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Article

The Temporal Effect and the Continuance in Force of the Treaty of Trianon

A Hundred Years Later

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords peace treaties, Trianon Peace Treaty, termination of treaties, temporal effect of international treaties, law of international treaties
Authors Norbert Tóth
AbstractAuthor's information

    The 1920 Trianon Peace Treaty ended World War I between Hungary and its belligerents. Nonetheless, one hundred years have passed since then, yet this peace treaty is still unsettling to many, causing misbelief, hatred, anger and misunderstanding both in Hungary and its neighboring countries. To unearth the temporal aspects of the Trianon Peace Treaty, more precisely, to identify exactly what obligations remain in force following this rather hectic century, it is indispensable to study the temporal effect of this agreement. The present article aims at arriving at a conclusion in relation to several misbeliefs held with respect to the Trianon Peace Treaty as well as the issue of its termination.


Norbert Tóth
Norbert Tóth: associate professor of law, National University of Public Service, Budapest.
Article

Participation in the European Public Prosecutor’s Office

Member States’ Autonomous Decision or an Obligation?

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords European Public Prosecutor’s Office, EPPO, OLAF, European criminal law, Eurojust
Authors Ádám Békés
AbstractAuthor's information

    The aim of the present study is to examine recent developments concerning the European Public Prosecutor’s Office (EPPO), focusing on the conflict between the EU and the Member States not participating in the enhanced cooperation setting up the Prosecutor’s Office. To provide an overall picture about EPPO’s future operational relations, the study first presents the EPPO’s future cooperation with other EU bodies and draws some critical conclusions. Based on these reflections, the study aims to discuss the EU’s alleged intention and strategy to cope with and solve the problem of non-participating Member States, assessing the probable role of the Prosecutor’s Office and other related EU bodies, institutions and legal measures in this struggle, while also considering recent declarations of the leaders of EU institutions.


Ádám Békés
Ádám Békés: associate professor of law, Pázmány Péter Catholic University, Budapest; attorney-at-law.
Article

The CETA Investment Court and EU External Autonomy

Did Opinion 1/17 Broaden the EU’s Room for Maneuver in External Relations?

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords EU investment treaties, investment arbitration, EU external relations, EU treaty-making capacity, level of protection of public policy interests
Authors Wolfgang Weiss
AbstractAuthor's information

    The present contribution analyzes Opinion 1/17 of the CJEU on CETA, which, in a surprisingly uncritical view of conceivable conflicts between the competences of the CETA Investment Tribunal on the one hand and those of the CJEU on the other hand, failed to raise any objections. First reactions welcomed this opinion as an extension of the EU’s room for maneuver in investment protection. The investment court system under CETA, however, is only compatible with EU law to a certain extent. This was made clear by the Court in the text of the opinion, and the restrictions identified are likely to confine the leeway for EU external contractual relations. Owing to their fundamental importance, these restrictions, inferred by the CJEU from the autonomy of the Union legal order form the core of this contribution. In what follows, the new emphasis in the CETA Opinion on the external autonomy of Union law will be analyzed first (Section 2). Subsequently, the considerations of the CJEU regarding the delimitation of its competences from those of the CETA Tribunal will be critically examined. The rather superficial analysis of the CJEU in the CETA Opinion stands in stark contrast to its approach in earlier decisions as it misjudges problems, only seemingly providing for a clear delimitation of competences (Section 3). This is followed by an exploration of the last part of the CJEU’s autonomy analysis, in which the CJEU tries to respond to the criticism of regulatory chill (Section 4). Here, by referring to the unimpeded operation of EU institutions in accordance with the EU constitutional framework, the CJEU identifies the new restrictions for investment protection mechanisms just mentioned. With this, the CJEU takes back the earlier comprehensive affirmation of the CETA Tribunal’s jurisdiction with regard to calling into question the level of protection of public interests determined by the EU legislative, which raises numerous questions about its concrete significance, consequence, and scope of application.


Wolfgang Weiss
Wolfgang Weiss: professor of law, German University of Administrative Sciences, Speyer.
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.

Anett Pogácsás
Anett Pogácsás: senior lecturer, Pázmány Péter Catholic University, Budapest; member of the Hungarian Council of Copyright Experts.
Case Notes

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

Decision No. 13/2018. (IX. 4.) AB of the Constitutional Court of Hungary

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords environmental impact assessment, precautionary principle, non-derogation principle, Constitutional Court of Hungary, groundwater
Authors Gábor Kecskés
AbstractAuthor's information

