Your Excellency, Minister Bóka,
Honourable Director of the Collegium, Distinguished Professors, Dear Colleagues, Ladies and Gentleman!
The topic of this panel discussion has been one of the most important issues of the last ten-fifteen years. Relation of legal structure and jurisdictions between the EU and the Member States is a fundamental question, even more, the core question of the national-supranational cooperation. Its importance is highlighted by the well-known legal fact that the first seven articles of the Treaty on the European Union deal with the principles of the two legal regulations and limits of influence of European law on the law of the Member States. The Fundamental Law of Hungary also pays attention to these parallel legal structures in its Foundation in Article E) and R).
The question is clear – Is there any limitation of this influence or the law of the EU is preeminent regardless of any formal limitation within the Treaty or consideration of a Member State? The question is clear, the answer is not at all. After decades of low volumed disputes between the European Court of Justice and Member States marked by famous judgements like Cassis de Dijon,Internationale Handelsgesellschaft, Solange I, Van Gend en Loos, Frankovich, in recent years the disputes became increasingly conflictual, and the role of courts became even more decisive. With your permission, I will now say what I always tell my students: the next five to ten years will be spent in the debate between the primacy of European law and the constitutional identities of the Member States. Until this issue is settled, the debate and its intensity will not subside.
There is no doubt that today's panel discussion will be topical, important, interesting, and obviously productive. Every minute, every effort we devote to this issue will contribute to a calmer and more balanced future cooperation.
However, the timing of the discussion has consequences. For me, it certainly does. Even though I have dealt with the connections between the primacy of European law and the constitutional identity of the Member States quite a lot in recent years, I cannot say everything I think about it as a university professor today. Not because the parliamentary election campaign has been going on in Hungary for a week now, and these issues have become a campaign topic. And the Curia, of which I serve as President, is the electoral court of Hungary. It follows that I cannot even attempt to answer these questions, because it would be interpreted as a stand for or against the position of one or another political force. Neutrality and the perceptible appearance of it are particularly important in such situations. Please do not expect specific, clear positions from me today.
I must limit what I say today to what I have said, or could say, publicly in recent years as a judge and as President of the Curia. Details of these can be found in my annual report to the National Assembly and the minutes of the parliamentary debates.
We know that one of the reasons for the imbalance between the two parallel legal systems – European law and national law – and the associated judicial jurisdiction – Court of Justice of the European Union and national supreme and constitutional courts – is the elevation of the Charter of Fundamental Rights to a binding norm. This, in the case law of the Court of Justice of the European Union, gives a European legal background to almost any legal issue. Of course, it cannot be denied that fundamental rights are important, indeed, they are among our most important rights. The confusion was caused when the Charter of Fundamental Rights became to function – justified or unjustified – as a switch between European law and national law. A switch that allows any national law, even those adopted within the competences reserved for the Member States in the Treaties, to be questioned.
By using the mentioned switch, the preliminary ruling procedure before the Court of Justice of the European Union can be used to resolve disputes between lower and higher courts on any question of law – whether it concerns European law or national law – to the detriment of the latter, the higher courts. According to the natural order of legal remedies, decisions of lower courts are appealed to higher courts, and the latter's decision is binding. It is binding even if it annuls the decision of the lower courts, orders a new procedure and also provides guidelines for it. This is called “supervision”.
In recent years, this has reversed, and a new phenomenon, which can be called “undervision”, is increasingly common. The practice is that in individual cases, following an annulment, the court resuming proceedings does not implement the guidance of the higher court, but asks the Court of Justice of the European Union whether the guidance is in accordance with EU law. Most recently, this has extended to calling into question the binding force of the Constitution or – in the case of Hungary – the uniformity decisions that bind all courts under the Fundamental Law. This phenomenon reverses the legal remedy system – it leads to the situation where a supreme court, in our case the Curia (and even, in some cases, the Constitutional Court), would have to follow the position of the lower court supported by the Court of Justice of the European Union. This reverses the legal remedy hierarchy, makes the supreme courts of the Member States superfluous, and ultimately we may even end up with the administration of justice being outside the constitutional order enshrined in the constitutions of the Member States, in Hungary in the Fundamental Law.
This is just one question among many, but one that is not merely a game among courts: it makes it completely unpredictable for the litigants what will happen in a case. Just one question, but it clearly shows that we need to find a solution to clearly regulate the relationship between the two parallel legal systems.
Hoping that today's discussion will bring us closer to the long-awaited answers, I wish you useful and fruitful debates.
Thank you for your kind attention.
Prof. Dr. András Zs. Varga