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Abstract

Even with extensive case law before the cjeu on the notion of ‘waste’, questions remain around classification of substances as waste and end-of-waste status of certain waste streams. This uncertainty hampers the transition to a circular economy. In the case at hand, a mixture of sludge from paper production and sludge from a municipal wastewater treatment plant was used as fuel for the paper plant. Although the majority (97%) of the mixture came from the paper production process and therefore would be a by-product (and hence not waste), and only 3% of the mixture stemming from the municipal waste water facility qualify waste, the mixture as a whole is assumed to be waste. Whether the ‘end of waste-criteria’ of Article 6(1) Waste Framework Directive can successfully be applied to the case, is up to the national court to decide. In addition, the case is interesting as an affirmation of the ‘Rheinmühlen/Elchinov-doctrine’.

Open Access
In: Journal for European Environmental & Planning Law
Author:

Abstract

Empirical analysis shows that judges at the International Court of Justice (ICJ) tend to vote (85 to 90%) for their country of nationality. In order to outweigh this imbalance – already predicted in 1920 when drafting the Statute of the Permanent Court of International Justice (PCIJ), the predecessor of the ICJ – the decision was taken to allow states which do not have a permanent judge of their nationality on the bench to nominate a judge ad hoc. The nationality bias is an important legitimacy issue for the Court. Inspired by Judge Thomas Buergenthal’s public appeal and along the lines of Judge Bruno Simma’s finding on the shift from ‘bilateralism to community interest in international law’, this article submits that a national judge at the ICJ should refrain from being a national judge by recusing herself when her home country is party to a case. In doing so she could protect herself from this nationality bias, which is a severe threat to (the appearance of) her impartiality and independence. Arguably, some one hundred years after the decision was taken against mandatory recusal on the basis of nationality when the Statute of the PCIJ was drafted, the international community is now demanding that individual judges of the principal judicial organ of the United Nations serve the community interest independently and impartially.

Open Access
In: Austrian Review of International and European Law Online

Abstract

For many decades, the United Nations Convention on the Law of the Sea (unclos) has provided the legal framework for the development of regulations for the protection of the oceans and marine resources. Further to that, and in an ever-changing policy and legal landscape, the United Nations Global Compact (ungc), with its sub-principles for the protection of the oceans, refers to one of the many United Nations (UN) voluntary initiatives that seeks to provide a framework for responsible business practices across maritime sector. In addition, and as a move to comply with the recent United Nations Sustainable Development Goals (sdg s), the ungc has been revised to meet the requirements of sdg 14 for underwater protection and sustainable ocean business conduct. In the wake of such trends, this study explores the context of Norway’s governance framework and, in particular, the extent to which this regime has addressed the principles of the United Nations Global Compact for Sustainable Oceans. Framed by a socio-legal methodological approach, it achieves this by reviewing and contrasting Norwegian ocean policy and regulatory structure with ungc principles for sustainable ocean and marine resource use. We conclude that Norwegian ocean policy and legal status indicate positive transitional standards and perspectives for their harmonization with the ungc principles and, consequently, with the requirements of the sdg 14.

Open Access
In: Journal for European Environmental & Planning Law
Author:

Abstract

The article examines the impacts of populist government in Hungary on constitutional law since 2010. The criterion of the analysis is whether the comprehensive and radical changes that took place during this time have been characterized by the distinctive traits, ambitions and values that the scholarship attributes to populism and ‘populist constitutionalism’, above all anti-elitism, anti-institutionalism, anti-pluralism, the emphasis on popular sovereignty and direct democracy, and an instrumental conception of law. For this purpose, it examines the major changes in the constitutional rules and practice of sovereignty issues, the system of separation of powers, and fundamental rights. The article consists of four parts. In the first chapter, sovereignty issues are discussed including the changing approach of constituent power, constitutional identity, and the interpretation of sovereignty through an analysis of the 2011 Fundamental Law and its eight amendments. The study then reviews the changes in the system of separation of powers, that is, the transformation of the legal status and operational practices of the most important public law institutions. The next chapter provides a qualitative analysis of the situation of fundamental rights, in particular the trends in the renewed regulation of constitutional liberties and political freedoms. In addition, this part gives an assessment of the current state of institutional protection of constitutional rights. Finally, the last chapter seeks to answer the question of how the cumulative effects of these changes can be assessed; whether Hungary follows a new, specific path of constitutional development, or the constitutional changes can be interpreted within the framework of the constitutional democracy formed after the 1989/90 regime change.

