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The constitutional identity of the member states: False evidence or constitutive element of a new architecture of the Union? 成员国的宪法身份：虚假证据还是联盟新架构的组成要素？
Hungarian Journal of Legal Studies Pub Date : 2022-12-16 DOI: 10.1556/2052.2022.00387
Alain Delcamp
{"title":"The constitutional identity of the member states: False evidence or constitutive element of a new architecture of the Union?","authors":"Alain Delcamp","doi":"10.1556/2052.2022.00387","DOIUrl":"https://doi.org/10.1556/2052.2022.00387","url":null,"abstract":"The notion of ‘identity’ once seemed perfectly obvious and applied mainly to individuals. A spectacular evolution of the notion could have been considered in recent years. In the social sciences where it was associated with the notion of group but, after having invaded the public debate, it has now reached the law domain. It now appears in the debates and even the decisions of the constitutional courts of the member states of the European Union. This is a general movement which is part of a climate in which, to varying degrees, there is expressed dissatisfaction with regard to the operation of the institutions of the Union and, more particularly, their mode of creation of law, as soon as it benefits from the principle of primacy affirmed by the Treaties.The purpose of this article is to gather and evaluate the information available through the various case law and comments, in order to better clarify the notion of constitutional identity and assess its effectiveness. The concept remains contested, and its use has not yet resulted in significant consequences, but its study is an opportunity to suggest improvements in the dialogue between the constitutional courts and the Court of Justice of the European Union; to also ask whether the notion of ‘constitutional identity’ could not be a valuable tool in redefining the relationship between the Union and the Nations that compose it.","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-12-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43229545","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}
引用次数: 0
Constitutional identity as a normative constitutional concept 宪法认同是一个规范性的宪法概念
Hungarian Journal of Legal Studies Pub Date : 2022-12-16 DOI: 10.1556/2052.2022.00390
Zoltán Szente
{"title":"Constitutional identity as a normative constitutional concept","authors":"Zoltán Szente","doi":"10.1556/2052.2022.00390","DOIUrl":"https://doi.org/10.1556/2052.2022.00390","url":null,"abstract":"Although constitutional identity is nowadays invoked by European states primarily against the extension of the powers of the EU institutions, it can also be understood as a substantive concept of national constitutional law. This article deals with constitutional identity as a normative constitutional concept. In this respect, the problem is the same as that which arises in the relationship between EU law and domestic law: namely, its fundamental indeterminacy and the possible arbitrariness of its application. The author argues that, therefore, constitutional identity can only be plausibly invoked if satisfactory answers can be given to the questions of exactly whose identity it is, what its source is, who and how its content may define, and what the constitutional function of this category is. The second part of the study examines the Hungarian constitutional identity according to this analytical framework, and concludes that, although its subject is the Fundamental Law, its definition, content and constitutional function are unclear and contradictory. Consequently, the current concept of constitutional identity in Hungary raises a number of problems for which no plausible answers have yet been found, and it is highly doubtful whether the doctrinal and practical difficulties related to it can be resolved at all.","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-12-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41481846","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}
引用次数: 2
Constitutional identity, identities and constitutionalism in Europe 欧洲的宪法认同、身份认同与宪政
Hungarian Journal of Legal Studies Pub Date : 2022-12-12 DOI: 10.1556/2052.2022.00391
Laurianne Allezard
{"title":"Constitutional identity, identities and constitutionalism in Europe","authors":"Laurianne Allezard","doi":"10.1556/2052.2022.00391","DOIUrl":"https://doi.org/10.1556/2052.2022.00391","url":null,"abstract":"The notion of Constitutional Identity has attracted much scientific interest. However, it obscures, sometimes in a reductive manner, another legal reality: the existence of other identities, such as national, linguistic, and collective identities. Indeed, a reading of constitutions and constitutional court's decisions in Europe reveals a complex and evolving system of identities behind Constitutional Identity.This paper argues that identity is not just a political argument but also a legal and normative one. From a constitutional law perspective, two main categories can be distinguished: a real identity existing prior to the constitutional norm, and a fictitious identity subsequent to the constitutional norm. These identities are interdependent and are linked to each other; the constitutional courts referring to Constitutional Identity in order to maintain this interweaving. Therefore, Constitutional Identity plays an argumentative function and, by determining the interpretation of constitutional norms and the meaning of constitutional concepts, it gives birth to different forms of constitutionalism in Europe.","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41723357","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}
引用次数: 0
