Last month, on November 30, just one week after the Seventh Constitutional Amendment had failed, 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.
- 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.
- 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?
- 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?
- 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.
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.
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
 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.
 See http://www.parlament.hu/documents/125505/138409/Fundamental+law/73811993-c377-428d-9808-ee03d6fb8178.
 Question 1 is to be dealt with separately.
 The Court however has not mention Art 8 FL which prohibits certain exercise of referendum.