{"title":"On the Need To Protect Cemeteries and Memorials in Europe","authors":"Agnieszka Wedeł-Domaradzka","doi":"10.47078/2022.2.201-216","DOIUrl":"https://doi.org/10.47078/2022.2.201-216","url":null,"abstract":"The issue of the protection of cemeteries and memorials is fundamental from a legal and historical perspective because it often touches on sensitive issues of complex and tragic past events. However, it is imperative that the remembrance of burial sites and memorials is nurtured and protected. This involves two aspects. The first is the personal well-being of relatives who are buried at a particular place or whose memory is cultivated at a particular place. The second concerns the sense of identity of a given people and awareness of their traditions, cultural values, and history. Therefore, it seems necessary to reflect on the extent to which international instruments, such as the Convention on the Protection of the World Cultural and Natural Heritage, support the protection of cemeteries and places of remembrance. It is also necessary to analyze the interactions between international regulations and national law solutions. Finally, it is worth considering whether this twofold nature of protection is compelling or requires the formulation of de lege ferenda conclusions for both or one of the systems.","PeriodicalId":325719,"journal":{"name":"Central European Journal of Comparative Law","volume":"49 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126687608","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Watch for the Ripples, Not Just the Splash","authors":"B. Kovács","doi":"10.47078/2022.1.137-160","DOIUrl":"https://doi.org/10.47078/2022.1.137-160","url":null,"abstract":"The European Commission’s attempts to end intra-European Union (EU) investment arbitration, and the decisively helping hand lent by the Court of Justice of the European Union (CJEU) have produced massive splashes, rightfully attracting much attention. However, the ripples after the several splashes have had limited effects. This paper briefly outlines the splashes and goes on to analyze the ripples: investment tribunals retaining jurisdiction and issues around recognition and enforcement within and outside the EU. Although the judgments of the CJEU have had limited effects outside the EU, they have made it more difficult to enforce intra-EU awards within the EU and sometimes also outside of it. The study also examines some of the tools used by the EU to effectively shut the door on intra-EU investment arbitration, which mostly burden its Member States, such as infringement proceedings and decisions on unlawful state aid.","PeriodicalId":325719,"journal":{"name":"Central European Journal of Comparative Law","volume":"39 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-02-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129159220","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Protection of Families in National Constitutions, in Particular in the Polish Constitution","authors":"Grzegorz Pastuszko","doi":"10.47078/2022.1.161-175","DOIUrl":"https://doi.org/10.47078/2022.1.161-175","url":null,"abstract":"This article aims to present the familyꞌs legal status in light of constitutional solutions in force in selected European countries, with particular emphasis on Polish regulations. The author aims to present a wide range of regulations functioning in Europe, and at the same time, highlight the similarities and differences between individual countries. An important element of this study is the consideration of Polish legislation, which is to familiarize readers with basic information on the legal situation of Polish families and at the same time show them where the regulations in force in the Republic of Poland fit into European standards, and in which they are original. The article covers the following issues: the constitutional protection of the family, way of understanding the role of the family in society and the state, problem of the constitutional definition of the family, definition of marriage, exercise of parental authority, and legal status of children.","PeriodicalId":325719,"journal":{"name":"Central European Journal of Comparative Law","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-02-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126417259","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Constitutional Dilemmas of Terminating Intra-EU BITs","authors":"Lénárd Sándor","doi":"10.47078/2022.1.177-193","DOIUrl":"https://doi.org/10.47078/2022.1.177-193","url":null,"abstract":"The adoption of the agreement for the termination of intra-EU bilateral investment treaties in 2020 is a big step forward in the long saga of these investment treaties. This agreement aims to overcome every point of discord between the investment agreements and the EU legal order by terminating both intra-EU bilateral investment treaties and the pending dispute settlement procedures that arose from them. In light of the landmark 2018 Achmea judgement, the agreement asserts that the key role should be given to the Court of Justice of the European Union in this area. This is a great endeavour since almost one-fifth of the investment arbitrations worldwide came from disputes within the European Union. However, it does not seem that the agreement will have the final say since constitutional questions were raised concerning its application. In this spirit, this article briefly outlines the legal and constitutional dilemmas intra-EU bilateral investment treaties pose in the European Union. Then, it outlines the contours and major