Constitutional identity, a new legal Babel in Europe 宪法认同：欧洲新的法律巴别塔
Hungarian Journal of Legal Studies Pub Date : 2022-12-09 DOI: 10.1556/2052.2022.00398
Marie-Élisabeth Baudoin
{"title":"Constitutional identity, a new legal Babel in Europe","authors":"Marie-Élisabeth Baudoin","doi":"10.1556/2052.2022.00398","DOIUrl":"https://doi.org/10.1556/2052.2022.00398","url":null,"abstract":"Constitutional identity appears as an increasingly frequent argument in the case law of constitutional courts in Europe. For many authors, it is a way to initiate dialogue with the European Union on equal terms. In this article, we argue that dialogue is not always a source of harmony, because the terms of the interaction are not exactly the same in Luxembourg and in the member states of the European Union. The Court of Justice of the European Union interprets the national identity of the member states in a way that is not always similar to the content given by the States to their constitutional identity. As a consequence, constitutional identity may allow the Member States to strengthen the specificity of their constitutional rules and, in turn, weaken the unity of European constitutionalism. Far from being an Esperanto, constitutional identity rather appears as the new legal Babel in Europe.","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-12-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49399069","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}
引用次数: 0
The Hungarian sword of constitutional identity 匈牙利的宪法认同之剑
Hungarian Journal of Legal Studies Pub Date : 2022-12-09 DOI: 10.1556/2052.2022.00380
Ernő Várnay
{"title":"The Hungarian sword of constitutional identity","authors":"Ernő Várnay","doi":"10.1556/2052.2022.00380","DOIUrl":"https://doi.org/10.1556/2052.2022.00380","url":null,"abstract":"In its ‘refugee quota decision’ of 2016 the Hungarian Constitutional Court (HCC) ‘invented’ its competences of ultra vires, sovereignty and constitutional identity controls. The sword of constitutional identity (CI) has been forged against foreign – first of all – EU law. In the development of the new concept the interplay between the Government, the Government-dominated parliament and the Constitutional Court loyal to the Government seems to be evident. The textual analysis of the relevant HCC's decisions proves that the Hungarian Constitutional identity (HCI) contains legal acts in force – including the Fundamental Law (constitution) and the Founding treaties of the EU -, legal acts ‘not in force but valid’ and activities related to the fight for independence of the Hungarian State.As far as the nature of the HCI is concerned, the article demonstrates the strong relationship with sovereignty control, and the ‘historical constitution’ and emphasises the HCC's statement according to which the CI is not created by the constitution, it is merely acknowledges it.Given the large number of elements identified as part of the HCI, its openness to the inclusion of further elements, and the questionable nature of the HCI, the author submits that the concept is inappropriate for any meaningful constitutional review.The HCC – at least until now – despite being invited to do so, has refused to use the sword against EU secondary law and the judgment of the European Court of Justice, and avoided overt constitutional conflict. However, this does not mean that the HCC is ready to enter into sincere dialogue with the court in Luxembourg.","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-12-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41738857","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}
引用次数: 3
Uncertain future of transatlantic data flows: Will the United States ever achieve the ‘adequate level’ of data protection? 跨大西洋数据流的不确定未来:美国能否达到数据保护的“适当水平”?
Hungarian Journal of Legal Studies Pub Date : 2022-12-06 DOI: 10.1556/2052.2022.00376
Asli Alkiş-Tümtürk
{"title":"Uncertain future of transatlantic data flows: Will the United States ever achieve the ‘adequate level’ of data protection?","authors":"Asli Alkiş-Tümtürk","doi":"10.1556/2052.2022.00376","DOIUrl":"https://doi.org/10.1556/2052.2022.00376","url":null,"abstract":"Personal data can be transferred to third countries without any additional measures by achieving the European Commission's adequacy decisions if the third country's data protection level is deemed essentially equal. Only a few countries have obtained this decision, and the United States is no longer one of them, since the European Court of Justice ruled in the Schrems II case that the Privacy Shield Decision could not provide ‘essentially equivalent’ protection for personal data to that provided by European Union legislation, and hence was invalid. This article will discuss what the term ‘essentially equivalent’ means and what it covers. Finally, it will examine and attempt to answer the question of whether the United States will ever reach the mentioned adequate level by comparing the examples of two adequate countries, the United Kingdom and Japan.","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-12-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42486938","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}
引用次数: 0
The impact of EU identity on constitutional identities • 欧盟认同对宪法认同的影响
Hungarian Journal of Legal Studies Pub Date : 2022-12-05 DOI: 10.1556/2052.2022.00377
Lencka Popravka
