Observed Through the Prism of Statistics – Nine Years of Intimate Partner Violence

1 nap 10 óra ago

The COVID-19 pandemic has also opened a new chapter concerning cases of domestic violence – social and economic tensions, isolation, the difficulty in accessing external support, and the increase in alcohol consumption seemed to fill the gaps in the walls that had widened due to years of struggle.

To illustrate, an increase of up to 25% was observed in countries with signalling systems, while in Brazil, the number of domestic violence cases increased by 40–50%; in Cyprus and Spain, the helplines received 20–30% more calls in the first days of the quarantine, furthermore, in the UK, within a week after strict social distancing and lockdown measures were introduced, the authorities received 25% extra calls related to domestic violence.

Introduction

However, intimate partner violence is no longer shrouded in obscurity despite the tense circumstances. The appreciation of the criminal offence in question has changed radically due to the support from the government and the civil sphere during the pandemic, and the cases are becoming more and more visible towards the tenth anniversary of the criminal offence, with almost nine years of law enforcement practice behind us.

The present blog post endeavours to outline the current picture of intimate partner violence by processing and analysing statistical data, which project the image of a criminal offence that is increasingly emerging from invisibility.[1] The examination opens with some thoughts on domestic violence as a phenomenon, which provides the framework of the examined criminal offence, and its raison d’être. Subsequently, reflecting on the ideas cited in the present part of the blog post, the first section it is followed by a summary of the nine years of intimate partner violence and a collection of the impressions of its prevalence, processing the latest statistical data according to the set criteria. Considering that the blog post was written in the spirit of displaying the greater or lesser results of the accumulated experiences with regard to intimate partner violence, the criminal offence that arises from its invisibility, it will be closed with a shorter conclusion, congruent with this introduction.

1. The Raison d’Être of Intimate Partner Violence – Thoughts on Domestic Violence

The concept of domestic violence is basically used to denote acts of violence between family members and intimate (sometimes former) partners, typically – but not exclusively – taking place at home; however, the diverse definitions interpret the scope of the phenomena deemed to belong here quite differently (Virág 2006, 380; Szöllősi 2005, 23–39). The narrower perception refers to the abuse within a partnership. At the same time, a broader interpretation encompasses all violence between people living in a joint household or between relatives, including those brought up in a ‘family-like situation’, and also covers the so-called also systemic abuse, which affects those residing in institutions; besides, the ‘middle way’ approach classifies abusive behaviours that appear in this ‘arrangement’ (by which we mean the ‘family’)[2] as the expressions of domestic violence (Virág 2006, 380–381). In terms of classification, it is customary to categorise certain types of domestic violence according to the nature of the abuse[3] and the victims.[4]

The conceptual and classificational uncertainties are a good indication of the fundamental peculiarity related to the recognition of domestic violence (Virág 2006, 382): based on the acquired experience under several types of research, the individual types of domestic violence seldom appear separately, but usually emerge together, alternating each other, as parts of a process;[5] as the abuses occurring in the family as a system are difficult to separate from each other. Besides other arguments (Kanyuk 2016, 32–33; Kanyuk 2018a, 216–224; Kanyuk 2018b, 20–32), this view is also justified by the fact that domestic violence should be viewed as a a criminological entity: it should also be noted that it could be regarded as one single entity by criminology, which examines criminality as a social phenomenon, substantive criminal law, which operates with normative categories, could not, or could only do so with difficulty (Pápai-Tarr 2017, 66; Virág 2006, 379).

As a consequence of the just-discussed nature of domestic violence, it should therefore be stated that it – as a concept developed by criminology – covers a vast range of behaviours that violate human rights, which differ both in terms of their danger to society and their prohibition under substantive criminal law (Váradi & Gilányi 2013, 515). The sanctioning of these acts was already present in our penal system; however, due to the pressure of civil movements and the ‘catalyst-like’ role of the increasingly large number of research results, the criminalisation of domestic violence took momentum coloured by new elements in Hungary, as in other countries as well (Virág 2006, 394).

In several strategies, the legislator committed to developing legal institutions and provisions outside substantive criminal law. One example of this is Parliamentary Resolution No. 45/2003 (IV. 16.) on developing a national strategy for preventing and effectively treating domestic violence, adopted by the Hungarian National Assembly on February 14, 2003. This considered the more careful application of the existing criminal law regulations and the introduction of some new legal institutions (e.g., restraining order) belonging to other branches of law to be a viable option; nonetheless, it did not consider the creation of a sui generis criminal offence to be justified. National non-governmental organisations (hereinafter: NGOs) representing the cause of action combating violence against women[6] saw in the creation of Act C of 2012 on the Criminal Code (hereinafter: Criminal Code, CC) a good opportunity for the ideas represented by themselves – and those of international organisations[7] – to achieve to appear in domestic criminal law as well. Therefore, at the end of a period of more than a decade full of disputes and listing proposals for solutions, within one month before the entry into force of the Criminal Code, the Hungarian National Assembly adopted Act LXXVIII of 2013 on the amendment of specific regulations concerning criminal law [Section 19, Subsection (5)], which piece of law defined the sui generis criminal offence of intimate partner violence,[8] which was incorporated in Section 212/A of the CC.

2. The Statistical Trend of Intimate Partner Violence

The innumerable factors influencing the low registration of intimate partner violence are undeniable: the anomalies in the formulation of the criminal offence, such as conflicting opinions about the requirement of regularity, as well as the uncertainties concerning the questions regarding the classification and cumulation of different criminal offences that still exist to this day (Pápai-Tarr 2015, 625), supplemented by the latency arising from the nature of the phenomena itself, definitely could lead to the emptying of the criminal offence under examination.

In addition to – and despite – all of the factors mentioned above, the trend in the number of registered criminal offences of intimate partner violence has been continuously increasing since its ‘introduction’ in July 2013 and looking at the most recent data processed in 2021, the trend shows an unbroken and increasingly marked increase (see Figure 1). The increase under the described circumstances is an absolute miracle and testifies to the necessity of the criminal offence in question. Furthermore, it is given particular emphasis by the fact that the number of registered criminal offences in total has started to decline since the introduction of the effective CC, and the total crime rate is decreasing to an unprecedented extent in Hungary (see Figure 2).

Figure 1: Registered Criminal Offence of Intimate Partner Violence (2013–2021)

Source: Unified Criminal Statistics of the Investigation Authorities and the Prosecution Service (a), registered criminal offence: intimate partner violence

Figure 2: Registered Criminal Offences in Total (2013–2021)

Source: Unified Criminal Statistics of the Investigation Authorities and the Prosecution Service (a), registered criminal offences in total

In parallel with the increasing number of intimate partner violence – in the ‘favor’ of the criminal offence becoming visible – the number of certain criminal offences mentioned in the discussed one is gradually decreasing, for which we will attempt to show some illustrative examples.

3. Imprints of the Prevalence of Intimate Partner Violence

The finding mentioned above is clearly ‘visible’ in the case of the criminal offence of duress (Section 195 of the CC). The number of criminal offences gradually decreased after the entry into force of intimate partner violence in 2013 (see Figure 3).

