According to its most simple definition, sovereignty is power actually and in principle exclusively exercised within a territory and over a certain people (i.e. supreme power), which is acknowledged by other those exercising power in similar position. The external aspect of sovereignty is constituted by independence, autonomy and the competence for making decisions without any external control, while its internal aspect is constituted by the entity having the supreme power and the rules created by this entity. Resulting from the foregoing are the so-called sovereignty-based (internal) sovereign rights, the right to command and the obligation for subjection (obedience). The forms of exercise of sovereignty are, as it is well-known, legislation, exercise of executive powers and jurisdiction.[1] If national sovereignty is deemed as a necessary element of constitutionality, which it definitely is, then the nation framing a constitution is the bearer of sovereignty. Therefore, we cannot speak of statehood without a people/nation[2] in terms of content, and without a constitution in terms of public law (in a formal sense).
The European Union is not a state. It does not have an own nation framing a constitution, a constitution, therefore it does not have an own (original) sovereignty. It exists by the will of its members - the sovereign Member States -, which have conferred only certain itemized competences deriving from their sovereignty, and not their sovereignty itself.[3] Article 1 of the Treaty on European Union (hereinafter referred to as: TEU) explains this issue clearly and unequivocally ("By this Treaty, the HIGH CONTRACTING PARTIES establish among themselves a EUROPEAN UNION, hereinafter called 'the Union', on which the Member States confer competences to attain objectives they have in common.") as does Article E of the Fundamental Law of Hungary ("(2) With a view to participating in the European Union as a Member State and on the basis of an international treaty, Hungary may, to the extent necessary to exercise the rights and fulfil the obligations deriving from the Founding Treaties, exercise some of its competences set out in the Fundamental Law jointly with other Member States, through the institutions of the European Union"). Competences not conferred upon the Union in the Treaties remain with the Member States, the Union shall respect their national identities and their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security (Article 4 of TEU). Regarding competences, as it follows from the principle of conferral, the principles of subsidiarity and proportionality prevail, and no measures of the Union shall exceed the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein - neither in content nor in form. This is provided by Subsection (4) of Article E of the Fundamental Law of Hungary, according to which for the authorisation to recognise the binding force of an international treaty on conferring of competences, the votes of two-thirds of the Members of the National Assembly shall be required.
The Union is, therefore, not a sovereign entity[4], the sovereignty was retained by the Member States for themselves, and on the other hand, due to the conferral of competences, the sovereign rights originating from
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sovereignty - notably: legislation - are divided among the Member States and the Union.[5] Article 16 of TEU vests legislative functions in the Council, while Subsection (3) of Article E of the Fundamental Law recognises these as general mandatory rules of conduct (in addition to the Fundamental Law of Hungary and Hungarian legal regulations). Despite the sovereignty due to and retained by Hungary as a Member State, with regard to the actual exercise of sovereignty, Hungary is bound, on the one hand, by the international treaty establishing the Union, and on the other hand - in terms of the conferred competences and to the extent necessary for their implementation - the legal acts created by the institutions of the EU.
In the case of a conflict between EU law and the law of a Member State, the supremacy of EU law is a binding principle for all Member States - and thus for Hungary. This means that EU law is superior in the hierarchy of sources of law to the internal (domestic) legal order, so in case of a conflict of law EU law shall prevail. This is stated regarding its own legal order by the European Union (more precisely: the European Court of Justice stated this in the Van Gend en Loos case[6]). However, the actual situation is even more complex.
