Márton SULYOK: Constitutional Justice in Europe – “Courting” Death?

On the Less than Usual (?) Theme

This January, listening to the optimistic start-of-the-year hum in my ears, despite COVID, I wrote that there surely are some lessons to be learned from all of those issues, good or bad, that surrounded, courted, then consumed some constitutional courts around the globe in 2020.

Some of these courts were met by harsh accusations with populist undertones from academia, politics or civil society, some others for merely standing their ground in a difference of opinion regarding European integration or domestic political power struggles. There have been instances where political discourse and then action reached the insides of these courts and interfered with their independent operations as well. While this is no cause for happiness for someone who courts these institutions from a distance, I still think that the status quo needs to be addressed in terms of lessons listened, heard and then forgotten.

Now, I don’t mean to be insensitive using death as an overarching theme for my post in these trying times, but the phrase “courting death” carries an important message. Whether external or internal, all actors engaged in constitutional justice should have a compass that navigates them in facing certain problems, assuring they avoid certain death. It is one thing to be daring and then called careless or subversive, and another to be circumspect and then called “captured”. Or maybe there isn’t even a difference these days…

I ended my January note on this issue (when courts actually become captured, despite popular misnomers or misinterpretations in this context), so in this spirit, I tried to trace almost all elements of my 2020 end-of-year “list of lessons” for a Q1 assessment and check where these courts and their critics stand after a few months. I let all those who read this be the judges of what follows.

Courting Death and the Next Generation

After almost every European constitutional scholar cried “death” regarding the European integration after the PSPP (or Weiss II) decision, the “integrational responsibility” (Integrationsverantwortung) of the German Federal Constitutional Court (GFCC) has apparently lead them to ban the Bundespräsident from signing a domestic law approving the 2020/2053 Own Resources Decision (ORD) of the Council (regarding the activation of NextGenEU) supposedly designed to resurrect Europe post-COVID.

How they did so, however, is a bit surprising: through a press release, stating that until the GFCC’s decision is reached on a temporary injunction, the President is precluded from signing the law. Now, first we must concede that temporary or interim measures are not strange among legal consequences to be imposed by constitutional courts. Secondly, however, such an action without express justification seems a bit out of the ordinary, so it is perhaps understandable that in the immediate aftermath, legal blogs obviously had a field day with this decision. Among others, René Repasi on EU Law Live has written a nice summary of the issues. When I opened the decision, to my surprise, there was no justification written for it. (I am not privy to whether this is considered standard in their work, so I was surprised.)

Regardless of what we might think of the validity of the constitutional ultra vires challenge coupled with another round of constitutional identity defenses (based on which many have argued that the GFCC courts the death of integration by doing so in Weiss II), one might just hear bells (not church ones), given that an erga omnes decision of such a national constitutional court appears with an operative part that bears quite the weight, but with a justification that is “coming soon”. Urgency is certainly a decisive and understandable factor with these interim decisions, but it should not overwrite the need for – at least superficial but nonetheless immediate – justification.

Repasi says that “it is not unusual that the BVerfG decides on the constitutionality of a draft agreement before the signature of the president since this is the only way the binding force of a ratification under public international law can be avoided before the Constitutional Court has decided. […] Whether this has happened with regard to the law approving the Own Resources Decision is unclear.” The standard operating protocol for similar situations is described as a “hanging decision” (Hängebeschluss), intended to secure legroom for the Court to form an opinion.

To make a relevant comparison, however, allow me to take a brief tangent. The Hungarian Constitutional Court (HCC) – oftentimes blamed for being heavily reliant for inspiration on the GFCC’s case law in integrational thinking and constitutional identity – also may apply similar consequences of a temporary nature, and to my knowledge had done so twice since its new powers were created in harmony with the new Fundamental Law. [31/2012 (VI.29.) AB regarding the Family Protection Act, with relevant justification and 2 dissents (!) at the time of publication; 19/2013. (VII. 19.) AB regarding new rules of national security checks, with justification, at the time of publication]

According to the HCCA (Act CLI of 2011), if – in reviewing the conformity (with the Fundamental Law) of laws that have been promulgated but have not yet entered into force yet – the Court „considers it probable that said [law] is contrary to the Fundamental Law, it may exceptionally suspend the entry into force of the legal regulation or provision thereof specified in the petition, provided that the avoidance of serious and irreparable damage or disadvantage or the protection of the Fundamental Law or of legal certainty necessitates immediate measures.” The fact that, in the Hungarian case, promulgation has already taken place means that the HCC would never be in a position to prohibit the President of the Republic from anything let alone signing a law, as it may only suspend entry into force.

In the sense that a decision on the merits of such cases still needs to be reached, whereby the suspension will terminate (mind you, automatically after 180 days, if no decision is taken regarding its prolongation), this procedure also qualifies as a Hängebeschluss. “If the Constitutional Court does not annul the legal regulation or the provision thereof, in its decision it shall set the date of the entry into force of the legal regulation or the provision thereof.” [Extracts cited from Art. 61 of the HCCA, for further details, please refer to the legislative text indicated above. In both previously mentioned cases, the provisions affected by the interim measures have been annulled by 43/2012 (XII.20) for the first case and by 9/2014 (III.21.) for the second.]

Who knows what the future brings in this respect as on 31 March, the Hungarian Government (through the Minister of Finance) has submitted a draft law on the 2020/2053 Own Resources Decision, inserting it into the Hungarian legal system. I am curious to see whether the Constitutional Court will be called upon to give their interpretation. As to the German solution applied by the GFCC, it was said above that it is intended to provide them with legroom in forming an opinion. Since this is not yet known, and there are at least three clearly marked paths along which this case may develop (See: Repasi’s article, above), we might need to wait until Q2 to make an assessment that can account for the outcome.

