Márton SULYOK: On Methodologies, Findings and “Contextual Determinants”

Comments Inspired by some Evidence on Constitutional Courts

In their book titled High Courts in Global Perspective (Evidence, Methodologies and Findings) published in 2021 by University of Virginia Press, the editors provide constitutional and political science scholars the map to a treasure trove of empirical and quantitative sources and findings put together to provide insight (from a birds-eye point of view) into the strengths and weaknesses of research on “specialized constitutional courts […] playing a growing role in the review of both proposed and enacted laws” (p. 1.), or “specifically constructed to review the constitutionality of legislation and ultimately regulate the boundaries of political institutions”. (p.1.) Exchange of ideas on the operation of high courts and desirable reforms to their composition and competences is a dominant discourse in today’s world, especially when it comes to constitutional courts, and this book serves all stops of this discourse.

Nuno Garoupa, the lead editor, is not an unknown “contextual determinant” of American scholarship directed at the global study and understanding of the composition and operation of apex (i.e. high) courts in the national and international environment. His academic footprint is driven by examining judicial power and behavior(alism) – namely activism –, judicial politics, as well as procedural issues like the economic theory of exclusionary rules or voting procedures in terms of constitutional review, or quantitative approaches to constitutional courts in Western Europe. Rebecca D. Gill and Lydia B. Tiede are both professors of political science working with the comparative study of judicial institutions, judicial selection, judicial behavior and decision-making. The combination of their viewpoints and approaches makes the book a valuable resource supporting research directed at understanding the inner workings of and external influences on the judiciary.

In framing my review, I would like to go back to 2011, because it was then – exactly ten years before the publication of this book –, when Garoupa published a paper with Tom Ginsburg (another well-known “contextual determinant” of constitutional law scholarship) on how constitutional courts built their reputation. In this paper, they first argued that such courts that were “specialized”, because they have been created based on the 1920 Kelsenian model, which leads to two consequences – them being wedged between two dimensions: the political and the judicial. Their key argument was that these courts are inevitably political actors (being created by political institutions through political processes) as their actions of norm control (acting as what relevant academic literature calls “negative legislators”) also have political consequences. Moreover, they added that the model’s application in the different countries highly depends on local conditions.

As admitted in its Introduction, High Courts in a Global Perspective was originally intended as a collection of “draft papers, conversations and commentary” compiled in a research project funded by the US National Science Foundation, but it does much more than starts the conversation on high courts in a global perspective. Where possible, the book, its editors and the authors apply on analogies to the legal and constitutional system and doctrine of the United States to provide context for their understanding of the basic tenets of these structures.

Based on the above-mentioned qualities, this volume intends to offer a comprehensive methodological summary and commentary of globally available data on judicial behavior and relevant organizational patterns. It provides detailed insight – through sixteen chapters – into various aspects of the judicial realm such as (i) looking at patterns and indicators of various types of judicial behavior from New Zealand to India, (ii) providing insight into some of the burning questions scholars have thus far ventured to ask and answer in terms of two European (international) apex courts (the ECtHR and the CJEU) in an academic assessment of their success, e.g. by looking at the effect of judgments on national legal systems and the importance of national jurisdictions, or the application and citation of these judgments by (inter)national supreme and constitutional courts.

At times, the top-down, birds-eye perspective on global literature and research efforts directed at the various judicial systems presented in the book and its chapters produces such statements like “existing data neglect important areas of institutional activity entirely”, talking about the absence of specific research into the workings of the EU General Court. Not to argue with the fact that the EU General Court’s activity could be subject to more comprehensive research corresponding to some of the methodological avenues presented by the book, but it should be noted that huge areas of the EU General Court’s institutional activities are adequately dealt with by some contemporary scholars in Europe. This research also delves into questions that are treated by the authors, so one should not forego the conclusion that entire segments of the General Court’s work are neglected by scholarship. Maybe international scholarship (outside of Europe) is what is lacking to a greater extent thereby not informing extrinsic views on the operation of this supranational judicial entity, which can be construed as a problem regarding the goals of the book itself.

Regardless, the book is a well of meticulously thought-through and logically constructed “scholar’s guide” on how best to look at the operation of these courts from a comparative perspective. The rigor with which the editors construct the internal cohesion of the layers of methodological argumentation is exemplary. Hall and Wright argue in California Law Review (2008) that “[l]egal scholars, the mockingbirds of the academy, are great borrowers of scholarly methods. We experiment with the tools of historians, economists, sociologists, literary theorists, moral philosophers, and others, often to great effect. Yet despite these innovative efforts to study legal doctrines and institutions through different lenses, legal scholars have yet to identify their own unique empirical methodology.” In furthering this effort to create a unique empirical methodology, this book can certainly be considered a guiding light.

In addition to all this, the book addresses another challenge in terms of similar research: the lack of adequate information and data for in-depth empirical and quantitative studies. The book offers a well-rounded summary of empirical literature on Eastern Europe (p. 189-192), and sets a priority for future research in Europe: to address “data availability and publicity”. From my time working with the EU Fundamental Rights Agency between 2015-2020 as a member of the Management Board, I have first-hand experience on how absence in terms of vital data may disrupt otherwise quintessential work in monitoring best practices in that field, but we can imagine how this is reflected in terms of the intimate workings of the judiciary, whether we focus on “judicial behavioralism” or “content analysis”, as explained and promoted by Hall and Wright in their work cited above.

Hall and Wright this method of “content analysis” best fitting to projects that look into „(1) the bare outcomes of legal disputes, (2) the legal principles one can extrapolate from those outcomes, and (3) the facts and reasons that contribute to those outcomes and principles.” They also refer to Barry Friedman’s statement in his piece on Taking Law Seriously that „it is almost impossible to study law in a meaningful way without some attention to the [content of] opinions that contain these justifications.”

With this in mind, I would like to mention that not too long ago the creation of a database has been put in motion – spearheaded by the Hungarian Constitutional Court – called ECCN, European Constitutional Communication Network. (Expected to be operational by mid-2022.) Methodologically speaking, ECCN focuses on uncovering patterns and causal links across and between different national constitutional jurisdictions in Central and Eastern Europe. Its purpose is to enable a better understanding of local, national, regional specificities (previously dubbed as “contextual determinants”). In doing so, the database pools cases primarily from the constitutional jurisprudence of about a dozen Central and Eastern European EU countries that are in the center of public and therefore academic attention. In this effort, ECCN intends to enable the user to uncover and understand patterns of reasoning, thereby facilitating comparative constitutional research and application of law with such mindset. (So far, there is only one similar initiative known on the European level, the so-called CODICES, which is operated by the Council of Europe, casting a much narrower net, due to the limited scope of data available and the larger number of Member States concerned.)

In addition, ECCN also intends to open a window into any eventual “contextual determinants” of the operation of the high courts issuing the decisions selected and registered, the database may also be useful in pointing to traces of “constitutional convergence”, a theory thoroughly analyzed by Dixon and Posner. They argued in 2011 that while some find that the constitutional law of states is and should inherently be independent of the constitutional law of other states, there are concurrent opinions which put forth that “constitutional law of one state inevitably influences, and should influence, constitutional law in other states.”

I think that this must then be true to “applied constitutional law” as well, and this is what the ECCN projects intends to shed light on by providing a tool of learning for European courts in the region, enabling them to engage in judicial dialogue through their cases and their reasoning. Through such an effort, maybe some regional commonalities might emerge as well (beyond certain local conditions and national specificities) that will point to the fact that when certain constitutional law problems may be similar or the same in certain states, then it stands to reason that correlation between their constitutional legal solutions is to be expected as well. And this is particularly true if they are closer together due to a shared or similar historical past, or economic and social – contextual – determinants.

