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As a result of the a posteriori constitutional control of the competition co-operation regime in the Europe Agreement Judgment the Court declared the first and second paragraphs of Article 1 IR as well as Article 6 IR unconstitutional. In accordance with the Preliminary Issues Judgment the unconstitutionality of the above provisions results in the annulment of only the relevant provisions of the Hungarian laws proclaiming those unconstitutional international treaty provisions. [87]
Moreover, the Court suspended taking a decision on the annulment of the relevant provisions until 31 December 1999 on the basis of the possibility of delayed annulment established in the Preliminary Issues Judgment .[88] By opting for delayed annulment, the Court rejected Berke's request of immediate annulment [89], and probably in order to soften the finding of unconstitutionality, it adopted the arguments of the Ministries on the prevalence of public interest over private ones. [90] In its judgment the Court analysed the consequences of unconstitutionality both with regard to the unconstitutional provisions and the saved Article 62 (2) EA. Undoubtedly, the Court had a moral justification to do so at least in the context of the provisions to be annulled. The Europe Agreement Judgment constitutes the first occasion of the delayed annulment of provisions proclaiming international treaties that have been declared unconstitutional. Nevertheless, the Constitutional Court has no legislatively established competence to issue detailed guidance on the effects of such a situation.
The Court seized the opportunity of providing guidance on the consequences of the unconstitutionality of the relevant provisions of the Implementing Rules to define the short-term consequences of its judgment and also to re-confirm the dualism of the Hungarian legal system. Accordingly, it strictly distinguished the consequences of the unconstitutionality of an international treaty provision on the level of international and domestic law:
"[T]he fact that the Constitutional Court declared the partial unconstitutionality of the Implementing Rules does not affect Decision 2/96 of the EC-Hungary Association Council as the source of the internationally undertaken obligation. However, the Implementing Rules adopted by means of the decision of the Association Council are unconstitutional in Hungarian domestic law in their parts affected by the judgment of the Constitutional Court." [91]
Furthermore, the Court determined the consequences of unconstitutionality in domestic law in a way that does not only push Hungarian dualism even over the limits of the version argued by Berke [92], but it might even contradict Article 27 VCLT [93] referred to by the Ministry of Foreign Affairs [94]:
"As a result of the unconstitutionality of the proclaiming Hungarian law, the unconstitutional internationally undertaken obligation cannot become effective and cannot be applied in [Hungarian] domestic law. The undertaken obligation remains unaffected as regards its effectiveness under international law, namely the decision of the Association Council is binding upon the Hungarian Republic as an international law subject after the declaration of the unconstitutionality of the provisions of the proclaiming laws. Pursuant to Article 7 (1) of the Constitution, it is the task of the legislator to establish the harmony of domestic law and the obligation undertaken on the international level." [95]
It seems forced to limit the implementation of international treaty provisions that have been declared unconstitutional to the legislative way referenced by the Ministries. It is an unsuccessful venture for a sovereign non-Member State to comply with the obligation to implement Community law solely by legislative means. Indeed, the Court rejected the approach of exclusive legislative implementation put forward by the Ministries. Such an approach will be even more outdated after Hungary becomes a Member State of the European Union.
Moreover, non-application as an automatic consequence of unconstitutionality results in practice in the non-existence of the proclaiming Hungarian equivalents of the unconstitutional treaty provisions. Consequently, although the Constitutional Court managed to confirm its powers by preventing unconstitutional treaty provisions from becoming effective in Hungary, and thereby it accepted Berke's arguments that Hungarian private law subjects should be protected from the negative effects of unconstitutional treaty provisions with immediate effect, the Court effectively deprived delayed annulment, not to mention its gesture to the Ministries, of its meaning. Indeed, if the only effect of annulment is that the annulled norm loses its applicability, what is the point in delaying the annulment of a legal norm that cannot be effective anyway?
The above approach was not the last word of the Court on the short-term effects of the unconstitutionality of the relevant provisions. In addition to providing guidance on the effects of unconstitutionality with regard to the unconstitutional provisions, the Court analysed the consequences with regard to the application of the saved Article 62 (2) EA:
"The mere fact that, in the absence of appropriate transformation (incorporation), an international treaty does not become part of domestic law, does not necessarily mean in each case that the specific treaty does not have to be taken into account in the application of Hungarian law. Article 7 (1) of the Constitution requires the harmony of undertaken international law obligations and domestic law, and in that framework the interpretation of the domestic law proclaiming the international treaty, which complies with the living meaning of the treaty accepted in international law... [T]he harmony of undertaken international obligations has to be guaranteed with regard to the entire domestic law, including the Constitution, as well. At the same time, according to Article 7 (1) of the Constitution, the Hungarian legal system accepts the generally accepted rules of international law and a similar constitutional requirement applies to the norms of international ius cogens . Nevertheless, international treaty obligations undertaken outside the scope of... international ius cogens cannot become effective in their content contrary to the Constitution. The principle of favor conventionis applies to the extent until the Constitution is violated as a result of the interpretation of Hungarian law in conformity with the international treaty. If the appropriate interpretation of the undertaken international obligation leads to the violation of Article 2 of the Constitution, the harmony required by Article 7 (1) of the Constitution has not been established. As the first and second paragraphs of Article 1 IR are unconstitutional... and thus they cannot be taken into account in the Hungarian legal system, they cannot be relevant in the interpretation and application of Article 62 (2) EA, either. Thus, the Hungarian law enforcement authorities cannot directly apply the criteria of application referred to by Article 62 (2) EA." [96]
Although the Court's decision not to annul Article 62 (2) EA might at first glance show genuine self-restraint, by giving guidelines on how that implicitly unconstitutional article could be applied in a constitutional way, the Court acted in an activist manner. Undoubtedly, the Court lacks any kind of legislative power to do so, since it may only decide on a provision's constitutionality or unconstitutionality. In other words, it may declare Article 62 (2) EA unconstitutional or may save it, but it cannot save it and at the same time limit its applicability. Nevertheless, the Court's guidance is restrictive as it limits the indirect interpretative effect of Article 62 (2) EA.
