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. |
Developments in European Law |
The PSPP Judgment of the German Federal Constitutional CourtThe 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 |
Developments in International Law |
The Decision on the Situation in Palestine Issued by Pre-Trial Chamber I of the International Criminal CourtReflecting 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. |
Public Health Emergency: National, European and International Law Responses |
Constitutional Rights in the Time of PandemicThe 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) |
Anniversary: Commemorating the 90th Birthday of Ferenc Mádl, President of the Republic (2000-2005) |
Ferenc Mádl, the Hungarian Professor of European Law |
Journal | Hungarian Yearbook of International Law and European Law, Issue 1 2021 |
Keywords | Ferenc Mádl, private international law, Central Europe, V4, Hungary |
Authors | Endre Domaniczky |
AbstractAuthor's information |
Living in a country under foreign occupation he became engrossed in the science of private law, and (under the influence and with the support of his masters) he started to study the characteristics of socialist, and later of Western European legal systems. Within the socialist bloc, he became one of the early experts on Common Market law, who, following an unexpected historical event, the 1989 regime change in Hungary, was also able to make practical use of his theoretical knowledge for the benefit of his country. In 2021, on the 90th anniversary of his birth and the 10th anniversary of his death, the article remembers Ferenc Mádl, legal scholar, member of the Hungarian Academy of Sciences, minister in the Antall- and Boross governments, former President of Hungary. |
Case Notes |
The Constitutional Court of Hungary on the Borderlines of BlasphemyA Note on Two Recent Cases |
Journal | Hungarian Yearbook of International Law and European Law, Issue 1 2021 |
Keywords | blasphemy, freedom of speech, protection of dignity, protection of religion, Hungary |
Authors | Balázs Schanda |
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Blasphemy used to be a criminal offence in traditional legal systems. Although offending the transcendent is not criminalized in most Western legal systems, free speech must respect the dignity of others. Religious conviction constitutes an inherent part of dignity. The protection against hate speech offending the dignity of members i.e. of religious communities may include criminal sanctions in extreme cases. The new Civil Code of Hungary (2013) enables the bringing of a civil lawsuit for hate speech. After years of litigation the first two cases where litigants claimed their dignity violated by offensive images have reached the Constitutional Court. The Constitutional Court guaranteed protection of religious identity on the one hand, on the other hand, it upheld the freedom of political speech even when using a religious symbol. Degrading religion offends all members of the religious community, criticism of the religiosity of public actors, however, is protected by the freedom of speech. |
Public Health Emergency: National, European and International Law Responses |
Defining the Common European Way of LifeExploring 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. |
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. |
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. |
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. |
Public Health Emergency: National, European and International Law Responses |
European State Aid Rules in Times of PandemicDistorting Competition Between European Airlines? |
Journal | Hungarian Yearbook of International Law and European Law, Issue 1 2021 |
Keywords | state aid, air transport, airlines, COVID-19 pandemic, Ryanair |
Authors | Mónika Papp |
AbstractAuthor's information |
The outbreak of the COVID-19 pandemic had an immediate and profound impact on mobility and, more specifically, on air passenger transport: airlines were quickly stranded, and the Member States granted aid to air carriers subject to specific eligibility criteria. The Commission reacted swiftly to challenges posed by the COVID-19 pandemic and adopted its Temporary Framework under which vast amounts could be disbursed to market operators. The most controversial eligibility condition set by the Member States is the holding of a national license. This article’s research questions are, first, to explore the conditions under which Member States can grant large amounts of state aid to airlines, and second, to assess whether the requirement to hold a national license is compatible with EU law. By addressing these issues, this article seeks to improve our understanding of EU law’s capacity to tackle distortions of competition. |
Anniversary: Commemorating the 90th Birthday of Ferenc Mádl, President of the Republic (2000-2005) |
Back to the Future: Ferenc Mádl, The Law of the European Economic Community (1974)Investment Protection Then and Now |
Journal | Hungarian Yearbook of International Law and European Law, Issue 1 2021 |
Keywords | Ferenc Mádl, investment protection, SEGRO and Horváth, Achmea, BIT |
Authors | Miklós Király |
AbstractAuthor's information |
The first part of the article (Sections 1-2) reviews Prof. Ferenc Mádl’s magnum opus, published in 1974, emphasizing the importance of the monograph’s publication in the communist era. It discusses the unique structure of the volume, which, from the perspective of undertakings and companies, examined the fundamental economic freedoms and EEC competition law in parallel. The second part (Sections 3-5) highlights the issue of investment protection, noting that Mádl’s early academic theorem has been vindicated decades later by the case-law of the CJEU, in particular in its SEGRO and Horváth judgment: Provisions ensuring free movement of capital serve to protect foreign investments as well. |
Developments in International Law |
The Sudita Keita Versus Hungary Ruling of the ECtHR and the Right to Private Life of Stateless PersonsA Long Saga Comes to an End |
Journal | Hungarian Yearbook of International Law and European Law, Issue 1 2021 |
Keywords | EctHR, stateless persons, right to private and family life, positive obligations of States, 1954 Convention relating to the Status of Stateless Persons |
Authors | Tamás Molnár |
AbstractAuthor's information |
In the case of Sudita Keita v Hungary, the ECtHR handed down a key judgment relating to statelessness. In the ruling of 12 May 2020, the ECtHR unanimously found that Hungary’s failure to ensure stability of residence for the stateless applicant for roughly 15 years amounted to a violation of his right to respect for private and family life (Article 8 ECHR). This ruling follows in the footsteps of an earlier and similar Strasbourg judgment (Hoti v Croatia), and substantiates the jurisprudential line which provides protection to stateless individuals with unsettled status using the forcefield of Article 8 ECHR. The Sudita Keita case before the ECtHR was the final chapter in a long-lasting saga that had commenced before domestic authorities and courts in Hungary, at various instances, also with the involvement of the Constitutional Court. |
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. |
Hungarian State Practice |
The Public Trust Doctrine, the Non-Derogation Principle and the Protection of Future GenerationsThe 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. |
Legal Document |
Summary record of the 30th meeting – A/C.6/73/SR.30Agenda item 82 |
Journal | African Journal of International Criminal Justice, Issue 1-2 2018 |
Human Rights Literature Review |
Lithuania |
Journal | East European Yearbook on Human Rights, Issue 1 2018 |
Authors | Vygantė Milašiūtė PhD |
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Human Rights Literature Review |
Poland |
Journal | East European Yearbook on Human Rights, Issue 1 2018 |
Authors | Vita Zagórowska and Jakub Czepek |
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Human Rights Practice Review |
Latvia |
Journal | East European Yearbook on Human Rights, Issue 1 2018 |
Authors | Lolita Bērziņa, Artūrs Kučs and Eva Vīksna |
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