CYIL vol. 10 (2019)

ONDREJ HAMUĽÁK – MÁRTON SULYOK – LILLA NÓRA KISS CYIL 10 ȍ2019Ȏ contained the first reference in a majority opinion regarding the possibility of the national margin of appreciation in regulating marriage. 21 Decision 571/D/2010 then refused a constitutional complaint requesting the declaration of a violation of the EU Charter (Article 49) in a criminal case, but the HCC also refused similar examinations and declarations regarding the violation of Articles 27-28 and 30 of the Charter in ex-post constitutional review proceedings of the law on the status of civil servants. 22 In this latter context, Decision 29/2011 (IV. 7.) AB argued that under the then effective legal framework, the HCC did not have legal grounds (competence) to examine whether Hungarian laws violated EU law, and therefore refused the request to review legislation, also based on the Charter. 23 Eventually, the ‘constitutional turn’ arrived with the 2011 adoption and the (1 January) 2012 entry into force of the Fundamental Law. In the Foundation, Article E) (standing symbolically for Europe) frames the formal position of EU law within the national legal system, 24 building significantly on the previous Art. 2/A with some key additions. 25 Through its ‘integration (or Europe) clause’ under Article E), the Fundamental Law anchors the totality of EU law in general in the Hungarian legal system by providing for the joint and autonomous exercise of sovereign competences under the Treaties, to the extent necessary to enforce and exercise the rights and obligations arising thereunder. As previously presented, formally the Charter shares the legal status of Acts of Parliament. In this context, it is necessary to shed light on the hierarchy of legal norms under Article T) of the Fundamental Law. It sets forth that “[g]enerally binding rules of conduct may be laid down in the Fundamental Law or laws.” Laws are classified herein as Acts of Parliament, Government and ministerial decrees (including the Prime Minister’s decree), decrees of the Governor of the National Bank, decrees of the heads of autonomous regulatory bodies, and local (government) decrees. This provision, however, needs to be read in conjunction with para. (3) of Article E), shedding light on an important issue. Albeit, the paragraph mentioned above provides that EU law may lay down generally binding rules of conduct; EU law is not considered law (i.e., a generally binding rule of conduct) within the meaning of Article T). This flows from another determination of Article T), specifying that laws need to be adopted by an organ 21 See 154/2008 (XII. 17.) AB, Justification, IV. 1.2. 22 See decisions 8/2011 (II. 18.) AB and 29/2011. (IV. 7.) AB 23 29/2011 (IV. 7.) AB, Justification, III.5. 24 “ (1) In order to enhance the liberty, well-being and security of the people of Europe, Hungary shall contribute to the creation of European unity. (2) With a view to participating in the European Union as a Member State and on the basis of an international treaty, Hungary may, to the extent necessary to exercise the rights and fulfil the obligations deriving from the Founding Treaties, exercise some of its competences arising from the Fundamental Law jointly with other Member States, through the institutions of the European Union. Exercise of competences under this paragraph shall comply with the fundamental rights and freedoms provided for in the Fundamental Law and shall not limit the inalienable right of Hungary to determine its territorial unity, population, form of government and state structure. (3) The law of the European Union may, within the framework set out in paragraph (2), lay down generally binding rules of conduct. (4) For the authorisation to express consent to be bound by an international treaty referred to in paragraph (2), the votes of two thirds of the Members of the National Assembly shall be required. ” 25 For a concise comparison of the two ‘Europe clauses’ and their development, see: TATHAM, A. F. Central European Constitutional Courts in the Face of EU Membership . Leiden: Martinus Nijhoff, 2013, pp. 156-159.

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