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Article

Fiscal Equalization among the Hungarian Local Governments – Autonomy v. Equity

Decision No. 3383/2018. (XII. 14.) AB of the Constitutional Court of Hungary

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Keywords European Charter of Local Self-Government, financial resources of local authorities, fiscal equalization, solidarity levy, Constitutional Court of Hungary
Authors Gábor Kecső
AbstractAuthor's information

    The 2017 budget of Hungary contains a regime on fiscal equalization among local governments that distracts funds from the municipalities with relatively high taxing power within the country. The respective norms were reviewed by the Constitutional Court from the perspective of international law, since Hungary is one of the member parties to the European Charter of Local Self-Government. This note highlights the essence of the abovementioned decision and discusses some underlying issues of allocating public tasks and funds between the governmental layers in a unitary country where the per capita revenue of local taxes is very divergent.


Gábor Kecső
Senior lecturer, ELTE Law School, Budapest; counselor, Constitutional Court of Hungary.
Article

The Value of the Environment in Hungarian Municipalities

An Overview of the Legal Aspects

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Keywords environmental regulation, environmental policy, local self-governments, local actions, environmental sustainability
Authors László Fodor
AbstractAuthor's information

    In the field of environmental policy, the principle of sustainability and local actions are becoming increasingly important (‘think globally – act locally’). In Hungary, the focus is – within the multi-level local government system – on the local governments of the municipalities. This study is part of a research project on the role of municipal local governments in Hungary. During our research, in addition to the research methods of the ‘desktop’, case studies, questionnaires, interviews and focus group interviews were used. This study presents such general conclusions that can be drawn from the partial results. It does not include the presentation of certain areas of local environmental protection (air protection, waste management, protecting the built environment etc.), it rather tries to present the attitude of local governments, their commitment to environmental protection and the circumstances affecting it. It shows that Hungarian local governments do not form a homogeneous group. Primarily due to the differing size of municipalities, local environmental conflicts and the financial resources available for their resolution differ from each other as well. However, certain circumstances – such as the low degree of environmental awareness of the Hungarian population, the decrease in the autonomy of the local governments, the effects of the economic crisis and the changes of central regulations – affect them equally. The environmental protection performance of local governments is generally lower than desired.


László Fodor
Professor of law, University of Debrecen.
Article

Fair Trial under Scrutiny

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Keywords Constitutional Court of Hungary, right to a fair trial, Article 6 ECHR, Article XXVIII of the Fundamental Law of Hungary, Hungarian Code of Criminal Procedure
Authors Ágnes Czine
AbstractAuthor's information

    The right to a fair trial has an eminent position in the Fundamental Law of Hungary both because of the importance of the right and the great number of applications and jurisprudence it has been the subject of. This study presents the legal background of fair trial and its place in the Hungarian legal system, analyzing the jurisprudence of the Hungarian Constitutional Court on the right to fair trial, and in particular, the obligation to adjudicate within a reasonable time. While the Constitutional Court has developed a consistent practice in this regard, there are nevertheless new issues that may make the amendment of certain pieces of legislation necessary. This paper presents a case-study on a new development in the Constitutional Court’s practice on the issue of deciding the case within a reasonable time.


Ágnes Czine
Justice, Constitutional Court of Hungary.
Editorial

Legal, Ethical and Economical Impacts of Intergenerational Equity (Editorial Comments)

Foreword to Vol. 7 (2019) of the Hungarian Yearbook of International Law and European Law

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Authors Marcel Szabó
Author's information

Marcel Szabó
Editor-in-chief; professor of law, Pázmány Péter Catholic University, Budapest; justice, Constitutional Court of Hungary.
Article

Conference on the Evaluation of Legislation

Report on the ‘Evaluation of Legislation’ Conference Organized by Pázmány Péter Catholic University, 3 May 2019, Budapest

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Authors Noémi Suri
Author's information

Noémi Suri
Assistant professor, Pázmány Péter Catholic University, Budapest.
Article