Firstly, a part of the secondary sources of law - namely directives - expressly require domestic legislation. In this case the constructed domestic law gains its validity from two other sources of law: on one hand, from the superior domestic law (the Fundamental Law of Hungary), and on the other hand, from the specific directive of the European Union. Therefore, the two legal orders are interconnected in such cases. Secondly, the touchstone of the full autonomy of the two legal orders is the Fundamental Law, situated at the top of the internal legal hierarchy. But is the legal order of the European Union superior to the Fundamental Law? Many think, on the basis of the Van Gend en Loos case, that the answer is a simple 'yes'. But, if the case was so, the Fundamental Law would lose its characteristic of being a positive constitutional law, and we could not talk about sovereignty of Member States anymore. The question can be precisely answered - with a 'no' - on the basis of Article E of the Fundamental Law of Hungary. Based on this provision, the Fundamental Law of Hungary (just as earlier the Constitution) elevated the legal order of the European Union "above itself" in relation to some of its provisions, but the same cannot be said about the Fundamental Law of Hungary as a whole. There has to be a constitutional minimum that shall be superior to the legal order of the European Union for as long as Hungary possesses sovereignty as a Member State.[7]
In essence, the Fundamental Law of Hungary reflects the theory of the "integration-resistant constitutional core" elaborated in German law. Nonetheless, the bounds of the supremacy of European Union vis-á-vis the domestic law are not clear. From the perspective of sovereignty and procedural resolution of the conflict of laws only the possible directions for solution have crystallized. The most important of these are: the possible decisions of the Constitutional Court in case of a conflict of laws between domestic and EU law, the advisory opinions, annulment, call for harmonisation of laws, the establishment of legislative omission, the adjudication of a constitutional complaint[8], and the correlations of supremacy and sovereignty, the supremacy of sovereignty and self-identity[9], the compromise solutions based on the sovereignty of the individual states, and attempts to find a new concept of sovereignty.[10] Ultimately, this question depends on the actual and legal identity of the European Union (integration/confederation/federation) and its developments.[11]
The occurring debatable situations can be categorized into three domains pursuant to TEU and the provisions of the Treaty on the Functioning of the European Union (hereinafter referred to as: TFEU). The first category includes the exclusive competences conferred to the Union (Article 3 of TFEU), regarding which only the Union has exclusive competence to draft and adopt binding legal acts, while the Member States have competence only as far as they are authorized by the Union (mainly in the form of directives), or if the aim of these legal acts is the implementation of legal acts adopted by the Union (Subsection (1) of Article 2 of TFEU).[12] In this category, the latitude of the Member States is highly limited until TEU and TFEU are in effect, in case of a legal dispute the supremacy of EU law and the decision of the Court of Justice of the European Union (hereinafter referred to as: CJEU) is, in essence, indisputable. The second category includes the shared competences (Article 4 of TFEU). Regarding these competences both the Union and the Member States may create and adopt binding legal acts, however, the Member States may exercise this competence only to the extent that the Union has not exercised or has disclaimed its right of exercising its competence (Subsection (2) of Article 2 of TFEU).[13]
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This category is supplemented by competences that are retained by the Member States, nevertheless, regarding which the Union is entitled to take measures which support, harmonize or supplement the competences of the Member States (Subsections (4)-(6) of Article 2 and Article 6 of TFEU), and for which TFEU applies further detailed rules. In case of the latter competences even a Member State may dispute according to its own legislation (that is before its own Constitutional Court) the compliance of the supportive, harmonizing or supplementary measures of the Union with its own legal acts, as the competence relevant to these is retained by the Member State.
And finally, there is a third category as well, namely the competences that are not vested in the Union in any way. Due to the formulations of TEU and TFEU which allow for a flexible interpretation, this category is actually very limited, for most of the competences of Member States constitute a part of at least the conferred competences or the competences supported by supportive, harmonizing or supplementary measures. Probably the best example for this flexible formulation is the shared competence for the area of freedom, security and justice (Paragraph (j) of Subsection (2) of Article 4 of TFEU). The scope of competence, which have a seemingly theoretical nature, is particularised by detailed policies, such as the issues regulated in Articles 67-89 of TFEU: the absence of internal border controls for persons, asylum and immigration, external border controls, prevention of racism and xenophobia, the coordination among police and judicial authorities and other competent authorities, cooperation in penal and civil law, and access to justice.[14] In fact the competence of the EU covers many areas related to the essence of classical sovereignty.