provisions of the termination agreement, especially with regard to the pending arbitration proceedings. In light of a concrete case brought before the Hungarian Constitutional Court, the article explores the constitutional dilemmas raised by the termination agreement. It highlights three major questions: the international legal aspects, the question pertaining to the European judicial dialogue, and the constitutional principle of non-retroactivity. The article takes into account the major theoretical aspects of each of these dilemmas.","PeriodicalId":325719,"journal":{"name":"Central European Journal of Comparative Law","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-02-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114749211","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Subsidiarity and Fundamental Rights Protection in the United States","authors":"I. Wurman","doi":"10.47078/2022.1.241-257","DOIUrl":"https://doi.org/10.47078/2022.1.241-257","url":null,"abstract":"Since the middle of the last century, fundamental rights protection in the United States has largely been the domain of the federal government, and primarily its Supreme Court. Under the Fourteenth Amendment to the United States Constitution, which guarantees “due process of law,” the United States Supreme Court has assumed for itself the role of defining fundamental rights even if such rights are not specifically enumerated in any constitutional text and requiring all states to abide by such rights, a concept referred to as “substantive due process.” It has also “incorporated” the Bill of Rights in the federal Constitution against the state governments, even though such rights historically only bound the federal government. These doctrinal developments were likely mistakes, at least if Americans purport to be bound by the original meaning of the Fourteenth Amendment to their Constitution. “Due process of law” was not a substantive guarantee of unenumerated rights or against unreasonable legislation. In antebellum America, judicial courts did review local or municipal legislation to ensure reasonableness, but not the legislation of the states themselves except in narrow circumstances. Many American scholars believe that the “privileges or immunities” clause of the Fourteenth Amendment, instead of the due process clause, is what was intended to incorporate the Bill of Rights against the states and transfer fundamental rights protections to the federal government. This, too, is likely incorrect, as that clause was likely a guarantee merely of equality, leaving it up to the state governments otherwise to define and regulate the content of civil rights. This account, if correct, suggests that the Fourteenth Amendment, while guaranteeing the fundamental right to equality, otherwise respected the principle of subsidiarity even in the protection of fundamental rights, and provides insights for the ongoing European debate over fundamental rights protection.","PeriodicalId":325719,"journal":{"name":"Central European Journal of Comparative Law","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-02-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125774982","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Intra-EU BITs in Light of the Achmea Decision","authors":"V. Korom","doi":"10.47078/2022.1.97-117","DOIUrl":"https://doi.org/10.47078/2022.1.97-117","url":null,"abstract":"In its Achmea decision rendered in March 2018, the Court of Justice of the European Union declared that arbitration clauses contained in intra-EU bilateral investment treaties are incompatible with EU law. The Court’s judgment brought to an end the decade long legal battle between the Member States and the European Commission over the EU law compatibility of these treaties. In response to Achmea, the majority of Member States have agreed to terminate their treaties in order to eliminate the EU law incompatibility identified by the Court. At the same time, the political battle over the need for the special protection of cross-border investments in the EU continues. This paper looks back at the political and legal controversy that was sparked by intra-EU bilateral investment treaties and culminated in the Court’s Achmea judgment, and briefly discusses the practical consequences of Achmea for intra-EU investment protection.","PeriodicalId":325719,"journal":{"name":"Central European Journal of Comparative Law","volume":"70 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-02-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132054080","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Axiology of the Constitution of the Republic of Poland of 2 April 1997","authors":"Dawid Kostecki","doi":"10.47078/2022.1.119-135","DOIUrl":"https://doi.org/10.47078/2022.1.119-135","url":null,"abstract":"The fact that almost a quarter of a century has passed since the adoption of the Polish Constitution contributes to a reflection on its axiology. This article prompts the reinterpretation of the critical value that can be ‘decoded’ from the Basic Law. It seems that authors of the supreme law of the Republic of Poland were initially guided by slightly different ideals; however, broad case law has become a test of the timelessness and timeliness of the Constitution of 2 April 1997. From this perspective, the question of grounds for an amendment of the basic law is highly current and pertinent. However, this question seems secondary to an attempt to decode the constitutional values forming the foundation of the Polish legal system. In light of the above reflections, have the values pursued