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Work of Costantino Mortati in the Field of Public Law
23-41Views:114The aim of my article is to present an overview of certain stages of Costantino Mortati’s scientific work (Constitutional Court’s judge and professor of law) on the basis of Italian bibliography. His most popular work, entitled “the Constitution in material sense” (1940) conforms to problems and methodology of Italian constitutional law, while it reflects to contemporary schools of European jurisprudence and changes of institutions and theories of modern state. Behind Mortati’s theories about the State and the Constitution, the Italian liberal state regarded as heritage of risor- gimento, and the symptoms of its crises, birth and fall of the totalitarian state and the fundamental public law-aspects of the democratic and republic state can be found.
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Effects of the State Aid Soft Law on Beneficiaries: Annotation on an order of the General Court
118-127Views:189The European Commission issues guidelines and other soft law instruments to define the compatibility conditions of State aid to be granted by Member States with the internal market. Although the soft law is only binding on the Commission it has not negligible indirect effect on the Member States state aid policy and thereby on other policies. So far it was not clear how much beneficiaries could find remedy at European Courts against the soft law issued by the Commission. The present article gives a description on the adoption of the new energy and environmental aid guidelines with the focus on the conditions related to aid to operating aid to energy generation from renewable energy sources in the context of the State Aid modernization initiative. A comparison to the previous rules was also made. Thereafter the article summarizes an order of the General Court issued in a procedure where an applicant has initiated action for annulment of the guidelines. The article also tries to draw some conclusions about the possibilities and limits of beneficiaries and Member States to question the legality of State aid soft law instruments at European Courts.
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The General Theory of the State and the Relativity of the Force of Law – Comment on the Theory of Georg Jellinek
53-72Views:172This paper makes an in-depth examination of the theory established by Georg Jellinek who – extending the perspective of the jurisprudence of state law based on legal methods – was concerned with issues of public law within the frames of general theory of the state. The author will demonstrate the claim that the special concepts of Jellinek’s general and descriptive theory – like the „presupposition of factual validity” or the idea of the „state’s self-obligation to law” – are the results of Jellinek’s idea that there were no alternatives to the institutional system of the constitutional monarchy.
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Current Challenges of Confidentiality and Publicity in the View of Information Security
24-41Views:171The paper analyses the issues of confidentiality and publicity, arising from current information security legislation in Hungary. First of all the information security as a state task is analyzed. In Hungary, the information security controls of state and local government entities are regulated. Afterward, on the one hand, the information security as a tool for data protection regulation, state secrets and freedom of information were discussed. On the other hand, information security can be an object of the law, when the protection of security controls is required. One of the main findings of the research was that the information security controls applied at state entities are generally public data (according to freedom of information regulation). Thus it might not stay confidential. We formed proposals to solve this issue.
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The Basic Thesis of the State Theory of Győző Concha: "Theory of Constitiution"
133-160Views:308Győző Concha’s book “Politika”, published in 1895, is still relevant for the understanding of the theoretical problems in constitutional law. Thus, it is important to analyse the peculiar use of constitutional terms in his theory in order to understand his unique interpretation of the concept of the constitution and its relevance for political and legal philosophy. The methodological goal of the research is to present the meaning of the concepts used by Concha, and to highlight their functional role. It is also an important question as to how Concha’s constitutional theory was incorporated into his political philosophy, and how these concepts are interpreted in today’s political and legal terminology. It is also the paper’s aim to “translate” Concha’s vocabulary and constitutional theory into the language used in 21st century constitutional theories, and to present and evaluate the relevance of his constitutional theory in understanding the current constitutional problems of political communities.
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The Legal Background of Sovereign Funds and Their Role in National Economies
151-169Views:141Sovereign funds are funds created and operated by the state. They came into the limelight after the financial crisis of 2007–08, when they saved the most emblematic listed companies in the US and Europe. The aim of the article is to explore some key issues related to sovereign funds. The paper discusses the origins of the term and some related economic concepts, including factors which resulted in the creation of sovereign funds. The legal background is also elaborated on both international and national levels, giving an insight into the regulatory framework. The article closes with propounding a sovereign fund in Hungary. This section gives an overview of state property management and its legal background.
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Questions of divisions of powers in the 21st century after the adoption of the new Fundamental Law of Hungary
24-37Views:341The question of division of state powers is a crucial part of constitutional law determining how state organs work (or should work) in theory and in practice. After the adoption of the new Fundamental Law of Hungary, there are some modifications in the Hungarian constitutional system, including the division of powers as well. In this study we examine the original model of “3 branches of power – 1-1 function” as a starting point, and the other factors and branches which can modify the original model. In the study we try to focus to the examples of the former and present Hungarian legal system as certain proves of our theory about the new frameworks of division of powers in Hungary. In the end of this study we also examine, as an indirect argumentation, the opposite side of the separation of powers, i.e. concentration of powers.