The European Investment Bank

An EU Institution Facing Challenges and Providing Real European Added Value

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Keywords European Investment Bank, status and role of development banks, Green Bonds, European Fund for Strategic Investments (EFSI), InvestEU
Authors Zsolt Halász
AbstractAuthor's information

    Multilateral banks play an important role in financing larger investment projects within the EU and in most parts of the world. These institutions are less known than that commercial banks, even though many of these institutions – and in particular, the European Investment Bank – have provided a truly remarkable volume of financial support for the countries where they operate, including EU Member States. This paper introduces the largest of the multilateral financial institutions: the European Investment Bank. It elaborates on the specific regulatory framework applicable to its structure and operation as well as a number of special characteristics affecting this institution exhibiting a unique dual nature: a multilateral bank and an EU institution. This paper examines the complexity of the EIB’s operation, in particular, the impact of external circumstances such as EU enlargements of the past and the Brexit issue in the present. Beyond these specific questions, generic issues relating to its operations, governance, the applicable specific prudential requirements and the non-supervised nature of multilateral financial institutions are analyzed as well. This paper also reflects on the EIB’s unimpeachable role in financing the EU economy and on its pioneering role in bringing non-financial considerations, such as environmental protection into the implementation of financial operations.


Zsolt Halász
Associate professor, Pázmány Péter Catholic University, Budapest.

    Géza Herczegh was a Hungarian academic, justice of the Hungarian Constitutional Court and judge of the International Court of Justice (ICJ). In this paper, which commemorates the 90th anniversary of Géza Herczegh’s birth, his successor at the ICJ, Judge Peter Tomka, offers his reflections on Herczegh’s time at the Court. While they had only limited interaction, Judge Tomka recalls his encounters with Herczegh, both before and after Herczegh’s election to the ICJ. Additionally, Judge Tomka reviews Herczegh’s legacy at the ICJ, considering both the occasions when Herczegh wrote separately from the Court and his reputation amongst people familiar with the ICJ as a dedicated and open-minded judge interested in finding areas of consensus.


Peter Tomka
Member of the ICJ since 6 February 2003 (re-elected as from 6 February 2012), Vice-President of the ICJ from 6 February 2009 until 5 February 2012; President of the ICJ from 6 February 2012 until 5 February 2015.
Article

Content Neutrality and the Limitation of Free Speech

The Relevance of an American Principle in the Case-Law of the Constitutional Court of Hungary

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Keywords Constitutional Court of Hungary, limitation of free speech, freedom of expression, content neutrality, external boundary
Authors Bernát Török
AbstractAuthor's information

    Content neutrality is arguably the most frequently mentioned principle of free speech doctrine both in legal theory and in legal practice. While it is well-known how important it is in the jurisprudence of the US, it generally remains obscure whether content neutrality is of true relevance for European jurisdictions. This article argues that the Hungarian doctrine of freedom of expression urges us to answer affirmatively. The case-law of the Hungarian Constitutional Court from the last three decades clearly demonstrates that although along with serious challenges to be responded to, content neutrality is a fundamental element of constitutional adjudication in the Hungarian doctrine. With its key concept of ‘external boundaries of free speech’, the Constitutional Court builds on the principle that restrictions should not be based on the fact that the content of speech is unacceptable, unworthy or wrong, and limitation on speech should be justified not by referring to its content alone but by referring to its context. After exploring the relevant case-law of the Constitutional Court and identifying the challenges this principle is facing in Hungarian doctrine, this article aims to construe valid theses of content neutrality in Hungarian law.


Bernát Török
Associate professor, National University of Public Service, Budapest.
Article

Legal Challenges of the Retention of Worker Status as Reflected in Recent Case-Law of the CJEU

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Keywords free movement of workers, EU citizens, right to move and reside freely, retention of EU worker status, equal treatment, welfare benefits
Authors Laura Gyeney
AbstractAuthor's information

    In recent years, a growing number of cases related to the retention of worker status have emerged in CJEU jurisprudence with reference to welfare benefits, requiring a much deeper analysis of the field treated earlier as peripheral. Such an analysis seems especially justified in light of the current political and legal discourse concerning the issue of free movement, focusing on the question of equal treatment in the field of welfare assistance for mobile citizens. The purpose of this study is to present and put into context the relevant case-law of recent years by analyzing the judgments of the CJEU in two cases that are benchmarks in this field: the Tarola and Saint Prix cases. Both cases highlight the key role that economically active status continues to play in integration law. These judgments also shed light on the challenges arising from the difficulties in distinguishing between the economically active and inactive EU citizen statuses. This issue emerged as an increasingly grave problem in the field of law of free movement, posing a serious dilemma for law enforcement.


