scholarly journals RETURN OF THE CULTURAL OBJECTS UNDER INTERNATIONAL LAW, EUROPEAN UNION LAW, AND LITHUANIAN LAW

2021 ◽  
Vol 16 (40) ◽  
pp. 275-305
Author(s):  
Pavelas Ravlusevicius
Keyword(s):  
European Union ◽  
Traditional Approach ◽  
Civil Law ◽  
Constitutional Court ◽  
Federal Republic Of Germany ◽  
European Union Law ◽  
Cultural Objects ◽  
Cultural Object ◽  
Bona Fide ◽  
The Republic

The article examines the legal problems associated with the return of cultural objects in International, European Union, and Lithuanian Laws, as well as the extraterritorial application of mandatory norms. Particular importance is given to the influence of the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects and the Directive 2014/60/EC on the return of cultural objects unlawfully removed from the territory of a Member State. Attention is paid to the correlation of civil law doctrines with the protection of the owner’s rights and the bona fide purchaser of a cultural object on the one hand, and International and European Laws about the return to the owner and compensation to the owner of a cultural object on the other hand, because Lithuanian legislation and case law do not apply the vindication doctrine to protect owner’s rights of cultural objects and thus differs from the traditional approach to solving the problems of returning cultural objects within the civil law framework. The article deals with the related problems of recognition of the owner’s rights and changes in the evidence presumptions. The issue of restoring the owner’s rights to illegally confiscated cultural objects during the existence of the USSR was decided in the practice of the Constitutional Court of the Republic of Lithuania. Courts of general jurisdiction considered claims for the return of cultural objects belonging to foreign entities - the Federal Republic of Germany and the Prussian Cultural Heritage Foundation. Particular importance was the question of the application of International and European Laws in judicial practice. According to the results of the study of the practice of the Republic of Lithuania, it is proposed to regard the return of cultural objects as an independent way of protecting the owner’s rights, which makes secondary the bona fide purchaser doctrine in relation of a cultural object.

scholarly journals The primacy and supremacy clauses of European Union Law and their application in the legal order of the Republic of Lithuania

2018 ◽  
Vol 112 ◽  
pp. 303-322
Author(s):  
Pavelas Ravluševičius
Keyword(s):  
European Union ◽  
National Court ◽  
Case Law ◽  
Court Case ◽  
Constitutional Court ◽  
Eu Law ◽  
The European Union ◽  
European Union Law ◽  
Eu Member States ◽  
The Republic

The primacy and supremacy clauses of European Union law (“EU law”) are to one of the most prevalent issues concerning the relationship between EU law and domestic law of the Republic of Lithuania. It seems that such issues were not definitely settled even when the Treaty of Lisbon amending the Treaty on European Union, which established the European Community. During that period, significant changes were made in EU Member States, regarding the domestic application of the principle of primacy and supremacy of EU law. Lithuanian law has undergone the development in this sphere too.The European Court of Justice (“ECJ”) has developed the meaning of the principle of primacy, which means that European Union law should take precedence over the national law (even over constitutional provisions) and, in case of conflicts between EU law and national law, every national court is obliged to apply the European Union law. The comparative analysis of the Lithuanian Constitutional Court case law shows counter development to the ECJ case law, which may cause the jurisdictional collision of setting aside EU law based on constitutional grounds.The paper includes some relevant examples of application of EU law arising from preliminary ruling procedure under Art. 267 of Treaty on the Functioning of the European Union in the praxis of the Lithuanian Constitutional Court and Lithuanian courts of general and special competences.