    On 28 August 2018, the Constitutional Court of Hungary delivered a milestone decision [Decision No. 13/2018. (IX. 4.) AB] in relation to the protection of groundwater with reference to the general protection of the environment as a constitutionally protected value. The President of the Republic pointed out in his petition to the Constitutional Court that two sections of the draft legislation are contrary to the Fundamental Law by violating Articles B(1), P(1) and XXI(1) of the Fundamental Law by permitting water abstraction with much lower standards. Adopted by the majority along with concurring and dissenting opinions, the decision is an important judicial achievement in the general framework of constitutional water and environmental protection. It also confirms the non-derogation principle elaborated by the Constitutional Court. The Constitutional Court had the opportunity and an ‘open mind’ to take into consideration numerous sources of scientific professional evidence on the stock of water and groundwater abstraction. The decision was acclaimed for its environmental orientation, and even more, for developing the 25-year old standards of constitutional review in environmental matters by elaborating on the implicit substance of several articles enshrined in the new Fundamental Law (e.g. Articles P and XXI).


Gábor Kecskés
Gábor Kecské: research fellow, Eötvös Loránd Research Network, Centre for Social Sciences, Institute for Legal Studies, Budapest; associate professor of law, Széchenyi István University, Győr.
Article

Law and Identity in the European Integration

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords hierarchy of norms, heterarchy, rule of law, identity, culture
Authors János Martonyi
AbstractAuthor's information

    The success of the European integration depends, to a large extent, on restoring the equilibrium amongst its various dimensions: the economic, the political and the cultural. This rebalancing should primarily focus on upgrading the hitherto relatively neglected cultural dimension of the European construct, as a basis of European identity. Since law is not only an instrument, but a core element of European identity, rule of law, should be respected on the international, European and national level. The traditional strict, ‘Kelsenian’ hierarchy of legal norms has been substantially loosened, primarily, but not exclusively due to the emergence of European law. The geometric order of legal norms has become heterarchic and the neat ranking of the different levels as well as the absolute primacy based upon that ranking has been questioned. This applies equally to the relationship between international law and European law and between European law and the national laws of the Member States. Both the principle of the autonomy of European, law and the constitutional identity of the Member States aim at protecting the core principles of European law, and the laws of the Member States, respectively. The rule of law does not necessarily presuppose a neat geometric hierarchy of legal norms. It does require, however, an orderly structure, where the precise areas of the autonomy of EU law, as well of the constitutional identity of Member States are defined in a clear and foreseeable manner. While a perfect order can never be established, legal certainty and ultimately, rule of law could be substantially reinforced through mutual empathy and understanding as well as continuous and effective dialogue, consultation and concentration between the various levels of legislation and, in particular, of adjudication.


János Martonyi
János Martonyi: professor emeritus, University of Szeged; former Minister of Foreign Affairs of Hungary (1998-2002 and 2010-2014).
Article

The Treaty of Trianon Imposed Upon Hungary

Objectives and Considerations From the Hungarian Perspective

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords Austro-Hungarian Monarchy, World War I, 1920, Hungarian Peace Delegation, Trianon Peace Treaty
Authors Gábor Hollósi
AbstractAuthor's information

    Historians outside of Hungary often emphasize that the post-World War I peace conference did not erase the Austro-Hungarian Monarchy from the map. The Peace Conference merely confirmed the decision previously made by the peoples of Central Europe over the Monarchy. But is it really true that the issue of nationality and the self-determination of the peoples were the forces that tore the Monarchy apart? And was the Hungarian national tragedy of the newly drawn borders due to the irresponsible policies of Prime Minister Mihály Károlyi and the reckless policy of the Hungarian Soviet Republic? In the following paper I express the view that the fate of the Monarchy was primarily determined by the (fundamentally) changed role of the Monarchy in the European status quo, and contend that the issue pertaining to the establishment of Hungary’s new frontiers was determined by the overwhelming military might of the opposing forces.


Gábor Hollósi
Gábor Hollósi: senior research fellow, VERITAS Research Institute and Archives, Budapest.
Article

National Courts and the Enforcement of EU Law

Hungarian Experiences

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords Constitutional Court of Hungary, supremacy, mutual trust, constitutional identity, preliminary ruling
Authors András Osztovits and András Zs. Varga
AbstractAuthor's information

    The present study was originally meant for the FIDE XXIX Congress, which provided an excellent opportunity to review how the acquis communautaire has been implemented by ordinary courts as well as the Constitutional Court of Hungary since the country’s accession to the EU. As it is widely known, national courts play a key role in enforcing rights and obligations under EU law, so that the application of EU law remains uniform in all the Member States, in compliance with the jurisprudence of the CJEU. On the other hand, national constitutional courts must take a position more frequently and emphatically on issues related to national sovereignty: in defining what comes within the scope of the EU’s legislative competence and what remains under the control of national constitutional and legislative power. The relationship between national ordinary courts, constitutional courts and the CJEU, as well as the national implementation of Luxembourg case-law may be analyzed in a variety of ways and from different perspectives. The main principles governing EU law (such as direct effect, supremacy, mutual trust) have been developed in increasing detail over the years. Since their effect and practical consequences are outstanding, in what follows, we are shall explore these issues first in the light of Hungarian case-law. In the context of the principle of mutual trust, the discussion surrounding the independence of national courts is gaining impetus. Therefore, we will also touch upon this issue in our study. Finally, as far as the issue of effective enforcement of EU law is concerned, we shall present the Hungarian experience related to the preliminary ruling procedure, which is the most important element linking the CJEU and national courts. In this respect, we approach the issue from the domestic angle, focusing primarily on how exceptions to the obligation to submit a request for preliminary ruling have been clarified on the basis of the guidelines of the Curia of Hungary and the Constitutional Court of Hungary.


