CYIL vol. 10 (2019)

ONDREJ HAMUĽÁK – MÁRTON SULYOK – LILLA NÓRA KISS CYIL 10 ȍ2019Ȏ non-compliance with admissibility criteria established by the HCCA and relevant HCC jurisprudence, although the petitioners argued that the challenged provisions of the Act on the legal status of government public servants – because of the termination of employment without justification – were in contradiction with Article 30 the Charter. In another 2015 case (regarding foreign currency loan), also referred to above, the HCC reiterated, in light of earlier case law, that the HCC does not have the competence to examine the conformity of a piece of Hungarian legislation with EU law. In the instant case, the petitioner referred to Articles 17 and 47 of the Charter. A different strand of Charter-relevant reasoning appears in 3141/2015. (VII. 9.) AB végzés (another refusal order), where the HCC concluded that, according to the second- instance court judgment subject to the proceedings, the plaintiff-petitioner made unfounded references to Articles 30 and 47 of the Charter, given that in this regard, the CJEU had already determined that by enacting the Act on the status of government public servants, Hungary did not implement EU law. 98 (It should be noted that the failed reference to the Charter was not the reason for the refusal.) Lastly, it is important to note that in a judicial initiative (based on Article 25 of the HCCA, 3082/2015. (V. 8.) AB végzés – another refusal order), the HCC found – regarding the Act on electronic media and telecommunications – that the petitioner’s simple mentioning of the violation of the rights of the Charter was insufficient and thus refused to examine the initiative any further. However, in the justification, when describing the case, the HCC noted that the judge filing the initiative took into consideration earlier CJEU judgments, according to which the EU legislature has surpassed those limitations, which are required for respecting the principle of proportionality pursuant to Articles 7 and 8 of the Charter (protecting private and family life and personal data) and under the limitations clause of Article 52 (1) of the Charter. (Again, the grounds for refusal did not have to do with the references to the Charter but with failure to comply with the substantive requirements of Article 25 of the HCCA regarding judicial initiatives.) A few main conclusions can be drawn from the selection of the sample cases introduced briefly above. • Firstly, petitioners should first get acquainted in depth with those substantive and procedural rules of constitutional procedure law, which would enable them to file petitions to the HCC successfully. • Secondly, the extent and the depth of any reference to the Charter in the petitions filed should extend beyond a mere mention of those Articles of the Charter that are thought relevant to the case. Charter-based argumentation should rather be embedded in the constitutional argumentation, especially in constitutional complaints regarding ‘victim status’ (i.e. being personally affected, impacted by the violation alleged) or regarding the causal link between the violation and the act or omission complained of. • Thirdly, the previous two conclusions apply to those cases where petitioners turn to the HCC through legal representatives – as is recommended. From the petitions researched, it can also be concluded that many professionals who work as attorneys are not yet in full command of constitutional procedure law terminologies, instincts, and requirements, which might lead in some cases to significant barriers to access

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98 3141/2015. (VII. 9.) AB végzés, Justification, [8].