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Conference Reports

Conference on the Bindingness of EU Soft Law

Report on the ‘Conference on the Bindingness of EU Soft Law’ Organized by Pázmány Péter Catholic University, 9 April 2021, Budapest

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords conference report, soft law, Pázmány Péter Catholic University, bindingness, Grimaldi
Authors Vivien Köböl-Benda
AbstractAuthor's information

    The online ‘Conference on the bindingness of EU soft law’ was organized by the Ereky Public Law Research Center at Pázmány Péter Catholic University (Hungary), the Universidad de Castilla-La Mancha (Spain), and the Portsmouth Law School (United Kingdom) on 9 April 2021. The presentations described EU soft law instruments’ legal effect on EU institutions and the Member States. The soft law instruments of different policy fields were also examined, including the analysis of the language of EU soft law.


Vivien Köböl-Benda
Vivien Köböl-Benda: PhD student, Pázmány Péter Catholic University, Budapest.
Developments in International Law

The Decision on the Situation in Palestine Issued by Pre-Trial Chamber I of the International Criminal Court

Reflecting on the Legal Merits

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords International Criminal Court, ICC, Palestine, Oslo Accords, jurisdiction
Authors Rachel Sweers
AbstractAuthor's information

    On 5 February 2021, the Pre-Trial Chamber I of the International Criminal Court (ICC) issued its decision on the Situation in Palestine affirming that its territorial jurisdiction extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem. The Situation was brought before the Chamber by request of the ICC’s Prosecutor. Legal issues were addressed in the Majority Decision, as well as in the Partly Dissenting Opinion and Partly Separate Opinion. The procedural history involving the Prosecution Request that seized the Chamber on the Situation in Palestine will be discussed, including a brief analysis of the legal basis for this request. Furthermore, the legal merits of the Situation in Palestine will be compartmentalized into three main pillars in order to analyze step by step how the Chamber reached its conclusion.


Rachel Sweers
Rachel Sweers: legal intern, International Criminal Court, the Hague.
Public Health Emergency: National, European and International Law Responses

Constitutional Rights in the Time of Pandemic

The Experience of Hungary

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords state of emergency, emergency powers, restriction of fundamental rights, Fundamental Law, Constitutional Court of Hungary
Authors Lóránt Csink
AbstractAuthor's information

    Special circumstances may require special measures. This article is to highlight the importance of constitutional rights, also in the time of a pandemic. Its hypothesis is that constitutional rights are not luxuries one can only afford in peacetime, they are much rather at the core of civilization and democracy. History shows that a world without rights may easily turn into a nightmare. The article first focuses on the Hungarian constitutional basis of the state of emergency (Section 2). Next, it analyses the text of the constitution with respect to the limitation of fundamental rights and elaborates on the various interpretations through the lens of the case-law of the Constitutional Court (Sections 3-4). Finally, the article concludes that despite the rigid wording of the Hungarian Fundamental Law, constitutional rights can be restricted only if the restriction meets the necessity-proportionality test (Section 5)


Lóránt Csink
Lóránt Csink: associate professor of law, Pázmány Péter Catholic University, Budapest; counselor, Constitutional Court of Hungary, Budapest.
Public Health Emergency: National, European and International Law Responses

Defining the Common European Way of Life

Exploring the Concept of Europeanness

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords European identity, Common European Way of Life, coronavirus, European citizenship, Hungary, enlargement policy, Europeanness
Authors Lilla Nóra Kiss and Orsolya Johanna Sziebig
AbstractAuthor's information

    The article focuses on the interpretation of the European Way of Life and the concept of Europeanness. Ursula von der Leyen determined the Promotion of the European Way of Life as a priority of the 2019-2024 Commission. The purpose behind this was to strengthen European democracy and place the citizens into the center of decision-making. The article examines the role of European identity, European citizenship and those historical-traditional conditions that make our way of life ‘common’. The Common European Way of Life may be defined as a value system based on the established legal basis of EU citizenship that can be grasped in the pursuit of common principles and the exercise of rights guaranteed to all EU citizens, limited only under exceptional circumstances and ensuring socio-economic convergence. The article covers general conceptual issues but also focuses on the extraordinary impact of the COVID-19. Lastly, the relevant aspects of enlargement policy are also explored.