However, in the light of the foregoing - for as long as sovereignty is possessed by a Member State, and the Union exists by the will of the Member States - the competence of the Member States relevant to this subject matter cannot be fully deprived of their substance. The margin of the Member States is also guaranteed by the circumstance that formally the Member States did not waive the primacy of their own legal order in favour of the Union, this is an essential difference between TEU-TFEU and the failed Agreement on the Constitution containing a legal waiver formula.[15] Thus the primacy of EU law continues to be based on the decision of the CJEU, which - in case of a legal dispute - can attempt to enforce it, but the Member States have the possibility of serious resistance.
In defining the retained competences it can be assumed that the Member States did not confer their constitutional identity to the Union.[16] Although a solemn-looking formula that still conferred the control over their constitutional order and its elements to the institutions of the Union was adopted in Article 2 of TEU, in case of a legal dispute, this identity can be argued.
It has to be noted that CJEU refrains from acknowledging even the smallest margin of the Member States, which, for Hungary, is sufficiently illustrated by the judgment in the Jóri case[17]. According to the facts of the case detailed in the judgement, András Jóri was appointed as commissioner for data protection for a term of six years on 29 September 2008 by the National Assembly of Hungary pursuant to Act LXIII of 1992 on the Protection of Personal Data and on the Publication of Data of Public Interest. Based on Article 16 of the Transitional Provisions of the Fundamental Law his mandate was terminated on 31 December 2011. His functions were taken over by the Hungarian National Authority for Data Protection and Freedom of Information. The European Commission - with the support of the European Data Protection Supervisor - launched an action for failure to fulfil an obligation against Hungary. In the procedure Hungary presented the following argument in its defence: "Hungary states, first of all, that the decision to replace the Commissioner with a body which operates as an authority and, accordingly, to terminate the mandate of the Commissioner was adopted by the constitutional authority, and that the new legislation relating to the Authority is based on the Fundamental Law." By contrast, the CJEU held that as the Commissioner had been elected based on the 1992 act on data protection, therefore the termination of the Commissioner's mandate should have been based also on the 1992 act, consequently Hungary has violated Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data.[18] By this, the CJEU did not simply state that EU law is superior to a constitution of a Member State (which undoubtedly is the case in respect of the conferred competences), but questioned the constitutional quality of the Fundamental Law of Hungary. The judgment can only be interpreted as one that suggests that the Fundamental Law as a new constitution should have been in conformity with Act LXIII of 1992 on data protection, and the constituent power should have aligned itself to the legislative power. Nobody has ever authorised the CJEU to question a constitutional quality of a source of law (even if it occurred by simple disregard), still it so decided.
Despite the activity of the CJEU, which defends and expands EU law, it cannot be stated that the Member States and courts intended to defend their own constitution (hereinafter referred to as: constitutional courts) should surrender in each
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case. Naturally, the margin of the constitutional courts depends on the debated competence; the possibility for intervention by the constitutional courts is inversely proportional to the intensity of the transfer. The margin determined by the present legislation can be summarized in a simplified manner as follows.
