The paper analyses and evaluates, from a comparative perspective, the recent developments in the treatment of resale price fixing (RPF) in EU competition law. It inquires whether, as to the treatment of RPF, EU competition law is in line with US antitrust after the changes introduced by the 2010 regulatory package; and demonstrates that considerable differences exist. The paper concludes that the 2010 revision of the rules on vertical restraints somewhat refined but did not reform the law on RPF. The new rules ignore the transaction costs and realities of competition assessment and balancing. It is submitted that in EU competition law the main problem is that, conceptually, the question of RPF has been pushed in the pigeonhole of Article 101(3). The paper argues that the Notice on Agreements of Minor Importance should be amended so as to cover agreements containing RPF where market share is low.
Treating people as equals is one of the main aims of constitutional democracies. Numerous examples prove the adverse effects if a state violates the equality principles relating to ethnic minorities and religious groups. Here is a lesson from Hungary. The Hungarian Constitutional Court (hereinafter: HCC) is not engaged in adjudicating concrete ‘cases and controversies’, but seemingly reviews the constitutionality of laws. The Constitution lays down the fundamental tenets relating to religious groups, churches, ethnic minorities and the principles of equality in general. Thus, the question is how the problems of religions and minorities are reflected in the constitutional case-law.The main theses of this article are following. First, based on historical facts the HCC provides preferential treatment for so-called historical churches. Second, in cases involving Roma the HCC does not consider the historical facts and social reality thus, the discrimination of Roma does not appear in the jurisprudence. Third, the unequal protection of churches and Roma by the state results in advantages being provided where the constitutional reasons of preferential treatment are absent while the state remains inactive where the promotion of the principles of equality would be most necessary.
The paper gives an overview of the Hungarian legal regulation of the legal status of the foetus. In this respect, it reveals the historical roots of the legal protection of the foetus in Hungary. It analyses in details the theoretical standpoints of Hungarian authors of civil and criminal law. It describes the unconstitutional legal practice of the period of communist dictatorship (1950-1990) that lead to the unparalleled destruction of 4,5 million embryos. It analyses in details the unconstitutional practice. The analysis also includes the treatment of he prevailing "Embryonic Life Protection Act". Finally, the essay determines, in accordance with Hungarian legal practice and jurisprudence, the legal status of the foetus and comes forward with proposals addressed to future legislation.
This article presents
the findings of a qualitative research project which aimed to map out the
political evaluations and the social effects of the changing concept of family
and the changing forms of family life. By interviewing political and economic
decision-makers we intended to highlight the goals and the motives of the
differenct family policy approaches, the characteristic features of the family
concepts reflected by the policy-makers' decisions, as well as the relationship
between state family policies and labor market policies on the one hand, and
equal treatment expectations concerning both genders, on the other. On the
basis of interviews conducted with ordinary people we examined how much
people's lives are practically infuenced by the family policy measures
introduced by the political and the economic decision makers. According to our
findings the two different categories of respondents saw specific family policy
issues in different ways - however, their interpretations of family policy as a
whole were rather convergent. The importance of providing equality of
opportunity for men and women, increasing the female employment rate,
acknowledging the plurality of family lifestyles, reconciling work and family
life - being European expectations as well as conditions of a worthy life -
seemed to be overshadowed by the demographic issues of fertility and
This contribution aims to examine how the Hungarian Constitution applies in private relations through judicial activity and how the anti-discrimination legislation influences this tendency. The current codification procedure of the new civil code calls for a thorough theoretical background in order to answer how its provisions relate to the Constitution. After the general overview of the practice of courts and the Constitutional Court, the criticism of scholars developed on the issue will shed light on the weaknesses, but in spite of them, the overall success of the theory of indirect horizontal effect. The paper will also deal with the horizontal effect of a specific constitutional right, namely the right to equal treatment. I examine the fairly new legal instrument, the act on the prohibition of certain forms of discrimination, and demonstrate how this new practice influences the idea of horizontal effect in constitutional law and what implications it has on the new Civil Code afoot. I argue that the act at first sight exists independently from the requirement of horizontal application of fundamental rights, but, in fact, it implicates the necessity to reconsider in its light how the Constitution applies in private relations.