{"title":"The impact of EU identity on constitutional identities •","authors":"Lencka Popravka","doi":"10.1556/2052.2022.00377","DOIUrl":"https://doi.org/10.1556/2052.2022.00377","url":null,"abstract":"Since the Maastricht Treaty, two questions remain: what is the EU, and is there such as thing as an EU identity? Because of its specific nature, and in view of the political accession criteria, it seems there is an EU political identity. Consequently, the purpose of this article is to evaluate whether this EU political identity has had an impact on Member States' constitutional identity: because they were the latest countries to accede to the EU, but also because they were under a specific monitoring process, Bulgaria and Romania are the best examples of an EU influence, but only of a limited one.","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-12-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41638253","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}
引用次数: 0
Empowering consumers: Towards a broader interpretation of the vulnerable consumer concept in the European Union 赋予消费者权力:对欧盟弱势消费者概念的更广泛解释
Hungarian Journal of Legal Studies Pub Date : 2022-12-05 DOI: 10.1556/2052.2022.00337
Dániel Szilágyi
{"title":"Empowering consumers: Towards a broader interpretation of the vulnerable consumer concept in the European Union","authors":"Dániel Szilágyi","doi":"10.1556/2052.2022.00337","DOIUrl":"https://doi.org/10.1556/2052.2022.00337","url":null,"abstract":"The European Union, while acknowledging the pitfalls of problematic consumer markets, seems largely unwilling to deviate from an inflexible standard of consumer behaviour based on the ideal of the average consumer as a reasonably well-informed and observant market participant. The article aims to contrast this high consumer standard with the alternatives offered by the vulnerable consumer concept. The first part of the article deals with the notion of the average consumer as defined in European Union law and its interpretation by the European Court of Justice, particularly in cases concerning problematic markets. This is followed by a brief analysis of two potential interpretations of consumer vulnerability developed in the consumer protection literature. The final chapter examines in more detail the appearance of a singular major exception to the average consumer concept within the European Union consumer protection regime: the narrow scope of consumers acknowledged as ‘particularly vulnerable.’","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-12-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48794644","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}
引用次数: 0
Navigating the nexus between UNCLOS and the sustainable development goals: Perspectives from transitions in Norway's ocean governance regime 把握《联合国海洋法公约》与可持续发展目标之间的关系：挪威海洋治理制度转型的视角
Hungarian Journal of Legal Studies Pub Date : 2022-11-22 DOI: 10.1556/2052.2022.00358
Ioannis Fasoulis
{"title":"Navigating the nexus between UNCLOS and the sustainable development goals: Perspectives from transitions in Norway's ocean governance regime","authors":"Ioannis Fasoulis","doi":"10.1556/2052.2022.00358","DOIUrl":"https://doi.org/10.1556/2052.2022.00358","url":null,"abstract":"Oceans and marine resources represent an invaluable source of life and well-being for humanity. Despite their contribution, oceans are constantly affected by human activities such as overfishing, shipping, and resource extraction, thus jeopardizing the viability of marine ecosystems. Periodically, a series of global initiatives led by the United Nations have sought to reverse these negative effects and safeguard sustainable ocean use. The United Nation's Law of the Sea (1982, UNCLOS) is a prominent undertaking in this direction, as it has created the legal framework for sustainable ocean governance. Norway, an ocean nation, has been a strong supporter of this international treaty, but also of the recent sustainable development goals (SDGs), which have typically complemented UNCLOS in the global quest for ocean sustainability. In this context, this paper delves into and posits the synergies and interactions between UNCLOS and SDGs and describes the related shifts in Norway's ocean governance regime.","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-11-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45185763","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}
引用次数: 0
Legal aspects of the prohibition of wild animal circus training: Evidence from the Czech Republic 禁止野生动物马戏团训练的法律方面：来自捷克共和国的证据
Hungarian Journal of Legal Studies Pub Date : 2022-09-13 DOI: 10.1556/2052.2022.00357
L. Novotný
{"title":"Legal aspects of the prohibition of wild animal circus training: Evidence from the Czech Republic","authors":"L. Novotný","doi":"10.1556/2052.2022.00357","DOIUrl":"https://doi.org/10.1556/2052.2022.00357","url":null,"abstract":"\u0000 The study examines the legislative issues associated with providing a legal solution to the problem of the circus training of wild animals in the post-communist context. These issues are demonstrated using the example of the Czech Republic. In 2020, the country passed a comprehensive amendment to Act No. 246/1992 Coll. on the Protection of Animals Against Cruelty, which prohibits, among other things, the training of wild animals in circuses with effect from January 2022. The study focuses on the following research questions: What are the main determinants of the prohibition of wild animal training? and, What were the main arguments with respect to the wild animal training prohibition mentioned by politicians during the parliamentary debate? The data analysed here consist of parliamentary debates and texts presented by institutions advocating for or against the ban.","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-09-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49166627","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}
引用次数: 0
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