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Rule of Law – Active State: Reconstructing the Conception of the Rule of Law in Zoltán Magyary’s Theory
9-26Views:194Zoltán Magyary was an internationally recognised Hungarian professor of law who carried out research in modern theories of administration and state theories. Defending the values of the rule of law and taking action against the anomalies of legal formalism were among his major scientific goals. According to him, one of the most important functions of a legal system is the protection of human rights, therefore he accepted the view that courts must have the authority to review administrative decisions. At the same time, he stated that the effective and productive functioning of administrative institutions and the executive power is a priority in a legal system. Due to the fact that he did not provide a complete analysis of the correlation between the rule of law and the effective functioning of administrative institutions, he opened the possibility for posterity to give various and different interpretations of the issue.
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Municipal Waste Management and the Hungarian Model
47-66Views:149There is an ongoing debate on how the role of municipalities should be changed in the local public service sector due to the financial problems present at local level. The debate is mainly related to determine the adequate level and function of local governments. The author introduces the basic elements of a model of public services that shows the relationship between the public actors (state/municipality), the service provider and the user, including how the need is determined, the service is provided, financed and the service provider is chosen. The author introduces the “Hungarian Model” and its main features: the co-existence of three different model (public, quasi private and mixed) of the waste treatment service sector differing in the relationships established among the stakeholders and in the financing system; and the right of municipalities to freely switch between them. It draws the attention to how the changes in the role of the state and the legal framework influenced the models and reshaped the relationships of the stakeholders without dealing with the consequences.
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Detrimental effects of tax havens and the case of the Dutch tax system
45-67Views:283Nowadays, multinationals have become so strong that they can easily compete with states. Consequently, they have the opportunity to develop several tax minimalization strategies such as transfer pricing, inversion, hybrid entities etc. All these have a negative impact on the world economy and state budgets. Despite detrimental effects, certain countries try to cooperate with multinationals by transforming themselves into tax havens. In this framework, they provide multinationals with various kinds of tax advantages such as deductions, low tax rates and preferential tax rulings (“sweetheart deals”). Although, the general attitude towards tax avoidance in the European Union is negative, particular member states’ tax systems display several characteristics of tax havens. In this regard, it should be noted that multinationals regularly use the loopholes and other advantages of the Dutch tax system to minimise their tax liability. The following study – after a brief view to the characteristics of tax havens– will illustrate these options by highlighting the fact that the country – despite the denial of the respective governments – still displays several characteristics of - tax havens.
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The Relationship between Power and Crime (Criminological approach)
112-125Views:142During the presentation of the relationship between power and crime the criminologist-author attempts to define power-crime, including crimes committed by the state. Based on international literature, it deals with special features of the power/ state deviances and the characteristics of victims of power crimes.
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The Responsibility of the State in the Prevention and Management of Environmental Damage with Regard to Spatial Planning
156-174Views:271The study aims to examine the constitutional responsibility of the State for environmental damage from a specific new perspective; it analyses its constitutional framework with regard to recent regulatory tools on spatial planning of the contaminated areas. To this end it briefly outlines the history of the remediation of areas falling within the State’s responsibility, its different regulatory and institutional models to date and the extent to which the newly introduced legal instrument in the act on formation and protection and of the built environment of brownfield action areas reflects this quarter-century process.
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Regulatory Proposal of the Ombudsman for Future Generations
10-28Views:235The most important provisions of environmental liability are available, but the effective enforcement still requires the regulation of several legal conditions. The ombudsman for future generations, following a wide professional and social coordination issued a complex regulatory proposal. The proposal is based upon the EU Environmental Liability Directive within the framework of the existing liability scheme, with a broader understanding of liability, and with the most inclusive approach of the polluter pays principle. Among other elements it covers the financial guarantees, the formation of the financial coverage of state intervention, the implementation of environmental liability attached to the real estates, the availability of and access to the environmental information, the more effective enforcement of environmental liability, and also the setting of conditions of implementation within public administration. The main objective is to promote responsible environmental behaviour.
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The Importance of the Wage Guarantee Fund in the Framework of Labour Law Protection
177-192Views:216Act LXVI of 1994 on the Wage Guarantee Fund and the guarantee system regulated by it, is especially topical nowadays, as more and more employers in Hungary have become insolvent in connection with the crisis caused by the coronavirus epidemic. In many cases, the employers subject to the procedure are not able to meet their wage obligations to their employees, so the state must guarantee the values that can be expressed in exact monetary terms – the work performed and its financial compensation – and at the same time the social security of employees. In the present study, we examine the applicability of the Wage Guarantee Fund, which serves to cover the wages to be paid by insolvent employers, from the perspective of the social security and the enforcement of employees’ claims.