Das Anleihenkaufprogramm APP der Europäischen Zentralbank vor dem Bundesverfassungsgericht und dem Gerichtshof der Europäischen Union

2021 ◽  
Author(s):  
Christoph Degenhart ◽  
Hans-Detlef Horn ◽  
Dietrich Murswiek ◽  
Markus C. Kerber
Keyword(s):  
European Union ◽  
Balance Sheet ◽  
Federal Budget ◽  
Constitutional Court ◽  
The European Union ◽  
European Union Law ◽  
Government Bonds ◽  
Basic Law ◽  
Federal Constitutional ◽  
Liability Risks

Since 2015, the European Central Bank (ECB) has been purchasing, among other assets, primarily government bonds of the euro zone countries and including them in its balance sheet on a permanent basis (Public Sector Purchase Programme - PSPP). Does the ECB thereby engage in prohibited monetary public financing? Does it exceed its monetary policy competences? Does it cause incalculable liability risks for the German federal budget? Does this all in all constitute an infringement of the legal and democratic order of the European Union? The ruling of the Federal Constitutional Court of 5 May 2020 is therefore of historical significance. By making it clear that the ECB's independence does not justify "ultra vires acts", it marks - also vis-à-vis the Court of Justice of the European Union - the limits which the Basic Law has set for European Union Law. The volume brings together the main procedural documents of the four constitutional complaints, which have thus been partially granted.

Hungarian Constitutional Court: Keeping Aloof from European Union Law

ICL Journal ◽  
2011 ◽  
Vol 5 (3) ◽  
Author(s):  
László Blutman ◽  
Nóra Chronowski
Keyword(s):  
European Union ◽  
Constitutional Court ◽  
Eu Law ◽  
The European Union ◽  
European Union Law ◽  
Constitutional Review ◽  
Legal Norms ◽  
Legal Rules ◽  
Tier System ◽  
Domestic Law

AbstractWhile the European Union is in the process of carefully navigating among the various forms of sub-federalism, Member States - including recent ones like Hungary, trying to find an equilibrium between their sovereignty and European supranationalism - have to cope with possible conflicts between their national legal systems and EU law. Since Hungary's accession to the European Union, the Hungarian Constitutional Court has faced questions regarding the constitutionality of EU legal rules and conflicts between European and national legal norms. This article examines these issues and analyzes criteria of constitutional review that the Court has gradually set out in dealing with some of these conflicts. So far, it has established two principles marking the boundaries of future constitutional practice. First, it will treat the founding and amending treaties of the European Union as part of domestic law for the purposes of constitutional review, thereby setting up a two-tier system of legal rules applicable within Hungarian legal practice instead of a possible three-tier construction that would distinguish between national, international and European law. Second, in the absence of jurisdiction to review substantive (un)constitutionality (as opposed to procedural constitutionality), the Constitutional Court does not regard a conflict between domestic law and EU law as a constitutionality issue and this mandates the ordinary courts to resolve such conflict of a sub-constitutional nature. Taking these conclusions as starting points, this article sets out the possible types of conflicts that may occur between EU rules and other legal rules applicable in Hungary, weighing the constitutional relevance of these conflicts; it also outlines the directions along which the practice of the Hungarian Constitutional Court may develop in this respect.

scholarly journals Euro-sceptical or Euro-phile? A critical analysis of the jurisprudence of the German Federal Constitutional Court on the process of European integration and decision-making

2021 ◽  
Author(s):  
◽  
Bernadette Sangmeister
Keyword(s):  
Decision Making ◽  
European Union ◽  
European Integration ◽  
Constitutional Court ◽  
The European Union ◽  
European Union Law ◽  
Before And After ◽  
Federal Constitutional ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

<p>On 14 January 2014, for the first time in its history, the German Federal Constitutional Court (FCC) decided to refer a decision to the Court of Justice of the European Union (CJEU). This referral, which concerned the issue of the legality of the European Central Bank’s bond-buying practices, must be seen as “historic” with regard to European integration and the relationship between European Union law and German constitutional law, forming part of important decisions of the FCC in this field since its first euro-critical judgment, Solange I, 40 years ago. Considering the high influence the German Federal Constitutional Court has had on the process of European integration, this paper aims at identifying and critiquing the lines of argumentation developed by the FCC in recent years in the field of European integration and decision-making before and after the Lisbon judgment in 2009, paying particular attention to the currently suspended OMT Decision proceedings in order to answer the question if a shift in the jurisprudence of the FCC from a euro-sceptical to a euro-phile approach has taken place.</p>

scholarly journals Who is Entitled to the Right to Respect for Family Life Under the European Union Law?