The legis actio sacramento in rem belongs to the most debated issues of specialised literature on Roman Law up to the present day. The literature on the subject would fill a whole library, only its approximative treatment would require a separate monography. When explaining the origins of the legis actio sacramento in rem one can distinguish several, more or less clearly isolated trends. The present study will regard the theory of oath and the theory of personal fight as the two most important. The fundamentally sacred character of the legis actio sacramento is emphasised by the theory of oath, according to which the principal aim of communal control could be the expiatio of the divinity retaliating the perjury, the sacramentum of the defeated party. This theory is also corroborated by the text of the vindicatio, appearing as the strictly formalised, religious-magical carmen. Although it is much older, the theory of personal fight is traced back to Jhering, and its essence is that in the beginning the parties actually fought against each other for the thing constituting the object of their controversy, but the community (the state), in order to preserve internal peace, brought the fight under its own control. Therefore, the fight, in the form of the legis actio sacramento in rem, as it is known today was enacted only symbolically, by employing the rod (festuca) instead of the spear (hasta). The aim of the present study is merely to highlight a possibility-based mainly on the primary sources and partly on the findings of the literature on the subject-which will not consider the motifs of sacrality and private fight contradictory in the structure of the legis actio sacramento in rem but will mingle them as organically complementing components.
Taxation and tax law cannot exist without biases because tax law can be seen per definition as a set of biases. Even if the state pursuing its fiscal policy cannot be neutral, one can expect to enforce the principle of equal treatment before the law. Besides, state intervention need be in proportion to the objectives of the policy of redistribution or economic stabilization. Also, fiscal policy need rely on a system of tax administration that operates in accordance with the principles of openness, good governance and legal certainty. It is ideal if the legal regulation of the procedure of tax administration is fully fledged. The legal regulation of the tax liability need be comprehensive and cover all the processes of gathering tax information, identifying the tax liability and collection of taxes. Moreover, tax administration and administrative law are inadvertently in a need of being completed by private law. Where tax authorities are not explicitly authorised by statutory law to act, they must rely on the principles that are in accordance with the constitutional order. Notably, in Hungary, there is no statutory law that would preclude the universal effect of the Civil Code, covering all the financial relations whether to be made between private persons or between private persons and the representative of the public. Finally, for the purposes of approximating an ideal tax system, the possibility of horizontal coordination must not be left out of consideration. In this context, legal and tax planning and the choice of legal and tax regimes by parties have come to the forefront. Bargaining (e.g., advance ruling) has not been strange from tax law either.
Az ókori görög szövegekben találunk néhány olyan példát, amelyeket mai szóhasználattal élve „állatvédő” törvényeknek nevezhetünk. Ezek a törvények vagy tiltják az állatok (illetve bizonyos állatok) megölését, vagy pedig szigorúan büntetik azokat, akik kárt vagy fájdalmat okoztak az állatoknak. Bár a példák meglehetősen elszórtan jelennek meg a görög és a latin irodalom egészében, mégis figyelemre méltóak. Egyesek közülük anekdotikus jelleggel bírnak, ez azonban nem lehet ok arra, hogy ne vegyük komolyan őket, amikor megkíséreljük felkutatni az állatokkal szembeni igazságos és kíméletes bánásmód nyomait az ókori görög felfogásban. Határozottan megtalálhatók egy olyan ősi kultikus törvényhozás nyomai, amely igazságos bánásmódot követelt meg a szelíd háziállatokkal szemben, amelyeknek az ember kulturált és civilizált életét köszönheti. Ez a törvényhozás két kultúrhérós, az eleusisi Triptolemos és az athéni Buzygés alakjához kötődik. Továbbmenve, az Areiospagos legfelsőbb bírói testületének olyan megdöbbentő döntéseire bukkanunk, amelyekben szokatlanul szigorú, sőt halálos büntetést szabtak ki állatkínzásért. Azonban nem csak az arisztokratikus múlt példái, amelyet ezek a bírói döntések szemléltetnek, hanem a demokratikus Athén néhány esete is tanúskodik az ókori görögség állatokkal szembeni szimpátiájáról és igazságosságáról. Ez bizonyára természetes is egy olyan város esetében, amely mindig azzal büszkélkedhetett – és remélhetőleg fog is büszkélkedni mindig –, hogy a törvény és az igazságosság fellegvára.