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The Problem of Defining Criminal Norms Precisely. The „Clarity of Norms” Doctrine in the Decisions of the Hungarian Constitutional Court and in Judicial Practice
37-59Views:357The principles of legality in criminal law determine numerous requirements both for the legislator creating criminal statutes and for judges as well who decide criminal cases. One of the most important demands of legality is the principle of maximum certainty according to which the state must establish a system of criminal law in which the wording of the statutes are clear, precise and understandable for the citizens; and judges are able to interpret criminal rules without making arbitrary decisions. In the Hungarian legal system the demands of maximum certainty are represented by the principle of nullum crimen sine lege. This principle is called the „clarity of norms” doctrine in the practice of the Constitutional Court of Hungary (HCC) which is entitled to strike down criminal statutes which do not meet its requirements. The aim of this paper is to argue for the claim that the „clarity of norms doctrine” and the concept of certainty in criminal law is based mostly on considerations about the plain meaning of words and texts and lack a coherent theoretical background in the decisions of the HCC and in judicial practice as well. The author offers a more complex and coherent conception of certainty stating that its requirements relate not only to linguistic considerations but also to thinking over the moral and political values of criminal law as well.
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Actual Challenges of Delimitation of Continental Shelf on the Example of the Arctic
67-83Views:175The concept of continental shelf as an inherent right to coastal State has a history of almost a hundred year but its legal status has several gaps which need to be resolved in the forseeable future. Delimitation of continental shelf between States with adjacent or opposite coasts has been a problematic issue since the elaboration of the legal concept of continental shelf but the present essay aims to highlight some other problems emerging since the first application of Article 76 of UNCLOS. These legal problems are related to the procedure of establishing of the outer limits of continental shelf beyond 200 nautical miles. The essay examines these legal problems and demonstrates the challenge caused to the Arctic continental shelf as an example.
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The Legal Status of Women in the Balkans from the 19th Century to the Present
101-123Views:283One of the most important pieces of legislation in Serbian history was the Serbian Civil Code (SCC) of 1844, which remained in force for more than 100 years. It dates back to the time when the country was still part of the Ottoman Empire and survived the state law regimes of the Principality of Serbia, the Kingdom of Serbia, the Kingdom of Serbs-Croats and Slovenians and the Kingdom of Yugoslavia before being liquidated by socialist Yugoslavia in 1945. From the moment it was created, there had been serious criticism, such as that it was modelled on the Austrian civil code and thus did not correspond to Serbian legal-social relations, and so there was no indication that it would be a durable piece of legislation. In its 100-year history, most of the criticism concerned the discriminatory provisions on women. Mostly, the legal situation of married women was detrimental, as they had no capacity to act, and were represented by their husbands. Their proclaimed equality took place in 1946, but they actually received the same legal status as men in the late 20th century.
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To support or not to support? A critical look at film support schemes: the American and the European Model
42-61Views:138The current article aims at mapping the origins of film aid schemes, comparing the different motives that lay behind the American and European model eventually leading to a globally strengthening subsidy race. Rules guiding national subsidies for the film industry in the European Union have their limits in the State Aid rules of the Treaty on the Functioning of the European Union as well as the Communication of the Commission on certain legal aspects relating to cinematographic and other audiovisual works.
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The Relationship Between Psychoactive Substance Users and Animals
Views:29The purpose of the study is to present the wide-ranging relationship between psychoactive drug use and animal welfare based on a literature review. The relationship between drug users and animals is on the one hand under-researched, and on the other hand there are no developed protocols regarding the issue, even though the issue has significant human health and animal welfare effects. There is little awareness of how the positive health and psychological effects of animal keeping could be properly applied to the recovery of people suffering from addiction. There are encouraging initiatives, but there is a lack of a systemic approach to the issue from the side of academic life, professionals and the state, from the protocols, and from the training of people in the helping professions. In Hungary, both psychoactive drug consumption and animal keeping have a detailed and developed legal background, however, the mapping of their connections is still pending. While the literature focuses more on the aggressive actions that addicts may be prone to, practitioners tend to emphasize the supportive force that a companion animal can provide in recovery. In light of all of this, further studies on the subject are recommended, and it would be worthwhile to consider the systematic, more consistent and conscious integration of the use of animals at the legislative level and into some therapeutic protocols.