Figure 3: Registered Criminal Offence of Duress (2010–2021)

Source: Unified Criminal Statistics of the Investigation Authorities and the Prosecution Service; Handout of the Office of the Prosecutor General (b), registered criminal offence: duress

All this could not be clearly stated when analysing the development of the number of abuse of a minor (Section 208 of the CC), which may be since, due to the nature of the criminal offence, it is often in cumulation with intimate partner violence (see, for instance, the following judicial decisions: Debreceni Ítélőtábla Bf.4.339/2019/6.; Kúria Bfv.878/2019/9.; EBD2017.B.16.) (see Figure 4).

Figure 4: Registered Criminal Offence of Abuse of a Minor (2010–2021)

Source: Unified Criminal Statistics of the Investigation Authorities and the Prosecution Service; Handout of the Office of the Prosecutor General (b), registered criminal offence: abuse of a minor

An illustrative example is the review of the number of victims involved in the criminal offence of slander (Section 227 of the CC), as by analysing that group – rather than the criminal offence itself –, the statistical system enables a narrowing based on the relationship between the perpetrator and the victim.[9] In this way, it is visible that although slander – similarly to intimate partner violence – betoken a criminal offence whose statistical indicators are increasing, compared to the decreasing overall crime rate; narrowing it down to the range of victims of intimate partner violence, we have to consider a definite – although in 2020, a reversing – decrease following the entry into force of ‘competing’ intimate partner violence in 2013, as of 2014 (see Figure 5).

Figure 5: Registered Victims Involved in the Criminal Offence of Slander (2010–2021)

Source: Unified Criminal Statistics of the Investigation Authorities and the Prosecution Service; Handout of the Office of the Prosecutor General (c), registered criminal offence: slander

The same experiences could be drawn concerning battery (Section 164 of the CC), which shows the same statistical trends, but has a much higher number of victims than those involved in slander. In the present case, the decrease to the detriment of intimate partner violence due to the more significant numbers is even more visible in the statistical data as of 2014 (see Figure 6).

Figure 6: Registered Victims Involved in the Criminal Offence of Battery (2010–2021)

Source: Unified Criminal Statistics of the Investigation Authorities and the Prosecution Service; Handout of the Office of the Prosecutor General (c), registered criminal offence: battery

Closing Remarks: Old and New Challenges – Expanding Reactions

At the end of our analysis, it should be concluded that intimate partner violence certainly raises many dogmatic and classificational questions, as well as difficulties in interpretation (Pápai-Tarr 2015; Kanyuk 2016), and in the nine years that have passed, legal practice has not yet revealed all the dilemmas. Conscious of the anomalies regarding the criminal offence in question, the revealed statistical analyses are given even more weight. It attests to the fact that, despite all its difficulties, the criminal offence of intimate partner violence produces increasing statistical presence even among the decreasing overall crime; despite the initial doubts, the creation of the criminal offence was necessary, and there is a real need at its application.

Nevertheless, we could not ignore the fact that the existence of the criminal offence is only one opportunity, and in practice, not specifically that kind which is easily accessible by the victims of domestic violence. In order to achieve the greatest possible change concerning the current image, and to ensure that the victims be able to contact the authorities in time and with confidence, in line with the ideas of the well-recognised expert on the subject, Judge Dr. Ágnes Frech, above all, a much more powerful educational work should be done, to raise awareness of the possibility of victim assistance, to provide the effective operation of child protection alert systems and, last but not least, a versatile, up-to-date training of the professionals acting in such matters would be necessary.

At the same time, various forms of movements aimed at reducing community tolerance towards domestic violence are of outstanding importance, such as short films showing forms of abuse that – unfortunately – could also be apostrophised as 'ordinary'; a series of national campaigns, secret shelters and crisis centres created specifically for victims of domestic violence, organised by the National Crisis Management and Information Telephone Service (the so-called OKIT), operating in a procedure supported by experts; as well as legislative proposals and packages of measures created in the name of the fight against domestic violence and the achieving of a higher level of protection for families. It should also be noted that in the ‘mission’ which aims to integrate intimate partner violence into legal practice, the National Institute of Criminology (the so-called OKRI) gained invaluable merits by the preparing Research Report No. 2018/III.B/1.28. The report assessing the practical experience of intimate partner violence, based on criminal statistical data, round table discussions and professional focus group consultations, prosecutor’s questionnaires, and criminal document reviews, involved the processing of a total of 556 prosecution files (see Garai 2018).

In summary, our findings lead us to conclude that solving the problems surrounding the examined criminal offence has substantial significance. Intimate partner violence, created in the sensitive area of the fight against domestic violence, should serve as an accurate tool for those in need; for the sake of fulfilling its mission and turning the dreams of those who patronise the criminal offence into a ‘visible’ reality.

 

For a list of references, click HERE.

Author: dr. Petra Ágnes Kanyuk, Ph.D. Student, University of Debrecen, Marton Géza Doctoral School of Legal Studies.

Supported by the ÚNKP-21-3 New National Excellence Program of the Ministry for Innovation and Technology from the source of the National Research, Development and Innovation Fund.

[1] „...this criminal offence is mostly invisible as if it does not exist.” Garai 2017, 186.

[2] The following study points out the difficulties of defining the concept of 'family' in a legal sense: Madai 2021, 338.

[3] Physical violence, neglect, emotional abuse, sexual violence or abuse and economic or social abuse. For more details, see Virág, Kulcsár & Rosta 2019, 584.

[4] Abuse of children – in some cases, former – spouse or partner, abuse of the elderly and other relatives. See more ibid.

[5] „The ‘wife beating’, for example, is usually coupled with continuous mental torture and is often accompanied by sexual violence.” Morvai 1998, 14.

[6] All along, NGOs have advocated the creation of a complex, comprehensive criminal offence. Finally, the popular initiative of Pálma Halász, the head of the Élet-Érték Foundation, led to a result: „the Hungarian National Assembly should put on the agenda that there should be a sui generis criminal offence of domestic violence in Hungary.” See national popular initiative No. H/7685., adopted by the Hungarian National Assembly on September 17, 2012.

[7] Committee on the Elimination of Discrimination against Women (CEDAW), in its Concluding Comments in its Sixth Periodic Report concerning Hungary, acknowledged that the State Party had taken specific measures to combat domestic violence but expressed concern about the lack of a sui generis criminal offence regarding violence against women and domestic violence. This direction was strengthened by the Council of Europe Convention on preventing and combating violence against women and domestic violence, better known as the Istanbul Convention. The essence of the Convention is discussed in more detail in the following paper: Sebestyén 2018. In connection with the Convention mentioned above, it should be noted that the process of ratification is not without obstacles at the domestic and EU level as well. On several occasions, the European Parliament has called on the Member States that have not yet accepted the Convention, including Hungary, to ratify it without delay (see Europarl.europa.eu 2019; Europarl.europa.eu 2020). However, the Hungarian National Assembly expressly rejected the Convention’s ratification in May 2020.

[8] It should be noted that even the naming of the criminal offence caused controversy. Among others, it was suggested that the term ‘violence’ should be defined as ‘domestic’, ‘intimate’, ‘between cohabitants’, or – based on the English sample – connect them with the expression ‘at home’. Blaskó 2018, 217.

[9] It should be noted that this kind of narrowing is only possible between January 1, 2013, and June 30, 2018, due to changes in the statistical system that started in the second half of the year 2018. In this way, 2018 only contains the data for the year’s first half concerning the relationship between the perpetrator and the victim.

