Hungarian Constitutional Identity and the ECJ Decision on Refugee Quota

The outcome of the lawsuit launched by the Hungarian Government against the EU Council’s decision on compulsory relocation of asylum seekers before the European Court of Justice (ECJ) took no-one by surprise, neither in Budapest nor elsewhere. Some may have hoped that the complaint would succeed legally, but nevertheless it has always been primarily a part of a well-devised political strategy based on the idea of national identity as a concept of constitutional and EU law.

When the machine was set in motion and the complaint was filed in December 2015 there was a small wave of shock and confusion among scholars and legal practitioners. Its legal basis was weak at best. From a political point of view, though, it was apparent that the referendum about compulsory quotas in 2 October 2016 and its partial success backed the legitimacy of the C-647/15 case. Less than half of the population with voting rights voted in the referendum but an overwhelming majority of those who took the ballot rejected the quotas. The questions of the referendum were formulated in a way to be easily understood but from legal point of view it mixed the quotas set out in Article 2(4) of the relocation decision with Chapter VII of Commission’s proposal of recast of Dublin III regulation about the legal instrument intended to use in time of emergency. The term of ‘forced settlement’ was coined in the public discourse to paint the resettlement obligation as an attack against constitutional identity.

The referendum provided a political basis for rejection of compulsory quotas, and in line with that legislative steps were taken: an amendment to the Fundamental Law was proposed to introduce an explicit obligation of the state to protect the „constitutional identity“ of Hungary and a prohibition of the settlement of „foreign population“ (not including EEA citizens) in Hungary into the constitution – legally somewhat cloudy but politically rather blunt ...

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