The growth of populist national forms of governance in some EU Member States has caused a marked deterioration in the respect for democracy and the rule of law. The actions of these illiberal governments have led to the capture of those institutions designed to guarantee the rule of law, including constitutional courts. Some of these courts, mindful of the protection of national sovereignty and responding to the CJEU’s case law promoting judicial independence, have refused to recognise the binding nature on them of the rulings of the CJEU. The Hungarian Constitutional Court (HCC) was recently given the opportunity to follow its sister courts in Germany, Poland and Romania in the
El crecimiento de formas nacionales populistas de gobierno en algunos Estados miembros de la UE ha provocado un marcado deterioro del respeto por la democracia y el Estado de derecho. Las acciones de estos gobiernos iliberales han llevado a la captura de aquellas instituciones diseñadas para garantizar el estado de derecho, incluidos los tribunales constitucionales. Algunos de estos tribunales, conscientes de la protección de la soberanía nacional y respondiendo a la jurisprudencia del TJUE que promueve la independencia judicial, se han negado a reconocer el carácter vinculante para ellos de las sentencias del TJUE. El Tribunal Constitucional húngaro (TCH) tuvo recientemente la oportunidad de seguir a sus tribunales hermanos en Alemania, Polonia y Rumania en el caso «
La croissance des formes nationales populistes de gouvernance dans certains États membres de l’UE a provoqué une détérioration marquée du respect de la démocratie et de l’État de droit. Les actions de ces gouvernements illibéraux ont conduit à la capture des institutions conçues pour garantir l’état de droit, y compris les cours constitutionnelles. Certaines de ces juridictions, soucieuses de la protection de la souveraineté nationale et répondant à la jurisprudence de la CJUE promouvant l’indépendance judiciaire, ont refusé de reconnaître le caractère contraignant pour elles des arrêts de la CJUE. La Cour constitutionnelle hongroise (CCH) a récemment eu la possibilité de suivre ses juridictions sœurs d’Allemagne, de Pologne et de Roumanie dans l’affaire «
Over the last decade or so, the EU has experienced the rise of populist nationalist governments in some of its Member States (
In this respect, the return to power of Prime Minister Viktor Orbán in Hungary in 2010, with his coalition government’s constitution-changing two-thirds majority in Parliament, inaugurated a thorough reorganisation of the domestic governance system to create an “illiberal democracy” (
While there is extensive literature on this subject (see, e.g.,
While the EU Member States in southern Europe have long experienced the phenomenon of increasing irregular migration via North Africa and Turkey, the impact of the Syrian civil war substantially altered the magnitude of that crisis in 2015 (
Accordingly, the Hungarian government responded quickly by amending its domestic legislation (
In respect of both pieces of domestic legislation, the European Commission raised doubts as to their compatibility with EU law
When it failed to address these continuing concerns, the Commission initiated proceedings before the CJEU for Hungary’s failure to fulfil EU obligations in the terms of its reasoned opinion. In its December 2020 ruling in
Hungary had failed to fulfil its obligation to provide effective access to the procedure for granting international protection to third-country nationals seeking to enter the country across the Serbian-Hungarian border. It had made it practically impossible for the persons concerned to submit a request for this procedure.
The obligation for applicants for international protection to remain in the transit zone during the procedure for examining their application constituted detention within the meaning of the Reception Conditions Directive.
Hungary has also failed to fulfil its obligations under the Return Directive because domestic legislation allowed for the removal of illegally staying third-country nationals without prior compliance with the procedures and safeguards provided for in that Directive.
Lastly, it did not respect the right which the Asylum Procedures Directive, in principle, granted to applicants for international protection to remain in the territory of the EU Member State concerned after their application has been rejected, until the deadline for lodging an appeal against the rejection or, if an appeal had been lodged, until the competent authorities had taken a decision to that effect.
After the landmark CJEU ruling, the transit zones were closed in May 2020 and people were released to the open reception facilities. At the same time, however, Hungary introduced new rules according to which practical and procedural access to asylum is severely limited, including to those who are legally staying in the country (
Against this background, the Commission maintained that Hungary was still not compliant with several aspects of the CJEU ruling in
For its part, the Hungarian government objected on the grounds that the compliance with the terms of
The Commission, however, refused to be deterred by the action of the Hungarian government. On 9 June 2021, it sent Hungary a letter of formal notice under Art. 260(2) TFEU (
In her petition to the HCC in Decision
In her petition for an abstract constitutional interpretation
Consequently, in the event of initiating a migration control procedure or of a negative decision in an asylum procedure, the persons concerned would remain on the territory of Hungary for an undefinable period and would thereby
The Minister’s petition must therefore be seen in both its broader EU as well as its more focused national constitutional context. There are thus two lines of thought intertwined in this petition, viz., constitutional identity as one of the counter-limits to the transfer of the exercise of sovereignty to the EU – as developed by the HCC – and its (potential) use to justify ignoring the terms of a CJEU ruling, binding on it. Each of these will now be considered in turn.