Teisė ◽  
2019 ◽  
Vol 110 ◽  
pp. 24-45
Author(s):  
Ingrida Danėlienė
Keyword(s):  
European Union ◽  
Human Rights ◽  
Family Life ◽  
National Level ◽  
Fundamental Rights ◽  
European Convention ◽  
The European Union ◽  
European Union Law ◽  
The Republic ◽  
The Right

[full article, abstract in English; abstract in Lithuanian] The article investigates the right to respect for family life, established by Article 7 of the Charter of Fundamental Rights of the European Union, as applied and interpreted in conjunction with the right to marry and the right to found a family, laid down in Article 9 of the Charter. The standard of protection set by European Union law regarding these rights is identified by taking into account the standard of protection of the relevant rights established by the European Convention on Human Rights and the established case law of the European Court of Human Rights. Topical issues relating to the consolidation of these individual rights at the national level in the Republic of Lithuania are also addressed in the article. In doing so, an emphasis is laid on the content of the concepts of “family” and “family life” under supranational and national law.

scholarly journals Contestation of Kosovo’s Statehood from Within: EULEX Judges Adjudicating Privatization Matters through ‘Status Neutrality’

2020 ◽  
Vol 45 (4) ◽  
pp. 432-443
Author(s):  
Kushtrim Istrefi
Keyword(s):  
European Union ◽  
International Relations ◽  
Rule Of Law ◽  
International Organizations ◽  
Constitutional Court ◽  
The European Union ◽  
Independent State ◽  
Political Status ◽  
The Status ◽  
The Republic

Abstract Kosovo’s statehood has been contested by foes as well as friends. Much is known about the former and less about the latter. This contribution explores the contestation of Kosovo’s independence by the judges of the European Union Rule of Law Mission in Kosovo (eulex) working on privatization matters before Kosovo courts. As put by the Constitutional Court of the Republic of Kosovo (kcc), eulex judges working on privatization matters, “simply continued to ignore the existence of Kosovo as an independent State and its legislation emanating from its Assembly”. The kcc stated this after eulex judges working on privatization matters had refused to respect Kosovo laws and institutions subsequent to the 2008 Kosovo Declaration of Independence. This paper explores the judicial dialogue on Kosovo’s independence between eulex judges and the kcc and identifies the limitations and risks of the ‘status neutral’ policy applied by international organizations to collaborate with Kosovar institutions without prejudging its political status. This submission suggests that ‘status neutrality’ leads to either acceptance or contestation of Kosovo’s statehood and thus brings more uncertainty than clarity to Kosovo’s position in international relations.

scholarly journals Konsekuensi Yuridis Berlakunya Perjanjian Perkawinan Pasca Putusan Mahkamah Konstitusi Nomor 69/PUU-XIII/2015

2021 ◽  
Vol 7 (1) ◽  
pp. 295
Author(s):  
Si Ngurah Ardhya ◽  
I Putu Windu Mertha Sujana
Keyword(s):  
Civil Law ◽  
Court Decision ◽  
Constitutional Court ◽  
Way Of Life ◽  
Civil Registration ◽  
The Republic ◽  
The Right ◽  
Justifiable Reason ◽  
Husband And Wife

Philosophically PMK (Constitutional Court Decision) Nr. 69/PUU-XIII/2015 based on way of life, awareness, and legal ideals such as the mystical atmosphere and Indonesian Nation according Pancasila and The Constitutional of The Republic of Indonesia Article 28E Paragraph (2). Sociologically, based on legal needs society regarding the leniency when the marriage agreement was made that is the phenomenon of a husband and wife for some reason feels they needed to make a marriage agreement after the wedding day was held. Juridically, the issuance of PMK Nr. 69/PUU-XIII/2015 is not solely on the basis of unconstitutionality, but also on a conflict of norms between Article 29 Paragraph (1) of Act Nr.  Year 1974 with general provisions of the ageement in Book III Code of Civil Law. Referring to PMK No.69/PUU-XIII/2015 which was strengthened by Act Nr. 2 Year 2014, Notary has the right to ratified the marriage agreement into an authentic deed so that there is no justifiable reason for the Department of Population and Civil Registration and Office of Religious Affairs rejects the authentic nature of the deed which is validated bay notary. 