Courting Death and the Right to Fetal Life

In other highlights, back in January, I also mentioned the so-called “eugenic abortion” case of the Polish Constitutional Court and the backlash it received from critics, foreign and domestic. In Hungary, we did not have to wait that long for a similar case to arrive at the docket of the HCC as well – this time courting questions of fetal death –, and a few words should be said about how it was received:

The judicial initiative challenging a provision of the 1992 Fetus Protection Act allowing for a longer period of termination of pregnancy by reason of fetal developmental disorder was rejected (11-4). The legal twist: At the moment in the trial, where the initiative was filed to the Court, the trial court does not and did not have to apply the provision in question, therefore the Court cannot be petitioned to rule on its annulment. The initiative did not meet the legal requirements set out by the HCCA. (The decision is available here, in Hungarian.)

The underlying court case was filed for damages and grievance fees regarding a “wrongful birth” and the deficiencies of genetic and teratological diagnostics provided by the respondent hospital. Wherein the parents (plaintiff-petitioners) argued that if they had known (with at least 50% certainty) that their fetus will be born with congenital developmental disorder, they could have exercised their right to terminate the pregnancy, but this way, they did not. The trial judge, initiating the complaint, argued that the provision of the law that applies to this situation (Article 6, para. 3) is in collision with the constitutional provision of the protection of fetal life in Article II of the Fundamental Law stating that “the life of the foetus shall be protected from the moment of conception”. In the judicial rendering of facts, it was pointed out that the lack of clarity and detail in the Fetal Protection Act violates the constitutional obligation to protect fetal life.

Regardless of any merits to this argumentation, because judicial initiatives have been created exactly for the purpose of resolving interpretative conflicts that arose regarding legal provisions to be applied to the decision of a case in light of the constitution, this initiative did not pass the threshold. In the concrete case at hand, filed for damages, the legal provision requested to be examined would not have been directly applied.

Another interesting turn of this case was that the HCC “allowed the European Centre for Law and Justice” to intervene in the proceedings as amicus curiae, hoping for an outcome similar to the Polish abortion decision. (Bear in mind, the ECLJ was also amicus in the Polish case.) Having read their above-cited article, the HCC’s ruling might not have fully met their initial expectation.

Courting Death by Family Feuds

Finishing up my January post, I mentioned the ‘family feud’ unfolding between the Ukrainian Constitutional Court (UCC) and the President. Then I wrote that the case will provide fertile ground for constitutional scholars to analyze for months to come, and I was not wrong.

Despite the presidential plea for the Venice Commission to form an opinion on the status of the judges involved in decision-making on the grounds that they were seemingly in a conflict of interest when casting their vote (violating core principles of due process) and despite these judges’ continued involvement in the UCC’s operations, the Parliament introduced laws affecting the operation and membership of the Court, as a form of political attack, and the situation developed further, eventually reaching a tipping point just this week. (Bear in mind, in their urgent report on the subject, the Venice Commission called attention to a severe violation of the rule of law if political institutions obstruct those created for the constitutional review of legislation.)

Legislative channels to obstruct constitutional justice aside, the Ukrainian President (by decree) finally removed two judges from the UCC, one of them being the Chairman. This move, however anticipated, goes contrary to the rules of the removal of UCC judges set out by the Ukrainian constitution, which treats this as in in-house matter, requiring a two-thirds vote of the UCC quorum to remove a member. (I wonder where this dynamic will further develop.)

I also add a new arrival to this group of ‘family feuds’, addressed in the recently published Opinion of AG Michal Bobek in Joined Cases C-811/19 and C-840/19. In this most recent feud, dating back many-many years, two Romanian apex courts have taken their respective vendettas out of the national context, to the Court of Justice, risking unforeseeably dangerous consequences for constitutional justice in Europe as a whole, thereby endangering the extended family as well. While all arguments in the Opinion are clear-cut and well-tailored to the specific aspects of the Romanian cases waiting to be decided, it contains a few half sentences that could prove cataclysmic for national constitutional courts, if adopted by the CJEU.

These few words look for the answer to the question “whether the principle of primacy of EU law allows a national court to disapply [a decision of a] Constitutional Court”.

The carefully worded initial answer provided by AG Bobek, in the context of the case in front of him, is that “EU law authorises a national judge not to follow (an otherwise binding) legal opinion of a superior court, if he or she believes that that legal interpretation is contrary to EU law.” He then adds that “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.” (quotes from paras. 139-141 of the Opinion’s provisional English text.)

Prima facie, from a (Hungarian) national judicial point of view (now presented by an academic), there are a few fundamental flaws in this argumentation (taken out of the context of the case in which it was formed) based on the basic adjudicative standards imposed on Hungarian judges. First off, national judges are subordinated only to law (in conformity with the constitution[1]) and to their internal convictions. Furthermore, they shall not be instructed in relation to their judicial activities. Adding to this, the Constitutional Court interprets the constitution with erga omnes effect, thereby also ensuring the conformity of laws with it, to which national judges – as part of the above-mentioned “omnes” – are subordinated, too.

It seems far-fetched to suppose that in such a structure, if the internal convictions of a judge would amount to a finding that an erga omnes constitutional court decision (which should orient and inform their daily adjudication anyway as a general rule) is contrary to EU law, they would simply decide to set it aside in favor of EU law. Regardless of this tangent, the dangers that are forecasted by this or similar inferences from the Opinion are grave in terms of the sustainability of the raison d’être or even the continued necessity of national constitutional courts. (Just to make sure, one should keep an eye out for how this feud is going to be resolved in Romania.)

