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Article

An Important Planning Instrument: Strategic Environmental Assessment (EU Directive 2001/42).

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Keywords environmental impact assessment, Directive 2001/42, strategic planning, assessment of plans, environmental report
Authors Ludwig Krämer
AbstractAuthor's information

    Directive 2001/42 requires the elaboration of an environmental impact assessment, before certain national, regional or local plans or programs related to the environment are adopted. The paper presents the content of the Directive and summarizes the case-law of the CJEU on the Directive. Furthermore, it raises a number of legal questions hitherto left undiscussed by the European courts.


Ludwig Krämer
Derecho y Medio Ambiente S.L., Madrid

Tamás Török
PhD candidate, University of Pécs.
Article

The Precautionary Principle in the Fundamental Law of Hungary

Judicial Activism or an Inherent Fundamental Principle? An Evaluation of Constitutional Court Decision No. 13/2018. (IX. 4.) AB on the Protection of Groundwater

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Keywords Constitutional Court of Hungary, precautionary principle, judicial activism, Article P of the Fundamental Law of Hungary, constitutional protection of the environment
Authors Marcel Szabó
AbstractAuthor's information

    Acting upon the motion of the President of the Republic, the Constitutional Court of Hungary ruled in its Decision No. 13/2018. (IX. 4.) AB that the regulation which would have allowed establishing new wells up to the depth of 80m without a license or notification was contrary to the Fundamental Law. The Constitutional Court found in its decision that the regulation would endanger the volume and quality of underground water in a way that, considering the precautionary principle, was no longer compatible with the protection of natural resources and cultural artefacts forming the common heritage of the nation as laid down in Article P(1) of the Fundamental Law or Article XXI(1) of the same on the right to a healthy environment. It was in this decision that the Constitutional Court first outlined in detail the constitutional significance of the precautionary principle, with this principle forming the central part of the decision’s reasoning. Within the framework of this study I examine whether this decision based on the precautionary principle can be considered the ‘extraction’ of what is inherently present in the Fundamental Law or on the contrary, whether it was an activist approach imposing the principle on the Fundamental Law.


Marcel Szabó
Professor of law, Pázmány Péter Catholic University, Budapest; justice, 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

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

Defining the Role of the Aarhus Convention as Part of National, International and EU Law

Conclusions of a Case-Law Analysis

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Keywords Aarhus Convention, principle of public participation, protection of the environment, environmental issues before national (constitutional) courts, direct applicability
Authors Ágnes Váradi
AbstractAuthor's information

    As a basic point of reference in international law the Aarhus Convention has a considerable impact on the framework of public participation in environmental matters. The fact that the Convention forms part of national legal orders of EU Member States both as part of international and EU law, the proper enforcement of its provisions makes it inevitable to draw up certain principles of interpretation. The current paper aims to analyze how the Aarhus Convention appears at the level of legal argumentation in the case-law of the CJEU and selected national constitutional courts or high courts of EU Member States, namely, Germany, France and Hungary. Those decisions are examined that refer directly and explicitly to the Aarhus Convention. The case-law analysis is completed by the reference to the relevant secondary literature. The findings can provide a synthesis about the role of the Aarhus Convention, thematic milestones can be drawn up concerning the interpretation of the obligations stemming from the Convention and they can give useful insights into the relationship of national laws, EU law and international law. Meanwhile, they contribute to the analysis of the role of civil participation in the protection of the environment. This way, the conclusions can support the emergence of a (more) general approach in EU Member States as far as public participation in environmental matters is concerned.