A constitutional revision by Member States of legal acts included in exclusive competences is essentially not possible, it may only occur to review the formal adequateness of an implementing legal act delegated to the Member State. The constitutional court of the Member State enforces EU law in this case as well (which means that it cannot dispute the essence of the competence conferred under an international treaty). The starting point is largely similar to this regarding the shared competences, although it has to be noted that the detailed rules of TFEU still provide opportunity for material interaction by the Member States in the process of legislation or interpretation of the law. In the case of the shared competence related to the area of freedom, security and justice (the already referenced example) we find multiple important detailed rules. In this manner the fundamental rights, the different legal orders and legal traditions (that is to say the constitutional identities of the Member States) are respected in the course of the exercise of the shared competences within the area pursuant to Subsection (1) of Section 67 of TFEU. Based on Article 72, the shared competences (that is their detailed rules) are not relevant for the exercise of Member States' competences in connection with the maintenance of public order and safeguarding national security. Article 73 leaves the competence relevant to the coordination of public administration on the level of the Member States with the Member States. As regards the competence shared among Member States in the case of immigration policy, Article 79 expressly stipulates that it shall be open to Member States to determine the number of third-country nationals seeking job opportunities as employees or independent entrepreneurs they admit to their territories.[19]
Obviously, the largest margin for legislative acts (the adoption of laws in the first place) and the interpretation of law (eventually by the constitutional courts) is available for the Member States in the case of retained powers. The issues covered here are those that constitute an indisputable part of the constitutional identity of the Member States. Any issue which is a sine qua non condition of statehood and - if we take into consideration the source of statehood - of national self-identity shall be deemed part of this. Without the need for exclusivity, such elements are the self-definition of the state and of the nation, the historical, national and legal traditions, and the fundamental constitutional values, especially those which do not fall under common values pursuant to Article 2 of TEU. Naturally, these cannot be interpreted completely independently from the legal foundations of the EU; however, their interpretation certainly cannot be transferred to the CJEU. To provide a domestic example: in each case where there is a dispute regarding the above, the decision shall be made by the Hungarian National Assembly (as a constituent and legislative power) or the Constitutional Court (as institutions authorized for the erga omnes interpretation of the Fundamental Law of Hungary) based on the interpretation of the Fundamental Law of Hungary, in particular of Article E thereof.
It is worth to collect the most important arguments for the maintenance of the opportunity for interpretation by Member States presented by constitutional courts. The Constitutional Court of the Czech Republic found by conceptualizing sovereignty as a totality of powers - and not as the absolute criterion of a state - that due to the rule of subsidiarity the EU did not become a federal state, because it "does not dispose of a power to establish powers".[20] In other words, it means that in principle the EU may only expand its existing competences, and it is not authorized to establish new competences for itself, this is reserved for the totality of its Member States. According to the standpoint of the German Constitutional Court, the Member States remain sovereign states even after the Treaty of Lisbon, democratic legitimacy is possessed by the Member States, and by this legitimacy they transfer competences to the Union. "The European unity based on the contractual union of sovereign states cannot be realized without the required margin for the political shaping of economic, cultural and social living conditions (...). It applies furthermore to those political decisions which are particularly related to cultural, historical and linguistic aspects."[21] Based on this, the German Constitutional Court - in a sense surpassing the well-known Solange I and Solange II decisions - upholds the right for the revision of the efficient operation of subsidiarity, that is the revision of EU-decisions in defence of the Basic Law of Germany and constitutional identity.[22]
The Constitutional Court of Hungary has not made a decision like the latter one; however, it declared that in terms of the competence of the Constitutional Court, the legal acts of the Union are not deemed as international treaties - not even the primary sources of law embodied within treaties. It was therefore possible to hold a referendum on the Treaty of Accession.[23] Sooner or later the formulation of a clear standpoint cannot be avoided. This is indicated by the growing interest of Member States for the issues of constitutional identity,[24] which is increased by the preemption of the European Union to limit the exercise of the sovereignty of the Member States, and the Union's practices based on it.[25]
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In the event that a conflict presents itself between Hungarian constitutional identity and the supremacy of EU law - and it certainly will -, the above described facts may serve as the starting point for the Constitutional Court. First, we need to point out from the outset that Hungary has only transferred the right to exercise some of its competences derived from its sovereignty to the EU, and not its sovereignty itself. As a result, in case of a legal dispute the supremacy of the interpretation of EU law belongs to the CJEU, nevertheless, making a decision about the question whether the exercise of one competence in a specific situation - in particular the expansion of the competence -would mean the take-over of sovereignty, belongs under the jurisdiction of the Constitutional Court. In order to protect constitutional identity, the Constitutional Court has to proceed from the presumption of the maintenance of sovereignty. In a methodological sense it means that in the event of doubt if there are certain arguments that support the retention of the exercise of a certain competence within the sovereignty of the Member State's level, it shall be presumed that this competence was not transferred to the Union - even if there are arguments that support the transfer as well.[26] The applicability of this presumption clearly depends on the rules of TEU-TFEU on competences: the probability is low in the case of exclusive, higher in the case of shared and very high in the case of retained competences.