To cut back to the dominating theme of my chosen context, I just want to say that it seems there are more life lessons to be learned from the first quarter of this year as death continues to surround us in the current third wave of the pandemic. To some extent, it might be an imprint of large-scale social anxiety that death in various shapes and sizes seems to be an omnipresent theme in European constitutional justice or the discourse surrounding it. While I appreciate the symbolism, we should try and think about how to ensure its survival, if not renaissance, too.

After all, Easter-time is about Resurrection. And while the Day of the Dead is far ahead, I remain hopeful that things will not soon turn fatal for national-level constitutional justice in Europe. While there are certainly some constitutional courts that are “courting death” by their actions, some others are merely said to do so, or – even worse – are depicted as “harbingers of death”. Neither is a good position to be in, but here is to hoping that this general perspective will not only change from beyond the grave.

[1] Because if they find that it is not, they should initiate the proceedings of the HCC in the form of judicial initiatives, like the one we discussed above, to enable rooting out inconsistencies regarding the specific issues at hand.

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: Size Does Matter (?!)

Some European Debates on the Use of Religious Symbols in the Workplace

On 25 February 2021, Athanasios Rantos AG (CJEU) has issued an opinion in two German PRPs (preliminary ruling procedures) on whether an employer’s internal ‘neutrality policy’ can at all prohibit the wearing of large religious symbols, while being more lenient regarding smaller, more modest ones. These neutrality rules obviously encompass all forms of clothing and ‘office wear’ not only specifically identifiable religious symbols as such regulations normally extend to all forms of political, religious and ‘world views’. (Please note: The opinion is not yet available in English – below, I’ll limit myself to the Hungarian text and its translations)

Constitutional scholarship, free speech advocates and public opinion all approach this topic with care from many aspects, especially with regard to the wearing of such symbols in various public spaces, from universities and educational institutions to public administration offices. Thus, stances regarding “religious dress” (broadly speaking) divide Europe and a multitude of national practices and constitutional, legal rules have become public knowledge due to the jurisprudence of the European Court of Human Rights (Court, ECtHR). One among these decisions has been the famous landmark of Leyla Sahin v. Turkey (2005), wherein the Court has made the following statement (para. 35), evaluating the relationship of secularism and freedom of religion on the basis of identity. They argued that “[t]hose in favour of the headscarf see wearing it as a duty and/or a form of expression linked to religious identity.” In other words there is a right to the respect of religious symbols that is inherent to freedom of religion on an identitarian basis. The fact that the Court alludes to a “form of expression” linked to this identity transfers the discourse into the realm of free speech, which further complicates how we might interpret rules that limit wearing religious dress or similar symbols. (With these in mind, Erica Howard, a legal expert of the European Commission has looked at these issues in her 2017 study in a narrower European context, tailored to the EU, also looking at national practices.)

The two German cases (C-341/19 and C-804/18) providing the grounds for the AG opinion mentioned above, now touch upon similar issues under German law in light of EU law regarding the wearing of an Islamic headscarf under the neutrality rules of two companies (a drugstore operator and an association in charge of maintaining kindergartens). The EU law in question, regarding which the preliminary questions of the two German labor courts were raised is the 2007/78 EU (nominally EC) Directive regarding establishing a general framework for equal treatment in employment and occupation.

According to the AG’s opinion, relevant restrictions in employers’ internal regulations in this regard to not realize discrimination if related to any manifestations of employees political, religious or other world views. (This is based on previous cases such as Achbita or Bougnaoui.) However, this argument should be brought further in relation to the visible wearing of any symbols pertinent to the above, in the instant case, religious symbols. After visibility has been dealt with in CJEU practice in the famous G4S case, the focus visibly shifted to their size and ‘conspicuousness’. The AG opinion held that in the instant cases restrictions affected the ‘office wear’ in terms of any signs of religious views visible to third persons, clearly referring to this rule as part of maintaining client-relations. (para 51-52.) At this point, the opinion underlined that the current CJEU jurisprudence does not directly entail in cases similar to the one at hand that discrimination could not be established regarding rules banning the wear of Islamic headscarves. (para. 56.)

In the second part of the opinion, paras. 71-76 contain some key arguments that need to be emphasized. It was argued by the AG that the CJEU did not yet decide on the issue of rules banning the wearing of large symbols of political, religious or other world views, and that this logically means that the following issue needs to be examined: whether small-sized symbols can in fact be worn in the workplace in a visible manner. The AG refers here to Eweida and others, a case decided in 2013 by the ECtHR, where modesty did suit the context of declaring a violation of Article 9 ECHR. In Eweida, the respondent UK was found violating the Convention for sanctioning modest religious symbols otherwise unsuitable to tarnish the professional image of the wearers. Consequently, the following argument is made: employers’ neutrality policies – in the context of their client relations – are not inconsistent with their employees wearing small, modest religious symbols that are not detectable at first sight. Here it is argued that size does matter, as the AG is of the opinion that small symbols cannot insult those clients of the company that do not share in the religion or views of the employees wearing them.

Cutting back to visibility and the relevant ban, the AG states that if visible signs can be lawfully banned under G4S, then based on freedom to conduct a business (under the Charter), the employers are free to explicitly and exclusively ban the wearing of big symbols. So size does matter (?), but the only real question is who is to say what is big or small. The AG is of the opinion that it shall not be the CJEU, such assessment is (duly) deferred to national courts based on the totality of circumstances, also accounting for the environment in which the symbols are worn. One thing is for sure, though: the size of the Islamic headscarf is not small.

