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About the necessity of a new criminal act: or notes on the criminal offense of agreement in restraint of competition in public procurement and concession procedures
99-121Views:408The criminal act included in Subsection 1 Section 420 of Act C of 2012 on the Criminal Code (hereinafter referred to as Criminal Code) is the only one in the entire Criminal Code where the disposition includes the public procurement procedure as an element of the criminal act. In spite of this, further punishable criminal acts may be associated with the public procurement procedure which are inevitably committed or completed in terms of the legal stadia of the crime, provided that any criminal relationship is established between the parties when public funds are allocated during the course of a tendering procedure.
The non-exhaustive examples of the – examined – conduct subject to proceedings show that the basis of an unfair public procurement procedure is the committing of any of the corruption criminal offenses, and then, after the public procurement procedure had been concluded, the felony of agreement in restraint of competition will constitute the criminal act without prejudice to the ne bis in idem principle, i.e. the criminal act specified in Subsection (1) Section 420 of the Criminal Code is not the definition of public procurement corruption. In order to verify this, I will outline what I personally understand as public procurement corruption.
The primary aim of the study is to support the argument that the delict referred to above is unable to fulfil the intention of the legislator, namely decreasing public procurement corruption. As a secondary focus, the reasons behind the necessity of a new criminal act are referred to.
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Public Procurement Issues in the Field of Environmental Liability
175-188Views:175In public procurement, the principle of responsible management of public funds applies (Section 142 of the Public Procurement Act). This does not mean that only the techniques of fast-acting, quasi-abbreviated announcements or accelerated public procurement procedures are preferred, but on the contrary also direct tenders without general public procurement procedures are possible. The basis for efficient and transparent public expenditure at least are public procurement procedures that adhere to minimum procedural deadlines and create competition, i.e. facilitate the participation of as many bidders as possible. On the other hand, remedying environmental damage caused by third parties requires that the award of appropriate protection and remedial measures to the relevant contractors and the associated compliance with public procurement procedures do not cause delays that could contribute to extreme environmental degradation. In these cases, it is necessary to check whether there is a case of extreme urgency (imminent danger) and whether the award procedure can be omitted in whole or in part. In line with the above considerations, the present study, with reference to the Hungarian and EU regulations for public procurement, as well as comparative law with the inclusion of German and Austrian examples, examines whether the Hungarian legislator has additional leeway to prevent and quickly eliminate urgent or permanent serious environmental damage in accordance with procurement law.
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Questions of organizing working hours in regard to public holidays
134-147Views:154The study shows the dogmatic effect of the specific legal nature of public holidays on the organization and remuneration of working time. This effect can be seen in the duality that the public holiday affects (reduces) the duration of the parties' performance on the one hand, but also affects the conditions of actual performance, mainly because working time can only be prescribed under special conditions. But this duality also determines the dogmatics of public holiday pay rules: the legislature compensates for the reduced working hours due to public holidays, on the one hand, and the “inconvenience of work” that an employee performs on public holidays, on the other.
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Issues of Public Social Responsibility in Great Britain and Hungary
122-136Views:330Social responsibility has undergone significant development in recent years. The concept has spread into every aspect of life: personal life, the economic sphere and finally the public sector. It is proven that currently many states are struggling with various problems in the public sector. We believe that public social responsibility is one of the guidelines that is able to help, for example, in the realization of a comprehensive public administration reform. This paper examines public social responsibility in Great Britain and Hungary. Even though we have the example of the United Kingdom to follow, their way of practicing PSR may not be suitable for the rest of the European countries because of the fundamental differences in our legal systems and mindsets.
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Looking for Solutions of the Hungarian Legislation of Public Procurement
24-46Views:109The Hungarian public procurement law will be renewed from 1th January 2012. Because of the new Act on Public Procurement (PPA) the development of the legislation of the last years should be reviewed. What kind of problems did the legislature have to solve? How could the specificities of an adequate public procurement act be defined? How does the judicature affect the legislature? This study tries to give answers from the point of view of the judicature. It examines the results of legislation, the experiences of practice, the earlier amendments and the most essential attributes of the new PPA.
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Municipal Waste Management and the Hungarian Model
47-66Views:122There 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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Personal data protection in the public sector in frame of the GDPR
39-54Views:430The European Union has finished the reform of the European data protection rules, and the main result is the General Data Protection Regulation (GDPR), which entered into force after a two-year period on 25 May 2018. The GDPR draws special attention to the protection of personal data not only in the private-, but also in the public sector. It introduces several significant changes and restrictions, but after almost a year of being in force, there is still some uncertainty as to how we can apply its provisions, especially for public authorities and bodies. Therefore, the aim of this paper is to explore the relevant data protection provisions of GDPR regarding the public sector and to clarify any misunderstandings in this field.
