1.
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2019 |
Osservatorio sulle fonti / Observatory on Sources of Law ---------------------------------------------------------------------------- Section: Sources of Law in the EU member States HUNGARY By Viktor Zoltán Kazai, Central European University, Budapest |
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Name of the Act/s |
Resolution 3063/2019 (III. 25.) of the Constitutional Court of Hungary / 3063/2009. (III. 25.) AB végzés |
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Date of entry into force of original text |
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Date of Text (Adopted) |
12 March 2019 |
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Type of text (name in English / name in the official language) |
Resolution of the Constitutional Court of Hungary / AB végzés |
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If federal State |
□ |
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If Regional State |
□ |
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Enacted by |
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Reference to the Constitution (art) |
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Subject area |
judicial dialogue, relationship between law of the European Union and domestic law |
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If the act implements a source of EU Law: cite the relevant EU legal source |
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Comment |
In its resolution the Constitutional Court found the applicant’s constitutional complaint challenging the constitutionality of judgement No. Kfv.I.35.772/2015/10 of the Curia [Supreme Court] and the judgement No. 14.K.27.168/2015/16 of the Kecskemét Administrative and Labour Court rendered in taxation case inadmissible. The reason why this resolution is relevant lies in the fact that the applicant requested the Constitutional Court to suspend its review procedure and turn to the Court of Justice of the European Union for a preliminary ruling. In para 11 the Constitutional Court rejected the request in accordance with its previous case law. In recent years the Hungarian Constitutional Court developed a habit of suspending its review procedure if a similar case is pending before the CJEU in the name of judicial dialogue, a doctrine originating from its Decision no. 22/2016. (XII. 5.) (the so-called constitutional identity decision). However, the Constitutional Court constantly refuses to turn to the CJEU for a preliminary ruling. |
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Secondary sources/ doctrinal works (if any) |
About the preliminary ruling procedure in the jurisprudence of the Hungarian Constitutional Court: Naszladi, Georgina: The Hungarian Constitutional Court’s Judgment Concerning the Preliminary Ruling Procedure –Comments on a Rejection Order, Pécs Journal of International and European Law, Issue 1 (2015), pp. 37-43 Osztovics, András and Gombos, Katalin: Preliminary references and Hungarian courts: procedural context, trends and quality, in Varjú, Márton and Várnay, Ernő (eds.) The Law of the European Union in Hungary. Institution, Processes and the Law, HVGOrac, 2014 Fazekas, Flóra: EU law and the Hungarian Constitutional Court, in Varjú, Márton and Várnay, Ernő (eds.) The Law of the European Union in Hungary. Institution, Processes and the Law, HVGOrac, 2014 |
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Available Text |
http://public.mkab.hu/dev/dontesek.nsf/0/C97FDE421A6DD3C5C125804F0058A0FB?OpenDocument |
2.
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2019 |
Osservatorio sulle fonti / Observatory on Sources of Law ---------------------------------------------------------------------------- Section: Sources of Law in the EU member States HUNGARY By Viktor Zoltán Kazai, Central European University, Budapest |
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Name of the Act/s |
Decision no. 2/2019 (III. 5.) of the Constitutional Court of Hungary / 2/2019. (III. 5.) AB határozat |
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Date of entry into force of original text |
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Date of Text (Adopted) |
25 February 2019 |
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Type of text (name in English / name in the official language) |
Decision of the Constitutional Court of Hungary / AB határozat |
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If federal State |
□ |
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If Regional State |
□ |
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Enacted by |
Constitutional Court of Hungary |
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Reference to the Constitution (art) |
Article E) (2) (Europe clause) Article R) (4) (rule of interpretation, protection of constitutional identity and Christian culture) Article XIV (4) (right to asylum) Article 24 (1) (Constitutional Court) |
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Subject area |
transfer of competence to the European Union, collective expulsion |
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If the act implements a source of EU Law: cite the relevant EU legal source |
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Comment |
The is the second decision of the Constitutional Court interpreting constitutional identity. The first one was Decision no. 22/2016. (XII. 5.) (the so-called constitutional identity decision). Criticism has been raised as to the Constitutional Court’s interpretation of constitutional identity, judicial dialogue and the relationship between EU law and domestic law (see articles below). The summary by the Constitutional Court: „On behalf of the Government of Hungary, the minister of justice submitted a motion to the Constitutional Court requesting the interpretation of the Fundamental Law concerning the relation between the Fundamental Law and the law of the European Union. The background of the case is that the European Commission sent an official notice to Hungary – in the framework of an infringement proceeding – in which it explained that according to the Commission’s interpretation the provisions of the Fundamental Law on asylum violate the relevant regulations of the European Union. The particular constitutional issue raised by the petitioner was the relation between the interpretation