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2016.12.16. Communication on the interpretation of the Fundamental Law's provision allowing the joint exercise of powers with the other Member States through the institutions of the European Union
In its decision of 30 November 2016 the Constitutional Court established on the basis of the abstract interpretation of Article E) paragraph (2) of the Fundamental Law that the Constitutional Court might examine upon a relevant motion - in the course of exercising its competences - whether the joint exercise of powers by way of the institutions of the European Union (hereinafter: EU) would violate human dignity, or an another fundamental right, the sovereignty of Hungary or its constitutional identity based on the country's historical constitution. [decision nr. 22/2016. (XII. 5.)]

The interpretation of the Fundamental Law had been requested from the Constitutional Court by the commissioner for fundamental rights. As explained in the commissioner's motion, the concrete constitutional issue was related to the European Union's Council Decision (EU) 2015/1601 of 22 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and Greece.

In this context the petition contained four questions summarised as follows:

– What is the extent of the prohibition on the collective expulsion of foreigners specified in Article XIV paragraph (1) of the Fundamental Law?

– Can the authorities of the Hungarian State implement, on the basis of Article E) paragraph (2) of the Fundamental Law, measures of the EU that violate the fundamental rights enshrined in the Fundamental Law?

– Can Article E) paragraph (2) of the Fundamental Law limit the implementation of a legal act of the EU not based on the competences transferred in the Founding Treaties to the EU?

– Can the authorities of the State of Hungary – on the basis of the above provision of the Fundamental Law – participate in the forced and collective transfer of foreign persons legally staying in another Member State of the EU?

The Constitutional Court separated the question related to Article XIV paragraph (1) of the Fundamental Law, thus the Court will pass a decision on it at a later date. With regard to the three remaining questions – in line with its well established case law – the Constitutional Court interpreted Article E) paragraph (2) of the Constitutional Court in the abstract conceptual framework of the Fundamental Law.

Concerning the question related to fundamental rights, the Constitutional Court established that by way of the Charter of Fundamental Rights and the Court of Justice of the EU the European Union provides adequate protection for the fundamental rights. The Constitutional Court, however, cannot set aside the protection of human dignity and fundamental rights, and it must grant that the joint exercise of competences under Article E) paragraph (2) of the Fundamental Law would not result in violating human dignity or the essential content of other fundamental rights.

The Constitutional Court set two main limitations in the context of the question on the legal acts of the Union that extend beyond the jointly exercised competences. Firstly, the joint exercise of a competence shall not violate Hungary's sovereignty, secondly, it shall not lead to the violation of its constitutional identity. The Constitutional Court emphasized that the protection of constitutional identity should take the form of a constitutional dialogue based on the principles of equality and collegiality, implemented with each other's mutual respect, in close cooperation with the Court of Justice of the EU. In the present decision the Constitutional Court established its competence – having taken into account the case law of the Federal Constitutional Court of Germany and the constitutional courts as well as the supreme courts performing the functions of constitutional courts of other Member States (Czech Republic, United Kingdom, Estonia, France, Ireland, Poland, Latvia, Spain) – for the examination of whether the joint exercise of powers by way of the institutions of the EU would violate human dignity, another fundamental right, the sovereignty of Hungary or its identity based on the country's historical constitution.

Addressing the question on collective transfer, the Constitutional Court ruled that, on the basis of a relevant petition, in the course of exercising its competences, it may examine whether the exercising of the competences under Article E) paragraph (2) would violate human dignity, another fundamental rights, Hungary's sovereignty or its constitutional identity based upon the country's historical constitution.

Judge Egon Dienes-Oehm, Imre Juhász, Béla Pokol, István Stumpf, András Varga Zs. have attached concurring opinions to the decision, while judge László Salamon attached a dissenting opinion.

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