Hungarian Yearbook of International Law and European Law

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Issue 1, 2023 Expand all abstracts
In Memoriam

Access_open In Memory of Professor László Valki (1941-2022)

A Pioneering Figure in the Teaching and Research of Public International Law in Hungary

Authors Pál Sonnevend and Gábor Kajtár
Author's information

Pál Sonnevend
Pál Sonnevend: professor of public international law, Dean of the Law School, Head of Department of International Law, ELTE Law School, Budapest.

Gábor Kajtár
Gábor Kajtár: associate professor of public international law, Vice-Dean of Science of Research, ELTE Law School, Budapest.

Access_open Editorial Comments: What Should Be the Language of (Hungarian) Legal Scholarship?

Foreword to Vol. 11 (2023) of the Hungarian Yearbook of International Law and European Law

Authors Petra Lea Láncos
Author's information

Petra Lea Láncos
Petra Lea Láncos: associate professor of law, Pázmány Péter Catholic University, Budapest; editor, Hungarian Yearbook of International Law and European Law.
European Citizenship: Past, Present, and Future

Access_open Off Track, Again?

EU Citizenship and the Right to Social Assistance

Keywords EU citizenship, social assistance, jobseekers, EU legislature, Directive 2004/38
Authors Martijn van den Brink
AbstractAuthor's information

    The right of EU citizens to equal treatment with nationals of the host Member State in respect of social assistance has been subject to significant changes on several occasions between the Treaty of Maastricht and now. The CJEU has struggled to establish consistent standards prescribing when economically inactive citizens can claim social protection, and in 2014 its tendency to construe this right broadly suddenly came to an end. It backtracked on one-and-a-half decades of case law by ruling that citizens could lay no claim to social assistance unless the respective conditions set out in secondary legislation were met. This article discusses the relevant law and its evolution over the past decades for a twofold aim. (i) First, to clarify in an accessible manner in what respects the law has changed from 1993 to the present. (ii) Second, to articulate a framework that allows us to evaluate the CJEU judgments rendered during this period. This framework departs from established ways of thinking about this evaluative question. Much of the EU citizenship literature evaluates the case law by the outcome it brings about. I will argue, instead, that this evaluation is a matter of comparative institutional choice. Such a comparative institutional assessment shows that disputes over the right of EU citizens to claim social assistance should be decided in line with what the EU legislature intended. It follows that the application of a principle of judicial deference to legislation in the second period of social assistance case law from 2014 onwards was justified.

Martijn van den Brink
Martijn van den Brink: postdoctoral fellow, Jacques Delors Centre, Hertie School, Berlin.
European Citizenship: Past, Present, and Future

Access_open Free Movement of ‘Workers’?

The Status of Economically Inactive Citizens in EU Law

Keywords EU citizenship, economically inactive citizens, equal treatment, social benefits, Directive 2004/38
Authors Laura Gyeney
AbstractAuthor's information

    Early in its case law on the free movement of EU citizens, the CJEU took a very expansive stance in its rulings on social benefits for inactive EU citizens, thereby promoting social inclusion and individual social rights, while furnishing the institution of EU citizenship with real substance. However, the CJEU’s jurisprudence took a restrictive turn following the Eastern enlargement and, even more so, after the 2008 recession, in response to national expectations. The strict approach adopted by the CJEU in Dano, which insists on a literal interpretation of the social provisions of Directive 2004/38/EC, seems increasingly difficult to maintain and, in some cases, leads to unfair results. In addition to providing an overview of the relevant case law, this article analyses two specific cases (Jobcenter Krefeld and CG) to examine whether and in what direction the CJEU may depart from its earlier restrictive practice in its more recent case law.

