a)  Hungary / b)  Constitutional Court / c)  Plenary / d)  05-03-2019 / e)  2/2019. (III. 5.) AB / f)  On the interpretation of Article E.2; R.1; XIV.4 and 24.1 of the Constitution / g)  Magyar Közlöny (Official Gazette), 2019/34 / h)  CODICES (Hungarian).
Keywords of the systematic thesaurus:
Constitutional Justice - Jurisdiction - The subject of review - Constitution.
Constitutional Justice - Effects - Effect erga omnes.
Sources - Hierarchy - Hierarchy as between national and non-national sources - Law of the European Union/EU Law and domestic law.
Keywords of the alphabetical index:
Constitutional Court, competence, exclusive / Refugee, status.
The Constitutional Court’s authentic interpretation of the Constitution should be respected by all other organs. The provision of refugee status should not be considered as a constitutional obligation on the part of the Hungarian State.
I. In accordance with Section 38.1 of Act no. CLI of 2011 on the Constitutional Court, the Minister of Justice - in the name of the Government - requested the interpretation of Article E.2 (joint exercise of certain of Hungary’s powers with other Member States through the institutions of the European Union); Article R.1 (the Constitution is the foundation of the legal system); Article XIV.4 (non-entitlement for refugee status on arrival from a safe third country) and Article 24.1 (the Constitutional Court is the principal organ for protecting the Constitution) by the Constitutional Court. The applicant claimed that the constitutional issue of the submission was the question of the exclusive competence of the Constitutional Court over the interpretation of the Constitution. The issue had arisen because the European Commission sent a letter of formal notice concerning Act no. VI of 2018 on amending certain Acts relating to measures to combat illegal immigration and the seventh amendment of the Constitution.
The applicant posed these questions:
1. Can it be concluded from Article R.1 of the Constitution that the Constitution, as the basis of Hungary's legal system, is at the same time the legitimising source of all sources of law - including the law of the European Union according to Article E of the Constitution?
2. Does it follow from Article 24.1 of the Constitution that the Constitutional Court's interpretation of the Constitution shall not be derogated by any interpretation provided by another organ?
3. If the answer to the second question is «yes», how does the Constitutional Court provide a genuine interpretation of the second sentence of Article XIV.4 of the Constitution with regard to the right to asylum, by taking into account the seventh amendment of the Constitution?
II. In answer to the first question, the Constitutional Court held that under Article R.1, the Constitution is the basis of the legal system of Hungary. Article E also forms part of the Constitution and it contains the constitutional basis upon which Hungary participates, as a Member State, in the European Union, and which serves as a constant basis for the enforcement of the European Union's law as internal law, i.e. for its direct applicability. Article E allows Hungary to exercise some of its competences, as a Member State of the European Union, through the institutions of the European Union. The specific competences are determined in an international treaty and the exercising of powers through the institutions of the European Union shall not exceed the necessary extent that stems from the international treaty and will not be aimed at more competence than Hungary otherwise possessed on the basis of the Constitution. The transfer of competence on the basis of Article E.2 of the Constitution was based on the international treaties signed by the Member States. The Member States were the masters of these Founding Treaties; their acts on the national enforcement of these treaties and the frameworks set by their own constitutions will determine the extent of primacy enjoyed by European Union law in a given Member State over the State's own law. Having regard to the application of the primacy of European Union law over Member States' law, the Constitutional Court concluded that the answer to the applicant’s first question was that on the basis of Article R.1, the foundation of the applicability of European Union law in Hungary was Article E.
In answer to the second question, the Constitutional Court noted that in most cases the parallel systems of European Union law and the domestic norms did not cause a constitutional dilemma since the two normative systems were based on a common set of values. However, due to differing standards, the Constitutional Court and the Court of Justice of the European Union could reach different results regarding the conformity of the national norms. It followed from Article 24.1 of the Constitution that the Constitutional Court has the role and duty of determining the interpretation of the constitutional order of Hungary, including its fundamental constitutional system. However, it did not prevent other domestic and international organs, courts or institutions from interpreting the Constitution or the laws of Hungary in the course of their own procedures. Having said that, the Constitutional Court's interpretation of the Constitution (and this applies to respective constitutional interpretation by other constitutional courts in the Member States) was of erga omnes character. All organs or institutions shall respect it in their own procedures as the authentic meaning.
In answer to the third question, the Constitutional Court noted that that the wording «not entitled to» used in the second sentence of Article XIV.4 meant that the right to asylum shall not be regarded as a fundamental individual subjective right in the case of a non-Hungarian citizen who has arrived on Hungarian territory through a country where he or she has not been subject to persecution or in imminent danger of persecution. Nevertheless, such persons did have a claim, protected as a fundamental right, to have their application decided by the competent authority on the basis of a cardinal Act on the fundamental rules on granting asylum, under Article XIV.5 of the Constitution. Due to this claim, protected as a fundamental right, it was the duty of Parliament to lay down in a cardinal Act the fundamental rules on granting asylum. In summary, Article XIV.4 of the Constitution actually set out in the Constitution the fact that in Article XIV.3 Hungary provided constitutional protection for the principle of non-refoulement, however, it referred to regulating in its national law at the level of an Act of Parliament, rather than in the Constitution, the rules which applied to those refugees who were not subject to the principle of non-refoulement.
III. Justice Egon Dienes-Oehm, István Stumpf, Mária Szívós and András Zs. Varga attached a concurring reasoning, while Justice Ágnes Czine, Imre Juhász, Béla Pokol and László Salamon attached a dissenting opinion to the Decision.
Hungarian, English.