a) Hungary / b) Constitutional Court / c) / d) 16-06-2006 / e) 1053/E/2005 / f) / g) Magyar Közlöny (Official Gazette), 2006/6 / h) .
Keywords of the Systematic Thesaurus:
Constitutional Justice - Types of claim - Initiation ex officio by the body of constitutional jurisdiction.
Constitutional Justice - Jurisdiction - The subject of review - International treaties.
Constitutional Justice - Jurisdiction - The subject of review - Law of the European Union/EU Law - Primary legislation.
Constitutional Justice - Jurisdiction - The subject of review - Failure to act or to pass legislation.
Sources - Hierarchy - Hierarchy as between national and non-national sources - Law of the European Union/EU Law and domestic law - EU primary law and constitutions.
Keywords of the alphabetical index:
European Communities, constitutional review, treaty / Gambling, advertising, ban.
The founding treaties of the European Union and their amendments are not to be viewed as international treaties. The treaties are primary sources of community law and the directives are secondary sources. They form part of the national legislation, since Hungary is a member of the EU. The Constitutional Court cannot interpret community law as international law within the meaning of Article 7.1 of the Constitution.
I. The petitioner asked the Constitutional Court to examine Article 2.7 of Act XXXIV of 1991 on organising gambling (Act 1) and Article 6.5 of Act LVIII of 1997 on economic advertising (Act 2). These provisions ban marketing within Hungary (including organisation and transmitting) and advertising of gambling organised abroad. According to the petitioner, Parliament violated the obligation of member states under Article 10 EC after May 2004, by imposing even more restrictions on marketing and advertising in Hungary of gambling organised abroad. The petitioner suggested that the provisions in point contravened Articles 2.1 and 2/A.1 of the Constitution. He sought a declaration that there had been an unconstitutional omission to legislate, and asked the Constitutional Court ex officio to rule them to be in breach of international treaties.
II.1. The Constitutional Court examined the petition on its merits, in the light of Articles 2.1 and 2/A.1 of the Constitution.
Under Article 49.1 of the Act on the Constitutional Court, the Constitutional Court may make a finding of unconstitutional omission to legislate if the legislator has failed to fulfil its legislative duty, by not passing laws, and this has given rise to an unconstitutional situation. Apart from Articles 2.1 and 2/A.1 the petitioner did not name any other provisions of the Constitution that might have been breached.
Article 2.1 of the Constitution declares Hungary to be an independent, democratic state under the rule of law. The legislator has not necessarily failed to fulfil its obligation in the case in point. Article 2/A.1 allows Hungary, in its capacity as an EU member state, certain constitutional competences to the extent this is necessary to exercise rights and satisfy obligations under the founding treaties of the European Union. Hungary may exercise these competences independently, through the institutions of the European Union. This constitutional provision places no particular obligation on the legislator.
The petition was rejected, as the Constitutional Court did not identify any unconstitutional omission to legislate under either Article 2.1 or Article 2/A.1 of the Constitution.
2. The petitioner asked the Constitutional Court to proceed ex officio. This is possible where the legislation under dispute contravenes an international treaty. The Constitutional Court may also establish that an unconstitutional situation has arisen, as a result of a branch of the legislature failing to perform its duty to legislate.
The Constitutional Court emphasised that calling for proceedings ex officio was conceptually out of the question. Notwithstanding their "treaty origins", it intended to deal with the founding and modifying documents of the European Union as non-international treaties. The petition was accordingly rejected.
In his opinion Judge Peter Kovács emphasised that the petitioner had alleged unconstitutional omission to legislate in view of the EC Treaty that is in many respects directly applicable in Hungary. The lawful interpretation and application of community law falls within the sphere of the Court of Justice of the European Communities. It could be dangerous for the Constitutional Court to venture into the arena and decide as to whether the legislator has violated its obligations under community law. In the European Union it is the Court of Justice that can interpret community law. The Constitutional Court would act ultra vires, were it to attempt to interpret obligations based on community law in such a way as to find that a state had breached community law. In his view, the Constitutional Court should have mentioned these considerations in its decision. Judge István Bagi concurred.
Chief Justice Mihály Bihari gave a dissenting opinion. He emphasised that the petitioner's primary concern was to show that the contested provisions contravened the EC Treaty. The review of statutes for conformity with international treaties is within the competence of the Constitutional Court. This competence includes the review of the obligations of the legislator under international treaties. Under Article 21.3 of the Act on the Constitutional Court, only certain defined institutions may launch such proceedings. The EC Treaty is an international one. The petitioner had asked for a finding of unconstitutional omission to legislate, based upon this treaty. He was not entitled to initiate proceedings to explore breaches of international treaties. Accordingly, the Constitutional Court had no option but to reject the petition.
In Decision no. 72/2006 (XII. 15.) the Constitutional Court emphasised that the founding treaties of the European Union and their amendments are not international treaties from the perspective of the Constitutional Court's competence. These treaties are primary sources of community law and the directives are secondary sources of community law. They form part of the national legislation, since Hungary is a member of the EU. The Constitutional Court cannot interpret community law as international law within the meaning of Article 7.1 of the Constitution.