Laura Gyeney
Laura Gyeney: associate professor of law, Pázmány Péter Catholic University, Budapest; director, Institute for Minority Rights, Budapest.
European Citizenship: Past, Present, and Future

Access_open Prior and Subsequent Authorization of Cross-Border Healthcare under Directive 2011/24/EU

The Significance of the WO Case for EU Law and for Hungarian Law

Keywords prior authorization, cross-border health care, WO, Torubarov, Directive 2011/24
Authors Éva Lukács Gellérné
AbstractAuthor's information

    The article deals with the specific issue of cross-border patient movements. It examines the feasibility of maintaining prior authorization schemes, which aim to ensure that only insured persons who have prior authorization are reimbursed for healthcare provided in another Member State. The focus is on Directive 2011/24/EU and the case law of the CJEU, in particular on the WO and Vas Megyei Kormányhivatal case. The article both describes the current legal developments and provides an insight into the internal Hungarian legal framework surrounding the still pending WO case. The article highlights the extreme complexity of the area where individuals might find it difficult to enforce their rights. The article argues that the case law of the CJEU has overstepped the formal condition of prior authorization and advocates for common interpretative rules at EU level which could facilitate the implementation of the notions stemming from the case law.

Éva Lukács Gellérné
Éva Lukács Gellérné: senior lecturer, ELTE Law School, Budapest.
European Citizenship: Past, Present, and Future

Access_open Loss and Acquisition of EU Citizenship in the Case Law of the CJEU

In the Spirit of the Underlying Logic of Gradual Integration?

Keywords EU citizenship, nationality, statelessness, free movement, gradual integration
Authors Ágoston Mohay
AbstractAuthor's information

    According to the CJEU, EU citizenship is destined to be the fundamental status of the nationals of the EU Member States. The rules of EU primary law regarding this status however require interpretation in various dimension, with the relationship between national citizenship and EU citizenship being one of them. This paper analyses recent case law – focusing especially on the novelties of the JY judgment – regarding the loss and acquisition of EU citizenship, including the relevance of free movement and the concept of gradual integration. It finally offers some conclusions on how the scope of EU law should be interpreted in this context.

Ágoston Mohay
Ágoston Mohay: associate professor of law, University of Pécs.
European Citizenship: Past, Present, and Future

Access_open The First Ten Years of the European Citizens’ Initiative

Is it an Instrument for Enhancing Democracy or Advocacy?

Keywords European Citizens’ Initiative, ECI, participatory democracy, democracy deficit, advocacy
Authors Balázs Tárnok
AbstractAuthor's information

    The European Citizens’ Initiative (ECI) has been available to EU citizens since April 1, 2012, which marks the tenth anniversary of the new instrument of the participatory democracy in the EU. The question to be asked at this milestone is what has become of the ECI over this decade? Although both the relevant legislation and the jurisprudence consider the ECI to be a tool for reducing the EU’s democracy deficit, given the practice of the past ten years, we may consider it an advocacy tool for the promotion of the specific interests of certain groups of EU citizens, instead. How effective is the tool in this form and what are the factors that affect its effectiveness? In this assessment, I analyze both the definition of a ‘successful ECI’, and the ‘price-value ratio’ of the ECI, with special attention to the experiences of the first decade of using the ECI in Hungary. The article aims to review the practice of the ECI in the first ten years of its operation from a theoretical approach, considering its role in the system of EU law and the development of this role throughout its implementation.

Balázs Tárnok
Balázs Tárnok: managing director and research fellow, Europe Strategy Research Institute, University of Public Service, Budapest; advisor, Institute for Minority Rights, Budapest.
Anniversary: The 100th Anniversary of the Establishment of the International Law Association Hungarian Branch (1923-2023)

Access_open On the Centennial of the Hungarian Branch of the International Law Association

Keywords ILA, IDI, Hungarian Branch, centennial, Budapest conference
Authors Vanda Lamm
AbstractAuthor's information

    The year 2023 is celebrated worldwide as an anniversary by international lawyers, as the foundation of the International Law Association (ILA) took place at a conference held in Brussels in October 1873. Then, on 8 September of the same year the Institut de droit international (IDI) was established. The Hungarian Branch of the ILA is also celebrating its 100th anniversary in 2023. In honor of the centennial of the ILA Hungarian Branch’s establishment, this article commemorates the history of the Hungarian Branch, recalling the history of its membership, publications and periodicals, as well as ILA conferences organized by the Hungarian Branch in Budapest.

