Constitution for a Disunited Nation: On Hungary's 2011 Fundamental Law

No New(s), Good News? The Fundamental Law and the European Law

No New(s), Good News? The Fundamental Law and the European Law andRás BRaGyova Introduction This paper intends to examine the effect of the Fundamental Law to the relationship between European Law (now Union law)1 and Hungarian law. First, I would like to make a rather obvious but important distinction. The relationship of European law and Hungarian law includes two separate questions which should be carefully distinguished : first, the relationship of European law to Hungarian law; and second the relationship of Hungarian law to European law. These two questions are in no way symmetrical. The first is a question of European law, thus independent form Hungarian law, while the second is a question of Hungarian law (and does not concern European law). Of course, the Fundamental Law (as the former Constitution did) can regulate only the second question. To begin with the most important contention, the Fundamental Law does not seem to announce any overriding change in the relationship of Hungarian law to European Law. On the other hand, for the reason set out above, the Fundamental Law has not changed the relationship of European law to Hungarian law. It did not alter the second aspect (the relation of Hungarian law to European law) either; although, as a matter of fact it could have done. Thus, it left intact, “as it is,” the status of European law in Hungarian law at the constitutional level. Consequently, the substantive part of this paper is the same, as it were without the Fundamental Law. 1 I shall use the two terms interchangeably as they are synonymous after the entry into force of the Lisbon Treaty. 336 Constitution for a Disunited Nation I start with a textual analysis, comparing the old and the new texts. Then I will undertake a brief overview of the most important holdings of the Hungarian Constitutional Court about the status of European law in the Hungarian legal system. Next, I shall venture into prophecies about the impact of the Fundamental Law on the relationship between Hungarian law and European law. To anticipate my conclusion , I do not expect substantial change in the legal status of the European law in Hungarian legal system: it will be neither better, nor worse. Preliminary Analysis The 1989 Constitution as amended in 2003 contained a European (or integration) clause (Article 2/A). It was drafted as a compromise2 between several views and proposals advanced by lawyers and politicians, differing in their more or less pro-European attitudes. As a result, it became, as in the adage attributed to Sieyes, short and obscure, thus leaving wide latitude to future interpreters. With all the understandable criticisms against the text, it served quite well the aim it wanted to achieve. It was sufficiently ambiguous and foggy to make possible a constitutional interpretation reasonably acceptable to a wide circle of Hungarians and satisfy at the same time the Union. I shall begin with the comparison of the integration clauses as formulated in the Constitution and in the Fundamental Law. They read as follows: 1989 Constitution Article 2/A (1) In order to participate in the European Union as a Member State, and on the basis of an international treaty, the Republic of Hungary may, 2011 Fundamental Law Article E (2) In order to participate in the European Union as a Member State, and on the basis of an international treaty, Hungary may, to the extent 2 About the drafting and the process of adoption see in particular Chronowski , N. Integrálódó alkotmányjog [Integrating Constitutional Law] (Pécs: Dial óg Campus, 2005). And see Dezső, M. and A. Vincze Magyar alkotmányoss ág az európai integrációban [Hungarian Constitutionalism in the European Integration] (Budapest: HVG-ORAC, 2006). 337 No New(s), Good News? to the extent necessary to exercise the rights and fulfil the obligations set out in the founding treaties, exercise certain constitutional competences jointly with other Member States; these powers may be exercised separately through the institutions of the European Union. necessary to exercise the rights and fulfil the obligations set out in the founding treaties, exercise some of its competences deriving from the Fundamental Law jointly with other Member States, through the institutions of the European Union. (3) The law of the European Union may stipulate generally binding rules of conduct subject to the conditions set out in paragraph (2). The textual analysis shows, at the first sight...