The Court's guidance on the effects of unconstitutionality with regard to the saved Article 62 (2) EA means that the co-operation regime remains effective even in Hungarian law except for the direct applicability of Community competition law in the Hungarian legal system. This, however, also means that the Europe Agreement Judgment invalidates what is probably the most important element of the competition co-operation regime, without which the regime remains unimplemented.
The Court did not solve this problem, it only provided for the possible ways to solve it. According to its Preliminary Issues Judgment , the choice between the alternatives lies in the hands of the legislator. [97] It is for the legislator to decide whether to guarantee the harmony of domestic law and undertaken international obligations by amending the Constitution or by terminating or re-negotiating an international treaty as regards its unconstitutional provisions.
Nevertheless, since in practice the Hungarian Government is the most important institution proposing legislation and is also involved in the (re-)negotiation of international treaties, the decision between those alternatives can be strongly influenced by the Government. Interestingly, the same Ministries that had the possibility to influence the procedure leading to the Europe Agreement Judgment happen to be responsible also for finding a detailed solution to the situation created by the Courts judgment. [98]
In September 1998 the Ministry of Justice and Ministry of Foreign Affairs presented a joint 'Proposal to the Government on the Assessment of Judgment 30 of 25 June 1998 of the Constitutional Court and on the Steps Taken and Necessary on the Basis of That Judgment.' [99] In duly analysing the relevance of the two alternatives of unconstitutionality laid down by the Preliminary Issues Judgment , the Ministries accepted that:
"[i]n principle, the violation of sovereignty could be eliminated by means of the amendment of the Constitution, in other words by including an authorisation into the Constitution according to which the Hungarian Republic may temporarily cede the exercise of partial rights flowing from her sovereignty to international organisations and it authorises the limitation of her sovereignty in order to fulfil her international duties." [100]
However, the Ministries rejected the amendment of the Constitution as " not opportune for a number of reasons. "[101] Despite their earlier argument that in a later phase of the integration process - but still before accession to the European Union - Hungary should renounce the exercise of parts of her sovereign rights to the European Union [102], they adopted an approach based on the requirement of mutuality and rejected that Hungary transfer her sovereign legislative rights to the European Union before it becomes Member State. As a practical argument they also pointed out that the co-operation regime has not yet been invoked or applied before the OEC and therefore it would be odd to promote the amendment of the Constitution " for the sustainability of a law the practical importance of which is not significant. "[103] Accordingly, at the end of their proposal the Ministries published a draft Government Resolution " authorising the Minister of Justice and the Minister of Foreign Affairs to initiate negotiations by nominated experts and involving the Minister of Finance and the President of the OEC on the necessary amendment and joint interpretation of the [Implementing Rules] as a result of the [Europe Agreement Judgment] ."[104]
As regards the actual position of the Hungarian party in such negotiations, the Ministries analysed three solutions " which have been earlier applied by the EC [in its external relations] or the application of which is otherwise possible ."[105]
The first solution considered by the Ministries was a regime similar to that of the European Economic Area. Under such a regime:
"the experts of the EEA Member States participate in the preparation of draft EC laws having an EEA relevance... Subsequently, the new law is incorporated «in a Community way» into the legal systems of the EEA Member States following the amendment of the EEA Agreement." [106]
Nevertheless, the Ministries rejected this regime for a number of reasons. First, the EEA Agreement does not aim at preparing its parties for EU membership. Moreover, the Ministries doubted the usefulness of introducing significant changes in EC-Hungary relations for the remaining hopefully short period before accession and in a very limited part of the coherent system established by the Europe Agreement. They also feared that the full reception of Community competition law might have negative effects on the less developed Hungarian market, furthermore no real compensating benefits similar to the case of the EEA Agreement would be offered for Hungary in exchange for the full reception of Community competition law. Finally, the Ministries considered the limited support by the European Union for such a solution, since it would grant a special treatment to Hungary and therefore " it would be a step of great political weight ."[107]
As a second possibility, the Ministries considered the incorporation of substantive EC competition law into the Implementing Rules. Thus, " the Implementing Rules would practically «reproduce» the Community competition law 'criteria'; in other words, the Implementing Rules would practically reflect substantive Community competition rules ."[108] In the opinion of the Ministries, such an amendment would be justified by the fact that " during the negotiations leading to the EA the parties basically conceived the adoption of the Implementing Rules in that construction. Therefore, this version would be close to the original intention of the signatories ."[109] Nevertheless, the Ministries discarded this possibility because of its probable rejection by the European Commission, since " thus the interpretation and application of the substantive law provisions of the Implementing Rules would be separated and could therefore differ from that of Community competition law ."[110]
The third possibility considered by the Ministries was the " «reception» of Community competition law by legislation ."[111] According to the Ministries, this " seems to offer an advantageous solution to the issue at hand from a practical point of view ."[112] This solution would be based on the appropriate rectification of the unconstitutional provisions of the Implementing Rules and on the parties' simultaneous declaration in the Association Council that " Article 62 (2) EA obliges Hungary to only approximate her laws to the Community law criteria referenced by that paragraph (at least with regard to anti-competitive practices affecting Hungary-EC trade) ."[113] In other words,
"the parties would make it clear that they do not attach to Article 62 (2) EA an interpretation, according to which Hungarian authorities and courts should directly apply Community competition law 'criteria' even as interpretative criteria. [...] Consequently, Hungary should only comply with her obligations flowing from the EA by way of legislation. This would also mean that the parties interpret Article 62 (2) EA in a way that it is sufficiently complied with by way of the proper rectification of Hungarian domestic laws."[114]
Promoting this third solution, the Ministries only listed its advantages. They reiterated their earlier argument that it would not be expedient to introduce a radically different procedural order for a rather limited period, in particular, in contrast to the EEA, no special institutions should be established for guaranteeing legal uniformity. [115] Moreover, they argued that this solution would not result in Hungary's special treatment among the CEECs and it would establish a less tight requirement of uniformity limited to the main principles and requirements of Community competition law. Finally, this solution is the one closest to the opinion of the European Commission and the OEC. In other words, the third version would comply with the understanding of its addressees and also with the Europe Agreement Judgment , without at the same time showing any of the disadvantages of the earlier two possible solutions.
