The Hungarian Constitutional Court and Constitutional Identity

von Gábor Halmai

Ever since the 2010 parliamentary elections Hungary has set off on the journey to became an ‘illiberal’ member state of the EU, which does not comply with the shared values of rule of law and democracy, the ‘basic structure’ of Europe. The new government of Viktor Orbán from the very beginning has justified the non-compliance by referring to national sovereignty, (even using the absurd argument that “We won’t be a colony anymore”), and lately to the country’s constitutional identity guaranteed in Article 4 (2) TEU. This constitutional battle started with an invalid anti-migrant referendum on 2 October 2016, was followed by the failed Seventh Amendment to Fidesz’ 2011 Fundamental Law on 8 November 2016, and concluded in early December last year by a decision of the Constitutional Court, in which the packed body in a binding constitutional interpretation rubber-stamped the constitutional identity defense of the Orbán-government.

„With a Little Help from My Friends”

After the failed constitutional amendment the Constitutional Court, loyal to the government, came to rescue Orbán’s constitutional identity defense of its policies on migration, and everywhere where it may disagree with the EU. The Court carved out an abandonend petition of the also loyal Commissioner for Fundamental Rights, filed a year earlier, before the referendum was initiated. In his motion the ombudsman asked the Court to deliver an abstract constitutional interpretation in connection with the European Council decision 2015/1601 of 22 September 2015. The Court in its decision 22/2016 (XII. 5.) AB – relying on the German Federal Constitutional Court’s methods of constitutional review of EU law – developed a fundamental rights review and an ultra vires review, the latter composed of a sovereignty review and an identity review.

The fundamental rights review is based on Article E) (2) and Article I (1) of the Fundamental Law ...

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