CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ DISTANCE BETWEEN EU LAW … having legislative competence and specified in the Fundamental Law, promulgated in the official gazette. Consequently, as well as obviously, the HCC does not have competence to nullify generally binding rules of conduct in the form of EU law under Article E) as the HCC’s competence to conduct the control of conformity of laws (i.e. generally binding rules of conduct) with the Fundamental Law (under Article 24) only extends to laws adopted in accordance with Article T). 26 Thus, closing in on the detailed review of the HCC’s relevant competences, we should also mention that in parallel with the Fundamental Law, the new Act CLI of 2011 on the Constitutional Court (HCCA) also became effective on 1 January 2012, rearranging the structure and the key competences of the ‘negative lawmaker’. When the sui generis HCC was first created on the remnants of the Hungarian Constitutional Council 27 (a then parliamentary organ) through Act XXXII of 1989, its mandate to realize the democratic transition to securing constitutional review of ground-breaking legislation was very broad, considered exemplary in Europe. However, its powers to provide relief for the violation of individual fundamental rights (in the form of granting constitutional complaints) was limited, presumably due to the innate legislative intent of ‘restraint and seclusion’ from, or rather non-interference with newfound judicial independence. 28 In the cross-section of these various powers, the reforms introduced by the Fundamental Law and the new HCCA have significantly changed all major competences of the Court and added new ones. From what is procedurally relevant to the topic of this paper, we now would like to emphasize the changes regarding the HCC’s competence on reviewing constitutional complaints (essentially ‘constitutional appeals’ 29 ) in the protection of individual fundamental rights. Constitutional complaints – partly preserving the former system established in 1989 – have been transformed into a three-tier system. Constitutional complaints can normally be brought against judicial decisions. However, the Hungarian regulation also introduces ‘direct’ complaints, where no judicial decision is necessary to enable individuals and organizations to seek relief in front of the HCC. When a law enters into force, and this fact violates fundamental rights, if there is no remedy available or it has been exhausted, 180 days are at the disposal of those affected by the violations to seek direct relief from the HCC. 30 The purpose of this complaint is directed at the control of the constitutionality of the challenged norms, elsewhere also called norm control. In terms of those complaints, where judicial decisions provide legal grounds to turn to the HCC, the current system distinguishes between two types: 26 This issue of EU law was brought under a new light in the so-called EPC (European Patent Court) [9/2018 (VII. 9.) AB] decision of the HCC, where the issue of “enforced cooperation” (the actual framework in which the EPC shall exist) as a “generally binding rule of conduct” arose. 27 Introduced through amendment to the 1949 Constitution (MK 1983/60) and implemented by statutory enactment in Act I of 1984 on the Constitutional Council: MK 1984/18. For further details see KUSS, K. J. New Institutions in Socialist Constitutional Law: the PolishConstitutionalTribunal and the HungarianConstitutional Council. Review of Socialist Law , 1986, no. 12, p. 366. See also: Tatham (2013), op cit., pp. 130-135. 28 For a comprehensive presentation of the development of the HCC on the level of competences, see Tatham (2013), op cit., pp, 135-145. 29 See DEZSŐ, M.; SOMODY, B.; VINCZE A.; BODNÁR E.; NOVOSZÁDEK N.; VISSY B. Constitutional Law in Hungary . The Hague: Kluwer Law International, 2010, pp. 197-198. 30 The so-called “26(2)” complaints are regulated under Article 26, para. (2) of the HCCA. MEASURING THE ‘EU’CLIDEAN

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