The paradox of judicial dialogue with the European Court of Justice in an illiberal democracy: the recent experience with the Hungarian Constitutional Court

2.1. Constitutional counter-limits and German influence[Up]

The notion of constitutional identity (‍Besselink, 2010) and its use as a potential bulwark protecting the nation against the primacy of EU law (‍von Bogdandy and Schill, 2011) can be traced back, in a way, to the HCC’s pre-accession ruling in Decision 32/1998 (VI.25) AB on the constitutionality of the then extant Europe (Association) Agreement between the European Community and Hungary (‍Tatham, 1999). In developing its approach – particularly within the context of the new Fundamental Law and the migration crisis – the German Federal Constitutional Court (GFCC) and its case law has profoundly influenced the HCC in its decision making (‍Tatham, 2013: 135-‍203).

In this context, the GFCC has developed three types of control that would permit it to constitutionally review the basis for any transfers of the exercise of sovereignty to the EU. These are the fundamental rights review (Solange I^[16]), the ultra vires review (Maastricht^[17]) and the constitutional identity review (Lisbon^[18]), although, in recent years, the GFCC has started to blend the last two types of review^[19]. However, as with any transplant (‍Watson, 1974) or migration of a constitutional institution or ruling between systems (‍Choudhry, 2007), local conditions and actors have a strong impact on the way such concepts are adapted to new circumstances.

2.2. Lisbon Treaty case[Up]

In this respect, the HCC’s ruling in Decision 143/2010 (VII.14) AB^[20] on the Lisbon Treaty is the appropriate starting point for the present discussion. The petitioners in this case challenged the constitutionality of the domestic statute promulgating the Lisbon Treaty^[21] on the grounds that the Treaty’s new rules and mechanisms challenged the existence of Hungary as an independent, sovereign State, governed by the rule of law as provided under Art. 2(1) and (2) of the 1990 Constitution^[22]. The petitioners alleged that the Treaty’s innovations went beyond the powers transferred to the EU under the Europe clause (‍Tatham, 2005) of the Constitution which clause, Art. 2A(1), provided that Hungary could exercise certain constitutional powers jointly with other EU Member States to the extent necessary in connection with the rights and obligations conferred by the treaties of the EU. Such powers could be exercised independently and by way of the EU institutions.

The HCC discussed, at some length, the relationship between Constitution Arts. 2 and 2/A. It observed^[23] that Art. 2/A contained the constitutional power – “transfer of sovereignty” or “transfer of power” – through which the Constitution established a clear constitutional basis and framework to enable Hungary to accede to the EU. It continued by re-examining its previous case law on state sovereignty and the limitations on it (‍Tatham, 2013: 153-‍156) and stated^[24]: “The requirement of the traceability of popular sovereignty, according to this Decision, was complied with in the preparation for EU accession by placing [this requirement] into Constitution Article 2/A…. The prevalence of Article 2/A may not however deprive Article 2(1)-(2) of its substance”.

Although Constitution Art. 2/A was the domestic constitutional basis for continuing EU membership and amendments to the founding Treaties (now the TEU, TFEU and Euratom), Constitution Art. 2(1) and (2) on sovereignty and the rule of law constituted the “constitutional identity” of Hungary. Thus, the transfer of competences to the EU could not exceed the extent necessary to exercise the rights and perform the obligations under EU law. To this mix must be added Constitution Art. 6(4) according to which participation in European integration was a state goal. As the HCC pointed out: “Participation is not a goal in itself but has to serve human rights, prosperity and security”. An EU law that did not serve these aims could therefore be regarded as infringing the constitutional identity of Hungary^[25]. To this nucleus of constitutional identity, the protection of fundamental rights arguably belonged, a point apparently conceded by the HCC in Decision 61/2011 (VII.13) AB^[26].

The HCC’s development of such constitutional counter-limits^[27] to EU integration, was underscored by the entry into force of the 2011 Fundamental Law that was clearly designed with a more robust protection of Hungarian sovereignty and identity in mind (although the wording of the former Europe clause under Art. 2 was largely retained unaltered in new Art. E FL). In addition, as will be seen through the remainder of this Note, the 2015 migrant crisis caused several petitions to be brought before the HCC, all linked to the CJEU ruling in the Reception of Applicants case.