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Advertising Bans in the Internal Market: Limits of State Competence on the Example of the Advertising Ban on Foreign Gambling in Hungary
12-23Views:260Die ungarischen Werbebeschränkungen für Glücksspiel-Dienstleistungen aus anderen Mitgliedstaaten der EU sind nicht mit den Vorgaben aus dem Unionsrecht vereinbar und können daher aufgrund des Vorrangs des Unionsrechts den Werbenden nicht entgegengehalten werden, die sich auf die Freiheit der Dienstleistungserbringung nach Art. 56 AEUV berufen können. Entsprechend der ständigen Rechtsprechung des EuGH erstreckt sich die Vorrangwirkung auch auf Strafbestimmungen, die an unionsrechtswidrige Normen anknüpfen. Die Unanwendbarkeit der unionsrechtswidrigen Bestimmungen bezieht sich nicht nur auf den in einem anderen Mitgliedstaat ansässigen Dienstleistungserbringer, sondern auch auf die inländischen Werbepartner.
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Limits of Environmental Liability: Summary of the Guest Editor
189-198Views:207This summary is an attempt to demonstrate that despite all the differences in how limits of environmental liability are perceived by the authors of this special issue due to different approaches to environmental liability, a common framework can nevertheless be drawn encompassing them all. Each article of the special issue elaborates some of the aspects of the concept of environmental liability. Despite the differences in the evaluation and assessment by the authors of the role of stakeholders and of the facts having an impact on the concept of environmental liability, it is shown that all of them are analysing the very same subject. The apparent differences are due to the different contexts in which environmental liability is examined and evaluated. Thus, the summary underlines that there is a need for system thinking related to environmental liability.
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Censorship as a Tool Against State Disinformation: Media Freedom Implications of the Russian-Ukrainian War
Views:138Disinformation campaigns originating from Russia have been frequently debated in recent years. Disinformation also plays a major role in the Russian–Ukrainian war that started in February 2022. The issue has been on the agenda in the European Union in recent years, so it is not surprising that among the many sanctions the EU introduced against Russia, action against disinformation was also added. This paper sets out to describe the previously unprecedented ban on Russian media service providers, including the problems the provision creates for freedom of expression. In particular, it will examine the content of the Decision and the Regulation, which prohibited the distribution of the Russian media outlets concerned and the consequences of the EU legislation. It will then go on to critically analyse the provisions from the perspective of freedom of expression, and finally, the relevant judgments of the Court of Justice of the European Union.
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Legal Regulation and Practice of the Non-Material Indemnification and Rehabilitation in the United Kingdom
165-183Views:150The article analyzes the specialties of the English legal system with a focus on the legal regulation and court practice of tort law, and especially the non material indemnification and rehabilitation of the bodily injured. The study starts with the description of the main characteristics of the tort law, the definition and jurisprudence of non material damages, like pain and suffering and loss of amenity and psychological damages are also reviewed in detail with respective court cases. The study also gives an analysis of the connection between tort law and insurance law, how one effects the other. Nowadays the indemnification process of the bodily injured cannot be full without rehabilitation. Like in most of the Western European countries, in the United Kingdom the rehabilitation process is a complex and centrally managed procedure with the help of state institutions and programs.
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Environmental Mediation in Germany
60-77Views:154It has always been a difficult question for the State to ensure effective decision-making processes for instances where public participation is considered to be a requirement. This question might be even more essential when it comes to disputes concerning large-scale projects with environmental impact. When the public is affected by such project, the contractor must be really prudent, otherwise high number of litigation may be initiated afterwards. The very special form of mediation, the so-called environmental mediation may offer a solution to this problem, by allowing all participants to meet and discuss every crucial issues related to projects described above. It is also important to emphasize that not the same requirements apply to environmental mediation and to other civil law related mediation procedures. The aim of environmental mediation would not be less than to improve the quality of public bodies’ decisions.
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The Constitutional Obstacles before the Promulgation of the Rome Statute
45-59Views:368July 17, 1998, can be considered as one of the most important milestones of the international judicial structure: it is the day when the Rome Statute of the International Criminal Court was adopted by 120 states out of 148. Article 86 of Statute explicitly states that „States Parties shall […] cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.” As in the case of every international treaty, the principle of pacta sunt servanda enshrined in Article 26 of the 1969 Vienna Convention on the Law of the Treaties states applies, which explicitly states that “every treaty in force is binding upon the parties to it and must be performed by them in good faith.” As has been pointed out by the Permanent Court of International Justice, contracting states must make all the necessary internal measures which are required to fulfil its international obligations rising from a binding treaty. One could ask, why is this quite obvious argument important in the case of Hungary? Well, Hungary has ratified the Statute but still has not implemented it in its internal legislation. This can be considered as a serious constitutional omission, since if the Court would require the cooperation of Hungary – e.g. in the case of an arrest warrant – and it would not be able to fulfil it because of the lack of the internal legal norms, it would be considered as international legal responsibility of Hungary. In this article, I try to explore the reasons behind this omission and outline the possible solutions.