of the Fundamental Law by an organ of the European Union and the genuine interpretation provided by the Constitutional Court. The Constitutional Court pointed out: Hungary participates in the European Union in the interest of developing the European unity, for the purpose of expanding the freedom, prosperity and security of European nations. The Union law does not fit into the hierarchy of the domestic sources of law; it has been made part of the legal system by a constitutional order incorporated in the Fundamental Law. In most cases the parallel existence of Union law and domestic law does not cause any constitutional dilemma as the two normative systems are based on a common values. However, with regard to the assessment of certain national norms, the Constitutional Court and the European Union may reach different conclusions. Since the Fundamental Law requires compliance with the Union law, as a constitutional obligation, collisions may be resolved by paying respect to constitutional dialogue. However, the genuine interpretation of the Fundamental Law is the duty of the Constitutional Court and all organs or institutions shall respect it in their own procedures. The Constitutional Court has committed itself to constitutional dialogue: in the present case it interpreted the Fundamental Law in line with the so called Europe-friendliness by interpreting the content of the norm to also comply with the law of the European Union. Regarding asylum, the Constitutional Court underlined: the right to asylum is not the refugee’s individual subjective right and it stems from the international treaties undertaken by Hungary. A non-Hungarian national who arrived to the territory of Hungary through any country where he or she was not persecuted or directly threatened with persecution shall have a claim, protected as a fundamental right, to have his or her application assessed by the authority. It is the duty of the Parliament to determine and lay down in a cardinal Act the fundamental rules on granting asylum.” |
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Secondary sources/ doctrinal works (if any) |
Halmai, Gábor: sid=8c73dcaf-d777-42ee-9ac7-ee57f95dbb3f@pdc-v-sessmgr02">Abuse of Constitutional Identity. The Hungarian Constitutional Court on Interpretation of Article E) (2) of the Fundamental Law, Review of Central & East European Law, Vol. 43 Issue 1 (2018), pp. 23-42 |
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Available Text |
in Hungarian: http://public.mkab.hu/dev/dontesek.nsf/0/A69AEC612BA90BAEC125830C005216DB?OpenDocument in English: https://hunconcourt.hu/uploads/sites/3/2019/03/2_2019_en_final.pdf |
3.
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2019 |
Osservatorio sulle fonti / Observatory on Sources of Law ---------------------------------------------------------------------------- Section: Sources of Law in the EU member States HUNGARY By Viktor Zoltán Kazai, Central European University, Budapest |
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Name of the Act/s |
Decision no. 3/2019 (III. 7.) of the Constitutional Court of Hungary / 3/2019. (III. 7.) AB határozat |
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Date of entry into force of original text |
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Date of Text (Adopted) |
25 February 2019 |
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Type of text (name in English / name in the official language) |
Decision of the Constitutional Court of Hungary / AB határozat |
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If federal State |
□ |
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If Regional State |
□ |
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Enacted by |
Constitutional Court of Hungary |
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Reference to the Constitution (art) |
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Subject area |
criminal law, immigration, human rights |
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If the act implements a source of EU Law: cite the relevant EU legal source |
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Comment |
This decision was rendered in a procedure initiated by constitutional complaint the unconstitutionality of Article 353/A of the Act C of 2012 on the Criminal Code (facilitation and support of illegal immigration) Shortly after the entry into office of the Fidesz-KDNP majority in the spring of 2018 after a third consecutive land-slide victory, the National Assembly adopted the Seventh Amendment to the Fundamental Law which inserted – inter alia – certain provisions in the constitutional text on the protection of national identity and the prevention of illegal immigration. What followed was the introduction of the so-called “Stop Soros” legislative package. One of the elements of the package was the criminalization of “facilitating illegal immigration”, which extended the already existing prohibitions of the Criminal Code to all types of organizational activities not directly related to illegal immigration. The Venice Commission and the Office for Democratic Institutions and Human Rights (ODIHR) expressed serious concerns regarding this piece of legislation for its incompatibility with the freedoms of expression: - Joint Opinion on the Provisions of the so-called “Stop Soros” draft Legislative Package which directly affect NGOs (in particular Draft Article 353A of the Criminal Code on Facilitating Illegal Migration), CDL-AD(2018)013-e The European Commission initiated an infringement procedure against Hungary which entered in its second phase in January 2019. It is in this context that the Hungarian Constitutional Court ruled that the criminalization of “facilitating illegal immigration” – introduced by the so-called Stop Soros legislative package targeting human rights NGOs – does not violate the Fundamental Law. However, the judges gave a restrictive interpretation to the law. |
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Secondary sources/ doctrinal works (if any) |
Kazai, Viktor Zoltán: Stop Soros Law Left on the Books – The Return of the “Red Tail”?, VerfBlog, 2019/3/05, https://verfassungsblog.de/stop-soros-law-left-on-the-books-the-return-of-the-red-tail/ |
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Available Text |
http://public.mkab.hu/dev/dontesek.nsf/0/DB659534A12560D4C12583300058B33D?OpenDocument |