Hungarian Conservative

‘State of the Union’ — Some Critical Thoughts on the Relationship Between EU Law and the Hungarian Legal System

Jean-Louis-Ernest Meissonier: Le Rixe (The Duel) (1855)
Wikimedia Commons
It is hardly an exaggeration to say that the Court of Justice of the European Union created the principle of primacy of EU law from scratch. Although nowadays the mainstream considers this idea unchallengeable, the task of the constitutional courts is precisely to promote the development of a healthy balance by strengthening the principle of constitutional identity. By finding a balance, the tension between the legal systems of the Member States and EU law might also become reconcilable.

The relationship between national legal systems and EU law is a frequently raised issue in Hungarian legal literature. Similarly, questions arise as to the extent to which it is possible to challenge certain legislation outcomes in the Member States’ legal systems following pre-accession harmonisation.

The most fundamental problem is that the treaties establishing the European Union (and its predecessors) did not address this issue. It clearly follows from this fact alone that the two legal systems are in a kind of subsidiary relationship, and any contradictions must be resolved through a series of negotiations. Furthermore, the term ‘constitutional dialogue’ widespread in the literature also suggests that there is a professional approach that prioritises dialogue over power and power politics—this should not be underestimated either.

By contrast, in Costa v E.N.E.L. in 1964,

the Court of Justice of the European Union declared the primacy of the law of the European Community without having been expressly authorised to do so.

In 1970, the same court ruled in the Internationale Handelsgesellschaft case that Member States could not rely on their own constitutional structures with the aim of a selective or discriminatory interpretation of the law of the European Community. Not only was this essentially a confirmation of the 1964 decision (that lacked any positive legal basis), but added that in the future, the jurisprudence of the European Court would seek to limit efforts toward preventing the excesses of EU legislation by invoking the inviolability of national constitutions and constitutional structures.

Ultra vires control over legislative overpowers is primarily and traditionally exercised by the Court of Justice of the EU, but there is no clear and well-established view that national constitutional courts do not have such powers. On the contrary, in recent years there have been more and more attempts to ensure that this type of control cannot be granted exclusively to an EU body. Although the ultra vires control at the national level can be disputed on the grounds of expediency: in fact, no positive legal obstacles can be found in this regard. It is to be highlighted that the Treaty of Lisbon explicitly mentions the concept and phenomenon of constitutional identity, which essentially appears in the Treaty as a value to be protected. This fact alone overrides the 1970 decision taken without any authorisation.

In short, the EU legal system and the domestic legal system are, in my view, complementary legal systems in which the primacy of EU law can be exercised only in the manner and to the extent expressly provided for in the Treaties and regarding what and to the extent that reasonably follows from the Treaties, in light of the principles of necessity and proportionality. Furthermore, if there is a well-founded disagreement between the Court of Justice of the EU and a constitutional court of a Member State on this issue,

ample space must be provided for the institution of constitutional dialogue to prevail.

As far as the issue of legislative harmonisation is concerned, well, we did indeed comply with this requirement before accession. However, the main problem was that several measures, which were adopted either under the label of legal harmonisation or on its tail, instead of creating clear and transparent market conditions, actually meant economic capitulation and surrender.

The question arises: on what grounds can the EU hold domestic jurisprudences accountable? First of all, the EU and the Court of Justice of the EU should be accountable to the Member States about how the ECJ has been able to take a quasi-legislative position, for example by declaring the primacy of EU law. From a professional point of view, it is a really interesting question how they would explain leaving out of consideration the ancient Roman principle of law praetor ius facere non potest (‘The judge can apply, but cannot create the law.’)

This is important because one of the most fundamental requirements of the rule of law is the subjection of judges to the law. Judicial legislation is incompatible with this. The so-called judicial development of law must always be based on some positive rule and an indispensable and generally accepted legal principle. In the case of a declaration of the primacy of EU law, both elements were missing.

The Court of Justice of the EU has essentially created the political doctrine of the primacy of EU law from scratch,

which some of the literature quite boldly calls a legal principle.

Another recurring issue is the rule of law, which often appears as an instrument of political pressure in debates between Member States and EU institutions. The rule of law is a category of jurisprudence that appears in certain legal acts as an indefinite legal concept. This does not mean, of course, that the term and the concept are left without meaning—but it certainly does not mean either that there can only be one specific interpretation. The actual realisation of the concept of rule of law presents an even more diverse picture than the attempts to define it one can read in the relevant literature.

On the one hand, this ambiguity is good, since individual states can build their institutions under the rule of law in accordance with their historical and cultural-constitutional traditions. On the other hand, however, this ambiguity may give rise to abuses so that stronger, more influential Member States with different positions on certain issues may demand a certain interpretation of this concept in extreme political situations. It is this ambiguity that makes the term suitable for being used as a political weapon.

