Presentation by Dr Atilla Harmathy, Judge of the Constitutional Court of Hungary

   
I.
Amendment of the Constitution in connection with the Treaty of Accession to the European Union
 
            1. Prior to World War II Hungary did not have a written constitution. There were some rules, considered to have constitutional character, formulated by different statutes and constitutional principles enshrined in customary law. As a result of the takeover of the political power in 1948 the constitutional system changed and the first written constitution, drafted on basis of the constitution of the Soviet Union, was enacted in 1949. Some years after the revolution of 1956 a slow transformation of system started. In 1989 the political changes gained momentum and, in the framework of the round-table conference, the opposition and the government had negotiations on establishing a new, democratic system. As a result of the agreement reached the Constitution was amended in 1989. One of the important features of the amendment was the inclusion in the Constitution human rights taking into consideration the European Convention for the Protection of Human Rights and Fundamental Freedoms. The first free elections took place in May 1990, after it a new Parliament and a new government started activity. Since that time the Constitution has been amended several times.
            2. The accession of Hungary to the European Union necessitated the amendment of the Constitution. Act I of 2002 on the amendment of the Constitution contained the new rules which were regarded as conditions of the accession. The amendment concerned two main fields.
The first main question was sovereignty. The Hungarian Parliament adopted a rule which is known in several Member States of the European Union. Paragraph (1) Article 2/A states that the Republic of Hungary, as a Member State of the European Union, by virtue of treaty, may exercise certain constitutional powers jointly with other Member States to the extent necessary in connection with the rights and obligations conferred by the treaties on the foundation of the European Union and the European Communities. The powers mentioned above may be exercised by way of the institutions of the European Union. The grounding presented by the Minister of Justice to the Parliament simultaneously with the bill on the amendment of the Constitution has stated in connection with the proposed insertion of Article 2/A that the law of the European Union as developed by legislation and the Court of Justice of the European Communities will be applied according to the Treaties and the Republic of Hungary will undertake to abstain from any measure which could jeopardise the attainment of the objectives of the Treaties and to take all appropriate measures to ensure fulfilment of the obligations arising out of the Treaties as provided for by Article 10 of the Treaty of Rome (ex Article 5). It has been stated by the grounding that the law of the Union has direct effect and takes precedence over national law. The general grounding of the bill has underlined, however, that the treaties founding the European Union will be applied on basis of the Constitution. The joint exercise of constitutional powers is limited to the extent of necessity and to the sphere provided for by the treaties. The extension of the sphere requires a new amendment of the Constitution.
The second main field concerned by the amendment of the Constitution covers various questions. Different rights and duties under the Treaty of Accession which was to be signed and ratified were closely connected with rules of the Constitution. Therefore, the Constitution was to be amended so that there are no contradictions with the Treaty of Accession. Thus, e.g. rules on the election of Members of the European Parliament had to be provided for and provisions for the elections of Members of Parliament and Members of the representative bodies of local governments were to be amended.
 
II.
Role and Competence of the Constitutional Court of the Republic of Hungary
 
            1. The Constitutional Court was established in 1989. An important issue of the negotiations of the National Roundtable, requested by the Opposition, was the institutional protection of the Constitution by means of a Constitutional Court and ensuring the possibility to anyone to initiate a procedure of the Constitutional Court controlling conformity of legal rules to the Constitution. It was important for the Opposition to have some kind of constitutional control over the activity of the Parliament as a guarantee of the future democratic development. An agreement has been reached on this point. Thus, the draft of an Act on the Constitutional Court together with the draft on the amendment of the Constitution became part of the compromise of the National Roundtable[1].
Act XXXI. of 1989 on the amendment of the Constitution inserted Article 32/A defining main tasks of the Constitutional Court. According to this provision the Constitutional Court reviews the constitutionality of laws and annuls any laws and other statutes that it finds to be unconstitutional. Everyone has the rights to initiate proceedings of the Constitutional Court in the cases specified by law. A majority of two-thirds of the votes of the Members of Parliament present is required to pass the law regulating the organisation and functioning of the Constitutional Court. Act XXXII. of 1989 on the Constitutional Court was passed immediately after the amendment of the Constitution.
2. On basis of the special political circumstances the Constitutional Court has an important role and a wide competence. The aim to be achieved by establishing the Court was clearly expressed by the ministerial grounding of the bill submitted to the Parliament. The establishment of the Constitutional Court is a guarantee of the Rule of Law and protection of fundamental rights.
The establishment of the Austrian Constitutional Court, based on works of Adolf Merkl and Hans Kelsen[2] had an influence on Hungarian constitutional theory. The Austrian theory and practice of the control of constitutionality of legal norms have been the basis of the regulation. The activity of the German Constitutional Court after World War II had also been an example for establishing and regulating the Constitutional Court in Hungary. Later on the comparative analysis has been used in the work of the Hungarian Constitutional Court and decisions of several other Courts have been studied and taken into consideration in several cases[3] but German influence has remained important. Decisions of the European Court of Human Rights are usually taken into consideration in cases where serious questions of human rights are at issue. Since some years decisions of the Court of Justice of the European Communities have also been quoted and after the accession it has become practice to study the case-law of the Court.
3. On basis of the provisions of the Constitution the Act on the Constitutional Court specifies the competence of the Court. This short paper does not give a complete information on the competence of the Court. Reference is made only to questions which can be of interest from the point of view of the topic of the conference.
On the first place the control of constitutionality of legal norms and other legal means of state control can be mentioned. A special feature of the Hungarian regulation is that everybody has the right to initiate proceedings of the Court without any time limit and without any interest to be proved. The competence of the Court does not include, however, any review of the Constitution itself. The abstract, a posteriori kind of control without any time limit has been an important means of transforming the legal system after the political changes. Not only the legislator but the Constitutional Court, too have worked simultaneously in establishing a new legal system.
An important part of the activity of the Constitutional Court is the preliminary examination of the unconstitutionality of Acts voted by the Parliament but not signed and not promulgated by the President of the Republic as well as unconstitutionality of international treaties. In case an international treaty has been incorporated into the Hungarian legal system the act incorporating the treaty will be subject to a posteriori examination of unconstitutionality as it has been mentioned above.
A rather unusual competence of the Court, in comparison with other Constitutional Courts, is the elimination of unconstitutionality manifesting itself in omission. The Court is entitled to examine either ex officio or upon anybody’s motion whether the legislator has failed to comply with its duty to legislate and as a result of the omission an unconstitutional situation has been created. If the Court states the unconstitutionality manifesting itself in omission, the organ will be requested to provide for his duty by the term set by the Court.
One of the important tasks of the Court is the abstract interpretation of the Constitution. Some questions of principles concerning human rights have been interpreted by the Court in this way.
The Constitutional Court has no competence in ordinary litigations. In case, however, someone’s constitutional rights have been violated by the application of a legal rule which is unconstitutional and the aggrieved party has exhausted all legal remedies or there is no legal remedy, he or she may submit a constitutional complaint to the Constitutional Court within sixty days after the receipt of the final decision. The Court examines in this case, too, the unconstitutionality of the legal rule applied and not the decision applying the rule.
 
