CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ DISTANCE BETWEEN EU LAW … to justice for those petitioners whose fundamental rights have been violated. (This conclusion becomes all the more relevant due to the fact that the Hungarian constitutional complaints procedure has been classified as a necessary and effective remedy by the ECtHR in 2019 in the Szalontay v. Hungary case. 99 ) • However, even if the level of constitutionally anchored andCharter-based argumentation should improve, under the current regulatory framework and based on relevant HCC jurisprudence, the lack of competence to review the compatibility of a Hungarian law with the law of the EU is the main obstacle for any well-rounded Charter-argument to gain ground as well as the fact that the HCC is bound to the content of the petitions filed. 4. Conclusions: Shortening the EUclidean Distance? Repositioning EU law in HCC Jurisprudence After the presentation of the fate of Charter-based argumentation in cases involving fundamental rights violations, we put forward that under the approach of ‘resourceful engagement’ and in the spirit of constitutional dialogue, the HCC is now in a place where it can reposition the role of EU law in its jurisprudence. The “EU-friendly” suspension of many of its proceedings given the parallel proceedings in progress in front of the CJEU clearly evidences this. 100 We are convinced that the HCC’s ‘resourceful engagement’ with EU law in these proceedings could even be looked at as quasi preliminary referrals . In this light, it is also important to examine whether the issue of PRPs is even worth considering in terms of HCC (as a court of referral) and regarding constitutional procedure law. A few years ago, Gárdos-Orosz already argued – in reviewing the new rules introduced by the HCCA, that in relevant HCC proceedings “petitioners can highlight whether, in a particular case, the application or non-application of EU law, or the incorrect interpretation of EU law, has caused the violation of their constitutional rights.” 101 Based on the above examples, however, we have seen that petitioners are not (yet) in a position to live up to the expectations of the cited author, as none of the above samples shed light on any EU-law-related argumentation supporting the violations of fundamental rights. Blanket references to the Charter and using it as a ‘keyword’ in petitions without any further constitutional arguments is insufficient to engage the HCC in – even theoretically – becoming a court of referral to the CJEU. Adding to this, in the context of PRPs, Orbán calls attention to the ‘one that got away’: the Repcevirág Szövetkezet v. Hungary case, 102 recently decided by the ECtHR, in which the PRP requests of the plaintiff-petitioner were refused by the Curia and by the HCC. The petitioner of the relevant HCC proceedings formulated exact PRP questions and asked the HCC to turn to the CJEU instead of the Curia, which previously denied the same requests within its discretion. In turn, the HCC refused the complaint attacking the judicial decision of the Curia refusing to initiate and PRP, and argued that “ in the proceedings under Article 27 of the HCCA [i.e., in constitutional complaints against judicial decisions] , petitioners MEASURING THE ‘EU’CLIDEAN

99 App. No. 71327/13. Judgment of the Court, 4 April 2019. 100 ORBÁN (2018), op. cit., p. 43. He also points to another concurrent tendency besides EU-friendly suspension:

that of reservations regarding review of EU law. 101 GÁRDOS-OROSZ (2015), op. cit., p. 1575. 102 Repcevirág Szövetkezet v. Hungary (App. No. 70750/14), judgment of 30 April 2019.

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