Hungary’s Constitutional Court has ruled on a challenge aimed at determining whether the country’s domestic law takes precedence over EU law. While the judgment avoided an explicit general claim that Hungarian law was supreme, the Orban government insists it confirms the country “has the right to protect its borders independently of the EU”. In the eyes of the Hungarian Helsinki Committee, the ruling clearly obliges Hungary to uphold EU fundamental rights law.

In December 2020, the Court of Justice of the EU (CJEU) ruled that Hungary had broken EU law by restricting asylum access in transit zones and unlawfully detaining migrants. In response, justice minister Judit Varga mounted a challenge to the ruling that asked the Constitutional Court to interpret the relationship between the Hungarian Fundamental Law and EU law in the context of this decision. According to Szabó Máté, of the Hungarian Civil Liberties Union, the case: “shows that the Hungarian government is keen to follow a similar path to that of the Polish government”. In October, a ruling from the Polish judiciary on the supremacy of national law – widely seen as undermining the very basis of the EU bloc – set Poland on a collision course with Brussels. However, the Hungarian court avoided such a crisis by announcing on 10 December that it was unable to review the European court’s judgement, nor could it examine “the primacy of EU law”.

The judgment did however state that Budapest has the right to apply its own measures in areas where the EU has yet to take adequate steps for the common implementation of EU rules. It emphasised that this was particularly the case when Hungary’s “right to identity” was at risk: this right is defined as encompassing the state’s “territorial unity, population [and…] constitutional identity”. According to prime minister Viktor Orban’s chief of staff, this amounted to a “clear and unequivocal” decision that Hungary may apply its own measures wherever joint competences have not been worked out. “We have a right to refuse to live with others” said Judit Varga, adding that migration puts Hungarian “sovereignty and identity” at risk. Despite the ruling not being as favourable to the government as expected, the Orban administration insists it confirms that “regulations pertaining to Hungary’s population and state system [are] national competences that have priority over EU regulations”. Hungarian migration policies have been found to breach the EU asylum acquis in numerous cases.

The government’s interpretation of the ruling is a far cry from that of civil society organisations defending the rights of asylum seekers and migrants. ECRE member the Hungarian Helsinki Committee (HHC) welcomed the ruling, saying the court had refused to succumb to the will of the government and had instead defended the primacy of EU law. The HHC highlighted that the court refused to question the supremacy of EU fundamental rights norms, thus denying the government any opportunity “to establish the constitutional basis for further weakening human rights”. The NGO said the court had been clear on the state of affairs: “the ruling of the CJEU must be implemented and the inhumane treatment of asylum-seekers must end”. The government has nonetheless expressed unwillingness to implement the December 2020 CJEU judgement, and has instead said the European Commission must adapt EU law to better allow “defence of borders”.

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Photo: (CC) jemufo, April 2010

This article appeared in the ECRE Weekly Bulletin. You can subscribe to the Weekly Bulletin here.