III.
Experiences in the field of the law of the European Union up to September 2004
 
            1. Prior to the accession the Constitutional Court has organised a one year course on European Law for the councillors who have an important role in the functioning of the Court. At the end of the course the participants of the course have visited the Court of Justice of the European Communities and have got the opportunity to study in Luxembourg the activity of the Court. (A similar course has been organised on human rights studying the case law of the European Court of Human Rights.)
            Obviously the application of community law has not been the task of the Court. Nevertheless, there were a few cases which were in indirect contact with the community law. The first decision concerned an application challenging some provisions of the Act on the Constitutional Court in connection with the promulgation of the so-called Europe Agreement. In the decision 4/1997,  of 22. January 1997 the Court held that it had jurisdiction to examine the constitutionality of the law promulgating an international treaty  and the review extended to the examination of the question whether provisions of the treaty were in harmony with the Constitution. If the Court holds the treaty or some of its provisions unconstitutional, the decision concerns the domestic law not the treaty directly. Following the decision the legislator is required to harmonise the national legal norms with the assumed international obligations either by modifying the agreement or by amending the Constitution[4].
            Decision 30/1998 of  25 June 1998 concerned the application of Article 2 of Act I of 1994 on promulgation of the Europe Agreement[5]. The Court held that there was a constitutional requirement criteria of application specified by Section 62 of the Europe Agreement will not be applied directly by Hungarian authorities. Furthermore, the Court held that Government Decree 230/1996 of 26 December 1996 on promulgation of some rules of implementation were unconstitutional but the annulment was suspended. The unconstitutionality was stated as the criteria of application were not fixed but they were dependent on the developing practice of the community law. According to the decision Hungary not being a member State of the Union has to transform (incorporate) rules not adopted by Hungarian legislator. Consequently, rules which have not been incorporated in the Hungarian law cannot be applied by Hungarian authorities. The decision has underlined that the international agreement was valid but it was the task of the legislator to establish harmony with the Constitution by modifying the agreement. In 2002 the modified text of the Agreement was promulgated and the proceedings were finished[6].
            Recently a decision has been handed down concerning an Act of Parliament implementing Commission Regulations on transitional measures in respect of trade in agricultural products and taxation of surplus stocks. This was a case of a priori examination of an Act adopted by the Parliament but not signed and not promulgated by the President of the Republic. Proceedings were initiated by the President. The decision 17/2004 of 25 May 2004 stated that the Commission Regulations were promulgated in 2003 and the acceding countries were called upon to take necessary measures implementing the Regulations. It has also been referred to by the decision that at earlier stages of enlargement of the Communities (in 1985 and 1994) similar Regulations were adopted  and the Court of Justice of the European Communities has examined the validity of the respective Regulation. Nevertheless, a bill on implementing the Regulations was voted by the Parliament in April 2004 envisaging the date of entry into force in May but with a retroactive effect. The only question the Court examined the way of implementation by a domestic law. The Court held that several rules of the Act violated principles of the Rule of Law and therefore, they were unconstitutional.
 
IV.
Future cooperation
 
            There is an abundant literature on possible problems of the relationship between national Constitutional Courts of Member States of the Union and the Court of Justice of European Communities. It seems to me that the adoption of the Constitution including the Charter of Fundamental Rights will create a new situation. Application of rules on human rights with due regard to the explanation prepared at the instigation of the Presidium of the Convention which drafted the Charter may cause uncertainties. It has been explained several times that social, political, economic conditions, and the mentality of the people, the values are different in the different Member States. Loyal cooperation and better understanding of the differences, comparative analysis of the practice and regular meetings of Constitutional Courts are needed.