We live in a turbulent era of constitutional justice in Europe, evidenced by the many debates that try to encapsulate the very essence and raison d’étre of national constitutional courts and their relationship to the European Court of Justice (henceforth: CJEU). Suffice it to think about the more recent decisions of the German Federal Constitutional Court on 5 May 2020, the Finnish Constitutional Law Committee in late 2010, or the most recent decision by the Polish Constitutional Court on 14 July 2021. After this introduction, let us look at the bird’s eye perspective of the relations between the CJEU and national justice systems, focusing on constitutional courts.
The CJEU cooperates with all of the ordinary courts of the Member States, in matters of European Union law. To ensure the effective and uniform application of European Union legislation and to prevent divergent interpretations, the national courts may, and sometimes must, refer to the CJEU and request a clarification on a point of interpretation of EU law, so that they may ascertain, for example, whether their national legislation complies with that. A reference for a preliminary ruling (henceforth: RPR) may also seek the review of the validity of an act of EU law.
The CJEU’s reply is not merely an opinion but takes the form of a judgment or reasoned order. The national court in front of the dispute is being heard is bound by the interpretation of the CJEU. The CJEU’s judgment likewise binds other national courts before which the same problem is raised.
It is thus through RPRs that any European citizen can argue for seeking clarification of the European Union rules which affect them. Although such a reference can be made only by a national court, all the parties to the proceedings before that court, the Member States and the institutions of the European Union may take part in the proceedings before the CJEU (in the procedural capacities tailored to them). In that way, several important principles of EU law have been laid down by preliminary rulings, sometimes in reply to questions referred by national courts of first instance. Up to this point, however, we’ve only spoken of „ordinary courts”. Translating this question into the realm of constitutional justice, it is an interesting question what kind of relationship can be observed between constitutional courts and the competence to initiate an RPR in front of the CJEU, insomuch as a referral from a constitutional court enables a direct conversation between the ultimate interpreters of ‒ among other constitutional provisions ‒ fundamental rights in each legal system, with the discussion focusing on the contested basic right.
Constitutional courts have been generally reluctant to make preliminary references, but on occasion have decided to enter into a dialogue with the CJEU through forms of latent or indirect dialogue. Over and above, since the Lisbon Treaty entered into force in 2009, the number of constitutional courts that have submitted requests has steadily increased from four (Austria, Belgium, Italy and Lithuania) to nine (France, Germany, Poland, Slovenia and Spain as well). Although the questions submitted to the CJEU did not always involve fundamental rights, the tension between the European arrest warrant and fundamental rights, for example, spurred several questions from constitutional courts, including the first references ever made by the Belgian Constitutional Court, the French Constitutional Council and the Spanish Tribunal Constitucional. In the cooperation of the constitutional courts and the CJEU, one can find some examples in point of the ultra vires control of the EU law that constitutional courts are binding themselves to initiate preliminary references (Danish Supreme Court, German Federal Constitutional Court, Italian Corte Costituzionale, Polish Constitutional Court) and the constitutional courts affirm generally the preliminary decision of CJEU as exemplary (except the Landtová-case and the Ajos-case).
It can be ascertained by studying the practice of the Hungarian Constitutional Court (henceforth: HCC), that the institution recognized the RPR as the authority and obligation of the ordinary courts. The HCC did not yet take account of initiating a similar procedure itself. However, its necessity (or its legitimacy) has been addressed in concrete decisions and in the legal literature as well.
In this context, HCC Decision 22/2016. (XII. 5.) can be construed as a breakthrough in the practice of the body for the following reasons. „On the basis of the review of case law of the Member States’ supreme courts performing the tasks of constitutional courts and of the Member States’ constitutional courts, the HCC established that within its own scope of competences, on the basis of a relevant petition, in exceptional cases and as a resort of ultima ratio, i.e. along with paying respect to the constitutional dialogue between the Member States, it can examine whether exercising competences on the basis of Article E) paragraph (2) of the Fundamental Law results in the violation of human dignity, the essential content of any other fundamental right or the sovereignty (including the extent of the competences transferred by the State) and the constitutional self-identity of Hungary.”
