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The Hungarian Constitutional Court on the Limits of EU Law in the Hungarian Legal System

Tímea DrinócziUniversity of Pécs, Hungary

Last month, on November 30, just one week after the Seventh Constitutional Amendment had failed,[1] the Constitutional Court declared in its ruling 22/2016 (XII. 5.) that by exercising its competences, it can examine whether the joint exercise of competences under Article E) (2) of the Fundamental Law of Hungary (FL) infringes human dignity, other fundamental rights, the sovereignty of Hungary, or Hungary’s self-identity based on its historical constitution.

In early December 2015, the Commissioner for Fundamental Rights asked the Court to deliver an abstract constitutional interpretation in connection with the Council decision (EU) 2015/1601 of 22 September 2015. He asked the following four questions.[2]

  1. Whether the prohibition of expulsion from Hungary in Article XIV (1) forbids only this kind of action by the Hungarian authorities, or if it also covers actions by Hungarian authorities which they use to promote the prohibited expulsion implemented by other states.
  2. Whether under Article E) (2), state bodies, agencies, and institutions are entitled or obliged to implement EU legal acts that conflict with fundamental rights stipulated by the FL. If they are not, which state organ can establish that fact?
  3. Whether under Article E) (2), the exercise of powers bound to the required rate of necessity may restrict the implementation of the ultra vires act. If state bodies, agencies, and institutions are not entitled or obliged to implement ultra vires EU legislation, which state organ can establish that fact?
  4. Whether Article XIV (1) and Article E) can be interpreted in a way that they authorize or restrict that Hungarian state bodies, agencies, and institutions, within the legal framework of the EU, to facilitate the relocation of a large group of foreigners legally staying in one of the Members States without their expressed or implied consent and without personalized and objective criteria applied during their selection.

The Constitutional Court rendered the petition admissible and by developing the fundamental rights-reservation review and the ultra vires review (composed of a sovereignty review and an identity review), answered questions 2-4 as follows.[3]

The fundamental rights-reservation review is based on Article E) (2) and I (1) FL. The latter provision declares that the inviolable and inalienable fundamental rights of MAN shall be respected. It shall be the primary obligation of the State to protect these rights. Having these rules in mind, and after referring, without further elaboration, to the Solange decisions, the order of the German Constitutional Court of 15 December 2015 (2 BvR 2735/14), and the need for cooperation in the EU and the primacy of EU law, the Court simply states that it cannot renounce the ultima ratio defense of human dignity and other fundamental rights. It argues that as the state is bound by fundamental rights, this binding force of the rights are applicable also to cases when public power, under Article E), is exercised together with the EU institutions or other Member States.

The decision proceeds on with the ultra vires review, which is reserved for the Constitutional Court with the exception of the possible actions of the Parliament and Government against an illegitimate EU piece of legislation. There are two main limits for the conferred or jointly exercised competencies, under Article E) (2): it cannot infringe the sovereignty of Hungary (sovereignty review) and the constitutional identity (identity review). These, in the view of the Constitutional Court, follow from the interpretation of the National Avowal (which is not elaborated at all in this decision) and Art E) which refers to an “international treaty”, i.e. 4.2 TEU. The Court confirms that the objects of these tests are not directly the EU law or its validity.

In the decision, the sovereignty review does have a constitutional foundation. It is based in Article B) (1) which states that Hungary shall be an independent, democratic rule-of-law State. The concept of “state sovereignty” (supreme power, territory and population) follows from this provision. Paragraphs (3) and (4) contain the popular sovereignty principle: “The source of public power shall be the people”, “The power shall be exercised by the people through elected representatives or, in exceptional cases, directly”. The Court warns that “Article E) (2) should not empty Art B)” and it detects the “presumption of reserved sovereignty” in relation to judging the common exercise of other competences that have already been conferred to the EU. The Court states that the exercise of powers (within the EU) may not result in the loss of the ultimate oversight possibility of the people over the public power that is recognized by Article E) (4) and Article XXIII (7). Article E (4) reads as follows: for the authorization to recognize the binding force of an international treaty referred to in Paragraph (2), the votes of two-thirds of the Members of the National Assembly shall be required. It is thus a manifestation of the indirect exercise of popular sovereignty. Article XXIII (7) acknowledges that everyone having the right to vote in elections of Members of the National Assembly shall have the right to participate in national referendums.[4]

The Court, through Article E) (2), based the identity review on Article 4.2 TEU. It acknowledges that the protection of constitutional identity rests with the CJEU and is based on continuous cooperation, mutual respect, and equality.

