István Üveges: Plain and/or Simple?

by admin | Sep 14, 2021 | General

The Plain Language Movement and its Possibilities in Hungarian Legislation

Introduction

The Plain Language Movement (hereinafter: PLM) is a US-based initiative that can be seen as a field of research, a line of inquiry, a methodology, or even a branch of language education/language design. It mainly concerns the intelligibility of official (and in particular: legal) texts and therefore it is taught in law-focused or specialized legal trainings as well, with a focus on legal language and drafting.

Transparency and predictability of the law is a requirement of the rule of law, it is enough to mention the principle of ‘clarity of norms’ (‘normavilágosság’ in Hungarian), and that is what the PLM ultimately promotes: the understanding (intelligibility) of the law by non-lawyer recipients, i.e. in the case of laws and legal texts, the general public. The role of these requirements is greatly enhanced nowadays, since the increased flow of information resulting from globalization and technological progress has led to a quasi “juridification” of societies. (For a detailed explanation of the concept, see an analysis by Blickner and Molander here.) The law applies specific rules to more and more situations in life, and these rules are increasingly present in the everyday context.

In relation to this , there is an obvious need for citizens to understand as much as possible, and as easily as possible, the norms and, where appropriate, the specific decisions that are binding on them, is becoming increasingly important. Many times, national governments and administrations as well as supranational institutions issue drafting guidelines for lawmakers trying to sensitize them in this field.

In this paper, I will briefly describe research on PLM in Hungary, and the reasons behind the movements’ major successes overseas.

About the Plain Language Movement

PLM has a long-lasting history (Felsenfeld – Cohen 1981, Dorney 1988 etc.) in the Anglo-Saxon world. Since its very beginning in the late 1970’s, its guidelines (e.g. Federal Plain Language Guidelines, applied by US governmental agencies) and principles have become known in several other countries, even in non-English-speaking ones like Norway or Sweden (Nord 2018).

In the United States, the idea that citizens should be aware of and understand their rights and obligations was brought to the fore in the 1960s, and this provided the basis for the extension of individual empowerment not only to the existence of laws protecting consumers, but also to the wording of official documents. In the context of the PLM, this has primarily taken the form of standards for the language used in drafting (Finch 1985).

However, the subject of the Movement is a kind of analysis of language as a means of communication, its researchers were almost exclusively representatives of jurisprudence for a long time, while today it is best understood as a kind of interdisciplinary trend. From the very beginning, it has sought to formulate stylistic, syntactic and lexical recommendations, especially for the use of official language, with a view to improving the comprehensibility of texts (Tiersma – Solan 2012: 67-70).

The impact of PLM can be illustrated by examples from both the US and the EU. For instance, in 2010, President Obama signed into law the Plain Language Act of 2010 for strengthening the importance of effective and clear communication of the federal agencies, while in the European Union’s context, several Nordic countries have laws that regulate clear official communication[2]. Nevertheless, Hungary has somewhat moderate practical results in the topic so far, at least as far as the lawmaking is concerned. On the one hand, according to the decision of the National Office for the Judiciary, 2017 was the “Year of Public Understanding” in the Hungarian courts. Within the framework of this, a mandatory training was also held in all courts of the country on “Public Understanding and Professionalism in the Application of Court Law”. Among its declared objectives was the promotion of “user-friendly” communication by court organisations and the emphasis on the service character of the courts. Although official information is limited, it is known that the National Tax and Customs Administration also runs (or at least has run) an accessibility programme, which, according to their statement (and the position advertised on their job portal at the time), was also planned to include a linguistic expert.

Furthermore, perhaps the most important achievement is the wording of IRM (Ministry of Justice and Law Enforcement) Decree 61/2009 (XII. 14.) on the drafting of legislation. The text of the Regulation (§ 2) stipulates that “The draft legislation shall be drafted in accordance with the rules of the Hungarian language, in a clear, plain and unambiguous manner.” However, its shortcoming is that the Decree does not contain any reference to the principles on the basis of which it considers feasible to measure comprehensibility, nor does it contain any reference to the development of a “quality assurance system” regarded to the issue.

After a thorough examination, one can find references to the so-called plain language guidelines (eg. Cutts 1995, 1999) in documents issued by the European Commission as well, e.g.: Europa Web Guide; the official rulebook for the European Commission’s web presence or the English Style Guide for authors and translators in the European Commission (for more on the objectives of EU language policy, see e.g. Petra Láncos’ dissertation). Even though these are typically not legislative acts in the narrow sense, the simple fact, that such guidelines (like the Article 29 Working Party’s guideline[3]on the General Data Protection Regulation – aka. ‘GDPR’) makes a connection between the PLM-related literature, and the recommended interpretation of words, like “clear” and “plain” language indicates the impact of the Movement world-wide.

Main findings of Law and Language Studies in Hungary

In a modern sense, Hungarian research on the interaction between language and law, which focused on the issue of intelligibility, began in the 1980s with regard to written texts, and in the early 2000s to spoken (legal) language slowly became the focus of interest (cf. Vinnai 2014a).

The first such empirical research (regarding the spoken legal language) was carried out at the University of Miskolc (with the participation of lawyers and linguists) under the name of “Language use in legal proceedings. Language translation and fact construction in the process of establishing legal facts” FKKP-project (Szabó 2010). Its main objective was to study the intralingual translation of the lay narratives in criminal proceedings into legal (technical) language statements during police and court evidence. Among the main results, Vinnai (2014b: 62) highlights the confirmation of the hypothesis that the effectiveness of linguistic communication is also a fundamental condition for the effectiveness of factual findings, and therefore the awareness of linguistic and pragmatic regularities in the application of law is also necessary. In this connection, Vinnai points out confirming the hypothesis that intelligibility should be regarded as a fundamental requirement of the right to a fair trial – which contributes to reducing vulnerability, too (ibid. 63).