After this, the HCC issued some suspending orders wherein they pointed at the cooperation mentioned in the HCC Decision 22/2016. (XII. 5.). The reason for the suspension was that the contested norms and legal practice of the petition are the topics of otherwise pending proceeding in front of the CJEU. The HCC wanted to make its decision taking into account ‒ as necessary ‒ the judgments of the CJEU and their reasoning.
The latest landmark case concerning the RPR was HCC Decision 26/2020. (XII. 2.), in which the HCC referred back to the HCC Decision 26/2015. (VII. 21.), where the HCC argued that the obligation of Hungarian (ordinary) courts initiating the CJEU’s preliminary rulings procedure „derives from Article 5 of the Treaty on European Union and the Article E) paragraph (2) of the Fundamental Law of Hungary”. The Treaty on the Functioning of the European Union (henceforth: TFEU) connects the courts of the Member States and the CJEU: the litigants may initiate RPRs, but the acting judge has a discretional right deciding whether to submit the request or not. RPR thus is a possibility for the court, however, according to the Article 267 paragraph 3 TFEU, where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.
The RPR is a part of institutionalized cooperation between European courts under the obligations imposed in Article 267 paragraph 3 TFEU. The HCC considered in its decision that „the constitutional dialogue within the European Union is to be regarded as primarily important”. „It can be presumed that both the Union law and the national legal system based on the Fundamental Law aim to carry out the objectives specified in Article E) paragraph (1). With regard to the above, »the creation of European unity«, the integration, sets objectives not only for the political bodies but also for the courts and the HCC, defining the harmony and the coherence of legal systems as constitutional objectives that follow from »European unity«”. The constitutional dialogue is expedient to guarantee the sui generis character of Member States’ law as well as EU law. It can also be capable of establishing balance in concrete situations between the unchangeable core of constitutional law of a member state and the primacy of the EU law which was elaborated by the CJEU. Without a mutual and open dialogue between these courts, the sui generis character of Member States’ laws as well as EU law cannot be guaranteed.
The HCC emphasized that it cannot adopt a neutral policy in this institutionalized cooperation. According to Article E) paragraph (2) of the Fundamental Law, „in its role as a Member State of the European Union and by virtue of international treaty, Hungary may ‒ to the extent necessary for exercising its rights and fulfilling its obligations stemming from the Founding Treaties ‒ exercise certain competences deriving from the Fundamental Law, together with the other Member States, through the institutions of the European Union.” The ECJ is a part of the organization of the European Union which guarantees the efficient emergence of EU law not only itself, but also with the courts of the Member States in particular cases by the way of EU norms applied by the acting court. The unified interpretation is a guarantee of the efficient legal protection, the necessary element of which is the normative regulation of the procedure which ensures the instrument of unification of the questions of interpretation. Article E) of the Fundamental Law and Article 267 TFEU declares the participation in the institutionalized cooperation which is the function of the ordinary courts of the Member States and the institutions recognized as courts by the practice of CJEU.
The HCC deducted its authority to request the CJEU’s preliminary rulings procedure from the interpretation of the Fundamental Law above, particularly in that case when the risk arises in the concrete proceeding, concerning the restriction of the consistency with the fundamental rights and freedoms set out in the Fundamental Law or Hungary’s inalienable right of disposition relating to its territorial integrity, population, political system and form of government. With regard to this, the HCC considered the practice of the German Bundesverfassungsgericht as orientative.
The initiation of RPR falls into a special area of law but like any other judicial decisions, it shall comply with the requirements of the Fundamental Law. In this regard, the HCC does not act as a general revisory institution of the references of preliminary rulings, in other words, as a super-court. Consequently, the HCC stands clear of any commitment concerning these special questions relating to the RPR.
