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