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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?
Q4 Social Sciences Pub Date : 2022-12-16 DOI: 10.1556/2052.2022.00387
Alain Delcamp
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.
“身份”的概念曾经看起来非常明显,主要适用于个人。近年来,人们本可以考虑这一概念的惊人演变。在社会科学中,它与群体的概念联系在一起,但在侵入公众辩论后,它现在已经进入了法律领域。它现在出现在欧盟成员国宪法法院的辩论甚至裁决中。这是一场普遍的运动,是一种气氛的一部分,在这种气氛中,人们在不同程度上对联盟各机构的运作,尤其是其法律制定模式表示不满,本条的目的是收集和评估通过各种判例法和评论提供的信息,以便更好地澄清宪法特征的概念并评估其有效性。这一概念仍然存在争议,其使用尚未产生重大后果,但其研究为改进欧洲联盟宪法法院和法院之间的对话提供了一个机会;还询问“宪法身份”的概念是否不能成为重新定义欧盟与组成欧盟的国家之间关系的宝贵工具。
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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
Q4 Social Sciences Pub Date : 2022-12-16 DOI: 10.1556/2052.2022.00390
Zoltán Szente
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.
尽管现在欧洲国家援引宪法认同主要是为了反对欧盟机构权力的扩张,但它也可以被理解为国家宪法的一个实质性概念。宪法认同是一个规范性的宪法概念。在这方面,问题与欧盟法与国内法之间的关系中出现的问题相同:即其基本的不确定性及其适用的可能随意性。因此,作者认为,只有对下列问题给出满意的答案,才能合理地援引宪法认同:它究竟是谁的认同,它的来源是什么,它的内容可以定义谁以及如何定义,以及这一类别的宪法功能是什么。研究报告的第二部分根据这一分析框架审查了匈牙利的宪法特性,并得出结论认为,虽然其主题是《基本法》,但其定义、内容和宪法功能是不明确和矛盾的。因此,匈牙利目前的宪法同一性概念提出了一些问题,对此还没有找到合理的答案,与之有关的理论和实际困难能否得到解决是非常值得怀疑的。
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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
Q4 Social Sciences Pub Date : 2022-12-12 DOI: 10.1556/2052.2022.00391
Laurianne Allezard
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.
宪法身份的概念引起了科学界的极大兴趣。然而,它有时以还原的方式掩盖了另一个法律现实:其他身份的存在,如民族、语言和集体身份。事实上,对欧洲宪法和宪法法院裁决的解读揭示了宪法身份背后复杂而不断演变的身份体系。本文认为,身份不仅是一个政治论点,也是一个法律和规范论点。从宪法的角度来看,可以区分两大类:存在于宪法规范之前的真实身份和存在于宪法准则之后的虚构身份。这些身份是相互依存和相互联系的;宪法法院提及宪法身份以维持这种交织。因此,宪法认同起着论证的作用,它通过决定宪法规范的解释和宪法概念的含义,在欧洲催生了不同形式的宪政。
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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
Q4 Social Sciences Pub Date : 2022-12-09 DOI: 10.1556/2052.2022.00398
Marie-Élisabeth Baudoin
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.
在欧洲宪法法院的判例法中,宪法身份似乎是一个越来越频繁的争论。对许多作者来说,这是在平等条件下与欧洲联盟展开对话的一种方式。在这篇文章中,我们认为对话并不总是和谐的源泉,因为卢森堡和欧盟成员国的互动条件并不完全相同。欧洲联盟法院对成员国的国家身份的解释并不总是与各国对其宪法身份的内容相似。因此,宪法身份可能会使成员国加强其宪法规则的特殊性,进而削弱欧洲宪政的统一性。宪法身份远不是世界语,而是欧洲新的法律巴别塔。
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引用次数: 0
The Hungarian sword of constitutional identity 匈牙利的宪法认同之剑
Q4 Social Sciences Pub Date : 2022-12-09 DOI: 10.1556/2052.2022.00380
Ernő Várnay
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.
在2016年的“难民配额决定”中,匈牙利宪法法院“发明”了越权、主权和宪法身份控制的权限。宪法身份之剑(CI)是针对外国——首先是欧盟法律锻造的。在新概念的发展过程中,政府、政府主导的议会和忠于政府的宪法法院之间的相互作用似乎是显而易见的。对相关HCC决定的文本分析证明,匈牙利宪法身份(HCI)包含有效的法律行为,包括《基本法》(宪法)和欧盟创始条约,“无效但有效”的法律行为以及与争取匈牙利国家独立有关的活动,这篇文章展示了与主权控制和“历史宪法”的密切关系,并强调了HCC的声明,根据该声明,CI不是由宪法创建的,它只是承认它。考虑到被确定为HCI的一部分的大量元素,它对包含更多元素持开放态度,以及HCI的可疑性质,提交人认为,这一概念不适合任何有意义的宪法审查。HCC——至少到目前为止——尽管受到邀请,但拒绝对欧盟次要法律和欧洲法院的判决动刀,并避免了公开的宪法冲突。然而,这并不意味着HCC准备与卢森堡法院进行真诚的对话。
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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”?