Ágnes Váradi
Research fellow, Hungarian Academy of Sciences, Centre for Social Sciences, Institute for Legal Studies.
Article

The Case of the Hungarian Constitutional Court with Environmental Principles

From Non-Derogation to the Precautionary Approach

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Keywords Constitutional Court of Hungary, environmental issues, non-derogation principle, precautionary principle, Article P of the Fundamental Law of Hungary, right to a healthy environment
Authors Gyula Bándi
AbstractAuthor's information

    Principles influence legislation, implementation and enforcement of the law to a great extent. This is especially the case with those fields of law, which are relatively new and subject to constant changes, such as environmental law. Principles have legal value, among others to fill legal gaps or to assist proper interpretation. It is always expedient to have a high-level judicial forum for legal interpretation at national level this would be a constitutional court or a supreme court. Legal interpretation can be particularly tricky when principles are combined with human rights. Constitutional courts, such as the Hungarian Constitutional Court are the preferred choice for such legal interpretation, since human rights are normally enshrined in the constitutions. In Hungary both the previous (1989) Constitution and the currently effective Fundamental Law of 2011 contain express and rather similar provisions regarding the right to environment, the content of which need clarification. Beside this similarity, the Fundamental Law has several other additional provisions supporting interpretation in the interests of the environment. This paper only presents – as examples of necessary interpretation – two principles to illustrate what the right to environment actually means. These are the non-regression (non-derogation) and the precautionary principles, which will be described both in general and in light of their current Hungarian interpretation. Non-regression (non-derogation) basically represents a decent minimum that should not be contravened, while precautionary principle is more in flux, a moving target, focusing on likely consequences, with scientific uncertainty at its core. Both principles will be introduced through the decisions of the Hungarian Constitutional Court.


Gyula Bándi
Jean Monnet professor of law, Pázmány Péter Catholic University, Budapest; Ombudsman for future generations.
Article

Towards a Conceptualization of the Notion of Solidarity in the Legal Framework of the EU

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Keywords Concept of solidarity, principle of solidarity in EU law, theory of EU law, solidarity as a value concept
Authors András Pünkösty
AbstractAuthor's information

    This article carries out an in-depth analysis of the complex meaning of solidarity within the EU legal framework. Solidarity is a multi-layered concept that serving as the basis for different policy-making choices of highly variable material substance, contributing significantly to the judgments of the CJEU. The point of departure in the analysis are references made to the notion of solidarity in the Founding Treaties. An important layer of its meaning derives from solidarity considered as a ‘value’. Important references are made to solidarity as a ‘principle’ or ‘spirit’ and there are additional layers of its meaning in the Treaties. In secondary legislation and the institutions’ communications, solidarity serves mainly as a basis for socially orientated policymaking. Following the analysis of the meaning of solidarity, I consider the notion of ‘solidarity acquis’ elaborated by Malcolm Ross that suggests that solidarity is one of the most effective tools in maintaining the consistency of the EU legal framework. Finally, the paper focuses on the case-law of the CJEU to conceptualize core legal implications of solidarity in order to establish whether solidarity may be recognized as a general principle of EU law.


András Pünkösty
Senior lecturer, Pázmány Péter Catholic University, Budapest.
Article

Access_open Waste Away

Examining Systemic Drivers of Global Waste Trafficking Based on a Comparative Analysis of Two Dutch Cases

Journal Erasmus Law Review, Issue 4 2019
Keywords environmental crime, waste industry, shipbreaking, waste trafficking, environmental enforcement
Authors Karin van Wingerde and Lieselot Bisschop
AbstractAuthor's information

    The increasing volume of waste generated globally is one of the most prominent environmental issues we face today. Companies responsible for the treatment or disposal of waste are therefore among the key actors in fostering a sustainable future. Yet the waste industry has often been characterised as a criminogenic one, causing environmental harm which disproportionately impacts the world’s most vulnerable regions and populations. In this article, we illustrate how companies operating in global supply chains exploit legal and enforcement asymmetries and market complexities to trade waste with countries where facilities for environmentally sound treatment and disposal of waste are lacking. We draw on two contemporary cases of corporate misconduct in the Global South by companies with operating headquarters in the Global North: Seatrade and Probo Koala. We compare these cases building on theories about corporate and environmental crime and its enforcement. This explorative comparative analysis aims to identify the key drivers and dynamics of illegal waste dumping, while also exploring innovative ways to make the waste sector more environmentally responsible and prevent the future externalisation of environmental harm.