scholarly journals Keberlakuan Yurisprudensi pada Kewenangan Pengujian Undang-Undang dalam Putusan Mahkamah Konstitusi

2018 ◽  
Vol 15 (3) ◽  
pp. 642 ◽  
Author(s):  
Oly Viana Agustine
Keyword(s):  
Judicial Review ◽  
Civil Law ◽  
Constitutional Court ◽  
Analysis Method ◽  
Case Study Approach ◽  
Literature Study ◽  
Law System ◽  
Study Approach ◽  
The Republic

Keberlakuan yurisprudensi sebagai salah satu sumber hukum yang diakui di Indonesia selalu menarik untuk dilakukan penelitian. Indonesia yang terpengaruh dengan sistem hukum civil law pada dasarnya tidak mengikatkan diri pada yurisprudensi. Namun apabila ada putusan yang dianggap kontradiksi dengan putusan sebelumnya menjadi perdebatan mengenai bagaimana keberlakuan yurisprudensi yang telah ada. Mahkamah Konstitusi sebagai salah satu pelaku kekuasaan kehakiman memiliki kewenangan melakukan pengujian undang-undang terhadap Undang-Undang Dasar Negara Republik Indonesia tahun 1945. Dalam kewenangannya tersebut, terkadang Mahkamah Konstitusi dibenturkan dengan putusan terdahulu yang telah menjadi landmark namun tidak diikuti. Dengan kata lain, terdapat kontradiksi antara putusan yang terdahulu dengan putusan yang ada saat ini. Dalam penelitian ini akan dilihat bagaimana keberlakuan yurisprudensi pada pengujian undang-undang dalam putusan Mahkamah Konstitusi. Metode analisis yang digunakan adalah studi pustaka dengan menggunakan pendekatan studi kasus. Kesimpulan yang didapat dalam penelitian ini adalah bahwa yurisprudensi adalah sumber hukum yang dapat menjadi rujukan dalam memutus suatu perkara pengujian undang-undang namun tidak mengikat hakim untuk menyimpanginya berdasarkan alasan yang logis sesuai dengan pinsip the judiciary independence dan judiciary accountability serta konsepsi the living constitution.The enforceability of jurisprudence as one of the recognized legal sources in Indonesia is a compelling research topic. Indonesia that uses the civil law on law system does not bind to jurisprudence. Nevertheless, if there is a decision that is contradictory to the previous one, that will be a debate over how the enforceability of the existed jurisprudence. The Constitutional Court as one of the judicial authority has the authority to examine the law against the Constitution 1945 of the State of the Republic of Indonesia. In its authority, the Constitutional Court is bumped by a previous decision which has become a landmark but was not followed. In other words, there is a contradiction between the previous decision and the present decision. This research will see how the enforceability of jurisprudence on the judicial review in the decision of the Constitutional Court. The analysis method used is literature study using case study approach. The conclusion available in this study is that jurisprudence is a source of law that can be a reference in a union of judicial review cases but not bound by judges to deviate based on logical reasons in the judiciary independence and judiciary accountability as well as the conception of the living constitution.

scholarly journals Budget Planning in the Republic of Lithuania under the Influence of European Union Law

2019 ◽  
pp. 567-576
Author(s):  
Bronius Sudavičius
Keyword(s):  
European Union ◽  
Planning Process ◽  
Legal Regulation ◽  
Stability And Growth Pact ◽  
The European Union ◽  
European Union Law ◽  
Budget Planning ◽  
Growth Pact ◽  
The Republic ◽  
The Impact

The article deals with the problem of the impact of the European Union law on budget planning legal regulation in the Republic of Lithuania after accession to the European Union in 2004. Such questions, as harmonisation of annual and medium-term budget planning , changes in the budget planning process, the requirements of stability and growth pact and their implementation in the national law are analysed in the article.

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