Lilla Nóra Kiss
Lilla Nóra Kiss: Visiting Scholar at Antonin Scalia Law School, George Mason University, Virginia, US.

Orsolya Johanna Sziebig
Orsolya Johanna Sziebig: senior lecturer, University of Szeged.
Hungarian State Practice

An Institution for a Sustainable Future

The Hungarian Ombudsman for Future Generations

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords intergenerational equity, rights of future generations, ombudsman for future generations, Hungary, right to environment
Authors Kinga Debisso and Marcel Szabó
AbstractAuthor's information

    The purpose of this article is to give an insight into the process leading up to the establishment of the Hungarian Ombudsman for Future Generations and its tasks: an almost 15-year-old, unique legal institution aiming to protect the interests of future generations. The Ombudsman for Future Generations is an example for the institutionalization of the principle of intergenerational justice. The article aims to introduce the characteristics and strengths of the current institutional design and the structural features that allow for the successful operation of the Ombudsman for Future Generations in Hungary. Following an introduction to the political and historical context in which the institution was established, the article describes in detail the Ombudsman’s work, responsibilities, most important functions, elaborating on some examples of its best practices and achievements. Finally, the article touches upon how the example and experiences of the Hungarian institution may be valuable for other countries in Europe and beyond.


Kinga Debisso
Kinga Debisso: political advisor, Ministry of Justice, Budapest.

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

The Evolution of Content-Related Offences and Their Investigation During the First 20 Years of the Cybercrime Convention

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords cybercrime, content-related offence, cyberbullying, privacy, wiretapping
Authors Kinga Sorbán
AbstractAuthor's information

    The Convention on Cybercrime otherwise known as the Budapest Convention was a complex, pioneering instrument addressing cross-border computer crimes in the wake of the 21st century. As the first international treaty aiming to tackle new threats emerging from the cyberspace, the Convention signed in 2001 certainly influenced national regulators and law enforcement over many years. Two decades have passed since 2001 and the Internet era has undergone previously unpredictable changes, as web 2.0 services started to thrive. Even though the Convention can be considered a landmark in international legislation, after 20 years one must eventually assess how well it stood the test of time and whether it still has relevance. This article has no smaller goal but to evaluate the evolution of content-related cybercrimes and try to the question whether the Convention is still fit to tackle contemporary issues or rather, is outdated and ready to retire.


Kinga Sorbán
Kinga Sorbán: junior research fellow, National University of Public Service, Budapest.
Developments in European Law

Whose Interests to Protect?

Judgments in the Annulment Cases Concerning the Amendment of the Posting Directive

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords posting of workers, freedom to provide services, posting directive, remuneration of posted workers, private international law
Authors Gábor Kártyás
AbstractAuthor's information

    The directive 96/71/EC on the posting of workers had been in force for over 20 years when its first amendment (Directive 2018/957) came into force on 30 July 2020. The Hungarian and Polish Governments initiated annulment proceedings against the new measure, primarily arguing that as the amendment extended the host state’s labor standards ó to posted workers, the directive is no longer compatible with the freedom to provide services (Cases C-620/18 and C-626/18). Although both claims were rejected, the actions contain a number of noteworthy legal arguments (from the perspective of home States), which highlight some of the long-known contradictions of EU legislation on postings. The article summarizes the CJEU’s key observations made in the judgments, which are important propositions for further discussion.


Gábor Kártyás
Gábor Kártyás: associate professor of law, Pázmány Péter Catholic University, Budapest.
Review of Hungarian Scholarly Literature

Tamás Szabados, Economic Sanctions in EU Private International Law (Book Review)

Hart Publishing, Oxford, 2020, 280 p, ISBN 978-1-509-93351-8

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Authors Susanne Gössl
Author's information

Susanne Gössl
Susanne Gössl: professor of law, Christian Albrechts University, Kiel.
Public Health Emergency: National, European and International Law Responses

On the Constitutionality of the Punishment of Scaremongering in the Hungarian Legal System

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords scaremongering, clear and present danger, COVID-19 pandemic, freedom of expression, Constitutional Court of Hungary
Authors András Koltay
AbstractAuthor's information