Vanda Lamm
Vanda Lamm: member of the Hungarian Academy of Sciences (MTA); professor emerita, Széchenyi István University, Győr; research professor emerita, Institute for Legal Studies, Center for Social Sciences, Budapest; member of the IDI.
Anniversary: The 100th Anniversary of the Establishment of the International Law Association Hungarian Branch (1923-2023)

Access_open A Tribute to the Two ILA Conferences Organized in Hungary

Keywords ILA, Hungarian branch, anniversary, conference, Budapest
Authors Péter Kovács
AbstractAuthor's information

    The Editorial Board of the Hungarian Yearbook of International Law and European Law took the decision to commemorate the hundred-and-fiftieth anniversary of the establishment of the International Law Association (ILA), the best known private transboundary cooperation network of those teaching and researching in the field of the law of nations. By coincidence, 2023 is also the centenary of the establishment of the Hungarian Branch of the ILA. This article covers these two conferences organized in Budapest, the first held in 1908 and the second in 1934.

Péter Kovács
Péter Kovács: professor of international law, Pázmány Péter Catholic University, Budapest; judge, International Criminal Court, the Hague (2015-2024). This contribution was written in my personal capacity, the thoughts expressed therein cannot be attributed to the ICC.
Developments in European Law

Access_open Sources of EU Law: A Review in Light of the Accession of the Union to the ECHR

A Matter of Principle

Keywords EU, sources of EU law, ECHR, accession, general principles of EU law
Authors Ottavio Quirico
AbstractAuthor's information

    The accession of the EU to the ECHR raises several problems. This article argues that procedural problems are fundamentally rooted in substantive issues, with specific regard to the sources of EU law. More precisely, in order to allow accession, it would be essential to review Article 6(3) TEU so as to lower the level of the ECHR as a source of general principles of EU law to (at least) the same hierarchical level as the founding treaties. Yet, while this solution can be satisfactory for EU Member States that are parties to the ECHR and its protocols, it is not necessarily appealing to non-EU States that are parties to the ECHR system, similar to the stall generated by the Energy Charter Treaty in the field of investment. Furthermore, the solution fundamentally clashes with the consolidated priority of the general principles of EU law crystallized in cases such as Kadi.

Ottavio Quirico
Ottavio Quirico: senior researcher, Perugia University for Foreigners, Department of International Humanities and Social Sciences; associate professor, University of New England, Law School and Australian National University, Centre for European Studies; visiting professor, University of Pisa, Department of Political Science.
Developments in European Law

Access_open The Evolution of Fiscal Conditionality in EU Law

Keywords conditionality, EU budget, rule of law, financial interests, CJEU
Authors Zsolt Halász
AbstractAuthor's information

    Fiscal conditionality is reflected in EU law in several dimensions and layers. In addition to the most essential conditionality, the conditions for accession to the EU set out in the founding Treaty, there are conditionality requirements related to the Economic and Monetary Union (EMU), the Common Agricultural Policy (CAP), and Regional Policy. Most recently, in December 2020, the European Parliament and the Council adopted Regulation 2020/2092 on the general regime of conditionality for the protection of the EU budget. This paper analyses the evolution, objectives, and instruments of fiscal conditionality legislation of the EU. The author provides a detailed analysis of the relevant elements of the existing legislation, as well as the recent judgments of the CJEU on the subject. The article demonstrates that the Financial Conditionality Regulation is not an instrument for protecting the rule of law in general, but its general purpose is to protect the EU budget by enforcing fundamental requirements stemming from the rule of law.

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

Access_open Recontextualizing the Role of Social Media in the Formation of Filter Bubbles

Keywords social media, filter bubbles, echo chambers, social polarization, Digital Services Act
Authors János Tamás Papp
AbstractAuthor's information

