The paradox of judicial dialogue with the European Court of Justice in an illiberal democracy

The recent experience with the Hungarian Constitutional Court

Abstract

The growth of populist national forms of governance in some EU Member States has caused a marked deterioration in the respect for democracy and the rule of law. The actions of these illiberal governments have led to the capture of those institutions designed to guarantee the rule of law, including constitutional courts. Some of these courts, mindful of the protection of national sovereignty and responding to the CJEU’s case law promoting judicial independence, have refused to recognise the binding nature on them of the rulings of the CJEU. The Hungarian Constitutional Court (HCC) was recently given the opportunity to follow its sister courts in Germany, Poland and Romania in the Refugee Pushback case but refused to do so. The work examines the broader EU and more specific domestic constitutional contexts in order to understand the HCC’s cautious approach and avoidance of a direct confrontation with the CJEU. It analyses how the HCC, in exceptional cases and in an ultima ratio manner, could use three types of control to verify, in the exercise of the
competences shared between the EU and the Member States, whether it infringes
the essential content of a fundamental right (fundamental rights review), the sovereignty
of Hungary (sovereignty review or ultra vires review) as well as its constitutional
identity (constitutional identity review). However, at the same time, the HCC
balances the protection of the national constitutional order with the EU’s duty of
sincere cooperation in the form of judicial dialogue with the CJEU.