The link with the linguistic dimension of proceedings can be described as follows: “From a legal point of view, a procedure cannot be fair if it is not fair from a linguistic, communicative point of view. If, therefore, problems, gaps or distortions arise in the interactions between lay people and legal professionals, this has a significant impact on the fact-finding process and ultimately on the final outcome of the proceedings, the judgment.” (Ibid.: 63).

Another aspect of the linguistic dimension of Legalese[4] can be connected to the issue of “access to justice”. In its original use, this definition was intended to draw attention to the unequal distribution of social resources (e.g. time (needed for administration), money, education, etc.), the lack of which may hinder the invocation of law (cf. Szilágyi 2016). On the other hand, taking into account the intelligibility of communication for the layperson, it can also be extended to the deficiencies in the ability to enforce law in the absence of (commonly) understandable wording.

As a continuation of the above FKKP research, between 2014 and 2018 other investigations were carried out (Linguistic Aspects of Due Process. Impact of legal language on access to justice[5], the results and main findings can be seen here), where the main interrelated questions were the following:

(i) To identify the differences between legal and lay language that may hinder understanding,

(ii) whether the obstacles could be an obstacle to a violation of due process and access to justice,

(iii) if both of the above are met, to propose solutions (Vinnai: 2014b: 67).

Accordingly, during the research, the contributors also used corpus linguistic methods to analyze in detail the linguistic features of Hungarian legal (technical) language. Quantitative studies have revealed specificities that are considered to be a barrier to understanding; the nominal nature of legal texts, the high number of impersonal structures and the relatively high number of light-verb constructions. In terms of text length, almost all sub-corpora are characterized by the use of words longer than colloquial, but the average length of sentences is also strongly dependent on the specific text.

Self-regulation as a potential way?

Although some legislation had already declared the importance of using plain language, the publication of the summary opinion of the working group on the analysis of case law established to examine the subject of “Decision Drafting” on 17 January 2013 by the then President of the Curia (the Supreme Court of Hungary) can be considered a significant leap forward in comparison to these (Orosz: 2014).

The working group examined the practice of the civil and administrative sections of the Curia in the context of a dedicated study of drafting and the aspects of document drafting that support the clarity of the text. The study involved representatives of several disciplines, which is in line with the interdisciplinary nature of the problem of comprehensibility issues.

The mentioned international precedents of the investigation include the Magna Carta of Judges adopted in Strasbourg in 2010 and the Vilnius Declaration. The former document states in point 16 that “Court documents and court decisions must be drafted in plain, simple and clear language”, the latter stresses that “The judiciary must take the necessary steps to strengthen public confidence in the courts. (…) The drafting of judgments and other court decisions in clear and comprehensible language is essential to achieve this goal” (cf. Orosz: 2014).

The IT segment of the working group looked at the possibilities for automated support for decision support in more detail. Some of their main findings on implementation options concerned the improvement of integrity between different administrative systems, while a larger group focused on the accelerated insertion of often repetitive but essentially template-like elements of bound text variants. The latter include, for example, the possibility of selecting the subject of the lawsuit from a list or the automatic insertion of the relevant text after the legal text has been indicated.

Along the lines of faster anonymization of sensitive data, reference is made to the use of computational linguistic advances such as the use of name recognition algorithms that would allow the automatic marking of personal names, amounts of money, and personal identification data within the document. In addition, there are scattered references to other solutions, such as the construction of a ‘one-click’ referencing system between paragraphs, but these are not of linguistic relevance (Orosz: 2014, Annex 4).

In its summary, the IT working group also mentions that a system based on their recommendations could fulfil the function of a kind of intelligent text editor, which is already used in abroad in several fields of practice. However, the document, also available as an annex to the summary opinion, known as the Style Guide, contains more far-reaching linguistic proposals.

In addition, obviously, there have been a number of other initiatives, such as the (above mentioned) “Year of Public Understanding” announced by the National Office of the Judiciary in 2017, or the National Tax and Customs Administration’s public understanding programme. However, due to the limitations of the present study, I will not go into more detail.

From a linguistic perspective, it is particularly noteworthy that the “stylistic” proposals not only contain important recommendations from the perspective of the clarity of norms (which focuses only on the legislator’s point of view) but their proposals are also consistent with the promotion of intelligibility in a more general sense, from the viewpoint of laypeople.

Reasons behind the success of PLM in Anglo-Saxon countries – conclusions on the situation in Hungary

In the light of international and Hungarian results, the question arises: what factors have contributed to the difference between countries, where the (written?) communication of public officials from a layman’s perspective is regulated by law and Hungary, where PLM results are much more moderate on the level of editing legal texts produced by the state. However, the initiatives taken so far only had an undeniably symbolic importance, given the lack of any concrete legislative commitment to prioritize clear and concise (in other words. plain) communication from the government’s side.

The possible reasons for this can be deduced by evaluating other countries’ practices and patterns, more specifically by identifying the social factors that have created a favorable context for efforts to promote communication in the countries in question.

In my opinion, the factors that lead to success in the context of PLM can be summarized as follows:

1. In the case of the United States, the language used by individual agencies to communicate has traditionally been seen as a medium of advocating democracy. In this cultural context, it is therefore expected that all such channels should strive to use language that is appropriate to the needs of the clients who turn to them for help.
2. The relative openness of the legal profession to self-reflection in this direction; this is particularly important since no other language is as dominant as that of the legal profession in its dealings with the state and in everyday affairs, and it is understandable that the most basic social expectations are expressed in this respect.
3. The study of legal language from a linguistic point of view has a long tradition in the USA, and an interdisciplinary approach is not new in the field, which is why there are already established channels for cooperation between the professionals concerned.
4. The need for clarity in the use of legal/official language is an integral part of legal culture (cf. Friedman 1975).

In addition, it is important to highlight another aspect (which can be demonstrated clearly by the Hungarian example), namely;

5. the role of the state in enabling citizens’ understanding by facilitating their access and comprehension of legal procedures and texts.