Another argument for the application of the sumption of retention in a specific case presents itself if there is reasonable ground to assume that at the time of the transfer of a competence the Member State was not able to consider an important, but at the time unknown circumstance. In such a case the Constitutional Court must expressly presume that we did not transfer the competence (parallel to the presumption, this is backed by the principle of clausula rebus sic stantibus). This argument may lead to the conclusion that the National Assembly shall adopt a two-thirds majority decision by applying Subsection (4) of Article E of the Fundamental Law of Hungary on whether it deems a specific competence as one that is subject to TEU-TFEU. Considering, however, that it was a referendum that decided on the Accession Treaty, in case of doubt, the option for a repeated referendum - as a constitutional requirement - relating to the foundations of sovereignty shall not be excluded.
Regarding the question whether we can talk about a fundamental question of sovereignty that requires a referendum (on the integration-resistant core of the constitution) the general considerations shall be observed. It is very useful to take into consideration the above presented arguments of the German Constitutional Court: the question would affect the foundations of sovereignty (constitutional identity) if political a decision needs to be made that is particularly related to cultural, historical and linguistic aspects. This needs to be pronounced in the first place by the National Assembly and ultimately by the Constitutional Court.
The presumption of retained sovereignty can also be applied in the case of shared, and even in the case of exclusive competences as well if the institutions of the EU are clearly and evidently unable to exercise them. An extreme case of this is when there are well-founded arguments that the EU will put itself into a state of violation of law, but the consequences of such infringement shall be borne by the Member State. In such a case, the Member State has a legitimate self-defence position: no infringement on part of the EU may result in an irreparable consequence in a Member State. If its threat can be clearly established, then the Member State may (or, as the case may be, must) take back the exercise of the transferred competence until the state of infringement by omission ceases to exist.
A further argument in favour for the freedom of action based on the presumption of retained sovereignty is a situation where fundamental rights are violated or seriously endangered. In such cases the above referenced arguments presented by the German Constitutional Court in the Solange decisions[27] can be applied. It may be a particularly strong argument that the EU is currently in the state of continuous infringement.
According to Subsection (2) of Article 6 of TEU, "The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union's competences as defined in the Treaties." The TEU is clear on this point: the Union "shall accede". As the modal verb "shall" denotes the binding nature of the event discussed, it obviously prescribes mandatory accession. Still, the Commission has sought the opinion of the CJEU on the draft version of the Accession Treaty that the Commission has prepared. By contrast, Opinion[28] 2/13 of the Court of Justice of the European Union (Full Court) issued on 18 December 2014 took the view that the EU has a new kind of legal order that is supreme to the legal orders of the Member States; it protects the fundamental rights recognised by the Charter, and this protection (the content-based interpretation of rights) shall remain within the autonomy of EU law; the European Court of Human Rights (ECtHR) could undermine the autonomy of EU law, and therefore the draft agreement on the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms does not comply with Article 6(2) TEU.[29] This can hardly be taken other than as an action by which the CJEU has
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overridden the binding rule of TEU, namely an international treaty adopted and ratified by all Member States.[30] The very same Treaty it was intended to protect. The CJEU thus defied the unequivocal provision of TEU, and - since the Court is unaccountable - there are no legal instruments against its decision. This arbitrary decision is especially surprising in the light of the supposition that the CJEU - in the name of the value of rule of law - would not accept a similar defiance against the ECtHR.