Nevertheless, if this third solution is adopted [116], that would also mean the triumph of the legislative approach represented by the Ministries in the procedure of the Europe Agreement Judgment (notwithstanding the arguments against such an approach even from Ambassador Juhász), and it would necessarily involve the rejection of Berke's understanding on the implementation of the co-operation regime.
However, although such an outcome could be regarded as a partial defeat of Berke's arguments, the Europe Agreement Judgment facilitated the general recognition of the validity of his arguments. In the postscript of his original submission to the Court Berke stressed that:
"[he] elaborated [his] submission and tried to draw attention [...] to a rather significant issue in the hope that the Constitutional Court recognises that a major future direction of its activities will be the analysis of and guidance on, the process, conditions and consequences of accession to the European Union." [117]
In the course of the Europe Agreement Judgment superior Hungarian executive and judicial fora had to seriously consider the issue of Community law and its connection with the Hungarian legal system for the first time. Interestingly, they identified their positions on those issues in compliance with Berke's approach. Not only did the Constitutional Court defend the sovereignty of the Hungarian Republic and re-confirm most of Berke's arguments, but also the Ministry of Justice adopted a similar approach. Despite its earlier arguments, in its second submission the Ministry of Justice analysed the criteria of the limitation of Hungarian sovereignty. The following instructive passage could be regarded as the future conviction of the Hungarian executive branch in that regard:
"It is known from scholarly works and from the jurisprudence of EU Member States that the rules on the limitation of sovereignty or the joint exercise thereof with other states, either if such rules are explicit as in the case of a number of Member States or if they are implicitly applicable as in the case of the current Hungarian Constitution, are not independent of the other constitutional provisions and they cannot be used to circumvent other constitutional provisions or to deprive them of their content. It is on this basis that the process of concluding treaties involving the limitation of sovereignty and the authorisation of institutions concluding such treaties are subject to constitutional control. Moreover, such an agreement may not affect the essential elements of sovereignty, either, and it cannot directly contradict constitutional principles. The principle of democracy based on the representation of the people cannot be violated and the level of protection of fundamental rights cannot diminish. Even where the latter criteria are fulfilled, the limitation of sovereignty can only take place in specific limited fields and such limitation cannot be irrevocable or irreversible." [118]
The Europe Agreement Judgment is an important milestone in the development of Hungarian constitutional jurisprudence. Whereas in its earlier judgments the Court only developed its approach towards two categories of international law, namely international treaty rules and generally accepted rules and principles of international law, for the first time in the Europe Agreement Judgment it enunciated its position on Community law. And, although it adopted its judgment by interpreting Hungarian laws concerning international law, it expressly took into account the fact that Community law has special characteristics. For instance, the Court adopted Berke's formulation and, instead of using the expression 'international law', " [it] stresse[d] that the referenced 'criteria' of the Community's domestic law qualify as foreign law from the point of view of Hungarian law enforcement, since Hungary is not a Member State of the European Union ."[119]
As for the long-term consequences of the Europe Agreement Judgment , namely what kind of approach will the Hungarian Constitutional Court adopt once Hungary becomes a Member State of the European Union, one could conclude that it will imitate the German Constitutional Court ('Bundesverfassungsgericht'). Indeed, when paving the way for the Europe Agreement Judgment , in its Preliminary Issues Judgment , it expressly referred to the historic judgments of the Bundesverfassungsgericht on the relationship between German law and Community law. [120] In the light of the Preliminary Issues Judgment and the Europe Agreement Judgment , such a development of Hungarian constitutional jurisprudence cannot be excluded.
Even though there is no explicit constitutional prohibition or detailed provision on the transfer of Hungarian sovereignty, the constitutional limitations established by the Hungarian Constitutional Court seem to sound very much like the following paragraph in the Brunner Judgment of the Bundesverfassungsgericht:
"Art. 38 GG wird demnach verletzt, wenn ein Gesetz, das die deutsche Rechtsordnung für die unmittelbare Geltung und Anwendung von Recht der - supranationalen - Europäischen Gemeinschaften öffnet, die zur Wahrnehmung übertragenen Rechte und das beabsichtigte Integrationsprogramm nicht hinreichend bestimmbar festlegt. Steht nicht fest, in welchem Umfang und Ausmaß der deutsche Gesetzgeber der Verlagerung der Ausübung von Hoheitsrechten zugestimmt hat, so wird die Inanspruchnahme nicht benannter Aufgaben und Befugnisse durch die Europäischen Gemeinschaften ermöglicht. Dies käme einer Generalermächtigung gleich und wäre damit eine Entäußerung, gegen die Art. 38 GG schützt." [121]
As we have seen, other elements of the concept laid down by the Bundesverfassungsgericht, like for example that of the 'Herren der Verträge' [122] also surface in the arguments of the Ministry of Justice [123]; the 'window approach' of the Europe Agreement Judgment implies a similar constitutional approach following accession.
Indeed, not only Member States [124] but also future Member States might determine their approach to EC law on the basis of the model provided by the Bundesverfassungsgericht, and might thereby develop a conflictual relationship with the Community legal system after accession.