This brings me to my second point regarding the book, being that Garoupa, Hill and Tiede also call attention to the importance of having in-depth knowledge on regional and national specificities when analyzing high courts. In a very important part of the book, authors Bagashka and Garoupa talk about Constitutional (and Supreme) Courts in Europe (pp. 186-199). They react to current trends in relevant literature disserting on the politicization of the institutions of what I call “constitutional justice” by admitting that factual conclusions can only be drawn in this context in command of a “deep understanding of contextual determinants.” Most possibly the “local conditions” argument already elaborated by Ginsburg and Garoupa (see: above) reverberates in this thought, which I characterized above as regional and national specificities. But even if this is not the case, to my mind, it is indubitably true that without intimate knowledge of the internal workings of the legal, political and constitutional arrangements and structures that support and sustain these judicial institutions (i.e. the determinants of the context) that are specific to the country (and sometimes the region) no conclusive findings can be produced.

Unfortunately, as it can be seen from many current trends in mainstream constitutional discourse, the time that would be necessary to gain an actually deep understanding of these historical, cultural or even political and constitutional – contextual – determinants (i.e. the European concepts of constitutional identity) of certain legal systems is something of a luxury that seems not to be afforded to and by many. I can only hope that methodologically sound projects like the ECCN that was presented above will help avoid the further increase of such tendencies and push critics not just to “talk the talk”, but also to “walk the walk”.


Márton SULYOK, lawyer (PhD in law and political sciences), legal translator. As a graduate of the University of Szeged, he has been working for his alma mater in different academic and management positions since 2007. He is currently a Senior Lecturer in Constitutional Law and Human Rights at the Institute of Public Law of the Faculty of Law and Political Sciences (Szeged), and the head of the Public Law Center at MCC (Mathias Corvinus Collegium) in Budapest. He previously worked for the Ministry of Justice in Budapest and has been an Alternate Member on the Management Board of the Fundamental Rights Agency of the European Union (2015-2020). E-mail: msulyok@mcc.hu

Márton SULYOK: Is This Loyalty In Fact Disloyalty?

On the Remarks of the German Government to the Commission after PSPP

If this was a eulogy, I would begin by saying that “it is with great sadness that we now need to face an ugly truth”, and the situation is kind of the same. Just coming to my senses after the many tumultuous events in 2021 European constitutional law, I noticed an eye-opening article on Verfassungsblog written by our colleagues, Karl-E. Hain and Frederik Ferreau, who talk about the German government walking on what they characterize as “tricky terrain”.

In the aftermath of the now infamous May 2020 PSPP decision, the general sentiment of European constitutional discourse towards the Federal Constitutional Court (GFCC) has significantly turned for the worse, casting shadows of suspicion on the judicial body for laying down the legal foundations nothing else than the beginning of Dexit. No matter how unrealistic these undertones continue to be, in this climate, the natural counteract was announced by the EU Commission in the form of an infringement proceedings, which was then closed against Germany on 2 December 2021, as Christmas came early for the newly formed German executive after the shuffle resulting from the most recent elections.

As one of their first acts as Germany’s newly inaugurated executive, the Government has sent a response to the formal notice sent by the Commission, which has rightly been described as “verfassungsrechtlich mindestens bedenklich”, which is German for ‘at least questionable in a constitutional legal sense’. The exact portion of the response they refer to roughly translates into this: The Federal Government has undertaken, “with express reference to its duty to cooperate loyally anchored in the treaties,” among other things, to “use all means at its disposal in order to actively avoid a repetition of an ultra-vires finding in the future”.

Prima facie, there are many problems with this executive statement. First off, and this is rightly acknowledged by the VerfB authors as well, a grave danger to judicial independence lies within this statement. Judicial independence is, however, often characterized as a pivotal element of the rule of law and therefore is placed on the forefront of current European debates with such countries that are thought to fall behind on the enforcement of European values on this front.

The second thing is the surprising tone of the quote talking about “actively avoiding the repetition of an ultra-vires finding” as if such a declaration by a constitutional court was a dangerous viral infection or a blossoming pandemic (by a less tasteful turn of phrase: an “ultra virus”, if you will…) The quick spread of this German “ultra virus” was envisioned by many in legal academia after 5 May 2020, but experience tells us that not many constitutional courts have “fallen in line” with this approach.

Those wo did, have been extensively criticized with relevant in-depth explanations of judicial statements that pointed to an abuse of competences. The Hungarian Constitutional Court – most often scolded by many for blindly following the GFCC in general but also in terms of sovereignty and identity control – decided in a very controversial decision reached on 10 December 2021, that the judgment of the CJEU on certain migration related issues (C-808/18) needs to be enforced without question. So not all political expectations in terms of constitutional courts are “safe bets”, when it comes reviewing the relationship of EU law and the national constitution.

Thirdly, a different narrative of the principle of loyalty emerges from the above quote, one that was so far unseen in recent European constitutional discourse. To me, it represents an unwavering conviction wrapped into the duty of loyalty under the Treaties, which triggered an executive instinct to limit the competences of an independent, autonomous and quite vocal constitutional organ created to defend the constitution and the national legal order. Were it not in Germany, where our story unfolds, the aftermath would potentially have been much louder in Europe. However, as the cited VerfB authors point out, German media was not quick to pick up on this as far as reporting and public broadcasting goes. Historical experience dictates that similar efforts to curtail the powers of a constitutional court have already been met with unforeseen uproar at the time of the adoption of the new constitution for Hungary in 2011-2012, but no European alarm bells toll as of yet for Germany – despite the welcome ones that have been duly rang by Hain and Ferreau on Verfassungsblog.

A familiar sentence pops up in their article when they talk about the core value of judicial independence: “This basic principle of our constitutional order must not be touched.” Many things have been said and written down on this issue already in the context of current Polish and Hungarian debates on the rule of law. Regardless whether we can completely agree with the arguments of either of the sides, what might already be common knowledge among these may be the opinion taken by the Polish Constitutional Tribunal (PCT) in response to interim measures imposed by the CJEU regarding the operation and composition of their Disciplinary Chambers in infringement proceedings against Poland. In that case, decided by the PCT in July 2021, it was put forth that the principle of loyalty as set in stone by the Treaties is incompatible with many specific provisions of the Polish Constitution and the institutions and branches of power created and protected by it.

In this German case, surprisingly however, this minute detail of “constitutional tissue” seemingly did not bother the executive at all, and they calmly take aim at the constitutional judiciary to put the Commission at ease by making political promises.

If nothing else, it has the impression of a chilling effect on constitutional adjudication in the context of integration and intends to put the GFCC “in its place”, especially in light of the fact that this proclamation contributed to the closure of the infringement proceedings against the country. (It is not my place to say whether the change in the leadership of the GFCC contributed to the birth of such bolder executive statement regarding the Court, as I do not have sufficiently intimate knowledge of the domestic workings of constitutional dialogue in Germany, but this is something that might one time come to light.)

On a pessimistically dystopian note, the above events might in reality be foreshadows of a scenario where if the German government would like “put their money where their mouth is”, they would need to initiate and promote legislation curtailing the powers and competences of their own constitutional court, an unquestionable symbol of German legal and constitutional culture, and an organ that may very well act as a guardian of the floodgates of EU integration and of the national constitution against executive overreach when it comes to legislation. Another problem with this statement is that it gives the impression that maintaining national sovereignty no longer seems a key issue for the German executive. “Using all means to actively avoid an ultra vires finding” might just as well mean that Germany no longer intends question anything as far as EU law goes and basically switches off an emergency break put in place for exigent circumstances, thereby dissolving its sovereign powers in the integration. This is no longer sovereignty transfer, no longer sovereignty pooling. This places no further emphasis on essential state functions and fundamental constitutional structures inherent to constitutional identity. At the very least this signals shortsightedness. In a different context, one might wonder, if a different German government would have chosen their words more carefully.

If – focusing on loyalty – we try and apply the allegory of marriage to describe the European integration and the internal dynamics of a Member State’s separation of powers and checks and balances, then two arguments can be made.