Laura Gyeney
Associate professor, Pázmány Péter Catholic University, Budapest.
Article

Key Factors of the Development and Renewal of the Social Market Economy in the EU

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Keywords Europe 2020 strategy, social market economy, eco-social market economy, social welfare systems, EU structural funds
Authors István Kőrösi
AbstractAuthor's information

    The purpose of this study is to present the principles, strategy and operation of the social market economy, based on legal, political and economic considerations. The first social market economy, West Germany – followed by Austria, the Netherlands, as well as other countries in Northern and Western Europe –, mustered a positive overall performance from the post-World War II years to the early 1970s. Since then, however, we have been witnessing the erosion, distortion and decline of efficiency of the social market economy. There are four main issues to be addressed: (i) What are the main theoretical and conceptual, ‘eternal’ elements of the social market economy? (ii) What economic policy was built on this theoretical foundation and why did the system work well in Western Europe after World War II? (iii) What factors eroded this system? (iv) Can social market economy be renewed in the second decade of the 21st century and, if it can, what are the preconditions of it? In my analysis, I highlight some key areas: EU policies, Lisbon Agenda and Europe 2020 strategy, growth, financial disequilibria and competitiveness, innovation and employment, the relation of state and market.


István Kőrösi
Associate professor, Pázmány Péter Catholic University, Budapest; senior research fellow, World Economic Institute of ERRC of the Hungarian Academy of Sciences.
Article

European Water Law and Uncertainty

Managing Hydrological Variability in Shared River Basins in the EU

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Keywords hydrological variability, transboundary water governance, EU water law, shared river basins, variability management
Authors Gábor Baranyai
AbstractAuthor's information

    Hydrological variability has been on the rise in the past decades with dramatic consequences for water management on the national and international plane alike. Yet, most legal regimes governing the use and protection of water resources reflect a high degree of rigidity presuming that hydrological conditions prevailing at the time of their conception remain stable indefinitely. The mismatch between rigid legal frameworks and rapidly changing natural conditions are likely to give rise to new types of interstate conflicts in shared river basins (or accentuate existing ones), since historically the adoption of (new) transboundary governance regimes has been very slow and reactive in character. While the EU has been praised worldwide as an exemplary model of co-riparian cooperation, its multi-layered water governance regime also deserves a comprehensive fitness check that, among others, should evaluate its ability to handle the growing uncertainty surrounding underlying hydrological circumstances. This article provides a resilience assessment of European water law from the perspective of the management of hydrological variability.


Gábor Baranyai
Senior lecturer, National University of Public Service, Budapest.
Article

Access_open Levying VAT in the EU Customs Union: Towards a Single Indirect Tax Area? The Ordeal of Indirect Tax Harmonisation

Journal Erasmus Law Review, Issue 3 2019
Keywords single indirect tax area, VAT action plan, quick fixes, e-commerce package, definitive VAT system
Authors Ben Terra
AbstractAuthor's information

