Mr. Pavel Rychetsky: Some remarks on Constitutional Judiciary, European Union and their Points of Contact (ABSz, 2020. Különszám, 43-45. o.)

Honorable ladies and gentlemen,

Allow me to begin by thanking our hosts for their kind invitation and for providing an opportunity to ponder several phenomena which are connected to this space we exist in and which we, to a great extent, share. We may see it as symbolic that we meet in a year when we are celebrating the 30th anniversary of the events which led to the replacement of Central and Eastern European totalitarian regimes with democratic ones. The democratization of these countries had as its goal what was called a return to Europe, the symbolic culmination of which was the accession of our countries to the European Union. This integration became a reality almost exactly 15 years ago. And as if there weren't enough anniversaries, I should also add that it has been exactly ten years since the European Union began to adhere to the Treaty of Lisbon. Such a year, I think, calls for reflection and I'm glad that I can share with you today some of my observations on this subject.

The democratic rule of law assumes the authority of law along with the separation and balance of powers. The examination of these principles, which is to say the examination of laws and regulations, is often (not always) entrusted in the hands of constitutional bodies which stand at the core of judicial review. In 1989, constitutional judiciary, though its roots reach much deeper into the past, became a common trait of practically all countries of Central or Eastern Europe. We may state, then, that our constitutional judiciary is celebrating its anniversary, too, because it is so closely linked to the values of the newly-established or, rather, renewed rule of law and democracy. With our entry into the European Union in 2004, the countries of our cultural and geographic region gained another common characteristic which expressed itself mainly through our integration into the same legal system, that of the European Union. However relatively autonomous[1] our domestic legal systems remain from those of the EU as a whole, their contact is impossible not to expect, namely having regard to the content of the past case law of national constitutional courts on the one hand and of the Court of Justice of the European Union on the other. It is therefore necessary to see this contact as a given value which, rather than rejection or critique, deserves constructive solutions, the pursuit of which was certainly deepened thanks to the Treaty of Lisbon, which came into effect 10 years ago and which, in Article 4 (2), works rather innovatively with the concept of "national identity," in such a way as to develop the idea more thoroughly compared with earlier legal treatments. This does not mean, however, that it provides this concept with a clear legal definition.[2] In any case, it allowed the national identities of member states to be connected to their constitutional identity (that is, constitutional systems), which the European Union commits itself to respecting.

While the Court of Justice of the European Union is charged with reviewing the legality of EU legislation, the national constitutional courts are charged with domestic law, including protection of the constitutions, and thus also of national constitutional identity. As you surely know, it is not only a hypothetical assumption that this constellation may, under certain circumstances, lead to the incongruence of European law with the constitutional identity of this or that member state. This is where national constitutional judiciaries have come into contact with the Court of Justice of the European Union and, without being pessimistic, I realistically expect them to come into contact again in the future. Nevertheless, let us notice that their contact thus far, in some cases perhaps even their clashes, have not led, for now, to a systemic breaking-down of the legal equilibrium in the European Union and its constituents, nor has the significance and mission of the given actors, that is, the constitutional courts or the Court of Justice of the European Union, been undermined.[3] And here, I naturally take into account the fact, including from my own experience, that reservations about specific moves of one or the other side have been noted in the rulings on both sides.

The respect for constitutional identity of member states may be considered, in connection with the aforementioned, useful.[4] Here, I'm referring to its potential to connect or reconcile the existence of the principle of precedence of the European law with the rightful expectation of member states that this law will not compromise their constitutional identity.[5] At the same time, I do not deny that the concept of the constitutional identity is burdened by many ambiguities and that its better conceptualization is and will continue to be quite complicated.[6] I am even overcome

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with the apprehension that the notion of constitutional identity (or national identity in the broader sense) may bring more questions than answers. One such question mark, in my view, emerges in conjunction with the factor of time. More precisely, if we agree that constitutional identity cannot be fully static, how should we then deal with its dynamism? How quickly can constitutional identity change or be changed? These questions are rather important from the perspective of understanding the content of constitutional identity in the context of the national system as well as in conjunction with the outside world. With this, I also touch on the phenomenon of the elementary level of comprehensibility and predictability of the content of constitutional identity. In fact I think that this elementary measure is connected with the fundamental values of the European Union, in the same way as they are expressed in Article 2 of the Treaty on European Union: ...respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. Principles like pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men should, after all, be intrinsic to all member states, and there is likely no doubt in our minds that they are, and should be, a solid fixture of their constitutional identity. I am deeply disturbed by the fact that the institutions of the European Union must be in conflict about these very issues with Poland and Hungary, countries which are so close to ours not just geographically speaking, but also in terms of their culture and history.[7]

I am afraid, given my experience with history, that the idea of constitutional identity might become a tool for centrifugal tendencies. The act itself of including the protection of national constitutional identity into primary law was doubtlessly a positive step. Its inclusion started an exceptionally intense debate about the meaning of this term in an effort to better understand it. The discussion about the nature of constitutional identity seems to lead inevitably to thoughts about ourselves or - better put - about the political community in which we live, about the nation understood as synonymous with the people, about its values and its perception.[8] With this I would like to draw attention to the fact that constitutional identity doesn't have to have a mere legal dimension, but that it also includes a kind of popular component which may overlap with the legal dimension in certain values but which is likely not to be entirely identical.[9] That is, after all, perfectly natural. Complications can occur when the popular component of constitutional identity grows too different from its legal counterpart. In other words, if constitutional principles are not sufficiently rooted in the values of the citizens themselves and in the conscience of the political system. This conflict, I believe, may be a serious challenge for the democratic rule of law. Measures which are incompatible with the constitution are unconstitutional - every student of law knows this. But what if the citizens are demanding these measures and their elected representatives therefore gladly trample on the constitution? To strive for the preservation and strengthening of the compatibility of both components of the constitution, the legal and the popular, is therefore desirable, from the point of view of the smooth functioning of the constitutional system, and a discussion of this issue is certainly a good place to start.[10]