HUN-2010-2-007

a) Hungary / b) Constitutional Court / c)  / d) 14-07-2010 / e) 143/2010 / f)  / g) Magyar Közlöny (Official Gazette), 2010/119 / h) .

Keywords of the Systematic Thesaurus:

03.01

General Principles - Sovereignty.

03.09

General Principles - Rule of law.

Keywords of the alphabetical index:

Treaty, European Communities / Enactment / Constitutional review.

Headnotes:

The reforms brought about by the Lisbon Treaty are of paramount importance, but do not change the fact that Hungary retains its independence, and its status with respect to the rule of law.

Summary:

I. Several private individuals asked the Constitutional Court to assess the compliance with the Constitution of the Act of Promulgation of the Lisbon Treaty (Act CLXVIII of 2007). They suggested that the new rules and mechanisms of the Lisbon Treaty jeopardised the existence of the Republic of Hungary as an independent, sovereign State, governed by the rule of law.

II. The Constitutional Court pointed out that the reasoning and the examples set out in the petition are similar to those examined by other European constitutional courts in the framework of the a priori constitutional review of the Lisbon Treaty, done at the request of national governments and members of parliament. The Constitutional Court carefully examined these dicta and the scholarly opinions criticising some of them.

Under Article 36.1 of the Act on the Constitutional Court, before ratifying an international treaty, the President of the Republic and the Government may request the examination of the constitutionality of an international treaty or of its provisions thought to be of concern.

However, this institution of a priori constitutional review of international treaties was not applied in 2007 to the Act of promulgation of the Lisbon Treaty.

The Constitutional Court examined its competence concerning the Act of promulgation and concluded that even if the Treaty of Lisbon modifying the Treaty on European Union and the Treaty establishing the European Community (the latter renamed as the Treaty on the Functioning of the European Union) entered into force, this did not mean that a different type of review was needed for the Act of promulgation by comparison with the review of ordinary acts and other legal norms which might be challenged under the actio popularis system, `guaranteed by the Act on the Constitutional Court.

The Constitutional Court pointed out that in the framework of the a posteriori review of norms, due attention should be paid to the fact that Hungary is a member state of the European Union. Therefore, even if a decision was passed declaring unconstitutionality, this would not jeopardise the execution of all the commitments deriving from membership of the European Union. In such a case, the legislator should find a solution whereby EU commitments could be executed without violating the Constitution.

The Constitutional Court also emphasised that, in the case of treaties of such high importance, the competent authorities should always request, in due time, a priori constitutional review. The deliberation of the present petition is closely linked to the fact that such a review was not requested.

The Constitutional Court recognised that proper interpretation of the EU treaties and other EU-norms falls under the competence of the European Court of Justice.

The Constitutional Court used the theory of acte clair and did not need to refer the case to the European Court of Justice, because it was evident that the petitioner's arguments (and challenge of the constitutionality of the Act of promulgation) were a result of imperfect and inadequate reading and understanding of the Lisbon Treaty. The full verbatim quotation of Article 49/A (currently Article 50) of the Treaty on the European Union revealed that, contrary to the petitioner's allegation, no state could be obliged to uphold its membership if it does not want to do so.

Following the philosophy of the acte clair, the Constitutional Court considered that in order to refute the petitioner's arguments, it was enough to refer to changes of rules on the European Union following the Lisbon Treaty, which can be regarded as facts of common knowledge, such as the attribution of a legally binding nature to the Charter of Fundamental Rights, and the enlargement of the role and competences of national parliaments according to Protocol no. 2 on subsidiarity and proportionality. These demonstrate that the petitioner's arguments as to alleged dangers of the Lisbon Treaty are unfounded.

The Constitutional Court also interpreted the relevant  on sovereignty, democracy, rule of law and European co-operation. According to the Court, the so-called European clause (Article 2/A of the Constitution) cannot be interpreted in a way that would deprive the clauses on sovereignty and rule of law of their substance.

The Constitutional Court emphasised that material and procedural rules were duly observed during the adoption of the Act of Promulgation and the Parliament gave its consent to the content of the Lisbon Treaty of its own free will.

In summary, the Constitutional Court concluded that, although the reforms of the Lisbon Treaty were of paramount importance, they did not alter the fact that Hungary maintains and enjoys her independence, her status in terms of rule of law and her sovereignty.

Consequently, the application was rejected in its entirety.

Concurring and dissenting opinions were attached to the decision.

Chief Justice Péter Paczolay emphasised in his concurring opinion, that the Lisbon Treaty, after its entry into force, is no longer part of the Act of Promulgation. Therefore the Court could not review the constitutionality of the Lisbon Treaty itself. Justice Miklós Lévay joined him in this concurring opinion.

Justice László Trócsányi also attached a concurring opinion to the judgment. He stressed that the principle of independence and the rule of law enshrined in Article 2 of the Constitution should always be in harmony with the "European" clause of the Constitution (Article 2/A).

Justice András Bragyova attached a dissenting opinion to the decision. In his view, the Constitutional Court should not have decided the current case on the merits. The petitioner had not only asked for a review of the constitutionality of the Lisbon Treaty, but also of all the international treaties on the basis of which the European Union operates.

The Constitutional Court does not have the competence to review the Act of Promulgation of the Lisbon Treaty. After its entry into force, the Lisbon Treaty as an international treaty is no longer in effect; its provisions now form part of the founding treaties.

Languages:

Hungarian.