2.3. EU migrant quota case[Up]

The next large step along the road to articulating Hungarian constitutional identity came in Decision 22/2016 (XII.5) AB^[28]. That case arose directly from the EU’s introduction in 2015 of the quota system for the distribution and settlement of asylum seekers and migrants among the Member States, mentioned above. As a result, the Ombudsman petitioned the Court on the grounds, inter alia, as to whether Art. E(2) FL: (a) required state institutions to implement EU legislation that conflicted with domestic fundamental rights; and (b) might restrict the implementation of an ultra vires act of the EU.

In its decision, the HCC held that Art. E(2) FL, taking into account the other provisions of the Fundamental Law, provided it with three avenues of control of the joint exercise of powers with the EU^[29]. It thus decided^[30] that, within its own competence, in exceptional cases and as an ultima ratio measure – i.e., by respecting the constitutional dialogue between the Member States and the CJEU – it could review whether the joint exercise of competences based on Art. E(2) FL infringed: (i) the essential content of any fundamental right (“fundamental rights control”); (ii) Hungary’s sovereignty (including the scope of the competences it had handed over (“sovereignty control” or “ultra vires control”); or (iii) its constitutional identity (“identity control”). It thereby adopted the GFCC approach of control to its own particular constitutional needs and standards. Thus, unlike the way in which the GFCC had used human dignity as a way to allow individuals to use any of the three types of control to bring challenges before it vis-à-vis EU law, the HCC has steadfastly refused such a migration of this constitutional idea.

On the fundamental rights control, the HCC used Arts. E(2) and I(1) FL. Under Art. I(1) FL, the inviolable and inalienable fundamental rights of man are to be respected. The HCC noted that it was the primary duty of the State to protect these rights. Bearing in mind the provisions, together with the need for cooperation in the EU as well as the primacy of EU law, the HCC stated that it could not renounce the ultima ratio defence of human dignity and other fundamental rights. It held that as Hungary was bound by fundamental rights, the binding force of such rights are also applicable to cases where public power or competences were exercised together with the EU institutions or other Member States.

As regards ultra vires control, the HCC referred to the concept of “state sovereignty” (supreme power, territory and population) that followed from Arts. B(1), B(3) and B(4) FL^[31]. The HCC stated that Hungary had not relinquished its sovereignty by joining the EU but only made possible the joint exercise of certain competences^[32]: “Accordingly, the reservation of Hungary’s sovereignty should be presumed when judging upon the joint exercise of further competences additional to the rights and obligations provided in the Founding Treaties of the European Union (presumption of reserved sovereignty)”. Echoing its words in Decision 143/2010 (VII.14) AB, the HCC held that Art. E(2) FL should not empty Art. B FL of its meaning and stressed that the exercise of powers (within the EU) could not result in the loss of the ultimate possibility oversight by the Hungarian people over public power, a matter recognised in the Fundamental Law^[33].

Lastly, the HCC based its understanding of constitutional identity review on Art. 4(2) TEU. It recognised^[34] that the protection of constitutional identity rested with the CJEU and was based on continuous cooperation, mutual respect, and equality, i.e., judicial dialogue with the national courts. In the HCC’s understanding, then, constitutional identity meant the constitutional identity of Hungary whose content was to be determined on a case-by-case basis. Such gradual evolution would be based on the Fundamental Law as a whole and its provisions in accordance with its Art. R(3) FL that requires its interpretation to be in harmony with its purposes, the National Avowal that formed part of the Fundamental Law and the achievements of the historical constitution.

