Viktor Zoltán Kazai - Central European University, Budapest

2019

Osservatorio sulle fonti / Observatory on Sources of Law

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Section: Sources of Law in the EU member States

HUNGARY

By Viktor Zoltán Kazai, Central European University, Budapest

Name of the Act/s

Act no. LXV of 2019 on the amendment of certain acts related to parliamentary immunity / 2019. évi LXV. törvény a képviselők mentelmi jogával összefüggésben egyes törvények módosításáról

Date of entry into force of original text

16 July 2019

Date of Text (Adopted)

2 July 2019

Type of text

Parliamentary act / törvény

Enacted by

Hungarian National Assembly

Reference to the Constitution (art)

Article 6 (1) (parliamentary immunity)

Article 4 (2) and (5) (qualified majority requirement)

The English version of the Fundamental Law is available at: https://hunconcourt.hu/uploads/sites/3/2018/11/thefundamentallawofhungary_20181015_fin.pdf

Subject area

Parliamentary immunity

Comment

The present parliamentary act amends certain rules on parliamentary immunity regulated by Act no. XXXVI on the National Assembly. According to the previous version of the law, candidates for parliamentary elections registered by the National Elections Committee benefitted from the same parliamentary immunity regime as elected MPs. It also meant that criminal procedure could only be initiated or continued against candidates suspected of breaking the law with the permission of the National Elections Committee (inviolability).

The new rules provide that candidates for parliamentary elections registered by the National Elections Committee are no longer entitled to inviolability if they have been subject to coercive measures restricting personal liberty ordered by a judge or the indictment has been filed by the prosecutor before the decision of the National Elections Committee on their registration. Therefore, in these cases the immunity does not need to be lifted.

The new regulation also applies to candidates for the European parliamentary elections.

The present act, also called “lex Czeglédy”, springs from a scandal concerning Csaba Czeglédy, a politician suspected of having committed corruption related criminal offenses. Criminal procedure initiated against Mr. Czeglédy had to be terminated after he had been registered as candidate for EP elections of the political party Democratic Coalition (Demokratikus Koalíció) in 2019. Since the required two-thirds majority of the members of the National Elections Committee has not been achieved, his immunity has not been lifted.

Shortly after that decision, the Ministry of Justice sent a letter to the President of the National Elections Committee expressing its disapproval of the refusal to lift Mr. Czeglédy’s immunity. On 23 May, prominent members of the Fidesz-KNDP governing coalition introduced the bill aiming at the amendment of the relevant rules on immunity. According to the Democratic Coalition, Mr. Czeglédy is victim of a show trial.

Available Text

http://njt.hu/cgi_bin/njt_doc.cgi?docid=214951.370152

2019

Osservatorio sulle fonti / Observatory on Sources of Law

----------------------------------------------------------------------------

Section: Sources of Law in the EU member States

HUNGARY

By Viktor Zoltán Kazai, Central European University, Budapest

Name of the Act/s

Act no. LXI of 2019 on the postponement of the entry into force of the Act on administrative courts / 2019. évi LXI. törvény a közigazgatási bíróságokról szóló törvény hatálybalépésének elhalasztásáról

Date of entry into force of original text

10 July 2019

Date of Text (Adopted)

2 July 2019

Type of text

Parliamentary act / törvény

Enacted by

Hungarian National Assembly

Reference to the Constitution (art)

Article 25. cikk (8) (qualified majority requirement)

The English version of the Fundamental Law is available at: https://hunconcourt.hu/uploads/sites/3/2018/11/thefundamentallawofhungary_20181015_fin.pdf

Subject area

organization of the judiciary, administrative court system, judicial independence

Comment

The extraordinarily short law (only 4 articles), introduced by the Hungarian government, simply repeals Act no. CXXXI of 2018 on the entry into force of the act on administrative courts and certain transitional rules (hereinafter: administrative court reform law). In practical terms, it means that the entry into force of the administrative court reform law is postponed for an indefinite period of time.

The administrative court reform plans of the Hungarian government have met strong criticism articulated by representatives of academia, human rights NGOs and European monitoring bodies. For further information, see the previous contribution related to Act no XXIV of 2019 on additional guarantees of the independence of administrative courts.

According to the official explanatory memorandum of the bill, its aim is to put an end to the “disputes about the unfounded criticisms concerning the Rule of Law in Hungary” in order to guarantee the progress of the administrative judicial system reform.

Gergely Gulyás, Minister heading the Prime Minister’s Office said at a hearing held in the European Parliament’s Justice Committee on 18 June that the establishment of independent administrative courts, characterized by him as a “major step in the direction of a liberal rule of law”, was sidelined due to criticism from abroad. He added that the appellate system would not be compromised as a result, however, and while the postponement “has resulted in some uncertainty,” the planned date for the introduction of a two-tier administrative court appeal system continues to remain 1 January 2020.

Human rights NGOs operating in Hungary, such as the Hungarian Helsinki Committee and Amnesty International, remain worried about the independence of the judiciary.

