Dóra Horváth: Upholding the rule of law - Certain aspects of the pro futuro effect of European constitutional court decisions[1] (ABSz, 2025. Különszám, 70-82. o.)

Abstract

When constitutional courts find a legislation in violation of constitutional provisions they need to proceed with caution. While removing unconstitutional legislation from the legal system is essential, temporal solutions may be needed especially if the annulment may leave a legal vacuum, in order to protect legal certainty, the rights of individuals, public interest, and also the effective enforcement of EU law. The latter may be of increasing importance especially since the constitutional role of the EU law is expanding. EU constitutional courts have adapted different regulatory solutions on the temporal effect of constitutional court decisions. Despite the differences, a common denominator seems to be a need for flexibility. The competences and case-law of the Hungarian Constitutional Court provide sufficient flexibility in all areas and allows all different interests to be taken into account, ensuring overall that its decisions protect the rule of law and do not even temporarily cause disruption or setbacks in the protection of fundamental values.

Keywords: temporal effect, pro futuro effect, ex tunc effect, legal vacuum, legal certainty, European Court of Justice, effective enforcement of EU law, annulment, unconstitutionality, restorative effect

I. Introduction

The protection of the rule of law is a fundamental value recognised by Member States and EU law, which requires both the effective enforcement of the law, including national law and EU law, a substantive understanding of the rule of law, as well as legal certainty, that is ensuring the predictable and foreseeable functioning of the law.[2] Although these aspects of the rule of law cannot be in substantial conflict with each other, a conflict of these values may still arise before the constitutional court when determining the temporal effect of their decisions. This question of temporal effect is relevant in cases where the constitutional court finds that a piece of legislation is unconstitutional, while for example in cases of decisions on rejection, omission, or judicial decisions annulled on the grounds of unconstitutional discretion, temporal scope does not typically require such a balancing of interests. However, in the case of decisions rendering a piece of legislation unconstitutional, the question of whether the greater interest lies in the enforcement of constitutional principles or in legal certainty is a recurring one. Constitutional legality requires that an unconstitutional rule should not be applied to any person and that constitutionality (or, more precisely, the absence of unconstitutionality) should be restored without fail.[3] Another important aspect can be identified for European Member States, namely compliance with EU law, including EU case law, that is enshrined in the principle of effective judicial protection. Legal certainty and the predictability of legal relations, on the other hand, justify that even an unconstitutional rule should remain in force for a certain period of time, or that it should be applicable. Constitutional courts may also take into account the protection of the legitimate interest of the individual affected by unconstitutional legislation or the annulment thereof. There is also legitimate public interest to be considered when assessing temporal scope of decisions on unconstitutionality.

Following an overview of different constitutional models on the temporal effect of constitutional court decisions, this study will focus on the one hand on general reasons for pro futuro annulment in connection with the problem of legal vacuums created by the repeal or annulment of unconstitutional legal norms. Then on the other hand I will assess questions arising from possible conflicts between the EU principle of effective judicial protection and reasons for pro futuro effect. My aim is not to evaluate or rank individual regulatory solutions, rather, to identify the challenges that generally arise in the context of the temporal scope of decisions and to compare the risks and benefits of each. The detailed assessment of all Member State constitutional court practice exceeds the scope

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of this study, which instead focuses on general regulatory solutions and case-law as an example to compare the Hungarian model with.

II. Overview of different temporal effects of CC decisions

II.1. The general models of temporal effect

European constitutional courts have different rules on the temporal scope of decisions declaring a law unconstitutional. The rules fall into two main categories: in some countries the decision has ex tunc effect as a general rule (Germany, Belgium, Ireland, Portugal, Spain, Estonia), in this case, the legal facts and legal relationships created on the basis of the law are without legal basis, and are therefore null and void. In other countries the decision may, as a general rule, be binding only for the future (e.g. Austria, Bulgaria, Cyprus, Czech Republic, France, Greece, Hungary, Latvia, Lithuania, Luxembourg, Malta, Poland, Romania, Slovakia, Slovenia, Italy)[4], these are ex nunc decisions. In some countries the main rule of temporal scope is different for laws and regulations or administrative acts (e.g. Bulgaria,[5] Croatia[6]). For most Member States, the ex nunc general rule means that the unconstitutional rule ceases to have effect when the judgment enters into force. In other Member States, the judgment establishes the unconstitutionality of the rule with ex nunc effect, the declaration of which by force of law entails the expiry of the unconstitutional rule after a certain period of time from the entry into force of the judgment if the legislator does not remedy the unconstitutionality (Slovakia, Romania).

In most national regimes, if the scope of the decision nullifies its legal consequences, it does not, as a general rule, extend to decisions already closed, and therefore does not override the res judicata effect of the decisions. As an exception, in the case of criminal judgments, the decision of the constitutional court declaring a rule unconstitutional overrides res judicata in most countries, if the invalidity of the rule applied would entail a reduction of the penalty or sanction or an exclusion, exemption or limitation of liability (e.g. Hungary,[7] Italy,[8] the Czech Republic,[9] Slovakia,[10] Spain,[11] Germany,[12] Poland[13]). In contrast, in order to protect the rights of the person concerned, the decision of the Belgian Constitutional Court in the event of annulment generally overrides res judicata. In Belgium any natural or legal person whose rights have been infringed by a final individual act adopted on the basis of a repealed provision of another regulation may request a retrial of the closed cases, the renewal of the proceedings, the modification of the individual act within six months (Belgium).[14] Even decisions of the Supreme Court (Court of Cassation) and the Belgian State Council can be annulled if they are based on the annulled norm.[15] Although not as a general rule, but there are also cases in the practice of the Austrian Constitutional Court where its decisions have overridden res judicata, providing for retroactive effect even on previous decisions that had already become final.[16]