The notion of constitutional identity (
In this context, the GFCC has developed three types of control that would permit it to constitutionally review the basis for any transfers of the exercise of sovereignty to the EU. These are the fundamental rights review (
In this respect, the HCC’s ruling in Decision
The HCC discussed, at some length, the relationship between Constitution Arts. 2 and 2/A. It observed
Although Constitution Art. 2/A was the domestic constitutional basis for continuing EU membership and amendments to the founding Treaties (now the TEU, TFEU and Euratom), Constitution Art. 2(1) and (2) on sovereignty and the rule of law constituted the “constitutional identity” of Hungary. Thus, the transfer of competences to the EU could not exceed the extent necessary to exercise the rights and perform the obligations under EU law. To this mix must be added Constitution Art. 6(4) according to which participation in European integration was a state goal. As the HCC pointed out: “Participation is not a goal in itself but has to serve human rights, prosperity and security”. An EU law that did not serve these aims could therefore be regarded as infringing the constitutional identity of Hungary
The HCC’s development of such constitutional counter-limits
The next large step along the road to articulating Hungarian constitutional identity came in Decision
In its decision, the HCC held that Art. E(2) FL, taking into account the other provisions of the Fundamental Law, provided it with three avenues of control of the joint exercise of powers with the EU
On the fundamental rights control, the HCC used Arts. E(2) and I(1) FL. Under Art. I(1) FL, the inviolable and inalienable fundamental rights of man are to be respected. The HCC noted that it was the primary duty of the State to protect these rights. Bearing in mind the provisions, together with the need for cooperation in the EU as well as the primacy of EU law, the HCC stated that it could not renounce the
As regards
Lastly, the HCC based its understanding of constitutional identity review on Art. 4(2) TEU. It recognised
While apparently eschewing the need to provide an exhaustive list of values that comprised Hungary’s constitutional identity, the HCC nevertheless (as with the example of the GFCC in
a fundamental value not created by the Fundamental Law – it is merely acknowledged by the Fundamental Law. Consequently, constitutional identity cannot be waived by way of an international treaty – Hungary can only be deprived of its constitutional identity through the final termination of its sovereignty, its independent statehood. Therefore, the protection of constitutional identity shall remain the duty of the Constitutional Court as long as Hungary is a sovereign State.
In the HCC’s view, it followed that sovereignty and constitutional identity intersected in many points and therefore the two reviews needed to be employed vis-à-vis each another. In this way, the HCC followed the development noted by the GFCC in the
The final case for consideration in this part was delivered after the Seventh Amendment of the Fundamental Law had introduced changes in 2018,
The Minister of Justice brought the petition in Decision
The HCC partly agreed with the Minister on the first question
As regards the second question
In addition, the HCC recommitted
Nevertheless, the phrase “as far as possible”, while echoing the CJEU’s wording in
Moreover, Decision
Through her petition in Decision
While the GFCC rejected the claim – made in
Commentators were divided as to whether this was the first salvo in a new round of problems with the exercise of judicial dialogue or merely an exceptional phenomenon (
It took several more years however before it finally manifested itself again, this time before the GFCC in the
While this caused a political storm that was eventually settled, the “genie was out of the bottle”. In fact, at the time, commentators had warned (e.g.
Unfortunately, this has proven to be a case. With the grave situation in the marked deterioration of respect for the rule of law in Poland and the fight for maintaining judicial independence in the face of the political roll-back of rights and freedoms, the CJEU (together with the European Court of Human Rights (ECtHR) in Strasbourg
The Romanian Constitutional Court (RCC) followed suit a few months later. In 2018, the Romania had established a new section within the Public Prosecutor’s Office for investigation of offences committed within the judicial system (
A few weeks later, in Decision
As a result of the foregoing, on the one hand, the HCC had defined an increasingly stronger position of identity vis-à-vis EU law without actually attempting to review an interpretation of that law by the CJEU on the grounds of its infringing the counter-limits of Hungarian sovereignty (
Given these two streams of case law, their confluence in the HCC’s forthcoming decision would have seemed to be the next natural progression. In this way, the Minister of Justice would probably have been confident that her arguments on the petition would carry the day for the Hungarian government.
