Law, Identity and Values

Legal Implications of EU Economic Governance for Public Finance in a Member State

Rado Bohinc — Thu, 13 Jun 2024 00:00:00 +0000

This research analyses the legal implications of the EU economic governance framework reforms for the public finance system of a Member State (MS).

In the article, we first present theoretical insights regarding the European model of economic governance. We discuss the questions of the economic sovereignty of MSs, the balance of economic and social goals, the democratic nature of procedures in relations between EU authorities and MSs, the application of EU law versus intergovernmental cooperation, legal sanctions for MSs, and violations of the EU fiscal rules, etc.

This article discusses the 10-year development and tightening of the legal framework of European economic governance with an analysis of the legal bases for the obligations of MSs in the European Semester (ES) process and the legal sanctions they suffer in the event of a violation of European rules. The timeline of the ES, in particular, is presented both by deadlines (months) and by documents that must be submitted for assessment by the MSs or those that they receive from EU authorities and bodies.

An analysis follows on the effect of the presented EU regulations on the development of an MS’s legal order in the field of public finance - in this case Slovenia’s. This analysis specifically focuses on the constitutional and legal framework of fiscal rules and the annual budget preparation and execution laws. The analysis shows the all-round conformity, even subordination, of the Member States’ constitutional order and legislation on public finances to the European economic governance through the agreed process of the European Semester.

Persecution Due to Sexual Orientation as a Reason for Asylum in the Jurisprudence of the CJEU

Gyula Fábián — Thu, 13 Jun 2024 00:00:00 +0000

Sexual orientation is both normal expression of human sexuality and immutable, is generally not chosen and highly resistant to change and represents each person’s capacity for profound emotional, affectional and sexual attraction to individuals of a different gender or the same gender or more than one gender.

Against the backdrop of a historical, even biblical, criminalisation that continues even today in 65 countries around the world, those with a homo- or bisexual orientation, or those who more recently identify themselves as members of the lesbian, gay, bisexual and transgender (LGBT) community, cannot feel safe and secure in their countries of origin that penalise such sexual acts criminally or even with capital punishment.

Discrimination on grounds of sexual orientation was first recognised by the European Court of Human Rights only in 1981; today, no European state criminalises homosexual acts or behaviour.

In the last two decades, in the framework of the common asylum policy promoted by the European Union, sexual orientation has started to be invoked as a ground for asylum by refugees from countries that criminalise so-called ‘unnatural sex’. The current study seeks to capture the opinion of the Court of Justice of the European Union expressed in this area through three preliminary rulings adopted between 2013 and 2018 in order to formulate some useful conclusions for both scholars and practitioners in the field of asylum procedures.

The International and Supranational Rule of Law in the Slovenian Legal System

Benjamin Flander — Thu, 13 Jun 2024 00:00:00 +0000

This paper examines the status of the international and supranational rule of law within the legal system of the Republic of Slovenia. It begins by providing an overview of the evolution of the rule of law concept in constitutional, international, and European Union (EU) law. In the main sections, this article analyses the constitutional provisions governing, first, the status of international law; second, the provisions concerning the status and implementation of EU law; and third, other provisions determining the relationship between the international and supranational and the domestic law in Slovenia. This study scrutinises how issues concerning disparities between Slovenian domestic law and international and supranational law are addressed both in theory and practice. Furthermore, this article investigates the ‘lessons’ on the international and supranational rule of law conveyed to Slovenia by European courts, such as the European Court of Human Rights and the Court of Justice of the EU. Focusing also on the Constitutional Court’s role, the present study aims to determine whether there are instances where this court acts as a guardian of the Slovenian constitutional identity, considering that its interpretation of the rule of law may not always align with the international and supranational understanding of the concept.

The Global Minimum Tax and Its Potential Impact on the Competitiveness of the Hungarian Corporate Tax System

Balázs Károlyi — Thu, 13 Jun 2024 00:00:00 +0000

In 2021, an agreement on the application of a global minimum tax was concluded, which was later adopted at the EU level in the binding form of a Directive. Such tax reforms entail significant changes in the operation of international and domestic tax rules. This study examines the expected effects of the global minimum tax on the tax incentives that function in the Hungarian corporate income tax system. This issue is approached by examining various types of tax incentives (general, entity-related, and economic activity-related) considering the features of global minimum tax rules. Furthermore, the study aims to identify the aspects and circumstances inherent in either the rules of the global minimum tax or the Hungarian tax system that can potentially mitigate the adverse effects of the global minimum tax on tax incentives. In the light of these findings, this study also provides tax policy considerations that can contribute to preserving the current corporate income tax system and its incentives in the most intact form.