What also is not small is the number of contradictions in the opinion, considers Martijn van den Brink’s in his latest post on Verfassungsblog.The only positive aspect” of the opinion, he writes, deals with specifying the relationship of national constitutional and European rules protecting freedom of religion, and in this context the opinion looks at the issue whether national constitutional law rules protecting the freedom of religion can be interpreted as “provisions which are more favourable to the protection of the principle of equal treatment than those laid down in this Directive” in light of Article 8 of the Directive. The AG’s conclusions that they cannot. In this context, it was also raised whether internal rules of the employer in C-341/19 are superseded by the rules of the national constitution, which might have priority over neutrality policies based on the freedom to conduct business in reliance on the standards set by Sahin (where wearing the headscarf was considered by the employee as a religious duty).

Regarding C-804/18, the AG’s opinion sets forth that the German Federal Constitutional Court (GFCC) emphasized that the freedom to conduct a business under the Charter can no longer be assigned priority over freedom of religion in all cases, specifically where neutrality is imposed by the employer in client interactions, but the lack of such neutrality would not lead to any economic disadvantage. Based thereon, the GFCC emphasized that situations created by employers’ intent to abide client requests resulting in services being rendered by an employee not wearing an Islamic headscarf does not fall under the “genuine and determining characteristic” rule of Article 4 of the Directive. In the AG’s opinion, it is not contrary to the Directive if a national court applies the provisions of the national constitution to examine internal regulations of a private company prohibiting the wearing of symbols referring to political, religious or other world views, but any occurrence of discrimination should be duly assessed by the national courts as well.

Regardless of what arguments the CJEU’s judgment will finally rely on (given that the AG’s opinion is non-binding on the Court) AG Rantos’ opinion surely adds another layer to the European debates on wearing or displaying religious symbols and the right to respect these symbols as “forms of expression” tied to one’s identity under the afore-mentioned Sahin judgment of the ECtHR.

If we shift the identity-focus of the arguments from the individual to the state, France comes to mind. The mystery of Laity (laïcité) – often misunderstood abroad – is an inherent element of French constitutional identity – i.e. the constitutional principle of secularism – and defines many aspects of the operation of the State. Debates resulting from the above questions have started much longer ago here than elsewhere in Europe. Legal debates in concrete cases have surfaced in terms of crucifixes in classrooms, or modest religious symbols hanging in the necks of parent chaperones on a class outing, but the Islamic headscarf (foulard) – just as in the above German cases – and the full-body veil (voile intégral) were all affected in court battles and ensuing legislation. Besides lawmakers, the Constitutional Council and the Council of State have both said – sometimes with different points of view – their parts as early as 1989 in the infamous case of the “Foulards de Creil”, or then in 2010 regarding the constitutionality of a ban on wearing full-body veils in public spaces for public safety reasons.

Most recently, the 2020 projet loi (draft bill) on reinforcing the principles of the Republic contains several provisions regarding freedom of religion that expressly originate in the 1905 law that codified the separation of Church and State, thus introducing Laity into French constitutional tradition but in its original form containing no limitations on the “porte des signes”, the wearing of (religious) symbols. Prohibition only surfaced later on, in different but familiar contexts: at first, in education (cf. Sahin). 1882 was the year when the law on a laicized education was born, until a 2004 law has prohibited the wearing of all “ostensibly manifest” (i.e. clearly visible) signs, logically leading to a more lenient approach toward more discreet, modest (small-sized?) signs. In relation to the workplace and employment, the 2020 draft bill, for example, outlines that in the course of providing public services, the principles of neutrality and laity need to be observed. In terms of private companies, if their employees engage in client relations, restrictions similar to the ones mentioned in the German cases can be applied, but – if a private company should provide a public service by law, it shall also observe rules regarding neutrality and laity, according to the draft bill. Obviously, the legislative debate of this draft bill is not over yet, nothing is set in stone, the Senate shall decide on it sometime in May this year, but until then, scholars are left to work with this concept.

Based on the events of the past weeks, we can conclude that the size of the debate is expected to grow, and it does matter which previously resolved issues will gain new interpretations in light of new approaches. Based on the above, it is not at all evident that the wearing of religious symbols is a one way street, a matter of principle manifesting itself in forms of expression tied to one’s identity or rather – based on the German cases described above – “size does matter” and in some contexts there is no “one-size-fits-all” solution.

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

Balázs SZABÓ: COVID-19: Introduction to the administration law competences problem-set

The COVID-19 pandemic quickly consumed the whole world, so the European Union – as a global player – and the Member States – as sovereigns – had to take immediate action to protect their citizens and their role in the geopolitics and global economy. The pandemic management revealed some previously hidden or partial questions regarding the share of competences between the EU and the Member States.

I assume everyone agrees that both the citizens’ lives and the economy shall be protected from the effects of the pandemic. The big question here, is the how. As economic issues generally belong to the EU and the Member States’ shared competences due to the need for the proper functioning of the single market, the economic crisis management is fulfilled in many levels. There are competition law issues falling under exclusive EU competence, the application of which were (and are) terminated during extraordinary times. There are also crisis-management activities done on the regional level in the form of intergovernmental actions. Last but not least, there were and are several measures ordered and executed by the Member States on a national level.

Unlike competition issues, the governance of the healthcare sector and the coordination of social policy-making belong to the powers of the Member States as a main rule. Therefore, the pandemic – as a healthcare crisis – “awakens” national powers, while the economic consequences thereof touch upon shared and exclusive competences. The complex matrix of competences and powers result in a bureaucratic problem-set that did not fasten the actors’ reaction time.

