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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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