(i) European integration is (unfortunately) not a marriage without the possibility of divorce, but it is built on loyal cooperation between the Union and its Member States, despite the different interpretations of the principle that might apply;

(ii) The branches of public power within the Member States (fortunately) live in such a marriage: one without the possibility of divorce.

Turning back to the title of this post under this second angle, I asked: “Is this loyalty in fact disloyalty?” However, I could ask an additional question as well: “If yes, then against whom?”

Ideally, the two spouses (herein the Government and the Constitutional Court) should do everything in their power to engage in meaningful dialogue on the basis of – but at least not completely disregarding – this inherent loyalty (fine-tuned by checks and balances) to try and resolve their problems in lieu of solidifying fault-lines in and by their interactions. In borrowing from Garner, Lindahl and Tuori, I would like to add that these fault-lines are indicators that emerge “between what a [legal] collective can order – the orderable – and what it cannot order – the unorderable”.

In any case, such an executive reference – even if its veiled our turns out to be unfulfilled – on the principle of loyalty can indeed be considered in itself as a declaration of disloyalty to the internal equilibrium of the checks and balances working within Germany, creating fault-lines. In other words, without prejudice to whatever obligations might fall on Germany as a Member State arising out of the principle of loyalty in the Treaties, it shall never – not even by way of veiled references of executive overreach – disregard its duty of (loyalty construed as) fidelity to upholding the rule of law and the internal balance of the national legal order. This – logically – can only be maintained, if no constitutional actors are stripped of their core competences in watching over European integration and the jointly exercised competences. Constitutional courts are well within their rights to set (counter)limits and boundaries, and prevent the creation of fault-lines, and they shall not be prevented from doing so.

To use a familiar turn of phrase regarding the German case: Solange (as long as) this is not the case, serious doubts are cast on any relevant actions of the executive in light of the deep-seeded constitutional responsibility of Germany for the EU integration, called Integrationsverantwortung, allowing its national bodies, and first and foremost the GFCC to set constitutional counter-limits to it in order to realize the Integrationsprogramm.

Since I mentioned Solange, it is important to bear in mind the fact that by this statement, the German Government seems not only to go against the rationale of the PSPP judgment, but also the entire well-established German constitutional jurisprudence that provided the direct footing of its constitutional arguments, dating back actually to the 1970s, when Solange I was born.

Hain and Ferreau address this issue by alluding to the government’s control over the exercise of its responsibility for integration (developed in their 2009 Lissabon-Urteil, BVerfGE 123, 267, commonly referred to as Integrationsverantwortung – and based on which legislative commitments have also been made in that same year.

In this angle, it is interesting but not surprising, that when e.g. in Hungary the same approach was taken at the time when the Constitutional Court (HCC) abolished the Interim Measures of the Fundamental Law, and the constitutional legislator decided to put most of the annulled provisions back into the constitution by amendment contrary to the HCC’s ruling, at this moment everyone in Europe cried the death of the rule of law as one.

Now, I appreciate that no actual laws have yet been “put in motion” in Germany following up on this executive commitment (so this way the Hungarian analogy is only partially applicable), but it would be interesting to see how the story unfolds and what tone will the eventual, if any, (international) critics use in commenting on developments.

Working toward reaching the conclusions, one more remark: I am well aware that it is chic these days to act as if – along with national sovereignty and national constitutions – national constitutional courts were outdated constructs. What’s more, they are dinosaurs that need to be chased to the edge of extinction, because they do not fulfil any meaningful purpose and are seen to obstruct the effet utile of EU law. However, there are indeed lines in the sand that should not be crossed by anyone who feels a constitutional responsibility to work toward maintaining the internal balance of the integration and of domestic power structures between constitutional organs.

This German case is just as much similar to an ELE (extinction-level event) as the crusade that has been initiated by the Romanian Court of Cassation against the Romanian Constitutional Court. This latter case asked the CJEU to take into consideration whether it should be allowed that an ordinary national court disregard the otherwise erga omnes binding decision of a national constitutional court if it considers that the effet utile of EU law so requires, against established national regulations and practices. In their judgment handed down on 21 December 2021, in joined cases C‑357/19, C‑379/19, C‑547/19, C‑811/19 et C‑840/19, they replied to this question in the affirmative – presumably subjecting the decision to further scrutiny in the months to come.

Without going into the specifics of the case, which is not my goal here, in the abstract, the far-reaching ripple-effects of opening such a line of argumentation under the guise of primacy of EU law forces to ask ourselves some hard questions in terms of our (dis)loyalty to the settled constitutional arrangements and (institutional) structures of our rule-of-law democracies.

  • Are constitutional courts really carnivorous dinosaurs, that need to be kept on a very tight leash, if not driven to extinction?
  • Are developments in this general spirit the first markers of overarching European political and judicial movements to abolish the inherent dualistic structure of apex courts in all countries that have adopted such a model over time and to create a monolithic system spearheaded by Supreme Courts that might or might not have powers of constitutional adjudication?
  • Does the constitutionally defined “erga omnes” (i.e. binding on everyone) effect of constitutional court decisions really no longer subsume ordinary, lower courts under “everyone” in terms of constitutional review and interpretation?

As you can see, there are more questions raised than answers that can be provided. Among them, the most important: If we keep this up, what else remains that we can be (dis)loyal to?


Márton SULYOK, lawyer (PhD in law and political sciences), legal translator. As a graduate of the University of Szeged, he has been working for his alma mater in different academic and management positions since 2007. He is currently a Senior Lecturer in Constitutional Law and Human Rights at the Institute of Public Law of the Faculty of Law and Political Sciences (Szeged), and the head of the Public Law Center at MCC (Mathias Corvinus Collegium) in Budapest. He previously worked for the Ministry of Justice in Budapest and has been an Alternate Member on the Management Board of the Fundamental Rights Agency of the European Union (2015-2020). E-mail: msulyok@mcc.hu

Márton CSAPODI: A “CT scan” with unexpected results – The Xero Flor v Poland judgment of the ECtHR

An interesting conflict arose between the European Court of Human Rights and the Polish Constitutional Tribunal (CT). In May, after scanning the CT, the ECtHR ruled that a judge of the CT had previously been unlawfully elected and that the Polish company (Xero Flor) that had brought the case before the ECtHR, after its constitutional complaint was refused by the CT, was therefore deprived of its right to have its case heard by a court established by law, as set out in Art. 6 of the Convention.[1] In response, the CT ruled that the Convention is contrary to the Polish Constitution if interpreted by the ECtHR in a way that results in the review of the election process of the CT’s judges.[2] The status and composition of the CT is a delicate issue in Poland, with a long-running constitutional dispute underlying these conflicting decisions. The case resembles to the debate between the Polish CT and the Court of Justice of the European Union.

The 2015-2016 constitutional crisis

In Poland, when the Law and Justice (PiS) party defeated the Civic Platform (PO) in both the presidential and parliamentary elections in 2015, a unique conflict between the new government and CT emerged. The election of the members of the CT was the subject of a lengthy stand-off that shook the entire constitutional system and involved all branches of power. Although the dispute over the election of the CT’s judges was finally partially resolved[3] in 2016, the constitutional conflicts continued. The dispute is not completely settled on the European stage: the issue of the CT’s status is raised in EU rule of law reports or before the ECtHR.[4] The European Parliament, for example, has gone so far as to call the CT illegitimate, putting it in quotation marks and declaring that it does not have a competence to interpret the Constitution.[5] However, this EP resolution adopted by a very large majority[6] is by its nature not binding, and is rather just a blatant political communiqué than anything to be regarded as legally relevant.[7]

It is interesting that the size and constitutional status of the Polish CT has not changed (PiS did not have a two-thirds majority), yet the maneuvers of the PiS government in power since 2015 are commonly referred to as court-packing measures.[8] The problem, however, started during the reign of the Civic Platform, which was in power until 2015: before the election defeat, they decided to insert a clause in the law on the CT, allowing them to elect new judges to replace all the judges whose terms expired in 2015 as soon as the new law entered into force. This way, instead of three judges, they elected five, but President Andrzej Duda, who took office in the meantime, considered this method to be unconstitutional and did not appoint the elected judges, who were then not allowed to sit on the court. The CT also declared unconstitutional the law on which the early election of the judges was based, but ruled that the appointment of three out of five judges was legal.[9] In the meantime, however, PiS won the parliamentary elections and did not hesitate to appoint five completely new judges and they were appointed by the President. The President of the CT, however, with reference to the CT’s previous decision, only allowed two of them to begin their mandate. An interesting situation arose: in addition to the ‘ordinary’ justices, there were justices elected by the Seym but not appointed by the president, and then there were justices elected by the Seym and appointed by the president, but not allowed to adjudicate according to the decision of the CT’s president. The Sejm tried to legally force the CT to accept the new judges, but the CT resisted, even at the cost of exceeding its powers. In the end, the expiration of the term of office of the CT President and the appointment of a new CT President by Duda decided the conflict in favor of PiS: all the judges elected by PiS were now allowed to join the CT.[10] Therefore, from the court-packing plans of the Civic Platform and PiS, the latter was a more successful attempt.