Nevertheless, following the German model is not the only possibility for the Hungarian Constitutional Court. As it was argued by Tatham, the guidance of the Court in the Europe Agreement Judgment on how Community law should be applied by the OEC on the basis of the Europe Agreement bears great resemblance to the constitutional 'construction approach' followed by another dualist Member State, the United Kingdom between 1972 and the end of the 1980s. [125] In its mixed approach the Court interpreted the obligation of the OEC to be an obligation of interpreting Hungarian law according to its EC counterparts. [126]
Not only does Hungary and the UK adopt a dualist approach to international law, Hungary had also had the tradition of an unwritten Constitution for centuries. The first written Hungarian Constitution, the one amended in 1989, had been adopted only in 1949. Recently there has been a historic nostalgia of returning to an unwritten Constitution, which is also reinforced by the fact that, although the 1989 amendment has practically resulted in a new Constitution [127] both in its content and its quality [128], it is only a temporary document. [129] In an activist urge [130] to hasten democratic reforms and the adoption of the new Constitution, the Constitutional Court applied the notion of the invisible Constitution [131] in adjudicating such important issues as the abolition of death penalty [132] and the powers of the Parliament, the President of the Republic and the Government over armed forces. [133] Another example was the constitutional saga concerning the compensation of property confiscated for political reasons, in which " [t]he first... [problem] was whether the Constitutional Court should take an active part in the transition of the entire legal system or limit itself to the role of a final watchdog of constitutionality. The Court, led by its President... Sólyom, took up an activist stand, not only curtailing and invalidating the unconstitutional acts of the legislation but also developing a concept of constitutional compensation as a guideline for the legislation ."[134]
The Hungarian Constitutional Court adopted the general approach of the Member States to Community law in that it recognised its special nature " not by virtue of the inherent nature of Community law... but under the authority of [its] own national legal order ."[135] This might lead to conflicts between Hungarian constitutional law and EC law in the future. As De Witte pointed out, " [i]f the courts (and other national authorities) think that Community law ultimately derives its validity in the domestic order from the authority of the Constitution, then they are unlikely to recognise that Community law might prevail over the very foundation from which its legal force derives ."[136]
Nevertheless, the post-accession development of Hungarian constitutional jurisprudence may also turn out to be more sophisticated than just imitating the jurisprudence of another Member State. There are only a few textual starting points in the Europe Agreement Judgment that may hint at, or predict, the future Hungarian approach towards Community law. For instance, in the above passage on the foreign law nature of Community law, the Court explicitly argued that Community law qualified as foreign law from a Hungarian point of view because Hungary is not yet a Member State of the European Union. Turning this argument backwards, Community law would qualify as non-foreign law from the viewpoint of Hungarian law enforcement following accession to the European Union. Moreover, it seems from the fact that the real constitutional problem was the vagueness of the relevant provisions that Hungarian Constitutional Court could accept and indeed would prescribe the indirect application of foreign laws specifically referenced by an international treaty. However, it can only be hoped that all this shows a willingness on the part of the Constitutional Court to accept the specific characteristics of Community law such as direct applicability or direct effect in Hungary following accession. A sufficient degree of certainty in that regard could only flow from future Constitutional jurisprudence expressly accepting that possibility.
Further guidance as to the approach of Hungarian constitutional law towards Community law can be drawn from the Court's analysis on the applicability of the saved Article 62 (2) EA. Limiting the Hungarian application of foreign law to the context that was not declared unconstitutional by the Constitutional Court might raise the concern that should a Community norm be regarded as unconstitutional or declared unconstitutional in Hungary, such a norm could not be taken into account - even following accession. Indeed, by confirming the right to determine how international norms should be applied by Hungarian law enforcement organs the Constitutional Court retained exclusive leverage on the legitimisation of international rules in the Hungarian legal system. Hilf's arguments concerning national courts apply to domestic law enforcement institutions in general:
"[t]he more national courts become involved in the implementation of international rules, the more the relevant international institutions will gain domestic political support and thus, legitimacy." [137]
Moreover, although the constitutional conflict identified in the Europe Agreement Judgment will be solved by the re-negotiation of the co-operation regime, on the longer term accession will definitely necessitate certain amendments to the Hungarian Constitution. In the light of the deep-rooted traditional dualism of the Hungarian legal system and the upholding of the 'window approach' by the Court, an express constitutional provision on the limitation or transfer of Hungarian sovereignty as of the date of accession seems inevitable. [138] For instance, Hungarian law enforcement institutions should be expressly entitled by the Constitution to disregard Hungarian norms in cases where they conflict with Community law. [139] Moreover, in order to avoid an unnecessary debate between Hungarian and Community law, Article 8 (1) of the Constitution [140], which was expressly argued by Berke concerning the preliminary issues, also needs to be amended in the sense that not only Hungarian parliamentary acts should be entitled to lay down and limit fundamental rights and duties. Otherwise any kind of Community norm directly applicable in Hungary and laying down or limiting fundamental rights would be contested before the Constitutional Court for formal reasons. A similar situation arose concerning pre-1989 legislation in the context of which Article 8 " led to countless challenges to governmental and cabinet ordinances of the old legal order that affected some fundamental right ." As a result, " [t]he Constitutional Court was obliged to introduce the practice that without a substantive violation of the Constitution, no old norm would be invalidated due... to a purely formal reason ."[141] And, although the Court may adopt the same approach on the formal issues of Community law, as well, it is highly probable that the Court would exercise in full its well-established substantive control rights over limitations which may affect the essence of a fundamental right and whether such a limitation is proportional. [142] Indeed, it was argued in the context of the Solange II judgment of the Bundesverfassungsgericht [143] that " [i]t is clear that the Federal Constitutional Court did not give up its jurisdiction or come to the conclusion that no such jurisdiction exists. It only states that it will not exercise the jurisdiction as long as the present conditions as to the protection of fundamental rights by the European Court of Justice prevail ."[144] Thus, by giving up concerns on formal or even substantive issues, the Hungarian Constitutional Court would still retain leverage over Community law.