While apparently eschewing the need to provide an exhaustive list of values that comprised Hungary’s constitutional identity, the HCC nevertheless (as with the example of the GFCC in Maastricht and Lisbon) indicated some of them. These comprised^[35] freedoms, the separation of powers, the republican form of state, respect of public law autonomies, freedom of religion, legality, parliamentarism, equality before the law, recognition of judicial power, and the protection of nationalities that are living in Hungary. Potential areas for consideration that could emerge in relation to areas shaping the citizens’ living conditions, included^[36] especially the private sphere of their own responsibility and of political and social security, protected by fundamental rights, and in areas in which the linguistic, historical and cultural involvement of Hungary could be detected. Thus, the HCC determined that the constitutional identity of Hungary was “not a list of static and closed values”^[37] but rather^[38]:

In the HCC’s view, it followed that sovereignty and constitutional identity intersected in many points and therefore the two reviews needed to be employed vis-à-vis each another. In this way, the HCC followed the development noted by the GFCC in the OMT case^[39].

2.4. Hungarian rules on illegal migration case[Up]

The final case for consideration in this part was delivered after the Seventh Amendment of the Fundamental Law had introduced changes in 2018, inter alia, into Art. E FL. As amended, this Article now provides expressly that the exercise of competences, within the EU context, has to comply with the fundamental rights and freedoms provided for in the Fundamental Law and are not to limit the inalienable right of Hungary to determine its territorial unity, population, form of government and state structure. In this way, the three types of control established by the HCC in Decision 22/2016 (XII.5) AB are now clearly provided for at the constitutional level in the amended Art. E FL.

The Minister of Justice brought the petition in Decision 2/2019 (III.5) AB^[40] as the result of the European Commission’s letter of formal notice under Art. 258 TFEU (mentioned above) concerning the 2015 and 2017 statutes amending certain Hungarian legal rules related to measures to combat illegal immigration. The petitioner claimed^[41] that the central constitutional issue was the question of the exclusive competence of the HCC over the interpretation of the Fundamental Law. He asked, inter alia, for an interpretation as whether^[42]: (i) Art. R(1) FL that provides that the Fundamental Law is the foundation of the legal system was, at the same time, the legitimising source of all sources of law, including that of the EU; and (ii) it followed from Art. 24(1) FL, that provides the HCC is the principal organ for protecting the Fundamental Law, the Court’s interpretation of the Fundamental Law could not be derogated from by any interpretation provided by another organ (expressly, in this case, the European Commission but also, impliedly, the CJEU).

The HCC partly agreed with the Minister on the first question^[43], noting that – as with other EU Member States – their domestic legal rules on the national enforcement of the founding treaties (TEU, TFEU and Euratom) and the frameworks set by their own constitutions would determine the extent of primacy enjoyed by EU law in a particular Member State over its own laws. Consequently, having regard to the application of the primacy of EU law over national law, the Court determined that, on the basis of Art. R(1) FL, the foundation of the applicability and effectiveness of EU law in Hungary was Art. E FL.

As regards the second question^[44], the HCC indicated that usually the parallel systems of EU and national law did not provoke a constitutional dilemma since the two normative systems were based on a common set of values. However, due to differing standards, the HCC admitted that it could – at times – reach a different conclusion to that of the CJEU with respect to the conformity of national rules to EU law. It therefore followed from Art. 24(1) FL that the HCC retained the role and duty of determining the interpretation of the constitutional order of Hungary, including its fundamental system. Nevertheless, this of itself did not exclude other domestic and international organs, courts or institutions, from interpreting the Fundamental Law or Hungarian laws in the course of proceedings before them^[45]. However, the HCC’s interpretation of the Fundamental Law (which approach applied equally to interpretation by other constitutional courts in EU Member States) possessed an erga omnes character. This meant that all organs or institutions were to respect this interpretation in their own proceedings as the authentic meaning^[46].

In addition, the HCC recommitted^[47] itself to the requirement of judicial dialogue as it had done in Decision 22/2016 (XII.5) AB^[48] and with it the realisation of the condition of cooperation based on the principles of equality and collegiality, with mutual respect to each other, i.e., the CJEU. Consequently, the relevant courts had to take into account each other’s authentic interpretations. Indeed, in defining the harmony and the coherence of legal systems as constitutional objectives that followed from the need to promote “the creation of European unity” in Art. E(1) FL, the HCC emphasised^[49] that domestic laws and the Fundamental Law itself should be interpreted – as far as possible – in a manner to make the content of the national norm comply with EU law. This approach appears to comply with Marleasing^[50] and the CJEU principle for the consistent interpretation of national law with EU law (‍Tatham 2013: 172-‍177).