Karin van Wingerde
Karin van Wingerde is Professor Corporate Crime and Governance, Department of Criminology, Erasmus School of Law, Erasmus University Rotterdam.

Lieselot Bisschop
Lieselot Bisschop is Professor Public and Private Interests, Department of Criminology and Erasmus Initiative on Dynamics of Inclusive Prosperity, Erasmus School of Law, Erasmus University Rotterdam.
Article

Access_open The Dutch International Responsible Business Conduct Agreements

Effective Initiatives?

Journal Erasmus Law Review, Issue 4 2019
Keywords IRBC Agreements, effectiveness, OECD due diligence, access to remedy
Authors Martijn Scheltema
AbstractAuthor's information

    This contribution analyses the effectiveness of the Dutch International Responsible Business Conduct (IRBC) agreements and suggests some avenues for improvement. Several challenges in connection with effectiveness have been identified in evaluations of the IRBC agreements, and these are used as a starting point for the analysis. The focus is on three themes: (i) uptake, leverage and collaboration; (ii) implementation of OECD due diligence including monitoring and (iii) access to remedy. This contribution shows that low uptake may not be a sign of ineffectiveness per se, although in terms of leverage a sufficient number of participants or collaboration between agreements seems important. In connection with due diligence, it is recommended to align the implementation of OECD due diligence. Furthermore, an effective monitoring mechanism by a secretariat, as is currently implemented in the Textile agreement only, is most likely to bring about material changes in business behaviour. Other types of supervision seem less effective. Access to remedy poses a challenge in all IRBC agreements. It is recommended that the expectations the agreements have on access to remedy be clarified, also in connection with the role of signatories to the agreements in cases where they are directly linked to human rights abuse. Furthermore, it is recommended that a dispute resolution mechanism be introduced that enables complaints for external stakeholders against business signatories, comparable to that of the Textile agreement. However, rather than implementing separate mechanisms in all agreements, an overarching mechanism for all agreements should be introduced.


Martijn Scheltema
Martijn Scheltema is Professor of Private law at Erasmus School of Law, Erasmus University Rotterdam.
Article

Access_open Consumer Social Responsibility in Dutch Law

A Case Study on the Role of Consumers in Energy Transition

Journal Erasmus Law Review, Issue 4 2019
Keywords consumer, energy transition, social responsibility, Dutch law, EU law
Authors Katalin Cseres
AbstractAuthor's information

    As our economies continue to focus on growth, competition and maximisation of consumer choice, the global increase in consumption takes vast environmental and social costs and cause irreversible harm to our climate and environment. The urgency of reducing human footprint and to diminish one of the root causes of a declining climate and environment is irrefutable. In the shift that globally has to take place, a decentralised energy system relying on more distributed generation, energy storage and a more active involvement of consumers form a crucial component of renewable energy solutions. The move from a highly centralised to a more decentralised power system involves an increasing amount of small-scale (intermittent) generation from renewable energy which is located closer to the point of final consumption. In order to steer consumption towards sustainability national governments and supranational organisations have adopted policies and corresponding legislation that address individual consumers as rational and active choice-makers who make socially responsible choices when they receive the ‘right’ amount of information. By relying on insights from modern consumption theories with contributions from sociology, this article questions the effectiveness and legitimacy of these ‘consumer-centred’ policies and laws. First, the article argues that the single focus on individual consumer behaviour as a rational and utility maximising market actor fails to take into account the complexity of consumption, which is fundamentally influenced by social norms and its broader institutional setting. Although consumers are willing to consume more sustainably, they are often ‘locked in by circumstances’ and unable to engage in more sustainable consumption practices even if they want to. Second, by relying on evidence from sociological studies the article argues that individual consumers are not the most salient actors in support of sustainable consumption. Even though the urgency of the energy transition and the critical role consumers play in (un)sustainable energy consumption is acknowledged in both the EU and its Member States, their laws and policies remain grounded on goals of economic growth with competitive economies, the sovereignty of consumer choice and wealth maximisation, instead of aiming at slower economic growth or even degrowth, reducing overall resource use and consumption levels and introducing radically different ways of consumption.
    Third, the role of law is underlined as a social institution both as a constraint on the autonomous acts of consumption, dictating the normative frameworks within which the role of consumer is defined, and as a facilitator which consumers might also employ, in order to determine for themselves particular normative parameters within which consumption can occur.
    The Netherlands, which serves as a case study in this article, has reached important milestones in its energy transition policy since 2013. Still, it remains strongly focused on economic rationality and market competitiveness. Even though various models of consumer participation exist and local consumer energy initiatives are flourishing and are recognised as key actors in the energy transition, they remain embedded in institutional, structural and behavioural settings where consumers still face challenging sociocultural barriers to sustainable practices.
    In light of these legal, political and social complexity of energy transition, the article offers a critical analysis of the current Dutch law in its broader legal context of EU law in order to answer the question what the role of (energy) law is in steering consumers towards sustainable energy consumption.