To make it clear how absurd the debates over the rule of law are, let us assume that there was a consensus that fish soup should be cooked in every municipality on a national holiday. The government itself would also play a role in the campaign. Let’s assume each settlement is happy to cook festive food. But let’s suppose that one of the riverside towns had a different position vis-à-vis the central government on some educational issue. Thus, the response of the central authorities would be that their fish soup is not even fish soup, as opposed to, for example, the one that is cooked elsewhere from beef and has by the way more resemblance to a goulash soup than fish soup—but on educational matters, the position of the latter municipality is compatible with that of the central government.

Now imagine if, in the event of a dispute, a court with informal ties to the central government would have to decide what is and is not a fish soup. Let me go on with the analogy:

what would have to happen in order not to doubt that a fish soup is indeed a fish soup?

It is obvious that a change in the public law structure of the European Union is necessary to ensure that the Commission or an EU body would think twice before making unfounded accusations against a Member State. As long as there is no system of checks and balances at the EU level, as long as there is no appeal against the decision of the Court of Justice of the EU, politically motivated excesses can hardly be ruled out.

Nothing could emphasise the paradoxical nature of the situation more than the fact that the Member States are held accountable for rule of law issues by an organisation that is only the guardian of the treaties, and which itself does not meet the most basic requirements of the rule of law. I am convinced that it is not only the governments of the Member States that have a role to play in highlighting these problems. The same tasks are also to be assigned to the individual constitutional courts. These bodies, standing on the foundations of a European, Roman-based legal culture, must hold up a mirror to the distortions that have become increasingly visible throughout the decades of the integration process.

It should be noted that the issue of legal certainty was also raised in a particular way in relation to access to post-COVID reconstruction funds.  If treaties and agreements imply a certain distribution relationship, unilateral conditions on the performance of these treaties and agreements cannot be established retroactively. As has been reported in the daily news, the funds earmarked for the recovery of economies after the COVID-19 pandemic have not been disbursed even to countries to which the Commission raises no objections.

Ironically, one could say that they are rewarded with what we receive as punishment. In any case, consideration should be given to charging interest on the amounts that Hungary’s entitled to and, where appropriate, enforcing the related claims.

And it would probably be necessary to

review the entire functioning of the EU over the past eight years,

from the activities carried out during the migration crisis, to the actions taken, or even missed during the COVID period, to the measures taken in connection with the current war.

The Union’s declared aim and raison d’être was to promote economic prosperity and ensure lasting peace. Regardless of whether this was a real goal decades ago or just a call to promote integration as an end in itself, there is no doubt that the Union is now distinguishing itself by deepening war and economic recession, contrary to the goals once announced.

Now, it should not strike anyone as a surprise if an organisation acting contrary to the purposes for which it was founded fails to comply with other agreements. While not surprising, it is definitely illegal. That is why it is appropriate to apply a reservation of rights whenever a Member State fulfils further requirements by the EU. And in these reservations, it is appropriate to point out that although the member states, as an expression of their cooperation and good intentions, are willing to comply with requests that do not yet threaten their constitutional identity, these wishes have no legal basis, and they cannot establish non-existent EU powers for the future either.

All this is closely related to the debate between European federalists and sovereigntists. Of course, it’s also true that everyone just does their job. Federalists invoke the principle of ‘ever closer union’, a ‘moving target’ in the Treaty on the European Union, to erode national sovereignty and create an EU sovereignty instead, which is to be transferred later to some kind of global supreme power, as Jacques Attali meditated on in his 2003 book.

On the other hand, Sovereigntist governments focus on the treaties as a whole and their publicly proclaimed goals of peace, security and prosperity.

Fortunately, as I said, the Treaty of Lisbon does consider constitutional identity.

This fact alone presupposes that Hungary’s constitution—and therefore the country’s sovereignty—cannot be disputed. Hungary, moreover, has a constitutional tradition of more than a thousand years that can be considered exceptional in the EU.

The country’s Fundamental Law has a special value. It defines the achievements of the state’s historical constitution as a framework for legal interpretation and commemorates the Holy Crown, opening up an opportunity to draw on Hungary’s uniquely rich constitutional tradition.

All that does not mean that a written constitution somehow paradoxically restored the historical constitution. Instead, it means that a law of paramount importance, the Fundamental Law, establishes the link between our modern legal system and our ancient constitutional tradition. The Fundamental Law did not ‘resurrect’ institutions and put them back into force, but made constitutional values in legal reasoning available, which must be taken into account when interpreting the law. And this fact can be of particular importance in negotiations with the European Union and its bodies.

It is hardly an exaggeration to say that the Court of Justice of the European Union created the principle of primacy of EU law from scratch. Although nowadays the mainstream considers this idea unchallengeable, the task of the constitutional courts is precisely to promote the development of a healthy balance by strengthening the principle of constitutional identity. By finding a balance, the tension between the legal systems of the Member States and EU law might also become reconcilable.