Open Access
In: Review of Central and East European Law
Author:

Abstract

Scholarly works on judicial populism tend to concentrate on the landmark judgments of constitutional courts and apex courts. Nonetheless, the examination of the activities of ordinary courts is of great importance as they shape the lives of citizens and can strengthen or curb populist politics. In this paper I analyze a phenomenon emerging in the adjudication of Hungarian ordinary courts which can be labelled ‘everyday judicial populism’. Based on case studies and empirical scrutiny I argue that the political populism of the Hungarian government has both a direct and an indirect, but clearly detectable, impact on judicial practice. As regards the latter, the government can manipulate (through its media) public opinion in certain court cases, and judges take this opinion - as the ‘vox populi’ - into consideration in their decision-making. At the end of the paper I examine the institutional conditions that have facilitated the emergence of judicial populism.

Open Access
In: Review of Central and East European Law
Author:

Abstract

Hungarian migration regulation has undergone a radical transformation since 2015, resulting in a system that essentially deprives asylum seekers of any international protection. This was a strategic move by the government to portray itself as the defender of Hungary and even Europe of the menace of uncontrolled migration. This article critically analyzes this transformation by first giving a comprehensive account of the major legislative changes and showing how they were framed to boost the populist political propaganda of the government. Then it argues that even though such populist legalism is in clear contravention of Hungary’s international legal obligations and thus constitute bad faith action, the European Union is still powerless to effectively oppose these measures since its own asylum policies are aimed at maintaining “Fortress Europe”, i.e. restricting irregular migration as much as possible through legal and informal measures. In conclusion, the only real antidote to populist legalism would be acting in good faith.

Open Access
In: Review of Central and East European Law
Author:

Abstract

The characteristics of Hungarian populism and its effects on labor and social policy are rather different compared to those of western Member States of the EU. These differences are due to the different experiences related to inter- and intra-EU migration and to the difference in how the EU’s austerity measures were imposed during the economic crisis. The two distinctive elements are the workfare regime which replaces the welfare state, and anti-pluralism. In the workfare model, ‘hard-working people’ are pictured as an idealized mass of employees who are disciplined and striving for betterment every day; and whose jobs and wellbeing are jeopardized by illegal migrants and the idle poor. However, labor law does not strengthen the rights of ‘hard-working people’ or support them in asserting their rights against their employers. While the Roma have been described as the undeserving poor and mainstreamed in everyday politics and practice, guarantees and protective measures have been severely curtailed in social policy, amplifying the insecurity and material deprivation of those who lose their jobs. Regarding collective labor law, the lack of an autonomous social dialogue supports anti-pluralist trends, a characteristic of populist governance. The fundamental elements of democratic control, such as participation or trade union rights have been largely eliminated to cement the executive power of the coalition.

Open Access
In: Review of Central and East European Law

Abstract

Populism is a nebulous concept that has almost as many definitions as scholars engaging with the concept that has a paradoxical relationship with law. On the one hand, populist politicians generally oppose the liberal ideal of separating politics and law, i.e. accepting that legal rules should limit political power, claiming that it would impede the expression of the popular will, yet they use legal regulation as their most important instrument to implement their policies. The chameleonic nature of populism and its instrumentalist approach to law presents a special challenge for lawyers that try to assess its impact on the domestic legal system. Populist legislation, after all, is seemingly indistinguishable from legislation adopted under non-populist regimes as populist regimes always claim to strictly adhere to formal procedural requirements and often justify the dramatic overhaul of previous rules invoking foreign examples.

Hungary is a perfect litmus test for the examination of legal changes under populist leaders, because in 2010 the right-wing Fidesz-Kdnp party coalition won two-thirds majority in Parliament – a self-described “revolution in the voting booths” -, which gave it the power to completely overhaul the Hungarian legal system, even changing the constitution. In the past 10 years, virtually every significant branch of Hungarian law was recodified, adopting inter alia new criminal, civil, administrative and labor codes. The authors of this special issue attempted to analyze some of the most pertinent changes, in the field of constitutional law, adjudication, tax law, labor law, criminal regulation and asylum legislation.

Open Access
In: Review of Central and East European Law
Authors: and

Abstract

In order to meet a variety of locally relevant socio-economic expectations and needs, Hungarian tax policy in the last decade has applied a number of unconventional instruments. The government favored in particular the imposition of additional taxes on corporate taxpayers in specific sectors of the national economy. The taxation of turnover in addition to corporate profits has proved to be a particularly attractive idea. These measures pursue declared objectives which any national government that is faithful to its political mandate could endorse as its own. However, the design of these taxes and their related regulatory hiatuses, which have been subject to extensive scrutiny before the courts of the European Union, raise the possibility of their abusive and discriminatory use to the disadvantage of select individuals, in particular non-national corporate taxpayers. This element of contemporary Hungarian tax policy may well be considered as forming part of the government’s populist policy agenda.

Open Access
In: Review of Central and East European Law