What could be the consequences of the CT’s crisis from a fundamental rights perspective?

A Polish company (Xero Flor) took its case to the CT, where its constitutional complaint was rejected.[11] They then turned to the ECtHR, claiming that their fundamental right under the Convention had been violated in the CT’s proceedings. They argued that the appointment of the judges of the CT (with only one of them still on the court) was unlawful and that their right to a fair trial under Article 6 ECHR had been violated, as the CT is not an independent and impartial tribunal established by law. The ECtHR decided in favor of the petitioner and held that the appointment of one of the judges of the CT was unlawful and that the petitioner’s right to a fair trial before an independent and impartial tribunal established by law, as enshrined in Article 6 ECHR, was therefore indeed violated.[12] Applying the test developed in Guðmundur Andri Ástráðsson v. Iceland,[13] the ECtHR concluded that the infringement in the election process of the judges reached such a serious level that it amounted to a substantive violation of the right granted under Article 6.[14]

How could the ECtHR’s decision be implemented?

As an individual measure, the ECtHR ordered Poland to pay the costs incurred by the petitioner in connection with the case. No general measure was set out in the judgment. If there was an intention to take a general measure, it could be to exclude the CT’s judge involved from sitting on the court, at least in cases where the CT is called upon to rule on individual constitutional complaints. This would not be necessary in the case of abstract constitutional review proceedings of the CT, although it cannot be excluded that the legality of the decisions of the CT in such proceedings could be questioned by some in the wake of the ECtHR ruling.[15]

Following the Xero Flor case, it became clear that there is no intention on the Polish side to align the functioning of the CT with the ECtHR ruling. This would discredit the CT’s operation retroactively to 2015, which would damage the authority of the CT and also the government’s political agenda, including its by now infamous judicial reforms. On the other hand, opposition politicians and lawyers critical of the government would of course support the ECtHR’s decision not to allow the judge involved in the case to sit on the panel, and in the event of a change of government, they would seek to restore the pre-2015 conditions not only for the CT but also for most judicial reforms.[16]

Twin decisions K3/21 and K6/21

It soon became clear that the government and the CT would prefer to challenge the ECtHR’s decision. The situation is similar to the conflict between the Polish government, the CT and the Court of Justice of the European Union. Just as the Prime Minister had asked the CT to rule on the relationship between the Constitution and EU law in the light of the CJEU’s findings in a preliminary ruling procedure, in this case the Minister of Justice, in his capacity as Prosecutor General, also turned to the CT to rule on the compatibility of the ECHR with the Constitution. At stake in both cases is the authority of the CT, i.e. the effective enforcement of its decisions within the Polish legal system. While the CJEU decision would allow ordinary courts to disapply the CT’s decisions (for example by allowing the application of norms annulled by the CT) by applying EU law,[17] the ECtHR judgment discredits the CT with regard to individual constitutional complaints.

The judgment on the relationship between EU law and the Constitution received a lot of media coverage, sometimes accusing the CT of indirectly pushing Poland towards leaving the EU by declaring some articles of the TEU unconstitutional. Although the CT did indeed seem to rule the Treaty unconstitutional, it used a language reminiscent of the German Bundesverfassungsgericht’s Solange rulings. The CT ruled that certain articles of the Treaty are unconstitutional insofar as certain conditions are met.[18] The existence of these conditions is subject to the practice and decisions of the CJEU, so the decision does not fundamentally attack the Treaty but rather the CJEU’s expansive jurisprudence. The judgment has no direct – let alone tragic – consequences, but it is rather a pre-emptive strike anticipating the CJEU’s future decisions.[19]

A judgment deceptively similar to this one has been published by the CT regarding the relationship between the ECHR and the Constitution. It held that if the Strasbourg judges interpreted Article 6 of the ECHR as including the Constitutional Tribunal within its scope, or as allowing the ECtHR to review the legality of the election of constitutional judges, the ECHR is contrary to the Polish Constitution.[20] So the Convention is contrary to the Constitution of Poland insofar as the ECtHR interprets it so. With this, the CT has ruled out any internal general measure as a possible consequence of the ECtHR’s decision. It seems that the Polish CT does not wish to tolerate its own internal authority being undermined by international courts.

The ECtHR did not treat the Polish Constitutional Tribunal gently even after the Xero Flor case and interestingly the Polish government did not ask for the cases (Xero Flor, Broda and Bojara, Reczkowicz and Dolinska-Ficek and Ozimek) to be referred to the Grand Chamber.[21] Instead, the CT was left to decide on the issue, and it stood its ground. It could not have done otherwise, because then it would have inevitably been rendered weightless in the internal and international judicial system. But that might not make the ECtHR back down, so anyone whose constitutional complaint is rejected by the CT can turn to Strasbourg with high hopes.

In this case, the ECtHR did not merely apply the Convention, but interpreted domestic constitutional norms in order to give effect to Article 6. Deciding on the positive or procedural legality of domestic legal acts is a task that is usually attributed to domestic high courts. Apparently, the ECtHR is ready to enter the field of domestic constitutional adjudication in cases related to the independence of the judiciary and to open a new arena in Strasbourg, where disagreements of mainly political nature can be decided by judges.