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The nature of the Hungarian Permanent Court of Sport

1 hónap 1 hét ago

Three regulations are relevant in the procedure of the Hungarian Permanent Court of Sport (hereinafter: HPCS). Act LX of 2017 on Arbitration (hereinafter: Vbt.), Act I of 2004 on Sports (hereinafter: Stv.), and the procedural regulations of the Hungarian Permanent Court of Sport, which explain the provisions of the Stv. It is clear that the concrete, sport-specific rules of procedure are found in the HPCS regulations. The detailed rules are found in the internal procedural rules of all Hungarian arbitration courts. They are easier to change than laws.

The court has changed since its inception. At first, it operated under the National Sports Federation, based on a recommended model regulation, then after the National Sports Federation ceased to exist, it was transferred to the Hungarian Olympic Committee (hereinafter: HOC), where it prepared its procedural regulations in 2011.

The HPCS operates under the auspices of the HOC, and its jurisdiction extends to non-Olympic sports excluded from the jurisdiction of the HOC, sports for the disabled, and leisure and student sports.

The HPCS can act in the following case groups per the classical arbitration authority, according to the parties' mutual declaration of submission:

  1. sports associations and their members, as well as in sports-related legal disputes between members. This provision covers all federations, not only the national sports federations.
  2. in sports-related legal disputes between sports federations and athletes and sports professionals,
  3. in sports-related legal disputes between sports organizations and athletes and sports professionals. It is important to note that this category does not include disputes between professional athletes who have an employment relationship with sports enterprises or employers, since only state labor courts can act in labor law disputes.
  4. in sports-related legal disputes between the HOC and its members. Among the public sports bodies, the law only mentions the HOC, but not the other three. According to the strict grammatical interpretation, this would exclude the other three public bodies from sports refereeing. It is worth noting that the Stv. did not establish the exclusive jurisdiction of the Court, so the agreement on dispute resolution between public bodies and their members enables the extension of dispute resolution to them as well.

Since the law talks about „sports-related legal disputes”, the question arises as to whether the HPCS is authorized to hear other sports-related legal disputes [e.g. legal disputes between two sports associations) in addition to the four cases just listed (a)-d)]. According to the general point of view, the list of sports laws is not an exhaustive list, the arbitration rules do not establish exclusivity.[1]

The articles of association of the sports association state in general terms or the individual agreement of the persons involved in the legal dispute that legal disputes must be referred to the HPCS. It is interesting that if a legal dispute arises between two members of a sports association, the general provision included in the articles of association of the sports association is not sufficient for their dispute resolution, but the defendant must expressly accept the arbitration procedure, so the individual agreement of the parties involved cannot be avoided.

Only in the procedural rules of the HPCS let a provision that the sports association can stipulate the arbitration procedure in its articles of association, i.e. in advance, in general, the application of the other two Hungarian arbitration courts cannot be stipulated. This is understandable, since in both commercial and agricultural matters the parties find themselves in a controversial situation on a case-by-case basis, and there are no legal entities similar to sports associations or sports associations.

The duration of the arbitration procedure shows serious differences in the case of the three arbitration courts. The acting council of the HPCS is appointed within 8 days, must hold a hearing within 30 days of its election, and, upon its completion, or within 15 days of its completion, complete the case with a decision. On the other hand, the Hungarian Commercial Arbitration Court and the Agrarian Arbitration Court should complete the procedure within 6 months from the establishment of the acting council. We can see that there are also differences in the deadlines, and the regulations of the HPCS define mandatory periods.

Stv. Paragraph (2) of Section 47 – which is also repeated in Section 1, Point 4 of the Rules of Procedure of the HPCS – is completely different from the classic principles of arbitration and allows unilateral appeal to the arbitration court in the following cases:

  1. In the matter of athlete certification, transfer, and related competition license issuance and revocation, if the two-stage procedure has already been conducted within the sports association. The text of the law does not state it clearly, as it includes the sports professional, but he cannot have a confirmation-transfer case.
  2. A second-degree sports association decision containing a serious disciplinary penalty according to Stv. Paragraph (2) of Section 14 can be appealed by the disciplinary party. The party here can be an athlete, a sports professional, or a sports organization.
  3. A sports organization can also unilaterally apply to the HPCS if the sports association denies it the right to start in the competition system.[2]

It is important that in all three cases there is a 30-day limitation period from the delivery of the decisions for submitting the claim. In these three cases, the claimant can choose between the state judicial process and the arbitration procedure, which is also unique, although it stems from the nature of these unilaterally initiated procedures.

In these case groups, the arbitration office uses an accelerated procedure, so the arbitration board must be appointed within 8 days of the receipt of the request, and it must hold a hearing within 15 days of the appointment and make a substantive decision within 15 days after the end of the hearing. The decision can take two directions: either the arbitral tribunal rejects the claim, or it accepts it, so it orders the sports association to proceed with a new procedure, or it can mitigate its decision.

The rules of procedure of the Permanent Arbitration Court of Sport emphasize that the principle of equal treatment and the complete exclusion of the public must apply during the procedure. This is not only specific to sports arbitration, it occurs in all arbitration proceedings. Interestingly, Section 35 of the procedural regulations of the Agrarian Arbitration Court describes that the presence of additional persons requires not only the consent of the parties but also the consent of the hearing board.

The defendant must submit a response to the plaintiff's claim, and also has the right to file a counterclaim and set-off objection. These are the effects and features of the civil procedure code on the arbitration procedure.

The parties can agree on the person of the arbitrator, in the absence of such an agreement, the president of the arbitration court appoints the arbitrator. In the case of a three-person panel, the plaintiff is entitled to nominate one judge in his claim and the defendant in his counterclaim (in the absence of this, the president nominates instead of the parties), and the two arbitrators appointed in this way jointly name the third member of the panel, who is also the panel will also hold the post of president. If the two arbitrators cannot agree on the person of the council president, then in this case too, the president will be entitled to appoint the president of the acting council. We can therefore see that the parties have a meaningful say in the determination of the composition of the acting arbitration court, but they do not have the opportunity to prevent its proceedings in the absence of a judge appointment, at most the proceedings can only be minimally extended

In the case of a substantive decision, the arbitral tribunal may issue a judgment or a partial judgment. It makes a non-substantive decision in the form of an order.

The rules of procedure of all three arbitral tribunals have procedural fee tables and arbitration fees. I present them only as examples:

  1. Commercial Arbitration Court: 2.4% for claims between 0-5,000,000 HUF, but a minimum of 40,000 HUF.
  2. Agrarian Arbitration Court: 2.4% for claims between 0-5,000,000 HUF, but a minimum of HUF 80,000 HUF.
  3. HPCS: 3.6% for claims between 0-5,000,000 HUF, but a minimum of HUF 120,000 HUF.

We can see that HPCS has to pay the largest amount of fees, but it should be noted that the Commercial Arbitration Court also has a uniform registration fee of 25,000 HUF, as well as that the Commercial Arbitration Court makes decisions in hundreds of cases every year, which makes it stand out among the arbitration courts.[3] The rules of procedure of the Agrarian Arbitration Court only mention the registration fee concerning the accelerated procedure.

