CYIL vol. 10 (2019)

ONDREJ HAMUĽÁK – MÁRTON SULYOK – LILLA NÓRA KISS CYIL 10 ȍ2019Ȏ constitutional court – especially in constitutional complaint proceedings – can directly refer to the Charter in establishing constitutional protections for the constitutional rights subject to the proceedings or not. For the Hungarian case, one plausible answer could be constructed based on the following arguments: (i) since theMember States’ constitutional courts interpret theMember State constitution as national rules providing the exclusive basis for their proceedings and (ii) since they are – through admissibility – bound to the exclusive examination of violations of fundamental rights contained in the Fundamental Law; (iii)consequently, the direct application of the Charter to constitutional complaints seems unlikely as it would directly counteract existing national norms of constitutional procedure law regarding competences and admissibility. The inquiry at this point becomes two-pronged: a) Under the first prong, could and should the HCC use the Charter (with special regard to its constitutional complaints procedure)? b) Under the second prong, in the previous context, could and should the HCC initiate PRPs in front of the CJEU regarding questions of implementing EU law (especially regarding protections for fundamental rights)? 3.3 Why? The Limited Use of Charter-based Arguments in HCC Proceedings It is important to underline as a starting point that under the (a) approach of the first prong described above , the fundamental rights contained in the Charter cannot be autonomously referenced as a legal basis by private parties and economic operators. Firstly, as we have evidenced above, the Charter primarily concerns EU institutions and Member States when they implement EU law, and we have presented the relevant problematics in the context of HCC proceedings as well. Secondly, as a matter of Hungarian constitutional procedure law, petitioners cannot allege a violation of fundamental rights directly based on international law (under Article Q of the FL) neither directly based on the Founding Treaties of the EU or EU law (based on Article E of the FL). Thirdly, as well as consequently, as part of constitutional complaints under the applicable national law, only those rights can be called upon as a legal basis for complaints that are contained in the (Freedom and Responsibility Chapter of the) Fundamental Law, in case they are violated. This reiteration and clarification of the relevant competences of the HCC was first expressly laid out in Decision 3143/2015 (VII. 24) AB (already under the new HCCA), rejecting the constitutional complaint of the petitioner financial institution challenging selected provisions of a legislative act 84 for reasons of unconstitutionality. Here, the petitioner argued that the challenged law, as well as its provisions, are – in the words of the HCC – contrary to the respective provisions of the Charter of Fundamental Rights of the European Union – ergo the law of the European Union. The Constitutional Court hereby […] repeatedly points out that based on provisions of the Fundamental Law and the Act on 84 Act XXXVIII of 2014 on settling certain questions regarding the decision for the uniformity of law handed down by the Curia in the matter of consumer loan contracts by financial institutions.

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