    One relatively popular area of scientific research on the social impact of social media is the phenomenon of filter bubbles and echo chambers. This notwithstanding, the true meaning of these concepts has not been precisely determined to date, and the social effects of the phenomena continue to be surrounded by heated debates. In this article, I briefly shed light on the contradictions underlying the theoretical and practical substantiation of filter bubbles and echo chambers. While the emergence of the phenomenon of filter bubbles seems logical from a theoretical point of view, its true presence cannot be discerned in reality. One reason for this is the user’s autonomous filtering activity, another reason is the widely available, diverse media environment. The social polarization that is increasingly experienced today emerged in the mutual interaction of traditional and online media: in the attention-based media environment promoted by the Internet, traditional has media became more and more opinion-based, increasing the possibility of personalization, a process that was further exacerbated by social media. As a result, the press moved towards a more polarized content production. Besides describing this process, in this paper I analyze the EU’s Digital Services Act focusing on the solutions it offers to the problem of recommendation systems and filter bubbles. Finally, I explore the question how quality news media content could help burst personal filter bubbles.

János Tamás Papp
János Tamás Papp: senior lecturer, Pázmány Péter Catholic University, Budapest.
Developments in European Law

Access_open Prospects of Drone Regulation after the Release of Drone Strategy 2.0

Keywords drones, Drone Strategy 2.0, EASA, European Green Deal, liability
Authors István Sabjanics
AbstractAuthor's information

    On 29 November 2022, the European Commission published the EU’s Drone Strategy 2.0, which aimed at nothing less than giving a prognosis of drone usage around the year 2050, and the role of drones in the context of Europe’s planned mission of carbon neutrality. Drones play a crucial part in implementing the European Green Deal’s vision of developing and maintaining a cleaner and sustainable system of transporting persons and goods via the European Airspace and reaching yet unreachable locations, such as those with harsh terrains for traditional transportation. It is with much anticipation that the Strategy looks forward to the bright future envisioned and inspired by the drone industry, however issues of safety, privacy, liability, and security should not be neglected. This paper focuses on changes and challenges in current European regulation implementing the newly released Drone Strategy 2.0 and compares the concomitant drone regulation of other countries.

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

Access_open Accountability of Sovereign Power for International Crimes

Keywords sovereign immunity, ICC, Rome Statute, Russia, Ukraine
Authors Chile Eboe-Osuji
AbstractAuthor's information

    This paper is a redacted version of the author’s Goler T. Butcher Lecture, delivered on 8 April 2022. The talk centered on the problem of holding heads of state accountable for international crimes on occasion of Russia’s invasion of Ukraine. It enumerated the challenges behind establishing the jurisdiction of the ICC in aggression cases, as well as the factors impeding the creation of an ad hoc tribunal for the same purpose. Dismantling pro-immunity arguments, the author turns to substantiating the customary international law nature of the accountability of heads of state for international crimes, concluding the paper with an overview of negotiations leading up to the drafting of Article 227 of the Versailles Treaty.

Chile Eboe-Osuji
Chile Eboe-Osuji: former President, International Criminal Court, The Hague; Distinguished International Jurist, Lincoln Alexander School of Law, Toronto Metropolitan University.
Developments in International Law

Access_open Russian Aggression against Ukraine in 2022 under Jus ad Bellum

Keywords Russia, Ukraine, aggression, jus ad bellum, NATO
Authors Bence Kis Kelemen
AbstractAuthor's information

    On 24 February 2022, Russia launched a full-scale invasion against Ukraine. This invasion marks a new milestone in the ongoing armed struggle between the two states since 2014, when Russia annexed a part of Ukraine, namely Crimea and Sevastopol and supported armed resistance in the Eastern part of the country. President Putin pointed to a number of international legal justifications for the invasion, i.e. self-defense, humanitarian intervention and perhaps intervention by invitation. This article examines all possible Russian justifications for the use of force, and concludes, that they have no basis in lex lata international law. However, the arguments advanced seem similar to the slippery slope arguments used by Western powers in their armed conflicts in the past two decades. The paper also offers a glance at the response of the international community to the invasion.

Bence Kis Kelemen
Bence Kis Kelemen: senior lecturer, University of Pécs.
Developments in International Law

Access_open The EU’s 2022 Sanctions against Russia

External Shocks Altering EU Restrictive Measure Practices?