This kind of engagement has been rooted, since around the 2010s, mainly in the organizational culture, which sets the guidelines for the functioning of the office system and foresees its main directions of development. This is particularly important where governmental agencies are keen on adopting principles from the private sector, like in the US. Informally, organizational culture can also be described as setting out the “way of doing things”. However, it is usually seen as a key driver of performance, providing a framework for decision-making and for judging the effectiveness of the organization. The emergence of such cultures is driven by trends such as the trend towards digitalization in data storage, data-driven approaches and the increasing penetration of artificial intelligence in many disciplines, and globalization in the world economy.

The buzzwords that most characterize the organizational culture that the US government has sought to develop over the past decade often call for the application of some principles already known, or perhaps established, in the competitive sector, such as:

● “open government“, which values transparency (for instance, making government information more accessible, particularly by publishing more online) and cooperation (within the Federal Government, across levels of government, and between the Government and private institutions as well, details can be seen here),

● a culture of learning: prioritizing relevance and efficiency in order to adapt quickly to changes in the environment

● high performing organizations: productivity and innovation are key, as is employee and customer satisfaction (Customer Experience – CX[6]).

In relation to the latter, customer satisfaction, there are two important value drivers that have been regularly linked to the topic in recent years:

● most importantly, trust in government and government agencies is highlighted as a measure of satisfaction,

● the other is that the use of clear communication is seen as a key factor in avoiding complaints and grievances and in building satisfaction and trust, which means that the linguistic dimension of communication is becoming much more important.

All these conditions therefore create the ideal environment for the principles of the PLM to be put into practice and, more generally, for official (and in particular: legal) texts to be made more accessible.

Summary

In this paper, I have briefly summarized the main theoretical background of PLM, the Hungarian implications of the topic, and the main plausible reasons behind the success of PLM in the US and in the Nordic countries.

I have briefly explained that the solution to the problem of legal / official texts’ comprehensibility (from the perspective of the non-professionals) is a highly complex issue which may involve either the development of a legal meta-language or the revision of existing communication materials in case of documents addressed specifically for the lay public. I also concluded, that despite the complexity of comprehensibility efforts, the need to strengthen confidence in the legal system is still a priority today, and the more significant governmental engagement is the key to solve this issue in Hungary.

In the Hungarian context, it is of particular importance to emphasize that for people who do not know legal language, understanding legal texts is one of the basic tools of their advocacy, since if they do not want to become vulnerable to institutions and want to know, use and comply with the opportunities, rights and obligations offered to them by the legal system, understanding legal language(s) is also indispensable. Although a number of programmes have addressed this issue, there is still no legislation in Hungary that would regulate official communication in this respect in a satisfactory way.

However, it should be noted that the issue of comprehensibility cannot considered simply a question of language use. It’s a more complex phenomenon that involves e.g. the words and grammatical structures used in the given text, but also the conceptual complexity which the text expresses. Therefore, any ambition aims to make legal texts more readable to laypeople should take into account all these specificities. Moreover, there are inherent complexities in the legal domain’s texts, which make the PLM’s goals even more hard to achieve.

Bibliography

Cutts, Martin: Oxford Guide to Plain English. Oxford University Press (1995)

Cutts, Martin The Plain English Guide. Oxford University Press (1999)

Dorney, Jacqueline M.: ERIC/RCS Report: The Plain English Movement. In: The English Journal Vol. 77, No. 3, (1988) 49-51.

Felsenfeld, Carl –Cohen, David S. – Fingerhut, Martin: The Plain English Movement in the United States: Comments. In: Canadian Business Law Journal 6 (1981) 408-452.

Finch, James E.: A history of the consumer movement in the United States: its literature and legislation. In: Journal of Consumer Studies and Home Economics 9. (1985) 23-33.

Friedman, Lawrence M.: The Legal System. A Social Science Perspective. New York: Russel Sage Foundation (1975)

Nord, Andreas: Plain Language and Professional Writing: A research Overview. Institutet för språk och folkminnen, Report (2018)

Orosz, Árpád: A “határozatszerkesztés” vizsgálatának tárgykörében felállított joggyakorlat-elemző csoport összefoglaló véleménye. In: Glossa Iuridica I. évf. 2. (2014) 165-180.

Szabó, Miklós (szerk.): Nyelvében a jog. Nyelvhasználat a jogi eljárásban. [Prudentia Iuris 28.] Miskolc: Bíbor 2010.

Szilágyi H., István: A jogtudat-kutatások elméleti kérdései. In: MTA Law Working Papers, 2016/12. (2016)

Tiersma, Peter –Solan, Lawrence M.: The Oxford Handbook of Language and Law. New York: Oxford University Press. (2012)

Vinnai, Edina:. A magyar jogi nyelv kutatása. In: Glossa Iuridica. A magyar nyelv és a magyar jogi műnyelv megújulása. 1. évf. 1. (2014a) 29–48.

Vinnai, Edina: Az első „jog és nyelv” kutatás hazánkban. In: Alkalmazott Nyelvészeti Közlemények, Miskolc, IX. évfolyam, 1. szám (2014b) 60-67.

[1] Supported by the ÚNKP-20-3 – New National Excellence Program of the Ministry for Innovation and Technology from the source of the National Research, Development and Innovation Fund.
[2] E.g.: The Swedish Language Act (2009:600), official English translation available: https://www.regeringen.se/contentassets/9e56b0c78cb5447b968a29dd14a68358/spraklag-pa-engelska,
The Finnish Administrative Procedure Act (434/2003), official English translation available:
https://www.finlex.fi/en/laki/kaannokset/2003/en20030434.pdf.
[3] Guidelines on Transparency under Regulation 2016/679
[4] For a detailed overview about the term, see e.g.: https://sas-space.sas.ac.uk/3751/
[5] OTKA K-112172
[6] OMB (Office of Management and Budget) Circular A-11, Section 280 – „Managing Customer Experience and Improving Service Delivery”

Supported by the ÚNKP-20-3 – New National Excellence Program of the Ministry for Innovation and Technology from the source of the National Research, Development and Innovation Fund.

