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Developments in European Law

The PSPP Judgment of the German Federal Constitutional Court

The Judge’s Theatre According to Karlsruhe

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords German Constitutional Court, basic law, ultra vires, European Central Bank, primacy of Union law
Authors Maria Kordeva
AbstractAuthor's information

    The PSPP decision of 5 May 2020 rendered by the German Federal Constitutional Court (FCC) does not constitute a break with the earlier jurisprudence of the FCC elaborated since the Lisbon Treaty judgment of 30 June 2009. Even though qualifying the acts of the Union as ultra vires has been likened to a warlike act, one should beware of hasty conclusions and look closely at the analysis of the Second Senate to form a moderate opinion of this decision decried by European and national commentators. Should the PSPP judgment of the Federal Constitutional Court be classified as “much ado about nothing”, despite the procedure started by the European Commission, or, on the contrary, will the CJEU in the next months, sanction Germany for its obvious affront to and breach of the principle of the primacy of Union law? The (final?) power grab between the European and national courts remains to be seen. We can criticize the German FCC that it put the fundamental principles of the Union in danger. Yet, it is worth reflecting on the possible encroachment of competences by European institutions, because, in this case, the red line between monetary policy and economic policy is more than thin.


Maria Kordeva
Maria Kordeva: PhD in Public Law (University of Strasburg/University of Constance), lecturer and research associate, Saarland University, Saarbrücken.
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.
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.
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.
Public Health Emergency: National, European and International Law Responses

Support for Families

A Way to Tackle COVID-19 and Its Implications in Hungary

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords family, children, vulnerable groups, social protection, housing benefits, labor market
Authors Éva Gellérné Lukács
AbstractAuthor's information

    COVID-19 poses a huge challenge for families and children; their exposure to economic, social and mental hardship is considerable and is confirmed by several studies. The pandemic pushes governments to allocate resources to the economy, but it is equally important to invest in the future by supporting families and children. The article outlines general tendencies in the EU and reflects on Hungarian measures in this field. During the first, second and third waves of COVID-19, a wide range of measures were introduced in Hungary. By extending the eligibility periods of family benefits for families with small children (both social insurance contribution-based and universal benefits) approximately 40,000 families (households) were covered. During the first and second COVID-19 waves, not only did the government extend benefit eligibility, but it also announced several new or renewed measures related to cash benefits and housing for families with at least one economically active parent. During the third wave eligibility periods of family benefits have again been extended. On the other hand, the unemployment benefit system remained intact, labor market pitfalls were addressed by providing wage subsidies.


Éva Gellérné Lukács
Éva Gellérné Lukács: senior lecturer, ELTE Law School, Budapest; external expert, Kopp Mária Institute for Demography and Families, Budapest.
Article

Opposition in Times of COVID-19 – To Support or Not to Support?

Journal Politics of the Low Countries, Issue 2 2021
Keywords minority government, rally-around-the-flag, COVID-19, mainstream parties, challenger parties, opposition, party goals
Authors Britt Vande Walle, Wouter Wolfs and Steven Van Hecke
AbstractAuthor's information

    COVID-19 has hit many countries all over the world, and its impact on (party) politics has been undeniable. This crisis situation functions as an opportunity structure incentivising opposition forces to support the government. Not much is known about what drives opposition parties to (not) support the government in crisis situations. This article integrates the literature on rally-around-the-flag, political opportunity structures, party types and party goals. More specifically, we focus on the behaviour of opposition parties towards the government’s crisis response to the COVID-19 pandemic. We analyse whether and how the party type influences the position of the party vis-à-vis the governmental coalition, focusing on the case of Belgium. We categorise the seven opposition parties in Belgium as challenger or mainstream parties and explain their behaviour on the basis of policy-, office- or vote-seeking motives. Our analysis is based on party voting behaviour, elite interviews and an analysis of the main plenary debates.


Britt Vande Walle
Britt Vande Walle is PhD Researcher at the KU Leuven Public Governance Instituted, funded by a FWO fellowship ‘Fundamental Research’. Her research focuses on comparative politics, political parties, and political party think tanks. ORCID: https://orcid.org/0000-0002-9594-9897.

Wouter Wolfs
Wouter Wolfs is Senior Researcher at the KU Leuven Public Governance Institute. His research interests include the European Union, political finance, legislative studies and political parties. ORCID: https://orcid.org/0000-0002-6214-5972.