András Osztovits
András Osztovits: professor of law, Károli Gáspár University of the Reformed Church, Budapest; judge, Curia of Hungary, Budapest.

András Zs. Varga
András Zs. Varga: professor of law, Pázmány Péter Catholic University, Budapest; justice, Constitutional Court of Hungary, Budapest.
Case Notes

Limitations of the Physical Expression of Opinion

Decision No. 14/2019. (IV. 17.) AB of the Constitutional Court of Hungary

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords freedom of expression, expression of opinion, Constitutional Court of Hungary, political freedom, conflict between fundamental rights
Authors Gábor Kurunczi
AbstractAuthor's information

    The present case note tries to answer the question whether Article IX of the Fundamental Law of Hungary protects the physical expression of opinion, by analyzing the jurisprudence of the Constitutional Court. The protection of freedom of expression has been a priority for the Constitutional Court from the outset. In the 21st century, however, as far as freedom of expression is concerned, it is not enough for the Constitutional Court to rely solely on doctrines. Increasingly, courts are faced with cases where those expressing their opinion do not express their message in words, but in a physical way. And these acts (e.g. dousing a statue with paint or just painting a crack in a sidewalk in four colors) are very often in conflict with other fundamental rights (e.g. with the right to property), raising the question of the illegality of the action expressing the opinion. In 2019, the Constitutional Court dealt with three such cases. This case note analyzes the Decision No. 14/2019. (IV. 17.) AB of the Constitutional Court. In essence, the Constitutional Court had to answer three questions: (i) What are the criteria for deciding whether an act can be included in the constitutionally protected scope of freedom of expression (and how are the actions of the petitioners to be judged)? (ii) If an act can be included within the constitutionally protected scope of expression, how to balance it with other fundamental rights, in particular to the right to property? (iii) Where are the boundaries between constitutionally protected expressions and criminal acts? The aim of the present case note is to raise some new aspects to allow for further reflection on the topic.


Gábor Kurunczi
Gábor Kurunczi: visiting lecturer, Pázmány Péter Catholic University, Budapest; senior lecturer, National University of Public Service, Budapest.
Case Notes

Practical Questions Concerning the Relationship Between a Member State’s Constitution, EU Law and the Case-Law of the CJEU

Decision No. 2/2019. (III. 5.) AB of the Constitutional Court of Hungary

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords Constitutional Court of Hungary, constitutional dialogue, non-refoulement, right to asylum, EU law and national law
Authors Marcel Szabó
AbstractAuthor's information

    In 2018, the Hungarian Parliament amended the Fundamental Law, which, among others, contains the principle of non-refoulement, and stipulated at constitutional level that “a non-Hungarian national shall not be entitled to asylum if he or she arrived in the territory of Hungary through any country where he or she was not persecuted or directly threatened with persecution.” Partly due to this new provision of the Fundamental Law and partly based on other Hungarian laws, the European Commission initiated an infringement procedure against Hungary. According to the Hungarian Government, in this procedure the Commission misinterprets the Fundamental Law, therefore (inter alia) the authentic interpretation of this provision was requested from the Constitutional Court. In its Decision No. 2/2019. (III. 5.) AB, the Constitutional Court did not only interpret the provision in question, but it also elaborated on certain matters regarding its own competence in relation to EU law, as well as making relevant findings also in relation to Hungary’s constitution and the interpretation thereof in accordance with the EU law, based on the doctrine of ‘constitutional dialogue’. In this paper, I analyze this decision of the Constitutional Court in detail.