The HCC emphasized examples from the practice of other constitutional courts of the Member States; these only analyse the constitutionality of the decisions relating to RPRs respecting at the same time the interpretation of the special questions mentioned above. According to the practice of the German Federal Constitutional Court, the decision on an RPR cannot be uninterpretable and manifestly untenable, and the ordinary court has to reveal and evaluate the EU law governing the concrete case. The Austrian Constitutional Court examines the reasoning of the judgment affecting the references of the RPR as well, and the body qualifies the judgment as unconstitutional, if the ordinary court does not initiate the RPR in the event of doubt regarding the interpretation of the relevant EU law concerning the concrete case. The Slovakian Constitutional Court also analyses the reasoning of the judicial decision from that point of view whether the judgment answers the questions affecting the interpretation of EU law properly and whether the parties’ right to a fair trial has not been violated, an approach also previously taken by the Czech Constitutional Court. The Slovenian Constitutional Court establishes the unconstitutionality of the judgment on the grounds of the reasoning relating to EU law, if the fundamental rights of the litigants have been violated due to negligence in initiating an RPR.
In summary, it can be ascertained that there is no impediment to answering the questions drafted by the HCC concerning the interpretation or the validity of the EU law. The petition has to be convenient for adjudication in the concrete case in front of the HCC (properly revealing the factual and legal circumstances). The approaches of other constitutional courts mentioned above can be examples of the most important steps forward to the cooperation on between the HCC and the CJEU on the merits of these cases, which rests on mutual respect. But – agreeing with Justice Ildikó Hörcherné Marosi – the question how to realize this cooperation has not been answered yet.
 Aida Torres Pérez: Judicial Dialogue and fundamental rights in the European Union: a quest for legitimacy. In: Gary Jacobsohn – Miguel Schor (ed.): Comparative Constitutional Theory. Northampton, MA, USA, Edward Elgar Publishing Inc., 2018. 119.  Ibid. 118-119.  Judgment of 21 October 2010, I. B. v. Conseil des Ministres (C-306/09, ECR 2010 p. I-10341)  Judgment of 30 May 2013, Jeremy F. v. Premier Ministre (C-168/13 PPU)  Judgment of 26 February 2013, Melloni v. Ministerio Fiscal (C-399/11); Torres Pérez op. cit. 119.  BVerfG, Order of the Second Senate of 6 July 2010 – 2 BvR 2661/06. (Honeywell-case); BVerfG, Judgment of the Second Senate of 21 June 2016 – 2 BvR 2728/13. (Gauweiler-case)  Judgment of 5 December 2017, Criminal proceedings against M. A. S. and M. B. (C-42/17; Taricco-case)  Judgment of 7 March, Rzecznik Praw Obywatelskich (RPO) (C-390/15)  Cf. Ernő Várnay: Az Alkotmánybíróság és az Európai Bíróság. Együttműködő alkotmánybíráskodás? Állam-és Jogtudomány, LX. évf., 2019/2. szám, 63-91.  Judgment of 22 June 2011, Landtová (C-399/09, ECR 2011 p. I-5573). The case in front of the Czech Constitutional Court: PL.US 5/12.  Judgment of 19 April 2016, Dansk Industri (C-441/14). The case in front of the Danish Supreme Court: Case 15/2014, Dansk Industri (DI) acting for Ajos A/S v. the estate left by A, Judgment of the Danish Supreme Court of 6 December 2016.  