Ernő Várnay
Nóra ChronowskiOn 12 December 2023, the Hungarian Parliament introduced a new article into the Act on the Constitutional Court (see Act CLI of 2011, § 38/A, as amended by Act LXXXV of 2023, Art. 3) and created a new competence called "Decision on a preliminary EU interpretative opinion". The authors analyse here the deeper meaning and potential of the new competence, especially in the light of the Rules of Procedure of the Court of Justice of the European Union. It seems that the new interpretive power is intended to serve the constitutional European judicial dialogue, but it does not seem to be a suitable instrument either procedurally or substantively.
In its 22/2016. (XII.5.) decision (the "quota decision"),[1] the Hungarian Constitutional Court (HCC) declared its competence to control fundamental rights, sovereignty and national identity in relation to EU law. Although the decision was taken in response to the "EU relocation decision", the HCC did not review the EU law in question. It also stated that "the protection of constitutional identity should be provided in the framework of an informal cooperation with the Court of Justice of the European Union (CJEU), based on the principles of equality and collegiality, with mutual respect, similar to the current practice followed by several other constitutional courts and supreme judicial bodies of the Member States performing similar functions" (22/2016 (XII. 5.) AB Decision, Reasoning para [63]. It must be emphasized that in the authoritative Hungarian version the word „informal” is missing).
The HCC's willingness to engage in "constitutional dialogue" with the CJEU was reiterated in several subsequent decisions of the HCC.[2]
Referring to the "quota decision", the Hungarian Parliament (Országgyűlés) amended the "European clause" of the Fundamental Law (the Constitution) by adding to Article E(2): "The exercise of competences under this paragraph (i.e. competences arising from the Fundamental Law, exercised jointly with other Member States through the institutions of the European Union) shall be in accordance with the fundamental rights and freedoms provided for in the Fundamental Law and shall not limit the inalienable right of Hungary to determine its territorial unity, population, form of government and state structure".
Not only academics,[3] but also several judges of the HCC criticized the fundamental rights, sovereignty and identity control, as well as the reference to the "constitutional dialogue" initiated by the quota decision, inter alia on procedural grounds (see in particular point [97] of Judge Stumpf's concurring opinion). The Constitutional Court Act does not provide for a procedural route for direct constitutional review of EU acts. It was not clear whether the HCC considered itself to be a "court or tribunal" within the meaning of Article 267 TFEU. In its 26/2020. (XII. 2.), the HCC acknowledged its "right" to initiate a preliminary ruling procedure, in particular if the case before it involves a risk of a restriction of the fundamental rights and freedoms under Article E(2) of the Basic Law or of a restriction of Hungary's inalienable right to determine its territorial unity, form of government and state organisation. It should be noted, however, that the HCC never requested a preliminary ruling from the CJEU.
On 12 December 2023, the Hungarian Parliament introduced a new article into the Act on the Constitutional Court (see Act CLI of 2011 as amended by Act LXXXV of 2023, Art. 3):
" Decision on a preliminary EU interpretative opinion
§ 38/A [of the Act on the Constitutional Court] The Constitutional Court shall, at the request of the Court of Justice of the European Union and in accordance with the powers conferred upon it by the EU Treaties, decide on
a) the constitutional structure, including the fundamental functions of the State, including the safeguarding of the territorial integrity of the State, the maintenance of public order and the protection of national security,
b) the constitutional
ba) order,
bb) requirements, and
bc) traditions,
c) its national identity,
d) its sovereignty,
e) the inalienable rights of disposal over its population,
f) the fundamental rights and freedoms and human dignity protected by its Fundamental Law
gives a preliminary opinion on their interpretation, from the point of view of conformity with the Fundamental Law, when these issues are raised in the context of a case pending before the Court of Justice of the European Union and the interpretation can be derived directly from the Fundamental Law". (Translated by the authors.)
The "new competence" of the HCC is the formal, textual expression in the Hungarian legal system of the possibility of entering into a direct constitutional dialogue with the CJEU.
Since we cannot imagine this dialogue outside the preliminary reference procedure, we consider the "new competence" to be superfluous, since according to Article 101 of the Rules of Procedure of the Court of Justice (request for clarification), the Court may request the referring court for clarification. This request for clarification would be deprived of its substance if the referring court (in this case the HCC) could not answer the Court's question without express authorisation under national law.
The content of the new "competence" can easily be interpreted as a sharpening of the sword of the HCC in its struggle to protect the national constitutional order against the acts of EU law. The issues on which the HCC "awaits" the CJEU's request for clarification are part of the protection of fundamental rights, sovereignty and control of national identity over EU legal acts, which are included in the above-mentioned Europe-clause of the Fundamental Law and, in particular, in several decisions of the HCC. For example, as stated in decision 32/2021. (III.5.) HCC: "The protection of the inalienable right of Hungary to determine its territorial unity, population, form of government and state structure is part of its constitutional identity" [para. 3 of the operative part].
Since the "new competence" removes the formal obstacle to direct dialogue with the CJEU, it could be seen as a step towards the first preliminary reference from the HCC to the CJEU.
The following scenario is conceivable:
- The HCC has to decide on the constitutionality of a decision of an ordinary court based on an EU law directly applicable in the Member States (regulations, decisions) or on a Hungarian law implementing EU law (directives).
- It has doubts about the conformity of the EU act with the fundamental elements listed in Article 38/A.
- It asks the CJEU for a preliminary ruling on the interpretation of the EU act and/or for annulment if it is convinced that the act in question is unconstitutional.
- In its reference for a preliminary ruling, the HCC explains the reasons for its doubts/conviction.
- The CJEU, not being familiar with all the details of the Hungarian constitutional framework, asks the HCC for clarification.
- The HCC adopts a "preliminary interpretation of EU law under the new Article 38/A".
- In the light of the HCC's clarification, the CJEU decides whether to annul or interpret the EU act in question.
- In the light of the preliminary ruling, the HCC - in the name of the constitutional dialogue with the CJEU and taking due account of the CJEU's decision - will make its own decision.
- The conflict between the two courts arises when the HCC annuls the decision of the ordinary court, which directly or indirectly applies EU law that has been declared compatible with EU law by the CJEU.
There are so many "ifs" in this scenario that we cannot even speculate on the practical significance of this new and interesting phenomenon.
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[1] The petitioner questioned the constitutionality of the Council Decision (Council Decision (EU) 2015/1601 of 22 September 2015 establishing provisional measures around international protection for the benefit of Italy and Greece. Official Journal of the European Union L 280/80, 24.9.2015.) ordering relocation of a certain number of persons to Hungary. The official (but not authoritative) English version of the Decision is available at the HCC’s website.
[2] Ruling 3198/2018. (VI.21.) AB, Ruling 3199/2018. (VI.21.) AB, Ruling 3200/2018. (VI.21.) AB, Ruling 3220/2018. (VII.2.) AB., Decision 2/2019. (III.5.) See also Ernő Várnay, The Hungarian sword of constitutional identity. (2022) 2 Hungarian Journal of Legal Studies, 79-106, Nóra Chronowski and Attila Vincze, ‘The Hungarian Constitutional Court and the CEU case: justice delayed is justice denied – Decision of the Hungarian Constitutional Court of 6 July 2021 and the Judgment of the ECJ of 6 October 2020, Case C-66/18.’ (2021) 4 European Constitutional Law Review, 688-706.
[3] Ágoston Mohay and Norbert Tóth, ‘Decision 22/2016. (XII. 5.) AB on the Interpretation of Article E)(2) of the Fundamental Law’ (2017) 2 American Journal of International Law, Gábor Halmai, ‘Abuse of Constitutional Identity. The Hungarian Constitutional Court on Interpretation of Article E) (2) of the Fundamental Law’ (2018) 1 Review of Central and East European Law, Beáta Bakó, ‘The Zauberlehrling Unchained?: The Recycling of the German Federal Constitutional Court’s Case Law on Identity-, Ultra Vires- and Fundamental Rights Review in Hungary’ (2018) 4 ZaöRV
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The post is part of the research on HunConCourt Database, which is funded by the National Research, Development, and Innovation Fund (Project No. K-146803).
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The views expressed above belong to the author and do not necessarily represent the views of the Centre for Social Sciences.