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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.
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.
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.
Article

Morality in the Populist Radical Right

A Computer-Assisted Morality Frame Analysis of a Prototype

Journal Politics of the Low Countries, Issue Online First 2021
Keywords Populist radical right, morality, frame analysis, word2vec, crimmigration
Authors Job P.H. Vossen
AbstractAuthor's information

    This article provides a computer-assisted morality framing analysis of Vlaams Belang’s 2019 manifesto. The VB is regarded in the literature as a prototypical example of the Populist Radical Right (PRR). We first concisely review what PRR politics is and what it consists of, tentatively distinguishing four elements that we hypothesise will materialise in corresponding subframes running throughout the manifesto. We point to a mismatch between the omnipresent role of morality in all PRR subframes and the little attention devoted to the concept in the PRR literature. We introduce a useful theory from social psychology into framing literature to create a novel methodological approach to frame analysis that builds a bridge between a qualitative content and a quantitative context approach. The results support our hypothesis that populism, nationalism, nativism and authoritarianism can be distinguished from one another. Additionally, we detect a fifth PRR subframe, crimmigration, by its unique role of morality.


Job P.H. Vossen
Job Vossen is a PhD candidate at the University of Antwerp. His research investigates (im)morality in political discoursing and its interacting with fear, solidarity and gender and sexuality. The corresponding author states that there is no conflict of interest.
Article

A maximalist approach of restorative justice to address environmental harms and crimes

Analysing the Brumadinho dam collapse in Brazil

Journal The International Journal of Restorative Justice, Issue 1 2021
Keywords environmental law, maximalist approach, restorative justice principles and concepts, decision-making process, sanctioning rules
Authors Carlos Frederico Da Silva
AbstractAuthor's information

    In this article, the author analyses court cases arising from the rupture of the mining tailings dam in the city of Brumadinho, Brazil, on 25 January 2019. In a civil lawsuit context, legal professionals recognised damage to people and the environment during hearings involving a judge, prosecutors, lawyers and corporate representatives. The centrality of the victims’ interests and the need for remedial measures prevailed in the agreements signed mainly to provide urgent relief and restore damage to the ecosystem. In the criminal lawsuit dealing with the same facts, there have not yet been acquittals, non-prosecution agreements or convictions. By employing a socio-legal approach to contrast different types of legal reasoning, this article explores the possibilities of restorative responses in civil proceedings and explains the lack of them in criminal justice. In highlighting some characteristics of punishment theories that hinder a possible restorative justice approach, the article offers a critique of a penal system mostly linked to argumentative competition rather than persuasive conflict resolution. The author argues that jurisprudence should address transdisciplinary concepts, such as responsive regulation, restorative efforts, proportionality and individualisation of punishment. The discussion can shed light on the decision-making process to allow environmental restorative justice responses to crimes.


Carlos Frederico Da Silva
Carlos Frederico Braga Da Silva is a PhD researcher associated to the Graduate School of Sociology at the Federal University of Minas Gerais, Brazil, and to the Canadian Chair of Legal Traditions and Penal Rationality, Faculty of Social Sciences, Department of Criminology, University of Ottawa, Canada. He also works as a state judge in Belo Horizonte, Minas Gerais, Brazil. Contact author: carlosfrebrasilva@gmail.com.
Article

Access_open Mechanisms for Correcting Judicial Errors in Germany

Journal Erasmus Law Review, Issue 4 2020
Keywords criminal proceedings, retrial in favour of the convicted, retrial to the disadvantage of the defendant, Germany, judicial errors
Authors Michael Lindemann and Fabienne Lienau
AbstractAuthor's information

    The article presents the status quo of the law of retrial in Germany and gives an overview of the law and practice of the latter in favour of the convicted and to the disadvantage of the defendant. Particularly, the formal and material prerequisites for a successful petition to retry the criminal case are subject to a detailed presentation and evaluation. Because no official statistics are kept regarding successful retrial processes in Germany, the actual number of judicial errors is primarily the subject of more or less well-founded estimates by legal practitioners and journalists. However, there are a few newer empirical studies devoted to different facets of the subject. These studies will be discussed in this article in order to outline the state of empirical research on the legal reality of the retrial procedure. Against this background, the article will ultimately highlight currently discussed reforms and subject these to a critical evaluation as well. The aim of the recent reform efforts is to add a ground for retrial to the disadvantage of the defendant for cases in which new facts or evidence indicate that the acquitted person was guilty. After detailed discussion, the proposal in question is rejected, inter alia for constitutional reasons.


