Abstract
When constitutional courts find a legislation in violation of constitutional provisions they need to proceed with caution. While removing unconstitutional legislation from the legal system is essential, temporal solutions may be needed especially if the annulment may leave a legal vacuum, in order to protect legal certainty, the rights of individuals, public interest, and also the effective enforcement of EU law. The latter may be of increasing importance especially since the constitutional role of the EU law is expanding. EU constitutional courts have adapted different regulatory solutions on the temporal effect of constitutional court decisions. Despite the differences, a common denominator seems to be a need for flexibility. The competences and case-law of the Hungarian Constitutional Court provide sufficient flexibility in all areas and allows all different interests to be taken into account, ensuring overall that its decisions protect the rule of law and do not even temporarily cause disruption or setbacks in the protection of fundamental values.
Keywords: temporal effect, pro futuro effect, ex tunc effect, legal vacuum, legal certainty, European Court of Justice, effective enforcement of EU law, annulment, unconstitutionality, restorative effect
I. Introduction
The protection of the rule of law is a fundamental value recognised by Member States and EU law, which requires both the effective enforcement of the law, including national law and EU law, a substantive understanding of the rule of law, as well as legal certainty, that is ensuring the predictable and foreseeable functioning of the law.[2] Although these aspects of the rule of law cannot be in substantial conflict with each other, a conflict of these values may still arise before the constitutional court when determining the temporal effect of their decisions. This question of temporal effect is relevant in cases where the constitutional court finds that a piece of legislation is unconstitutional, while for example in cases of decisions on rejection, omission, or judicial decisions annulled on the grounds of unconstitutional discretion, temporal scope does not typically require such a balancing of interests. However, in the case of decisions rendering a piece of legislation unconstitutional, the question of whether the greater interest lies in the enforcement of constitutional principles or in legal certainty is a recurring one. Constitutional legality requires that an unconstitutional rule should not be applied to any person and that constitutionality (or, more precisely, the absence of unconstitutionality) should be restored without fail.[3] Another important aspect can be identified for European Member States, namely compliance with EU law, including EU case law, that is enshrined in the principle of effective judicial protection. Legal certainty and the predictability of legal relations, on the other hand, justify that even an unconstitutional rule should remain in force for a certain period of time, or that it should be applicable. Constitutional courts may also take into account the protection of the legitimate interest of the individual affected by unconstitutional legislation or the annulment thereof. There is also legitimate public interest to be considered when assessing temporal scope of decisions on unconstitutionality.
[1] 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.
[2] Petra Bárd – Viktor Zoltán Kazai: Enforcement of a Formal Conception of the Rule of Law as a Potential Way Forward to Address Backsliding: Hungary as a Case Study, Hague J Rule Law, 2022/2. 165–193. 167. See the Commission’s Annual Rule of Law Reports or the Regulation 2020/2092 of 16 December 2020 on a general regime of conditionality for the protection of the Union budget.
[3] Kinga Zakariás (ed.): Az alkotmánybírósági törvény kommentárja. Pázmány Press, 2022. 514.