2016 Global Review of Constitutional Law

Court rejected all judicial referrals. Later,
the Constitutional Court concluded a great
number of decisions on the subject of foreign
currency loan crises legislation in 2015 and
2016 with regard to the various constitutional
complaints. All claims were rejected, 10
although the CC itself acknowledged that
the extraordinary emergency solutions were
problematic from the rule of law point of
view. They imposed an unreasonable burden
on financial institutions with retroactive
effect and furthermore did not allow for a
fair trial.
The constitutional identity of Hungary
defined as making reservations to EU law
In Decision 22/2016 (XII. 5.), the
interpretation of the Fundamental Law
had been requested from the Court by the
ombudsman. As explained in the motion,
the concrete constitutional issue was related
to the European Union’s Council Decision
(EU) 2015/1601 of 22 September 2015 on
migration.
The CC established that the EU provides
adequate protection for fundamental rights.
The Constitutional Court, however, cannot
set aside the protection of fundamental
rights, and it must grant that the joint exercise
of competences would not result in violating
human dignity or the essential content of
other fundamental rights.
The Court set two main limitations in the
context of the question on the legal acts of
the Union that extend beyond the jointly
exercised competences. First, the joint
exercise of competence shall not violate
Hungary’s sovereignty; second, it shall not
lead to the violation of its constitutional
identity. The CC emphasized that the
protection of constitutional identity should
take the form of a constitutional dialogue
based on the principles of equality and
collegiality, implemented with each
other’s mutual respect. The Constitutional
Court established its competence for the
examination of whether the joint exercise
of powers by way of the institutions of the
EU would violate human dignity, another
fundamental right, the sovereignty of
Hungary or its identity based on the country’s
historical constitution.
The curiosity of the case is that this is the
first time that the CC has ruled explicitly
on the relation of EU law and the domestic
constitution claiming that the Fundamental
Law has ultimate supremacy in fundamental
constitutional questions. Furthermore,
the constitutional identity, the inviolable
core of the constitution, has never been
defined as such formerly. The country’s
historical constitution as an element of
the unamendable identity also poses new
questions in the Hungarian constitutional
order. If the Fundamental Law is amendable
only up until it does not interfere with
the historical constitution as a basis, the
historical constitution not defined so far
in the positive constitutional law in effect
might have a new, stronger position at least
as a tool of the constitutional interpretation. 11
CONCLUSION
The above cases showed that the CC
decided important matters in 2016, but
relevant decisions were carefully designed
not to impose undesirable constraints on
the legislature. 12 There are considerable
improvements with regard to the right to
information, but on the other hand freedom
of the press is limited. Retroactive effect
of a piece of legislation is rarely found
unconstitutional although the CC alludes to
the rule of law in many decisions. The role
of participatory democracy is underlined, but
many decisions justify restrictions on actual
democratic participation. On the other hand,
participation is made possible in the form
of a popular vote when it can have no legal
consequence. Financial support is given in
important cases, but the circumstances are
not clear. Constitutional complaints remain
the major competencies of the Constitutional
Court to question the constitutionality of
government actions. State institutions are
not active in initiating ex-post facto review
of legislation. Judges, therefore, remain the
key actors in initiating important petitions,
raising fundamental questions together with
the individual complaints. As we explained,
constitutional justice is puzzling in 2016 as
to the evaluation of doctrinal development.
As to its relevance as a balancing factor
to governmental powers, it certainly loses
further points in 2016.
the Curia Regarding Consumer Loan Agreements of Financial Institutions and on other related provisions.
10
According to statistics of the Constitutional Court, in 2015 630 motions were submitted to the Constitutional Court in the same subject and 1,300
constitutional complaints with essentially identical texts were submitted in the same period. 700 foreign currency loan cases were active on 31 December
2015. Alkotmánybíróság, ‘Statisztika’ http://alkotmanybirosag.hu/dokumentumok/statisztika/2015 accessed 14 February 2017.
11
Schweitzer Gábor, ‘Alaptörvény – sarkalatos törvény – történeti alkotmány’ in Boóc Ádám’ Fekete Balázs (eds), Il me semblait que j’étais moi-même ce dont
parlait l’ouvrage – Liber Amicorum Endre Ferenczy (Patrocinium 2012) 261–262; Szente Zoltán, ‘A historizáló alkotmányozás problémái – a történeti alkotmány
és a Szent Korona az új Alaptörvényben’ (2011) Közjogi Szemle 3.
12
Zoltán Szente, ‘The political orientation of the members of the Hungarian constitutional court between 2010 and 2014’ (2016) 1 Constitutional Studies 1.
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