Gabčíkovo-Nagymaros decision are translated into and expanded by cases at the regional level and the national level. Ultimately, the article connects the nuanced fashion in which the Gabčíkovo-Nagymaros decision has grown to transcend the ICJ’s jurisdiction in the case and become a truly internationalized base for the development of environmental laws and environmental rights. Finally, the conclusion of the article notes the potential for the Gabčíkovo-Nagymaros decision to continue transcending its initial application to a new generation of environmental concerns.

Alexandra R. Harrington
Alexandra R. Harrington: lecturer in law (environment), Lancaster University Law School.
The Gabčíkovo-Nagymaros Project Case Judgment: 25 Years On

Environmental Rights and Climate Rights

Erga Omnes Obligations in International Law and EU Law?

Keywords environmental rights, climate rights, erga omnes obligations, sustainable development goals, EU Charter of Fundamental Rights
Authors Ottavio Quirico
AbstractAuthor's information

    Is there an erga omnes right (and duty) to a sustainable environment in international law? Is an erga omnes right (and duty) to a sustainable climate developing within this framework? What is the contribution of EU law to this trajectory? This article explores the pace, nature and scope of application of the right to a sustainable environment as well as that of a possible right to a sustainable climate within this framework from the intertwined perspectives of international law and EU law. The article fundamentally claims that an erga omnes right and duty to a sustainable climate is developing in international law; EU law has largely contributed to this development and is currently essentially aligned with international law in this regard. By contrast, EU law seems to be more progressive than international law with respect to the development of the right to a sustainable climate as a specific erga omnes claim.

Ottavio Quirico
Ottavio Quirico: associate professor of law, University of New England, Australia and Australian National University, Centre for European Studies; Fernand Braudel Senior Fellow, European University Institute, Florence.
The Gabčíkovo-Nagymaros Project Case Judgment: 25 Years On

Scientific Knowledge and the ICJ

Trends in the Judicial Handling of Science after the Gabčíkovo-Nagymaros Case

Keywords science, scientific disputes, geospatial evidence, Gabčíkovo-Nagymaros judgment, ICJ
Authors Katalin Sulyok
AbstractAuthor's information

    This article maps current trends in the scientific engagement of the ICJ in environmental disputes. As a starting point, the analysis takes a closer look at the shortcomings in the ICJ’s use of scientific knowledge and expertise in the Gabčíkovo-Nagymaros judgment. It argues that this decision marks the low-water mark of the ICJ’s willingness to engage with the scientific aspects of environmental disputes, and details the direct and more subtle ways in which scientific authority was neglected and circumvented in the ICJ’s inquiry. The article then points out three trends in more recent environmental decisions of the ICJ, which bespeak of a heightened judicial willingness to appreciate the scientific knowledge underlying environmental disputes. This paper examines how the ICJ now exerts greater control over the parties’ negotiations in scientific matters, how it undertakes a more active role in the scrutiny of party-submitted evidence, and how recent disputes feature an extensive use of geospatial evidence. The article concludes by explaining the advantages of the ICJ’s more thorough approach to science for the efficiency and legitimacy of environmental dispute resolution.

Katalin Sulyok
Katalin Sulyok: senior lecturer, ELTE Law school, Budapest; chief legal advisor to the Hungarian Ombudsman for Future Generations, Budapest.
Anniversary: The 100th Anniversary of the Establishment of Diplomatic Relations between the US and Hungary (1922-2022)

1956 and the US Legation in Budapest

Devoted, Enthusiastic Professionals Compelled to Act without Clear Instructions from Home and without Functioning Communication Devices in the Most Turbulent Historical Times

Keywords 1956, revolution, US Embassy, US Legation, Imre Nagy
Authors Péter Kovács
AbstractAuthor's information

    It is well known that the academic literature on the 1956 Hungarian Revolution is enormous in Hungary and abroad and the analysis of the policy making within the main state-actors (Hungary, Soviet Union, US, Great Britain, Yugoslavia, etc.) and the UN is also abundant, filling long shelves in the libraries specialized in this field of research. Taking into account the Hungarian Yearbook’s anniversary theme chosen for 2022, as well as the approximative length of the articles as established by the editorial board, I intend to cover the activity of the American Legation in Budapest during the Revolution. The article focuses on the activity of the American Legation and covers policy-making in Washington or in Budapest only to the extent that is strictly necessary to understand the background of the steps taken or omitted.

