CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ DISTANCE BETWEEN EU LAW … the Constitutional Court, the Constitutional Court does not have the competence to examine the collision of any laws with the law of the European Union, therefore, the relevant elements in the petition are refused under Article 64, point a) of the Act on the Constitutional Court. 85 Thereby, the HCC basically reiterated its earlier case law previously presented under Decision 29/2001 (VII. 7.) AB. Regardless of this strict approach, there are numbers of examples of references to the Charter in judicial initiatives, review and complaint petitions and resulting decisions (including concurring and dissenting opinions) as well as orders. These could be categorized as follows: A. HCC references regarding the Charter on the merits of the case in the decisions and orders [such as above in 3145/2015 (VII. 24.) AB] B. HCC suspension of proceedings (through orders) pending the outcome of any CJEU proceedings relevant to rights regulated in the Charter – as part of European constitutional dialogue. C. Petitioners’ references to the Charter, included in the Decisions or orders summarizing the content of petitions. (The outcome of most of these cases, due to the above, is the refusal of the petitions about the failure to meet admissibility criteria.) Per A) so far, despite some key leading cases, the HCC has made remarks regarding the Charter (on the merits of the case) in a little more than two dozen cases in the period subject to investigation (after the entry into force of the Lisbon Treaty, ‘bringing the Charter to life’ as far as its legal force is concerned.) The most famous among these Decisions is possibly the above-referenced ‘Identity- Decision’, 22/2016 (XII. 5) AB, upon a motion of the Commissioner for Fundamental Rights regarding the interpretation of the Fundamental Law. In its petition, the Commissioner included general references to Articles 18 and 47 of the Charter conditioning rules of EU and Member State asylum law. In reference to the jurisprudence of the German Constitutional Court (BVerfG), the HCC argues that the European Union (through its institutional reforms, the Charter of Fundamental Rights, and the CJEU) in most cases, can grant the same level of protection for fundamental rights as the level secured by the national constitutions, but at least a protection of adequate level. 86 Consequently, as the HCC argues, the review competence reserved for the HCC must be applied with due account to the obligation of cooperation, respecting the enforcement of EU law as far as possible. 87 The HCC, however, cannot set aside the ultima ratio protection of human dignity and the essential content of fundamental rights, and it must grant that the joint exercise of competences under Article E) (2) of the Fundamental Law (including the so-called integration clause) would not result in violating human dignity or the essential content of fundamental rights. 88 MEASURING THE ‘EU’CLIDEAN

85 3145/2015 (VII. 24) AB, Justification, [56]. 86 Cf. The so-called Solange II. Decision of the German Constitutional Court ([1987] 3 CMLR 225) mentioned in Decision 22/2016 (XII. 5.) AB, Justification [49]. 87 See the German Constitutional Court’s Decision No. 2 BvR 2735/14. of 15 December 2015. 88 Decision 22/2016 (XII. 5.) AB, Justification [47]-[49].

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