CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ DISTANCE BETWEEN EU LAW … 2. Understanding the Status Quo – Locating EU Law in Hungarian Constitutional Jurisprudence As also recognized by Endre Orbán, many categorizations have been laid out regarding the delicate relationship of EU law and constitutional law in the Hungarian context. 14 These mostly rely on either the temporal dimension [(i) in a historical-chronological overview, or as part of a (ii) comparative look on the textual and conceptual framework of the former Constitution and the current Fundamental Law], on powers and competences, 15 or on the role and relevance of primary or secondary EU law in shaping Hungarian (constitutional) law and jurisprudence. 16 For the purposes of our inquiry, in explaining the Hungarian status quo, we take the approach per (ii) above, and provide a brief comparison of the constitutional landscape prior to and after the 2011 adoption of the Fundamental Law, with elements specific to discussing the position of EU law (and the Charter) within this setting. Under the former Constitution, Art. 2/A 17 defined the ‘EUdentity’ of the case law of the HCC, which “textually did not much help” the Court, so understandably it chose a “cautious approach in [any] further interpretation” . 18 The first Hungarian Lisbon decision was 143/2010 (VII. 14.) AB, 19 which set forth that formally the Lisbon Treaty has been approved by an Act of Parliament and as such shall be regarded “as a norm that has a meritorious content within the national legal system” . 20 Act CLXVIII of 2007 on the pronunciation of the Lisbon Treaty formally promulgated and published the Treaty in Hungary, along with the Charter and its Explanations in annex. Over time, this brought about an increasing number of references to the Charter or specific provisions therein. In terms of these ‘restrained and secluded’ mentions of the Charter, Decision 154/2008 (XII. 17.) AB on the ex-post constitutional review of the regulation of same-sex partnerships 14 ORBÁN (2018), op. cit., p. 36. 15 VINCZE (2014), op. cit. 16 For some of the arguments and cases regarding the constitutional review of secondary EU law, see: GÁRDOS- OROSZ (2015), op. cit., pp. 1575-1584. 17 In its wording prior to the adoption of the Fundamental Law, Art. 2/A set forth the following: “(1) By virtue of treaty, the Republic of Hungary, in its capacity as a Member State of the European Union, may exercise certain constitutional powers jointly with other Member States to the extent necessary in connection with the rights and obligations conferred by the treaties on the foundation of the European Union and the European Communities (hereinafter referred to as ‘European Union’); these powers may be exercised independently and by way of the institutions of the European Union. (2) The ratification and promulgation of the treaty referred to in Subsection (1) shall be subject to a two-thirds majority vote of the Parliament.” 18 GÁRDOS-OROSZ (2015), op. cit., p. 1572. 19 What can be characterized as the second Lisbon decision is the one that is mostly dubbed “Identity decision” [22/2016 (XII. 5.) AB] in academic literature, detailing the relationship of EU law and Hungarian constitutional law from the points of view of ‘sovereignty control’ and ‘identity control’ also applied by the German Constitutional Court in their 2010 Lisbon judgment. See CHALMERS, D. A Few Thoughts on the Lisbon Judgment. In FISCHER LESCANO, A.; JOERGES, Ch.; WONKA, A. (eds.): The German Constitutional Court’s Lisbon Ruling: Legal and Political Science Perspectives . ZERP Diskussionspapier, 1/2010, pp. 5-11. Online available at: http://www.mpifg.de/people/mh/paper/ZERP%20Discussion%20Paper%201.2010.pdf. 20 See 143/2010 (VII. 14.) AB, Justification, III. 2. MEASURING THE ‘EU’CLIDEAN

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