Given this overall context, then, Decision
From the outset, the HCC stated
Yet this desire to respect judicial dialogue did not extend to the HCC making a reference
The object of the HCC review therefore was not the CJEU ruling but rather became Art. E FL, the Europe or accession clause. In not directly challenging the primacy of the CJEU ruling, the HCC had decided instead to reorient its decision on the petition before it, towards the situation where the Union had failed to exercise or incompletely exercise its shared competences with EU Member States in the fields of asylum and immigration law within Arts. 67-89 TFEU.
The HCC thus resolved to interpret Art. E(2) FL but could not, for jurisdictional reasons, examine whether in the specific case the exercise of joint competence had in fact been incomplete
The HCC – using the already established three methods of control – thus examined in turn whether the lack of joint exercise of competences, based on Art. E(2) FL, could lead to a violation of: (1) the essential content of any fundamental right, in particular, human dignity (fundamental rights control); or (2) Hungary’s sovereignty (including the scope of the competences it had handed over,
The HCC first examined whether the relevant joint exercise of competences, or its incomplete effectiveness, could violate the fundamental rights and freedoms enshrined in the Fundamental Law, the protection of which was the primary obligation of the State under Art. I (1) FL
The HCC noted
Protection under constitutional law, the HCC continued
However, if the content of identity were artificially and undemocratically altered by the State (or any other organisation other than the State), this might infringe both the individual’s identity and their existing self-determination to change this. As the HCC further observed
According to the HCC
Nevertheless, the HCC was at pains to stress
With regard to
Even in this case, Hungary was only entitled to exercise a shared competence under Art. E(2) FL (that was to be exercised jointly), until the EU or its institutions had created the guarantees for the effectiveness of EU law. Even then, it could only do so in a manner that was consistent with and aimed at promoting the founding and amending treaties of the EU. The Member State’s exercise of the shared competence to be exercised jointly under Art. E(2) FL was conditional on Hungary drawing the attention of the EU or its institutions to the need to exercise such competence and the Union or its institutions failing to do so. The HCC maintained
The HCC then proceeded
It has already been observed that the judgment is particularly incomplete on this point and may be subject to divergent interpretations (
Finally, the HCC reviewed how the consequences of the potential incomplete effectiveness of the joint exercise of competence at issue related to Hungary’s constitutional identity
In the HCC’s interpretation
The HCC consequently held
Secondly where this incomplete effectiveness of the joint exercise of competences led to consequences that raised the issue of the violation of the right to identity of persons living in the territory of Hungary, the Hungarian State was obliged to ensure the protection of this right within the framework of its obligation of institutional protection.
Lastly, the protection of the inalienable right of Hungary to determine its territorial unity, population, form of government and State structure formed part of its constitutional identity.
The approach taken in its latest decision is characterised by two diametrically opposed opinions, namely the HCC’s respect for the relevant CJEU ruling and its recourse to the presumption of reserved sovereignty (
The HCC’s clear choice of a pro-European path has been welcomed (
In this way, the HCC’s Decision
Although the HCC can plausibly maintain that its interpretations of the Fundamental Law and, in particular, that of reserved sovereignty have no consequence on the validity or the primacy of an act of the Union, this does not of course give the full picture. While the HCC explained and restricted the application of the presumption of reserved sovereignty (see discussion under
In addition, the appeal to the historical constitution itself raises important issues that were previously mentioned in respect of its appearance in Decision
Moreover, the HCC did not examine whether the joint exercise of powers had any shortcomings, nor could it take a position on the question as to whether the Minister’s argument of a
It has also been stated in respect of Decision
Even the HCC’s reminding the State to ensure full protection of the human dignity of all persons, including asylum seekers, residing in its territory, had to be seen in the present domestic political and legal context. Even though the HCC’s decision is strongly oriented towards human dignity, the emphasis is not on the individual’s right to self-determination as it had been in the Court’s first 20 years of post-communist activity (
Moreover, while everyone is entitled to human dignity, the HCC stated that differentiation in the level of its protection was constitutional, depending on whether one was part and parcel of the population, lawfully resident on the territory of Hungary and those that were not. The HCC had drawn a similar and no less inhuman/inhumane distinction in Decision
In conclusion, the HCC reasoning in Decision
Profesor adjunto, Facultad de Derecho, Universidad CEU San Pablo, Madrid. All cited electronic sources have been accessed on 19 June 2022. The author would like to thank the two anonymous reviewers for their comments. The usual disclaimer applies.