Marcel Szabó
Marcel Szabó: professor of law, Pázmány Péter Catholic University, Budapest; justice, Constitutional Court of Hungary, Budapest.
Article

Challenges Arising From the Multi-Level Character of EU Citizenship

The Legal Analysis of the Delvigne and Tjebbes Cases

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords Union citizenship, supranational status, voting rights in the European Parliament elections, dual citizenship, loss of citizenship
Authors Laura Gyeney
AbstractAuthor's information

    Studies on the relationship between EU citizenship and Member State legal orders speak either of the loss of control over national sovereignty or, on the contrary, the judicial deconstruction of Union citizenship. These firm positions on how EU citizenship should be perceived fit well with the two markedly different mindsets represented in legal literature: while representatives of the federalist view envision a politically integrated, supranational community behind the treaty provisions on EU citizenship, sovereignists oppose the extension of EU powers via judicial interpretation tooth and nail. This study aims to find an answer to the question whether the CJEU, in its latest judgments on EU citizenship issues, has succeeded in consolidating the constitutional basis of EU citizenship in a way that is reassuring for Member States, i.e. by respecting the principle of conferral. In this respect, it may be established that in both cases analyzed below, such as the Delvigne and Tjebbes cases, the CJEU made well-balanced decisions keeping EU as well as Member State interests in mind, which, although has brought no substantial progress in the process of recognizing EU citizenship as an autonomous status, makes efforts to consolidate the fundamental characteristic thereof.


Laura Gyeney
Laura Gyeney: associate professor of law, Pázmány Péter Catholic University, Budapest.

András Tóth
András Tóth: professor of law, Károli Gáspár University of the Reformed Church, Budapest; Chairman of the Competition Council, Hungarian Competition Authority.
Article

The CETA Opinion of the CJEU

Redefining the Contours of the Autonomy of the EU Legal Order

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords CETA, settlement of investment disputes, autonomy of EU law, Achmea, multilateral investment court
Authors Tamás Szabados
AbstractAuthor's information

    In its Opinion 1/17, the CJEU confirmed that the investor-state dispute settlement mechanism of the Comprehensive Economic and Trade Agreement (CETA or the Agreement) entered into between Canada and the EU is compatible with EU law. In the view of the CJEU, the CETA does not have an adverse effect on the autonomy of the EU legal order; it does not violate the principle of equality, the effectiveness of EU law and the right of access to an independent tribunal. Some of the findings of the Opinion are, however, controversial. In particular, it is questionable whether the autonomy of EU law is indeed unaffected by the Agreement, because it seems that in certain situations an interpretation of EU law is hardly avoidable for the CETA Tribunal and the Appellate Tribunal to make. With its Opinion, the CJEU not only lends support to similar trade and investment protection agreements, but it also paves the way for the participation of the EU in creating a multilateral investment court as long as the limits set by the CJEU are observed.


Tamás Szabados
Tamás Szabados: associate professor of law, ELTE Law School, Budapest.

Tamás Török
PhD candidate, University of Pécs.
Article

The European Charter for Regional or Minority Languages

Specific Features and Problems of Application

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Keywords European Charter for Regional or Minority Languages, protection of minority languages, protection of regional languages, supervisory regime
Authors Gábor Kardos
AbstractAuthor's information

    As was the case after the Great War, World War II was followed by the setting up of international legal regimes to protect national (national, ethnic, linguistic, and religious) minorities in Europe. The emerging ideas of universalism and European unity were to prevent the aftermath of World War I, a conflict which erupted as a result of Western focusing the system of European minority protection on Central and Eastern Europe. The European Charter for Regional or Minority Languages protects minority languages, without granting minority rights. It provides an á la Carte system of obligations, with a supervisory system hinged on government reports. The Charter was intended to be a ‘high politics’ treaty. Nevertheless, with the protection of the minority linguistic heritage and the indirect provision of minority linguistic rights, it meant a first step towards bringing an end to the 19th century processes linguistic homogenization of the budding nationstates. As such, its implementation is highly political. The minority languages protected by the Charter are strongly varied in nature. If we add this factor to the á la Carte system of obligations, the sheer complexity of the system prevents evaluations of the Committee of Experts from being as consistent as they should be. An important contribution of the soft supervisory mechanism is that it at least puts some problematic issues on the agenda, however, experience has shown that the transposition of treaty obligations into national law is always a simpler task than creating the substantive conditions for the actual use of minority languages.


Gábor Kardos
Professor of law, ELTE Law School, Budapest; Member of the Committee of Experts of the European Charter for Regional or Minority Languages.
Article

The Precautionary Principle in the Fundamental Law of Hungary

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

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

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


Marcel Szabó
Professor of law, Pázmány Péter Catholic University, Budapest; justice, Constitutional Court of Hungary.

Petra Lea Láncos
Researcher, Deutsches Forschungsinstitut für öffentliche Verwaltung, Speyer; associate professor, Pázmány Péter Catholic University, Budapest.
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.
Editorial

Legal, Ethical and Economical Impacts of Intergenerational Equity (Editorial Comments)

Foreword to Vol. 7 (2019) of the Hungarian Yearbook of International Law and European Law

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

Marcel Szabó
Editor-in-chief; professor of law, Pázmány Péter Catholic University, Budapest; justice, Constitutional Court of Hungary.
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