HUN-2016-2-004
a)  Hungary / b)  Constitutional Court / c) / d)  22-07-2016 / e)  3151/2016 / f)  On the refugee quota referendum / g)  Magyar Közlöny (Official Gazette), 2016/17 / h) .
 
Keywords of the systematic thesaurus:
 
 
Constitutional Justice - Jurisdiction - Types of litigation - Litigation in respect of referendums and other instruments of direct democracy .
Constitutional Justice - Jurisdiction - Types of litigation - Litigation in respect of referendums and other instruments of direct democracy - Admissibility .
 
Keywords of the alphabetical index:
 
Refugee quota, referendum / Review, procedural limits.
 
Headnotes:
 
The Constitutional Court may examine the merits of a parliamentary resolution ordering a referendum if, between the authentication of the question and the ordering of the referendum, circumstances had changed in a way that might significantly affect the decision. It cannot examine the content of the referendum question itself.
 
 
 
Summary:
 
I. On 24 February 2016 the Hungarian Government called for a referendum allowing the electorate to vote on this question:
 
«Do you want the European Union, without the consent of Parliament, to order the compulsory settlement of non-Hungarian citizens in Hungary?»
 
The National Election Committee has the power to review the formulation and content of the referendum question. Its decision can be challenged before the Supreme Court. The applicants raised concern over the question, particularly its inaccurate wording, contending that the notion of «compulsory settlement» in the question does not exist in Hungarian or in EU law. The terms used in connection with refugee matters are «transfer» or «resettlement». Despite these concerns the referendum question was passed both by the National Election Committee and the Supreme Court.
 
Therefore in May 2016, the Hungarian Parliament adopted Parliamentary Resolution no. 8/2016 and ordered the referendum. Under the Act on the Constitutional Court, it is open to anybody to file a petition with the Court to review the constitutionality and lawfulness of this parliamentary decision, but the scope of such constitutional review is limited by Section 33 of this Act. The Constitutional Court can examine the merits of the resolution if, between the authentication of the question and the ordering of the referendum, circumstances changed to a significant degree in a manner that may significantly affect the decision. It cannot examine the content of the referendum question itself.
 
Several applicants had asked the Court to declare the parliamentary resolution ordering the referendum unconstitutional. Under the Constitution, national referenda may be held about «any matter within the tasks and competences of Parliament». The applicants’ main concern was that it was not within Parliament’s power to pass such a resolution, since the referendum question would affect EU common policy. Title V Chapter 2 of the Treaty on the Functioning of the European Union deals with policies on external border control, asylum and immigration as EU common policies. Consequently, the Hungarian Parliament has no direct competence over dealings between Hungary and the European Union on migration matters.
 
The applicants also claimed that between the authentication of the question and the ordering of the referendum, circumstances had changed significantly in a manner that significantly affected the decision. On 4 May 2016, the European Commission presented legislative proposals to reform the Common European Asylum System inter alia by providing «for tools enabling sufficient responses to situations of disproportionate pressure on Member States’ asylum systems» through a «corrective allocation mechanism».
 
II. The Constitutional Court refused the petitions against the parliamentary resolution, on the basis that it only had the power to investigate the actions of Parliament, not the referendum question itself. It found that the parliamentary proceedings had not breached the Rules of Procedures of Parliament and also rejected the petitions on the grounds that the applicants did not have the right to challenge the resolution based upon the arguments concerning the competencies of the Hungarian Parliament and the EU and the changed circumstances. They should instead have raised a constitutional right violation.
 
With regard to the contention that the subject of the referendum concerned EU common policies, the Constitutional Court stressed that the merits of the referendum question should not be examined in the current proceedings.
 
As the Constitutional Court’s decision upheld the parliamentary resolution, the referendum was held on 2 October 2016, but was invalid due to low turnout.
 
Languages:
 
Hungarian.