a)  Hungary / b)  Constitutional Court / c) / d)  05-12-2016 / e)  22/2016 / f)  On the interpretation of the EU clause / g)  Magyar Közlöny (Official Gazette), 2016/191 / h) .
Keywords of the systematic thesaurus:
Constitutional Justice - Jurisdiction - Types of litigation - Distribution of powers between the EU and member states.
Constitutional Justice - Jurisdiction - The subject of review - Law of the European Union/EU Law - Secondary legislation.
Sources - Hierarchy - Hierarchy as between national and non-national sources - Law of the European Union/EU Law and domestic law - EU secondary law and constitutions.
Keywords of the alphabetical index:
Constitution, identity / Constitutional review / European Union act, ultra vires / Sovereignty.
The Constitutional Court can examine whether the joint exercise of competences with the European Union infringes human dignity, other fundamental rights, the sovereignty of Hungary, or Hungary’s self-identity based on its historical constitution. This decision develops the Court’s fundamental rights-reservation review and ultra vires review (composed of a sovereignty review and review based on constitutional identity).
I. On 22 September 2015 European Union (EU) Council Decision no. 2015/1601 was adopted, which introduced a quota system for the distribution and settlement of asylum seekers and migrants among the Member States.
In December 2015 the ombudsman requested the Constitutional Court to interpret two over the issue of the European Union migrant resettlement system. One of the constitutional provisions in question prohibits collective expulsion and says that foreigners staying in the territory of Hungary may only be expelled on the basis of a lawful decision (Article XIV.1 of the Fundamental Law). The other provision is the so-called EU clause, which allows Hungary, to the extent necessary to exercise the rights and fulfil the obligations set out in the founding treaties of the EU, to exercise some of its competences deriving from the Fundamental Law jointly with other Member States, through the institutions of the EU ().
The ombudsman asked the following four questions:
1. Whether the prohibition of expulsion from Hungary in Article XIV.1 forbids only this kind of action by the Hungarian authorities, or if it also covers actions by Hungarian authorities which they use to promote the prohibited expulsion implemented by other states?
2. Whether under Article E.2, state institutions are obliged to implement EU legislation that conflicts with fundamental rights stipulated by the Fundamental Law? If they are not, which state institution can establish that fact?
3. Whether Article E.2 may restrict the implement-tation of the ultra vires act? If state institutions are not obliged to implement ultra vires EU legislation, which state institution can establish that fact?
4. Whether Article XIV.1 and Article E can be interpreted in a way that they restrict Hungarian state institutions, within the legal framework of the EU, in facilitating the relocation of a large group of foreigners legally staying in one of the Members States without their expressed or implied consent and without personalised and objective criteria applied during their selection?
II. The Constitutional Court in the current decision did not answer question 1, but answered questions 2-4 as follows. The fundamental rights-reservation review is based on Articles E.2 and I.1 of the Fundamental Law. Under Article I.1 the inviolable and inalienable fundamental rights of man shall be respected. It shall be the primary obligation of the State to protect these rights. Having these rules in mind, and the need for cooperation in the EU and the primacy of EU law, the Court stated that it could not renounce the ultima ratio defence of human dignity and other fundamental rights. It argued that as the State is bound by fundamental rights, this binding force of the rights are applicable also to cases when public power is exercised together with the EU institutions or other Member States.
The Court emphasised that there are two main limits for conferred or jointly exercised competencies: they cannot infringe the sovereignty of Hungary (sovereignty review) and the constitutional identity of Hungary (identity review). According to the Court, these follow from the interpretation of the National Avowal of the Fundamental Law and Article E which refers to an "international treaty", such as, for instance Article 4.2 of the Treaty of the European Union.
First, the Court referred to the concept of "state sovereignty" (supreme power, territory and population) which follows from Articles B.1, B.3 and B.4 of the Fundamental Law. The Court held that Article E.2 should not empty Article B of the Fundamental Law and stressed that the exercise of powers (within the EU) may not result in the loss of the ultimate oversight possibility of the people over the public power that is recognised by the Fundamental Law.
Second, the Court based the identity review on Article 4.2 of the Treaty on European Union). It acknowledged that the protection of constitutional identity rests with the Court of Justice of the European Union and is based on continuous cooperation, mutual respect, and equality. In the understanding of the Court, constitutional identity equals the constitutional (self-)identity of Hungary. Its content is to be determined on a case-by-case basis based on the Fundamental Law as a whole and its provision in accordance with Article R.3 of the Fundamental Law, which requires that the inter-pretation of the Fundamental Law shall be in harmony with their purposes, the National Avowal contained therein and the achievements of the historical constitution. Even though the Court held that the constitutional (self-)identity of Hungary does not mean a list of exhaustive enumeration of values, it still mentioned some of them. For example: freedoms, the division of power, the republican form of state, respect of public law autonomies, freedom of religion, legality, parliamentarism, equality before the law, recognition of judicial power, protection of nation-alities that are living with us. According to the decision these equal with modern and universal constitutional values and the achievement of the historical constitution on which the Hungarian legal system rests.
In addition, the Court held that the protection of constitutional (self-)identity may also emerge in connection with areas which shape the citizens’ living conditions, in particular the private sphere of their own responsibility and of political and social security, protected by fundamental rights, and in areas in which the linguistic, historical and cultural involvement of Hungary can be detectable.
The Court further stated that the constitutional (self-) identity of Hungary is a fundamental value that has not been created but only recognised by the Fundamental Law and, therefore, it cannot be renounced by an international treaty. The defence of the constitutional (self-)identity of Hungary is the task of the Constitutional Court as long as Hungary has sovereignty. In its view, it follows from the above mentioned that sovereignty and constitutional identity intersect in many points; therefore the two reviews need to be employed considering one another.
III. Five justices attached concurring opinions, one justice attached a dissenting opinion to the decision.