Nevertheless, the phrase “as far as possible”, while echoing the CJEU’s wording in Marleasing, still gives the HCC discretion not to comply with that principle if any CJEU interpretation might conceivably come up against the counter-limits of the Fundamental Law.

Moreover, Decision 9/2019 (III.5) AB underlines the point that, were the relevant circumstances to arise, the HCC could make a binding decision on the effect or otherwise of a CJEU ruling in Hungary, which decision could not be subject to challenge in the domestic legal system. That this is a feasible position to defend can be seen from the next section that discusses how constitutional courts in various EU Member States have sought to ignore CJEU rulings in their own decision-making.

3.1. Earlier national court judgments[Up]

Through her petition in Decision 32/2021 (XII.20) AB, the Minister was in effect inviting the HCC to follow recent comparable national case law according to which constitutional courts in several EU Member States had refused to follow CJEU rulings binding on them, on the grounds that they had considered them to infringe domestic fundamental rights, or were ultra vires the powers their State already conferred on the EU, or breached their State’s constitutional identity. Although – as mentioned above – the GFCC developed the possibility of ultra vires review of CJEU rulings made under Art. 267 TFEU in Maastricht and in Lisbon, the progeny of this approach can be traced back much further, at least to the French Conseil d’État in its 1978 judgment in the case of Cohn-Bendit in which it refused to recognise the direct effect of provisions of a Directive (as well as of EEC law generally) (‍Tatham, 1991). Such judgment had ignored the previous CJEU ruling on the subject in Van Duyn^[51].

While the GFCC rejected the claim – made in Honeywell^[52] – that the CJEU ruling Mangold^[53] was ultra vires because it had transgressed its conferred competences through its expansive interpretation of EU law and principles (‍Corti Varela, Porras Belarra and Román Vaca, 2011), it did find favour with the Czech Constitutional Court (CCC) in the Slovak Pensions case^[54]. In that judgment, the CCC decided that the CJEU in its ruling in Landtová^[55] had applied EU law in a purely internal situation involving social security entitlements connected with employment periods completed within a single State. In the view of the CCC, such interpretation had exceeded the limits of the powers of CJEU and constituted an ultra vires act.

Commentators were divided as to whether this was the first salvo in a new round of problems with the exercise of judicial dialogue or merely an exceptional phenomenon (‍Komárek, 2012; ‍Zbíral, 2012).

3.2. Further national constitutional courts ignore CJEU rulings[Up]

It took several more years however before it finally manifested itself again, this time before the GFCC in the Public Sector Purchase Programme (PSPP) case^[56]. In that case, the GFCC ruled that the Federal Government and the Bundestag had violated several of the complainants’ fundamental rights under the German Basic Law. These institutions had failed to take steps to challenge the European Central Bank (ECB) decisions on the adoption and implementation of the PSPP since they had neither assessed nor substantiated the fact that the measures provided for in the relevant ECB decisions had satisfied the principle of proportionality under German constitutional law. Moreover, the CJEU in Weiss^[57], one that the GFCC had itself requested under Art. 267 TFEU, had held that the Decision of the ECB Governing Council on the PSPP and its subsequent amendments were still within the ambit of the ECB’s competences. In response, the GFCC considered that the CJEU’s interpretation of the principle of proportionality had exceeded the judicial mandate conferred upon it in Art. 19(1) TEU and so, to that extent, the ruling in Weiss was thereby rendered ultra vires (‍Corti Varela, 2021).

While this caused a political storm that was eventually settled, the “genie was out of the bottle”. In fact, at the time, commentators had warned (e.g.‍, Poiares Maduro, 2020) that PSPP would encourage other national courts and governments to fling wide the doors for open revolt against the CJEU/EU, especially those in Eurosceptic countries already involved in legal and political battles on the rule of law with the EU.