István Üveges is a 4th year Ph.D. student at University of Szeged, Doctoral School in Linguistics, and a 3rd year Computer Science student also at University of Szeged. He is participating in TK-MILAB, “Elaboration of a domain-specific method for Hungarian sentiment analysis” project at Centre for Social Sciences, Artificial Intelligence National Laboratory. His main interests are legalese (legal language), Plain Language Movement, Natural Language Processing, Artificial Intelligence and Machine Learning.

Kinga KÁLMÁN: Where is the ‘mushroom cloud’?

by admin | Aug 25, 2021 | General

The PSPP decision’s perspective in one year of hindsight

This July, the Polish Constitutional Tribunal ruled that the Court of Justice of the European Union (hereinafter “CJEU”) acted ultra-vires imposing the obligation on Poland to abolish the Disciplinary Chamber established as part of its controversial judicial reform. The decision has swept over the world as an utmost thrill visualizing even a “Legal Polexit”. Some may argue that this step from the Polish court is one of the possible consequences of last year’s milestone judgment (hereinafter: PSPP decision) of the Federal Constitutional Court of Germany (Bundesverfassungsgericht, hereinafter: BVerfG ).

On 5 May 2020, the stagnant water of multilevel constitutionalism was stirred up by the PSPP as a “nuclear bomb”.[1] The BVerfG stated that the European Central Bank’s (hereinafter “ECB”) bond purchase program (hereinafter “PSPP”) and the decision of the CJEU declaring this program to be lawful is ultra-vires, disproportionate and objectively arbitrary, therefore not applicable in accordance with German law. The issue has swept across the European public law and constitutional discourse, even though we are not talking about a completely unprecedented case.

How does last year’s BVerfG decision depart from previous case law? Did it really open Pandora’s ultra- vires box in front of other EU member states? Which of the constitutional risks or opportunities would prevail? During the following lines, I seek answers to these and similar questions by (i) presenting the background of the case; (ii) summarizing the main arguments for the PSPP decision and, last but not least, (iii) comparing scientific critiques with a little more than one year of hindsight.

1. Context and history

To understand the context, we need to go back to the global financial crisis of 2008. In order to maintain the standard 2% inflation rate, the ECB launched the bond purchase program of public sector assets in secondary markets (PSPP), and bought central and local government bonds in the eurozone.

Subsequently, four groups submitted constitutional complaints to the BVerfG questioning the constitutionality of the PSPP from several aspects. The applicants argued that the German Federal Government and the Federal Parliament failed to act appropriately against the ECB decisions, despite the fact that they are disproportionate under the German Basic Law (Grundgesetz).

The BVerfG referred these questions to the CJEU for a preliminary ruling[2] on the same ground as the complaints and postulated that the ECB had not provided an adequate statement of reasons for the PSPP. The “response” from the Luxembourg court adversely confirmed the legality of the ECB’s decisions. It argued that the ECB should not exceed the monetary powers conferred on it in the Treaties[3] by the PSPP and its decisions do not run counter to the ban on budget financing. The CJEU identified the PSPP as a purely monetary instrument and thus disregarded economic policy objectives, which fall within the exclusive competence of the Member States. Consequently, it also considered proportionality to be justified in order to achieve the ECB’s stability and monetary objectives. In response to this judgment, the PSPP – apostrophized as a milestone of the BVerfG – was born, whose main arguments are to be discussed in the following point.

2. Main findings of the decision

The German court’s decision can be interpreted in its entirety trough the theoretical dogmas of the integration plan enshrined in the founding Treaties (Integrationsprogramm) and the constitutional responsibility for the integration (Integrationsverantwortung). The BVerfG has found the Weiss judgment of the CJEU ultra-vires which, as such, cannot bind the national court. This was supported among others by two prominent arguments: (i) firstly, the CJEU had ignored the economic policy implications of the PSPP program for the Federal Republic of Germany on the basis of an erroneous methodology, and (ii) the decision did not meet the B”comprehensive assessment” requirement, and failure to do so is contrary to the CJEU’s own case law.

It argued that while financial policy falls within the competence of the EU and its bodies, fiscal policy is an immanent competence of the Member States, which in no case can be transferred, not even in part, to the EU without amending the founding Treaties. In the field of proportionality, the BVerfG’s arguments follow from a similar point of origin. On this basis, the PSPP would comply with the principle of proportionality only if it does not lack the definition, consideration and balancing of the monetary policy objective of the program and its economic policy implications. Consequently, the CJEU exceeds the powers set out in the second sentence of Article 19 (1) of the Treaty on European Union (“TEU”) if the interpretation of the Treaties is incoherent and as a result considered to be objectively arbitrary.

By virtually creating a transfer union and extending its competence to the German budget,[4] the PSPP has been declared ultra- vires and conflicting with the German constitutional identity. The latter finding follows from the fact that the purchase of bonds, which involves a financial undertaking in order to recapitalize other countries, poses a threat to the principle of democracy and statehood by restricting the exercise of budgetary rights. In the fundamental rights aspect of the motions, they emphasize that the loss of autonomy over the budget restricts the right of German citizens to vote through effectively rendering the competences of the German Parliament void.

The BVerfG also declared the decisionsof the ECB implementing the PSPP program to be ultra-vires and obliged the German Government to enter into a dialogue with the ECB in order to promote sound consideration. Karlsruhe also banned Germany’s central bank (Bundesbank), to participate in the PSPP program as long as the ECB does not fulfill his obligation to state reasons equally in accordance with the BVerfG’s standards. This created a paradoxical framework concerning the rule of law, in which the Bundesbank could not conceptually take a legitimate decision, since it was bound by the decisions of the BVerfG as well as the CJEU and the ECB. Tensions have been fueled by the EU’s response: in a statement, European Commission (hereinafter: EC) President Ursula Von der Leyen has announced the possibility of infringement proceedings against Germany, but – one year in – there is still no prospect of such action on the horizon.