With regard to public charges, all three regulations refer to Act XCIII of 1990 on Duties. there is a reference to the law. Accordingly, the arbitration fee is uniformly 1% of the value of the subject of the proceedings, but at least 5,000 HUF and at most 250,000 HUF. If the value of the procedure cannot be determined, the fee is 10,000 HUF. (This last sentence is not included in the rules of procedure of the Commercial Arbitration Court.)

Finally, let's look at the differences in jurisdiction between the International Court of Arbitration for Sport (hereinafter: CAS) and the HPCS because the two organizations show a definite difference.

The jurisdiction of the HPCS is significantly narrower than the jurisdiction of the CAS, so it does not contain legal disputes between sponsors and athletes or sports organizations. It is also worth mentioning that in cases related to the issuance of competition licenses, verification and transfer, sports disciplinary and starting rights, the Sports Permanent Court of Arbitration can act without the prior submission of the sports association, while the CAS procedure is clearly excluded in the absence of an express declaration of submission by the parties.[4]

Tamás Sárközy (former member of the Permanent Court of Arbitration for Sport) stated that the HPCS regulates a different area compared to other arbitration courts because in sports self-regulation is strong and there is no state coercion. According to him, the fastest arbitration takes place at the HPCS, although currently professional sports are based on employment contracts, so given these legal relationships, the jurisdiction of the Court of Arbitration does not cover, thus the number of cases brought before the Board is also low. Another reason may be that sports organizations do not fully understand the benefits of arbitration, so they do not turn to it.

 

For a list of references, click HERE.

Author: Levente Porcsin J.D., Ph.D. candidate, University of Debrecen, Marton Géza Doctoral School of Legal Studies

 

[1] Fejes 243.

[2] Fejes 244.

[3] https://www.mnb.hu/bekeltetes/alternativ-vitarendezesi-konferencia/alternativ-vitarendezes-magyarorszagon-konferencia-2016-november-30-december-1

[4] Szemesi 102.

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Comparison of the production and consumption of energy in the European Union

1 hónap 3 hét ago

The European Union has been linked to the energy sector from the beginning. However, it is worth noting that this area is still a shared competence in the integration. The European Union has many challenges in the field of energy policy, such as increasing import dependence, limited diversification, increased energy demand, climate change, the lack of renewable energy sources, and shortcomings in the integration of energy markets. Among these, energy dependence is largely determined by the evolution of energy consumption. Therefore, it is important to examine the relationship between energy production and consumption between 2010 and 2020 in the European Union.

Introduction

The topic of the article is the quantity of the energy produced and consumed in the states of the European Union between 2010 and 2019/2020 (the official data calculates with 27 states, UK excluded). In my opinion, this topic and this information is essential to form an unbiased opinion on the energy use and its regulatory issues, in the light of the events of the last couple of months, since the start of the Russian-Ukrainian war.

This essay would be too lengthy if I examined all sources of energy one by one, so its scope will be limited to petroleum and gas, and, in contrast with these two, renewable energy. The data below is from the official pocketbooks of the EU (EU energy in figures, from 2012 and 2021).[[1]]

Production of energy

First of all, we should look at energy production, as it’s a convenient starting point from which we can move on to examine some other areas of the energy market. Counting all fuels, the quantity of the energy produced in the EU in the years 2010 and 2019 was:

Figure 1: Quantity of production

2010

2019

697.6 mtoe

608 mtoe

Source: Own editing[2]

The types of fuels produced in the EU include nuclear, solid fossil fuels, renewable and biofuels, gas, petroleum/oil products, wastes (non-renewable), and peat and oil shale/sands. As we can see, the production dropped 89.6 mtoe in 9 years, which is a 12.84% drop in percentages. For comparison, this amount is more than Hungary’s (26.71), Romania’s (33.11) and Slovakia’s (17.02) yearly usage in 2019, combined.

In terms of fossil energy carriers, the European Union is most dependent on Russia, the reason for which can be traced back to its eastern expansions. After all, these countries are exposed to the uncertainties of gas supply from the East. Due to this increase in dependence on Russia, the European Union has already faced the need to develop a new energy policy in 2005.

The 2006 Russian-Ukrainian gas dispute further increased mistrust against Russia and made the Union realize that supply disruptions represent a real risk. In order to solve this problem, the Green Book on “European strategy for the sustainability and competitiveness of energy supply and security” was published in 2006.[[3]] It is true that the member states were only partially affected by the energy crisis caused by the Russian-Ukrainian conflict, however, it was pointed out that guaranteeing energy security may exceed the competencies of national frameworks. Subsequently, a number of regulatory proposals were made for the coordinated management of supply security and tackling supply problems, aimed at strengthening community competencies.[[4]] However, the Ukrainian-Russian war that broke out in 2022 proved that these measures were insufficient.

Let’s take a look at the production, separating the fuels:

Figure 2: Production by separating the fuels

 

2010

2019

Petroleum/Oil products

102.7 mtoe

23.6 mtoe

Gas

156.3 mtoe

52.3 mtoe

Renewable

166.6 mtoe

225.0 mtoe

Source: Own editing

As we can see, oil and gas production dropped significantly, and the production of renewable energy is on the rise (Nuclear power is not included here, but the numbers show a small decrease in production between 2010 to 2019). Energy produced in the EU made up 7% of the world’s energy production in 2010, however this number went down to 4.1% in 2019 (The largest producer is the Asian region, without including Russia).

As can be seen, the production of fossil energy decreased, while that of renewable energy sources increased. This is thanks to the support mechanisms of the European Union. However, as we will see below, despite the fact that the production of renewable energy sources is beneficial for environmental protection, it increases the EU's import dependency, which makes the community vulnerable (as shown by rising energy prices and uncertainty due to the Ukrainian-Russian conflict).

Consumption of Energy

We’ve taken a look at production in the EU; now let’s examine consumption with the same method, comparing the data from 2010 and 2019.

Figure 3: Quantity of Consumption

2010

2019

1559.45 mtoe

1454.02 mtoe

Source: Own editing

As we can see above, there was a decrease of 105.43 mtoe in consumption, which is a 6.76% drop in percentages. As I have mentioned above, the reduction of the production was 12.84% in percentages, nearly double that of the reduction of consumption. Now, if we subtract the consumption from the production (2019), the amount of energy which had to be imported is 846.02 mtoe.

However, the official sources of information declare that in 2019, the EU imported 909.1 mtoe of energy (All of the countries import more than they actually consume in a year, loading the storages). Consumption, separating the fuels:

Figure 4: Consumption by separating the fuels

 

2010

2019

Petroleum/Oil products

617.1 mtoe

502.2 mtoe

Gas

441.8 mtoe

335.7 mtoe

Renewables

172.1 mtoe

229.7 mtoe

Source: Own editing

In 2010, oil accounted for 35.1% of all fuels, meanwhile the share of gas was 25.1%, so altogether, they made up 60,2% of the total. In 2019 however, the share of oil was 34,5% and the share of gas was 23,1%, so altogether, they amounted to 57,6%, which is 2,6% lower than before.

However, it’s worth to mention that although there is a decrease in the use of oil and gas, these two types of fuels are still by far the two biggest sources of energy, since the third biggest source of energy is the category of renewable and biofuels with a 15.8% share in consumption.