[1] Xero Flor w Polsce sp. z o.o. v. Poland, Judgment of 7 May 2021, no. 4907/18. §6
[2] Judgment Ref. No. K 6/21 https://trybunal.gov.pl/en/hearings/judgments/art/11709-art-6-ust-1-zd-1-konwencji-o-ochronie-praw-czlowieka-i-podstawowych-wolnosci-w-zakresie-w-jakim-pojeciem-sad-obejmuje-trybunal-konstytucyjny
[3] It was partially resolved, meaning that on the question of mandates the CT is not conflicted anymore with the government or the Seym – but it is since then in conflict with other courts (domestic and European).
[4] See e.g. European Commission: Commission Staff Working Document – 2020 Rule of Law Report Country Chapter on the rule of law situation in Poland. Brussels, 30.9.2020. [SWD(2020) 320 final] and Commission Staff Working Document – 2021 Rule of Law Report Country Chapter on the rule of law situation in Poland. Brussels, 20.7.2021 [SWD(2021) 722 final]. Alongside the Xero Flor case, see Reczkowicz v. Poland, Judgment of 22 July 2021, no. 43447/19.
[5] https://www.europarl.europa.eu/doceo/document/TA-9-2021-0439_EN.html
[6] 502 MEP’s voted for the resolution, 153 voted against and 16 abstained.
[7] https://precedens.mandiner.hu/cikk/20211022_az_europai_parlament_kimutatta_a_foga_feherjet
[8] See e.g. Bugaric, Bojan; Tushnet, Mark: Court-Packing, Judicial Independence, and Populism: Why Poland and the United States Are Different, VerfBlog, 2020/7/11, https://verfassungsblog.de/court-packing-judicial-independence-and-populism/; Kustra, Aleksandra: Kryzys konstytucyjny w Polsce. Od planu upakowania sądu (court-packing) do negowania orzeczeń Trybunału Konstytucyjnego. Toruńskie Studia Polsko-Włoskie. 2016/12/16, https://bit.ly/31oUHUt; Sweeney; Richard J.: Constitutional conflicts in the European Union: Court packing in Poland versus the United States. Economics and Business Review 2018/4. p. 4
[9] Interestingly, the revision of this law was initiated by PiS, but their motion was withdrawn, so the CT could not have continued the procedure if the MPs of the Civic Platform had not submitted a motion (which had the same wording as the PiS motion) for revision of the law they earlier adopted.
[10] For detailed analysis of the 2015-2016 constitutional crisis in Poland see e.g. Muszyński, Mariusz: Legal analysis of the election process of the judges of the Constitutional Tribunal in the autumn of 2015. Iustum Aequum Salutare 2017/1.; Zubik, Marek: A.D. 2015/2016. Anni horribili of the Constitutional Tribunal in Poland. Przegląd Konstytucyjny 2018/2.; Csapodi, Márton: Közjogi állóháború – A 2015-2016-os alkotmánybírósági válság Lengyelországban. In: Kurunczi, Gábor; Varga, Ádám; Pogácsás, Anett (eds.): Vis unita Fortior. Válogatott tanulmányok joghallgatók tollából. Pázmány Press, Budapest, 2021. https://jak.ppke.hu/uploads/articles/271/file/TehetsegPONT_9_2021.pdf; Czarny, Piotr: Viták a lengyel Alkotmánybíróságról – (Az alkotmányjogi problémák rövid összefoglalása). Parlamenti Szemle 2017/2. p. 131-147. https://parlamentiszemle.hu/wp-content/uploads/2018/02/parlamentiszemle-piotr-czarny.pdf; Sadurski, Wojciech: Poland’s Constitutional Breakdown. Oxford University Press, New York, 2019.; Banaszak, Bogusław: Constitutional Tribunal of Poland: changes in the appointment of judges (legal analysis). Website of the Constitutional Court of Moldova, 2016/02/16, https://www.constcourt.md/libview.php?l=en&idc=9&id=741&t=/Media/Publications/Constitutional-Tribunal-of-Poland-changes-in-the-appointment-of-judges-legal-analysis
[11] Admissibility requirements were found unfulfilled.
[12] Xero Flor w Polsce sp. z o.o. v. Polska, Judgment of 7 May 2021, no. 4907/18. https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-210065%22]}
[13] Guðmundur Andri Ástráðsson v. Iceland of 1 December 2020, No. 26374/18. https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-206582%22]}
[14] Grabowska-Moroz, Barbara: Strasbourg court entered the rule of law battlefield – Xero Flor v Poland, Strasbourg Observer, 2021/09/15, https://strasbourgobservers.com/2021/09/15/strasbourg-court-entered-the-rule-of-law-battlefield-xero-flor-v-poland/
[15]Szwed, Marcin: What Should and What Will Happen After Xero Flor: The judgement of the ECtHR on the composition of the Polish Constitutional Tribunal, VerfBlog, 2021/5/09, https://verfassungsblog.de/what-should-and-what-will-happen-after-xero-flor/
[16] See e.g. Sadurski, Wojciech; Dalkilic, Evin; Steinbeis, Maximilian: What happens after the Polish Elections?: An Interview with Wojciech Sadurski, VerfBlog, 2019/8/18, https://bit.ly/3qmWEZm Interview made before the 2019 parliamentary elections. Sadurski, Wojciech: The Disciplinary Chamber May Go – but the Rotten System will Stay, VerfBlog, 2021/8/11, https://verfassungsblog.de/the-disciplinary-chamber-may-go-but-the-rotten-system-will-stay/
[17] CJEU Judgment C-824/18 A.B. and others (Nomination des juges à la Cour suprême – Recours) [ECLI:EU:C:2021:153] Para 150 „[…] the principle of primacy of EU law must be interpreted as requiring the referring court to disapply the amendments at issue, whether they are of a legislative or constitutional origin [emphasis added], and, consequently, to continue to assume the jurisdiction previously vested in it to hear disputes referred to it before those amendments were made.” It should be added that the statutory provision providing the base for the„jurisdiction previously vested in” the Supreme Administrative Court was repealed by the Constitutional Tribunal.
[18] Judgment Ref. No. K 3/21 https://trybunal.gov.pl/en/hearings/judgments/art/11662-ocena-zgodnosci-z-konstytucja-rp-wybranych-przepisow-traktatu-o-unii-europejskiej
[19]Csapodi, Márton: Kiugrik-e a nyúl a bokorból? A lengyel alkotmánybíróság és az Európai Bíróság viszálya. Országút 2021/23. https://orszagut.com/kozelet/kiugrik-e-a-nyul-a-bokorbol-2080
[20] Judgment Ref. No. K 6/21. https://trybunal.gov.pl/en/hearings/judgments/art/11709-art-6-ust-1-zd-1-konwencji-o-ochronie-praw-czlowieka-i-podstawowych-wolnosci-w-zakresie-w-jakim-pojeciem-sad-obejmuje-trybunal-konstytucyjny
[21] They did in Reczkowicz, but then withdrew the request. See Garner, Oliver; Lawson, Rick: On A Road to Nowhere: The Polish Constitutional Tribunal assesses the European Convention on Human Rights, VerfBlog, 2021/11/23, https://verfassungsblog.de/on-a-road-to-nowhere/


Márton Csapodi is a fifth year law student at Pázmány Péter Catholic University Faculty of Law and Political Sciences and is currently member of the MCC Center for Constitutional Politics. He completed two semesters at the Faculty of Law and Administration of the Jagiellonian University, Poland with Erasmus+ studies. He received National Higher Education Scholarship in 2019 and 2020. He also studied for two years at the MCC School of International Relations.

Norbert TRIBL: Game of thrones? Is winter really coming?

Interview with the Presidents of the Supreme Court (Kúria) and the Constitutional Court of Hungary on the relationship between the apex courts of the Member States and the CJEU

I wrote a few weeks ago about Advocate General Bobek’s position that, under certain conditions, the ordinary courts of the Member States must disregard the decision of the Constitutional Court of the Member States and ensure that the provisions of the European law is upheld. On April 30, the President of the Hungarian Constitutional Court, Tamás Sulyok, and the President of the Kúria, András Varga Zs. gave a joint interview on the issue.

The central issue in the debate was the approach taken from the Advocate General’s position, which has not yet been adopted by the CJEU, that European Union law takes absolute primacy over the national law of the Member States. In this connection, Tamás Sulyok reminded that 28 sui generis legal systems must cooperate in the European space: the legal systems of the 27 member states and the EU itself. The CJEU has established the principle of primacy in its former case law, according to which EU law takes precedence over national law. However, the President of the Constitutional Court warned that this priority of application could not imply hegemony in any way, it cannot imply absolute supremacy, that is, there are constitutional – member state – rules against which the primacy of EU law cannot arise. This is indicated, inter alia, in Article 4 (2) TEU. According to Tamás Sulyok, the German Federal Constitutional Court’s line of reasoning, according to which the responsibility for integration is the joint responsibility of the Member States and the European Union, is decisive and to be followed position on the issue. The president stated that the responsibility for integration is also the joint responsibility of the supreme and constitutional courts of the Member States and of the CJEU, and if the responsibility is shared, the means must also be shared. According to him, this responsibility for integration is what creates the right and obligation for the constitutional courts of the Member States to examine the constitutional powers on which the joint exercise of competences by the European Union and the Member States is based.