Péter Kovács
Péter Kovács: professor of international law, Pázmány Péter Catholic University, Budapest; judge, International Criminal Court, the Hague (2015-2024).
Anniversary: The 100th Anniversary of the Establishment of Diplomatic Relations between the US and Hungary (1922-2022)

Ronald Reagan and International Law

Keywords US, Hungary, Soviet Union, Reagan doctrine, Reagan corollary
Authors Marcel Szabó
AbstractAuthor's information

    Doctrines always play an important law in US foreign relations and policy. Under the presidency of Ronald Reagan (1981-1989), international politics and the role of the US at the global level significantly changed. President Reagan firmly believed that the Soviets were weaker economically than the intelligence community believed – and from this point on, the US definitely won the Cold War against the Soviet Union. The US policy under President Reagan finally led to the fall of the Soviet bloc in 1989, and to the independence of the Central and Eastern European states, including Hungary. The article tries to evaluate the role President Reagan played at the level of international law in this period.

Marcel Szabó
Marcel Szabó: professor of law, Pázmány Péter Catholic University, Budapest; justice, Constitutional Court of Hungary, Budapest.
Developments in European Law

Expulsion of EU Citizens from Another EU Member State in the Recent Case Law of the CJEU

Keywords EU citizenship, public security, social integration, good market citizen, Area of Freedom Security and Justice
Authors Laura Gyeney
AbstractAuthor's information

    The concept of a territorially united Europe is a necessary corollary to the completion of the Area of Freedom, Security and Justice (AFSJ). While the case law of the CJEU on EU citizenship in many respects aims to strengthen this status (and, at the same time, to weaken Member States’ regulatory power) there is at least a partly opposite trend in the assessment of Member States’ expulsion policy under EU law. This line of cases emphasizes not only the traditional role of the Janus-faced concept of social integration, which bolsters the exercise of rights, but also its role as a justification for the restriction of rights. This article examines how the CJEU can reconcile the federalizing concept of a new citizenship with an expulsion policy based on sovereignty and how all of this impacts the unifying and expanding concept of EU citizenship.

Laura Gyeney
Laura Gyeney: associate professor of law, Pázmány Péter Catholic University, Budapest.
Developments in European Law

The Activation of the Temporary Protection Directive for People Fleeing from Ukraine

Keywords Temporary Protection Directive, international protection, war in Ukraine, Common European Asylum System, solidarity
Authors Ágnes Töttős
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    The Temporary Protection Directive (Council Directive 2001/55/EC) and especially its lack of previous activation has been widely criticized, therefore this study intends to highlight the reasons why it was ideal to finally use this tool for providing protection for those fleeing the war in Ukraine. This paper details how the EU activated the Directive and how its Member States implement its provisions for the first time, addressing legal issues such as the personal scope of implementation and operational aspects of the activation, including the solidarity measures offered by EU institutions and Member States. Finally, the wider implications of this activation and the solidarity measures related to it and already visible in the context of the reform of the Common European Asylum System shall also be discussed.

Ágnes Töttős
Ágnes Töttős: visiting lecturer, Károli Gáspár University of the Reformed Church, Budapest; chief government counsellor, Cabinet Office of the Prime Minister of Hungary, Budapest.
Developments in European Law

Rebooting US-EU Data Transfers in the Pipeline

The Resurrection of the Acclaimed Privacy Shield

Keywords data protection, Privacy Shield, GDPR, surveillance, Schrems
Authors István Sabjanics
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    On 25 March 2022 US President Biden and European Commission President von der Leyen announced that an agreement in principle had been struck by their negotiating representatives. This came two years after the CJEU declared invalid the Commission’s Privacy Shield Decision regarding the adequacy of protection provided by the US. The joint announcement was welcomed with much anticipation. Economic and security concerns had been voiced on both sides of the Atlantic, while the desire to protect European privacy principles remain strong. Commission President von der Leyen underlined European hopes for a predictable and trustworthy data flow between the EU and the US, one that safeguards privacy and civil liberties. Not much has surfaced of the new deal. Still, with more than 20 years of experience in transatlantic data flow and two fatal decisions of the CJEU, we must assume that the proposal will yield more compliance with European data protection standards and less loopholes.