Keywords restrictive measures, sanctions, CFSP, enforcement, media freedom
Authors Viktor Szép and Kamya Chawla
AbstractAuthor's information

    Due to Russia’s 2022 war in Ukraine, the EU decided to adopt a set of comprehensive measures against the tenth largest economy in the world. These sanctions include measures that were previously considered as sacrosanct elements of EU-Russia cooperation, including energy or finance. The main objective of this article is to show how the war in Ukraine and subsequent EU actions have brought about significant changes in EU sanctions policy. The aim is not to provide a comprehensive, 360-degree analysis of EU restrictive measures but to highlight some of the major developments in EU sanctions policy that have taken place largely due to Russia’s war in Ukraine. These changes include the size and magnitude of sanctions, the increased likelihood of shifting from unanimity to qualified majority voting in foreign and security policy, the banning of media outlets through restrictive measures or a commitment to better enforce EU sanctions throughout the Union and perhaps even beyond. Up until now, most of these Union actions have been inconceivable but external shocks have seemingly changed policymakers’ minds over the design of a more effective EU sanctions policy.

Viktor Szép
Viktor Szép: assistant professor of EU Law, University of Groningen.

Kamya Chawla
Kamya Chawla: LLB student, University of Groningen.
Developments in International Law

Access_open Advanced Technology – Advanced Terror

An Interdisciplinary Study on Disruptive Technology and The Rule of Law

Keywords disruptive technology, terrorism, rule of law, intervention, international criminal law
Authors Zénó Suller
AbstractAuthor's information

    Today, we are witnessing a technological and scientific boom never seen before, whose changes and effects we cannot foresee. However, it is certain that technology will also be used for malicious purposes and violence. This study focuses on the threats advanced technology may pose to national and international security. It analyzes how disruptive technology may undermine social trust, public order and public safety. How will these innovations be used by terrorists and how will technology challenge existing legal concepts under international law? This paper seeks to answer the question whether international law can provide protection against individuals’ or states’ misuse of technology targeted against safety and freedom. Can the international community enforce the rule of law on the international level? Will advanced technology challenge our concepts on the contested notion of state terrorism and the legality of intervention against such states? Is the international legal regime resilient enough to cope with these new threats? Finally, this paper also covers the possible solutions of cyber-countermeasures and cyber-sanctions.

Zénó Suller
Zénó Suller: Ph.D. candidate, Pázmány Péter Catholic University, Budapest.
Developments in Minority Law

Access_open Conceptualizing National Identity in Self-Determination Practice

A Cross-Cutting International Law Analysis

Keywords national identity, self-determination, Aaland Islands, Kosovo, Quebec
Authors Gaetano Pentassuglia
AbstractAuthor's information

    While national identity disputes continue to proliferate – from secessionist claims to controversial ideas of national autonomy and indigenous sovereignty – there has hardly been any international cross-cutting (theoretically-driven) analysis of national identity issues per se, and hardly any conceptual assessment informed by legal (mainly adjudicatory) international (and international-related) practice. Drawing on international law and interdisciplinary scholarship, the aim of the inquiry is to fill this gap by offering a selective intertemporal investigation into, and articulation of, the hybridity with which international legal discourse has responded to such pressures in the context of definitional and conceptual matters linked to the right of ‘peoples’ to self-determination. Against general baseline meanings of ‘civic’ and ‘cultural’ national identity, I will subdivide the analysis into five broad areas of discussion, seeking to uncover the conceptual dimensions of peoplehood (and nationhood) debates in specific judicial/institutional settings, to expose their complexities, and to indicate a way forward. I will argue that there has been a move over time towards a more substantive view of national identity in international law, yet no universal or automatic test of peoplehood or nationhood applies to it; and that such a hybrid move should be viewed as neither a concession to ethnocentrism, nor merely a form of legal argumentation used to soften or even eradicate the ‘elemental force’ of national claims.

