Krisztián Villám: The Court of Justice of the European Union as a lawful judge[1] (ABSz, 2024. Különszám, 55-62. o.)

Abstract

The right to a fair trial includes the right to a lawful judge. The essence of the constitutional content of the right to a lawful judge is that the constitutional assignment of a judge to a case can only be made on objective grounds by applying predetermined, general rules. In order to determine who can be considered a lawful judge in a particular case, the provisions of the procedural law in question relating to jurisdiction, competence, the rules of appeal and the requirement of a fair trial must be taken as a starting point. The Hungarian Constitutional Court, in line with the practice of other Member States' Constitutional Courts, has extended the concept of a lawful judge to the Court of Justice of the European Union. This interpretation necessarily implies a widening of the scope of protection of the right to a lawful judge. In this context, the lawful judge includes both the judge in the court having jurisdiction and competence under Hungarian law and the judge according to the order of assignment of cases, and the Court of Justice of the European Union in its jurisdiction to give preliminary rulings. According to the practice of the Hungarian Constitutional Court, however, a constitutional complaint concerning the failure to give a preliminary ruling cannot be based on a violation of the right to a lawful judge on its own, but may only be examined in conjunction with the right to a reasoned judicial decision. Consequently, by examining these two fundamental rights together, the Hungarian Constitutional Court has created the possibility of assessing the justification for not taking a preliminary ruling from a substantive point of view, rather than from a purely formal point of view, in the context of constitutional review.

Keywords: fair trial, lawful judge, right to a reasoned judicial decision, preliminary ruling

I. Introduction

The preliminary ruling procedure is part of the institutionalised cooperation of the European courts. The TFEU[2] provides for the mandatory submission of a request for a preliminary ruling in specific cases, and this creates a mandatory dialogue between the national court applying EU law and the CJEU[3]. The Constitutional Court attaches particular importance to the constitutional dialogue within the European Union.[4]

The Constitutional Court has stressed that "both EU law and the national legal system based on the Fundamental Law are intended to achieve the objectives set out in Article E (1).[5] In this regard, the 'creation of European unity', integration, is an objective not only for political bodies but also for the courts and the Constitutional Court, from which 'European unity' follows the harmony and coherence of legal systems as a constitutional objective".[6] Constitutional dialogue as a tool is capable of guaranteeing the sui generis character[7] of both national law and European law.

The Constitutional Court has declared that "it cannot take a neutral position in this institutionalised cooperation".[8] According to Article E (2) of the Fundamental Law, "in its role as a Member State of the European Union and by virtue of international treaty, Hungary may - to the extent necessary for exercising its rights and fulfilling its obligations stemming from the Founding Treaties - exercise certain competences deriving from the Fundamental Law, together with the other Member States, through the institutions of the European Union".

The CJEU is part of the institutional system of the European Union, but it ensures the effective application of EU law not only by itself, but also, through the EU rules applied in individual cases by the court seised, in conjunction with the courts of the Member States. Uniform interpretation is a guarantee of effective legal pro-

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tection, and a necessary element of this is the normative regulation of the procedure that provides the means of unifying questions of interpretation.

The CJEU has emphasised in its case-law[9] that, where no judicial remedy is available against a decision of a national court, that court is, as a general rule, obliged, under the third paragraph of Article 267 TFEU[10], to refer a question on the interpretation of the TFEU to the CJEU.[11] The CJEU has also emphasised that the purpose of that obligation, as laid down in the third paragraph of Article 267 TFEU, is, inter alia, to prevent the development of national case-law in any Member State which is not in conformity with EU law.[12] Such an obligation does not apply to this Court where it finds that the question raised is irrelevant or that the provision of EU law in question has already been interpreted by the CJEU or that the correct application of EU law is so obvious as to exclude all reasonable doubt.[13] The existence of such cases must be assessed in the light of the specific characteristics of EU law, the particular difficulties of interpretation and the risk of divergent case-law within the Union.[14]

The Constitutional Court considers that the assessment of the abovementioned aspects of the initiation of the preliminary ruling procedure is a matter of technical law and has therefore typically refrained from constitutional review of judicial decisions on the subject.[15] The Constitutional Court has emphasised that it interprets the essence of the fundamental right to a fair trial in the enforcement of procedural rules of constitutional significance, and therefore does not consider the other elements of the procedure of the courts, in particular the way in which the disputes in question are decided, by applying the law and by exercising the discretionary power of the court, to be a question of constitutionality.[16] Consequently, in the initial period following the entry into force of the Fundamental Law, the Constitutional Court did not examine the merits of the initiation of the preliminary ruling procedure.[17]

The present study will examine how the Constitutional Court has refined this initial approach in its subsequent practice and how it has grounded the initiation of preliminary ruling proceedings in the fundamental rights context of the right to a fair trial.[18] Before doing so, however, it is necessary to briefly refer to the constitutional context of the right to a fair trial relevant to this issue.

II. The fundamental rights context of the preliminary ruling procedure

II.1. On the right to a fair trial in general

According to the long-standing interpretation of the Constitutional Court, "in the framework of the rule of law, the procedure must lead to the court actually ‚adjudicating' the rights and obligations at stake in the proceedings in the manner described therein: all the requirements set out in the Constitution - that the court be established by law, that it be independent and impartial, that the trial be fair (in the words of the international conventions: fair, equitable, in billiger Weise) and public - serve this purpose, and only by meeting these requirements can a constitutionally final, substantive decision establishing the right be taken".[19]