István Sabjanics
István Sabjanics: senior lecturer, Pázmány Péter Catholic University, Budapest.
Developments in European Law

Regulating the Unregulateable

Attempts at Crypto Regulation in Europe

Keywords virtual assets, blockchain, tokens, financial services, securities
Authors Zsolt Halász
AbstractAuthor's information

    The regulation of virtual assets has been on the legislative agenda for many years. The elaboration of a user-friendly regulatory system, in particular, on a global (or at least in Europe) scale, is more than likely over the next few years. Virtual assets are a special, unprecedented category of assets, and their emergence and proliferation pose new regulatory challenges in several areas, such as their issuance, the supervision of operations and transactions related to them (e.g. stock exchange services, lending, and other financial activities), furthermore, important issues arise in the field of taxation, accounting, and securities law with the emergence of the blockchain and distributed ledger technology-based securities. In recent years, at the state level, one could also witness comprehensive regulatory efforts and innovative regulatory attempts in certain European countries in various related areas, particularly in Malta, France, Germany, Liechtenstein, and Switzerland. This study presents the key elements, objectives, and characteristics of regulatory solutions in selected European countries. In September 2020, the European Commission presented a six-element regulatory package for the uniform regulation of virtual assets and markets at EU level. Accordingly, this paper pays particular attention to the European Commission’s regulatory package, reviewing and evaluating its solutions, main elements, and regulatory methods. Last but not least, I present some related issues that may be considered regulatory gaps that have been left unregulated in both national legislations and the European Commission’s proposal.

Zsolt Halász
Zsolt Halász: associate professor of law, Pázmány Péter Catholic University, Budapest.
Developments in European Law

Reconciling Jurisdictions in the European System of Constitutional Adjudication

Reform Proposals for the CJEU

Keywords CJEU, constitutional courts, reform, preliminary reference, subsidiarity court
Authors Márton Csapodi
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    Several authors have concluded that an institutional reform of CJEU is necessary, with some putting forward reform proposals accordingly. This paper briefly recounts the reasons why such a reform may be indeed necessary, with due attention to the fact that national constitutional resistance to the Luxembourg court seems to be occurring with increasing frequency. In what follows, I present some of the institutional reform proposals that appeared in the academic discourse and make some critical observations in respect of these ideas. These proposals include: the introduction of a reverse preliminary reference procedure for cases related to national identity; a political override mechanism; a proposal for limiting preliminary reference rights to high courts (albeit with exceptions); and finally, the idea to establish a new court specialized in competence issues. Perhaps the latter proposal is the most popular, although various authors propose substantially different constructions. I conclude that a Subsidiarity Court specialized in competence issues could be an effective instrument for a better representation of national constitutional perspectives at the EU level, which would be essential, should open non-compliance be avoided. I also propose a complementary mechanism to the preliminary reference procedure, which would allow constitutional courts to participate in the European constitutional dialogue.

Márton Csapodi
Márton Csapodi: PhD student, Pázmány Péter Catholic University, Budapest; junior research fellow, MCC Center for Constitutional Politics, Budapest. The author would like to thank Prof. Balázs Schanda and Kálmán Pócza for their guidance and support.
Developments in International Law

One Hundred Years of International Copyright

Keywords Berne Convention, revision, copyright, formalities, legal certainty
Authors Anett Pogácsás
AbstractAuthor's information

    The Berne Convention (BC or Convention) celebrates its one hundred and thirty-sixth birthday this year, but for Hungary, 2022 marks a milestone anniversary, as the country joined the BC exactly a hundred years ago. Considerations taken into account at the time of becoming a party to the Convention, and the circumstances now, a century later, are in many ways different. An important question is whether the Convention still conforms to our sense of justice. For Hungary in the early 1900s, this dilemma was effectively a matter of weighing up the principle of formality-free protection. Originally required as a corrective rule in BC, automatic protection has grown into a fundamental principle since then. It was to be expected from the outset that the principle would not only have its benefits, but also its side effects. One hundred years of international copyright has taught us to insist on what BC has earned for right holders, but to strive for BC-compatible, efficient and modern solutions. How far we can go in doing so will be one of the most important questions of the near future.

