CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ DISTANCE BETWEEN EU LAW … Lilla Nóra Kiss is a research fellow at Faculty of Law, University of Miskolc (Hungary). Former secretary of the EU Law Department (until 2018) of the Hungarian Lawyer’s Alliance (MJE). Email: joglilla@uni-miskolc.hu. 1. Introduction The relationship of EU law and Hungarian law, specifically Hungarian constitutional law – thankfully – does not cease to be the subject of extensive academic debate since the euphoric accession of Hungary to the European Union in 2004, especially in light of the Lisbon Treaty. 1 With fifteen years of experience under our belt on this road together, it is important to briefly examine how constitutional scholarship and jurisprudence generally looks at the points of intersection between EU law and national (constitutional) law in Hungary. 2 In the past, some had been slightly pessimistic in arguing that “by interpreting the Constitution and the Fundamental Law, [the Hungarian Constitutional Court, HCC] has refrained from determining the specific consequences of EU accession for the relationship between the constitution and EU law [and they draw the conclusion that the HCC also failed to express comprehensively] its views on its proper role in achieving the constitutional aim of contributing to the European rule of law integration.” 3 Similar characterizations describe jurisprudential developments as ‘EUphobia’ rather than ‘EUphoria’, but the picture is not always this clear- cut, and there are no two evident extremes. With a more enthusiastic and positive general overtone, Orbán recently made a general remark, supported by a wide academic consensus, 4 that the dominant approach of HCC to EU law is (and has always been) ‘restraint and seclusion’. 5 Nevertheless, while judicial self- restraint is indeed characteristic to some constitutional courts in view of their competences, the law of the European Union is less and less something these bodies can stay secluded from at this point. 6 The metaphor of ‘EUclidean distance’ 7 serves to prove that although there is a tangible space between the HCC and EU law (especially in terms of the EU Charter of 1 Two recent publications could be mentioned here that deal with specific issues of sovereignty pooling and the distribution of competences in the EUconstitutional space and the EU’s human rights deficit. See: CHRONOWSKI N. (ed.): Szuverenitás és államiság az Európai Unióban . Budapest: ELTE, 2017, 278 p. and NAGY. C. I. (ed.): The EU Bill of Rights’ Diagonal Application to Member States . The Hague: Eleven, 2018, 268 p. 2 For a brief earlier summary from the point of view of the HCC, citing see: PACZOLAY, P. (ed): Twenty Years of the Hungarian Constitutional Court . Budapest: The Constitutional Court of Hungary, 2009, pp. 36-37. 3 GÁRDOS-OROSZ, F. Preliminary Reference and the Hungarian Constitutional Court: a Context of Non- Reference. German Law Journal , 2015, vol. 16, no. 6 (special issue), p. 1571. 4 See BALOGH-BÉKÉSI, N. The law of the European Union in the practice of the Hungarian Constitutional Court. Pázmány Law Review , 2013, vol. 1, no. 1, pp. 157-171; BALOGH-BÉKESI, N. Az Európai Unióban Való Tagságunk Alkotmányossági Összefüggései Az Esetjog Tükrében , Budapest: Pázmány Press, 2015. Chapters 5 and 6, online available at: https://jak.ppke.hu/uploads/articles/458014/file/BBN_EUtagsagunk_ kotet.pdf; VINCZE, A: Odahull az eszme és a valóság közé: az árnyék az szuverenitás-átruházás az alkotmánybíróság esetjogában, MTA LawWorking Papers , 2014, no. 23, pp. 1-2. 5 ORBÁN, E. Uniós jog az Alkotmánybíróság gyakorlatában. Alkotmánybírósági Szemle , 2018, no. 2., esp. pp. 38-39. 6 As evidenced by the wide-running practice of Member States’ high courts. For a special focus on new Member States, see in particular: ŁAZOWSKI, A. (ed.): The Application of EU Law in the New Member States – Brave New World . The Hague: T.M.C. Asser Press, 2010, 650 p. and more recently BOBEK, M. (ed.): Central European Judges Under the European Influence. The Transformative Power of the EU Revisited . Oxford: Hart, 2015, 449 p. 7 The mathematical notion of Euclidean distance gave the idea for this metaphor, which measures the distance (i.e. the length of a segment) connecting two points in either the plane or 3-dimensional space. MEASURING THE ‘EU’CLIDEAN

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