Decision
The numbers only substantially dropped off after the EU finalised an agreement on intended to limit the influx of irregular migrants entering it through Turkey, providing some €3 billion to support work in this field (
Council Decision (EU) 2015/1601 of 22 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and Greece (OJ L 248, 24 September 2015, p. 80).
Act LXXX of 2007 on the right to asylum:
Act CXL of 2015 amending certain laws in the context of managing mass immigration:
Act XX of 2017 amending certain laws related to the strengthening of the procedure conducted in the guarded border area:
This situation on asylum and the position taken by Hungary must be seen within a series of cases. On the one hand, Commission proceedings under Art. 258 TFEU: (i) Opinion of Advocate General Sharpston of 31 October 2019,
Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ L 180, 29 June 2013, p. 60) (the Asylum Procedures Directive).
Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (OJ L 180, 29 June 2013, p. 96) (the Reception Conditions Directive).
Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third country nationals (OJ L 348, 24 December 2008, p. 98) (the Return Directive).
Judgment of the Court (Grand Chamber) of 17 December 2020,
On the petition of Parliament, a parliamentary standing committee, the President of the Republic or the government, the HCC is to provide an interpretation of provisions of the Fundamental Law with respect to a specific constitutional issue provided that this interpretation can be deduced directly from the Fundamental Law: Art. 24(2)(g) FL and s. 38(1) of Act CLI of 2011 on the Constitutional Court:
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In the saga of the European Central Bank’s programme of Outright Monetary Transactions (OMT), the GFCC outlined (in its 2016 decision) a relationship between
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Act CLXVIII of 2007 amending the Treaty in the European Union and the Treaty establishing the European Community on the promulgation of the 2007 Lisbon Treaty:
Constitution Art. 2(1) and (2) provided that Hungary was “an independent, democratic constitutional state” where supreme power was “vested in the people, who exercise their sovereign rights directly and through elected representatives”.
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In fact, in the case itself, the concurring Opinion of Trócsányi, J. suggested that principles which comprised the constitutional identity or essential core of Hungarian sovereignty and were thus protected from restriction by the EU included the rules on the election of MPs, the dissolution of Parliament, or the appointment of members of the government or of the judiciary: Decision
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By this doctrine, the Italian Constitutional Court (ICC) retained its competence to review the application of EU law domestically if it might infringe its own “
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Art. B FL variously provides that, under para. (1), “Hungary shall be an independent and democratic State governed by the rule of law”. Under para. (3): “The source of public authority shall be the people”, while under para. (4): “The people shall exercise power through their elected representatives, and also directly in exceptional cases”.
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Judgment of the Court of 13 November 1990,
Judgment of the Court of 4 December 1974,
Judgment of the Court of (Grand Chamber) of 22 November 2005,
CCC, Decision Pl. ÚS 5/12 of 31 January 2012 (
Judgment of the Court of 22 June 2011,
Judgment of the Court (Grand Chamber) of 11 December 2018,
The ECtHR has been equally strong in its condemnation of illegally appointed individuals to the bench: ECtHR (Grand Chamber),
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In particular, Order of the Vice-President of the Court of 14 July 2021,
In this context, domestic disciplinary proceedings have already been commenced to suspend several Polish judges for their having applied the ECtHR judgments and CJEU rulings relating, in particular, to the Disciplinary Chamber of the Supreme Court and holding that the National Council of the Judiciary’s lack of independence compromised the legitimacy of a court composed of judges appointed on its recommendation. As a result, these judges have already applied to the ECtHR: ECtHR,
Judgment of the Court (Grand Chamber) of 18 May 2021,
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There is now a reference from a Romanian court on this matter before the CJEU: Opinion of Advocate General Collins of 20 January 2022,
For a critique of the poor reasoning of this judgment, see Selejan-Gutan, 2021. Even more worrying was the publication of an RCC press release on 23 December 2021 that called into question the primacy of EU law, as developed by the CJEU since the 1960s. The publication was no coincidence: Two days before, in Judgement of the Court of Justice (Grand Chamber) of 21 December 2021,
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Thereby following its approach in Decision
Judgment of the Court of 6 October 1982,
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The protection of this identity was also referred to in the National Avowal of the Fundamental Law where it variously states that: “We value the various religious traditions of our country”, “the national minorities living with us form part of the Hungarian political community and are constituent parts of the State”; furthermore, “we commit ourselves to promoting and safeguarding our heritage, our unique language, Hungarian culture and the languages and cultures of national minorities living in Hungary”.
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