    Scaremongering criminalized as a limitation to freedom of speech in Hungarian law. In lack of relevant case-law, free speech commentators rarely discussed the provision until the Government took action to step up the fight against the COVID-19 pandemic, and the ensuing amendment of the Criminal Code in Spring 2020 brought the subject back to the forefront of public debate. The article analyses the constitutional issues related to the criminalization of scaremongering, taking the two available Constitutional Court decisions rendered in this subject as guideline. Though the newly introduced legislation attracted widespread criticism in Hungary and elsewhere in Europe, a thorough examination of the new statutory elements makes it clear that public debate and critical opinions may not be stifled by prosecuting individuals for scaremongering. Although the applicable standard cannot yet be determined with full accuracy, the Constitutional Court’s decisions and relevant academic analysis resolve the main issues in order to protect freedom of expression, while the clarification of further details remains a matter for the case-law.


András Koltay
András Koltay: rector and professor of law, University of Public Service, Budapest; professor of law, Pázmány Péter Catholic University, Budapest.
Developments in European Law

Applicability of the GDPR on Personal Household Robots

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords artificial intelligence, robots, personal data, GDPR, scenarios
Authors Gizem Gültekin Várkonyi
AbstractAuthor's information

    Recent developments in artificial intelligence (AI) and robotics point to a close future collaboration between humans and machines. Even though the use of personal robots is not yet a phenomenon, findings in technical and legal literature highlight several possible risks inherent in the processing of personal data by such robots. This article contributes to the current discussions on the applicability of the GDPR to AI technologies from three aspects: (i) first, it encourages the use of a scenario method to predict possible future legal problems related to new technologies; (ii) second, it analyzes considerations with the support of the relevant case-law and present comparative expert opinions for overcoming the weak points of the GDPR relevant to AI; (iii) and finally, proposals made in the recommendations part aim to contribute to a better application of the GDPR to AI technologies in personal use.


Gizem Gültekin Várkonyi
Gizem Gültekin Várkonyi: junior research fellow, University of Szeged.
Developments in European Law

The Possibility of Using Article 72 TFEU as a Conflict-of-Law Rule

Hungary Seeking Derogation from EU Asylum Law

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords Article 72 TFEU, internal security, conflict of law, Common European Asylum System, relocation decisions
Authors Ágnes Töttős
AbstractAuthor's information

    The purpose of this article is to examine how the CJEU circumscribed the room for maneuver of Member States for safeguarding their internal security and whether the use of and reference to Article 72 TFEU changed over the past years. The starting point of the analysis is the Hungarian asylum infringement case: the article looks back at earlier case-law and identifies how the reference to Article 72 TFEU shifted from considering it an implementation clause to the attempts at using it as a conflict-of-law rule. Although the article finds that the CJEU reduced the scope of possibly using Article 72 TFEU as a conflict-of-law rule and practically excludes its application by the setting high standards for this unique form of application, the article examines some extreme situations from 2020 where it could be validly referred to.


Ágnes Töttős
Ágnes Töttős: senior government counselor, Government Office of the Prime Minister, Budapest.
Case Notes

The Afterlife of the Relocation of Judicial Cases

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords right to a lawful judge, National Judicial Council, relocation of judicial cases, reasonable time, length of proceedings
Authors Ágnes Czine
AbstractAuthor's information

    The requirement of an independent and impartial tribunal established by law is set out in Article 6(1) ECHR and Article XXVIII(1) of the Fundamental Law of Hungary. The elements of the definition of the right to a fair trial are closely tied to the requirement of judicial independence, impartiality and a court established by law. These guarantees’ purpose is to ensure that the applicant receive a judgment that is not prejudged by other branches of power, such as the influence of the executive, or the arbitrariness of the judiciary. This important human and fundamental rights requirement is monitored by bodies dedicated to the protection of democratic institutions. According to the laws of Hungary, lawsuits may be transferred to another court by the National Office for the Judiciary in order to reduce the workload. This solution has received strong international attention and scrutiny. Although these are actually not in force, they still have repercussions, which must be dealt with by the Constitutional Court. This article seeks to provide insight into the constitutional afterlife of this system of reallocation.