Steven Van Hecke
Steven Van Hecke is Associate Professor in Comparative and EU Politics at the KU Leuven Public Governance Institute. His research focuses on Europarties, EU institutions and European integration history. ORCID: https://orcid.org/0000-0003-0215-5463.
Article

Access_open Big Data Ethics: A Life Cycle Perspective

Journal Erasmus Law Review, Issue 1 2021
Keywords big data, big data analysis, data life cycle, ethics, AI
Authors Simon Vydra, Andrei Poama, Sarah Giest e.a.
AbstractAuthor's information

    The adoption of big data analysis in the legal domain is a recent but growing trend that highlights ethical concerns not just with big data analysis, as such, but also with its deployment in the legal domain. This article systematically analyses five big data use cases from the legal domain utilising a pluralistic and pragmatic mode of ethical reasoning. In each case we analyse what happens with data from its creation to its eventual archival or deletion, for which we utilise the concept of ‘data life cycle’. Despite the exploratory nature of this article and some limitations of our approach, the systematic summary we deliver depicts the five cases in detail, reinforces the idea that ethically significant issues exist across the entire big data life cycle, and facilitates understanding of how various ethical considerations interact with one another throughout the big data life cycle. Furthermore, owing to its pragmatic and pluralist nature, the approach is potentially useful for practitioners aiming to interrogate big data use cases.


Simon Vydra
Simon Vydra is a Researcher at the Institute for Public Administration, Leiden University, the Netherlands.

Andrei Poama
Andrei Poama is Assistant Professor at the Institute for Public Administration, Leiden University, the Netherlands.

Sarah Giest
Sarah Giest is Assistant Professor at the Institute for Public Administration, Leiden University, the Netherlands.

Alex Ingrams
Alex Ingrams is Assistant Professor at the Institute for Public Administration, Leiden University, the Netherlands.

Bram Klievink
Bram Klievink is Professor of Digitization and Public Policy at the Institute for Public Administration, Leiden University, the Netherlands.

Albert Dzur
Albert Dzur is Distinguished Research Professor, Departments of Political Science and Philosophy, Bowling Green State University, USA. Contact author: awdzur@bgsu.edu.

Jan Tomasek
Jan Tomasek is a researcher at the Institute of Criminology and Social Prevention, Prague, Czech Republic. Contact author: jtomasek@iksp.justice.cz.
Article

Exploring the growth and development of restorative justice in Bangladesh

Journal The International Journal of Restorative Justice, Issue 2 2021
Keywords restorative justice, Bangladesh, salish, village courts, INGOs
Authors Muhammad Asadullah and Brenda Morrison
AbstractAuthor's information

    Although restorative justice is a new concept in Bangladesh (BD), resolving wrongdoing outside the criminal justice system is not a new practice. Community-based mediation, known as salish, has been practised for centuries – withstanding colonisation, adaptation and distortion. Other practices, such as village courts and customary justice, are also prevalent in Bangladesh. Of these, village courts are currently the most widely practised in Bangladesh. Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ Bangladesh) formally introduced restorative justice in 2013 with the support of international non-governmental organisations (INGOs), NGOs, academics and government agencies. Most of the literature on community-based justice practice focuses on village courts; academic, peer-reviewed research on restorative justice in Bangladesh is scarce. This qualitative study explores the growth and development of restorative justice in Bangladesh. Using in-depth qualitative interviews and survey, the study retraces the genesis of restorative justice in Bangladesh. In recent times, GIZ Bangladesh has been key to the development of restorative justice, which was further expanded by UNDP’s Activating Village Courts project, as well as a graduate course on restorative justice at the University of Dhaka. This study also finds contentious themes raised by the key informants, specifically the role of INGOs, government and community.


Muhammad Asadullah
Muhammad Asadullah is Assistant Professor at the Department of Justice Studies, University of Regina, Canada.

Brenda Morrison
Brenda Morrison is Associate Professor at the School of Criminology, Simon Fraser University, Canada. Contact author: Muhammad.Asadullah@uregina.ca.

Tara Kumabe
Tara Kumabe is an elementary teacher with the York Region District School Board and an instructor at Trent University, Canada.

Christina Parker
Christina Parker is Associate Professor in Social Development Studies at Renison University College, University of Waterloo, Canada. Contact author: tarakumabe@trentu.ca.

Lisa Merkel-Holguin
Lisa Merkel-Holguin is the Director of the Kempe Center for the Prevention and Treatment of Child Abuse and Neglect, Department of Pediatrics, Aurora, Colorado, and Associate Professor of Pediatrics at the University of Colorado School of Medicine, USA. Contact author: lisa.merkel-holguin@cuanschutz.edu.
Article

Access_open Using restorative justice to rethink the temporality of transition in Chile

Journal The International Journal of Restorative Justice, Issue 2 2021
Keywords temporality, transitional justice, restorative justice, Chile, ongoingness, multilayeredness & multidirectionality
Authors Marit de Haan and Tine Destrooper
AbstractAuthor's information

    Assumptions of linear progress and a clean break with the past have long characterised transitional justice interventions. This notion of temporality has increasingly been problematised in transitional justice scholarship and practice. Scholars have argued that a more complex understanding of temporalities is needed that better accommodates the temporal messiness and complexity of transitions, including their ongoingness, multilayeredness and multidirectionality. Existing critiques, however, have not yet resulted in a new conceptual framework for thinking about transitional temporalities. This article builds on insights from the field of restorative justice to develop such a framework. This framework foregrounds longer timelines, multilayered temporalities and temporal ecologies to better reflect reality on the ground and victims’ lived experiences. We argue that restorative justice is a useful starting point to develop such a temporal framework because of its actor-oriented, flexible and interactive nature and proximity to the field of transitional justice. Throughout this article we use the case of Chile to illustrate some of the complex temporal dynamics of transition and to illustrate what a more context-sensitive temporal lens could mean for such cases of unfinished transition.


