The Constitutional Court, in connection with the judgment of the Court of Justice of the European Union on the status of foreigners unlawfully residing in the territory of the Hungarian State, has ruled, on the basis of the interpretation of the Fundamental Law, that where the joint exercise of competences is incomplete, Hungary shall be entitled, in accordance with the presumption of reserved sovereignty, to exercise the relevant non-exclusive field of competence of the EU, until the institutions of the European Union take the measures necessary to ensure the effectiveness of the joint exercise of competences. However, the Constitutional Court did not assess whether the incomplete effectiveness of the joint exercise of competences was realised in the specific case. The Constitutional Court also emphasised in its decision that the abstract interpretation of the Fundamental Law cannot be the subject of a review of the CJEU judgment, nor does the procedure in the present case extend to the examination of the primacy of EU law. On behalf and under the authorisation of the Government, the Minister of Justice submitted a petition to the Constitutional Court seeking an interpretation of Article E (2) and Article XIV (4) of the Fundamental Law, because the implementation of the judgement of the CJEU delivered on 17 December 2020 in Case C-808/18 raises a constitutional problem that warrants an interpretation of the Fundamental Law. The Constitutional Court, interpreting the ‘Europe Clause’ of the Fundamental Law, held that where the exercise of joint competences with the Union is incomplete, Hungary shall be entitled, in accordance with the presumption of reserved sovereignty, to exercise the relevant non-exclusive field of competence of the EU, until the institutions of the European Union take the measures necessary to ensure the effectiveness of the joint exercise of competences. The Constitutional Court further held that where the incomplete effectiveness of the joint exercise of competences results in consequences that raise the issue of the violation of the right to identity of persons living in the territory of Hungary, the Hungarian State shall be obliged to ensure the protection of this right in the context of its obligation of institutional protection. Finally, the Constitutional Court held that the protection of the inalienable right of Hungary to determine its territorial unity, population, form of government and State structure shall be part of its constitutional identity. The Government sought an interpretation of the Fundamental Law from the Constitutional Court. The petitioner submits that the implementation of the judgement of the Court of Justice of the European Union in case C-808/18 raises the constitutional problem at issue if Hungary allows the implementation of an EU legal obligation which may lead to a foreign national illegally staying in Hungary remaining in the territory of a Member State for an indefinite period of time and thus becoming part of the population of that State. In its decision, the Constitutional Court observed that the abstract constitutional interpretation cannot be converted into a position applicable to the specific case giving rise to the petition, and therefore the Constitutional Court only addressed the genuine problems of constitutional interpretation directly derivable from the issue. The Constitutional Court thus interpreted Article E (2) of the Fundamental Law. The Constitutional Court was not in a position to assess whether the incomplete effectiveness of the joint exercise of competences had been resolved in the specific case. Nor was the Constitutional Court able to take a position on the question whether the petitioner’s argument that the CJEU judgement could lead to foreign nationals becoming part of the population of Hungary was correct. The Constitutional Court found that the above was a matter to be judged by the body applying the law and not by the Constitutional Court. However, the Constitutional Court stressed that the abstract interpretation of the Fundamental Law cannot be aimed at reviewing the judgement of the CJEU, nor does the Constitutional Court’s procedure in the present case, by its very nature, extend to the review of the primacy of EU law. The Constitutional Court had to assess whether the incomplete effectiveness of the joint exercise of competences could lead to a violation of Hungary’s sovereignty, constitutional identity or fundamental rights and freedoms (including, in particular, human dignity) enshrined in the Fundamental Law. The Constitutional Court first considered the possible violation of the fundamental rights and freedoms guaranteed by the Fundamental Law. The Constitutional Court pointed out that Man, as the most elementary constituent of all social communities, especially the State, is born into a given social environment, which can be defined as the traditional social environment of man, especially through its ethnic, linguistic, cultural and religious determinants. These circumstances create natural ties, determined by birth, which shape the identity of community members. These natural ties