–Dr. Gábor Spuller, Legal Advisor at the Ministry for Infrastructure and digital affairs of Saxony-Anhalt, Germany; Expert in EU funds and Hungarian Constitutional Law
In March 2013, Viktor Orbán with his ruling Party Fidesz enacted the Fourth Amendment to Hungary’s Fundamental Law. Its purpose was to weaken the Constitutional Court — stripping it of the ability to review constitutional amendments on substantive grounds and limiting future review to narrow procedural objections only. The leading elite believed they were digging a grave for the court that had occasionally obstructed them. Eventually they were digging it for themself.
Thirteen years later, Péter Magyar won Hungary’s election. The European Commission holds at least €18 billion in frozen funds, conditional on Hungary meeting 27 rule of law milestones by August 2026. Brussels is cautiously optimistic. But beneath the surface, a constitutional puzzle is already taking shape — and its solution depends entirely on a mechanism Orbán himself designed.
The Institutional Firewall
In the months before the election, the still ruling government executed a precise pre-emptive manoeuvre: A new President and a new judge were elected to the Constitutional Court, a new Prosecutor General and a former President of the Constitutional Court was installed as Commissioner for Fundamental Rights.
The result is a complete ring of Fidesz-appointed actors, each with independent legal standing to challenge Magyar’s reform legislation before a Constitutional Court whose majority they themselves once shaped. Under the Fundamental Law of Hungary and the Act CLI of 2011, posterior norm control can be initiated by one quarter of MPs (Fidesz e. g.), by the Commissioner for Fundamental Rights, by the President of the Curia, and by the Prosecutor General. The President of the Republic can refer laws to the court before promulgation. Five independent channels, all Fidesz-staffed, all pointing at the same captured institution. A valuable instrument for obstruction in order to block any legal reform.
The Commission’s 27 benchmarks measure outputs — anti-corruption track records, judicial salary structures, media ownership rules. They do not address this architecture at all.
The Master Key Orbán Left Behind
But Magyar can amend the Fundamental Law to shorten Constitutional Court terms from twelve to eight years, immediately affecting judges whose mandates would be curtailed, install the mandatory retirement age at 65 — reversing extension to 70, extend the Constitutional Court to 20 members, reinstate the previous solution of an election of the President of the Court by the judges themselves and complete it with transitionary rules for the demission of the affected judges and the president. Here the irony becomes complete.
The Fourth Amendment of 2013 — Orbán’s instrument for neutering the Constitutional Court — explicitly restricts the court to reviewing constitutional amendments on procedural grounds only. It cannot examine their substance. With 141 seats, Magyar’s majority is mathematically unassailable on any procedural challenge. And the President of the Republic — Tamás Sulyok, a Fidesz appointee — has precisely five days upon receipt of a constitutional amendment to refer it to the court on procedural grounds and the Court has only 30 days to decide. If no procedural violation is found, he must sign immediately. He cannot refuse.
Orbán amended the Fundamental Law fifteen times for day-to-day political purposes, using precisely this instrument. He held it open wide. Magyar can now walk through the door and innovate with maybe a kind of constitutional “disruption”.
The European Dimension
Two realistic constraints deserve honest acknowledgment.
Affected judges may have individual employment rights. In 2012, the European Court of Justice (ECJ) ruled in Commission v. Hungary (C-286/12) that the abrupt reduction of the judicial retirement age from 70 to 62 violated Council Directive 2000/78 on equal treatment in employment — not because changing retirement ages is impermissible, but because the transition was disproportionately abrupt and judges had well-founded expectations of serving until the previously applicable age. It is questionable whether this Directive is applicable to judges of the Constitutional Courts, who are appointed for a fixed term only.
However, following the ECJ’s recent ruling of 21 April regarding Hungary’s child protection law, the rule of law may also be invoked (Art. 2 TEU). A question of considerable constitutional sensitivity arises: whether phenomena characterised as constitutional disruption form part of acquis of Hungary´s historical constitution and, as such, constitute a protected element of its national constitutional identity under Article 4 (2) TEU. Recent jurisprudence of the Court of Justice has not adequately engaged with this methodological question – namely, how constitutional values rooted in national historical heritage ought to be assessed against the Union´s rule of law framework. Hungary´s Fundamental Law, through its National Avowal and Article R), expressly affirms the normative continuity of the historical constitution, a dimension that supranational adjudication has thus far insufficiently addressed.
What remains equally clear is that constitutional disruption cannot be regarded as an instrument of ordinary political action. Accordingly, a coherent and sustained roadmap is required for the long-term consolidation of the rule of law within any process of constitutional reorganisation.
These rulings and deliberations are now the roadmap, not the obstacle. They tell Magyar precisely what is required: adequate transitional provisions, financial compensation for affected judges, and a graduated implementation timetable and a constitutional roadmap. A reform designed with these elements satisfies the proportionality standard the ECJ itself established.
What Brussels Must Understand
The Polish precedent haunts this moment. Brussels released frozen funds early in exchange for political commitments. When a PiS-backed candidate won the presidency in 2025, deeper reforms remained hostage to presidential veto — and the early release had eliminated Brussels’s main leverage precisely when it was most needed.
Hungary is structurally different. The constitutional amendment route bypasses the presidency entirely. Magyar does not need the cooperation of the State President — only his signature, which the Fundamental Law compels. The institutional firewall constructed contains a fatal design flaw at its foundation: the weapon forged to protect illiberalism from judicial challenge works equally well in liberal hands.
The Commission should calibrate its conditionality accordingly — releasing funds progressively against verified constitutional amendments, not merely legislative outputs that can be challenged and obstructed through the five channels the former government still controls.
The views expressed in this article are the author´s own and do not represent the position of any employer or institution.
Suggested citation: ____, Hungary’s Constitutional Boomerang – A Recommendation for the Commission, Int’l J. Const. L. Blog, May 12, 2026, at: http://www.iconnectblog.com/hungarys-constitutional-borrowing-a-recommendation-for-the-commission