a)  Hungary / b)  Constitutional Court / c)  Plenary / d)  09-07-2018 / e)  9/2018 (VII. 9.) AB / f)  On the interpretation of Articles E.2, E.4; Q.3 and 25 of the Constitution / g)  Magyar Közlöny (Official Gazette), 2018/107 / h) .
Keywords of the systematic thesaurus:
General Principles - Sovereignty.
Institutions - Judicial bodies - Jurisdiction - Exclusive jurisdiction.
Institutions - International relations - Transfer of powers to international institutions.
Institutions - European Union - Institutional structure.
Keywords of the alphabetical index:
Jurisdiction, United Patent Court.
Under the constitutional provisions currently in force, an international agreement created in the framework of enhanced cooperation, transferring the jurisdiction of adjudicating a group of private law disputes to an international institution not included in the founding treaties of the European Union (thus drawing the adjudication and the constitutional review of such legal disputes away from the jurisdiction of the Hungarian State) may not be promulgated.
I. Under Section 38.1 of the Act CLI of 2011 on the Constitutional Court, on behalf of the Government of Hungary, the Minister of Justice asked the Constitutional Court to interpret Articles E.2, E.4; Q.3 and 25 of the Constitution (relationship to the law of the European Union, sources of international law and regulations on the judiciary system in Hungary). The Government's question was whether the constitutional self-identity of Hungary - in particular Article 25 of the Constitution on judicial power - would be violated by the promulgation, on the basis of Article E.2 and E.4 of the Constitution, of an international treaty, which:
a. is not included among the founding treaties of the European Union and which is not considered a legal act of the Union, but the state parties to which can only be the Member States of the European Union;
b. is considered the precondition for the effective implementation of an enhanced cooperation established in the framework of EU law; and
c. sets up an international court structure, which:
- i. has exclusive jurisdiction in a specific group of cases delimited partly by EU law and partly by another international agreement with the intermediation of EU law;
- ii. is empowered to interpret and apply EU law and other international treaties concluded by the state parties - even with parties which are not Member States or with the participation of such states - and national law; and
- iii. only offers legal remedies against its decisions within the court structure to be established.
If the international treaty in question may not be promulgated on the basis of Article E.2 and E.4 of the Constitution, what are the conditions for promulgating it on the basis of Article Q.3, in particular with regard to Article 25 of the Constitution on judicial power? The Government was of the view that interpretation of the relevant provisions of the Constitution was needed because of the potential ratification of the Agreement on a Unified Patent Court (hereinafter, «the Agreement»). These questions were, the Government argued, of fundamental constitutional importance in terms of the interpretation of the Constitution, in particular the possibility to promulgate international treaties which restrict or remove altogether the judicial powers of the institutions listed in the Constitution. In this respect, the legal character of the Agreement is a preliminary question (namely whether it should be interpreted in accordance with international law or the law of the European Union).
II. The Constitutional Court began by considering whether the so-called «enhanced cooperation» included in the law of the European Union should be considered as part of the Union law (whether the agreement setting up the court structure complying with the criteria specified in the first question fell within the scope of Article E of the Constitution and whether it might violate the constitutional self-identity of Hungary), or whether it should be handled as a treaty concluded on the basis of international law (falling under Article Q).
The Constitutional Court noted that by joining the European Union, Hungary had not given up its sovereignty but it did allow for the joint exercise of certain powers. The maintaining of Hungary's sovereignty should be presumed in the course of assessing the joint exercising of powers additional to the rights and obligations specified in the founding treaties of the European Union (the so-called presumption of maintained sovereignty). The form of enhanced cooperation should enjoy special consideration under public law. Hungary was free to conclude an international treaty of which the only states parties were the Member States of the European Union and which created an institution that applied the law of the European Union. However, all this would only become part of the law of the European Union if its legal basis was to be found in the founding treaties. This should be examined by the Government in the case of the concrete cooperation. If in the present case the Government found that the founding treaties of the European Union had already specified the power related to establishing the institution concerned (the Unified Patent Court), the legal basis of the publication of the implementing international treaty would be Article E of the Constitution and in other cases the legal basis would be Article Q.
Regarding the conditions of validity necessary for promulgating an agreement under international law (Article Q of the Constitution) the Constitutional Court emphasised that the Unified Patent Court would apply in its procedure not only the law of the European Union but also the national laws of the Member States. International agreements establishing judicial forums typically set up an institution which will provide a special additional legal remedy. However, if a specific group of cases were to be dealt with in their entirety by a special court and it was not a simple question of the remedy, this would be a different matter. The operation of such an international forum, supplementing the national court structure, would result in drawing legal disputes between private parties away from the jurisdiction of the national courts and this would of course call into question the Constitution's chapter on the judicial system, which states that the national courts will decide, without exception, on all legal disputes of private law.
The Constitutional Court therefore concluded that under the current constitutional provisions, an agreement transferring to an international institution the jurisdiction for adjudicating a group of private law disputes may not be promulgated.
III. Justice Béla Pokol attached a concurring reasoning and Justices Egon Dienes-Oehm and István Stumpf a dissenting opinion to the Decision.
Hungarian, English.