ELTE Law Journal

The Protection of Intra-EU Investments: Putting the EU’s Rule of Law to the Test

Peter-Tobias Stoll — 2024-08-30

With the 2018 Achmea ruling, the European Court of Justice declared investment arbitration in the intra-EU setting to be inadmissible. As a result, the Member States have cancelled more than 190 bilateral investment protection treaties between themselves. Critics fear a high level of legal uncertainty for intra-EU investments. The EU Commission, on the other hand, believes that the existing law of the internal market provides ‘adequate and effective protection’ for such investments without further ado. Both sides invoke the rule of law. After an overview of the developments, individual elements of the protection of investments within the EU, namely the rights of investors, the balance between them and public interests, the legal means available and the question of compensation, are analysed comparatively. In the end, it emerges that both positions can lay claim to different elements of the rule of law. The rule of law does not require maintaining investment protection with bilateral treaties and investor- state arbitration. However, it is questionable whether the existing law in the internal market does adequately protect investments in the European Union. With the abolition of traditional international investment protection, the European Union faces major challenges with regard to the further improvement of the rule of law, the importance of which goes far beyond the issue of investment protection.

Guy Fiti Sinclair’s Approach and its Application to EU Law: the Development of the Rule of Law as a Case Study

Péter Budai — 2024-08-30

As theories on the development of the European Union do not give sufficient emphasis to aspects of EU law, it may be necessary to complement their application with other integration theories. To this end, the article intends to provide an analytical framework by relying on the field of the law of intergovernmental organisations. Guy Fiti Sinclair’s approach provides a framework to understand the expansion of powers in the case of intergovernmental organisations, an area not sufficiently explored concerning matters of EU law. The article examines the development of the rule of law based on the analytical framework. In addition to the introduction of the early context of the rule of law as well as the trends in the development of the rule of law in particular intergovernmental organisations, it also examines the position of the European Commission, the European Parliament and the Court of Justice of the European Union and the understanding of the rule of law within the academic sphere of the 2010s. The article focuses on the ASJP case, which, due to its innovative nature, has significantly impacted the development of the interpretation of the rule of law within EU law. The article, therefore, aims to give a perspective to understand the development of the rule of law, relying on this analytical framework.

Challenges of Monitoring Obligations in the European Union’s Digital Services Act

Gergely Gosztonyi — 2024-08-30

The article argues that the Digital Services Act, as part of the EU’s broader attempt to regulate intermediary services providers in a constantly growing and challenging technological, social and political environment, does not provide a final and comprehensive solution to the issue. The Digital Services Act appears inconsistent with the previous case law of European supranational judiciary forums regarding the prohibitionofgeneralmonitoringbyintermediary services providers.Infact,itprovides the Member States with vaguely worded regulatory exceptions in the event of a ban on general monitoring. However, the Digital Services Act can be seen as a legitimate and necessary attempt to enforce the regulation at the European level through Member States while at the same time giving a unique regulatory position in specific cases to the European Commission or pan-European legal bodies in general. Finally, the Digital Services Act also turns initial enforced self-regulatory attempts to regulate social harms, possibly caused by intermediary services providers, into co-regulation.

Parental Agreements on Children’s Parental Custody, Contact and Child Maintenance – High Requirements and Strict Standards versus the Child’s Interests

Orsolya Szeibert — 2024-08-30

The aim of the paper is to analyse the Hungarian family law rules regarding parental agreements on children’s parental custody, contact and child maintenance, including their high legal and judicial requirements and strict standards. Parents are regularly supported to agree on issues concerning their children in cases when they no longer live together, as this corresponds to the principle of autonomy. However, they must enter into agreements that meet the requirements of the child’s best interests regardless of whether they lived in marriage or de facto cohabitation. The agreements must serve the interests of the partners and those of the child but not only at the time of concluding the agreement but also later. The question emerges of how either partner may request the agreement to be modified if the parents cannot agree new terms. Several aspects of the regulation, such as the judiciary, need to be considered and envisaged to evaluate the legal environment of parental agreements. This investigation is validated by the fact that it is not only the parents’ but also the state’s task to support the conclusion of agreements that protect the parties and their child’s interests and, if necessary, make the amendment of agreements possible.

Special Legal Relationships and Liability Issues in Relation to Evidence Handed over to A Forensic Expert by a Civil Court

Balázs Arató — 2024-08-30

The paper takes a recent case as a starting point to examine how the disappearance of the object of examination from a forensic expert appointed by the trial court should be assessed in the light of civil law, civil procedure and constitutional law. The analysis will focus on the specific legal relationships and liabilities associated with the appointment of an expert. The theoretical conclusions on these issues are the starting point for the fundamental question, of constitutional importance, of whether a judgment can be based on an expert’s opinion that was drawn up without the expert having returned the object of the examination although he should have done so. The study also attempts to answer this question.