In the understanding of the Court, constitutional identity equals with the constitutional (self-) identity of Hungary. Its content is to be determined on a case-by-case basis based on the FL as a whole and its provision in accordance with Art R) (3), which requires that the interpretation of the FL shall be in harmony with their purposes, the National Avowal contained therein and the achievements of our historical constitution. Even though the Court holds that the constitutional (self-)identity of Hungary does not mean a list of exhaustive enumeration of values, it still mentions some of them. For example: freedoms, the division of power, the republican form of state, respect of public law autonomies, freedom of religion, legality, parliamentarism, equality before the law, recognition of judicial power, protection of nationalities that are living with us. These equal with modern and universal constitutional values and the achievement of our historical constitution on which our legal system rests.

According to the Court, the protection of constitutional (self-)identity may also emerge in connection with areas which shape the citizens’ living conditions, in particular the private sphere of their own responsibility and of political and social security, protected by fundamental rights, and in areas in which the linguistic, historical and cultural involvement of Hungary can be detectable.

The Court holds that the constitutional (self-)identity of Hungary is a fundamental value that has not been created but only recognized by the FL and, therefore, it cannot be renounced by an international treaty. The defense of the constitutional (self-)identity of Hungary is the task of the Constitutional Court as long as Hungary has sovereignty. In its view, it follows from the above mentioned that sovereignty and constitutional identity assorts in many points; therefore the two reviews need to be employed considering one another.

Suggested Citation:  Tímea Drinóczi, The Hungarian Constitutional Court on the Limits of EU Law in the Hungarian Legal System, Int’l J. Const. L. Blog, Dec. 29, 2016, at: http://www.iconnectblog.com/2016/12/the-hungarian-constitutional-court-on-the-limits-of-eu-law-in-the-hungarian-legal-system


[1] See also Renata Uitz, ‘National Constitutional Identity in the European Constitutional Project: A Recipe for Exposing Cover Ups and Masquerades, at http://verfassungsblog.de/author/renata-uitz.

[2] See http://www.parlament.hu/documents/125505/138409/Fundamental+law/73811993-c377-428d-9808-ee03d6fb8178.

[3] Question 1 is to be dealt with separately.

[4] The Court however has not mention Art 8 FL which prohibits certain exercise of referendum.

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Published on December 29, 2016
Author:          Filed under: Developments
 

6 Responses

  1. Simon Drugda

    Dear Dr. Drinóczi,

    Thank you for your interesting contribution.

    Prof. Landau wrote in 2013 that the Hungarian CC “held that it lacked the power to discover immutable principles in the constitutional text [added emphasis]” with regards to any potential unconstitutional constitutional amendment doctrine.
    http://www.iconnectblog.com/2013/06/should-the-unconstitutional-constitutional-amendments-doctrine-be-part-of-the-canon/

    Your final paragraph seems to hint, albeit in a different context, to principles that were not (cannot be?) created but are merely recognized by the FL. Do you see a room for the concept of constitutional “self-identity” to limit the Parliament’s formal amendment power?

    I apologise if I have misread your contribution in any way. Have a pleasant day.