Setting the Limits of the Member States’ Institutional Autonomy in the Case of Romania, Hungary, and Poland

Ágoston Korom — Thu, 13 Jun 2024 00:00:00 +0000

Until recent years, the measures taken for EU law implementation in domestic legal systems did not address the institutional issues of national courts, namely the institutional autonomy of Member States in the context of domestic judicial systems. The application of EU law in domestic law is based on two principles: institutional and procedural autonomy. In the interpretation of procedural autonomy, EU law is to be enforced by applying national procedural rules, subject to the limits of effectiveness and the principles of equal treatment. The principle of equal treatment requires that the procedural rule of a Member State for the enforcement of EU law should not be less favourable than the procedural rule of a Member State for the enforcement of claims arising under national law in a comparable situation. The principle of effectiveness requires that national procedural rules should not make it impossible or excessively difficult to enforce rights deriving from EU law. The institutional autonomy meant that the enforcement of EU law took place within the framework of the Member States’ institutions: they were not bound by EU law, except in very specific areas or criteria. Before the change under our examination occurred, the Court of Justice of the European Union defined specific criteria for the establishment of national courts, but these were not aimed at ensuring the independence of domestic courts. Instead, they were limited to the cases in which the CJEU found questions referred for the preliminary ruling admissible; these criteria guaranteed, inter alia, that the given court is established by law, operates permanently, applies the law, and renders binding decisions. In recent decades, a change occurred in the case law of the CJEU, and while issues regarding the judicial system remain under the Member States’ competence, EU law defines several criteria in that regard. In this paper, we will examine the decisions taken in the three Member States under review, Hungary, Romania and Poland, but we will also look at the background: the limitation of institutional autonomy by the practice of the CJEU was not ‘without precedent’, i.e. this case law started to be applied in other Member States already in the first half of the 2010s. Following an examination of the decisions concerning the three Member States, an attempt is made to compare the EU criteria set out in those decisions in relation to the national courts with each other and with the decisions examined in the precedents. An analysis will also be made of whether the EU requirements for courts can be systematised on the basis of the current decisions.

Some Remarks on the ‘Hungarian Euro’

György Marinkás — Thu, 13 Jun 2024 00:00:00 +0000

The author strives to answer why Hungary has stayed out of the Eurozone thus far and whether there is any chance of accession in the near future. To do so, in the first part of the paper, the author briefly introduces the ‘half-built house’ characteristic of the Economic and Monetary Union and, then, in the second part, introduces how the Hungarian Central Bank and the Hungarian scientific literature evaluate the pros and cons of the accession to the Eurozone. Finally, the author briefly analyses the Hungarian convergence data to draw a conclusion on whether Hungary could have—and should have—accessed the Eurozone.

Three Case Studies on Migration-Related Detention

Gregor Maučec — Thu, 13 Jun 2024 00:00:00 +0000

The European Union (EU) has recently adopted a series of legal and policy instruments and actions to strengthen protections from various forms of arbitrary asylum- and return-related detention. Further measures are planned, including those with potentially binding legal effects for EU Member States. Such laws and measures—intended to protect asylum seekers and other migrants from arbitrary deprivation of their liberty—involve rather abstract and ambiguous concepts that leave broad margins for legal interpretation and, consequently, a high degree of flexibility and discretionary powers to EU Member States. Therefore, the actual meaning and impact of these provisions is difficult to grasp. This research critically examines the latest jurisprudence of the Court of Justice of the European Union (CJEU or Court) on the (alleged) incidents and practices of arbitrary detention of migrants in EU Member States. It analyses how the supreme judicial authority of the EU construes the concept of ‘arbitrariness’ of deprivation of liberty of person and related notions, such as ‘necessity’ and ‘proportionality’, within the context of EU migration governance and the functioning Common European Asylum System. This analysis can give a preview of where the EU legislator and Court may be heading in terms of their quest for a more humane, dignified, and fair treatment in restricting migrants’ liberty. It also yields some valuable insights into the ways in and extent to which the interpretations and decisions of the CJEU uphold the prohibition of arbitrary deprivation of liberty of migrants and uniform international human rights norms—including those enshrined in the EU Charter of Fundamental Rights—that EU Member States are bound by when depriving migrants of their personal liberty.

Does the Czech Parliament Follow Tax Law Drafting Principles?

Michal Radvan — Thu, 13 Jun 2024 00:00:00 +0000

Tax law regulation must be clear and easy to understand and apply. It must consider the level of knowledge of taxpayers, and it must follow the terminology used in other branches of law. The legislator should also be receptive to the economic aspects of private and business life. The tax office should create conditions to make filing tax returns easy and not time-consuming, ideally online, with prefilled fields and automatic calculation. Only if these requirements are fulfilled might tax administration be cheap and effective without additional compliance costs (for both taxpayers and tax administrators). To meet all of these requirements, it seems necessary for the legislator to follow tax law drafting principles. It should also be stated that these principles play an essential role not only in the process of tax law drafting but also in the interpretation and application of tax law norms. The main aim of this study was to answer the question from its title: Does the Czech Parliament follow tax law drafting principles? The hypothesis that the Czech Parliament follows tax law drafting principles when adopting tax law was confirmed. However, considering history, several exceptions and cases show that this statement does not apply in all situations. The breach of principles is not caused by a lack of the principles or unclear principles but by their application by the Parliament. To achieve a good quality tax law, it seems sufficient to follow the principles, especially for politicians. The legislator should know the tax law drafting principles described and critically analysed in this article: 1. basic principles, 2. self-application principles, 3. tax justice principles, 4. economic nature principles, and 5. professionality principles.