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European Public Administration of Consular Protection
49-65Views:161The organizational issues of European public administration are especially apparent when the cooperation between the EU and its Member States is considered. The regulation of administrative institutions and bodies is fundamentally a subject of national competence. The European public administration for consular protection is based on the cooperation of the organs and authorities on both levels of European public administration. It is regulated as a framework which leaves a wide range of freedom for Member States to settle the missing details and also leaves too much room for voluntarism. All this makes the system unpredictable and despite the application of the principle of loyal cooperation and solidarity, the European administrative structure of consular protection is incompatible with the rule of law and the principle of good administration, and even with the principle of loyal cooperation and solidarity.
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Change of Legal Relations: Consequences for Labour Law of the Restructuring of Public Services
81-103Views:199Changes in the organization of public services often have the consequence of changing the employment relationship of those employed among them. The change is often caused by the transformation of civil service legal relations into private employment law. In the background of changes are usually the legislature's intention to maintain legal relations with the successor employers. This intention is realized in Hungarian labor law and civil service law by various legal and technical methods. The paper reviews these in different areas of public services.
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Environmental Liability Law: Environmental Civil Experts’ view
86-112Views:135Environmental liability legislation, both the ELD in Europe and CERCLA in US, is burdened with significant compromises, but even if so, they are too leniently implemented. Moreover, rather scarce data are available on the liability cases and on the status of polluted sites, therefore the system is unable to amend itself. There is no reason to be surprised: expenses of protection or remedy of the polluted sites are enormous, the concerned industries would get into a poor competition position in the market if faced with too stringent liability. In the exceptional cases when their deeds are revealed and enforcement actions start, they still might retreat behind the bastions of limited responsibility of their companies. In such situations public participation is a vital element of any progressive outcomes. In the present study we examine the efforts of J&E, a network of public interest environmental lawyers to contribute to moving out the European environmental liability systems from their stalemate position and enhance their effectiveness.
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Claims for Compensation Based on the Infringement of Regulations Applicable to Procurement Procedures
11-30Views:141The study is concerned with those claims for compensation, which are based on the infringement of regulations applicable to procurement procedures. After the placing of the compensation within the public procurement remedy system, we outline those conducts, which can cause damage in the course of the public procurement procedure (e.g. contracting authority’s withdrawal from the public procurement, unlawful withdrawal of the tender, failing of contract conclusion, etc.). during the review of these cases, we heighten the differences existing between the classical civil law claims and the claims based on the infringement of public procurement rules.
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Higher Level Prevention as Public Value in Competition Law
133-152Views:113The problem-solving mechanism developed by Sparrow in the field of social regulation could also be implemented in competition law in order to prevent the recurrence of competition problems in a given industry. Competition authorities’ (like protection-type agencies) aim is the creation of public value. This is measured in terms of their ability to solve social problems by preventing or controlling harms. In the case of competition authorities, the public value is achieved by ensuring a competitive market environment through the curtailment of market power and the removal of barriers to entry. The public value of prevention is especially important when markets tend to become concentrated. In order to achieve the maximum preventive effect, all prevention tools must be operated effectively. This includes imposing structural remedies or switching to ex-ante prevention (regulation) when ex-post enforcement proves ineffective.
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Collective Wage Bargaining and the Related Challenges of Labour Law and Labour Relations Regarding Public Services Operated by Publicly Owned Companies
148-161Views:230In the case of state- and municipality-owned companies providing public services, the 2021 salary increase was settled with a six-monthly delay, which was manifested in three-year, so-called “income policy” agreements. However, for the purposes of this paper, the process became relevant mainly due to the aspect of labor relations and it also became suitable for a legal science analysis. During the course of this, within the available space limits, I discuss the process of salary negotiations (with its labor law content and consequences), the theoretical bases of the different collective labor law regulations regarding public assets, and finally, the newly emerging practical issues related to the strike rights regulation of this sector.
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The framework for budgetary expenditure of local governments between 1993–2010 and after 2010
79-97Views:504The present study is an analysis of the budgetary expenditures of the Hungarian local governments between 1993 and 2010. One of its main objectives is the presentation of the most significant local public functions. The problem of borrowing and debt management of local governments cannot be ignored in this study. Based on the results of the study it is clear that the operational expenditures were pre-dominant meanwhile the local governments could not dedicate more money to the investment in different domains. The most important failures of the previous system were the unfavourable allocation of duties and the decreasing central support. After the adoption of the new Municipal Law, important financial changes put in place. As a tendency of the past few years it can be stated that the scope of local public tasks is narrowing (e.g. the primary education and the social security system were centralized) whilst the budgetary expenditures of local governments are decreasing. As a main conclusion the author states that the local financial autonomy was reduced during the last years.
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Regulation of Autonomous Vehicles in Public International Law, in particular on the Subject of International Road Traffic
37-49Views:156The study examines the regulation of autonomous vehicles in public international law, more specifically the regulation related to the territory of international road traffic. Within this topic, the study defines autonomous, or in other words, self-driving vehicles, reveals the relation between these kind of vehicles and public international law, describes the results and steps made so far toward uniform regulation and analyzes the possibilities for future regulation. In connection with the latter, the study concentrates on the question of international treaties and would like to answer whether it is necessary and possible to conclude an international treaty on autonomous vehicles.