Katalin Cseres
Katalin Cseres is Associate Professor of Law, Amsterdam Centre for European Law & Governance (ACELG), University of Amsterdam.
Human Rights Literature Reviews

Hungary

Journal East European Yearbook on Human Rights, Issue 1 2019
Authors Alexandra Sipos PhD
Author's information

Alexandra Sipos PhD
PhD student, Doctoral School of Sociology, Faculty of Social Sciences at Eötvös Loránd University, Budapest, Hungary.
Human Rights Practice Reviews

Ukraine

Journal East European Yearbook on Human Rights, Issue 1 2019
Authors Dr. Tetyana Antsupova
Author's information

Dr. Tetyana Antsupova
Dr. Habil, Judge of the Supreme Court Grand Chamber (Ukraine).
Human Rights Practice Reviews

The Russian Federation

Journal East European Yearbook on Human Rights, Issue 1 2019
Authors Igor Bartsits, Oleg Zaytsev and Kira Sazonova PhD
Author's information

Igor Bartsits
Igor Bartsits is the Director of IPACS RANEPA, Doctor of Law, Professor, Honoured Lawyer of the Russian Federation.

Oleg Zaytsev
Oleg Zaytsev is the Dean of the School of Law, Doctor of Law, IPACS RANEPA.

Kira Sazonova PhD
Kira Sazonova is the Assistant Professor, Ph.D. in International Law, Ph.D. in Politics, IPACS RANEPA.
Article

On Lessons Learned and Yet to Be Learned

Reflections on the Lithuanian Cases in the Strasbourg Court’s Grand Chamber

Journal East European Yearbook on Human Rights, Issue 1 2019
Keywords human rights, European Convention on Human Rights, European Court of Human Rights, Lithuania
Authors Egidijus Kūris
Abstract

    During the two-and-a-half decades while Lithuania has been a party to the European Convention on Human Rights, the Grand Chamber of the European Court of Human Rights has decided five Lithuanian cases. They all (perhaps but one) raised controversial issues not only of law but also of those pertaining to matters non-legal: psychology, politics, history and so on. There had been follow-ups to most of them, allowing for consideration as to the merits and disadvantages of the respective judgments. These cases are narrated on in their wider-than-legal context and reflected upon from the perspective of their bearing on these issues and of the lessons they taught both to Lithuania, as a respondent State, and to the Court itself.


