Abstract
The institution of a constitutional dialogue between national (including the constitutional courts) and international courts (including the Court of Justice of the European Union) is becoming increasingly important. A brand new legal provision of the Hungarian Act on the Constitutional Court, in force since 2023, creates the possibility for the CJEU to request the legal opinion of the Hungarian Constitutional Court in a case pending before the CJEU. This legal provision (or rather its previous lack) almost caused a major conflict between the two judicial fora in 2019, when the CJEU had to rule on the question of whether the European Commission’s interpretation of a provision of the Hungarian Fundamental Law was in line with EU law. The paper presents and analyses Decision 2/2019. (III. 5.) AB of the Constitutional Court as the decision of the Hungarian Constitutional Court to avoid this ‘near-conflict’. Based on the adopted text of Section 38/A of the Act on the Constitutional Court, the paper examines the practical significance of this new legal institution of the constitutional dialogue, with particular reference to certain issues relating to the question of “inevitable right to dispose over the population”, as a possible subject for constitutional dialogue.
Keywords: population, sovereignty, quota decision, migration, constitutional dialogue, CJEU, Constitutional Court of Hungary, Act on the Constitutional Court of Hungary
I. Introductory thoughts
The literature discussing the ‘constitutional dialogue’ between national (constitutional) courts and certain ‘international courts’ [using the term in a broad sense, and including the Court of Justice of the European
Union (hereinafter: CJEU)] is considerable.[2] This constitutional dialogue [partly in relation to the European Court of Human Rights (hereinafter: ECtHR) and partly in relation to the CJEU] has been referred to on several occasions by the Hungarian Constitutional Court.[3] For a long time, the constitutional dialogue between the CJEU and the constitutional courts of the Member States could be understood as a ‘constitutional monologue’: while the constitutional courts of the Member States initiated preliminary rulings in cases pending before them with varying regularity, the CJEU never formally consulted the constitutional courts of the Member States in the course of its proceedings in a case pending before it. However, Section 38/A of Act CLI of 2011 on the Constitutional Court (hereinafter: CC Act), in force since 14 December 2023, now allows the CJEU to initiate proceedings before the Hungarian Constitutional Court on a specific issue. In the context of this study, I will examine in more detail one particular aspect of this new Section 38/A of the CC Act, the category of “the inalienable right to dispose over its population”, in the specific context of the migration and asylum crisis that has been affecting Europe for at least a decade now and the legal responses to it.
[1] The findings of the study reflect the author’s own academic opinion and should not be considered in any respect as the official position of the Constitutional Court of Hungary. This research was carried out using the European Constitutional Communication Network (ECCN) database, within the framework of the research project of the Comparative Constitutional Law Research Group at the National University of Public Service, with the support of the AURUM Lawyers’ Club for Talented Students Foundation.
[2] From the Hungarian literature, see e.g. Tímea Drinóczi: Az alkotmányos párbeszéd: a többszintű alkotmányosság alkotmánytana és gyakorlata a 21. században (Budapest: MTA TK JTI 2017). Tamás Sulyok – Endre Orbán: Az európai alkotmányos tér és az alkotmányos párbeszéd forgatókönyve, in Nóra Chronowski et al. (eds.): A szabadságszerető embernek: Liber Amicorum István Kukorelli (Budapest: Gondolat 2017), 116–125; Márton Sulyok: Párbeszéd és identitás: Az alkotmányos identitás alapkérdései (Budapest: Magyar Közlöny Lap- és Könyvkiadó 2016). On the institution of constitutional dialogue in general, see e.g. Geoffrey Sigalet – Grégoire Webber – Rosalind Dixon (eds.): Constitutional Dialogue. Rights, Democracy, Institutions (Cambridge: Cambridge University Press 2019).
[3] In connection with the European Court of Human Rights, see e.g. Decision 30/2015. (X. 15.) AB of the Constitutional Court, Reasoning [35]. In the context of the CJEU, see e.g. Decision 22/2016. (XII. 5.) AB of the Constitutional Court, Reasoning [33] and [46]. Until now, the Hungarian Constitutional Court has not initiated a preliminary ruling by the CJEU.