Hungary has been a thorn in the side for some time now of those powerful EU countries that are in favour of mass migration. The European Commission, which has been more preoccupied with disciplining dissenters on the issue of migration, primarily Hungary, than with any other serious problem the Union is facing, had referred Hungary to the EU’s top court for alleged breaches of EU law regarding asylum last year. The European Court of Justice ruled in December 2020 that Hungary failed to respect EU law by “pushing back” people entering the country illegally, denying the right to apply for asylum, and detaining them in “transit zones” along the southern border with Serbia. But the Hungarian government has defied the ruling, arguing that it is incompatible with Hungary’s constitution and Justice Minister Judit Varga turned to the Constitutional Court seeking an interpretation of some parts of the judgement of the CJEU. The minister argued that parts of the top EU court’s ruling raise a constitutional problem that warrants an interpretation of the country’s constitution (Fundamental Law).
The Hungarian Constitutional Court issued its ruling on the matter on 10 December. According to the statement published on the Court’s official website, the ruling established that ’where the exercise of joint competences with the Union is incomplete, Hungary shall be entitled, in accordance with the presumption of reserved sovereignty, to exercise the relevant non-exclusive field of competence of the EU, until the institutions of the European Union take the measures necessary to ensure the effectiveness of the joint exercise of competences.’ In addition, the Court also clearly said that ’where the incomplete effectiveness of the joint exercise of competences results in consequences that raise the issue of the violation of the right to identity of persons living in the territory of Hungary, the Hungarian State shall be obliged to ensure the protection of this right in the context of its obligation of institutional protection.’ Finally, the Constitutional Court held that the protection of the inalienable right of Hungary to determine its territorial unity, population, form of government and state structure shall be part of its constitutional identity. As explained in the Court’s own statement, ‘since the State cannot make unreasonable distinctions regarding fundamental rights on the basis of these characteristics, it must also ensure, in the light of its obligation of institutional protection, that changes to the traditional social environment of the individual can only take place without significant harm to these determining elements of identity.’
Rather clear words, one would think. However, the international mainstream media and pro-migration NGOs have clung to the parts of the ruling that noted that ‘The abstract interpretation of the Fundamental Law (constitution) cannot be the subject of a review of the ECJ judgment, nor does the procedure in the present case extend to the examination of the primacy of EU law.’
An interpretation-war broke out, if you like, following the ruling
An interpretation-war broke out, if you like, following the ruling, with EU spokesperson Christian Wigand saying ‘the ruling does not as such challenge the principle of the primacy of EU law’ and adding that what followed was that Hungary was obliged to implement the CJEU December 2020 ruling. By contrast, both Justice Minister Varga and PM Orbán’s Chief of Staff Gergely Gulyás voiced the conviction that the Hungarian Constitutional Court backed the Government’s position with its decision.
It was at this point that Viktor Orbán felt the need to make it clear that the Government of Hungary would not back down and would not allow foreign or hostile domestic actors to interpret the Hungarian top court’s verdict according to their interests and biases.
In his Samizdat No. 15, published on 20 December 2021, the PM nailed it down that the Court issued three rulings. It confirmed that the Government must defend our constitutional identity – even if this runs counter to the judgment by the Court of Justice of the European Union. It stated that if the EU institutions are not exercising shared competencies effectively, then the Hungarian authorities may exercise them. It asserted that the relationship between migration and human dignity is also to be examined from the perspective of the country’s existing, historical population.’
The PM pointed out that the Constitutional Court’s ruling is ‘of historic significance’ and that ‘at its heart is the human being and human dignity – something only rarely seen in today’s Europe.’ In his commentary Viktor Orbán made it clear that ‘the Hungarian state has a duty to prevent serious violations of individuals’ identity – even if such violations come from a ruling by the Court of Justice of the European Union or from deficiencies in the EU’s exercise of power. The traditional social environment of people living in Hungary must not be allowed to change without a democratic mandate and oversight by the state.’
The prime minister concluded his piece stating it unequivocally that ‘A homeland only exists where rights also exist. And according to the Constitutional Court of Hungary, Hungarians have the right to their own homeland.’
Hungary is not backing down, it seems, in its struggle to protect its sovereignty and its borders. The fight continues.
Zsófia Tóth-Bíró, researcher at Danube Institute