However, this provides an argument for the constitutional courts of the Member States, including the Hungarian constitutional court, for the establishment of its own competence. Since the EU has not subjected itself to the jurisdiction of the ECtHR despite the requirement set forth in TEU, but the Member States have, the legal protection for the Member States is stronger. As referring to the ECtHR is a personal right, therefore the Member State cannot waive their own exercise of competence; consequently, it is not only their right, but also their obligation to resist the institutional infringements of the EU in cases involving fundamental rights.
As a conclusion, we find quite a few arguments that, on the one hand, provide opportunity for the Constitutional Court of Hungary for the revision of the harmony of EU law and the Fundamental Law of Hungary, and on the other hand, allow for the Hungarian Constitutional Court to deem the disputed issue as one that is included in the scope of retained competences originating from Hungarian sovereignty, or even - temporarily, so long as the infringement of the EU by omission persists - as reverted. Finally, in a given situation it can be concluded from the above that - on the basis of the decision of the Constitutional Court - the National Assembly or even the source of power, the nation shall decide on the exercise of competence. ■
NOTES
[1] Dezső, Márta: A szuverenitás, in: Kukorelli, István (edit.): Alkotmánytan I. Osiris, Budapest, 2002. pp. 121-122 and 136-138. Hercegh, Géza (edit.): Nemzetközi jog. Alkotmánytan I. Osiris, Budapest, 1989. pp. 38-40. Gombár, Csaba: Mire ölünkbe hullott, anakronisztikussá lett. Magyarország szuverenitásáról and Nagy, Boldizsár: Az abszolútum vágyáról és a törékeny szuverenitásról. In: Gombár, Csaba-Hankiss, Elemér-Lengyel, László-Várnai, Györgyi (edit.): A szuverenitás káprázata. Korridor Politikai Kutatások Központja, Budapest, 1996. pp. 13-45, 7-8 and 227-233. Vild, Éva: A Szentszék és a magyar állam viszonyáról. In: IURA, 13. évfolyam, 2007. 1. szám. pp. (158-175) 158.
[2] For the sake of simplicity we use these two concepts as synonyms, bearing in mind that they are not identical. L. Zlinszky, János: Az Alkotmány értéktartalma és a mai politika. Szent István Társulat, Budapest, 2005. Kenneth Janda-Jeffrey M. Berry-Jerry Goldman: Az amerikai demokrácia. Budapest, Osiris, 1996.
[3] Szabó, Marcel-Láncos, Petra Lea-Gyeney, Laura: Az Európai Unió jogi fundamentumai. Budapest, Szent István Társulat, 2014. 45, 61, 77. Kecskés, László: EU-jog és jogharmonizáció. Budapest, hvgorac, 2011. 289, 291, 619, 629-631.
[4] Note that the attempt of establishing a constitution, which was vetoed by the French and Dutch referendum (Treaty establishing a Constitution for Europe, published in the Official Journal of the European Union, C 310 1., Luxembourg, Office for Official Publications of the European Communities) would not have changed this situation either, for its Article would have required the confer of competences and not the sovereignty of the Member States. Despite this, the Member States retained their sovereignty. See: Kaarlo Tuori: European Constitutionalism. Cambridge University Press, 2015, 345.
[5] Touri ibid. 347.
[6] Kende, Tamás-Szűcs, Tamás (szerk.): Európai közjog és politika. Budapest, Osiris, 2002. p. 559.
[7] András Jakab doubts that this approach would be enforceable. See: Jakab, András: A magyar jogrendszer szerkezete. Budapest-Pécs, Dialóg-Campus, 2007. pp. 111-112 and 184-188. Furthermore, the concept of the untouchable "core" is disputed by: Vörös, Imre: Csoportkép Laokónnal. A magyar jog és az alkotmánybíráskodás vívódása az európai joggal. HVG-ORAC, Budapest. 2012. pp. 106-109. See also: Blutman, László-Chronowski, Nóra: Az Alkotmánybíróság és a közösségi jog: alkotmányjogi paradoxon csapdájában (I.), Európai Jog, 2007. 2. (3-16.), p. 10.
