EUR;CoE;EU;CECC;JCCJ;WCCJa) Hungary / b) Constitutional Court / c) / d) 11-05-2012 / e) 22/2012 / f) On the interpretation of Articles E.2 and E.4 of the Fundamental Law / g) Magyar Közlöny (Official Gazette), 57/2012 / h) .
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Constitutional Justice - Jurisdiction - The subject of review - Law of the European Union/EU Law.
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Constitutional Justice - Jurisdiction - The subject of review - Constitution.
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The authorisation for expressing consent to be bound by every international treaty that results in further sovereignty-transfer to the European Union requires the votes of two-thirds of all Members of Parliament.
Summary:
I. On behalf of the Government, the Minister of Justice asked the Constitutional Court to provide an interpretation of Articles E.2 and E.4 of the Fundamental Law (hereinafter, the "FL"). According to Section 38.1 of the Act on the Constitutional Court, on the petition of Parliament or its standing committee, the President of the Republic or the Government, the Constitutional Court shall interpret the provision of the FL regarding a certain constitutional issue. The interpretation shall be directly deduced from the FL.
In the current case, the Government submitted the following question connected with the Treaty on Stability, Coordination and Governance (hereinafter, the "TSCG") in the Economic and Monetary Union:
Whether such an international agreement, which is not among the Treaties establishing the European Union (sources of primary law) and is not a piece of EU legislation (sources of secondary law):
a. but the member states of which are all member states of the EU;
b. which regulates such topics regulated also by the Treaties establishing the EU and the legislation of the EU;
c. which aims at economically strengthening and further developing the EU in such a field, which constitutes an integral part of the Treaties establishing the EU;
d. and according to which the programme designed by the TSCG will be implemented by EU institutions and the implementation will be monitored by EU institutions;
is an international agreement within the meaning of Article E.2 of the FL?
The contracting party of the TSCG could be a EU member state whose currency is the euro. The TSCG will enter into force after it has been ratified by 12 euro area member states, and it will be open to the accession of EU member states other than the contracting parties. Hungary is not in the Eurozone, but ratifying the TSCG would mean that it becomes an international obligation.
II. 1. First of all, the Constitutional Court compared the so-called European clause of the former Constitution to the European clause of the FL. According to Article 2/A.1. of the former Constitution, "in order to participate in the European Union as a Member State, and on the basis of an international treaty, the Republic of Hungary may, to the extent necessary to exercise rights and fulfil the obligations set out in the European Communities and European Union foundation treaties, exercise some of its competences deriving from the Constitution jointly with other Member States; the exercise of these competences may be realized independently, through the institutions of the European Union." In addition, Article 2/A.2 stipulated that "the votes of two-thirds of all Members of Parliament are required for the ratification and adoption of the international treaty specified in paragraph (1)".
Under Article E.2 of the FL, "in order to participate in the European Union as a Member State, and on the basis of an international treaty, Hungary may, to the extent necessary to exercise the rights and fulfil the obligations set out in the founding treaties, exercise some of its competences deriving from the Fundamental Law jointly with other Member States, through the institutions of the European Union." Article E.4 reads that "the authorisation for expressing consent to be bound by an international treaty referred to in paragraph (2) shall require the votes of two-thirds of all Members of Parliament."
In the current case, the content of the relevant texts of the former Constitution and the FL are identical. If that is the case, the Constitutional Court, as the principal organ for the protection of the FL, can use those arguments of its previous decisions based on the former Constitution, which are relevant to deciding on a constitutional matter and do not contradict the FL provisions and interpretative rules. Consequently, in the instant case, the previous CC Decision 143/2010 was the starting point.
2. The Decision 143/2010 pointed out that the expression "on the basis of an international treaty" in the constitutional text refers not only to the EU accession treaty but to every other treaty concerning complex structural reform of the EU. In such case, the two-thirds majority of the MPs can decide whether such a reform is acceptable for the country. In the current case, the Court affirmed that the votes of two-thirds of the MPs are required for every international treaty, which results in further sovereignty-transfer to the EU.
The information concerning the subject matter and the member states of the treaty, as well as the rights and obligations deriving from the treaty can help in deciding whether a two-thirds majority is needed. The votes of two-thirds of the MPs are required if the high contracting parties are the EU member states (including Hungary) and the content of the treaty relates to subject matters regulated in the Treaties establishing the EU, or the treaty aims at implementing the Treaties establishing the EU or supervising the implementation.
3. First of all, it is the task of the Government to decide whether the TSCG is such a treaty requiring a two-thirds majority since the Government submits the bill proposing to ratify and adopt the TSCG. Secondly, it is up to the Parliament whether it approves the assumption of the obligations defined in TSCG by a two-thirds majority act. Certainly, the Constitutional Court can examine the adopted but not yet published act on the promulgation of the TSCG for conformity with the FL based upon Article 24.2.a of the FL.
Cross-references:
Hungarian.