Thus, the reason behind multilevel problem-solving is, on the one hand, the share of competences that do not enable the EU to act in all measures, and on the other hand, is that there are tasks that could be more effectively managed on a national or regional level than on a supranational level. Crisis management requires fast and adequate problem-solving, reacting promptly, and sharing knowledge, resources, and practices on the grounds of solidarity and loyal cooperation. Besides crisis management, actions for gaining resilience, encouraging the economy to regenerate are needed.

EU-level crisis management

The EU-level crisis management suffers from the above-mentioned problem set of multilevel governance. Within the frames of the current legislative environment, the EU’s steps are mainly reactive and supportive instead of being proactive. This does not mean as a straight consequence that proactivity is a primer characteristic to the Member States. However, the opportunity of being proactive is mainly given to the MSs as they own those powers that are necessary to act promptly.

Generally, the Council of the European Union (Council) is responsible for monitoring the situation and may only take action within the frames of the integrated political crisis response mechanism (IPCR). The IPCR is the EU framework for the coordination of cross-sectoral crises at the highest political level. It is mainly an information-sharing mode, however, it has different levels depending on the crisis level. Considering the changing situation and the different sectors affected by the COVID-19, the Croatian Presidency escalated the IPCR mechanism’s activation to full mode on 2 March 2020. The IPCR is still operating in full mode. The mechanism supports rapid and coordinated decision-making at EU political level. Through this mechanism, the Council’s Presidency coordinates the crisis’s political response by bringing together the EU institutions, the affected Member States (in COVID-19 times, all MSs are affected), and other key actors. However, as mentioned above, the ICPR is an information sharing mode including several tools to achieve the flow of information among the Member States and the EU. These tools include an informal roundtable, a crisis meeting chaired by the Presidency with key actors (representatives of the Commission, the European External Action Service, the EU agencies, the affected Member States, the European Council’s cabinet President, experts, etc.). In addition to the roundtable, the provision of analytical reports of the situation for decision-makers, a web platform to exchange and collect information, and a 24/7 contact point to ensure constant liaison with key actors is ensured.

Following the emergence of the pandemic, as a reaction to several needs, the European Union has adopted several temporary measures in several areas, such as competition (enabling state aid to national actors), research incentives, termination of Schengen acquis related to border controls and so on, mostlyin order to mitigate the consequences. A significant part of these measures is temporary (e.g., the deadlines for collecting signatures to European Citizens’ Initiatives (ECI)) and has been temporarily extended by legislative measures. The transitional measures function is to mitigate the effects of the coronavirus and help both the Member States and the citizens in recovering.

Arising from the general issues of powers mentioned above, an additional difficulty in epidemiological crisis management is that the EU does not have autonomous legislative powers in healthcare and social policy. Thus, it had to coordinate, assist, and support the health measures that fall within the Member States competence so that each Member State planned to deal with the epidemic with a different health care system, with altering levels of preparedness and capacity, economic background, and resolution mechanism. These circumstances sometimes differ within one Member State. Therefore some regional solutions are considered more effective than supranational steps.

Concerning healthcare management, social policy issues, and the social security systems, any possible interference with national competences may be sensitive. Member States address these issues as part of their “maintained sovereignty” as 9/2018 HCC decision concludes in section 30 of its Reasoning. As long as the guiding principle here is subsidiarity, the situation will not change. There may be a ground for discussion about the healthcare and social services issues in the frames of Union-level conference-series on the future of the EU. However, these may cover only vis maior (force majeure) situations and not a general transfer of competence. The reason behind is the Member States’ differing economic development levels where social standardisation may lead to unexpected consequences. However, under extraordinary circumstances, the need for cooperation and active solidarity – including all forms of that – is warmly welcomed.

The consequences of the “Competences” problem-set

The analysis of the pandemic’s health and economic effects and the development of responses have repeatedly raised the need for common competences, mainly by the European Parliament. However, common health and social issues management is not on the agenda of the European Council and of the Council of the EU. These issues are susceptible ones that need to be examined in a complex way, not isolated to particular policy areas or certain actors.

Placing health administration at the EU level would necessarily have a spill-over effect on social policies, social security, pensions, taxation, and employment, only to emphasize the most critical areas, which fall within the Member States’ powers.

Thus, common regulation of health administration and social issues would be a step towards a federative Europe – the eternal dilemma between the Member States since the beginning of the integration.

The pandemic contributed to the rebirth of former dialogue on the directions of the integration. The old story of “Federation versus Confederation” with the emphasis on intergovernmentalism maintained.

At present, the political will of Hungary and the Central and Eastern European Member States is representing the concept of a ‘Europe of Nations’ arising from Charles de Gaulle compared to the concept of federal Europe. The answers of the pandemic and the need for its supranational treatment therefore vary from state to state.

COVID-19 taught us that a worldwide healthcare crisis does not respect national boundaries. It also showed that there is no unified, one-size-fits-all solution for the economic and healthcare issues present. States with no lockdowns and restrictions (e.g. Sweden) also face backlash such as those states that reacted more strictly to the pandemic.

Formerly and generally, common problems required brainstorming and – where it was possible – joint problem-solving. Recently, tackling coronavirus required governments to do everything in their power to protect their citizens – and not just from the virus. Besides the emerging problem of the COVID, the lack of hospital capacities, the increasing unemployment rates, the urgent need for vaccines and research for long-term solutions, the countries also faced some of the backward of the digitalisation, too. Especially concerning the free flow of disinformation.

