"When European jurists are talking about topical European legal problems, they are in actual fact involved in an intellectual dialogue between Member States"
An interview with Dr. Péter Darák, President of the Curia of Hungary and the Hungarian Association of the International Federation for European Law (Fédération Internationale pour le Droit Européen, FIDE) on the FIDE Congress to be held in Budapest between 18-21 May 2016 and the impact it has on the prestige of the Hungarian society of jurists and justice.
FIDE at its Madrid Congress in 2010 approved of Hungary's application to host the World Congress to be held in 2016. At the Copenhagen FIDE Congress in 2014 Mr. President and Professor Dr. András Varga Zs., Vice-President of the Hungarian FIDE Association with all due solemnity took over the Presidency of the International Federation for the then forthcoming two years. What is the relevance of Hungary's membership in the International Federation for European Law?
FIDE is one of the most significant federations of lawyers established by professors specialised in European law in Brussels, in 1961. The objective of FIDE is to provide support for national lawyers' associations dealing with international, European law, and enhance the exchange of information between them, thereby connect lawyers interested and specialised in European law, furthermore try and find solutions to problems relating the European Community in terms of organisation and legal institutions. To this end, European conferences are held every two years to discuss topical issues of European law. Walter Hallstein, elected to be the President of the European Commission in 1958 said that the dominance of law would replace violence and political pressure, this would determine the relationship of Member States. This frequently cited thought is what the Congress also reminds me of, since when European lawyers are talking about topical European legal problems, they are in actual fact involved in an intellectual dialogue between Member States.
The coming Congress will be hosted by Hungary, for the first time in the history of FIDE. Based on the decision taken by the Hungarian FIDE Association the event will be organised by Pázmány Péter Catholic University, Faculty of Law and Political Sciences in collaboration with the Curia. How was the conference brought to Hungary?
National associations compete to win the right to organise this conference, which is a highly prestigious event in European circles of lawyers. It is attended by 400-500 professors, and they indeed conduct extremely lively discussions on current issues. It is due to the efforts made by Professor Jenő Czuczai and Professor Miklós Király that Budapest was chosen as the host of the 2016 conference, and the Hungarian FIDE Association has been making preparations since 2010 to ensure proper conditions for this prominent event. Unimaginable amount of work needs to be done in the background for the conference to take place, whose lion's share is done by Pázmány Péter Catholic University. Let me say special thanks to Professor Gyula Bándi, Head of the Organising Committee, and we must also extend our gratitude to the Rector and Dean of the University, as well as personally to the Minister of Justice, whom are whole-heartedly committed to the successful organisation of the event.
The issues to be dealt with by the Congress are identified by the national association of the host country, in cooperation with the FIDE Steering Committee, which is an excellent opportunity for Hungarian jurists to join in the scientific study of EU law and at the same time thematize that. To what extent did the Hungarian organisers have room for manoeuvring when selecting the subjects for discussion, did they manage to get their ideas accepted?
We are expecting these three days to be very exciting. Of the three main issues on the agenda the first one is the question of the banking union. As regards this one, a priority aspect to be emphasized is how the institutions involved in the newly established Single Supervisory Mechanism, the Single Resolution Mechanism and the single rules and regulations fit into the traditional organisational structure of the European Union. The activities and scopes go far beyond
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the traditional organisational conditions. The economic and financial crisis of 2008 put the question of the euro's survival in the limelight. The situation of the single currency and the existence of national fiscal policies at the same time, which essentially impacts on the exchange rate, is quite paradoxical. This is the problem that the notion of 'banking union' attempts to manage. Currently, Hungary's acceptance of and the degree of its joining the banking union is subject to discussions.
The other topic, gaining more and more public attention over the past few years in Hungary as well, is the division of competences between the European Union and the Member States. We no longer talk about the future exclusive competences of the EU and issues remaining in MS competence, but we also talk about co-decision and ancillary competences. Science has already elaborated these concepts in detail, however, their functioning in practice takes place in a complex system, with varying focuses in the decision making process in individual subject matters. This system has not been subjected to a relevant, profound analysis as yet. One of the major objectives and endeavours of the Congress is to find directions in this labyrinth. Specifically Hungarian added value is the proposal to discuss the administration of Structural Funds under the agenda point on the division of competences between the EU and Member States. Central and Eastern European countries are directly affected by the granting and disbursement of Structural Funds, therefore we are glad to see this point integrated into the agenda following our proposal.
Traditionally, the third topic is one of economic law, given that the European Union is also an economic union, in spite of the fact that we, legal scholars and practitioners attribute great importance to legal regulatory systems. Efficient competition is a prerequisite for the useful functioning of the single market, whose establishment clearly benefits from the possibility to detect, explore and properly sanction the breach of competition law by the European Union and the Member States alike. Let me underline the problem studied by Mr. Peter-Christian Müller-Graff, prominent professor of the University of Heidelberg, namely, how the breach of Community law and the mechanism of its sanctioning is linked to the enforcement of private claims arising from the breach of competition law, i.e. whether an act of breach of Community law is a legal basis for enforcing a private claim before a national court or not, how evidence can be presented to a national court, whether there is a possibility for collective action/redress in national legal systems or not, all these questions need to be clarified at the conference.
Well, the issues to be discussed seem to come from three different areas, in line with the traditions of FIDE: one is related to the single market, one to EU institutions and constitutional law, and the third one is that of competition law. All of them are potentially interesting for legal scholars and practitioners, as well. In addition to selecting the topics for the conference, what other preparatory work is yet to be done?
