CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ DISTANCE BETWEEN EU LAW … examined 35 the EU-law aspects of discrimination 36 regarding the modified retirement age in parallel proceedings, the HCC – in turn – ‘took cover’, avoided EU law, and in the safe secluded isolation of the achievements of the historical constitution under Article R) of the Fundamental Law, found a constitutional right to judicial independence as a basis for the relevant conclusions. 37 Currently, as noted by Orbán 38 , being aware of parallel proceedings in front of the CJEU, the spirit of constitutional, judicial dialogue leads the HCC to suspend their proceedings having an EU-law aspect, awaiting the Luxembourg outcome. Waiting for contributions on the EU-law aspects of the relevant cases from the EU judiciary to apply them to the challenged constitutional issues undoubtedly indicates ‘resourceful care’ in exercising restraint. MEASURING THE ‘EU’CLIDEAN 3. For the Sake of Argument: Violations of Fundamental Rights in HCC Proceedings under the Charter of Fundamental Rights In their 2018 book, titled New Challenges to Constitutional Adjudication in Europe , 39 Zoltán Szente and Fruzsina Gárdos-Orosz frame an argument according to which crises shape the face of constitutional justice and present challenges in terms of certain competences for many constitutional courts. It is obvious that in the current phase of a European integration riddled with economic, social, cultural and political crises those constitutional courts that are faced with questions of EU law (either at large or in minute detail) are all exposed to these challenges and the ensuing reputational harm to them, should they choose a cautious approach (e.g. restraint) in finding points of interaction between EU law and national (Member State) law. This tension is also apparent in the field of fundamental rights, especially in light of the “written bill of rights specifically drafted for the European Union” 40 (i.e., the Charter) which is also lauded by some as “the most promising way” in enforcing the rule of law in the EU. 41 It is undoubtedly “one of the most influential instances of the codification of fundamental rights” , 42 and as such, a great achievement of European integration – but, as it will be pointed out below, it is not free of legal controversy regarding some of its provisions defining its scope of application under the aegis of ‘implementing EU law’ – under Article 51(1) of the Charter. 43 35 C-286/12., European Commission v Hungary , Judgment of the Court delivered on 6 November 2012, ECLI:EU:C:2012:687. 36 See VINCZE A. Az Európai Unió Bírósága a bírói nyugdíjazásról, a diszkrimináció tilalma és a bírói függetlenség. Jogesetek Magyarázata (JEMA) , 2012, vol. 3, no. 4, pp. 65-73. Online available at: https://jema.hu/article. php?c=205. 37 ORBÁN (2018), op. cit., p. 36. 38 ORBÁN (2018), op. cit., p. 36. 39 SZENTE, Z.; GÁRDOS-OROSZ, F. (eds.): New Challenges to Constitutional Adjudication in Europe: A Comparative Perspective. New York: Routledge, 2018, 324 p. 40 This expression is used by Robert Schütze. See SCHÜTZE, R. European Constitutional Law , Second Edition. Cambridge: Cambridge University Press, 2016, p. 430; with the details on the Charter set out see pp. 442-450. 41 See JAKAB, A. The EU Charter of Fundamental Rights as the Most Promising Way of Enforcing the Rule of Law against EU Member States. In: CLOSA, C; KOCHENOV, D (eds.): Reinforcing Rule of Law Oversight in the European Union , Cambridge: Cambridge University Press, 2018, pp. 187-206. 42 DEZSŐ, M.; VINCZE A. Magyar alkotmányosság az európai integrációban. Budapest: HVG-ORAC, 2012, p. 361. Online available at https://www.tankonyvtar.hu/hu/tartalom/tamop425/2011_0001_548_Magyar Alkotmany/index.html. 43 Jakab, among others, offers “a creative reinterpretation” extending it – again “as the most promising way” – “to

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