Regarding the Advocate General’s position and its possible consequences, the President of the Kúria explained that the ordinary courts of the Member States shall recognize where the application of EU law might be necessary. In case any doubt arises regarding the need for application of EU law, ordinary courts shall turn to the CJEU. At the same time, according to András Zs. Varga, there is a consensus among the constitutional courts of the Member States that this priority cannot cover all areas, and national law and national constitutional rules also have their own place and function. According to the President, the question is that in a concrete situation who is entitled to decide whether national law or European law should be applied? He described the situation as a “game of thrones”, the resolution of which is one of the most important issues affecting the European legal order.

According to András Zs. Varga, the situation arising from the position of the Advocate General would be practically incomprehensible in the case of Hungary, as one of the defining powers of the Hungarian Constitutional Court is a real constitutional complaint aimed at annulling court decisions in conflict with the Fundamental Law. Thus, a judicial decision which would be contrary to the decision of the Constitutional Court – and consequently to the Fundamental Law – would be obliged to be annulled by the Constitutional Court.

During the interview, the participants discussed the relationship between the Kúria and the Hungarian Constitutional Court and their function. Both Presidents stressed that the two institutions have a good relationship with each other, bearing in mind that their constitutional functions are different: the Constitutional Court can only have the final word on matters of constitutional relevance, while the Kúria has the final word in general matters. (It should be noted that Advocate General Bobek’s position on the application of EU law does not distinguish between the ordinary courts of the Member States and the constitutional courts according to their function and their role in the constitutional order.)

Regarding the growing prevalence of international judicial forums, Tamás Sulyok explained that international courts do not implement political aspirations, and the constitutional courts of the Member States are not under political influence. However, we must see that in the European legal area, 27 + 1 legal systems must coexist, which necessarily gives rise to conflicts due to the differences among the systems. The President of the Constitutional Court quoted former German Constitutional Judge Ferdinand Kirchhof as saying that the European courts and the constitutional courts of the Member States should jointly implement the European legal community within the limits and powers provided for in the Treaties. In this connection, Tamás Sulyok highlighted that there is a very important emphasis on the fact that the CJEU’s power to interpret Treaties cannot constitute a hegemony of interpretation. The final word in interpretations of the Treaties is usually given by the CJEU, but the constitutional courts of the Member States cannot be deprived of the right to examine Member States ‘powers of joint exercise or EU acts based on them for compliance with Member States’ constitutional requirements. According to the President of the Hungarian Constitutional Court, the integration responsibility of the constitutional courts of the Member States is embodied in this examination, among other things: these bodies are also responsible for the integration process, similarly to the CJEU. The responsibility for integration is two-sided: the responsibility of the constitutional courts lies in ensuring that the Union’s institutions, including the CJEU itself, do not go beyond the Treaties, while the responsibility of integration institutions lies in keeping Member States within the framework of the Treaties. The integration process must therefore be guarded from two sides.

András Zs. Varga approached and emphasized the issue from the side of sovereignty: law and sovereignty are inextricably linked, only rules of conduct based on sovereignty can have enforceable, binding force, and the EU has no sovereignty. Consequently, the binding force of EU law is not guaranteed by its own sovereignty but by the joint sovereignty of the Member States. According to the President of the Kúria, the problem can be solved relatively easily in the case of Hungary, as the Fundamental Law itself states that it is the basis of the legal system, and the FL itself stipulates that EU law prevails as Hungarian law. The Constitutional Court had previously taken a similar position when it ruled that EU law is binding under the Hungarian Constitution. According to the President of the Kúria, since the Hungarian Fundamental Law guarantees the enforcement of EU law in Hungary and the authentic, erga omnes interpreter of the FL is the Constitutional Court, in the absence of an explicit constitutional provision, the decision of the Constitutional Court is binding on everyone.

During the discussion, the participants discussed the issue of the rule of law, in addition to the relationship between the supreme courts of the Member States, the constitutional courts and the CJEU, in connection with which Tamás Sulyok explained: In his opinion, one of the guarantees of the rule of law is that in Hungary the Constitutional Court exercises constitutional control over all branches of power, whereas previously it could only prevail over the legislature. In this way, it can be ensured that not only created but also applied law meets the requirements of the Fundamental Law.

Regarding the rule of law, András Zs. Varga drew attention to the fact that the rule of law in Hungary has a history dating back several centuries, for example, the Kúria itself is an 800-year-old institution. Among other things, the ancient respect for the rule of law is why the Constitutional Court and the constitutional judiciary have played and continue to play a decisive role in the operation and development of the Hungarian legal system. According to the President of the Kúria, constitutional judiciary is built into Hungary’s public law traditions, so it is important that Hungary has its own legal traditions, including its own understanding of the rule of law, which is not necessarily contrary to the European concept, it is only different from the historical perspective through which we view it. In his view, it is not possible to apply the same concept of the rule of law in all countries – or at least not with the same content – because the historical perspectives are different, however the roots of the concept being the same.

In this connection, Tamás Sulyok reminded: an integral part of Hungarian history is the struggle for independence, which has always had a political background. According to him, legal independence represents almost as much value for Hungary as effective independence. This is a special development process that is part of Hungary’s national identity. He recalled that the EU is unity in diversity, that is, diversity is also important, cannot be ignored and that anyone who emphasizes only the unity, strives for hegemony. Who also emphasizes diversity is at the root of equality in the Member States.

The President of the Constitutional Court explained that one of the greatest questions for the future is how to preserve the national traditions of each Member State within the European Union. In the case of European nations, every human being, that is, every European citizen, is born into a specific religious, historical, and linguistic environment, which can vary from nation to nation. This is a European feature, but rather the strength and not the weakness of Europe. In his view, it is important to join forces along certain values and interests, but this does not necessarily mean value preference, but at the same time it must mean development in common values, which is realized as a process. The values enshrined in the Treaties establishing the European Union are important, but they may be viewed differently by each Member State according to its historical specificities.

András Zs. Varga closed the conversation with the idea that the above issues should be debated, but not quarreled. The author of the present lines adds, however, that the discussion requires at least two actors and is a precondition for the parties to know and understand each other’s position.

Norbert TRIBL is an assistant research fellow at the University of Szeged (Hungary), Institute of Public Law as well as a consultant at the Constitutional Court of Hungary. Since 2020, he has been the editor of the Constitutional Discourse Blog.

Attila SZABÓ: Statelessness: Right or Possibility?

On 23 March, the Hungarian Constitutional Court decided on a certain case based on a judicial initiative for norm control. The question of the three judges initiating the procedure was the lawfulness of a new norm in the statelessness procedure. The judges asked whether this norm is in line with the 1954 Convention relating to the Status of Stateless Persons.

Statelessness and Hungary

The international conventional system for providing protection for humanitarian migrants is very complex. This blogpost focuses only on the Convention relating to the Status of Stateless Persons. Protection for those who can not access any citizenship is guaranteed by this Convention. Stateless people could be in total legal and social trap without this protection.Hungary joined the Convention relating to the Status of Stateless Persons on 21 November 2001. The Convention’s goal is

“…to ensure that stateless people enjoy a minimum set of human rights. It establishes the legal definition of a stateless person as someone who is “not recognized as a national by any state under the operation of its law.” Simply put, this means that a stateless person is someone who does not have the nationality of any country.”

In April of 2021, there were 96 states parties to the Convention. The UNHCR treats this topic as a matter of priority: in 2014 the Campaign to End Statelessness in 10 Years was launched. We are in the middle of this campaign.

UN High Commissioner for Refugees António Guterres and UNHCR Special Envoy Angelina Jolie published an Open Letter in which the signatories argue why ending statelessness is an utterly important goal for humankind. So they say:

“Statelessness can mean a life without education, without medical care or legal employment . . . a life without the ability to move freely, without prospects or hope […] Statelessness is inhuman. We believe it is time to end this injustice.”

It looks like the Hungarian legislator obviously agrees with these goals since protection may be granted to stateless applicants if they fit to the conditions of section 78 in Act II of 2007 on the Admission and Right of Residence of Third-Country Nationals.

Nevertheless, in the last ten years, only a low number of stateless statuses were provided based on the information of the National Directorate-General for Aliens Policing (NDAP). 111 persons were recognized altogether in this period.