Being a member state of the EU, European states were also softly forced to cooperate and act on the grounds of solidarity, which has no uniform definition; thus, every state understood different (re)actions under that. In general, it meant working together to help bring people through the pandemic and reach beyond their borders to play a part in supporting other countries. Some states sent masks and breathing machines to other states, while others sent healthcare workers, doctors, nurses to highly infected territories where human resources were lacking. Some countries transported patients to other states where the hospitals could care and cure them.

Among the Member States’ solutions, for example, the Swedish model focused on the economy’s functioning, with minimal restrictions, and aimed at obtaining flock immunity as soon as possible. In other parts of Europe, e.g., in Central and Eastern Europe, individual states introduced seemingly drastic restrictions during March and April 2020; later more restrictions came in early 2021. These include border closures, travel restrictions, restrictions on entry into the country, remote operation of public educational institutions, and exit restrictions. To restrict the free movement of persons for public health reasons, we saw several and significantly different patterns in spring 2020, all of which helped slow down the virus’s spread. Most of these measures are being applied again by states now, in March 2021.

Given its competences and the resulting opportunities, the European Union was primarily able to contribute to managing the pandemic’s through acquiring equipment, research and medicine development, and the financial support of vaccines’ development and apply some limitations to exports with regard to the needs of the MSs. The keyword in pandemic management has become solidarity, which, in my view, illustrates well the lack of Union-level competencies for problem-solving in this regard.

Positive consequences of the pandemic and lockdowns: the development of e-solutions and spread of their application

The virus situation has affected and continues to affect almost all sectors today, of course, not to the same extent. The use of (modern) technical devices (info-communication technology, ICT) has increased rapidly in the recent decades, as their demand is growing continually. It can be observed, that this change has helped to achieve more efficient and faster administrative administration, as the role of technology tools in public administration is becoming more and more important, especially nowadays, when the “space” of personal administration has decreased, due to the pandemic. We live our lives almost totally online, remotely (where possible), which forces us to use our ICT devices daily.

As a result of technological development, it is now easier and faster to carry out public service tasks. E- and m-government has brought about an infrastructural transformation that affects the organization, the technologies used, the procedures, and the content. The use of ICTs makes large-scale administration more efficient (both in time and resource use).

In my view, the pandemic has clearly shown how vulnerable we are. A series of sudden problems has shown how much the administration needs to improve and the potential for technical tools.

Indeed we have all experienced and are experiencing a complete change in our lives over a few months. Suddenly, the importance of atypical and remote solutions has increased. We can work remotely, in the home office, our children take part in distance learning, the role of our info-communication tools has perhaps surpassed all previous developments in that our work posed new challenges (to name just a few everyday examples: remote connections and costs, infrastructure).

The health crisis has – of course – caused a complete change in lifestyles not only at the level of individuals but also in the lives of public bodies and EU and international organizations. In this “apocalyptic” situation, technology provided almost instant solutions, which allowed for online deliberations and electronic voting thanks to a wide range of ICT tools. Of course, this has posed new challenges to institutional management, including technical and data security and cybersecurity. Some technological advances have been available for years, e.g., the opportunity for online conferences and meetings facilitating remote work, but until the pandemic was far, we did not apply them in our everyday lives. Still, the extraordinary and immediate transition has shed light on the importance of personal relationships, which a virtual presence cannot replace. The pandemic simultaneously revived the importance of technical means, highlighted the role of atypical solutions, and made everyone feel the painful nature of the lack of personal connections.

The regulatory environment is only slowly able to keep pace with these sudden changes, with plenty of transitional provisions to manage the crisis and the restitution of the changing medium internal. After the pandemic, we can conclude the pandemic’s real results and outcome in different fields.

However, at this point, it could be said that ICT tools can serve a new dimension in new administrative tasks. Smartphones are the most common info-communication tools; their application is wide, even in Hungary’s poorest regions. The development of m-solutions (e.g., applications) is not only an opportunity now, but essential.

The role of these mobile applications is also significant in pandemic follow-up to track the spread and analyse the symptoms and recovery data of the users. Testing and contact research are crucial to preventing the virus from spreading and conclude later cases. Concerning contact research, EU leaders discussed the Commission’s initiative on interoperability between mobile applications and work on a common public health passenger identification form, which could similarly facilitate contact research. New dimensions of smart devices have emerged in the last few months, which will be permanent and remain with us even after the pandemic.

In addition to the many benefits of the application, there are of course, some threats regarding the misuse of personal and sensitive personal data. In cooperation with the Member States, the Commission, the European Data Protection Supervisor, and the European Data Protection Board have also drawn up guidelines for developing Covid-19 pandemic applications to support compliance with data protection rules. The applications must fully comply with EU data protection provisions.

Within this legal environment, a Hungarian application called ‘Virus Radar’ was developed. It shows whether the user has been proven to be infected with the COVID-19 or not. Another application, called ‘Home Quarantine System’ (HQR) has also been created. This allows authorities to continuously monitor patients’ health status placed in-home quarantine and their compliance with quarantine rules without personal contact. These two Hungarian applications could be excellent examples of how the changed circumstances force more modern solutions in many administrative areas.

The problem set drafted in the introductory part remains open until the Member States’ intentions do not change regarding the share of competencies. The COVID-19 has shown us, that transnational crisis management cannot be solved without cooperation, flexibility and mutual solidarity. The other aspects – such as the modernisation, development of public administration, etc. – couldonly be treated after the main competence issues are solved.