Ágnes Czine
Ágnes Czine: justice, Constitutional Court of Hungary, Budapest; associate professor of law, and acting rector, Károli Gáspár University of the Reformed Church, Budapest.
Hungarian State Practice

The Public Trust Doctrine, the Non-Derogation Principle and the Protection of Future Generations

The Hungarian Constitutional Court’s Review of the Forest Act

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords public trust, non-derogation, Article P, Constitutional Court of Hungary, future generations
Authors Katalin Sulyok
AbstractAuthor's information

    This article analyzes the doctrinal findings of the Hungarian Constitutional Court with respect to the constitutional protection afforded to future generations in the Fundamental Law. It focuses on Decision No. 14/2020. (VII. 6.) AB in which the Constitutional Court abolished an amendment to the Forest Act for infringing the right to a healthy environment and the environmental interests of future generations as enshrined in Article P of the Fundamental Law. On this occasion, the Constitutional Court for the first time explicitly recognized that Article P embodies the public trust doctrine; and stressed that it confers fiduciary duties on the State to act as a trustee over the natural heritage of the nation for the benefit of future generations, which limits the executive’s discretion to exploit and regulate such resources. This article puts the Hungarian constitutional public trust in a comparative perspective by exploring the origins, role and functioning of similar constitutional public trust provisions in other jurisdictions. This is followed by setting out the normative principles derived by the Hungarian Constitutional Court in its previous practice from Article P, such as the non-derogation principle, the principle of inter-generational equity, the imperative of long-term planning, economical use of resources and the precautionary principle. The article then sets out the legal bases featured in the ex post constitutional challenge brought against the amendment of the Forest Act by the Ombudsman, and the Constitutional Court’s reasoning. It concludes with offering some wider lessons for the judicial enforcement of long-term environmental goals vis-á-vis short-term economic private interests.


Katalin Sulyok
Katalin Sulyok: senior lecturer, ELTE Law School, Budapest; chief legal advisor, Office of the Hungarian Ombudsman for Future Generations, Budapest.
Developments in European Law

The First Ever Ultra Vires Judgment of the German Federal Constitutional Court: PSPP

Will the Barking Dog Bite More Than Once?

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords judicial dialogue, ultra vires, PSPP, German Federal Constitutional Court, infringement procedure
Authors Robert Böttner
AbstractAuthor's information

    In May 2020, the German Federal Constitutional Court (FCC) delivered its judgment in the PSPP case. At first it seemed that it would be a remake of the Gauweiler/OMT case between the German Court and the CJEU. Shockingly, however, the German FCC decided that not only had the ECB acted ultra vires by failing to duly justify its PSPP decision, but it also found the CJEU to have delivered an incomprehensible and objectively arbitrary judgment by which the German Court was not bound. This case note not only traces the history of the PSPP proceedings, but it also tries to review the heavy criticism that the FCC’s verdict has garnered. In the context of European integration and due to the German FCC’s authority among supreme courts in Europe, it is a dangerous precedent, that the European Commission tries to curb through infringement proceedings. One can only hope that it will be settled for good and shall remain an unfortunate but singular incident.


Robert Böttner
Robert Böttner: assistant professor of law, University of Erfurt.
Case Notes

The Hungarian Constitutional Court’s Decision on the Protection of Forests

Decision No. 14/2020. (VII. 6.) AB of the Constitutional Court of Hungary

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords public trust, non-derogation, Constitutional Court of Hungary, Article P, future generations
Authors Attila Pánovics
AbstractAuthor's information

    In its decision delivered on 15 June 2020, the Hungarian Constitutional Court stated that several provisions of the 2017 amendment of the Act XXXVII of 2009 on Forest, Forest Protection and Forest Management are unconstitutional. The case was also an opportunity for the Constitutional Court to adopt another milestone decision on the interpretation and application of the environment-related provisions of the Fundamental Law and the “non-derogation principle”. The progressive decision of the Constitutional Court entrusts the Hungarian State with trustee duties. The present Case Note is an analysis of Decision No. 14/2020. (VII. 6.) AB of the Constitutional Court.