Cf. HCC Decision 61/B/2005.; HCC Order 3165/2014. (V. 23.); HCC Decision 26/2015. (VII. 21.)  HCC Decision 142/2010. (VII. 14.), dissenting opinions of Judge László Kiss and Judge Miklós Lévay (ABH 2010, 668, 2.; HCC Decision 22/2016. (XII. 5.), concurring opinion of Judge Egon Dienes-Oehm (Reasoning ) and Judge István Stumpf (Reasoning )  Cf. András Sajó: „Miért nehéz tantárgy az együttműködő alkotmányosság? A magyar Alkotmánybíróság és a közösségi jog elsőbbsége” Fundamentum, 2004/3. szám, 89–96.; Fruzsina Gárdos-Orosz: Preliminary Reference and the Hungarian Constitutional Court: A Context of Non-Reference. German Law Journal, Vol. 16., No. 6. (Special Issue) 1574-1575.; Márton Sulyok ‒ Lilla Nóra Kiss: In Unchartered Waters? The Place and Position of EU Law and the Charter of Fundamental Rights in the Jurisprudence of the Constitutional Court of Hungary. In: Marcel Szabó ‒ Laura Gyeney ‒ Petra Lea Láncos (ed.): Hungarian Yearbook of International Law and European Law. Eleven International Publishing, The Hague, 2019. 395-417.; Ondrej Hamulák ‒ Márton Sulyok ‒ Lilla Nóra Kiss: Measuring the ’EU’Clidean Distance Between EU Law and the Hungarian Constitutional Court ‒ Focusing on the Position of the EU Charter of Rights. In: Pavel Šturma (ed.): Czech Yearbook of Public & Private International Law. Czech Society of International Law, Prague, 2019. 130-150.  HCC Decision 22/2016. (XII. 5.), Reasoning   HCC Order 3198/2018. (VI. 21.); HCC Order 3199/2018. (VI. 21.); HCC Order 3200/2018. (VI. 21.); HCC Order 3220/2018. (VII. 2.)  Várnay op. cit. 66-67.  HCC Decision 26/2020. (XII. 2.), Reasoning   HCC Decision 26/2015. (VII. 21.), Reasoning   HCC Decision 26/2015. (VII. 21.), Reasoning -; HCC Decision 26/2020. (XII. 2.), Reasoning   Cf. HCC Decision 61/2011. (VII. 13.); HCC Decision 30/2015. (X. 15.); HCC Decision 22/2016. (XII. 5.), Reasoning , HCC Decision 26/2020. (XII. 2.), Reasoning   HCC Decision 2/2019. (III. 5.), Reasoning   HCC Decision 3241/2019. (X. 17.), Reasoning   HCC Decision 26/2020. (XII. 2.), Reasoning   Judgment of 27 April 1994, Gemeente Almelo and others v. NV Energiebedrijf Ijsselmij (C-393/92, ECR 1994 p. I-1477); HCC Decision 26/2020. (XII. 2.), Reasoning   Cf. BVerfGE 134, 366 and BVerfGE 142, 123; BVerfGE 146, 216 and BVerfG, Judgment of the Second Senate of 5 May 2020 – 2 BvR 859/15.]; HCC Decision 26/2020. (XII. 2.), Reasoning   HCC Decision 26/2015. (VII. 21.), Reasoning ; HCC Decision 3257/2020. (VII. 3.), Reasoning ; HCC Decision 26/2020. (XII. 2.), Reasoning   BVerfGE 82, 159 <194>, 1 BvR 1159/08 -, Rn. 4  VfGH 27. 06. 2012, 2.5. pont; U 330/12; cf. VfGH 11. 12. 1995, B 2300/95  III. ÚS 388/2010, II. ÚS 381/2018, II. ÚS 792/2016  II. ÚS 4225/16, 26 September 2017, ÚS 1009/08, 8 January 2009 and eg. ÚS 50/04, 8 March 2006  Up-1056/11, 21 November 2013; Up-561/15, 16 November 2017  HCC Decision 26/2020. (XII. 2.), concurring opinion of Judge Ildikó Hörcherné Marosi, Reasoning -
Tamás István MANHERTZ, jurist, court clerk at the Budapest-Capital Regional Court since November 2017. He is permanently accomplishing the bar examination. He obtained his Ph.D. degree in 2021 at the Pázmány Péter Catholic University Faculty of Law and Political Sciences. The topic of the dissertation is the analysis of competences of constitutional courts in a comparative law context.
The post was originally published by Tamás István MANHERTZ on Constitutional Discourse: