Introduction/Abstract
In the current chapter of the book, the author endeavours to present a comparative analysis of the case-law of three selected constitutional courts chosen for research, namely the German, the Hungarian and the Romanian. The author examines three main questions regarding their case-law. First, why they decided to set boundaries to the unconditional prevalence of the principle of EU law’s primacy – a principle deemed as unquestionable by the Court of Justice of the European Union and other EU institutions – that is, what was such an important issue – e.g. the mass migration in case of Hungary, the supremacy of the constitution and the binding force of the constitutional court’s judgments in the case of Romania – to make this step. Second, what were the key elements of the reasoning of the selected constitutional courts? As an example the ‘the achievements of the historic constitution’ can be regarded as a key element of the practice of the Hungarian Constitutional Court. Third, what are the similarities and the differences between their legal arguments? In the authors humble opinion it is worth comparing the German Constitutional Court’s well-established, decades old – thus well nuanced – case-law in confronting the Court of Justice of the European Union with the rather novel practice of the Hungarian and the Romanian Constitutional Courts in this regard. As mentioned above, the case-law of the German Constitutional Court is more established, thus it is also covered much thoroughly by the scientific literature. Therefore its coverage in the current chapter is shorter in order to avoid redundancy, the author rather focuses only on its novel case-law related to the Banking Union and the crisis management tools of the European Central Bank. In case of the Hungarian and the Romanian Constitutional Courts the author provides a more thorough introduction of their case-law in two main ‘subparts’, namely one focusing on the earlier ‘amicable’ case-law and another one focusing on their novel case-law with a more determinant character on the issue of constitutional identity. Subsequently the author introduces his findings based on a comparative analysis.
Keywords: national identity, constitutional identity, primacy of EU law, German Federal Constitutional Court, Hungarian Constitutional Court, Romanian Constitutional Court, cooperative constitutionalism, identity control, achievement of the historic constitution, cumulative conditionality
1. The emergence of the notion of constitutional identity as a restriction of the unconditional prevalence the EU law’s primacy
While in the last decade we witnessed the strengthening of the constitutional courts’ resistance towards the unrestricted primacy of EU law and that it became a popular issue in the scientific literature and in the media, it is not a new one as Ferdinand Weber argues.[1] Already in the 60s there was a proposal to include a primacy clause in the Merger Treaty that was rejected by the Member States. Instead, the Merger Treaty was linked with the ‘Luxembourg-compromise in order to mark a boundary against such extensive ideas. Similarly, the Treaty Establishing a Constitution for Europe[2] would have contained a ‘primacy clause’[3], which was omitted from the Lisbon Treaty, which shows the obvious lack of political will of decision makers.[4] However, primacy is stated in Declaration No. 17 as an attachment of the Lisbon Treaty, declarations are only instruments of interpreting agreed norms based on the Vienna Convention on the Law of Treaties.[5] – Nevertheless, the BVerfG deemed its effects important enough to analyse it in its Lisbon-decision as elaborated on later.
Constitutional identity can serve either as a sword or as a shield in the ‘hand’ of the national constitutional courts as Theodore Konstadinides put it into a witty phrasing.[15] As Pietro Faraguna argues, there are two ways this argument can be used: one is the ‘sword’ which is used to halt any deeper integration process of the European Union – especially the so called integration by stealth[16] –, and the other is the ‘shield’ where the goal is to head the European discussion into a more appealing direction. In László Trócsányi’s words, the constitutional identity is the point where constitutional courts may halt the primacy of EU law. [17] Fruzsina Gárdos-Orosz argues more bluntly when she states that – it is basically a diplomatic way of saying ‘we do within our border whatever we want’.[18] It is worth quoting the thoughts of Ana Bobić,[19] who distinguishes between constructive and destructive conflicts within the framework of constitutional pluralism and argues that constitutional conflict is not exceptional; on the contrary it represents an important element of the system’s ‘auto-correct’ function – as she labels it. However, not every conflict necessarily means progress for the pluralist system as a whole: while constructive conflict will put forward the ‘common case’, the destructive conflict hinders it. Bobić cites numerous cases[20] – among others the case of the Trade Union of Portuguese Judges (Juízes Portugueses)[21] –, which she deems as constructive conflicts. She argues that the K 3/21 case of the PCC on the other hand is an example of destructive conflict,[22] as a result of which mutual trust among national courts seems to erode.[23] Koen Lenaerts the current president of the Court of Justice of the European Union (CJEU) – referring to the above tendencies – took a similar view in an interview, made by the Politico on 13 December 2021[24]: ‘This is an extremely serious situation that threatens the survival of the European project in its current form.’ It is worth mentioning the thoughts of Tamás Sulyok,[25] the current president of the HCC, who in an interview stated that earlier there was a balanced cooperation between the engine (the CJEU) and the brakes (the national constitutional courts) of the integration. Today, however EU law seems to be ‘seeking hegemony over the legal systems of the member states […] to incorporate them in a furtive federalism.’[26] These thoughts highlight the irreconcilable nature of the collision between the ‘grundnorms’ as Hilpold stated. Maybe as an interim opinion, the opinion of Valer Dorneanu – the former president of the RCC – is worth mentioning. According to his views national constitutional courts are the closest to ‘the national ethos’ thus they are in the best position to achieve the reconcilement of the two levels through dialogue and openness. However it is only possible if constitutional courts are not only heard, but also listened.[27] At this point, it is worth returning to the thoughts of Sulyok, who proposes that the national constitutional courts should be allowed to express their opinion on cases before the CJEU if those cases concern national constitutional law. Such opinions expressed by the national constitutional courts should be taken into account and reflected by the CJEU in its judgment. In return he proposes that this procedure should be reciprocal be of course, the CJEU should be allowed to express its opinion before the national constitutional court if the case concerns the primacy of EU law. This system would finally provide the European judicial dialogue – the Gerichtsverbund described by Andreas Voßkuhle and Armin von Bogdandy more than a decade ago – with a solid legal basis in European law, he added.[28]
Last, but least it is worth examining the definitions of the national identity – as contained by Article 4(2) of the Treaty on European Union (TEU)[29] – and the constitutional identity, used by the constitutional courts of the member states. Stumpf argues that the national identity – which was first enacted into the Founding Treaties by the Maastricht Treaty[30] via Article F[31] – is a vague notion by its very nature and a political rather than a legal one.[32] The latter is well illustrated by the fact that the debates on national identity display political characteristics. Another approach suggests that the notion of national identity is embodied in the notion of constitutional identity, which is of legal nature.[33] László Trócsányi[34] at the one hand shares the thoughts of Stumpf, namely that national identity is a political notion;[35] on the other hand he approaches the question from the perspective of sovereignty. He argues that in the age of multilevel constitutionalism, referring to the national sovereignty may seem as being anachronistic, thus the member states changed sovereignty to constitutional identity in their dictionaries. However, the latter does not have such a classic definition accepted by almost everyone. On the contrary, its content is ambiguous and differs from country to country.[36] Kruzslicz Péter Pál follows this path, when he also interprets the notion of constitutional identity as an answer to the issue of sovereignty. [37]
The notion of constitutional identity maybe approached from the point of the constitution as the reflection of the whole constitutional system as well. The problem in this regard is that most of the member states’ constitutions – unlike the Fundamental Law of Hungary (Alaptörvény)[38] – do not contain an expressis verbis reference neither to national or constitutional identity nor to a so called ‘explicit eternity clause’, which is the inviolable core of a state’s constitutional order according to the constitution. In the absence of an explicit eternity clause the mere existence and the content of an eternity clause – ‘called eternity clause’ is determined by the state organ commissioned with the task of interpreting the constitution.[39] However, constitutional courts too, often do not name these expressis verbis in their case-law. As an ample example, the French Constitutional Council (Conseil Constitutionnel, FCC) only provided its own definition on constitutional identity in 2017.[40] Furthermore the constitutional courts differs whether it is the state or the constitution/basic law which has some constitutional identity? While, the HCC in its case-law clearly talks about the identity of the country, the Conseil Constitutionnel and the German Constitutional Court (Bundesverfassungsgericht, BVerfG) is of the view that it is the Constitution of France (La Constitution française du 4 octobre 1958) and the Basic Law of the Federal Republic of Germany (Grundgesetz, GG) which owns the identity.[41] The BVerfG consistently holds that constitutional identity of the GG springs from its eternity clause,[42] namely Article 79(3).
Summarizing the above paragraph, the distinction between national identity and constitutional identity is a question of word pick: the former is a terminology under EU law, while the latter is the technical term of the constitutional courts.
2.The comparison of the three constitutional courts’ practice related to the unconditional primacy of EU law and its boundaries
2.1.The causes and the key elements of reasoning in the constitutional courts practice
2.1.1. The case-law of the BVerfG
The unconditional primacy of EU law has been challenged by several member states’ constitutional courts spearheaded by the BVerfG, which may be regarded as the primus inter pares among the European constitutional courts, and which serves as an example to be followed by other courts.[43] This statement is supported by the fact that several constitutional courts – mainly those from the Central and Eastern European countries – expressly referred to the case-law of the ‘BVerfG. – The majority in the HCC Decision No. 22 of 2016 (XII.5.)[44] and Imre Juhász[45] made such reference in his concurring opinion attached to said decision.[46]
Throughout the decades the BVerfG elaborated on a well-nuanced case-law on the nexus between the GG and the community law. This case-law is thoroughly analysed in the rich scientific literature,[47] therefore the author of the current chapter focuses on the detailed introduction of the BVerfG’s novel case-law related to the Banking Union and the crisis management tools of the European Central Bank (ECB). Regarding the older cases, the author only outlines the most important milestones and the related literature. As Ferdinand Weber wrote about the BVerfG’s case-law a certain ‘harmony of support and reservation’ can be traced back to the decisions of the Second Senate and the First Senate from July and October 1967, respectively.[48] While the Second Senate considered a review of secondary law and primary law as permitted by the GG, the First Senate recognized the autonomy of Union law in the delegated framework.[49] As Weber argues, the further case-law showed that this dialectical harmony of support and reservation continued.
In its ‘Maastricht-decision’[50] the BVerfG expressed its support and formulated its reservations towards the integration project, when stated that ‘The principle of democracy does not […] prevent the Federal Republic of Germany from becoming a member of a compound of States (Staatenverbund) which is organised on a supranational basis. However, it is a precondition of membership that the legitimation and influence which derives from the people will be preserved within an alliance of States.’[51] The BVerfG stated furthermore, that Article 38 of the GG is violated if a law which subjects the German legal system to the direct validity and application of the law of the supranational European Communities does not give a sufficiently precise specification of the assigned rights to be exercised by the European Communities and of the proposed programme of integration.[52] At this point the BVerfG referred back to its ‘Eurocontrol I’ decision[53], in which the BVerfG – among other provisions – interpreted Article 24(1) of the GG under which: ‘The Federal Government may transfer sovereign rights to intergovernmental organisations by law’. In this regard the BVerfG stated that Article 24(1) of the Basic Law does not open the way for challenging the basic structure of the constitutional provisions. The fundamental legal principles that are recognised and guaranteed in the GG are an inalienable component of the constitutional structure in the BVerfG’s opinion.
Regarding the primacy of the EU law, the BVerfG emphasized in its Lisbon-decision[54] – which also fits into the line of pro-integration decisions of the BVerfG – that: ‘[…] the primacy of application of Union Law, which is the subject of Declaration No. 17, is alleged not to confer statehood on the Union, but solely to emphasise the character of the European Union as a legal community […] This declaration, which does not form part of the normative part of the treaty, is alleged not to change the existing legal situation and not to result in a fundamental priority of Union law over the national constitution’.[55] The BVerfG also stated that: ‘With Declaration No. 17 […] the Federal Republic of Germany does not recognise an absolute primacy of application of Union law […] The treaty does not provide the Union with any sovereign powers that would permit supranational access to the Member States’ legal orders […] the primacy of application only reaches as far as the Federal Republic of Germany approved [it].’[56] The Lisbon-treaty is also important from another aspect: it was the case in which the BVerfG elaborated the so called Identity Control (Identitätskontrolle).[57]
In its Honeywell-case the BVerfG[58] undertook the obligation to launch preliminary ruling procedure whenever it is deemed necessary, when emphasized that: ‘[…] the Court of Justice is therefore to be afforded the opportunity to interpret the Treaties, as well as to rule on the validity and interpretation of the legal acts in question […].’ – The BVerfG held its promise and initiated such procedure in the Weiss-case.[59]
When it came to the Banking Union and the crisis management, the BverfG in its ESM decision[60] shared the ‘amicable attitude’ of the other national constitutional courts[61] and of the CJEU.[62] The latter has always exhibited an ‘overly friendly’ attitude towards the institutional framework of the ECB’s crisis management[63] or in the blunter phrasing of co–authors Dawson and Bobic: ‘answer to any question related to ECB’s activity (at least on monetary questions) seems to be known in advance.’[64] It has to be noted that ECB and the ECJ were not in easy situation: in the words of Yair Listokin: in the ‘OMT–case’ these two institutions could have chosen either the functional ‘amendment’ of the Founding Treaties, or taking the risk of the Eurozone’s possible fall. The ECB and the ECJ chose to first option.[65] The BVerfG – as mentioned above – approved this opinion, however stated that ‘[…] when an interpretation of the Treaties is not comprehensible and must thus be considered objectively arbitrary [the CJEU’s] decisions may no longer be covered by Article 19(1) second sentence TEU and in relation to Germany, would then lack the minimum of democratic legitimation necessary under Article 23(1) second sentence in conjunction with Article 20(1) and (2) and Article 79(3) GG.’[66]
Another warning from the BVerfG arrived in 2019, when it took the view that while in the current state of the Banking Union there is still a sufficient level of legitimacy feedback, transferring further competences to the supranational level may result in a diminished democratic legitimation.[67]
In the words of José Luís da Cruz Vilaça,[68] the BVerfG ‘crossed the red line’[69] with the so called ‘PSPP–judgement’ of 5 May 2020[70] when it stated that the ECB acted ultra vires, and in violation of Germany’s constitutional identity by implementing the Public Sector Purchase Programme (PSPP)[71] under which the European System of Central Banks (ESCB) carried out the purchases of government bonds. As a possible explanation of the loud outcry in the scientific literature[72] and the heated public debates the BVerfG did it in the worst possible time, at the beginning of the COVID–19 pandemic in May 2020 – which, based on the knowledge available at the time –, threatened to have unforeseen health and economic consequences, while the EU institutions were eager seeking legal basis for their acts aimed at tackling the economic consequences of the COVID–19 pandemic.[73]
As the BVerfG argued, the Member States are the ‘Masters of the Treaties’, consequently: the EU institutions are not allowed to establish powers [for themselves] not conferred on them by Treaty provisions and Member States are not bound by decisions of EU institutions in case these decisions contradict the principle of conferral.[74] The asset purchases carried out by the German Federal Bank (Deutsche Bundesbank) within the framework of the PSPP fall under the competence of the Member States based on the Founding Treaties. Thus – in the BVerfG’s view – the PSPP is essentially: an intervention in the economic policy of the Member States and enables the ECB to pursue an autonomous economic policy, contrary to the provisions of the Treaties: ‘[…] the purchasing of government bonds by the ESCB essentially amounted to granting financial assistance to Member States, it would qualify as an economic policy measure for which the EU has no competence […] The ESCB is to merely support the general economic policies in the European Union […]; it is not, however, authorised to pursue its own economic policy agenda.’[75] At this point, the BVerfG, just like its Romanian counterpart deprived the CJEU’s judgment from its binding nature within the federal Republic of Germany: ‘The CJEU thus acted ultra vires, which is why, in that respect, its Judgment has no binding force in Germany.’[76]
The ECB has taken note of the BVerfG’s decision without commenting on its merits, and has declared its intention to continue to use its powers to fulfil its purpose as laid down in the Founding Treaties.[77] The CJEU departing from its habit that it never comments on a judgment of a national court made the following statements in its press release:[78] ‘[…] the Court of Justice has consistently held that a judgment in which the Court gives a preliminary ruling is binding on the national court […] In order to ensure that EU law is applied uniformly, the Court of Justice alone […] has jurisdiction to rule that an act of an EU institution is contrary to EU law. Divergences between courts of the Member States as to the validity of such acts would indeed be liable to place in jeopardy the unity of the EU legal order and to detract from legal certainty.’ The CJEU stated that it will refrain from communicating further on the matter. The President of the European Commission, Ursula Von Der Leyen in her statement[79] reminded to three basic principles: (i) ‘that the Union’s monetary policy is a matter of exclusive competence; (ii) that EU law has primacy over national law and that (iii) rulings of the European Court of Justice are binding on all national courts. The final word on EU law is always spoken in Luxembourg. Nowhere else.’ – She added.
The European Commission launched infringement proceedings against Germany some thirteen months later.[80] Some academics argued that launching the infringement procedure was not a wise move since by the end of the day the German Government could have been made to pay for the act of the independent judicial branch[81] It is no coincidence that until the 2018 CJEU decision in European Commission v. French Republic[82] no judgment had been delivered in which the Commission had invoked a breach of Article 267(3) TFEU as a complaint. However, it was clear in principle from previous cases that such deficiencies in the practice of domestic courts may also give rise to infringement proceedings.[83] Others argue that launching the infringement procedure was a ‘must’ move: the European Commission – currently chaired by a German citizen – could not allow dispensing with the infringement proceedings against Germany, given that this omission could have served as basis for other countries not to comply with the provisions of the Founding Treaties.[84] According to Federico Fabbrini, this is no coincidence: this time was long enough to ‘save the BVerfG from itself.’[85] The Bundesbank, the German government and the lower house of the German parliament (Bundestag) ‘settled the matter’ by conducting the proportionality assessment, when they inspected some publicly not available documents provided by the ECB.[86] This time was also enough to negotiate at EU level the package to counter the economic crisis caused by COVID–19, without the Commission having to confront the German government during the negotiations. Referring to the fact of the above assessment – and to some formal deficiencies –, the BVerfG in its April 2021 Decision[87] rejected two applications for the enforcement of the judgment of 5 May 2020 under Article 35 of the Law on the BVerfG (Bundesverfassungsgerichtsgesetz, BVerfGG).[88] As Joseph Weiler wrote already in 2009: the German Constitutional Court has a well-earned reputation of ‘the dog that barks but does not bite.’[89] In Fabbrini’s opinion the issue had effectively been resolved by the time the Commission responded on the merits, so there would be no real stakes in the proceedings. Not surprisingly, the European Commission closed the infringement procedure against Germany in December 2021.[90]
And yet again after its ‘surrender in April 2021’ the BVerfG entered its reservationist period and – acting as the watchdog of the German constitutional order – stated in its decision Eilanträge EPGÜ-ZustG II[91] that: ‘The openness of the domestic legal order to EU law, which has its basis in the design of the Basic Law […] is subject to limits that derive […] from Germany’s constitutional identity enshrined in the Basic Law (Art. 23(1) third sentence in conjunction with Art. 79(3) GG), which is beyond the reach of both constitutional amendment and European integration. The precedence of application of EU law only applies to the extent that the Basic Law and the domestic act of approval permit or provide for a transfer of sovereign powers. It is incumbent upon the BVerfG to uphold these constitutional limits, in particular when conducting an identity review or an ultra vires review.[92] It is worth mentioning that in the same paragraphs the BVerfG referred to the case-law of other constitutional and supreme courts of the EU Member States, which recognised similar constitutional reservations. Interestingly enough, the BVerfG did not mention the HCC and the RCC as such courts, it only make a reference to the PCC’s much earlier K 18/04 Decision.
As for the scientific opinions on the PSPP judgment, Grégory Claeys argues that the BVerfG’s judgment was logically flawed at the first place: its statement that the CJEU did not examine the proportionality of the ECB’s decisions in sufficient detail leads to the conclusion that the BVerfG did not take into account that the ECB’s primary objective under the provisions of the Treaty is to achieve price stability. Any other objective can only be taken into account afterwards.[93] In other words, the ECB cannot arrange price stability and other objectives in an arbitrary order, thus the proportionality test required by the BVerfG is impossible to be carried out. In Claey’s view the PSPP judgment’ only positive outcome was that it highlighted a fundamental problem in the Eurozone, namely that twenty years after the establishment of the ECB, it still not entirely clear what exactly does and does not fall within the ECB’s mandate.[94] Following this train of thoughts it is worth mentioning the opinion of David Quinn that the newly found role of the ECB as LLR within the Eurozone – which is legitimated by the CJEU’s case–law – leads to a growing gap between the treaty framework and the de facto functioning of the ECB and the problems arising from it: the governance structure of the ECB was not designed make such distributional choices. Even assuming the utmost probity and technical competence, its decision makers are not directly elected by the European demos thus its decisions on the above mentioned distribution choices suffer from democratic deficit.[95]
2.1.2. The case-law of the HCC
The HCC tried to avoid the confrontation with the CJEU both before and after the country’s accession[96] to the EU.[97] However, certain findings of the HCC in Decision No. 30/1998[98] served as a reference point for the drafters of the EU clause of the then Hungarian Constitution – Act XX of 1949[99] –, namely that in the absence of an explicit constitutional mandate, the National Assembly is not entitled to extend the principle of territoriality beyond the exclusive jurisdiction of the supreme sovereign, the state furthermore it is not entitled to make constitutional amendments via international treaties.[100] As conclusion, the HCC stated that ‘[…] the sovereignty of the people the constitutional rights deriving from the principle of the rule of law and the democratic constitutional requirement that public authority in the Republic of Hungary may be exercised only on the basis of democratic legitimacy.’[101] In Decision No. 1053/E/2005 the HCC marked its chosen path related to primacy when stated that ‘[…] despite their treaty origin, does not intend to treat the founding and amending treaties of the European Union as international treaties.’[102] Not much later the HCC added in another decision that ‘[…] these Treaties, as primary sources of law, and the Directive, as a secondary source of law, are part of internal law as Community law, since the Republic of Hungary has been a member of the European Union since 1 May 2004. For the purposes of the jurisdiction of the Constitutional Court, Community law does not constitute international law within the meaning of Article 7(1) of the Constitution.’[103]
The above approach as Nóra Chronowski named it is the ‘two-pronged’ system, in which community law is part of the domestic law, while international law is a distinct system, which is subject to a differentiated constitutional approach. Contrary to this, the BVerfG opted for the so-called ‘three-pronged’ system, which is based on the assumption that community law is different both from internal and international law and from a constitutional aspect, a sui generis and autonomous source of law. Thus in the HCC’s case-law the issue of conflicts of law was crowded out from the frame where constitutional questions are to be found. While – quite paradoxically –, when it comes to grammatical interpretation, the expression ‘part of internal law’ implies a wide-scope of constitutional revision, the HCC emphasized that since the community law is not international law, it is simply not willing to use its competences to resolves the possible collision between EU and domestic law. The international treaty nature of the Founding Treaties was never called into question. They are international treaties of course. Their ‘reclassification’ was only technical by its nature. However as Chronowski noted the logic of the HCC was inconsistent since in one of its decisions[104] it considered a mixed agreement concluded by the European Union as an international treaty without any further consideration in order to subject the promulgating law to prior normative control.[105]
The HCC’s ‘Lisbon-decision’[106] fitted into this conflict avoiding tendency. The HCC pointed out that ‘[…] the petitioner has asked essentially the same questions as those put by national parliaments, their representatives and other public office holders in several European countries before the ratification of the Lisbon Treaty […] have either concluded that the Lisbon Treaty is compatible with their state’s constitution – which has undergone some amendments in recent years in view of the reform – or that [in the lack of prior reforms] the obstacle to ratification has been removed by constitutional amendment [done after the decision of the constitutional court.].’[107] In addition to this – in the author’s view rather resigned – introduction, the HCC claimed the lack of its competence, when added: ‘Although the petition refers to the [national legal act on the Lisbon Treaty] the motion raises in part questions which in fact relate to the interpretation of the content of certain provisions of the underlying Lisbon Treaty, which interpretation may only be given by the Court of Justice of the European Union.’[108] The HCC reiterating its earlier case-law[109] stated that: ‘The limitation of sovereignty is a natural consequence of the state’s involvement in international relations, its international obligations.’ The HCC – in line with the findings of other constitutional courts [110]– the stated that: ‘[…] the Lisbon Treaty did not create a European superstate: the Lisbon Treaty was adopted and ratified by sovereign Member States, which agreed to share part of their sovereignty in the form of supranational cooperation. The Lisbon Treaty does not fundamentally change the European Union […]’[111]
In the author’s view two concurring opinions worth highlighting from this era: first, the concurring opinion of Péter Kovács[112] attached to Decision No. 1053/E/2005 in which he argued that in the past decades serious constitutional and community law debates took place whether the constitutional courts are still able to fulfil their role as the guardians of the constitution. The so-called constitutional protection of fundamental freedoms and the democratic deficit became the key words according to his views.[113] The second is the concurring opinion of László Trócsányi[114] attached to the Lisbon-decision of the HCC, where the term constitutional identity and the principle of maintained sovereignty was mentioned the first time ever in the HCC’s case-law.
The change in the above mentioned ‘conflict avoiding’ practice occurred with Decision No. 22/2016[115] (the so called ‘migrant quota decision’). The change was not without antecedents, however. It is worth mentioning that the preceding ‘value-neutral’ Constitution – perceived as illegitimate among conservative minds in Hungary[116] – was replaced with a value-centred document by the drafters of the Fundamental Law of Hungary[117] As István Stumpf wrote, the drafters of the Fundamental Law were of the view that a constitution should be more than a technical document describing how a state should work. In László Trócsányi’s view[118] the Fundamental Law differs from other ‘uniform’ national constitutions in its spirit, when it strives to express the importance of the communities instead of thinking in individuals.[119] Attila Horváth and his fellow co-authors argue that the Fundamental Law is similar to the French constitution, which is centred on national sovereignty. [120] István Kukorelli characterized the Hungarian Fundamental Law as eurorealistic.[121] Its true novelty however is that it introduced the notion of the ‘achievements of the historic constitution’, a newly created technical term in Hungarian constitutional law. József Szájer – one of those, who played an important part in drafting the Fundamental Law – argues that having regarded its novel character its actual meaning and content is expected to be elaborated on in the case-law of the HCC and partially in the legal literature.[122] The HCC has done exactly this in the past years: it has identified the so called ‘achievements of the historical constitution’[123] by interpreting the historical constitution as required by Article R(3) [124] of the Fundamental Law of Hungary. Szakály argue[125] that these are the implicit eternity clause of Hungary.[126]
In its so called migrant quota decision of 2016, the HCC interpreted Article E(2)[127] on the motion[128] of the Commissioner for Fundamental Rights (CFR) submitted back in 2015. In its decision, the HCC vindicated – in Drinóczi’s words: created[129] – three types of revisionary competences, namely (i) reservation of fundamental rights, (ii) the sovereignty control and (iii) identity control. The latter two constitute the so called ultra vires control. The HCC stated that it is the most important token of protecting the sovereignty and constitutional self-identity of Hungary.’[130] Having regarded the time passed since the adaption – and the political significance[131] – of the decision, it is rather thoroughly elaborated in the scientific literature. Therefore the author dispenses with presenting the majority decision in details, instead he focuses on the key points of the majority decision and the five concurring and one dissenting opinion[132] and summarises the main findings of the scientific literature. The relatively high number of the concurring opinions and the dissenting opinion indicate that the body was far from being unanimous, when it came to the adjudication of the case. Furthermore the opinions in scientific literature are rather mixed: while some praise the merits of the decision, others emphasize the shortcomings. The author introduces the decision at hand in three points.
First of all, it is worth emphasizing that it was the first time, when the HCC elaborated on the nexus between the law of the EU and the domestic constitutional order.[133] In doing so, the HCC made remarkable statements. In relation to sovereignty control, the HCC emphasized the principle of maintained sovereignty,[134] when it – reiterating Article E(2)[135] of the Fundamental Law – stated that: ‘[…] with its accession to the EU Hungary did not transfer her sovereignty as a whole, she only made it possible to jointly exercise some of her competences with other member states through the institutions of the EU, that is to say one has to assume the principle of maintained sovereignty.’ [136] As András Zs. Varga[137] emphasized in his concurring opinion ‘[…] the Constitutional Court, just as any other State body, should interpret strictly the presumption of the maintenance of sovereignty. If there are arguments in favour of keeping the exercising of a competence within the sovereignty of the Member State, then it should be presumed that Hungary has not transferred the competence to the European Union, even when there are other arguments in favour of such transfer.’[138] Furthermore the HCC defined the constitutional identity of Hungary in the majority decision as follows: ‘the constitutional identity is the self-identity of Hungary and defines its meaning on a case-by-case basis based on the Fundamental Law as a whole and based on its special provisions, with special regard to Article R(3).’ [139] The latter prescribes that ‘the Fundamental Law shall be interpreted in accordance with their purposes, the National Avowal (Nemzeti Hitvallás) contained therein and the achievements of our historic constitution. As paragraph 67 of the majority decision stated, the constitutional self-identity of Hungary does not arise from a written constitutional document, instead it ‘[…] is a fundamental principle, which is not created by the Fundamental Law, the preceding is only acknowledged by the latter.’ One may note in this regard, that the HCC – unlike its German and French counter-parts – attributes the constitutional identity to the country and not the written constitutional document.[140] The HCC positioned itself as the state body responsible for sovereignty and identity control.
Secondly it is worth mentioning, that the HCC strived to remain within the frames of the so called ‘cooperative constitutionalism’[141] – or ‘constitutional dialogue’ in the HCC’s word pick. In this regard constitutional judge László Salamon[142] – the former president of the committee, which drafted the Fundamental Law – argued that a more determined, confronting opinion would have been more appropriate.[143] Nevertheless, the majority decision stayed in conformity with the idea of constitutional dialogue, when emphasized that: ‘[…] the direct subject of sovereignty and identity control is not the legal act of the EU itself.’ That is to say, the HCC will make statements neither on the interpretation and validity of the EU legal act, nor on its primacy.[144]
Thirdly, the depth and quality of the comparative law analysis in Decision No. 22/2016[145] on the case-law of other constitutional courts of EU Member States regarding the basic law protection and ultra vires control is quite remarkable.
The other decision of the HCC being subject of the author’s examination is HCC Decision No. 32/2021 that was issued on the motion of the minister of justice.[146] The petitioner asked the HCC to interpret Article E(2) and Article XIV(4) of the Fundamental Law and articulate its position, whether the Hungarian state is allowed to execute an obligation arising from EU law, namely judgment of the CJEU in the C-808/18 Commission v. Hungary case[147] that – in the lack of effective execution of the union law – would create a situation in which persons who are staying on Hungarian soil in an illegal manner and the length of their stay is unpredictable would de facto become the part of the country’s population?
The HCC decided to examine the question in abstracto, that is to say it restricted its scope of examination, most probably in order to meet the requirements of cooperative constitutionalism. In the author’s view thus the HCC made a gesture towards the CJEU and unlike its German and Romanian counter-parts did avoided the situation to have a say on the validity and legally binding nature of a CJEU decision within the national legal order, when stated: ‘[…] the question in the motion, which requires interpretation of the Fundamental Law, may be separated from the CJEU decision referred in the motion. Thus, the HCC decided to examine only the real question, deductible directly from the motion.’[148]
The HCC examined the question first from the point of view the fundamental right protection and placed the right for protection of human dignity into the centre. The majority decision, reiterating HCC Decision No. 37/2011 (V.10.)[149] made two statements in this regard. First, that the right to human dignity is the parent right of other fundamental rights, which can only be evaluated with regard to human dignity. In the majority’s view the right to human dignity includes – among others – the right to self-identity and the right to self-determination.[150] Secondly, the majority decision stated that having regarded the universal and parent right nature of human dignity, it is only a subsidiary right, which may only be called upon, when some other particular rights cannot be applied. The majority decision made a connection between human dignity and the cultural space, where humans are born, and thus this ‘cultural tradition’ becomes part of their personality. If this cultural space is altered without the democratic participation of the person concerned and in a way that fells outside the scope of state authorities’ competence the right to human dignity is infringed.[151] This became the starting point of the majority decision and also the one that attracted the most criticism both from constitutional judges and academics as it will be elaborated on in details. The majority reasoned its decision as follows: ‘Individual persons as the most basic part of any human community – especially of states – are born into a specific society. This society may be described based on its ethnic, linguistic, cultural and its religious tradition and maybe regarded as the traditional community of the human. These circumstances create natural bonds from the very beginning of life, which affect the self-identity of the person.’[152] The majority decision continued to reason as follows: ‘These circumstances constitute such an integral part of the person that spring from human dignity. […] In case the person does not have any influence on a situation that induces such change, then the person is coerced to change integral parts of his/her personality in a way that both fells outside the principle of popular sovereignty and lacks any democratic legitimation.’[153] The HCC took the view that this situation may arise when there is a deficiency in the joint exercise of powers. The HCC took into consideration – however did not examined in details – those allegations of the petitioner that there are no readmission agreements concluded with certain countries and even there are such agreements, most of them barely function in practice. The petitioner argues that these two factors together leads to a situation, where the joint exercise of competences on the field of handling the illegal migration suffers from deficiency.[154] As the majority held ‘If an alien population remained on the territory of Hungary without any democratic legitimation and in vast numbers due to the deficiency in the joint exercise of powers under Article E(2) of the Fundamental Law, it would lead to a situation that might infringe the right of the Hungarian population to self-determination and self-identity, the derivative rights from human dignity. It is because, that due to the deficiency in the joint exercise of competences the traditional societal environment of those affected my change in a way that lacks democratic legitimacy and […] outside the scope of the state authorities’ competences.’ [155] However, the HCC held it important to emphasize that the above mentioned infringement occurs only when the state’s control function does not prevail.[156]
Subsequently, the HCC examined the petition from the aspect of sovereignty control, that is to say it examined the effects of the deficiencies in the joint exercise of powers to the sovereignty of Hungary. The HCC indicated that in this regard it holds its point of view expressed in its earlier cases, namely Decisions No. 22/2016 and No. 2/2019.[157] The majority in Decision No. 32/2021 emphasized the importance of the principle of maintained sovereignty and reiterated its findings on 22/2016.[158] The majority continued as follows: ‘The principle of maintained sovereignty […] a maiore ad minus covers that exceptional circumstance, when the deficiency in exercising the jointly exercised competences creates a situation, where […] rights affected by the said competences are infringed or the state is unable to fulfil its obligation to protect those rights.’ In the HCC’s view, this situation may occur, when ‘[…] the institutions of the European Union obviously fail to meet their obligations to exercise […] certain competences, which are [under the Treaties] subject to joint exercise or the joint exercise […] does not meet the requirement of effective prevalence of the union law.’[159] In the subsequent paragraph, the HCC stated that such an application of the maintained sovereignty may be used only in an exceptional case.[160] Following this train of thoughts, the majority noted that the HCC shall not waive the right to grant ultima ratio protection for the core of human dignity and fundamental rights and is obliged to grant that […] the joint exercise of powers does not result in a situation, which infringes human dignity and fundamental rights.’[161] The majority decision states in this regard that ‘[…] in case there is a deficiency in the joint exercise of competences, Hungary is entitled to – based on the principle of maintained sovereignty – to exercise those competences that are not exclusive EU competences as far as the institutions of the union fail to do those acts that are necessary for the effective exercise of those competences, which are to be exercised jointly.[162]
Last, but not least the HCC examined the connection between the possible deficiencies in the jointly exercised competences and the constitutional self-identity of Hungary.[163] The majority decision first reiterated some of its statement’s from HCC Decision No. 22/2016[164] then clearly stated that: ‘The values constituting the self-identity of Hungary came into existence during the evolution of historical constitution.’ It is worth making a short comparison with certain findings in Decision No. 22/2016. (XII.5.),[165] where the HCC approached the question in a different way, namely: ‘[…] the content of the self-identity of Hungary is elaborated on in a case-by-case basis in accordance with the achievements of the historical constitution. Nevertheless, the majority of HCC Decision No. 32/2021 argues as follows: ‘[the above mentioned values][166] are such legal facts that shall not be waived neither by concluding an international treaty nor by amending the Fundamental Law.’ – This train of thoughts first appeared in the concurring opinion András Zs. Varga’s in Decision No. 22/2016.
As a conclusion in Decision No. 32/2021, the Constitutional Court established that ‘[…] the protection of Hungary’s inalienable right to determine its territorial unity, population, form of government and State structure is part of its constitutional identity.’[167]
As mentioned in the earlier case-law – including the Lisbon-decision –, the HCC failed to demarcate the borders between the European integration and the constitutional system based on the then-Constitution, [168] namely Act XX of 1949. In its novel case-law, the HCC applies the notion of achievements of the historic constitution to identify the constitutional identity of Hungary. András Zs. Varga is of the view that the most important merit of the achievements of the historic constitution is that it resolved the paradox of the parallel existence of a written constitution and the historic constitution. In his view ‘[…] the Fundamental Law is similar to an hour-glass due to Article R(3), that is to say the historic constitution, which is at the top pours down into positive law at the bottom through the neck, which is the Fundamental Law.’[169] This is clearly in line with the thoughts of the Fundamental Law’s drafters that the constitution in a wider notion encompasses not only the written – or in other words – positive law: traditions are also part of the constitution. Thus, the Fundamental Law is not the constitution, it is only part of this system. That is why the drafters chose to name it Fundamental Law instead of constitution, while they did not alter the name of the constitutional court. As Szájer argues this was an intentional decision that emphasizes that the HCC does not only examine the written constitution, it also analyses the whole ‘system’. On the other hand it has to be mentioned that the notion of the achievements of the historical constitution is probably the most debated element of the HCC’ Case-law even among constitutional judges. In her concurring opinion in Decision No. 22/2019[170] Dr. Ildikó Marosi Hörcherné highlighted the ‘black-box’ nature of the method through the HCC identifies the achievements of the historical constitution when stated: ‘I see that a dogmatic approach that clarifies the method of identifying the acquis is still awaited.’[171] She maintained this position in her concurring opinion in Decision No. 32/202 with the following addition: ‘[…] the question remains how and on the basis of what test it is possible to identify those elements of the undoubted, irrefutable and now more than a millennium-old Hungarian public law tradition which are worthy to be made the domain of interpretation of the Fundamental Law in the 21st century.’[172] As for the scientific literature, Ádám Rixer provides a thorough analysis on the ‘achievement-test’ in his monograph.[173] It is also worth highlighting the opinion of Fruzsina Gárdos-Orosz who argues that this notion is very far from the legal positivist approach that was typical of Hungarian law and jurisprudence, not only in the socialist regime – which had a longstanding effect on the legal thinking –, but later as well.[174] Zoltán Szente argues that the references to these old ‘texts’ are redundant – and therefore unnecessary in a legal sense – since we have written rules in the positive legal order currently in force in Hungary for the same constitutional issues.[175]
As it was mentioned above, regarding Decision No. 22/2016, the HCC did a rather thorough examination of other Constitutional Court’s practice. Sadly enough, the HCC failed to place these approaches and theoretical constructions into the Hungarian context, as constitutional judge Imre Juhász wrote in his concurring opinion. He argued as follows: ‘In my opinion it would have been reasonable to analyse the fundamental right protection more thoroughly and starting from the ground of Hungarian constitutional theory. […] Without the analysis I miss, one may conclude that the reasoning of the HCC simply copies the case-law of the BVerfG.’[176] Constitutional judge Stumpf in his concurring opinion made a similar statement – when responding to paragraph of the majority decision[177] – emphasized that these statements are borrowed from the Lisbon-decision of the BVerfG that lack any roots that would connect it to the Fundamental Law of Hungary.[178]
In the author’s view it is worth examining how the HCC is able to perform its duty based on the achievement of the historical constitution as declared first in Decision No. 22/2016. Accepting the argument of Zsuzsa Szakály[179], namely that the achievements of the historical constitution constitute the implicit eternity clause in the Hungarian constitutional order, they should empower the HCC to protect the Fundamental Law of Hungary both from domestic constitutional legislation and from outside pressure if these are deemed as arbitrary. As Beáta Bakó remarks regarding the former, since the HCC – unlike the BVerfG – is not empowered to adjudicate on constitutional amendments,[180] the HCC would go into such battle unarmed.[181] In the author’s view this is a fact even in principle the constitutional legislation is bound by the achievements of the historical constitution ever since Decision No. 32/2021 was adopted in which the majority – relying on the concurring opinion of András Zs. Varga in Decision No. 22/2016[182] – stated: ‘The values that make up Hungary’s constitutional identity have come into existence on the basis of historical constitutional development, they are legal facts that cannot be waived neither by way of an international treaty nor with the amendment of the Fundamental Law, because legal facts cannot be changed through legislation.’[183] The achievements of the historical constitution seem to be a more viable weapon when it comes to protecting the constitutional order from external pressure e.g. from the so called integration by stealth.[184] Constitutional judge Béla Pokol argues that achievements of the historical constitution are the ultimate tool for protecting Hungary’s constitutional order.[185] As he argues in his dissenting opinion attached to HCC Decision No. 22/2019: ‘[the creation of a federal United States of Europe][186] in my view would be incompatible with the core values of the achievements of the historical constitution, namely our independent statehood.’[187] It is worth mentioning in this regard, that other EU member states’ constitutional courts too, use the constitutional identity as a shield against external pressure.[188]
As for the merits of Decision No. 32/2021, Tamás Sulyok emphasized that: ‘[…] the joint exercise of competences by the Union must in any case be justified by the member states and cannot be regarded as an obvious determination of the direction in which the historical process has developed.’[189] However – as mentioned above –, the majority decision’s chosen approach namely the connection of human dignity with cultural determination by birth was the most debated element of the argument. As constitutional judge László Salamon considered this connection to be rather far and accidental in his concurring opinion. However, he could not exclude the presence of such connection with 100 % percent accuracy.[190] Constitutional judge Ildikó Marosi Hörcherné[191] argued in her dissenting opinion that human dignity is an individual right, which is attached to every person individually. Identity and self-identity may be characterised as the fundamental characteristic of the person in other words as a personality trait. In her view: ‘The composition of society – including the Hungarian one – is in a constant change. However, this change does not coerce anyone to change the existing interpersonal bonds or the personal traits that are part of human self-identity. Similarly the ethnical, linguistic, cultural or religious characteristics of those seeking protection […] do not – or at least not alone – affect the inner, personal integrity of those living here.’[192] Constitutional judge Balász Schanda[193] too, supported the majority decision only with restrictions. He explained this in his concurring opinion as follows: ‘[…] The cultural characteristic, of the society, furthermore its variegation or homogeneity does have constitutional importance. However, it does not affect the status of the person […] Nobody has the right to decide the cultural environment in which they would like to live. Such right does not arise from Article II of the Fundamental Law.’[194]The concurring opinion of Béla Pokol[195] also worth highlighting: ‘While at first sight one may see as a noble gesture, how the majority nominated [the right to human dignity] the parent right, in reality however it leads to the overriding of both the written catalogue of fundamental laws and their definition [as elaborated back in the Age of Enlightenment].[196] This way, the constitutional court reactivates the concept of invisible constitution.’
Last, but not least, it is worth mentioning that the HCC’s willingness to engage into dialogue is an interesting issue. The first fold of criticism is to be found in the concurring opinion of constitutional judge István Stumpf in Decision No. 22/2016, in which he falsifies the majority opinion, when argues as follows: ‘As soon as […] the HCC engages into the identification of those values which are – based on Hungary’s sovereignty and her constitutional self-identity – worth of being protected from the legal act of the EU, the constitutional court indirectly expresses its opinion on the possible ultra vires nature or invalidity of that legal act.’[197] In other words, the above mentioned statements of the majority decision are rather symbolic gestures than the reflections of the HCC’s true will, since stating the ultra vires nature of the legal act of the EU implicitly suggest its invalidity.[198] Such a decision is able to generate harsh turbulence as it was illustrated by the so called ‘PSPP decision’ of the BVerfG.[199] The second fold of criticism is about the real nature of the HCC’s attitude towards constitutional dialogue. It is worth mentioning in this regard that even though the majority decision of Decision No. 22/2016 mentions the importance of constitutional dialogue four-times and refers to the preliminary ruling procedure[200] just like constitutional judge Egon Dienes-Oehm[201] in his concurring opinion, [202] it is crystal clear that the HCC – unlike the BVerfG – never meant it. This is supported by Ernő Várnay’s arguments, who wrote in his study – based on the analysis of three HCC decisions[203] – that the HCC clearly regards the preliminary ruling procedure as a task of the ‘ordinary’ courts and does not consider – even for a second – that HCC itself could initiate such procedure. It is worth reiterating that – as introduced in details in the theoretical part of the current chapter – the current president of the HCC that the HCC emphasized in an interview[204] the importance of returning to a mutually respectful Gerichtsverbund, otherwise a legal disaster on the European road cannot be avoided.
2.1.3. The case-law of the RCC
A strong confrontation between the Romanian Constitutional Court (Curtea Constituțională, RCC) and the CJEU took place in the recent years.[205] The object of the dispute was a reform in the field of justice and the fight against corruption in Romania, which was monitored at EU level between 2007 and 2023 under Cooperation and Verification Mechanism (CVM).[206] The CVM was established under the provisions of the country’s accession treaty[207] in return for allowing the country to join the EU without fulfilling all the criteria of accession. Under the CVM, the Commission was entitled to issue recommendations the legal force of, which was the subject of the heated debate between the CJEU and the RCC. However, the Commission recently decided to close the CVM as Romania met all the benchmarks and fulfilled all the recommendations issued under the CVM. The Commission informed both the Council and the European Parliament of its intention in July 2023[208] and by its September 2023 decision[209] repealed the CVM effective from 8 October 2023.
Between 2007 and 2017 the Commission issued twelve specific recommendations and recorded a progress in the fight against corruption.[210] However between 2017 and 2019 it detected a throw-back due to judicial reforms undertaken from 2017 onwards, including the setup of the Public Prosecutor’s Office for the Investigation of Offences Committed within the Judicial System (Secției pentru investigarea infracțiunilor din justiție, SIIJ). The Commission issued new additional recommendations in 2018 in which – among others – requested the Romanian party to dispense with the over use of emergency ordinances on the field of judicial reforms.[211]
The RCC in its judgment No. 104/2018[212] held that EU law would not take precedence over the Romanian Constitution (Constitutia Romaniei),[213] and that recommendations under the CVM do not pass the ‘cumulative conditionality’ (condiţionalităţii cumulative) test of the RCC, thus could not constitute a reference provision in the context of a review of constitutionality under Article 148 of the Constitution.[214]
The RCC in its Decision No. 148/2003[216] aimed at the constitutional review of the act on amending the constitution in order to facilitate the country’s accession to the EU,[217] stated that the transfer of sovereignty is not irrevocable by its very nature. It is rather the decision of the sovereign member states to jointly exercise certain powers that, traditionally, belong to the field of national sovereignty. The RCC emphasized that membership in the integration implies the transfer of some attributions related to the sovereignty of the state to the European Union and also deemed it necessary considering Romania’s strategic objectives and the broad popular support of these objectives. The RCC found that the transfer of some elements of the sovereignty does not result in a situation in which these parts of the sovereignty became a new sovereignty of their own. Contrary to this, the only thing that happened in the RCC’s view is that the member states of the European Union decided to jointly exercise certain powers which traditionally, belongs to the field of national sovereignty. The RCC also emphasized that in the current era of the globalization it is impossible to conceive national sovereignty as absolute and indivisible, without the risk of isolation.[218]
As for the nexus between the law of the Union and the Romanian legal order, the RCC stated in the same decision that: ‘The consequence of the accession starts from the fact that the member states of the European Union understood to place the acquis communautaire – the constitutive treaties of the European Union and the legally binding regulations derived from them – on an intermediate position between the Constitution and the other laws.’[219] In the author’s view it is important to pay attention to the word pick of the RCC, namely the expression ‘intermediate’, which also suggests the supremacy of the constitution. As explained by Attila Varga,[220] the RCC established that ‘the European law has a supra-legal and infra-constitutional character’ that is to say it has precedence over the national regulatory acts that are inferior to the Constitution, but does not have precedence over the constitution. EU law cannot remove the very constitutional rules if there is a contradiction between them and the European rules.[221] Last, but not least in the decision at hand, the RCC which foresaw that the implementation of the acquis may result in collisions with the Romanian Constitution, suggested the placing of a new paragraph to Article 11 according to which in case of a collision between an international treaty – that Romania is intended to sign – and the Constitution prior amendment of the former is needed. This provision is now to be found in Article 11(3).[222]
In its Decision No. 668/2011 the RCC established the cumulative conditionality test in order to decide whether the Court is allowed to execute the constitutional review of a legal norm under Article 148(2)(4) of the constitution or not. As the RCC argued, since it is neither a positive legislator nor a court with the competence to interpret European law, RCC only examines norms that fulfil the criteria of a cumulative conditionality. The first criteria is that the rule is sufficiently clear, precise and unequivocal or its meaning has been established clearly, precisely and unequivocally by the CJEU. The second criteria is that the norm has a certain level of constitutional relevance, thus its normative content supports the possible violation by the national law of the Constitution. Through the prism of the two-pronged conditionality test, it remains at the RCC’s discretion to apply constitutionality control regarding the above norms – which fulfil the criteria of the test – or to formulate preliminary questions by itself in order to establish the content of the European norm. Last, but not least, the RCC referred to the importance of the judicial dialogue in the said judgment, stating that this dialogue is within the sole competence of the RCC and the CJEU.[223]
In its Decision No. 51/2012 the RCC created the principle of ‘constitutional loyalty’ (loialitate constituţională).[224] The Court emphasized the importance of the collaboration between the state powers in the spirit of the norms of constitutional loyalty in order to let the rule of law and the fundamental principles of democracy prevail.
In the same year in Decision No. 683/2012, the RCC declared a statement that is basically identical to the BVerG’s opinion the Member States as the ‘Masters of the Treaties’, when stated: ‘[…] the member states maintain powers that are inherent in order to preserve their constitutional identity, and the surrender of powers, as well as the rethinking, emphasis or establishment of new guidelines within the already surrendered powers, belong to the constitutional margin of appreciation of the member states. […] Therefore, the European Union can act only within the limits of the competences conferred on it, having, therefore, assigned competences.’[225] It is worth emphasizing that it was the first decision of the RCC, in which the expression constitutional identity (identităţii constituţionale) appeared.[226]
In its Decision No. 104/2018 – the starting point of the heated debate – RCC stated that the constitutional identity of Romania is the border, until the primacy of the EU law may spread. The RCC argued that while in the application of Article 148(2)(4) of the Constitution, ‘Romania applies in good faith the obligations resulting from the act of accession, without interfering with the exclusive competence of the European Union [thus] Romania cannot adopt a normative act contrary to the obligations it undertook as a member state […] all the previously shown know a constitutional limit, expressed in what the Court qualified as national constitutional identity.’[227] At this point, the RCC reiterated its earlier case-law on constitutional identity, namely Decisions No. 683/2012 and No. 64/2015.[228] The main argument of the RCC in Decision 104/2018 was that as a result of the cumulative conditionality test, the Commission’s decision could not constitute a reference norm since the second element of the cumulative test was not met: even if the Commission recommendations under the CVM would have been clear and unequivocal, they did not constitute norms that could be regarded as to the level of constitutional relevance necessary to carry out the constitutional control. The RCC also stated that in the light of the above cumulative conditionality, it remains at the discretion of the Constitutional Court to apply within the constitutional review the decisions of the Court of Justice of the European Union or to formulate itself preliminary questions in order to establish the content of the European standard. In the RCC’s view – in line with its case-law[229] – this dialogue shall be carried by RCC and the CJEU [and not by the ordinary courts and the CJEU].
The CJEU replied in the ‘Asociatia Forumul Judecdtorilor din Romania’ (The Association ‘Romanian Judges Forum) judgement,[230] in which it took the opposite view, by ruling that Decision 2006/928 and the reports drawn up by the Commission on the basis of that decision constitute acts of an EU institution, which are binding on Romania in the sense of Article 288(4) of the TFEU due to their clear and precise wording and their unconditionality.[231] In the CJEU’s view, in accordance with the principle of sincere cooperation[232] under Article 4(3) of the TEU, Romania must take due account of the issued recommendations to address the benchmarks enshrined in the decision, all aiming at institution-building, thus strengthening the rule of law.[233] Thus, Romania may not adopt or maintain any measures that jeopardize the goals to be achieved. In addition, the CJEU reaffirmed that the principle of the primacy of EU law must be interpreted as precluding national rules or a national practice under which the ordinary courts of a Member State have no jurisdiction to examine the compatibility with EU law of national legislation which the constitutional court of that Member State has found to be consistent with the national constitution.[234]
The RCC did not wait for long with the answer: in Decision No. 390/2021[235], the RCC reaffirmed the supremacy of the national Constitution over EU law and that ordinary judges have no jurisdiction to examine the conformity of a national provision with EU law in case that national provision has been found to comply with Article 148 of the Romanian Constitution.
First of all, the RCC called some of the CJEU’s statements into question. As a preliminary point, the RCC observed that, as it was held by the CJEU in the Asociatia Forumul Judecdtorilor din Romania judgment[236] Article 267 TFEU does not empower the CJEU to apply rules of EU law to a particular case, it only allows the CJEU to rule on the interpretation of the Treaties and the acts of EU institutions. It is for the referring court to rule on those points after making the necessary assessments.[237] The RCC cites paragraphs 215, 219, 221 and 222 of the said judgment as examples, where the ‘findings do not represent an interpretation of EU law which may be useful to it in assessing the effects of one or other of its provisions, but an application of the rules of EU law to a particular case’.
Secondly, as regards the interpretation of the principle of ‘primacy of EU law’ the RCC reiterated its own earlier case-law – namely Decision No. 80/2016[238] in which the Court stated that ‘the Constitution is the expression of the will of the people, which means that it cannot lose its binding force only by the existence of a discrepancy between its provisions and those of the European Union, since the State’s membership of the European Union cannot affect the supremacy of the national constitution over the entire legal order.’[239] The RCC also reiterated its Decision No. 683/2012 in which the Court stated that Member States are the ‘Masters of the Treaties’: ‘[…] the Member States retain powers which are inherent for the preservation of their constitutional identity, and the transfer of powers, as well as the rethinking, enhancement or establishment of new guidelines in the context of the competences already transferred […]’
Thirdly, the RCC claimed that the national identity is the border until the primacy of the EU law may stretch. As the RCC noted, the accession clause – that is Article 148(2)(4) of the Constitution – contains provisions according to which ‘[…] all national bodies of the State are, in principle, obliged to implement and apply EU law. This also applies to the Constitutional Court, which, by virtue of Article 148 of the Constitution, gives priority to the application of European law. However, this priority of application must not be perceived as removing or disregarding the national constitutional identity, as enshrined in Article 11(3), read in conjunction with Article 152 of the Constitution.[240] In the RCC’s view these provisions are the guarantee of a ‘substantive identity core’ of the Romanian Constitution, which must not be relativized in framework of the European integration process. The RCC stated that it is empowered to ensure the supremacy of the Constitution in Romania with regard to the constitutional identity.[241] The RCC went further in its argument when cited Article 4(2) of the TEU – which states that the Union shall respect the national identities of the Member States[242] and provided a linguistic interpretation of Article 148 of the Constitution: the RCC argued that the word pick of the drafters in case of Article 148(2), namely ‘national laws’ refers exclusively to infra-constitutional legislation.[243] – This interpretation is verified in the scientific literature: if the drafters choose the term ‘national legal order’ that would include the Constitution.[244] – This way however as the RCC argues, the Constitution retains its hierarchically superior position by virtue of its own Article 11(3). Taking into consideration the above mentioned, the RCC concluded that: ‘Article 148 of the Constitution does not give EU law priority over the Romanian Constitution, so that an ordinary court does not have the power to examine the conformity of a provision of national law, found to be constitutional in the light of Article 148 of the Constitution, with the provisions of EU law.’ The RCC by interpreting the CJEU’s findings in a rather ‘creative’ approach provided further reasons why a national judge shall not apply the EU law instead of the domestic law. RCC argues that the CJEU when it declared Decision 2006/928 to be binding in the ‘Asociatia Forumul Judecdtorilor din Romania’ case, also limited its effects in the same judgment by its own statements. First, according to the RCC the CJEU has established that the obligations are binding on Romanian authorities competent to institutionally cooperate with the European Commission, which are the Romanian Parliament and the Government of Romania – that is political institutions –, and secondly, that the obligations are to be exercised in accordance with the principle of sincere cooperation as provided under Article 4 of the TEU.[245] In the RCC’s view ‘the obligations cannot be binding on the courts, since they are State bodies which are not empowered to collaborate with a political institution of the European Union’.[246] Therefore the RCC found that the application of that part of the judgment, according to which a national court ‘is […] permitted to disapply of its own motion a national provision falling within the scope of Decision 2006/928, which [the national court] considers contrary [to the specified EU legal sources], has no basis in the Romanian Constitution, since […] the CVM reports […] do not constitute rules of EU law, which the court should apply.’[247] – That is they are not ‘mandatory community regulations’ under Article 148(2) of the constitution.
The CJEU replied with the Euro Box Promotion and Others judgment. Three points worth highlighting: first, the CJEU confirmed its findings in the ‘Forumul Judecdtorilor din Romania’ case[248], namely the legally binding nature of the Commission’s recommendations under the CVM and that the capacity for referral to a preliminary procedure under Article 267 of the TFEU may under no circumstances be subject to disciplinary measures. Moreover, constitutional obligations for lower courts to follow decisions of the national constitutional court are permissible under Union law (only) as long as the constitutional court’s independence from legislative and executive powers is guaranteed, pursuant to Article 2 and Article 19(1)(2) TEU.[249] Second extended its Article 19(1)(2) TEU related case-law to Article 325(1) TFEU. In this regard, the CJEU held that the term ‘financial interests’ of the Union is not limited to revenues made available to the Union budget, but also to expenditure covered by the Union budget. Furthermore, not only loss-provoking acts, but also attempted acts are covered by its scope.[250] In this respect, one of the Court’s main findings is not surprising, namely that EU law precludes national rules or practices – among others interplay of constitutional court decisions, back-referrals, extraordinary legal remedies and absolute limitation periods for prosecution – that create a risk of impunity for serious fraud or corruption offences to the detriment of the Union’s financial interests. Third – in the view of co-authors Filipek and Taborowski[251] – the CJEU stated the first time that EU’s requirements of judicial independence under the principle of effective judicial protection laid down in Article 19(1) of TEU, Article 47 of the Charter of Fundamental Rights of the European Union[252] (Charter) and Article 6 of the European Convention on Human Rights[253] (ECHR) are also applicable to constitutional courts of Member States.
Regarding the last issue the referring courts alleged that the RCC which is institutionally not part of the Romanian judicial system, has been politically staffed and it exceeded its competences and encroached on ordinary jurisdiction. In the CJEU’s view the fact that, under the Romanian Constitution, the Constitutional Court (Curtea Constituțională) is not part of the judicial system, the CJEU stated that EU law does not preclude the establishment of a constitutional court, which may issue decisions binding on the ordinary courts. The only condition in this regard is that the court complies with the requirements of independence referred as elaborated on in details in the judgment. The CJEU concluded that there is nothing in the domestic courts’ request for a preliminary ruling to suggest that the RCC does not satisfy those requirements. The CJEU reiterated its well-established case-law that the dominant role of the legislature and the executive in appointing judges does not give rise to a doubt that those judges are subordinated to the legislature or the executive provided that if, once appointed, they are free from influence or pressure when carrying out their role. Based on the non-renewable terms of the RCC judges and other guarantees, the CJEU concluded that it cannot establish that the RCC does not meet the requirements of independence and impartiality as established in the CJEU’s case-law.[254] The burden of proof was noticeably shifted towards the referring courts, which would have been obliged to make considerably more factual submissions in the CJEU’s view. As Weber argues the CJEU went easy on the RCC, because it is not in the ECJ’s interest to deny the independence of national constitutionals courts since it would reduce the already rare dialogue further.[255]
Two days after the Euro Box judgment was published, the RCC defended its case law in a press-release.[256] Basically, the RCC stated that the principle of primacy as read by the CJEU requires a constitutional amendment. Until then, the judgment cannot be implemented.[257]
The Romanian judiciary answered for the RCC’s practice – to quote the words of Dragoș Călin, Co-President of the Romanian Judges’ Forum[258] – with a wave of requests for preliminary rulings at the CJEU.[259] With the latest decisions of this ‘saga’[260] – namely recent judgments issued in February 2022[261] and in July 2023[262] and a reasoned opinion[263] – the CJEU reaffirmed its point of view cited above. In the reasoned opinion, which was initiated by the High Court of Cassation and Justice (Înalta Curte de Casaţie şi Justiţie) the CJEU affirmed its findings on the RCC, namely that the petitions did not contain any such information that would give rise to reasonable doubts as to the impartiality of the judges concerned and their neutrality with respect to the interests before.[264] As for the academic opinions Diana Nacea argues that the cumulative conditionality test practically has two main consequences: first, it implies that it remains at the RCC’s discretion whether it applies or not the constitutionality review of the CJEU’s decisions, or it formulates a preliminary questions. Second – and what is more important – the RCC allows itself to never give primacy to the EU legislation.[265] It is worth mentioning in this regard that the RCC – similarly to the BVerfG and contrary to the HCC – has initiated such procedure itself, when it deemed it necessary,[266] which can be interpreted as a step towards the dialogue of courts. However, as Weber argues the RCC by its 2018 and 2021 decisions referring to the country’s constitutional identity and to the cumulative conditionality test basically prohibited the lower courts initiating preliminary ruling procedure in order to examine the conformity of national norms with Union law in case the RCC already found them to be in conformity with the Constitution of Romania.[267] This is in clear contradiction with the well-established case-law of the CJEU, but what makes the situation even worse, in the view of the author of the current chapter the RCC’s reasoning lacks the depth that the BVerfG’s PSPP decisions features and therefore the author does not find the logical nexus between the first and the second parts of the RCC’s statement in this regard, namely: ‘Article 148 of the Constitution does not give EU law priority over the Romanian Constitution, so that a national court does not have the power to examine the conformity of a provision of national law, found to be constitutional in the light of Article 148 of the Constitution, with the provisions of EU law.’ It is also worth mentioning the thoughts of Koen Lenaerts – the president of the CJEU – who stated that in his view such tendencies on the long-run may lead not only to the differentiated interpretation of the EU law, but to disintegration as well. The former president of the RCC, Valer Dorneanu is of a different opinion, however: he stated that the role and purpose of the RCC to defended the principle of objective impartiality of the judge even against the High Court of Cassation and Justice if it introduced contra legem practice.[268] Dorneanu cited another instances in which the RCC defended the rule of law in his view and stated that neither of those decisions was aimed at creating impunity in respect of acts constituting serious offences of fraud affecting the financial interests of the Union or of corruption, nor the removal of criminal liability in respect of those offences. The CJEU’s strives to defend the EU’s financial interests at any cost even by sacrificing the axiological substance of a Constitution is hard to be accepted as this view is close to the attitude aut Caesar aut nihil.[269] – He added.
Two major changes occurred ever since, however: the Commission repealed the CVM – the root cause of the debates – and Dorneanu’s term ended. As for the first it is worth mentioning the argument of Bogdan Iancu that the CJEU in this debate built its primacy argument on the binding effect of the CVM Decision 2006/928/CE. However, the CVM is no longer in force. Regarding the second fact, the author of the current chapter believes that maybe the change in the RCC’s presidency will bring changes in the nexus of the two courts, since the new president of the RCC Marian Enache – incumbent since June 2022 – based on his past professional activities has some diplomatic experiences.[270] Maybe it is not accidental, that as the CJEU’s president, Koen Lenarts stated after meeting with the new president of the RCC that the Constitutional Court of Romania is a very important partner of the Court of Justice of the European Union.[271]
2.2.Similarities and differences
The three constitutional courts under the scrutiny of the current book chapter decided to set boundaries to the unlimited primacy of the EU law for three different causes in their case-law. In case of the BVferG, the author only examined the novel case-law in details, which is related to the fiscal sovereignty of the Federal Republic of Germany, however some statements from this earlier case-law worth highlighting: the BVerfG stated that the transfer of certain elements of sovereignty does not mean that a new statehood is created, in this regard the BVerfG and the RCC are of the same view. The BVferG in its 2020 decision in essence claimed that the ECB’s PSPP programme and the judgment of the CJEU[272] that approved it basically creates a situation in which the ECB may pursue its own fiscal policy agenda contrary to legal framework approved by the Member States in the Founding Treaties. In the BVerfG’s view such practice in the absence of the approval from the competent German organs infringes the constitutional identity of the GG inherent in its eternity clause – Article 79(3) in conjunction with Article 20(1)(2) of the GG – according to which elements of sovereignty may only be transferred to the international level by adhering the rules of the GG. The Member States shall remain the ‘Masters of the Treaties’. A tacit modification of the Founding Treaties is unacceptable. Having regarded the rich case-law of the BVerfG on the nexus between EU law and the German constitutional order, in this case too, the BVerfG provided a well-nuanced opinion. However, the BVerfG ‘surrendered’ in 2021 after the loud outcry and did not order the execution of the decision claiming that the proportionality test was done via the dialogue between the ECB and some German state organs and that the petition aimed at the execution of the judgment suffered from deficiencies, in the very same year, it rendered another decision in, which it set boundaries to the unconditional primacy of EU law. Last, but not least it is worth mentioning that while the BVerfG can be considered as the doyen of the constitutional courts in confronting with the CJEU, it also takes notice of other constitutional courts’ decisions and refers to them. However in its 2021 decision for some unknown reasons it omitted the reference to case-law of the RCC and the HCC, which in the recent times also delimited the limits of the unconditional prevalence of EU law.
The HCC avoided confrontation with the CJEU until 2016, thus never really addressed the issue of the limits of the primacy of EU law until then. In its 2016 decision it set barriers to the unlimited primacy of EU law due to the issue of mass illegal migration. The HCC in its 2016 decision vindicated three types of revisionary competences, namely reservation of fundamental rights, the sovereignty control and identity control. The latter two constitutes the so called ultra vires control. It is hard not the see the BVerfG’s influence in this regard. The HCC’s perceived role as the ultimate guardian of the Fundamental Law and the notion of maintained sovereignty also shows this influence. However, the concept of the achievement of the historic constitution – which some deem as the implicit eternity clause of the Hungarian constitutional order – is a unique concept. The HCC stated in its 2016 landmark decision that the transferring of third country nationals in the context of the European Union Law may infringe the constitutional identity of Hungary inherent in its historical constitution. The body interprets the concept of constitutional identity as Hungary’s self-identity and unfolds its content on a case by case basis with regard to the Fundamental Law and certain provisions with special regard to the National Avowal and the achievements of our historical constitution – as required by Article R(3) of the Fundamental Law. As for the constitutional identity of Hungary, the HCC stated in its 2016 decision that the constitutional self-identity of Hungary is a fundamental value and that it is not created by the Fundamental Law. The latter only acknowledges it. In its 2021 decision the HCC held that the right to determine its territorial unity, population, form of government and State structure is part of its constitutional identity. In the said decision, the majority based the fundamental right protection and placed the right for protection of human dignity into the centre: ‘If an alien population remained on the territory of Hungary without any democratic legitimation and in vast numbers due to the deficiency in the joint exercise of powers […] it would lead to a situation that might infringe the right of the Hungarian population to self-determination and self-identity, the derivative rights from human dignity.’ The majority decision was criticised in concurring and dissenting opinions. While drafters of the Fundamental Law, some judges of the HCC – former and current ones – and also certain scholars praise the concept of the achievements of historical constitution, it is probably the most debated element of its case-law at the same time. Even some judges of the HCC expressed critical views. The most frequent critique against this notion is the ‘black-box’ nature of the process through, which the HCC nominate certain elements of the historic constitution as achievements, while dispense with other ones. In the author’s point of view it also raises the question whether it could lead to the revitalisation of the notion of ‘invisible constitution’, a concept that was clearly despised by the drafters of the Fundamental Law and therefore rendered null and void in the text of the Fundamental Law. However in the author’s view one distinctive feature of the HCC’s practice worth highlighting: the HCC – unlike the BVerfG and the RCC – never deprived a CJEU judgment from its legal binding force within the national legal order. In the spirit of the mutual respect and cooperative constitutionalism, the HCC stated in its 2021 decision that the question which requires the interpretation of the Fundamental Law can be answered without making statements on the judgement of the CJEU presented in the petition.
The RCC – just like the PCC – confronted the CJEU in the issue of the judicial system with special regard to the judicial independence. Unlike the HCC, the RCC elaborated on the issue of the nexus between the primacy of EU law and the supremacy of the constitution within the Romanian legal system and held that the EU law has only infra-constitutional primacy that is to say the Constitution prevails. The RCC also stated that it is not permissible to amend the constitution in a tacit manner through international treaties. In these regards the RCC’s opinion is very similar to that of the BVerfG and – though not analysed in the current writing – the PCC. The RCC’s practice is similar to BVerfG and to the HCC regarding the effect of transferring sovereignty: while the German and Hungarian courts emphasized that the transfer of sovereignty does not create a new state, the Romanian court emphasized that the transfer of some elements of the sovereignty does not result in a situation in, which these parts of the sovereignty became a new sovereignty of their own. The recent heated ‘dialogue’ of the RCC and the CJEU started in 2018, when the RCC applying its commutative conditionality test – elaborated on in a 2011 decision first – deprived the recommendations of the European Commission issued under the CVM from their legal effect in Romania and stated that judges of the ordinary courts are not entitled to initiate the so called preliminary ruling procedure related to laws that RCC declared as constitutional. In its reply the CJEU stated that the recommendations of the Commission are binding and reiterating its rich case-law in this regard stated that a national rule, which prohibits the national judge from initiating such procedure is contrary to EU law. The RCC and CJEU in their mutual replies both presented their monologues, why their point of view is correct and why the other’s opinion is faulty proving Hilpold’s statements on border organs operating on the line between law and politics and advocating mutually not reconcilable ‘basic norms’. The RCC declared that certain elements of the CJEU’s judgment cannot have a binding legal force within the Romanian legal order. It is worth reiterating that although the BVerfG declared the same in the PSPP judgment, the depth of the BVerfG’s reasoning is much more nuanced. It is worth mentioning that in case of RCC the dispute maybe come to a halt since one the one hand the root cause of the polemics – the CVM – was repealed and on the other hand the new president of the RCC seemingly found the tone with the CJEU’s president better.
Concluding remarks
The author of the current chapter provided an analysis of the emergence of constitutional identity in the case-law of constitutional courts and in the scientific literature. One may conclude as a common point derived from the above two sources that the issue of constitutional identity became mainstream because the European integration reached the critical mass in the terms of sovereignty transfer be it done either by the Member States’ competent bodies in an intentional manner and according to the constitutional rules or tacitly by the practice of the EU institutions and bodies and approved by the CJEU’s practice. As the current chapter proves the latter triggers the actions of the national constitutional court’s to protect the core values of their national constitutional order. In the author’s view however it is important how they do it: by a decision which is based on a well-nuanced reasoning and which tries to avoid the direct confrontation with the CJEU – either by trying to resolve the conflict within the preliminary ruling procedure or by witty framing the constitutionality test thus avoiding to make statements on EU law – or by a decision in which national constitutional courts place themselves in the role of the CJEU, interpreting and deciding on the validity on the EU law thus triggering the CJEU’s actions to protect its own ‘constitutional identity’, the primacy of EU law and its role as the sole interpreter of EU law. As a conclusion one may conclude that in this game of courts only the mutually respectful dialogue could end to the debates.
|
|
BVerfG |
HCC |
RCC |
|
1. What triggered the protection of the constitutional identity by the Constitutional Court? |
In the recent case-law, it was the protection of the country’s fiscal sovereignty, which in the BVerfG’s assessment was endangered by the ECB’s public purchase programme, since the ECB pursued its own economic policy agenda. |
The mass influx of migrants without the authorisation of the Hungarian state authorities, which in the HCC assessment would endanger the human dignity of Hungarian citizens. |
The European Commission’s recommendations on the ongoing judicial reforms and the CJEU’s decisions on the independence of the judiciary, which in the RCC’s view would endanger the supremacy of the Romanian Constitution. |
|
2. What is the definition and the key core of the constitutional identity according to the Constitutional Court |
The fundamental structure and identity of the Basic Law – without providing an exhaustive list –: democracy, the division of competences between the federal state and the ‘Länder’. |
The constitutional self-identity of Hungary is a fundamental value and it is not created by the Fundamental Law. The latter only acknowledges it. (Decision No. 22/2016) The territorial unity, population, form of government and State structure is part of its constitutional identity (Decision No. 32/2021) |
The supremacy of the constitution, national, independent, unitary and indivisible character of the Romanian State, the republican form of government, territorial integrity, independence of justice, political pluralism and official language, fundamental rights and freedoms. (Decision No. 390/2021) |
|
3. Which is the legal base of the constitutional identity in the Constitution according the Constitutional Court. |
Article 23(1) second sentence in conjunction with Article 20(1) (2) and Article 79(3) of the GG. The latter is the eternity clause (Ewigkeitsklausel). |
The whole Fundamental Law and its certain provisions thereof, in accordance with the: National Avowal and the achievements the historical constitution Article R) (3) of the Fundamental Law.
|
Article 11(3), read in conjunction with Article 152 of the Constitution. |
|
4. Is it the Constitution or the Country that owns the constitutional identity? |
The Basic Law. |
The country. |
The country. |
|
5. Is there a reference to the constitutional identity in the Constitution? |
No. |
Yes, in Article R(4) and Article XVI(1). |
No. |
|
6. Do the Constitutional Court regards the preliminary ruling procedure as a method of judicial dialogue? |
Yes, it expressly undertook the obligation to use this legal instrument in the Honeywell-decision. |
No. Based on its practice the HCC regards the preliminary ruling procedure as a task of the ‘ordinary’ courts. |
Yes, it applied this legal instrument. Furthermore the RCC upholds the right to decide whether to refer a case to the CJEU or not and exclude the domestic court’s right to make such reference, one the RCC held that a domestic legal norm is in conformity with the constitution. |
|
7. Did the constitutional court ever rendered a CJEU judgment inapplicable in the country? |
Yes. In the PSPP decision. |
No. The HCC wisely avoided such a scenario by examining the questions in abstracto. |
Yes. In decisions No. 104/2018 and No. 390/2021. |
|
8. What was the most often criticised part of the novel case-law? |
In its PSPP decision, the BVerfG failed to take into consideration that the ECB cannot arrange price stability and other objectives in an arbitrary order, thus the proportionality test required by the BVerfG is impossible to be carried out. |
The ‘black-box’ nature of the procedure through which the HCC identifies the achievements of the historical constitution and that certain elements of the HCC practice very similar the already rejected ‘invisible constitution’ notion. Furthermore the majority’s decision in the 2021 judgment to make a connection between human dignity and the cultural space also attracted criticism. |
The cumulative conditionality test, which through the RCC reserves the right to never give full primacy to EU law and practice to withhold judges of the lower courts from initiating a preliminary ruling procedure. |
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[1] F. Weber, The Identity of Union Law in Primacy: Piercing Through Euro Box Promotion and Others, “European Papers” 2022, Vol. 7, No 2, pp. 749–771 DOI 10.15166/2499–8249/597
[2] Treaty establishing a Constitution for Europe Official Journal of the European Union, 2004/C–310/1 (16 December 2004)
[3] Ibid, Article I–6: ‘The Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States.’
[4] Weber op. cit., pp. 760–762
[5] Vienna Convention on the Law of Treaties 1969 (United Nations, Treaty Series , vol. 1155, p. 331.), Article 31(2)(a)
[6] Judge of the HCC (2010–2019)
[7] I. Stumpf, Alkotmányos identitás, szuverenitás, európai jog. “Jog–Állam–Politika” 2020, Vol. XII, p. 6.
[8] J. Weiler, U. Haltern, F. Mayer, European Democracy and Its Critique, “West European Politics”, 1995, Vol. 18, pp. 4–39
[9] Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007 (OJ C 306, 17.12.2007, p. 1–271)
[10] As an example, the Scandinavian countries and the Netherlands do not have a ‘Kelsen style’ constitutional court. Instead, their ordinary courts are responsible for constitutional review. – For a detailed description, please see: A. Bårdsen, The Nordic Supreme Courts as Constitutional Courts; main features as seen from the Norwegian perspective. “Joint seminar between the Constitutional Court of Austria and the Supreme Court of Norway Vienna the 29–30th of October 2015.” https://www.domstol.no/globalassets/upload/hret/artikler–og–foredrag/nordic–constitutional–courts–––vienna–29102015.pdf [accessed: 7 December 2023.]
[11] N. Chronowski, Az Európai Unió jogának viszonya a magyar joggal [in:] Internetes Jogtudományi Enciklopédia edited by A. Jakab et al., IJOTEN, 2019, paras. 1–2 http://ijoten.hu/szocikk/az–europai–unio–joganak–viszonya–amagyar–joggal [accessed: 8 December 2023]
[12] See in this regard Decision No. 148/2003 of the RCC in which the Constitutional Court secured its role ‘as a political–jurisdictional (sic!) authority, prone to a cyclical renewal, is a guarantee of its political neutrality as a guarantor of the supremacy of the Constitution in the normative legal system’. RCC, Decision, No. 148 of 16 April 2003, para. II/D; See also See also the thought of Valer Dorneanu – the former president of the RCC –, who recently stated in an interview that: ‘I would point out that the constitutional courts must not be concerned about political decisions relating to the departure from the EU by a member state, but rather about achieving integration within the conditions and limits of the Constitution.’ – L. Sándor, Constitutional Courts Are the Keystones of National Ethos, “Hungarian Conservative”, 10.03.2022 https://www.hungarianconservative.com/articles/philosophy/constitutional–courts–are–the–keystones–of–national–ethos/ [Accessed 7 December 2023]
[13] P. Hilpold, So Long Solange? The PSPP Judgment of the German Constitutional Court and the Conflict between the German and the European ‘Popular Spirit’. “Cambridge Yearbook of European Legal Studies”, 2021, Vol. 23, p. 190
[14] Weber op.cit., pp. 70–71
[15] T. Konstadinides, Constitutional Identity as a Shield and as a Sword: The European Legal Order within the Framework of National Constitutional Settlement. “Cambridge Yearbook of European Legal Studies”, 2011, Vol. 13, pp. 195–218 https://doi.org/10.5235/152888712801753031
[16] Please see (among others): L. Trócsányi, M. Sulyok, Felvetések és feltevések hatáskörről, szerepfelfogásról és egyensúlyról az Európai Unió „intézményi háromszöge” kapcsán. [in:] Tisztelgés a 70 éves Dezső Márta előtt, edited by: E. Bodnár, Z. Pozsár–Szentmiklósy, B. Somody, Gondolat, 2020, pp. 226–235; See furthermore: V. Schmidt, Reinterpreting the rules ‘by stealth’ in times of crisis: a discursive institutionalist analysis of the European Central Bank and the European Commission. “West European Politics”, 2016, Vol. 39, Issue 5, pp.1–21
[17] Although Trócsányi acknowledges that the declaration of primacy was necessary in order to provide the functioning of community law as a sui generis legal system, since by the end of the day it is the token of the execution of common policies and decisions, he argues that the constitution – at least its core values – cannot be equated with lower norms of the legal system, that is to say, the CJEU shall not have unlimited jurisdiction above the constitution. – See: L. Trócsányi, Alkotmányos identitás és európai integráció [in:] Szegedi Egyetemi Tudástár 7., edited by: Pál, J., Vajda, Z. (eds.), Szeged, Szegedi Egyetemi Kiadó, 2014, p. 71
[18] F. Gárdos–Orosz, The reference to constitutional traditions in populist constitutionalism – The case of Hungary. “Hungarian Journal of Legal Studies”, 2020, Vol. 61 Issue 1, p. 46
[19] A. Bobić, Constructive Versus Destructive Conflict: Taking Stock of the Recent Constitutional Jurisprudence in the EU. “Cambridge Yearbook of European Legal Studies”, 2020, Vol. 22, pp. 60–84
[20] Bobić op.cit., pp. 60, 73–83
[21] CJEU, C‑64/16, Associação Sindical dos Juízes Portugueses, Judgment, 27 February 2018
[22] As Bobić argues, the CJEU in need of establishing a legal precedent for its jurisdiction concerning the rule of law issues raised related to Poland and Hungary found that Article 19(1) TEU, which grants ‘remedies sufficient to ensure effective legal protection in the fields covered by Union law’ and thus judicial independence is the cornerstone of the rule of law, expanding its application to all Member State action, regardless of the applicability of EU law in a specific case. Contrary to this the Polish case – in her view – not only shows a disagreement on the interpretation of basic values of Article 2 TEU, but a complete disregard for their existence, and violate the normative ideal of the European integration project itself. – See: Bobić op.cit., pp. 74
[23] Dutch court submitted a preliminary reference to the Court of Justice, asking whether it is still possible to cooperate with Polish institutions within the European Arrest Warrant system, given that they may no longer be considered independent courts within the meaning of mutual trust in the Area of Freedom, Security and Justice. – C‑562/21 PPU and C‑563/21 PPU, Judgment, 22 February 2022
[24] S. van Dorpe, EU court president warns European project is in danger. “Politico” (13 December 2021), online available: https://www.politico.eu/article/eu–court–president–koen–lenaerts–warn–european–project–danger/ [accessed: 8 December 2023]
[25] Judge of the HCC (2014–)
[26] Sándor op.cit.
[27] Sándor op.cit.
[28] Sándor op.cit.
[29] Consolidated version of the Treaty on European Union (OJ C 326, 26.10.2012, p. 13–390)
[30] Treaty on European Union (OJ C 191, 29.7.1992, p. 1–112)
[31] Ibid, Article F(1): The Union shall respect; the national identities of its Member States, whose systems of government are founded on the principles of democracy.
[32] Stumpf op.cit., p. 6
[33] See T. Drinóczi, A tagállami identitás védelme [in:] Internetes Jogtudományi Enciklopédia edited by A. Jakab et al. IJOTEN, 2018 (hereafter: Drinóczi 2018), paras. 5–10 https://ijoten.hu/uploads/a–tagallami–identitas–vedelme.pdf [accessed: 8 December 2023]
[34] Judge of the HCC (2007 – 2010)
[35] L. Trócsányi, Az alkotmányozás dilemmái, “HVG Orac”, Budapest, 2014, p. 72
[36] A. Horváth, et al., Alkotmányos identitás: pajzs, kard vagy párbeszéd? Széljegyzetek egy fogalom történetéhez I. “Publicationes Universitatis Miskolcinensis, Sectio Juridica et Politica”, 2020, Vol. 38 Issue 2., pp. 95–96
[37] P.P. Kruzslicz, A nemzeti alkotmányosság tagállami alapjai: a nemzeti szuverenitás és a nemzeti alkotmányos önazonosság, különös tekintettel a francia jogelméletre és a magyar joggyakorlatra. “PhD Dissertation, 2019”, p. 220
[38] The Fundamental Law of Hungary (25 April 2011) – The official English translation is available at: https://www.parlament.hu/documents/125505/138409/Fundamental+law/73811993–c377–428d–9808–ee03d6fb8178 [accessed: 8 December 2023]
[39] Drinóczi 2018 op.cit., para. 5
[40] FCC, Decision, No. 2017–749 DC of 31 July 2017; For details see: M.C. Cadilhac, C. Rapoport, In Between Seats… The Conseil constitutionnel and the CETA, “European Papers” 2018 Vol. 3, No 2, pp. 811–832 DOI: 10.15166/2499–8249/236
[41] Drinóczi 2018 op.cit, paras. 20,22, 27
[42] The current approach of the BVerfG, the so called constitutional identity (‘Verfassungsidentität’) test was first elaborated on in the Lisbon–decision of the BVerfG, which marked the starting of the new era. While in its earlier case–law the BVerfG clearly displayed a pro–integration attitude, in the said decision the BVerfG applied the constitutional identity as a shield against deepening of the integration contrary to the member state’s will for the first time. Contrary to its Hungarian counter–part, the BVerfG’s is of the view that it is the GG – not the country – that has some constitutional identity. This constitutional identity springs from the eternity clause of the GG, namely Article 79 (3), which refers back to Articles 1 and 20 of the GG. The former grants fundamental rights, while the latter states that Germany is a federal state and a democracy based on popular sovereignty. Based on the BVerfG’s well–established case–law, the Federal Republic of Germany shall not transfer any competence to a supranational level if such transfer would infringe those values protected by the eternity clause. – See: BVerfG, 2 BvE 2/08, Decision of 30 June 2009; T. Drinóczi, A 22/2016 (XII. 5.) AB határozat: mit (nem) tartalmaz, és mi következik belőle Az identitásvizsgálat és az ultra vires közös hatáskörgyakorlás összehasonlító elemzésben. “MTA Law Working Papers 2017/1” (hereafter: Drinóczi 2017), pp. 2–4
[43] Editorial Comments, Not mastering the Treaties: The German Federal Constitutional Court’s PSPP judgment. “Common Market Law Review”, 2020, Vol. 57 Issue 4, pp. 965–978
[44] HCC Decision No. 22/2016 AB, para. 86
[45] Judge of the HCC (2013-)
[46] HCC Decision No. 22 of 2016 (XII.5.), para. 86
[47] Z. Szente, Constitutional identity as a normative constitutional concept, “Hungarian Journal of Legal Studies” 2022, Vol. 63, No. 1, pp. 3–20 DOI: 10.1556/2052.2022.00390
[48] BVerfG, 2 BvL 29/63 EWG–Recht, Decision of 5 July 1967; BVerfG, 1 BvR 248/63 EWG–Verordnungen, Decision of 18 October 1967
[49] Weber, p. 762
[50] BVerfG, BvR 2134/92, 2 BvR 2159/92, Decision of 12 October 1993
[51] Ibid, para. I/2/b
[52] Ibid, I/3
[53] BVerfG, 2 BvR 1107, 1124/77 and 195/79, Decision of 23 Juni 1981
[54] BVerfG, 2 BvE 2/08, Decision, 30 June 2009
[55] Ibid, para. 143
[56] Ibid, paras. 331, 342–343
[57] H.G. Dederer, Die Grenzen des Vorrangs des Unionsrechts – Zur Vereinheitlichung von Grundrechts–, Ultra–vires– und Identitätskontrolle, “JuristenZeitung”, 2014, Vol. 69, pp. 313–322
[58] BVerfG, 2 BvR 2661/06, Decision of 6 July 2010, para. 60
[59] CJEU, C–493/17, Heinrich Weiss and Others, Judgment, 11 December 2018
[60] BVerfG, 2 BvR 1390/12, Decision of 12 September 2012.
[61] Austrian Constitutional Court (Verfassungsgerichtshof, VfGH) Decision No. SV 2/12–18 of 16 March 2013 (ESM Treaty); VfGH Decision No SV1/2013–15 (3 October 2013) (Fiscal Compact); FCC, Decision No. 2012–653 DC Judgement, 9 August 2012 (Fiscal Compact)
[62] CJEU, C–270/12, United Kingdom v. Parliament and Council, Judgment, 22 January 2014 (ESMA); CJEU, C–62/14, Gauweiler and Others, Judgment, 16 June 2015 (OMT); CJEU, C‑370/12, Thomas Pringle vs. Government of Ireland and Others, Judgment of the Court, 27 November 2012 (ESM)
[63] Z. Angyal, Jogvita az európai értékpapír–piaci hatóság rendkívüli körülményekkel kapcsolatos beavatkozási hatásköréről’, “Publicationes Universitatis Miskolcinensis. Sectio Juridica et Politica,” 2015, Tomus XXXIII, pp. 129–143
[64] M. Dawson, A. Bobic, A. Quantitative Easing at the Court of Justice Doing Whatever It Takes to Save the Euro: Weiss and Others, “Common Market Law Review”, 2019, Vol. 46, pp. 1005–1040
[65] Y. Listokin, Law and Macroeconomics. Legal Remedies to Recessions. Harvard University Press, 2019 SBN 9780674976054, p. 280
[66] BVerfG, 2 BvR 2728, Decision of 16 February 2016 (OMT), para. 149.
[67] BVerfG, 2 BvR 1685/14, 2 BvR 2631/14 Decision of 30 July 2019, paras. 132, 279; See furthermore: A. Horváth et al. op.cit, pp. 116–137
[68] Former Judge and Advocate General of the Court of Justice of the European Union, former President of the General Court.
[69] J.L. da Cruz Vilaça, The judgment of the German Federal Constitutional Court and the Court of Justice of the European Union: judicial cooperation or dialogue of the deaf? “Cruz Vilaça Advogados” 5 August 2020) https://ceridap.eu/pdf/estratti/Estratto–10.13130_2723–9195_2020–3–1.pdf [accessed: 29 September 2023]; K. Lenaerts, Constitutional Relationships between Legal Orders and Courts within the European Union, “FIDE 2021 – XXIX FIDE CONGRESS”, The Hague, 3 – 6 November 2021. p. 11 https://forumfws.eu/fide–opening–ceremony–koen–lenaerts–04112021–1–.pdf (accessed 9 October 2023)
[70] BVerfG, 2 BvR 859/15, Decision of 5 May 2020, (PSPP)
[71] Decision (EU) 2015/774 of the European Central Bank of 4 March 2015 on a secondary markets public sector asset purchase programme (ECB/2015/10) (OJ L 121, 14.5.2015, p. 20–24) – No longer in force
[72] P. Metzinger, In the Shadow of Legal Imperialism: The Supremacy of EU Law Over the Member State [in:] The Policies of the European Union from a Central European Perspective. Legal Studies on Central Europe edited by: A. Osztovits, J. Bóka, Central European Academic Publishing, Miskolc–Budapest, pp. 13–54 ISBN 9786156474063; 9786156474070
[73] Gy. Marinkás, Dealing with the COVID–19 Pandemic on the EU Level: Introducing the “Web of Competencies” Theory’ [in:] Emergency Powers in Central and Eastern Europe: From Martial Law to COVID–19 edited by Z. Nagy, A. Horváth, Ferenc Mádl Institute of Comparative Law – Central European Academic Publishing, Budapest, 2022 pp. 71–95
[74] BVerfG, 2 BvR 859/15 (PSPP), paras. 111, 157, 234
[75] BVerfG, 2 BvR 859/15 (PSPP), paras. 135, 142
[76] BVerfG, 2 BvR 859/15 (PSPP), para. 163
[77] ECB Press Release (5 May 2020): ECB takes note of German Federal Constitutional Court ruling and remains fully committed to its mandate. https://www.ecb.europa.eu/press/pr/date/2020/html/ecb.pr200505~00a09107a9.en.html [accessed: 29 September 2023]
[78] CJEU Press Release No 58/20 (8 May 2020): Press release following the judgment of the German Constitutional Court of 5 May 2020. https://curia.europa.eu/jcms/upload/docs/application/pdf/2020–05/cp200058en.pdf [accessed: 29 September 2023]
[79] Statement by President Von Der Leyen, Brussels, 10 May 2020. https://ec.europa.eu/commission/presscorner/detail/en/statement_20_846 [accessed: 29 September 2023]
[80] European Commission (2021) Infringement decisions, Brussels, 9 June 2021 (INF/21/2743) https://ec.europa.eu/commission/presscorner/detail/en/inf_21_2743 [accessed 9 October 2023]
[80] F. Fabbrini, Saving the BVerfG from itself: the Commission infringement proceedings against Germany and its significance’ “DCU Brexit Institute” (10 June 2021) https://bridgenetwork.eu/2021/06/10/saving–the–bverfg–from–itself–the–commission–infringement–proceedings–against–germany–and–its–significance/ [accessed: 29 September 2023]
[81] B. Riedl, Ultra vires review as a necessary building block of European democracy “VerfBlog” 18/6/2021. DOI: 10.17176/20210618-193307-0
[82] CJEU, C–416/17, European Commission v. French Republic, Judgment, 4 October 2018
[83] P. Metzinger, A tagállamok kötelezettségei az uniós jog érvényesülése érdekében [in:] EU–jog. 3. kiadás, edited by: A. Osztovits, HVG–Orac, Budapest, p. 628; See also: the CJEU judgments referred therein.
[84] M. Everson, C. Joerges, Taking the Law Seriously? Observations on the PSPP Judgement and the Quest for Infringement Proceedings’, “VerfBlog” 8/7/2021 DOI: 10.17176/20210709–015915–0
[85] Fabbrini op.cit.
[86] See: Deutscher Bundestag, Drucksache 19/20621 (19. Wahlperiode). Antrag der Fraktionen CDU/CSU, SPD, FDP und BÜNDNIS 90/DIE GRÜNEN Urteil des Bundesverfassungsgerichts zum Anleihekaufprogramm PSPP der Europäischen Zentralbank (01.07.2020); See furthermore: Bundestag: EZB hat Karlsruher Vorgaben zu Anleihekäufen erfüllt. https://www.bundestag.de/dokumente/textarchiv/2020/kw27–de–anleihekaeufe–703660 [accessed: 29 September 2023]
[87] BVerfG, 2 BvR 1651/15 –, Rn. 1–111, Order of 29. April 2021, paras. 82–88
[88] Bundesverfassungsgerichtsgesetz in der Fassung der Bekanntmachung vom 11. August 1993 (BGBl. I S. 1473), das zuletzt durch Artikel 4 des Gesetzes vom 20. November 2019 (BGBl. I S. 1724) geändert worden ist
[89] J. Weiler, The ‘Lisbon Urteil’ and the Fast Food Culture. Editorial, “EJIL:Blog” 2009, Vol. 20, Issue 3 http://www.ejil.org/pdfs/20/3/1857.pdf [accessed: 29 September 2023]
[90] European Commission (2021) Infringement decisions, Brussels, 2 December 2021 (INF/21/6201). https://ec.europa.eu/commission/presscorner/detail/en/inf_21_6201 [accessed 9 October 2023]
[91] BVerfG, 2 BvR 2216/20, Decision of 23 June 2021
[92] Ibid, paras. 73–74
[93] Article 127(1) of the TFEU: ‘Without prejudice to the objective of price stability, the ESCB shall support the general economic policies in the Union with a view to contributing to the achievement of the objectives of the Union as laid down in Article 3 of the Treaty on European Union.’
[94] G. Claeys, The European Central Bank in the COVID–19 crisis: Whatever it takes, within its mandate, “Policy Department for Economic, Scientific and Quality of Life Policies Directorate–General for Internal Policies. PE 648.811”, May 2020, pp. 7–9
https://www.europarl.europa.eu/cmsdata/207681/BRUEGEL_FINAL%20online.pdf [accessed: 29 September 2023]
[95] D. Quinn, The sovereign lender of last resort role of the ECB: rules, choice, and time, “German Law Journal”, 2023, Vol. 24, No 5, pp. 759–795, p. 764
[96] For an analysis of the early case law, please see: A. Sajó, Learning Cooperative Constitutionalism the Hard Way: the Hungarian Constitutional Court Shying Away from EU Supremacy. “Zeitschrift für Staats– und Europawissenschaften”, 2004, Vol. 2 Issue 3 DOI:10.1515/zfse.2004.003, pp. 171–190
[97] As Chronowski writes between 2004 (accession to the EU) and 2012 (the entry into force of the Fundamental Law) the HCC mostly stated that it lacks the competence to judge the question. – Chronowski op.cit., para. 8
[98] HCC, Decision No. 30/1998 (VI.25.)
[99] Ineffective since 31 December 2011
[100] HCC Decision No. 30/1998 para. V/2 (The authors own translation and summary of the content)
[101] Ibid, para. VII/1
[102] HCC, Decision, No. 1053/E/2005 (2006.06.16), para. III/2
[103] HCC, Decision, No. 72/2006. (XII. 15.), para. 11
[104] HCC, Decision, No. 32/2008. (III. 12.)
[105] Chronowski, para. 20
[106] HCC Decision, No. 143/2010 (VII.14.)
[107] HCC Decision, No. 143/2010, para. III/1
[108] HCC Decision No. 143/2010, para. IV/2
[109] HCC, Decision No. 30/1998. (VI. 25.)
[110] Among others the K 32/09 ‘Lisbon’ case of the Polish Constitutional Court, which was still pending, when the HCC published its own Lisbon–decision
[111] HCC, Decision No. 30/1998, para. 2.5
[112]Judge of the HCC (2005–2014)
[113] The authors own translation and summary of the content.
[114] HCC Decision No. 143/2010, concurring opinion of László Trócsányi
[115] HCC Decision No. 22/2016; see also: L. Blutman, Szürkületi zóna: az Alaptörvény és az uniós jog viszonya. “Közjogi Szemle”, 2017, Vol. 1, pp. 1–14
[116] Trócsányi 2014, pp. 35–39; See also: J. Szájer, Szabad Magyarország, szabad Európa újabb tizenöt év. Beszédek, írások, dokumentumok 1998–2013. Budapest, 2014., pp. 736–737, 774–775
[117] Fundamntal Law of Hungary 25 April 2011 (Effective from: 1 January 2012). – Official English translation available at: https://www.parlament.hu/documents/125505/138409/Fundamental+law/73811993–c377–428d–9808–ee03d6fb8178 [accessed: 8 December 2023]
[118] Trócsányi 2014, pp. 32–33
[119] For a critical approach of this, please read: G. Halmai, A szakmai vita és érvelés esélye fennmaradt. Bragyova András alkotmánybíróval Halmai Gábor beszélget, “Fundamentum”, 2014. 1–2. sz., p. 70
[120] A. Horváth et al, op.cit. p. 133
[121] I. Kukorelli, Az Alaptörvény és az Európai Unió [in:] Ünnepi tanulmányok Rácz Attila 75. születésnapja tiszteletére edited by: Á. Cserny, Nemzeti Közszolgálati és Tankönyvkiadó, Budapest, 2013 Ünnepi tanulmányok Rácz Attila 75. születésnapja tiszteletére. Nemzeti Közszolgálati és Tankönyvkiadó, Budapest, 2013, pp. 7-15
[122] Szájer op.cit., pp. 842–843
[123] These achievements and the HCC decisions are the following: judicial independence (Decision No. 33/2012. (VII. 17.), Decision No. 25/2013. (X. 4.), Decision 2/2016. (II. 8.)); the distinct administrative court system (Decision No. 17/2015. (VI. 5.) AB hat.); Disciplinary liability of judges (Decision No. 21/2014. (VII. 15.) AB hat); freedom of press (Decision No. 28/2014. (IX. 29.) AB hat); the independence of the churches and the freedom of religion (Decision No. 6/2013. (III. 1.) AB hat), and the competence of municipalities to issue decrees (Decision No.29/2015. (X. 2.) AB hat)
[124] Article R(3) of the Fundamental Law: The provisions of the Fundamental Law shall be interpreted in accordance with their purposes, the National Avowal contained therein and the achievements of our historic constitution.
[125] Zs. Szakály, A történeti alkotmány és az alkotmányos identitás az Alaptörvény tükrében, “Pro Publico Bono – Magyar Közigazgatás” 2015, Vol. 3., No. 2, p. 25
[126] It is worth mentioning that in since the 7th amendment (23 July 2018) and the 9th amendment (15 December 2020) Article R(4) and Article XVI(1) of the Fundamental Law contain expressis verbis reference to constitutional identity (alkotmányos önazonosság).
[127] The CFR also asked for the interpretation of Article XIV(1), however the HCC decided to adjudicate that question in a separate proceeding, since the Court it ‘held appropriate ’. – However, the Court failed to elaborate on, why was it appropriate – See: Decision 22/2016, paras. 5, 29
[128] Az Alapvető jogok biztosának hivatala (2016): Beszámoló az alapvető jogok biztosának és helyetteseinek tevékenységéről: 2015 (B/9278), pp. 177–178
[129] Drinóczi argues that the HCC actually carried out an ‘informal amendment’ of the Fundamental Law, based on an interpretation that lacks any textual evidence, that is to say it is ultra vires. Then this amendment becomes part of the ‘constitution’ via the case–law of the HCC, which constantly refers back to decision No. 22/2016. – Drinóczi 2018 op.cit, para. 27
[130] HCC Decision No. 22/2016, paras. 49, 55
[131] As Drinóczi argues it is hard not to take into consideration two facts. The first is that the court started to adjudicate the motion of the CFR – submitted in 2015 – when the bill on the Seventh Amendment of the Fundamental Law – submitted on 10 October 2016 – failed at the Parliamentary voting. The second fact is that certain statements in Decision No. 22/2016 display clear similarity with some statements of the bill. Regarding Drinóczi’s first remarks it is worth mentioning that Article 38 of the Act CLI of 2011 on the Constitutional Court does not stipulate any time–limit for the adjudication of the submissions. It is worth mentioning in this regard the thoughts of constitutional judge Béla Pokol, who in his 2018 article argues that the lack of time–limit grants a wide–margin of appreciation for the HCC, namely that Court can sort cases in an arbitrary manner, based on unclear considerations. – See: Drinóczi 2017 op.cit., pp. 6–7; See furthermore: B. Pokol, Alkotmánybírósági törvényünk ellentmondásai és feszültségei (eszményiek és praktikusak). “Jogelméleti Szemle”, 2018/1., pp. 170–172.; Bakó shares Drinóczi’s view. See: B. Bakó, Bárcsak a magyar AB lenne ilyen „szűklátókörű”! A Bundesverfassungsgericht EU elleni „lázadása” és az alkotmányos párbeszéd EU elleni „lázadása” és az alkotmányos párbeszéd. “ÁJT 2021/2”, pp. 4., 6.,13. https://doi.org/10.51783/ajt.2021.2.01
[132] Five constitutional judges, namely – Egon Dienes–Oehm, Imre Juhász, Béla Pokol, István Stumpf and András Zs. Varga – attached concurring opinions and one constitutional judge – László Salamon – attached a dissenting opinion.
[133] As constitutional judge Béla Pokol – judge of the HCC 2011–2023 – argued in his concurring opinion: ‘With the current decision, the HCC joins those constitutional courts, which placed sovereignty control into the centre of constitutional identity. Failing to do so that until now, was an old debt of the HCC.’
[134] See: A. Zs. Varga, Végleges szuverenitás, vagy korlátozott hatáskör–transzfer? “Fontes Iuris”, 2016/1., pp. 8–12
[135] Article E(2) of the Fundamental Law: ‘With a view to participating in the European Union as a Member State and on the basis of an international treaty, Hungary may, to the extent necessary to exercise the rights and fulfil the obligations deriving from the Founding Treaties, exercise some of its competences arising from the Fundamental Law jointly with other Member States, through the institutions of the European Union. Exercise of competences under this paragraph shall comply 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.’
[136] HCC Decision No. 22/2016, para. 60
[137] Judge of the HCC (2014–2020)
[138] HCC Decision No. 22/2016, para. 112.
[139] HCC Decision No. 22/2016, para. 64.
[140] See: Drinóczi 2018, op.cit., paras. 20, 22
[141] For details see Sajó op.cit.
[142] Judge of the HCC (2013-)
[143] HCC Decision No. 22/2016, paras. 116–121
[144] HCC Decision No. 22/2016, para. 56
[145] HCC Decision No. 22/2016, paras. 34–44
[146] Available in Hungarian language on the website of the HCC: http://public.mkab.hu/dev/dontesek.nsf/0/1dad915853cbc33ac1258709005bb1a1/$FILE/X_477_0_2021_ind%C3%ADtv%C3%A1ny_anonim.pdf [accessed: 9 December 2023]
[147] C–808/18, Commission v. Hungary, Judgment 17 December 2020
[148] HCC Decision No. 32/2021, para. 21
[149] HCC Decision No. 37/2011 (V. 10.)
[150] Ibid, para. 3.1
[151] HCC Decision No. 32/2021, paras. 33–36
[152] HCC Decision No. 32/2021, para. 33
[153] HCC Decision No. 32/2021, paras. 35–36
[154] HCC Decision No. 32/2021, paras. 46–48
[155] HCC Decision No. 32/2021, para. 51
[156] HCC Decision No. 32/2021, para. 53
[157] HCC Decision No. 32/2021, para. 63
[158] HCC Decision No. 22/2016, para. 60
[159] HCC Decision No. 32/2021, para. 79
[160] HCC Decision No. 32/2021, para. 80
[161] HCC Decision No. 32/2021, para. 82
[162] HCC Decision No. 32/2021, para. 85
[163] HCC Decision No. 32/2021, para. 87
[164] HCC Decision No. 32/2021, para. 88
[165] Namely paragraphs 64, 65 and 67
[166] Clarifying insertion from the author.
[167] HCC Decision No. 32/2021, para. 110
[168] N. Tribl, Alkotmányból tükröződő önmeghatározás? Szemelvények a nemzeti alkotmánybíróságok formálódó joggyakorlatából [in:] Nemzet, közösség, kisebbség, identitás – az alkotmánybíróságok védelmező szerepe / Nation, community, minority, identity – the protective role of constitutional courts, edited by P. Teofilović, Szegedi Tudományegyetem Állam– és Jogtudományi Kar, 2020, p. 91
[169] A. Zs. Varga, Történeti Alkotmányunk Vívmányai az Alaptörvény Kógens Rendelkezésében. “Iustum Aequum Salutare”, 2016, Vol. XII Issue 4, pp. 85, 88
[170] HCC, Decision No. 22/2019 (VII. 5.)
