In this issue of the Alkotmánybírósági Szemle (Constitutional Court Review), you can read studies commissioned by the Constitutional Court of Hungary (hereinafter: HCC) on the practical examination of references to foreign constitutional courts in the case-law of the Constitutional Courts of the Member States of the European Union.
The HCC celebrated its 30th anniversary in 2020. The anniversary also provided an opportunity to assess the situation and tasks of constitutional courts and constitutional administration, and the general challenges facing these bodies. Among these, I believe that the extent to which the individual constitutional courts use the case law of other constitutional courts as a source in their reasoning of decisions, occupies a prominent place.
In its decision taken in 2016, the HCC took a position in favour of the dialogue based on international cooperation and cooperation with other constitutional courts “in the framework of mutual respect based on the principles of equality and collegiality”. As President of the HCC, I have expressed on several occasions, in a number of contributions, my view that dialogue and cooperation between the institutions is the key to a successful future.
I believe it is important to emphasise that I do not see cooperation as an end in itself, but as a dialogue aimed at promoting the development of common European constitutional values and effective cooperation between constitutional courts in the European area.
An important milestone in the achievement of these common objectives is the academic examination of a number of issues of interest to all bodies. Among these, the examination of the references to the decisions of foreign constitutional courts in the practice of national constitutional courts (in particular in their decisions) is a priority. The aim of the dialogue-study is to explore the practice of the various constitutional courts in this area in recent years. The focus of the research has been problem-oriented and explicitly practical.
Why can it be significant that a constitutional court refers to a decision of another constitutional court? I believe that the impact of the decisions of the constitutional courts is mainly due to the logic of the reasoning of the decisions, their closed nature and the exhaustive nature of the constitutional analysis. When formulating its reasoning, the Constitutional Court can draw from a number of sources: its own previous practice, the practice of the European Court of Human Rights, the practice of the European Court of Justice and the practice of the constitutional courts of other Member States. In all cases, foreign practice can be inspiring and fruitful in solving a constitutional problem. However, the context in which a foreign solution has been adopted: the legal environment, the social background and the competence of the body in question cannot be ignored. These are determinant factors whose direct effect is that a foreign example requires careful examination in order to be referred or used by the Constitutional Court in its reasoning. The more different the situation in which a foreign decision considered as an example was taken, the less it can serve as a model for the body acting as a court. This should not, however, mean that a constitutional court has a priori a limited use for foreign examples. I believe that constitutional courts can draw inspiration from each other’s decisions, bearing in mind that this transfer must not be mechanical.
In order to enable other constitutional courts, the constitutional courts of the Member States of the European Union, to understand and use each other’s decisions, we must strive for continuous contact and for the up-to-date, permanent processing of each other’s decisions. I believe that the HCC should also place greater emphasis on this in the future, and that the mutual communication of decisions could be another element in the dialogue between the courts.
I would like to take this opportunity to thank the Honourable Partners for accepting our invitation and I believe that this issue of the Alkotmánybírósági Szemle (Constitutional Court Review) will contribute to the achievement of our common goals and to the further success of cooperation and dialogue between the constitutional courts of the Member States.