Anett Pogácsás
Anett Pogácsás: associate professor of law, Pázmány Péter Catholic University, Budapest; member of the Hungarian Council of Copyright Experts.
Developments in International Law

The Human Rights Diplomacy of Regional and Political Groups within the UN Human Rights Council

Keywords UN Human Rights Council, human rights diplomacy, clash of civilizations, regional and political groups, UN HRC
Authors István Lakatos
AbstractAuthor's information

    The article provides a comprehensive picture of the human rights diplomacy of the five most important groups of states (sub-Saharan African states, Asian states, Muslim states, the EU, and Latin American and Caribbean states) in the UN Human Rights Council (UN HRC). This paper intends to debunk the myth that the UN HRC has become a platform for the “clash of civilizations”. An analysis of bloc behavior proves that the dividing lines are not between civilizations, but within each group, between governments aiming at establishing a strong global human rights regime and those, seeking to undermine it.

István Lakatos
István Lakatos: career diplomat, former human rights ambassador of the Ministry of Foreign Affairs and Trade of Hungary, current senior adviser of the Ministry of Human and Minority Rights of Montenegro.
Developments in International Law

Questions of General International Law with Special Regard to the Security Council’s Competence

Keywords Security Council, UN Charter, general international law, jus cogens, erga omnes
Authors Mohammad Alipour and Anikó Szalai
AbstractAuthor's information

    Based on Article 1 of the UN Charter, the Security Council (SC) shall act in accordance with international law to prevent and remove threats to international peace and security. Even though Article 103 of the UN Charter confers some sort of supremacy on the decisions of the SC, there are nevertheless certain fundamental norms in international law that restrict the SC’s powers from which no derogation is permitted. These are referred to under the heading General International Law (GIL). Principles of GIL are classified into two types: axiomatic and axiological. The former consists of rational principles developed from the logic of nature and the structure of international law and society, and the latter are derived from the values of the international community. GIL does not require the consent of states and impacts the freedom of all subjects of international law, including the UN and its organs. Throughout the course of performing its tasks under the UN Charter, the SC must adhere to the requirements of GIL.

Mohammad Alipour
Mohammad Alipour: PhD student, University of Szeged.

Anikó Szalai
Anikó Szalai: associate professor of law, University of Szeged.
Hungarian State Practice

The Ups and Downs of Hungarian Administrative Law’s Europeanization in the Field of Environmental Protection

Keywords Aarhus Convention, access to environmental information, access to justice in environmental cases, public participation in matters relating to the environment, EIA
Authors Krisztina F. Rozsnyai
AbstractAuthor's information

    The article gives an overview of the influence of European law on Hungarian administrative law in the field of environmental protection. It briefly discusses new institutions that were introduced with the implementation of the acquis communautaire and the Aarhus Convention. There were quite a few developments in general administrative law dealt with in the article that can even be labelled as spill over or gold-plating effects in connection with public participation. The analysis shows that following a good start in Hungary both case law and legislation became somewhat less favorable to public participation in matters relating to the environment. After procedural backlogs, the abolishment of independent environmental administrative authorities in 2015 on territorial and in 2016 on national level hindered environmental protection. Nevertheless, the CJEU’s case law also had an important influence on the codification of some Hungarian administrative court procedure rules, such as the loosening of the causality link requirement in the ambit of procedural errors or the creation of rules for mass procedures. Some signs give reason for hope in a gradual change of legal culture, such as the activity of the deputy ombudsman for the protection of the interests of future generations, the resilience of environmental NGOs as well as the rise of environmental law as a core subject in graduate legal studies.

Krisztina F. Rozsnyai
Krisztina F. Rozsnyai: professor of administrative law, ELTE Law School, Budapest. ORCID: 0000-0002-1494-5051.
Hungarian State Practice

60 Years of the New York Convention in Hungary

A Formalistic, Yet Pro-Arbitration Approach

Keywords New York Convention, recognition and enforcement of foreign arbitral awards, Hungary, lex arbitri, arbitration
Authors Richárd Schmidt
AbstractAuthor's information

    The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards celebrates the 60th anniversary of its entry into force in Hungary in 2022. After being hibernated for nearly three decades, the Convention has become an essential source of Hungarian lex arbitri since the political-economic transition of the country from socialism to market economy in 1989-1990. Given that the Convention celebrates its ‘diamond anniversary’ in Hungary this year, the time is ripe to review its application by domestic courts over the last decades, by focusing on the recognition and enforcement of international arbitration agreements and foreign arbitral awards in Hungarian judicial practice. This study aims at verifying whether the approach of Hungarian state courts is in line with, or at least converging towards the dominant pro-arbitration bias of the Convention. On the other hand, it is worth identifying those domains, where national judicial practice departs from the mainstream tendencies, and to shed light on those fields, where the risk of divergence from the arbitration-friendly orientation arises.