Gaetano Pentassuglia
Gaetano Pentassuglia: professor of international law, Centre for the Study of Law in Theory and Practice, Liverpool John Moores University; Honorary Senior Fellow, University of Liverpool.
Developments in Minority Law

Access_open The Recognition of the Universal Fate of Minorities

Keywords national minorities, minority protection, minority rights, Capotorti report, definition of minorities
Authors András Bethlendi
AbstractAuthor's information

    This article examines the international protection of national minorities in the first decade after World War II, challenging the notion that it was believed to be no longer a subject of concern during that time. The author reviews the work of the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities, highlighting the intensive efforts made from 1947 to 1955 on the issue of the rights and definition of national minorities. The article argues that the adoption of Resolution 217 C (III), ‘The Fate of Minorities’, marked a new start in the development of the protection of national minorities and emphasizes that the protection of national minorities must be treated as an integral part of human rights.

András Bethlendi
András Bethlendi: president, Advocacy Group for Freedom of Identity, Cluj Napoca; Ph.D. candidate, Pázmány Péter Catholic University, Budapest.
Developments in Minority Law

Access_open Are Exams Really a Celebration for the Diligent Student?

Analysis of the ECtHR Judgment in Ádám and Others versus Romania

Keywords non-discrimination, right to education, Ádám and others, school-leaving exam, ECtHR
Authors Laura Gyeney
AbstractAuthor's information

    On 13 October 2020, the ECtHR ruled on the compatibility of the Romanian national minority education and school-leaving exams with the ECHR in the case of Ádám and others v Romania. The ECtHR ruled that the system of school-leaving exams for national minorities in Romania (including Hungarians) does not violate the prohibition of discrimination, taking into account the results of Romanian and Hungarian pupils in the school-leaving exams. The present study argues that the ECtHR judgment, in fact, took a much more nuanced approach to the issue than the judgment at first sight suggests. This is because the ECtHR dismissed the applicants’ complaint only on the basis of the results of the school-leaving exams (in which respect no significant difference between the results of Romanian and Hungarian pupils could be found) and did not take a position on the question whether the fact that pupils belonging to national minorities have to sit two additional exams in the same school-leaving period violates the prohibition of discrimination.

Laura Gyeney
Laura Gyeney: associate professor of law, Pázmány Péter Catholic University, Budapest; director, Institute for Minority Rights, Budapest. The author is grateful to Sándor Szemesi for his valuable comments on the case note.
Hungarian State Practice

Access_open Hungarian Digital Media Cases Before Supranational European Courts

Keywords digital media, Hungary, Magyar Kétfarkú Kutya Párt, Herbai, Telenor, Magyar Jeti
Authors Gergely Gosztonyi, Daniella Huszár and Gergely Ferenc Lendvai
AbstractAuthor's information

    The last decade brought turmoil in the media field in Central Eastern Europe. Hungary, although a member of the EU since 2004, is a country where concerns about media freedom were growing in the last decade. Taking account of the country as a prominent player in the illiberal regimes, it is not surprising that famous media-related cases could be found in front of different international courts. Cases before the ECtHR like Magyar Kétfarkú Kutya Párt versus Hungary, Magyar Tartalomszolgáltatók Egyesülete and Zrt versus Hungary, Magyar Jeti Zrt versus Hungary, or Herbai versus Hungary show new ways to treat questions concerning digital media. The same is applicable to Ker-Optika, Artisjus or Telenor Magyarország cases before the CJEU. The article explores those landmark Hungarian digital media cases before supranational European courts and shows that although Hungary’s internal regulation has been the subject of much criticism, the country has made a significant contribution to clarifying the details of European digital media regulation.

Gergely Gosztonyi
Gergely Gosztonyi: associate professor of law, ELTE Law School, Budapest.

Daniella Huszár
Daniella Huszár: Ph.D. student, ELTE Law School, Budapest; junior associate, CMS Budapest TMT.

Gergely Ferenc Lendvai
Gergely Ferenc Lendvai: Ph.D. student, Pázmány Péter Catholic University, Budapest.
Hungarian State Practice

Access_open The Past, Present, and the Future of Hungarian Land Law in the Context of EU Law

Or, why Hungary Became One of the Most Active Member States in Land Matters before the CJEU?