FIDE is famous for processing the topics selected in a system of accurately elaborated, unwritten rules. As part of this process, a questionnaire is drawn up with respect to each issue. These questionnaires are jointly managed by an institutional and a professional rapporteur, the former usually a rapporteur of an organ of the European Commission, whereas the latter is an academic authority on the subject. The questionnaire is filled in by the national associations of all FIDE member states, which means that more than twenty countries send in their questionnaires relating to each topic. The rapporteurs summarise these reports and publish them in a book with the contributions, observations made at the conference.
The significance of the conference is also demonstrated by the act that the Court of Justice of the European Union and the European Commission contribute to its success by making their interpreters available for the discussions (in three languages: French, English, German).
In addition to organising the Congress, in what other ways does the Hungarian society of jurists benefit from holding the Presidency of FIDE?
Since the Copenhagen conference, the Doctoral Student Conference has become a standard preliminary event of the Congress, which now will be organised by Pázmány Péter University of Sciences. By organising the conference we provide an opportunity for young scholars to express their opinions on these serious issues affecting the fate of countries, what is more, they can also participate in the Congress, where they gain first-hand experience of the international culture of debate. Mr. Koen Lenaerts, President of the Court of Justice of the European Union, who delivers the keynote address at the Congress, has been kind enough to participate at the preliminary event in an informal discussion. So the event, beside being attended by the most outstanding figures of legal science, will also be a splendid opportunity for young scholars.
The prestigious Congress is recognised and supported by the European Union as well, with a large number of judges and Advocates General of the Court of Justice of the European Union attending it. As the President of the Curia, what do you think of the impact on Hungarian jurisprudence of the decisions handed down by the European Court of Justice?
The professional orientation of the Curia has undergone a lot of changes, it has become more open to both the EU and the Strasbourg jurisprudence, which the now multi-layered law forces national courts to do. However, this transition is not smooth, let us think of the reasoning of the German Constitutional Court on the level of legal protection of human rights, in respect of which it was not willing to allow international fora to do the final constitutionality test. It goes without saying that we also have professional dilemmas, but I am of the opinion that we have managed these successfully over the past years. We have turned to the Court of Justice of the European Union when it was necessary, e.g. in cases of loans denominated in foreign exchange, where the decision of the Court of Justice of the EU facilitated the solution of the Hungarian problem of FX-denominated loans, and for the colleagues the task to interpret an EU legal
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provision is no longer strange, should any doubt arise, they have no difficulty writing a reference addressed to the Court of Justice of the EU, furthermore we have learnt how to analyse the jurisprudence of the Court of Justice of the EU. To this end, we have a European advisor in every area of law, who are appointed from among judges with special interest in EU law. I think we can witness a long but by all means positive process, which can only be strengthened by an event such as this one.
How active are Hungarian judges in the preliminary ruling procedures in a European comparison?
There is no indicator accurately reflecting the rate of activity, since not every case with a need to provide interpretation should be referred to the Court of Justice of the EU. Interpretation can also be provided by the national court, still it is a widely-held view that the EU-preparedness of a court can be measured by the number of references for preliminary rulings. In terms of this indicator, relative to the population, we take the first place in Central Europe, in absolute figures Poland is ahead of us.
Mr. President, as a legal scholar and administrative court judge, in which areas of the Hungarian administrative procedural law, rules of procedure do you think we have to make progress in order to meet the EU requirements, and to what extent does the ongoing procedural law codification process help this?
I would mention two things in this respect. Some years ago I was in Paris at a conference, where the first stage of working out European administrative procedural model rules took place. In my contribution I underlined that a common European model for administrative procedures without the involvement of national courts implies major risks, because the subject and scope of administrative procedures in the EU and in national legal systems are different, and by defining general principles we risk undermining the effectiveness of the system. I mentioned as an example that in the European Union there are no procedures for issuing building permits or for social benefits, on the other hand, there are procedures to oversee competition or review financial support. Thus, the orientation, the subject matters, scope of procedures are completely different. In the course of adopting the Convention, this observation, shared by other presidents of national courts, was taken into account.
The other example I can give in response to this question draws attention to the fact that in the Hungarian system of administrative procedures there is a respect for traditions, but in the bad sense of the word. When selecting the basic model of the procedure, we do not exploit various options. We always go for the "submitting the application - issuing the permit" set-up. I suggested a year ago, at the conference held at Pázmány Péter University, that we should make it possible for certain activities to be launched after notification only, without any interference on the part of the authority. On the other hand, I also suggested that certain activities should be free to launch, with the authority checking or supervising it later, ex officio, so we should break with the tradition of this one-track model of official authorisation. As far as I can see, by amending the Ket. (Act on General Rules of Administrative Proceedings and Services), and from the news I have heard, through the codification of the new Act on the General Rules of Administrative Proceedings, a multi-layered model will take shape.
Please, allow me to ask you a more personal question. If you could not be an administrative court judge in Hungary, in which other EU Member State would you work?
I would not make a good administrative court judge in any other country, because in my opinion, good is the judge - and let's disregard the adjective "administrative" now - who knows his fellow citizens well, which presupposes a profound knowledge. If I wish to talk somebody out of launching court proceedings that are only a waste of money, or I want to discreetly indicate to someone that they should go into this or that direction if they want to be successful, I can only do it if these people and I have something in common, whom I know as well as I know myself. In a German administrative court these attempts of mine would probably be doomed to failure.
31 March 2016 ■
Visszaugrás