    This contribution deals with the latest proposals regarding levying VAT in the European Union (EU) Customs Union. The present system, which has been in place since 1993 and was supposed to be transitional, splits every cross-border transaction into an exempted cross-border supply and a taxable cross-border acquisition. It is like a customs system, but lacks equivalent controls and is therefore the root of cross-border fraud. After many years of unsuccessful attempts, the Commission abandoned the objective of implementing definitive VAT arrangements based on the principle of taxing all cross-border supplies of goods in the Member State of their origin, under the same conditions that apply to domestic trade including VAT rates. The European Parliament and the Council agreed that the definitive system should be based on the principle of taxation in the Member State of the destination of the goods. After a brief discussion of the VAT Action Plan of 2016 (Section 1), the e-commerce package in the form of Directive (EU) 2017/2455 is dealt with (Section 2), followed by the proposal to harmonise and simplify certain rules in the VAT system and introduce the definitive system, only partially adopted (Section 3). Section 4 deals with the proposal to introduce detailed measures of the definitive VAT system. The proposed harmonisation and simplification of certain rules were meant to become applicable on 1 January 2019, but will become only partially applicable on 2020. It is proposed to make the detailed measures of the definitive VAT system applicable in 2022. It remains to be seen whether the Member States are willing to accept the definitive VAT system at all; hence the subtitle ‘the ordeal of indirect tax harmonisation’.


Ben Terra
Prof. Dr. Dr. h.c. Ben Terra was a professor of tax law at the universities of Amsterdam and Lund and visiting professor at the Universidade Católica in Lisbon.
Article

Access_open The EU Customs Union after Brexit

How from a Customs Perspective the Integrity of the Internal Market Is Protected after the Transitional Phase under the Revised Protocol on Ireland/Northern Ireland

Journal Erasmus Law Review, Issue 3 2019
Keywords Brexit, EU Customs Union, Internal Market
Authors Walter de Wit
AbstractAuthor's information

    In this contribution the author examines how, from a customs perspective, the integrity of the internal market is protected after the transitional phase under the Revised Protocol on Ireland/Northern Ireland. He briefly discusses the customs aspects of the Withdrawal Agreement and then examines in depth the revised arrangement with regard to the Irish border in light of the protection of the integrity of the internal market. He shows that the revised arrangement cleared the Brexit deal through parliament and paved the UK’s way to leave the EU on 31 January 2020. He concludes, however, that given the complexity of the legislation underlying the revised arrangement, the UK will be paying a high price for getting Brexit done, keeping the Irish border open and protecting the integrity of the internal market of the EU.


Walter de Wit
Walter de Wit is a professor in International and European Customs Law at the Erasmus School of Law and is also affiliated to EY.
Article

Access_open Impact of International Law on the EU Customs Union

Journal Erasmus Law Review, Issue 3 2019
Keywords European Union, customs union, international law, customs legislation, autonomous standards
Authors Achim Rogmann
AbstractAuthor's information

    This contribution examines the various international instruments, in both hard and soft law, that have been established by international organisations such as the WTO and WCO and scrutinises how they have been implemented into EU legislation governing the EU Customs Union, thus demonstrating the substantial influence of international instruments on the Customs Union. As the relevant international instruments affect not only the traditional elements of European customs law, but also the EU’s entire export control regime and the framework of the internal market, this contribution demonstrates, moreover, how the Customs Union functions in a globalised world.


Achim Rogmann
Achim Rogmann, LL.M is professor of law at the Brunswick European Law School at Ostfalia Hochschule fur angewandte Wissenschaften.
Article

How to Improve Local Turnout

The Effect of Municipal Efforts to Improve Turnout in Dutch Local Elections

Journal Politics of the Low Countries, Issue 3 2019
Keywords turnout, local elections, get out the vote, campaign, the Netherlands
Authors Julien van Ostaaijen, Sabine van Zuydam and Martijn Epskamp
AbstractAuthor's information

    Even though many municipalities use a variety of means to improve turnout in local elections, citizen participation in local elections is a point of concern in many Western countries, including the Netherlands. Our research question is therefore: How effective are municipal efforts to improve turnout in (Dutch) local elections? To this end, we collected data from three sources: (1) a survey sent to the municipal clerks of 389 Dutch municipalities to learn what they do to improve turnout; (2) data from Statistics Netherlands on municipalities’ socio-demographic characteristics; and (3) data on the turnout in local elections from the Dutch Electoral Council database. Using hierarchical multiple regression analysis, we found that the direct impact of local governments’ efforts to improve turnout is low. Nevertheless, some measures seem to be able to make a difference. The relative number of polling stations was especially found to impact turnout.


Julien van Ostaaijen
Julien van Ostaaijen is assistant professor of public administration at the Tilburg Institute of Governance (Tilburg University).