[171] Ibid, para. 167. (Own translation)
[172] HCC, 32/2021, para. 159 (Own translation)
[173] Á. Rixer, A vívmány–teszt, Dialóg Campus Kiadó, 2018, p. 158
[174] Gárdos–Orosz op.cit, p. 34.
[175] Z. Szente, A 2011. évi Alaptörvény és a történeti alkotmány összekapcsolásának mítosza, “KJSZ”, 2019/1., p. 5.
[176] HCC, Decision No. 22/2016, para. 86.
[177] ‘The protection of constitutional self–identity may concern [the rights of private persons.] ’– HCC Decision No. 22/2016, para. 66
[178] HCC, Decision No. 22/2016, para. 106
[179] Szakály op.cit., 2015, p. 25
[180] The Fourth Amendment to the Fundamental Law (25 March 2013)
[181] Bakó op.cit, pp. 9–11
[182] HCC, Decision No. 22/2016, para. 111
[183] HCC, Decision No. 32/2021, para. 101.
[184] A phenomenon which is elaborated on in details regarding HCC Decision No. 32/2021.
[185] HCC, Decision No. 33/2012. (VII. 17.), the dissenting opinion of Béla Pokol, para. 2; HCC, Decision No. 28/2013. (X. 9.), the concurring opinion of Béla Pokol, paras. 41–45
[186] Clarifying insertion, which became necessary because of certain cuts from the text.
[187] HCC Decision No. 22/2019, para. 183 (own translation)
[188] N., Tribl, Zs. Szakály, Örökkévaló identitás? Lehetséges kapcsolat az alkotmányos identitás és az örökkévalósági klauzulák között. “Pro Futuro – A Jövő Nemzedékek Joga” 2018, Vol. 4, p. 20
[189] Sándor, 2022 op.cit.
[190] HCC Decision No. 32/2021, para. 207
[191] Judge of the HCC (2016-)
[192] HCC Decision No. 32/2021, para. 252. (own translation)
[193] Judge of the HCC (2016-)
[194] HCC Decision No. 32/2021, para. 221 (own translation)
[195] HCC Decision No. 32/2021, paras. 60–66 (own translation)
[196] Interpreting insertion, which became necessary because the author cut the original train of thoughts.
[197] HCC, Decision No. 22/2016, para.103
[198] V. Kéri – Z. Pozsár–Szentmiklósy, Az Alkotmánybíróság határozata az Alaptörvény E) cikkének értelmezéséről. Az alapjogi fenntartás, a szuverenitásvédelem és az alkotmányos identitás dilemmái. “JeMa”, 2017/1–2., p. 9
[199] See: Gy. Marinkás, Ultra Viresavagy sem? Az EKB által alkalmazott válságkezelési eszközök és azok konformitása az uniós joggal, különös tekintettel az EUB és a Német Szövetségi Alkotmánybíróság közötti évtizedes „hatásköri vitára”. “Miskolci Jogi Szemle”, 2021, Vol. 16 Issue 5., pp. 328–339
[200] HCC, Decision No. 22/2016, paras. 33, 43, 45, 46, 18
[201] Judge of the HCC (2011–2023)
[202] ’[…] the main national forums of protecting constitutional order either participate in the so called preliminary ruling system under Article 267 of the TFEU, or strive to resolve their ultra vires debates – also preliminary – via informal methods.’ See: HCC Decision No. 22/2016, para. 76
[203] Namely: HCC Decisions No. 61/B/2005; HCC Decisions No. 3165/2014 (V.23.); HCC Decisions No. 26/2015 (VII.21.)
[204] Sándor, 2022 op.cit.
[205] F. Donati, Rule of Law, Independence of the Judiciary and Primacy of EU Law, “Italian Journal of Public Law”, 2021, Vol. 13, No. 2, pp. 323–328
[206] 2006/928/EC: Commission Decision of 13 December 2006 establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption (notified under document number C (2006) 6569) OJ L 354, 14.12.2006, pp. 56–57
[207] Treaty of Accession of the Republic of Bulgaria and Romania (2005) OJ L 157, 21.6.2005
[208] European Commission: Commission closes the Cooperation and Verification Mechanism (CVM) for Bulgaria and Romania, Brussels, 15 September 2023 (QANDA/23/4458)
[209] Commission Decision (EU) 2023/1786 of 15 September 2023 repealing Decision 2006/928/EC establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption C/2023/5653 OJ L 229, 18.9.2023, p. 94–96
[210] The reports are available at: https://commission.europa.eu/strategy–and–policy/policies/justice–and–fundamental–rights/upholding–rule–law/rule–law/assistance–bulgaria–and–romania–under–cvm/reports–progress–bulgaria–and–romania_en [accessed: 8 December 2023]
[211] D. Nacea, Review of the Judgment of the Romanian Constitutional Court of June 2021, Concerning the Limits of the Primacy of EU Law within the Romanian Judicial Order, “Revista Forumul Judecatorilor” (Judiciary Forum Review)”, 2022, Vol. 1, pp. 70–71
[212] RCC, Decision, No. 104 of 2018 (6 March 2018)
[213] Constitutia Romaniei (Ratified 8 December 1991). Official English translation available at: https://www.presidency.ro/en/the–constitution–of–romania [accessed: 8 December 2023]
[214] Donati op.cit., p. 325
[215] Namely, the PCC held from the ‘very beginning’ – that is to say from the time of the country’s accession to the EU – that (i) the Member States are the masters of the Treaties and that the transfer of competences cannot create a ‘situation that would prevent the Republic of Poland from functioning as a sovereign and democratic state.’ This statement clearly displays the impact of the BVerfG on the case–law of the Polish Tribunal. The PCC held furthermore that (ii) the Polish Constitution is the supreme legal source of the country’s law–system which does not bend before the EU law. – See PCC decisions No. K 18/04 (11 May 2005), No. K 32/09 (24 November 2010) and No. K 45/09 (16 November 2011)
[216] RCC, Decision No. 148 of 2003 (16 April 2003)
[217] Law No. 429/2003
[218] RCC, Decision No. 148/2003, para. II/Aa
[219] RCC, Decision No. 148/2003, para. II/A
[220] Judge of the RCC (2016–)
[221] A. Varga, Determining the content of constitutional identity – regulatory and case–law enshrinement – [in:] The RCC’s International Conference on: „The national constitutional identity in the context of European law” (Bucharest, 12 April 2019) edited by: V. Dorneanu, C.M. Krupenschi. Hamangiu Publishing House Bucharest 2019, pp. 20–28
[222] Article 11(3) of the Romanian Constitution: If a treaty Romania is to become a party to comprise provisions contrary to the Constitution, its ratification shall only take place after the revision of the Constitution.
[223] RCC, Decision No. 668 of 2011 (18 May 2011), paras. 2,3
[224] RCC, Decision No. 51 of 2012 (25 January 2012), para. III/1
[225] RCC, Decision No. 683 of 2012 (27 June 2012), para. II/1
[226] RCC, Decision No. 683 of 2012, para. II/1
[227] RCC, Decision No. 104/2018, para. 81
[228] RCC, Decision No. 64 of 2015 (24 February 2015)
[229] RCC, Decision No. 668 of 2011, para. 2
[230] CJEU, C–83/19, Asociatia Forumul Judecdtorilor din Romania’, Judgment, 18 May 2021
[231] CJEU, C–83/19, Asociatia Forumul…, para. 249
[232] It is worth taking an insight to the PCC’s statements on the word pick of the drafters of the TFEU in case of the English version and its implications as elaborated on in Decision K 3/21 (7 October 2021) of the PCC. While the chosen terms in the Polish and French versions of Article 4(3) are ‘lojalna współpraca’ and ‘coopération loyale’, respectively, the drafters of the English version chose the term ‘sincere cooperation’ instead ‘loyal cooperation’, since in English is closer to faithful subordination, but such a relationship does not correspond to the basic assumptions of the EU. Therefore – in the PCC’s view – the CJEU can only claim primacy for its judgments as long as it shows respect for the national identity of Member States and limits its interpretation according to the principle of conferral. In the PCC’s view, this follows from the principle of sincere cooperation as enshrined under Article 4(3) of the TEU, which presupposes reciprocity. As the PCC argues, this statement is supported by the above linguistic analysis. – For an analysis on the PCC’s ‘pre K 3/21’ case–law and on the said decision see: Gy. Marinkás, Some Remarks on the Polish Constitutional Court’s Case-law on Constitutional Identity with Special Regard to Decision No. K 3/21 “Sapientia Legal Studies”, 2023/2 [in publication]
[233] CJEU, C–83/19, Asociatia Forumul…, paras 149, 163, 166–178
[234] CJEU, C–83/19, Asociatia Forumul…, paras. 244, 245, 252
[235] RCC, Decision, No. 390 of 2021 (8 June 2021)
[236] Namely paragraph 201 of the said judgment.
[237] RCC, Decision No. 390/2021, para. 71
[238] RCC, Decision No. 80 of 2016 (16 February 2016)
[239] Ibid, para. 456
[240] These are namely: the supremacy of the constitution, national, independent, unitary and indivisible character of the Romanian State, the republican form of government, territorial integrity, independence of justice, political pluralism and official language, fundamental rights and freedoms.
[241] RCC, Decision No. 390/2021, para. 74
[242] RCC, Decision No. 390/2021, para. 75
[243] RCC, Decision No. 390/2021, para. 76
[244] R. Viorescu, The Effects of the Judgment of the Grand Chamber of the Court of Justice of the European Union in Case C–83/19, C–127/19, C–195/19, C291/19, C–355/19, C397/19. The Obligation of the Decisions of the Romanian Constitutional Court and the Supremacy of EU Law, “Logos Universality Mentality Education Novelty: Law” 2021, Vol. 9, No. 1, p. 50
[245] The RCC refers to Paragraph 177 of the said judgment, however in Paragraph 177 of the Forumul–judgment it is simply not there what the RCC alleges. – The author’s remark.
[246] RCC, Decision No. 390/2021, para. 77
[247] RCC, Decision No. 390/2021, para. 78
[248] CJEU, C–357/19 Euro Box Promotion and others, Judgment, 21 December 2021, paras. 158, 174–175, 188
[249] CJEU, C–357/19 Euro Box Promotion and others, paras,198–203, 227, 230
[250] CJEU, C–357/19 Euro Box Promotion and others, paras, 183, 187, 253
[251] P. Filipek; M. Taborowski, From Romania with Love: The CJEU confirms criteria of independence for constitutional courts, “VerfBlog”, 14/2/2022, DOI: 10.17176/20220215– 001215–0
[252] Charter of Fundamental Rights of the European Union (OJ C 326, 26.10.2012, pp. 391–407)
[253] Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 1950, ETS 5)
[254] CJEU, C–357/19 Euro Box Promotion and others, Judgment, 21 December 2021, paras. 232, 233, 235, 237
[255] Weber op.cit., p. 756
[256] CCR Press release, 23 December 2021, https://www.ccr.ro/en/press–release–23–december–2021/ [accessed: 9 December 2023]
[257] B. Selejan–Gutan, Who’s Afraid of the „Big Bad Court”?, “VerfBlog,” 10/01/2022, DOI: 10.17176/20220110–195203–0
[258] And also a judge at the Bucharest Court of Appeal.
[259] C. Dragoș, Once again on the rule of law in Romania. The risk that thousands of defendants would not face criminal liability: a new wave of requests preliminary rulings at the CJEU. “The Official Blog of UNIO–EU Law Journal”, 9 May 2023 https://officialblogofunio.com/2023/05/09/once–again–on–the–rule–of–law–in–romania–the–risk–that–thousands–of–defendants–would–not–face–criminal–liability–a–new–wave–of–requests–preliminary–rulings–at–the–cjeu/ [accessed: 8 December 2023]; See furthermore: I.D. Lucian, T. Manea, The impact of the clash between the CJEU Case Law concerning rule of law and the Constitutional Court| in Romania on the criminal legislation, investigation and fight against corruption, “Proceduralne Prawo Administracyjne 2022, Vol. 8, pp. 255–264
[260] E.S. Tănăsescu, B. Selejan–Gutan, A Tale of Primacy: The ECJ Ruling on Judicial Independence in Romania, “VerfBlog”, 02/06/2021 DOI: 10.17176/20210602–123929–0; B. Selejan–Gutan, A Tale of Primacy Part. II: The Romanian Constitutional Court on a Slippery Slope, VerfBlog, 18/06/2021 DOI: 10.17176/20210618–193507–0; B. Selejan–Gutan, A Tale of Primacy, part III: Game of Courts, VerfBlog, 17/11/2021/11/17, DOI: 10.17176/20211117–202225–0
[261] C–430/21, RS, Judgment, 22 February 2022
[262] C–107/23 PPU, Judgment, 24 July 2023
[263] Under Article 99 of the Rules of Procedure, the Court may at any time, on a proposal from the Judge–Rapporteur and after hearing the Advocate General, decide to rule by reasoned order where, inter alia, the reply to a question referred for a preliminary ruling may be clearly deduced from existing case–law. Since the answer to the referring court’s questions may be clearly deduced from the Court’s existing case–law [references omitted] that provision should be applied in the present cases. – See: C‑859/19, C‑926/19 and C‑929/19 FX and others, Order of the court 7 November 2022, paras. 76–77
[264] C‑859/19, C‑926/19 and C‑929/19 FX and others joined cases, paras, 120, 124
[265] Nacea op.cit., pp. 86–87
[266] CJEU, C–673/16, Coman and others, Judgment, 5 June 2018
[267] Weber op. cit., p. 750
[268] Here the then president referred to RCC Decisions No. 685/2018 and 417/2019 in which the RCC stated that fair trial guarantees were undermined when – contrary to Law 304/2004 – only four members of the five–judge criminal panels of the High Court were selected by lot, whereas the fifth would automatically be either the Court’s President, one of the vice–presidents, the Criminal Chamber President or the oldest member. In the RCC’s view this practice undermined the fair trial guarantee of impartiality, by potentially subjecting the four randomly selected judges to the undue influence of their administrative superiors. – See: B. Iancu: Goat, Cabbage and Wolf: Primacy in Romania, “VerfBlog”, 7/12022, DOI: 10.17176/20220107–195122–0
[269] Sándor, 2022 op.cit.
[270] See his CV on the RCC’s website: https://www.ccr.ro/en/marian–enache/ [accessed: 8 December 2023]
[271] D. Surdu, CCCR, a very important partner of the EU Court of Justice. “Radio România Actualitați” 01 Octombrie 2022. https://www.romania–actualitati.ro/news–in–english/ccr–a–very–important–partner–of–the–eu–court–of–justice–id169072.html [accessed: 8 December 2023]
[272] A response to the BVerfG’s questions in a preliminary ruling procedure. The BVerfG – which undertook the obligation in its Honeywell-case to refer cases to the CJEU if it deems is necessary – is more prone to use the preliminary ruling procedure compared to the other two courts. Mainly compared to the HCC which has never done so. Moreover it is clear that the HCC – despite emphasizing the importance of judicial dialogue – considers this as the task of the ‘ordinary’ courts.