[8] See: Chronowski, Nóra: "Integrálódó" alkotmányjog. Budapest-Pécs, Dialóg-Campus, 2005. 265. Blutman-Chronowski ibid. pp. 10-14.
[9] Blutman-Chronowski ibid. pp. 3-4, 10 and 12. Trócsányi, László: Az alkotmányozás dilemmái. Alkotmányos identitás és európai integráció. Budapest, HVG-ORAC, 2014.
[12] Szabó-Láncos-Gyeney: Az Európai Unió... ibid. pp. 78.
[13] Szabó-Láncos-Gyeney: Az Európai Unió... ibid. pp. 78-79.
[14] Szabó, Marcel-Láncos, Petra Lea-Gyeney Laura: Uniós szakpolitikák. Budapest, Szent István Társulat, 2014. pp. 176-220.
[15] Szabó-Láncos-Gyeney: Az Európai Unió... ibid. p. 95.
[16] Trócsányi ibid.
[17] JUDGMENT OF THE COURT (Grand Chamber) 8 April 2014 (...) in Case C-288/12.
[18] JUDGMENT OF THE COURT (Grand Chamber) 8 April 2014 (...) in Case C-288/12, sections 40, 57, 59, 61-62.
[19] Szabó-Láncos-Gyeney: Uniós szakpolitikák... ibid. pp. 177, 191, 214.
[20] Vörös ibid. p. 32, E.g.: ÚS,19/08., Pl. ÚS. 29/09.
[21] Vörös ibid. p. 35.
[22] Vörös ibid. p. 35, 2 BVR 1010/08., BverfGE 123.
[23] Vörös ibid. pp. 22-26, Decision 58/2004 (XII. 14.) of the Constitutional Court of Hungary, Decision 1053/E/2005 of the Constitutional Court of Hungary, Decision 72/2006 (XII. 15.) of the Constitutional Court of Hungary.
[24] Tuori ibid. pp. 338, 351. In the latter place Tuori implies that the constitutional courts of the Member States will be involved in a dispute not only with the CJEU, but with the European Court of Human Rights (ECtHR) as well.
[25] Tuori ibid. pp. 343, 353.
[26] This argument is the application of the doctrine of probabilism, - a medieval concept, which encompasses the presumption in favour of liberty - to the relation of Hungary and the European Union. L. James M. Joyce: A Nonpragmatic Vindication of Probabilism. In: Chicago Journals. http://www.jstor.org/stable/188574 (downloaded on 18 March 2012), A. Fleming, Julia: Defending Probabilism. Washington, Georgetown University Press, 2006.,
[27] Blutman, László: Az Európai Unió joga a gyakorlatban. Budapest, HVG-ORAC, 2010, pp. 97, 295-297, 341, 422, 477. Várnay, Ernő-Papp, Mónika: Az Európai Unió joga. Budapest, KJK-Kerszöv, 2002., 238. Kecskés ibid. p. 615.
[28] Avis 2/13 - Avis au titre de l'article 218, paragraphe 11, TFUE.
[29] Avis 2/13 - Avis au titre de l'article 218, paragraphe 11, TFUE, para 158, 166, 168, 170, 172, 194.
[30] L. Orbán, Balázs: Európai bírói fórumok küzdelme a háttérben. In: napigazdasag.hu, 09 January 2015, http://www.napigazdasag.hu/cikk/32780/ (as of 14 March 2015) and Michèle Finck: The Court of Justice of the European Union Strikes Down EU Accession to the European Convention on Human Rights: What Does the Decision Mean? In: I-CONnect, 28 December, 2014, http://www.iconnectblog.com/2014/12/the-court-of-justice-of-the-european-union-strikes-down-eu-accession-to-the-european-convention-on-human-rights-what-does-the-decision-mean/ (as of 14 March 2015).
Lábjegyzetek:
[1] The author is PhD, Habil.; Dean, Professor and Head of Department (Pázmány Péter Catholic University, Faculty of Law and Political Sciences); Constitutional Judge.
Visszaugrás