The particular legal tension was relieved within a short time. The ECB has complied with its obligation to state reasons for authorizing the PSPP Circular Program within the 3-month period specified in the PSPP decision, and the idea of infringement proceedings has been removed from the agenda. Although the long-term aftershocks of this ‘bomb’ (if any) may only crystallize from future court practice in the Member States, the academia has responded to the PSPP decision with rapid criticism, which I summarize in the next section.

3. Criticisms of the PSPP decision and suggestions for solutions

Even if only temporarily, the BVerfG has opened Pandora’s box in terms of ultra-vires review. The ‘dangers’ of this are somewhat mitigated by the multidisciplinary criticism from scientific discourse, objecting to the BVerfG’s position as fully and unanimously as it did in the past in relation to the Maastricht or Honeywell decisions.

In the context of the BVerfG’s examination of proportionality, it should be noted that the judgment also stated that a German court recognizes the proportionality of a decision or other measure only if stricter criteria are met. In its examination, it distinguished between the elements of suitability, necessity and equity and set the same standards before the Weiss decision. However, there is no justification as to why the BVerfG expects the same test from other courts.[5] In addition, it is worth noting the relevant case law of the CJEU, carrying out its proportionality test on the base of reasonableness except in deciding on restrictions of fundamental rights or freedoms.[6] The German court here failed to apply the same differentiated and perspective approach it wanted to read from the CJEU. The BVerfG required the ECB to balance the monetary policy objectives with the diversity of economic, fiscal and political aspects of the program. Here are a number of examples of the latter, from undermining the independence of the ECB and the budgetary discipline of the Member States to the loss of private savings or the creation of real estate. However, in its assessment, the BVerfG considered only certain fiscal costs to be relevant to the bond program, leaving this statement without justification. If any action by the ECB is to be assessed from a balancing point of view, it would not be possible to stop at fiscal costs, but to place fiscal benefits in another pan of the balance scale, and to take into account other considerations, argues Toni Marzal.

The criticism turned the BVerfG’s ultra-vires review against itself. The CJEU has acted in accordance with the rules of Community law and its own case law governing the assessment of the validity of EU acts. If the CJEU had required the ECB, to justify the PSPP separately, it would have deviated from the above practice. On the other hand, the BVerfG based its legal position regarding the bond program largely on its own financial and economic analysis, raising questions of the professional competence of the German constitutional court. Overruling an ECB decision on financial and economic grounds can also be interpreted as an ultra-vires act.[7]

Following the criticisms, of course, the question of “what’s next” also arose in academic discourses. There were voices envisioning Germany’s exit from the EU, while others have evaluated the PSPP as a step towards the common-law system. It is definitely worth mentioning one of the opinions proposing a concrete solution. Oliver Garner, British international law scholar called for the introduction of declarations of incompatibility, which could be submitted to the CJEU by Member States during preliminary rulings, thus indicating that the decision is incompliant with national law. The implementation of the proposal would require an amendment of the founding Treaties, which in itself is a proposition with many difficulties. Garner sees this as an offset by the mechanism’s “integration keystone” function, which would be a predictable barrier to the possible arbitrariness of the CJEU. I would add here that it is not sufficient to exclusively keep the CJEU within this framework of two-way mechanisms. It must also be ensured that such or a similar possibility does not become an instrument of abuse for Member States in the event of a potentially doubted CJEU decision.

4. Closing remarks

For the first time in the history of the EU, the PSPP decision has dared to ban the application of a community act until it meets its own standards. The box may hold valuable treasures for sovereignty-defending Member States in the future, but at the same time less hope for European coexistence based on loyal cooperation. However, the expected ‘mushroom cloud’ is nowhere to be seen so far: the lines of argument set out in the PSPP decision of the German Federal Constitutional Court have now been extended by Finland and Germany regarding the EU’s COVID-19 recovery plan since spring last year apart from the Polish case cited at the beginning of this blogpost.

Regarding the aftermath of Polish decision, on the following day the CJEU reiterated that the Disciplinary Chamber shall be liquidated immediately as it seriously hinders judicial independence contrary to the founding Treaties and values of the EU. In its communication to the EC, Poland accepted the ruling of the CJEU and made a commitment to cease the operation of the Disciplinary Chamber whilst other judicial reforms. After all, we can state that even though the Polish Constitutional Tribunal questioned the competences of the CJEU, the outcome resulted (will result) in the harmonization of national and EU law for the sake of loyal cooperation. As for me, the questioning itself does not equal with the serious undermining of the EU legal order, but the opportunity for an other public discourse on the multilevel constitutionalism.

We have known since the “Taricco-saga” (cases Ivo Taricco and Others and MAS AND MB) that a longer and more in-depth dialogue between courts can soften the edge of conflicts. I am of the opinion that it is important to bear in mind that the EU was not created for overlapping national competences as well as its legal system does not aim at necessarily conflicting with national legal systems and the sovereignty of the Member States. The founders wanted the EU to achieve the reinforcement of the nations via cooperation, not power struggles that would result in the mutual destruction of both the EU and its Member States. However, in addition to the dangers lying ahead, I reckon that there is certainly at least one positive benefit of the PSPP decision: without the ruling, we would not know today the status quo of the contemporary public discourse on the relationship between EU and national law affecting dialogues even this year in several countries.

Lastly, I conclude my analysis with the thoughts of Nóra Chronowski, a acknowledged Hungarian constitutional and EU-law scholar, in my own translation: ” As the first Solange decision set in motion the development of the protection of fundamental rights in the EU, and then the Maastricht decision launched a common thinking to address the EU’s democratic deficit, a scenario could even contribute to a more transparent, solidarity-based monetary and fiscal union Constitutional Court, which strengthens the euro area – it is only difficult to believe the optimistic outcome in the frozen mood after the decision.”[8] I think that we already have more reason to believe – with a little more than a year of perspective – that the PSPP’s ‘nuclear bomb’ brought about the possibility of common thinking rather than the dangers it supposedly posed.