Since the waning of the world concept offered by classical physics, law is seen as embodied less by material objects any longer than in a specific way of thinking. Consequently, the normativist perspective of legal positivism is also getting replaced by the comprehension of law in context of culture and tradition.In its own context, any of the terms of 'system', 'family' or 'culture' can be applied independently from each other but it is to be noted that 'tradition' is at the same time both a part and a given path of culture. In legal thought, concrete and generalising (abstract) ways of thinking are equally recoursed to, just as types which search for a solution either in the case's terms in its entirety or in the exclusive bounds of the given normative conceptual framework. It is only Western law that has become differentiated out of the rest, when individualism advanced and thinking in term of subjective rights grew into a dominant pattern, contrasted to our primitive (albeit surviving) approach to law which also expects, in addition to external conformity, the realisation of the law's internal ethos based on own initiative. English law, however, has revealed its face only gradually, as it has factual decisions made through an only-processually-arranged laic (jury) process while it has bound the declaration of what the law is to such facts of the cases among which no logical relationship can be established. In Civil Law, the treatment of adjudication as argumentation, and in Common Law, as practical reasoning, led the judicial process into a sphere only smoothly controllable by logic. Jewish and Islamic laws accept contradictory arguments from the outset. As to Indian and Far-Eastern cultures, they reject even the underlying questionto be raised. This way, in legal problem-solving the assessment of the merits of the caseandthe recourse to a reductive procedure can complement one another on the basis of some compromise. Institutionalisation itself is, as it channels the legal problem-solving to givenpaths, a function of a previously formed idea of order, of a given mentality. Our legaltheorising today is built mostly separatedly either on the classification and interpretation of facts or on the re-conventionalisation of the philosophical generalisation of concepts, with little interaction between the two types of approaches and research attitudes. Therefore, in order to encourage debate and commensurability, it is important that notions of law, at least tacitly assumed to substantiate their choices of subject, are clarified.
Property reparation programs undertaken in Central and Eastern Europe after the fall of the communist regimes fail to fulfill ‘the promises of the rule of law’. Reparation schemes do not have an exclusively reparative nature, moreover, reparation was deliberately linked with structural reform, and due to this duality, the scheme features a mixed distributive-reparative character. This resulted in two troublesome aspects: on one hand, there is no evidence of a compelling argument, which justifies the mitigation of past property deprivations at large. On the other hand, it can not be satisfactorily demonstrated why property-related injustices enjoy a privileged status when it comes to reparations, in comparison to other types of losses. Further, bearing in mind the Hayekian objection towards distributive justice, even those who had been placed in an equal situation—i.e. all suffered past property injustices—are not offered an objectively equal opportunity to claim redress. Due to the fact that the schemes addressed reparations—at least in part—from a distributive perspective (which resulted in an attempt to create a substantive equality between victims), the result that they achieved was objective inequality, as everyone was entitled to reparation between the same limitations, while everyone suffered losses of different extent. These differences in treatment between various former owners are mostly arbitrary, and in certain cases deliberately introduced so as to produce inequalities, and thereby meet the Hayekian concerns as far as they produce results that conflict with the idea of the rule of law. The analyzed provisions of the reparation schemes lead in practice to the creation of winners and losers of reparations, to a breach of the idea of formal equality before the law. In the conditions in which reparation schemes fall short from a thick conception of the rule of law (justice, rights or objective equality) it worth investigating, whether requirements of a thin reading-focusing on foreseability, clarity and consistency—are still met by post-communist property redistribution. Unfortunately at least under three aspects—valuation, time limits and probation—the reparation schemes’ provisions are not beyond criticism. The complexity of tasks that transition societies had to face is obvious and uncontested. Transitional law, according to Teitel, is a sui generis paradigm, a vehicle of social, political and ideological transformation. The amendments to the rule of law ideal, justifiable in the context of transition can go as far as—for example—to allow governments to decide upon the concrete form of the reparation, the type of wrongs it want to address, the period in time intended to be covered. But they may not create winners and losers; they may not distinguish between those placed in the same situation.