Attila Pánovics
Attila Pánovics: senior lecturer, University of Pécs.
Editorial

Editorial Comments: COVID-19 – EU Citizenship and the Right to Free Movement in a Public Health Crisis

Foreword to Vol. 9 (2021) of the Hungarian Yearbook of International Law and European Law

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Authors Laura Gyeney
Author's information

Laura Gyeney
Laura Gyeney: editor; associate professor of law, Pázmány Péter Catholic University, Budapest.
Review of Hungarian Scholarly Literature

Viktor Luszcz, European Court Procedure: A Practical Guide (Book Review)

Bloomsbury-Hart, Oxford, 2020, 730 p, ISBN 978-1-50990-091-6

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Authors Petra Lea Láncos
Author's information

Petra Lea Láncos
Petra Lea Láncos: associate professor of law, Pázmány Péter Catholic University, Budapest.
Article

Access_open Hardship and Force Majeure as Grounds for Adaptation and Renegotiation of Investment Contracts

What Is the Extent of the Powers of Arbitral Tribunals?

Journal Erasmus Law Review, Issue 2 2021
Keywords contract adaptation, hardship, force majeure, investment contracts, arbitration
Authors Agata Zwolankiewicz
AbstractAuthor's information

    The change of circumstances impacting the performance of the contracts has been a widely commented issue. However, there seems to be a gap in legal jurisprudence with regard to resorting to such a remedy in the investment contracts setting, especially from the procedural perspective. It has not been finally settled whether arbitral tribunals are empowered to adapt investment contracts should circumstances change and, if they were, what the grounds for such a remedy would be. In this article, the author presents the current debates regarding this issue, potential grounds for application of such a measure and several proposals which would facilitate resolution of this procedural uncertainty.


Agata Zwolankiewicz
Agata Zwolankiewicz is an advocate trainee, graduated from the University of Silesia in Katowice (M.A. in law), and the University of Ottawa (LL.M. with concentration in international trade and foreign investment).
Article

Access_open The Influence of Strategic Culture on Legal Justifications

Comparing British and German Parliamentary Debates Regarding the War against ISIS

Journal Erasmus Law Review, Issue 2 2021
Keywords strategic culture, international law, ISIS, parliamentary debates, interdisciplinarity
Authors Martin Hock
AbstractAuthor's information

    This article presents an interdisciplinary comparison of British and German legal arguments concerning the justification of the use of force against the Islamic State in Iraq and Syria (ISIS). It is situated in the broader framework of research on strategic culture and the use of international law as a tool for justifying state behaviour. Thus, a gap in political science research is analysed: addressing legal arguments as essentially political in their usage. The present work questions whether differing strategic cultures will lead to a different use of legal arguments. International legal theory and content analysis are combined to sort arguments into the categories of instrumentalism, formalism and natural law. To do so, a data set consisting of all speeches with regard to the fight against ISIS made in both parliaments until the end of 2018 is analysed. It is shown that Germany and the UK, despite their varying strategic cultures, rely on similar legal justifications to a surprisingly large extent.


Martin Hock
Martin Hock is Research Associate at the Technische Universität Dresden, Germany.
Article

Access_open The Role of the Vienna Rules in the Interpretation of the ECHR

A Normative Basis or a Source of Inspiration?

Journal Erasmus Law Review, Issue 2 2021
Keywords European Convention on Human Rights, European Court of Human Rights, techniques of interpretation, the Vienna Convention on the Law of Treaties
Authors Eszter Polgári
AbstractAuthor's information

    The interpretive techniques applied by the European Court of Human Rights are instrumental in filling the vaguely formulated rights-provisions with progressive content, and their use provoked widespread criticism. The article argues that despite the scarcity of explicit references to the Vienna Convention on the Law of Treaties, all the ECtHR’s methods and doctrines of interpretation have basis in the VCLT, and the ECtHR has not developed a competing framework. The Vienna rules are flexible enough to accommodate the interpretive rules developed in the ECHR jurisprudence, although effectiveness and evolutive interpretation is favoured – due to the unique nature of Convention – over the more traditional means of interpretation, such as textualism. Applying the VCLT as a normative framework offers unique ways of reconceptualising some of the much-contested means of interpretation in order to increase the legitimacy of the ECtHR.


Eszter Polgári
Eszter Polgári, PhD, is assistant professor at the Department of Legal Studies of the Central European University in Austria.
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