Unfortunately, this has proven to be a case. With the grave situation in the marked deterioration of respect for the rule of law in Poland and the fight for maintaining judicial independence in the face of the political roll-back of rights and freedoms, the CJEU (together with the European Court of Human Rights (ECtHR) in Strasbourg^[58]) has been at the forefront in seeking to stop and reverse such backsliding in the rule of law (‍Pech and Kochenov, 2021: 183-‍204). In view of the current circumstances in which the PCT is presently regarded as being “captured” by the current Polish populist government (similarly to the HCC) and as an illegally constituted and illegitimate “court” according to the relevant ECtHR judgments and CJEU rulings, it came as no great surprise for the Polish Prime Minister to file a motion in spring 2021 inviting the PCT inter alia to consider ignoring CJEU rulings. The PCT duly obliged and, in October of that year, ruled in Decision K 3/21 (Assessment of the conformity to the Polish Constitution of selected provisions of the Treaty on European Union)^[59] that the CJEU interpretations of Arts. 1 and 19 TEU, in its various rulings on the independence of the judiciary^[60], were in conflict with the 1997 Polish Constitution (‍Jaraczewski, 2021). As a result, it became possible to discipline judges for failing to comply with this Decision, if they were to apply CJEU rulings that included an interpretation of treaty provisions that the CT had already declared unconstitutional: such disciplinary proceedings have already been brought^[61].

The Romanian Constitutional Court (RCC) followed suit a few months later. In 2018, the Romania had established a new section within the Public Prosecutor’s Office for investigation of offences committed within the judicial system (Secția pentru Investigarea Infracțiunilor din Justiție or SIIJ). In Asociaţia Forumul Judecătorilor din România^[62], the CJEU held, inter alia, that national legislation providing for the creation of the SIIJ was contrary to EU law where its establishment was not justified by objective and verifiable requirements relating to the sound administration of justice and was not accompanied by specific guarantees that the CJEU identified.

A few weeks later, in Decision 390/2021^[63], the RCC dismissed an objection that the provisions of national law on the establishment and functioning of the SIIJ were unconstitutional^[64]. It noted that, in its previous judgments, it had held that the provisions in question were constitutional and stated that it saw no reason to depart from those rulings notwithstanding the CJEU in Asociaţia Forumul Judecătorilor din România. The RCC acknowledged that, while Art. 148(2) of the 1991 Romanian Constitution provided for the primacy of EU law over conflicting provisions of national law, such principle could not eliminate or negate national constitutional identity. That Article therefore did not grant EU law primacy over the Constitution, with the result that a national court had no power to examine the conformity with EU law of a provision of domestic law that the RCC had already been held to be constitutional^[65].

As a result of the foregoing, on the one hand, the HCC had defined an increasingly stronger position of identity vis-à-vis EU law without actually attempting to review an interpretation of that law by the CJEU on the grounds of its infringing the counter-limits of Hungarian sovereignty (‍Tatham, 2013: 145-‍152). Nevertheless, in its Decision 2/2019 (III.5) AB, the HCC basically implied that it ultimately possessed the jurisdiction to ignore CJEU rulings. On the other hand, the increasing tendencies of the GFCC and its sister courts in Central Europe to rule interpretations of EU law by the CJEU as ultra vires gave the HCC comparative legal support in the situation that it would wish to adopt such an approach.

Given these two streams of case law, their confluence in the HCC’s forthcoming decision would have seemed to be the next natural progression. In this way, the Minister of Justice would probably have been confident that her arguments on the petition would carry the day for the Hungarian government.

2.1. Methods of national control over EU inaction in shared competences[Up]

The object of the HCC review therefore was not the CJEU ruling but rather became Art. E FL, the Europe or accession clause. In not directly challenging the primacy of the CJEU ruling, the HCC had decided instead to reorient its decision on the petition before it, towards the situation where the Union had failed to exercise or incompletely exercise its shared competences with EU Member States in the fields of asylum and immigration law within Arts. 67-‍89 TFEU.