The numbers suggest that statelessness has never been a significant social question in Hungary, only a handful of people were concerned by this important human right.

Nevertheless, the authorities had a relevant legal practice in providing this humanitarian status for those who are eligible.

A concise description of granting stateless status can be found on the webpage of NDAP. Based on the above-mentioned law it sets forth that

the applicant shall not be entitled to stateless status and his/her application shall be refused by way of a formal resolution if his or her residence prejudices or endangers the national security of Hungary.

This norm leads to the question before the Hungarian Constitutional Court, examined below.

The procedure and the conflict

A application for stateless status submitted by an applicant from the territory of Palestine was refused. The NDAP made its decision based on the opinions of the Constitution Protection Office and the Counter Terrorism Centre.

The applicant turned to the Budapest-Capital Regional Court and argued that the above-mentioned point c) is not in line with the Convention. Article 24 of the Fundamental law says that the Constitutional Court shall examine any law for conflict with any international treaties. Therefore the question shall be decided by the Constitutional Court since its essence is a possible conflict between the Hungarian law and the Convention.

Section 32 (2) of Act CLI of 2011 on the Constitutional Court says that judges shall suspend judicial proceedings and initiate Constitutional Court proceedings if, in the course of the adjudication of a concrete case, they are bound to apply a legal regulation that they perceive to be contrary to an international treaty. This happened in this case since the Budapest-Capital Regional Court perceived that there might be the following collision.

Article 1 and 2 of the Convention exhaustively specify the reasons for refusing a stateless applicant. These reasons are transposed into Hungarian law by Section 78 (1) a) of Act II of 2007 on the Admission and Right of Residence of Third-Country Nationals in the following way. “A petition for stateless status shall be refused by way of a formal resolution if the petitioner falls within the scope of Paragraph 2 of Article 1 of the United Nations Convention relating to the Status of Stateless Persons signed in New York on 28 September 1954, promulgated by Act II of 2002.”

Point b) of the same paragraph says that a “petition for stateless status shall be refused by way of a formal resolution if the petitioner terminated his/her nationality deliberately, with a view to obtaining stateless status.” In this way, the legislator shall avoid application in bad faith.

The Budapest-Capital Regional Court stated that any additional condition is not in line with the Convention since this would be such a new condition that would restrict access to the human right guaranteed by the Convention.

The Constitutional Court (HCC) had to decide whether this is a new restriction over the Convention or a condition which is its inherent part.

The answer

The HCC argued that the Convention itself alludes to national security or public order. These can lead to a refusal to issue a travel document (Article 28) and can also constitute a reason to expel a stateless person based on the Convention (Article 31). The Constitutional Court concluded that the examination of an applicant from viewpoints of national security or public order is in line with the Convention since it is mentioned in these specific places.

Furthermore, the HCC argued that the Convention provides wide freedom to the party states in defining the procedure of statelessness determination. The Constitutional Court decided that the examined point c) is a procedural reason and it does not restrict substantial human rights.

Based on these arguments, the Constitutional Court provides constitutional viewpoints for the right interpretation of the law framing the proceedings before the competent authorities and regular courts. If the authorities decide that the presence of the applicant in the territory of Hungary prejudices or endangers the national security of Hungary they have to refuse the application on procedural grounds without examining substantive ones. Further examination is not allowed since procedural barriers emerged.

Criticism

Firstly, the HCC refers to the fact that the Convention itself mentions national security or public order. However, these reasons are mentioned in Article 28 and 31 of the Convention. (i) The Contracting States shall issue to stateless persons lawfully staying in their territory travel documents for the purpose of travel outside their territory, unless compelling reasons of national security or public order otherwise require. (ii) The Contracting States shall not expel a stateless person lawfully in their territory save on grounds of national security or public order.

These are specific norms and not general rules within the Convention. The lex specialis derogat legi generali principle means that if there is no specific regulation, general regulation shall be applied. There is no general regulation in the Convention for applicants posing a danger to national security or public order. The Constitutional Court widened the interpretation of the specific norms in order to apply them to the Hungarian regulation. It might not be in line with the Convention. It would have been useful if the Constitutional Court could have collected international comparative examples to underline the above-mentioned argument. International examples and UNHCR interpretation on national security or public order are absent from the decision.

Secondly, Hungary could have ratified the Convention with reservations about national security and public order in 2001, but it did not. In this sense, this de facto reservation could violate the pacta sunt servanda principle too since Hungary applies a new condition that was not part of the ratified agreement.

Thirdly, the distinction between substantive and procedural law from this point of view seemscontroversial. Procedural rules shall guarantee a substantive right, not hinder its access. Obviously, there are procedural rules which can hinder access to a substantive human right but their fulfillments shall depend on the applicant. If the applicant does not fill out a proper form or does not provide the required data or information in good faith, etc. access to the substantive right can be denied. However, a procedural barrier that cannot be changed or influenced by the applicant is par excellence a restriction on the given human rights. Applicant has to be able to fit the procedure in order to consider him as a person who have a real access to the substantive human right. If the applicant can be denied in a procedural ground which cannot be influenced or changed by him substantive right can be never achieved. The procedure can be strict but it cannot have such a condition which cannot be fulfilled by an applicant who have the substantive right. In this certain case, a person who has no citizenship shall be protected by Hungary as a stateless person. If there is a procedural barrier for a person without citizenship stateless status can be never be achieved. This way, the HCC might deprive applicants of access to a human right guaranteed in an international treaty.

Furthermore, in this procedure, the HCC could not deal with the fact that the opinions of the Constitution Protection Office and the Counter Terrorism Centre were not open to the applicant as data protected by the Act CLV of 2009 on the Protection of Classified Information. It means that the applicant had no information on why her access to the stateless status was refused and it also means that she could not challenge the lawfulness or factualness of these opinions in any redress procedure. Although the accessibility of the opinions of the Constitution Protection Office and the Counter Terrorism Centre was not the focus of this case, the Constitutional Court could have put it on the scale in order to define what that procedural barrier means for the substantive right.

Obviously, granting humanitarian status for persons posing a threat to the national security or public order cannot be a goal or even a side effect of a human right but there are security and police procedures regulated by the Act XXXIV of 1994 on the Police and by other laws to prevent these risks. The stateless status could be granted and the persons concerned could be examined within the regular national framework before a court within the national guarantee system of criminal procedure law. A person concerned can even be in detention till their expulsion under the Convention, if it is unavoidable from the criminal law aspect. This kind of approach would be much more transparent and would not restrict access to a human right which is granted in an international treaty. There might be applicants who are really dangerous but it can be proved and decided only in a transparent, fair court procedure. Stateless persons who are condemned in such a procedure should be protected as stateless based on the Convention but treated by the law enforcement. Statelessness can be decreased but criminals cannot threaten our community in this way. Moreover, it could demonstrate that Hungary is committed to take a stand in ending statelessness by 2024 and do not restrict the access to the procedure.

The author is a PhD student of University of Szeged. He graduated in the University of

Debrecen as a lawyer in 2015. He finished his LLM on EU law in Deák Ferenc Institute of

Pázmány Péter Catholic University.

Attila SZABÓ’s PhD topic is the connection between migration and rule of law. However, he is

interested in other constitutional law questions and the rule of law in general. The author’s

last research was about the role of local-governments in integration of third-country nationals

based on the EU law.

Norbert TRIBL: Can only one be left in the end? Is this the Way?!

Thoughts on a recent opinion by Advocate General Bobek

On 4 March 2021, in the Joined Cases C-811/19 and C-840/19, the opinion of Advocate General Michal Bobek was delivered to the CJEU, which was already mentioned by one of the authors of the Constitutional Discourse, Márton Sulyok. According to Sulyok, if the CJEU accepts the Advocate General’s position, it could put the entire European system of constitutional justice at risk, at least as we know it today. It is a question of whether the CJEU recognizes these potential dangers. The question arises why the CJEU’s decision in these cases could be a milestone in this process if the Court accepts the opinion of the Advocate General? I will try elaborate on this a little below.