Keywords land law, Hungary, Grossmania, SEGRO and Horváth, CJEU
Authors János Ede Szilágyi and Hajnalka Szinek Csütörtöki
AbstractAuthor's information

    In the span of a few years, Hungarian land law regulation has significantly changed from an under-regulated area to a highly structured, well-established system of detailed rules. This transformation can be attributed, inter alia, to the country’s accession to the EU – which is definitely an important milestone for Hungarian land law. Indeed, EU law provides an essential regulatory framework for agricultural and forestry land transfer. After the expiry of the transitional period, the European Commission launched a comprehensive investigation of the land law legislation of Member States that joined the EU in 2004 (including Hungary) or thereafter. The investigation revealed that certain land law regulations were non-compliant with EU law, leading to the initiation of infringement proceedings. Moreover, it should be highlighted that preliminary ruling procedures were also initiated before the CJEU on questions of national land law. The present paper provides a comprehensive overview of the infringement proceedings and preliminary rulings concerning the Hungarian land law regime, paying particular attention to the recent Grossmania case.

János Ede Szilágyi
János Ede Szilágyi: professor of law, University of Miskolc; director, Ferenc Mádl Institute of Comparative Law, Budapest.

Hajnalka Szinek Csütörtöki
Hajnalka Szinek Csütörtöki: PhD candidate, Ferenc Deák Doctoral School of Law, Faculty of Law, University of Miskolc; researcher, Department of Private Law, Ferenc Mádl Institute of Comparative Law, Budapest.
Hungarian State Practice

Access_open From Non-Derogation to the Duty to Progress

Key Elements of the Right to a Healthy Environment in the Case Law of the Hungarian Constitutional Court

Keywords Constitutional Court of Hungary, right to environment, non-derogation, non-retrogression, duty to progress
Authors Sándor Szemesi
AbstractAuthor's information

    The Hungarian Constitutional Court’s practice regarding the enforcement of the right to a healthy environment is of outstanding importance. This practice was launched by Decision No. 28/1994. (V. 20.) AB and by the principle of non-derogation (or non-retrogression) stated therein. Over time, the Constitutional Court also elevated the precautionary principle to constitutional rank and the Fundamental Law that entered into force in 2012 also enables the Constitutional Court to pay particular attention to the interests of future generations, as well as environmental and natural values as elements of the common heritage of the nation, in addition to the present generations’ right to a healthy environment. This article examines how the principle of non-derogation (as a crucial part of the right to a healthy environment) is applied in the Hungarian Constitutional Court’s practice and to what extent that principle may be used in the future to solve environmental problems (primarily the effects of climate change) faced by humanity.

Sándor Szemesi
Sándor Szemesi: chief counselor, Constitutional Court of Hungary.
Case Notes

Access_open A New Dimension of the Constitutional Responsibility of the State for Environmental Damage?

Decision No. 5/2022. (IV. 4.) AB of the Hungarian Constitutional Court

Keywords environmental damage, state responsibility, right to a healthy environment, environmental liability, Hungarian Constitutional Court
Authors Ilona Agócs
AbstractAuthor's information

    This article showcases a recent decision of the Hungarian Constitutional Court regarding the State’s responsibility in a case concerning environmental damage which reaches back more than half a century. The reasoning attached to the decision contains important findings concerning the State’s responsibility, in part deduced from the scope of the right to a healthy environment giving way to the enforcement of individual compensation claims. However, the general validity of the constitutional argument is disputable and yet to be determined. It may be considered a new dimension of the State’s constitutional responsibility for environmental damage in light of the right to a healthy environment, with a significant long-term interpretative spectrum. Just as much as it may be interpreted as a way to achieve legal reparation in a particularly unfair and protracted individual legal affair.

Ilona Agócs
Ilona Agócs: chief legal advisor to the Hungarian Ombudsman for Future Generations, Budapest.
Case Notes

Access_open An Attempt to Achieve a Noble Aim through Inadequate Means

Analysis of the ECtHR Judgment in Bakirdzi and E.C. versus Hungary

Keywords preferential mandate, list of national minorities, secrecy of the vote, right to vote, Bakirdzi and E.C
Authors Gábor Kurunczi
AbstractAuthor's information