Michael Lindemann
Michael Lindemann is Professor for Criminal Law, Criminal Procedure and Criminology at the Faculty of Law of Bielefeld University, Germany.

Fabienne Lienau
Fabienne Lienau is Research Assistant at the Chair held by Michael Lindemann.
Article

The Question of Jurisdiction

The Impact of Ultra Vires Decisions on the ECJ’s Normative Power and Potential Effects for the Field of Data Protection

Journal East European Yearbook on Human Rights, Issue 1 2020
Keywords ECJ, German Constitutional Court, principle of proportionality, primacy of EU law, data protection, principle of conferral, ultra vires judgments
Authors Carsten M. Wulff
AbstractAuthor's information

    The ultra vires judgment of the German Constitutional Court on the debt security purchasing of the ECB system sent shockwaves throughout Europe. Some scholars see the legal framework, specifically the principle of the supremacy of the European Union in danger. This article argues that the judgment is a challenge for Luxembourg; however, there have been warning signs from the Czech Republic and Denmark that constitutional courts will not shy away from criticizing, when the ECJ oversteps its jurisdiction. The author argues that the judgment may weaken the overall normative power of the court and will assess whether a similar judgment could occur in the field of data protection and national security exceptions. The only way back to normality will be for the court to ensure it does not overstep its jurisdiction and the European Institutions unconditionally backing the ECJ in the expected upcoming conflict with the constitutional courts of Member States.


Carsten M. Wulff
PhD Student, Tallinn University, Estonia.
Article

Access_open COVID-19-Related Sanitary Crisis and Derogations under Article 15 of the Convention

Considerations in Estonia

Journal East European Yearbook on Human Rights, Issue 1 2020
Keywords human rights, emergency situation, COVID-19 and sanitary crisis, Article 15 of the European Convention on Human Rights, European Court of Human Rights (the ECtHR), Estonia
Authors Maris Kuurberg
AbstractAuthor's information

    During the COVID-19 pandemic, Estonia was one of the states that decided to inform the Secretary General of the Council of Europe of the health-related emergency situation in Estonia and noted, with reference to Article 15 of the European Convention on Human Rights, that some emergency measures may involve a derogation from certain obligations under the Convention. The Government’s considerations proceeded from the unprecedented scale of the sanitary crisis and the scope of extraordinary measures taken to tackle it. Importance was attached to the fact that the Court has never before assessed health-related exceptions allowed in some of the articles of the Convention in a situation which affects the whole nation – not to mention the articles of the Convention which do not set out any exceptions at all. Article 15 of the Convention, on the other hand, is designed to be applicable in public emergency situations threatening the life of the nation.


Maris Kuurberg
Maris Kuurberg (mag.iur.) has been the Estonian Government Agent before the European Court of Human Rights since 2008 (the views expressed are solely those of the author). She works in the Ministry of Foreign Affairs. She is also a member of the Bureau of the Council of Europe’s Steering Committee for Human Rights, as well as a member of the same steering committee and a member of the Committee of Experts on the System of the European Convention on Human Rights. Since 1999, she has been a member of the Estonian Bar Association but her activity as an Attorney at Law is suspended since she joined the Ministry of Foreign Affairs.
Article

Access_open State Obligations to Counter Islamophobia: Comparing Fault Lines in the International Supervisory Practice of the HRC/ICCPR, the ECtHR and the AC/FCNM

Journal Erasmus Law Review, Issue 3 2020
Keywords Human rights, positive state obligations, islamophobia, international supervisory mechanisms
Authors Kristin Henrard
AbstractAuthor's information

    Islamophobia, like xenophobia, points to deep-seated, ingrained discrimination against a particular group, whose effective enjoyment of fundamental rights is impaired. This in turn triggers the human rights obligations of liberal democratic states, more particularly states’ positive obligations (informed by reasonability considerations) to ensure that fundamental rights are effectively enjoyed, and thus also respected in interpersonal relationships. This article identifies and compares the fault lines in the practice of three international human rights supervisory mechanisms in relation to Islamophobia, namely the Human Rights Committee (International Covenant on Civil and Political Rights), the European Court of Human Rights (European Convention on Human Rights) and the Advisory Committee of the Framework Convention for the Protection of National Minorities. The supervisory practice is analysed in two steps: The analysis of each international supervisory mechanism’s jurisprudence, in itself, is followed by the comparison of the fault lines. The latter comparison is structured around the two main strands of strategies that states could adopt in order to counter intolerance: On the one hand, the active promotion of tolerance, inter alia through education, awareness-raising campaigns and the stimulation of intercultural dialogue; on the other, countering acts informed by intolerance, in terms of the prohibition of discrimination (and/or the effective enjoyment of substantive fundamental rights). Having regard to the respective strengths and weaknesses of the supervisory practice of these three international supervisory mechanisms, the article concludes with some overarching recommendations.