The main proceeding is a case concerning the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice, Romania) and the Constitutional Court of Romania. The outcome of the case might affect the financial interests of the European Union, therefore initiating the preliminary ruling procedure was necessary. One of the questions that the CJEU must answer is whether the primacy of European Union law must be interpreted as a principle permitting a national court to disapply a decision of the constitutional court. According to the AG’s opinion, under a strict set of criteria, the principle of primacy of the EU law shall be interpreted as allowing a national court to disapply a decision of the national constitutional court, which is binding under national law, if the referring court finds it necessary in order to comply with the obligations deriving from directly effective provisions of EU law. To see the whole picture, the details of the case affect upon a number of financial and corruption issues, however addressing these is not intended in the context of this post.

Apart from examining the details of the case in the main proceedings, one of the main ideas of the Advocate General’s opinion is the financial interests of the European Union and the principle of primacy as well as the decisions of the constitutional courts of the Member States. According to the Advocate General, “in the context of the present case, the third question in Cases C‑811/19 and C‑840/19 should be answered in the affirmative: the principle of primacy must be interpreted as allowing a national court to disapply a decision of a national constitutional court, which is binding under national law, if the referring court finds it necessary in order to comply with the obligations deriving from directly effective provisions of EU law.”

It is true that the Advocate General’s reasoning has been delivered in a special context: in order to protect the financial interests of the Union. Based on the reasoning, “the elements to be taken into account when assessing the compatibility of national provisions with the requirements of Article 325(1) TFEU include: first, the normative and systematic evaluation of content of the rules at issue; second, their purpose as well as the national context; third, their reasonably perceivable or expected practical consequences, stemming from the interpretation or the application practice of such rules (thus independent from any statistical estimation of the number of cases actually or potentially affected); fourth, the fundamental rights and legality forming part of the internal balance in the interpretation of the material requirements imposed by Article 325(1) TFEU. However, any national concerns invoked in this regard must reflect a reasonable and genuine concern for a higher rights protection. Moreover, their potential impact on the interests protected by Article 325(1) TFEU must be proportionate.”

The protection of the EU’s financial interests is an evident, necessary need, regarding which, of course, the CJEU, as guardian of the Treaties, also has competence. However, the question arises: is it possible for the CJEU to rule that an ordinary national court may set aside the application of a decision of a national constitutional court? In addition to the serious problem of powers, does the necessity-proportionality test allow this? Regardless of the result to be achieved, unless the end justifies the means. At the same time, it is hard not to think about what happened on 5 May 2020, when a Constitutional Court of a Member State declared a decision of the CJEU inapplicable, so the answer cannot be left to the supranational court either. This idea, however, leads away on a long tangent, so instead, let’s take a closer look at the part of the Advocate General’s opinion quoted.

The Advocate General’s position essentially presupposes a two-dimensional space: European Union law and national law in which the former precedes the latter. The approach would not be a problem for a federal legal order, but the supranational nature presupposes a much more complex system. A legal order in which only the EU institutions, including the CJEU, can act within the scope of the powers delegated by the Member States and in which we must talk about the coexistence of the EU legal order and the constitutional systems of the Member States. In this system, the provisions of national law form only one layer, which is covered by the principle of the primacy of EU law under the provisions of the Treaties. This is beyond debate.

But does it follow from the treaties that the Member States have delegated to the CJEU the power to declare a decision of a constitutional court of a Member State inapplicable? What is more, in a legal order one of the main values of which is the rule of law, is it possible to imagine a scenario in which the provision of a supranational institution with problematic democratic legitimacy would preclude the decision of an organ with strong democratic legitimacy whose function is to ensure the requirement of legal certainty as part of the rule of law?

After all, by detaching the Advocate General’s position from the umbrella of financial circumstances, this is one of the practical consequences. The Advocate General’s position does not distinguish between the constitutional rules of the Member States and national law, but treats them as a single factor. It does not treat the constitutional courts of the Member States as a fundamental constitutional institution designed to ensure, inter alia, the rule of law, it simply places them in the category of the superior courts of the Member States and as a quasi-super-court places itself above them. But is it necessary to open Pandora’s box? Is this the right way?

The national constitutions of the Member States represent a value that embodies the uniqueness of the Member States, the diversity in unity. Moreover, European integration is in itself a special formation that expresses the unity and future of these different nations, the so-called the unity in diversity. The two levels of the legal system (Member State and EU) must coexist while respecting both the sovereignty of the Member States and the fundamental values of the Union. There are unquestionable values and legal principles in Europe that are beyond doubt, such as the protection of sovereignty and human dignity. However, there are a number of challenges facing modern European legal system(s) that require dialogue to be resolved.

In the EU system of multilevel constitutionalism, a long-standing debate on integration surrounds the conflict between EU legal order and the constitutions of the Member States. However, the issue concerns not only the relationship between the sources of law, but also the relationship between the authentic interpreters of these sources. Namely, the relationship between the CJEU and the national constitutional courts, which is not a system of relations that could be established in an exact way on the basis of current provisions of the Founding Treaties.

It is a system of relations in which the CJEU itself has extensive case law and the constitutional courts of the Member States have also established their positions.

Milestones in the relevant case law of the CJEU are Van Gend en Loos (C-26/62) and Costa vs. ENEL (C-6/64), in which the CJEU set out the nature of the new legal order of European Community law and the obligation to apply it by the courts of the Member States and setting aside the national law if it is contrary with the EU legal order. In Internationale Handelsgesselschaft (C-11/70), the CJEU has already articulated the primacy of European Community law over the constitutions of its Member States, which was confirmed in Simmenthal (C-106/77) by stating that ordinary courts in the Member States cannot wait to the legislator or the Constitutional Court in order to resolve the conflict but must do so themselves.

The development of the case law of the CJEU therefore runs a well-defined curve and purpose in this area, which is to ensure the integrity of EU law. However, the question is whether the CJEU takes over the position of Advocate General Bobek, and if yes, what is the purpose behind this decision? Securing the European Union’s financial interests is not a surprising goal, as the EU was born primarily from and for economic purposes. The question, however, is whether it is worth giving up the idea of unity in diversity and create a union that is indifferent to the nature of the Member States, especially at a price that requires a system of rules that can no longer be read from the Founding Treaties.

In my view, the case-laws of the CJEU and national constitutional courts must coexist on an almost equal footing and not in hierarchy with each other. Constitutional justice is a fundamental part of the constitutional systems of the Member States (so of the EU as well), and at the same time it is designed to ensure the requirement of legal certainty, which is a key element of the rule of law as a fundamental value of the European Union. Therefore, it is necessary to establish a system of relations with the CJEU through the instrument of solidarity and dialogue, involving the national constitutional courts, which presupposes the principles of collegiality, instead of the potential hierarchical relationship which seems to be outlined on the basis of the Advocate General’s opinion.

Perhaps it can be seen from my critical approach that I do not agree with the Advocate General’s position. However, this does not mean that I disagree with the need to deepen the integration process or to protect the financial interests of EU. On the contrary, these are goals that shall be pursued in the interest of stability, as the main guiding principle. Stability cannot be achieved by creepingly expanding the powers of the EU institutions ensured by the Treaties. Moreover, stability cannot be achieved either if we assume quasi-competing powers between the CJEU and the constitutional courts of the Member States. In this system of relations, we need to realize the delicate balance that keeps the integration process in the right direction, which is in line with the constitutional identity of the Member States. However, this does not mean that asking questions is not necessary. It only means that the questions shall be answered together. The answer is not that only can be left standing at the end. This is how duels are concluded.

Norbert TRIBL is an assistant research fellow at the University of Szeged (Hungary), Institute of Public Law as well as a consultant at the Constitutional Court of Hungary. Since 2020, he has been the editor of the Constitutional Discourse Blog.