Furthermore, simultaneous to the amendment of the relevant constitutional provisions, the outdated Law Decree No. 27 of 1982 on the Procedure Relating to International Treaties might also have to be made more " flexible and more expedient ."[145]
Finally, although the Court managed to address the issue of the relation between Hungarian and supranational law by regarding Community law as foreign law and hiding behind the " sterile" 'window approach' [146], it cannot be excluded that later, in particular after accession to the European Union, the Court might adopt a more flexible approach concerning Community law by breaking the sometimes inflexible boundaries of thinking in the monist-dualist dichotomy. In a more general context, the Court is and will be exposed to a growing extent to " the objective necessity " of " the application of international law within the domestic legal order and the gradual affirmation of its supremacy over national law ."[147] Nevertheless, although the coherent legislative amendment of the Hungarian Constitution and other domestic rules governing the relation between Hungarian and non-Hungarian law might be preferable, in the absence thereof [148] the Court may also choose to adapt to the circumstances of accession by developing and enforcing its approach as part of the 'invisible Constitution.'
In addition to the great significance of the Preliminary Issues Judgment and the Europe Agreement Judgment as regards the approach of the Hungarian legal system towards Community law, those judgments have special importance from a domestic point of view as they constitute important steps in the Constitutional Court's self-legitimisation.
Observing the development of constitutional jurisprudence in the field of the relationship between Hungarian and non-Hungarian law starting from Judgment 53 of 13 October 1993 ( '1956 Revolution Judgment') , one can see the emergence of the Constitution as the ultimate benchmark with regard to the harmony between Hungarian and non-Hungarian norms, and the emergence of the Constitutional Court as the ultimate forum to identify and decide the constitutional issues involved. [149] Undoubtedly, major parts of that jurisprudence constitute judicial law-making [150], which had to have certain characteristics to be successfully accepted. It is noteworthy, that each step in the direction of extending the Constitutional Court's competence by judicial law-making involved two elements, even if in a covert way: (i) it opened the way for actio popularis [151]; and (ii) in most cases it decided in favour of a widely accepted political issue. [152] In other words, the Court based the development and extension of its jurisprudence and competences in this field on the people's legitimisation. [153]
It is in this context that the Court's following declaration in the Europe Agreement Judgment has to be observed:
"The democratic legitimacy of the exercise of public power is a constitutional requirement with regard to both the internal and external acts of public power, thus including acts of public power that aim to determine international relations and result in international obligations." [154]
Undoubtedly, by such a declaration in an implicit way the Court effectively confirmed itself as the most legitimate institution in the Hungarian Republic, since it can even control the institution in which the sovereignty of the Hungarian people is traditionally vested [155], namely the Parliament. Interestingly, although during the transition negotiations " [t]he Communist government wanted to preserve the supremacy of Parliament and aimed at creating a Constitutional Court with only limited jurisdiction [by withholding] from the Court the right to annul Acts of Parliament "[156], the two basic and finally implemented proposals of the opposition concerning the Constitutional Court were actio popularis and the empowerment of the Court to review the constitutionality of legislative acts adopted by the Parliament. [157]
There is no reason to criticise the Court for fulfilling its constitutional duties and its special role in democratisation. Indeed, both international law and constitutions have played major roles in this regard [158] and constitutional courts have been mostly established to promote that role in countries previously governed by totalitarian regimes, and which have thereby lost confidence in traditional legal [159] and political institutions. [160]
Hungary is no exception. [161] The Hungarian Constitutional Court was the first democratic institution set up after the democratic changes at the end of the 1980's as it even preceded the formation of the first democratically elected Parliament. [162] Moreover, the Court has been an institution involving major political interests since its inception. As mentioned earlier, it has been set up according to the opposition's maximalist requirements concerning its competence. As a result, " [t]he jurisdiction and power of the Court, even by international comparison, is very broad "[163], and in practice the Court has made full use of that. [164] Following the start of its operation " in [the] highly volatile period [of the establishment of a democratic system], the existence of the Constitutional Court allowed political debate to be transposed into legal problems that, with the Court's decision, would be closed in a final and binding manner ."[165] However, it was practically impossible to discard the predominant political connotations by such legalisation. As Paczolay pointed out, " [t]he history of the Compensation Cases reveals that the Constitutional Court attempted to translate highly political questions into legal ones and give them correct legal answers. That history illustrates the limited possibility of such efforts ."[166]
Indeed, since the political and economic systems are undergoing enormous transformation the Hungarian Constitutional Court has an even greater role and responsibility [167] as a rule-maker than any of its counterparts in established democracies. As soon as the new constitutional regime was put into operation, the problems of the system which had not even been conceived by the "founding fathers" arose as prompt and practical political issues. Consequently, even a self-restricting Constitutional Court is involved in the formation of the constitutional system and in the adjudication of highly political issues affecting public interest to a level unimaginable in settled democracies.
In any event, it is striking to see how effectively the Hungarian Court's self-legitimisation is accepted by the wider public and by the Hungarian political arena. The Parliament's legislative dumping to replace legislation of the former regime went hand in hand with a " flood of requests " by private parties to the Constitutional Court. [168] Even though " the Court rejected two thirds of the requests on the ground that they did not ask for an examination of the constitutionality of legal rules, but rather an appeal against final judgments " because citizens " took [the Court] - erroneously -to be the highest court of appeal "[169], this shows that citizens had a clear image of Hungarian democracy, and accorded a great deal of legitimacy to the Constitutional Court as the most available institution in facilitating the realisation of that image. [170] Or to take another, more practical example: in contrast to other European countries like France and Italy, where people would probably be more likely to publicly protest against unpopular political decisions, the 1995 Stability Pact of the Hungarian Government induced relatively few demonstrations [171] but much more submissions to the Constitutional Court. [172]
The Constitutional Court has been and is being legitimised by the higher echelons of Hungarian political life, too. " [I]n parliamentary debate, political parties have tried to use to their advantage the preventive review of norms ."[173] As during four years of socialist-liberal political rule between 1994 and 1998 when the Constitutional Court was the ultimate forum of conservative opposition to effectively block Government proposals and acts [174], in February 1999 the Court decided in favour of the submission by the socialist-liberals now in opposition declaring that acts to be adopted by two-thirds qualified majority cannot be annulled or amended by acts adopted by a simple majority. [175]
It is probably justified to criticise the Hungarian Constitutional Court for its excessive judicial law-making and for stepping out into the Hungarian political arena to such an extent. Nevertheless, it should not be forgotten that simultaneous to the perceived disappointment of the people by traditional political institutions of the Hungarian Republic [176], the Constitutional Court has remained a relatively legitimised institution. Undoubtedly, by legitimising itself the Constitutional Court also legitimises the newly established Hungarian democracy. At times of turbulent changes in the social and economic environment, safeguarding the validity of the pre-transition legal system, which is phased out at a relatively slower pace than social and economic changes take place, in effect safeguards the most stabile factor in society. Nevertheless, both the legislation of the old regime and new legislation have one sine qua non for successful operation: legitimisation. In fact, it seems that in times of changing regimes and social and economic transition, when legal and political issues are more intertwined, the validity of the laws and their legitimisation can be strangely distinct and extremely important factors. It seems that whereas validity is a crucial issue at the very point of political change [177], the more transition proceeds the more significant is the role of legitimisation in establishing democracy.