[1] The ‘nuclear’ indicator comes from Lucas Guttenberg, director of the Jacques Delors Center. See further: https://twitter.com/lucasguttenberg/status/1257592204308164609
[2] In its Honeywell decision, the BVerfG made it compulsory to make a reference for a preliminary ruling before declaring a legal instrument ultra-vires. See further: BVerfGE 126, 286.
[3] See further: Article 127 (1) and (2) TFEU and Articles 17 to 24 of the Protocol on the Statute of the European System of Central Banks (ESCB) and of the European Central Bank
[4] The principle for separation of powers is enshrined in Article 119 TFEU.
[5] Attila, V. (2020). A német szövetségi alkotmánybíróság döntése a PSPP-ügyben: az európai integráció jogi és fiskális határainak feszegetése. [The decision of the German Federal Constitutional Court in the PSPP case: pushing the legal and fiscal boundaries of European integration] Jogtudományi Közlöny. 7-8 (2020). 329.
[6] Nóra, C. (2020). Fordulópont az európai bírói párbeszédben: a Német Szövetségi Alkotmánybíróság PSPP-döntése. [A turning point in the European judicial dialogue: the PSPP decision of the German Federal Constitutional Court] Közjogi Szemle. 2 (2020). 77.
[7] Attila, V. (2020) 329.
[8] Nóra, C. (2020). 79.

Kinga Kálmán is a 5th year law student at Eötvös Loránd University Faculty of Law and research assistant at the Institute for Legal Studies at the Hungarian Centre for Social Sciences. She was a member of the Law School of the Mathias Corvinus Collegium. Her interest mainly covers constitutional law and artificial intelligence. This year, Kinga has been granted with Hungarian National Higher Education Scholarship and will start an Erasmus exchange semester at the University Charles III of Madrid.

Tamás István MANHERTZ: Tension or Attention?

by admin | Aug 5, 2021 | General

On the relationship between the Hungarian Constitutional Court and the references for preliminary rulings

We live in a turbulent era of constitutional justice in Europe, evidenced by the many debates that try to encapsulate the very essence and raison d’étre of national constitutional courts and their relationship to the European Court of Justice (henceforth: CJEU). Suffice it to think about the more recent decisions of the German Federal Constitutional Court on 5 May 2020, the Finnish Constitutional Law Committee in late 2010, or the most recent decision by the Polish Constitutional Court on 14 July 2021. After this introduction, let us look at the bird’s eye perspective of the relations between the CJEU and national justice systems, focusing on constitutional courts.

The CJEU cooperates with all of the ordinary courts of the Member States, in matters of European Union law. To ensure the effective and uniform application of European Union legislation and to prevent divergent interpretations, the national courts may, and sometimes must, refer to the CJEU and request a clarification on a point of interpretation of EU law, so that they may ascertain, for example, whether their national legislation complies with that. A reference for a preliminary ruling (henceforth: RPR) may also seek the review of the validity of an act of EU law.

The CJEU’s reply is not merely an opinion but takes the form of a judgment or reasoned order. The national court in front of the dispute is being heard is bound by the interpretation of the CJEU. The CJEU’s judgment likewise binds other national courts before which the same problem is raised.

It is thus through RPRs that any European citizen can argue for seeking clarification of the European Union rules which affect them. Although such a reference can be made only by a national court, all the parties to the proceedings before that court, the Member States and the institutions of the European Union may take part in the proceedings before the CJEU (in the procedural capacities tailored to them). In that way, several important principles of EU law have been laid down by preliminary rulings, sometimes in reply to questions referred by national courts of first instance. Up to this point, however, we’ve only spoken of „ordinary courts”. Translating this question into the realm of constitutional justice, it is an interesting question what kind of relationship can be observed between constitutional courts and the competence to initiate an RPR in front of the CJEU, insomuch as a referral from a constitutional court enables a direct conversation between the ultimate interpreters of ‒ among other constitutional provisions ‒ fundamental rights in each legal system, with the discussion focusing on the contested basic right.[1]

Constitutional courts have been generally reluctant to make preliminary references, but on occasion have decided to enter into a dialogue with the CJEU through forms of latent or indirect dialogue. Over and above, since the Lisbon Treaty entered into force in 2009, the number of constitutional courts that have submitted requests has steadily increased from four (Austria, Belgium, Italy and Lithuania) to nine (France, Germany, Poland, Slovenia and Spain as well).[2] Although the questions submitted to the CJEU did not always involve fundamental rights, the tension between the European arrest warrant and fundamental rights, for example, spurred several questions from constitutional courts, including the first references ever made by the Belgian Constitutional Court[3], the French Constitutional Council[4] and the Spanish Tribunal Constitucional.[5] In the cooperation of the constitutional courts and the CJEU, one can find some examples in point of the ultra vires control of the EU law that constitutional courts are binding themselves to initiate preliminary references (Danish Supreme Court, German Federal Constitutional Court[6], Italian Corte Costituzionale[7], Polish Constitutional Court[8]) and the constitutional courts affirm generally the preliminary decision of CJEU as exemplary[9] (except the Landtová-case[10] and the Ajos-case[11]).

It can be ascertained by studying the practice of the Hungarian Constitutional Court (henceforth: HCC), that the institution recognized the RPR as the authority and obligation of the ordinary courts. The HCC did not yet take account of initiating a similar procedure itself.[12] However, its necessity (or its legitimacy) has been addressed in concrete decisions[13] and in the legal literature as well.[14]

In this context, HCC Decision 22/2016. (XII. 5.) can be construed as a breakthrough in the practice of the body for the following reasons. „On the basis of the review of case law of the Member States’ supreme courts performing the tasks of constitutional courts and of the Member States’ constitutional courts, the HCC established that within its own scope of competences, on the basis of a relevant petition, in exceptional cases and as a resort of ultima ratio, i.e. along with paying respect to the constitutional dialogue between the Member States, it can examine whether exercising competences on the basis of Article E) paragraph (2) of the Fundamental Law results in the violation of human dignity, the essential content of any other fundamental right or the sovereignty (including the extent of the competences transferred by the State) and the constitutional self-identity of Hungary.”[15]

