CYIL vol. 10 (2019)

ONDREJ HAMUĽÁK – MÁRTON SULYOK – LILLA NÓRA KISS CYIL 10 ȍ2019Ȏ Fundamental Rights); it decreases over time, especially given the most recent trends in the HCC’s jurisprudence. When engaging with EU law, at a minimum, and the outset, there needs to be a constant and effective (constitutional) judicial dialogue between the CJEU and the Member State’s constitutional courts for the sake of a common understanding of issues and arguments of common concern. 8 The promotion of judicial dialogue has often been the reason behind the suspension of proceedings of certain EU-law-related procedures in the practice of the HCC as well – which also might symbolize a certain keeping of distance under clear circumstances. 9 With such declarations, ‘the right of way’ is given to the determinations regarding questions of EU law first made by the CJEU, which then can be ‘surgically’ inserted in the proceedings of the HCC applied to the instant cases. The approach of the HCC towards the use of EU law as an applicable source of law in proceedings before it has been generally described as ‘hesitant and cautious’. The approach stems not only from historical and procedural restraints but also from the general approach towards EU law as a ‘deconstitutionalised’ portion of legal norms. 10 This attitude is fully in line with the requirement of effective and instantaneous application of EU law by the general courts dealing with EU law ‘ ratione materiae ’, as demanded by the established case law of the CJEU. 11 Nevertheless, there are several examples demonstrating the HCC’s openness to using EU law as a source of inspiration when interpreting national constitutional norms. 12 Instead of ‘restraint and seclusion’, we argue that the era of ‘restraint and engagement’ is upon us, but – unfortunately – the rules of this engagement are not always clear, and progress is slow. The main reason for this primarily that the HCC is bound not only by its competences under Hungarian law but also by the fact that their inquiries are restricted to the actual requests contained in complaints/review petitions. 13 In the absence of many high- profile applications and petitions regarding key questions of EU law, a few notable cases remain – such as the ones described or mentioned below – in which the HCC – either in majority, dissenting, or concurring opinions – can express its views on the matter, even in the context of the EU Charter and the protection of fundamental rights in/by the EU. 8 For a recent example of this kind of constitutional debates, see, in particular, the so-called ‘Taricco-saga’ between the CJEU and the Italian Constitutional Court. For comments see BUDINSKA, B.; VIKARSKA, Z. Judicial dialogue after Taricco II: who has the last word, in the end? EU Law Analysis (7 December 2017), Online available at: http://eulawanalysis. blogspot.com/2017/12/criminal-law-human-rights-and.html. 9 From the most recent jurisprudence, see the following ‘suspension orders’: 3220/2018. (VII. 2.) AB végzés, 3200/2018. (VI. 21.) AB végzés, 3199/2018. (VI. 21.) AB végzés, 3198/2018. (VI. 21.) AB végzés. 10 TATHAM, A. F. ‘Keeping the Faith’: The Trials and Tribulations of the Hungarian Constitutional Court Following its European Vocation. In BOBEK, M. (ed.): Central European Judges Under the European Influence. The Transformative Power of the EU Revisited . Oxford: Hart, 2015, pp. 349-374. 11 106/77 Amministrazione delle finanze dello Stato v. Simmenthal , ECLI:EU:C:1978:49; C-314/08 Filipiak , ECLI:EU:C:2009:719; C-188/10, Melki a Abdeli , ECLI:EU:C:2010:363; C-112/13, a v. B. , ECLI:EU:C:2014:2195; C-5/14 Kernkraftwerke Lippe-Ems , ECLI:EU:C:2015:354. 12 32/2012 (VII.4.) AB végzés. 13 We believe and propose below, that the active vigilance of individuals (and their in-depth awareness of their rights) is a key precondition for the stabilisation of the presence of the EU Charter within the fundamental rights review at the national level, not only before constitutional courts and not only in Hungarian case.

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