Richárd Schmidt
Richárd Schmidt: managing partner, SMARTLEGAL Schmidt & Partners law firm, Budapest; guest lecturer of international dispute resolution at the Department of Private International Law at the Pázmány Péter Catholic University, Budapest.
Hungarian State Practice

The Protection of Privacy During the Covert Collection of Information for National Security Purposes

Findings of an Ex Officio Investigation

Keywords data protection, privacy, Pegasus, national security, external authorization
Authors Attila Péterfalvi
AbstractAuthor's information

    In 2021 the Hungarian news portal Direkt36 published an article entitled “A tough Israeli spyware was exposed to have been used to target critics of the Orbán government and Hungarian journalists.” In the article, Direct36 discovered that “‘Pegasus’, the spyware of an Israeli cyber company called NSO, suitable for jailbreaking smart phones, was used against targeted Hungarian persons years ago; investigative journalists and wealthy businessmen owning media companies and their close contacts were among the persons targeted. In the course of this research, we found a number of indirect evidence indicating that Hungarian state bodies may be behind the secret surveillance.” Based on this information, the Hungarian National Authority for Data Protection and Freedom of Information (Authority) launched an ex officio examination. The article summarizes the findings of this examination, with due regard to the question whether according to the laws of Hungary and the EU, privacy shall be protected during the covert gathering of information.

Attila Péterfalvi
Attila Péterfalvi: president, Hungarian National Authority for Data Protection and Freedom of Information, Budapest; honorary professor of law, ELTE Law School & Pázmány Péter Catholic University, Budapest.
Case Notes

The CJEU as a Guarantor of Judicial Independence in the EU?

An Analysis of Case C-564/19, IS

Keywords judicial independence, rule of law backsliding, CJEU, Directive 2010/64/EU, Directive 2012/13/EU
Authors Nasiya Daminova
AbstractAuthor's information

    The recent Hungarian C-564/19 IS (Illegality of the order for reference) case suggests that the interpretation of the principle of judicial independence in EU law precludes the possibility to launch disciplinary proceedings against a judge for submitting a request for preliminary ruling to the CJEU, thereby adding a new angle to the discussion on the substance of Article 47 EU CFR, Article 19 TEU and Article 267 TFEU. The aim of this case note is to shed light on the reasoning of the IS AG’s Opinion and the CJEU’s judgment, given their possible impact on the Luxembourg and Strasbourg Courts’ jurisprudence concerning the ‘rule of law backsliding’ and the AFSJ. The main argument presented is that the IS judgment may be seen as a further development of the previous CJEU’s Associação Sindical dos Juízes Portugueses (ASJP)/Miasto Łowicz lines of cases which perceive the judicial independence of the EU Member States’ courts [Article 19(1) TEU] as one of the key guarantees for the enforcement of Union values (Article 2 TEU). Apart from this important premise, the IS judgment evidently reinforced several aspects of the suspect’s rights to interpretation and information in criminal proceedings within the meaning of the Interpretation and Translation Directive (2010/64/EU) and the Information Directive (2012/13/EU). Hence, the IS line of reasoning can presumably lead to the formation of ‘EU-specific’ procedural guarantees in these areas, which may be considered an upgrading of the standards of protection articulated by parallel developments in the ECtHR’s case law.

Nasiya Daminova
Nasiya Daminova: postdoctoral research fellow, ‘Just recovery from Covid-19? Fundamental rights, legitimate governance and lessons learnt’ (JuRe) project, University of Tampere.
Case Notes

Mutual Constitutional Tolerance in the EU, with Special Emphasis on the Recent Case Law of the Polish and the Hungarian Constitutional Court

Keywords constitutional tolerance, constitutional court, judicial dialogue, supremacy, constitutional reservations
Authors György Kovács
AbstractAuthor's information

    For more than five decades, the constructive and responsible judicial dialogue concerning the primacy of EU law over the national constitutions, have significantly contributed to the creation of a more democratic EU, with a strong and efficient, multi-level fundamental rights protection. For five decades, national constitutional courts and the CJEU have avoided encroaching upon each other’s powers and inflicting lasting damage on the European integration and on the rule of law itself. In recent years, however, we have witnessed the worrying signs of a profound defiance towards the supremacy of EU law by some national constitutional courts, particularly in Germany, Romania and in Poland. As it became clear from the consequences of these decisions, defiance of national constitutional courts regarding their obligations based on EU law does not pay off. Namely, national courts and authorities will be under the legal obligation based on EU law to ignore such a decision brought by the national constitutional court, which renders an EU legal act inapplicable; and – as it happened in case of Germany and Poland - it will most likely result in infringement proceedings. The right approach instead, is to continue an open and direct judicial dialogue, as long as it is necessary, to find a solution for domestic constitutional concerns, which is in compliance with the legal obligations under EU law of the Member State in question.