Now only one question remains unanswered: is excessive judicial law-making by a quasi-political Constitutional Court too high a price for such legitimisation?
[87] PIJ, II.8.
[88] Ibid.
[89] Berke argued against the delayed annulment of the unconstitutional provisions: "By leaving a transitory period or by ordering solely the elimination of the unconstitutional situation, the possibility still remains that the OEC apply EC law principles and impose sanctions for the infringement thereof in its procedures carried out against Hungarian legal subjects on the basis of a provision that has been declared unconstitutional but has not been annulled. Between the state and subjects of private law the interest and situation of the latter shall prevail in this situation." Berke's Supplementary Submission, 4.
[90] In response to Berke's argument
above, the Ministry of Foreign Affairs highlighted that: "[p]ractically this
kind of argumentation contests the existence of private international law,...
which... provides for the application of an unpredictable law foreign to the
parties. Private law, as a law generally based on dispositive rules, also
includes cogent rules similar in legal nature to rules of public law which take
effect through the applicable law." Draft Opinion of the Ministry of
Foreign Affairs, 6.
The Ministry of Justice argued for the predominance of
public interest over private grievance: " [Delayed annulment]... is
justified by the duty of co-operation between the constitutional institutions
as well as the necessity that the Constitutional Court take into consideration
the characteristics of the international treaty when deciding on the
consequences of its unconstitutionality." Second Opinion of the Ministry of
Justice, 10.
[91] EAJ, VI.2.
[92] Note 80 supra.
[93] Article 27 of the 1969 Vienna Convention on the Law of Treaties provides that "[a] state party to a treaty may not invoke the provisions of its domestic law as justification for its failure to perform the treaty."
[94] Opinion of Dienes-Oehm, 1.
[95] EAJ, VI.2.
[96] Ibid., VI.3.
[97] PIJ, II.8.
[98] By the time of the Europe Agreement Judgment Berke has already served as a Secretary to the President of the Constitutional Court since his appointment following his first submission. Consequently, although not being a Constitutional Judge himself, it cannot be excluded that he could also exert some influence on the Europe Agreement Judgment .
[99] Proposal of the Minister of Justice and the Minister of Foreign Affairs 24.380/1998 IM, 30 September 1998.
[100] Ibid., 2.1.
[101] Ibid.
[102] Note 71 supra.
[103] Proposal of the Minister of Justice and the Minister of Foreign Affairs 24.380/1998 IM, 2.1.
[104] Ibid., 8.
[105] Ibid., 2.2.
[106] Ibid., 2.2.1.
[107] Ibid.
[108] Ibid., 2.2.2.
[109] Ibid.
[110] Ibid.
[111] Ibid., 2.2.3.
[112] Ibid.
[113] Ibid.
[114] Ibid.
[115] In any case, uniformity could not be guaranteed under this solution.
[116] Recently, a proposal to adopt a document listing the relevant EC laws applicable as 'criteria' was preferred to the adoption of a document merely describing the content of those rules. (Discussion with M. Ficsor, March 1999).
[117] Berke's First Submission, 12.
[118] Second Opinion of the Ministry of Justice, 7-8.
[119] EAJ, V.2. [emphasis added].
[120] PIJ, II.7.
[121] Deutsches BVerfG, Vertrag von Maastricht (12. Oktober 1993), BVerfGE 89, S. 155 [187].
[122] "Deutschland ist einer der «Herren der Verträge», die ihre Gebundenheit an den «auf unbegrenzte Zeit» geschlossenen Unions-Vertrag (Art. Q EUV) mit dem Willen zur langfristigen Mitgliedschaft begründet haben, diese Zugehörigkeit aber letztlich durch einen gegenläufigen Akt auch wieder aufheben könnten. Geltung und Anwendung von Europarecht in Deutschland hängen von dem Rechtsanwendungsbefehl des Zustimmungsgesetzes ab. Deutschland wahrt damit die Qualität eines souveränen Staates aus eigenem Recht und den Status der souveränen Gleichheit mit anderen Staaten..." Ibid., [190].
[123] Note 71 supra.
[124] U. Everling, 'Will Europe Slip on Bananas? The Bananas Judgment of the Court of Justice and National Courts' (1996) 33 CMLRev. 401.
[125] Discussions with A. F. Tatham, March and May 1999. See also A. F. Tatham, Advisory Opinion to the Constitutional Court in Case 4/1997 on the Europe Agreement, May 1997. Copy on file with the author.
[126] It was argued that in practice " le juge hongrois et l'administration doivent s'interroger sur la volonté réelle du législateur d'appliquer le traité ou une autre norme internationale. En cas de doute, le juge recherchera, en principe, une assistance auprès du gouvernement, surtout des Ministères de la Justice et des Affaires Etrangères." V. Lamm and A. Bragyova, note 15 supra, 118.