Kristin Henrard
Kristin Henrard is Professor International Human Rights and Minorities, Erasmus School of Law, Rotterdam, the Netherlands.
Article

Regional Differentiation in Europe, between EU Proposals and National Reforms

Journal European Journal of Law Reform, Issue 3 2020
Keywords regional differentiation, regional disparities, autonomy, regionalism, subsidiarity, European Union, multilevel governance
Authors Gabriella Saputelli
AbstractAuthor's information

    Regions and local governments play a very important role in the application of European law and in the implementation of European policies. The economic crisis of 2008 has accentuated territorial and social differentiation and highlighted the negative effects of globalization. This circumstance has created resentment among peripheral and marginal communities in the electoral results, but also a strong request for involvement, participation and sometimes independence from territories. These developments raise new questions about the relationship between the EU and the Regions and, more widely, about the role of subnational entities in the EU integration process, as they are the institutions nearest to citizens.
    The aim of this article is to contribute to that debate by exploring the following research question: ‘is subnational differentiation positive or negative for European integration?’ Towards a possible answer, two perspectives are examined from a constitutional law approach. From the top down, it examines the attitude of the EU towards regional differentiation, from the origins of the EU integration process and its development until recent initiatives and proposals. From the bottom up, it analyses the role of subnational entities by presenting the Italian experience, through the reforms that have been approved over the years until the recent proposal for asymmetric regionalism. The aim is to understand whether regional differentiation still represents a positive element for the European integration process, considering the role that subnational entities play in many policies and the challenges described earlier.


Gabriella Saputelli
Researcher of Public Law at the Institute for the Study of Regionalism, Federalism and Self Government (ISSiRFA) of the National Research Council (CNR).
Article

The ECB’s Independence and the Principle of Separation

Journal European Journal of Law Reform, Issue 3 2020
Keywords ECB, Banking Supervision, Banking Supervision Centralization, Prudential Supervision, European Union, EU Law, Banking Union, Central Banking Independence, SSMR, SSMR
Authors Pamela Nika
AbstractAuthor's information

    This article addresses the question of whether the European Central Bank’s (ECB’s) involvement in banking supervision is compatible with its independent status as provided by the European Union’s (EU’s) primary law, specifically with reference to the principle of separation between the ECB’s monetary policy and supervisory powers. It is found that the Single Supervisory Mechanism (SSM) Regulation provides the ECB with a set of prerequisites in pursuit of its supervisory objectives under a high level of independence. However, the article argues that the current EU regulatory framework poses risks to the overall independence of the ECB. In particular, the principle of separation, as one of the mechanisms aimed at safeguarding the ECB’s independence, is not fully achieved. In addition, the boundaries and application of macro-prudential operation of the ECB in both the SSM and European Systemic Risk Board (ESRB) remain blurry and uncertain. The article concludes by suggesting that the only way to safeguard the independence of the ECB is by carefully revising the ECB’s competencies, which may require treaty amendment.


Pamela Nika
Dr Pamela Nika is a lecturer in Corporate and Finance Law at Brunel University London.
Article

The ECtHR on Constitutional Complaint as Effective Remedy in the Hungarian Legal Order

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords ECHR, Constitutional Court of Hungary, constitutional complaint, exhaustion of domestic remedies, subsidiarity
Authors Péter Paczolay
AbstractAuthor's information

    Since 2012 a new regulation of the constitutional complaint was introduced to the Hungarian legal system that since then also includes the full constitutional complaint against final court decisions. Besides this new remedy , two other exist: a complaint against a legal provision applied in court proceedings (in force since 1990), and an exceptional form of the complaint against a legal provision, when there are no real and effective remedies available. Before 2012 the ECtHR did not consider the constitutional complaint to be an effective domestic remedy that needs to be exhausted. In two decisions taken in 2018 and 2019 the ECtHR declared that – under the respective conditions and circumstances – all three kinds of constitutional complaints may offer an effective remedy to the applicants at domestic level. The case note presents the two cases summarizing the main arguments of the ECtHR that led to this conclusion.