Egidijus Kūris
Article

Reasoning in Domestic Judgments in New Democracies

A View from Strasbourg

Journal East European Yearbook on Human Rights, Issue 1 2019
Keywords European Court of Human Rights, Article 6, new democracies, reasoning in domestic judgments
Authors Dragoljub Popović
AbstractAuthor's information

    One of the shortcomings in the functioning of the justice systems in new democracies consists of insufficient reasoning in judgments. The European Court of Human Rights (Court) had to deal with the issue in cases in which applicants invoked Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Convention). The Court’s case law developments concerning the issue are analysed in this article. The general rule emerged in leading cases and was subsequently followed. It says there is an obligation incumbent on national courts to provide reasons for their judgments. Therefore, insufficient reasoning in a judgment given at the domestic level of jurisdiction provides grounds for finding a violation of Article 6 of the Convention. The problem of lack of adequate reasoning in domestic judgments has been given attention among scholars, judges and practising lawyers in new democracies. The Court’s jurisprudence provides guidance to solutions aimed at improvement of the administration of justice in those countries, which are Member States of the Convention.


Dragoljub Popović
Former judge of the ECtHR, attorney-at-law at the Belgrade Bar, professor of law at Union University (Belgrade, Serbia) and a visiting professor at Creighton University (Omaha, NE, USA).
Human Rights Practice Reviews

Albania

Journal East European Yearbook on Human Rights, Issue 1 2019
Authors Anisia Mandro LLM
Author's information

Anisia Mandro LLM
Anisia Mandro (European Union Law - LLM), Legal Researcher and Legal Adviser in the area of competition law, data protection, and human rights; Consultant in approximation of national legislation with EU acquis Communautaire.

    The Polish Supreme Court has held that a criterion of discrimination may also be a relationship of a social or familial nature that exists in the workplace and whose existence or absence on the part of the employee results in different treatment by the employer.


Marcin Wujczyk
Marcin Wujczyk is an attorney at law at Wardyński & Partners, Poland (https://www.wardynski.com.pl).
Article

Access_open Commercial Litigation in Europe in Transformation: The Case of the Netherlands Commercial Court

Journal Erasmus Law Review, Issue 1 2019
Keywords international business courts, Netherlands Commercial Court, choice of court, recognition and enforcements of judgements
Authors Eddy Bauw
AbstractAuthor's information

    The judicial landscape in Europe for commercial litigation is changing rapidly. Many EU countries are establishing international business courts or have done so recently. Unmistakably, the approaching Brexit has had an effect on this development. In the last decades England and Wales – more precise, the Commercial Court in London - has built up a leading position as the most popular jurisdiction for resolving commercial disputes. The central question for the coming years will be what effect the new commercial courts in practice will have on the current dominance of English law and the leading position of the London court. In this article I address this question by focusing on the development of a new commercial court in the Netherlands: the Netherlands Commercial Court (NCC).


Eddy Bauw
Professor of Private Law and Administration of Justice at Molengraaff Institute for Private Law and Montaigne Centre for Rule of Law and Administration of Justice, Utrecht University. Substitute judge at the Court of Appeal of Arnhem-Leeuwarden and the Court of Appeal of The Hague.
Article

Access_open The Brussels International Business Court: Initial Overview and Analysis

Journal Erasmus Law Review, Issue 1 2019
Keywords international jurisdiction, English, court language, Belgium, business court
Authors Erik Peetermans and Philippe Lambrecht
AbstractAuthor's information

    In establishing the Brussels International Business Court (BIBC), Belgium is following an international trend to attract international business disputes to English-speaking state courts. The BIBC will be an autonomous business court with the competence to settle, in English, disputes between companies throughout Belgium. This article focuses on the BIBC’s constitutionality, composition, competence, proceedings and funding, providing a brief analysis and critical assessment of each of these points. At the time of writing, the Belgian Federal Parliament has not yet definitively passed the Bill establishing the BIBC, meaning that amendments are still possible.


Erik Peetermans
Erik Peetermans is a legal adviser at the Federation of Enterprises in Belgium (FEB).

Philippe Lambrecht
Philippe Lambrecht is the Director-Secretary General at the Federation of Enterprises in Belgium (FEB).
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