[127] G. Herczegh, 'Three Years at the Constitutional Court of Hungary (1990-1993) - A Personal Account', in R. Müllerson, M. Fitzmaurice and M. Andenas, Constitutional Reform and International Law in Central and Eastern Europe , 1998, Kluwer Law International, The Hague, 83-90, 83.
[128] "The old Constitution was merely amended because one did not want to let the new Constitution, the basic law of the new regime, be proclaimed by the old Parliament which was not freely elected." L. Sólyom, 'The Role of the Hungarian Supreme Court in the Change of the Social System' 1/1993, Vol. 76, Kritische Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft , 34-45, 35.
[129] The Preamble of the 1989 Constitution provides that "[i]n order to promote peaceful political transition to a multi-party system, parliamentary democracy and social market economy - until the adoption of the country's new Constitution - the Parliament adopts the text of the Hungarian Constitution in the following."
[130] The activist approach of the Hungarian Constitutional Court to apply interpretative criteria outside written legal provisions is very similar to the method applied by the European Court of Justice in its activist jurisprudence on fundamental rights to adopt a broad interpretation of "the law" to be "observed" under Article 164 EC exceeding written Community law. For the latter method, see P. Pescatore, 'Treaty-making by the European Communities', in F. G. Jacobs and S. Roberts (eds.), The Effect of Treaties in Domestic Law , 1987, Sweet Maxwell, London, 171-195, 182.
[131] Lamm and Bragyova criticised the application of the 'invisible Constitution' concerning international law in Judgment 52 of 13 October 1993 for its "jusnaturalisme." V. Lamm and A. Bragyova, 'Une décision récente de la Cour Constitutionnelle sur le rapport entre le droit international et le droit hongrois' 3-1994, Revue International de Droit Comparé , 905-909, 907.
[132] In his concurrent opinion Sólyom, the then President of the Court argued that "[i]n this interpretation the starting point is the totality of the Constitution. The Constitutional Court has to continue determining in its interpretations the principled bases of the Constitution and the rights laid down thereby and establishing a coherent system by means of its judgments, which as an «invisible Constitution» serves as a standard benchmark of constitutionality above the Constitution which is nowadays being amended in everyday political interest... [I]t is expected that the "invisible Constitution" will not be in conflict with the new Constitution to be adopted or any future Constitutions. The Constitutional court enjoys absolute freedom in this process until it remains within the boundaries of constitutionality." Judgment 23 of 31 October 1990.
[133] In their joint concurrent opinion, Constitutional Judges Szabó and Zlinszky confirmed the concept of the 'invisible Constitution' in a more sophisticated way: "In the interpretation of the text of the valid Constitution the Constitutional Court may also take into account the provisions of an «invisible Constitution». Hungary has an old tradition of respect for constitutional customs. However, in order that a custom... become law,... it is necessary that it be continuously and peacefully applied for a longer period; its content be easily definable; it be in conformity with the general principles of the legal system. The external condition of customs being accepted as law is recognition by the State: either the legislator or the law-enforcer should accept it, stabilise it and make it unambiguous. In its earlier judgments the Constitutional Court never crossed this boundary: if it could not refer to the accepted principles of the Constitution or of the entire legal system in the interpretation of the Constitution, it ruled that the issue in question is in the competence of the legislator." Judgment 48 of 26 November 1991.
[134] P. Paczolay, 'Judicial Review of the Compensation Law in Hungary' Summer 1992, Vol 13 Michigan Journal of International Law , 806-831, 830.
[135] B. De Witte, 'Community Law and National Constitutional Values' (1991) 2 LIEI 1, 4.
[136] Ibid.
[137] M. Hilf, 'The Role of National Courts in International Trade Relations' Winter 1997, Vol. 18, Michigan Journal of International Law , 321-356, 326.
[138] Herczegh, Judge at the International Court of Justice and former Constitutional Judge argues that " [he is] unable to say what kind of wording the provisions in question will have in the future, but [he does] not think that the changes in this connection will be fundamental." G. Herczegh, note 127 supra, 84. Amendments in this field of the Constitution are solicited by leading Hungarian academics. V. Lamm and A. Bragyova, note 15 supra, 113.
[139] For an analysis of that conflict, see I. Vörös, 'Az Európai Megállapodás alkalmazása a magyar jogrendszerben [The Application of the Europe Agreement in the Hungarian Legal System]' (1997) 5 Jogtudományi Közlöny , 229-237; and I. Vörös, 'Az Európai Megállapodás magyar bírósági alkalmazása [The Hungarian Judicial Application of the Europe Agreement]' (1997) Külpolitika, 58-74.
[140] Article 8 of the Constitution: " (1) The Hungarian Republic recognises the inviolable and inalienable fundamental human rights; the respect and protection thereof is the primary obligation of the State.
(2) In the Hungarian Republic rules concerning fundamental rights and duties are laid down by [parliamentary] acts, however, they may not limit the essential content of fundamental rights."
[141] L. Sólyom, note 128 supra, 35.
[142] "In the course of regulation only that limitation of fundamental rights complies with the requirements of constitutionality which is unavoidably necessary, proportional and which does not concern the essential content of such a right." Judgment 25 of 18 May 1991, II.3.
[143] Deutsches BVerfG, Solange II (22. Oktober 1986), 2 BvR 197/83, BVerfGE 73, S. 339.
[144] J. Fröwein, 'Solange II' (1988) 25 CMLRev. 201, 203.
[145] G. Herczegh, note 127 supra, 87.
[146] V.S. Vereshchetin, note 18 supra, 6.
[147] Ibid., 7.
[148] The project of the new Constitution seems lost - at least for the moment. The coalition governing between 1994 and 1998 with more than the two thirds majority necessary for the amendment of the Constitution failed to adopt the new Constitution with an even broader consensus involving most parliamentary parties. Consequently, one decade following the political changes, Hungary still has a temporary Constitution.