Available Text

In Hungarian:

http://njt.hu/cgi_bin/njt_doc.cgi?docid=214947.370138

In English:

http://njt.hu/translated/doc/J2019T0061P_20190709_FIN.pdf

2019

Osservatorio sulle fonti / Observatory on Sources of Law

----------------------------------------------------------------------------

Section: Sources of Law in the EU member States

HUNGARY

By Viktor Zoltán Kazai, Central European University, Budapest

Name of the Act/s

Act no. LXVIII of 2019 on the amendment of certain acts to transform the structure and financing of the research, development and innovation system / 2019. évi LXVIII. törvény a kutatás, fejlesztés és innovációs rendszer intézményrendszerének és finanszírozásának átalakításához szükséges egyes törvények módosításáról

Date of entry into force of original text

1 August 2019

Date of Text (Adopted)

2 July 2019

Type of text

Parliamentary act / törvény

Enacted by

Hungarian National Assembly

Reference to the Constitution (art)

Article 38 (1) and (2) (qualified majority requirement)

Article X (2) (academic freedom)

The English version of the Fundamental Law is available at: https://hunconcourt.hu/uploads/sites/3/2018/11/thefundamentallawofhungary_20181015_fin.pdf

Subject area

Academic freedom

Comment

On 4 June 2019, the Hungarian minister of innovation and technology (László Palkovics), on behalf of the government, introduced a bill in parliament aiming at the radical reorganization of the structure and financing of the research, development and innovation system. According to the official explanatory memorandum, the legislator’s aim was to enhance the country’s scientific and technological competitiveness. However, the bill was severely criticized by the scientific community. The most controversial issue was the deprivation of the Hungarian Academy of Sciences (HAS) of its research network and the strengthening of the government’s influence in financing research activities.

Shortly after the introduction of the bill, the President of the HAS requested the government to reconsider its standpoint, especially because the academic community did not see any legitimate justification supporting the reform given the fact that the HAS is one of the most successful research centers in Europe.

The minister of innovation and technology stated in an interview that “the reorganisation of the Hungarian Academy of Sciences is reinforcing the freedom and independence of research”. This statement stands in stark contrast with the opinion of the Presidium of the HAS who issued a press release shortly after the adoption of the law saying that “The Hungarian Academy of Sciences regretfully acknowledges the fact that despite the undivided disapproval of the Hungarian and international scientific communities and the researchers of the Academy, the Hungarian Parliament has passed the law (…) After the enactment of the new law the oldest, most reputable and internationally recognized scientific organization of the country will be deprived from its research network. This decision is especially disappointing because it has been made without any meaningful criticism or a legitimate government strategy on the new research system.”

As it is reported by the prestigious scientific journal, Nature, not only the Hungarian, but also the international academic community raised their voice against the law, including the European Federation of Academies of Sciences and Humanities and the Max Planck Society.

Available Text

http://njt.hu/cgi_bin/njt_doc.cgi?docid=215038.370523#foot1

1.

2019

Osservatorio sulle fonti / Observatory on Sources of Law

----------------------------------------------------------------------------

Section: Sources of Law in the EU member States

HUNGARY

By Viktor Zoltán Kazai, Central European University, Budapest

Name of the Act/s

Decision no. 2/2019 (III. 5.) of the Constitutional Court of Hungary /

2/2019. (III. 5.) AB határozat

Date of Text (Adopted)

25 February 2019

Type of text

Decision of the Constitutional Court of Hungary / AB határozat

Enacted by

Constitutional Court of Hungary

Reference to the Constitution (art)

Article E) (2) (Europe clause)

Article R) (4) (rule of constitutional interpretation, protection of constitutional identity and Christian culture)

Article XIV (4) (right to asylum)

Article 24 (1) (Constitutional Court)

The English version of the Fundamental Law is available at: https://hunconcourt.hu/uploads/sites/3/2018/11/thefundamentallawofhungary_20181015_fin.pdf

Subject area

transfer of competence to the European Union, collective expulsion

Comment

This is the second decision of the Constitutional Court interpreting constitutional identity. The first one was Decision no. 22/2016. (XII. 5.) (the so-called constitutional identity decision). Criticism has been raised as to the Constitutional Court’s interpretation of constitutional identity, judicial dialogue and the relationship between EU law and domestic law (see articles below).

The summary by the Constitutional Court:

„On behalf of the Government of Hungary, the minister of justice submitted a motion to the Constitutional Court requesting the interpretation of the Fundamental Law concerning the relation between the Fundamental Law and the law of the European Union. The background of the case is that the European Commission sent an official notice to Hungary – in the framework of an infringement proceeding – in which it explained that according to the Commission’s interpretation the provisions of the Fundamental Law on asylum violate the relevant regulations of the European Union. The particular constitutional issue raised by the petitioner was the relation between the interpretation of the Fundamental Law by an organ of the European Union and the genuine interpretation provided by the Constitutional Court.