    Kind regards,
    Simon Drugda

    • Tímea Drinóczi

      Dear Simon Drugda,

      First of all: Happy New Year. Thank you for your comment; you have not misread it: indeed, that is what could and should follow from this part of the decision. However, this development would be highly exciting in the particular Hungarian context. Let me just make a short summary here [also see 1 ICL (2016)]:

      The CC does not find its competence to review unconstitutional constitutional amendments (I would also emphasize the retroactive taxation and not only the restriction of the powers of the CC) until the Fourth Amendment (1 April 2013) makes the procedural constitutional review possible.
      It was an obvious reaction to the decision 46/2012 (XII. 29) of the CC annulling certain provisions of the Transitory Provisions (adopted 31 December 2011) in which the CC defined some constitutional requirements which even the constituent, including the constitution-amending power, has to respect.
      The majority of rules the Transitory Provisions, including annulled ones, becomes the part of the constitution (FL) by the Fourth Amendment.
      The CC is asked to review the Fourth Amendment which it refuses. However, it notes that the CC will also take into consideration the obligations Hungary has undertaken in its international treaties or those that follow from EU membership, along with the generally acknowledged rules of international law, and the basic principles and values reflected in them. These rules constitute a unified system of values which are not to be disregarded in the course of framing the Constitution or legislation or during the constitutional review.
      Until the decision of 22/2016 (XII. 5.) of the CC, it seemed that it had a lot of arguments to review constitutional amendments substantively, but self-identity of Hungary was not one of them. And, in this decision, the CC developed the identity review solely to limit the applicability of the EU law; it did not consider it as a concept to limit the Parliament’s formal amendment power.

      So, the understanding of the concept of self-identity of Hungary as a limit to the formal amending power would be a meaningful and logical development. However, for this, the CC should, first, differentiate between the constituent and the constitution-changing power. Second, it should recognize that the link between immutable principles restricting the constitution-amending power and the limitation of the applicability of the EU law is applicable also conversely. Thus, if the EU law cannot be applied because it would infringe the identity of Hungary that is some extraconstitutional phenomenon (as being only recognized but not created by the FL), neither the amending power can modify the elements of self-identity.

      I am not sure if the CC is ready for making this step, and I see some problems with this contingent future development:

      It is unknown what the self-identity of Hungary is and it based on the even more vague definition of the achievements of our historical constitution. So, it is far from clear what the limits of the EU law and the formal amending power are.
      The CC should have developed a doctrine of the review of the unconstitutional constitutional amendment in 2010 (on the retroactive taxation issue and the reduction of its competence). Developing this theory now may raise a suspicion of its politically driven nature: reinforcing the disputable provisions of the FL. (Timing matters in this regard.) In the decision of 22/2016, the CC made a non-exclusive list of values that form the self-identity of Hungary, containing provisions that are constitutionally questionable (e.g., freedom of religion v. establishment of churches; equality before the law v. definition of marriage and family). Will the concept of the self-identity of Hungary be used to reinforce these debatable constitutional contents? Or, will the eventually applied review power of formal constitutional amendment be used for avoiding another overruling of well-argued and supported CC’s decisions?
      How far can the CC go in the constitutional interpretation of its creation (self-identity) which does not even have constitutional basis without breaching the principle of division of power and indeed becoming a constituent power?

      Feel free to contact me if you have other comments or questions.

      Have a nice week.
      Kind regards,
      Tímea Drinóczi

      • Simon Drugda

        Dear Dr. Drinóczi,

        Thank you for your kind reply. Yes, I was wondering myself about what does the concept of “historic constitution” entail, and whether the disavowed pre-2013 jurisprudence of the CC is a part of it.

        But I got all my answers. I believe there is no need for further clarification. Thank you. I will continue to follow your work.

        Happy New Year.

        Kind regards,
        Simon Drugda

  2. […] Hungarian Constitutional Court on the Limits of EU Law in the Hungarian Legal System, Int’l J. Const. L. Blog, Dec. 29, […]

  3. […] before the referendum was initiated. In his motion the ombudsman asked the Court to deliver an abstract constitutional interpretation in connection with the European Council decision 2015/1601 of…. The Court in its decision 22/2016 (XII. 5.) AB – relying on the German Federal […]

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