Sabine van Zuydam
Sabine van Zuydam is assistant professor of public administration at the Tilburg Institute of Governance (Tilburg University) and researcher at Necker van Naem.

Martijn Epskamp
Martijn Epskamp is a researcher of the municipality of Rotterdam (Research and Business Intelligence department)
Article

Split-Ticket Voting in Belgium

An Analysis of the Presence and Determinants of Differentiated Voting in the Municipal and Provincial Elections of 2018

Journal Politics of the Low Countries, Issue 3 2019
Keywords split-ticket voting, local elections, voting motives, Belgium, PR-system
Authors Tony Valcke and Tom Verhelst
AbstractAuthor's information

    This article tackles the particular issue of split-ticket voting, which has been largely overlooked in Belgian election studies thus far. We contribute to the literature by answering two particular research questions: (1) to what extent and (2) why do voters cast a different vote in the elections for the provincial council as compared to their vote in the elections for the municipal council?
    The article draws on survey data collected via an exit poll in the ‘Belgian Local Elections Study’, a research project conducted by an inter-university team of scholars.
    Our analysis shows that nearly 45% of the total research population cast a split-ticket vote in the local elections of 2018. However, this number drops to one out of four if we only consider a homogenous party landscape at both levels by excluding the numerous votes for ‘local’ lists (which occur mostly at the municipal level). This finding underlines the importance of accounting for the electoral and institutional context of the different electoral arenas in research on split-ticket voting in PR systems. In the Belgian context, split-ticket voting in 2018 also differed between the different parties and regions. Furthermore, it was encouraged by a higher level of education and familiarity with particular candidates. This candidate-centred and strategic voting was matched by party identification and the urban municipal context favouring straight-ticket voting. Other factors such as region, a rural municipal context and preferential voting seemed more relevant to determine voting for local parties than using the instrument of split-ticket votes as such.


Tony Valcke
Tony Valcke is Associate Professor at the Faculty of Political and Social Sciences of Ghent University (Belgium). He is a member of the Centre for Local Politics (CLP) and coordinator of the Teacher Training Department. His research, publications and educational activities focus on elections and democratic participation/innovation, (the history of) political institutions and (local) government reform, political elites and leadership, citizenship (education).

Tom Verhelst
Tom Verhelst is Assistant Professor at the Faculty of Political and Social Sciences at Ghent University (Belgium) and a postdoctoral research fellow at the Department of Political Science at Maastricht University (the Netherlands). His research focuses on the Europeanisation of local government (with a particular interest for the regulatory mobilisation of local government in EU decision-making processes) and on the role and position of the local council in Belgium and the Netherlands (with a particular interest for local council scrutiny).
Research Notes

Sub-Constituency Campaigning in PR Systems

Evidence from the 2014 General Elections in Belgium

Journal Politics of the Low Countries, Issue 3 2019
Keywords Sub-constituency campaigning, PR system, political advertisements, election campaign, content analysis
Authors Jonas Lefevere, Knut De Swert and Artemis Tsoulou-Malakoudi
AbstractAuthor's information

    Sub-constituency campaigning occurs when parties focus their campaign resources on specific geographical areas within an electoral district. This behaviour was traditionally thought to occur only in single-member plurality elections, but recent research demonstrates that proportional systems with multi-member districts can also elicit sub-constituency campaigning. However, most studies of sub-constituency campaigning rely on self-reported measures of campaigning, not direct measures of campaign intensity in different regions and communities. We present novel data on geographical variations in the intensity of Flemish parties’ campaign advertising during the 2014 general elections in Belgium, which provides a direct measure of sub-constituency campaigning. Our findings show clear evidence of sub-constituency campaigning: parties campaign more intensely in municipalities where they have stronger electoral support and in municipalities with greater population density.


Jonas Lefevere
Jonas Lefevere is assistant professor at Vesalius College and the Institute for European Studies (VUB). His research interests include the strategic communication of political elites, the effects of campaign communication on political attitudes and electoral choice and the role of issue perceptions in electoral behavior.