Constitutional Courts and the Court of Justice, Constitutional Law and EU Law – Two Arranged Marriages and the Legal Problems Arising From Them

David Sehnálek — Thu, 13 Jun 2024 00:00:00 +0000

This article addresses the question of relationship of constitutional courts to the Court of Justice in national case law; the hierarchy of these national courts to the Court of Justice of the European Union (EU); the hierarchy of national law (constitution) and EU law and the constitutional identity as a limit of the principle of supremacy. The innovative contribution of the present article is that it distinguishes between the effects of the principle of supremacy of EU law on national courts and on national legislators. It thus provides clear and precise guidance to national judges on how to proceed in contentious cases of conflict between national and EU law. This question is not satisfactorily answered in the case law of the Court of Justice. It is also avoided in articles and most textbooks dealing with the supremacy principle. This article also addresses the possibility of a comprehensive solution to the conflict between EU and national law in extreme, but politically extremely important and sensitive, divergences between the decisions of national constitutional courts and the Court of Justice. Contrary to conventional notions, which cognise such a divergence as a serious problem and tend to deny constitutional courts the possibility of making their own independent conclusions, the author of the present article sees this as a natural consequence of the position that these courts occupy in the legal systems of the Member States. In the last part of the article, the author presents several options that constitutional courts have and can use to deal with decisions based on EU law, ranging from full acceptance of this law to its complete rejection on the grounds that EU law does not fall within the frame of reference protected by constitutional law.

Limitations on the Freedom of Movement of Foreigners and Asylum Seekers in Croatian Law and Practice

Frane Staničić — Thu, 13 Jun 2024 00:00:00 +0000

In reality, numerous measures can be issued that limit the freedom of movement of foreigners, including third country nationals and asylum seekers. Detaining foreigners and asylum seekers is a form of deprivation of freedom of movement and can be compared to incarceration as they can be either arrested and detained for a short period of time or detained at the Centre for foreigners. The second form of detention is more important as it can last for a relatively long period. There are numerous reasons for which a foreigner can be detained at the Centre; moreover, the detainment can be prolonged repeatedly. This is why a scrutinous control of decisions to detain a foreigner must be established and every decision of detention must be controlled by an administrative court ex officio. This represents a quasi-administrative dispute instigated ex officio to ensure the conformity of such decisions with the law. This study analyzes the legal regulation of detention of foreigners. as well as the practice of the courts to show whether the Ministry of Interior acts in accordance with the law.

Integration Responsibility: The Relationship of National Constitutional Courts to the Court of Justice of the European Union

Norbert Tribl — Thu, 13 Jun 2024 00:00:00 +0000

As long as the peoples of Europe are unable to create a homogeneous, united society, the principle of ‘unity in diversity’ will be a natural limit to the development of the ‘ever closer union’ clause, and this is not a mere philosophical or theoretical argument; it is rather a fact-based inadequacy that must be reflected in the European legal order and the concrete competences and their limits, especially in the relationship between the Court of Justice of the European Union and the European national constitutional and higher courts. The undefined nature of the relationship between European Union (EU) law and national constitutions (resulting from the supranational nature of integration) forced European national constitutional courts to assume a role that could also be seen as a functional change in terms of the entirety of the European constitutional judiciary. The role of these bodies seems to be complemented by a kind of ‘integrational’ function; the European national constitutional courts must no longer only defend their national constitutions but must do so while considering the proper advancement of the integration process. They must act in a manner that upholds the Court of Justice of the European Union’s (CJEU) right to an authentic interpretation of the Treaties; however, taking into account that the CJEU, as an institution of the EU, is not entitled to make decisions ultra vires against the framework set by the Treaties.

Effectiveness of Tax Dispute Resolution Mechanisms – The Impact of the European Legal Framework on National Jurisdiction

Nataša Žunić Kovačević — Thu, 13 Jun 2024 00:00:00 +0000

The search for a more effective resolution of cross-border tax disputes provokes the general question of the effectiveness of tax dispute resolution mechanisms. In recent years or even decades, a cross-border tax dispute settlement within the European Union (EU) internal market has engendered several issues and perspectives. With an overview of the Croatian tax dispute environment, there is a short analysis of alternative dispute resolution mechanisms with a basic description and a short practical evaluation. The tax dispute environment in Croatia shows that a vast majority of tax disputes therein originate from audits. This paper provides an outline of the principal issues arising from the Europeanisation of tax disputes and probably national tax procedural rules. The landscape for tax dispute resolution is changing dramatically at the EU level. Pre-litigation tax instruments and settlements have become extremely important and developed. Tax dispute judicial settlements still have a lot of relevance and are seen as a possible object of such efforts to move towards the creation of European fundamental principles and rights for taxpayers in that area. This paper aims to analyse the effectiveness of alternative dispute resolution mechanisms in the context of tax disputes in Croatia. By examining the tax dispute environment and evaluating various mechanisms, we can gain insights into the challenges and potential solutions for resolving these disputes.