[149] According to Article 1 (a) and (c) of Act XXXII of 1989 on the Constitutional Court, the Constitutional Court controls the constitutionality of not yet confirmed international treaties and assesses the violation of international law by domestic law. As regards the latter, "the Constitutional Court has to involve Article 7 (1) of the Constitution into the constitutional control, for the harmony prescribed in that article makes part of the constitutionality of laws satisfying international law obligations. [...] Article 7 (1) of the Constitution requires the harmony of the Constitution, of international law obligations undertaken by treaties or directly by the Constitution and of domestic law; in guaranteeing harmony the characteristics of all of those elements have to be taken into consideration." 1956 Revolution Judgment , II.2. As a result of the Preliminary Issues Judgment , the Constitution also plays the role of ultimate benchmark with respect to proclaimed international treaty law. Finally, "[i]n [the context of generally accepted rules of international law], transformation is carried out generally - in other words, without listing or defining those rules - by the Constitution itself." Ibid., III.a.
[150] For such criticism regarding the 1956 Revolution Judgment , see Duc V. Trang, 'Beyond the Historical Justice Debate: The Incorporation of International Law and the Impact on Constitutional Structures and Rights in Hungary' (1995) 28 Vanderbilt Journal of Transnational Law , 13; That judgment was also criticised for its "approche «jusnaturaliste» de droit international." V. Lamm and A. Bragyova, note 131 supra, 905.
[151] Although the Court earlier refrained from extending locus standi in the a priori constitutional control of international treaties and its own powers to initiate the a posteriori control of the violation of international treaties by domestic norms, the 1956 Revolution Judgment indirectly enabled the elimination of the domestic law violations of citizens' fundamental rights by acknowledging that the Constitutional Court has to protect fundamental rights established by international law as constitutionalised values. Duc V. Trang, note 150 supra, 17, 25. Furthermore, the Preliminary Issues Judgment established actio popularis for the constitutional control of proclaimed international treaties.
[152] In the 1956 Revolution Judgment the Court accepted the possibility of investigation and punishment with regard to lapsed crimes committed during the 1956 Revolution qualifying as crimes against humanity or war crimes under international law. In the Europe Agreement Judgment , the Court defended the sovereignty of the Hungarian Republic, recently regained after the end of soviet dependence. For the denial of the influence of public opinion on the Court, see L. Sólyom, note 128 supra, 37.
[153] Some argue that the situation is more complicated than simple judicial activism. Analysing the Constitutional "saga" of compensation in Hungary, Paczolay submits that it "illustrates the Court's wavering between reasonable self-restraint and activism ." P. Paczolay, note 134 supra, 819. This wavering is only a symptom of a serious dilemma between (i) the more efficient promotion of democratic transformation by judicial means and the respect of the classical branches of power; (ii) promoting the idea of an 'invisible Constitution' and fostering the rule of law and legal certainty; and (iii) operating under a written but temporary Constitution and soliciting its amendment.
[154] EAJ, V.3.
[155] L. Sólyom, note 128 supra, 43.
[156] P. Paczolay, note 134 supra, 807.
[157] Ibid. See also G. Herczegh, note 127 supra, 85.
[158] E. Stein, 'International Law in Internal Law: Toward Internationalisation of Central-Eastern European Constitutions?' 1994, Vol. 88 American Journal of International Law , 427-450.
[159] P. Paczolay, note 134 supra, 829.
[160] V.S. Vereshchetin, 'The Relationship between International and National Law' 7 EJIL (1996), 29-41, 30 and 35.
[161] Stein argued that Central and Eastern European developments might constitute the fifth wave of the opening of Constitutions to international law by countries overcoming totalitarian systems. E. Stein, note 158 supra.
[162] L. Sólyom, note 128 supra, 34.
[163] P. Paczolay, note 134 supra, 808. Paczolay argues that these powers were already too broad and incoherent in their initial form. Ibid., 821.
[164] Ibid., 808.
[165] L. Sólyom, note 128 supra, 34.
[166] P. Paczolay, note 134 supra, 830.
[167] Concerning the constitutional judgments on compensation, Paczolay argued that "[t]hough not expressly mentioned, the Court must have been led to [its] activism by a peculiar historical responsibility for the democratic transition ." Ibid., 830.
[168] L. Sólyom, note 128 supra, 34.
[169] G. Herczegh, note 127 supra, 86.
[170] "The Hungarian transition to democracy is peculiar in that the Constitutional Court is playing an important role in the revision of the entire legal system ." P. Paczolay, note 134 supra, 806.
[171] The relatively low number of demonstrations in Hungary might be explained by the fact that people were deterred from openly expressing their opinion during the former regime. Moreover, demonstrations might be regarded as unpopular since workers were forced to join unions during that regime. Nevertheless, this does not diminish the legitimisation of the Constitutional Court.
[172] Judgment 43 of 30 June 1995 and Judgment 56 of 15 September 1995.
[173] L. Sólyom, note 128 supra, 36.
[174] For example, the 1995 Stability Pact. Note 172 supra.
[175] 1 March 1999, Világgazdaság. Important political issues currently pending before the Court involve whether a referendum can result in the amendment of the Constitution leading to direct presidential elections, and the practice and frequency of plenary and extraordinary sessions in the Parliament.
[176] In the three parliamentary elections since the political changes there seems to be a trend of the people losing faith in the Parliament, which is shown by the declining participation rate in parliamentary elections. At the first round of parliamentary elections in May 1998, the votes could not be validated in two economically less-developed Hungarian counties because the legally prescribed minimum participation rate had not been achieved.
[177] It was argued that "[t]he Constitution and other important laws, which introduced a revolutionary change from a political perspective, were promulgated with observance of all the rules... of the old regime. Their binding power originates from this formal flawlessness. Old law is still valid. From the perspective of the validity of its legal norms, the legitimacy of the regime of the past half-century is irrelevant. At the same time, all valid legal norms must correspond to the new Constitution without consideration of their time of origin.", L. Sólyom, note 128 supra, 42.