György Kovács
György Kovács: attorney-at-law, Budapest; visiting lecturer, Pázmány Péter Catholic University, Budapest; president, Hungarian Fulbright Association, Budapest.
Case Notes

Do We Like Majority Decisions?

Aspects of the Majority Principle in Voting on the Different Levels of Political Systems

Keywords majority principle, qualified majority, voting in parliament, constitution, abstentions
Authors Péter Smuk
AbstractAuthor's information

    This article aims to review the constitutional justifications for majority requirements arising from the democratic principle, and to analyze some current controversial cases. Although the qualified majority requirement is not a new institution in either the national constitutional systems or the functioning of the EU institutions, the democratic legitimacy of majority voting faces several challenges. In order to present aspects that should be re-evaluated in the light of certain new political strategies, this paper analyses the majoritarian requirements in the Treaties, in the rules of procedures of the European Parliament and also case studies pertaining to the constitution-making majority in Hungary and the controversial case of voting on the Sargentini-report. On the basis of this assessment, we may confirm but also reconsider the majority principle.

Péter Smuk
Péter Smuk: professor of law, Széchenyi István University, Győr.
Conference Reports

Two Conferences on the European Models of Constitutionalizing Memories and the Hungarian Experience

Report on the ‘Conference on the Tradition, Constitution and European Integration’ Organized by the Centre for Social Sciences, in Collaboration with the French Embassy in Hungary, 23-24 September 2021, Budapest & the ‘Conference on the History, Constitution and Identity in Hungary’, Organized by the Centre for Social Sciences, 18 November 2021, Budapest.

Keywords conference report, Centre for Social Sciences, European integration, constitutional identity, legal traditions
Authors Marina Bán and Boldizsár Szentgáli-Tóth
AbstractAuthor's information

    The two conferences on the European Models of Constitutionalizing Memories and the Hungarian Experience (‘Conference on the Tradition, Constitution and European Integration’ and ‘Conference on the History, Constitution and Identity in Hungary’) were organized by the Eötvös Loránd Research Network’s Centre for Social Sciences on 23-24 September and 18 November 2021, respectively. The conference report gives an overview of the main topics and findings of these two conferences.

Marina Bán
Marina Bán: postdoctoral researcher; Center of Excellence for International Courts, University of Copenhagen.

Boldizsár Szentgáli-Tóth
Boldizsár Szentgáli-Tóth: senior research fellow, Eötvös Loránd Research Network, Centre for Social Sciences, Budapest.
Review of Hungarian Scholarly Literature

Csongor István Nagy (ed.), Cross-border Litigation in Central Europe (Book Review)

Kluwer Law International, The Netherlands, 2022, 520 p, ISBN 978-94-035-3705-4

Authors Gábor Hajdu
Author's information

Gábor Hajdu
Gábor Hajdu: junior research fellow, Eötvös Loránd Research Network, Centre for Social Sciences, Institute for Legal Studies; junior research fellow, University of Szeged.
Review of Hungarian Scholarly Literature

Péter Mezei, Copyright Exhaustion: Law and Policy in the United States and the European Union, 2nd Edition (Book Review)

Cambridge University Press, Cambridge, 2022, 260 p, ISBN 978-1-108-84314-0

Authors Anett Pogácsás and Dávid Ujhelyi
Author's information

Anett Pogácsás
Anett Pogácsás: associate professor of law, Pázmány Péter Catholic University, Budapest; member of the Hungarian Council of Copyright Experts.

Dávid Ujhelyi
Dávid Ujhelyi: vising lecturer, Pázmány Péter Catholic University, Budapest; member of the Hungarian Council of Copyright Experts; Head of Competition Law and IP Law Department, Ministry of Justice, Budapest.