Although renewable energy is only the third biggest source of energy in terms of consumption,  national targets are set for member states in order to increase the production of renewable energy: „for the  share  of  renewable  energy in  gross  final  energy  consumption,  of  the  data available  on  the  EUROSTAT  website  corresponding  to  2017,  the  following  countries have  reached  and  exceeded  the  2020  target  (in  alphabetic  order):  Bulgaria,  Czechia, Denmark, Estonia, Croatia, Italy, Lithuania, Hungary, Romania, Finland, Sweden”.[[5]]

Last but not least, as mentioned before, the EU produced only 4.1% of all energy produced in the world in 2019; nonetheless, its member states used 10.2% of all energy produced in that year, even though the population of these states (circa 446.5M [[6]] people combined) only made up about 5.7% of the population of Earth.

Summary

Above, I compared the numerical data of energy production and consumption. The European Union is in a difficult position when it comes to regulating the energy sector, as the area is shared with the member states. The analysis shows that energy consumption has increase between 2010 and 2020 in the EU. Meanwhile, the integration seeks to reduce the use of fossil energy and increase the share of renewable energy sources in order to achieve environmental protection goals. The data also show this, since while the production of the former has decreased, that of the latter has increased over the past 10 years. However, as the Russian-Ukrainian war of 2022 showed, the energy dependence of the integration is high due to the energy dependence of Eastern European countries on Russia, and the increase of renewable energy sources cannot currently increase the energy independence of the EU. This is also why we feel the negative effects of the Russian-Ukrainian war, e.g.: an increase in energy prices.

My intention with this article is to provide some independent (of politics), unbiased information on the situation of energy produced and used in the European Union. If you are interested in this topic, note that there is plenty of research in this field: Marrero and Ramos Real (2013) assessed trends in energy intensity, i.e., the relationship between final energy consumption and GDP, focusing on industry, construction, services and agriculture. In their study they assessed the drivers of changes in energy intensity in the EU15 from 1991 to 2005 pointing to structural changes and energy efficiency as key drivers. Focusing on a much shorter period (2001-2008), Fernández González et al. (2014) studied the factors behind the change in aggregate energy consumption in the EU27[[7]].  Although the topic at hand is extremely complicated, with thousands of data points, I hope this article could provide some valuable insight.

Author: Pella Sebestyén Márk, law student, University of Debrecen, Faculty of Law

The study was made under the scope of the EFOP-3.6.1.-16-2016-00022 "Debrecen Venture Catapult Program".

 

[[1]] https://op.europa.eu/en/publication-detail/-/publication/41488d59-2032-11ec-bd8e-01aa75ed71a1/language-en (Download: 2022.07.01.)

[[2]] To explain the metric used: „Mtoe is an acronym that stands for million or mega tonnes of oil equivalent. The unit quantifies the amount of energy released when burning one mega tonne of crude oil. The respective Mtoe value of different fuels varies.”

[[3]] Green Paper - A European Strategy for Sustainable, Competitive and Secure Energy, COM (2006) 0105.

[[4]] Lovas Dóra: Liberalizáció és reguláció az Európai Unió energiapolitikájában. Debreceni egyetem, Állam- és jogtudományi kar, Debrecen, 2021. 160-161.

[[5]] http://ojs.ecsdev.org/index.php/ejsd/article/view/917/912 (Download: 2022.07.01.)

[[6]]https://ec.europa.eu/eurostat/databrowser/view/TPS00001/bookmark/table?lang=en&bookmarkId=c0aa2b16-607c-4429-abb3-a4c8d74f7d1e (Download: 2022.07.01.)

[[7]] Samuel Thomas- Jan Rosenow: Drivers of increasing energy consumption in Europe and policy implications. Energy Policy 2009/november DOI:10.1016/j.enpol.2019.111108

Kategória: Energy SupplyEuropean UnionBrexit Eng: Fogyasztóvédelem: Consumer Protection: 16th Anniversary: 
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Key highlights of a study: The situation of women in public transport

2 hónap 2 hét ago

The characteristics of people's daily transport routines are different, as they differ according to the size of the settlement, various social and demographic characteristics, different travel destinations and even the season and time of day. [[i]]

In our empirical survey, we chose to examine one of the most significant influencing factors, namely the gender aspect in Debrecen and its immediate vicinity. According to a 2019 OECD report, the needs of men and women in public transport are different. The latter prefer to use public transport more than the opposite sex, yet their needs are taken into account less when making transport decisions. [[ii]]

Introduction

Access to reliable, safe and affordable transport is essential for the proper social and economic participation of people and it is an integral part of human well-being. Men and women generally have different preferences for transport, but transport policies do not take into account gender differences in transport. [[iii]] However, ignoring women’s transport and mobility preferences, among other things, limits their economic and social participation. For example, a study found a negative correlation between commuting time and women’s participation in work. [[iv]]

If commuting time increases by one minute in metropolitan areas, it will result in a reduction in the workforce of women of around 0.3 percentage points. In addition, women do not simply commute between work and home, but additional journeys related to household responsibilities, such as shopping and caring for children and the elderly, play a large part in their lives. It can also be stated that women, on average, travel less frequently and for shorter distances and are more willing to reduce car use than men. [[v]]

It can therefore be concluded that when public transport is available, women prefer it. On the other hand, shorter and more diverse travel destinations can make women an attractive target for public transport. According to a 2018 study covering eight European and Asian cities, women travel, on average, less than men, use more public transport and travel more off-peak. [[vi]] However, as women’s travel habits are more complex, they tend to prefer more flexible modes, but at the same time public transport modes are more attractive to them. If decision-makers offered better alternatives, women would be more likely to choose to travel by car and prefer public transport. If decision-makers want to encourage flexible and sustainable urban development, in which the development of transport dominates, policies that take greater account of women's preferences must be designed and implemented. Indeed, although women prefer to use public transport, most cities do not have transport programs that focus on improving the user experience for this group, especially with regard to their travel goals, their sense of security and their off-peak travel time. Transport safety is a key factor in shaping women’s mobility preferences and choices, especially in urban areas where more women use public transport. For example, a study found that the vast majority of women worldwide do not feel safe in public transportation and have previously experienced some form of physical or verbal harassment in public. [[vii]]

If women do not feel safe, they often prefer to take a car or use a taxi. It can be concluded that if decision-makers want to increase their use of public transport, they need to improve the safety of their services and the travel experience.

In order to take the situation of women into account in public transport as much as possible, it is necessary to assess their needs and involve them more closely in decision-making. Involving this group can improve legitimacy, participation, and ultimately the quality of service. After all, it is often assumed that different genders benefit equally from infrastructure development, although they do not recognize the potential different effects on women and men. For example, an urban development project that also affects transport should pay more attention to the quality of public lighting, safe public spaces and public transport.

We empirically measured the relationship of women with public transport. For the first time in the research, five in-depth interviews were conducted with two mothers aged 25-35 raising young children and three respondents aged 45-55 raising older children. After summarizing the responses and drawing conclusions, we surveyed the needs of women in public transport anonymously using an online questionnaire, which resulted in 419 (86.7% female) responses.