Balázs SZABÓ PhD is an assistant professor at the University of Miskolc (Hungary), Institute of State Sciences. Since 2011, Balázs Szabó teaches public administrative law and e-government law. Balázs Szabó obtained his PhD degree in 2020 with summa cum laude, the topic of his dissertation is the technical and technological modernisation of the Hungarian public administration system in the first two decades of the 21 century. His current research topic is the usage of ICT tools – mainly smart-phone applications and drones in the practice of special public administration. Since 2014, Balázs Szabó is a member of the editorial board of the ,,Currentul Juridic” Scientific Journal. Since 2019, Balázs Szabó studies economics at the University of Miskolc.

Besides his academic career, Balázs Szabó is the Chairman of the Supervisory Board both of the B.A.Z. County Territorial Organization of the National Hunting Chamber and the Regional Association of Hunters and Game Managers of Northern Hungary and the member of the assembly of delegates of their national organizations.

Contact: joghunt@uni-miskolc.hu

Barnabás LENKOVICS: The Invisible Constitution: Between Power, Law and Interpretation

The invisible constitution is actually ‘invisible power’. Ever since the constitution is an immanent part of the legal system, the Constitution is law. It is a ‘power tool’, an instrument of power. The essence of power is the domination of will: the power can force its will on others, and those who exercise power on others. There are branches of power in order not to concentrate too much and too great a power in the hands of one man (say an otherwise enlightened but absolutist ruler). There is a legislator (legislative), an executive (government) and a law enforcement (judicial) power. The first step in the application of the law is to find the legal elements corresponding with the relevant elements an interpersonal relationship and to reconcile and match them with each other (subsumption, subsumptio). Next up, the interpretation and the unveiling of the content of the chosen and applicable law, which, in essence, is nothing else but the exploration and interpretation of the legislator’s will and purpose, i.e. the decision of power. Thus, the interpretation itself is power. If the Constitution is at the top of the legal system and the Constitutional Court sits at the apex of the interpretative forums, then the Constitutional Court itself is the supreme authority. The actual will of power will be what the Constitutional Court will say as the last word. Supreme power is held by the one with last word, the holder of “final interpretation”. In a democracy, however, all power and supreme power belong to the people. However, this is rarely practiced directly (by popular vote). In representative democracy, this is the main authority of the People’s Representatives (National Assembly, Parliament). The supreme power of “final interpretation” of the Constitution is that of the constitution-making power (authentic, legislative, interpretation by the ‘pouvoir constituant’). This is rarely exercised by the constitution-making power. For the Constitutional Court, on the other hand, it is a continuous, constitutional duty and obligation. The Constitutional Court is not an “one-man” institution, but a body, making its decisions by a majority of votes. The greater the majority, the more convincing its decision is, and vice versa. The composition of the body and the value-system of the majority of its members also matters.

The invisible constitution is actually visible law: the mandatory norms of international law (UN Universal Declaration of Human Rights 1948, the International Covenants of Civil and Political Rights and Economic, Social and Cultural Rights 1966/1976 and other human rights conventions), the Rome Convention (1950, together with the ECtHR’s practice) plus the EU’s “constitution” (Lisbon Treaty, Charter of Fundamental Rights, CJEU case-law, etc.).

These are new layers of law over the national legal system and the national constitution. The more layers of law, the more difficult, complex and contradictory the application of the law is, the more levels the forum system for the application of the law is, and the more difficult it is to ensure the uniformity of law. In this increasingly complex legal system, it is necessary to find the right forum and the applicable law, and then, by interpreting it, to explore its correct content, and finally to make an erga omnes, final decision. The law revealed, interpreted and applied in such a decision will become visible and traceable as living law, a living instrument.

According to Károly Szladits (a central, historical figure of Hungarian private law tradition), this measurement correlated to the highest level of legal and fundamental principles and framework-norms is “evaluative interpretation”: exploring the meaning of an ambiguous legal provisions by using “measures of correctness”. These measures of correctness of the interpretation are given by the basic ideals of the law. They must be based on the assumption that law seeks fair results with meaningful objectives. External indicators and value-ideals should also be taken into account, such as: A) The current perception of values in the leading social strata; B) The latest achievements of modern jurisprudence; C) the values of intelligent ordinary people; D) The concept of professional circles and professions; E) Patterns in usage and customs; F) The general cultural ideals of humanity; etc. The interpretation of the law thus defined is considered to be the correct, objective interpretation (Szladits Ed. Volume I, Hungarian Private Law, 1941 pp. 156-158.).

The most recent (20th, 21st century) general (universal) cultural ideals of humankind are fundamental freedoms and human rights (their 1st, 2nd, 3rd generation, etc.). These ideals (which can also be called an ‘invisible constitution’) should be implemented today and in the future by means of national constitutions and legal systems. The distance and difficulty of approaching reality and ideal (the ‘sein’ and ‘sollen’) has been known since Aristotle, and this distance and difficulty varies from age to age and state to state, but is always a given. An ideal is ideal exactly because it is always necessary to strive for it, although we know that it is never attainable. Even if reality approaches it, the ideal transcends to a higher level. Therefore, measured against the general cultural ideals of humanity – transcribed into law: against legal concepts – reality will always be unlawful, illegal. If the State is the one obliged against the holders of human rights entitled to claim compensation for the violations of their rights, the State may be liable for misconduct at any time, and may be liable for damages on an objective basis (regardless of attributability and exculpation). Even if, for material or cultural reasons, it would be incapable of enforcing human rights to a higher, “almost ideal” level, would it be capable of mass compensation? If so, then it’s probably worth setting up a “litigation business”. It would be good to resolve this paradox in order to protect rich countries and the poor African, Asian, Central and South American states (and human rights).