by authors of the Constitution become real, or have they just become a redundant ornament in the legal erudition devoid of any practical value? The search for answers should be embedded in an appropriate context or the will of the historical legislator. However, the author believes that the interpretation of a legal text should keep pace with the times; this is why a dynamic interpretation is extremely relevant.","PeriodicalId":325719,"journal":{"name":"Central European Journal of Comparative Law","volume":"108 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-02-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122726876","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Dialogue on the Future of Europe: Is Enlargement a Key to the Future?","authors":"Boglárka Bólya, Ákos Bence Gát, Dorottya Collet-Retkes, Márta Benyusz","doi":"10.47078/2022.1.261-271","DOIUrl":"https://doi.org/10.47078/2022.1.261-271","url":null,"abstract":"This article concludes the presentations made at and the main lessons drawn from the international conference on Western Balkan enlargement held on December 6, 2021, within the framework of the pan-European dialogue on the future of Europe. The event was the fourth high-level international conference on the Future of Europe co-organized by the Ferenc Mádl Institute and the Ministry of Justice, and was attended by representatives of the European Union (EU), Hungarian, Serbian, and Slovenian politicians; and representatives from academia. The article briefly presents the EU context and the background of the enlargement in the Western Balkans. The presentations at the conference—almost without exception—highlighted the issues of credibility, political, economic, security, and strategic interests of the future of Europe in thinking about the future of the enlargement. Even though there are some slight differences regarding their approach to specific issues related to the advancement of European integration of the Western Balkans, every participant stressed the importance and urgency of their accession. The Hungarian government’s stance consisting of a firm support to the EU accession of the Western Balkans based and justified on their merits and the accomplishment of the required criteria, especially with regard to Serbia, was reaffirmed. In view of all this, the organization of the international conference by the Ferenc Mádl Institute of Comparative Law and the Ministry of Justice can be considered very timely and proactive.","PeriodicalId":325719,"journal":{"name":"Central European Journal of Comparative Law","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-02-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116639853","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Christian Values in the Constitutions of Croatia and Slovenia","authors":"F. Staničić","doi":"10.47078/2022.1.203-220","DOIUrl":"https://doi.org/10.47078/2022.1.203-220","url":null,"abstract":"This paper will strive to show that Christian values can be found in almost every constitution in the western world, although explicit invocations of Christian values are quite rare. There are constitutions that use invocatio dei and those that create state churches, but such constitutions represent a minority among constitutions. Croatia and Slovenia make good models for the purpose of this paper as they represent very similar and, at the same time, very different states with regard to the chosen model of state-church relations. The paper will show that, notwithstanding their different constitutional setup of state-church relations, Croatian and Slovene constitutions do not differ much with regard to the presence of Christian values in them.","PeriodicalId":325719,"journal":{"name":"Central European Journal of Comparative Law","volume":"106 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-02-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128535007","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Christian Values and the Protection of the Family in the Romanian Constitution and the Case Law of the Romanian Constitutional Court","authors":"A. Varga","doi":"10.47078/2022.1.221-240","DOIUrl":"https://doi.org/10.47078/2022.1.221-240","url":null,"abstract":"The article starts from the hypothesis, which it seeks to prove, that legal systems, laws and especially constitutions are not value-neutral but rather defined by values. These values may be moral, political or religious. In Europe and the Western civilisation, a significant part of these values has been shaped by the Christian religion, culture, outlook on life and behaviour. As a narrower context, the article focuses on the moral and political values of the Romanian constitution, their Christian spirit and origin, and the related theoretical and constitutional interpretations. In the analysis, the author concentrates on human dignity, the free development of the human personality, and justice as the main values, as well as the fundamental rights related to them and the principles that define the organisation of the state. The influence of Christian values, thinking and perceptions can be seen in all of these. The author analyses in particular the Christian constitutional and civil law rules governing the family and the marriage on which it is based.","PeriodicalId":325719,"journal":{"name":"Central European Journal of Comparative Law","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-02-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129352527","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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