In compiling the questions of the questionnaire and the interview, in addition to the previous experience of the Debrecen Regional Transport Association (DERKE), the results of international research also helped to achieve the goals. For example, according to a survey in the UK and Jakarta, women do not feel safe on public transport. [[viii]]

The situation has only been exacerbated by the COVID-19 pandemic, which has significantly changed daily mobility habits worldwide as self-owned cars and bicycles have become the most popular means of transportation, while the use of public transport and travel sharing services has taken a back seat. [[ix]]

In several countries, public transport is being pursued with a stronger focus on women, such as the creation of wider sidewalks in Vienna to help mothers with small children, improvements to public lighting, and access to streets and public transport. [[x]]

The solution in New Delhi, where women can use public transport free of charge, is a highlight, a step that is expected not only to reduce air pollution but also to increase women's safety and security. In support of the latter objective, cameras (approximately 150,000) have been installed in several public areas. Tokyo and Osaka went so far as to introduce segregated transportation. Women, people with disabilities, and children and their caregivers can travel on specially designated cars on the railways (similar solutions exist in Mexico City, Dubai, Cairo, and Tehran).

Research results

We tried to narrow down the empirical research to the area of Debrecen.

The interview

Each of the five interviewees regularly uses public transport during their travels. However, those who have a car use public transport specifically only for some strong extra motivation - such as environmental protection, raising children -. Interestingly, however, costs do not play a significant role for the majority, and cycling is only an option for one of the young mothers, while others are afraid of urban cycling.

The terms “crowd” and “waiting” first came to mind for all respondents about public transport, as it is (especially the latter) very burdensome for young children. The lack of stops and vehicles and the lack of cleanliness were a real problem for older mothers.

According to the interviewees' subjective opinion, there is basically no difference in the expectations of women and men towards public transport and they have only identified it as an indispensable way to reach their destination, while they also questioned the importance of the lack of travel etiquette. In their view, there are also problems with the transfer of seats and the courtesy of fellow passengers.

It is important to point out that mothers with small children often use public transport services outside peak hours, especially until the child is in public education. Stakeholders in this age group unanimously identified vehicles arriving and departing too early as the main problem, as they believe that arriving at the stop several minutes before the scheduled departure of the flight does not reach what is possible with a child and all accessories (stroller, changing bag, shopping). together is particularly problematic. This results in another expectation coupled with children’s impatience. However, it should be noted that several positive examples have been offered concerning the attitude of drivers.

Questionnaire

Based on the responses, the questionnaire was compiled into three main sections. Thus, in the first part, we tried to explore social and demographic issues and travel habits, and then tried to get a complete picture of the factors that help and hinder the use of public transport. Finally, we also gave room for open proposals.

For most respondents, work and shopping are their primary destinations. The most commonly used mode of transport is public transport (78.5% use daily), while cycling and scooter transport are the most rejected. It can be stated that the proportion of public transport users is higher in families with older children.

Based on these results and interviews, it is likely that women will “return” to use public transportation as soon as their child gets older, but this is not guaranteed at all. Although we cannot, of course, predict this, perhaps the change in residence over time may have an impact on the process. According to the questionnaire survey, it is worrying from the point of view of public transport that the use of public transport is extremely low among women living in a single-family zone with children under the age of two. This group has already clearly switched to passenger cars and further outbound population movements are expected in these areas, including a reduction in the use of public transport.

As for the subjective opinion of the respondents, almost half of the respondents are satisfied with the public transport services. Satisfaction is higher than average for those living in the city center, while the opposite trend is seen for those living in the suburbs.

The results show that women 's travel among those raising children under the age of two usually does not fall during peak periods, which is no longer the case for women whose children are over this age. Based on these, we can see a significant difference in terms of our proposals, which also confirms the everyday experience and the results of the in-depth interview survey: parents of young children, who typically travel with prams or baby carriers, tend to travel in much higher proportions during less saturated periods, while the peak period is again dominant for parents with children that are already walking independently and typically no longer using prams.

One of our questions was intended to assess the burden of waiting. Waiting is mostly a problem for those with small children, including mothers raising children under the age of two. The distribution of responses to the question by those raising older children has already given below-average importance to waiting as an annoying factor.

The assessment of travel etiquette is not positive, although it should be noted here that the the extreme negative value allowed in the questionnaire was not the most commonly marked one, and in response to an open question, several people explained that this could not be blamed on the service provider at all. All this is supported by the fact that the lack of courtesy is also experienced by those who are otherwise satisfied with the service. In this question, by the way, we have not discovered a pattern related to the age of the child, moreover, contrary to our expectations, the younger age group is less tolerant of rude behavior, which may be important from a communication point of view.

The statement that mothers with small children always have a seat on the vehicles divides respondents. Although many share this view, there is a slight majority of respondents who disagree with this. Those raising a young child see the situation as bad more commonly than the values ​​of those raising a child over the age of ten or the entire sample.

According to a slight majority of respondents (51%), the driver does not have to warn the traveling public about giving up their seat. Interestingly, young people in particular disagreed with this statement. Based on the etiquette results above, we can say that they may have interpreted the question that it is a pity that the suggestion arises at all.

We agree with the statement that children enjoy travelling on public transport vehicles, in line with the interviews, both on the basis of the whole population and the individual subsamples.

Based on the answers we received to our question about extraordinary incidents and the availability of information about them, we can state that the absence of information is not age-dependent. With this, we have to reject the hypothesis that the younger age group would receive more or earlier information on the Internet (news sites, applications, etc.). (Answers to open-ended questions can be found in the Research Report. [[xi]])

Summary: Suggestions

The results of our survey can be summarized as follows:

Waiting with a small child is especially stressful for both the child and the parent. With the youngest children, a higher proportion of trips take place outside peak periods. For this reason, it may be important to prevent public transport vehicles from running earlier than scheduled, to “decorate” the passenger waiting area, to display entertaining visual elements, and to provide much more extensive and effective passenger information (about disruptions in service, delays, accidents, etc.). We consider it very important to provide passengers with up-to-date timetable data and information on the fulfilment of the timetable as soon as possible. The real-time passenger information software side has evolved a lot in the last decade, as there are no longer any technical barriers to the immediate delivery of information. Keeping pace with the technical possibilities, however, it is necessary to establish a regulatory framework for real-time passenger information on the service provider side so that front-line staff are aware in all circumstances of when and how the information should be provided.

Reserved seats for travellers with small children may be required to enhance the travel experience. In addition, the extension of the use of the disabled stop button to indicate someone wishing to alight with a stroller and the clear communication of this function on the vehicle should be considered.

Finally, specific training for drivers should be provided concerning issues such as the avoidance of using loud sound signals too early when closing the doors of the vehicle.

 

Authors: Mihály Dombi PhD, assistant professor, DE GTK Institute of Economics and Dr. Dóra Lovas, Assistant Lecturer at the Faculty of Law of the University of Debrecen; Research fellow at MTA–DE Public Service Research Group and Zoltán Jónás, President of the Debrecen Regional Transport Association.

The study was made under the scope of the EFOP-3.6.1.-16-2016-00022 "Debrecen Venture Catapult Program". 

 

[[i]] https://www.oecd.org/gov/gender-mainstreaming/gender-equality-and-sustainable-infrastructure-7-march-2019.pdf (2022.06.15.)

[[ii]] Részletesebben: https://www.derke.hu/sites/default/files/DERKE_kutatasi_jelentes_noi_utasok_2022.pdf

[[iii]] Sharon Sarmiento: Household, Gender, and Travel, Baltimore, 1996. https://www.fhwa.dot.gov/ohim/womens/chap3.pdf (2022.06.15.)