The Constitutional Court pointed out: Hungary participates in the European Union in the interest of developing the European unity, for the purpose of expanding the freedom, prosperity and security of European nations. The Union law does not fit into the hierarchy of the domestic sources of law; it has been made part of the legal system by a constitutional order incorporated in the Fundamental Law. In most cases the parallel existence of Union law and domestic law does not cause any constitutional dilemma as the two normative systems are based on a common values. However, with regard to the assessment of certain national norms, the Constitutional Court and the European Union may reach different conclusions. Since the Fundamental Law requires compliance with the Union law, as a constitutional obligation, collisions may be resolved by paying respect to constitutional dialogue.

However, the genuine interpretation of the Fundamental Law is the duty of the Constitutional Court and all organs or institutions shall respect it in their own procedures. The Constitutional Court has committed itself to constitutional dialogue: in the present case it interpreted the Fundamental Law in line with the so called Europe-friendliness by interpreting the content of the norm to also comply with the law of the European Union.

Regarding asylum, the Constitutional Court underlined: the right to asylum is not the refugee’s individual subjective right and it stems from the international treaties undertaken by Hungary. A non-Hungarian national who arrived to the territory of Hungary through any country where he or she was not persecuted or directly threatened with persecution shall have a claim, protected as a fundamental right, to have his or her application assessed by the authority. It is the duty of the Parliament to determine and lay down in a cardinal Act the fundamental rules on granting asylum.”

Secondary sources/ doctrinal works (if any)

Körtvélyesi, Zsolt and Majtényi, Balázs: sid=8c73dcaf-d777-42ee-9ac7-ee57f95dbb3f@pdc-v-sessmgr02">Game of Values: The Threat of Exclusive Constitutional Identity, the EU and Hungary, German Law Journal, Vol. 18, Issue 7 (2017), pp. 1721-1744

Halmai, Gábor: sid=8c73dcaf-d777-42ee-9ac7-ee57f95dbb3f@pdc-v-sessmgr02">Abuse of Constitutional Identity. The Hungarian Constitutional Court on Interpretation of Article E) (2) of the Fundamental Law, Review of Central & East European Law, Vol. 43 Issue 1 (2018), pp. 23-42

Available Text

in Hungarian:

http://public.mkab.hu/dev/dontesek.nsf/0/A69AEC612BA90BAEC125830C005216DB?OpenDocument

in English:

https://hunconcourt.hu/uploads/sites/3/2019/03/2_2019_en_final.pdf

1.

2019

Osservatorio sulle fonti / Observatory on Sources of Law

----------------------------------------------------------------------------

Section: Sources of Law in the EU member States

HUNGARY

By Viktor Zoltán Kazai, Central European University, Budapest

Name of the Act/s

Resolution 3063/2019 (III. 25.) of the Constitutional Court of Hungary / 3063/2009. (III. 25.) AB végzés

Date of entry into force of original text

 

Date of Text (Adopted)

12 March 2019

Type of text

(name in English / name in the official language)

Resolution of the Constitutional Court of Hungary / AB végzés

If federal State

If Regional State

Enacted by

 

Reference to the Constitution (art)

 

Subject area

judicial dialogue, relationship between law of the European Union and domestic law

If the act implements a source of EU Law: cite the relevant EU legal source

 

Comment

In its resolution the Constitutional Court found the applicant’s constitutional complaint challenging the constitutionality of judgement No. Kfv.I.35.772/2015/10 of the Curia [Supreme Court] and the judgement No. 14.K.27.168/2015/16 of the Kecskemét Administrative and Labour Court rendered in taxation case inadmissible.

The reason why this resolution is relevant lies in the fact that the applicant requested the Constitutional Court to suspend its review procedure and turn to the Court of Justice of the European Union for a preliminary ruling. In para 11 the Constitutional Court rejected the request in accordance with its previous case law.

In recent years the Hungarian Constitutional Court developed a habit of suspending its review procedure if a similar case is pending before the CJEU in the name of judicial dialogue, a doctrine originating from its Decision no. 22/2016. (XII. 5.) (the so-called constitutional identity decision). However, the Constitutional Court constantly refuses to turn to the CJEU for a preliminary ruling.

Secondary sources/ doctrinal works (if any)

About the preliminary ruling procedure in the jurisprudence of the Hungarian Constitutional Court:

Naszladi, Georgina: The Hungarian Constitutional Court’s Judgment Concerning the Preliminary Ruling Procedure –Comments on a Rejection Order, Pécs Journal of International and European Law, Issue 1 (2015), pp. 37-43

Osztovics, András and Gombos, Katalin: Preliminary references and Hungarian courts: procedural context, trends and quality, in Varjú, Márton and Várnay, Ernő (eds.) The Law of the European Union in Hungary. Institution, Processes and the Law, HVGOrac, 2014

Fazekas, Flóra: EU law and the Hungarian Constitutional Court, in Varjú, Márton and Várnay, Ernő (eds.) The Law of the European Union in Hungary. Institution, Processes and the Law, HVGOrac, 2014

Available Text

http://public.mkab.hu/dev/dontesek.nsf/0/C97FDE421A6DD3C5C125804F0058A0FB?OpenDocument

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