Knut De Swert
Knut De Swert is Assistant Professor, Political Communication and Journalism, at the Amsterdam School of Communication Research (University of Amsterdam, The Netherlands). His research is situated in the field of media and politics, and mainly focuses on the quality of (political) journalism and foreign news in a comparative perspective.

Artemis Tsoulou-Malakoudi
Artemis Tsoulou-Malakoudi is a student research assistant for the EOS research project RepResent which focuses on representation and democratic resentment. She is currently following a Research Master’s at the University of Amsterdam with an interest in political communication research.
Article

Control in International Law

Journal African Journal of International Criminal Justice, Issue 1 2019
Keywords Effective / overall control, international human rights law, international criminal law, responsibility of states, statehood
Authors Joseph Rikhof and Silviana Cocan
AbstractAuthor's information

    The concept of control has permeated various disciplines of public international law, most notable international criminal law, international humanitarian law, international human rights law and the law of statehood as well as the law of responsibility for states and international organizations. Often this notion of control has been used to extend the regular parameters in these disciplines to capture more extraordinary situations and apply the same rules originally developed within areas of law, such as the application of the laws of war to occupation, the rules of human rights treaties to extraterritorial situations or state responsibility to non-state actors. This article will examine this notion of control in all its facets in international law while also addressing some of its controversies and disagreements in the jurisprudence of international institutions, which have utilized this concept. The article will then provide an overview of its uses in international law as well as its overlap from one discipline to another with a view of providing some overarching observations and conclusions.


Joseph Rikhof
Joseph Rikhof is an adjunct professor at the Common Law Faculty of the University of Ottawa.

Silviana Cocan
Silviana Cocan holds a double doctoral degree in international law from the Faculty of Law of Laval University and from the Faculty of Law and Political Science of the University of Bordeaux.

    In dit artikel wordt de waarde van het instituut parlement verkend. Daartoe analyseert de auteur eerst een lezing die de Nederlandse staatsrechtsgeleerde C.W. van der Pot in 1925 over dit thema hield bij de VWR. Vervolgens wordt Van der Pots opvatting gecontrasteerd met de diametraal tegengestelde benadering van Carl Schmitt, die zich, rond dezelfde tijd, over dit vraagstuk boog in Duitsland. Tot slot schetst de auteur, via een alternatieve, wellicht excentrieke, interpretatie van Schmitt waar een belangrijke waarde van het moderne parlement zou kunnen liggen.


Bastiaan Rijpkema
Bastiaan Rijpkema is universitair docent aan de afdeling Encyclopedie van de Rechtswetenschap van de Universiteit Leiden.
Article

The Smuggling of Migrants across the Mediterranean Sea

A Human Rights Perspective

Journal East European Yearbook on Human Rights, Issue 1 2019
Keywords smuggling, refugees, migration, readmission, interceptions
Authors J. Shadi Elserafy LL.M.,
AbstractAuthor's information

    Irregular migration by sea is one of the most apparent contemporary political issues, and one that entails many legal challenges. Human smuggling by sea is only one aspect of irregular migration that represents a particular challenge for States, as sovereignty and security interests clash with the principles and obligations of human rights and refugee law. In dealing with the problem of migrant smuggling by sea, States have conflicting roles, including the protection of national borders, suppressing the smuggling of migrants, rescuing migrants and guarding human rights.
    The legal framework governing the issue of migrant smuggling at sea stems not only from the rules of the law of the sea and the Smuggling Protocol but also from rules of general international law, in particular human rights law and refugee law. The contemporary practice of States intercepting vessels engaged in migrant smuggling indicates that States have, on several occasions, attempted to fragment the applicable legal framework by relying on laws that allow for enhancing border controls and implementing measures that undermine obligations of human rights and refugee law. This article seeks to discuss the human rights dimension of maritime interception missions and clarify as much as possible the obligations imposed by international law on States towards smuggled migrants and whether or not these obligations limit the capacity of States to act.


J. Shadi Elserafy LL.M.,
LL.M., Judge/Counselor at The Egyptian Council of State (The Higher Administrative Court of Justice).
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