The HCC thus resolved to interpret Art. E(2) FL but could not, for jurisdictional reasons, examine whether in the specific case the exercise of joint competence had in fact been incomplete^[70]. Neither could the HCC decide whether the petitioner’s argument that, as a consequence of the CJEU ruling, a foreign population might in fact become part of the population of Hungary were correct. Instead, this would be a matter to be judged by the relevant domestic legislator or body applying the law but not the HCC. The HCC also stressed^[71] that the abstract constitutional interpretation might not be aimed at reviewing a CJEU ruling, nor did the HCC’s procedure in the present case – due to its nature – include the examination of the primacy of EU law.

The HCC – using the already established three methods of control – thus examined in turn whether the lack of joint exercise of competences, based on Art. E(2) FL, could lead to a violation of: (1) the essential content of any fundamental right, in particular, human dignity (fundamental rights control); or (2) Hungary’s sovereignty (including the scope of the competences it had handed over, ultra vires or sovereignty control); or (3) its constitutional identity (identity control).

2.2. Fundamental rights control (human dignity)[Up]

The HCC first examined whether the relevant joint exercise of competences, or its incomplete effectiveness, could violate the fundamental rights and freedoms enshrined in the Fundamental Law, the protection of which was the primary obligation of the State under Art. I (1) FL^[72]. Since this involved such rights in general, rather than specific ones, the HCC decided to rely on the right to human dignity as the basis of its examination since, under its established case law^[73], such right could be relied upon by the HCC or other courts to protect an individual’s autonomy when no specific fundamental rights were applicable to a set of facts. The right to human dignity included, in the interpretation of the HCC, the right to personal identity and the right to self-determination.

The HCC noted^[74] that a person, as the most elementary constituent of all social communities, especially the State, was born into a given social environment that could be defined as their traditional social environment, especially through its ethnic, linguistic, cultural and religious determinants. Such circumstances created natural ties, determined by birth, which shaped the identity of community members^[75]. These circumstances were difficult or impossible for individuals to change; therefore, they become a determining element of their personality and an integral part of the human quality that derived from the dignity of the human person. Thus, as the HCC had previously stated^[76]: “The right to human dignity, by virtue of its general function of protecting the personality, also includes other specifically defined rights, component rights, such as the right to identity, the right to self-determination, the general freedom of action, the right to the protection of privacy”.

Protection under constitutional law, the HCC continued^[77], ought not to be an abstract, static protection of the individual removed from their historical and social reality: rather it had to take into account the dynamic changes in contemporary life. Just as the State could not make unreasonable distinctions regarding fundamental rights on the basis of these characteristics, it also had to ensure, with regard to its duty to protect institutions, that changes to the traditional social environment of the individual could only take place without significant harm to these substantial (determining) elements of an individual’s identity.

However, if the content of identity were artificially and undemocratically altered by the State (or any other organisation other than the State), this might infringe both the individual’s identity and their existing self-determination to change this. As the HCC further observed^[78], the traditional social environment into which the individual was born and that was independent of the individual shaped the self-definition of the individual, and the self-definition of the individuals who make up society created and then shaped the collective identity, i.e., the identity of the given community and the given nation.

According to the HCC^[79], when – as a result of the defective exercise of shared powers under Art. E(2) FL – a foreign population, without democratic authorisation, were to remain permanently and en masse on Hungarian territory, then that would be likely to affect human dignity because it could cause a forced change in the traditional social environment of man. Due to the State’s obligation of institutional protection, the prevention of such occurrence was the State’s duty under Art. I FL.

Nevertheless, the HCC was at pains to stress^[80] that the settlement in Hungary of (groups of) people different from the traditional social identity of those living in Hungary did not in itself, generally speaking, raise the issue of violation of human dignity provided such settlement was subject to the State’s control mechanisms. Moreover, no distinction was to be made in the State’s objective institutional protection of the human dignity of all persons staying in Hungary, regardless of the legal title and the lawfulness of their stay. However, the State was able to subject legal residents and those who were illegally staying in the country to different legal regulations since they were accordingly not in a comparable situation and so did not constitute a homogenous group.