After this, the HCC issued some suspending orders[16] wherein they pointed at the cooperation mentioned in the HCC Decision 22/2016. (XII. 5.). The reason for the suspension was that the contested norms and legal practice of the petition are the topics of otherwise pending proceeding in front of the CJEU. The HCC wanted to make its decision taking into account ‒ as necessary ‒ the judgments of the CJEU and their reasoning.[17]

The latest landmark case concerning the RPR was HCC Decision 26/2020. (XII. 2.), in which the HCC referred back to the HCC Decision 26/2015. (VII. 21.),[18] where the HCC argued that the obligation of Hungarian (ordinary) courts initiating the CJEU’s preliminary rulings procedure „derives from Article 5 of the Treaty on European Union and the Article E) paragraph (2) of the Fundamental Law of Hungary”.[19] The Treaty on the Functioning of the European Union (henceforth: TFEU) connects the courts of the Member States and the CJEU: the litigants may initiate RPRs, but the acting judge has a discretional right deciding whether to submit the request or not. RPR thus is a possibility for the court, however, according to the Article 267 paragraph 3 TFEU, where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.[20]

The RPR is a part of institutionalized cooperation between European courts under the obligations imposed in Article 267 paragraph 3 TFEU. The HCC considered in its decision that „the constitutional dialogue within the European Union is to be regarded as primarily important”.[21] „It can be presumed that both the Union law and the national legal system based on the Fundamental Law aim to carry out the objectives specified in Article E) paragraph (1). With regard to the above, »the creation of European unity«, the integration, sets objectives not only for the political bodies but also for the courts and the HCC, defining the harmony and the coherence of legal systems as constitutional objectives that follow from »European unity«”.[22] The constitutional dialogue is expedient to guarantee the sui generis character of Member States’ law as well as EU law.[23] It can also be capable of establishing balance in concrete situations between the unchangeable core of constitutional law of a member state and the primacy of the EU law which was elaborated by the CJEU. Without a mutual and open dialogue between these courts, the sui generis character of Member States’ laws as well as EU law cannot be guaranteed.[24]

The HCC emphasized that it cannot adopt a neutral policy in this institutionalized cooperation. According to Article E) paragraph (2) of the Fundamental Law, „in its role as a Member State of the European Union and by virtue of international treaty, Hungary may ‒ to the extent necessary for exercising its rights and fulfilling its obligations stemming from the Founding Treaties ‒ exercise certain competences deriving from the Fundamental Law, together with the other Member States, through the institutions of the European Union.” The ECJ is a part of the organization of the European Union which guarantees the efficient emergence of EU law not only itself, but also with the courts of the Member States in particular cases by the way of EU norms applied by the acting court. The unified interpretation is a guarantee of the efficient legal protection, the necessary element of which is the normative regulation of the procedure which ensures the instrument of unification of the questions of interpretation. Article E) of the Fundamental Law and Article 267 TFEU declares the participation in the institutionalized cooperation which is the function of the ordinary courts of the Member States and the institutions recognized as courts by the practice of CJEU.[25]

The HCC deducted its authority to request the CJEU’s preliminary rulings procedure from the interpretation of the Fundamental Law above, particularly in that case when the risk arises in the concrete proceeding, concerning the restriction of the consistency with the fundamental rights and freedoms set out in the Fundamental Law or Hungary’s inalienable right of disposition relating to its territorial integrity, population, political system and form of government. With regard to this, the HCC considered the practice of the German Bundesverfassungsgericht as orientative.[26]

The initiation of RPR falls into a special area of law but like any other judicial decisions, it shall comply with the requirements of the Fundamental Law. In this regard, the HCC does not act as a general revisory institution of the references of preliminary rulings, in other words, as a super-court. Consequently, the HCC stands clear of any commitment concerning these special questions relating to the RPR.[27]

The HCC emphasized examples from the practice of other constitutional courts of the Member States; these only analyse the constitutionality of the decisions relating to RPRs respecting at the same time the interpretation of the special questions mentioned above. According to the practice of the German Federal Constitutional Court, the decision on an RPR cannot be uninterpretable and manifestly untenable, and the ordinary court has to reveal and evaluate the EU law governing the concrete case.[28] The Austrian Constitutional Court examines the reasoning of the judgment affecting the references of the RPR as well, and the body qualifies the judgment as unconstitutional, if the ordinary court does not initiate the RPR in the event of doubt regarding the interpretation of the relevant EU law concerning the concrete case.[29] The Slovakian Constitutional Court also analyses the reasoning of the judicial decision from that point of view whether the judgment answers the questions affecting the interpretation of EU law properly and whether the parties’ right to a fair trial has not been violated,[30] an approach also previously taken by the Czech Constitutional Court.[31] The Slovenian Constitutional Court establishes the unconstitutionality of the judgment on the grounds of the reasoning relating to EU law, if the fundamental rights of the litigants have been violated due to negligence in initiating an RPR.[32]

In summary, it can be ascertained that there is no impediment to answering the questions drafted by the HCC concerning the interpretation or the validity of the EU law. The petition has to be convenient for adjudication in the concrete case in front of the HCC (properly revealing the factual and legal circumstances). The approaches of other constitutional courts mentioned above can be examples of the most important steps forward to the cooperation on between the HCC and the CJEU on the merits of these cases, which rests on mutual respect. But – agreeing with Justice Ildikó Hörcherné Marosi – the question how to realize this cooperation has not been answered yet.[33]