[[iv]] Black, Dan and Kolesnikova, Natalia and Taylor, Lowell J., Why Do So Few Women Work in New York (And So Many in Minneapolis)? Labor Supply of Married Women across U.S. Cities (March 1, 2012). FRB of St. Louis Working Paper No. 2007-043H. Available at SSRN: https://ssrn.com/abstract=1129982 or http://dx.doi.org/10.2139/ssrn.1129982 (2022.06.15.)

[[v]] Patrick Moriarty and Damon Honnery: Determinants of urban travel in Australia. 28 th Australasian Transport Research Forum, 2005. https://www.researchgate.net/publication/233779196_Determinants_of_urban_travel_in_Australia (2022.06.15.)

[[vi]] Wei-Shiuen Ng and Ashley Acker (2018), Understanding Urban Travel Behaviour by Gender for Efficient and Equitable Transport Policies, International Transport Forum Discussion Paper No. 2018- 01, https://www.itf-oecd.org/sites/default/files/docs/urban-travel-behaviour-gender.pdf (2022.06.15.)

[[vii]] https://www.eva-akademie.de/fileadmin/website/projekte/sozialer_dialog/l_eva_social_dialogue_pr_hu_03.pdf

[[viii]] https://www.itf-oecd.org/sites/default/files/docs/urban-travel-behaviour-gender.pdf (Letöltés dátuma: 2022.06.15.)

[[ix]] Continental Mobility Study (2020), https://cdn.continental.com/fileadmin/__imported/sites/corporate/_international/german/hubpages/10_20presse/studien_und_publikationen/mobiliteatsstudien/2020/mobistud2020_welle_2/20210623-continental_mobility_study_wave2.pdf (2022.06.15.)

[[x]] https://g7.hu/elet/20190801/a-nok-hasznaljak-tobbet-a-tomegkozlekedest-megsem-torodik-senki-az-igenyeikkel/

[[xi]] https://www.derke.hu/sites/default/files/DERKE_kutatasi_jelentes_noi_utasok_2022.pdf (2022.06.15.)

Kategória: Public ServicesBrexit Eng: Fogyasztóvédelem: Consumer Protection: 16th Anniversary: 
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Recent developments in the Article 7 proceedings against Hungary and Poland

3 hónap ago

On 5 May 2022, the European Parliament called for the Council and the Commission to take more action to address the deterioration of EU values in Hungary and Poland in a resolution adopted with 426 votes to 133 and 37 abstentions.

In the ongoing Article 7 procedures, the French Presidency of the Council organised one hearing with the Polish government in February, while another with Hungarian authorities will take place in June. In the case of Poland, the procedure was originally initiated in December 2017 by the European Commission with the Parliament formally backing this move in a resolution adopted in March 2018, while in the case of Hungary, the procedure was triggered by the Parliament in September 2018. Despite the deteriorating situation in both countries in recent years, member states have thus far avoided voting to determine whether there is “a clear risk of a serious breach” of the EU’s common values.

In the resolution of 5 May, Members of the Parliament (MEPs) welcome that the Presidency of the Council resumed conducting hearings under Article 7(1) of the Treaty but express regret over the fact that the hearings have not yet led to an improvement in the rule of law, democracy and fundamental rights in Poland and Hungary, and that the situation in both countries has continued to deteriorate since the procedure under Article 7(1) TEU was triggered, as documented in numerous reports and statements by the Commission and international bodies, such as the UN, the Organization for Security and Co-operation in Europe and the Council of Europe, and as confirmed by numerous rulings by the Court of Justice of the EU and the European Court of Human Rights.

The resolution urges the Council to show “genuine commitment” and make “meaningful progress” to protect European values. The resolution insists that Hungary and Poland’s failure to implement the numerous judgements made by the European Court of Justice and the European Court of Human Rights is unacceptable and something that the Council should take into account when assessing “a clear risk of a serious breach of the values set out in Article 2 TEU”.

The text calls for the hearings to be conducted with a more consistent, transparent and firm approach. The hearings should be organised in a regular, structured and open manner and must entail concrete follow-up, swift adoption of recommendations, with clear deadlines, to the member states in question. It emphasises that “unanimity is not required in the Council to identify a clear risk of a serious breach of Union values”.

MEPs once again demand that the Council keep the Parliament promptly and fully informed at every stage, which has not been the case so far. There is an imminent need for a comprehensive EU mechanism for EU values, they reiterate, condemning the refusal of the other institutions to enter into negotiations with the Parliament to devise such a tool.

The Commission must also do better, according to the Parliament, which notes that it started a formal procedure against Hungary under the Rule of Law Conditionality Regulation in April, but not for Poland. In the case of Hungary, MEPs expect Commission to continue to make steps forward as soon as possible and expect the Council to bring the procedure against Hungary to a successful conclusion without delay and as a matter of priority. In the case of Poland, MEPs implore the Commission to depart from its narrow interpretation of the Conditionality Regulation which effectively excludes “a serious risk affecting the financial management of the Union and its financial interests” as a condition under which the conditionality mechanism should be activated when assessing breaches of the principles of the rule of law in a Member State, even though the Regulation clearly establishes that endangering the independence of the judiciary constitutes a breach of the principles of the rule of law.

Further, MEPs call on both institutions to refrain from approving Hungary and Poland’s national plans under the Recovery and Resilience Facility. This should only happen when both countries comply fully with all European Semester recommendations in the field of rule of law, and only after they implement all relevant judgements of the Court of Justice of the EU and the European Court of Human Rights. The Commission should also use all tools at its disposal to ensure that the citizens and residents of the Member States concerned are not deprived of the benefits of EU funds due to their governments’ violation of the rule of law.

In the case of Hungary, the first response to the reopening of the Article 7 procedure comes from justice minister Judit Varga, who, following a meeting of EU affairs ministers in Brussels on 23 May, reiterated that Budapest is standing firm and does not intend to take any steps to please Brussels.

“The most important message is that on April 3 Hungarians have decided," Varga said. "People are also following European events, and their response to the Article 7 procedure is that they support the Hungarian government's policy on Europe and on all other issues related to the rule of law. They know that what the Hungarian national conservative government is doing, is good for the Hungarian people. And a mandate of more than three million voters overwrites everything and gives the right answers to everything."

This position is not without risks, however, given that Brussels has recently approved the so-called budget conditionality mechanism, which means that beyond the vague threat of suspension of voting rights, Hungary could soon find itself facing the very real consequence of losing access to EU funds if it fails to demonstrate a commitment to fight corruption.

Further reading:

European Parliament resolution of 5 May 2022

Brussels says Hungary's rule of law situation has deteriorated, as Budapest digs heels in (Euronews.com)

Kategória: European UnionBrexit Eng: Fogyasztóvédelem: Consumer Protection: 16th Anniversary: 
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CJEU: national principles of procedural law cannot preclude courts from reviewing potentially unfair terms in consumer contracts

3 hónap ago

In a series of judgments adopted 17 May 2022, the Court of Justice of the European Union (Court) further developed its interpretation of the provisions of Directive 93/13/EEC on unfair terms in consumer contracts, particularly with regard to those national procedural principles which might impede the effective exercise of the rights that individuals – specifically, consumers – derive from EU law.