Marit de Haan
Marit de Haan is a PhD researcher at the Human Rights Centre of Ghent University, Belgium.

Tine Destrooper
Tine Destrooper is Associate Professor of Transitional Justice at the Human Rights Centre of Ghent University, Belgium. Contact author: marit.dehaan@ugent.be.

Stephan Parmentier
Stephan Parmentier is a Professor of Sociology of Law, Crime and Human Rights at the Faculty of Law, KU Leuven, Belgium. Contact author: stephan.parmentier@kuleuven.be.

Vidar Halvorsen
Vidar Halvorsen is a professor at the University of Oslo, Norway. Contact author: vidar.halvorsen@jus.uio.no.
Article

An exploration of trauma-informed practices in restorative justice: a phenomenological study

Journal The International Journal of Restorative Justice, Issue 2 2021
Keywords restorative justice, trauma, trauma-informed care, interpretative phenomenological analysis
Authors Claudia Christen-Schneider and Aaron Pycroft
AbstractAuthor's information

    While several studies identify trauma as a main risk factor for developing offending behaviour, the criminal justice system still largely ignores the problem, and the same seems to be true of restorative justice. This article offers a critical exploration of trauma-informed work with offenders using interpretative phenomenological analysis. The interviewees perceive a growing interest in the topic of trauma and trauma-informed care (TIC). However, they also identify several areas that seem to hinder a trauma-informed approach, not only with offenders but also with victims. One concern is the tendency to institutionalise restorative justice with an emphasis on efficiency, effectiveness and outcome orientation. The interviewees also perceive a revengeful and retributive attitude in their societies that does not condone restorative measures that seemingly favour offenders. This tendency appears even stronger in societies that have suffered from collaborative trauma and not recovered from it. Interviewees therefore advocate for raising awareness of trauma, the consequences of unhealed trauma and the need to work trauma-informed with all stakeholders, including offenders and the extended, affected community. They also appeal for increased training to be provided for practitioners in TIC and self-care as these areas seem essential to provide safe and beneficial processes for all stakeholders.


Claudia Christen-Schneider
Claudia Alexandra Christen-Schneider is president of the Swiss RJ Forum.

Aaron Pycroft
Aaron Pycroft PhD is Reader in Criminal Justice and Social Complexity at the University of Portsmouth, UK. Contact author: Claudia Alexandra Christen-Schneider at swissrjforum@gmail.com.

Claudia Mazzucato
Claudia Mazzucato is Associate Professor of Criminal Law at Università Cattolica del Sacro Cuore, Milan, Italy. Contact author: claudia.mazzucato@unicatt.it.
Article

Performing restorative justice: facilitator experience of delivery of the Sycamore Tree ­Programme in a forensic mental health unit

Journal The International Journal of Restorative Justice, Issue Online First 2021
Keywords restorative justice, sycamore tree programme, ethnography, forensic mental health, self-presentation
Authors Joel Harvey and Gerard Drennan
AbstractAuthor's information

    Restorative justice has increasingly been used across the criminal justice system. However, there is limited evidence of its use with service users within forensic mental health settings. This study conducted a focused ethnography in a medium secure unit in the UK to explore the implementation of the Sycamore Tree Programme, a specific restorative justice programme that the Prison Fellowship (PF) facilitates in prisons. This article examines the experience of PF volunteers and National Health Service (NHS) staff who came together to run the programme with the first cohort of eight service users (‘learners’). Focus groups were carried out before and after training with eight facilitators, and six interviews with facilitators were completed after the programme ended. Furthermore, detailed observations were carried over the six-week programme. It was found that the encounter was highly experiential for staff and that the group process generated significant emotion for both the learners and facilitators. A pre-requisite for containing the group’s and the facilitators’ emotions was staff taking a relational and collaborative approach to their work. The findings of this study are discussed within the theoretical framework of ‘the presentation of self in everyday life’ (Goffman, 1959) , looking through the lens of the performative self in social relations.


Joel Harvey
Joel Harvey is Lecturer in Forensic Psychology at the Department of Law and Criminology, Royal Holloway University of London and Registered Clinical and Forensic Psychologist.

Gerard Drennan
Gerard Drennan is Lead Psychologist – Forensic and Offender Health Pathway, South London and Maudsley NHS Foundation Trust.
PhD Review

Pragmatic Citizens – A Bottom-Up Perspective on Participatory Politics

PhD by Hannah Werner (KU Leuven and Universiteit van Amsterdam), supervisors: Sofie Marien, Wouter van der Brug & Marc Hooghe

Journal Politics of the Low Countries, Issue 2 2021
Authors Anna Kern
Author's information

Anna Kern
Anna Kern is assistant professor at the Department of Political Science at Ghent University, Belgium.
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