or qualities, which are determined by birth, are seen as circumstances that influence a person’s self-determination, which, on the one hand, are created by birth and, on the other hand, are qualities that are difficult to change. Protection under constitutional law should not be an abstract, static protection of the individual detached from his or her historical and social reality: It must take into account the dynamic changes in contemporary life. In the Constitutional Court’s view, since the State cannot make unreasonable distinctions regarding fundamental rights on the basis of these characteristics, it must also ensure, in the light of its obligation of institutional protection, that changes to the traditional social environment of the individual can only take place without significant harm to these determining elements of identity. The Constitutional Court stated, that the joint exercise of the competences through the institutions of the European Union may not lead to a lower level of protection of fundamental rights than that required by the Fundamental Law. In the same vein, the fact that an EU legal norm binding on the Member States meets the requirements of the Constitution but is not properly implemented, that is, the result of the binding norm is not or only partially enforced, cannot lead to a lower level of protection of fundamental rights than required by the Constitution. In that context, the Constitutional Court has held that if the joint exercise of the competences through the institutions of the European Union is incomplete, Hungary is entitled, in accordance with the presumption of reserved sovereignty, to exercise the relevant non-exclusive field of competence of the EU, until such time as the institutions of the European Union take the measures necessary to ensure the effectiveness of the joint exercise of competences. The decision was accompanied by a concurring reasoning by justice dr. Czine Ágnes, dr. Dienes-Oehm Egon, dr. Horváth Attila, dr. Hörcherné dr. Marosi Ildikó, dr. Márki Zoltán, dr. Salamon László, dr. Schanda Balázs, dr. Szabó Marcel and dr. Szívós Mária and a dissenting opinion by justice dr. Hörcherné dr. Marosi Ildikó and dr. Pokol Béla.

In addition to rejecting the motion for posterior norm control, the Constitutional Court established as a constitutional requirement that Section 5 of the Act on the investment project in relation to the capacity conservation of the Nuclear Energy Plant of Paks and modifying certain related Acts is applicable to the subcontractors of the Russian party and the subcontractors of the Hungarian party only if they are considered to be organisations performing a public duty. Section 5 of the Act excludes, for a period of thirty years from the date of its creation, the disclosure of all “business data”, “technical data” and “data on which a decision is based” as data of public interest related to the implementation of the expansion of the Paks Nuclear Power Plant. The petitioning MPs asked the Constitutional Court to declare this provision to be contrary to the Fundamental Law and to annul it with retroactive effect to its promulgation. According to the petitioners, this is contrary to the fundamental right to have access to and disseminate data of public interest and to the provision of the Fundamental Law stating that all organisations managing public funds must give public account of their management of public funds. In its decision, the Constitutional Court established that the disclosure of the data for the purpose of substantiating the decision may be restricted by a specific Act of Parliament in accordance with the Act on the Right to Informational Self-Determination and Freedom of Information. The protection of national security interest and intellectual property rights indicated by the challenged Act may justify a restriction on the disclosure of the data for the purpose of substantiating the decision. The Constitutional Court further held that, contrary to the petitioners’ claim, the text of the Act prescribing thirty years for the closure of the data concerned cannot be considered a disproportionate restriction, as it cannot be held an ex lege restriction; it is only a statutory presumption assuming that within this period the publicity of the data could damage the values to be protected. However, as the Act itself requires a “public interest test” to be performed, the restriction can only be applied if there is a greater public interest in it than in the disclosure of the data concerned. In view of all this, the Constitutional Court found that the challenged provision of the Act did not cause any unnecessary or disproportionate restriction of the referred to provisions of the Fundamental Law, therefore it rejected the petitioners’ motion for posterior norm control. However, in order to facilitate the application of the law, the Constitutional Court considered it necessary to establish as a constitutional requirement: the challenged provision of the Act is applicable to the subcontractors of the Russian and Hungarian parties only if they are to be regarded as organizations performing a public duty.