    The present study deals with the judgment of the ECtHR concerning the rule of national minorities’ representation in Hungarian parliamentary elections and the conclusions that may be drawn from it. It tries to answer the question whether Hungarian legislation is compatible with the requirements of the ECHR, and whether the ECtHR’s reasoning in the present case adds up to a logical and coherent system. The judgment of the ECtHR raises a number of questions regarding the specific part of the Hungarian parliamentary electoral system that affects national minorities. The critical analysis of the judgment shall be divided into two main parts: first, the reasoning of the judgment dealing with discrimination, and second, the part of the judgment that finds a violation of Article 3 of Protocol No. 1. to the ECHR. The signatory state was condemned for three reasons: (i) because of the impossibility to obtain a mandate (the low number of seats), (ii) due to the prohibition to also vote on party lists in the same election, and (iii) because of the breach of the secrecy of the vote. Based on the analysis of the above aspects, this study concludes that the ECtHR – despite minor or major errors of reasoning in its judgment – correctly highlighted the problems inherent in the relevant part of the Hungarian legislation, namely, the difficulties and anomalies surrounding national minorities in obtaining seats in parliament. Thus, while an amendment of these rules is undoubtedly necessary, it remains a question which direction this change will take.

Gábor Kurunczi
Gábor Kurunczi: associate professor of law, Pázmány Péter Catholic University, Budapest; National University of Public Service, Budapest.
Case Notes

Access_open Are the Requirements for ’Control of Use’ Changing?

Analysis of the ECtHR Judgment in Pannon Plakát Kft and Others versus Hungary

Keywords right to property, freedom of enterprise, compensation, ECtHR, Pannon Plakát
Authors Ádám Varga
AbstractAuthor's information

    The present study deals with the judgment of the ECtHR on control of the use of property and the conclusions to be drawn from it. According to ECtHR, disproportionate amendments to an Act on roadside advertising hoardings outside built-up areas have extinguished substantial part of applicant companies’ businesses. The analyzed judgment is especially interesting because it provides a good example of the different approach of the Hungarian Fundamental Law and the ECHR to the examined issue (which concerns not only the right to property in the narrow sense, but also the right to freedom of enterprise), and also strongly demonstrates the importance of the precise establishment of the facts and the correct interpretation of the regulatory context. On the one hand, the judgment summarizes the conclusions of a number of earlier (mainly Hungarian) cases, and on the other hand, it further elaborates the interpretation of the ECHR provision under examination. It can be seen that the interpretation of the control of use is in a period of change. In addition to the general principle of fair balance, the requirement of compensation is increasingly being applied in the case of restrictions that do not amount to a deprivation of property.

Ádám Varga
Ádám Varga: senior lecturer, Pázmány Péter Catholic University, Budapest.
Conference Reports

Access_open Gabčikovo-Nagymaros Project Case Judgment – 25 Years On

Report on the ‘Gabčikovo-Nagymaros Project Case Judgment – 25 Years On International Conference’ Organized by Pázmány Péter Catholic University, 23 September 2022, Budapest

Keywords conference report, Pázmány Péter Catholic University, ICJ, Gabčikovo-Nagymaros, international environmental law
Authors Vivien Köböl-Benda
AbstractAuthor's information

    Pázmány Péter Catholic University organized an international scientific conference titled ‘International Conference on the ‘Gabčikovo-Nagymaros Project Case Judgment – 25 Years On’ in Budapest on 23 September 2022. The speakers covered the historical background of the case, the legal arguments presented by the parties, the judgment and the separate opinion, assessed its impact on the development of international environmental law and outlined options for future environmental cases before the ICJ.

Vivien Köböl-Benda
Vivien Köböl-Benda: Ph.D. candidate, Pázmány Péter Catholic University, Budapest.
Review of Hungarian Scholarly Literature

Access_open Tihamér Tóth (ed.), The Cambridge Handbook of Competition Law Sanctions

Cambridge University Press, Cambridge, 2022, 755 p, ISBN 978-1-108-83171-0

Authors Fülöp Beyer
Author's information

Fülöp Beyer
Fülöp Beyer: research fellow, University of Public Service, József Eötvös Research Centre, Institute for Information Society, Budapest; Ph.D. student, ELTE Law School, Budapest.