Why was the concept of ‘invisible constitution’ and ‘strong’ Constitutional Court necessary during the period of regime change in Hungary? Because of two assumptions: one is that in the first free elections, the parliamentary majority and government power will be acquired by the MSZP; the second is that the former party nomenclature will also give the first President of the Republic. None of the assumptions turned out to be true, but the strong Constitutional Court (the strongest in Europe) remained. “the judge of the legislature”, annulment of laws, the possibility of actio popularis, etc.).

The Hungarian Constitutional Court exerted a great influence not only on the development of the legal system, but also on the constitutional value system, and through these indirectly on the political, economic, social, cultural, etc. subsystems, and the whole process of transition. The real dividing line here was 2010, the two-thirds parliamentary majority and, along with it, the acquisition of constitution-making power by one political force. The reason for this is twofold: the mass negative feeling of “we did not want such a change of regime” (which also cast a shadow on the Constitutional Court); and the global financial and economic crisis of 2006-2009, including Hungary’s renewed indebtedness by the old political forces appearing in the robes of ‘new power’ and the threat of bankruptcy, which would have had a mass of private insolvencies and unforeseen political consequences. The ideal that all power in a democracy belonged to the people became a living instrument, and the electorate’s will rearranged the system of political power (“second regime change”), which also rearranged the preexisting rule-of-law system of division of powers. Life itself, new circumstances, and the new political environment have changed the “supreme authority of interpretation” of the Constitutional Court and the self-perception of its role. The Parliament (as a pouvoir constituant, i.e. constitution-making power) has taken back the major interpretive-evolutive power from the Constitutional Court, along with the adjacent supreme political responsibility.

The Constitutional Court must continue to protect and preserve – not only the text of the norm in textualist manner, but also its value content. The Fundamental Law is the “introductory provision” of the whole legal system, the source of all branches and fields of law, a systematic collection of the broadest framework norms, legal principles, fundamental principles and values. The legislative, executive, and judicial branches of power operate within this framework. This is what the Constitutional Court oversees, also staying within the framework. The main issue of this is the vertical and/or horizontal application of constitutional fundamental rights, their direct or indirect enforcement (which was also a major debate in the process of codification of the new Civil Code and has not yet come to a conclusion). The basic concepts of dogmatic and legal relations need to be rethought: e.g. the concept, ratio and relationship of imperative, cogent and dispositive norms; the ‘overlapping’ and divergence of constitutional fundamental rights and simple legal rights; the possibility of enforcing claims under international “ius cogens” norms or these norms themselves, or the nature of the moral obligations imposed on states, etc.

With the interpretation of the historical constitution and constitutional identity, the Hungarian Constitutional Court does not extend beyond its rule-of-law function, received from the constitution-making power. The interpretation of these concepts requires not activism and newer invisible constitutions but culture beyond the law, thinking in a broad context (historical, economic, financial, social, environmental, comparative law, sometimes natural sciences and their complex application). This requires intellectual effort and courage (fortitude), but also the virtue of moderation (temperance). The Constitutional Court is also barred from abuse, arrogance and rivalry of power. That is what Béni Grosschmid (another emblematic figure of Hungarian civil law at the turn of the century) also thought, who said that “being a lawyer is not a matter of profession but of education!”

If the European Union falls apart, the European identity (as European civilisation) will perish with it, and Hungarian national identity will also share the same fate. Both must therefore be saved (at the same time, together!). At present, instead of forcing the United States of Europe, we need to work towards a community of solidarity formed of strong nation states. The European Union is an alliance of freedom, justice and solidarity, where the Member States have solidarity with each other and with the global world. According to János Zlinszky (professor of Roman Law and a former Constitutional Court judge), solidarity is the legal denomination and institutionalisation of Christian love for neighbours. According to Pope St. John Paul II, Europe is the civilisation of love. That is why Europe is so attractive in the global world, and that is why the soul of Europe must be saved, as Robert Schuman, the father of Europe stated.

The system of barriers and balances (i.e. checks and balances) that is still being refined forms an integral part of the rule of law. This can be projected and even applied to the European Union as a whole as well. The German Federal Constitutional Court (and thus any other national constitutional court) is therefore a barrier and (counter)balance to the EU’s Luxembourg Court and to other versions of unification. It is therefore necessary that EU and national institutions seek balance not the opposition and rivalry of power. The ECtHR and the CJEU can also learn from the German Constitutional Court, and perhaps even from the Hungarian Constitutional Court (see. “Red Star” decision, the decision on registered civil unions).

As long as the CJEU and the ECtHR consider themselves supreme powers of interpretation, they want to dictate. Instead, they should be cooperating partners. Then there would be no such scandalous decisions entailing widespread opposition as the so-called “Kruzifix” decision (Lautsi and Others v Italy, 2011). This resulted in a distorted version of the rule of law, the accusation of “judicial domination” (Richtermacht), and, in the broader sense, the scientific horror of the “juristocracy” replacing the democratic rule of law.

Following patterns and mechanical “code copying” should be replaced by consensus-seeking cooperation between equal and heterarchic professional partners. The objective is common: social peace on a nation-state, European and global scale. It is only in peaceful conditions that there is a chance to resolve other, more serious problems (climate disaster, global social divide, migration), and to address emergencies that are even more serious than the pandemic.

Barnabás LENKOVICS, professor of civil law, former president of Constitutional Court of Hungary (2014-2015) as well as former Parliamentary Commissioner for Civil Rights (2011-2007).