[1] Aida Torres Pérez: Judicial Dialogue and fundamental rights in the European Union: a quest for legitimacy. In: Gary Jacobsohn – Miguel Schor (ed.): Comparative Constitutional Theory. Northampton, MA, USA, Edward Elgar Publishing Inc., 2018. 119.
[2] Ibid. 118-119.
[3] Judgment of 21 October 2010, I. B. v. Conseil des Ministres (C-306/09, ECR 2010 p. I-10341)
[4] Judgment of 30 May 2013, Jeremy F. v. Premier Ministre (C-168/13 PPU)
[5] Judgment of 26 February 2013, Melloni v. Ministerio Fiscal (C-399/11); Torres Pérez op. cit. 119.
[6] BVerfG, Order of the Second Senate of 6 July 2010 – 2 BvR 2661/06. (Honeywell-case); BVerfG, Judgment of the Second Senate of 21 June 2016 – 2 BvR 2728/13. (Gauweiler-case)
[7] Judgment of 5 December 2017, Criminal proceedings against M. A. S. and M. B. (C-42/17; Taricco-case)
[8] Judgment of 7 March, Rzecznik Praw Obywatelskich (RPO) (C-390/15)
[9] Cf. Ernő Várnay: Az Alkotmánybíróság és az Európai Bíróság. Együttműködő alkotmánybíráskodás? Állam-és Jogtudomány, LX. évf., 2019/2. szám, 63-91.
[10] Judgment of 22 June 2011, Landtová (C-399/09, ECR 2011 p. I-5573). The case in front of the Czech Constitutional Court: PL.US 5/12.
[11] Judgment of 19 April 2016, Dansk Industri (C-441/14). The case in front of the Danish Supreme Court: Case 15/2014, Dansk Industri (DI) acting for Ajos A/S v. the estate left by A, Judgment of the Danish Supreme Court of 6 December 2016.
[12] Cf. HCC Decision 61/B/2005.; HCC Order 3165/2014. (V. 23.); HCC Decision 26/2015. (VII. 21.)
[13] HCC Decision 142/2010. (VII. 14.), dissenting opinions of Judge László Kiss and Judge Miklós Lévay (ABH 2010, 668, 2.; HCC Decision 22/2016. (XII. 5.), concurring opinion of Judge Egon Dienes-Oehm (Reasoning [76]) and Judge István Stumpf (Reasoning [103])
[14] Cf. András Sajó: „Miért nehéz tantárgy az együttműködő alkotmányosság? A magyar Alkotmánybíróság és a közösségi jog elsőbbsége” Fundamentum, 2004/3. szám, 89–96.; Fruzsina Gárdos-Orosz: Preliminary Reference and the Hungarian Constitutional Court: A Context of Non-Reference. German Law Journal, Vol. 16., No. 6. (Special Issue) 1574-1575.; Márton Sulyok ‒ Lilla Nóra Kiss: In Unchartered Waters? The Place and Position of EU Law and the Charter of Fundamental Rights in the Jurisprudence of the Constitutional Court of Hungary. In: Marcel Szabó ‒ Laura Gyeney ‒ Petra Lea Láncos (ed.): Hungarian Yearbook of International Law and European Law. Eleven International Publishing, The Hague, 2019. 395-417.; Ondrej Hamulák ‒ Márton Sulyok ‒ Lilla Nóra Kiss: Measuring the ’EU’Clidean Distance Between EU Law and the Hungarian Constitutional Court ‒ Focusing on the Position of the EU Charter of Rights. In: Pavel Šturma (ed.): Czech Yearbook of Public & Private International Law. Czech Society of International Law, Prague, 2019. 130-150.
[15] HCC Decision 22/2016. (XII. 5.), Reasoning [46]
[16] HCC Order 3198/2018. (VI. 21.); HCC Order 3199/2018. (VI. 21.); HCC Order 3200/2018. (VI. 21.); HCC Order 3220/2018. (VII. 2.)
[17] Várnay op. cit. 66-67.
[18] HCC Decision 26/2020. (XII. 2.), Reasoning [22]
[19] HCC Decision 26/2015. (VII. 21.), Reasoning [15]
[20] HCC Decision 26/2015. (VII. 21.), Reasoning [17]-[23]; HCC Decision 26/2020. (XII. 2.), Reasoning [22]
[21] Cf. HCC Decision 61/2011. (VII. 13.); HCC Decision 30/2015. (X. 15.); HCC Decision 22/2016. (XII. 5.), Reasoning [33], HCC Decision 26/2020. (XII. 2.), Reasoning [24]
[22] HCC Decision 2/2019. (III. 5.), Reasoning [36]
[23] HCC Decision 3241/2019. (X. 17.), Reasoning [18]
[24] HCC Decision 26/2020. (XII. 2.), Reasoning [24]
[25] Judgment of 27 April 1994, Gemeente Almelo and others v. NV Energiebedrijf Ijsselmij (C-393/92, ECR 1994 p. I-1477); HCC Decision 26/2020. (XII. 2.), Reasoning [25]
[26] Cf. BVerfGE 134, 366 and BVerfGE 142, 123; BVerfGE 146, 216 and BVerfG, Judgment of the Second Senate of 5 May 2020 – 2 BvR 859/15.]; HCC Decision 26/2020. (XII. 2.), Reasoning [26]
[27] HCC Decision 26/2015. (VII. 21.), Reasoning [60]; HCC Decision 3257/2020. (VII. 3.), Reasoning [44]; HCC Decision 26/2020. (XII. 2.), Reasoning [29]
[28] BVerfGE 82, 159 <194>, 1 BvR 1159/08 -, Rn. 4
[29] VfGH 27. 06. 2012, 2.5. pont; U 330/12; cf. VfGH 11. 12. 1995, B 2300/95
[30] III. ÚS 388/2010, II. ÚS 381/2018, II. ÚS 792/2016
[31] II. ÚS 4225/16, 26 September 2017, ÚS 1009/08, 8 January 2009 and eg. ÚS 50/04, 8 March 2006
[32] Up-1056/11, 21 November 2013; Up-561/15, 16 November 2017
[33] HCC Decision 26/2020. (XII. 2.), concurring opinion of Judge Ildikó Hörcherné Marosi, Reasoning [53]-[55]

Tamás István MANHERTZ, jurist, court clerk at the Budapest-Capital Regional Court since November 2017. He is permanently accomplishing the bar examination. He obtained his Ph.D. degree in 2021 at the Pázmány Péter Catholic University Faculty of Law and Political Sciences. The topic of the dissertation is the analysis of competences of constitutional courts in a comparative law context.