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PPP as an umbrella term
62-78Views:119In this study the author examines the legal institution of PPP (Public Private Partnership) in Western legal cultures. As a result of the analysis, the author finds that PPP is a blanket term which includes all contracts concluded between public and non-public sectors where the subject of the contract is the implementation of a public task and the term of the contract is relatively long. The second part of the study collects and analyses the possible classifications of PPP contracts, including the short introduction of the most typical PPP contracts.
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The Financial Supervisory Agencies of the European Union and the Question of the European Administrative Procedure
Views:201The agency-type organs have a history of several decades in the European Union. In the last few years there were two different tendencies leading towards the establishment of regulatory (or decentralised) agencies with strong powers, especially in the field of financial supervision. The first of these tendencies was the fall of the neoliberal dogma of the self-regulating market – as a consequence of the 2008 financial-economic crisis – which led to the priorities of the decision-makers being reset in favour of a stricter regulation than that of the New Public Management era. The other tendency was that the debate about a European administrative law started to live. The European Supervisory Authorities of the financial sector, which were established after the crisis, are regulatory agencies with strong powers. However, some of their competences are so strong, that it poses questions regarding the legal protection of the participants of the market. Moreover, the case-law related to their function seems to overwrite the accepted norms of delegation of competences within the institutional framework of the European Union.
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Sustainability – Law and Public Choice
239-246Views:85Book review on Bándi Gyula–Szabó Marcel–Szalai Ákos: Sustainability: Law and Public Choice. (Europa Law Publishing, Groningen, 2014.)
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Harmonization of Arbitration Laws in some Asian and European Countries
68-77Views:162The present paper studies the relationship between domestic and international arbitration laws and the harmonization factor amongst some Asian and European jurisdictions. During the last decades, there has been a significant change and globalization in the world and with the expansion of businesses and trade a better dispute resolution mechanism is required in order to maintain the harmony in international trade. It has become a necessity to balance the domestic arbitration laws with the international ones. This brief paper identifies and comments on some of the areas where differences remain including differences in recognition and enforcement of arbitral awards in various jurisdictions over the public policy defence, and where further examination and research to reach and solve disputes amicably might be useful.
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Environmental Mediation in Germany
60-77Views:121It 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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About the Costs of Public Procurements
103-127Views:110This study summarizes the basic types of costs which are related to public procurements and which are based on expressed legal regulations. It analyses the costs of tender documentation, the experts, the tender guarantee, the mandatory examination of the notice and the following legal institutions which are related to the legal remedies: the administrative service fee and the fine. The article compares the solutions of other countries: it examines the regulation of fees and the consideration of tender documentation. The Polish, the Austrian and the german examples show that the Hungarian legislator could improve the Hungarian regulation.
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3P and the Hungarian Local Governments – Defects of a Legal Institution’s Application
80-96Views:82It’s a huge challenge to qualify the operation of an organised society’s needs especially because of the limited resources. The task above has put pressure on the states since the middle of the XXth century. To solve the pervious problem the states started to find new, non-traditional, alternative tools, legal institutions which are able to include other sectors resource (e. g. private sector’s) into the provision of the public duties. One of these alternative legal institutions is the Public-Private Partnership (PPP). The study tries to answer the question: what results has adapted this legal tool by the Hungarian local governments.
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Human Rights as Fundamental Sources of Patients’ Rights in Light of the Development of Hungarian and German Laws
157-168Views:235Medical practice affects human life and health, which are not just some of the key social values, but actually express the existence of a human being. Therefore, it is a requirement to set the legal standards to guarantee the preservation and respect of human rights during medical treatment. Patients’ rights provide specific types of human rights in the area of patient care. The German legal system grants the preservation of these rights in a contractual framework that cannot be breached. In Hungary, patients’ rights are listed in the Public Health Act. Despite the diverse methods in regulating patients’ rights, the underlying public policy considerations are the same in both systems. The goal of this study is to provide a comparative analysis on the development of the German and the Hungarian regulation of patients’ rights focusing on the consideration of human rights.
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Disclosure of the Data of State-owned Companies in Hungary and Germany: Similarities and Differences
83-101Views:57The article analyses in a comparative manner the way the publication of data works in Hungary and Germany in the case of state-owned companies. The subject of the analysis is furthermore how the transparency of public property is compatible with the functioning of the market and the protection of trade and business secrets. The article devotes special attention to the issue of the relationship between the request for data in the public interest and trade secrets, and, whether the disclosure of such data may be refused on the basis of avoiding potential business damage. Given that the disclosure of data with public interest and its accessibility are inseparable from the freedom of information, the relevant laws in the countries subject to analysis are also presented. The article highlights the exemplary solutions of the German legal system and, finally, compares the similarities and differences in the regulatory concepts of the two legal systems.
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Current Challenges of Confidentiality and Publicity in the View of Information Security
24-41Views:150The 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.