Péter Paczolay
Péter Paczolay: professor of law, University of Szeged; judge, ECtHR.
Article

The Protection of the Right to Local Self-Government in the Practice of the Hungarian Constitutional Court

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords right to local self-government, protected powers, European Charter of Local Self-Government, Hungary, Constitutional Court of Hungary
Authors Ádám Varga
AbstractAuthor's information

    A specific trait of local self-governments is that they exercise public power, while public power is also exercised against them. This means that those functions and powers that are obligations on the side of local self-governments, can be construed as rights against central public bodies. For this reason, the protection of the right to local self-government is a priority. The Charter of Local Self-Government takes the view that the autonomy of local self-governments shall be guaranteed against central public bodies. It is necessary to establish a legal framework which ensures that strong central public bodies cannot enforce their own political or professional preferences against the will of local communities with different political or professional beliefs. In my opinion, the central issue, also in Hungary, is that local self-governments are entitled to the protection of the Constitutional Court. Decision No. 3311/2019. (XI. 21.) AB sets out that local self-governments are entitled to turn to the Constitutional Court in their own right by submitting a constitutional complaint if the law violates their rights guaranteed in the Fundamental Law (including powers enshrined in the Fundamental Law). While the decision is still very recent, nevertheless, thanks to its local self-governments may expect the substantive review of their petitions by the Constitutional Court in the future.


Ádám Varga
Ádám Varga: visiting lecturer, Pázmány Péter Catholic University, Budapest; assistant lecturer, National University of Public Service, Budapest; counselor, Constitutional Court of Hungary, Budapest.
Article

Like Mother, Like Daughter?

Linkage Between Local Branches and Their National Party Headquarters in Belgium

Journal Politics of the Low Countries, Issue 2 2020
Keywords local branches, national party headquarters, linkage, integration, multilevel parties
Authors Kristof Steyvers
AbstractAuthor's information

    This article scrutinises local-national linkage in Belgium to better understand territorial power relations in multilevel parties. Drawing on a survey of local chairs of national parties, it adopts an innovative, informal and bottom-up approach. The descriptive analysis reveals two central axes in the morphology of linkage: scope (downward support and upward influence) and surplus (benefits versus costs). However, (the valuation of) this interdependence appears as a matter of degree. The explanatory analysis therefore probes into the effect of macro- (between environments), meso- (between parties) and micro- (within parties) level factors. It demonstrates that variance is explained by different parameters. For scope, differences between parties trump those within them. For surplus, specific differences between parties as well as within them matter. The answer to our guiding question is therefore variegated: it depends on for what and for whom.


Kristof Steyvers
Kristof Steyvers is Associate Professor in the Department of Political Science of Ghent University (Belgium). His research is conducted in the Centre for Local Politics, where he focuses on topics such as local political leadership, parties and elections at the local level, local government in multilevel governance and local government reforms (often from a comparative perspective).
Article

The New Regulation Governing AIR, VIR and Consultation

A Further Step Forward Towards ‘Better Regulation’ in Italy

Journal European Journal of Law Reform, Issue 4 2019
Keywords regulation, RIA, regulatory impact analysis, impact assessment, evaluation, consultation
Authors Victor Chimienti
AbstractAuthor's information

    This article describes the scope and contents of the newly adopted regulation governing regulatory impact analysis (RIA) and ex post evaluation of regulation (ExPER) in the Italian legal system. The article shows that this regulation has the potential to improve regulatory governance in Italy. Not only does it introduce innovations designed to increase transparency and participation, especially through strengthened consultation and communication mechanisms, but it also aims to improve the quality and effectiveness of regulatory analysis and evaluation activities. How the new regulation will be applied in practice, however, remains to be seen. In the meantime, the new set of rules are a welcome addition to Italy’s Better Regulation policy.


Victor Chimienti
Victor Chimienti is an international and EU lawyer currently working as a free-lance consultant on donor funded projects. In 1997, he graduated in Law with full marks at the University of Bari “Aldo Moro” (Italy), and, in 2006, obtained his Ph.D in International and EU Law from the same university. Meanwhile, he had attended post-graduate legal studies at LUISS University in Rome, Italy, specialising in international and EC business law. Dr. Chimienti has also served as Lecturer in International and Trade Law at the University of Foggia, Italy, and as Research Scholar in International & Comparative Law at the University of Michigan, USA. Among others, he specialises in Better Regulation tools and procedures, such as Regulatory Impact Analysis (RIA), Ex-Post Evaluation of Legislation, Monitoring, and Public Consultation.
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

EUdentity – European Conference on Constitutional Identity

Report on the ‘Constitutional EUdentity 2019’ Conference Organized by the Constitutional Court of Hungary, 8 March 2019, Budapest

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

Attila Szabó
Chef de cabinet, Constitutional Court of Hungary.
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.
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