In the requests for a preliminary ruling submitted by Romanian, Italian and Spanish courts, the Court was asked to rule on whether national procedural principles, such as res judicata, may limit the powers of the national courts, in particular those dealing with enforcement proceedings against the consumer, in assessing whether contractual terms are unfair. Are principles of national procedural law which do not allow that assessment at the enforcement stage, including by the enforcing court of its own motion, because of the existence of prior national judicial decisions, compatible with Directive 93/13?

On the one hand, the Court emphasized the importance of the principle of res judicata – at both national and EU level – in ensuring the stability of the law and legal relations, as well as the sound administration of justice by requiring that judicial decisions which have become definitive, after all rights of appeal have been exhausted or after expiry of the time limits provided to exercise those rights (time-barring) no longer be called into question.

On the other hand, the Court pointed out that the system of protection introduced by Directive 93/13 is based on the idea that the consumer is in a weak position against the seller or supplier, as regards both his or her bargaining power and his or her level of knowledge. In respect of that weaker position, Directive 93/13 provides that unfair terms are not binding on consumers: this provision is mandatory, aiming to replace the formal balance of the contract with an effective balance.

As addressed previously in a two-part blog post (available here and here), this weaker position is especially problematic in consumer markets involving particularly complex transactions, such as the financial products and services market: as the European Commission noted in a 2010 paper, consumers are often ill-prepared to make sound decisions about retail financial products not only due to asymmetric information or limited financial literacy, but also due in part to instincts that drive consumers towards choices that might be inconsistent with their long-term preferences. Due to the difficulty of meeting the standard of a reasonable and well-informed 'average consumer', the protections afforded by the aforementioned provision of Directive 93/13 play an even more significant role in cases involving financial markets.

These observations are particularly relevant considering that the four cases in question involve proceedings between consumers and financial institutions operating in Member States. In three of the cases, enforcement proceedings have been initiated against the consumer; in the fourth case, the consumer applied for the repayment of sums wrongly paid under a term declared to be unfair.

In Case C-725/19 (Impuls Leasing Romania), the request for a preliminary ruling was made in proceedings concerning an objection to enforcement lodged by the consumer against enforcement measures relating to a leasing contract.

The Romanian court stated that while the leasing contract did contain certain potentially unfair terms, the Romanian legislation does not allow the court hearing the enforcement proceedings to assess – of its own motion or at the request of the consumer – whether the terms of a contract concluded between a consumer and a seller or supplier are unfair.

Instead, there is a separate action in which the unfairness of the terms of such a contract may be reviewed by the court hearing that action, during which the court hearing the enforcement proceedings has a discretion to suspend those proceedings. However, the consumer seeking suspension is required to pay a security based on the value of the contract, even though, as the Court pointed out, a debtor in default is not likely to have the financial resources necessary. In addition, these costs cannot dissuade the consumer from bringing court proceedings for the purpose of assessing the potential unfairness of the contractual terms.

Accordingly, the Court held that EU law does not permit such national legislation.

In Joined Cases C-693/19, SPV Project 1503, and C-831/19 (Banco di Desio e della Brianza and Others), the requests for a preliminary ruling were made in proceedings concerning the enforcement of instruments which have acquired the force of res judicata. The Italian courts hearing the enforcement proceedings were uncertain whether certain clauses and terms were unfair in the financing and guarantee contracts on the basis of which the creditors obtained the orders for payment which became final.

The courts noted however, that, in accordance with the principles of national procedural law, where there is no objection by the consumer, the force of res judicata of an order for payment implies the fairness of the terms of the guarantee contract even if there was no express examination by the court of the unfairness of those terms.

The Court found that such national legislation is liable to render meaningless the national court’s obligation to examine of its own motion the potential unfairness of contractual terms. The requirement of effective judicial protection necessitates that the court hearing the enforcement proceedings is able to assess whether the contractual terms serving as the basis for an order for payment – even those the debtor did not lodge an objection against – are unfair.

In Case C-600/19 (Ibercaja Banco), the request for a preliminary ruling was made in proceedings concerning a claim for payment of interest due to the bank on account of the failure by the consumer to perform the mortgage loan agreement concluded between those parties. It was not until the proceedings reached the enforcement stage – specifically after the auction of the mortgaged property – that the consumer pleaded the unfairness of certain clauses: that is to say, at a point where the effect of res judicata and time-barring neither allow the court to examine of its own motion whether the contractual terms are unfair nor the consumer to raise the unfairness of those terms.

According to the Court, EU law does not permit national legislation which, by virtue of the effect of res judicata and time-barring, neither allows a court to examine of its own motion whether contractual terms are unfair in the course of mortgage enforcement proceedings, nor a consumer, after the expiry of the period for lodging an objection, to raise the unfairness of those terms in those proceedings or in subsequent declaratory proceedings.

In Case C-869/19 (Unicaja Banco), the request for a preliminary ruling was made in proceedings concerning the failure of the national appeal court to raise of its own motion a ground relating to infringement of EU law. The bank granted the consumer a mortgage loan. The consumer later brought an action against the bank, seeking a declaration that the ‘floor clause’ of the agreement was void and the repayment of the sums wrongly received, arguing that that clause had to be declared unfair on account of its lack of transparency.

The first-instance court upheld the action, while temporally limiting the restitutory effects, pursuant to national case-law. The court hearing the appeal brought by the bank did not order the full repayment of the amounts received under the ‘floor clause’, since the consumer had not brought an appeal against the first-instance judgment. According to Spanish law, where part of a judgment is not challenged by any of the parties, the appeal court cannot deprive it of its effects or alter it.

This principle displays certain similarities with res judicata: the Spanish Supreme Court therefore asked the Court of Justice whether it was compatible with EU law, in particular considering that a national court, hearing an appeal against a judgment temporally limiting the repayment of sums wrongly paid by the consumer under a term declared to be unfair, cannot raise of its own motion a ground relating to the infringement of Directive 93/13 and order the repayment of those sums in full.

Recalling its case-law, the Court reaffirms that EU law precludes national case-law that temporally limits restitutory effects to amounts wrongly paid under an unfair term after the delivery of the judicial decision in which the finding of unfairness is made. The Court also finds that the application of such a principle of national judicial procedure is liable to make the protection of the aforementioned rights under Directive 93/13 impossible or excessively difficult, thereby undermining the principle of effectiveness.

Conclusions

In all cases, the Court pointed out the importance of the EU law principle of effectiveness: while it is the responsibility of the national court to assess of its own motion whether a contractual term falling within the scope of Directive 93/13 is unfair, Member States are required to provide for adequate and effective means to prevent the continued use of unfair terms. In principle, EU law does not harmonise the procedures applicable to examining whether a contractual term is unfair and those procedures accordingly fall within the domestic legal system of the Member States, however, national procedural principles must comply with the principle of effectiveness, that is to say fulfil a requirement for effective judicial protection. In conclusion, the Court found that, without effective review of whether the terms of the contract concerned are unfair, observance of the rights conferred by Directive 93/13 cannot be guaranteed.

Further reading:

Press release of the Court on the judgments of 17 May

Kategória: European UnionBrexit Eng: Fogyasztóvédelem: Consumer Protection: 16th Anniversary: 
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