2.3. Ultra vires (or sovereignty) control[Up]

With regard to ultra vires control, the HCC^[81] referred back to its previous case law, particularly Decision 22/2016 (XII.5) AB, on the presumption of reserved sovereignty. The application of such presumption in a case might be made exceptionally and only where the lack of exercise of the common competences concerned – or their incomplete exercise – clearly failed to ensure the effectiveness (effet utile) of EU law, might lead to a violation of fundamental rights or a restriction on the performance of State obligations.

Even in this case, Hungary was only entitled to exercise a shared competence under Art. E(2) FL (that was to be exercised jointly), until the EU or its institutions had created the guarantees for the effectiveness of EU law. Even then, it could only do so in a manner that was consistent with and aimed at promoting the founding and amending treaties of the EU. The Member State’s exercise of the shared competence to be exercised jointly under Art. E(2) FL was conditional on Hungary drawing the attention of the EU or its institutions to the need to exercise such competence and the Union or its institutions failing to do so. The HCC maintained^[82] that its interpretation of reserved sovereignty was also expressly in line with the principle of sincere cooperation under Art. 4(3) TEU.

The HCC then proceeded^[83] to provide some indications as to how Hungarian institutions and bodies were to draw up domestic legislation on asylum procedures and asylum seekers. In these matters, such entities had a duty, under Art. E(2) FL, to ensure that the said national rules were drawn up in accordance with the principles of solidarity and sincere cooperation laid down in Art. 4(3) TEU. They were to do this while also taking into account the provisions of Art. 4(2) TEU on the essential functions and territorial integrity of the State together with the maintenance of public order and the provisions on the protection of national security. In addition, the said entities were also to ensure observance and the rules of the 1951 Geneva Convention relating to the status of refugees and its additional protocol, as reflected in the legal provisions of the Union. The HCC observed^[84] that the effet utile of EU law was to be presumed when designing these rules but also emphasised that the actual decision to grant or refuse asylum remained a sovereign national act of Hungary.

It has already been observed that the judgment is particularly incomplete on this point and may be subject to divergent interpretations (‍Cseke, 2022). On the one hand, it is possible to consider that the reasons of public policy indicated by the HCC are not sufficiently taken into account by the EU legislature, so that Hungary can indeed have recourse to that presumption. On the other hand, assuming the effectiveness of EU law on asylum, Hungary may adopt implementing measures that must be in accordance with EU law. This last interpretation is based on the constitutional dialogue underlined on several occasions by the HCC itself.

2.4. Constitutional identity control[Up]

Finally, the HCC reviewed how the consequences of the potential incomplete effectiveness of the joint exercise of competence at issue related to Hungary’s constitutional identity^[85]. As with ultra vires review, the HCC referred to its previous case law^[86] on the subject – Decision 143/2010 (VII.14) AB and Decision 22/2016 (XII.5) AB – and to the 2018 (Seventh) Amendment of the Fundamental Law that had provided for the protection of constitutional identity and sovereignty. In addition to the changes to Art. E(2) mentioned earlier, the National Avowal also now provides: “We hold that the protection of our identity rooted in our historic constitution is a fundamental obligation of the State”. While new Art. R(4) FL reads: “The protection of the constitutional identity and Christian culture of Hungary shall be an obligation of each body of the State”.

In the HCC’s interpretation^[87], following the GFCC in the OMT case, constitutional identity and sovereignty (ultra vires control) were not complementary concepts but rather were interrelated in several respects. On the one hand, the safeguarding of Hungary’s constitutional identity, also as an EU Member State, was basically made possible by its sovereignty (the safeguarding of it). On the other hand, constitutional identity manifested itself primarily through a sovereign act, viz., the adoption of the Fundamental Law. Thirdly, taking into account Hungary’s historical struggles (on which the HCC discoursed at some length^[88]), the aspiration to safeguard the country’s sovereign decision-making powers was itself part of the country’s national identity and, through its recognition by the Fundamental Law, of its constitutional identity as well. Lastly, the main features of State sovereignty recognised in international law were closely linked to Hungary’s constitutional identity due to the historical characteristics of the country.