Q4 Social Sciences Pub Date : 2022-12-06 DOI: 10.1556/2052.2022.00376
Asli Alkiş-Tümtürk
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.
如果认为第三国的数据保护水平基本相同,则可以在达到欧盟委员会的充分性决定的情况下,不采取任何额外措施将个人数据转移到第三国。只有少数几个国家获得了这一裁决,美国不再是其中之一,因为欧洲法院在Schrems II案中裁定,隐私保护裁决不能为个人数据提供与欧盟立法“本质上等同”的保护,因此是无效的。本文将讨论术语“本质等效”的含义及其涵盖的内容。最后,它将通过比较英国和日本这两个适当国家的例子来检验并试图回答美国是否会达到上述适当水平的问题。
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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
Q4 Social Sciences Pub Date : 2022-12-05 DOI: 10.1556/2052.2022.00377
Lencka Popravka
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.
自《马斯特里赫特条约》以来,仍然存在两个问题:什么是欧盟,是否存在欧盟身份?由于其特殊性质,并考虑到加入欧盟的政治标准,似乎存在欧盟的政治身份。因此,这篇文章的目的是评估这种欧盟政治身份是否对成员国的宪法身份产生了影响:因为保加利亚和罗马尼亚是最新加入欧盟的国家,但也因为它们处于特定的监督程序之下,所以它们是欧盟影响的最好例子,但只是有限的。
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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
Q4 Social Sciences Pub Date : 2022-12-05 DOI: 10.1556/2052.2022.00337
Dániel Szilágyi
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.’
欧洲联盟虽然承认有问题的消费市场存在缺陷,但似乎在很大程度上不愿意偏离基于普通消费者作为一个相当知情和善于观察的市场参与者的理想的不灵活的消费行为标准。本文旨在将这种高消费者标准与弱势消费者概念提供的替代品进行对比。文章的第一部分论述了欧洲联盟法律中定义的普通消费者的概念及其欧洲法院的解释,特别是在涉及问题市场的案件中。随后简要分析了消费者保护文献中对消费者脆弱性的两种潜在解释。最后一章更详细地考察了欧盟消费者保护制度中普通消费者概念的一个独特的主要例外:被公认为“特别脆弱”的消费者范围狭窄
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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
Q4 Social Sciences Pub Date : 2022-11-22 DOI: 10.1556/2052.2022.00358
Ioannis Fasoulis
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.
海洋和海洋资源是人类生命和福祉的宝贵源泉。尽管海洋做出了贡献,但它们不断受到过度捕捞、航运和资源开采等人类活动的影响,从而危及海洋生态系统的生存能力。由联合国领导的一系列全球倡议定期寻求扭转这些负面影响,保障海洋的可持续利用。《联合国海洋法公约》(1982年)是朝这个方向迈出的重要一步,因为它为可持续的海洋治理建立了法律框架。挪威是一个海洋国家,一直是这项国际条约的坚定支持者,也是最近可持续发展目标(sdg)的坚定支持者,这些目标通常是对《联合国海洋法公约》在全球海洋可持续性追求中的补充。在此背景下,本文探讨并假设了《联合国海洋法公约》与可持续发展目标之间的协同作用和相互作用,并描述了挪威海洋治理制度的相关转变。
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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
Q4 Social Sciences Pub Date : 2022-09-13 DOI: 10.1556/2052.2022.00357
L. Novotný
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.
该研究探讨了在后共产主义背景下为马戏团训练野生动物问题提供法律解决方案的立法问题。以捷克共和国为例说明了这些问题。2020年,该国通过了对第246/1992 Coll号法令的全面修正案。《保护动物免受虐待法》,自2022年1月起禁止在马戏团训练野生动物。该研究重点关注以下研究问题:禁止野生动物训练的主要决定因素是什么?政客们在议会辩论中提到的禁止野生动物训练的主要论点是什么?这里分析的数据包括议会辩论和支持或反对禁令的机构提交的文本。
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引用次数: 0
期刊
Hungarian Journal of Legal Studies
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